Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chapman v R [2023] NSWCCA 259 Hearing dates: 20 September 2023 Date of orders: 13 October 2023 Decision date: 13 October 2023 Before: Adamson JA at [1]; Price J at [2]; Davies J at [73] Decision: (1) Grant leave to appeal; (2) Dismiss the appeal. Catchwords: CRIME – appeals – appeal against sentence – whether sentencing judge erred in failing to find special circumstances – whether the applicant was a co-offender in the same criminal enterprise as an offender who had been sentenced by a judge other than the sentencing judge – whether parity principle applied Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5(1)(c) Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Firearms Act 1996 (NSW), s 51(1A)(a) Road Transport Act 2013 (NSW), s 54(4)(a) Cases Cited: Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304 Beale v R [2015] NSWCCA 120 Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jiang v R [2010] NSWCCA 277 Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 Kiraz v R [2023] NSWCCA 177 R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283 R v Carter [2003] NSWCCA 243 R v Cramp [2004] NSWCCA 264 R v Tuuta [2014] NSWCCA 40 Category: Principal judgment Parties: Christopher Chapman (Applicant) (Unrepresented) Rex (Respondent) Representation: Counsel: E Wilkins SC (Respondent) Solicitors: Office of the Director of Public Prosecutions (Respondent) File Number(s): 2020/203343 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 01 September 2022 Before: English DCJ File Number(s): 2020/203343 JUDGMENT 1. ADAMSON JA: I agree with Price J. 2. PRICE J: On 1 September 2022, Christopher Jetson Chapman, also known as Christopher Rooskie, ('the applicant') was sentenced by English DCJ ('the Judge') in the District Court at Campbelltown for two offences to which he had entered pleas of guilty. The first offence was a charge of supplying on 9 July 2020 a large commercial quantity of the prohibited drug 1,4-Butanediol. The amount supplied was 5,508.6g. The maximum penalty for the offence which is contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ('the DMT Act') is life imprisonment with a standard non-parole period of 15 years' imprisonment. 3. As to the second offence, the applicant was driving a motor vehicle on 9 July 2020, whilst his license was cancelled. The maximum penalty for the offence which is contrary to s 54(4)(a) of the Road Transport Act 2013 (NSW) is 12 months' imprisonment and/or a fine of 50 penalty units. An automatic period of 12 months disqualification applies with a statutory minimum period of disqualification of 6 months. 4. For the first offence, the applicant was sentenced to 5 years' imprisonment with a non-parole period of 3 years and 9 months commencing on 9 July 2020 and expiring on 8 July 2024. For the second offence, the applicant was sentenced to 9 months' imprisonment commencing on 9 July 2020 and expiring on 8 April 2021. He was disqualified from driving for 12 months. As the sentence of imprisonment for the second offence is wholly concurrent with the sentence for the first offence, the total effective sentence is 5 years' imprisonment with a non-parole period of 3 years and 9 months. The earliest date the applicant is eligible to be released on parole is 8 April 2024. The grounds of appeal 1. The applicant, who appeared in this Court unrepresented, appeals his sentence on the following grounds: 1. There should have been a finding of special circumstances. 2. His sentence in comparison to the sentence imposed upon his co-accused Radi El Dirani was excessive. 1. The applicant requires the leave of the court to appeal against his sentence. [1] Proceedings on sentence 1. The Crown's tender bundle included agreed facts and the applicant's criminal histories in New South Wales and Western Australia. The applicant's Commonwealth criminal history, a parole breach report dated 14 July 2020, a letter from the Director of Niagara House dated 30 March 2018 and the sentencing remarks of Gibson LCM on 3 July 2019 were also tendered. 2. The applicant has a lengthy criminal history in New South Wales which includes offences of domestic violence, driving offences, possession of prohibited drugs, offences of dishonesty and common assault. He had been sentenced to terms of imprisonment in 2014, 2017 and 2018. 3. The parole breach report concerned 11 offences of contravening prohibition/restriction in an apprehended domestic violence order. For these offences, he was sentenced in the Local Court at Coffs Harbour on 3 July 2019 by Gibson LCM to an aggregate sentence of 18 months' imprisonment commencing on 30 January 2019 and concluding on 29 July 2020 with a non-parole period of 10 months commencing on 30 January 2019 and concluding on 29 November 2019. 4. In the opinion of the author of the report, the applicant's response to supervision was "unsatisfactory". The author stated: "Given Mr Chapman's resistance to supervision and intervention, he has failed to make significant progress towards addressing his offending behaviour." [2] 1. The author made particular reference to the applicant's response to supervision declining in March 2020 following the removal of the Domestic Violence Electronic Monitoring program to which he had been released on parole on 29 November 2019. The applicant failed to report on numerous occasions and made "minimal effort to address his criminogenic risk factors". [3] The author acknowledged that the applicant commenced the EQUIPS Domestic Abuse program on 10 March 2020, however the program was cancelled after three sessions due to COVID-19. The author also referred to the applicant failing to report as scheduled on numerous occasions between 29 May 2020 and 15 June 2020. 2. The applicant was on parole at the time he committed the offences for which he was being sentenced by the Judge. His parole was treated by the State Parole Authority as having been revoked on 9 July 2020. 3. The applicant's prior criminal history in Western Australia included an offence of possession of a prohibited drug with intent to sell and another offence of possession of drug paraphernalia. His prior criminal history for offences against the Commonwealth concerned two offences of use of a carriage service to menace or harass, for which he was sentenced to 2 months' imprisonment in 2018. 4. The remarks on sentence of Gibson LCM included the following: "I have had regard to a sentence assessment report, it is completely at odds with the sentence submissions that I have read as penned what can only be described as a – what appears to be a heart-felt letter to the Court in which he says that he displays some insight, wants to get some help for his mental health, wants to get some help for the drug problem that he clearly had when he was out in the community, wants to keep on track for his children's sake, has had some problems in his past including the death of his sister that he took some considerable time to get over but it is completely, completely contrary to the sentence assessment report which assessed him as having no insight." The applicant's subjective case 1. The applicant was represented by counsel in the District Court. A toxicology report from Dr Michael Robertson, a discharge referral letter from Lismore Base Hospital, a City Sleep Admission Agreement and accompanying letter, a report from Sam Borenstein, a clinical psychologist and a letter from the applicant were tendered on his behalf. 2. The applicant was born in the United Kingdom ('UK') on 24 December 1981. He was one of four children. Mr Borenstein reported that there was no history of trauma, abuse or domestic violence in his family upbringing. The applicant was aged about 5 or 6 when the family moved to Australia. He left school in year 10 to commence a trade in horticulture, landscaping and greenkeeping. Following an apprenticeship at a golf club, he worked at Bunnings until he went to the UK to play rugby union. He returned to Australia after his sister's death by suicide in 2006. Mr Borenstein referred to the applicant self-medicating with drugs, primarily methamphetamine, following his sister's death. The applicant informed Mr Borenstein that his sister had been diagnosed with schizophrenia and he had been very close to her. 3. Mr Borenstein reported that the applicant had been party to two significant relationships, the first with Bianca, the mother of his 9-year-old son and his most recent with Emily, the mother of his 5-year-old son and 2-year-old daughter. The applicant expressed difficulties establishing boundaries and limits and asserting his wants and needs, fearing possible consequences as he remained highly sensitive following his sister's death. 4. Mr Borenstein opined that the applicant's mental health had been compromised since his sister's death and the applicant understood that he needed to undertake intensive psychological treatment with emphasis on unresolved and complicated grief. Furthermore, the applicant understood the need to undertake specific drug and alcohol counselling. 5. In his letter to the Judge, the applicant stated that since mid-2014, he had lived in denial and would not accept that he needed professional help for his addictions. He could see clearly that his offending had been linked to his drug use. He stated that the only way to take responsibility for the last 8 years was to "own" his drug addictions and mental health issues by placing himself into a fulltime rehabilitation program upon release. He informed the Judge that he had received a fulltime bed for a 9-month program and if released on parole, he would "go straight to the rehabilitation centre to start treatment". 6. The documents tendered included an unsigned admission agreement for a community rehabilitation program in the City Sleep Safe House and a letter dated 20 December 2021 confirming the applicant's acceptance into the City Sleep Safe program. 7. The discharge referral letter from Lismore Base Hospital concerned the applicant's admission to that hospital in July 2022 when he underwent surgery for a fracture of the mandible and the removal of four teeth sustained from a blow to the jaw. The applicant's evidence before the Judge 1. The applicant gave evidence of the injuries he had suffered when assaulted at the Windsor Correctional Centre, that he had contracted COVID-19 on three separate occasions and the periods of time that he had been in a "COVID Lockdown" whilst in custody. He said that he had been using illicit drugs heavily since 2013 or 2014 and had been using illicit drugs whilst on parole. The applicant said that what he had written in his letter was the truth and he had expressed the desire to be rehabilitated before. He told the Judge that he needed to change the cycle of reoffending and be released into fulltime rehabilitation. 2. The applicant said that he had registered his interest in participating in drug and alcohol rehabilitation programs whilst on remand, but the program had been cancelled because of COVID-19. He had also been on a waitlist to see the mental health team. He had attempted to go into fulltime residential rehabilitation at Niagara Lodge when he was released from custody a few years ago but no beds were available. He had received a bed at the City Sleep Safe rehabilitation centre where he would go upon release. 3. When asked if he had contact with his former partner with whom he had started using drugs in 2013-2014, he replied that he did not as she now lives in Brisbane, but he has contact with his children via FaceTime. His mother and father who supported him were present in the courtroom. 4. In cross-examination, he was referred to a letter dated 6 April 2018 under his hand in which he stated that he had received a bed "at a full-time rehab in Gosford" and attached a letter from Niagara Lodge which "accepted him" into a six-month rehabilitation program. [4] The applicant was further cross-examined on a letter dated 22 June 2018 which stated that he had completed "two months rehab". 5. In responding to the question "what he meant", the applicant replied: "Well, I didn't actually go, cause I didn't go to the rehab. The – I was on the waiting list, so I was going to them. The – the Niagara Lodge have – had meetings, so I was – I was – I didn't have a full-time bed, but I was attending some of the meetings – so the – the – the rehabilitation meetings." [5] 1. The applicant was referred to his prior criminal history. He agreed that he had been released from custody on 10 August 2018 and had not returned into custody until 1 February 2019. He agreed that during those six months on release, he had done nothing about his mental health or drug addictions. He agreed that at that time, he made no effort to contact Niagara Lodge. 2. When referred to his letter to the Judge in which he stated that he finally accepted that he needed treatment for his mental health and drug addiction, the applicant agreed that he had said that many times in the past. Remarks on sentence 1. After reciting the offences for which the applicant stood for sentence, the Judge summarised the agreed facts and circumstances of the offences as follows: "The agreed facts and circumstances giving rise to the offences are as follows: on 8 June 2020, the offender and his friend, Shelby Backo, attended Hertz Rental car at the airport. Ms Backo hired a silver Hyundai Santa Fe, CW3-0KS, in her name on behalf of the offender. Ms Backo drove the Hyundai out of the car park, but then got into her own vehicle whilst the offender drove away in the Hyundai. The Crown cannot prove beyond reasonable doubt that the offender had exclusive possession of the Hyundai thereafter. On 7 July 2020, police began lawfully intercepting a mobile phone service used by Radi El Dirani. The offender communicated with El Dirani using a mobile phone service which was subscribed to someone else. On 8 July 2020, the offender sent an SMS to El Dirani which said: "Hey, bro. I'm going to be up later this arvo around 6. I forgot I have drug and alcohol appointment for parole at 4pm that I missed last time, so will be a breach if I don't go. Will let you know when done and heading up to you". Later that day, the offender suggested that he would come up the next morning instead. El Dirani agreed and told the offender to bring money with him. At around 6am on 9 July 2020, El Dirani and the offender negotiated how much money the offender would bring. The offender said he was bringing $2,700, having already paid El Dirani $2,500 sometime earlier. At 9.26am, El Dirani called the offender, and they agreed to meet at El Dirani's house in Ashcroft. At approximately 1.10pm, police observed the offender driving the Hyundai to El Dirani's house. El Dirani supplied the offender with 5,445 grams of liquid that contained 1,4-Butanediol in exchange for $5,200. A short time later, the Hyundai was driven away. At approximately 1.20pm, the offender messaged El Dirani that he was concerned he would not be able to on-supply the 1,4-Butanediol because it was too thick for his main three customers. The offender asked how long it would take to get different product if he had any issues on-supplying. At approximately 1.35pm, police drove into Lehmanns Reserve in Ashcroft, approximately one-minute drive from El Dirani's house. The Hyundai was parked in the reserve. The offender had driven the Hyundai from El Dirani's house to the reserve. Police approached and saw the offender in the driver's seat. He was the sole occupant of the vehicle. The car key was in the ignition and the engine was running. The offender's licence had been cancelled on 22 June 2020. Police located an Oppo mobile phone in the offender's pants pocket. Police searched the Hyundai. They located a 15 litre blue tub labelled "Liquid pool chlorine" in the front passenger's footwell. Police also located a 250 ml Clearwater bottle containing a liquid substance in the vehicle's centre cupholder, and a clear syringe plunger containing droplets of liquid in the centre console. Police arrested and cautioned the offender in relation to the possession and supply of prohibited drugs. The liquid substances were later tested by PASS and found to be - the blue container - 5,445 grams of liquid that contained 1,4-Butanediol; the water bottle, 63.6 grams of liquid that contained 1,4-Butanediol; and the syringe, with a trace of 1,4-Butanediol. The offender was in possession of 5,508.6 grams of liquid that contained 1,4-Butanediol for the purpose of supply. The offender was taken to Liverpool Police Station. He participated in an electronically recorded interview, and he denied his involvement in the offences." 1. The Judge said that the applicant was 40 years of age and had lengthy criminal antecedents. Her Honour summarised his criminal histories in New South Wales, Western Australia and against the Commonwealth. 2. Her Honour observed that the applicant committed the offences on parole which was a circumstance of aggravation. Her Honour recounted at length the applicant's conduct whilst on parole and noted that whilst he had been in custody since 9 July 2020, the applicant had served the balance of parole and was bail refused on some other matters. Her Honour said that whilst he was at risk of having his bail revoked due to his poor compliance, his parole was revoked as a result of these offences. 3. Her Honour summarised the toxicology report tendered on the applicant's behalf. Her Honour said that 1,4-Butanediol is a central nervous system depressant, which when ingested is converted into gamma hydroxybutyrate, or GHB, in the blood within seconds. The "desirable effects" are relaxation and euphoria, with a loss of inhibitions. For that reason, it was known as the "date drug". [6] Her Honour observed that the "non-desirable effects" include dizziness, drowsiness, nausea, vomiting, disorientation, confusion and loss of consciousness. Following ingestion, the effects are noticed within 15 to 30 minutes and may last for a few hours. Following ingestion and conversion to GHB, the drug is rapidly eliminated from the body and has a half-life of between 34 and 44 minutes. Her Honour noted that "[d]epending on the tolerance of the user, 1,4-Butanediol may be used in doses of between 20 and 100 milligrams per kilogram of body weight". [7] 4. The Judge observed that the applicant was admitted to Lismore Base Hospital and treated for a fracture of the mandible which he sustained following a blow to his jaw whilst in custody some days prior. He underwent operative management of the fracture and the removal of four teeth. 5. The Judge said that the applicant had made enquiries seeking accommodation in the City Sleep Safe program, which is a community rehabilitation program in Newcastle for homeless persons suffering with addictions. Her Honour said that the letter confirming his acceptance into the program was dated December 2021. Her Honour also noted the applicant's letter written to the Court "setting out his battles" with what he said were mental health issues and drug and alcohol addiction, and a desire to address the issues which caused him "to relapse and reoffend". [8] 6. After summarising submissions made by the Crown and the applicant's counsel, the Judge found that the offence of supplying a prohibited drug fell just below the mid-range of objective seriousness. 7. Her Honour found that the planning involved in the offence was no greater than the planning always involved in the supply of a prohibited drug. 8. The Judge said that the quantity was approximately 1.5kg above the large commercial quantity which was significant but not the sole nor principal determinant for sentencing in relation to drug supply offences. The applicant, her Honour said, had paid a not insignificant sum for the quantity of the prohibited drug. 9. The Judge found that the applicant's activities were consistent with that of a drug dealer. He hired a car and used a mobile phone subscribed to someone else, making it less likely that he would be detected and he intended to supply to three persons. 10. Her Honour observed that the applicant was not dealing to the general public at large but rather to a limited number of customers and found that he was a user-dealer supplying to support his own habit. The Judge said that he was using anywhere between 80 to 110g per day, throughout the day, normally in 10g doses. 11. The Judge discounted the applicant's sentence for the plea of guilty by 25% entered in the Local Court which she said had significant utilitarian value and demonstrated contrition. Her Honour said no causal link had been made between his mental health issues and his offending which would warrant a reduction in his moral culpability being made. 12. The Judge noted that the applicant had a stable and loving upbringing and it was well into adulthood that he commenced abusing illicit substances. The Judge said that he had been on notice for a considerable period of time of the harm he was doing to himself by ignoring the need to address any mental health issues he may have, but more particularly his drug addiction. 13. Her Honour said that she found his evidence regarding his commencement of the use of illicit drugs as "somewhat contradictory". Either it was a result of his sister's death or it was a result of the breakdown of a relationship in 2013 or 2014. Her Honour went on to say that the applicant's usage escalated significantly as a result of the relationship breakdown but considered that his attempts to sheet the whole blame to his former partner for his increasing habit was not demonstrative of taking responsibility on his own behalf for decisions he made. 14. Her Honour observed that the applicant had been afforded opportunities in the past to address the issues in order to prevent relapse and has been afforded help to seek treatment. Her Honour said that the applicant's "somewhat lengthy" criminal antecedents did not aggravate the offending but tempered the leniency which he would otherwise be entitled to. 15. The Judge found the applicant's prospects of rehabilitation to be guarded, given that he had told the Court "time and time again" he was sorry and would address his drug addiction but had failed to do so. 16. Her Honour found the applicant's time in custody had been "more onerous on this occasion" due to the pandemic and the significant injury to his jaw. [9] 17. Another finding that her Honour made was that the applicant was highly likely to reoffend unless he was able to complete a residential rehabilitation program and address whatever mental health issues he may have. 18. The Judge said that general deterrence and specific deterrence had significant roles to play and protection of the community was now a paramount consideration. 19. Her Honour said that the applicant's family and the community "can only hope that he is committed to entering residential rehabilitation and reducing the likelihood of relapse and re-offending. Unfortunately, he has made that promise repeatedly before." [10] 20. Her Honour declined to find special circumstances. Her Honour said there would be ample opportunity for him on parole to enter residential rehabilitation if he was committed to doing so under supervision of Community Corrections. Otherwise, he could do it of his own accord. Similarly, it was up to him to pursue treatment for any mental health issue he may have. [11] 21. After observing that the applicant had served time for matters which had been dismissed or withdrawn and had been on parole at the time he committed the offences, her Honour found it appropriate to backdate the sentence to the date he went into custody. Her Honour then imposed the sentences detailed at [4] above. Ground 1: There should have been a finding of special circumstances 1. In his written submissions, the applicant submitted that there should have been a finding of special circumstances based upon a number of factors which he contended were acknowledged by the Judge. 2. He argued that the relationship between the non-parole period and the sentence should have been rearranged to allow sufficient time to enable him to spend a period in fulltime residential rehabilitation and receive mental health treatment, as well as providing an adequate period of time under supervision in the community. The applicant's grounds for a finding of special circumstances were: 1. The impact of COVID-19; he referred to the COVID-19 related lockdowns which required him to spend 211 days in isolation. He submitted that combined with his mental health issues, his time in custody had been significantly more arduous than otherwise would have been the case. He had contracted COVID-19 on three occasions whilst in custody. The applicant stated that on 28 June 2022, the NSW Justice Health and Forensic Mental Health General Practitioner diagnosed him with Long COVID. 2. Injuries suffered while in custody; the applicant referred to the physical assault upon him by Corrective Services which required, in July 2022, an operation to repair a fractured mandible and the removal of four teeth. A Lismore Base Hospital discharge summary was annexure "A" to the written submissions. The applicant further referred to a follow up operation in February 2023 which was required as the initial repair to the mandible failed. A Nepean Hospital discharge summary was annexure "B". The applicant further stated that ongoing treatment and further surgery had been indicated by his treating surgeon. 3. An error of fact by the Judge used to decline special circumstances. The applicant stated: "During sentencing it was put forward by the prosecution that I had previously had opportunities to address my mental health issues and drug addiction in the past. The supporting evidence for this was that I had previously been accepted into a drug and alcohol rehab but had not attended. This non-attendance was solely due to being in custody and the attendance in question being therefore impossible. Based on this erroneous inference, the sentencing [J]udge formed an opinion that my prospects of rehabilitation was guarded, however went on to find that I was highly likely to reoffend unless I was able to complete a residential rehabilitation program and address whatever mental health issue I may have". 1. The remarks of N Adams J at a bail hearing on 19 April 2021 was annexure "C". The applicant placed emphasis on her Honour's observation that the applicant was "at a cross roads of his life where he really needs intense therapy to assist in relation to his mental health issues and also the drug issues that flow from it". [12] 2. The applicant further submitted that since December 2022, he had been participating in the Alternate Sanctions Program at the John Morony Correctional Centre and had made significant strides toward his rehabilitation. A completion letter was annexure "D". He also stated that he had obtained acceptance to a fulltime residential program with The Restoration Centre. An unsigned letter dated 10 March 2023 certifying that the applicant had been accepted into The Restoration Centre's 12-month residential program "pending bed availability" was annexure "E". Consideration 1. When appearing before this Court, the applicant was informed that his submissions and annexures which postdate the imposition of his sentence were not admissible. However, the Crown had no objection to this material being taken into account if the Court came to re-sentence. 2. This Court has emphasised that a finding of special circumstances is a discretionary finding of fact in respect of which this Court would be slow to intervene. [13] As such, it is reviewable only on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. 3. The applicant's complaint is that the Judge's failure to find special circumstances does not allow him sufficient time on parole to complete a 12-month fulltime residential program and an extended period of supervision in the community is required to enable him to overcome his mental health issues and drug addiction. Amongst the matters he raised were the impact of COVID-19 and the injuries he suffered whilst in custody. These matters were taken into account by the Judge in determining the head sentence and were not to be "double counted" in a finding of special circumstances. 4. The applicant's contention that her Honour erred in finding that his prospects of rehabilitation were guarded is without substance. The applicant's credibility was substantially diminished by his conduct on parole. When being sentenced in the Local Court, he had submitted to Gibson LCM that he had insight into his mental health and drug issues and needed help. However, he made no effort upon release to parole to enter into fulltime rehabilitation but went on to use prohibited drugs and to commit the serious drug supply offence. 5. This Court has previously said that for special circumstances to be established "there must exist significant positive signs which show that if the offender is allowed a larger period on parole, rehabilitation is likely to be successful". [14] It is hardly surprising that the applicant did not satisfy the Judge that a longer period on parole was warranted. 6. Furthermore, her Honour was entitled to take into account considerations such as protection of the community, specific and general deterrence, as well as the applicant's rehabilitation when sentencing the applicant. It was open to her Honour to conclude that in all the circumstances, the minimum period of incarceration that the applicant should serve for his offending was 3 years and 9 months. No error has been established. 7. I would reject ground 1 of the appeal. Ground 2: His sentence in comparison to the sentence imposed upon his co-accused Radi El Dirani was excessive 1. The applicant complained that his "co-accused Mr El Dirani received a near same non-parole period when he had a much larger amount of a different type of drug". Furthermore, Mr El Dirani "was supplying to a greater network and the purpose of supply was for financial gain". The applicant pointed out that Mr El Dirani was "charged and sentenced on a number of firearm offences whilst on a[n] FPO". 2. The applicant accepted that he had to establish Mr El Dirani was his co-accused if the parity principle was to apply. He submitted that this had been established on the agreed facts. A further submission was that both he and Mr El Dirani were charged with an offence of supply of a large commercial quantity of a prohibited drug contrary to s 25(2) of the DMT Act. He contended that his sentence was excessive in comparison to that of his "co-accused". Consideration 1. The relevant legal principles concerning parity were helpfully summarised by RA Hulme AJ (with whom Beech-Jones CJ at CL and Fagan J agreed) in Kiraz v R [2023] NSWCCA 177 at [42]-[43]. "There is no doubt that the parity principle is concerned with the comparison of sentences imposed upon co-offenders involved in the same criminal enterprise (even if charged with different offences arising therefrom). It has been confirmed by the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 per French CJ, Crennan and Kiefel JJ at [30] and in Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 per French CJ, Hayne, Kiefel, Bell and Keane JJ at [30]. The same was said in Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 (per Campbell JA at [136]-[137], [202] and per Howie J at [246]). The parity principle is not, however, concerned with the comparison of sentences imposed upon persons who were not co-offenders: R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 at [66] (Johnson J); Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 at [148]-[149] (Bathurst CJ)." 1. Mr El Dirani was sentenced by Baly SC DCJ on 1 September 2021 – one year before the applicant was sentenced. He had pleaded guilty to the following offences: * Sequence 15 – a charge of supplying between 13 July 2020 and 1 August 2020 a large commercial quantity of prohibited drug, 4-Hydroxybutanoic acid ('GHB') contrary to s 25(2) of the DMT Act. The amount supplied was 12.1kg. * Sequence 6 – supply pistol to a person unauthorised to possess it contrary to s 51(1A)(a) of the Firearms Act 1996 ('Firearms Act'). * A further four offences contrary to the Firearms Act were placed on a Form 1 and taken into account by Baly SC DCJ when indicating the sentence for sequence 6. 1. Mr El Dirani was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 4 years. For sequence 15, with a 25% discount, the indicative sentence was 4 years and 6 months with a non-parole period of 3 years. 2. The agreed facts for sequence 15 referred to the supply of GHB by Mr El Dirani to various customers on seven different occasions between 13 July 2020 and 1 August 2020. The applicant was not one of these customers. The applicant was neither alleged to have been involved in any of the transactions nor was it alleged that he was a participant in a joint criminal enterprise with Mr El Dirani. 3. Mr El Dirani was not charged with the supply of 1,4-Butanediol to the applicant on 9 July 2020. 4. The agreed facts on which the applicant was sentenced made no mention of other prohibited drug supplies by Mr El Dirani. They centred on the supply of the prohibited drug by Mr El Dirani to the applicant and the applicant's on-supply to his "main three customers". There is no mention in the agreed facts to the applicant being a party to a joint criminal enterprise with Mr El Dirani. During his sentence proceedings, the issue of parity with Mr El Dirani's sentence was not raised. 5. The applicant was not a participant in the same criminal enterprise as Mr El Dirani, who was the supplier of prohibited drugs to customers who contacted him by mobile phone calls or text messages. The applicant was one of Mr El Dirani's customers. He had purchased the prohibited drug for his own use and to on-sell it to his own customers. They were not co-offenders in the same criminal enterprise and the parity principle does not apply. 6. I would reject ground 2 of the appeal. Orders 1. I propose the following orders: 1. Grant leave to appeal; 2. Dismiss the appeal. 1. DAVIES J: I agree with Price J. ********** Endnotes 1. Criminal Appeal Act 1912 (NSW), s 5(1)(c). 2. Breach of Parole Report, 14 July 2020, p 3. 3. Breach of Parole Report, 14 July 2020, p 2. 4. Tcpt,15 August 2022, p 19(35). 5. Tcpt,15 August 2022, p 19(47). 6. Tcpt,1 September 2022 ('ROS'), p 6(2). 7. ROS, p 6(14). 8. ROS, p 7(1). 9. ROS, p 11(25). 10. ROS, p 13(1). 11. ROS, p 13(21). 12. Tcpt, 19 April 2021, p 2(24). 13. R v Cramp [2004] NSWCCA 264 at [31]; Jiang v R [2010] NSWCCA 277 at [83]. 14. R v Tuuta [2014] NSWCCA 40 at [57]; R v Carter [2003] NSWCCA 243 at [20]; Beale v R [2015] NSWCCA 120 at [68]. 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: 13 October 2023