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Court of Criminal Appeal 28 November 2014

ES v R

[2014] NSWCCA 268

Drugs
CRIMINAL APPEAL SENTENCE LATE PLEA EARLY OFFERS TO PLEA CONDITIONAL STRONG CROWN CASE

Citation: ES v R [2014] NSWCCA 268
Court: NSW Court of Criminal Appeal
Date: 28 November 2014
Judges: Bathurst CJ; Fullerton J; Davies J

Background

The applicant was one of six offenders arrested in August 2008 in connection with the importation of over 603 kg of pseudoephedrine (approximately 125 kg pure weight) from Thailand. The drugs were detected by Customs, replaced with an inert substance, and used in a controlled delivery to a warehouse. The applicant was found by the sentencing judge to have been the principal in the operation, directing co-offenders including the importer and those involved in the warehouse retrieval.

In February 2012, the applicant pleaded guilty in the District Court to aiding and abetting the importation of a commercial quantity of pseudoephedrine as a border controlled precursor under the Criminal Code Act 1995 (Cth), and to attempting to possess pseudoephedrine as a precursor under the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced to 9 years and 11 months imprisonment with a non-parole period of 6 years on the Commonwealth count, after a combined 40 per cent discount for his plea and assistance to authorities.

The applicant sought leave to appeal on three grounds: that the discount for his plea was too low, that insufficient allowance was made for his assistance, and that the ratio between the non-parole period and head sentence was inappropriate.

  • Whether the combined 40 per cent discount for the guilty plea and assistance to authorities was adequate, given the applicant's early conditional offers to plead and the subsequent Crown decision not to retry co-offenders.
  • Whether the 8 per cent component attributable to the plea of guilty was insufficient given the timing and circumstances of the plea.
  • Whether the ratio between the non-parole period (6 years) and the head sentence (9 years and 11 months), approximately 60.5 per cent, was appropriate, having regard to the applicant's custodial conditions, family hardship, and deterioration in his financial position.

Decision

On the plea and assistance discount: The Court accepted that the plea was late. The applicant's earlier offers to plead were conditional, including a June 2011 offer that was tied to the Crown abandoning retrials of co-offenders. The Crown's rejection of those conditional offers was legitimate. The Court also noted that the Crown case was strong, which qualified the utilitarian value of the eventual plea. Taken together, the Court found no error in the sentencing judge's assessment that an 8 per cent discount for the plea was appropriate.

On the assistance component, the applicant argued that the Crown's ultimate decision not to retry co-offenders (partly attributable to his assistance) warranted greater recognition. The Court was not persuaded that this outcome, occurring after the sentence was imposed, required a higher discount to have been given. The combined 40 per cent discount, inclusive of both plea and assistance, was held to fall within the available range.

On the non-parole period: The Court emphasised that, for Commonwealth offences, the non-parole period must be fixed in accordance with Part 1B of the Crimes Act 1914 (Cth), referable to the minimum time an offender should serve without parole to satisfy purposes including specific and general deterrence. This is not measured against any judicially determined norm. The Court expressed doubt that the applicant's custodial conditions and family hardship were matters that could significantly influence the non-parole period in any case. To the extent they were relevant, the Court found the sentencing judge's allowance for family circumstances was, if anything, generous, as there was no evidence the hardship was exceptional.

A non-parole period of 6 years for offending of this scale, producing a 60.5 per cent ratio, did not suggest any miscarriage of the sentencing discretion. The appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Conditional offers to plead guilty, where the conditions include requiring the Crown to abandon prosecutions of co-offenders, carry limited weight when the Crown legitimately rejects them and a plea is ultimately entered much later.
  • A combined discount for plea and assistance to authorities of 40 per cent was upheld where the plea was late, the Crown case was strong, and the assistance, while genuine, did not unambiguously compel a higher allowance.
  • Under Part 1B of the Crimes Act 1914 (Cth), a non-parole period for a Commonwealth offence is fixed by reference to the minimum custody necessary to meet sentencing purposes, not by reference to any judicially established ratio norm.
  • Family hardship resulting from imprisonment will not significantly reduce a non-parole period unless the evidence demonstrates the hardship is exceptional, consistent with the approach in R v El Hani [2004] NSWCCA 162.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a 60.5 per cent ratio between the non-parole period and head sentence for a large-scale commercial drug importation does not of itself indicate a sentencing error.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.11
- Crimes Act 1914 (Cth), Part 1B
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24A and 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- R v El Hani [2004] NSWCCA 162
- DS v R [2014] NSWCCA 267
- Lachlan Wilson v R [2014] NSWCCA 266
- Phan, Thanh Dinh v R [2013] NSWCCA 49
- Bland v R [2014] NSWCCA 82
- LB v R [2013] NSWCCA 70
- M v The Queen [2014] NSWCCA 39
- R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
- Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460