Citation: R v Lamella [2014] NSWCCA 122
Court: Court of Criminal Appeal, New South Wales
Date: 10 July 2014
Judges: Price J (with Garling J and Bellew J agreeing)
Background
The respondent was a Customs and Border Protection Officer at Sydney Airport whose duties included screening incoming passengers for illicit goods. Between 2009 and 2010, he used his position to facilitate three separate importations of pseudoephedrine-laden cold and flu tablets from Thailand, providing couriers with "free runs" through customs, supplying pre-stamped passenger cards, and coordinating with fellow officers. He received a substantial share of the proceeds, which reached approximately $190,000 from a single importation alone.
The respondent pleaded guilty to two counts: conspiracy to import a controlled precursor (pseudoephedrine) under the Criminal Code Act 1995 (Cth), carrying a maximum of 25 years imprisonment; and dishonestly agreeing as a Commonwealth public official to receive a benefit to influence his duties, carrying a maximum of 10 years. Two further offences were taken into account on a Form 1 basis under s 16BA of the Crimes Act 1914 (Cth).
The sentencing judge in the District Court imposed 8 years on count one and 3 years on count two, with a single non-parole period of 4 years. The Commonwealth Director of Public Prosecutions appealed, contending that the sentences were manifestly inadequate.
Legal Issues
- Whether the sentencing judge gave adequate weight to the objective seriousness of the offences
- Whether the two additional Form 1 offences were properly taken into account
- Whether general deterrence was given sufficient weight
- Whether it was an error to apply a single combined discount of 50% for guilty plea and assistance, rather than applying each discount separately
- Whether the non-parole period of 4 years (50% of the head sentence) was appropriate given the substantial discounts already granted
- Whether the sentences were manifestly inadequate overall
- Whether, even if errors were established, the Court should exercise its residual discretion to decline to intervene
Decision
Price J, with Garling J and Bellew J agreeing, found that the Director established a number of errors in the sentencing judge's approach. In particular, the sentencing judge failed to give adequate weight to the objective seriousness of the offending, did not properly factor in the Form 1 matters, and gave insufficient emphasis to general deterrence. These were offences involving serious and sustained abuse of a position of public trust, and the sentences did not adequately reflect that gravity.
The Court also accepted that the application of a single combined 50% discount for both guilty plea and assistance was erroneous in method. The correct approach, following Green v R [2011] HCA 49, requires each discount to be applied sequentially rather than merged into a single undifferentiated figure. The non-parole period of 4 years (being only half the 8-year head sentence) was also found to be inadequate in the circumstances, particularly given the discounts already built into the head sentence.
Despite establishing these errors, the Court turned to whether its residual discretion should be exercised to decline to intervene. The respondent had continued to provide substantial assistance to the Australian Federal Police after the appeal was lodged, including attending further interviews and giving evidence at committal proceedings. His mental health had deteriorated significantly as a result of the appeal, with a psychologist reporting he was not coping and required psychiatric treatment. His custody in a maximum security facility, rather than a minimum security one his classification would otherwise permit, added to the hardship.
Price J concluded that in all the circumstances, the double jeopardy principle, the respondent's continuing cooperation, and his deteriorating mental health together justified exercising the residual discretion not to intervene. The appeal was dismissed.
Orders Made
• The appeal be dismissed
Key Takeaways
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that establishing sentencing error does not automatically lead to resentencing: the court retains a residual discretion to decline to intervene where intervention would be unjust in all the circumstances.
- A combined single-step discount for guilty plea and assistance is methodologically incorrect. Following Green v R and consistent authority, the discounts must be assessed and applied separately and sequentially.
- Continuing cooperation with law enforcement after a Crown appeal is lodged, and demonstrated deterioration in an offender's mental health caused by the appeal itself, are relevant factors in the exercise of the residual discretion.
- Offences involving sustained abuse of a public official's position to facilitate drug importation attract significant weight on general deterrence, and sentencing judges must reflect that consideration proportionately in the sentences imposed.
- The non-parole period must be assessed independently and cannot simply default to 50% of the head sentence without regard to the full range of matters under s 16A(2) of the Crimes Act 1914 (Cth), particularly where the head sentence already incorporates substantial discounts.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), including ss 16A(2) and 16BA
- Criminal Code Act 1995 (Cth), including ss 11.5, 141.1(3), 142.1(1), 142.2(1) and 307.11(1)
- Drug Misuse and Trafficking Act 1985 (NSW)
Cases
- Green v R [2011] HCA 49; (2011) 244 CLR 462
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- DPP (Cth) v El Karhani (1990) 21 NSWLR 370
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- AAT v R [2011] NSWCCA 17
- Majid v R [2010] NSWCCA 121
- SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19