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Court of Criminal Appeal 18 December 2002

R v Capar

[2002] NSWCCA 517

Also reported as (2002) 136 A Crim R 564
DrugsFirearms & weapons
SENTENCING CROWN APPEAL DRUG & FIREARM OFFENCES PLEAS OF GUILTY ASSISTANCE TO AUTHORITIES

Citation: R v Capar [2002] NSWCCA 517
Court: NSW Court of Criminal Appeal
Date: 18 December 2002
Judge(s): Mason P, James J, Dunford J

Background

The respondent was a member of a family-run drug supply operation based in Sydney's inner west. From December 1999, he played a daily operational role in distributing heroin and later cocaine, handling deliveries, taking telephone orders, and returning cash to the enterprise's leader. The business turned over approximately $10,000 per day, generating around $1.8 million in profit during the respondent's involvement. He also transported $329,000 in drug proceeds for laundering through a timber business, and in February 2001 shot a rival gang member in the face at Hurlstone Park Railway Station.

The respondent pleaded guilty to four counts: supplying not less than a large commercial quantity of heroin, supplying not less than a commercial quantity of cocaine, money laundering, and discharging a firearm in a manner likely to injure another person. Five further matters were taken into account on a Form 1, including hindering and intimidating police and purchasing an unlicensed firearm. Following his arrest, he cooperated with authorities and undertook to give evidence against his brothers and associates.

The District Court sentenced the respondent to a total effective head sentence of six years' imprisonment with an effective non-parole period of three years. The Director of Public Prosecutions appealed on the ground that the sentences were inadequate.

  • Whether the overall sentence and its structure, including the degree of concurrency and partial accumulation across counts, was manifestly inadequate.
  • Whether the sentencing judge erred in the discounts applied for the plea of guilty and for assistance to authorities.
  • Whether it was an error to find "special circumstances" justifying a reduction in the non-parole period below the statutory proportion on the basis of the respondent's need to serve his sentence in virtual solitary confinement, where that same consideration had already been taken into account in reducing the head sentence.
  • Whether, even if error was established, the Court of Criminal Appeal should exercise its discretion to intervene on a Crown appeal.

Decision

The Court of Criminal Appeal found no error in the head sentence or in the way the sentencing judge structured the sentences through concurrency and partial accumulation. The level of discount for the plea of guilty and for the respondent's cooperation and undertaking to give evidence was within the range available to the sentencing judge and consistent with applicable principles.

However, Dunford J identified an error in the finding of special circumstances. The sentencing judge reduced the non-parole period below the statutory proportion on the basis that the respondent would serve his sentence in virtual solitary confinement. That same consideration, the harshness of custodial conditions arising from the respondent's assistance to authorities, had already been factored into the reduction of the head sentence under section 23(2)(g) of the Crimes (Sentencing Procedure) Act 1999. Treating it again as special circumstances to further reduce the non-parole period amounted to double-counting the same factor in the respondent's favour.

The effective non-parole period of three years represented a further reduction of approximately 33 per cent from the three years and three months that would ordinarily have applied to a six-year head sentence. Despite being satisfied that this constituted legal error, the Court declined to intervene, applying the established principles governing Crown appeals. The appeal was dismissed and the sentences affirmed. Mason P and James J agreed with Dunford J's reasons and proposed orders.

Orders Made

  • Crown appeal dismissed.
  • Sentences affirmed.

Key Takeaways

  • A sentencing consideration taken into account to reduce the head sentence, such as the hardship of protective custody arising from assistance to authorities, should not then be applied again as "special circumstances" to further reduce the non-parole period without a separate and distinct analytical basis.
  • Under section 23(2)(g) of the Crimes (Sentencing Procedure) Act 1999, the likelihood that an offender will serve sentences in harsher custodial conditions as a result of cooperation with authorities is a recognised factor in reducing the head sentence.
  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that identifying a legal error does not automatically compel intervention: the court retains a discretion, and the principles governing Crown appeals may weigh against resentencing even where error is found.
  • The principle from R v Simpson [2001] NSWCCA 534 was applied: where a circumstance has already reduced the head sentence (and thereby, proportionally, the non-parole period), a sentencing judge must undertake a distinct analytical step before using that same circumstance to further reduce the non-parole period.
  • Significant weight can attach to a respondent's guilty plea, cooperation, and undertaking to give evidence against former accomplices, particularly where those steps carry personal risk such as ongoing protective custody conditions.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 33
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 73
- Crimes Act 1900 (NSW), s 93G
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23, 33

Cases:
- R v Thomson (2000) 49 NSWLR 383
- Pearce v The Queen (1998) 194 CLR 610
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v S [2000] NSWCCA 13; 111 A Crim R 225