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Court of Criminal Appeal 30 March 2007

Thompson v R

[2007] NSWCCA 83

Drugs
CRIMINAL LAW PREVIOUS TRIAL OF CHARGES APPLICANT CONVICTED SUCCESSFUL APPEAL NEW TRIAL ORDERED SENTENCE DISCOUNTED BY REASON OF PLEA

Citation: Thompson v R [2007] NSWCCA 83
Court: New South Wales Court of Criminal Appeal
Date: 30 March 2007
Judge(s): Simpson J (principal judgment), Howie J, Hislop J

Background

The applicant, a New Zealand resident and master mariner, was convicted of being knowingly concerned in the importation of not less than the commercial quantity of cocaine into Australia. The offence involved an elaborate international operation in which approximately 383 kilograms of pure cocaine, with a wholesale value exceeding $60 million, was transported by yacht from South America to Patonga, New South Wales, where police arrested the applicant in the early hours of 1 February 2000.

The applicant had originally been convicted after a seven-month trial in 2001 and sentenced to 24 years imprisonment. The Court of Criminal Appeal quashed that conviction in 2003 and ordered a new trial. When the retrial commenced in July 2004, the applicant entered a plea of guilty and was re-sentenced in February 2005 by Berman DCJ to 20 years and six months imprisonment, with a non-parole period of 13 years, reflecting a discount for the guilty plea.

The applicant, appearing for himself on the appeal, challenged the sentence on three grounds: that he had been treated discriminatorily compared to co-offenders who had been transferred overseas to serve their sentences; that the sentencing judge had made an incorrect finding about his role in the offence; and that an observation made by the Court of Criminal Appeal in the earlier appeal created an issue estoppel in his favour.

  • Whether the transfer of British co-offenders to the United Kingdom under the Convention on the Transfer of Sentenced Persons, and their consequentially earlier parole eligibility, gave rise to a parity ground for reducing the applicant's sentence
  • Whether an observation made by Smart AJ in the earlier Court of Criminal Appeal judgment created an issue estoppel binding the sentencing judge in the re-sentencing
  • Whether the sentencing judge's finding as to the applicant's level of criminality and the extent of his knowledge of the importation was open on the agreed facts

Decision

Parity and the Convention on the Transfer of Sentenced Persons: Simpson J rejected the argument that the earlier parole eligibility of Bateman and Bartle in the United Kingdom constituted a valid parity ground. The parity principle requires comparison of sentences imposed, not outcomes produced by the penal administration of a foreign country after transfer. The applicant was born in New Zealand and was not eligible for transfer under the Convention, which applied only to British nationals. In any event, the practical consequences of a transfer to another country's parole system could not have been known or foreseen by Berman DCJ at the time of sentencing. No error was established on this ground.

Issue estoppel: The applicant relied on a passage from Smart AJ's judgment in the 2003 appeal, in which his Honour had noted that the jury might not have been satisfied beyond reasonable doubt as to when the applicant first knew cocaine was being imported. Simpson J held that this observation did not amount to a concluded finding of fact capable of founding an issue estoppel. Smart AJ had made the remark in the context of declining to apply the proviso under the Criminal Appeal Act 1912, not as a positive determination of fact. The agreed statement of facts placed before Berman DCJ on re-sentencing was a separate and proper basis for the findings made.

Criminality finding: The applicant contended that he only became aware of the importation while already at sea, thereby minimising his culpability. Simpson J found that the sentencing judge's finding as to the applicant's role was open on the agreed facts and had not been shown to be incorrect. This ground overlapped substantially with the parity ground and was similarly rejected. All three grounds failed and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle in sentencing operates by reference to the sentences imposed on co-offenders, not to parole outcomes in foreign jurisdictions that arise after a co-offender's transfer under an international convention.
  • A transfer under the Convention on the Transfer of Sentenced Persons does not create a sentencing disparity that can ground a parity appeal, particularly where the applicant was ineligible for transfer under the same instrument.
  • An observation made by an appellate court in the course of deciding whether to apply a statutory proviso does not constitute a concluded finding of fact and cannot operate as an issue estoppel in subsequent proceedings.
  • Where a plea of guilty is entered before a re-sentencing judge who has before them an agreed statement of facts, findings about the offender's level of criminality drawn from that statement are available to the judge and are not constrained by observations made in the earlier appeal.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence reduced from 24 years to 20 years and six months on re-sentencing, following a guilty plea after a successful conviction appeal, was not shown to be affected by error.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 235(2)(c)(ii)
- Criminal Appeal Act 1912 (NSW), s 6 (proviso)

Cases:
- R v Bartle and Others [2003] NSWCCA 329; 181 FLR 1
- R v Daley [2003] NSWCCA 109
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383