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Court of Criminal Appeal 9 October 2017

Samuel v R

[2017] NSWCCA 239

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL ONGOING SUPPLY OF A PROHIBITED DRUG SUPPLY PROHIBITED DRUG OFFENCES ON A FORM 1

Citation: Samuel v R [2017] NSWCCA 239
Court: NSW Court of Criminal Appeal
Date: 9 October 2017
Judges: Basten JA; McCallum J; Wilson J

Background

The applicant pleaded guilty in the Local Court to three offences: ongoing supply of amphetamine, supply of methylamphetamine, and unauthorised possession of firearms in circumstances of aggravation. He also asked the sentencing court to take into account nine further offences on three Form 1 documents. The offending dated to 2007 and arose from a police operation targeting drug supply in the Bowral area.

Following his arrest in July 2007, the applicant absconded and remained at large for almost eight years before entering his pleas of guilty in March 2015. He was sentenced in the District Court at Goulburn on 30 August 2016 to an overall term of 4 years and 3 months imprisonment with a non-parole period of 2 years and 9 months.

The applicant sought leave to appeal against sentence on three grounds, principally challenging the sentencing judge's assessment of the guilty plea discount and the treatment of certain firearms-related matters.

  • Whether the sentencing judge erred in allowing only a 17.5% utilitarian discount for the guilty pleas under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), given that the applicant had absconded for almost eight years before pleading guilty
  • Whether the applicant was entitled to a discount of 25% absent a demonstrated reason for reduction, on the basis that 25% represented the presumptive maximum under the guideline in R v Thomson; R v Houlton
  • Whether a lower discount on account of absconding required proof that police or court resources had been wasted in locating the applicant (relying on R v Trad)
  • Whether the sentencing judge had mischaracterised the nature of certain drug offences on the Form 1 document relating to the firearms charge

Decision

On the plea discount ground, the Court of Criminal Appeal rejected the applicant's argument that he was presumptively entitled to a 25% discount, with any reduction requiring affirmative justification. Basten JA explained that the guideline in R v Thomson was guidance for the exercise of a statutory discretion, not a conferral of contingent entitlement. A plea entered approximately eight years after arrest, even if entered at the Local Court stage and thus avoiding a trial, was substantially diminished in its utilitarian value by the applicant's prolonged absconding.

The Court also rejected the contention that a lower discount could only be justified by demonstrable waste of police or court resources. The applicant's reliance on R v Trad was misplaced: in Trad, the offender absconded after pleading guilty, whereas here the applicant absconded before entering any plea. Establishing a waste of resources is not a precondition to reducing the discount; it is merely one circumstance that may justify a reduction.

On the third ground, Wilson J found that, while the sentencing judge had made an error in her ex tempore remarks by referring to a supply offence in relation to the small drug quantities found during the firearms search, that mistake did not infect the actual sentencing process. The sentence imposed was inconsistent with any reliance on the mistaken characterisation, and the judge's subsequent reasoning made clear the error did not carry through to the outcome.

All three grounds of appeal failed. The Court granted leave and extended time, but dismissed the appeal.

Orders Made

  • Time for filing the application for leave to appeal extended to 5 June 2017
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The 10-25% range for guilty plea discounts established in R v Thomson; R v Houlton represents guidance for a sentencing discretion, not a presumptive entitlement to any particular figure within that range.
  • Absconding before entering a guilty plea is a relevant factor that can substantially reduce the utilitarian value of that plea, independent of whether wasted police or court resources can be specifically demonstrated.
  • The case of R v Trad is confined to its own facts (absconding after a guilty plea had already been entered) and does not establish a general requirement to prove resource diversion before reducing a plea discount.
  • In dismissing the appeal, the Court confirmed that a sentencing judge's verbal error in ex tempore remarks will not constitute appealable error where the actual sentence imposed demonstrates the mistake did not affect the outcome.
  • Where an offender's delay in pleading guilty is substantially attributable to their own conduct (such as flight from justice), a mid-range discount may properly reflect the limited practical benefit the plea provided to the criminal justice system.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 33, 44
- Criminal Appeal Act 1912 (NSW), s 5
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A, Schedule 1
- Firearms Act 1996 (NSW), s 51D

Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Trad [2003] NSWCCA 213
- R v Borkowski (2009) 195 A Crim R 1
- R v Castles (2005) 152 A Crim R 277
- R v Shore (1992) 66 A Crim R 37
- Visser v R [2011] NSWCCA 146