Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: El Masri v R [2022] NSWCCA 27 Hearing dates: 2 February 2022 Date of orders: 18 February 2022 Decision date: 18 February 2022 Before: Beech-Jones CJ at CL at [1] Davies J at [2] Bellew J at [88] Decision: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed in the District Court on 18 June 2020. 4. In lieu, sentence the appellant to a non-parole period of 3 years and 8 months commencing 24 July 2018 and expiring 23 March 2022, with a balance of term of 1 year and 6 months expiring 23 September 2023. Catchwords: CRIME – appeals – appeal against sentence – supplying or agreeing to supply methylamphetamine on an ongoing basis – whether the sentencing judge erred in the assessment of objective seriousness – whether sentencing judge failed to apply principles of parity between applicant and other related offenders – where similar offending by related offender placed on Form1 – where otherwise different offences charged between applicant and other offenders – whether sentence manifestly excessive – where applicant had strong subjective case – where comparable cases and statistics not provided to sentencing judge – appeal allowed Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) s 25A Cases Cited: Daher v R [2018] NSWCCA 287 Darcy v R [2019] NSWCCA 159 Dunn v R [2018] NSWCCA 108 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Greer v R [2015] NSWCCA 312 Mandranis [2021] NSWCCA 97 Mulato v R [2006] NSWCCA 282 Nguyen, Kathy v R [2015] NSWCCA 209 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Newport [2020] NSWDC 245 R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47 R v Wong [2018] NSWCCA 20 Wong v The Queen (2001) 207 CLR 584 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Texts Cited: Nil Category: Principal judgment Parties: Rabih El Masri (Applicant) Crown (Respondent) Representation: Counsel: N Carroll (Applicant) M Gleeson (Respondent) Solicitors: George Sten & Co Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/227145 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 18 June 2020 Before: Noman SC DCJ File Number(s): 2018/227145 Judgment 1. BEECH-JONES CJ AT CL: I have read the judgment of Davies J. In relation to ground 2, I read that part of the sentencing judge's reasons extracted at [47] as involving an acceptance by her Honour that parity was still a consideration even though the applicant was not a "co-offender" with Brooke Streeter. However I understand her Honour to have found that little assistance could be gained from considering the sentence imposed on Ms Streeter because of the differences between her charges, her offending and her subjective case on the one hand and the applicant's charges, offending and subjective case on the other. Hence her Honour concluded that Ms Streeter's circumstances "are so fundamentally different as to limit the extent as to which her sentences might usefully inform the sentencing exercise". This reasoning is entirely consistent with Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. I otherwise agree with the reasons of Davies J and the orders his Honour proposes. 2. DAVIES J: On 18 June 2020 Judge Noman SC in the District Court sentenced the applicant Rabih El Masri to imprisonment for six years and eight months commencing 24 July 2018 and expiring 23 March 2025 with a non-parole period of four years and eight months expiring 23 March 2023 for the offence of supplying prohibited drugs on an ongoing basis contrary to s 25A of the Drug (Misuse and Trafficking) Act 1985 (NSW). The maximum sentence for this offence is 20 years' imprisonment. There is no standard non-parole period. 3. The applicant now seeks leave to appeal against the sentence on the following grounds: 1. The sentencing judge erred in the assessment of the objective criminality of the offending conduct. 2. The sentencing judge erred in not finding that Brooke Streeter was a co-offender and has consequently failed to apply the principles of parity as between the applicant and Brooke Streeter, and other related offenders who were part of the same criminal enterprise. 3. The sentence, in all the circumstances of the case, was manifestly excessive. The offending 1. The applicant was sentenced on the basis of a statement of agreed facts. A summary of those facts is as follows. 2. A police strike force was established in early March 2018 to investigate the supply of methylamphetamine in the Sutherland Shire area. The applicant was not a target of the investigation. The investigation included the lawful interception of a number of mobile phones, covert surveillance and controlled drug supply operations, and these identified a number of co-offenders being involved in the drug supply enterprise. Those co-offenders included Brooke Streeter, Haessam Elbaf, Arash Morovati and Robert Brown. 3. During the investigation, police made five controlled purchases of methylamphetamine from Ms Streeter. 4. Between 31 May 2018 and 27 June 2018, the applicant took part in the supply or an agreement to supply Ms Streeter with methylamphetamine in exchange for financial or material reward. The supplies were as follows: DATE AMOUNT 31/5/18 An amount of the drug for $1,800 (this was an offer of supply that did not go ahead) 3/6/18 About half ounce: 14 grams 4/6/18 About half ounce: 14 grams 5/6/18 About half ounce: 14 grams 5/6/18 About 5½ ounces: 154 grams (offender supplied Streeter with about 154 grams at Westside Petroleum, and then Streeter supplied 138.8 grams to an undercover officer (UCO) 9/6/18 About an ounce: 28 grams 10/6/18 About half ounce: 14 grams 19/6/18 About half ounce: 14 grams 27/6/18 About 4 ounces: 112 grams (agreement to supply that did not go ahead) 1. The total amount actually supplied by the applicant was 252 grams. 2. In an intercepted telephone call on 31 May 2018 in relation to the agreement to supply the drug on that day, the applicant told Ms Streeter that although he would ordinarily charge $2,500 for the amount to be supplied, he would give it to her for $1,800.00. 3. The supply on 4 June 2018 of 14 grams was for $1,600.00, but the first supply on 5 June 2018 for the same quantity was for $1,500.00, following the applicant asking Ms Streeter how much money she had on her. 4. Later on 5 June 2018, Ms Streeter said that she wanted more of the drug, and that she had $1,200. The applicant appeared to know that Ms Streeter wanted about 5½ ounces (154 grams). He supplied this amount to her for $1,200. She then supplied 138.8 grams to an undercover officer as part of a controlled operation for $20,000. The purity was established to be 68.5%. 5. The supply on 9 June 2018 of 28 grams was for $2,200.00. 6. In relation to the supply on 10 June 2018, Ms Streeter told the applicant that she needed $1,800.00 worth of the drug, and she asked the applicant if he had enough for that supply. The applicant indicated that he had. Fourteen grams was subsequently supplied for $1,800.00. 7. On 19 June 2018 Streeter told the applicant that she wanted another half an ounce (1 gram), and the applicant asked her how much money she had on her. She said she had $1,600.00, and the applicant said that that amount was sufficient for the supply of the 14 grams. The supply took place shortly afterwards. Arrest and plea 1. On 24 July 2018 the applicant voluntarily attended Bankstown Police Station by arrangement. He was arrested and charged with supplying a commercial quantity of methylamphetamine. The applicant pleaded guilty in the Local Court to supplying a commercial quantity of methylamphetamine, being 252g referable to the actual supplies, and on 16 April 2019 he was committed for sentence to the District Court. 2. On 6 September 2019 the applicant did not adhere to his plea. He made an offer to plead to a supply charge involving a lesser quantity of the drug, but the offer was rejected. On 13 September 2019 the matter was listed for trial in the District Court on 2 March 2020. 3. On 26 February 2020 the applicant offered in writing to plead to a single charge of ongoing supply in full satisfaction of the indictment. 4. On 27 February 2020 that offer was accepted in writing by the Office of the Director of Public Prosecutions. 5. The trial fixed for 2 March 2020 was adjourned so that the parties could negotiate the facts. On 4 March 2020 the applicant was arraigned by way of ex officio indictment, and he pleaded to the charge that between 31 May 2018 and 27 June 2018 at Greenacre in the State of New South Wales he did on nine separate occasions supply a prohibited drug for financial or material reward. 6. Judge Noman SC noted in her Remarks on Sentence (ROS) that the total amount of the drugs including the two agreements to supply was 362.8 grams. It is clear from the terms of the indictment and the statement of agreed facts that the plea ultimately entered by the applicant included the two occasions involving an agreement to supply. Ground 1: The sentencing judge erred in the assessment of the objective criminality of the offending conduct Findings of the sentencing judge 1. The sentencing judge noted the evidence and submissions of the applicant in relation to his role in the drug supply. He gave evidence that he was never paid in cash and only received drugs to support his habit. 2. It was submitted on his behalf that he was an intermediary or a facilitator. His involvement with Ms Streeter was partly fuelled by his sex addiction. He was not in control of the operation, but his role was to receive calls and liaise with dealers to supply to Ms Streeter. He said that sometimes he would accompany her, but that the dealer he organised would provide the drugs. 3. Her Honour found that on the applicant's evidence he had access to more than one dealer to source the drugs and he had other customers. Her Honour noted the applicant's evidence that he never received money for his involvement but only drugs, and enough to support his habit. Her Honour noted the applicant's evidence that there was no profit. Her Honour said that his evidence was not compelling. 4. Her Honour correctly said that she had to determine the applicant's role. She said that the applicant's explanation of his involvement did not readily reconcile with the objective evidence contained in the intercepted calls. Her Honour determined from the agreed facts and the calls that the evidence demonstrated that the applicant provided a key role in ensuring the supply of drugs to Ms Streeter for her to on-supply. Her Honour accepted that the applicant was a user of drugs, and involved himself in the supply in part to support his own use, but her Honour did not accept his evidence about the extent of his drug use, which she said was inconsistent with what appeared in the observations of him made by his family and others. Her Honour accepted that he was receiving a benefit from the supply. 5. Her Honour had regard to the fact that there were nine supplies within a 28 day period, where three supplies within 30 days was the minimum provided in the legislation. Her Honour noted that the purity of the drugs supplied was relatively high where it was known, and her Honour considered the type of the drug that was supplied. 6. For all of those reasons, and although the Crown submitted that the offending fell at the middle of the range, her Honour considered that it fell above the mid-range, particularly bearing in mind that the offence provision was more usually utilised for multiple smaller supplies. Her Honour said that she was not assessing the offence against a commercial supply. Submissions 1. The applicant submitted that the sentencing judge placed too much weight on the number of supplies as a factor and thereby unnecessarily elevated the criminality of the offending. The applicant's involvement was largely in supplying multiple small supplies, with the supplies each constituting no more than an indictable supply. 2. The applicant submitted that in Daher v R [2018] NSWCCA 287 this Court identified that the objective criminality of a contravention of s 25A was determined by reference to repetition, systems and organisation, not merely the frequency of supply or quantity supplied. In the present case, the applicant submitted, there was no evidence of any particular system, networks or a high level of organisation being conducted by the applicant in the supplies. 3. The applicant submitted that there was no evidence to conclude that he had made any cash profit from his involvement in the offending. Complaint was made about a remark made by the sentencing judge during the sentence hearing where her Honour said, "It is a classic commercial type of activity". The applicant submitted that none of the individual supplies was of a commercial quantity. 4. The applicant submitted that the evidence supported a conclusion that he was supplying drugs only to Ms Streeter. This was said to be a significant factor in the assessment of objective seriousness. Consideration 1. In Daher, Payne JA (with whom Simpson AJA and Johnson J agreed) said: [52] It is well established that s 25A of the Drug Misuse and Trafficking Act is directed to the business operation of drug supply, meaning that the objective criminality of a contravention of the provision is determined by reference to repetition, systems and organisation, not merely the frequency of supply or quantity supplied. It must be remembered, however, that the quantity of the drug is not irrelevant, nor are repetition, system and organisation of greater importance. They take their place beside the number and quantities of individual incidences of supply: R v MRN [2006] NSWCCA 155 at [142]-[145] per Simpson J (with whom McClellan CJ at CL and James J agreed); R v Younan [2018] NSWCCA 180. … [54] I accept the applicant's submission that it is not possible properly to make an assessment about the objective gravity of drug supply offences under ss 25 and 25A of the Drug Misuse and Trafficking Act without giving at least some consideration to the quantity of the prohibited drug involved. 1. Findings by a sentencing judge in relation to "repetition, systems and organisation" are necessarily confined by the facts presented to the sentencing judge. In the present case, her Honour considered, as far as she was able on the agreed facts and from the evidence of the applicant, that his role was to receive the calls and liaise with more than one dealer to source the drugs. Her Honour also found that the applicant had other customers. Her Honour noted that he was in a position to discount the amount he was to be paid for the drugs. Otherwise, her Honour detailed the nine specific occasions and the amount of drugs supplied or agreed to be supplied. 2. In those circumstances it cannot be said that her Honour placed too much weight on the number of supplies and elevated the criminality in that way. 3. Whatever her Honour may have said in passing during submissions, she made it clear in her ROS that she was not assessing the offence against a commercial supply. It was not inappropriate for there to have been discussion about that matter given the history of the charging against the applicant. Further, it was not without significance that both the total of the actual supply and the total of what was supplied and agreed to be supplied constituted more than the threshold for supply of a commercial quantity of the drug. 4. Her Honour's finding that the applicant had other customers was borne out by the evidence the applicant gave at the sentence hearing. He said: I was surviving on her and a few other people during that year and pretty much using them as my way of source of using their money, using their way of getting drugs. 1. The applicant's submission that this was a reference only to people who were supplying him with drugs should be rejected; the reference to "using their money" makes that clear. The fact that the applicant was supplying to others in addition to Ms Streeter was evidence of system and organisation, and was thereby a significant matter in the assessment of objective seriousness, together with frequency and amounts supplied. It is no answer to focus on the fact that all of the individual supplies fell within the range of indictable supply. The offence under s 25A was designed to deal precisely with repeated supply of small quantities: R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47 at [11]-[15]. 2. A determination of the objective seriousness of an offence is classically within the discretion of the sentencing judge, and this Court will be slow to intervene: Mulato v R [2006] NSWCCA 282 at [46]. A sentencing judge is not bound to accept the view of the Crown in the assessment of the objective seriousness of an offence. In the present case her Honour expressly indicated to the applicant's counsel during submissions that she would not necessarily be acceding to the Crown's submission about where in the range the objective seriousness lay. 3. The sentencing judge's assessment of objective seriousness was open to her, and as a result no error is demonstrated. 4. I would reject this ground of appeal. Ground 2: The sentencing judge erred in not finding that Brooke Streeter was a co-offender and has consequently failed to apply the principles of parity as between the applicant and Brooke Streeter, and other related offenders who were part of the same criminal enterprise Related offending 1. Ms Streeter was charged with supplying a commercial quantity of methylamphetamine and supplying a large commercial quantity of methylamphetamine. 2. In relation to the latter offence, five offences were taken into account on a Form 1 being: Sequence 3: Supply an indictable quantity of methylamphetamine. Sequence 4: Possess a prohibited drug being cannabis. Sequence 10: Knowingly deal with the proceeds of crime. Sequence 12: Possess an unauthorised pistol. Sequence 13: Knowingly take part in the supply of an indictable quantity of methylamphetamine. 1. For the offence of supplying a large commercial quantity of methylamphetamine and taking into account the five matters on the Form 1 she was sentenced to six years' imprisonment with a non-parole period of four years. For the offence of supplying a commercial quantity of methylamphetamine she was sentenced to a period of six years and six months' imprisonment with a non-parole period of four years. With partial concurrence of the sentences, the overall sentence was seven years and six months' imprisonment with a non-parole period of five years. Ms Streeter received a 25% discount for her early plea. The undiscounted starting points for her sentences were eight years and eight months for the large commercial supply and eight years for the commercial supply. 2. Three co-offenders were sentenced by Noman DCJ with Ms Streeter. Two of these co-offenders are submitted by the applicant to be related offenders with the result that regard was to be had to parity in relation to their sentences. 3. The first of these persons was Arash Morovati. He was sentenced to imprisonment for two years with a non-parole period of ten months for taking part in the supply of an indictable quantity of methylamphetamine. He received a 25% discount for his plea. The undiscounted starting point for his sentence was two years and eight months. The other offender was Robert James Brown who was sentenced to imprisonment for two years and four months with a non-parole period of one year and four months for the same offence. That sentence took account of an offence placed on a Form 1 of possessing 0.96 grams of Buprenorphine. He also received a 25% discount. The undiscounted starting point for his sentence was three years and one month. 4. In relation to Ms Streeter, the link between her and the applicant in relation to the offences charged was twofold. First, the supply by Ms Streeter of 138.8 grams to a UCO was part of the supply by the applicant to Ms Streeter of 154 grams on 5 June 2018. The supply of the 138.8 grams by Ms Streeter was one of five supplies that made up the count of supplying a commercial quantity of methylamphetamine. 5. Secondly, the supply and agreement to supply by the applicant on the remaining eight occasions to Ms Streeter formed part of sequence 13 which was contained on the Form 1. 6. In her ROS the sentencing judge said this: I have considered the sentence imposed upon Brooke Streeter. They were not co-offenders, but persons involved in some of the same conduct in the capacity of supplier and purchaser. There is shared conduct, but there are no shared offence provisions and the position and activities performed by each is dissimilar. The fifth supply by the offender involved more drugs than Streeter on-supplied. The on-supply by Streeter of a smaller quantity formed part of a charge of supplying not less than the commercial quantity. The other transactions between the two were placed on a Form 1. The circumstances both objective and subjective, are so fundamentally different as to limit the extent as to which her sentences might usefully inform the sentencing exercise. Submissions 1. The applicant submitted that the unchallenged presentation of the material before the sentencing judge was that Ms Streeter was a co-offender with the applicant. The applicant pointed to what her Honour said during submissions: There is some commonality, but just the way it was dealt with is so different that it's really hard to use it in a strict way. But I will clearly need to be informed by the approach I took for Ms Streeter and her sentence outcome. 1. The applicant pointed to a portion of the ROS in relation to Ms Streeter and her co-offenders where the sentencing judge had described the applicant as a co-offender to Ms Streeter. The applicant submitted that, regardless of the differences in the offences charged and the conduct of those involved, Ms Streeter's sentence stood to inform the sentencing judge on parity issues for the applicant, and should have been relied upon by her Honour. 2. The applicant submitted that it was an error for her Honour to conclude that he and Ms Streeter were not co-offenders. Consideration 1. In Dunn v R [2018] NSWCCA 108 the applicant pleaded guilty to seven charges. Six were counts of ongoing supply of a prohibited drug, and one was supplying a prohibited drug being methylamphetamine. The applicant's co-offenders were also charged with supplying a prohibited drug, but that charge was not included in the indictments presented against them. Rather, the charge appeared on a Form 1 which was attached to other offences with which they were charged. The applicant sought leave to appeal against his sentence on the basis that he had a legitimate sense of grievance when his sentence was compared to the sentences imposed on the co-offenders. 2. Justice Adamson (with whom Macfarlan JA and Johnson J agreed) said: [13] The significance of the corresponding charge being included on a Form 1 for the co-offenders was fundamental. [14] First, the court which sentenced Ms Jenkins and Mr Kennedy did not impose a sentence on either of them for the offence on the Form 1. Rather, the court imposed sentences on Ms Jenkins and Mr Kennedy for the principal offence and took into account in these sentences that each had admitted the Form 1 offence (being the corresponding charge). As this Court (Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ agreeing) said in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 (The Guideline Judgment), at [39]: "The sentencing court is sentencing only for the 'principal offence'. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a 'discount' for the use of the procedure. This is not sentencing for the principal offence." [Emphasis in original.] [15] Secondly, the co-offenders could reasonably expect that the Form 1 procedure would result in a higher sentence for the principal offence to which the Form 1 was attached, not because a penalty is being imposed for the Form 1 offence, but because, taking that offence into account, the sentence should be increased: Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22]-[23] (Bathurst CJ, Hoeben CJ at CL, Garling and Campbell JJ agreeing). Generally, the Form 1 procedure will result in a lower overall penalty for the offending behaviour (comprising the principal offence and the charge or charges on the Form 1), although the difference is not specified: The Guideline Judgment at [34]. [16] Thirdly, the parity principles do not apply because of the inclusion of the corresponding charge on the Form 1 for the co-offenders. There is no relevant comparison between a sentence that has been imposed for an offence (as in the case of the applicant for the corresponding charge) and an unspecified increase in a sentence imposed for another offence by reason of the corresponding charge being taken into account on a Form 1, as was the case for each co-offender. The passage cited above from Gordon v R serves to highlight the difference the adoption of the Form 1 procedure makes to the sentencing exercise. [Emphasis in original] 1. Her Honour then made reference to Nguyen, Kathy v R [2015] NSWCCA 209 which was relied upon by the applicant in Dunn to argue that parity principles operated when one offender was sentenced for an offence and another offender had the corresponding offence taken into account on a Form 1. 2. Justice Adamson said of Nguyen: [19] Although this Court in Nguyen at [68] appeared to undertake a comparison such as one which is usually undertaken when the principles of parity apply, I am not persuaded that it ought fairly be read as accepting that parity principles are applicable in such a case. Nguyen ought not be read as authorising a comparison which could only be based on a false premise and finds no support in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green). [20] In Green, the Court (French CJ, Crennan and Kiefel JJ) said at [30] that, although the application of parity principles does not require formal identity of charges, it does involve a comparison of the sentences of participants in the same criminal conduct or enterprise, whether they have been charged with the same or different crimes. In Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 the High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) said at [30] (citations omitted): "Parity is concerned with the equal treatment of co-offenders. As Green v The Queen explains, the principle is not confined to co-offenders in the strict sense. It has application in the sentencing of persons involved in the same criminal enterprise. The norm of equality discussed in Green v The Queen is not disturbed by sentencing an offender for the offence for which he or she has been convicted and not by reference to a different, less serious, offence which the court considers to be more appropriate to the offending conduct." 1. During the sentence hearing in the present matter, an exchange occurred between the sentencing judge and counsel for the applicant in relation to the issue of parity: MIKHAIL: …Parity is a funny issue here. It's a difficult-- HER HONOUR: Does it really apply? MIKHAIL: No. We've been grappling with that ourselves. HER HONOUR: I've clearly had an opportunity to review my reasons and the facts, but it's very difficult to align Ms Streeter's offence provisions with the offence provision that your client faces. MIKHAIL: Yes. HER HONOUR: There is some commonality, but just the way it was dealt with is so different that it's really hard to use it in a strict way. But I will clearly need to be informed by the approach I took for Ms Streeter and her sentence outcome. MIKHAIL: Yes. … I accept about parity, I spent a bit of time on this yesterday, and I completely agree that there probably isn't parity, … 1. Although at the hearing of the appeal Ms Carroll of counsel for the applicant maintained that the applicant and Ms Streeter were co-offenders, she accepted that parity did not strictly apply, at least because the charges against each were not identical. She maintained, however, that the sentencing judge had accepted that some sort of comparison should be made of the two offenders, but that her Honour did not do so. 2. The issue of parity focuses on whether, objectively, there is a justifiable sense of grievance because of a disparity in sentences imposed upon two or more offenders. The parity principle is an aspect of "equal justice", which requires, as Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at [65], "identity of outcome in cases that are relevantly identical", and as French CJ, Crennan and Kiefel JJ said in Green v The Queen; Quinn v The Queen at [28], "that like offenders should be treated in a like manner". In the absence of such identity or likeness, there cannot be a justifiable sense of grievance. 3. In the present case there was no such identity or likeness. It may be accepted that it is not a prerequisite to the application of the parity principle that the offenders being compared were charged with the same offence(s): Green at [30]. However, the joint judgment went on to say: Nevertheless, as Campbell JA recognised in Jimmy v R, [(2010) 77 NSWLR 540 at [201]-[203]] there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. 1. Not only was Ms Streeter not sentenced for most of the transactions common to both because Ms Streeter's offending was put on a Form 1 (Dunn at [13] to [16]), but the one transaction common to both (the supply by the applicant of 154 grams on 5 June 2018) was but one of the transactions which went to make up Ms Streeter's offence of commercial supply. In all the circumstances, any grievance the applicant has in relation to Ms Streeter cannot be considered, objectively to be justifiable. 2. In relation to the other two offenders, there was no nexus between the applicant on the one hand and those offenders. Certainly, those offenders were involved with Ms Streeter in her transactions amounting to supply, but not with the applicant. They cannot be regarded as co-offenders, and the use that can be made of their sentences rises no higher than constituting comparative cases, albeit with the rather considerable difficulty that comparison is being made between different charges arising out of no common factual substratum. 3. As the passage in the ROS set out at [47] above shows, her Honour gave consideration to the issue of parity. The applicant does not demonstrate error in her Honour's conclusion in that regard. 4. I would reject this ground. Ground 3. The sentence, in all the circumstances of the case, was manifestly excessive. Submissions 1. The applicant relied principally on JIRS statistics and a series of what were said to be comparable cases both in this Court and in the District Court for offences against s 25A. The applicant acknowledged that more limited statistics had been provided to the sentencing judge and that her Honour had not been provided with any comparable cases. 2. The applicant submitted that the statistics demonstrated that the applicant's sentence was in the top 4% of cases, and that the comparable cases showed that the sentence of six years and eight months, with an undiscounted starting point of seven years, was manifestly excessive. The applicant called in aid what was said to be the sentencing judge's error in her assessment of objective seriousness, but submitted that even if the offence was correctly characterised as being above the mid-range, the sentence was manifestly excessive. 3. The applicant drew attention to what was said to be the applicant's strong subjective case. 4. The Crown submitted that the sentence could not be regarded as unreasonable or plainly unjust when regard is had to the following: the maximum penalty of 20 years; actual supply of 252 grams which is above the threshold of commercial supply, together with a further 112 grams on agreement to supply; the finding of objective seriousness together with the applicant's key role in the supply to more than one dealer further down the supply chain. 5. The Crown further challenged the comparability of a number of the comparable cases relied upon by the applicant, including Greer v R [2015] NSWCCA 312, R v Wong [2018] NSWCCA 20 and R v Newport [2020] NSWDC 245. Consideration 1. The principles that apply to the determination of a manifest excess ground are well known, and were summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. 2. The applicant received a 5% discount for his guilty plea. The undiscounted starting point for the sentence was seven years' imprisonment. I have had regard to the statistics, accepting that they are a blunt tool, and to a number of comparable cases, particularly, R v Wong, Mandranis [2021] NSWCCA 97, Greer, Darcy v R [2019] NSWCCA 159, and Newport. 3. The Crown correctly identifies differences between those cases on the one hand and the facts in the present case. Nevertheless, I consider that they assist in a determination of whether the present sentence is manifestly excessive. 4. The case of R v Wong is of particular assistance in that the indicative sentences for two separate offences against s 25A were specified. The offender received an aggregate sentence for those offences and three supply offences under s 25. The case involved a Crown appeal against manifest inadequacy. In respect of one of the s 25A offences, there were 4 occasions of supply of methylamphetamine totalling 250.41g, and, in relation to the other s 25A offence, 5 occasions of supplying a total of 222.68g of methylamphetamine and 223.44g of cocaine. The indicative sentences were 22 and 24 months respectively and they formed part of an aggregate sentence which was held not to have reflected the need for general deterrence and community protection, at [72]. In those circumstances, the indicative sentences for the s 25A offences were increased to 34 and 40 months respectively, with the undiscounted starting points being 3 years 9 months, and 4 years 5 months respectively. 5. The applicant does not have an unblemished criminal history, having been sentenced in 2004 to imprisonment for four robberies, with four others taken into account. His only offence since that time was a larceny, for which he was fined $330. Unlike in a number of the comparable cases, the applicant has no prior offences involving drugs. 6. His subjective case was otherwise a strong one. He had learning difficulties, and was identified as having cognitive impairment from the time he was in primary school, where he was placed in an IM class (a class for those with a mild intellectual disability). He struggled to learn at high school, and left after obtaining his year 10 Certificate. Although he enrolled in TAFE in a mechanics course, he dropped out because he found it too difficult. He thereafter engaged in unskilled work. 7. At the age of 20 he began smoking marijuana, and at 21 he commenced smoking heroin. He became addicted, and that led to his involvement in crime to support his habit. He started using methylamphetamine in 2017. Initially he was using ½ a gram per day, but this increased over time. 8. He started to suffer mental health problems, and in 2009 he was diagnosed at Bankstown Hospital with Depression, and was prescribed Avanza. He was assessed by the psychologist, Jenny Howell in 2020, who provided a report to the Court for sentence purposes. Ms Howell found that the applicant was exhibiting clinical levels of Depression, Anxiety and Stress. She opined that there was a nexus between the applicant's learning difficulties, enduring mental health conditions and the offences because of his use of Ice and his resultant hugely increased sex drive. She considered, however, that his prospects of rehabilitation were good. 9. The sentencing judge accepted that the applicant's drug use influenced his poor judgment, but that it only moderately ameliorated his moral culpability. Her Honour noted that the applicant had completed drug programs which had enabled him to abstain from drugs for a 15 year period between about 2002 and 2017. 10. The applicant had good support from his family and from his employer at the time of his offending. 11. In my opinion, when the statistics, the comparable cases, and the applicant's subjective case are all taken into account, notwithstanding the sentencing judge's assessment of the objective seriousness of the offending, the sentence imposed was a manifestly excessive one. 12. It is entirely unsatisfactory that the sentencing judge was not provided with the statistics and comparable cases that were made available to this Court on the hearing of this appeal. Had that occurred, there is every prospect that this appeal could have been avoided. What was said by Johnson J in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[82] is as relevant to the manner in which the sentence hearing is conducted by counsel as it is to the issues which are put forward in relation to the sentence to be imposed. 13. I would uphold this ground of appeal. Resentence 1. Although, as I have said, the sentencing judge's assessment of the objective seriousness of the offending was reasonably open to her, my own independent assessment is that the offending fell within the mid-range. His moral culpability is somewhat moderated by reason of his learning and mental health issues. 2. In my opinion, his prospects of rehabilitation and not reoffending are reasonable. I accept that the applicant is genuinely remorseful. 3. General deterrence, specific deterrence and protection of the community are important considerations in relation to drug supply offences. 4. For reasons given above, I consider that the applicant's subjective case is a reasonably good one. In addition, the applicant's custodial classification has been reduced to C3 since March 2021. Since that time he has been permanently employed in building maintenance, and is trusted to have the use and possession of tools including power tools in the absence of Corrective Services staff. 5. The applicant is entitled to a 5% discount for his plea. I find special circumstances because of the need for a longer period under supervision to assist in his rehabilitation. 6. I consider that the appropriate undiscounted starting point is one of five years six months. I propose a sentence of five years and two months with a non parole period of three years and eight months. Conclusion 1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed in the District Court on 18 June 2020. 4. In lieu, sentence the appellant to a non-parole period of 3 years and 8 months commencing 24 July 2018 and expiring 23 March 2022, with a balance of term of 1 year and 6 months expiring 23 September 2023. 1. BELLEW J: I agree with Davies J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2022