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Court of Criminal Appeal 15 July 2016

PC v R

[2016] NSWCCA 137

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUG IMPORTATION SYNDICATE DISCOUNT FOR ASSISTANCE LATE OFFER OF ASSISTANCE ASSESSED AS LOW TO MEDIUM VALUE

Citation: PC v R [2016] NSWCCA 137
Court: Court of Criminal Appeal, New South Wales
Date: 15 July 2016
Judge(s): Simpson JA, Johnson J, Davies J (Davies J delivering the principal judgment)

Background

The applicant pleaded guilty in the District Court to two serious drug offences under the Criminal Code Act 1995 (Cth): importing a commercial quantity of methamphetamine on 15 October 2011, and attempting to possess a commercial quantity of cocaine and methamphetamine on 25 October 2011. Both offences carry a maximum penalty of life imprisonment. Attached to the first count were five further matters on a schedule under s 16BA, covering three earlier importations (April, August, and September 2011), dealing with proceeds of crime, and possessing a commercial quantity of methamphetamine.

The offending involved the applicant participating in a drug importation syndicate over a period of roughly seven months. Consignments were sent from Canada concealed within commercial kitchen and storage equipment, and the applicant played an organising role: arranging pickups, hiring vehicles and warehouse space, directing co-offenders, and distributing the drugs. He was arrested in November 2011 at a Wetherill Park warehouse.

In the District Court, Judge Norrish QC sentenced the applicant to a total of 26 years and 6 months imprisonment, with a non-parole period of 18 years. The applicant sought leave to appeal against that sentence on nine grounds.

  • Whether the sentencing judge correctly characterised the applicant's role, given that he acted under the direction of a more senior offender
  • Whether the discounts afforded for the applicant's assistance to authorities were adequate, particularly given the late timing and assessed low-to-medium value of that assistance
  • Whether adequate weight was given to the applicant's youth, immaturity, and dysfunctional upbringing
  • Whether the sentencing judge properly applied the totality principle when accumulating the two sentences
  • Whether the resulting total sentence was manifestly excessive
  • Whether parity considerations arose from the sentence imposed on co-offender DB

Decision

Davies J (with Simpson JA and Johnson J agreeing) found that most of the individual grounds of appeal were not made out. The sentencing judge had properly characterised the applicant's role as a senior participant who organised and directed the offending, notwithstanding that a more senior person existed above him in the hierarchy. The discounts for the applicant's assistance were found to be appropriate: the assistance was offered late and assessed as being of low to medium value, with no future assistance component, warranting a 5% discount on each count. The sentencing judge had also considered the applicant's youth and background adequately.

However, Davies J found error in the extent of accumulation between the two sentences. The sentencing judge had accumulated the sentences by six years and six months (commencing Count 1 from 4 November 2018, more than seven years into the Count 2 sentence). Davies J held that because all five importations and the related offences formed a continuous course of offending over a short period, the degree of accumulation produced a sentence that, viewed in its totality, was crushing and disproportionate to the overall criminality.

On re-sentencing, Davies J applied starting points of 20 years for Count 2 and 25 years for Count 1 (with the schedule offences). After discounts of 25% and 30% respectively for guilty pleas and assistance, Davies J arrived at sentences of 15 years and 17 years 6 months. The accumulation was reduced to three years, producing a total sentence of 20 years and 6 months. On the parity point, the court found no justifiable sense of grievance when the different circumstances and roles of the applicant and co-offender DB were properly considered.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • District Court sentence of 17 October 2014 quashed
  • On Count 2: imprisonment for 15 years commencing 4 November 2011, expiring 3 November 2026
  • On Count 1 (including s 16BA schedule matters): imprisonment for 17 years and 6 months commencing 4 November 2014, expiring 3 May 2032
  • Single non-parole period of 14 years and 6 months commencing 4 November 2011, expiring 3 May 2026

Key Takeaways

  • The totality principle operates as a meaningful constraint on accumulation: where multiple offences form a single continuous course of conduct over a short period, an accumulation that produces a crushing total sentence can constitute a sentencing error, even where each individual sentence is not itself excessive.
  • A discount for assistance to authorities is calibrated to the timing, nature, and ultimate value of that assistance. Late assistance of low to medium value, with no future assistance component, attracted only a 5% discount here, compared with 8% awarded to a co-offender whose assistance was rated as high value.
  • Characterisation of an offender's role in a drug syndicate turns on the actual tasks performed and the degree of control exercised, not solely on whether a more senior participant exists. The court affirmed the sentencing judge's characterisation of the applicant as a senior organiser despite the presence of a higher-level principal.
  • Under the parity principle, a co-offender's lesser sentence does not automatically give rise to a justifiable sense of grievance. The court scrutinised the differences in roles, criminal history, and mitigating circumstances before concluding that no parity error arose here.
  • Bugmy v The Queen confirms that the mitigating effect of a deprived or dysfunctional background does not diminish with repeated offending, but adequately addressing it in sentencing does not require a separate explicit reduction where the overall sentence already reflects it.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.1(1), 307.5(1), 16BA

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Engert v R (1995) 84 A Crim R 67
- GJ v R [2014] NSWCCA 292
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Olbrich v R [1999] 199 CLR 270
- R v Lachlan [2015] NSWCCA 178
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38