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Court of Criminal Appeal 15 September 2003

R v Masoud Jaouhar

[2003] NSWCCA 266

Drugs
CRIMINAL LAW DRUG OFFENCES SENTENCE PARITY OFFENDER

Citation: R v Masoud Jaouhar [2003] NSWCCA 266
Court: New South Wales Court of Criminal Appeal
Date: 15 September 2003
Judge(s): Hidden J, Greg James J, Newman AJ

Background

The applicant, a young man aged 17 at the time of the offence and 18 at sentencing, pleaded guilty to knowingly taking part in the manufacture of a commercial quantity of methylamphetamine, an offence under the Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 20 years imprisonment. Police surveillance captured him on video assembling laboratory equipment, handling chemicals, and actively participating in a manufacturing operation at a residential premises in Minto. The estimated street value of the finished product was approximately one million dollars.

Goldring DCJ in the District Court sentenced the applicant to six years imprisonment with a non-parole period of three years, to be served in a Juvenile Justice Centre. The sentencing judge also took into account two additional minor drug offences on a Form 1, and noted that the applicant was in breach of a bond for robbery in company at the time of the offence.

Two co-offenders, Dani Khouri and Mohamed Sefian, were subsequently sentenced by the same judge to six years and nine months imprisonment with non-parole periods of four years. The applicant sought leave to appeal against the severity of his sentence, arguing primarily that the comparison with those sentences gave rise to a justified sense of grievance.

  • Whether the applicant's sentence was manifestly excessive when compared to sentences imposed on co-offenders, giving rise to a legitimate sense of grievance under the parity principle
  • Whether the sentencing judge gave adequate weight to the applicant's youth as a mitigating factor

Decision

The Court applied the parity principle as articulated by the High Court in Postiglione and Lowe, which requires appellate intervention where a disparity between sentences for co-offenders is such that a reasonable person would perceive it as unjust. The applicant received a shorter head sentence than his co-offenders (six years versus six years and nine months), and his non-parole period of three years represented a smaller proportion of his overall sentence than the non-parole periods imposed on Khouri and Sefian.

Newman AJ, with whom Hidden J and Greg James J agreed, found that the difference in sentence reflected the sentencing judge's deliberate and appropriate accounting for the applicant's youth. The applicant's breach of a conditional liberty order at the time of the offence was an aggravating factor that, absent youth, might have justified a higher sentence than those imposed on his co-offenders rather than a lower one.

The Court found no error in the sentencing judge's reasoning. The favourable Juvenile Justice report, the guilty plea, and evidence of head injuries affecting the applicant's general abilities were acknowledged as mitigating factors, but they did not render the sentence excessive in light of the objective seriousness of the offence. The discount of two years for the guilty plea was noted, though the Court observed that the applicant had been filmed committing the offence and the utilitarian value of the plea was therefore limited.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • The Court confirmed, to the extent necessary, that the whole of the non-parole period be served in a Juvenile Justice Centre

Key Takeaways

  • The parity principle, as affirmed in Postiglione and Lowe, requires a court to intervene where a sentencing disparity between co-offenders is such that a reasonable person would regard it as unjust, but a lower sentence for a younger offender does not automatically produce that outcome.
  • A sentencing judge's explicit recognition of a co-offender's youth, reflected in both a shorter head sentence and a proportionally smaller non-parole period, can be a sufficient and transparent basis for differentiation between co-offenders.
  • Where an applicant was in breach of conditional liberty at the time of a serious offence, that aggravating factor may counterbalance mitigating circumstances such as youth, meaning a sentence at or below co-offenders' sentences does not necessarily give rise to a grievance.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the utilitarian value of a guilty plea is reduced, though not eliminated, where an accused was captured committing the offence by surveillance equipment.
  • The Court confirmed the order that the non-parole period be served in a Juvenile Justice Centre, signalling attention to the proper custodial placement of young offenders even at the appellate stage.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)

Cases:
- Postiglione (1996-1997) 189 CLR 295
- Lowe (1984) 154 CLR 606
- R v Gordon (1994) 71 A Crim R 459