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Court of Criminal Appeal 3 September 2018

Musa v R

[2018] NSWCCA 192

Drugs
CRIME APPEAL AGAINST SENTENCE 20% DISCOUNT IN SENTENCE FOR EARLY PLEA PAROLE PERIOD OF 3 YEARS 6 MONTHS APPEAL ALLOWED AND OFFENDER RESENTENCED

Citation: Musa v R [2018] NSWCCA 192
Court: NSW Court of Criminal Appeal
Date: 3 September 2018
Judge(s): Bathurst CJ, Hoeben CJ at CL, Fagan J

Background

The appellant was sentenced in the District Court in September 2017 for attempting to possess a marketable quantity of methamphetamine (890.2 g at 79.7% purity) imported into Australia, contrary to the Criminal Code (Cth). The drug had been secreted inside candles shipped from California. Police substituted an inert substance before delivery, and the appellant was arrested when he collected and opened the consignment.

The appellant had pleaded guilty at the earliest opportunity, in the Local Court. The sentencing judge applied a 20% discount for that plea, arriving at a head sentence of 5 years and 6 months with a non-parole period of 3 years and 6 months. The judge moderated the discount below what a full utilitarian allowance would have produced, reasoning that the Crown case was strong and the plea therefore reflected little more than recognition of the inevitable.

The sole ground of appeal was that the sentencing judge erred in how he approached the discount for the guilty plea.

  • Whether the sentencing judge erred by reducing the guilty plea discount on the basis that the Crown had a strong case
  • Whether the utilitarian value of a guilty plea (that is, the practical benefit to the justice system of avoiding a contested trial) is a legitimate consideration in Commonwealth sentencing proceedings governed by s 16A of the Crimes Act 1914 (Cth)

Decision

The Court of Criminal Appeal held that the sentencing judge had erred, though through no fault of his own. At the time of sentencing, the prevailing understanding was that the High Court's decision in Cameron v The Queen precluded recognition of a plea of guilty on purely utilitarian grounds. On that approach, a plea entered in the face of a strong prosecution case could be discounted as merely an acceptance of the inevitable, rather than a genuine willingness to assist the administration of justice.

However, the Court of Criminal Appeal had revisited this question earlier in 2018 in Xiao v R, holding that a sentencing judge in Commonwealth proceedings is entitled to take the utilitarian value of a guilty plea into account. Cases following the contrary interpretation of Cameron were overruled on that point. The sentencing judge's reasoning, which expressly withheld full credit because of the strength of the Crown case, was therefore inconsistent with the law as clarified in Xiao.

The Court accepted the starting-point sentence implicit in the District Court's reasoning (6 years and 10 months with a non-parole period of 4 years and 4 months) as appropriate, given the objective circumstances of the offence and the appellant's personal background. Both parties accepted that starting point on appeal. Applying a 25% discount for the full utilitarian value of an early plea produced a reduced sentence.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed in the District Court on 5 September 2017 quashed
  • Appellant resentenced to imprisonment for 5 years and 2 months, commencing 6 January 2016 and expiring 5 March 2021, with a non-parole period of 3 years and 3 months commencing 6 January 2016 and expiring 5 April 2019

Key Takeaways

  • Following Xiao v R [2018] NSWCCA 4, the Court of Criminal Appeal confirmed that the utilitarian value of a guilty plea is a legitimate sentencing consideration in Commonwealth proceedings under s 16A of the Crimes Act 1914 (Cth).
  • A sentencing court does not err by granting a full utilitarian discount even where the Crown case was strong; the strength of the prosecution's case is not a proper basis for reducing that component of the discount.
  • The earlier approach derived from Cameron v The Queen, as applied in Tyler v R and subsequent cases, was found to be inconsistent with the correct position stated in Xiao, and those cases were not to be followed on this point.
  • In resentencing, the Court applied a 25% discount for an early plea entered at the first available opportunity, reducing the head sentence from 6 years and 10 months to 5 years and 2 months.
  • No error was established in the sentencing judge's starting-point assessment; only the application of the plea discount was reconsidered on appeal.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.1(1) and 307.6(1)
- Crimes Act 1914 (Cth), s 16A

Cases
- Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
- Tyler v R [2007] NSWCCA 247
- Xiao v R [2018] NSWCCA 4