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Court of Criminal Appeal 28 November 2018

R (Cth) v Madgwick

[2018] NSWCCA 268

Drugs
CRIMINAL LAW SENTENCE APPEAL BY DPP (CTH) OPERATION RESPONDENT SUBSEQUENTLY REFUSED TO CO OPERATE APPEAL BY DPP SUCCESSFUL

Citation: R (Cth) v Madgwick [2018] NSWCCA 268
Court: NSW Court of Criminal Appeal
Date: 28 November 2018
Judge(s): Hoeben CJ at CL (principal judgment); Davies J and Button J agreeing

Background

The respondent pleaded guilty to aiding and abetting the importation of a commercial quantity of a border controlled precursor, namely pseudoephedrine, between January and October 2014. He had operated an Australian distribution company that received shipping containers of chemicals from a Thailand-based manufacturer, one of which was found to contain nearly 48.4 kilograms of pseudoephedrine concealed within the consignment.

At sentencing in February 2017, the sentencing judge (Frearson SC DCJ) imposed a term of 5 years and 10 months imprisonment with a non-parole period of 2 years and 11 months. The sentence included a reduction for past cooperation and a further reduction for a future undertaking under section 16AC of the Crimes Act 1914 (Cth): the respondent had agreed to give evidence for the Crown in the trial of a co-accused. The judge noted that without the future assistance, the sentence would have been 6 years and 10 months with a non-parole period of 3 years and 5 months.

The respondent subsequently refused to give evidence at the co-accused's trial. The Commonwealth DPP brought a Crown appeal seeking resentencing under section 16AC(3) of the Crimes Act on the basis that the respondent had failed to cooperate without reasonable excuse. Separately, when the matter came before the Court of Criminal Appeal in October 2018, the Court raised the additional issue of whether the sentencing judge had failed to take into account the utilitarian value of the guilty plea, consistent with the Court's earlier decision in Xiao v R. Leave was granted to the respondent to file his own appeal on that ground.

  • Whether the respondent had, without reasonable excuse, failed to cooperate in accordance with his undertaking, thereby triggering resentencing under section 16AC(3) and (4) of the Crimes Act 1914 (Cth).
  • Whether the respondent had a reasonable excuse for not giving evidence at the co-accused's trial, including claimed fears for his and his family's safety.
  • Whether the sentencing judge erred by failing to take into account the utilitarian value of the respondent's plea of guilty, as required following Xiao v R.
  • Whether, on resentencing, any lesser sentence was warranted in law.

Decision

Crown appeal: failure to cooperate

The Court found that the respondent had failed to cooperate in part in accordance with his undertaking, and had done so without reasonable excuse. The respondent had given a number of reasons for not giving evidence, including safety concerns for himself and his family. The Court assessed these explanations and did not accept them as constituting a reasonable excuse under the statute. Accordingly, the precondition for resentencing under section 16AC(3) and (4) was established.

Respondent's appeal: utilitarian value of guilty plea

The DPP conceded that the sentencing judge had failed to take into account the utilitarian value of the guilty plea as a distinct sentencing consideration, in error. The Court accepted this concession. This error independently required the original sentence to be quashed and a fresh sentencing exercise undertaken. However, that error did not produce any separate benefit for the respondent given the overall resentencing exercise required.

Resentencing

In resentencing, the Court noted that the original sentence had already been a lenient one. The sentencing judge had appropriately assessed the respondent's past cooperation as being at a very high level, and a substantial discount had been built in for the guilty plea and past assistance. The Court also took into account that the respondent's time in custody had not, contrary to what the sentencing judge had assumed, been more onerous than that of the general prison population, except for a period of 54 days in South Australia. Accounting for all factors, the Court was not persuaded that a lesser sentence was warranted in law. The respondent's appeal was therefore dismissed despite the conceded error, and the sentence was increased to reflect the removal of the discount for future assistance that had not been provided.

Orders Made

  • The Crown appeal against the sentence imposed on 17 February 2017 is allowed.
  • The sentence imposed on 17 February 2017 is quashed.
  • The respondent is resentenced to imprisonment with a head sentence of 6 years and 10 months, commencing 17 February 2017, with a non-parole period of 3 years and 5 months expiring 16 July 2020, with the balance of term expiring 16 December 2023.
  • Leave to appeal granted to the respondent, but the respondent's appeal against sentence is dismissed.

Key Takeaways

  • Under section 16AC(3) of the Crimes Act 1914 (Cth), where an offender has received a sentencing discount for a future undertaking to assist authorities and then fails to honour that undertaking without reasonable excuse, the sentencing court is required to resentence, removing the benefit granted for the future assistance.
  • A claimed fear for personal or family safety did not, on the facts found in this case, amount to a reasonable excuse for failing to give evidence in accordance with an undertaking to cooperate.
  • Where a sentencing judge fails to take the utilitarian value of a guilty plea into account as a distinct consideration, that constitutes a sentencing error requiring the sentence to be quashed and the discretion exercised afresh, consistent with Xiao v R.
  • In dismissing the respondent's appeal despite the conceded error, the Court of Criminal Appeal confirmed that a successful challenge to a sentence does not automatically produce a lesser sentence on resentencing: the question is whether a lesser sentence is warranted in law in all the circumstances.
  • Assumptions made at sentencing about the conditions of an offender's custody can be revisited on appeal if the factual basis for those assumptions is shown not to have eventuated.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(2)(h), 16AC
- Criminal Code (Cth), ss 11.2, 307.11

Cases
- Xiao v R [2018] NSWCCA 4; 96 NSWLR 1
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Director of Public Prosecutions (Cth) v Haunga [2001] VSCA 73; 4 VR 285
- R v Hammond [2001] NSWCCA 34; 121 A Crim R 1
- Huang v R [2018] NSWCCA 57; 331 FLR 377
- Musa v R [2018] NSWCCA 192
- Naizmand v R [2018] NSWCCA 25
- Obiekwe v R [2018] NSWCCA 55
- Peters v R [2018] NSWCCA 126
- Sintat v R [2018] NSWCCA 165
- Wagner v R [2018] NSWCCA 124
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
- R v MI [2018] NSWCCA 251
- R v KS [2005] NSWCCA 87
- R v YZ [1999] NSWCCA 263
- R v Clinton George Ribbon (District Court (SA), Stretton DCJ, 24 July 2018, unreported)