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Court of Criminal Appeal 24 May 2006

REGINA v VO REGINA v TRAN

[2006] NSWCCA 165

Drugs
CRIMINAL LAW CROWN APPEAL HEROIN IMPORTATION EVIDENCE IN TRIALS OF CO OFFENDERS WHETHER FAILURE IN FULL OR IN PART

Citation: REGINA v VO REGINA v TRAN [2006] NSWCCA 165
Court: Court of Criminal Appeal, New South Wales
Date: 24 May 2006
Judge(s): McClellan CJ at CL, Hislop J, Johnson J

Background

Both respondents pleaded guilty in the District Court to conspiring to import a traffickable quantity of heroin into Australia, contrary to s 233B of the Customs Act 1901 (Cth). The first respondent was identified as a principal in the importation enterprise, while the second respondent, her partner, was found to have assisted in an organisational capacity. The maximum penalty for the offence was 25 years imprisonment.

Each respondent gave a formal undertaking under s 21E of the Crimes Act 1914 (Cth), promising to provide full and frank evidence and assistance to law enforcement in proceedings against named co-offenders. On the strength of those undertakings, the sentencing judge reduced each respondent's sentence to reflect both past cooperation and the anticipated benefit of their future evidence at the co-offenders' trial.

When the co-offenders' trial proceeded, neither respondent gave useful evidence consistent with their pre-sentence statements. The Crown appealed, arguing that each respondent had failed to cooperate in accordance with their undertaking and that resentencing was required.

  • Whether the respondents failed to cooperate with the authorities in accordance with their s 21E undertakings, either entirely or in part.
  • Whether the failure engaged the appellate resentencing power under s 21E(3) of the Crimes Act 1914 (Cth).
  • How to identify and apportion the sentencing discount that had been attributed to past cooperation as distinct from prospective (future) cooperation.
  • What sentences were appropriate once the discount attributable to failed prospective cooperation was removed.

Decision

The Court upheld both Crown appeals. It was satisfied that each respondent had failed, at least in part, to cooperate in accordance with their undertaking by not giving evidence at the co-offenders' trial in a manner consistent with their pre-sentence statements. This engaged the partial failure provision in s 21E(3)(b), which permits the appellate court to substitute an increased sentence up to, but not exceeding, the sentence that would have been imposed without any cooperation discount.

A central analytical task was separating the sentencing discount the trial judge had granted for past cooperation from the discount granted for prospective cooperation. The Court acknowledged this could not be done with mathematical precision. Examining the sentencing remarks, the Court assessed that the component referable to the respondents' undertaking to give future evidence at trial represented approximately 10 per cent of the sentence in each case.

Because that prospective component had not been earned, the Court substituted increased sentences to claw back only that portion. The past cooperation of each respondent, which the sentencing judge had found to be genuine and of real substance, continued to attract a discount. The Court's approach reflected that a partial failure under s 21E(3)(b) does not automatically restore the full unmodified sentence: the resentencing court must form a view about what portion of the reduction has been forfeited.

Orders Made

In relation to Vo:
- Crown appeal upheld and original sentence quashed.
- Sentenced to 10 years imprisonment, dating from 30 April 2004, expiring 29 April 2014.
- Non-parole period of 6 years and 6 months, expiring 29 October 2010.

In relation to Tran:
- Crown appeal upheld and original sentence quashed.
- Sentenced to 6 years and 8 months imprisonment, dating from 30 April 2004, expiring 29 December 2010.
- Non-parole period of 2 years and 10 months, expiring 1 March 2007.

Key Takeaways

  • Under s 21E(3) of the Crimes Act 1914 (Cth), where an offender fails entirely to cooperate with their undertaking, the court must restore the full unmodified sentence; where the failure is only partial, the court has a discretion to substitute a sentence somewhere between the reduced and unmodified figures.
  • Identifying the portion of a cooperation discount referable to prospective assistance, as distinct from past assistance already rendered, is a necessary step in any partial-failure resentencing, even though precision is not always achievable.
  • The Court of Criminal Appeal assessed that approximately 10 per cent of the original sentence in each case had been attributable to the promise of future evidence, and adjusted the sentences accordingly, leaving the discount for past cooperation intact.
  • A pre-sentence statement tendered at trial can still constitute genuine past cooperation even where the offender does not attend to give oral evidence consistently with it, and may continue to attract a sentencing discount on resentencing.
  • In dismissing the argument that no resentencing was warranted, the Court confirmed that failing to give evidence at trial in accordance with a formal undertaking, without reasonable excuse, engages the Crown's right to appeal under s 21E(2).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 21E
- Customs Act 1901 (Cth), s 233B
- Evidence Act 1995 (NSW)

Cases:
- Bogdan Tomasz Gladkowski (2000) 115 A Crim R 446
- R v Hodgson (2002) 135 A Crim R 92