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Court of Criminal Appeal 10 August 2001

Regina v Atkinson

[2001] NSWCCA 342

Drugs

Citation: Regina v Atkinson [2001] NSWCCA 342
Court: NSW Court of Criminal Appeal
Date: 10 August 2001
Judge(s): Spigelman CJ, Grove J, Einfeld AJ

Background

The appellant pleaded guilty before a magistrate to two serious drug offences: possession of approximately 800 grams of cocaine (around 57% pure, yielding roughly 470 grams of pure cocaine) in contravention of the Customs Act 1901 (Cth), and supply of approximately 2.2 kilograms of cocaine under the Drug Misuse and Trafficking Act 1985 (NSW). He was arrested in September 1999 after voluntarily leading police to premises containing the cocaine; the supply charge arose from a further voluntary admission in a recorded police interview.

The appellant had also signed an undertaking to give evidence against others involved in the importation and was held in protective custody as a result. In the District Court, Judge Hosking sentenced him to seven and a half years imprisonment with a non-parole period of four and a half years for the Customs Act offence, and a concurrent fixed term of four and a half years for the State offence, with a 40% discount applied for past and future assistance to authorities.

The appellant sought leave to appeal out of time, contending that the sentencing judge had erred in calculating the head sentence by reference to the gross weight of the drug mixture rather than the quantity of pure cocaine, and that the 40% discount for his assistance was inadequate.

  • Whether the sentencing judge erred by calculating the head sentence by reference to the gross quantity of the cocaine mixture rather than the quantity of pure cocaine, as required by statute
  • Whether the 40% discount applied for the appellant's assistance to police (past and future) was within the appropriate range
  • What sentences were appropriate once error was established and the matter was considered afresh by the Court of Criminal Appeal

Decision

The Court found that the sentencing judge had erred in principle by fixing the head sentence by reference to the total weight of the drug mixture rather than the quantity of pure cocaine. This was inconsistent with the Court's guideline judgment in Wong and Leung (1999) 48 NSWLR 340, which fixed a sentencing range of eight to twelve years for couriers dealing with two to three and a half kilograms of pure cocaine. Because the pure cocaine here was considerably less than one and a half kilograms, the head sentence warranted fresh consideration.

On the question of the assistance discount, Einfeld AJ noted that the accepted range for such discounts is ordinarily 20 to 50 percent, though cases have granted reductions as high as 55 to 60 percent in appropriate circumstances. The Court did not accept the submission that a 50% discount was warranted here, finding the 40% discount to be within the appropriate range given the facts and circumstances.

Reconsidering the sentences afresh, the Court set a head sentence of ten years for the Customs Act offence, reduced by 40% for assistance (split equally between past and future assistance) to produce a sentence of six years, with a non-parole period of three years and nine months. For the State offence, the Court fixed a head sentence of ten years, reduced by 25% for the timely guilty plea, resulting in a sentence of seven years and six months, with the same non-parole period of three years and nine months, departing from the statutory ratio due to the special circumstances present.

Orders Made

  • Leave to appeal out of time granted
  • Appeal allowed
  • Customs Act offence: head sentence reduced to six years imprisonment, with a non-parole period of three years and nine months
  • State offence (Drug Misuse and Trafficking Act): head sentence of seven years and six months, with a non-parole period of three years and nine months (departing from the statutory ratio)
  • Both sentences to date from the date of arrest

Key Takeaways

  • Sentencing for drug offences under the relevant legislation requires calculation by reference to the quantity of pure drug, not the gross weight of the mixture; failing to apply this distinction constitutes a sentencing error.
  • A 40% discount for police assistance, split equally between past and future cooperation, was held to fall within the appropriate range on the facts, even where the assistance was substantial and exposed the appellant to significant personal risk.
  • Under Ryan v R (2001) 179 ALR 193, assistance to authorities is not a rigid rule applied mechanically; how significant the discount is depends on the particular facts and circumstances of the individual case.
  • Discounts for assistance to police can, in some cases, exceed 50%, with authorities recording reductions as high as 55 to 60 percent, though such outcomes remain exceptional.
  • A sentencing court may depart from the statutory ratio between the non-parole period and the head sentence where special circumstances are established, such as where an offender is held in protective custody and faces heightened hardship during imprisonment.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1914 (Cth), s 21E, s 16A

Cases:
- Wong and Leung (1999) 48 NSWLR 340
- Ryan v R (2001) 179 ALR 193
- R v Ellis (1986) 6 NSWLR 603
- R v Raz (unreported, NSWCCA, 17 December 1992)
- Perrier and Richardson (1990) 59 A Crim R 164
- R v S [2000] NSWCCA 13
- R v K [2000] NSWCCA 73