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Court of Criminal Appeal 23 December 2013

AB v R

[2013] NSWCCA 333

Drugs
CRIMINAL LAW APPEAL LEAVE GRANTED IMPORTATION OF BORDER CONTROLLED DRUG APPEAL DISMISSED

Citation: AB v R [2013] NSWCCA 333
Court: NSW Court of Criminal Appeal
Date: 23 December 2013
Judge(s): Leeming JA, Hall J, Schmidt J (Schmidt J delivering the leading judgment)

Background

The applicant was arrested at Sydney Airport in December 2011 after customs officers discovered she had swallowed 66 pellets containing approximately 400 grams of pure cocaine, imported from Malaysia. She was pregnant at the time of her arrest. The street value of the cocaine was estimated at between $285,000 and $320,000.

Following her arrest, the applicant made complete admissions and cooperated with authorities. She participated in a controlled operation that led to the arrest of the drug syndicate members who were to receive the cocaine. She later gave evidence at their trial and provided intelligence to Malaysian authorities.

In March 2012, Blackmore DCJ in the District Court sentenced the applicant to five years imprisonment with a non-parole period of two years and six months, applying a combined 50% discount for her early guilty plea and assistance to authorities. The applicant sought leave to appeal out of time, contending that the discount was insufficient.

  • Whether the sentencing judge erred in assessing the discount for the applicant's assistance to authorities
  • Whether the combined discount of 50% for early plea and assistance adequately reflected the nature and extent of the assistance provided
  • Whether this was an exceptional case warranting a combined discount exceeding 50% (and potentially reaching 60%)

Decision

Schmidt J (with whom Leeming JA and Hall J agreed) granted the extension of time to appeal but dismissed the appeal on its merits. The Court found no error in Blackmore DCJ's exercise of discretion in fixing the 50% combined discount.

Central to the Court's reasoning was the conduct of the parties at the original sentencing hearing. Both the Crown and the applicant's representatives had submitted at that hearing that the assistance was of "a very high order." Neither party had characterised it as "extraordinary" or "exceptional." The Court observed that this reflected an accurate assessment of the confidential material, which Schmidt J reviewed personally.

The applicant argued on appeal that a discount exceeding 50% was warranted, relying on comparisons with other cases. The Court rejected those comparisons. Cases where discounts above 50% had been granted involved assistance of a qualitatively higher character, such as assistance leading to multiple convictions for serious crimes including murder, or information generating two separate police strike forces resulting in multiple arrests. The assistance provided in this case, while genuinely valuable, did not rise to that level.

The Court confirmed that combined discounts for early plea and assistance can exceed 50% but rarely exceed 60%, and that such outcomes are reserved for truly exceptional circumstances. Because no error in the exercise of the sentencing discretion was established under the principles in House v The King, the appeal was dismissed.

Orders Made

  • Leave to file the appeal out of time was granted.
  • The appeal was dismissed.

Key Takeaways

  • Combined discounts for early guilty pleas and assistance to authorities can exceed 50% but rarely exceed 60%, with the higher end reserved for truly exceptional cases (confirming the approach in SZ v R and R v Ehrlich).
  • No error was established in the sentencing judge's discretion where both parties at the original sentencing hearing accepted the same characterisation of the assistance and neither had argued for a higher discount at that stage.
  • In dismissing the appeal, the Court of Criminal Appeal emphasised that an appellate court reviewing a sentence discount will examine what was actually put below, and a shift in characterisation on appeal, without fresh evidence, will not readily succeed.
  • Comparisons with other assistance cases must account for qualitative differences in the type and impact of the assistance given. The existence of prior cases with larger discounts does not establish that a larger discount is warranted in a different factual context.
  • Under the House v The King standard, an appellant must demonstrate that the sentencing discretion actually miscarried, not merely that a different outcome was open.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.2(1)
- Crimes Act 1914 (Cth), s 21E

Cases:
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
- R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
- Regina v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63
- Lee v R [2012] NSWCCA 123
- R v AMT [2005] NSWCCA 151
- R v OPA [2004] NSWCCA 464
- R v NP [2003] NSWCCA 195
- R v El Hani [2004] NSWCCA 162
- R v A [2004] NSWCCA 292
- R v Barrientos [1999] NSWCCA 1
- R v Tae [2005] NSWCCA 29
- R v Vo [2006] NSWCCA 165