AMZ v R

HOEBEN CJ at CL:

Berman SC DCJ found that the applicant did not get involved in drug dealing due to addiction, but for money. The applicant was arrested on 15 February 2011 after the police intercepted suitcases containing almost 10kg of methylamphetamine with a street value of more than $2.9 million. The applicant pleaded guilty to six charges relating to the supply of large commercial quantities of methylamphetamine and heroin through his participation in a criminal group. The applicant was sentenced in the District Court on 2 December 2011. After discount the applicant’s overall sentence was 13 years with a non-parole period of 9 years starting on 15 February 2011 making the applicant eligible for parole on 14 February 2020.

The applicant received a discount of 55 per cent on his sentences for his guilty plea, remorse, contrition and assistance to authorities. Upon his arrest, he provided immediate assistance to the police and told them much more about his own illegal activities than they would otherwise have been able to discover. He promised to give evidence against others involved in the operation, including Yazdani, which he did. Berman SC DCJ found “this is high level assistance”.

The offences and individual sentences were as follows:

The Form 1 offences were:

The applicant appealed against his sentence. There were four grounds of appeal including a complaint that the sentences were manifestly excessive. The Court of Criminal Appeal dismissed the appeal on 1 February 2013 (AMZ v R [2013] NSWCCA 6). This appeal was dealt with before Yazdani was sentenced. The issue of parity was not raised.

Yazdani pleaded not guilty to 16 counts relating to supply and distribution of drugs and stood trial in December 2014. On two counts there was a directed verdict of not guilty (Counts 7 and 15); on one count there was a finding by the jury of not guilty (Count 12); and on one count he was found not guilty as charged, but guilty of the statutory alternative relating to the indictable quantity of the prohibited drug (Count 13). The jury found Yazdani guilty of the remaining 12 counts.

On 15 May 2015 Yazdani was sentenced by Woods QC DCJ in the District Court at Gosford. His Honour imposed an aggregate sentence for all of the offences 28 years with a non-parole period of 21 years beginning 27 March 2012 with Yazdani eligible for parole on 26 March 2033.

The offences and indicative sentences assessed by Woods QC DCJ were as follows:

Yazdani appealed against his conviction but did not seek leave to appeal against sentence. The Court of Criminal Appeal dismissed the conviction appeal on 2 September 2016 (Yazdani v R [2016] NSWCCA 194).

The applicant made an application, pursuant to Pt 7 Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW), for an inquiry into the sentence imposed on him. The basis for the application was that he had a justifiable sense of grievance in the light of the sentence imposed upon Yazdani. The applicant submitted that there was a doubt or question as to a mitigating circumstance in the case, namely the lack of appropriate disparity between his sentence and those assessed for Yazdani.

The applicant submitted that when one compared his undiscounted sentences to the indicative sentences imposed on Yazdani, it could be seen that the sentences imposed on him were either the same or greater than the indicative sentences for Yazdani. This comparison, he submitted, made it clear that he was dealt with more harshly than Yazdani.

The Pt 7 application was considered by R A Hulme J on 19 April 2017 (Application by AMZ pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2017] NSWSC 432). His Honour found that the issue of equal justice could be assessed from calculations of the starting point for the applicant’s individual sentences before the application of the discount. Having regard to the notional starting point for his individual sentences, compared to the indicative sentences for Yazdani, there did appear to be a basis for the applicant having a legitimate sense of grievance.

R A Hulme J was satisfied that there were significant differences between the circumstances of the applicant and Yazdani so as to justify the applicant’s sense of grievance. Yazdani was the “principal”, whereas the applicant was “the personal assistant to the principal”. Berman SC DCJ found that while the applicant’s “role was much higher in the hierarchy than a mere courier”, his actions were “at the direction of others” and there was no suggestion that he “exercised any independent or innovative thought about this drug supply business”.

R A Hulme J noted that there was also a significant difference between the subjective cases of the applicant and Yazdani. Berman SC DCJ accepted that the applicant was remorseful, most unlikely to re-offend, had good prospects of rehabilitation and had no prior convictions. Yazdani, on the other hand, had a criminal history of previous drug offences and was declared a habitual trafficker in Western Australia. Woods QC DCJ found that the only mitigating factor in Yazdani’s case was the dislocation in his early life and his family because they came to Australia as refugees.

R A Hulme J was satisfied that sentences between two co-offenders may be compared for the purposes of determining whether there has been equal justice, despite the fact that one offender received an aggregate sentence (R v Clarke [2013] NSWCCA 260 at [68] and [75] per McCallum J; Prelipceanu v R [2016] NSWCCA 280 at [57] per Button J). R A Hulme J determined that the primary consideration in such an exercise would be considering the indicative sentence for the equivalent offence (R v Clarke at [68]). He noted that one of the functions of requiring judges to provide indicative sentences was to afford an ability to analyse sentence structures and compare sentences imposed on offenders who shared crimes (JM v R [2014] NSWCCA 297 at [39]; Prelipceanu v R at [57]).

As a result of that analysis, R A Hulme J determined that the applicant had a justifiable sense of grievance arising from parity issues between his sentence and that of Yazdani. As a result, his Honour found that there was a doubt or question as to the sentence imposed on the applicant and referred the whole of the case to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act.

It is as a result of that determination by R A Hulme J that the matter is presently before the Court.

The ground of appeal relied upon by the applicant was:

I have concluded that the applicant does have a justifiable sense of grievance for the reasons already referred to. In addition, when one has regard to the fact that Yazdani was sentenced for 13 very serious offences, whereas the applicant was sentenced in respect of 6, the discrepancy between the sentences becomes even more obvious. In those circumstances, the major issue for consideration by the Court is whether a further reduction in the applicant’s sentence would produce a result which would be regarded as erroneously lenient and therefore “an affront to the proper administration of justice”.

In considering that question, regard has to be had to the substantial quantities of drugs which were involved in each supply and the objective gravity and high moral culpability associated with the offending.

These issues were fully discussed by the Court (Meagher JA, Fullerton and Schmidt JJ) in Saraya v Regina [2015] NSWCCA 63:

Although the sentence imposed on Yazdani was a lenient one, given the extensive nature of his offending, it was not one which I would regard as erroneously lenient. In any event, there was no Crown appeal against sentence. Accordingly, there is some capacity for a further reduction in the applicant’s sentence, although as already indicated, that is constrained by the seriousness of his offending and the need to impose a sentence which is not erroneously lenient. In those circumstances, error having been identified, it is appropriate to resentence the applicant.

What needs to be taken into account before resentencing are those matters which have happened to the applicant between the date of the original sentence and the present time. It seems that the applicant’s parents and family remain highly supportive of him and travel from Perth to Sydney at least once a month to visit him. The applicant has held institutional employment since his entry into custody and has attained various occupational certificates during that time. He has abstained from the use of illicit substances while in custody and there have not been any positive urine analysis results. He has suffered some periods of anxiety while in custody but has endeavoured to remain positive by keeping himself busy. He continues to be in protection while in prison.

On resentence the indicative sentences which I would impose are as follows:

Having regard to totality and general deterrence, I have in the re-exercise of the sentencing discretion reduced the amount of concurrency from that allowed by Berman SC DCJ. As the indicative sentences make clear I have used the same combined discount of 55 per cent as Berman SC DCJ. This has resulted in an aggregate sentence of imprisonment for 12 years with a non-parole period of 8 years, commencing 15 February 2011 and expiring on 14 February 2019, with the balance of term expiring on 14 February 2023. The applicant will be eligible for parole on 14 February 2019.

The orders which I propose are:

PRICE J: I agree with Hoeben CJ at CL.

SCHMIDT J: I agree with Hoeben CJ at CL.