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Court of Criminal Appeal 14 June 2005

R v PP

[2005] NSWCCA 214

Drugs
APPEAL AGAINST SEVERITY OF SENTENCE PLEA OF GUILTY SUBJECTIVE CIRCUMSTANCES OFFENDERS PARITY FORMER S16G (CRIMES ACT 1914)

Citation: R v PP [2005] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 14 June 2005
Judge(s): McClellan AJA, Simpson J, Rothman J

Background

The applicant was one of six co-offenders who travelled together from Singapore to Sydney in November 2003, each concealing cocaine pellets internally. The applicant carried 35 pellets inserted rectally, yielding 140.3 grams of pure cocaine with a street value of approximately $160,300. He was arrested at Sydney Airport after a positive ionscan result, initially gave false information to customs and police, but later offered to assist authorities with a controlled drug delivery.

The applicant pleaded guilty approximately three months after arrest to importing not less than the traffickable quantity of cocaine under s 233B(1)(b) of the Customs Act 1901, which carries a maximum of 25 years imprisonment. Judge Graham in the District Court sentenced him to six years imprisonment with a four-year non-parole period. The applicant sought leave to appeal on the ground that this sentence was excessive.

  • Whether the applicant's sentence was unfairly disparate compared with sentences imposed on four co-offenders by the same judge
  • Whether the sentencing judge erred in how he applied the repeal of the former s 16G of the Crimes Act 1914 (Cth), which had previously required federal sentences to be adjusted to reflect state sentencing conditions

Decision

On the parity ground, the Court of Criminal Appeal found that the applicant's sentence was materially higher than those received by co-offenders who had carried significantly larger quantities of cocaine. The Court observed that while the applicant carried less cocaine than any of the other co-offenders, his sentence was not proportionately lower. Crucially, the sentencing judge had not given the applicant a discount for his offer to assist authorities, even though similar discounts of around 20% had been applied to the co-offenders. This omission produced an unjustifiable disparity.

On the s 16G ground, the applicant argued the sentencing judge had applied an impermissible mathematical formula when accounting for the repeal of that provision. Section 16G had previously required federal sentencing courts to adjust sentences upward to account for the more generous parole conditions available in some states; its repeal meant this adjustment was no longer required. The Court found that while the sentencing judge's language suggested a somewhat formulaic approach, this did not produce any miscarriage of justice, and rejected this second ground.

Despite rejecting the s 16G ground, the Court allowed the appeal on parity grounds. It recalculated the sentence by aligning the applicant with his co-offenders, applying a 20% discount for his guilty plea and a further 20% discount for his offer of assistance to authorities. This produced a head sentence of five years and seven months with a non-parole period of three years and four months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed and original sentence quashed
  • In lieu, the applicant sentenced to five years and seven months imprisonment commencing 14 November 2003, with a non-parole period of three years and four months expiring 13 March 2007

Key Takeaways

  • Parity in sentencing requires that co-offenders not be left with a justifiable sense of grievance; where a sentencing judge applied assistance discounts to some co-offenders but not to another, the resulting disparity warranted appellate intervention.
  • The quantity of cocaine carried is a central factor in assessing the relative culpability of co-offenders in importation matters; an offender carrying a smaller quantity should not receive a sentence comparable to those who carried significantly more.
  • An offer to cooperate with authorities, even where the controlled delivery was not ultimately pursued, remained a legitimate mitigating factor entitling the offender to a sentencing discount.
  • The Court of Criminal Appeal confirmed that while the repeal of s 16G of the Crimes Act 1914 (Cth) was expected to increase federal sentences in practice, sentencing courts must not apply a rigid mathematical formula when accounting for that change.
  • In reassessing the sentence, the Court of Criminal Appeal applied sequential discounts for plea of guilty and for assistance, each at 20%, working down from a starting point aligned with comparable co-offenders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16G (former)
- Customs Act 1901 (Cth), s 233B(1)(b)

Cases:
- R v Bezan [2004] NSWCCA 342
- R v Dujeu [2004] NSWCCA 237
- R v Kevenaar [2004] NSWCCA 210
- R v Mas Rivadivia [2004] NSWCCA 284
- R v Studenikin [2004] NSWCCA 164; 60 NSWLR 1
- R v Wong and Leung [1999] NSWCCA 420; 108 A Crim R 531
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584