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11
Court of Criminal Appeal 2 October 2002

R v Niketic

[2002] NSWCCA 425

Drugs
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE PLEA OF GUILTY WHETHER SUFFICIENT WEIGHT GIVEN TO PLEA

Citation: R v Niketic [2002] NSWCCA 425
Court: New South Wales Court of Criminal Appeal
Date: 2 October 2002
Judge(s): Wood CJ at CL, Howie J, Smart AJ

Background

The applicant pleaded guilty in the District Court to importing not less than a commercial quantity of 3,4 methylenedioxymethamphetamine (ecstasy). He was arrested at Sydney Kingsford Smith Airport carrying approximately 9,865 ecstasy tablets strapped to his body, with a street value of roughly $690,550. The pure weight of the drugs (1.1953 kilograms) was more than twice the commercial quantity threshold, and the offence carried a maximum penalty of life imprisonment.

Judge Gibson sentenced the applicant to seven and a half years' imprisonment with a non-parole period of four and a half years. The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was excessive.

  • Whether the sentencing judge gave sufficient weight to the applicant's early plea of guilty, including evidence of remorse contained in psychiatric and pre-sentence reports
  • Whether the sentencing judge gave sufficient consideration to the applicant's HIV-positive status and the potential difficulties of receiving appropriate medical treatment while in custody

Decision

On the question of the plea, the Court found no error. The sentencing judge had acknowledged the plea as carrying some evidence of remorse and applied a 15 percent utilitarian discount. Wood CJ at CL noted that the applicant had not given evidence in the sentencing proceedings, meaning the Crown could not test his account. Material indicating shame or embarrassment toward family, found in the psychiatric and pre-sentence reports, fell short of establishing true remorse for the offence itself.

On the HIV status, the Court found the medical evidence was insufficient to support a greater sentencing reduction. The only medical report, from Dr Graham Stewart, was not updated and did not establish that the applicant's condition had deteriorated or that custody would impose hardship beyond that experienced by other prisoners. The Court observed that anxiety about a health condition exists whether a person is in custody or not, and in the absence of specific evidence of additional hardship, there was no basis to interfere with the sentence on this ground.

The Court also noted a broader concern about the practice of offenders conveying self-serving factual accounts through histories provided to third-party report authors. Because such accounts cannot be tested in cross-examination, they carry limited weight. The Court reiterated that an offender who seeks to characterise their role as merely that of a courier bears the onus of proving that on the balance of probabilities.

Having regard to sentencing patterns for ecstasy importation offences and the need for significant general deterrence in this class of offending, the Court was not persuaded that any error had been demonstrated or that a different sentence was warranted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a 15 percent discount for a plea of guilty was not inadequate where the Crown case was strong and the applicant had not given sworn evidence of remorse.
  • Expressions of shame or embarrassment toward family, recorded in pre-sentence or psychiatric reports, do not, without more, constitute evidence of true remorse for sentencing purposes.
  • Accounts of an offender's role provided to third-party report authors (such as psychiatrists or probation officers) carry limited weight because they cannot be tested by cross-examination; the onus lies on an offender to prove a lesser role on the balance of probabilities.
  • A medical condition does not automatically warrant a reduced sentence. Courts require clear, specific evidence that the condition will impose hardship over and above that experienced by other prisoners, and that custody will materially affect the management of the illness.
  • General deterrence remains a significant sentencing consideration for offences involving the importation of commercial quantities of ecstasy, and this factor will weigh heavily in assessing whether a sentence falls within the appropriate range.

Legislation and Cases Referenced

Legislation
- Sentencing Act 1989 (NSW)

Cases
- Olbrich v The Queen (1999) 199 CLR 270
- R v Bailey (1988) 35 A Crim R 458
- R v Bernier (1998) 101 A Crim R 44
- R v Bourel, NSWCCA, 11 December 1998
- R v Budiman (1999) 102 A Crim R 411
- R v Jones (1993) 70 A Crim R 449
- R v L, NSWCCA, 17 June 1996
- R v McDonald (1988) 38 A Crim R 470
- R v Palu [2002] NSWCCA 2001
- R v Qutami [2001] NSWCCA 353
- R v Smith (1987) 44 SASR 587
- R v Vachalec (1981) 1 NSWLR 351