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Court of Criminal Appeal 5 February 2007

COETZEE v R

[2007] NSWCCA 12

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE SUPPLY OF COCAINE LACKED REMORSE PROVIDED NO ASSISTANCE TO AUTHORITIES WHETHER APPLICANT ACTED OUT OF FEAR

Citation: Coetzee v R [2007] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 5 February 2007
Judge(s): McClellan CJ at CL; Simpson J; Hall J

Background

The applicant pleaded guilty in the District Court to supplying 24.4 kilograms of cocaine at Hornsby on 11 April 2001, an amount exceeding the large commercial quantity threshold under the Drug Misuse and Trafficking Act 1985. The offending involved an elaborate scheme in which the applicant established a legitimate-looking flooring importation business, used it to bring cocaine concealed in modular floor crates from South Africa into Australia, and leased commercial storage facilities to receive the drugs.

The sentencing judge in the District Court imposed a total sentence of nine years and three months, with a non-parole period of six years and nine months commencing 30 January 2004. The applicant sought leave to appeal against that sentence.

One discrete issue emerged late in the appeal: the applicant had served nine additional days in custody that were overlooked at the time of sentencing, due to a period he had spent on bail. Both parties agreed those days should be credited.

  • Whether the sentencing judge erred in finding the applicant played a major role in the offending
  • Whether the sentencing judge erred in finding the applicant lacked remorse
  • Whether the sentencing judge erred in finding the applicant provided no genuine assistance to authorities
  • Whether the applicant acted out of fear, and whether that mitigated the sentence
  • Whether the sentence was manifestly excessive
  • Whether the discount given for the early guilty plea was sufficient
  • Whether special circumstances existed justifying a variation of the standard non-parole period
  • Whether delay in sentencing required further adjustment
  • Whether progress towards rehabilitation during pre-sentence custody warranted a reduced sentence
  • Whether nine uncredited days in custody required the sentence to be adjusted

Decision

The Court of Criminal Appeal rejected the principal grounds of appeal. McClellan CJ at CL found no error in the sentencing judge's conclusions that the applicant played a major role in the offending, that he lacked genuine remorse, and that his purported offer of assistance to authorities was neither genuine nor of practical utility. The Court also found no error in the discount afforded for the early guilty plea.

On the question of delay, the Court found that a significant portion of the delay in sentencing was attributable to the applicant's own defence applications rather than any fault of the Crown. The delay did not, of itself, require a further reduction in the sentence imposed.

The applicant's rehabilitation efforts during the period before sentencing were acknowledged, and the Court accepted the sentencing judge had them well in mind when arriving at the non-parole period. In all the circumstances, the Court was not satisfied that the sentence fell outside the appropriate range, and declined to interfere on any of the substantive grounds.

However, the Court allowed the appeal on the narrow ground that nine days of custody had been overlooked when sentencing commenced. To correct this, the sentence was quashed and a fresh sentence was imposed, adjusted so the non-parole period commenced nine days earlier than the original commencement date.

Orders Made

  • Leave to appeal granted
  • Appeal allowed and the original sentence quashed
  • Applicant resentenced to a non-parole period of six years and nine months, commencing 21 January 2004 and expiring 20 October 2010
  • Total term of nine years and three months, expiring 20 April 2013
  • Applicant first eligible for parole on 21 October 2010

Key Takeaways

  • Where a defendant has served days in pre-sentence custody that are overlooked at the time of sentencing, the Court of Criminal Appeal may allow an appeal and resentence solely to correct that administrative error, even where no substantive sentencing error is found.
  • A sentencing judge's finding that an offer of assistance to authorities was not genuine and lacked practical utility will be upheld on appeal where the evidence supports that conclusion and the trial judge has given reasons for it.
  • Progress towards rehabilitation made during an extended pre-sentence period in custody may be a mitigating factor, consistent with MRN v R (2006) NSWCCA 155, but does not automatically reduce a sentence that otherwise falls within the appropriate range.
  • Delay in sentencing proceedings does not automatically entitle a defendant to a sentence reduction, particularly where the delay is substantially attributable to the defendant's own procedural steps rather than Crown conduct.
  • Under the sentencing framework confirmed in R v Thomson and Houlton and R v Simpson, an early guilty plea warrants a discount, but the adequacy of that discount is assessed by reference to all the circumstances of the case, and a judge's assessment will not be disturbed simply because a different discount might also have been appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 33(3)(a)

Cases:
- MRN v R (2006) NSWCCA 155
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Yenice (1994) 72 A Crim R 234