Citation: Jaafar v R [2022] NSWCCA 254
Court: Court of Criminal Appeal
Date: 2 December 2022
Judge(s): Harrison J, Fagan J, Yehia J
Background
The applicant pleaded guilty to attempting to possess a commercial quantity of unlawfully imported methamphetamine, specifically 12.275 kilograms of pure methamphetamine, contrary to the Criminal Code 1995 (Cth). He was sentenced in the District Court alongside a co-offender who pleaded guilty to the identical charge on the same agreed facts. Both men were involved in accepting a controlled delivery of drug-laden consignments, transporting them to premises in Kogarah, and attempting to force open the concealed shafts containing the drugs.
The sentencing judge imposed four years' imprisonment with a non-parole period of 30 months on the applicant, and four years and six months' imprisonment with a non-parole period of 34 months on the co-offender. The applicant sought leave to appeal, contending that the four-month differential in non-parole periods was insufficient to reflect his lesser role and more favourable subjective circumstances.
Legal Issues
- Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence and that of the co-offender, invoking the parity principle in sentencing.
- Whether the sentencing judge gave adequate weight to the differences in the offenders' roles, levels of knowledge, criminal histories, and subjective circumstances when determining the degree of differentiation between the sentences.
Decision
Ground: Parity and Justifiable Sense of Grievance
The Court of Criminal Appeal rejected the appeal. Yehia J (with Harrison J and Fagan J agreeing) held that the disparity between the two sentences was well within the bounds of the qualitative and discretionary judgments open to the sentencing judge, and that the points of differentiation relied upon by the applicant did not warrant a greater disparity (at [44]).
The Court acknowledged that the co-offender possessed the mobile phone used to facilitate the importation, and that he had earlier awareness of the contents of the consignment than the applicant. However, both offenders were involved in the enterprise for one day only, and the co-offender's earlier knowledge could only have preceded the applicant's by a matter of hours, given the sentencing judge's finding that the applicant had acquired equivalent knowledge by at least 2:55pm on the day of arrest (at [45]). The co-offender's possession of the phone placed him only barely above the applicant in the hierarchy of the enterprise (at [45]).
The Court noted that, while the applicant's criminal record was more favourable and his risk of reoffending was assessed as low compared to the co-offender's low-to-moderate risk, the sentencing judge was alive to all these differences and addressed each in turn (at [51]-[52]). Sentencing is not a mathematical exercise, and pointing to differences between co-offenders' subjective cases does not of itself establish a justifiable sense of grievance (at [40], [42]). The sentencing judge correctly assessed the applicant's moral culpability as only slightly less than that of the co-offender, and no greater disparity was warranted (at [52]).
The Court also noted the significance of the fact that the same judge sentenced both offenders, placing that judge in an advantageous position to assess the interrelationship between the objective and subjective features of each case in an overarching way (at [43]).
Orders Made
- Leave to appeal against sentence granted.
- Appeal dismissed.
Key Takeaways
- The parity principle requires more than identifying some difference between co-offenders' subjective circumstances; the question is whether the sentencing discretion miscarried, not merely whether an appellate court would have imposed a different sentence (at [42]).
- Where the same judge sentences two co-offenders together, that judge is particularly well placed to assess the interrelationship between their objective and subjective features, and appellate courts will give weight to that advantage (at [43]).
- A co-offender's earlier knowledge of criminal purpose, where that temporal difference amounts to only a matter of hours within a single day of involvement, may justify only a modest upward differentiation in sentence rather than a substantial one (at [45]).
- In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing is a process of intuitive synthesis, not a mathematical calculation, and that a moderate differential between co-offenders can be entirely appropriate even where multiple subjective factors favour the appellant (at [40], [44]).
- No justifiable sense of grievance arose where the sentencing judge expressly addressed each point of difference between the co-offenders and calibrated the sentences accordingly, including by extending leniency to the applicant for his negligible criminal record while treating the co-offender's record and conditional liberty as aggravating factors (at [30], [48], [52]).
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth) ss 11.1(1), 307.5( 1)
Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Huckstadt v R [2016] NSWCCA 22
- Lee v R [2021] NSWCCA 318
- Moran v R [2022] NSWCCA 217