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7
Court of Criminal Appeal 22 April 2013

C v R

[2013] NSWCCA 81

Also reported as (2013) 229 A Crim R 233
Drugs
CRIMINAL LAW SENTENCE APPEAL ATTEMPT TO POSSESS 60 KGS OF COCAINE COCAINE IMPORTED FROM MEXICO ASSISTANCE SIGNIFICANT DISCOUNT FOR ASSISTANCE INSUFFICIENT

Citation: C v R [2013] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 22 April 2013
Judge(s): Hoeben JA; Adams J; Beech-Jones J

Background

The appellant was arrested on 4 July 2010 at a Baulkham Hills property after being found breaking apart tile pallets containing what he believed to be cocaine. The cocaine had been smuggled into Australia from Mexico, concealed within tiles aboard a container ship, as part of a large-scale importation operation. The AFP had intercepted the shipment and replaced the cocaine with inert material before allowing a controlled delivery.

The appellant had travelled to Australia from the United States specifically to receive part of the shipment. He was assessed as occupying a significant, though not principal, role in the enterprise. His portion of the consignment was approximately 60 kilograms of cocaine, with an estimated wholesale value of more than $22 million.

He pleaded guilty in the Local Court and was sentenced in the District Court on 28 October 2011 to a non-parole period of 10 years and 6 months, with a balance of term of 6 years and 4 months. The appellant challenged the sentence on appeal, arguing that the discount for his early guilty plea and assistance to authorities was inadequate, and separately that the sentencing court had insufficient evidence of his custodial conditions.

  • Whether the sentencing judge gave an adequate discount for the appellant's early guilty plea and his assistance to authorities.
  • Whether the absence of evidence about the conditions in which the appellant was held in protective custody amounted to a miscarriage of justice warranting resentencing.

Decision

The Court of Criminal Appeal found that the discount for assistance was insufficient and that resentencing was required. Hoeben JA, with whom Adams J and Beech-Jones J agreed, concluded that the assistance provided by the appellant was significant. Specifically, in key respects the information was assessed as truthful and reliable, and it was of material use to authorities, even though some aspects relating to the Mexican cartel and his own recruitment were found unreliable.

The Court also took into account that the assistance had placed the appellant and his family at genuine risk. As a consequence, the appellant had been held in a protection wing at Long Bay Correctional Centre, with more restrictive conditions than those faced by the general prison population. These more onerous custodial circumstances were a direct result of his cooperation and were relevant to the sentence discount.

On the second ground, the Court noted that because resentencing was already required, the question of custodial conditions had been folded into the broader analysis. The Court accepted, on the basis of fresh affidavit evidence, that conditions in the protection wing were materially more restrictive than those experienced by the general population.

In resentencing, Hoeben JA applied a discount approaching 45 percent for the combination of the early guilty plea and assistance to authorities. The resulting non-parole period was reduced from 10 years and 6 months to 9 years, with the balance of term reduced to 5 years and 3 months.

Orders Made

  • Leave to appeal granted.
  • The appeal was allowed.
  • The sentence imposed on 28 October 2011 was quashed and replaced with a non-parole period of 9 years, commencing 4 July 2010 and expiring 3 July 2019, with a balance of term of 5 years and 3 months, expiring 3 October 2024.

Key Takeaways

  • A sentencing discount for assistance to authorities must be calibrated to the actual significance of the assistance provided, including its reliability and utility to investigators, not merely its existence.
  • Where cooperation with police places an offender and their family at genuine risk of harm, that risk is a relevant factor in assessing the appropriate discount and the weight to be given to assistance.
  • More restrictive custodial conditions suffered as a direct consequence of providing assistance, such as being held in a protection wing, are a legitimate sentencing consideration on resentencing.
  • The Court of Criminal Appeal confirmed that a combined discount approaching 45 percent can be appropriate where both an early guilty plea and significant, reliable assistance to authorities are present, provided the overall sentence remains proportionate to the objective gravity of the offence.
  • In dismissing the second ground as a standalone basis for relief, the Court treated the custodial conditions issue as subsumed within the broader resentencing exercise once error was established on the first ground.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A(1), 16(2)(g)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(3)
- Criminal Code (Cth), ss 307.8(1), 314.4

Cases:
- Cameron v R [2002] HCA 6; 209 CLR 339
- Charkawi v R [2008] NSWCCA 159
- R v Bugeja [2001] NSWCCA 196
- R v Charman [2007] NSWSC 1177
- R v Chu [1998] NSWSC 568
- R v DW [2012] NSWCCA 66
- R v El Hani [2004] NSWCCA 162
- R v Lenati [2008] NSWCCA 67
- R v NP [2003] NSWCCA 195
- R v Standen [2011] NSWSC 1422
- R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151
- SZ v Regina [2007] NSWCCA 19; 168 A Crim R 249
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Tiknius v R [2011] NSWCCA 215
- Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247; 173 A Crim R 458