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24
Court of Criminal Appeal 28 March 2012

R v Ehrlich

[2012] NSWCCA 38

Also reported as (2012) 219 A Crim R 415
Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE DISCOUNT FOR ASSISTANCE MODE OF EXPRESSING WHETHER EXCESSIVE RELATIONSHIP TO OTHER DISCOUNTS

Citation: R v Ehrlich [2012] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 28 March 2012
Judges: Basten JA, Adams J, Johnson J

Background

The respondent was sentenced in the District Court for supplying 1.615 kilograms of methylamphetamine over a three-month period. The sentencing judge allowed a 25% discount for a guilty plea and a further 10% discount for assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), arriving at a non-parole period of four years and ten months with a balance of term of one year and eight months.

The Director of Public Prosecutions appealed on two grounds: first, that the sentence was manifestly inadequate; and second, that the 10% assistance discount was excessive, given what the Director characterised as a general cap of 15% for that type of discount.

The Court of Criminal Appeal considered both the specific sentence imposed and broader questions about how discounts for assistance to authorities should be calculated, expressed, and combined with other discounts.

  • Whether a discount for assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is subject to a general upper limit derived from prior case law
  • Whether sentencing judges are required to express individual discounts in precise arithmetical terms
  • Whether discounts for a guilty plea and for assistance to authorities may be applied cumulatively (added together) or must be applied consecutively (one applied to the product of the other)
  • Whether the sentence was manifestly inadequate overall

Decision

On the asserted cap for assistance discounts, Basten JA rejected the Director's submission that a 15% ceiling applies as a general principle. His Honour noted that extracting a figure from a particular decision and treating it as a generally applicable tariff is a hazardous exercise in the broad discretionary field of sentencing. Other Court of Criminal Appeal decisions had allowed assistance discounts of up to 50%. Section 23(2) requires courts to have regard to the specific circumstances of each case, and no rigid tariff governs that inquiry.

On arithmetical precision, s 23(4) of the Act (introduced in 2011) now requires the court to state both the penalty it would otherwise have imposed and, where two reasons are involved, the reduction attributable to each. Compliance with this provision will generally allow the discount to be identified by comparing the two stated figures, even where the percentage is not expressly calculated. This statutory requirement modified but did not entirely displace the earlier common law flexibility described in R v Gallagher.

On cumulative versus consecutive discounting, Basten JA observed that no authority or statutory provision definitively requires one method over the other. While some earlier decisions appeared to endorse consecutive application (applying each discount to the already-reduced figure), the practice of adding the two percentages together to achieve a single global reduction was commonplace and had been accepted without objection in numerous cases, including by judges who had previously endorsed the consecutive approach. His Honour noted the real concern is avoiding double counting of any particular element, such as contrition, which is expressly included within the guilty plea discount under the Criminal Case Conferencing Trial Act 2008 (NSW) and may also feature in an assistance discount.

On manifest inadequacy, Johnson J (with whom the other judges did not agree on this ground) found the original sentence manifestly inadequate. His Honour concluded that insufficient weight had been given to the objective gravity of the offence, the standard non-parole period, and the need for general and specific deterrence, while excessive weight had been given to the respondent's limited subjective case. Before the 35% total discount, Johnson J assessed the appropriate head sentence at 14 years, yielding a final sentence of nine years and three months with a non-parole period of six years and nine months.

Orders Made

  • Crown appeal allowed
  • Sentence imposed on 16 June 2011 quashed
  • Respondent resentenced to a non-parole period of six years and nine months commencing 2 March 2010 and expiring 1 December 2016, with an additional term of two years and six months commencing 2 December 2016 and expiring 1 June 2019

Key Takeaways

  • No fixed percentage ceiling governs discounts for assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The discount is a discretionary exercise informed by the specific statutory considerations in s 23(2), and prior cases are not to be treated as tariff authorities.
  • Section 23(4), commencing March 2011, requires sentencing courts to state both the unreduce baseline sentence and the reduction attributable to each reason where assistance is involved. This allows the effective discount to be calculated even if not expressly stated as a percentage.
  • The Court of Criminal Appeal left open whether discounts for a guilty plea and for assistance must be applied consecutively rather than cumulatively. The practice of combining them into a single global figure applied to the base sentence has been widely accepted without challenge.
  • Where contrition is a component of a guilty plea discount by statute, sentencing courts must take care not to count it again when applying a separate discount for assistance to authorities.
  • A sentence may be manifestly inadequate where insufficient weight is given to objective seriousness, the standard non-parole period as a legislative guidepost, and deterrence principles, even where the sentencing judge has applied the formally correct discounting methodology.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
- Criminal Case Conferencing Trial Act 2008 (NSW), s 16
- Drug Misuse and Trafficking Act 1985 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Kumar & Feagaiga [2008] NSWCCA 328
- R v NP [2003] NSWCCA 195
- R v El Hani [2004] NSWCCA 162
- R v Gallagher (1991) 23 NSWLR 220
- R v Cartwright (1989) 17 NSWLR 243
- Muldrock v The Queen [2011] HCA 39
- R v XX [2009] NSWCCA 115