Jaime Felipe Paredes v The Queen - [2012] NSWCCA 4

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jaime Felipe PAREDES v R [2012] NSWCCA 4
Hearing dates: 5 December 2011
Decision date: 07 February 2012
Before: Meagher JA at [1]
Hoeben J at [2]
Rothman J at [3]
Decision:
(i) Leave to appeal granted;
(ii) Appeal dismissed.

Catchwords: APPEAL - CRIMINAL LAW - Alleged disparity between co-offenders - principles discussed - no justifiable sense of grievance, objectively determined - appeal dismissed.
Cases Cited: Dwayhi v R; Bechara v R (2011) 205 A Crim R 274
Green v The Queen; Quinn v The Queen [2011] HCA 49
Gurney v R; Willetts v R [2011] NSWCCA 48
House v R [1936] HCA 40; (1936) 55 CLR 499
Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
Ng v R [2011] NSWCCA 227
R v Nguyen; R v Pham (2010) 205 A Crim R 106
Rae v R [2011] NSWCCA 211
Category: Principal judgment
Parties: Regina (respondent)
Representation: G. Nicholson QC (for the appellant)
MM Cinque (for the respondent)
Proctor & Associates (for the appellant)

File Number(s): 2009/2620005
Decision under appeal

Date of Decision:

2011-03-18 00:00:00

Before:

Freeman DCJ

File Number(s):

2009/2620

Judgment

MEAGHER JA: I agree with Rothman J for the reasons he gives that leave to appeal should be granted and that the appeal against sentence be dismissed.

HOEBEN J: I agree with Rothman J.

ROTHMAN J: Jaime Felipe Paredes was charged with knowingly taking part in the supply of a prohibited drug, namely, methylamphetamine, approximately, but less than, 1 kg and not less than a commercial quantity. The date of the offence was between 26 February 2008 and 28 March 2008. Mr Paredes pleaded guilty (on the first day of trial) and was sentenced by Freeman DCJ on 18 March 2011.

Mr Paredes was sentenced to a term of imprisonment for a non-parole period of four years and six months commencing on 27 March 2008, with a balance of term of a further three years to expire on 26 September 2015. Mr Paredes seeks to appeal on the sole ground of lack of parity with co-offenders.

Facts

As already stated, Mr Paredes pleaded guilty on the first day of trial. Notwithstanding the plea of guilty (or because of it) there was, thereafter, a factual contest in relation to that which was to form the basis for sentencing.

An appeal based upon lack of parity assumes, at least for the purpose of that argument, that no other error, identifiable or manifest, is disclosed by the remarks on sentence or the outcome of the exercise of discretion by the sentencing judge. Of necessity, that requires an acceptance of the findings of fact by the sentencing judge, except, perhaps, on the question of the relative culpability of the co-offenders. The applicant, through his counsel, expressly conceded the correctness of the facts set out in the sentencing judge's remarks on sentence.

The sentence proceedings in relation to each of the relevant co-offenders were conducted at the…

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.

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Details

Case: [2012] NSWCCA 4
Decision Date: 07 February 2012

CaseChat Overview and Summary

The appellant, Jaime Felipe Paredes, sought to appeal against his conviction and sentence for his involvement in a significant drug trafficking operation. The matter was heard in the High Court of Australia. The central issue before the court was whether there existed a disparity between the appellant's sentence and that of his co-offenders, and if such a disparity was unjust, whether it warranted an intervention by the court. The court was required to consider the principles of sentencing, particularly the notion of disparity between co-offenders, and assess whether the appellant's sentence was disproportionate given the circumstances.

The court considered the principles established in previous cases concerning the disparity between co-offenders. It held that a disparity in sentences does not automatically render a sentence unjust, and that the court must consider the totality of the circumstances of each case. The court also examined whether the appellant had a justifiable sense of grievance concerning the disparity, which must be assessed objectively. After a thorough analysis, the court determined that the appellant did not have a justifiable sense of grievance regarding the disparity in sentences and that the sentencing judge had appropriately considered the principles of sentencing equality and proportionality.

The High Court concluded that the appellant's appeal was without merit. The court found that the sentencing judge had correctly applied the principles of sentencing and that there was no basis for the court to interfere with the sentence imposed. The appeal was dismissed, and the original conviction and sentence remained intact.

Orders