AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
8
Court of Criminal Appeal 9 June 2017

Van Zwam v R

[2017] NSWCCA 127

Drugs
CRIMINAL LAW RECKLESSNESS HELD APPEAL DISMISSED SENTENCING EXAMINATION

Citation: Van Zwam v R [2017] NSWCCA 127
Court: Court of Criminal Appeal, NSW
Date: 9 June 2017
Judges: Macfarlan JA, Adamson J, Campbell J

Background

The appellant was a Gambian national who arrived at Sydney International Airport in March 2013 carrying a suitcase containing a commercial quantity of methamphetamine. He had been recruited by associates to transport what he was told was gold powder, receiving payment and travel expenses in exchange. He later admitted awareness of a substantial risk that the suitcase contained a border-controlled drug.

On the first day of his trial in June 2014, after extensive conferral with his Legal Aid solicitor, the appellant entered a plea of guilty to importing a commercial quantity of a border-controlled drug contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth). He was subsequently sentenced to nine years' imprisonment with a non-parole period of five years and six months.

At the sentencing hearing, defence counsel tendered a folder of material including a sworn affidavit in which the appellant expressed remorse and shame. Counsel confirmed the appellant would not be called to give oral evidence. The sentencing judge declined to find any genuine remorse, stating that without evidence on oath subject to cross-examination, he could not accept the affidavit as establishing genuine contrition.

  • Whether leave should be granted to withdraw the guilty plea on the basis that the fault element of recklessness under s 307.1 of the Criminal Code had not been adequately explained, resulting in a miscarriage of justice
  • Whether the sentencing judge erred by refusing to find remorse solely on the basis that the appellant did not give oral evidence subject to cross-examination, when a sworn affidavit expressing remorse had been tendered and the Crown had not sought to cross-examine the appellant on it
  • What the appropriate sentence was upon resentencing

Decision

Conviction appeal dismissed. The Court found no basis to permit withdrawal of the guilty plea. The detailed file note made by the solicitor at the pre-plea conference demonstrated the appellant had been thoroughly advised about the fault element of recklessness under the Code, and had understood and accepted that he had been aware of a substantial risk the suitcase contained a border-controlled drug. No miscarriage of justice was established.

Sentence appeal allowed by majority. The sentencing judge's refusal to find any genuine remorse was held to be an error. Macfarlan JA and Campbell J (Adamson J dissenting on this point) held that the sworn affidavit was evidence of remorse which the sentencing judge was not entitled to disregard entirely. The Crown had a right to cross-examine the appellant on the affidavit but did not do so, and the appellant should not have been prejudiced by the Crown's choice not to exercise that right. The sentencing judge could have treated the uncontested affidavit as carrying less weight than oral testimony, but was not entitled to discard it as providing no genuine evidence of contrition at all.

Adamson J took a different view on this ground, inferring that the defence's confirmation that the appellant would not be called signalled he was unwilling to subject himself to cross-examination on the affidavit, which distinguished it from the typical situation involving a tested sworn statement.

Resentencing. Campbell J, with whom Macfarlan JA agreed on this issue, resentenced the appellant. A starting point of eleven years was selected, reduced by twenty-five per cent for the appellant's willingness to facilitate the course of justice and his assistance to authorities, producing a term of eight years and three months. Campbell J also corrected an error in the original sentence: the sentencing judge had purported to make a parole order, which was beyond power under the Crimes Act 1914 (Cth), as the decision to release on parole rests with the Attorney-General.

Orders Made

  • Extension of time to appeal granted
  • Leave to appeal against conviction granted; conviction appeal dismissed
  • Leave to appeal against sentence granted; sentence appeal allowed
  • Sentence imposed in the District Court quashed
  • Appellant resentenced to imprisonment for eight years and six months commencing 22 March 2013 and expiring 21 September 2021
  • Non-parole period of four years and six months fixed, commencing 22 March 2013 and expiring 21 September 2017

Key Takeaways

  • A guilty plea will not be set aside merely because a defendant later questions whether the fault element was fully explained, where contemporaneous records demonstrate thorough and accurate legal advice was given and no miscarriage of justice is established.
  • Under s 307.1 of the Criminal Code Act 1995 (Cth), the fault element of recklessness is satisfied where a defendant was aware of a substantial risk that the goods were a border-controlled drug and it was unjustifiable to take that risk.
  • A sworn affidavit tendered at sentence constitutes evidence of remorse that a sentencing court cannot simply disregard, particularly where the Crown elects not to cross-examine the deponent; the court may reduce the weight given to untested evidence, but must not treat it as no evidence at all.
  • The distinction between a sworn affidavit read at sentence and an out-of-court statement recorded in a third-party report is relevant to the weight to be accorded each, but neither the majority nor Adamson J suggested the two are entirely equivalent to oral testimony subject to cross-examination.
  • A sentencing court exercising federal jurisdiction has no power to make a parole order in relation to a federal offender; under the Crimes Act 1914 (Cth), the decision whether to release a federal offender on parole rests with the Attorney-General.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 3.1, 3.2, 5.1(1), 5.4, 307.1(1)
- Crimes Act 1914 (Cth), ss 16A(2)(h), 19AB(1), 19AL, 21E
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Evidence Act 1995 (Cth), s 4(2)

Cases
- Cameron v The Queen (2002) 209 CLR 339
- Dinsdale v The Queen (2000) 202 CLR 321
- Hili v the Queen; Jones v the Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Kentwell v the Queen (2015) 252 CLR 601
- Markarian v The Queen (2005) 228 CLR 357
- Meissner v The Queen (1995) 184 CLR 132
- Muldrock v The Queen (2011) 244 CLR 120
- O'Neil-Shaw v R [2010] NSWCCA 42
- R v Elfar [2003] NSWCCA 358
- R v MAK; R v MSK [2006] NSWCCA 381
- R v McGourty [2002] NSWCCA 335
- R v Nguyen; R v Pham (2010) 205 A Crim R 106
- R v Pang (1999) 105 A Crim R 474
- R v Qutami (2001) 127 A Crim R 369
- R v Thalari (2009) 75 NSWLR 307
- Ryan v The Queen (2001) 206 CLR 267
- Smith v The Queen; The Queen v Afford [2017] HCA 19
- The Queen v Olbrich (1999) 199 CLR 270
- Wong v the Queen (2001) 207 CLR 584