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Court of Criminal Appeal 23 June 2003

R v SIMON

[2003] NSWCCA 147

Also reported as (2003) 142 A Crim R 166
Drugs
CRIMINAL LAW SENTENCE DRUG COURIER FACTORS TO BE TAKEN INTO ACCOUNT PLEA OF GUILTY DISCOUNT OF SENTENCE

Citation: R v Simon [2003] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 23 June 2003
Judges: Sheller JA; Hidden J; Carruthers AJ

Background

The appellant was a US citizen and former lawyer with no prior criminal record. She was intercepted at Sydney Airport on 11 April 2001 carrying six body packs containing a commercial quantity of MDMA (ecstasy), imported as part of a carefully planned operation that took her through Amsterdam, Brussels, and Hungary before arriving in Australia.

She pleaded guilty to importing a prohibited import contrary to s 233B(1)(b) of the Customs Act 1901, an offence carrying a maximum penalty of life imprisonment. The plea was entered at the earliest opportunity, on 1 June 2001. On 10 August 2001, Acting Judge Andrew of the District Court sentenced her to six years' imprisonment with a non-parole period of three years and six months.

The appellant sought leave to appeal against the severity of that sentence on two grounds: that the sentencing judge's guilty plea discount of only ten per cent was inadequate, and that a skin condition called rosacea had not been identified or taken into account at the time of sentencing.

  • Whether a guilty plea discount of ten per cent, applied where the plea was entered at the earliest opportunity, was adequate in the circumstances.
  • Whether the appellant's rosacea, a skin condition diagnosed after sentencing, constituted a relevant mitigating factor that should have reduced both the head sentence and the non-parole period.
  • Whether the prospect of deportation upon release was a relevant consideration when fixing the non-parole period.
  • How to apply the adjustment previously available under s 16G of the Crimes Act 1914 (Cth) following its repeal, given that no remission laws apply in NSW.

Decision

The Court of Criminal Appeal held that the ten per cent discount for the guilty plea was unreasonably low and plainly unjust. The sentencing judge had given no adequate explanation for departing so far below the suggested range, beyond describing the Crown case as insurmountable. The Court confirmed that a plea entered at the earliest opportunity ordinarily attracts a more substantial reduction.

On the rosacea question, Sheller JA (with Hidden J and Carruthers AJ agreeing) held that imprisonment imposed a peculiar hardship on the appellant by reason of her skin condition, which had gone undiagnosed and untreated for a significant period while she was in custody. The Court found this hardship warranted a reduction in the head sentence. To the extent that imprisonment is harder for an offender because of ill health, the condition is properly considered in determining the length of the head sentence. The non-parole period must also reflect the offender's health, need for treatment, and progress toward rehabilitation, consistent with Griffiths v The Queen (1989) 167 CLR 372, while maintaining an appropriate balance against the seriousness of the offending.

The Court rejected the suggestion that the potential deportation of the appellant upon release should affect the length of the non-parole period. Following The Queen v Shrestha (1991) 173 CLR 48, any conditions attached to a non-parole period simply would not apply once she left Australia, but that outcome was not a reason to adjust the period itself.

On the question of remissions, the Court accepted that, in fairness upon re-sentencing, an adjustment should be made to reflect the fact that no remission laws apply in NSW, notwithstanding the repeal of s 16G of the Crimes Act 1914 (Cth) and the transitional effect of the repealing legislation.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Acting Judge Andrew on 10 August 2001 quashed.
  • In lieu thereof, the appellant sentenced to four years and six months' imprisonment, commencing 11 April 2001 and expiring 10 October 2005, with a non-parole period of two years and six months commencing 11 April 2001, making the appellant eligible for parole on 10 October 2003.

Key Takeaways

  • A guilty plea discount of ten per cent, applied where the defendant had pleaded guilty at the earliest opportunity and where no adequate reasoning was provided for the lower-end figure, was held to be unreasonable and plainly unjust.
  • Where imprisonment imposes peculiar hardship on an offender because of a medical condition, that hardship is a proper consideration in determining the length of the head sentence, not merely a background factor.
  • In fixing a non-parole period, a court must weigh the seriousness of the offending against subjective factors including the offender's health, need for treatment, and rehabilitation progress, following Griffiths v The Queen.
  • Potential deportation upon release does not bear on the appropriate length of a non-parole period; following The Queen v Shrestha, the inapplicability of parole conditions after departure from Australia is simply a consequence of deportation, not a sentencing variable.
  • Following the repeal of s 16G of the Crimes Act 1914 (Cth), the Court of Criminal Appeal confirmed that fairness on re-sentencing still called for an adjustment to account for the absence of remission laws in NSW.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B(1)(b), 235(2)(c)(i)
- Crimes Act 1914 (Cth), s 16G
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Legislation Amendment (People Smuggling, Firearms Trafficking & Other Measures) Act 2002 (Cth)
- Justices Act 1902 (NSW)
- Probation and Parole Act 1983 (NSW)

Key Cases:
- Griffiths v The Queen (1989) 167 CLR 372
- The Queen v Shrestha (1991) 173 CLR 48
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Simpson (2001) 53 NSWLR 704
- R v Sharma (2002) 54 NSWLR 300
- Cameron v The Queen (2002) 76 ALJR 382
- Bernier (1998) 102 A Crim R 44
- House v The King (1936) 55 CLR 499
- R v El Karhani (1990) 21 NSWLR 370
- Sweet (2001) 125 A Crim R 341
- Hendricks (2001) 125 A Crim R 303
- R v Nai Poon [2003] NSWCCA 42
- R v Schofield [2003] NSWCCA 3
- Institoris (2002) 129 A Crim R 458
- R v Bimahendali (1999) 109 A Crim R 355
- Sopher (1993) 70 A Crim R 570
- R v Bugeja [2001] NSWCCA 196