R v Jammas [2002] NSWCCA 329

New South Wales Court of Criminal Appeal

CITATION : R v Jammas [2002] NSWCCA 329 FILE NUMBER(S) : CCA 60852/01 HEARING DATE(S) : 1 August 2002 JUDGMENT DATE : 1 August 2002

PARTIES : Regina Ali Jammas JUDGMENT OF : Sperling J at 1, 13; Greg James J at 12

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0384 LOWER COURT JUDICIAL Taylor DCJ OFFICER :

COUNSEL : Ms D M Woodburne for the Crown Mr G D Wendler for the Applicant SOLICITORS : Mr S E O'Connor for the Director of Public Prosecutions Proctor & Associates for the Applicant CATCHWORDS : Criminal Law - application for leave to appeal against sentence - no question of principle DECISION : 1. Application for leave to appeal granted; 2. Appeal dismissed.

- 3 -IN THE COURT OF CRIMINAL APPEAL 60852/01

Sperling J Greg James J

Thursday, 1 August 2002 R v Ali Jammas Judgment 1 Sperling J: The applicant seeks leave to appeal against the sentence imposed upon him by Taylor DCJ sitting in the District Court at Sydney on 23 November 2001. The applicant had pleaded guilty to one count of receiving for which the maximum penalty is ten years' imprisonment. 2 The applicant was apprehended with his co-offender on 25 April 2000, one Robert Maher. The goods received consisted of a quantity of cigarettes with a retail value of $89,000. 3 The sentencing judge described the objective criminality of the two men as similar. His Honour did not indicate that one rather than the other was guilty on a higher level of criminality. I would construe what his Honour said in that regard to mean that, in his Honour's opinion, the objective criminality of the two men was materially the same. On the material before the Court that is the case. 4 The applicant asked the court to take into account on sentence five other offences of receiving, involving cigarettes with a retail value of $71,960. These offences were committed during a period preceding the offence charged, between 6 and 20 April 2000. 5 On 26 October 2000, Mr Maher was sentenced by Williams DCJ to imprisonment for a term of two years and six months with a non-parole period of one year. The sentence in the present case was a term of imprisonment of three years with a non-parole period of one year and eight months. 6 The applicant seeks leave to appeal on the ground that Taylor DCJ failed to implement the principle of parity referable to the sentence imposed on the applicant's co-offender. 7 Mr Maher had a significantly worse criminal history. The applicant's argument is that the additional offences taken into account in relation to the applicant were offset by Mr Maher's worse criminal history and, accordingly, the applicant has a legitimate sense of grievance in having received a sentence so much more severe than that imposed on Mr Maher. 8 The argument should not be accepted. A criminal history can preclude leniency otherwise available. On the other hand, other offences taken into account go to the total criminality for which the offender is to be sentenced, subject only to the maximum penalty for the offence charged. In this case, the other offences significantly increased the value of the property involved and demonstrated a course of planned criminal conduct over a period of some weeks prior to the offence charged. The degree of criminality was correspondingly higher. 9 The sentencing judge knew of Mr Maher's sentence and appreciated that he was bound to observe the principle of parity. 10 In view of the considerations to which I have referred, the relativity between the two sentences was not inappropriate and the present applicant has no legitimate sense of grievance arising from the difference between them. 11 I would grant the application for leave to appeal but dismiss the appeal. 12 Greg James J: I agree. 13 Sperling J: The orders of the court will be as I proposed. -oOo-