R v SC

[2008] NSWCCA 29

New South Wales
Court of Criminal Appeal

CITATION:	R v SC [2008] NSWCCA 29
HEARING DATE(S):	13 November 2007
JUDGMENT DATE:	21 February 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hall J at 2; Price J at 3
DECISION:	Appeal dismissed.
CATCHWORDS:	Criminal Law - sentencing - federal offence - sentencing range for low level trafficable quantities of cocaine and heroin - combined discount excessive - discretion exercised not to intervene.
LEGISLATION CITED:	Criminal Appeal Act 1912 s 5D Crimes Act 1914 (Cth) s 16A(1), s 16A(2), s 16A(2)(n), s 16G Customs Act 1901 (Cth) s 233B
CATEGORY:	Principal judgment
CASES CITED:	Cameron v The Queen (2002) 209 CLR 339 R v Budiman (1998) 102 A Crim R 411 R v Karacic (2001) 121 A Crim R 7 R v Kevenaar (2004) 148 A Crim R 155 R v Klein (2001) 121 A Crim R 90 R v Mas Rivadavia [2004] 61 NSWLR 63 R v Taru [2002] NSWCCA 391 R v Saxon (1996) 86 A Crim R 1 R v Studenikin (2004) 60 NSWLR 1 R v Sukkar [2006] NSWCCA 92 R v Ogochukwu [2004] NSWCCA 473 R v Wong & Ng (1988) 39 A Crim R 1 Regina v Nguyen (2005) 157 A Crim R 80 Regina v Wall [2000] NSWCCA 42 Wong v The Queen (2001) 207 CLR 584
PARTIES:	Regina SC
FILE NUMBER(S):	CCA 2007/1900
COUNSEL:	W Abraham QC (Applicant) L Lloyd QC and C Fegan (Respondent)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Applicant) Gray & Perkins Solicitors (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0452
LOWER COURT JUDICIAL OFFICER:	Blackmore DCJ
LOWER COURT DATE OF DECISION:	3 November 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v SC

2007/1900

McCLELLAN CJ at CL
HALL J
PRICE J

21 February 2008

Regina v S C

Judgment

1 McClellan CJ at CL: I agree with Price J.

2 Hall J: I agree with Price J.

3 PRICE J: The Commonwealth Director of Public Prosecutions appeals pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed on the respondent on 15 June 2007 in the District Court at Sydney in respect of an offence of attempting to possess a prohibited import namely cocaine being not less than the trafficable quantity for that drug, contrary to s 233B of the Customs Act 1901 (Cth).

4 The offence was committed between 5 December 2005 and 7 December 2005. The pure amount of cocaine which the respondent attempted to possess was 183.9 grams with a wholesale value estimated at $65,760.00. The street value of the cocaine was estimated at between $105,085.00 and $128,730.00.

5 The maximum penalty for the offence is 25 years imprisonment. The respondent was sentenced to imprisonment for three years and six months with a non-parole period of two years. The sentence commenced on 1 November 2006 and the non-parole period expires on 31 October 2008.

6 The ground identified in the notice of appeal is that the sentence is said to be manifestly inadequate.

7 The principles relevant to Crown appeals against sentence are well established and are summarised in Regina v Wall [2000] NSWCCA 42. Considerable restraint is exercised by this Court in intervening in the orders made by the sentencing Judge.

8 Whilst acknowledging that appeals by the Crown should only be granted in rare circumstances, the Crown contends that this case falls within the category where this Court should intervene. The Crown argues that the sentence is manifestly inadequate and so much so that this Court ought to intervene to maintain adequate standards of punishment for offences of the present nature. In addition, the Crown submits that the sentence imposed:

a. fails to adequately reflect the criminality of the offending;
b. was based on a misapplication of R v Wong; R v Leung (1999) 48 NSWLR 340;
c. placed undue weight on the respondent’s personal circumstances, in particular, his assistance to the authorities and plea of guilty.

9 The facts of the case were reduced to writing which the Judge summarised as follows:

“ In December 2005 customs officers at the Qantas mail handling depot in Sydney became suspicious about two packages. They were due to be delivered by a company called DHL. As a result they called the Federal Police. Customs officers conducted x-ray examination of the packages which revealed that each package contained two video cassettes in which were secreted some powder. Presumptive tests indicated that the powder was narcotic and it gave a positive reading for cocaine.
DHL said that they were contacted on numerous occasions around this time by someone inquiring as to the delivery of the packages. The person identified himself as [A]. He left two phone numbers and requested that the packages be delivered to ...
The packages were deconstructed and then reconstructed by the Federal Police, replacing the power with some benign substance. Then a Federal Police officer posing as a DHL worker on 7 December 2005 delivered the packages to the … address as arranged. At that location was the offender. He quoted the consignment number and signed for the packages. Shortly afterwards a search warrant was executed on the premises and the two reconstructed packages were found unopened. A mobile phone with a number that matched the number given to DHL was also found. There is no dispute that it was the offender’s phone.
Whilst the offender did not enter into a formal interview he acknowledged that he lived at the premises with one other person and that the packages were for [B] and he gave the police a mobile phone number which he said was the number for [B]. Later the offender gave a detailed account which provided the Australian Federal Police with information in relation to the man [B]. I will come back to discuss the significance of that assistance.”

10 The Judge found that whilst there was no direct evidence that the respondent was aware of the weight of the drug, he acknowledged that he knew or believed in advance that the packages contained drugs. With that knowledge, he agreed to take possession of the packages. His Honour also found that the respondent operated in between the supplier and the end-purchaser of the drug who was likely to have been a significant dealer in the drug in Australia. The applicant’s role, his Honour remarked, protected the identity of the end-dealer who despite the applicant’s co-operation had not been identified and prosecuted.

11 With respect to subjective matters, the Judge found the respondent to be a person of prior good character and noted that he had no prior criminal convictions. His Honour noted that good character is of a lesser significance in drug cases but said that the respondent’s case could be clearly distinguished from that of a hardened criminal. The respondent, his Honour determined, was entitled to some leniency by reason of his prior good record. His Honour observed that the respondent had what appears to have been a very normal upbringing. He went to university to study business which he left to pursue employment in the finance industry. His Honour found that whilst working in that industry the respondent started using drugs and was soon regularly consuming drugs and going to clubs. He remarked that the respondent would not have participated in the offence had he not reached a very low point through his drug consumption. The respondent’s prior drug use, he observed, did not mitigate but merely explained the respondent’s offending. As far as rehabilitation was concerned, the Judge noted that the respondent had attended drug rehabilitation, had reconciled with his family and had their continuing support. He was studying whilst in custody in an attempt to finish the business degree. His Honour said (ROS at p7):

“ It appears to me that if the offender is not already rehabilitated then he is well on the way to achieving that goal. Further his efforts clearly demonstrate contrition. He has in evidence before me expressed contrition and given the history outlined. I have no reason to doubt that his expression was genuine.”

12 The Judge had earlier referred in his sentencing remarks to the assistance that the respondent had provided to the Australian Federal Police and State Police. The starting point for the sentence, the Judge determined, should be seven years. A total discount of 50 per cent for the plea of guilty and assistance should be allowed, 10 per cent of that discount being for future assistance. Due to the respondent’s demonstrated rehabilitation, the Judge considered that a parole period towards the bottom of the accepted range for Commonwealth offences was appropriate.

13 The sole ground of appeal is that the sentence was manifestly inadequate.

14 The Crown contends that the sentence imposed fails to reflect the criminality of the respondent’s offending and fails to adequately reflect the element of general deterrence. The Crown cites R v Wong & Ng (1988) 39 A Crim R 1 and R v Saxon (1996) 86 A Crim R 1 at 3. Reference is made to the observations of this Court in cases such as R v Klein (2001) 121 A Crim R 90 and R v Budiman (1998) 102 A Crim R 411 that couriers and intermediaries should not receive any particular leniency because without them the trade in narcotics would not exist. The Judge whilst accepting that the range of sentences suggested in Wong and Leung provides a useful guide failed to recognise, the Crown contends, that the range is premised on persons who have pleaded guilty. His Honour by determining that an appropriate starting point for the sentence was seven years imprisonment in effect applied a double discount for the respondent’s plea of guilty. The Crown submits that after the repeal of s 16G of the Crimes Act 1914 (Cth) the range can now realistically be estimated at seven to ten years imprisonment for amounts from 2-200 grams of cocaine (and heroin). The Crown points out that the amount of the prohibited drug in the present offence is 183.9 grams which is at the top end of the range.

15 Senior counsel for the respondent concedes that the sentence was lenient but contends that no error has been made by the Judge and the sentence imposed was not outside an appropriate range.

16 The findings made by the Judge of the respondent’s role in the importation of the cocaine were consistent with the Crown’s submissions. His Honour found that the respondent operated in between the supplier and the end-purchaser who was likely to have been a significant drug dealer in Australia. His role, his Honour said, protected the identity of the end-dealer. The Judge characterised the activities of the respondent as being equated “with a relatively low level courier”. The Crown makes no criticism of these findings.

17 The respondent was to receive $3,000 for his participation in the importation. The weight of the cocaine was towards the top end of the low level traffickable quantity identified in Wong and Leung. It is a serious offence.

18 The Judge was plainly mindful of the need for general deterrence when he said (ROS at 3):

“ The willingness of persons such as the offender to put themselves in this position merely facilitates the drug trade. It is a fact that requires sentences such as these to demonstrate general deterrence. The hope is that in providing significant sentences to people such as the offender others who might be similarly minded to act will be deterred by the prospect of spending many years in gaol.”

19 The well-known authorities cited by the Crown demonstrate the importance of general deterrence in sentencing offenders involved in the importation of prohibited drugs: see also for example R v Kevenaar (2004) 148 A Crim R 155 per Hulme J at 170.

20 Notwithstanding his Honour’s cognizance, the question remains whether the need for the sentence to include a component for general deterrence was adequately recognised in the sentence that he actually imposed. The Crown argues that the starting point of seven years suggests that it was not.

21 Section 16A(1) of the Crimes Act obligated the Judge to impose a sentence ‘that is of a severity appropriate in all the circumstances of the offence’. In addition to the need for general deterrence his Honour was required to consider the matters identified in s 16A(2) of the Crimes Act to the extent that those matters were relevant and known to the Court: Wong v The Queen (2001) 207 CLR 584 at 610. The matters identified include ‘the need to ensure that the person is adequately punished for the offence’: s 16A(2)(k); ‘the character, antecedents, age, means and physical or mental condition of the person’: s 16A(2)(m) and ‘the prospect of rehabilitation of the person’: s 16A(2)(n).

22 Before the Judge evidence was given by the respondent, with a report of Dr Allnutt, psychiatrist and a number of statements and references being tendered. He was 27-years old at the time of sentence and had no prior convictions. After having what was described by his Honour as a “very normal upbringing”, the respondent left school to attend university to study a business degree and had six subjects left when he became employed in the finance industry. Whilst working in that industry he started using methamphetamines and became dependent. The Judge found that he would not have committed the offence had he not “reached a very low point through his drug consumption”. His Honour noted that the respondent had attended drug rehabilitation, had reconciled with his family and was studying whilst in custody in an attempt to complete his business degree. He had re-enrolled in the University of Western Sydney in February 2006.

23 Dr Allnutt recounted in his report that the respondent had discontinued the use of amphetamines and had been abstinent for approximately ten months. He opined that the respondent’s prognosis for remaining abstinent was good and he did not “manifest the usual characteristics of a recidivist offender”. The efforts that the respondent had made to become drug-free were detailed in the statements of Elena Hay and his mother.

24 His Honour found as I have quoted at paragraph 9 (supra) that if the respondent was not already rehabilitated then he was well on the way to achieving that gaol. The Judge found that the respondent’s contrition was genuine.

25 Whilst the Judge recognised that in the present case prior good character had less weight, this did not mean that the absence of a prior criminal record was not to be taken into account. There was no suggestion that the respondent had been, for example, an experienced drug trafficker: see Regina v Nguyen (2005) 157 A Crim R 80 at 92.

26 This was a strong subjective case which his Honour was obliged to take into account when determining the appropriate head sentence.

27 The guidelines determined by this Court in Wong and Leung which were intended to apply to couriers and person low in the drug hierarchy remain useful although that decision was overturned by the High Court in Wong: see R v Taru [2002] NSWCCA 391; R v Ogochukwu [2004] NSWCCA 473.

28 The range indicated of sentences for cases involving low level trafficable quantities of cocaine and heroin in Wong and Leung is a head sentence of between five to seven years imprisonment.

29 In the present case, the Judge acknowledged the continuing relevance of the guidelines provided in Wong and Leung which suggested, he said, a range of some five to seven years imprisonment. The Crown argues that his Honour erred as he failed to recognise that the range is premised on a plea of guilty.

30 With respect, the indicated range is not confined to a guilty plea. As was said by McClellan AJA (as he then was) Adams J and Smart AJ agreeing in Ogochukwu at [29]:

“ This range [in Wong and Leung] was provided in circumstances where an offender may have pleaded guilty and where he was being sentenced after a trial .” (my underlining).

31 In R v Karacic (2001) 121 A Crim R 7 Spigelman CJ said at [50]:

“…the guideline makes no assumption one way or the other about such matters as whether there was a plea of guilty.”

32 I am not persuaded that his Honour in effect applied a double discount for the guilty plea.

33 Before determining that the appropriate starting point of the sentence was seven years, the Judge acknowledged that the judgment in Wong and Leung preceded the repeal of s 16G of the Crimes Act. Section 16G which previously required a court sentencing commonwealth offenders to moderate the sentence by reason of the lack of remissions in NSW was repealed with effect on 16 January 2003.

34 It does not necessarily follow that the Crown’s contention that the relevant range of sentence can now be said to be seven to ten years is correct. As has been said by this Court, the adjustment for the repeal of s 16G should not be made automatically by the use of a mathematical formula or a fixed percentage: see for example R v Mas Rivadavia [2004] 61 NSWLR 63; R v Studenikin (2004) 60 NSWLR 1.

35 Statistics published by the Judicial Commission of New South Wales were put before the Judge. They show that between January 2003 and March 2006 sixty one sentences were imposed for importing the trafficable quantity of cocaine. The minimum head sentence was eighteen months and the maximum ten years. The minimum non-parole period or fixed term was twelve months and the maximum term seven years. All of the sentences in the published statistics were imposed after s 16G was repealed. Sixty four per cent of the sentences had a head sentence of between seven and nine years. A head sentence of ten years was imposed in only two per cent of cases. Eighty two per cent of the head sentences were, however, between six and nine years. These figures suggest that an appropriate range of sentences involving low level trafficable quantities of cocaine and heroin after the repeal of s 16G is a head sentence of between six and nine years imprisonment.

36 In any event, his Honour’s starting point was within this range and the range suggested by the Crown.

37 I am not persuaded that the starting point of the present sentence having regard to the objective seriousness of the offence and the subjective circumstances of the respondent was manifestly inadequate.

38 The next point raised by the Crown is that the total combined reduction of 50 per cent for the respondent’s plea and assistance was excessive in light of the nature of the assistance and timing of the plea. There was no evidence, the Crown submits, that the respondent would spend his custody under more onerous conditions. In particular the Crown cites what was said by this Court in R v Sukkar [2006] NSWCCA 92.

39 Senior counsel for the respondent contends that in all the circumstances of the case and for the reasons more fully stated by the Judge that the total reduction of 50 per cent was justified.

40 In relation to the assistance that the respondent provided to police, his Honour said (ROS at p 5-6):

“He immediately told the police on his arrest that the drugs were being delivered for [B]. He has not wavered from that account. There is some support for the fact that he was receiving the drugs for another person in the evidence.
There was evidence from police that around the time when the offender was arrested and with the assistance of the offender phone contact was made by the offender with the person [B]. The offender was encouraging him to come and collect the drugs. Police who were in situ … saw an … vehicle driving up and down the street where the offender was living but it did not stop. For whatever reason it appears that [B] was suspicious and he did not attempt to take delivery of the drugs.
But that was not the total of the offender’s assistance. Some time after his arrest he volunteered to provide additional assistance to the police. That assistance is outlined in a letter from the Federal Police and I do not propose to go into the details contained in that letter. I note that the letter said that the “prisoner has provided all information and assistance available to him.” The usefulness of the assistance was only of marginal significance. Much of the information was relevant to State offences and not Federal offences. Further, much of the information was already known. Perhaps of more significance is that the offender has indicated a willingness to give evidence against [B] if he is ever prosecuted. As I understand it that is a continuing investigation and it cannot be ruled out as a real possibility that he will be called upon to provide that evidence. The offender’s willingness to provide future assistance is of significance. It is possible that by so agreeing he both risks personal safety and to an extent the safety of his family.

The offender also spoke to the State Police about an unrelated matter. Those police have also provided a report, again I am not going to detail the nature of that information. It must be said that whilst the offender’s information was quite detailed it did not provide significant new information. Police have no reason to doubt the information and note that it is consistent with some other intelligence relating to that particular matter but effectively takes the matter no further forward. The State Police say that they believe that the offender has provided all the information that he is capable of providing.
It seems to me that senior counsel’s submission that the offender has done all he is capable of doing should be accepted.”

41 The assistance provided by the respondent to the Australian Federal Police on the day of his arrest was not as the Crown contends assessed by the Judge to be of only marginal significance. It is apparent from the evidence before his Honour that after his arrest at his home, the respondent did all he could by telephone to entice [B] to drive to the premises so that [B] might be arrested. He had furthermore provided police with the description of the vehicle that he had expected [B] to be driving and a partial registration number. The vehicle being driven by a person fitting [B’s] description was seen by police to drive past the respondent’s home. [B] was said to be the end-purchaser of the drug who the Judge found was likely to have been a significant drug dealer. It was the additional assistance outlined in a letter from the Australian Federal Police which the Judge found was only of marginal assistance. It was open to his Honour to consider that the respondent’s assistance on the day of his arrest was of a very high order.

42 It seems from his remarks that his Honour did not regard the assistance provided to State Police as being of a high order. The Judge, however, found that the respondent did all he was capable of doing to assist police which was a finding his Honour was entitled to make.

43 At the sentencing hearing on 3 November 2006, evidence was given by Gregory Otto who had formerly been the manager of inmate programs at Bathurst Gaol that the respondent would go into protection. A statement, however, was tendered at the sentencing hearing on 4 June 2007 from Jeffrey Cunningham, a Department of Corrective Services officer, that the respondent was not held on protection and had access to the full facilities of the gaol.

44 The combined discount for the plea and for past and future assistance was assessed at 50 per cent, 10 per cent of that discount being for future assistance.

45 The plea of guilty was entered on 8 September 2006 which was three days before his trial was to commence. As this was a Federal offence, the Judge was required to sentence the respondent in accordance with the principles stated by the High Court in Cameron v The Queen (2002) 209 CLR 339 which specifically excludes reference to the utilitarian value of the plea and permits recognition of a plea of guilty by reference to the willingness of an offender to facilitate the course of justice. This his Honour recognised when he said (ROS at 7):

“ The discounts provided in the Court of Criminal Appeal’s decision in [R v Thomson; R v Houlton [2000] 49 NSWLR 383] do not apply to Commonwealth offences however there is no doubt that the offender’s plea facilitated justice.”

46 The Judge found that in his view the respondent was “entitled to a significant discount for his plea” and did not quantify the discount.

47 The Crown criticises the assessment of an entitlement to a “significant” discount as the Crown contends that given the timing of the plea, the strength of the Crown case is a relevant consideration in determining whether the plea was truly motivated by a willingness to facilitate the course of justice or more pragmatically by a recognition of the inevitable.

48 Although a relevant consideration of the test of the willingness of the offender to facilitate the course of justice is the strength of the Crown case, there was ample material before the Judge which could justify his Honour’s conclusion and I detect no error.

49 It is well established that the appropriate range of discount for the plea of guilty and assistance is generally between 20 and 50 per cent. Latham J, however, in R v Sukkar observed at [54]:

“ Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender. ”

50 Whilst his Honour may have regarded the assistance provided on the day of arrest to be a very high order, it is clear that he did not assess the other past assistance to have such a value.

51 The Judge did not refer in his sentencing remarks to any impact that the assistance would have upon the manner in which the respondent would be required to serve his sentence. It was evident that his assistance was not having any impact at all. Hardship occasioned to a prisoner who has provided assistance to the authorities is a significant factor in the assessment of a discount for assistance: Sukkar at [55].

52 Howie J with whose additional remarks McClellan CJ at CL agreed said in Sukkar at [5] that:

“…d iscounts for a plea and assistance of more than 40 percent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population .”

53 It seems with respect that his Honour may have overlooked the lack of hardship occasioned to the respondent when determining the discount. In all the circumstances, the combined discount of 50 per cent was, in my opinion, excessive. A combined discount of more than 40 per cent was not warranted and a clear error of principle has been identified. As a consequence, the sentence imposed was manifestly inadequate.

54 Even if error has been shown this Court has a discretion to refuse to intervene, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that the convicted person faces as a result of a Crown appeal. Should the Crown appeal be successful, the sentence to be imposed is to be at the bottom of the permissible range. To my mind, a sentence of four years and two months with a non-parole period of two years and four months would be at the bottom of the permissible range.

55 The Judge found that if “the offender is not already rehabilitated then he is well on the way to achieving that goal.” The Crown accepted in oral argument that the respondent is “clearly rehabilitated”. The respondent has made admirable efforts to achieve rehabilitation. He has already served half of the non-parole period of his sentence and has sought re-classification as a “C3 prisoner”. Once reclassified he will be eligible for day and weekend release. Having regard to double jeopardy and in the favourable circumstances of the respondent, I am of the opinion that this Court should exercise its discretion and not intervene.

56 I propose that in the exercise of the Court’s discretion the appeal be dismissed.

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