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Court of Criminal Appeal 8 August 2014

Vo v R

[2014] NSWCCA 146

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Vo v R [2014] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 8 August 2014
Judges: Emmett JA, Price J, Fullerton J

Background

The appellant was arrested in October 2010 following a police investigation into heroin supply in Western Sydney. On his arrest, police found 754 grams of heroin at his home, along with over $217,000 in cash. A subsequent investigation established that he had supplied approximately 1.9 kilograms of heroin across 71 separate transactions between June and October 2010.

The appellant was charged with two counts of supply of heroin under the Drug Misuse and Trafficking Act 1985 (NSW): the first involving a large commercial quantity (the 1.9 kg supply), and the second a deemed supply of a commercial quantity (the heroin found at his home). He also faced a charge of knowingly dealing with proceeds of crime. He pleaded guilty to all three counts in February 2013, roughly two and a half years after his arrest.

The sentencing judge in the District Court applied an approximately 14 per cent discount on the first count to reflect the utilitarian value of the plea. The appellant sought leave to appeal on the basis that this discount was insufficient.

  • Whether the sentencing judge applied an adequate discount for the guilty pleas, having regard to the principles established in the guideline judgment of R v Thomson; R v Houlton
  • Whether the sentencing judge erred by taking into account the strength of the Crown case when assessing the discount for the guilty pleas
  • Whether the appellant was entitled to a higher discount because he could not reasonably have been expected to plead earlier without knowing the particularised quantity of drug alleged
  • Whether the absence of a specific quantity particularised on the indictment justified treating the plea as one entered at the earliest reasonable opportunity

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, with Fullerton J delivering the principal judgment (with Emmett JA and Price J agreeing). The Court found no error in the sentencing judge's approach to the guilty plea discount.

On the question of quantum, the Court reaffirmed the principles from R v Borkowski and Morton v R: the maximum discount for utilitarian value is reserved for pleas entered at the earliest opportunity, and a plea entered on arraignment in the District Court ordinarily cannot justify more than approximately 15 per cent. A discount higher than that, for a plea entered at that stage, would be exceptional and require particular factual circumstances.

The Court rejected the argument that the appellant's delay in pleading was excused by the absence of a particularised drug quantity on the indictment. The charge on the indictment was for supply of a large commercial quantity, which was the same offence charged on arrest. The precise weight was not an element of the offence but a sentencing factor, to be agreed or resolved in sentence proceedings. Nothing prevented the appellant from pleading earlier. The Court also noted that when the pleas were eventually entered in February 2013, the indictment still did not particularise the quantity, making the asserted justification for delay difficult to sustain.

The Court further held that the sentencing judge's consideration of the strength of the Crown case, in the context of assessing the utilitarian value of the plea, did not constitute error. None of the four grounds of appeal were made out.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A guilty plea entered on arraignment in the District Court will not ordinarily justify a discount greater than approximately 15 per cent for utilitarian value, and exceeding that figure requires exceptional circumstances.
  • The precise weight of a prohibited drug is not an element of a supply offence under the Drug Misuse and Trafficking Act 1985 (NSW); it is a sentencing factor. An accused cannot generally rely on the absence of a particularised quantity to explain delay in entering a plea.
  • Where an accused is charged with the same offence from the point of arrest through to sentencing, and there were no ongoing negotiations about the form or number of charges, the plea cannot be characterised as having been entered at the earliest reasonable opportunity simply because it was entered before trial.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed the framework in R v Borkowski and Morton v R for assessing the utilitarian value of a guilty plea, including the principle that the maximum discount is earned by pleading at the first available opportunity.
  • No error arises merely because a sentencing judge takes into account the strength of the Crown case as part of the assessment of the value of a guilty plea.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193B(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309 (guideline judgment on guilty plea discounts)
- R v Borkowski [2009] NSWCCA 102 (principles for utilitarian value of plea)
- Morton v R [2014] NSWCCA 8 (reaffirmation of Borkowski principles)
- R v Stambolis [2006] NSWCCA 56
- R v AB [2011] NSWCCA 229 (correct approach to disputed drug weight at sentence)
- R v Sharma [2002] NSWCCA 142
- Cameron v The Queen [2002] HCA 6