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, 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.
Having regard to the quantity and street value of the drug involved, Shadbolt DCJ considered that, objectively, the offence fell into the category of the most serious of its type but added that the applicant’s criminality was to be regarded as “somewhat less than the most serious criminality of those amenable to Australian criminal laws”.
Virtually no subjective material was placed before his Honour for sentencing purposes. There was no pre-sentence report. The applicant gave and called no evidence. All that his Honour knew of the applicant was that he was forty-two years old, was a citizen of Hong Kong, and spoke no English, only Cantonese, a language in which he is literate. Prior to his arrival in Australia he had no fixed residence. He had completed an apprenticeship in Hong Kong and was a qualified smash repairer and motor mechanic, welder and metal worker. It was while working in this industry that he met and became friends with So and eventually went to work for him as a vehicle smash repairer. After he ceased this employment the friendship continued. This information is derived from the statement made by the applicant on 17 January 2001. Pursuant to s21E of the Crimes Act 1914 the applicant signed an undertaking to give evidence for the Crown in any court proceedings, including confiscation proceedings, nominated by the Crown relating to offences committed by So, Lee or Thanh Phong Nguyen. The applicant has no previous criminal convictions.
Shadbolt DCJ accepted a submission made by the applicant’s legal representative that the applicant played a subordinate role in the enterprise. He also noted the early plea of guilty and the assistance already given and promised for the future.
The criticisms made of the approach taken by the sentencing judge are twofold. Firstly, it was submitted that the discount for assistance did not adequately recognise the level and value of that assistance; secondly that the fixing of a non-parole period of 75% of the head sentence was erroneous and based on fallacious reasoning.
discount for assistance
It is necessary to notice certain provisions relating to sentence contained in the Crimes Act 1914.
S16A(1) is in the following terms:
“(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a Federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.”
In s16A(2) is provided a (non exhaustive) catalogue of matters a sentencing court is required to take into account if they are known and relevant. Significantly, for present purposes, sub-paragraph (h) specifies:
“the degree to which a person has cooperated with law enforcement agencies in the investigation of the offence or of other offences”
as one such matter.
Sub-paragraph (k) requires that:
“the need to ensure that the person is adequately punished for the offence”
be taken into account.
In s21E the legislature acknowledges that a sentence may be reduced by reason of cooperation with law enforcement agencies and obliges the sentencing court to identify the period by which the sentence is thereby reduced.
The principles relating to the discounting of sentences for assistance to prosecution authorities were reviewed and extensively discussed in R v Cartwright (1989) 17 NSWLR 243. Among other things, it was there recognised that, in the ordinary course, an offender who decides to assist authorities is likely to serve any sentence in the more onerous conditions of protection, and this in itself is a factor relevant to the extent of the discount. In the present case it was recognised that the applicant will serve his sentence in such circumstances.
As the majority observed in Cartwright, the infinite variety of circumstances of different cases precludes prescriptive quantification of the appropriate discount. However, the facts of that case were not dissimilar to the present. Cartwright had been convicted by a jury on two counts of conspiracy to import heroin. Notwithstanding his plea of not guilty (which was solely based on a claim that he had acted under duress), Cartwright had, from the day of his arrest, given detailed information not only about the two importations in which he and his co-offenders had been involved, but had also given information about a different importation, of cocaine. There was evidence from a police officer that Cartwright had given more information than that, and that the authorities were in possession of information that his life was threatened. It appears that the information given about the specific matters was accepted as valuable and truthful and it further appears that other matters concerning threats to his life were accepted as accurate. Taking all these things into account, the court concluded that a discount of one third, which had been given, was inadequate. The court said:
“The discount appropriate in this case was required to be a substantial one. The assistance given by the applicant to the authorities was extensive. The judge described it as full and frank. It was clearly made willingly and, according to the unchallenged evidence of the police officer, it was demonstrative of the applicant’s remorse. The assistance given was obviously such as to be potentially of significance to the authorities in their investigations and in the prosecution of others, and indeed it had proved to be so in fact. It was not suggested that the applicant had any reason to believe that the authorities were already in possession of the information which he gave. His life was under threat, and he was under special protection in gaol. He was, in our view, clearly entitled to far more than merely a one third discount. In our view, the appropriate discount was at least one half.” (p256)
Much of this is applicable in the present case. All that is lacking is evidence that the information given by the applicant was demonstrative of his remorse for his involvement in the offence.
Many cases have been decided since Cartwright.
I have come to the conclusion that a discount of 25%, in view of the assistance the applicant had already given and had promised to give, was inadequate. The reasons for giving substantial discounts in those circumstances were explained in Cartwright. They include the encouragement of others to adopt the same course.
Two matters however, cause me to hesitate before proposing that the applicant’s sentence be even further discounted. The first is that the discount he was allowed in respect of his early plea of guilty was, on any view, generous. It is, in fact, at the top of the range specified for the utilitarian value of a plea (applicable to state offences) stated in the guideline judgment in R v Thomson and Houlten [2000] NSWCCA 309; 49 NSWLR 383. I do not doubt that here the utilitarian value of the plea of guilty was high. A trial would have involved interpreters, evidence of surveillance officers and more. It is not for this court to reconsider the quantification of the discount allowed for the plea, but, although it was high, I am of the view that it was open to the sentencing judge to discount to that extent. On the other hand, I consider it a proper matter to balance such a discount against the correspondingly ungenerous quantification of the discount for assistance.
The other matter that causes me to pause is the overall sentence. In the end, the applicant was sentenced to imprisonment for seven years with a non-parole period of five years and three months. This was in the context of his having been actively and intimately involved in the importation of a huge quantity of methylamphetamine, as can be judged by its street value alone. His participation was extensive, both in terms of duration, and in terms of day to day involvement. His involvement was professional and skilled. The stated discount of 50% indicates that the starting point of the sentence was fourteen years with a non-parole period of ten and a half years. This was after the reduction required by s16G of the Crimes Act to account for the absence of remissions in this State. His Honour stated that that discount was itself one third (which is a conventional figure). This is against a maximum available sentence of twenty-five years, and in the context that the sentencing judge considered the crime to be of the most serious of its type, but that the applicant’s criminality was “somewhat less” than that.
In my opinion this case exemplifies the collision of two important sentencing principles. The first is that offenders who, at considerable risk and discomfort to themselves (and risk to their families) give valuable assistance to law enforcement authorities, are entitled to be rewarded by appropriate reductions in the sentences imposed in respect of their crimes. On occasions, these reductions may be so significant as to engender some disquiet, at least when the result of the application of the discount is exposed. I have already referred to the extent of the discount given in Cartwright.
In R v Raz, unreported, NSWCCA 121, 17 December 1992, Hunt CJ at CL with whom Badgery-Parker J agreed (Mahoney JA dissenting) applied a discount of 55%. So far as can be ascertained from the report, and it contains considerable detail, the assistance given by that applicant was comparable with that given by the present applicant. In that case the offence was one of importing two kilograms of cocaine, an offence which, like the present, carries a maximum penalty of imprisonment for twenty-five years. Re-sentencing, Hunt CJ at CL began with a head sentence of ten and a half years (after the s16G adjustment) which, when reduced by 55%, resulted in a sentence of four years and nine months. That was the sentence imposed after appeal. A non-parole period of three years and six months was fixed.
The second sentencing principle to which I referred is the principle (embodied in s16A(1)) that a court must not impose a sentence that is unacceptably low having regard to the objective circumstances of the offence. In Raz Hunt CJ at CL wrote:
“…a court granting a discount for assistance given to the authorities must ensure that the ultimate result achieved by that discount is not so far out of touch with the circumstances of the particular offence and the particular offender that – even understood in the light of the public interest that offenders should be encouraged by the giving of such discounts to supply information to the authorities in order to bring other offenders to justice – the sentence imposed nevertheless constitutes an affront to community standards. … There is a clear tension between the utilitarian consideration of encouraging offenders to give such assistance and the general need for the sentences which are imposed to act by way of public deterrence …”
I have found the balancing of these two important principles in the present case extremely difficult. There is no doubt that the applicant’s assistance has been valuable and that he has put himself and, no doubt, his family, at significant risk. It has made the circumstances of his incarceration more onerous. Against that must be set the objective circumstances of the crime – the quantity of the drug (66.332kg) and his level of participation.
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.”
I have come to the view that departure from the norm in the fixing of the non-parole period of 75% of the head sentence was an error, it not being justified by the circumstances referred to by the sentencing judge. To that extent, I have reached the view that the sentence imposed should be quashed and the applicant resentenced.
Against the possibility that the court might reach that view some additional material was received. This included some subjective material of which his Honour was deprived. The applicant himself swore an affidavit. He deposed as to his family circumstances. He has been married to his present wife since 2000 and they have a daughter aged fifteen months who was born after his incarceration. He is able to speak with his wife by telephone about once a month and receives a letter about once every four or five months. His wife tells him that she is frightened and has had to move house five times in the last year because of fears for her safety. He himself also fears for her safety and feels helpless. He fears repercussions on his release. He is estranged from his parents because they do not recognise his current marriage. From a former marriage he has two teenage children who live in Hong Kong.
There was also a letter from the applicant’s wife in which she confirmed some of the matters referred to by the applicant. She says she has been threatened and has therefore moved house five or six times but is unable to get away from “the persecutions”. She has no financial support.
Moving as they are, these circumstances do not affect the selection of the sentence. Hardship for third parties, including families, may only be taken into account as a sentencing factor where the circumstances are highly exceptional or where it would have been, in effect, inhuman to refuse to do so: R v Edwards (1996) 90 A CrimR 510. I do not consider these circumstances should influence the resentencing.
I propose the following orders:

leave to appeal be granted;
the appeal allowed, the sentence be quashed;
in lieu thereof the applicant be sentenced to imprisonment for seven years with a non-parole period of four years and seven months.

LAST UPDATED: 27/05/2002