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Court of Criminal Appeal 21 April 2006

Majzoub v Regina

[2006] NSWCCA 128

Drugs
SENTENCE APPEAL MANIFESTLY EXCESSIVE PARITY OF SENTENCE NO LEGITIMATE SENSE OF GRIEVANCE.

Citation: Majzoub v Regina [2006] NSWCCA 128
Court: New South Wales Court of Criminal Appeal
Date: 21 April 2006
Judge(s): Hodgson JA, James J, Hoeben J

Background

The appellant pleaded guilty on indictment to three counts of supplying amphetamine for financial reward, contrary to the Drug Misuse and Trafficking Act 1985, following a series of undercover police purchases at Ashcroft in November 2004. The transactions involved small quantities of amphetamine sold for $50 or $100 each, totalling 1.2 grams seized from the appellant. He was arrested at the scene and had been in custody since 4 November 2004.

The sentencing judge in the District Court imposed a four-year term of full-time imprisonment, with a two-year non-parole period. His co-offender, who pleaded guilty to one supply count, received a three-year term served by way of periodic detention. The disparity between those outcomes formed the central grievance pursued on appeal.

The appellant was 25 years old at sentencing. He had a prior criminal record that included three drug supply offences and a history of driving whilst disqualified, with a cancelled periodic detention order previously converted to imprisonment.

  • Whether the sentence of four years' imprisonment (two-year non-parole period) was manifestly excessive in all the circumstances.
  • Whether the sentencing judge erred in failing to apply the parity principle, given the lesser sentence imposed on the co-offender.

Decision

The Court of Criminal Appeal rejected the manifestly excessive ground without detailed elaboration, finding no error in the sentencing judge's approach to the objective and subjective circumstances of the offending.

On parity, the Court identified several material differences between the appellant and his co-offender that justified the disparity in sentence. The co-offender faced only one supply count, whereas the appellant faced three. The sentencing judge accepted evidence that the co-offender's offending was out of character, and was impressed by his evidence and genuine resolve not to reoffend. The appellant did not benefit from equivalent subjective findings.

Critically, the co-offender had no prior criminal record. The appellant had prior drug supply convictions, which the Court held demonstrated a continuing pattern of disobedience of the law. Applying the principle from Veen v The Queen (No 2), the Court confirmed that prior convictions do not increase the severity of the current offence but can properly inform considerations of retribution, deterrence, and protection of society.

The Court concluded that no reasonable person looking objectively at both sentences would find a legitimate basis for the appellant's sense of grievance. The sentencing judge had plainly identified the distinguishing factors, and no appellate error was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle in sentencing requires that any disparity between co-offenders be justifiable by reference to differences in their objective criminality or subjective circumstances, not merely by the fact of difference alone.
  • A prior criminal record, including earlier drug supply convictions, can properly support a heavier sentence on grounds of retribution, deterrence, and community protection, even though prior convictions do not increase the gravity of the current offence itself.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a co-offender's lack of prior convictions, combined with strong evidence of rehabilitation prospects and out-of-character offending, are legitimate distinguishing factors for a sentencing judge.
  • No legitimate sense of grievance was established where the co-offender faced fewer counts, presented superior subjective circumstances, and had a clean record compared to the appellant.
  • Under the principle in Veen v The Queen (No 2) (1988) 164 CLR 465, prior convictions properly inform a sentencing court's assessment of what penalty is warranted for deterrence, even if they cannot be used to make the current offence appear more serious than it is.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Ilbay [2000] NSWCCA 251