Yousif v R

Case [2014] NSWCCA 180

Court of Criminal Appeal

New South Wales
Case Title: Yousif v R
Medium Neutral Citation: [2014] NSWCCA 180
Hearing Date(s): 06/08/2014
Decision Date: 12 September 2014
Before: Hoeben CJ at CL at [1]
Adamson J at [39]
Bellew J at [40]
Decision:

Leave to appeal granted.
Appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - offence or robbery in company contrary to s97(1) Crimes Act 1900 - co-offenders charged with same offence - different sentences imposed - whether unjustified disparity in sentences - significant difference in subjective cases of offenders - disparity in sentences justified by differences between co-offenders.
Legislation Cited: Crimes Act 1900 - s97(1)
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 463
Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
Kelso v R [2010] NSWCCA 34
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Jones (unreported, NSWCCA, 30 June 1994)
Wong v R [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Ali Yousif - Applicant
Regina - Respondent Crown
Representation
- Counsel: Counsel:
D O'Neil - Applicant
C Everson - Respondent Crown
- Solicitors: Solicitors:
SE O'Connor, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2012/70671
Decision Under Appeal
- Before: Craigie DCJ
- Date of Decision:  26 August 2013
- Court File Number(s): 2012/70671

JUDGMENT

  1. HOEBEN CJ at CL:

    Offence and sentence
    The applicant pleaded guilty to one count of robbery in company contrary to s97(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years.

  2. On 26 August 2013 he was sentenced by Craigie DCJ SC to imprisonment with a non-parole period of 2 years 1 month and 20 days to date from 23 September 2012 and expire on 11 November 2014 with an additional term of 2 years 1 month and 20 days to expire on 31 December 2016.

  3. The applicant seeks leave to appeal from that sentence on the following ground:

    The applicant has a justifiable sense of grievance due to the disparity in the sentence imposed upon the applicant and that imposed upon the co-offender.

    Factual Background

  4. At approximately 11pm on Sunday 5 February 2012 the complainant boarded a train from Wynyard to Parramatta. He was listening to music through his iPhone with headphones on and was carrying a backpack containing a number of personal items, a credit and debit card, a packet of cigarettes and approximately $180 in cash.

  5. At around 11.25pm while the train was somewhere between Strathfield and Lidcombe, he was approached by two males. One stood in front of him and the other stood beside him. The one who stood in front of him was the co-offender, Mahmoud Allam. The applicant was the person who stood beside him.

  6. Allam demanded cigarettes and the mobile phone from the complainant. When the complainant refused, he produced a knife, which appeared to be a domestic cooking knife, some 4 inches in length. The…

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AGLC
Yousif v R [2014] NSWCCA 180
Case
[2014] NSWCCA 180
Decision Date

CaseChat Overview and Summary

The appeal before the Court was brought by Yousif, who sought to appeal the sentence imposed by the primary judge. Yousif was charged with robbery in company under section 97(1) of the Crimes Act 1900. The appellant and his co-offender, Allam, were both convicted of the same offence but received different sentences. The appellant sought to appeal the sentence imposed on the ground that it was manifestly excessive and that the disparity between the sentences imposed on him and his co-offender was unjustified.

The central issue before the Court was whether the disparity in the sentences imposed on the appellant and his co-offender was justified. The appellant submitted that the sentencing judge had concluded that the conduct of Allam was of a higher level of seriousness than that of the appellant, but this was not reflected in the sentences imposed. The appellant argued that given the differences between him and Allam, the starting point for the sentence imposed on him should have been significantly lower than that of Allam.

The Court found that the principle of equal justice requires that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different. The Court noted that the doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law. The Court found that the appellant's argument that the starting point for the sentence imposed on him should have been significantly lower than that of Allam was not supported by the objective criteria required to assess the sense of grievance necessary to attract appellate intervention with respect to disparate sentences. The Court found that the differences between the appellant and Allam, such as age, background, criminal history, general character, and the part each played in the relevant criminal conduct or enterprise, justified the disparity in the sentences imposed.

The Court dismissed the appeal and affirmed the sentence imposed by the primary judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The applicant submitted that although the sentencing judge had concluded that the conduct of Allam was of a higher level of seriousness than that of the applicant, this was not reflected in the sentences imposed in that there was only a difference of 3 months in the starting point for the head sentences. The applicant submitted that given that Allam initiated the offence, produced a knife during the robbery, was in his mid twenties and did not have a disadvantaged background, the starting point for the sentence imposed on the applicant should have been significantly lower than the starting point for Allam so as to meet the principle of equal justice.Consideration The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 463 at [28]. The principle of equal justice requires as far as the law permits that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different: Green and Quinn at [28]; Wong v R [2001] HCA 64; 207 CLR 584 at 608; Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540. In Green and Quinn, the plurality (French CJ, Crennan and Kiefel JJ) said at [31] and [32]:"31 Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender." The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen:"the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.32 A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment."