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9
Court of Criminal Appeal 5 April 2013

LB v R

[2013] NSWCCA 70

Drugs
CRIMINAL LAW ASSISTANCE GIVEN TO AUTHORITIES NO OTHER ERROR ASSERTED APPLICANT RE SENTENCED

Citation: LB v R [2013] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 5 April 2013
Judges: Bathurst CJ, Hidden J, Button J

Background

The applicant, referred to as LB for personal security reasons, was sentenced in the District Court of New South Wales on 26 August 2011 for two serious drug offences. Each offence involved knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug (MDMA and methylamphetamine respectively) between September 2007 and October 2008, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985. Each offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

LB had pleaded guilty to both offences and had provided assistance to authorities, matters that are relevant to the sentencing discount a court must consider. The original sentence imposed a total head sentence of 12 years with a total non-parole period of 8 years. LB sought leave to appeal on the ground that the sentencing judge had given an insufficient discount for his guilty plea and assistance to authorities.

  • Whether the sentencing judge gave a sufficient discount for LB's plea of guilty and assistance to authorities
  • Whether the discount expressed in the remarks on sentence was actually reflected in the sentence imposed, as required by s 23 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the Court of Criminal Appeal should grant leave to appeal and proceed to re-sentence

Decision

The Court found that, while the sentencing judge had expressed a discount for guilty plea and assistance to authorities, there was a discord between the discount stated in the remarks on sentence and the discount that the sentence itself actually reflected. This inconsistency meant the sentence did not comply with s 23 of the Crimes (Sentencing Procedure) Act 1999, which requires that the court indicate the discount given for an offender's assistance.

The Court noted that no other error in the sentencing exercise was asserted by the applicant. Nevertheless, the identified discord was sufficient to warrant intervention. The Court granted leave to appeal and allowed the appeal.

On re-sentencing, the Court balanced the serious objective criminality (a substantial role in a sophisticated and ongoing drug manufacturing operation producing very large quantities of prohibited drugs) against LB's subjective circumstances, guilty pleas, and assistance to authorities. Button J expressly stated that any lesser total head sentence than the one proposed would be unreasonably disproportionate to the nature and circumstances of the offences. The Court also considered the sentences imposed on co-offenders and was satisfied the proposed sentence did not demonstrate erroneous disparity.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Both original sentences quashed
  • Count two (methylamphetamine manufacture): non-parole period of 2 years 7 months commencing 19 September 2010, expiring 18 April 2013; parole period of 1 year 8 months expiring 18 December 2014
  • Count one (MDMA manufacture, including Form 1 matters): non-parole period of 4 years 3 months commencing 19 April 2013, expiring 18 July 2017; parole period of 3 years 4 months expiring 18 November 2020
  • Total head sentence of 10 years 2 months with a total non-parole period of 6 years 10 months, each dating from 19 September 2010
  • Earliest eligibility for parole: 18 July 2017

Key Takeaways

  • A discord between the discount a sentencing judge expresses and the discount actually reflected in the sentence imposed constitutes an error warranting appellate intervention under s 23 of the Crimes (Sentencing Procedure) Act 1999.
  • Under s 23, a sentencing court must ensure that any discount given for an offender's assistance to authorities is genuinely and transparently reflected in the sentence imposed, not merely stated in the remarks on sentence.
  • In re-sentencing for large commercial quantity drug manufacturing offences, the Court of Criminal Appeal confirmed that very serious objective criminality, including a substantial role in a sophisticated ongoing operation, can limit the extent to which subjective factors and assistance reduce an overall sentence.
  • Comparison with co-offenders' sentences forms part of the re-sentencing exercise, with the court satisfying itself that no erroneous disparity arises from the sentences imposed on each participant.
  • The decision is identified by initials rather than full name, reflecting the court's recognition that personal security considerations can justify protecting an offender's identity, particularly where assistance to authorities has been provided.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Brown v R; R v Brown [2010] NSWCCA 73
- R v Ehrlich [2012] NSWCCA 38
- R v El Hani [2004] NSWCCA 162
- R v Perez-Vargas (1986) 8 NSWLR 559
- R v Sukkar [2006] NSWCCA 92
- R v Waqa (No 2) [2005] NSWCCA 33; (2005) 156 A Crim R 454
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249