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Court of Criminal Appeal 25 May 2009

R v Springer

[2009] NSWCCA 144

Drugs

Citation: R v Springer [2009] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 25 May 2009
Judge(s): McClellan CJ at CL, James J, Simpson J

Background

The respondent, a German national residing in Germany, was convicted of importing a marketable quantity of a border-controlled drug into Australia. He had concealed drug packages internally in his body before arriving at Sydney Airport from Vietnam in December 2005. Upon arrest, he made admissions and implicated three other persons in the importation scheme.

The respondent was initially sentenced in the District Court to a head sentence of six years with a non-parole period of four years. That sentence was later reduced by the Court of Criminal Appeal on 16 October 2007 to a head sentence of four years and six months, with a non-parole period of two years and nine months. That reduction reflected an undertaking the respondent had given in September 2007 to cooperate with law enforcement agencies under section 21E of the Crimes Act (Cth), including a commitment to give evidence against the persons he had identified.

The Commonwealth Director of Public Prosecutions subsequently brought a Crown appeal, asserting that the respondent had failed to honour that cooperation undertaking. The respondent did not appear at the hearing, and the Court proceeded in his absence under section 14A of the Criminal Appeal Act (NSW).

  • Whether the respondent had failed to cooperate in accordance with his undertaking under section 21E of the Crimes Act (Cth), thereby justifying an increase in his sentence
  • Whether the Court of Criminal Appeal could deal with the appeal and pass sentence in the absence of the respondent under section 14A of the Criminal Appeal Act (NSW)
  • What the appropriate substitute sentence should be, given that the head sentence had already been set and the discount related only to future cooperation
  • Whether an arrest warrant should be issued, and whether a commencement date for the sentence should be specified in the respondent's absence

Decision

The Court was satisfied that the respondent had been given proper notice of the hearing date and that it would not be unjust to proceed in his absence. On that basis, James J (with McClellan CJ at CL and Simpson J agreeing) addressed both the procedural and substantive questions.

On the substantive issue, the Court accepted that the respondent had failed to honour his cooperation undertaking. The reduction in his non-parole period had been granted specifically in anticipation of future cooperation. Since that cooperation did not materialise, the basis for the reduction was removed.

The Court was careful in crafting the remedy. Because the original sentencing reduction had applied to both the head sentence and the non-parole period, but reinstating a higher head sentence would have produced an anomalous and unfair result (pushing it above the original six-year term imposed by the District Court), the Court confined its intervention to adjusting the non-parole period only. The head sentence of four years and six months was confirmed, while the non-parole period was increased from two years and nine months to three years and eight months.

The Court declined to specify a commencement date for the sentence in the respondent's absence, as permitted by section 14A(2) of the Criminal Appeal Act. It also issued an arrest warrant to enable the sentence commencement date to be fixed once the respondent appeared before the Court.

Orders Made

  • Appeal against the sentence imposed by the Court of Criminal Appeal on 16 October 2007 allowed
  • The non-parole period of two years and nine months substituted with a non-parole period of three years and eight months
  • Head sentence of four years and six months confirmed
  • No commencement date specified at that stage; arrest warrant issued

Key Takeaways

  • Under section 21E of the Crimes Act (Cth), a sentence discount granted in anticipation of future cooperation can be revisited by way of Crown appeal where the offender fails to honour their cooperation undertaking.
  • The Court of Criminal Appeal confirmed it may hear a Crown appeal and impose sentence in the respondent's complete absence, provided it is satisfied the respondent received notice of the hearing date and that proceeding in absence would not be unjust, consistent with section 14A of the Criminal Appeal Act (NSW).
  • Where only part of a sentence was reduced to reflect anticipated cooperation, the Court's corrective power on appeal may be limited to that component. Reinstating a head sentence that would exceed the original sentencing judge's term was treated as producing an unfair and anomalous result.
  • Section 14A(2) of the Criminal Appeal Act permits the Court to defer specifying a sentence commencement date when the respondent is absent and not in custody, with commencement to be determined once the respondent appears.
  • An arrest warrant may be issued under section 14A(4) for the purpose of bringing the respondent before the Court to have the sentence commencement date specified.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), section 21E
- Criminal Appeal Act (NSW), section 14A
- Judiciary Act (Cth), section 68

Cases:
- R v YZ (1999) 162 ALR 265