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21
Court of Criminal Appeal 6 February 2003

R v Schofield

[2003] NSWCCA 3

Also reported as (2003) 138 A Crim R 19
Drugs
SENTENCING TWO FURTHER OFFENCES ON A SCHEDULE

Citation: R v Schofield [2003] NSWCCA 3
Court: NSW Court of Criminal Appeal
Date: 6 February 2003
Judges: Heydon JA, Hulme J, Carruthers AJ

Background

The respondent pleaded guilty in the District Court to attempted possession of prohibited imports, specifically not less than a commercial quantity of MDMA (Ecstasy), along with two further offences listed on a Schedule. The offence carried a maximum sentence of life imprisonment, reflecting its serious nature under the Customs Act 1901.

At the sentencing hearing, the respondent elected not to give evidence. His counsel made a number of submissions from the bar table, and the sentencing judge also had access to a probation and parole report. On the basis of those materials, Murrell DCJ characterised the respondent as occupying the very lowest tier of involvement in the drug operation, accepted that he did not know the quantity or nature of the drugs, and imposed a sentence the Crown considered manifestly inadequate.

The Crown appealed to the Court of Criminal Appeal, arguing that the sentencing judge had made several errors, including mischaracterising the respondent's criminal history, improperly accepting unsworn hearsay material to reduce culpability, and failing to impose a sentence that adequately reflected the gravity of the offence.

  • Whether the sentencing judge erred in characterising the respondent's criminal history as essentially minor and unrelated, rather than as evidence of a continuing attitude of disobedience toward the law
  • Whether a sentencing judge may act on statements made from the bar table or contained in a probation and parole report when the offender elects not to give evidence, and if so to what extent
  • Whether the original sentence was manifestly inadequate given the seriousness of the offence, the respondent's record, and relevant sentencing principles
  • What weight should be given to the respondent's assistance to authorities when calculating the appropriate sentence
  • How the removal of remission laws in New South Wales and the (subsequently repealed) operation of s 16G of the Crimes Act 1914 should be applied when re-sentencing

Decision

The Court of Criminal Appeal, by majority (Heydon JA and Carruthers AJ, with Hulme J dissenting only on the quantum of the replacement sentence), allowed the appeal and quashed the sentence imposed by Murrell DCJ.

The Court found that the sentencing judge erred in treating the respondent's criminal record as essentially trivial. The record included convictions for possession of implements, a stolen goods offence, making a false instrument, and malicious wounding, the last of which was committed only one year before the drug offence. The Court held that this pattern should have led to a finding that the respondent was displaying a continuing attitude of disobedience toward the law, which warranted a more severe penalty in accordance with the principles stated in Veen v The Queen (No 2).

A further error was identified in the sentencing judge's reliance on unsworn statements made from the bar table to find that the respondent had no knowledge of the quantity or nature of the drugs, received no payment, and was merely assisting a "friend." The respondent had chosen not to give evidence and had therefore not exposed himself to cross-examination on those claims. The Court confirmed that while hearsay material such as probation and parole reports can properly inform a sentencing judge, factual findings favourable to an offender cannot simply be drawn from counsel's unsworn submissions where the offender has declined to give sworn evidence.

On re-sentencing, Carruthers AJ (with Heydon JA agreeing) approached the task by starting with a nine-year head sentence after accounting for the guilty plea, then reducing it to six years to reflect the absence of remission laws in New South Wales, applying a one-third deduction under s 16G principles despite that provision's repeal, and allowing a further one-year discount for assistance to authorities. This produced a five-year head sentence. Special circumstances were found to exist, based on the respondent's rehabilitation prospects, justifying a non-parole period of three years rather than the standard ratio. Hulme J agreed with the methodology but considered the resulting sentence should have been higher.

Orders Made

  • Appeal allowed
  • Sentence imposed by Murrell DCJ quashed
  • Respondent sentenced (by majority) to imprisonment for five years, commencing 20 September 2001 and expiring 19 September 2006
  • Non-parole period of three years, commencing 20 September 2001 and expiring 19 September 2004
  • Respondent's solicitor directed to explain the fresh sentence to the respondent in accordance with s 16F of the Crimes Act 1914

Key Takeaways

  • A sentencing court cannot properly treat an offender's criminal record as essentially minor where it discloses a pattern of offending across different categories; under the principles in Veen v The Queen (No 2), such a pattern may indicate a continuing attitude of disobedience toward the law, warranting greater weight on retribution, deterrence, and community protection.
  • Where an offender elects not to give evidence at a sentencing hearing, favourable factual findings cannot be grounded in unsworn submissions made from the bar table; the decision confirms a meaningful distinction between what is properly inferred from hearsay reports and what requires sworn, testable evidence.
  • Probation and parole reports remain legitimate sources of information for a sentencing judge, but they do not substitute for sworn evidence when an offender seeks to have disputed favourable facts accepted.
  • Even after the repeal of s 16G of the Crimes Act 1914, the majority held that an offender sentenced after that repeal for conduct predating it should still receive the benefit of a one-third reduction to account for the absence of remission laws in New South Wales, consistent with Radenkovic v The Queen.
  • In Crown appeals, the Court of Criminal Appeal must still apply the principle of double jeopardy, giving the offender some benefit for the stress of facing a second sentencing, even where the original sentence is found to be manifestly inadequate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A(2), 16F, 16G, 20(1)(b)
- Customs Act 1901 (Cth), ss 233B(1), 233B(1)(c), 235(2)
- Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth)

Key Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Radenkovic v The Queen (1990) 170 CLR 623
- R v Olbrich (1999) 199 CLR 270
- Wong v R (2001) 207 CLR 584
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Gallagher (1991) 23 NSWLR 220
- R v El Karhani (1990) 21 NSWLR 370
- R v Simpson (2001) 53 NSWLR 704
- R v Malcolm McDonald (unreported, CCA, 12 October 1998)
- Malvaso v R (1989) 168 CLR 227
- Numerous other NSW Court of Criminal Appeal authorities on drug sentencing