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Court of Criminal Appeal 17 December 2010

Ma v R

[2010] NSWCCA 320

Drugs
CRIMINAL LAW LEAVE TO APPEAL SENTENCE OFFENDER NO ERROR ESTABLISHED NOT ESTABLISHED LEAVE TO APPEAL GRANTED

Citation: Ma v R [2010] NSWCCA 320
Court: NSW Court of Criminal Appeal
Date: 17 December 2010
Judge(s): Simpson J, Schmidt J, Howie AJ

Background

The applicant pleaded guilty to attempting to possess an unlawfully imported commercial quantity of cocaine, contrary to the Criminal Code 1995 (Cth). The cocaine involved weighed over 201 kilograms in pure weight, with a street value estimated between $50 million and $112.5 million, making it the fourth largest importation of cocaine at the time. The applicant was arrested alongside a co-accused, Ms Wang, who played a larger role in the operation.

The sentencing judge in the District Court, Blackmore DCJ, imposed a sentence of 15 years imprisonment on the applicant with a non-parole period of 9 years. The starting point before discounts was 23 years, and the applicant received a combined discount of 35% for her guilty plea and assistance, of which 6% was attributed to future assistance. Her co-accused, Ms Wang, received a total sentence of 18 years with a non-parole period of 11 years and 6 months, also with a 35% combined discount, but with 15% of that discount attributed to future assistance.

The applicant sought leave to appeal her sentence, arguing primarily that she had been treated less favourably than her co-accused in terms of the assistance discount, that the sentencing judge had erred in assessing the discount, and that the overall sentence was manifestly excessive.

  • Whether the applicant had a legitimate grievance arising from the disparity between her assistance discount (6%) and that received by her co-accused (15%), given that both received a total 35% discount.
  • Whether the sentencing judge erred in assessing the quantum of discount attributable to the applicant's assistance.
  • Whether the overall sentence of 15 years imprisonment was manifestly excessive.

(A fourth ground, concerning whether the sentencing judge erred in failing to consider a variation to the customary ratio between head sentence and non-parole period, was not pressed.)

Decision

The Court of Criminal Appeal dismissed all three pressed grounds of appeal. On the question of the assistance discount, the Court found that the relevant comparison was not simply the percentage allocated to future assistance, but the whole sentencing exercise considered in context. Both the applicant and Ms Wang received an identical total discount of 35%. The difference in the future assistance component reflected a proper assessment of the nature and extent of each offender's undertaking to cooperate, not a failure of parity.

On the second ground, the Court found no error in the sentencing judge's assessment of the discount to which the applicant was entitled. The assistance she provided and undertook to provide was assessed on its own merits, and the resulting figure fell within the available range. No identifiable legal error in the approach was established.

On manifest excess, the Court observed that the applicant had in fact achieved a sentence broadly in line with what her own counsel had sought at first instance. The sentencing judge had adopted a starting point of 23 years and applied the agreed 35% discount, producing the 15-year head sentence with a 9-year non-parole period. The Court noted that the sentence had to reflect the serious criminality involved, as well as the purposes of sentencing including punishment, deterrence, rehabilitation, and community protection, and found no basis to conclude the sentence fell outside the available range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A disparity in the percentage of a sentence discount allocated specifically to future assistance does not, by itself, establish a legitimate grievance, provided both co-accused received the same total discount and the difference reflects a proper individual assessment of each offender's cooperation.
  • No error was established in the sentencing judge's assessment of the assistance discount where the discount was calibrated to the nature and extent of the individual applicant's undertaking to cooperate.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal noted that the applicant received broadly what her own counsel had sought at sentencing, making it difficult to sustain a complaint about the outcome.
  • Under s 21E of the Crimes Act 1914 (Cth), a sentencing court must separately specify the component of any sentence reduction attributable to an undertaking to cooperate with law enforcement agencies, preserving the prosecution's right to appeal if that undertaking is not honoured.
  • Sentences for large-scale commercial drug importation must account for the full range of sentencing purposes, and the applicant's subjective circumstances (including youth and prospects for rehabilitation) did not render a 15-year head sentence on a 23-year starting point manifestly excessive given the scale of the offending.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 11.1 and 307.5(1)
- Crimes Act 1914 (Cth), s 21E

Cases:
- Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
- Chan, Lo and Nguyen v R [2010] NSWCCA 153
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Lowndes v R [1999] HCA 29; (1999) 195 CLR 665
- R v El Hani [2004] NSWCCA 162
- R v Louis Sukkar [2005] NSWCCA 55
- Alchikh v The Queen [2007] NSWCCA 345
- R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151
- R v Z [2006] NSWCCA 342; (2006) 167 Crim R 436
- SZ v The Queen [2007] NSWCCA 19; (2007) 168 A Crim 249
- Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584