Citation: Regina v Craig Thomas Ah-See [2001] NSWCCA 375
Court: New South Wales Court of Criminal Appeal
Date: 14 September 2001
Judge(s): Sully J; Carruthers AJ
Background
The appellant had pleaded guilty in the District Court at Cowra to two indicted offences: being an accessory after the fact to a robbery in company, and supplying a prohibited drug (heroin) on an ongoing basis. Four further matters were taken into account on a Form 1 schedule, all arising from a single day in July 2000, including self-administration of heroin, goods in custody, and possession of heroin and cannabis.
The accessory charge arose from the appellant driving two co-offenders away from the scene of an armed robbery in Orange, knowing they had committed it. The drug supply charge stemmed from a police stop during which officers found 14 foils of heroin and a compressed quantity of heroin in the car. In a recorded interview, the appellant admitted selling three foils that day and acknowledged consuming large quantities of heroin himself.
Judge Neild in the District Court imposed cumulative sentences yielding a total term of seven years, with a non-parole period of five years and three months. The appellant sought leave to appeal, contending the sentences were excessive on two grounds.
Legal Issues
- Whether the appellant's sentence on the accessory charge was disproportionate compared with the sentences imposed on the principal offenders (the parity principle from Lowe v The Queen).
- Whether the sentencing judge erred by failing to apply a discount under the principles established in Regina v Ellis (1986) 6 NSWLR 603, which recognises a sentencing benefit where an offender's cooperation or plea goes beyond a simple guilty plea.
Decision
On the parity ground, the Court noted that the principal offenders, Farrell and Sweeting, received sentences of four and a half years (non-parole three years) and four years (non-parole two years) respectively for the robbery itself. The Court acknowledged the complexity parity analysis creates, particularly following Lowe v The Queen and Pearce v The Queen. However, comparing an accessory's sentence to those of the principals requires care, given the different offences and different overall criminality involved. The Court found no unjustifiable disparity warranting intervention.
On the Ellis discount ground, the Court found the sentencing judge's remarks on sentence were carefully structured and methodically reasoned. The Court was not persuaded that the judge had simply overlooked the relevant consideration. Even accepting there may have been some entitlement to an Ellis-type discount, the Court concluded no error in the overall exercise of the sentencing discretion had been demonstrated.
On totality, the Court was satisfied that the seven-year total term, with a non-parole period of five years and three months, was within the available range. The appellant's antecedent criminal record was described as sufficiently poor to justify treating these offences as further episodes in a persistent disregard of legal obligations. Citing Veen v The Queen (No 2), the Court confirmed that such a record can legitimately limit the ameliorating effect of factors that might otherwise reduce an otherwise appropriate sentence.
The Court granted leave to appeal but dismissed the substantive appeal, finding the sentencing judge's overall reasoning did not warrant intervention and that more lenient sentences were not warranted in law.
Orders Made
- Leave to appeal granted.
- Substantive appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that comparing an accessory's sentence with those of principal offenders requires careful analysis, particularly given the different offences and differing overall criminality, making simple numeric comparisons potentially misleading.
- Under Veen v The Queen (No 2), a sentencing court may properly limit the ameliorating effect of factors such as an Ellis-type discount where an offender's criminal history reflects a persistent and serious disregard for the law.
- No error was established merely because a more lenient outcome was arguable; the appellate question is whether the sentence fell outside the available range, not where within that range it sat.
- In dismissing the appeal, the Court signalled that carefully structured and well-reasoned sentencing remarks reduce the risk of appellate intervention by making the judge's reasoning transparent and traceable.
- A guilty plea discount and an Ellis discount are distinct considerations; the absence of explicit reference to one does not automatically establish appellate error where the sentencing remarks are otherwise thorough and precise.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1) and 349 (accessory after the fact to robbery in company)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A (ongoing drug supply)
Cases
- Regina v Ellis (1986) 6 NSWLR 603
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- Veen v The Queen (No 2) (1988) 164 CLR 465