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Court of Criminal Appeal 31 August 2018

R v Phelps; R v Zalapa

[2018] NSWCCA 191

Drugs
CRIMINAL LAW R V PHELPS WHETHER SENTENCE MANIFESTLY INADEQUATE LIMITED ROLE OF OFFENDER STRONG SUBJECTIVE CASE PRINCIPLES APPLICABLE TO CROWN APPEALS

Citation: R v Phelps; R v Zalapa [2018] NSWCCA 191
Court: NSW Court of Criminal Appeal
Date: 31 August 2018
Judges: Bathurst CJ at [1]; Hoeben CJ at CL at [2]; Fagan J at [111]

Background

This decision concerned two Commonwealth Crown appeals brought by the Director of Public Prosecutions against sentences imposed in the District Court arising from the interception of a DHL air freight consignment containing approximately 12 kilograms of pure cocaine (16 kilograms gross), with a wholesale value estimated at $2.6 million.

The first respondent, Phelps, was sentenced for attempting to possess a commercial quantity of an unlawfully imported border controlled drug. He had physically attended the delivery address and signed for the consignment using a false identity. The District Court imposed 4 years and 6 months imprisonment with a non-parole period of 2 years and 3 months.

The second respondent, Zalapa, played a more organisational role. He communicated with co-offenders via encrypted Blackberry devices, coordinated collection arrangements, and delivered $40,000 in cash intended as part-payment for a future importation. He was sentenced to an aggregate term of 9 years imprisonment with a non-parole period of 5 years and 3 months.

  • Whether the sentence imposed on Phelps was manifestly inadequate
  • Whether the sentencing judge erred by applying an excessive discount for Phelps's assistance to authorities
  • Whether the indicative and aggregate sentences imposed on Zalapa were manifestly inadequate
  • Whether residual discretion should be exercised in favour of the Crown even where error is established

Decision

On the Phelps appeal, the Court of Criminal Appeal accepted that the 10% discount applied for assistance to authorities was excessive given the nature and extent of the assistance provided. That represented an error by the sentencing judge. However, the Court declined to exercise its residual discretion in favour of the Crown, taking into account Phelps's limited role in the overall enterprise, the existence of an Agreed Statement of Facts that constrained the factual basis for sentencing, and a strong subjective case including personal circumstances that were before the sentencing judge. The error, while identified, did not warrant intervention.

On the manifest inadequacy ground for Phelps, the Court found that the sentence, though at the lower end of the available range, was not demonstrably wrong when all relevant factors were considered together. The limited nature of Phelps's role and the strong subjective material justified a sentence that might otherwise appear lenient.

On the Zalapa appeal, the Court noted that the Crown had itself adopted the sentence imposed on a co-offender, Schwartz, as an appropriate guidepost during the sentence proceedings without criticism. That conduct significantly limited the utility of the comparative case schedule the Crown sought to rely upon. The Court found that the Crown is bound by the manner in which it conducts sentence proceedings, and having conceded the appropriateness of the Schwartz sentence as a benchmark, it was difficult to then assert that a comparable or lesser sentence for Zalapa was manifestly inadequate. Zalapa's strong subjective case, including no prior criminal record, genuine remorse, excellent rehabilitation prospects, and diagnosed mental health conditions that would make custody more burdensome, further supported the result.

The Court was not persuaded that either the indicative sentences or the aggregate sentence for Zalapa were demonstrably wrong, and dismissed both Crown appeals.

Orders Made

  • The Crown appeal in the matter of Phelps is dismissed.
  • The Crown appeal in the matter of Zalapa is dismissed.

Key Takeaways

  • Residual discretion against intervention in Crown appeals may be exercised even where a sentencing error is identified, particularly where an offender's role was limited and the subjective case was compelling.
  • The Crown is bound by the way it conducts sentence proceedings: having adopted a co-offender's sentence as an appropriate reference point without criticism, the Crown faced significant difficulty arguing that a comparable sentence for another offender was manifestly inadequate.
  • An Agreed Statement of Facts carries important weight in sentencing proceedings; its terms constrain the factual findings available to the sentencing court and, on appeal, affect the scope of Crown challenges.
  • Comparative sentencing cases are of limited assistance where the facts differ materially between the cases being compared, particularly where the Crown's own conduct at first instance has shaped the sentencing landscape.
  • Mental health conditions that make imprisonment more onerous than it would otherwise be remain a relevant mitigating factor in sentencing, alongside matters such as remorse, rehabilitation prospects, and absence of prior criminal history.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 11.1(1), 307.1(1), 307.5(1), 400.6(1), 400.9(1A)
- Crimes Act 1914 (Cth), ss 3LA(5), 16BA

Cases:
- Bugmy v The Queen [1990] HCA 18; 169 CLR 525
- CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346
- Deakin v The Queen [1984] HCA 31; 58 ALJR 367
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Power v The Queen [1974] HCA 26; 131 CLR 623
- Director of Public Prosecutions (Cth) v Blackman; Director of Public Prosecutions (Cth) v Jomaa [2014] NSWCCA 90
- DPP (Cth) v Thomas [2016] VSCA 237; 262 A Crim R 198
- Omorogbe v R [2013] NSWCCA 201; 234 A Crim R 556
- El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208
- Chan, Lo and Nguyen v R [2010] NSWCCA 153
- Dao v The Queen [2011] NSWCCA 183