Citation: Director of Public Prosecutions (Cth) v Blackman; Director of Public Prosecutions (Cth) v Jomaa [2014] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 27 May 2014
Judge(s): Beazley P, RA Hulme J, Bellew J (unanimous)
Background
Two respondents pleaded guilty in the District Court to attempting to possess a commercial quantity of unlawfully imported cocaine, an offence under the Criminal Code 1995 (Cth) carrying a maximum penalty of life imprisonment. The offending arose from a controlled operation in September 2010, in which approximately 48 kilograms of cocaine (with a street value estimated at up to $25.4 million) was detected in a shipping container at Port Botany and later substituted by the Australian Federal Police before the respondents attempted to retrieve it.
The first respondent was sentenced to 9 years and 9 months imprisonment with a non-parole period of 5 years and 6 months. The second respondent received 11 years and 3 months with a non-parole period of 7 years. Both sentences reflected discounts for guilty pleas and, in the first respondent's case, a 5% discount for past assistance to authorities.
The Commonwealth Director of Public Prosecutions appealed both sentences as manifestly inadequate. In the first respondent's case, the Director raised an additional ground that the 5% discount for assistance was itself manifestly excessive.
Legal Issues
- Whether the sentences imposed on each respondent were manifestly inadequate, having regard to the maximum penalty, the weight of the drug, the offenders' roles, and sentences imposed in comparable cases
- Whether the 5% discount granted to the first respondent for past assistance to authorities was manifestly excessive
Decision
The Court of Criminal Appeal dismissed both appeals. Bellew J (with Beazley P and RA Hulme J agreeing) found that the Crown had not identified any error of principle or any error in the sentencing judge's factual findings. The Crown's case rested entirely on the proposition that the sentences were manifestly inadequate by reference to four factors: the maximum penalty, the drug weight, the offenders' roles, and sentences in other cases.
On the comparison with other cases, the Court examined a Crown schedule of 33 comparable matters. It noted that the schedule itself demonstrated significant variation in outcomes, with almost half the offenders receiving sentences less than those imposed on one or both respondents, and some offenders in greater roles receiving lesser sentences. The Court held that this variation reflected the well-established principle that the facts of individual cases differ, and that the sentences, while falling at the very bottom of the appropriate range and fairly described as lenient, did not depart from any established sentencing pattern in a manner warranting appellate intervention.
On the additional ground concerning the first respondent's discount for assistance, the Court found that the amount of the discount was generally consistent with the sentencing judge's own assessment of the value and nature of that assistance. A manifestly excessive discount was not established.
Orders Made
- The Crown appeal against each respondent's sentence is dismissed.
Key Takeaways
- In dismissing both appeals, the Court of Criminal Appeal confirmed that manifest inadequacy cannot be established simply by pointing to the maximum penalty, the quantity of drug, the offender's role, and a schedule of other cases, without also identifying an error of principle or an error in the sentencing judge's findings.
- A sentence that falls at the very bottom of the appropriate range, and may fairly be described as lenient, does not automatically cross the threshold of manifest inadequacy warranting appellate intervention.
- Variation across a schedule of comparable cases does not, of itself, demonstrate departure from an established sentencing pattern. Differences in individual facts necessarily produce differences in outcomes.
- Where a sentencing judge grants a discount for assistance and the quantum is broadly consistent with the judge's own assessment of the value of that assistance, an appellate court will not readily characterise the discount as manifestly excessive.
- Crown appeals against sentence face a high bar: the absence of any asserted error of principle, combined with an inconsistent body of comparable cases, will generally be fatal to a claim of manifest inadequacy.
Legislation and Cases Referenced
Legislation:
- Criminal Code 1995 (Cth), ss 307.5(1) and 11.1
- Crimes Act 1914 (Cth)
Cases:
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- El-Ghourani v R [2009] NSWCCA 140; (2009) 195 A Crim R 208
- Everett v R (1994) 181 CLR 295
- Garcia v R [2013] NSWCCA 241
- Griffiths v R (1977) 137 CLR 293
- Markarian v R (2005) 228 CLR 357
- R v Considine [2013] NSWCCA 97
- R v Hong; R v Lee [2012] NSWDC 267
- R v Karan [2013] NSWCCA 53
- R v Nguyen and Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R v Tran and ors [2013] NSWCCA 136