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9
Court of Criminal Appeal 11 March 2013

R v KARAN

[2013] NSWCCA 53

Drugs
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE DISCOUNT FOR PLEA HOW ASSESSED FOR COMMONWEALTH OFFENCES DRUG IMPORTATION OFFENCE

Citation: R v Karan [2013] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 11 March 2013
Judges: Johnson J, Harrison J, Adamson J (all agreeing)

Background

The respondent pleaded guilty in the District Court to aiding and abetting an attempt to possess a commercial quantity of cocaine (3.173 kg pure), contrary to ss 307.5, 11.2 and 11.1 of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is life imprisonment. The respondent had been recruited by a co-offender to find a named consignee for a cocaine shipment concealed in kitchen items sent from Canada to Australia, and to organise customs clearance of the consignment.

The respondent recruited a couple, one of whom acted as the named consignee, and played an active coordinating role over several weeks. The cocaine (with a street value of between $2.3 million and $2.5 million) was intercepted by Customs and replaced with an inert powder before delivery. All participants were arrested following the collection of the reconstructed consignment.

The sentencing judge in the District Court imposed a total sentence of three years and nine months, with a non-parole period of two years and six months. The Crown appealed on the grounds that the sentence was manifestly inadequate, that the 25% discount for the plea of guilty was excessive, and that the finding of cooperation with law enforcement was not supported.

  • Whether the total sentence of three years and nine months was manifestly inadequate for a commercial drug importation offence under Commonwealth law.
  • Whether the sentencing judge erred in characterising the plea as entered at the "first available opportunity," entitling the respondent to a 25% discount, when the plea was in fact entered on the date fixed for trial.
  • Whether the sentencing judge was correct to find that the respondent cooperated with law enforcement agencies.
  • How the plea discount and cooperation discount should properly be assessed for Commonwealth offences.

Decision

The Court of Criminal Appeal found that the sentencing judge erred in characterising the plea as having been entered at the first available opportunity. The plea was entered on the date fixed for trial, after a significant delay and only once agreed facts had been settled. The respondent also knew at that point that the Crown case included the evidence of his co-offender Faridani. These circumstances did not support a description of the plea as "at the first available opportunity."

On the question of cooperation, the Court found the evidence of genuine assistance to law enforcement was limited. The respondent had declined to be interviewed when arrested. The sentencing judge's findings on cooperation were not adequately supported by the material before the court.

The Court assessed the appropriate discount as 15%, not 25%, having regard to the late timing of the plea, the strength of the Crown case, the absence of any meaningful cooperation, and the absence of evidence of genuine contrition. The respondent had not, for instance, apologised to the co-offender he had recruited, whose prosecution and custodial sentence resulted directly from his involvement.

Taking those errors together, the Court was satisfied that clear error had been demonstrated and that the original sentence was manifestly inadequate. The Court resentenced the respondent to a total term of six years' imprisonment with a non-parole period of four years.

Orders Made

  • Appeal allowed.
  • Sentence imposed by McLoughlin DCJ on 12 October 2012 quashed.
  • Respondent resentenced to a non-parole period of four years' imprisonment commencing 25 July 2012 and concluding 24 July 2016, with a balance of term of two years concluding 24 July 2018; first eligible for parole on 24 July 2016.

Key Takeaways

  • A plea entered on the date fixed for trial, after agreed facts had been negotiated and with knowledge of a strong Crown case, does not qualify as a plea at the "first available opportunity" for the purposes of the Commonwealth sentencing discount framework.
  • Under the Commonwealth sentencing regime, a combined discount for plea, contrition, and cooperation should reflect the actual weight attributable to each element; where cooperation is limited and contrition is not well evidenced, a figure of 25% is likely to be excessive.
  • The Court of Criminal Appeal confirmed that the strength of the prosecution case at the time the plea is entered is a relevant consideration in calibrating the appropriate discount.
  • In dismissing any discretionary basis for non-intervention, the Court emphasised that multiple errors in the sentencing judge's approach, each affecting the final figure, cumulatively demonstrated manifest inadequacy.
  • Subjective factors such as hardship to family members and drug dependency do not automatically reduce sentences; the sentencing court here had found that the respondent's addiction did not impair his decision-making in a sophisticated, planned offence.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.5, 11.1, 11.2
- Crimes Act 1914 (Cth)

Cases
- Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
- El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Lee v R [2012] NSWCCA 123
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383