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Court of Criminal Appeal 12 July 2001

Patterson v. Regina (Cwlth)

[2001] NSWCCA 316

Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER NON EVIDENCE

Citation: Patterson v. Regina (Cwlth) [2001] NSWCCA 316
Court: Court of Criminal Appeal, New South Wales
Date: 12 July 2001
Judge(s): Hodgson JA; Mathews AJA; Studdert J

Background

The appellant was convicted in the District Court of New South Wales of being knowingly concerned in the importation of cannabis resin into Australia between November 1995 and January 1996. The importation involved approximately seven kilograms of cannabis resin concealed inside transformer casings, shipped from Bangkok via Federal Express to a Sydney address. The trial lasted 12 days and the jury returned a guilty verdict.

The facts of importation and the appellant's physical involvement were not in dispute. The sole trial issue was whether the appellant knew cannabis was being imported. The Crown relied on circumstantial evidence, including documents found in a hired vehicle, false identity materials, money transfer records, and telephone call patterns. The appellant gave sworn evidence denying any knowledge of the drugs.

After conviction, Christie DCJ sentenced the appellant to six and a half years' imprisonment with a non-parole period of four and a half years. The appellant appealed against both conviction and sentence.

  • Whether the trial judge's directions to the jury were adequate in relation to the prosecution's submissions about "lies" told by the appellant.
  • Whether depositions from the committal proceedings were admissible at trial as hearsay evidence when the relevant witness was not "unavailable" within the meaning of the Evidence Act 1995.
  • Whether the non-parole period was excessive, and whether credit for time already served in custody should be applied before or after the non-parole proportion is calculated.

Decision

Conviction appeal: The Court dismissed the appeal against conviction. No sufficient error was identified in the trial judge's directions concerning the prosecution's "lies" submissions, having regard to the principles in Edwards v R (1993) 178 CLR 193 and Zoneff v R (2000) 200 CLR 234. The Court was satisfied the directions were adequate in the circumstances of the trial.

Hearsay and admissibility: The Court also considered whether committal depositions had been properly admitted at trial as hearsay evidence under section 65 of the Evidence Act 1995, which permits such evidence where a witness is "unavailable." The Court's analysis turned on whether the relevant witness met the statutory definition of unavailability. The conviction appeal was nonetheless dismissed.

Sentence appeal: The Court found no error of principle in the fixing of the head sentence of six and a half years and declined to intervene on that point. However, it identified an error of principle in the calculation of the non-parole period.

The Court held that the correct approach, when crediting an offender for time previously served in custody, is ordinarily to first determine the appropriate non-parole proportion from the full head sentence, and then apply the credit for prior incarceration to both the head sentence and the non-parole period. Applying the credit only after calculating the proportion produces a shorter parole period than this method yields. Combined with the fact that the non-parole period already exceeded 69 per cent of the head sentence, the Court found a matter of principle warranted a reduction, substituting a non-parole period of four years.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • Head sentence of six and a half years confirmed.
  • Non-parole period of four and a half years set aside; substituted with a non-parole period of four years commencing 17 May 2000, expiring 16 May 2004.

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that the adequacy of a trial judge's directions on lies or false statements told by an accused must be assessed against the principles in Edwards v R and Zoneff v R.
  • Under section 65 of the Evidence Act 1995, committal depositions are only admissible as hearsay at trial where the witness meets the statutory definition of "unavailability" set out in the Dictionary to that Act.
  • Where credit is given for pre-sentence custody, the correct methodology is ordinarily to calculate the non-parole proportion from the full head sentence first, and then apply the custody credit to both periods, preserving the integrity of the parole period.
  • No error in the head sentence was established, but a non-parole period exceeding 69 per cent of the head sentence, combined with the misapplication of the custody credit method, constituted a matter of principle justifying intervention.
  • The Court of Criminal Appeal confirmed it will not disturb a head sentence unless an error of principle is identified or the sentence is so excessive as to warrant intervention.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), s 65 and Dictionary (definition of "unavailability")
- Criminal Procedure Act (NSW), s 112
- Customs Act 1901–1905 (Cth), s 223B(1)

Cases:
- Edwards v R (1993) 178 CLR 193
- Zoneff v R (2000) 200 CLR 234