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15
Court of Criminal Appeal 5 April 2011

R v Holland

[2011] NSWCCA 65

Also reported as (2011) 205 A Crim R 429
Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: R v Holland [2011] NSWCCA 65
Court: Court of Criminal Appeal, New South Wales
Date: 5 April 2011
Judge(s): McClellan CJ at CL, Buddin J, Schmidt J

Background

The respondent pleaded guilty to aiding, abetting, counselling or procuring the importation of a commercial quantity of cocaine into Australia, contrary to sections 307.1 and 11.2 of the Criminal Code 1995 (Cth). The cocaine, later found to exceed 7 kilograms, was concealed inside the batteries of a forklift truck shipped to Australia. The respondent's role included receiving the forklift, organising its delivery to a leased warehouse, verifying the drugs were present, communicating with a more senior figure known as "Sunshine", and sending a warehouse key to an address in Canada. He was arrested while attempting to depart Sydney Airport and received approximately $30,000 in Canadian currency for his involvement.

Flannery DCJ of the District Court sentenced the respondent on 30 July 2010. Her Honour applied a 45% reduction to a starting point of 12 years, resulting in a sentence of 6 years and 8 months imprisonment, with a non-parole period of 4 years commencing from 9 January 2009.

The Crown appealed the sentence to the Court of Criminal Appeal on two grounds: that the discount given for assistance was excessive, and that the overall sentence was manifestly inadequate.

  • Whether the 45% discount applied by the sentencing judge for the respondent's assistance to authorities and guilty plea was too high.
  • Whether the sentence was manifestly inadequate, having regard to the seriousness of the offence, the respondent's role, and sentences imposed on comparable offenders.

Decision

On the first ground, the Court of Criminal Appeal found no error in the discount applied. The sentencing judge had properly considered the nature and value of the respondent's assistance, and the reduction was not shown to be outside the range available in the circumstances.

On the second ground, the Court assessed the respondent's role against three comparable cases: R v Labanon, Diefenbach v R, and NP v R. In each of those cases, offenders who played essential but lower-level roles in substantial drug importations received sentences of a broadly comparable nature. The Court found the respondent's circumstances were analogous: he was essential to the Australian operation but was low in the criminal hierarchy, had no prior criminal history, demonstrated genuine remorse, and did not know the precise quantity of drugs involved.

Schmidt J, writing the principal judgment, noted that the sentencing judge's findings regarding the respondent's role and limited knowledge of the drug quantity were unchallenged and open on the evidence. Her Honour further noted that no error of principle was alleged and that no sentencing disparity with comparable offenders had been demonstrated.

McClellan CJ at CL observed that although the sentence sat at the lower limit of any appropriate range, that alone did not make it manifestly inadequate. His Honour also took the opportunity to clarify his categorisation framework from Director of Public Prosecutions (Cth) v De La Rosa, cautioning that it would be wrong to sentence an offender purely by matching them to a category and imposing a sentence thought appropriate for that category's characteristics.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • In dismissing the Crown's appeal, the Court of Criminal Appeal confirmed that a sentence at the lower end of the appropriate range is not, without more, manifestly inadequate.
  • A 45% discount for assistance and a guilty plea was not shown to be excessive where the sentencing judge had properly considered the nature and value of the assistance provided.
  • McClellan CJ at CL clarified that the offence categories developed in DPP (Cth) v De La Rosa are a tool for accessing comparable decisions, not a formula: sentencing by mechanically matching an offender to a category and imposing a corresponding sentence would be an error in approach.
  • No error of principle is required to be demonstrated in a manifest inadequacy appeal, but the Court will not intervene merely because the sentence is at the lower boundary of an appropriate range, provided the sentencing judge's findings were open on the evidence.
  • Relevant objective factors, including the quantity, purity and nature of drugs imported, remain highly material to the assessment of the gravity of a drug offence, as confirmed by reference to Wong v The Queen.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 307.1, 11.2
- Crimes Act 1914 (Cth)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28
- R v Labanon; ex parte Cth DPP [2006] QCA 529
- Diefenbach v R [1999] WASCA 4; (1999) 108 A Crim R 19
- NP v R [2008] NSWCCA 205
- Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 272 ALR 465
- Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
- Boney v The Queen [2008] NSWCCA 165; (2008) 187 A Crim R 167
- R v LP [2010] NSWCCA 154
- Regina v Danson [2005] NSWCCA 343
- Regina v Otto [2005] NSWCCA 333
- R v Anderson [2004] NSWCCA 317
- R v Bimahendali [1999] NSWCCA 409; (1999) 109 A Crim R 355
- R v Laurentiu (1992) 63 A Crim R 402