Citation: R v Jammas [2002] NSWCCA 329
Court: NSW Court of Criminal Appeal
Date: 1 August 2002
Judge(s): Sperling J, Greg James J
Background
The applicant pleaded guilty in the District Court to one count of receiving stolen goods, specifically a quantity of cigarettes with a retail value of $89,000. He was apprehended alongside a co-offender on 25 April 2000. He also asked the sentencing court to take into account five additional receiving offences involving cigarettes worth approximately $71,960, committed over a two-week period before the main offence.
Taylor DCJ sentenced the applicant to three years' imprisonment with a non-parole period of one year and eight months. His co-offender had earlier been sentenced by a different judge to two years and six months' imprisonment with a non-parole period of one year. The sentencing judge regarded the objective criminality of the two men as materially the same.
The applicant sought leave to appeal, arguing that the more severe sentence he received was unfair given this parity assessment, particularly because his co-offender had a significantly worse criminal history.
Legal Issues
- Whether the sentencing judge failed to properly apply the parity principle when sentencing the applicant relative to his co-offender
- Whether a co-offender's worse criminal history can offset additional offences taken into account against the applicant, such that the resulting sentences should be closer in length
Decision
The Court accepted that the parity principle applied and that the sentencing judge was aware of and bound by it. However, the Court rejected the applicant's core argument that the co-offender's worse criminal history effectively cancelled out the significance of the five additional offences taken into account against the applicant.
Sperling J drew a clear distinction between the role of criminal history and the role of additional offences taken into account. A poor criminal history may preclude leniency that would otherwise be available to an offender. By contrast, offences taken into account bear directly on the total criminality for which an offender is being sentenced, subject to the maximum penalty for the charged offence.
In this case, the additional offences meaningfully increased the total value of stolen property involved and demonstrated a planned course of criminal conduct over several weeks. This elevated the applicant's overall criminality beyond that of his co-offender in a way that justified the more severe sentence. The Court found that the relativity between the two sentences was not inappropriate and that the applicant had no legitimate sense of grievance.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that a co-offender's worse criminal history and an applicant's additional offences taken into account operate differently in sentencing and are not simply interchangeable factors that cancel one another out.
- A criminal history affects the degree of leniency available to an offender but does not increase the offender's objective criminality for the current proceedings.
- Additional offences taken into account do increase the total criminality being sentenced, particularly where they reveal a pattern of planned offending and increase the scale of the wrongdoing.
- In dismissing the appeal, the Court found that no legitimate sense of grievance arose from the sentencing disparity, because the difference in sentences was explained by the difference in total criminality.
- The parity principle does not require identical sentences for co-offenders assessed as having similar objective criminality; it requires that differences in sentence be explicable by genuine differences in the circumstances of each offender.
Legislation and Cases Referenced
Legislation: None cited in the judgment text.
Cases: No specific cases cited by name in the judgment text. The parity principle was applied as a general sentencing principle without reference to named authorities.