JAEGER, Adrian v R

Judgment

1. [1]

   GILES 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.

2. [2]

   The 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.

3. [3]

   The 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.

4. [4]

   In my opinion, leave to appeal should be refused.

5. [5]

   HULME J: I agree.

6. [6]

   ADAMS J: I also agree.

7. [7]

   GILES JA: That will be the order of the court. I certify that this and the preceding 2 pages are a true copy of the reasons for judgment of the Hon Justice R D Giles and of the Court. Associate 10 February 2011