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9
Court of Criminal Appeal 2 August 2001

R v Hameed

[2001] NSWCCA 287

Also reported as 123 A Crim R 213
Drugs
CRIMINAL LAW SENTENCING AMBIT OF "SPECIAL CIRCUMSTANCES"

Citation: Hameed v R [2001] NSWCCA 287
Court: NSW Court of Criminal Appeal
Date: 2 August 2001
Judge(s): Simpson J; Sperling J

Background

The applicant pleaded guilty in the District Court in March 2000 to three counts of supplying heroin, including two counts involving quantities at or above the large commercial threshold, attracting a maximum penalty of life imprisonment. Two further supply offences were taken into account on a Form 1. The sentencing judge, Howie DCJ, imposed an effective total sentence of seven years and four months, comprising a minimum term of five and a half years and an additional term of twenty-two months.

The applicant sought leave to appeal against the severity of the sentence. Central to the appeal were questions about how the sentencing judge had handled the discount for the early guilty plea, the discount for assistance provided to authorities, and the treatment of special circumstances in setting the non-parole period.

Importantly, the sentence was imposed before the Court of Criminal Appeal published its guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309, which substantially changed how guilty pleas are to be assessed in sentencing.

  • Whether the sentencing judge erred in the credit given for the applicant's early guilty pleas, particularly by treating the strength of the Crown case (bolstered by the applicant's own assistance to police) as diminishing the value of the plea as evidence of contrition
  • Whether the approach to combining the guilty plea discount and the assistance discount was correct
  • Whether the sentencing judge erred in applying an unduly strict approach to "special circumstances," thereby failing to reduce the minimum term sufficiently to reflect factors such as the guilty plea, the assistance provided, and the burden of serving the sentence in protection
  • Whether, if errors were established, the Court would in fact impose a lesser sentence on resentencing

Decision

On the guilty plea and assistance discount: The Court found that, read in context, the sentencing judge had not fallen into the error of penalising the applicant for having assisted police by treating that assistance as reducing the value of the subsequent plea. Simpson J concluded that what Howie DCJ had in mind was the risk of a double benefit, not an unfair cancellation of credit. Because the assistance itself had already strengthened the Crown case, treating both the plea and the assistance as attracting separate quantifiable discounts could have allowed the applicant to benefit twice from essentially the same conduct. The sentencing judge's approach was explained by the fact that, pre-Thomson and Houlton, the utilitarian value of a guilty plea was not treated as a distinct and separately quantifiable consideration.

On contrition: Simpson J clarified that a guilty plea may, but does not necessarily, constitute evidence of contrition. Contrition is also evidenced by other means, such as a genuine apology or restitution. Critically, a plea entered against a weak Crown case is more likely to demonstrate true contrition than one entered when conviction is virtually inevitable.

On special circumstances: Sperling J found that the sentencing judge had adopted an unduly strict approach to the question of special circumstances, applying what his Honour described as the "strict approach" rather than the more liberal framework endorsed in more recent authorities. This meant the sentencing judge had excluded, as potentially relevant to reduction of the minimum term, factors such as the early plea, the assistance to authorities, and the burden of serving the sentence in protection. This constituted an error in principle.

On the outcome: Despite identifying these errors, Sperling J concluded that, on any fresh sentencing exercise and applying correct principles, he would not have imposed an effective full term or effective non-parole period lower than those actually imposed. Under section 6(3) of the Criminal Appeal Act 1912, the Court must dismiss an appeal where it would not impose a less severe sentence in substitution. Accordingly, leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court confirmed that identifying a sentencing error in principle does not automatically result in resentencing. Where the appellate court would not impose a lesser sentence on any fresh determination, section 6(3) of the Criminal Appeal Act 1912 requires the appeal to be dismissed.
  • The Thomson and Houlton guideline judgment materially changed the sentencing framework: following that decision, the utilitarian value of a guilty plea is a separate and distinct consideration from the plea's capacity to evidence contrition. Sentencing decisions made before that guideline was published must be understood in their historical context.
  • A guilty plea entered in the face of a strong prosecution case carries less weight as evidence of contrition than one entered when the Crown case is weaker, because the former may reflect no more than a recognition that conviction is inevitable.
  • Where an offender's assistance to authorities has itself strengthened the Crown case against them, treating both the assistance and the resulting guilty plea as attracting wholly independent discounts risks conferring a double benefit on the offender.
  • Under the "special circumstances" analysis, factors including an early guilty plea, cooperation with authorities, and the hardship of serving a sentence in protection can each be relevant to the reduction of the minimum term, subject to the overriding requirement that the non-parole period must still reflect the seriousness of the offending and the need for general deterrence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900, s 442B
- Crimes (Sentencing Procedure) Act 1999, ss 23, 44
- Criminal Appeal Act 1912, ss 5, 6
- Drug Misuse and Trafficking Act 1985, ss 25, 33
- Sentencing Act 1989, s 5

Key Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Astill (No 2) (1992) 64 A Crim R 289
- GDR (1994) 35 NSWLR 376
- Griffiths (1989) 167 CLR 372
- Lewis (1998) 100 A Crim R 361
- Moffit (1990) 20 NSWLR 114
- Stone (1995) 85 A Crim R 436
- Traicioni (1990) 49 A Crim R 417
- Giurgis [2000] NSWCCA 129
- PPB [1999] NSWCCA 36
- S [2000] NSWCCA 13; 111 A Crim R 225