Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hamzy v R [2014] NSWCCA 223 Hearing dates: 01/10/2014 Decision date: 17 October 2014 Before: Hoeben CJ at CL at [1] Rothman J at [90] R A Hulme J at [91] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - two counts of supplying a commercial quantity of methylamphetamine - whether combined discount for plea of guilty and assistance of 30 percent was appropriate - plea of guilty entered at an early but not earliest point in time - exercise of discretion by sentencing judge as to amount of discount for early plea of guilty - assistance to authorities assessed as being of a low level - no error shown in combined discount of 30 percent - whether principle of parity observed - relevance of prosecutorial discretion - significant difference in subjective case of each offender - ground of appeal not made out. Legislation Cited: Crimes Act 1900 - s193B(2) Crimes (Sentencing Procedure) Act 1999 - s23 Drugs Misuse and Trafficking Act 1985 - s25(2) Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 OS1 v R [2012] NSWCCA 102 R v Robert Borkowski [2009] NSWCCA 102 R v Ehrlich v R [2012] NSWCCA 38 R v El Hani [2004] NSWCCA 162 R v Gallagher [1991] 23 NSWLR R v NP [2003] NSWCCA 195 R v Z [2006] NSWCCA 342 Regina v Dib [2003] NSWCCA 117 Regina v Stambolis [2006] NSWCCA 56 Sullivan v R; Skillin v R [2008] NSWCCA 296 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 477 Wong v R [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Khaled Hamzy - Applicant Regina - Respondent Crown Representation: Counsel: Mr G James QC/Mr P Lange - Applicant Ms V Lydiard - Respondent Crown Solicitors: AHA Taylor Lawyers - Applicant J Pheils - Solicitor for Public prosecutions - Respondent Crown File Number(s): 2008/64612 Decision under appeal Date of Decision: 2012-11-02 00:00:00 Before: Zahra SC DCJ File Number(s): 2008/64612 Judgment 1HOEBEN CJ at CL: Offences and sentence On 22 November 2010 the applicant was committed for sentence from the Burwood Local Court on the following counts: Count 1 - That he did between 17 and 18 May 2008 in Sydney supply an amount of prohibited drug, to wit 372 grams of methylamphetamine, being an amount which was not less than the commercial quantity applicable to that prohibited drug. Count 2 - That he did between 8 and 9 June 2008 at Auburn in the State of New South Wales supply an amount of prohibited drug, to wit methylamphetamine 995 grams being an amount which was not less than the commercial quantity applicable to that prohibited drug. 2Each offence was contrary to s25(2) of the Drugs Misuse and Trafficking Act 1985 (DMT Act) and carried a maximum penalty of imprisonment for 20 years and/or a fine of 3500 penalty units, with a standard non-parole period of 10 years. 3In relation to Count 2, the sentencing judge was asked to take into account a number of Form 1 matters: (1)Between 17 and 18 May 2008 deal with the proceeds of crime knowing that it was the proceeds of crime in the sum of $21,000 (contrary to s193B(2) Crimes Act 1900). (2)On 5 June 2008 supply prohibited drug (182 grams methylamphetamine) (contrary to s25(1) DMT Act). (3)On 9 June 2008 deal with the proceeds of crime knowing that it was the proceeds of crime in the sum of $31,400 (contrary to s193B(2) Crimes Act 1900). (4)On 14 June 2008 deal with the proceeds of crime knowing that it was the proceeds of crime in the sum of $117,000 (contrary to s193B(2) Crimes Act 1900). (5)Between 1 May 2008 and 14 June 2008 participate in a criminal group, that participation contributing to the occurrence of criminal activities (contrary to s93T(1) Crimes Act 1900). 4Matters (1), (3) and (4) on the Form 1 carried a maximum penalty of 15 years imprisonment. Matter (2) on the Form 1 carried a maximum penalty of 15 years imprisonment and/or a fine of 2000 penalty units. Matter (5) carried a maximum penalty of 5 years imprisonment. 5The applicant was sentenced as follows: Count 1 - Imprisonment for 6 years to commence 4 December 2008 and to expire 3 December 2014 with a non-parole period of 4 years to expire on 3 December 2012. Count 2 (and Form 1 matters) - Imprisonment for 8 years and 6 months to commence on 4 December 2009 and to expire 3 June 2018 with a non-parole period of 6 years to expire 3 December 2015. 6The applicant seeks leave to appeal against the sentence imposed on him on the following grounds: Ground 1 - In granting the applicant a combined discount of 30 percent to reflect the utilitarian value of his pleas of guilty and the value of the assistance he provided, his Honour entertained a false presumption that the applicant had previously received some benefit from his offer of assistance. Ground 2 - The applicant has a justifiable sense of grievance in the light of the sentence imposed on the co-offender referred to as OS1. Factual Background 7The applicant was born in 1952 and is the father of Bassam Hamzy and Ghassan Amoun and the uncle of Mohammed Hamze. 8Between 21 April 2007 and 7 July 2008 Bassam Hamzy was a sentenced prisoner at Lithgow Gaol. He was in possession of an unauthorised mobile telephone. 9Between 1 May 2008 and 11 June 2008 that telephone service was lawfully intercepted. During this time, a high level of organised criminal activity was identified. The mobile phone was used on average 460 times a day and the majority of the calls recorded were associated with the activities of the criminal group. 10The calls revealed that Bassam Hamzy was the principal of a criminal group which operated a drug supply network between Sydney and Melbourne between May and June 2008. 11The criminal group comprised family members of Bassam Hamzy, including the applicant and associates. Bassam Hamzy led and directed the activities of the group by sourcing and distributing prohibited drugs and managing the profits from the sales and otherwise managing the group including seeking out new members. 12In total the syndicate was involved in nine discrete instances of supplying a prohibited drug. The applicant was involved in three of those supplies. Count 1 - Supply of commercial quantity methylamphetamine (372 grams) 13On Monday 5 May 2008 Bassam Hamzy was contacted by Mohammed Hamze, who was a relative. Those conversations discussed transporting drugs from Melbourne and finding a courier to transport drugs to Melbourne. Subsequently, OS1, who owned a small transport company, was recruited as the courier for the syndicate using his legitimate company to conceal the illegal operations of the syndicate. 14On 17 and 18 May Bassam Hamzy, OS1, Mohammed Hamze and Ghassan Amoun agreed to supply Imran Allouche with 372 grams of methylamphetamine. 15The methylamphetamine to be supplied to Allouche was obtained by the applicant. The applicant in turn provided the drugs to Amoun who delivered them to OS1. OS1 took this package to Melbourne and with Mohammed Hamze arranged to supply the methylamphetamine to Imran Allouche. 16Telephone discussions took place in the course of which money owed to the syndicate by a Con Bodiotis was discussed. OS1 confirmed that he had $21,000 that was part payment from Bodiotis for drugs previously supplied. Arrangements were made for OS1 to go to the home of the applicant and give him the $21,000. This occurred. (The collection of the $21,000 from Bodiotis is the foundation of the offence of knowingly deal in the proceeds of crime being charge number 1 on the Form 1.) 17On 17 May discussions took place as to the purity of the drug being supplied. One of those conversations involved Bassam Hamzy and the applicant. The applicant who had called the supplier said that the drugs were of better purity than those supplied to them previously. 18Subsequently, a new price for the drugs was negotiated because of the purity. OS1 confirmed that he took the drugs directly from Amoun and then passed them onto Allouche. On 20 May 2008 OS1 contacted Bassam Hamzy and during this conversation they spoke of Allouche owing the syndicate $85,000. Count 2 - Supply commercial quantity of methylamphetamine between 8 - 14 June 2008 (995 grams) 19On 8 June 2008 Bassam Hamzy and the applicant agreed that the applicant would obtain a significant quantity of methylamphetamine from an unknown supplier. The applicant told Bassam Hamzy that the price for the drug was $185,000. The drug had a high level of purity. By 9 June 2008 the applicant had successfully obtained 995 grams of methylamphetamine from the supplier. 20In due course OS1 attended upon the applicant and collected the methylamphetamine. Those drugs were taken to Melbourne for on-supply. In discussions between OS1 and Bassam Hamzy, the drugs were described as of high quality. OS1 was given directions to supply 164 grams to Con Bodiotis and the remaining quantity to other persons who were named. Payment of $110,000 for 500 grams of methylamphetamine was eventually negotiated. 21On the evening of 10 June 2008 Bassam Hamzy and OS1 spoke about the proceeds of the supply (and intended supply) of the methylamphetamine. Bassam Hamzy told OS1 to tell the applicant that he missed his flight and would return to Sydney with the money the following day. Later that night, OS1 told Bassam Hamzy that he had so far collected $33,500 from Bodiotis. Subsequently, most of the methylamphetamine was supplied to Bodiotis. By the evening of 12 June 2008 OS1 advised that he had collected $65,000 from Con Bodiotis and that Bodiotis owed a further $125,000. 22On 13 June the applicant complained to Bassam Hamzy about how long it was taking for the money to be collected and that his supplier would not trust him any more. The applicant told Mohammed Hamze that he had to get $185,000 to pay his supplier for the methylamphetamine before anything else. 23At 10.20pm on 13 June 2008, the applicant travelled from Sydney to Melbourne and received $117,000 collected by OS1 and Mohammed Hamze (the collection of the $117,000 is the offence of knowingly deal in the proceeds of crime being Charge (4) on the Form 1). 24The applicant then returned to Sydney from Melbourne driving the same car OS1 had used to transport the kilogram of methylamphetamine on 9 June 2008. 25In a conversation on the afternoon of 14 June 2008, OS1 told Mohammed Hamze that the applicant was "dirty" because he thought there was money missing. OS1 told Mohammed Hamze that the applicant thought there should be $240,000 but only collected $117,000 from OS1. At 7pm on 14 June 2008 Con Bodiotis told Mohammed Hamze that he was still owed $56,000 and was arranging that amount of money for tomorrow. Mohammed Hamze said his uncle (the applicant) was "fuming". OS1 flew to Sydney from Melbourne, arriving in Sydney at 10.35pm. 26On 23 August 2008 a conversation between Bassam Hamzy and the applicant was lawfully recorded. During this conversation both the applicant and his son discussed various amounts of money owed to them, including from Mohammed Hamze. Bassam Hamzy was recorded as saying that Mohammed had ripped them off for $90,000. Additional Form 1 facts Charge 2 and 3 on the Form 1: Supply prohibited drug (182 grams of methylamphetamine) and knowingly deal with the proceeds of crime ($31,400) 27Between 5 and 6 June 2008 Bassam Hamzy agreed to supply a quantity of methylamphetamine to Con Bodiotis. The applicant obtained 182 grams of methylamphetamine which was delivered to Khaled Taleb who took the drug to Melbourne and delivered it to Con Bodiotis. 28On 6 June 2008 a conversation took place between Bassam Hamzy and Con Bodiotis. A price for the methylamphetamine to be supplied was negotiated. Due to the poor quality of the drug, Bodiotis would only have to pay $33,500 for 6 ounces. 29At 6pm on 7 June 2008 a conversation between Bassam Hamzy and the applicant was intercepted. In this conversation Bassam Hamzy and the applicant discussed how much they should collect for the drug. The applicant told Bassam Hamzy that he paid $5,180 per ounce for the drug. In subsequent conversations, Bassam Hamzy discussed the collection of money from Con Bodiotis, being payment for the supply of 182 grams of methylamphetamine. Eventually, Con Bodiotis arranged for $31,400 in total to be delivered to the applicant and this took place. Charge No 5 on the Form 1 Participating in a criminal group from 1 May 2008 to 5 July 2008 30In May 2008 OS1 was the sole director of Parcdel Pty Ltd. That company operated three refrigerated trucks in the Sydney area. OS1 advised Bassam Hamzy that the business was heavily in debt and that he was close to having his fleet of trucks repossessed. Bassam Hamzy and OS1 came to an arrangement whereby Bassam Hamzy was to support the business with his own money and from the proceeds of subsequent supplies of prohibited drugs. In return for the injection of money, OS1 agreed that the company would act as a front for other activities involving Bassam Hamzy's family and associates. A number of Bassam Hamzy's family members, including the applicant, were to be directors of the company. 31BPay accounts were set up to allow the depositing of monies directly into the company accounts. Parcdel's trucks were to be used for the supply of drugs to interstate purchasers under the guise of carrying on a legitimate freight business. Proceedings in the District Court and the findings of the sentencing judge 32In reviewing the facts, his Honour found that the drug supply network operated by Bassam Hamzy depended for its success upon persons such as the applicant who were willing to become involved in facilitating negotiations and other arrangements for the supply of the prohibited drugs. 33In relation to assistance provided to the authorities, his Honour noted that it was not in dispute that the applicant approached the authorities and provided a line of communication between the Crime Commission and Bassam Hamzy with a view to the Crime Commission furthering legitimate investigative operational objectives. The importance of that communication was that Bassam Hamzy had told the Crime Commission officers that he was able to return certain items which the Crime Commission was looking for. His Honour found that there was a real issue as to whether Bassam Hamzy ever had the knowledge and capacity to retrieve the particular items. His Honour accepted that the applicant genuinely thought that his son did have such a capacity. 34It was the applicant's submission that the only way these items could be obtained was if sufficient money was available to purchase them. Since the Crime Commission was not prepared to pay that money, it was necessary for him and his son to deal in drugs in order to obtain money to pay for these items. The applicant believed that the acquisition of these items would improve his position and that of Bassam Hamzy with the Crime Commission. The Crown disputed that this was the applicant's motivation. The Crown submitted that profit was the prime motivation. 35His Honour found (ROS 35.5) as follows: "The matter must proceed on the basis that the offender was involved in the supply of drugs for a limited period between 17 May and 24 June, a period a little over one month. However the material before me, including the conduct of the offender beyond this period and inferences that can be drawn from what the offender said in the intercepted calls, provide colour and context to the true role of the offender in the particular supplies for which he is to be sentenced. It would be artificial to look only at the conduct of the offender in the steps towards effecting the particular supplies when there is a body of other evidence to place his conduct in some context and which would assist in understanding his role in the overall enterprise compared to other participants and in particular in understanding his position in relation to Bassam Hamzy and OS1." His Honour decided that it would be best to proceed on the basis of what the applicant actually did (ROS 35.9). 36His Honour described the participation of the applicant as follows (ROS 36.1): "In relation to the three occasions the offender played a role in the supply of prohibited drug, the offender was involved in the procurement of the drug for on supply. The evidence suggests that he sourced the drug from one particular supplier. The offender was engaged in the processes towards the delivery of the drug and it's transportation to Melbourne. The offender also played a significant role in the recouping of monies that were collected by others in Melbourne. The offender was at all times acting on the direction of his son though he was able to bring some enterprise into the procuring of the drug. Contributions he made in discussions with Bassam Hamzy about procurement of the drug would suggest that he was able to bring some knowledge of the illicit drug trade into the negotiating process. As can be seen in the extracts of the intercepted calls I have referred to the offender speaks with Bassam Hamzy about aspects of the negotiation for the procurement of the drug including references to the quality and quantity of the drug procured from the supplier. The offender at times organised others in effecting steps in the supply of the drug in Melbourne. On one occasion he provided a vehicle to OS1 to transport a quantity of drug. He also adopted a role in overseeing the collection of monies and acted as the repository of the monies realised in the supplies in which he was involved. The offender provided a crucial role in putting into effect the supplies promoted by his son who was otherwise constrained by his incarceration. In that regard the offender provided an effective conduit for Bassam Hamzy. The involvement of the accused at the level of procurement, the nature of the discussions with his son at the time of procurement, the involvement of the offender in the collection of monies, his overseeing role at times and the provision of assistance to those effecting the transactions support the conclusion that, in those supplies that he was involved in, he was at the nucleus of the organisation of the supply. He provided essential support and assistance to his son Bassam Hamzy and was involved in a number of steps in the planning of the supplies. I am of the view, having considered the content of the intercepted calls that the offender would have been aware of the scale of the operation that Bassam Hamzy was controlling from custody. With regard to the matter on the form one relating to the offender's participation in a criminal group, I am of the view that the offender intended a continuing role in the criminal enterprise controlled by Bassam Hamzy. The conduct of the offender in assisting Bassam Hamzy referred to in the statement of facts extends past the period in which the offender was involved in the supply offences for which he faces sentence." 37At ROS 38.8 his Honour said: "It is conceded by counsel for the offender that the offender's role was pivotal in the supply of substantial quantities of prohibited drug in the three supply transactions in which he was involved. ... I am not of the view that the offender's role was the equivalent of Bassam Hamzy in the drug supplies in which he was involved. I am of the view also that the role of OS1 was ultimately greater than the role of the offender. I will further refer to the role of OS1 when considering the issue of parity of sentence." 38In relation to the quantity of drugs involved, his Honour said: "Quantity is not the sole determinative factor. The offender was however trafficking in prohibited drugs to a substantial degree. In relation to count one, the quantity involved, 372 grams, is towards the bottom half of the range of quantities within the commercial quantity for methylamphetamine. The amount of 995g is at the top of the range of commercial quantities of methylamphetamine. The quantity of drug the subject of the third supply on the form one, 182 grams, is less than the commercial quantity." His Honour found that the applicant "knew that the purpose of the supplies was to realise a substantial profit". (ROS 39.4) 39In relation to motivation, his Honour found: "Whilst there was a benefit to the community in the retrieval of the [items], I cannot be satisfied that this was a motivation for his offending. I am of the view that the offender's motives were not altruistic. He was keen for a significant benefit to flow to his son from the retrieval of them [items] and he was prepared to engage in substantial criminal conduct to achieve that purpose. In his attempts to achieve that purpose he was prepared to be involved in the dissemination of large quantities of prohibited drug, which would have had as a consequence substantial harm to the community. The content and nature of the intercepted conversations in which the offender was involved, which I have referred to at length, and his conduct in effecting the supplies do not suggest any impaired or flawed thinking. The offending is objectively serious and calls for a strong element of deterrence." 40His Honour reviewed the applicant's personal factors. He was born in Lebanon. He had a happy childhood, except for the Lebanese civil war which affected his village. He migrated to Australia in 1973 at the age of 20 but returned to Lebanon at the end of 1974. He married in Lebanon in 1975. Due to further civil unrest in Lebanon in 1975, he returned to Australia with his wife. Together the applicant and his wife had five children. On return to Australia, the applicant maintained regular employment until he injured his back and neck in a car accident in 1982. He ceased work and received a substantial compensation payout in 1986. 41In 1988 the applicant gained part-time employment as a leather cutter and in 1989, he and a friend created a company to export powdered milk to Lebanon. This company was used to facilitate the importation of heroin. The company was wound up when the applicant was arrested in 1991. The applicant received a lengthy sentence for the supply of a large commercial quantity of heroin and was not released to parole until 2005. Upon his release, he worked part-time until May 2008. The applicant was receiving unemployment benefits at the time of his arrest for these offences. 42The applicant's marriage was dissolved in 1996. He said that he maintained a close relationship with all of his children. 43As already indicated, the most significant matter insofar as the applicant's criminal record was concerned is his conviction of supplying a large commercial quantity of heroin, for which he received a sentence of imprisonment of 16 years with a non-parole period of 12 years. The applicant was on parole for that matter when he committed the offences, the subject of this appeal. 44His Honour accepted that his plea of guilty indicated a degree of remorse. In relation to the utilitarian value of the plea of guilty, his Honour said: "I am satisfied that the plea of guilty was entered on 22 November, 2011. The offender pleaded guilty in the Local Court following committal proceedings where the issue was the quantity of drug involved. The crown subsequently accepted a plea to a lesser count of supply the commercial quantity of prohibited drug. The offender was committed for sentence from the local court. The pleas could be said to have been entered at an early opportunity. The offender is entitled, having regard to the guideline judgment of Thomson and Houlton [2000] NSWCCA 309, to a discrete discount for the utilitarian benefit of the plea. I will return to set out the discount for the offender's plea together with the discount on sentence for the offender's assistance to the authorities." (ROS 45.8) 45His Honour found it difficult to assess the applicant's prospects of rehabilitation and was unable to make any meaningful prediction. His Honour noted that the applicant was involved again in criminal conduct of a most serious kind and faced a further lengthy period of imprisonment. His Honour also noted that the applicant had spent a considerable period of his adult life in custody, i.e. 16 of the last 19 ½ years. 46Nevertheless, given his age on release, his Honour considered that the applicant would require some continuing assistance through supervision. His Honour thought that the parole period which he intended to impose would allow sufficient opportunity for supervision and accordingly, he declined to find special circumstances. 47His Honour took into account parity, with particular reference to OS1. His Honour said: "Ensuring parity in sentencing with the sentences imposed upon the offender OS1 is not without difficulty. There are limitations in comparing the sentences imposed. Prosecutorial decisions as to the groupings of particular amounts of drug make it difficult to determine the sentence imposed on those amounts supplied which are common to both the offender and OS1. Counts involving the large commercial quantity were proffered which grouped what are supplies within a course of conduct. The counts to which the offender OS1 pleaded guilty involved the supply of large commercial quantities of prohibited drugs together with other unrelated criminal activity. OS1 was sentenced for his involvement in additional supply offences identified in the intercepted calls for which the offender does not face sentence here. On the material before me the offender OS1, over time, became significantly involved in the overall management of the movement of the drugs and in significant aspects of the negotiation of the supplies. The offender OS1 was substantially involved in the collection of monies the subject of the sales on behalf of the syndicate. The offender OS1 played a critical role in the preparation and transport of substantial quantities of drug. These findings are consistent with the findings of the sentencing judge. OS1 ultimately became a significant member in the syndicate operated by Bassam Hamzy. OS1 was involved in a number of supply transactions over a greater period. The offences for which he was sentenced involved greater quantities of drugs. OS1 was also sentenced on an objectively serious offence of aggravated break enter and steal. He received a separate sentence for that offence of two years with a non-parole of 18 months. I am of the view that in all of the circumstances here issues concerning parity of sentence with OS1, whilst relevant, have only limited application." (ROS 50.1) 48His Honour then reviewed the applicant's assistance to authorities. His Honour noted that the applicant had provided information to authorities which had led to an Islamic cleric being banned from entering gaol because this cleric was responsible for radical Islamic teachings amongst prisoners. 49He provided information about some murder suspects, but these suspects were already known to the police. He did not make a statement. The information provided was not particularly valuable. He acted as conduit between the Crime Commission and Bassam Hamzy, but ultimately that communication led to nothing and no reliable information was provided. In relation to that contact, his Honour said: "In relation to the offender's assistance generally, it would appear at the time of providing information to the Crime Commission he sought benefits from that assistance from the authorities including the transfer of one of his son's within the prison system and the restoration of visiting rights." 50The only real assistance provided by the applicant to authorities was that he arranged for one of his sons to deliver 9 firearms and a quantity of ammunition and explosives to the police. In relation to that, his Honour said: "The letter of assistance notes that the nature and extent of assistance was limited. No information was given as to the source of the items." 51Nevertheless, the surrender of the firearms and explosives was of some benefit to the community in that they were capable of causing substantial harm and had the potential to be used in unlawful activities. 52His Honour's conclusions in relation to s23 Crimes (Sentencing Procedure) Act 1999 should be set out: "I have taken into account the matters to be considered in s 23(2). The significance and usefulness of the offender's assistance has not been assessed as high. The offender has placed himself at some personal risk however, unless the nature of his assistance is disseminated, he is not, on the material before me, likely to suffer harsher custodial conditions as a consequence of his assistance. Section 23(3) provides that any lesser penalty that is imposed must not be unreasonably disproportionate to the nature and circumstances of the offence. It is relevant, as the Crown has submitted, that the offender has already received some benefit from his offer of assistance. In SZ v Regina [2007] NSWCCA 19, Buddin J considered at length the authorities concerning the appropriate range of the composite discount for assistance and the plea of guilty and concluded that a combined discount exceeding 50% should be reserved for an exceptional case. I am of the view that in the circumstances of the present case that a combined discount for assistance and the guilty plea should be in the order of 30%." (ROS 53.6) 53By way of additional information, it should be noted that OS1 successfully appealed to this Court against the sentence imposed on him (OS1 v R [2012] NSWCCA 102 (Allsop P; Davies and Schmidt JJ). OS1 pleaded guilty to four offences as follows: Count 1 - Aggravated (in company) break and enter and commit serious indictable offence, namely the larceny of a quantity of frozen food (maximum penalty - 20 years with a standard non-parole period of 5 years. Count 2 - Supply a prohibited drug, being more than the indictable quantity, namely 140.7g cocaine (maximum penalty 15 years imprisonment). Count 3 - Supply large quantity prohibited drug, namely MDMA 600g (maximum penalty - imprisonment for life with a standard non-parole period of 15 years imprisonment). Count 4 - Supply large commercial quantity prohibited drug, namely 2.154 kg methylamphetamine (maximum penalty - imprisonment for life with a standard non-parole period of 15 years imprisonment). 54The following offences were taken into account on a Form 1 in respect of Count 4: (a)Knowingly dealing in the proceeds of crime (four offences); (b)Supply prohibited drug being more than the indictable quantity, namely 6.68 kg cannabis; (c)Participating in a criminal group; (d)Knowingly take part in the supply of prohibited drug more than the indictable quantity, namely 56g cocaine; (e)Possess prohibited drug, namely 2.6g cocaine (f)Drive while under the influence of drugs (cocaine). 55OS1 was sentenced by Judge King SC on 29 October 2010 as follows: Count 1 - Imprisonment for two years with a non-parole period of one year six months commencing 30 November 2008 and expiring on 29 May 2010. Count 2 - Fixed term of imprisonment of eighteen months commencing on 30 May 2009. Count 3 - Imprisonment for six years consisting of a non parole period of four years commencing 30 November 2009 and expiring on 29 November 2013. Count 4 - Taking into account the matters on a Form One, imprisonment for eight years consisting of a non-parole period of five years commencing 30 November 2010 and expiring on 29 November 2015. The effective sentence was a period of imprisonment for ten years with a non-parole period of seven years commencing 30 November 2008 and expiring 29 November 2015. 56That sentence had incorporated in it a combined discount of 50 percent for both the plea of guilty and assistance. That discount was further broken down so that 25 percent was apportioned to the plea of guilty, 5 percent for past assistance and 20 percent for future assistance. This Court had before it in the appeal a confidential document. That document made it clear that OS1 had already provided considerable assistance in relation to the past and had undertaken to give evidence against a large number of persons in the future. It was accepted by Judge King SC that OS1 had a justified fear for himself and his family. The Court considered that the level of assistance provided by OS1 was exceptional and that a combined discount of 60 percent should have been applied, which would be apportioned as to 25 percent for the early plea, 15 percent for past assistance and 20 percent for future assistance. 57Following that adjustment, the sentences for Counts 3 and 4 were quashed and replaced with the following: "(a) In respect of the offence charged in Count Three a non-parole period of 3 years commencing 30 November 2009 and expiring 29 November 2012 with an additional term of 1 year; (b) In respect of the offence charged in Count Four and taking into account the matters on the Form 1 a non-parole period of 3 years 6 months commencing 30 November 2010 and expiring 29 May 2014 with an additional term of 2 years and 6 months." 58Allowing for the effect of the 60 percent discount, the undiscounted total sentence for Count 4 was one of 15 years with a non-parole period of 8 years and 9 months. By way of contrast, the undiscounted sentence for the applicant in respect of Count 2, was a head sentence of 12 years and 2 months with a non-parole period of 8 years and 6 months. The total undiscounted sentence imposed on the applicant for both counts was 13 years and 6 months with a non-parole period of 10 years. Ground 1 - In granting the applicant a combined discount of 30 percent to reflect the utilitarian value of his pleas of guilty and the value of the assistance he provided, his Honour entertained a false presumption that the applicant had previously received some benefit from his offer of assistance. 59Despite the terms in which this ground has been expressed, the effect of oral submissions was that the extent of the discount for assistance was inadequate and that a discount which was substantially greater should have been allowed. 60In relation to the specific terms of Ground 1, his Honour noted at ROS 52.8 that: " ... at the time of providing information to the Crime Commission he sought benefits from that assistance from the authorities including the transfer of one of his sons within the prison system and the restoration of visiting rights." 61In the course of applying s 23 Crimes (Sentencing Procedure) Act 1999 and assessing the level of the applicant's assistance, his Honour said at ROS 53.9: "It is relevant, as the Crown has submitted, that the offender has already received some benefit from his offer of assistance." 62It is clear from the overall context of the Remarks on Sentence that his Honour took into account the receipt of "some benefit from his offer of assistance" to a very small extent, if at all. In any event, it is clear from the material before his Honour that the applicant did receive some benefit from his assistance. 63The applicant gave evidence that he had not seen his son, Bassam Hamzy, since 2001 and that upon his release to parole in March 2005, he was extremely upset to learn that on public interest grounds he was not allowed to visit his son. He took steps to change that situation and was advised by the Ombudsman that he could visit his son at the Lithgow Correctional Centre. Subsequently, by offering himself as a conduit between the Crime Commission and Bassam Hamzy his visitation rights with his son were significantly enhanced, even though Bassam Hamzy was at that time an inmate of the "Super Max" detention centre at Goulburn. To that extent, as his Honour appreciated, the applicant had received a benefit from his offer of assistance. 64The oral submissions in the appeal were predicated upon the proposition that in allowing a composite discount for an early plea of guilty and for assistance, his Honour must have allowed 25 percent as the discount for the early plea of guilty. That assumption is not made out. 65It is clear from his Honour's description of the circumstances surrounding the entry of the plea of guilty, that there was some element of negotiation involved (see [44] hereof). It is also significant that his Honour's finding in relation to a discount for the plea of guilty, was somewhat qualified. "The pleas could be said to have been entered at an early opportunity." (ROS 45.9) His Honour did not find that the plea were entered at the earliest opportunity. 66In such circumstances a sentencing judge has a broad discretion as to the amount of the discount to be awarded. In Regina v Dib [2003] NSWCCA 117 Hodgson JA (with whom Dowd and Barr JJ agreed) said: "4 However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender's culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v Sharma (2002) 54 NSWLR 300, distinguishing Cameron v The Queen (2002) 76 ALJR 382. 5 If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount." 67In Regina v Stambolis [2006] NSWCCA 56 Howie J said: "11 Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity. ... 13 In the present case there was no attention paid by the Judge to the real utilitarian value of the pleas of guilty or to the established authority of R v Dib [2003] NSWCCA 117 and numerous other cases holding that there is no entitlement to any particular discount even if the plea of guilty is at the first reasonable opportunity. ..." 68In Sullivan v R; Skillin v R [2008] NSWCCA 296 Howie J (with whom McClellan CJ at CL and Grove J agreed) said: "13 The applicant Sullivan relies upon two grounds of appeal. The first is that her Honour gave insufficient weight to the utilitarian value of the applicant's pleas of guilty. The Judge gave him a discount of 15 percent. She acknowledged that the pleas involved "significant utilitarian value" but noted that the "late negotiation and entry of pleas meant that the Crown had to prepare for the trial or series of separate trials, therefore the utilitarian value of the pleas was diminished by their being made at that late stage". 14 In effect the submission is that, having regard to the complexities of the matters and the delay by the Crown in determining the precise charges to bring against the applicants in the District Court, the discount should have been "at least 20 per cent". The short answer is that this Court would not generally find that there was an error in the exercise of discretion in choosing a discount of 15 per cent rather than one of 20 per cent, in particular where the Judge gives reasons for determining the discount chosen." 69In R v Robert Borkowski [2009] NSWCCA 102 Howie J (with whom McClellan CJ at CL and Simpson J agreed) said: "31 As a matter of general practice, the maximum discount for the utilitarian value of the plea of guilty should be awarded only to those accused persons who plead guilty in the Local Court and continue that plea of guilty in the District Court. There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case. The amount of the discount cannot depend upon the practice of the particular court based upon its administrative arrangements. It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15 per cent. There was nothing in the present case that justified a discount above that range. 32 It should not be necessary to do so, but, because there appears to be discrepancies in the application of the discount for the utilitarian value of the plea, it is apposite to set out in point form the principles laid down by this Court and to be applied by sentencing courts. Of course these are principles of general application and are subject to the scheme set out in Criminal Case Conferencing Trial Act 2008 and regulations made under that Act: 1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116]. ... 8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280. 9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448. ..." 70Being mindful of that qualification, it is necessary to turn to the extent of the assistance. This was carefully analysed by his Honour (see [48] - [52] hereof). The effect of his Honour's analysis was that the assistance was of a low level. Insofar as the murder investigation and retrieval of some stolen items was concerned, the assistance was of no practical value. The identification of the radical Islamic cleric was not rated highly. The only assistance of any practical value was the delivery of the 9 firearms and a quantity of ammunition and explosives. Even then no information was provided as to their source. Nevertheless, their surrender of those items was a benefit to the community given their potential to cause harm and to be used in unlawful activity. 71On the basis of that level of assistance, and the early pleas of guilty, it was well open to his Honour to allow a total discount of 30 percent where the individual components were not identified. This is particularly so when his Honour took into account the matters in s23(2) Crimes (Sentencing Procedure) Act 1999 and had specific regard to s23(3) which is to the effect that any lesser penalty that is imposed must not be unreasonably disproportionate to the nature and circumstances of the offence. 72It should be noted that s23(4) does not prescribe a method or manner in which the discounting is to be achieved. In R v Gallagher [1991] 23 NSWLR 220 Gleeson CJ (with whom Meagher JA and Hunt J agreed) said: "It is essential to bear in mind that what is involved is not a rigid or mathematical exercise, to be governed by "tariffs" derived from other and different cases but, rather, one of a number of matters to be taken into account in a discretionary exercise that must display due sensitivity towards all the considerations of policy which govern sentencing as an aspect of the administration of justice." Those remarks of Gleeson CJ are, of course, qualified by s23(4). Nevertheless, as Basten JA observed in R v Ehrlich v R [2012] NSWCCA 38 at [7] their "tenor is not diminished". 73As was further explained by Basten JA in Ehrlich at [11], such an approach is not erroneous because s23(4) "says nothing as to the manner in which the discounting is to be achieved. Indeed, on one view, the manner in which it is achieved is irrelevant: the selected reduction can be expressed in a number of different ways, none of which is prohibited." The real issue with respect to the allowance of a discount on two bases is to avoid double counting of a particular element. 74In most cases it is also not helpful to speak of a level of discount as being generally available. Such an approach makes assumptions about the matters to which the court must have regard in s23(2) and runs the risk of selective reliance on some authorities to the exclusion of others. In R v Z [2006] NSWCCA 342 Beazley JA said at [88]: "88 ... the focus should not be so much upon the precise numerical value of the discount but rather upon the question whether after all relevant matters have been taken into account, the sentence imposed is appropriate." 75This ground of appeal has not been made out. Ground 2 - The applicant has a justifiable sense of grievance in the light of the sentence imposed on the co-offender referred to as OS1. 76The applicant submitted that he had a justifiable sense of grievance by reference to the limited difference between the undiscounted head sentence imposed on OS1 for Count 4 and on himself for Counts 1 and 2. In making that submission, the applicant relied upon the finding by the sentencing judge that "I am of the view also that the role of OS1 was ultimately greater than the role of the offender." (ROS 39.2) The applicant also relied upon the difference in the quantity of prohibited drug which was supplied. In his case (including the Form 1 offence) it was 1.549 kilograms and in the case of OS1, it was 2.156 kilograms. In that regard, the applicant noted that the two amounts supplied by him, which were the subject of the charges to which he pleaded guilty, formed part of the large commercial quantity which OS1 supplied. 77The applicant submitted that by virtue of the different charges preferred against him (two charges of supplying a commercial quantity of methylamphetamine) and OS1 (one charge of supplying a large commercial quantity of methylamphetamine) OS1 was arguably exposed to a more punitive sentencing regime. In making that submission, the applicant accepted that the quantity of drugs supplied was not the predominant factor when seeking to ascertain the appropriate sentence. He accepted that the role of the particular offender was of primary importance (Wong v R [2001] HCA 64; 207 CLR 584). In that regard, he noted that his Honour found that the role of OS1 was greater than his. He submitted that not only did OS1 supply a greater quantity of drugs over a longer period, but his role in the syndicate was greater. 78The applicant submitted that even if the Court were to conclude that no justifiable sense of grievance could arise as a result of the undiscounted head sentences, it should arise in relation to the non-parole periods imposed. The applicant noted that as adjusted by this Court, as a result of his appeal, the non-parole period imposed on OS1 of 8 years and 9 months was significantly less than that imposed on him. 79The applicant submitted that his submissions as to the lack of parity between the sentence imposed on OS1 and that imposed on him, was buttressed by the reduction in the sentence imposed on OS1 by this Court. As a result of that decision, not only was the head sentence significantly reduced but also the non-parole period. The applicant emphasised the findings of this Court (at [59]) as to the importance of the role played by OS1 in the syndicate. Consideration 80The issue of parity was carefully considered by the primary judge. His reasons for concluding that "in all of the circumstances here issues concerning parity of sentence with OS1 whilst relevant, have only limited application" (ROS 51.1) were pertinent and fully supported that conclusion. 81When analysing the roles of OS1 and the applicant, his Honour "ultimately" concluded that the role of OS1 was greater than that of the applicant. It is clear from his Honour's analysis that despite that conclusion the difference in their respective criminality was not great. The distinguishing features seem to be that OS1 was sentenced for his involvement in additional supply offences and that his involvement in the supply transactions occurred over a longer period. This should not obscure the findings as to serious criminality made against the applicant: he was involved in the facilitation of the negotiations and other arrangements for the supply of the prohibited drug. His involvement in the syndicate went well beyond the period of actual supply, he was involved in the procurement of the drug for supply, he was involved in the delivery processes for the drug and its transportation to Melbourne, he played a significant role in the recouping of monies that were collected by others in Melbourne and he was able to bring some knowledge of the illicit drug trade into the negotiating process. At times he organised others in effecting steps in the supply of the drug in Melbourne. 82His Honour's conclusion was: "The involvement of the accused at the level of procurement, the nature of the discussions with his son at the time of procurement, the involvement of the offender in the collection of monies, his overseeing role at times and the provision of assistance to those effecting the transactions support the conclusion that, in those supplies that he was involved in, he was at the nucleus of the organisation of the supply." (ROS 36.9) 83The primary judge found that there were limitations when comparing the sentences imposed on OS1 and the applicant. His Honour referred to prosecutorial decisions as to the groupings of particular amounts of drug. In the case of OS1, the effect of the exercise of prosecutorial discretion was to group a number of supplies together so that they amounted to a charge of supplying "a large commercial quantity" of the drug. In the case of the applicant, the effect of the prosecutorial decision was to treat the two supplies as separate offences so that neither ever amounted to a "large commercial quantity". 84His Honour took into account as significant that included in the charges brought against OS1 was a completely separate but objectively serious offence of aggravated break enter and steal. The importance of that consideration was that it must have played a part in the application of the principle of totality when OS1 was sentenced. When applying the principle of totality, not only would the sentence for the aggravated break and enter have been adjusted downwards, but also the sentence for the "supply a large commercial quantity of drug" in Count 4. 85When considering the effect of the re-sentencing of OS1 by this Court, one needs to take into account the Court's reasons. Before any consideration of an increase in the discount arose, this Court decided that the start point for the sentences imposed was excessive in that insufficient weight had been given to the subjective circumstances of OS1 and because excessive weight had been given to the standard non-parole periods contrary to Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The applicant did not have the benefit of such considerations, in particular, the applicant's subjective case was significantly weaker. 86The difference between the subjective cases of OS1 and the applicant is stark. The applicant committed his offences while on parole for a serious offence of an almost identical kind, i.e. supplying a large commercial quantity of a prohibited drug (heroin). Not only was the breach of parole a separate aggravating feature but the previous conviction for such a serious offence while still on parole gave rise to the considerations identified in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 477 where the majority (Mason CJ, Brennan, Dawson, Toohey JJ) said: "14 ... The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 87This was an important difference between OS1 and the applicant and "constituted part of the qualitative and discretionary judgment required of the primary judge in drawing distinctions between co-offenders" referred to by the majority (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32]. 88It follows that there is no proper basis for the applicant having a justifiable sense of grievance by reference to the sentence imposed on OS1 when contrasted with the sentence imposed on him. This ground of appeal has not been made out. 89The orders which I propose are that leave to appeal be granted but that the appeal be dismissed. 90ROTHMAN J: I agree with Hoeben CJ at CL. 91R A HULME J: I agree with Hoeben CJ at CL. ********** 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: 17 October 2014