ZZ v R

[2019] NSWCCA 286

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	ZZ v R [2019] NSWCCA 286
Hearing dates:	27 November 2019
Decision date:	12 December 2019
Before:	Hoeben CJ at CL at [1]; R A Hulme J at [2]; Button J at [41]
Decision:	1. Grant leave to appeal and allow the appeal. 2. Quash the sentence imposed in the District Court on 12 October 2018 and substitute a sentence of imprisonment for 4 years, 4 months with a non-parole period of 2 years, 9 months dating from 15 April 2017. The applicant will become eligible for release on parole when the non-parole period expires on 14 January 2020.
Catchwords:	CRIME – application for leave to appeal against sentence – drug importation offences – whether applicant provided assistance to authorities – offender provided information including name, description, and location of recruiter to authorities in post-arrest interview – finding at sentence that information was of no real assistance to authorities – post-sentence police interview with German authorities – initial information provided by offender confirmed to be true and correct – further information provided by offender of “great value” to German prosecution of recruiter – whether evidence of post-sentencing events is admissible – principle that post-sentence events can be taken into account where significance of facts not appreciated until after sentence – applicant entitled to reduction of sentence for co-operation with authorities pursuant to s 16A(2)(h) Crimes Act 1914 (Cth)
Legislation Cited:	Crimes Act 1914 (Cth), ss 16A(2)(h), 16F Criminal Code (Cth), s 307.2(1)
Cases Cited:	DL v The Queen [2018] HCA 32; (2018) 358 ALR 666 R v Green (1918) 13 Cr App R 200 Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 R v Smith (1987) 44 SASR 587
Category:	Principal judgment
Parties:	ZZ (Applicant) Regina (Respondent)
Representation:	Counsel: Mr T Quilter (Applicant) Ms S Callan (Crown)   Solicitors: Legal Aid (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2017/114159
Decision under appeal	Court or tribunal: District Court Date of Decision: 12 October 2018 Before: Buscombe DCJ File Number(s): 2017/114159

HEADNOTE

[This headnote isnotto be read as part of the judgment]

The applicant was sentenced in October 2018 following a plea of guilty to Commonwealth drug importation offences. The offending was detected at Sydney’s international arrivals terminal, where police discovered just under a kilogram of cocaine concealed in her suitcase. Following her arrest, the applicant provided information about the name, description, and potential location of the person in Germany who had recruited her to work as a drug courier.

The provision of that information was disregarded by the sentencing judge, who said that there was no suggestion that it had provided any real assistance to authorities in Germany. Following the imposition of sentence, the applicant participated in an interview with German authorities and provided further information about the recruitment process, the recruiter, and another person involved in the importation. Inquiries later confirmed the initial information provided by the offender to be true and correct, and the interview was described as being of “great value” to the German prosecution process.

The applicant applied for leave to appeal against her sentence on the basis of a single ground:

A miscarriage of justice occurred because the sentencing judge mistook the value of the applicant’s assistance to authorities.

At hearing, the applicant’s case was confined to the issue that the information the applicant had provided in her interview following arrest was not appreciated at the time of sentencing, but was subsequently confirmed to be true and correct information. That enlivens the statutory obligation in s 16(2)(h) of the Crimes Act 1914 (Cth) and entitles the applicant to a discount for her cooperation on re-sentence.

The Crown contended that evidence of post-sentence events is not admissible, apart from in confined circumstances. Furthermore, the Crown opposed the applicant’s appeal on various bases including that the applicant had provided accounts that varied from one another, that the applicant had not made any offers to assist German authorities, that the subsequent cooperation could not be used to recharacterise the applicant’s initial cooperation, and that the information could have been provided at a point prior to sentence, but was not.

The Court of Criminal Appeal (Hoeben CJ at CL, R A Hulme J, and Button J) allowed the appeal, holding:

1. The applicant was entitled to a reduction of sentence for cooperation with authorities pursuant to s 16A(2)(h) Crimes Act 1914 (Cth) because:

a.   The general proposition is that evidence of post-sentencing events is inadmissible on appeal: [1] (Hoeben CJ at CL), [20] (R A Hulme J), [41] (Button J).

Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 applied.

b.   The exception to the general proposition is that “it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence”: [1] (Hoeben CJ at CL), [21] (R A Hulme J), [41] (Button J).

R v Smith (1987) 44 SASR 587 per King CJ at 588 cited; R v Green (1918) 13 Cr App R 200 and Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 referred to.

c.   Evidence of post-sentence conduct – the interview with German authorities and assessment of the value of her cooperation – is admissible to show that the applicant is entitled to a reduction of her sentence on account of her cooperation with authorities in her initial interview with police following arrest, even in circumstances where the value of her cooperation was not appreciated until after she was sentenced: [1] (Hoeben CJ at CL), [30] (R A Hulme J), [41] (Button J).

d. The applicant’s initial cooperation with police and post-sentence cooperation with German authorities must be fully taken into account because it is relevant to the question of whether a lesser sentence is warranted pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW): [1] (Hoeben CJ at CL), [33] (R A Hulme J), [41] (Button J).

Judgment

1. HOEBEN CJ at CL: I agree with R A Hulme J and the orders which he proposes.

2. R A HULME J: A non-publication order was made in this matter at the outset of the hearing prohibiting publication of certain matters including the name of the applicant. The order was not opposed by the Crown.

3. The applicant was sentenced in the District Court on 12 October 2018 for an offence of importing a marketable quantity (824.4g) of cocaine at Mascot between 15 and 16 April 2017.

4. The offence is contrary to s 307.2(1) of the Criminal Code (Cth). The maximum penalty is imprisonment for 25 years. His Honour Judge Buscombe imposed a sentence of imprisonment for 5 years with a non-parole period of 3 years, 2 months. The non-parole period expires on 14 June 2020.

5. The applicant had pleaded guilty and the judge reduced the sentence he would otherwise have imposed by 25%.

6. Leave is sought to appeal on one ground:

A miscarriage of justice occurred because the sentencing judge mistook the value of the applicant's assistance to authorities.

The offence

7. The applicant and her de facto partner arrived at Sydney International Airport on 15 April 2017 on a flight from Germany. They were German citizens travelling to Australia on tourist visas. They each brought a suitcase. Each suitcase was found to have cocaine secreted in the lining. The gross weight was almost a kilogram and the pure weight of cocaine in the applicant's case was 824.4g. (There was 817.4g in her partner's case.)

8. The applicant agreed to be interviewed following her arrest on 15 April 2017. For present purposes, it is of note that she told Australian Federal Police officers that she had been recruited to bring the suitcase to Australia by a named person. The arrangement was that she and her partner would be met by someone in Sydney who would take the suitcases from them. She told the officers not only the name of the recruiter, but also gave a description and said that she thought the person lived in a particular village.

9. The applicant gave evidence in the sentence proceedings. This included a more detailed account of her recruitment as a drug courier. It also dwelt at some length on the extent and timing of her awareness that the suitcases contained drugs. In the end, the judge found that the evidence she gave on that subject was not consistent with what she told police upon her arrest. Nevertheless, he accepted that she did not have actual knowledge about the cocaine and dealt with her on the basis that she was reckless in the sense that she was aware of a substantial risk that the suitcase contained a border-controlled drug and, having regard to the circumstances known to her, it was unjustifiable to take that risk. [1]

   1. Remarks on Sentence (ROS), 12 October 2018 at Appeal Book (AB) at pp 89-90.

The applicant’s personal circumstances

10. The applicant was a middle-aged woman with no previous criminal history. She had been married for 20 years and had two children, now adults. She had been in her current relationship for eight years. She had no history of adverse mental health or any history of problematic drinking, drug taking or any other antisocial issues.

11. The applicant remained in custody after her arrest. A psychologist assessed her as having "very high levels of psychological distress and emotional symptomology", but that this would abate upon her release from custody. One of the difficulties she encountered in custody was that she did not speak English and no other inmate spoke her language.

12. The sentencing judge concluded that her lack of criminal record entitled her to some leniency. He considered that she was genuinely remorseful. She was entitled to a 25% reduction of sentence because of her early plea of guilty and her remorse. She was assessed as having good rehabilitation prospects.

Co-operation with law enforcement authorities

13. It is a statutory requirement that in sentencing for a federal offence, a court must take into account "the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences": Crimes Act 1914 (Cth), s 16A(2)(h).

14. A submission was made to the sentencing judge that the disclosure of information by the applicant following her arrest, including the provision of the name and description of the person who had recruited her to import the drugs into Australia, should be taken into account pursuant to s 16A(2)(h). The judge said: [2]

"The offender gave an interview to the authorities when arrested but I do not accept that she provided any useful information to them, as my review of her evidence shows [she], told some lies even on her own account. She has provided the name of the person, she says, recruited her to the importation, but there is no suggestion that has been of any real assistance to the authorities. In my view there should be no further reduction to her sentence for assistance to the authorities in this situation."

2. ROS at AB 99-100.

15. It is accepted that the applicant was not entirely forthcoming with the arresting police officers as to the details of the recruitment process and matters relevant to the recruiter; the significant matters she disclosed were confined to the three matters described above (at [8]). However, there is no dispute that she provided considerably more detail in an interview with German police and prosecuting officials who interviewed her in Sydney on 14 January 2019.

16. Inquiries carried out on the applicant's behalf have revealed the following:

• The Australian Federal Police did not pass on to German authorities any of the information provided by the applicant in her interview on 15 April 2017. [3]

• The "statement" (namely, the interview on 14 January 2019) of the applicant was regarded by the German authorities as "an essential piece of evidence against" the recruiter (and another). [4]

• In recent months, the German authorities have finalised charges against the recruiter (and another), inter alia, for bringing cocaine to Australia and for having recruited the applicant and her partner.

  3. Affidavit, Stephen Eccleshall, 30 September 2019, Annexures K and M.

  4. Ibid, Annexures K, M, P and Q.

17. An affidavit by an Australian Federal Police officer read by the Crown annexes a letter from the German authorities in which it is said that the applicant's assistance – in the form of her interview on 14 January 2019 – was "of great value to the prosecution process in Germany".

18. There was no assessment by the German authorities as to what value they might have assigned to the more limited disclosure made by the applicant in her interview on 15 April 2017. However, it may be seen in retrospect that her nomination of the person who recruited her to import the drugs was of some significance. Her provision of the name, description, and place where the recruiter was thought to live must have been of some value.

19. At the time of sentencing, there was no basis upon which the foregoing could have been assessed. As no assessment had been made by the German authorities, it was not even known if the details the applicant gave about the recruiter were true. They are now known to be true.

20. Both parties assisted the Court with a discussion of various authorities concerned with the question of whether evidence of events post-sentencing may be admitted. It is clear that such evidence is only admissible in certain confined circumstances. One of the most often cited authorities is Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509. In that case, Simpson J (as her Honour then was) helpfully explained that this Court's power "to quash a sentence and pass another sentence is dependent upon identification of error, either in the sentencing process or in the outcome of the sentencing process". Her Honour said that it follows from this that "evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be". [5]

    5. Khoury v R, [110].

21. One of the exceptions to this general proposition is where "on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence", but "the sentencing proceeded upon an erroneous view of the factual circumstances". [6] Simpson J referred to R v Smith (1987) 44 SASR 587 at 588 in relation to this. There, King CJ said, "it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence".

    6. Khoury v R, [113].

22. King CJ cited R v Green (1918) 13 Cr App R 200 in relation to that proposition. In that case, the judge who passed sentence had been informed that the appellant had given certain information to the police. After sentencing, the police subsequently found that the information was true and it led to the recovery of the proceeds in a number of larceny cases and to the appellant giving evidence that led to the conviction of an offender. In relation to the sentencing judge not having taken the appellant's assistance to the police into account, Avory J said (at 201):

"That was possibly because it may easily be said that a man has given information to the police, but until it is ascertained that the information is of any service it may be right not to give any effect to it. This Court knows, however, what occurred subsequently, and is of the opinion that the appellant should have the benefit of it."

23. The Crown's response in the present case comprised a skilfully formulated opposition to the ground of appeal on a number of bases. It was submitted that the applicant had given evidence on sentence that varied from what she said in her 15 April 2017 interview with police, particularly as to her knowledge about the content of the suitcases. She had given additional detail about phone contact with both the recruiter and another person involved. She had lied during the interview; for example by saying that she did not have a telephone number for the recruiter, whereas in sentence proceedings on 31 August 2018, she disclosed that she did she have the number and had communicated with the recruiter about the forthcoming trip to Australia via messages.. It was also contended that although she had named the recruiter, she had minimised that person's involvement, only to expand upon it in her evidence on sentence.

24. It was emphasised that the applicant's account in the 15 April 2017 interview was one given in the course of denying responsibility for the offence. The police were entitled to have regard to the whole of the applicant's account in determining whether it was credible and useful.

25. The Crown also observed that after having pleaded guilty in October 2017, there were no attempts made by the applicant up until her sentencing to approach law enforcement authorities to correct or clarify her earlier account, or to offer to assist German authorities.

26. It was submitted that in these circumstances, the judge was entitled to conclude that no reduction of sentence ought to be afforded. However, the applicant contends otherwise.

27. The Crown then sought to characterise the applicant's co-operation with authorities subsequent to sentencing as separate to her provision of information before. It was submitted that it could not be used to alter the characterisation of her interactions with law enforcement prior to sentence.

28. The Crown did not dispute that there was value in the assistance that the applicant eventually did give to the German authorities. So much was confirmed by the letter of assistance that was annexed to an affidavit read by the Crown. It was submitted, however, that such information provided subsequently served to demonstrate that the applicant could have provided it at a point prior to sentence, but did not.

29. The matters put by the Crown are acknowledged. However, the case as presented at the hearing of the application was more confined than what had previously been put in the written submissions for the applicant. It was confined to a contention that what the applicant had provided in her interview of 15 April 2017 was not appreciated at the time of sentencing, but was subsequently confirmed to be information that was true and correct.

30. In my view, the applicant has been shown to be entitled to a reduction of her sentence on account of her co-operation with law enforcement authorities in her 15 April 2017 interview, even in circumstances where the value of her co-operation was not appreciated until after she was sentenced.

Re-sentencing

31. There was no challenge to any of the findings of the sentencing judge as to the objective aspects of the offending or in respect of the applicant's personal circumstances. It is therefore appropriate for this Court to proceed upon an acceptance of them: DL v The Queen [2018] HCA 32; (2018) 358 ALR 666 at [9].

32. The learned sentencing judge assessed the objective seriousness of the offence as "below the mid-range level", but not at "the bottom of the range for offences of this type". [7] Relevant aspects of the applicant's subjective case and findings made by the judge have been summarised above (at [10]-[12]).

    7. ROS, AB 91.

33. Post-sentence conduct by the applicant is relevant to the question posed by s 6(3) of the Criminal Appeal Act 1912 (NSW): whether a lesser sentence is warranted. [8] Accordingly, the applicant’s 14 January 2019 co-operation with law enforcement must be fully taken into account, not just in shedding light on the significance of her pre-sentence co-operation. The 14 January 2019 interview involved disclosure by the applicant of the involvement of another person in the preparations for her bringing cocaine to Australia. This was the person who came to her home and provided the suitcases containing the drug to the applicant and her partner. The applicant's interview was provided to the German court, and hence to that person, at the end of January 2019. He made a confession to his involvement with the applicant and her partner soon after. The response by the German prosecutor to a question posed by the applicant's solicitor as to the value of his client's assistance in this respect was that substantial other evidence was available in respect of that man and: [9]

"Whether and to what extent he would have confessed without knowledge about the information given by [ZZ] cannot be determined".

8. DL v The Queen, [9].

9. Affidavit, Stephen Eccleshall, 30 September 2019, Annexure M.

34. In relation to the recruiter, the applicant provided a far more detailed account of her interaction with this person. As indicated above (at [17]), the German authorities regard this as an “essential piece of evidence” and that person now faces prosecution.

35. The applicant swore an affidavit for re-sentencing purposes. It confirms that the difficulties of her custodial experience as portrayed at her original sentencing have continued. She is concerned about an aspect of her physical health; arthritis in particular. In the absence of medical evidence, however, it is difficult to make an assessment of the significance of this. Documents obtained by the applicant's solicitor from Corrective Services NSW confirm that she is a well-regarded inmate in relation to her work and her interaction with other inmates. This is commendable, but was predictable on the material tendered at her sentence hearing and the favourable findings made by the judge.

36. There is need to have regard to the principle of parity. For virtually identical offending and with a subjective case that was just as favourable, the applicant's partner received the same sentence. His sentence was reduced for his plea of guilty and expressions of remorse by the same degree as the applicant's. This does not compel the Court to presently adopt the same starting point for the applicant's sentence. However, in the absence of any matters of significance arising in the re-sentence material aside from her co-operation with law enforcement, it provides a certain degree of constraint.

37. Looking at the matter afresh, I am satisfied that in the context of the statutory guidepost of 25 years imprisonment as the maximum penalty for the offence, a sentence of 6 years, 8 months as a starting point – the same as adopted by the primary judge – is an appropriate sentence.

38. I propose that the sentence be reduced by 35% on account of the applicant's plea, remorse, and co-operation with law enforcement agencies.

39. Pursuant to s 16F of the Crimes Act, a court imposing a federal sentence with a non-parole period must explain, or cause to be explained, certain aspects of the sentence to the offender. In the circumstances, the Court expects the applicant's solicitor will do so.

Orders

40. I propose the following orders:

1.   Grant leave to appeal and allow the appeal.

2.   Quash the sentence imposed in the District Court on 12 October 2018 and substitute a sentence of imprisonment for 4 years, 4 months with a non-parole period of 2 years, 9 months dating from 15 April 2017. The applicant will become eligible for release on parole when the non-parole period expires on 14 January 2020.

41. BUTTON J: I agree with R A Hulme J.

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Endnotes

Amendments

10 March 2020 - [31] - Typographical error

Decision last updated: 10 March 2020