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Court of Criminal Appeal 7 October 2005

Capar v R

[2005] NSWCCA 402

DrugsFraud & dishonestyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE SUPPLY OF DRUGS MONEY LAUNDERING POSSESSING A FIREARM

Citation: Capar v R [2005] NSWCCA 402
Court: NSW Court of Criminal Appeal
Date: 7 October 2005
Judge(s): McClellan CJ at CL, Grove J, Hislop J

Background

The appellant was the principal organiser of a sophisticated and large-scale drug distribution operation run with his brothers over several years. He pleaded guilty in the Local Court to four charges: conspiracy to supply not less than a large commercial quantity of heroin, conspiracy to supply not less than a commercial quantity of cocaine, money laundering, and possessing a firearm. He also had four additional matters taken into account on a Form 1, including hindering a police investigation, intimidating a police officer, and two counts of having goods in custody relating to large sums of cash.

The operation involved bulk purchases of heroin and cocaine, elaborate security arrangements (including reinforced doors, surveillance cameras, and guard dogs), colour-coded balloon packaging, couriers, meticulous record-keeping, and the laundering of approximately $319,000 through a timber yard. The appellant directed the business for profit and used violence to enforce compliance from associates.

The appellant was sentenced in the District Court in August 2004. The sentencing judge (Karpin DCJ) applied a 15% discount across all counts for the guilty plea, and the sentences were ordered to be served concurrently, with the head sentence on the principal count being 12 years and nine months. The appellant challenged that discount on appeal, arguing it was too low.

  • Whether the sentencing judge erred in applying only a 15% discount for the guilty plea, rather than a higher figure.

Decision

The Court of Criminal Appeal upheld the sentence and dismissed the appeal. The sentencing judge had correctly identified that the pleas were not entered until after two co-offenders, including the appellant's brother Yasin Capar and a recruited heroin addict, had given evidence and been cross-examined at committal. This meant the pleas could not fairly be characterised as entered at the earliest available opportunity.

The agreed facts tendered before the sentencing judge suggested the plea had been entered at the first opportunity, but the Court confirmed the sentencing judge was correct to give that agreement little weight, given the true chronology of events. The Court relied on the High Court's reasoning in Malvaso v The Queen (1989) 168 CLR 227 in support of this approach.

A 15% discount fell within the accepted range of 10% to 25% identified in R v Thomson and Houlton (2000) 115 A Crim R 104. The Court emphasised that there is no presumption that a plea entered at the earliest opportunity will automatically attract a 25% discount. The appropriate discount in any case depends on all the circumstances, and the sentencing judge's determination was within the accepted range.

Even if some error in the discount calculation could have been demonstrated, the Court found no basis to intervene in the sentence. The offences involved a high degree of criminality, a very significant sentence was plainly warranted, and in some respects (particularly the absence of any additional penalty for the firearms offence and the concurrent structure of the sentences) the overall sentence could be regarded as lenient. Section 6(3) of the Criminal Appeal Act 1912 therefore precluded intervention.

Orders Made

  • Appeal dismissed (leave to appeal granted but appeal dismissed).

Key Takeaways

  • A guilty plea discount of 15% falls within the accepted sentencing range of 10% to 25%, and no automatic entitlement to a higher figure arises even when an offender pleads guilty relatively early in proceedings.
  • Where agreed facts tendered at sentence are inconsistent with the true chronology of events, the sentencing court is entitled to give those agreed facts little weight in assessing the appropriate plea discount.
  • A plea cannot attract a discount at the top of the range if it was not entered at the genuinely first available opportunity; here, the plea followed cross-examination of co-offenders at committal, which the Court treated as a significant limiting factor.
  • Even where some error in a discount calculation might theoretically be established, the Court of Criminal Appeal may decline to intervene under s 6(3) of the Criminal Appeal Act 1912 if the overall sentence is not shown to require review given the gravity of the offending.
  • In dismissing the appeal, the Court noted that the concurrent sentence structure and the absence of any additional penalty for the firearms charge arguably made the overall sentence lenient rather than excessive.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Confiscation of Proceeds of Crimes Act 1989 (NSW)
- Firearms Act 1996 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Malvaso v The Queen (1989) 168 CLR 227
- R v Thomson and Houlton (2000) 115 A Crim R 104
- R v Atonio [2005] NSWCCA 200
- R v Carter [2001] NSWCCA 245
- R v Gorgievski [2002] NSWCCA 45
- R v Lowe [2001] NSWCCA 271
- R v OPA [2004] NSWCCA 464
- R v Parkinson (2001) 125 A Crim R 1
- R v Petrie (2003) 141 A Crim R 396
- R v Rogerson [2005] NSWCCA 12
- R v Simpson (2001) 53 NSWLR 704
- R v Sutton [2004] NSWCCA 225
- R v Vukic [2003] NSWCCA 13