Citation: Jehad Jodeh v R [2011] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 29 August 2011
Judges: McClellan CJ at CL, Johnson J, McCallum J
Background
The appellant pleaded guilty in the District Court to three counts of armed robbery (contrary to s 97(2) of the Crimes Act 1900) and one count of maliciously inflicting grievous bodily harm (contrary to s 35(1)(b)). The offences were committed between October 2006 and September 2007, when the appellant was aged 18 to 19 and had no prior criminal history.
The offences involved two cash-in-transit robberies carried out with a co-offender who wielded a loaded revolver, a serious group assault on a nightclub doorman causing a punctured lung, fractured ribs, and other significant injuries, and a fourth armed robbery committed while the appellant was on bail. The District Court imposed an aggregate effective sentence of 16 years imprisonment with a non-parole period of 11 years.
The appellant sought leave to appeal against the severity of that sentence. The principal argument on appeal was that the accumulation of individually appropriate sentences produced an aggregate that was manifestly excessive, particularly in light of the appellant's youth, lack of prior convictions, and the circumstances surrounding his offending.
Legal Issues
- Whether a motorbike accident that preceded the offending, and the drug addiction it allegedly caused, reduced the appellant's moral culpability for the offences
- Whether the sentences imposed were inconsistent with those imposed on the co-offender, giving rise to a parity ground
- Whether any extra-curial punishment suffered by the appellant warranted a reduction in sentence
- Whether a reduced civil damages claim for future loss of earnings (resulting from the prison sentence) was a relevant sentencing consideration
- Whether the degree of accumulation between the individually appropriate sentences produced an aggregate sentence that was manifestly excessive
Decision
McCallum J (with whom McClellan CJ at CL and Johnson J agreed) dismissed each of the grounds of appeal other than the final one concerning the aggregate sentence.
On the motorbike accident, the Court accepted that a 17-year-old might handle serious injury with less maturity than an older person, but rejected the proposition that the accident and resulting drug addiction removed the appellant's responsibility for his choices. The offending remained serious and deliberate, and any causal link between the accident and the crimes did not significantly reduce his culpability.
The parity, extra-curial punishment, and civil damages grounds were each rejected. The Court found no meaningful inconsistency with the co-offender's sentence that would justify intervention, no established extra-curial punishment beyond ordinary hardships of custody, and no support in principle for treating a reduced civil claim for future earnings as a relevant sentencing factor.
On the aggregate sentence, the Court found that while each individual sentence was appropriate and some accumulation was plainly warranted, the combined effect of 11 years' non-parole period was likely to have a crushing effect on a young man with no prior convictions encountering the criminal justice system for the first time. On that ground alone, the Court held the aggregate was manifestly excessive and re-sentenced the appellant, bringing forward the commencement dates of the later sentences to reduce the total effective non-parole period.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentences imposed at first instance quashed
- Re-sentenced as follows:
- Count 1 (armed robbery): fixed term of 4 years, commencing 24 September 2007, expiring 23 September 2011
- Count 2 (armed robbery): fixed term of 4 years and 6 months, commencing 24 September 2008, expiring 23 March 2013
- Count 3 (malicious GBH): fixed term of 2 years, commencing 24 September 2011, expiring 23 September 2013
- Count 4 (armed robbery): 10 years imprisonment with a non-parole period of 5 years, commencing 24 September 2011, expiring 23 September 2016; balance of term of 5 years expiring 23 September 2021
Key Takeaways
- A pre-offence accident and resulting drug addiction may be accepted as contextual background, but the Court of Criminal Appeal confirmed that such circumstances do not, of themselves, displace an offender's moral responsibility for serious deliberate crimes.
- Where individual sentences are each appropriate, a sentencing court must still consider whether the accumulated total produces an outcome that is manifestly excessive, particularly when an offender is young and appearing before the criminal justice system for the first time.
- Parity arguments require a demonstrated, unjustifiable disparity between co-offenders in materially similar positions. The Court found no such disparity on the facts here, noting differences in the roles and circumstances of each offender.
- No principle supports reducing a sentence on the basis that a civil damages claim for future loss of earnings has been reduced as a consequence of the custodial term itself.
- In allowing the appeal, the Court reduced the aggregate non-parole period by adjusting commencement dates rather than altering the length of individual sentences, preserving findings about the seriousness of each individual offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(1)(b), 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
Cases:
- R v Baghdadi [2008] NSWCCA 239
- R v Dunn [2004] NSWCCA 346
- R v Hannigan (2009) 193 A Crim R 399
- R v Henry (1999) 46 NSWLR 346
- Hristovski v R [2010] NSWCCA 129
- Kelly v R (1992) 33 FCR 536
- R v MAK (2006) 167 A Crim R 159
- Postiglione v R (1997) 189 CLR 295
- R v Rossi (Court of Criminal Appeal SA, 20 April 1988, unreported)