Citation: Jules v R [2007] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 10 August 2007
Judge(s): Giles JA, Latham J, Mathews AJ
Background
The applicant was one of five men who arrived in Sydney on the same flight from Singapore in November 2003, each carrying cocaine internally. The applicant had swallowed 100 pellets containing approximately 396 grams of pure cocaine after being recruited in Singapore with a promise of US$10,000. He was detained at Sydney Airport, taken to hospital, and over several days passed the pellets.
All five co-offenders pleaded guilty. In September 2004, the District Court sentenced four of them, including the applicant, to seven years imprisonment with a non-parole period of four years and four months. The sentencing judge treated the co-offenders on a parity basis, reasoning that each had ingested or secreted as much cocaine as he was physically capable of carrying.
After sentencing, two co-offenders successfully appealed and had their sentences reduced on disparity grounds. The applicant then sought leave to appeal his own sentence, arguing that those reductions had now created a fresh disparity in his favour, and separately that a change in Corrective Services classification policy had materially worsened his custodial conditions and should reduce his non-parole period.
Legal Issues
- Whether the successful sentence reductions obtained by two co-offenders on disparity grounds themselves created a disparity warranting a reduction in the applicant's sentence
- Whether a subsequent change to Corrective Services classification policy, which restricted the applicant's access to rehabilitation programmes, was a matter the Court could or should take into account on appeal
Decision
On the disparity ground, the Court noted the history carefully. Two co-offenders had their sentences reduced after the Court of Criminal Appeal found those sentences were out of step with the sentence imposed on a fifth co-offender (PP), who had been sentenced earlier. In each of those earlier appeals, the Court had accepted that PP's sentence was the appropriate comparator. Having done so, the Court was not then required to use the reduced sentences of the two successful appellants as a new benchmark for the remaining co-offenders.
The Court held that no unjustifiable disparity arose for the applicant. The sentences he and his remaining co-offenders received were consistent with that of PP and with the reasoning of the earlier appeals. A sentence cannot be successively ratcheted downward simply because other co-offenders have obtained reductions on grounds that do not apply equally to everyone.
On the Corrective Services classification ground, the applicant argued that a policy change introduced in March 2006 had returned him from a C2 to a C1 classification, limiting his access to rehabilitation programmes. The Court rejected this argument. Administrative classification policies are subject to change, and no such policy existed at the time of sentencing. The sentencing judge had already acknowledged, consistently with established authority, that a foreign national who deliberately comes to Australia to commit a serious crime has limited grounds to complain about the conditions of his incarceration. The Court confirmed that Corrective Services classification policies do not, in the ordinary course, constitute a relevant matter on sentence, and a post-sentence change of policy was not something the Court of Criminal Appeal could take into account on appeal.
Orders Made
- Time for leave to appeal extended
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- Where co-offenders obtain sentence reductions on disparity grounds, those reduced sentences do not automatically become the new baseline for other co-offenders who were not party to those appeals.
- The Court of Criminal Appeal confirmed that the relevant question in a disparity argument is whether an unjustifiable difference exists, not whether any difference exists.
- Corrective Services classification policies, and changes to those policies after sentencing, do not ordinarily constitute a relevant factor on sentence.
- No error was established in the original sentencing judge's approach to the applicant's circumstances as a foreign national, which was consistent with the principle that a person who deliberately travels to Australia to commit a serious offence has limited grounds to complain about custodial conditions.
- In dismissing the appeal, the Court reinforced that parity principles operate by reference to a coherent group analysis, not by mechanical comparison to whichever co-offender happens to have obtained the most recent reduction.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth)
- Customs Act 1901 (Cth), s 233B
Cases:
- King v Regina [2006] NSWCCA 110
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v PP [2005] NSWCCA 214