Saab v R

1. [1]

   WARD P: I agree with Yehia J.

2. [2]

   YEHIA J: By Notice of Appeal filed on 8 November 2024, the applicant seeks leave to appeal the sentence of imprisonment imposed upon him by Hunt DCJ (the sentencing judge) in the District Court of New South Wales at Sydney on 9 November 2023. The applicant was sentenced for an offence of import a commercial quantity of a border controlled drug, namely, 235.848 kg of pure methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). The applicant requested the Court to take into account, pursuant to s 16BA(1) of the Crimes Act 1914 (Cth) (Crimes Act), an offence of attempt to possess a commercial quantity of a border controlled drug, namely 235.848 kg of pure methamphetamine, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code, arising out of the same importation.

3. [3]

   The maximum penalty for both offences is imprisonment for life and/or 7,500 penalty units.

4. [4]

   The applicant pleaded guilty to the import offence before Central Local Court on 19 October 2022. As a result, the sentencing judge applied a 25% discount for the plea of guilty. The sentencing judge imposed a term of imprisonment of 9 years, commencing on 19 October 2021, being the date the applicant entered custody, and expiring on 18 October 2030, with a non-parole period of 6 years. The applicant is eligible for release on parole from 18 October 2027. Given the application of a 25% discount for the plea of guilty, the undiscounted head sentence was 12 years’ imprisonment.

5. [5]

   The sentencing judge sentenced the applicant’s co-offenders, Mr Antonio De Luca and Mr Afif Saliba on the same date that sentence was imposed on the applicant.

6. [6]

   Mr De Luca was sentenced for an offence of attempt to possess a commercial quantity of a border controlled drug, namely 235.848 kg of pure methamphetamine, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (the federal offence), relating to the same importation. Mr De Luca was also sentenced for an offence of knowingly take part in the supply of not less than the large commercial quantity of pseudoephedrine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the state offence), committed prior to the federal offence. Mr De Luca requested that the Court take into account an offence on a Form 1 of possessing identity information with intent to commit an indictable offence, contrary to s 192K of the Crimes Act 1900 (NSW).

7. [7]

   Following the application of a 25% discount for the pleas of guilty, in respect of the state offence, the sentencing judge imposed a sentence of 5 years and 3 months’ imprisonment to date from 19 October 2021, with a non-parole period of 3 years and 3 months, to expire on 18 January 2025. For the federal offence, the sentencing judge imposed a sentence of 7 years and 2 months’ imprisonment, partially accumulated on the state offence, to date from 19 October 2023, with a non-parole period of 4 years to expire on 18 October 2027.

8. [8]

   The undiscounted head sentence for the federal offence was 9 years and 6 months’ imprisonment.

9. [9]

   Mr Afif Saliba was sentenced by the same sentencing judge, for one offence of attempt to possess a commercial quantity of a border controlled drug, namely 235.848 kg of pure methamphetamine, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code, relating to the same importation. The sentencing judge applied a discount of 17.5% to reflect the utilitarian value of the plea of guilty. Mr Saliba was sentenced to a term of imprisonment of 6 years and 9 months, with a non-parole period of 3 years and 9 months, to expire on 23 October 2026. The undiscounted head sentence was 8 years’ imprisonment.

10. [10]

    The applicant does not challenge the factual findings made by the sentencing judge in respect of the role of each offender, the objective seriousness in each case and the assessment of each subjective case.

11. [11]

    The sole ground of appeal is that the applicant has a justifiable sense of grievance having regard to the sentences imposed on his co-offenders Mr De Luca and Mr Saliba, but in particular Mr De Luca. I am of the view that while leave should be granted, the appeal should be dismissed. What follows are my reasons for coming to that conclusion.

Procedural History

1. [12]

   On 28 July 2023, the applicant and Mr De Luca’s sentence proceedings were heard before Wass SC DCJ. Mr Saliba pleaded guilty on 18 July 2023. As of 28 July 2023, Mr Saliba’s sentence proceedings were listed for 4 October 2023.

2. [13]

   In the proceedings before Wass SC DCJ, the Crown tendered an Amended Crown Sentence Bundle in respect of the applicant and Mr De Luca (Exhibit 1), which included an Amended Charge Certificate, Agreed Facts on Sentence, a Notice of Committal, and conviction and custodial histories. Exhibit 1 also included a Sentencing Assessment Report dated 11 April 2023, in respect of the applicant. A s 16BA schedule signed by the applicant was also handed up to the Court.

3. [14]

   The Crown provided an outline of the Crown’s submissions on sentence relating to both the applicant and Mr De Luca, a Precis of Agreed Facts on Sentence for both men (Joint Precis, MFI 3), and a joint schedule of comparative cases.

4. [15]

   In respect of his subjective case on sentence, the applicant relied upon an affidavit of his mother, 12 character references, a report prepared by Dr Olav Nielssen, Psychiatrist, two school reports, and Judicial Information Research System (JIRS) statistics (Exhibit 2). In addition to this material the applicant provided an undated letter of apology together with a document referred to as “Offender’s Life History”. The applicant did not give evidence at sentence. Written submissions were provided for the applicant (MFI 2).

5. [16]

   Oral submissions were made by the Crown and counsel for both the applicant and Mr De Luca before Wass SC DCJ. Ultimately, for reasons that are irrelevant on this appeal, the applicant and Mr De Luca were sentenced by the sentencing judge, after hearing the sentence proceedings of Mr Saliba.

6. [17]

   Mr Saliba’s sentence proceedings were heard before the sentencing judge on 4 October 2023. Immediately following the sentence proceedings for Mr Saliba, further oral submissions were made on behalf of the applicant, regarding parity. In the sentence proceedings, the solicitor for the applicant submitted that the applicant’s role was no higher and no more important than the co-offenders’. That position is not maintained on this appeal.

7. [18]

   Directions were made by the sentencing judge for Mr De Luca to put on further written submissions regarding parity with Mr Saliba. No written submissions regarding parity were ultimately filed for Mr De Luca.

8. [19]

   All three offenders were sentenced by the sentencing judge on 9 November 2023. The following table, taken from the applicant’s written submissions on the appeal, sets out the material findings in respect of the three co-offenders for the common federal offending:

The circumstances of the offending

1. [20]

   In summarising the facts and making findings about the role of each offender, the sentencing judge relied primarily on the Joint Precis. The following summary of the circumstances of the offending is taken from the remarks on sentence (ROS).

2. [21]

   In March 2021, the applicant took several steps to commence the importation of the border controlled drug concealed in an excavator (the consignment). He set up a mobile phone service, domain name and an email address to use as cover. He appropriated the name of a legitimate business in Dubbo that was not in fact associated with the offending. He used and assumed the name of the Director and owner of that business, to cover his involvement in the criminality associated with the importation.

3. [22]

   In April 2021, using the name David, the applicant contacted a freight forwarding company for quotes. He accepted and authorised AUK Logistics to be the Customs broker to assist in the importation of an excavator which contained a border controlled drug.

4. [23]

   In July 2021, the applicant communicated with the Customs broker to arrange delivery of the consignment. Letters signed by him were formatted with logos to look like the legitimate Dubbo business. The Customs broker invoiced an amount of $13,372.14 for the shipping and handling costs. The applicant notified the Customs broker of the delivery address for the consignment, which attracted a further cost of $695.75. The applicant did not pay the invoices. An unknown person emailed him a copy of deposit receipts for payment of the two invoices, and he forwarded those deposit receipts onto the Customs broker.

5. [24]

   On 26 and 27 July 2021, the applicant contacted an unnamed business to arrange delivery of the excavator from Botany. A crane was necessary for the delivery. While arrangements were being made for the excavator to be delivered, on 25 July 2021, the consignment was intercepted by Australian Border Force and the Australian Federal Police. The authorities identified anomalies within the counterweight of the excavator, examined it and located a white substance. That substance was removed, and samples were sent for testing.

6. [25]

   The anticipated delivery date of 30 July 2021 was postponed. On 2 August 2021, the consignment was reconstructed for delivery. The applicant communicated with the business arranging delivery in light of this postponement. He then scouted the area for a new delivery address. On 3 August 2021, the delivery company sent the applicant a photograph of the excavator being ready for delivery and invoiced him $6,273.75 and $90.75.

7. [26]

   On 4 August 2021, the applicant regularly texted the company delivering the excavator, including informing them that he would have somebody at the arrival address. He repeatedly inquired about the delivery.

8. [27]

   Mr De Luca paid for the transportation of the excavator and the applicant forwarded the receipt for payment to the Customs broker, later messaging them that the costs had been paid. The sentencing judge found that it was Mr De Luca who deposited the money and then sent the confirmation of payment to the applicant.

9. [28]

   Between 8 and 16 August 2021, other associated persons were arrested. This had the effect that the applicant, Mr De Luca and Mr Saliba were not in possession and could not get access to the key to the excavator, which was in the joint possession of those who had been arrested.

10. [29]

    Between 16 and 18 August 2021, Mr De Luca was seen on each day at the address working on the excavator, trying to “hot wire” it, to move it from that location. Mr De Luca had some qualifications as an electrician. On 18 August 2021, Mr De Luca organised another male to assist him. A listening device captured conversation between the men which suggested that they were attempting to hot wire the excavator and/or check for a listening device. They were not successful in their endeavours to hot wire the excavator. Later the same day, the applicant attended the premises. The listening device captured the applicant and Mr De Luca discussing their efforts to move the excavator.

11. [30]

    On 19 August 2021, the applicant and Mr De Luca moved the excavator with the use of a prime mover truck from one location to another. The location to which the excavator was moved was the business premises of Mr Saliba.

12. [31]

    Thereafter, Mr De Luca and Mr Saliba inspected the excavator and attempted to access the drugs. They used tools and exerted some significant effort to access the drugs, including purchasing items from Bunnings to assist them in their efforts. Mr De Luca and Mr Saliba were captured on listening device using tools such as hand grinders, crowbars and cutting discs to access the drugs. They continued their efforts on 20 August 2021. The applicant was present for two hours on that day.

13. [32]

    The listening device captured a conversation between Mr De Luca and Mr Saliba suggesting that they had opened the concealment where the methylamphetamine was meant to be, but it was empty.

14. [33]

    On 21 August 2021, Mr De Luca and Mr Saliba returned to the premises for the purpose of cleaning up after their attempts to access the concealment within the excavator. On 23 August 2021, Mr De Luca returned to the location with caustic soda, a 20 litre plastic bucket and demineralised water. He remained there for some four and a half hours attending to the cleanup.

15. [34]

    On 19 October 2021, Mr De Luca, Mr Saliba and the applicant were arrested and search warrants were executed on their residences. The authorities located items that readily implicated each of them in the offending conduct.

16. [35]

    The sentencing judge sentenced each of the offenders on the basis that they did not know the exact amount, or the purity, of the prohibited drug involved. His Honour found that the applicant knew there was a border controlled drug involved and that given the nature of the consignment, he was aware that there was a substantial amount of border controlled drug, certainly more than a commercial quantity.

17. [36]

    The sentencing judge was satisfied that Mr De Luca knew there was a significant amount of border controlled drug involved. In relation to Mr Saliba, the sentencing judge was satisfied that he was reckless as to whether a border controlled drug was involved and that by the time he engaged with Mr De Luca to access the consignment, he knew that the amount of the substance was “not insignificant”.

The role of each offender

1. [37]

   His Honour next turned to the role of each offender. His Honour described the applicant’s role as follows:

2. [38]

   The sentencing judge described the objective seriousness of the applicant’s offending as “in the middle range of objective seriousness but towards the lower end of that range”.

3. [39]

   The sentencing judge then addressed the role of Mr De Luca by reference to his involvement in the offending. Mr De Luca believed the border controlled drug had been concealed and unlawfully imported within the excavator. He made a cash deposit to the freight forwarding company for the freight costs. He attempted to hot wire the excavator, albeit unsuccessfully. Together with Mr Saliba, and for a period of two days, Mr De Luca attempted to access the excavator where he believed the border controlled drug was located. Mr De Luca had access to those who were involved in concealing the drug within the excavator. His offending involved some substantial planning although “less than that” of the applicant. The sentencing judge characterised Mr De Luca’s role as being “essential but perhaps not as critical as that of Mr [Saab]”.

4. [40]

   His Honour concluded that the objective seriousness of Mr De Luca’s offending was in the low range “but towards the top end of that range”.

5. [41]

   The sentencing judge found, on the balance of probabilities, that Mr Saliba only became involved because the initial premises at which the excavator was going to be delivered was unsuitable. His co-offenders needed to source more appropriate premises for the excavator to be stored and deconstructed. Mr Saliba’s role was, together with Mr De Luca, limited to the task of dismantling the counterweight to access the drugs. He, along with Mr De Luca, spent numerous hours and significant physical effort to try to open the concrete counterweight.

6. [42]

   It was conceded by the Crown in the sentence proceedings that Mr Saliba was “less indispensable than either of his co-offenders”. His Honour accepted that Mr Saliba was not indispensable although became a trusted member of a sophisticated criminal syndicate. The sentencing judge concluded that the objective seriousness of Mr Saliba’s offending fell in the “low range and towards the lower but not at the lowest end of the range”.

Subjective cases

1. [43]

   After addressing the state offence for which Mr De Luca was also to be sentenced, the sentencing judge proceeded to summarise each offender’s subjective case. His Honour was satisfied that each of the offenders presented a “powerful” subjective case. Each was well supported by family and friends. His Honour was satisfied that each offender was remorseful.

2. [44]

   In respect of the applicant, the sentencing judge had regard to the numerous references relied on in his case. It was clear from the material that the applicant was a loved member of a loving and close-knit family. The adverse impact on the applicant’s family, arising from a term of imprisonment, was accepted. Those difficulties included the fact that the applicant’s mother, with whom he had a close relationship, was limited in visiting and supporting the applicant whilst he was on remand because of her diagnosis of breast cancer and the restrictions imposed during the “COVID era”. Also noted was the financial impact of the applicant’s incarceration on his parents.

3. [45]

   The sentencing judge noted that the applicant had a relatively limited criminal history but one that “denies him leniency”. In particular, the sentencing judge took into account that the applicant was in breach of an Intensive Correction Order (ICO) for two offences concerning prohibited drugs at the time of the commission of the federal offences.

4. [46]

   The applicant commenced seeing a psychologist and had attended up to 15 sessions in advance of the COVID-19 lockdown. The sentencing judge found that the applicant’s depression pre-existed the offending. Notwithstanding some improvements in the pandemic, the sentencing judge accepted that the applicant faced hardship on remand particularly given that he was incarcerated in maximum security.

5. [47]

   The sentencing judge concluded that the applicant was “probably unlikely to reoffend” and had good prospects of rehabilitation. The reason the sentencing judge did not make a finding that he had excellent prospects of rehabilitation was because he had previously committed offences in relation to prohibited drugs and was in breach of the ICO at the time of the present offending.

6. [48]

   In sentencing Mr De Luca for the state offence, the sentencing judge afforded him leniency because he had a limited criminal record. However, in sentencing Mr De Luca for the federal offence, his Honour had regard to the fact that Mr De Luca had already committed a serious matter involving a not insignificant amount of prohibited drug (the state offence). It followed that the sentencing judge could not treat him as a person of prior good character when sentencing him for the federal offence.

7. [49]

   In sentencing Mr De Luca, the sentencing judge had regard to the “deep effect” of his incarceration on his family. It was accepted that Mr De Luca was a devoted partner. His relationship with his partner and having young children were described as protective factors in his rehabilitation.

8. [50]

   Mr De Luca had a history which supported a diagnosis of generalised anxiety disorder, persistent depressive disorder and a substance use disorder in sustained remission. The sentencing judge found that it was clear that his depressive disorder was not simply as a result of his current circumstances, but resulted from other difficulties, including the suicide of his friend.

9. [51]

   The sentencing judge concluded that Mr De Luca had very good prospects of rehabilitation and was unlikely to reoffend. The sentencing judge did not find that Mr De Luca had excellent prospects of rehabilitation having regard to the earlier state offending.

10. [52]

    Mr Saliba was afforded leniency arising from the absence of a criminal record. He suffered from an adjustment disorder with depressed mood, symptoms of which commenced well in advance of the offending conduct. Six months before the offending, he was close to ending his life. In April 2021, his wife suffered a miscarriage. This was stressful for Mr Saliba and added to a range of concerns which included reopening his business after significant imposts on him because of the COVID-19 pandemic. At one point in time, Mr Saliba had a business that employed five employees. He was a responsible business tenant. As a result of his incarceration, he has effectively lost his business. In addition, the sentencing judge accepted that Mr Saliba’s incarceration would result in “very significant financial pressures” on his wife.

11. [53]

    When Mr Saliba was first bail refused, his wife was four months pregnant. He was released on stringent conditional bail before the birth of their second child. The sentencing judge had regard to the onerous bail conditions as a form of quasi-custody. The sentencing judge concluded that Mr Saliba had excellent prospects of rehabilitation and was unlikely to reoffend.

12. [54]

    In respect of parity, the sentencing judge specifically addressed the distinguishing features between each of the offenders. His Honour referred to the different ages of each offender. Each of them was deeply embedded in their family unit. His Honour found that there was “very little to separate them really in terms of remorse, prospects for rehabilitation and the like”. Each of them was remorseful. Mr Saliba had excellent prospects of rehabilitation. Mr De Luca had very good prospects of rehabilitation. The applicant had good prospects of rehabilitation.

13. [55]

    A distinguishing feature that operated against the applicant was the fact that he was in breach of an ICO when he committed the federal offences.

14. [56]

    In respect of Mr De Luca, the sentencing judge had regard to the fact that he had committed the state offence by the time he had become involved in the federal offence. That factor meant that the sentencing judge could not treat Mr De Luca as a person of prior good character.

15. [57]

    However, that does not mean, as submitted on behalf of the applicant on the appeal, that the sentencing judge regarded “these matters as between the applicant and Mr De Luca as somewhat comparable circumstances”.

16. [58]

    The fact that the applicant was subject to bail and then an ICO during the period of the offending, was a matter that was appropriately taken into account as a distinguishing feature against the applicant. It was relevant to an assessment of the applicant’s prospects of rehabilitation, which were determined to be less than that of his co-offenders.

17. [59]

    It can be readily gleaned from his Honour’s summary of the facts and his careful findings in relation to the respective roles, the objective seriousness of the offending in each case, and each subjective case, that his Honour gave very careful attention to the principle of parity.

Ground of Appeal

1. [60]

   There is no dispute about the relevant legal principles. The principles relevant to the application of the parity principle were summarised by me (Wilson and Dhanji JJ agreeing) in Keen v R [2024] NSWCCA 157 at [143]-[146] (cited with approval in Zahed v R [2024] NSWCCA 171 at [18] (per Fagan, N Adams and Faulkner JJ)):

2. [61]

   More recently, in the decision of Mohr v R [2024] NSWCCA 197, Bell CJ (with Davies and Wright JJ agreeing) emphasised that while the disparity in question must be “marked”, it need not be “gross” or “glaring” to attract appellate intervention: at [15], citing Miles v R [2017] NSWCCA 266 at [9]; Cameron v R [2017] NSWCCA 229 at [79]-[90]; Daw v R [2017] NSWCCA 327 at [19]; Fenech v R [2018] NSWCCA 160 at [30]; Borg v R [2019] NSWCCA 129 at [90]-[91]; Downes v R [2020] NSWCCA 167 at [40], [57]; Weiss v R [2020] NSWCCA 188 at [89]-[90] cf. Afu v R [2017] NSWCCA 246 at [15]; Tuivaga v R [2015] NSWCCA 145 at [56].

3. [62]

   Bell CJ went on to say:

4. [63]

   What is important, therefore, is an assessment of the similarities and dissimilarities, in determining the appropriate proportionate sentence in each case. Simply because there is a difference in the sentences imposed between co-offenders, does not mean that that difference is unjustified.

5. [64]

   The applicant does not take issue with the proposition that given the relevant distinguishing factors, there was warrant for the sentencing judge to impose a different, and greater, sentence on the applicant. Instead, the applicant contends that viewed objectively, the degree of disparity as between the applicant and his co-offenders (in particular Mr De Luca) is unjustified.

6. [65]

   That contention cannot be accepted for the following reasons.

7. [66]

   Firstly, the role of the applicant was greater than that played by the co-offenders. The applicant’s offending in respect of the substantive offence commenced in March 2021 and continued until 28 July 2021, a period of approximately four months. The period of offending in respect of the s 16BA offence extended to August 2021. Mr De Luca’s offending for the federal offence spanned a period between 4 August 2021 and approximately 23 August 2021. Mr Saliba’s offending spanned a period between approximately 19 to 21 August 2021.

8. [67]

   In addition to the period of the offending, the applicant engaged in a number of necessary activities in connection with the importation of the consignment. His involvement included but was not limited to using a burner phone, a fraudulent account and an assumed identity in making arrangements for the importation; sourcing and communicating with the freight forwarding company to handle the shipping of the consignment; creating false documents to enter into agreements with the freight forwarding company; arranging for payment to the freight forwarding company; and coordinating other logistical arrangements to facilitate possession of the unlawfully imported border controlled drug.

9. [68]

   His role was essential to the operation of the syndicate and included evidence of planning or pre-meditation and concealment of his activity. In contrast, while Mr De Luca’s role involved substantial planning, it was assessed to be less than that involved in the applicant’s case. Mr De Luca’s role was essential but not as critical as the applicant’s.

10. [69]

    Mr Saliba’s role was limited by comparison. Although he became a trusted member of a sophisticated criminal syndicate, he was not indispensable. In addition to the limited period in which he was involved in the offending, his activities were largely limited to providing a place for the excavator to be stored and then, together with Mr De Luca, attempting to access the drugs.

11. [70]

    The descriptors used by the sentencing judge to assess objective seriousness (lower end of the middle range and towards the top end of the low range) do not support the contention that his Honour assessed Mr De Luca’s role and objective gravity to be “a little below that of the applicant”. I agree with the respondent’s submission that in circumstances where the sentencing judge used these ranges to differentiate between the objective seriousness of the co-offenders’ offending, without defining what the scope of those ranges was, it cannot be concluded that there is no material difference between low end of mid-range and top end of low range.

12. [71]

    In any case, the essential factors going to an assessment of the respective roles, were the activities engaged in, and the tasks undertaken by each offender. As this Court said in R v RE [2023] NSWCCA 184 (per Stern JA, Fagan and Yehia JJ) at [35] with respect to labels used in a sentencing judge’s assessment of objective seriousness:

13. [72]

    Secondly, unlike Mr De Luca and Mr Saliba, the applicant was subject to conditional liberty at the time he committed the federal offences. During the period in which the offending took place, the applicant was on bail and then subject to an ICO, for separate drug related offending.

14. [73]

    While Mr De Luca had engaged in serious drug related offending giving rise to the state offence, prior to engaging in the federal offence, he had not been arrested and charged, let alone subject to conditional liberty. The sentencing judge considered Mr De Luca’s state offending when sentencing him for the federal offence, by declining to find that he was a person of good character. His Honour sentenced Mr De Luca for both sets of offences and, in doing so, was also obliged to have regard to the principle of totality.

15. [74]

    However, the sentencing judge was entitled, indeed obliged, to have regard to the fact that the applicant was subject to an ICO at the time he committed the offences, in determining the proportionate sentence. His Honour rightly had regard to the breach of the ICO as a distinguishing factor that, together with other considerations, warranted a sentence greater than that imposed on the co-offenders.

16. [75]

    Thirdly, in sentencing the applicant, the sentencing judge took into account the offence on the s 16BA schedule, which was an offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, attracting a maximum penalty of life imprisonment. The sentencing judge found that it was “inevitable, given the nature of that offence, that it will place upward pressure on the [sentence] determined and imposed for the principal offence”.

17. [76]

    I am satisfied that the disparity between the sentences imposed was within the bounds of the qualitative and discretionary judgments required of the sentencing judge. The differences in the undiscounted head sentences, considering the relevant circumstances and distinguishing features between the three co-offenders, were entirely justified.

18. [77]

    Accordingly, I propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Dismiss the appeal.

19. [78]

    COLEMAN J: I have had the considerable advantage of reading the judgment of Yehia J in draft. I agree with her Honour’s conclusions and the orders she proposes.