A v The Queen

[2018] NSWCCA 289

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

A v R [2018] NSWCCA 289

Hearing dates:

12 October 2018

Decision date:

14 December 2018

Before:

White JA at [1];
Walton J at [61];
Wilson J at [62]

Decision:

(1)   Grant the applicant leave to appeal from the sentence imposed in the District Court on 8 March 2018.

 

(2)   Order that the appeal be allowed and that the sentence passed in the District Court on 8 March 2018 be quashed.

 (3)   In lieu thereof, order that the applicant be sentenced to a term of imprisonment of nine years with a non-parole period of five years and eight months, and a balance term of three years and four months. The non-parole period will date from 27 October 2016 and expire on 26 June 2022, and the balance term will expire on 26 October 2025. The applicant will be first eligible for parole on 27 June 2022.

Catchwords:

CRIMINAL LAW – Application for leave to appeal against sentence – Robbery in company – Supply of not less than a commercial quantity of a prohibited drug – Where applicant had provided assistance to law enforcement authorities – Where primary judge stated that assistance to authorities had been exhausted in separate Local Court proceedings – Where transcript of Local Court proceedings indicated that they had not been exhausted – Where transcript was not provided to primary judge – Whether legitimate sense of grievance arising from sentence imposed upon co-offender – Application for leave to appeal granted – Appeal dismissed

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
Crimes Act 1900 (NSW), ss 97, 192E
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 33

Cases Cited:

Burrows v R [2017] NSWCCA 45
Franklin v R [2018] NSWCCA 245
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v XX [2017] NSWCCA 90; (2017) 266 A Crim R 132
Sheen v R [2014] NSWCCA 42
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249

Category:

Principal judgment

Parties:

A (Applicant)
Regina (Respondent)

Representation:

Counsel:
G D Wendler (Applicant)
F A Veltro (Crown)
R Grady (NSW Commissioner of Police)

  Solicitors:
Van Houten Law (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2015/2538052016/321587

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

8 March 2018

Before:

Colefax SC DCJ

File Number(s):

2015/253805
2016/321587

Judgment

1. WHITE JA: This is an application for leave to appeal against sentence. At the commencement of the hearing, on the application of the NSW Commissioner of Police, the Court made an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the true identity of the applicant be suppressed until further order of the Court together with any evidence, submission, discussion, document or information that might facilitate identification of the true identity of the applicant. The applicant is given the pseudonym “A”.

2. A pleaded guilty in the District Court to two offences, namely, the offence of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW) and an offence of supply of not less than a commercial quantity of a prohibited drug (methamphetamine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence of robbery in company attracted a maximum penalty of 20 years’ imprisonment. The maximum penalty for the offence under s 25(2) of the Drug Misuse and Trafficking Act was 20 years’ imprisonment or a 3,500 penalty unit fine ($385,000) or both (s 33(1)(a) and (2)(a)). The latter offence had a 10-year standard non-parole period.

3. The applicant also asked the sentencing judge to take into account on a Form 1 the further offences of custody of a knife in a public place and goods in custody.

4. The sentencing judge (Colefax SC DCJ) imposed an aggregate sentence of nine years and six months with a non-parole period of six years. His Honour imposed an indicative sentence of seven years for the offence of robbery in company before a reduction of five per cent for the utilitarian value of a plea of guilty that was entered on the first day of the trial for that offence. After discount the indicative sentence was six years and seven months. The indicative sentence for the offence of supply was 10 years before a reduction of 35 per cent, being 25 per cent for an early plea of guilty, five per cent for the provision of past assistance to authorities, and five per cent for the applicant’s undertaking to provide future assistance to authorities. After discount the indicative sentence for the supply offence was six years and six months, and the indicative non-parole period was four years and three months.

5. There are four grounds to the applicant’s proposed appeal. Three of the grounds raise alleged errors in the way the sentencing judge dealt with the quantum of a reduction in sentence that could be provided pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

6. Section 23 relevantly provides:

“23   Power to reduce penalties for assistance provided to law enforcement authorities

(1)     A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2)     In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:

(a)       (Repealed)

(b)     the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c)     the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d)     the nature and extent of the offender’s assistance or promised assistance,

(e)     the timeliness of the assistance or undertaking to assist,

(f)     any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g)     whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h)     any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i)     whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j)       (Repealed)

(3)     A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

(4)     A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:

(a)     indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b)     state the penalty that it would otherwise have imposed, and

(c)     where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason.

(5)     Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.”

7. Grounds 1, 2 and 4 are as follows:

“GROUND 1

That his Honour erred in law by failing to correctly apply the terms of s23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in that his Honour had inadequate regard to the matters in s23(2)(b)(i) [sic] relevant to informing the quantum of discount for assistance to law enforcement authorities and further failed to apply a discount for assistance in respect to SIRA.

GROUND 2

That having regard to the value of the assistance past and future provided by the Applicant to law enforcement authorities his Honour erred by applying an inadequate quantum of 10% discount.

...

GROUND 4

That his Honour erred by assuming that s23 Crimes (Sentencing Procedure) Act 1999 assistance had been ‘exhausted’ before the Local Court when the Applicant stood for sentence in that Court on 28 September 2017.”

8. Ground 3 of the proposed appeal was that the applicant has a legitimate sense of grievance arising from his sentence for the offence of robbery in company, having regard to the sentence imposed upon his co-offender.

9. Ground 3 can be dealt with shortly. The description of the offence and identification of the co-offender might facilitate the identification of the applicant. Accordingly, paragraphs [10]-[13], [41] and parts of [32] and [56] will be redacted in the reasons to be published on Caselaw.

10. [Redacted.]

11. [Redacted.]

12. [Redacted.]

13. [Redacted.]

14. It is well settled that the sentencing judge was entitled to have regard to the particular conduct of the offender with a view to identifying his level of culpability of the offence for which he was responsible under the doctrine of joint criminal enterprise (Burrows v R [2017] NSWCCA 45 at [37]-[38], [40]; R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [161]; Sheen v R [2014] NSWCCA 42 at [14]; Franklin v R [2018] NSWCCA 245 at [45]).

15. Ground 3 of the appeal should be rejected.

Discount for assistance provided to law enforcement authorities

16. In the sentence hearing upon the application of the Commissioner of Police the sentencing judge made orders by consent that until further order of the Court, any part of the remarks on sentence delivered by the sentencing judge in the offender’s sentence proceedings in which reference was made to the offender assisting law enforcement authorities, or that might facilitate the identification of the offender as a Crown witness in proceedings against any co-accused be suppressed, except as was necessary for the proper conduct of the proceedings.

17. Paragraphs [18]-[29], part of [38] as indicated, [42]-[45], [48], [50], [52], the last sentence of [53], [54], [55] and parts of [56] and [57] as indicated, will also be redacted from the published judgment.

18. [Redacted.]

19. [Redacted.]

20. [Redacted.]

21. [Redacted.]

22. [Redacted.]

23. [Redacted.]

24. [Redacted.]

25. [Redacted.]

26. [Redacted.]

27. [Redacted.]

28. [Redacted.]

29. [Redacted.]

Resentence

30. It follows that the applicant has established error in the exercise of the sentencing judge’s discretion and this Court must re-exercise the sentencing discretion.

31. Both offences were serious. The offence of robbery in company involved the infliction of serious physical violence on the victim. The drug supply offence concerned [redacted] individual supplies of prohibited drugs to undercover operatives between [redacted]. The sentencing judge said that in general terms the applicant would take an order from the prospective purchaser, source the relative quantity of drugs from his up-line supplier, deliver the drugs to the prospective purchaser, collect the purchase price, and return that purchase price to the up-line supplier – after deducting his financial reward for the individual transaction, which was [redacted] per ounce supplied (at [26]).

32. The first supplies were of small quantities and for small prices. The [redacted] to [redacted] supplies were substantial, ranging between [redacted] grams and [redacted] grams with a purity of between [redacted] and [redacted] per cent. The primary judge said that in terms of its objective seriousness, the offence was a mid-range offence for an offence of its kind and was aggravated by the fact that A was on bail at that time (at [44]). I agree. I also agree with the sentencing judge that both the robbery in company offence and the drug supply offence fall in the mid-range of seriousness. In relation to the robbery offence, the applicant [redacted]. The supply offences involve [redacted] supplies of [redacted] grams of methamphetamine. The purity ranged from [redacted] per cent.

33. I also take into account the Form 1 matters.

34. Both individual and general deterrence are important considerations on resentencing.

35. The applicant tendered two psychological assessments of a [redacted] dated [redacted] and [redacted]. [Redacted] opined that at the time of both offending behaviours, the applicant was suffering from severe alcohol use disorder and severe amphetamine-type substance use disorder. [Redacted.] His drug use commenced at the age of 12, starting with marijuana before increasing to marijuana and methamphetamines. [Redacted] considered that he had strong prospects of rehabilitation.

36. The applicant gave evidence before the sentencing judge. His Honour found that whilst in custody the applicant had not used illicit drugs albeit that it was notorious that such drugs were readily available in prison. His Honour found that this was a positive factor in connection with his prospects of rehabilitation. The sentencing judge noted the opinion of an experienced probation and parole officer who prepared the Pre-Sentence Report in which he recorded that the applicant’s prospects of reoffending were medium to high. The sentencing judge regarded the applicant’s prospects of rehabilitation as being “guarded”, but that they would be enhanced by a longer period on parole.

37. Having regard to the sentencing judge’s advantage in having seen the applicant when he gave evidence, there is no reason to depart from that assessment.

38. The sentencing judge also accepted that the applicant was remorseful. This was notwithstanding that the sentencing judge rejected the applicant’s evidence that he was provoked by the victim of the robbery to physical violence. The finding is supported by the full admissions A made to the police on his arrest for the robbery offence, his assistance to authorities in connection with the drug supply offence, and his assistance in giving evidence in connection with [redacted].

39. I agree with the sentencing judge’s characterisation of the offences as being in the mid-range of objective seriousness and that the supply offence is aggravated by the fact that the drugs were supplied when he was on bail. Having regard to the objective seriousness of the offences and A’s subjective circumstances, I would adopt the same indicative sentences as the sentencing judge adopted for each offence prior to the application of discounts for A’s pleas of guilty and such discounts as might be appropriate for his giving of assistance to authorities. That is, the indicative head sentences for each offence before such discounts is seven years for the offence of robbery in company and 10 years for the offence of supplying not less than a commercial quantity of a prohibited drug.

40. I would also allow a 25 per cent discount for the early plea of guilty in relation to the supply offence.

41. [Redacted.]

42. [Redacted.]

43. [Redacted.]

44. [Redacted.]

45. [Redacted.]

46. Although the extent of assistance in connection with the drug supply offence was understated by the sentencing judge, the Court’s ability to reward the assistance having regard to the 25 per cent discount allowed for the guilty plea is limited by the need that the penalty imposed for the offence (or the indicative penalty for the offence) not be unreasonably disproportionate to the nature and circumstances of the offence (s 23(3)). A combined discount of more than 40 per cent to reflect the plea of guilty and assistance to authorities resulting in an indicative sentence of less than six years’ imprisonment for the drug supply offence would not reflect the objective seriousness of the offence and the purposes of punishment for it, including general and personal deterrence (SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 at [4]-[5], [9]).

47. I would allow an additional discount of 15 per cent on account of assistance provided and proffered.

48. [Redacted.]

49. Accordingly, the indicative sentence for the drug supply offence I propose is a term of imprisonment of six years. There are special circumstances for the reasons provided by the sentencing judge. The indicative non-parole period I propose is four years.

50. [Redacted.]

51. The assistance provided was unrelated to either of the offences with which A was charged. It was not on that account irrelevant (R v XX [2017] NSWCCA 90; (2017) 266 A Crim R 132 at [34]). But the absence of connection is a relevant consideration required to be taken into account under s 23(2)(i). The absence of connection might justify not granting any discount under s 23(1), depending upon the facts of the case (R v XX at [61]).

52. [Redacted.]

53. It follows from s 23(3) that a reduction of penalty on account of past or promised future assistance to law enforcement authorities must relate to a particular offence. For the reasons given earlier, no additional reduction in penalty in the drug supply offence could be entertained consistently with the requirement of s 23(3). [Redacted.]

54. [Redacted.]

55. [Redacted.]

56. The Court has a discretion to determine to which offence the giving of assistance to authorities warrants a reduction in penalty. The assistance provided by the applicant in relation to [redacted] should be reflected in a reduction of sentence that would otherwise be applicable for the robbery in company offence. Again however, s 23(3) dictates that the reduction must not result in a penalty that fails to reflect the objective seriousness of the robbery in company offence and A’s participation in that offence [redacted], and the purposes of punishment for that offence. In terms of the statute the reduction must not result in a penalty that is unreasonably disproportionate to the nature and circumstances of the offence.

57. The indicative sentence I would impose for the offence of robbery in company after allowance for the plea of guilty is that indicated by the sentencing judge, namely, six years and seven months. The extent of any further reduction must take account of the fact that there is no relationship between the assistance given [redacted] and the violent robbery in company offence. This may, and in the present case does, warrant a smaller reduction (R v XX at [43] and [45]).

58. On account of the applicant’s assistance to authorities that was not taken into account in his sentencing in the Local Court, I would reduce the indicative sentence for the robbery in company offence to six years, that is, a further reduction of seven months. In accordance with s 23(4)(c) I would state that the amount by which the penalty has been reduced for past assistance is four months and for undertaking to provide future assistance to law enforcement authorities, a further three months.

Conclusion and proposed orders

59. The sentences indicated above should be partially accumulated and take into account the sentences of imprisonment imposed by the Local Court. The sentence to be imposed should date back to 27 October 2016 as was the sentence imposed by the sentencing judge. I would impose an aggregate sentence of nine years with a non-parole period of five years and eight months.

60. I propose the following orders:

1. Grant the applicant leave to appeal from the sentence imposed in the District Court on 8 March 2018.

2. Order that the appeal be allowed and that the sentence passed in the District Court on 8 March 2018 be quashed.

3. In lieu thereof, order that the applicant be sentenced to a term of imprisonment of nine years with a non-parole period of five years and eight months, and a balance term of three years and four months. The non-parole period will date from 27 October 2016 and expire on 26 June 2022, and the balance term will expire on 26 October 2025. The applicant will be first eligible for parole on 27 June 2022.

61. WALTON J: I agree with White JA.

62. WILSON J: I agree with White JA.

**********

Decision last updated: 18 February 2019