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Court of Criminal Appeal 24 October 2008

Bui v R

[2008] NSWCCA 343

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: Bui v R [2008] NSWCCA 343
Court: NSW Court of Criminal Appeal
Date: 24 October 2008
Judge(s): McClellan CJ at CL, Nettle AJA, Simpson J

Background

The applicant pleaded guilty to two offences: aiding and abetting the importation of a commercial quantity of methylamphetamine (34.8 kilograms) under Commonwealth law, and supplying an indictable quantity of MDMA (3.64 grams) under NSW law. Both pleas were entered at the first available opportunity. The second offence was committed while the applicant was on bail for the first.

The sentencing judge in the District Court characterised the applicant as a high-level principal in Australia for the importation offence, finding he had recruited and supervised a co-offender and played an active role in arrangements to clear and deliver the boat concealing the drugs. On the Commonwealth offence, the applicant received 16½ years' imprisonment with a non-parole period of 10 years. A shorter concurrent sentence was imposed for the State offence.

The applicant sought leave to appeal against sentence, arguing that the sentencing judge had made a legal error in the way he calculated and expressed the combined discount for the guilty plea and assistance to authorities.

  • Whether the sentencing judge erred by identifying a notional starting point and then applying a quantified percentage discount for the guilty plea and cooperation, rather than synthesising all relevant factors together as required by Markarian v R (2005) 228 CLR 357.
  • Whether the resulting sentence was manifestly excessive or failed to reflect proper parity with a co-offender who had previously been sentenced by the Court of Criminal Appeal.

Decision

On the first ground, the Court of Criminal Appeal held that the sentencing judge had not erred. Nettle AJA, with whom McClellan CJ at CL and Simpson J agreed, found that the judge had plainly taken all relevant sentencing considerations into account. The only question was whether quantifying the combined discount for plea and assistance was impermissible under Markarian.

The court acknowledged the tension between Markarian's general disapproval of attributing specific numerical values to individual sentencing factors, and the encouragement given to sentencing judges in R v Thomson and Houlton (2000) 49 NSWLR 383 to quantify the guilty plea discount. Citing R v Mo (2007) 169 A Crim R 60, the court noted that the guidance in Thomson and Houlton is an encouragement, not a requirement. Crucially, the court found that Markarian itself acknowledged cases where some arithmetic indulgence is permissible, and this was such a case.

On parity, the sentencing judge had used the co-offender To's sentence (previously confirmed by the Court of Criminal Appeal at 25 years) as a reference point. The applicant's objective criminality was comparable to To's, but the commission of the second offence while on bail constituted a significant aggravating factor justifying a higher starting point. The Court of Criminal Appeal agreed this approach was correct, and found the final sentence, after the 40 percent combined discount for plea and cooperation, was within the acceptable range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Quantifying a combined discount for a guilty plea and assistance to authorities does not automatically breach the instinctive synthesis approach mandated by Markarian v R, provided the sentencing judge has genuinely considered all relevant factors together.
  • The encouragement in R v Thomson and Houlton to express the guilty plea discount as a percentage is not a requirement, and Markarian permits arithmetic transparency in appropriate cases.
  • Offences committed while on bail carry significant weight as an aggravating factor, capable of justifying a starting point above that applied to a comparable co-offender who was not on bail.
  • In dismissing the appeal, the court confirmed that a 40 percent combined discount for an early guilty plea and substantial cooperation with authorities was a valid exercise of the sentencing discretion on these facts.
  • Parity with a co-offender's sentence remains a powerful consideration, but it does not prevent a higher sentence where aggravating features specific to the applicant, such as offending on bail, are present.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(a)(ii)
- Criminal Code 1995 (Cth), s 11.2(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1914 (Cth), s 16A

Cases:
- Markarian v R (2005) 228 CLR 357
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Mo (2007) 169 A Crim R 60
- R v Gallagher (1991) 23 NSWLR 220
- R v Pham (1991) 55 A Crim R 128