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Court of Criminal Appeal 17 April 2009

N v R; AP v R

[2009] NSWCCA 108

Drugs
SENTENCING WHETHER FACTUAL FINDINGS OPEN WHETHER SENTENCES MANIFESTLY EXCESSIVE PARITY

Citation: N v R; AP v R [2009] NSWCCA 108
Court: NSW Court of Criminal Appeal
Date: 17 April 2009
Judge(s): McClellan CJ at CL, Simpson J, Buddin J (Buddin J delivered the principal judgment; the others agreed)

Background

Two applicants (identified only as NN and AP to preserve anonymity) sought leave to appeal against sentences imposed by Payne DCJ in the District Court following guilty pleas to Commonwealth drug offences. NN pleaded guilty to possessing a marketable quantity of cocaine that had been unlawfully imported, and AP pleaded guilty to aiding and abetting that importation. Both pleas were entered at the earliest opportunity.

The offences arose from a 2007 NSW Police investigation into a cocaine importation scheme. Almost 1.753 kilograms of cocaine was concealed inside a brake drum and shipped via FedEx from the United States to a smash repair business in Artarmon. Intercepted phone calls showed NN actively coordinating collection of the consignment, while AP was in contact with other participants to facilitate delivery. Neither applicant was at the top of the criminal organisation involved.

At first instance, NN received a head sentence of 8 years 4 months (non-parole period of 5 years 3 months) and AP received a head sentence of 7 years 9 months (non-parole period of 4 years 10 months). Both applicants argued those sentences were manifestly excessive and raised additional grounds relating to factual findings and parity between their sentences.

  • Whether the sentencing judge's factual findings were open on the evidence
  • Whether the sentences imposed were manifestly excessive in all the circumstances
  • Whether the sentences failed to reflect appropriate parity between the two applicants, given the differences in their respective roles

Decision

The Court of Criminal Appeal allowed both appeals and substituted reduced sentences. Buddin J, with whom McClellan CJ at CL and Simpson J agreed, found that the original sentences were manifestly excessive when measured against comparable cases and the applicants' actual roles in the scheme.

The court accepted the 40% composite discount applied by the sentencing judge for each applicant's guilty plea and assistance to authorities, and saw no reason to disturb that finding. However, the overall sentences before discount were assessed as too high given the applicants' relatively lower positions within the importing organisation, notwithstanding that their financial motivation and the near-commercial quantity of cocaine remained aggravating features.

The court also addressed parity between the two applicants. Although NN and AP played different roles, the court considered those differences when calibrating the substituted sentences, ultimately imposing a slightly higher sentence on NN, who had been more directly involved in attempting to physically collect the consignment.

General deterrence was affirmed as a primary consideration for offences of this kind, alongside the nature and circumstances of the offence and the quantity of cocaine involved. The court noted the quantity (1.753 kg) was towards the upper end of the marketable range, which remained a relevant though not determinative factor.

Orders Made

Applicant NN:
- Leave to appeal granted
- Appeal allowed
- District Court sentence quashed
- Imprisonment for 6 years 6 months commencing 21 May 2007, expiring 20 November 2013; non-parole period of 4 years commencing 21 May 2007, expiring 20 May 2011

Applicant AP:
- Leave to appeal granted
- Appeal allowed
- District Court sentence quashed
- Imprisonment for 6 years commencing 28 May 2007, expiring 27 May 2013; non-parole period of 3 years 8 months commencing 28 May 2007, expiring 27 January 2011

Key Takeaways

  • The Court of Criminal Appeal confirmed that general deterrence occupies a primary role in sentencing for cocaine importation offences, and that even participants at relatively lower levels of an organisation must receive sentences that reflect adequate punishment.
  • A composite discount of 40% for a guilty plea and assistance to authorities was accepted without revision, illustrating that a well-founded discount from the original sentencing court can survive an appeal even when the head sentence is set aside.
  • Parity between co-offenders is a live sentencing consideration where participants played distinct roles: the court calibrated the substituted sentences to reflect the difference between physically coordinating collection of the drugs and facilitating delivery from a more removed position.
  • The quantity of cocaine involved (1.753 kg, near the commercial threshold of 2 kg) was treated as a relevant aggravating factor but not a determinative one in fixing the appropriate sentencing range.
  • Where original sentences are found to be manifestly excessive on appeal, the appellate court will substitute its own sentence rather than remit the matter, applying the established sentencing principles afresh to the agreed facts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including ss 16A(2)(a), (b) and (k)

Cases:
- Budiman v R (1998) 102 A Crim R 411
- Cameron v The Queen (2002) 209 CLR 339
- Clarkson v R (2007) 209 FLR 387
- Le v R [2006] NSWCCA 136
- R v Kaldor (2004) 150 A Crim R 271
- R v Kardoulias and Ors (2005) 159 A Crim R 252
- R v Klein (2001) 121 A Crim R 90
- R v Mas Rivadia and Ors (2004) 61 NSWLR 63
- R v Milich [2008] NSWCCA 148
- R v Otto (2005) 157 A Crim R 525
- R v Paliwala (2005) 153 A Crim R 451
- R v Qutami (2001) 127 A Crim R 369
- R v Riddell [2009] NSWCCA 96
- R v SC [2008] NSWCCA 29
- R v Speer [2004] NSWCCA 118
- R v To (2007) 172 A Crim R 121
- R v Tyler; R v Chalmers (2007) 173 A Crim R 458
- R v Wong and Leung (1999) 48 NSWLR 340
- The Queen v Olbrich (1999) 199 CLR 270
- Wong and Leung v The Queen (2001) 207 CLR 584