Citation: McLean v R [2001] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 21 March 2001
Judge(s): Beazley JA; Wood CJ at CL; Greg James J
Background
The applicant pleaded guilty in the District Court to four counts: conspiracy to import a commercial quantity of cannabis, two counts of conspiracy to engage in money laundering, and arranging a marriage to assist in the acquisition of a visa. The sentencing judge found facts as recorded in a lengthy statement of facts, which described the applicant as the leader of a sophisticated, internationally connected cannabis importation and money laundering syndicate. The principal conspiracy charge involved the alleged importation of approximately 11 tonnes of cannabis by sea from South East Asia in early 1996, with plans for a further 10-tonne importation.
The applicant received a sentence of 16 years imprisonment with an 11-year non-parole period on the cannabis importation count, together with concurrent sentences of 5 years (with 3-year non-parole periods) on each money laundering count, and a fixed term of 3 months on the migration offence.
The applicant sought leave to appeal against the severity of the sentences on four grounds: that he had been inadequately advised about his right to challenge the facts placed before the sentencing judge; that the judge erred in his treatment of individual deterrence; that the judge gave insufficient weight to his age; and that the sentences were manifestly excessive.
Legal Issues
- Whether the applicant received inadequate legal advice about his right to dispute the facts on which he was sentenced, resulting in a sentence based on a higher degree of objective criminality than was warranted.
- Whether the sentencing judge erred in applying the component of individual deterrence.
- Whether the sentencing judge gave sufficient weight to the applicant's age.
- Whether the overall sentences were manifestly excessive.
Decision
On the first ground, the Court found there was a potentially serious risk that the applicant had been sentenced on the basis of facts he did not agree with, because his legal advisers had not informed him of his right to require relevant witnesses to attend for cross-examination on disputed matters, or to invite the sentencing judge to scrutinise the tendered material. Where the applicant faced a possible life sentence, the Court considered those rights should have been explicitly and carefully raised. This failure constituted an identifiable and potentially serious risk that an incorrect factual basis was used to determine his objective criminality on count 1.
On individual deterrence, the Court accepted the sentencing judge was correct to take it into account. Given the applicant's age when he became involved in the criminal enterprise and the absence of any evidence of rehabilitation, there was no reason to suppose he could not have resumed such activities. This ground was dismissed.
On the applicant's age, the Court acknowledged that age is a relevant sentencing consideration but held that it cannot mean older offenders escape sentences commensurate with the seriousness of their criminality and consistent with community standards. This ground was also dismissed.
On manifest excess, the Court found that if the facts before the sentencing judge were correct, the sentences were manifestly correct, not excessive. Because the factual foundation for count 1 remained potentially in doubt, the sentence on that count was quashed and remitted for redetermination. The sentences on the remaining counts were found to be individually appropriate and structured in accordance with principle, including the principle of totality.
Orders Made
- Leave to appeal against sentence granted.
- Sentence for count 1 (conspiracy to import cannabis) quashed; proceedings remitted to the District Court for redetermination.
- Appeal otherwise dismissed.
Key Takeaways
- Where an accused facing a possible life sentence wishes to dispute facts in a statement of facts, legal advisers are obliged to explicitly and carefully advise that accused of the right to require witnesses to attend for cross-examination and to invite the sentencing judge to scrutinise the tendered material. Failure to do so may constitute a ground of appeal.
- A sentencing court's remittal for redetermination is not limited to the original sentence: the court to which the matter is remitted may sentence the applicant afresh on the basis of facts properly established, which could result in a higher or lower sentence, or a reduction in the utilitarian value of an earlier plea.
- Individual deterrence remains a legitimate sentencing consideration where there is no evidence of rehabilitation and no reason to suppose the offender could not resume criminal activity.
- Age at the time of sentencing is a relevant factor, but the Court of Criminal Appeal confirmed it does not entitle an older offender to a sentence that fails to reflect the objective gravity of the offending or community standards.
- In dismissing three of the four grounds, the Court affirmed that sentences structured to reflect both individual appropriateness and the totality principle, in accordance with Pearce (1998) 194 CLR 610, will not readily be disturbed on appeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 16A(1), 86(1)
- Criminal Appeal Act 1912 (NSW), s 12(2)
- Customs Act 1901 (Cth), s 233B(1)(cb)
- Migration Act 1958 (Cth), s 240(1)
- Proceeds of Crime Act 1987 (Cth), s 81
Cases:
- Birks (1990) 19 NSWLR 677
- Pearce (1998) 194 CLR 610
- Jeffery, NSWCCA, 16 December 1993
- Paul John Casey, NSWCCA, 6 June 1996
- Burnett (1994) 70 A Crim R 469
- Sopher (1993) 70 A Crim R 570
- Foulstone, NSWCCA, 18 July 1990
- Histollo Pty Ltd v Director-General National Parks & Wildlife Service (1998) 45 NSWLR 661
- Olbrich (cited in judgment without full reference)