JAEGER, Adrian v R [2011] NSWCCA 11

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: JAEGER, Adrian v R [2011] NSWCCA 11 Hearing dates: 10 February 2011 Decision date: 10 February 2011 Before: Giles JA, RS Hulme J, Adams J Decision: Leave to appeal refused. Catchwords: Leave to appeal against sentence - grounds entirely without substance - leave refused with brief indication why. Cases Cited: R v Henry (1999) 46 NSWLR 346 Category: Principal judgment Parties: Adrian Jaeger - Appellant The Queen - Respondent Representation: Counsel: K Averre - Appellant V Lydiard - Respondent Solicitors: S O'Connor - Appellant S Kavanagh - Respondent File Number(s): CCA 2009/8113 Publication restriction: No Decision under appeal Before: Bozic DCJ File Number(s): DC 2009/8813

Judgment 1GILES JA: Section 5(1)(c) of the Criminal Appeal Act 1912 provides for appeal against sentence with the leave of the court. There may be cases in which the applicant's grounds of appeal can be seen after submissions as entirely without substance, in which case in my view it is appropriate to refuse leave to appeal, with a brief indication of why that is so, encapsulating what has emerged in the course of submissions. Despite the earnest submissions of Mr Averre, this is such a case. 2The first ground of appeal was a parity ground, complaining of the eighteen-month difference between the sentence imposed on the applicant and the sentence imposed on a co-offender. There were more than ample grounds for a difference between the sentences, and the extent of the difference, in the role of the applicant compared with that of the co-offender; the extensive criminal record of the applicant compared with that of the co-offender; a finding of limited prospects of rehabilitation in the applicant compared with a finding of very good prospects in the co-offender; and, although the sentencing judge did not refer to it at the time, the fact that the applicant was on a bond. 3The second ground was that the sentence was manifestly excessive, for which the applicant invited regard to the guideline in R v Henry (1998) 46 NSWLR 346. On regard to that guideline, there were considerable differences between the present case and the case generally attracting a sentence of four to five years, but they were overwhelmingly adverse to the applicant such that the sentence imposed was well within the range available to the sentencing judge. 4In my opinion, leave to appeal should be refused. 5HULME J: I agree. 6ADAMS J: I also agree. 7GILES JA: That will be the order of the court.