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Court of Criminal Appeal 2 December 2022

Jaafar v R

[2022] NSWCCA 254

Drugs

Citation: Jaafar v R [2022] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 2 December 2022
Judge(s): Harrison J, Fagan J, Yehia J (all agreeing)

Background

The appellant pleaded guilty to attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, specifically 12.275 kilograms of pure methamphetamine, contrary to the Criminal Code 1995 (Cth). Both the appellant and a co-offender pleaded guilty to the identical charge at the earliest opportunity and were sentenced on the same day in the District Court at Sydney in October 2021.

The District Court sentenced the appellant to 4 years' imprisonment with a non-parole period of 30 months. The co-offender received 4 years and 6 months' imprisonment with a non-parole period of 34 months. Both received a 25% discount for the utilitarian value of their early guilty pleas. The maximum penalty for the offence is imprisonment for life and/or 7,500 penalty units.

The appellant sought leave to appeal on the basis that the difference between his sentence and the co-offender's was insufficient to reflect the differences in their roles and the appellant's more favourable subjective circumstances. In short, he argued the gap between the two sentences should have been larger.

  • Whether the sentencing judge failed to sufficiently differentiate between the sentences of the appellant and co-offender, having regard to differences in their respective roles in the offending.
  • Whether the appellant's more favourable subjective case (including lower risk of reoffending, limited criminal history, and stronger psychiatric and psychological evidence) warranted a greater sentencing disparity.
  • Whether the appellant had a justifiable sense of grievance arising from the sentence imposed relative to the co-offender's sentence.

Decision

The Court of Criminal Appeal upheld the sentence, finding no error in the sentencing judge's approach. The sentencing judge had carefully identified and addressed both the similarities and the differences between the two offenders, working through each relevant factor in turn.

On the question of relative culpability, the sentencing judge found the co-offender to be only slightly more culpable than the appellant. The co-offender had possession of the mobile phone used to facilitate the drug consignment and had some involvement in arranging the delivery, but that involvement was temporally limited. The Court accepted that this placed the co-offender only marginally higher in the criminal hierarchy. The appellant, for his part, had personally collected the consignments and provided a false name in doing so.

The sentencing judge also correctly identified meaningful differences in subjective circumstances. The appellant had a limited criminal record and a lower assessed risk of reoffending, while the co-offender had a more extensive criminal record, was on conditional liberty at the time of the offence (an aggravating factor), and was assessed as presenting a low-to-moderate risk of reoffending. Both had demonstrated some contrition and prospects of rehabilitation.

The Court of Criminal Appeal concluded that the sentencing judge was alive to all relevant distinctions and that the resulting sentencing gap was appropriate. No justifiable sense of grievance arose, and no greater disparity was warranted.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence appeal based on co-offender disparity requires the appellant to establish a "justifiable sense of grievance," not merely a preference for a larger gap between sentences.
  • Where a sentencing judge expressly identifies and works through the similarities and differences between co-offenders, an appellate court is unlikely to find error simply because the resulting disparity appears modest.
  • Differences in criminal history, conditional liberty at the time of offending, and assessed risk of reoffending are all legitimate bases for differentiating sentences between co-offenders charged with identical offences.
  • In dismissing the appeal, the Court treated the co-offender's possession of the facilitation phone and the appellant's use of a false name as factors that, taken together, left the two offenders only marginally separated in terms of moral culpability.
  • An otherwise more favourable subjective case, including stronger psychiatric evidence and lower recidivism risk, does not automatically translate into a materially greater sentencing discount if the sentencing court has already given those matters proper weight.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 11.1(1) and 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