R v W - [2002] NSWCCA 192

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v W [2002] NSWCCA 192 revised - 27/05/2002

FILE NUMBER(S):
60478/01

HEARING DATE(S): 10 May 2002

JUDGMENT DATE: 24/05/2002

PARTIES:
W - Applicant
Regina - Respondent

JUDGMENT OF: Sheller JA Levine J Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0242

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

COUNSEL:
A Haesler - Applicant
M Bracks - Crown

SOLICITORS:
Legal Aid Commission - Applicant
DPP (Cwlth) - Respondent

CATCHWORDS:
knowingly involved in importation of not less that a traffickable quantity of methylamphetamine
plea of guilty
discount on sentence for guilty plea
assistance to authorities
discount for assistance 25%
discount inadequate
any lesser sentence an affront to community standards
non-parole period
ratio of non-parole period to head sentence
ratio ordinarily 60% to 66-2/3%
ratio of 75% requires explanation
ratio not justified
non-parole period reduced

LEGISLATION CITED:
Customs Act 1901 (Cth)
Crimes Act 1914 (Cth)

DECISION:
Refer paragraph 41

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60478/01
SHELLER JA
LEVINE J
SIMPSON J
Friday 24 May 2002

REGINA v W

Judgment

SHELLER JA: I agree that the seriousness of the offence charged and the level of the applicant’s participation in it together with the other matters that Simpson J has recounted are such that this Court cannot interfere with the head sentence imposed by Shadbolt DCJ. I also agree for the reasons her Honour has given that the sentencing judge erred in fixing the non-parole period at 75 per cent of the head sentence. I agree with the orders that Simpson J proposes.
LEVINE J: I agree with Simpson J.
SIMPSON J: The applicant seeks leave to appeal against a sentence imposed on him in the District Court by Shadbolt DCJ on 22 June 2001 following the applicant’s plea of guilty to a single charge of being knowingly involved in the importation of not less than the traffickable quantity of methylamphetamine, brought under s233B(1)(d) of the Customs Act 1901 (Cth). That statute provides a maximum penalty of imprisonment for 25 years for the offence. Shadbolt DCJ sentenced the applicant to imprisonment for seven years, with a non-parole period of five years and three months, to commence on 10 December 2000, the date of the applicant’s arrest. In doing so his Honour said that the sentence he would otherwise have imposed had been reduced by 50% by reason of the applicant’s timely plea of guilty and accurate information relevant to the prosecution of other offenders that the applicant had given to the authorities. He further stated that 25% of that figure was attributable specifically to the assistance given, half of that for assistance already given and half for assistance anticipated in the future. A little later, in compliance with s21E of the Crimes Act 1914 (Cth), his Honour said that, but for the assistance anticipated in the future, the sentence would have been eight years and nine months with a non-parole period of six years and three months.
The assistance given,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v W

Details

AGLC: R v W [2002] NSWCCA 192
Case: [2002] NSWCCA 192
Decision Date: 24 May 2002

CaseChat Overview and Summary

The case of R v W involved the sentencing of the applicant, who had pleaded guilty to knowingly being involved in the importation of a traffickable quantity of methylamphetamine. The court was tasked with determining the appropriate sentence, considering the plea of guilty, the extent of the applicant's assistance to the authorities, and the gravity of the offence. The primary legal issues centred on the discount to be applied for the guilty plea and the assistance provided, as well as the determination of the non-parole period as a proportion of the head sentence.

The court acknowledged the applicant's extensive assistance to the authorities, which was deemed to be of very high value. Despite this, the court found that the discount for the guilty plea and the assistance already provided was adequate, and that a lesser sentence would be an affront to community standards. The court also considered the objective seriousness of the offence, the large quantity of narcotics, and the applicant's significant role. Given these factors, the court upheld the sentence, including the non-parole period which was set at 75% of the head sentence. This decision was justified by the court, which considered the applicant to be a professional criminal with a history of involvement in similar criminal activities.

The court's reasoning highlighted the importance of community standards and the gravity of the offence in determining the sentence. The applicant's past criminal activities, even though not resulting in prior convictions, were taken into account in setting both the head sentence and the non-parole period. The court emphasised that the non-parole period should generally fall within the range of 60% to 66-2/3% of the head sentence, but in this case, the circumstances warranted a higher ratio of 75%. This decision was based on the applicant's professional criminal status and the need to maintain community confidence in the criminal justice system.

The final orders of the court upheld the sentence imposed, including the non-parole period set at 75% of the head sentence, reflecting the gravity of the offence and the applicant's significant criminal history.

Orders

Orders of the court

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Background

Background to the litigation

The assistance given, and an assessment of its value, were provided to Shadbolt DCJ, to be retained in a sealed envelope. It is sufficient to say that that material, which I have examined, discloses a very high level of assistance on the part of the applicant.the facts The indictment alleged that the applicant committed the offence between 1 November and 15 December 2000. A lengthy statement of facts was placed before the sentencing judge. This revealed that two shipping containers arrived in Australia from China via Singapore on 19 November 2000. On 29 November the containers were taken to an industrial site in Mascot. Concealed within the containers were 82 boxes of methylamphetamine, containing a pure weight of 66.332kg of the drug, with an estimated street value of $24 million. The metal struts of the containers had been modified so as to provide concealed spaces in which the drugs could be secreted. The applicant’s assigned task in the importation was to cut through the containers using tools and equipment purchased for the purpose, remove the drugs, re-weld the damaged metal, and disguise his work; then to deliver the drugs to several locations in Sydney. He was competent to cut and re-form the metal struts because he held qualifications in metal work. The applicant acted under the instructions of a man called So Chi-Hung, whom he had known since about 1985 when he worked in a smash repair shop in Hong Kong. Nevertheless, Shadbolt DCJ found that the applicant was intimately involved in the criminal undertaking. Police had become aware of the importation and they removed the bulk of the amphetamine from the containers, replacing it with an inert substance. On 9 December the applicant drove to Mascot, and, using tools he had purchased for the purpose, cut into the containers and extracted the substitute substance. He secured the 82 packages within the premises. On 10 December he returned to the Mascot address and dismantled the packages and repacked the substance into 72 brown paper packages. He separated these into three, and placed them in three separate sports bags, which he then placed in a rented motor vehicle. He drove into the city and, after receiving a telephone call from So, redelivered two of the bags to Macot. He drove the vehicle to a casino carpark and transferred the third bag to a vehicle driven by another co-offender, Michael Lee. He was under surveillance all this time and was arrested on the afternoon of 10 December. The applicant was interviewed through an interpreter and gave some answers that could be said to be incriminating. For example, he identified some keys on his key ring as “for a warehouse” and said that amphetamine was contained in the warehouse. The following day he agreed to cooperate with police, and did so extensively. On 17 January 2001 the applicant made a lengthy statement in which he gave detailed information about his involvement with So, and his participation in the importation. He revealed that as early as January 2000 So had involved the applicant in what appears to have been an earlier importation, and that he (the applicant) had travelled to Australia in May of that year where he had performed a task similar to that which he performed in respect of the present offence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Not without a great deal of hesitation, I have come to the view that, having regard to those two circumstances, any sentence less than the head sentence imposed would constitute an affront to community standards. Accordingly, notwithstanding my view that, ordinarily, having regard to the level and the value of his assistance, the applicant would have been entitled to a more extensive discount on sentence, the other circumstances (the generous discount for the plea of guilty, the starting point when viewed against the statutory maximum and the judge’s finding as to the gravity of the crime itself) require that the sentence be upheld.the ratio of the non-parole period to the sentence The second ground of the application concerned the proportions between the non-parole period and the head sentence. In this case the non-parole period is 75% of the head sentence. In written submissions both the Crown and counsel for the applicant agreed that the authorities establish that (in the words of the Crown’s written submissions):“It is generally appropriate for the ratio of the non-parole period to head sentence, duly adjusted after having regard to s16G of the Crimes Act 1914 all other relevant subjective factors, to be approximately sixty per cent to sixty-six and two thirds per cent: R v Bernier (1998) 102 A CrimR 44. A non-parole period in the region of seventy-five per cent should be reserved for the worst class of case: R v Paull (1990) 20 NSWLR 427 at 435, R v Silgado-Silva (NSWCCA, unreported, 28 September 2001).” Counsel for the applicant referred also to the decision of this court in R v Bugeja [2201] NSWCCA 196; unreported, 11 May 2001 in which Adams J expressed the view that significant departure from the usual proportion would require comprehensive explanation. On the application of the principle, however, counsel parted company. The Crown argued that the objective seriousness of the offence, the large quantity of narcotics and the important role undertaken by the applicant justified and even required such a departure. What his Honour said, in explanation for the course he took, was this:“I have had regard in setting that non-parole period of three quarters of the head sentence to the fact that this prisoner came to this country on several occasions for the purpose of committing crime or assisting in their commission in the sense of being an accessory after the fact. I regard him as a professional criminal and any lesser non-parole period would not in his case be appropriate.” It seems to me that the circumstances there referred to are circumstances relevant both to the head sentence and to the fixing of the non-parole period. As counsel for the applicant pointed out, the factual foundation for the observations contained in that passage emerged from the information given by the applicant. It therefore, on the one hand, afforded him an entitlement to a discount, while at the same time being used to increase the non-parole period. Further, counsel for the applicant submitted that the reasoning extracted above suggests that the applicant was punished more harshly by reason of offences committed in the past. It is plain that, notwithstanding the fact that he had no prior criminal convictions, the applicant was precluded from putting himself forward as a person of good character. He therefore was not entitled to claim leniency on that account. But that circumstance applies equally to the selection of the head sentence as to the selection of the non-parole period. Indeed, that was taken into account in his Honour’s recitation of such subjective factors as were before him. His Honour said:“It is not maintained by his counsel that he is a person of good character but only that he is a person of no convictions in this country until this date.”