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Jimmy v R

Jimmy v R

Case [2010] NSWCCA 60 9 April 2010

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Reported Decision: 269 ALR 115240 FLR 27240 FLR 2777 NSWLR 540

New South Wales

Court of Criminal Appeal

CITATION: JIMMY v REGINA [2010] NSWCCA 60

HEARING DATE(S): 17 November 2009

JUDGMENT DATE:
9 April 2010

JUDGMENT OF: Campbell JA at 1; Howie J at 244; Rothman J at 252

DECISION: Leave to appeal granted.
Appeal dismissed.

CATCHWORDS: PROCEDURE - precedents - decisions of particular courts - review of court's previous decisions - effect of Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 in relation to when a court may depart from its own previous decisions - CRIMINAL LAW - SENTENCE - relevant factors - the parity principle - the types of people whose sentences can be compared under the parity principle - parity between co-offenders - parity between participants in a criminal enterprise - CRIMINAL LAW - APPEAL AND NEW TRIAL - appeal against sentence - grounds for interference - the parity principle - CRIMINAL LAW - particular offences - financial transaction offences - money laundering

LEGISLATION CITED: Australian Constitution
Canadian Charter of Rights
Crimes Act 1900
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Customs Act 1901 (Cth)
Drug Misuse and Trafficking Act 1985
Financial Transaction Reports Act 1988 (Cth)
Misuse of Drugs Act 1981 (WA)
Proceeds of Crime Act 1987 (Cth)
United States Constitution

CASES CITED: Alex Mihailovic v The Queen (High Court of Australia, 3 February 1994, noted [1994] 1 Leg Rep page C3)
Andrews v Law Society of British Columbia [1989] 1 SCR 143
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Bowtell v The Queen [2004] NSWCCA 17
Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
El Hassan v The Queen [2003] NSWCCA 252
Ellis v The Queen (1993) 68 A Crim R 449
Em v The Queen [2006] NSWCCA 336
Farah Constructions Pty Ltd v Say Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
FS v R [2009] NSWCCA 301
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
HAN, Zhi Qiang v R [2009] NSWCCA 300
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330
Hudson v The Queen [2009] NSWCCA 59
John v Federal Commissioner of Taxation (1989) 166 CLR 417
Jones v The Queen (1993) 67 ALJR 376
Jones, (NSWCCA, 16 April 1992, unreported)
Kardoulias v The Queen [2005] NSWCCA 456; (2005) 159 A Crim R 252
Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337
Kauwenberghs v The Queen [2008] NSWCCA 98; (2008) 186 A Crim R 197
Krakouer v R [1999] WASCA 147; (1999) 107 A Crim R 408
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Markisic v Commonwealth of Australia [2007]…

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 Jimmy v R

Details

AGLC: Jimmy v R [2010] NSWCCA 60
Case: [2010] NSWCCA 60
Decision Date: 9 April 2010

CaseChat Overview and Summary

The appellant, Jimmy, was convicted of various money laundering offences and sentenced to imprisonment by the County Court. The primary legal issues revolved around the application of the parity principle in sentencing and whether the trial judge had erred in not considering certain precedents and decisions of particular courts. The appellant argued that the trial judge should have compared his sentence with that of a co-offender and other participants in the criminal enterprise, in light of the precedents from the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd and Farah Constructions Pty Ltd v Say-Dee Pty Ltd.

The court examined the principles governing the application of the parity principle in sentencing. It noted that the parity principle requires a comparison between the sentences of co-offenders or participants in a criminal enterprise to ensure that similar conduct is similarly punished. However, the court found that the trial judge had adequately considered the relevant factors, including the nature and circumstances of the offence, the appellant's role, and the need for deterrence and denunciation. The court concluded that the trial judge had not erred in not comparing the appellant's sentence with that of others, as the circumstances of the case did not warrant such a comparison. The court also rejected the appellant's argument that the trial judge should have considered certain precedents and decisions of particular courts, finding that these cases were not directly applicable to the circumstances of the appellant's case.

The appeal against sentence was dismissed. The court found that the trial judge had appropriately considered the relevant factors in imposing the sentence and had not erred in applying the parity principle. The court emphasised the importance of ensuring that sentences are proportionate to the gravity of the offence and the circumstances of the offender, while also considering broader societal factors such as deterrence and denunciation. The court's decision underscored the need for trial judges to exercise their discretion carefully and to provide clear reasons for their sentencing decisions.

Orders