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Court of Criminal Appeal 24 June 2011

Wagih Hanna Awad NAKHLA v R

[2011] NSWCCA 143

Drugs
SENTENCE OFFER OF ASSISTANCE TO AUTHORITY LITTLE VALUE MEASURE IN TERMS OF CONTRITION AMBIGUITY IN REMARKS ON SENTENCE NO LESS SEVERE SENTENCE WARRANTED

Citation: Wagih Hanna Awad Nakhla v R [2011] NSWCCA 143
Court: NSW Court of Criminal Appeal
Date: 24 June 2011
Judge(s): Hodgson JA, Hoeben J, Grove AJ (all agreeing)

Background

The appellant pleaded guilty in the Local Court to importing a marketable quantity of cocaine, a border controlled drug, in contravention of Commonwealth law. The offence involved an organised importation scheme: the appellant travelled to West Africa, arranged the consignment of approximately 1.43 kilograms of pure cocaine concealed in oil filters, and coordinated delivery through a QANTAS employee. He was arrested with $10,000 cash intended as payment to that employee.

The Sydney District Court sentenced the appellant to nine years and six months imprisonment, with a non-parole period of five years and nine months. The sentencing judge applied a 20 per cent discount for the early guilty plea and took into account the appellant's cooperation with authorities, though that cooperation had been assessed by the Australian Federal Police as being of no or very little value.

The appellant sought leave to appeal on the single ground that the sentencing judge had failed to give sufficient weight to his assistance to authorities.

  • Whether the sentencing judge gave adequate weight to the appellant's cooperation with law enforcement under section 16A of the Crimes Act 1914 (Cth).
  • Whether treating assistance to authorities as a measure of contrition, rather than as a discrete sentencing discount, constituted an error of principle.
  • Whether the sentence was otherwise excessive, having regard to parity with the co-offender Ms Nikolovska, who had since been re-sentenced on a Crown appeal.

Decision

The Court acknowledged that the sentencing judge's characterisation of the appellant's assistance as a "measure of contrition" rather than a specific reduction was, at minimum, unconventional. The concern on appeal was that conflating the two concepts might have obscured whether the assistance had received any independent recognition at all.

Grove AJ found, however, that reading the remarks on sentence as a whole, the assistance had not been entirely overlooked. The AFP had assessed the appellant's three statements as being of no or very little value, noting that the appellant had been evasive, withheld pertinent information, and provided an account inconsistent with intercepted telephone records. No police action resulted from the information provided.

On parity, the Court noted that the co-offender Ms Nikolovska had been re-sentenced on a successful Crown appeal from a manifestly inadequate sentence, with the Court of Criminal Appeal in that proceeding expressly preserving a real difference between her sentence and the appellant's. This confirmed that the appellant's sentence, reflecting his larger and more active role in the importation, was appropriately calibrated.

Taking all factors together, Grove AJ concluded that any generous estimate of the benefit attributable to the appellant's assistance could only have been very modest in the circumstances. No less severe a sentence was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where police have assessed an offender's cooperation as being of no or very little value, the available sentencing reduction for assistance to authorities will be at most very modest, regardless of the volume of interviews or statements provided.
  • Under section 16A of the Crimes Act 1914 (Cth), the word "degree" of cooperation encompasses not just the amount of information offered but also its usefulness and whether it led to further police action.
  • Describing assistance to authorities as a "measure of contrition" rather than as a discrete discount is at least unconventional, but will not constitute a ground for intervention if the overall remarks on sentence reveal the assistance was not entirely ignored.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that parity considerations had already been addressed in the earlier Crown appeal concerning the co-offender, and that a real sentencing differential reflecting the appellant's larger role had been preserved.
  • Sufficient active participation in an importation scheme, including overseas travel to arrange the consignment and direct financial coordination, will be treated as serious aggravating conduct even where persons higher in the organisation remain unidentified.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), section 16A
- Criminal Appeal Act 1912 (NSW), section 6(3)

Cases:
- R v Barrientos [1999] NSWCCA 1
- R v Nikolovska [2010] NSWCCA 169