Citation: DANIAL, Fawzieh Nona v R [2008] NSWCCA 15
Court: New South Wales Court of Criminal Appeal
Date: 31 January 2008
Judge(s): McClellan CJ at CL; James J; Barr J
Background
The appellant was a 59-year-old woman of Iraqi origin who arrived at Sydney Airport from Vietnam carrying approximately 94.4 grams of pure heroin concealed in her underwear. She pleaded guilty to importing a marketable quantity of a border-controlled drug contrary to section 307.2 of the Commonwealth Criminal Code Act 1995, doing so on the first day of her trial in October 2006.
In the District Court, Judge Geraghty imposed a sentence of six years' imprisonment commencing 18 January 2007, with a non-parole period of four years. The sentencing judge allowed a 15 per cent discount, described as reflecting the "utilitarian value" of the guilty plea, and noted that the Crown case was strong and the plea had not been entered at the first available opportunity.
The appellant sought leave to appeal against sentence out of time, raising two grounds. The first concerned whether the sentencing judge adequately credited the three days she had spent in pre-sentence custody. The second challenged the judge's approach to quantifying the guilty plea discount.
Legal Issues
- Whether the sentencing judge erred by failing to expressly account for three days of pre-sentence custody in the sentence imposed.
- Whether the sentencing judge erred by framing the guilty plea discount in terms of "utilitarian value" rather than the offender's willingness to facilitate the course of justice, and by having regard to the strength of the Crown case when assessing that discount.
Decision
On the first ground, the Court found no error. The sentencing judge had expressly stated he was taking the three days of pre-sentence custody into account, and the absence of an explicit adjustment in the arithmetic of the sentence did not establish error. As McClellan CJ at CL noted, a sentence requires the judge to balance many considerations, and pre-sentence custody need not be separately identified as a discrete reduction to be validly accounted for.
On the second ground, the Court acknowledged that the sentencing judge had used the wrong terminology. Under the applicable principles, the relevant consideration is an offender's willingness to facilitate the course of justice, not merely the "utilitarian value" of the plea. In this context, the strength of the Crown case is a permissible consideration because it may illuminate whether a plea was genuinely motivated by remorse and cooperation or simply by recognition that conviction was inevitable.
Despite the terminology error, the Court held it was a mistake in expression only. Reading the remarks on sentence as a whole, the sentencing judge had clearly directed his mind to the kinds of matters relevant to assessing willingness to facilitate justice. The 15 per cent discount itself was not challenged, and the late timing of the plea was a significant factor against a higher reduction.
The Court also held that a deterioration in the appellant's health since sentencing did not, of itself, constitute grounds for the Court of Criminal Appeal to re-sentence or remit the matter.
Orders Made
- Extension of time to apply for leave to appeal against sentence granted, to the date the application was filed.
- Leave to appeal against sentence granted.
- Appeal against sentence dismissed.
Key Takeaways
- A sentencing judge need not express pre-sentence custody as a discrete mathematical reduction in the final sentence; an express statement of consideration is sufficient to avoid error.
- Under the principles governing guilty plea discounts for Commonwealth offences, the correct framework focuses on an offender's willingness to facilitate the course of justice, not simply the "utilitarian value" of the plea.
- The strength of the Crown case is a relevant factor when assessing the weight of a guilty plea discount, because it bears on whether the plea reflects genuine cooperation or a pragmatic response to an overwhelming prosecution.
- An error in terminology by a sentencing judge will not justify appellate intervention where the remarks on sentence, read as a whole, demonstrate that the judge applied the correct underlying considerations.
- Deterioration in an offender's health after sentencing does not, without more, provide sufficient grounds for the Court of Criminal Appeal to intervene and re-sentence.
Legislation and Cases Referenced
Legislation:
- Commonwealth Criminal Code Act 1995 (Cth), s 307.2
- Commonwealth Crimes Act (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Assafiri v Regina [2007] NSWCCA 122
- Cameron v The Queen (2002) 209 CLR 339
- R v English [2000] NSWCCA 254
- R v Galati [2003] NSWCCA 148
- R v Howard [2001] NSWCCA 309
- R v Newman; R v Simpson (2004) 145 A Crim R 361
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Tyler v Regina; R v Chalmers [2007] NSWCCA 247