Citation: Hay v R [2013] NSWCCA 22
Court: Court of Criminal Appeal, NSW
Date: 13 February 2013
Judge(s): Simpson J (with Fullerton J and Davies J agreeing)
Background
The appellant was convicted by a jury in the District Court of two offences under the Criminal Code (Cth): conspiracy to import a marketable quantity of cocaine, and possession of a marketable quantity of unlawfully imported cocaine. The convictions arose from a scheme in which the appellant, working as a catering driver at Sydney International Airport, manipulated his shift roster to be present when a co-conspirator returned from Los Angeles carrying cocaine concealed on a United Airlines flight. The drugs were removed from the aircraft by a colleague and loaded onto a catering truck; both men were apprehended shortly afterwards.
At trial, the appellant denied involvement in drug importation and claimed the roster manipulation was to facilitate petty pilfering of duty-free goods, a practice he described as common among staff. The jury rejected this explanation and returned guilty verdicts on both counts. The appellant received concurrent sentences of seven years' imprisonment with a non-parole period of four years on each count.
The appellant then challenged both the convictions and the sentences before the Court of Criminal Appeal.
Legal Issues
- Whether a psychologist's report prepared for sentencing constituted "fresh evidence" capable of supporting a new trial
- Whether the sentencing judge failed to properly consider evidence of the appellant's medical and psychological condition
- Whether the appellant's sentence gave rise to a parity concern when compared with a co-offender's sentence
- Whether the effect of the appellant's imprisonment on his family warranted a reduction in sentence
Decision
Conviction appeal: fresh evidence ground. The appellant argued that a psychologist's report (prepared by Mr Tim Watson-Munro for sentencing) constituted fresh evidence supporting a new trial. The court applied the established principles from R v Abou-Chabake, which require that the evidence be genuinely fresh (not constructively available at trial through reasonable diligence), credible, and likely to have caused the jury to entertain a reasonable doubt. The report largely reflected the same narrative the appellant had himself advanced at trial, namely that he was involved only in petty pilfering rather than drug importation. Because the appellant had given evidence at trial along these lines, the psychologist's report did not constitute fresh evidence; it was, at most, corroboration of an account the jury had already heard and rejected. This ground was dismissed.
Sentence appeal: medical condition. The appellant contended the sentencing judge had erroneously stated that the appellant gave no evidence at sentencing, and that this error led to his medical and psychological condition being overlooked. The Court of Criminal Appeal accepted that this was a factual error by the sentencing judge. However, the court examined the available evidence on this issue and found it was insufficient to have warranted any meaningful adjustment to the sentence. The error was therefore inconsequential and did not constitute a sentencing error warranting intervention.
Sentence appeal: parity with co-offender. The appellant argued his sentence should be reduced to achieve parity with a co-offender named Borg. The court found this ground lacked merit. Borg was charged with a different offence, had pleaded guilty (attracting a sentencing discount of approximately 25 percent), and was sentenced on the basis of his particular role. When these differences were accounted for, Borg's effective sentence was actually higher than the appellant's, so no legitimate sense of grievance arose.
Sentence appeal: effect on family. The appellant relied on evidence, drawn partly from the psychologist's report, that his marriage had broken down and his son had developed behavioural difficulties leading to juvenile detention. The court confirmed that family impact can be taken into account in sentencing only in exceptional circumstances. The evidence here fell well short of that standard, and this ground was also rejected.
Orders Made
- Appeal against conviction dismissed
- Leave granted to appeal against sentence
- Appeal against sentence dismissed
Key Takeaways
- A psychologist's sentencing report does not constitute "fresh evidence" for the purposes of a conviction appeal where the report merely corroborates an account the accused had already advanced in evidence at trial and the jury had rejected.
- The threshold test for fresh evidence on appeal requires the material to be genuinely unavailable at trial (not merely constructively available through reasonable diligence), credible, and capable of causing a jury to entertain reasonable doubt: R v Abou-Chabake [2004] NSWCCA 356.
- A factual error by a sentencing judge does not automatically warrant appellate intervention; the Court of Criminal Appeal will examine whether the error had any practical impact on the sentence actually imposed.
- Parity arguments require a genuine comparison between like-situated offenders. Where differences in the charges, pleas, and roles are significant, a co-offender's lower headline sentence need not produce a justified sense of grievance.
- Under established authority, the impact of an offender's imprisonment on family members can reduce a sentence only in exceptional circumstances; the mere breakdown of a marriage and a child's behavioural difficulties do not meet that standard.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), ss 307.2(1), 307.6(1), 11.5(1)
Cases
- Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
- Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Abou-Chabake [2004] NSWCCA 356; 49 A Crim R 417
- R v Edwards (1996) A Crim R 510
- Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510