Jaafar v R [2017] NSWCCA 223

Jaafar v R [2017] NSWCCA 223

The sentencing judge committed an error by not employing the instinctive synthesis method required for sentencing and by engaging in a two-tier approach. This error, conceded by the Crown, required the appellate court to re-sentence the applicant. While there were material differences between the applicant and his co-offender Rodriguez, the unjustified starting point disparity of six years gave rise to a justifiable sense of grievance, justifying a reduction of the sentence by one year. The applicant's knowledge of a substantial quantity of cocaine was proven beyond reasonable doubt, but the impact on his family did not amount to exceptional hardship.

Jurisdiction
Australia
Judgment Date
20 September 2017
Procedural Posture
Criminal Appeal / Appeal Against Sentence, Re Sentencing
Outcome
Appeal allowed; re-sentenced
Legal Topics
['sentence Appeal' 'conspiracy to Import Border Controlled Drug' 'instinctive Synthesis Approach' "parity of Co Offenders' Sentences" 'knowledge of Drug Quantity' 'exceptional Hardship' 'assistance to Police']
['criminal Law'] ['sentence Appeal' 'conspiracy to Import Border Controlled Drug' 'instinctive Synthesis Approach' "parity of Co Offenders' Sentences" 'knowledge of Drug Quantity' 'exceptional Hardship' 'assistance to Police']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Criminal Appeal / Appeal Against Sentence, Re Sentencing

Legal Issues

  1. 1 ['Whether the sentencing judge erred by not applying the instinctive synthesis approach' "Whether the applicant's knowledge of the quantity of cocaine was proved beyond reasonable doubt" "Whether there was a justifiable sense of grievance due to disparity with co-offenders' sentences" "Whether hardship to applicant's family was exceptional for sentencing purposes" 'What credit should be given for cooperation with police']

Ratio Decidendi

The sentencing judge committed an error by not employing the instinctive synthesis method required for sentencing and by engaging in a two-tier approach. This error, conceded by the Crown, required the appellate court to re-sentence the applicant. While there were material differences between the applicant and his co-offender Rodriguez, the unjustified starting point disparity of six years gave rise to a justifiable sense of grievance, justifying a reduction of the sentence by one year. The applicant's knowledge of a substantial quantity of cocaine was proven beyond reasonable doubt, but the impact on his family did not amount to exceptional hardship.

Court Disposition

Appeal allowed; re-sentenced

Orders

  • ['Leave to appeal granted.' 'Appeal allowed.' 'The sentence imposed by Madgwick QC ADCJ is quashed.' 'The applicant is sentenced to a term of imprisonment of 17 years 6 months commencing on 6 December 2012 and expiring on 5 June 2030 with a non-parole period of 11 years, expiring on 5 December 2023.']