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Court of Criminal Appeal 30 March 2012

LMN v Regina

[2012] NSWCCA 52

Drugs
CRIME SENTENCING ASSISTANCE TO AUTHORITIES

Citation: LMN v Regina [2012] NSWCCA 52
Court: Court of Criminal Appeal
Date: 30 March 2012
Judge(s): Beazley JA, Harrison J, McCallum J

Background

The applicant (whose name was suppressed with the Crown's consent) pleaded guilty in the District Court to two counts of supplying not less than a commercial quantity of ecstasy, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is 20 years' imprisonment, with a standard non-parole period of ten years.

The applicant was sentenced to an aggregate non-parole period of four years and six months, with a total term of eight years and six months. He sought leave to appeal on the single ground that the sentencing judge failed to properly consider the extent and value of his assistance to authorities and, as a result, did not apply an appropriate discount under s 23 of the Crimes (Sentencing Procedure) Act 1999.

At the time of his arrest, the applicant had refused to assist police. Approximately seven months later, his barrister entered into email negotiations with the prosecutor seeking a "plea deal" in exchange for information about other drug syndicates. The investigating detective ultimately refused to provide a letter of assistance, rating the information provided on a scale of one to ten as "one or two" and describing it as relating to street-level suppliers.

  • Whether the sentencing judge erred in declining to reduce the applicant's sentence under s 23 of the Crimes (Sentencing Procedure) Act 1999 for assistance provided to authorities.
  • Whether the value and genuineness of the applicant's cooperation were properly assessed, including the timing, content, and limitations of the information provided.
  • Whether the alleged inaction of the investigating detective undermined the usefulness of the information so as to justify a sentencing discount regardless of the information's quality.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. McCallum J (with whom Beazley JA and Harrison J agreed) found no error in the sentencing judge's approach. The power to reduce a sentence under s 23 is discretionary, and the Court confirmed it may only intervene in accordance with the principles in House v the King (1936) 55 CLR 499, requiring demonstration of an identifiable error in the exercise of that discretion.

The Court acknowledged the established principle, drawn from R v Cartwright (1989) and reaffirmed in R v Stanbouli [2003], that an offender who genuinely cooperates with authorities should be rewarded whether or not the information supplied ultimately proves useful. However, McCallum J held that the value of information remains a relevant consideration and can inform the court's assessment of whether cooperation was genuinely offered. In this case, the judge was entitled to view the applicant's cooperation with scepticism, given the delayed timing of the approach, the limited quality of the information, and the applicant's refusal to give evidence in court.

The applicant's submission that the detective's inaction hampered the usefulness of the information was rejected. The Court found that the shortcomings of the information as a basis for further investigation were adequately explained in the email correspondence, and the conclusion that it was of minimal assistance was plainly open. The sentencing judge also separately considered s 23(3), concluding that extending further leniency would result in an inadequate penalty and risk undermining public confidence in the administration of justice.

The Court also noted in passing that a fixed-term sentence had been incorrectly imposed for the first count, as that offence carried a standard non-parole period requiring the court to set a non-parole period rather than a fixed term. However, because no ground of appeal raised this issue, the error did not of itself warrant the Court's intervention.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court retains a discretion to decline a reduction in sentence where the information provided by an offender is of minimal value, even where the offender has made some attempt to cooperate.
  • The established principle that genuine cooperation should be rewarded regardless of whether information proves useful does not operate in isolation: the value of the information provided remains a legitimate consideration and can shed light on whether cooperation was genuinely offered.
  • Where an offender refuses to give evidence in court and declines to support a controlled operation, those limitations can properly inform a sentencing court's assessment of the extent and genuineness of the assistance offered.
  • No error was established in the sentencing judge's approach, and the Court of Criminal Appeal confirmed that appellate intervention in discretionary sentencing decisions requires identification of error consistent with the House v the King standard.
  • A fixed-term sentence is not available for offences carrying a standard non-parole period, as the court is required to set a non-parole period under s 44(1) of the Crimes (Sentencing Procedure) Act 1999. However, that technical error did not invalidate the sentence where no ground of appeal raised the point.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44(1), 45(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- House v the King (1936) 55 CLR 499
- R v Cartwright (1989) 17 NSWLR 243
- R v Stanbouli [2003] NSWCCA 355
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Hristovski v R [2010] NSWCCA 129