R v Springer

[2009] NSWCCA 144

New South Wales
Court of Criminal Appeal

CITATION:	R v Springer [2009] NSWCCA 144
HEARING DATE(S):	13 May 2009
JUDGMENT DATE:	25 May 2009
JUDGMENT OF:	McClellan CJatCL at 1; James J at 2; Simpson J at 53
DECISION:	1. Appeal against the sentence imposed on the respondent by the Court of Criminal Appeal on 16 October 2007 allowed. 2. Substitute for the non-parole period set by the Court of Criminal Appeal on 16 October 2007 a non-parole period of three years eight months. 3.The head sentence of four years six months imposed by the Court of Criminal Appeal on 16 October 2007 confirmed.
CATCHWORDS:	CRIMINAL LAW — Sentencing — Commonwealth offence — assistance — sentence reduced by reason of assistance — failure to provide assistance — Crown appeal — s 21E Crimes Act (Cth) — s 14A Criminal Appeal Act (NSW)
LEGISLATION CITED:	Crimes Act (Cth) Criminal Appeal Act (NSW) Judiciary Act (Cth)
CASES CITED:	R v YZ (1999) 162 ALR 265
PARTIES:	Regina SPRINGER, Patrick
FILE NUMBER(S):	CCA 2006/4996
COUNSEL:	W Abraham QC - Appellant No appearance - Respondent
SOLICITORS:	Commowealth Director of Public Prosecutions
LOWER COURT JURISDICTION:	Court of Criminal Appeal
LOWER COURT FILE NUMBER(S):	2006/4996
LOWER COURT DATE OF DECISION:	16 October 2007

2006/4996

McCLELLAN CJ at CL
JAMES J
SIMPSON J

MONDAY 25 MAY 2009

R v SPRINGER, Patrick

Judgment

1 McCLELLAN CJ at CL: I agree with James J.

2 JAMES J: This is an appeal by the Commonwealth Director of Public Prosecutions pursuant to s 21E of the Crimes Act (Cth) against the inadequacy of a sentence imposed on the respondent Patrick Springer that was reduced because of the respondent’s undertaking to cooperate with law enforcement agencies, on the ground that the respondent failed to cooperate in accordance with his undertaking. By virtue of s 68 of the Judiciary Act (Cth) certain provisions of the Criminal Appeal Act (NSW), including s 14A, apply to the hearing and determination of the appeal.

3 When the matter was called for hearing in this Court there was no appearance before the Court by the respondent or anyone on his behalf. Section 14A of the Criminal Appeal Act provides that a Crown appeal may be dealt with and the Court of Criminal Appeal may pass sentence, in the absence of the respondent to the appeal, if the Court is satisfied (a) that the respondent has been given notice of the date on which the appeal is to be heard and (b) it would not be unjust to deal with the appeal and pass sentence in the absence of the respondent. On the basis of evidence to which I will refer later in this judgment, I am satisfied that the respondent was given notice of the date on which the appeal was to be heard (13 May 2009) and that it would not be unjust to deal with the appeal and pass sentence in the absence of the respondent. Consequently, the Court can deal with the appeal and, if it decides to allow the appeal, pass sentence on the respondent.

Facts

4 The matter has quite a long history, which I will endeavour to summarise fairly succinctly.

5 The respondent is a German national, who at all material times has resided in Germany. In 2005 a person known to the respondent in Germany was a person of Vietnamese origin named Tay Duc Phan. In November 2005 the respondent was introduced by Tay Duc Phan to two of his relatives then visiting Germany, who were referred to as Uncle Be and Noah. The respondent was asked by Noah to bring prohibited drugs into Australia and he agreed to do so.

6 In December 2005 the respondent, Tay Duc Phan, Uncle Be and Noah left Germany on separate flights. The respondent flew firstly to Vietnam. In Vietnam he had a meeting with Uncle Be, who gave him instructions on how he was to conduct the importation of drugs into Australia. Packages of drugs were delivered to the respondent and he secreted a number of the packages internally in his body.

7 On 16 December 2005 the respondent arrived at Sydney airport on a flight from Vietnam. He was intercepted by customs officers at the airport and subjected to a scan performed at a hospital which revealed the presence of the packages in his body. On 16 December 2005 the respondent was interviewed by officers of the Australian Federal Police. In the interview he made admissions and implicated the other three persons in the importation of the drugs.

8 The respondent was charged with the offence of importing a marketable quantity of a border-controlled drug. He entered a plea of guilty to this charge.

9 On 20 April 2006 the respondent was interviewed by officers of the Australian Crime Commission. In this interview he identified two persons shown in a photograph as being Tay Duc Phan and the person he knew as Noah.

10 On 30 June 2006 the respondent made a statement in which he described the events in Germany and Vietnam which I have already summarised.

11 On 14 July 2006 the respondent was sentenced in the District Court for the offence to which he had pleaded guilty. Evidence about the information which the respondent had provided to the authorities was put before the sentencing judge. However, the sentencing judge was told that the information had been assessed by law enforcement agencies as being “only of intelligence value” and as being unlikely to result in the prosecution of any person.

12 In his remarks on sentence the sentencing judge said of the respondent “he has given exhaustive evidence, all that he could have done and it should be measured probably in terms of contrition, rather than a great discount, rather than being weighed in terms of assistance”. The sentencing judge said that in sentencing the respondent he would adopt a starting point of nine years and would then allow a discount of one third for what he described as the respondent’s contrition and, accordingly, he sentenced the respondent to a head sentence of six years with a non-parole period of four years.

13 On 20 December 2006 the respondent was again interviewed by officers of the Australian Crime Commission. He was shown a number of photoboards on which photographs were mounted and he made photographic identifications of the persons known to him as Uncle Be, Noah and Tay Duc Phan. By the end of December 2006 one of the persons identified by the respondent had been arrested and the others were being investigated.

14 On 5 June 2007 the respondent made a statement about the photographic identifications he had made on 20 December 2006.

15 Investigators in the Australian Crime Commission re-assessed the value of the assistance provided by the respondent as having much greater value than the limited value they had believed it to have at the time the respondent was sentenced.

16 On 18 September 2007 the respondent entered into an undertaking to cooperate with law enforcement agencies, which was in the following terms:-

“Undertaking
I, Patrick Springer, do hereby undertake to co-operate with law enforcement agencies, pursuant to section 21E of the Crimes Act 1914 (Cth), and in particular to do the following things:
a. To give full and frank evidence for the Crown in accordance with my statements dated 30 June 2006 (attached and marked “A”) and 5 June 2007 (attached and marked “B”), and any other statement(s) to be given in furtherance of this undertaking, in any court proceedings (including confiscation proceedings) that the Crown may nominate, in respect of any person including (but not limited to):
i. Hong Phong Le
ii. Thomas Ty Phuc Lee
iii. Hong Tay Duc Phan
iv. Khanh Hoang Tran
b. To provide to Aaron Bantoft, an Investigator at the Australian Crime Commission, or any other officer nominated by that Agency or any other law enforcement agency, any further full and frank voluntary statement(s) in writing regarding my knowledge of and participation in any matter relating to the charges for which I have been sentenced (or will be re-sentenced), as reasonably required by the Australian Crime Commission.
c. To confer with the Australian Crime Commission, the Commonwealth Director of Public Prosecutions, and counsel briefed by the Director of Public Prosecutions, in relation to any court proceedings referred to at paragraph 2(a) above, and to provide upon request, any supplementary voluntary statement(s) or any further evidence in relation to matters arising from any such conference(s).
d. I acknowledge that my solicitor, Ms P Purcell, has explained to me the provisions of section 21E of the Crimes Act 1914 (Cth) and I acknowledge that I fully understand its effect and the consequences of any failure by me to honour the undertaking.”

17 An application was made by the respondent to the Court of Criminal Appeal for leave to appeal against the sentence which had been imposed on him. The respondent sought to have admitted as fresh evidence on the appeal evidence of the events which had happened since he was sentenced.

18 In a decision handed down on 16 October 2007 it was held by the Court of Criminal Appeal that the evidence contended to be fresh evidence should be admitted, that leave to appeal should be granted and that the appeal against sentence should be allowed.

19 In par 32 of his judgment Barr J, who delivered the leading judgment, said:-

“In my opinion this is an exceptional case of the latter kind (that is, a case of fresh evidence to explain facts which were before the sentencing judge so as to put them in a new light). Virtually everything the applicant did in order to assist the authorities to identify and prosecute his co-offenders was done before sentencing, and the Court knew about it. The Court wrongly assessed the material as being only of “intelligence value”. The Court reached that conclusion because that was the evidence of the investigators. The fact was, however, that even at that stage the evidence was apt to produce the results it did eventually produce. The applicant had identified the participants, including by photograph, and the investigators were armed to make the inquiries that they later did make. It was not until after sentence, however, that they put to full use the information the applicant had furnished, particularly in the context of the SMS messages of which they had had records all along. So it can be said that although the facts were known on sentencing, their true significance was not. In my opinion the evidence is fresh. The Court should receive it.”

20 In par 33 of his judgment Barr J said:-

“…I would allow an overall discount of fifty per cent for all the subjective features, including assistance to the authorities, past and future. Applying that discount to a starting sentence of nine years I would impose an overall sentence of four and one-half years. I would apportion half the discount, that is twenty-five per cent of nine years, to future assistance.”

21 The orders actually made by the Court of Criminal Appeal were:-

“1. Grant leave to appeal and allow the appeal.

2. Quash the sentence appealed from and sentence the appellant to a non-parole period of two years and nine months, commencing on 16 December 2005 and expiring on 15 September 2008 and a period during which he shall be eligible to be released on parole, commencing on 16 September 2008 and expiring on 15 June 2010.”

22 In par 36 of his judgment Barr J said:-

“I would state, pursuant to s 21E(1)(b) Crimes Act 1914 (Commonwealth), that the non-parole period had been reduced by twenty-five per cent on account of the promise of future assistance.”

23 Evidence about subsequent events is contained in a number of affidavits by Mr J C Davidson, a solicitor employed by the Commonwealth Director of Public Prosecutions, and in an affidavit by Mr A J Bantoft, an investigator in the Australian Crime Commission. These affidavits disclose the following further facts.

24 A number of persons have been charged with conspiring with each other to commit serious federal offences, including conspiring to import border-controlled drugs into Australia. One of the persons charged is Thomas Ty Phu Lee, who is alleged by the prosecution to be the person known to the respondent as Uncle Be.

25 On 6 August 2008 the committal hearing of the charges against the alleged conspirators was fixed for 15-21 October 2008. On 6 August 2008 an application was made on behalf of the Commonwealth Director of Public Prosecutions that the respondent’s evidence should be taken before 15 September 2008, when the respondent would be released after completing serving the non-parole period of the sentence imposed by the Court of Criminal Appeal. This application was refused.

26 On 1 September 2008 Mr Bantoft visited the prison at which the respondent was being held. Paragraphs 2 to 7 of Mr Bantoft’s affidavit of 24 February 2009 are in the following terms:-

“2. Approximately 11.30am on 1 September 2008, myself and Dominic Kirwan from the ACC (the Australian Crime Commission) attended the Metropolitan Reception and Remand Centre (“MRRC”) at Silverwater NSW and met with the Respondent, who was at the time an inmate with prisoner MIN 394963.
3. During that meeting I asked the respondent if he was willing to stay in Australia after being released from prison until the completion of the committal proceedings against LEE and others, scheduled between 15 October until 21 October 2008. I also informed the respondent if he stayed that his accommodation and payments for living expenses in Australia would be paid by the prosecution.
4. The respondent said that he did not want to stay in Australia and that he wanted to return to Germany as soon as he was released from prison. The respondent further stated that he had to personally return to Germany and complete his enrolment for University to study International Business Management, and that he needed to be there 2 or 3 days after his release date.
5. I further informed the respondent that, if he chose to stay to give his evidence, the expenses of his flights leaving Australia would also be covered, as opposed to currently having to reimburse the Australian Government if deported. The respondent stated that this did not matter and that he needed to return to Germany.
6. I notified the respondent that he was still required to honour his undertaking to assist the ACC and provide evidence at the committal and this would mean he was required to fly back to Australia. He stated that he would definitely honour his commitment to give evidence and return to Australia to do so. The respondent said that it was time for “pay back” around the same time showing me a large scar on his lower back, stating that he received that injury whilst in prison.
7. I asked the respondent for his contact details in Germany and he stated that he would not have a phone number immediately upon return to Germany however provided the following contact information:

· Address – Auf der Hoern 100, 52072 Aachen Germany

· Email – [email protected]”

27 On 11 September 2008 Mr Bantoft again visited the prison and had a meeting with the respondent. During this meeting he served the respondent with a subpoena to give evidence in the committal proceedings and gave the respondent an electronic air ticket for a flight from Germany to Australia shortly before 15 October.

28 Paragraph 10 of Mr Bantoft’s affidavit was in the following terms:-

“ I further notified the respondent that either myself or someone else from the ACC would pick him up from the airport and take him to his hotel, and that whilst in Australia he would be free to look around and sightsee, when not required for his evidence or a conference with the CDPP. I also informed him that he would have a Visa to enter Australia and that Customs would be aware of that Visa.”

29 On 28 September 2008 Mr Bantoft emailed a copy of a Criminal Justice Visa to the respondent at the email address which the respondent had given. Mr Bantoft has never received any response stating that there was an email delivery failure.

30 On 12 October 2008 Mr Bantoft attended at Sydney International Airport and was present at the gates when passengers on the flight for which the respondent had been provided a ticket passed through the gates. He did not observe the respondent among the arriving passengers. Further enquiries revealed that the respondent had never boarded the flight.

31 On 13 October 2008 Mr Bantoft attempted to telephone the respondent on various telephone numbers appearing in the respondent’s prison records. A German speaking member of the Australian Crime Commission spoke to a female in Germany who said that she was the partner of the respondent’s father and would pass on to the respondent a message to telephone Mr Bantoft. Mr Bantoft did not receive any telephone call from the respondent.

32 On 13 October 2008 Mr Bantoft sent an email to the respondent at the email address which the respondent had supplied, stating that the respondent’s failure to come to Australia was a breach of the undertaking he had given. Mr Bantoft never received any response to the email or any response stating that there was email delivery failure.

33 On 1 December 2008 Mr Bantoft made a request through the Overseas Liaison Desk of the Australian Federal Police for German authorities to identify the current residential address of the respondent. On 18 December 2008 Mr Bantoft received a response that the respondent was registered as residing at Auf Der Hoern 98 Aachen 52074 Germany.

34 An appeal by the Commonwealth Director of Public Prosecutions pursuant to s 21E of the Crimes Act was filed on 2 February 2009. Various steps were taken to serve the respondent with the notice of appeal and with notice of the date on which the appeal would be heard.

35 I am satisfied on the basis of a declaration by Hans-Joachim Bugler, a German police officer at Aachen Police Headquarters, that on 24 February 2009 he personally served the respondent with the notice of appeal by handing it to him at 52074 Aachen Auf der Hoern 98. A declaration by Mr Bugler and a confirmation of service signed by the respondent, together with English translations of the documents, are annexures A1 and A2 (the declaration) and B1 and B2 (the confirmation) to the affidavit of Mr Davidson sworn 4 March 2009.

36 The notice of appeal did not notify the respondent of the date on which the appeal was to be heard. The date for the hearing was originally fixed for 15 April 2009 and was then fixed for 13 May 2009, the date on which the appeal was actually heard.

37 A letter from the Commonwealth Director of Public Prosecutions addressed to the respondent at the address given by him, notifying him that the appeal would be heard on 13 May 2009 was served on 5 May 2009 by facsimile transmission and by email on a German lawyer Andreas Fleuster, who acts as a lawyer for the respondent in some matters. The concluding paragraph of the letter was in the following terms:

“If neither I, nor the Registrar, nor the officers of the Australian Crime Commission hear from either you or your client before 8 May 2009, the Crown will urge the CCA to have the appeal heard and determined in your client’s absence on the basis that he has had notice of the appeal and the hearing date but demonstrated no intention of returning to this jurisdiction for the hearing of the appeal.”

38 At the same time as he was sent this letter Mr Fleuster was also sent a number of other documents relating to the appeal, including a copy of the undertaking given by the respondent and a copy of s 21E of the Crimes Act.

39 There was annexed to Mr Davidson’s affidavit of 4 May 2009 an authority dated 14 April 2009 signed by the respondent stating inter alia that Mr Fleuster’s firm has authority from the respondent “for all proceedings and all instances”, including, “accepting and acting on service and other notifications”.

40 On 11 May 2009 Mr Davidson had a telephone conversation with Mr Fleuster. In this conversation Mr Fleuster informed Mr Davidson that he had received notice of the new hearing date of the appeal of 13 May 2009 and that the respondent was aware of the date. Mr Fleuster also informed Mr Davidson that he had no instructions from the respondent with respect to the appeal but that he understood that the respondent had a lawyer in Australia and he was not sure if the respondent had instructed that lawyer to act for him on the appeal.

41 On 12 May 2009 Mr Davidson telephoned Ms Penelope Purcell, the solicitor who had acted for the respondent in the original sentence proceedings and on the respondent’s appeal to the Court of Criminal Appeal. Ms Purcell informed Mr Davidson that she had not spoken to the respondent since his departure from Australia and had not received any instructions from him with respect to the Crown appeal.

Decision

42 As I indicated near the beginning of this judgment, I am satisfied, on the basis of evidence, which I have now summarised, that the conditions for the operation of s 14A of the Criminal Appeal Act are satisfied. The evidence which I have summarised shows that the respondent was given notice of the appeal and of the date on which the appeal was to be heard. The evidence further shows that the respondent was warned that the Crown appeal could be dealt with in his absence and that, if the Crown appeal was allowed, the sentence previously passed on him could be increased and further shows that the respondent was informed of an offer by the authorities to pay his travelling and other expenses, if he returned to Australia for the hearing of the appeal. In these circumstances it would not be unjust for the Court to deal with the appeal and pass sentence in the absence of the respondent.

43 Section 21E of the Crimes Act pursuant to which the appeal was brought provides, so far as is relevant, as follows:-

“(1) Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must:

(a) if the sentence imposed is reduced—specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and
(b) if the non-parole period is reduced—specify that the non-parole period is being reduced for that reason and state what the period would have been but for that reduction.
(2) Where:
(a) a federal sentence is imposed or a federal non-parole period is fixed; and
(b) the sentence or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies as described in subsection (1); and
(c) after sentence, the offender, without reasonable excuse, does not co-operate in accordance with the undertaking;

the Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or of the non-parole period.

(3) Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person’s undertaking to co-operate with law enforcement agencies, the court hearing the appeal:
(a) if it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking —must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and
(b) if it is satisfied that the person has failed in part to co-operate in accordance with the undertaking —may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate.”

44 It is clear that on 16 October 2007 the Court of Criminal Appeal imposed a federal sentence and fixed a non-parole period and that both the sentence and the non-parole period were reduced because the respondent had undertaken to cooperate with law enforcement agencies in proceedings relating to a Federal offence and that, after being sentenced by the Court of Criminal Appeal, the respondent failed to cooperate in accordance with the undertaking he had given and that this appeal was brought by the Director of Public Prosecutions while the respondent was still under sentence.

45 It has been held that on an appeal under s 21E of the Crimes Act there is an onus on the Director to satisfy the Court beyond reasonable doubt that the failure of the offender to cooperate in accordance with his undertaking was without reasonable excuse R v YZ (1999) 162 ALR 265. In the present case the respondent declined to remain in Australia after the non-parole period of the sentence imposed by the Court of Criminal Appeal expired, on the grounds that he wanted to return to Germany to meet a deadline to enrol in a University course in Germany. However, before the non-parole period of the sentence expired and the respondent was released, law enforcement agencies provided the respondent with a return air ticket from Germany to Australia so that, if he returned to Germany, he could fly to Australia to give evidence at the committal proceedings to take place in October 2008 and offered to make arrangements for the respondent while he was in Australia, as set out in Mr Bantoft’s affidavit. It would have been necessary for the respondent to be away from Germany for only a few days. There is no evidence, apart from the evidence of what the respondent told Mr Bantoft before he was released, which could suggest that the respondent had any excuse not to cooperate with law enforcement agencies. I am satisfied beyond reasonable doubt that the respondent’s failure to cooperate in accordance with his undertaking was without reasonable excuse.

46 I am further satisfied that, within the terms of par (a) of sub-s(3) of s 21E, the respondent has failed entirely to cooperate in accordance with his undertaking. He has failed entirely to provide such co-operation as he has been called on to provide. He has not given evidence for the Crown in court proceedings as he promised to do in par (a) of his undertaking. Not having returned to Australia, he has not been called on to provide any assistance within the terms of pars (b) and (c) of the undertaking.

47 I have previously observed in this judgment that on 16 October 2007 the Court of Criminal Appeal reduced both the head sentence and the non-parole period because of the respondent’s undertaking to cooperate with law enforcement agencies. However, the actual order made by the Court of Criminal Appeal was to sentence the respondent to a non-parole period of two years nine months and a further period during which the respondent would be eligible for release on parole and Barr J made a statement pursuant to s 21E(1)(b) of the Crimes Act that the non-parole period had been reduced by 25 per cent on account of the promise of future assistance.

48 Accordingly, I accept a submission by counsel for the Director that this Court should intervene by substituting, for the reduced non-parole period fixed by the Court of Criminal Appeal in 2007, the non-parole period that would have been fixed but for the reduction and should leave intact the head sentence imposed by the Court of Criminal Appeal in 2007. The non-parole period that would have been imposed but for the reduction for future assistance would have been two years nine months plus one third of two years nine months, that is three years eight months, 25 per cent of which is two years nine months. If this Court were to proceed by substituting for the reduced head sentence the sentence that would have been imposed but for the reduction for future assistance, the anomalous result would be produced, which would be unfair to the respondent, that the respondent would be subjected to a head sentence of six years nine months, which would be higher than the head sentence of six years imposed by the original sentencing judge.

49 Section 14A(2) of the Criminal Appeal Act provides that if on a Crown appeal the Court decides to impose a sentence by way of full-time detention in the absence of the respondent and the respondent not being in custody at the time of the decision, the Court may decline to specify a commencement date for the sentence until the respondent appears before the Court for sentencing. In the present case, the Court should utilise this provision of the Criminal Appeal Act and decline to specify a commencement date for the sentence.

50 Section 14A(4) of the Criminal Appeal Act provides:-

“The court may, for the purpose of disposing of proceedings on a Crown appeal, or imposing a sentence in such proceedings (including specifying the commencement date for a sentence), issue a warrant to arrest a respondent if the respondent fails to appear before it and the court is satisfied:
(a) that the respondent has been given notice of the date on which the proceedings were to be disposed of, or the sentence imposed, or
(b) that attempts to give such notice have failed because the respondent’s whereabouts are unknown.”

51 This provision authorises the Court for the purpose of imposing a sentence on the respondent, which by virtue of the words in brackets in s 14A(4) includes specifying a commencement date for the sentence, to issue a warrant for the arrest of the respondent. Counsel for the Director submitted that a warrant should be issued and I consider that the Court should issue a warrant.

52 I would propose the following orders:-

1. Appeal against the sentence imposed on the respondent by the Court of Criminal Appeal on 16 October 2007 allowed.

2. Substitute for the non-parole period set by the Court of Criminal Appeal on 16 October 2007 a non-parole period of three years eight months.

3. The head sentence of four years six months imposed by the Court of Criminal Appeal on 16 October 2007 confirmed.

The Court does not at this stage specify a commencement date for the sentence.

53 SIMPSON J: I agree with James J.

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