AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 20 September 2017

Jaafar v R

[2017] NSWCCA 223

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE CONCESSION OF ERROR BY THE CROWN SENTENCE CONSIDERATION OF PARITY OF CO OFFENDER’S SENTENCES

Citation: Jaafar v R [2017] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 20 September 2017
Judges: Hoeben CJ at CL, Price J, Lonergan J

Background

The applicant pleaded guilty in the District Court to one charge of conspiring with several co-offenders to import a commercial quantity of cocaine into Australia. The conspiracy involved shipping 123.4 kilograms of pure cocaine from South America, dissolved in an aqueous ethanol solution and concealed within 499 of approximately 10,800 wine bottles. The estimated wholesale value of the cocaine ranged between $25 million and $35 million per kilogram at 88 per cent purity.

The applicant played a central role in the scheme. He travelled to Argentina in connection with the conspiracy, funded customs and logistics charges, directed associates involved in handling the shipment, and coordinated the planned extraction of the cocaine. The applicant was arrested in December 2012 after the AFP conducted a controlled operation, substituting the cocaine with an inert substance and monitoring the conspirators over several months.

The District Court sentenced the applicant to 18 years and 6 months imprisonment, with a non-parole period of 11 years, applying a 25 per cent discount for his early guilty plea. The applicant sought leave to appeal that sentence.

  • Whether the sentencing judge erred by failing to apply the instinctive synthesis approach required in federal sentencing
  • Whether the applicant's knowledge of the precise quantity of cocaine was relevant to the exercise of sentencing discretion on re-sentence
  • Whether a disparity between the applicant's sentence and that of a co-offender (Rodriguez) gave rise to a justifiable sense of grievance, warranting reduction
  • Whether the hardship to the applicant's family was of the kind that could operate to reduce the sentence
  • Whether the applicant's past and indicated future assistance to police warranted a lesser sentence

Decision

The Crown conceded that the sentencing judge had erred by failing to apply the instinctive synthesis approach to sentencing, as required by the High Court in Markarian v The Queen. This approach requires a sentencing court to weigh all relevant factors and arrive at an appropriate sentence as a whole, rather than mechanically adding or subtracting from a starting point. That concession was accepted, leave to appeal was granted, and the Court of Criminal Appeal proceeded to re-sentence the applicant.

On re-sentence, the Court gave chief weight to general deterrence, consistent with the authorities governing large commercial drug importations. The Court acknowledged the objective gravity of the offence, its sophisticated international character, and the immense potential financial rewards involved. The maximum penalty for the offence is life imprisonment.

The Court found that the sentence imposed on co-offender Rodriguez created a marked disparity that would give the applicant a justifiable sense of grievance under the parity principle. However, because the Court regarded Rodriguez's sentence as itself erroneously lenient, it was not obliged to reduce the applicant's sentence to that level. Given the objective gravity of the offending and the life imprisonment maximum, the scope for reduction was limited, and the Court reduced the head sentence by one year only. The non-parole period was left unchanged, with the Court noting that any reduction would amount to an affront to the proper administration of justice.

The Court accepted that the applicant's family circumstances, while genuine, reflected the ordinary consequences of a lengthy custodial sentence rather than hardship of a kind sufficient to reduce the sentence. Hoeben CJ at CL noted some reservation about describing the relevant principle in overly rigid terms, but agreed on the outcome. The Court also accepted the applicant's remorse and contrition, and acknowledged his guilty plea as a relevant factor.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Madgwick QC ADCJ quashed
  • Applicant re-sentenced to 17 years and 6 months imprisonment, commencing 6 December 2012 and expiring 5 June 2030, with a non-parole period of 11 years expiring 5 December 2023

Key Takeaways

  • The Court of Criminal Appeal confirmed that a failure to apply the instinctive synthesis approach in sentencing constitutes an error warranting appellate intervention, consistent with Markarian v The Queen and Green v The Queen.
  • Under the parity principle, a marked disparity between co-offenders' sentences may give rise to a justifiable sense of grievance, but the appellate court is not required to reduce a sentence to a level it considers erroneously lenient in the co-offender's case.
  • Family hardship arising from the ordinary consequences of a lengthy custodial term does not, of itself, operate to reduce an otherwise appropriate sentence on re-sentence.
  • General deterrence carries chief weight in sentencing for large-scale commercial drug importation conspiracies, particularly where the operation is sophisticated and the potential financial reward is immense.
  • Where the objective gravity of an offence is very high and the maximum penalty is life imprisonment, the scope for sentence reduction on parity grounds remains limited even where a justifiable sense of grievance is established.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2), 16A(2)(f), 16A(2)(g), 16A(2)(p), 16AC(1), 16AC(2)
- Criminal Code (Cth), ss 11.5(1), 307.1(1)

Cases
- Elshani v R (2015) 255 A Crim R 488; [2015] NSWCCA 254
- Garcia v R [2013] NSWCCA 241
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Ilbay [2000] NSWCCA 251
- R v Kollas and Mitchell [2002] NSWCCA 491
- R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64