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Court of Criminal Appeal 28 February 2006

De Campos v Regina

[2006] NSWCCA 51

Drugs
CRIMINAL LAW SENTENCE IMPORTATION OFFER OF ASSISTANCE REFUSED BY POLICE

Citation: De Campos v Regina [2006] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 28 February 2006
Judge(s): Beazley JA, Adams J, Howie J

Background

The applicant, a 44-year-old South African citizen, was intercepted at Sydney Airport in August 2004 after arriving from Johannesburg. A hospital scan revealed she had internally concealed 66 cylindrical objects containing heroin, with a pure weight of approximately 280 grams. She pleaded guilty to importing not less than the trafficable quantity of heroin under the Customs Act (Cth), an offence carrying a maximum sentence of 25 years' imprisonment.

In her sentencing evidence, the applicant described being recruited in a pub by a stranger who exploited her financial difficulties and her desire to improve living conditions for her elderly, wheelchair-bound mother. She said she had been coerced into proceeding with the importation after buying into the scheme, and had been paid approximately AUD $4,000.

The District Court sentenced the applicant to eight years' imprisonment with a non-parole period of five years, commencing 10 August 2004. On appeal, the applicant raised several grounds, including that she had made an offer to assist police in identifying others involved in the drug importation network, and that this offer had not been taken into account at sentencing.

  • Whether the sentence imposed was manifestly excessive having regard to the applicant's personal circumstances and the circumstances of the offence
  • Whether an offer of assistance made to police, which police declined to take up and which was not recorded in any police statement or brought to the prosecutor's attention, should attract a sentencing discount
  • Whether the sentencing judge had properly considered the comparable cases cited by the Crown

Decision

The Court of Criminal Appeal found that the most significant issue on appeal was the unrecorded offer of assistance. It emerged during the appeal that the applicant had offered to cooperate with police, but that offer had not been documented in any police statement and remained unknown to the prosecutor at the time of sentencing. The Court noted that the Crown has a clear duty to assist the sentencing court on matters of such potential significance, and observed that the situation had only been rectified when the Crown informed the Court of Criminal Appeal of the offer during the appeal hearing.

The Court rejected the Crown's submission that the offer should attract no discount simply because police had reasonably declined to take it up. Howie J affirmed that there is a significant public policy in encouraging cooperation with police to expose those higher in the hierarchy of drug importation networks, particularly those residing in Australia. The fact that an offer is not acted upon does not automatically disqualify it from consideration in sentencing.

The Court concluded that a further 5 percent discount was warranted for the offer of assistance, to be applied on top of the 20 percent discount already assumed to have been given for the early guilty plea. This produced a combined discount of approximately 25 percent, and the figures were rounded down to arrive at a practical result.

The appeal was allowed and the sentence was reduced. The non-parole period was shortened to four and a half years, advancing the applicant's parole eligibility date by approximately six months.

Orders Made

  • Extension of time to seek leave to appeal granted
  • Leave to appeal granted
  • Appeal allowed; sentence imposed by the District Court quashed
  • Applicant re-sentenced to imprisonment for seven and a half years, commencing 10 August 2004
  • Non-parole period of four and a half years imposed, expiring 9 February 2009

Key Takeaways

  • An offer of assistance to police can attract a sentencing discount even where police decline to act on it, provided the offer reflects genuine willingness to cooperate and the relevant public policy considerations are engaged.
  • Strong public policy supports encouraging cooperation with authorities to expose those higher in drug importation hierarchies, and this policy interest does not disappear simply because an offer proves operationally inconvenient or is refused.
  • Where police fail to record an offer of assistance and that information is consequently not before the sentencing court, the Crown's duty to assist the court extends to ensuring such material is placed before it; the Court of Criminal Appeal here found that duty had not been fulfilled at first instance.
  • In this case, the combined discount for an early guilty plea and an unacted-upon offer of assistance was assessed at approximately 25 percent of the appropriate head sentence.
  • The Court of Criminal Appeal confirmed the approach in R v Dang and R v Besan as relevant comparators for heroin importation sentencing, while recognising that the circumstances of each case, including the assistance discount in Dang and the Crown appeal constraints in Besan, must be carefully distinguished.

Legislation and Cases Referenced

Legislation:
- Customs Act (Cth) 1901, s 233B(1)(b)

Cases:
- R v Dang [2004] NSWCCA 269
- R v Besan (2004) 147 A Crim R 430
- R v Tanudjaja [2000] NSWCCA 467