Bridge v R

1. [1]

   JOHNSON J: I agree with Price J.

2. [2]

   PRICE J: On 22 March 2018, Michael David Bridge (“the applicant”) was sentenced by Bright DCJ (“the sentencing judge”) to a total effective sentence of imprisonment for 10 years and 4 months with a non-parole period of 6 years and 4 months.

3. [3]

   The applicant who was self-represented, seeks leave to appeal his sentence on the single ground of “[t]he parity sentence with my co-offender Abdul [Hassian]”.

4. [4]

   Abdul Hassian was sentenced by English DCJ (“the judge”) on 20 June 2019 to an aggregate sentence of imprisonment of 10 years and 6 months with an aggregate non-parole period of 6 years.

5. [5]

   The applicant requires an extension of time to pursue this appeal. He filed a Notice of Appeal on 17 April 2018, which was extended by the Registrar until 15 March 2019. However, no further action was taken by the applicant until he filed his Notice of Application for Leave to Appeal on 22 April 2020.

6. [6]

   The following table helpfully provided by the Crown summarises the sentence imposed on the applicant.

7. [7]

   The sentence imposed on Mr Hassian is summarised in the following table.

8. [8]

   As will be seen from the table at [6] above, the applicant was sentenced for four substantive prohibited drug offences which were contrary to the DMT Act, one offence of dealing with the proceeds of crime contrary to the Crimes Act, one offence of making counterfeit money contrary to the Crimes (Currency) Act and one offence of possession of an unauthorised pistol contrary to the Firearms Act. He asked the sentencing judge to take into account on sentence a further four charges on a Form 1 and there were eleven charges on two s 166 certificates.

9. [9]

   As will be seen from the table at [7] above, Mr Hassian was sentenced for one substantive prohibited drug offence contrary to the DMT Act, one offence of knowingly directing the activities of a criminal group contrary to the Crimes Act, one offence of assault occasioning actual bodily harm in company contrary to the Crimes Act and one offence of making counterfeit money contrary to the Crimes (Currency) Act. Mr Hassian asked the judge to take into account on sentence a further three offences that were drug related on a Form 1 and a further two offences related to assault and intimidation on another Form 1. There was one charge of contravening an apprehended violence order on a s 166 certificate. Mr Hassian was also sentenced for a breach of a s 12 bond.

10. [10]

    Out of all the offences for which the applicant and Mr Hassian were sentenced, there are only two which bear some relationship. These offences are:

    1. (1)

       Supply large commercial quantity of a prohibited drug (methylamphetamine) contrary to s 25(2) of the DMT Act. This is offence sequence 28/H61103323 for the applicant. [1] For Mr Hassian, this is offence sequence 1; [2] and

    2. (2)

       Make counterfeit money (Australian currency) contrary to s 6(1) of the Crimes (Currency) Act. This is offence sequence 1/H61342870 for the applicant. [3] For Mr Hassian, this is offence sequence 6. [4]

11. [11]

    As the applicant’s complaint of disparity focusses on the indicative sentences for the supply of the large commercial quantity of methylamphetamine, it is necessary to detail the facts of these offences and the respective findings made by the sentencing judge and English DCJ. [5]

Factual background to the applicant’s offence (sequence 28/H61103323)

1. [12]

   The applicant’s sentencing proceedings took place on 9 March 2018 during which an agreed statement of facts were tendered. In her remarks on sentence, the sentencing judge summarised the agreed facts and the following are relevant to the large commercial quantity supply offence:

2. [13]

   Her Honour also said at [55]:

3. [14]

   The sentencing judge said that in assessing the objective seriousness of the offence, she had taken into account the following matters:

4. [15]

   Having regard to those matters, her Honour assessed the objective seriousness of the offence as being in the middle of the range.

5. [16]

   When referring to the applicant’s subjective case, the sentencing judge found that the applicant, who was 34 years old, had a very limited criminal history and was entitled to some leniency on sentence.

6. [17]

   Her Honour had regard to the timing of the pleas of guilty and allowed a discount of 25% on sentence.

7. [18]

   Other findings that the judge made were that the applicant had good prospects of rehabilitation and was unlikely to re-offend. Her Honour accepted that the applicant was remorseful.

8. [19]

   When fixing the indicative sentence for the principal offence, the sentencing judge took into account the Form 1 offences being:

9. [20]

   The sentencing judge also had regard to the principle of totality. Her Honour said that the starting point of the indicative sentence was 10 years, discounted by 25% for the plea of guilty leaving a total term of 7 years and 6 months with a non-parole period of 4 years and 8 months.

The factual background to Mr Hassian’s offence (sequence 1)

1. [21]

   In Mr Hassian’s sentencing proceedings a lengthy statement of agreed facts was tendered which the judge recounted in her sentencing remarks. The following summary of the facts is particularly relevant to the relationship between Mr Hassian and the applicant in the supply of the large commercial quantity of methylamphetamine:

2. [22]

   The judge found that Mr Hassian was engaged as a principal in a medium sized drug syndicate involving the distribution of drugs at a wholesale level and at a street level. Her Honour found that he was the principal who was sourcing and supplying substantial quantities of methylamphetamine, cannabis and cocaine.

3. [23]

   The judge said that Mr Hassian had access to large sums of working capital to ensure his enterprise continued successfully. He had couriers and suppliers working for him who delivered drugs around Sydney, the Central Coast and Newcastle.

4. [24]

   Her Honour found that there were 13 supplies “in less than eight weeks between 14 April 2016 and 4 June 2016, of 3.92 (sic) kilograms of methylamphetamine which was six times more than the amount applicable to constitute the large commercial quantity”.

5. [25]

   Her Honour assessed the objective seriousness of the offence to fall “at above the midrange of objective seriousness.”

6. [26]

   When referring to Mr Hassian’s subjective case, the judge said that Mr Hassian’s prior criminal history was “replete with convictions and custodial sentences for offending of a like nature”.

7. [27]

   Her Honour also considered that the Form 1 offences were “very serious”. Her Honour found that Mr Hassian’s prospects of rehabilitation remained guarded and without a genuine commitment to rehabilitation he was “highly likely to reoffend”.

8. [28]

   Her Honour said that Mr Hassian had done his best to express remorse. His pleas of guilty demonstrated contrition.

9. [29]

   The judge allowed a 25% discount for his pleas of guilty and an additional 7.5% discount for assistance.

10. [30]

    The judge took into account the following matters on a Form 1:

    1. (1)

       Supply of not less than the commercial quantity of cannabis, namely 40.1 kilograms contrary to s 25(2) of the DMT Act;

    2. (2)

       Supply of not less than the commercial quantity of cocaine, namely 300 grams contrary to s 25(2) of the DMT Act; and

    3. (3)

       Knowingly dealing with the proceeds of crime, namely $42,855 contrary to s 193B(2) of the Crimes Act.

11. [31]

    Taking into account the matters on the Form 1, her Honour said that the indicative sentence for count 1 was 5 years with a non-parole period of 2 years and 6 months.

Argument

1. [32]

   In written submissions, the applicant supported his ground of appeal by stating:

2. [33]

   In oral submissions, the applicant contended that his sentence was excessive as Mr Hassian had “three times… the quantity of drugs” and Mr Hassian “received 10 years 6 months on top with a non-parole period of 6 years” whereas he received “10 years 4 months on top with a non-parole period of 6 years 4 months”.

3. [34]

   The applicant said that Mr Hassian’s indicative sentence was “two and a half years on the bottom”. However, he “received 4 years 6 months on the bottom” when his quantity of drugs was “a third of the size”. It is apposite to note that contrary to the applicant’s oral submission, the indicative non-parole period is 4 years and 8 months.

4. [35]

   The applicant argued that Mr Hassian got “10 months per kilo” whereas he ended up with “54 months as opposed to [Mr Hassian]”.

5. [36]

   The applicant told this Court that his prior criminal record was very limited whereas Mr Hassian had an extensive and serious prior criminal history. He said that the sentencing judge assessed him as being unlikely to reoffend and as having a medium to low risk of offending. On the other hand, Mr Hassian’s prospects of rehabilitation were assessed by the judge as remaining guarded and having a high likelihood of reoffending.

6. [37]

   It was the Crown’s submission that parity principles have minimal application in the applicant’s case.

7. [38]

   The Crown submitted that the particular circumstances of the applicant and Mr Hassian did not permit a mere comparison of the aggregate sentences as Mr Hassian was sentenced in respect of a number of different offences not related to the applicant. Furthermore, an issue arises as to the extent to which the applicant and Mr Hassian were “co-offenders” or “like offenders”. Both were involved in drug supply but each had one drug supply offence in which both had some involvement.

8. [39]

   The Crown argued that even where there was shared involvement, the applicant and Mr Hassian were not parties to a joint criminal enterprise to supply prohibited drugs. It was submitted that Mr Hassian was a wholesaler of drugs, operating with others on his own account, with the applicant being one of his customers. The applicant (in Newcastle) sourced drugs from Mr Hassian (in Sydney) to on-supply those drugs in the Newcastle area. The Crown contended that the applicant was involved as a principal (with others) in that drug dealing enterprise in which Mr Hassian was not involved. Mr Hassian, the Crown submitted, was a principal (with others) in a separate wholesale distribution enterprise.

9. [40]

   In relation to the counterfeiting offence, the Crown’s contention was that it could be said that the applicant and Mr Hassian were both involved in the same criminal enterprise. However, the Crown submitted that the offence played a minimal role in the overall sentences that were imposed on each of them and did not appear to form the basis of the applicant’s complaint.

Consideration

1. [41]

   Where there is a marked disparity between the sentences imposed on co-offenders giving rise to a justifiable sense of grievance, this Court will intervene. [9] The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant’s grievance was justified. [10] The plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [11] (“Green”) said at [31]:

2. [42]

   The parity principle is not confined to sentences imposed upon co-offenders who have committed the same crime; it can also apply to offenders engaged in the same criminal enterprise, even though they have been charged with different offences. In Green, the plurality said at [30]:

3. [43]

   In Jimmy v R, [12] Campbell JA observed that there are limits to the use of the parity principle. His Honour said at [203]:

4. [44]

   The practical difficulties in comparing the sentences of participants in the same criminal enterprise are increased when the crime is part of an aggregate sentence imposed pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which includes other offences that are not part of that criminal enterprise.

5. [45]

   It is difficult to apply the parity principle when there is a wide divergence between the nature of the other offences charged against the applicant and a co-offender. In these circumstances, a comparison of the aggregate sentences will do little to inform this Court as to whether there is a justifiable sense of grievance. Such is the present case.

6. [46]

   This does not mean that the parity principle cannot be applied to aggregate sentences. The indicative sentence for the joint criminal enterprise crime may provide some guidance as to whether there is unjustified disparity. In AMZ v R, [13] Hoeben CJ at CL (Price and Schmidt JJ agreeing) approved the approach of R A Hulme J in considering Pt 7 Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW). [14] Hoeben CJ at CL said at [16]:

7. [47]

   One of the arguments advanced by the Crown was that the applicant and Mr Hassian were not parties to a joint criminal enterprise. True it is, in the agreed facts, the participants in the joint criminal enterprise for the supply of prohibited drugs in the Newcastle area were stated to be the applicant and Blake Waterhouse. [16] However, it is evident from the agreed facts that they sourced methylamphetamine from Mr Hassian. The applicant and Mr Hassian had a common understanding to commit the crime although they participated in the offence in different ways.

8. [48]

   Furthermore, it is apparent from the agreed facts placed before the judge in Mr Hassian’s case that the applicant was a participant in the joint criminal enterprise for the supply of prohibited drugs. The agreed facts reveal that Mr Hassian supplied almost three kilograms of methylamphetamine to the applicant.

9. [49]

   The application of the parity principle is governed by substance rather than form. Although the agreed facts in the applicant’s case did not name Mr Hassian as one of the participants in the joint criminal enterprise, they were clearly co-offenders. In my view, the issue of equal justice can be assessed from the undiscounted starting points of the indicative sentences for the charges of supply of the large commercial quantity of methylamphetamine as there are significant differences in the amount of the drug supplied and the subjective circumstances of the applicant and Mr Hassian.

10. [50]

    In the applicant’s case, 1.115 kilograms of methylamphetamine was supplied whereas 3.192 kilograms was supplied by Mr Hassian. Although on Mr Hassian’s agreed facts, the applicant received almost three kilograms of the prohibited drug, he was not charged with these offences and accordingly, that does not bear consideration on the parity issue.

11. [51]

    The sentencing judge assessed the objective seriousness of the applicant’s offence as being “in the middle of the range” whereas the judge’s assessment of the objective seriousness of Mr Hassian’s offence was “at above the mid-range of objective seriousness”.

12. [52]

    The sentencing judge’s findings included the applicant’s very limited criminal history, good prospects of rehabilitation, unlikelihood of re-offending and remorse.

13. [53]

    On the other hand, Mr Hassian had an extensive prior criminal history. The judge’s findings included guarded prospects of rehabilitation, high likelihood of re-offending without a genuine commitment to rehabilitation and that he had done his best to express remorse.

14. [54]

    In both cases, the indicative sentences took into account the Form 1 offences. As judges do not quantify the effect that Form 1 offences have on the sentence for the principal offence, it is not possible to ascertain the impact that the Form 1 offences had on the indicative sentences. It is sufficient to state that they are serious offences in both cases.

15. [55]

    The undiscounted starting point of the applicant’s indicative sentence is 10 years. Adding the discount of 32.5% to Mr Hassian’s indicative head sentence the undiscounted starting point was 7 years and 5 months (round figures). Having regard to the differences in the amounts of the drug supplied, assessments of the objective seriousness of the offences and the applicant’s more favourable case, the applicant’s sense of grievance is understandable.

16. [56]

    The question remains, however, whether Mr Hassian’s indicative sentence was so manifestly inadequate that it does not give rise to a legitimate sense of injustice. In Saraya v R, this Court (Meagher JA, Fullerton and Schmidt JJ) said at [13]-[17]:

17. [57]

    In my view, the discounted indicative sentence for Mr Hassian’s offence of 5 years with a non-parole period of 2 years and 6 months was erroneously lenient. The legislative guideposts are a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The objective gravity of the offence was above the midrange. Mr Hassian’s subjective case did little to assist him on sentence. Furthermore, there were the matters on the Form 1 to be taken into account. The manifest inadequacy of Mr Hassian’s sentence is of such a degree that any sense of injustice engendered in the applicant cannot be regarded as legitimate.

18. [58]

    I would add that the applicant’s indicative sentence for the supply of the large commercial quantity of methylamphetamine was not unreasonable or plainly unjust. Neither the indicative sentence nor the aggregate sentence are manifestly excessive.

19. [59]

    The applicant did not complain about the indicative sentences for the offences of making counterfeit money contrary to s 6(1) of the Crimes (Currency) Act.

20. [60]

    Accordingly I propose the following orders:

    1. (1)

       Extend the time for leave to appeal.

    2. (2)

       Grant leave to appeal.

    3. (3)

       Dismiss the appeal.

21. [61]

    WRIGHT J: I agree with Price J.