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Court of Criminal Appeal 23 July 2014

Horne v R

[2014] NSWCCA 133

Drugs
CRIMINAL LAW APPEAL SENTENCING DISCOUNT FOR GUILTY PLEA DISCOUNT FOR ASSISTANCE TO AUTHORITIES APPEAL

Citation: Horne v R [2014] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 23 July 2014
Judge(s): Basten JA; R A Hulme J; Campbell J (with whom Basten JA and R A Hulme J agreed)

Background

The applicant was convicted of supplying a commercial quantity of heroin (not less than 250 grams) in the Rozelle area of Sydney between November and December 2008. He operated as a local manager within a heroin distribution network, working closely with a co-offender who coordinated street-level sales, packaging, and deliveries to approximately 80 regular customers. The applicant had no prior criminal record and was 30 years old at the time of the offending.

After his arrest in December 2008, the applicant remained on bail for several years before entering a guilty plea in the District Court in December 2012. Despite the length of time between arrest and plea, the Crown accepted at first instance that the plea was entered at the earliest possible opportunity, partly because quantifying the drug amounts from intercepted telephone recordings was a lengthy process, and partly because of ongoing negotiations concerning an assistance discount.

In the District Court, the applicant was sentenced to a non-parole period of 5 years and an additional term of 3 years (total 8 years), commencing February 2013. He sought leave to appeal on several grounds, including errors in the calculation of sentencing discounts, failure to account for relevant mitigating factors, and parity with his co-offender.

  • Whether the sentencing judge made an error in calculating the discount for the guilty plea and the discount for assistance to authorities
  • Whether the sentencing judge failed to give adequate weight to relevant mitigating factors, including remorse, delay in prosecution, and prospects of rehabilitation
  • Whether the sentence was disproportionate when compared to the sentence imposed on the applicant's co-offender (parity ground)
  • Whether the combined effect of any errors warranted resentencing

Decision

Guilty plea and assistance discounts. The Court found error in the way the sentencing judge calculated and applied the discounts for the guilty plea (under the Criminal Case Conferencing Trial Act 2008 and general principles) and for the applicant's assistance to authorities. The assistance involved the exposure of a corrupt public official, about which part of the proceedings were conducted in closed court with a confidential judgment. Some delay in the applicant signing his witness statement had been the subject of debate, but the Court accepted that the assistance was genuine and substantial.

Mitigating factors. The Court accepted that the sentencing judge had found genuine contrition, supported by the guilty plea, the assistance rendered, character evidence, and the evidence of the applicant's wife. The Court on appeal added to those findings the applicant's progress toward rehabilitation and the good prospects of continued reform on release. These factors, in combination, were treated as significant.

Parity. The co-offender had been sentenced to a shorter non-parole period. The Court considered the parity principle (derived from Lowe v The Queen) and relevant comparable decisions. It concluded that the combined weight of errors and the mitigating circumstances, particularly when assessed against comparable sentences in similar drug supply cases, required a reduction in the sentence.

Resentencing. The Court determined that the appropriate non-parole period was 4 years and 2 months, with an additional term of 2 years and 6 months, producing a total term of 6 years and 8 months. A sentencing ratio of 62.5 percent (that is, the proportion of the total sentence constituted by the non-parole period) was confirmed as appropriate. The Court was satisfied that the revised non-parole period was not disproportionate to the applicant's offending when measured against comparable prior sentences.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The District Court sentence of 8 March 2013 quashed; the applicant resentenced to a non-parole period of 4 years and 2 months commencing 19 February 2013 and expiring 18 April 2017, with an additional term of 2 years and 6 months commencing 19 April 2017 and expiring 18 October 2019; earliest parole eligibility date 19 April 2017
  • Non-publication order made under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of the confidential judgment, evidence taken in closed court, and related submissions, on the grounds in s 8(a) and (c) (prevention of prejudice to the administration of justice and protection of the applicant's safety)

Key Takeaways

  • Errors in the calculation of discounts for both a guilty plea and assistance to authorities can, in combination, constitute sufficient error to warrant the Court of Criminal Appeal substituting a fresh sentence.
  • Where an offender provides assistance relating to the exposure of a corrupt official, the sentencing court may conduct part of the proceedings in closed court and deliver a confidential supplementary judgment; the Court of Criminal Appeal will review that confidential material when assessing the assistance discount on appeal.
  • Under the parity principle, a sentence significantly exceeding that of a comparable co-offender requires justification, and an unjustifiable disparity may independently support appellate intervention.
  • A finding of genuine remorse, supported by a timely guilty plea (even where entry of that plea was delayed by legitimate case-preparation considerations), combined with strong prospects of rehabilitation, constitutes a significant mitigating combination rather than a collection of discrete, minor factors.
  • In assessing whether a non-parole period is proportionate, the Court of Criminal Appeal drew on a small sample of comparable drug supply sentences as a yardstick, while acknowledging that a limited sample cannot by itself establish a sentencing range.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Criminal Case Conferencing Trial Act 2008 (NSW) (repealed), ss 4, 16, 17 and 62D
- Criminal Appeal Act 1912 (NSW), s 6
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Lowe v The Queen (1984) 154 CLR 606
- Lowndes v The Queen (1999) 195 CLR 665
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
- R v NP [2003] NSWCCA 195
- SZ v R (2007) 168 A Crim R 249
- Burns v R [2010] NSWCCA 279
- JMS v R [2010] NSWCCA 229
- Waterways Authority v Fitzgibbon & Ors [2005] HCA 57; 79 ALJR 1816