Citation: ALCHIKH, Mohamad Raghid v R [2007] NSWCCA 345
Court: Court of Criminal Appeal, New South Wales
Date: 14 December 2007
Judge(s): Handley AJA; Hulme J; Hall J
Background
The appellant pleaded guilty at committal to conspiracy to import a commercial quantity of ecstasy, specifically 164,462 tablets containing over 10 kilograms of pure drug with a potential retail value of up to $11.4 million. His role was managerial: he arranged the importation and recruited associates, though the principal organiser was based in the United Kingdom. Federal Police arrested him after intercepting the consignment in Sydney in December 2003.
At sentencing, Woods DCJ in the District Court applied an 18-year starting point, discounted by 20 per cent for an early plea and a further 13.33 per cent for assistance to authorities, producing a sentence of 12 years with a non-parole period of 7 years and 3 months. The appellant had given evidence at the committal proceedings and sworn affidavits for extradition proceedings, but had also sought to exculpate two co-accused. The Crown rejected that evidence as unreliable and did not call him as a prosecution witness; instead, it tendered him for cross-examination as an adverse witness. The jury convicted both co-accused.
The appellant sought leave to appeal on the ground that the discount for his assistance was appellably inadequate. He also asked the Court to defer judgment pending the outcome of a co-accused's appeal against conviction, arguing that a successful appeal would vindicate his exculpatory evidence and support a larger assistance discount.
Legal Issues
- Whether the combined discount for plea and assistance (totalling 33.33 per cent) was inadequate, and whether the assistance component should have been of the order of 40 per cent or more.
- Whether the Court should defer judgment pending the resolution of a co-accused's appeal, on the basis that a successful outcome might validate the appellant's rejected evidence.
- Whether a sentencing court is required to conduct a collateral inquiry into the guilt or innocence of third parties in order to assess the value of assistance proffered but rejected by the Crown.
- Whether the appellant's psychiatric condition had been given insufficient weight at sentencing.
Decision
The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Handley AJA, with whom Hulme J and Hall J agreed, held that the discount for assistance to authorities must be assessed on an objective and pragmatic basis: it reflects assistance that the authorities actually accepted and used. Where the Crown rejects proffered assistance and does not rely on it, the prisoner has not, in practical terms, provided assistance, and there is no corresponding basis for a discount on that ground.
The Court explained that it cannot be expected to conduct a "mini trial" into the guilt or innocence of third parties in order to evaluate assistance that was offered but refused. The Crown had assessed the appellant's exculpatory evidence as unreliable; the sentencing judge, having observed the appellant give evidence both at the co-accused's trial and at the sentence proceedings, was well placed to evaluate that assessment. No appellable error was established in the judge's conclusion that the assistance, while significant, was not major and was unlikely to continue.
On the deferral question, the Court decided that further delay was unacceptable, as the co-accused's appeal had already been adjourned twice and was not listed until February 2009. More fundamentally, the Court held that even a successful outcome in that appeal would not have assisted the appellant. An acquittal for unsafe or unsatisfactory verdict would not necessarily establish innocence or confirm that the appellant's exculpatory evidence was truthful; acquittal could result from other factors entirely, including the very falsity of the evidence in question.
The appellant's psychiatric condition, described as a depressive mood disorder not amounting to major mental illness, had been considered by the sentencing judge and found to warrant only modest moderation. The Court found no indication that the judge had failed to give that matter appropriate weight.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A sentencing discount for assistance to authorities is only available to the extent that the assistance was accepted and used by the authorities; assistance proffered but rejected by the Crown does not, in itself, attract a reduction.
- Where the Crown declines to call an offender as a witness and instead tenders them as an adverse witness, the sentencing court is entitled to treat the Crown's assessment of reliability as a proper basis for limiting the assistance discount.
- A sentencing court is not required to undertake collateral inquiries into the guilt or innocence of third parties in order to evaluate rejected assistance; such an exercise would amount to an impermissible mini trial within the sentencing proceedings.
- Even a successful appeal by a co-accused against conviction would not necessarily establish that exculpatory evidence given by the appellant was truthful, given that an acquittal on unsafe grounds does not equate to a finding of innocence.
- Overlapping considerations relevant to a plea of guilty and to assistance (such as contrition and reliability) require care in sentencing to avoid double-counting, consistent with the principles in R v Gallagher and R v El Hani.
Legislation and Cases Referenced
Legislation:
- Customs Act 1901 (Cth), s 233B(1)(b)
- Criminal Code (Cth), s 11.5
Cases:
- R v El Hani [2004] NSWCCA 162
- R v Gallagher (1991) 23 NSWLR 220
- R v Wright (1997) 93 ACR 48