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21
Court of Criminal Appeal 24 September 2014

RCW v R (No 2)

[2014] NSWCCA 190

Also reported as (2014) 244 A Crim R 541
Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE NO INSTINCTIVE SYNTHESIS

Citation: RCW v R (No 2) [2014] NSWCCA 190
Court: NSW Court of Criminal Appeal
Date: 24 September 2014 (amended 8 and 10 October 2014)
Judge(s): Bathurst CJ, Adams J, R A Hulme J

Background

The appellant pleaded guilty in the District Court at Gosford to aiding and abetting the attempted importation of commercial quantities of border controlled drugs. The offence related to a large consignment of cocaine, MDMA, methamphetamine, and para-methoxymethamphetamine concealed in a commercial oven, with a total estimated street value of between $5.1 million and $8.7 million. The appellant had played a concrete logistical role, including leasing a storage unit under a false name, arranging transport, and paying freight charges.

Critically, before the consignment was delivered, the appellant went to police and disclosed his involvement. By that point, Canadian and Australian authorities were already aware of the importation and had substituted the drugs with an innocuous substance as part of a controlled operation. The sentencing judge in the District Court imposed a term of 5 years 6 months imprisonment with a non-parole period of 3 years, after applying a 50 per cent discount from an 11-year starting point for the early guilty plea and assistance to authorities.

The appellant sought leave to appeal against sentence in the Court of Criminal Appeal, arguing the sentence was infected by legal error and was manifestly excessive.

  • Whether the sentencing judge gave undue weight to sentences imposed in other importation cases, including treating a single case as determinative of the starting point
  • Whether the sentencing judge failed to apply the principle of instinctive synthesis (that is, weighing all relevant factors together rather than proceeding mechanically from a fixed starting point)
  • Whether the sentencing judge properly accounted for the purposes of sentencing, including the relevance of general and personal deterrence given the appellant's conduct in reporting the offence
  • How the appellant's pre-arrest withdrawal from the offending and efforts to frustrate the importation should be characterised: as part of the objective criminality of the offence itself, or merely as grounds for a utilitarian discount for assistance

Decision

The Court unanimously granted leave to appeal and allowed the appeal, though the members reached the same result by somewhat different reasoning. Hulme J (with whom Bathurst CJ agreed) found that the sentencing judge had erred by giving a single comparison case determinative significance in fixing the starting point, by failing to apply instinctive synthesis, and by not properly accounting for sentencing purposes including deterrence. The learned judge's approach treated the starting point as fixed by comparable cases rather than derived from all the relevant facts considered together.

Hulme J found that the appellant's objective criminality was genuinely low. General and personal deterrence carried little weight given that the appellant had voluntarily reported the offence before its completion. The other subjective features, including good character, remorse, prospects of rehabilitation, and findings that custody would be more onerous than average, also told in the appellant's favour. His Honour assessed a starting point of 4 years and, applying the agreed 50 per cent discount for plea and assistance, arrived at a head sentence of 2 years with a non-parole period of 1 year.

Adams J agreed that the appeal should be allowed but took a somewhat different analytical path. In his Honour's view, the appellant's pre-arrest conduct in attempting to frustrate the importation formed part of the objective seriousness of the offence itself, rather than being treated as a separate matter going only to the assistance discount. Treating that conduct as merely a basis for a larger utilitarian discount, rather than as something that intrinsically reduced the objective gravity of what was done, artificially inflated the starting point and produced an unjust result. Adams J considered the sentence manifestly excessive and would have imposed a term equivalent to time already served.

Following judgment, the Court identified that, because the head sentence did not exceed 3 years, the federal legislation (s 19AC of the Crimes Act 1914 (Cth)) required a recognizance release order rather than a fixed non-parole period. The Court accordingly amended its orders by addendum on 8 October 2014.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • The sentence imposed in the District Court is quashed.
  • The appellant is sentenced to imprisonment for 2 years dating from 14 July 2013.
  • The Court directs that on 14 July 2014 the appellant be released upon entering into a recognizance to be of good behaviour for 1 year until 13 July 2015, upon giving security without surety in the sum of $1.

Key Takeaways

  • A sentencing court commits error when it elevates a single comparable case to a determinative role in fixing the starting point, rather than deriving that point from all relevant circumstances considered together through instinctive synthesis.
  • Where an offender voluntarily reports an offence to police and takes steps to frustrate its completion before arrest, general and personal deterrence may carry significantly reduced weight in the sentencing exercise.
  • Adams J's analysis raises the question, not resolved unanimously, of whether pre-arrest withdrawal and steps taken to defeat the object of an offence form part of the objective seriousness of the offence itself rather than merely founding a larger assistance discount. This issue may call for careful attention in future cases involving similar facts.
  • Under s 19AC of the Crimes Act 1914 (Cth), where a federal sentence does not exceed 3 years, a non-parole period must not be fixed; instead, the court must make a recognizance release order. The Court corrected its own oversight on this point by addendum after judgment was delivered.
  • Instinctive synthesis requires that all factors bearing on sentence, including objective and subjective features, the purposes of sentencing, and any applicable discounts, be weighed together rather than applied sequentially from a mechanically derived starting point.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), including s 19AC and s 21(1)(b)
- Criminal Code (Cth), ss 11.1, 11.2 and 307.1
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules, r 50C(3)

Cases
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 305 ALR 323
- Chan, Lo and Nguyen v R [2010] NSWCCA 153
- DBW v R [2007] NSWCCA 236
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- N v R; AP v R [2009] NSWCCA 108
- R v Burns [2007] NSWCCA 228
- R v Holland [2011] NSWCCA 65; 205 A Crim R 429
- R v McNamara [2005] NSWCCA 195
- R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
- R v Pham [2005] NSWCCA 94
- R v Tiknius [2011] NSWCCA 215
- RCW v R [2014] NSWCCA 169 (bail application)
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584