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Court of Criminal Appeal 9 March 2007

R v MO

[2007] NSWCCA 61

Also reported as 169 A Crim R 60
Drugs
CROWN APPEAL SUBSTANTIAL IMPORTATION OF HEROIN

Citation: R v MO [2007] NSWCCA 61
Court: New South Wales Court of Criminal Appeal
Date: 9 March 2007
Judge(s): Sully J, Barr J, Adams J

Background

The respondent was convicted in the District Court of a substantial importation of heroin. The sentencing judge imposed a sentence that the Crown considered manifestly inadequate, prompting this appeal.

The respondent had pleaded guilty and provided assistance to authorities, factors the sentencing judge had taken into account when fixing the original sentence. The sentencing judge had not, however, expressed the discounts for plea and assistance in precise percentage terms.

The Crown's appeal raised both the adequacy of the sentence itself and the proper approach a sentencing judge should take when articulating the discounts applied for a guilty plea and assistance to authorities.

  • Whether the original sentence was manifestly inadequate for a substantial heroin importation offence
  • Whether a sentencing judge is obliged to express discounts for guilty pleas and assistance to authorities in precise percentage terms
  • What the correct approach to "instinctive synthesis" in sentencing is, and how that interacts with guideline judgments on plea discounts

Decision

The Court allowed the Crown appeal and found the original sentence was manifestly inadequate. Adams J, with whom the other judges agreed on the result, identified a starting point of 22 years' imprisonment before discounts. He then applied a 30% discount for assistance to authorities (including 20% for future assistance) and a further 10% for the utilitarian value of the guilty plea, yielding a head sentence of thirteen years and two months.

On the proper approach to expressing discounts, Sully J wrote separately to clarify the effect of the guideline judgment in R v Thomson and Houlton. His Honour emphasised that Thomson and Houlton encouraged, but did not require, sentencing judges to quantify discounts in percentage terms. A failure to nominate a precise percentage does not, of itself, constitute an error of sentencing principle.

Sully J drew on the High Court's reasoning in Markarian v The Queen, which reaffirmed that sentencing is a discretionary judgment requiring the synthesis of all relevant factors. Singling out individual considerations and attributing them specific numerical values risks distorting the overall balancing exercise. His Honour noted that what may appear as "transparency" through arithmetical expression can, in practice, become artifice.

The Court nonetheless applied separate percentage discounts in resentencing, consistent with what Adams J considered appropriate given the facts, while acknowledging that such express quantification remained a matter of the judge's discretion rather than a strict obligation.

Orders Made

  • The Crown appeal was allowed and the original sentence was quashed
  • A substituted head sentence of thirteen years and two months was imposed, commencing 12 May 2005 and ending 11 July 2018
  • A non-parole period of eight years and eight months was set, ending 11 January 2014, being the earliest date on which the respondent is eligible for release on parole

Key Takeaways

  • The guideline judgment in R v Thomson and Houlton encourages sentencing judges to quantify the effect of a guilty plea in percentage terms where appropriate, but does not impose a strict obligation to do so in every case.
  • A sentencing judge's failure to express a discount as a precise percentage figure does not, without more, constitute an error of sentencing principle.
  • Markarian v The Queen confirmed that sentencing is a discretionary and synthetic exercise; attributing specific numerical values to individual factors risks distorting the overall balancing exercise the court must perform.
  • In allowing a Crown appeal and resentencing, the Court of Criminal Appeal applied conventional restraint, fixing a sentence at the bottom of the available range to reflect the principle that offenders should not be doubly punished by a Crown appeal.
  • For substantial drug importation offences involving both a guilty plea and assistance to authorities, the discounts for each consideration may be expressed separately or as a combined figure, at the sentencing court's discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 21E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases
- Markarian v The Queen (2005) 215 ALR 213; [2005] HCA 25
- R v Gallagher (1991) 23 NSWLR 220
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Wong & Leung (1999) 49 NSWLR 340
- R v Z [2006] NSWCCA 342