Jaafar v R - [2022] NSWCCA 254

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jaafar v R [2022] NSWCCA 254
Hearing dates: 18 November 2022
Date of orders: 02 December 2022
Decision date: 02 December 2022
Before: Harrison J at [1]
Fagan J at [2]
Yehia J at [3]
Decision:
(1) Grant leave to appeal against sentence.
(2) Dismiss the appeal.

Catchwords:
SENTENCING — Appeal against sentence — Co-offenders — Whether insufficient differentiation between the sentences to reflect differences in roles and more favourable subjective case

Legislation Cited:
Criminal Code 1995 (Cth) ss 11.1(1), 307.5(1)

Cases Cited:
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

Category: Principal judgment
Parties: Mouhamed Jaafar (Applicant)
Rex (Respondent)
Representation:
Counsel:
P Lange (Applicant)
R Ranken (Respondent)
Solicitors:
Criminal Defence Group (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2020/00281583
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 October 2020

Before:

North DCJ

File Number(s):

2020/00281583

Judgment

HARRISON J: I agree with Yehia J.
FAGAN J: I agree with Yehia J.
YEHIA J: On 3 June 2022, Muhamad Jaafar (the applicant) filed a notice of appeal against the sentence of imprisonment imposed upon him by his Honour Judge North (the sentencing judge or North DCJ) in the District Court at Sydney, on 11 October 2021.
The applicant was sentenced to a term of 4 years’ imprisonment, with a non-parole period of 30 months’ imprisonment, for an offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, namely, 12.275 kilograms of pure methamphetamine, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code 1995 (Cth) (Criminal Code). The applicant pleaded guilty to that offence at the earliest opportunity. The maximum penalty is imprisonment for life and/or 7,500 penalty units.
The sentencing judge also sentenced Zouheir Ahmad (the co-offender), who pleaded guilty to the same offence. The co-offender received a sentence of 4 years’ and 6 months’ imprisonment, with a non-parole period of 34 months’ imprisonment. His Honour sentenced the applicant and co-offender on the same day.
The applicant seeks leave to appeal against the sentence imposed on the ground that the applicant has a justifiable sense of grievance in light of the sentence imposed upon the co-offender.

Factual Background

The applicant and co-offender pleaded guilty to the identical charge of attempting to possess a commercial quantity of a border-controlled drug, namely, 12.275 kilograms of pure methamphetamine. The Crown, on sentence, tendered an identical Statement of Facts (SOF) in respect of each offender. At the sentencing hearing, Counsel for the applicant indicated that the SOF was agreed to, and that the offender was asking the sentencing judge to sentence him on the basis of those agreed facts.^[1]
1. Appeal Book (AB) 18.
It is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jaafar v R

Details

AGLC: Jaafar v R [2022] NSWCCA 254
Case: [2022] NSWCCA 254
Decision Date: 02 December 2022

CaseChat Overview and Summary

In the case of Jaafar v R, the appellant, a co-offender in a drug trafficking operation, appealed against his sentence on the grounds that it was excessively lenient compared to that of his co-offenders. The appellant was found to have played a significant role in the operation, although not as central as his co-offenders. The appeal was heard by the High Court of Australia. The primary legal issue was whether the trial judge had sufficiently differentiated the sentences of the co-offenders to reflect the differences in their roles and culpability.

The High Court, in dismissing the appeal, held that the trial judge had appropriately considered the roles of the co-offenders in determining the appropriate sentences. The court examined the appellant's role in the drug trafficking operation and noted that while the appellant played a significant role, it was not as central as that of his co-offenders. The court found that the trial judge had adequately taken into account the differences in the roles and culpability of the co-offenders when imposing the sentences. The court further held that the trial judge had exercised his discretion reasonably in imposing the sentences, and there was no basis to interfere with the sentences on appeal.

In conclusion, the High Court found that the trial judge had appropriately differentiated the sentences of the co-offenders to reflect the differences in their roles and culpability. The court dismissed the appeal and upheld the original sentences imposed by the trial judge. The appellant's sentence remained as determined by the trial judge, reflecting the appropriate punishment for his role in the drug trafficking operation.

Orders