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Court of Criminal Appeal 21 December 2011

HATFIELD v REGINA

[2011] NSWCCA 286

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE DISCOUNT FOR ASSISTANCE APPEAL AGAINST SENTENCE DEFENCE OF MENTAL ILLNESS PAROLE PERIOD

Citation: [2011] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 21 December 2011
Judge(s): McClellan CJ at CL, Hidden J, Hall J (Hall J delivering the leading judgment, with the other judges agreeing)

Background

The appellant pleaded guilty in the District Court at Sydney to two serious drug offences: conspiracy to import a commercial quantity of cocaine (a Commonwealth offence under the Customs Act 1901 and Criminal Code 1995) and knowingly taking part in the supply of a large commercial quantity of cocaine (a State offence under the Drug Misuse and Trafficking Act 1985). The offending arose from a scheme in which almost 10 kilograms of cocaine were imported from South America in October 2004, with further conspiracies to import larger quantities planned but ultimately abandoned after the conspirators became aware of police surveillance.

The appellant was sentenced on 28 August 2009. The District Court imposed a 17-year sentence for the State offence and a 24-year-and-six-month sentence for the Commonwealth offence, partially accumulated. The sentencing judge allowed a 30% discount for the plea and assistance on the Commonwealth offence, but only 15% on the State offence. The notice of appeal was filed out of time, but the Crown did not oppose leave being granted.

The appeal raised a range of grounds, including errors in the plea discount calculation, the treatment of the appellant's mental health, the impact of delay between arrest and sentencing, and whether the discount for assistance should have applied to both sentences.

  • Whether the sentencing judge correctly assessed the discount for the early guilty plea, particularly in identifying the first reasonable opportunity to plead
  • Whether fresh evidence concerning the timing of fitness-to-plead issues and mental health should be admitted, and whether the judge erred in failing to take the appellant's mental illness into account in the head sentences (not just the non-parole period)
  • Whether the judge erred in finding there was no evidence of mental illness at the time of the offences
  • Whether the delay between arrest and sentence was adequately taken into account
  • Whether the discount for assistance to authorities should have been applied to the State offence sentence as well as the Commonwealth sentence

Decision

The Court of Criminal Appeal found error in one respect only: the discount allowed for the guilty plea on the State offence. The sentencing judge had allowed 15% for that plea, but the Court concluded that a 20% discount was appropriate given the circumstances surrounding the timing of the plea, including the fitness-to-plead issues that had affected when the plea could realistically be entered. On all other grounds, the appeal failed.

On the mental health grounds, the Court rejected the argument that the sentencing judge had erred by confining the effect of the appellant's mental health to the non-parole period rather than expressing it in the head sentences. The Court also found no error in the judge's conclusion that there was insufficient evidence of mental illness at the time of the offences. The fresh evidence tendered on appeal relating to mental health did not, in the Court's view, disclose a miscarriage of justice.

On the delay ground, the Court found that the sentencing judge had adequately taken into account the period between arrest and sentence, and that no fresh evidence on this point altered that conclusion. The structure of the sentences meant that delay had already been reflected in the commencement dates applied to the terms of imprisonment.

On the question of whether the assistance discount should have applied to both the State and Commonwealth sentences, the Court agreed with the Crown's submission that this ground lacked merit. Because almost all of the State sentence was subsumed within the accumulated Commonwealth sentence, the practical effect of applying a different discount to the State offence was minimal, and it would not have produced a less severe overall result.

Orders Made

  • Leave to appeal against the sentences imposed by the District Court on 28 August 2009 was granted.
  • The sentences imposed by the District Court were set aside.
  • The appellant was re-sentenced as follows:
  • State offence (s 25(2) Drug Misuse and Trafficking Act 1985, including Form 1 matters): non-parole period of 9 years and 2 months commencing 9 May 2005, expiring 8 July 2014; balance of term of 6 years and 6 months expiring 8 January 2021.
  • Commonwealth offence (conspiracy to import cocaine, s 11.5(1) Criminal Code 1995 and s 233B(1) Customs Act 1901): imprisonment for 22 years with a non-parole period of 11 years, commencing 9 May 2007; non-parole period expiring 8 May 2018; total sentence expiring 8 May 2029.
  • All other grounds of appeal were dismissed.

Key Takeaways

  • A sentencing court must correctly identify the first reasonable opportunity at which a guilty plea could have been entered. Where factors such as fitness-to-plead proceedings delayed entry of the plea, this can affect the appropriate discount, and a discount of 15% was found to be insufficient on the facts here, with 20% held to be correct.

  • Where mental health issues are relied upon in mitigation, a sentencing court may take them into account in fixing the non-parole period rather than the head sentence. The Court of Criminal Appeal confirmed no error arises from that approach in all cases, and declined to find error on that basis here.

  • Fresh evidence will not automatically succeed on a sentence appeal. The Court examined each category of fresh evidence (mental health, timing of fitness-to-plead issues, and delay) and found that none of it, individually or collectively, demonstrated that the original sentence occasioned a miscarriage of justice sufficient to warrant intervention beyond the plea discount issue.

  • In dismissing the assistance discount ground, the Court applied a practical approach: where a State sentence is almost entirely subsumed by an accumulated and more severe Commonwealth sentence, a differently calibrated discount on the State sentence does not alter the effective punishment, and the sentencing structure already reflects this.

  • Delay between arrest and sentence is a recognised mitigating factor in NSW sentencing, but its weight depends on the circumstances of each case. On the facts here, the sentencing judge was found to have addressed it adequately, including through the commencement dates assigned to the sentences.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B, 235(2)(c)(i)
- Criminal Code 1995 (Cth), s 11.5
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33
- Crimes Act 1914 (Cth)

Cases:
- Binnie v R [2010] NSWCCA 14
- Courtney v R [2007] NSWCCA 195
- R v Benetiz [2000] NSWCCA 21
- R v Currie (NSWCCA, unreported, 25 February 1992)
- R v Engert (1995) 84 A Crim R 67
- R v Fahda [1999] NSWCCA 267
- R v Letteri (NSWCCA, unreported, 18 March 1992)
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Todd (1982) 2 NSWLR 517
- TC v R [2009] NSWCCA 296