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Court of Criminal Appeal 27 June 2013

Cassar v R

[2013] NSWCCA 147

DrugsFraud & dishonesty
CRIMINAL LAW FINDING OF VALUE OF ASSISTANCE AS LOW SUBSEQUENT SENTENCE PROCEEDINGS NO ERROR APPEAL DISMISSED

Citation: Cassar v R [2013] NSWCCA 147
Court: Court of Criminal Appeal, NSW
Date: 27 June 2013
Judges: Bathurst CJ, Hidden J, Button J

Background

The applicant was sentenced in the District Court on 16 April 2010 for serious drug manufacturing offences involving large commercial quantities of MDA and MDP2P (chemicals used to produce MDMA, commonly known as ecstasy), along with possessing a precursor and a proceeds of crime offence connected to the use of false passports. Given his significant role in the manufacturing operation and an extensive prior record for drug offences, lengthy custodial sentences were inevitable.

During the sentencing proceedings, the applicant had cooperated with authorities, including the Australian Crime Commission and the Australian Federal Police. He provided a statement, confirmed a willingness to give evidence against co-offenders, and gave information to the AFP about false passports. The AFP described his assistance as frank and full, but assessed its value as low. Judge Ainslie-Wallace gave a combined discount of 35% for both the guilty plea and the assistance.

Some 14 months later, in separate sentencing proceedings before Judge Zahra relating to the passport offences, the applicant's assistance was evaluated more favourably, reflecting continued cooperation in the intervening period. The applicant then sought leave to appeal against the original sentence, arguing that the discount given by Judge Ainslie-Wallace for his assistance had been insufficient.

  • Whether the combined discount of 35% for guilty plea and assistance to authorities was insufficient in all the circumstances
  • Whether events occurring after the original sentence, specifically a more favourable assessment of the applicant's assistance by a different judge in later proceedings, could establish error in the original sentencing
  • Whether the principle in JM v R [2008] NSWCCA 254, allowing post-sentence events to illuminate an error made at the time of sentencing, extended to the facts of this case

Decision

Button J (with whom Bathurst CJ and Hidden J agreed) held that the combined 35% discount was open to Judge Ainslie-Wallace on the material before her. The AFP's assessment of the value of the assistance was low, and her Honour's evaluation was properly grounded in the evidence available at the time of sentencing. No error was established in that assessment.

The court examined the applicant's reliance on JM v R, where post-sentence events had been used to demonstrate that the sentencing judge had underestimated the significance of the offender's undertaking to give evidence against others. Button J distinguished that case carefully. In JM v R, the post-sentence events revealed a misconception that had existed at the time of sentencing; the later events merely made that pre-existing error more visible. Here, no such error existed. Judge Ainslie-Wallace's assessment was correct on the material before her, and the later, more favourable evaluation by Judge Zahra was based on materially different evidence reflecting the applicant's continued assistance over the following 14 months.

Button J rejected the proposition that post-sentence developments, standing alone, could ground a sentencing appeal in this Court. He illustrated the point with two hypotheticals: a change in family circumstances after sentencing, and post-sentence rehabilitation. In both cases, he reasoned that subsequent developments could not impugn an otherwise correct original sentence, and the same principle applied equally to appeals by the Crown. The principle that appeals against sentence are confined to the identification of error in the original proceedings should not be expanded beyond the narrow exception recognised in JM v R.

The court granted leave to appeal out of time, given the length of the sentences and the significance of the issue, but dismissed the appeal on the merits.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Post-sentence events do not, of themselves, establish error in a sentencing decision; appeals against sentence remain confined to identifying error in the original proceedings or remarks on sentence.
  • The exception in JM v R permits post-sentence events to be relied upon only where they reveal a misconception that already existed at the time of sentencing, making a pre-existing error more apparent rather than creating a new basis for complaint.
  • Where a second judge, in later proceedings, arrives at a more favourable assessment of an offender's assistance, that difference in evaluation does not constitute error by the first judge, particularly where the second judge had access to evidence of continued cooperation that did not exist at the time of the first sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a combined discount of 35% for guilty plea and assistance was open to the sentencing judge where the AFP had assessed the value of the assistance as low.
  • Symmetry in appellate principle applies: just as an offender cannot rely on favourable post-sentence developments to impugn an original sentence, the Crown equally could not rely on unfavourable post-sentence developments to seek an increase.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 24A
- Crimes Act 1900 (NSW), s 193B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code Act 1995 (Cth)
- Australian Passports Act 2005 (Cth)
- Passports Act 1938 (Cth)

Cases:
- JM v R [2008] NSWCCA 254
- R v Bailey (1988) 35 A Crim R 458
- R v Munday [1981] 2 NSWLR 177
- R v Smith (1987) 27 A Crim R 375