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10
Court of Criminal Appeal 18 December 2009

FS v R

[2009] NSWCCA 301

Also reported as (2009) 198 A Crim R 383
Drugs
CRIMINAL LAW APPEAL APPEAL GRANTED SENTENCED

Citation: FS v R [2009] NSWCCA 301
Court: NSW Court of Criminal Appeal
Date: 18 December 2009
Judges: Campbell JA, Howie J, Rothman J

Background

The applicant, identified only by initials to protect his safety as an informant, pleaded guilty in the District Court to conspiring to possess a commercial quantity of a border-controlled substance (cocaine). The offence carried a maximum penalty of life imprisonment. The conspiracy involved a sophisticated importation scheme in which nearly 28.4 kilograms of pure cocaine was concealed within cargo arriving in Sydney from overseas.

The District Court sentenced the applicant to 12 years' imprisonment with a non-parole period of 8 years. That sentence was calculated from a starting point of 20 years, with a combined discount of 40 percent applied for the early guilty plea and past and future assistance to law enforcement authorities. The discount was broken down as 25 percent for the plea and 5 percent for future assistance.

The applicant sought leave to appeal on the grounds that the sentencing judge had misapplied the principles governing discounts for assistance, and that events occurring after the original sentence demonstrated the assistance had proved more valuable than originally assessed.

  • Whether the sentencing judge correctly applied the principles governing discounts for pleas of guilty and assistance to law enforcement authorities.
  • Whether post-sentence events, showing that the applicant's assistance had proved more valuable than initially appreciated, could ground a successful appeal and support a greater discount on re-sentence.

Decision

The Court of Criminal Appeal found that the sentencing judge had either misunderstood or misapplied the relevant principles for assessing a combined discount for a guilty plea and assistance to authorities. Applying those principles correctly, the Court concluded that the applicant should have received a discount of 50 percent rather than 40 percent. The Court was satisfied that a 50 percent discount did not produce a sentence disproportionate to the criminality involved.

On the second ground, the Court rejected the proposition that the value of assistance should be measured by the number of times the offender was subsequently required to give evidence. A sentencing judge is required to assess the value of assistance as accurately as the evidence allows at the time of sentencing. An ex post facto realisation that assistance was required more frequently, or proved more significant, than originally anticipated does not establish error in the original sentencing discretion and cannot, of itself, justify quashing the sentence on appeal. Because the first ground was sufficient to allow the appeal, the Court stated it was unnecessary to resolve the second ground definitively.

Orders Made

  • Leave to appeal the sentence imposed on 12 August 2008 was granted.
  • The sentence imposed by the District Court on 12 August 2008 was quashed.
  • In lieu of the original sentence, the applicant was sentenced to 10 years' imprisonment with a non-parole period of 6 years and 8 months, commencing 12 July 2007 and expiring 11 March 2014, with first eligibility for release on 11 March 2014.

Key Takeaways

  • A sentencing judge must correctly apply the principles governing discounts for guilty pleas and assistance; failure to do so constitutes an error warranting appellate intervention and re-sentencing.
  • The value of assistance to law enforcement authorities is assessed as accurately as possible at the time of sentencing. Subsequent events revealing that the assistance was more (or less) significant than originally understood do not, of themselves, establish error in the original exercise of the sentencing discretion.
  • Where assistance is of sufficient value, the combined discount for a guilty plea and that assistance can reach 50 percent without necessarily producing a sentence disproportionate to the criminality involved.
  • An offender's identity may be suppressed in published reasons where disclosure of identifying information would place the offender at risk, particularly in custody, due to their role as an informant.
  • In dismissing the second ground of appeal, the Court of Criminal Appeal confirmed that the number of occasions on which an offender is subsequently called upon to give evidence is not, in itself, a reliable measure of the value of the assistance provided.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)

Cases
- AB v R (1999) 198 CLR 111
- Cameron v R (2002) 209 CLR 339
- Markarian v R (2005) 228 CLR 357
- R v Bugeja [2001] NSWCCA 196
- R v Gallagher (1991) 23 NSWLR 220
- R v M [2005] NSWCCA 224
- R v Pang (1999) 105 A Crim R 474
- R v Sukkar (2006) 172 A Crim R 151
- R v Thomson and Houlton (2000) 49 NSWLR 383
- SZ v Regina [2007] NSWCCA 19
- Wong v R (2001) 207 CLR 584
- York v R (2005) 225 CLR 466