Citation: Regina v Considine [2013] NSWCCA 97
Court: Court of Criminal Appeal, New South Wales
Date: 2 May 2013
Judge(s): Emmett JA, Price J, RS Hulme AJ
Background
The respondent was sentenced in the District Court in September 2012 after pleading guilty to aiding and abetting the attempted possession of a commercial quantity of cocaine, a border controlled drug. The cocaine involved had a pure weight of approximately 3.17 kilograms, exceeding one and a half times the minimum commercial quantity, with a wholesale value of around $1 million and a street value of between $2.3 and $2.5 million. The respondent's role was to act as the nominated consignee for a shipment concealing the drugs, attending freight premises to collect the consignment in exchange for payment of $2,000.
The sentencing judge imposed a total sentence of one year and eight months imprisonment, with the respondent to be released after six months on a recognisance. The judge accepted the respondent had been motivated by money rather than duress, but gave significant weight to her difficult personal history, emotional vulnerability, three young children, and prospects for rehabilitation.
The Director of Public Prosecutions (Cth) appealed to the Court of Criminal Appeal on the sole ground that the sentence was manifestly inadequate.
Legal Issues
- Whether the sentence of 20 months imprisonment with six months to be served in custody was manifestly inadequate for an accessory to the attempted possession of a commercial quantity of cocaine.
- Whether, if the sentence was found to be manifestly inadequate, the Court of Criminal Appeal should exercise its residual discretion to decline to re-sentence the respondent.
Decision
The Court, with all three judges agreeing on RS Hulme AJ's reasons, found that the sentence was indeed manifestly inadequate. The undiscounted starting point of two and a half years was considered too low given the nature and scale of the offending. The Court held the starting point should have been at least three years and six months, which, after discounting for the guilty plea and assistance, would have produced a term of approximately two years and four months with fourteen months to be served in custody.
However, the Court declined to exercise its power to re-sentence. Under section 5D of the Criminal Appeal Act 1912, the Court of Criminal Appeal retains a residual discretion to dismiss a Crown appeal even where a sentence is found to be erroneously lenient. This discretion is not confined solely to concerns about double jeopardy.
The Court received affidavit evidence about events since the original sentence was imposed. By the time of the appeal hearing, the respondent had been released after serving six months, had reunited with her three young children and partner, had commenced voluntary work at a childcare centre, applied for a childcare traineeship, and was actively engaged in parenting programs and psychological support. The Court noted she had never previously been employed. Returning her to custody in those circumstances, the Court concluded, would serve no rehabilitative purpose and would be counterproductive.
The Court also noted the sentences imposed on co-offenders Faridani and Karan for context, observing that the respondent's role was accepted to be below that of Karan, who had himself been re-sentenced on a separate Crown appeal.
Orders Made
• Crown appeal dismissed
• Respondent not to be re-sentenced
Key Takeaways
- The Court of Criminal Appeal confirmed that a residual discretion exists under s 5D of the Criminal Appeal Act 1912 to dismiss a Crown appeal even after finding a sentence is manifestly inadequate, and that this discretion extends beyond considerations of double jeopardy alone.
- Post-sentence rehabilitation and changed circumstances are relevant and admissible considerations when the Court decides whether to exercise that residual discretion: the Court may receive evidence of what has occurred between sentencing and the appeal hearing.
- In dismissing the Crown appeal, the Court accepted that returning a respondent to custody following demonstrated rehabilitation, reunification with dependent young children, and engagement with employment and support programs may serve no legitimate sentencing purpose.
- A starting point of two and a half years was assessed as too low for an accessory role in an attempted commercial cocaine importation involving over three kilograms of pure cocaine; the Court indicated at least three years and six months would have been appropriate before discount.
- The primary purpose of Crown appeals against sentence, as confirmed by reference to Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, is to establish sentencing principles for the guidance of courts, rather than simply to increase individual sentences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), s 16G
- Criminal Appeal Act 1912 (NSW), s 5D
Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7
- R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1
- R v Karan [2013] NSWCCA 53
- R v Markarian [2003] NSWCCA 8
- R v Nguyen; R v Pham [2010] NSWCCA 238
- Wong v R [2001] HCA 64; (2001) 207 CLR 584
- R v Wong & Leung [1999] NSWCCA 420; (1999) NSWLR 340
- Tyler v R [2007] 173 A Crim R 458
- R v Spiteri (1999) NSWCCA 3
- Le Cerf (1976) 8 ALR 349