AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 14 December 2018

A v R

[2018] NSWCCA 289

DrugsTheft & propertyPublic order & justice offences
CRIMINAL LAW ROBBERY IN COMPANY OFFENDER APPLICATION FOR LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: A v R [2018] NSWCCA 289
Court: Court of Criminal Appeal, NSW
Date: 14 December 2018
Judges: White JA (with Walton J and Wilson J agreeing)

Background

The applicant, known by the pseudonym "A" due to a suppression order protecting his identity as a person who had assisted law enforcement, pleaded guilty in the District Court to two serious offences: robbery in company (maximum 20 years) and supply of not less than a commercial quantity of methamphetamine (maximum 20 years, with a 10-year standard non-parole period). He also had further minor offences taken into account on a Form 1.

The District Court sentenced A to an aggregate term of nine years and six months with a non-parole period of six years. In determining the discount for assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge proceeded on the basis that A's assistance had already been "exhausted" in earlier Local Court proceedings.

The problem was that the transcript of those Local Court proceedings was never placed before the sentencing judge. When the Court of Criminal Appeal obtained and reviewed that transcript, it revealed that the Local Court had not, in fact, exhausted the discount for assistance. This formed the central error underpinning the appeal.

  • Whether the sentencing judge erred in finding that the s 23 discount for assistance to authorities had already been exhausted in the Local Court proceedings.
  • Whether the 10% total discount applied for past and future assistance was inadequate, having regard to the matters in s 23(2) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the applicant had a legitimate sense of grievance arising from a disparity between his sentence for robbery in company and the sentence imposed on his co-offender.

Decision

On Ground 4, the Court found that the sentencing judge had proceeded on a factually incorrect basis. The primary judge believed A's assistance discount had been consumed in the Local Court, but the transcript of those proceedings (not supplied to him) showed otherwise. This constituted an error in the exercise of the sentencing discretion, requiring the Court of Criminal Appeal to re-sentence.

On Grounds 1 and 2, the Court accepted that the discount applied to the robbery in company offence required adjustment to account for assistance that had not been recognised below. However, the Court noted that where there is no nexus between the assistance provided and the particular offence being sentenced, a smaller reduction is warranted. This is consistent with the principle in R v XX [2017] NSWCCA 90 that the relevance of assistance to the specific offence may affect the extent of any reduction.

On Ground 3, the co-offender disparity argument was rejected. It is well settled that a sentencing judge is entitled to consider an individual offender's particular conduct and culpability within a joint criminal enterprise, and differences in sentence between co-offenders may properly reflect different levels of participation.

On resentencing, the Court reduced the aggregate sentence slightly, from nine years and six months to nine years, with the non-parole period reduced from six years to five years and eight months. The Court specified, in accordance with s 23(4)(c), the separate amounts by which the penalty was reduced for past assistance (four months) and for the undertaking to provide future assistance (three months) in relation to the robbery in company offence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; sentence passed in the District Court on 8 March 2018 quashed.
  • In lieu thereof, the applicant sentenced to nine years' imprisonment with a non-parole period of five years and eight months, and a balance term of three years and four months.
  • Non-parole period to date from 27 October 2016, expiring 26 June 2022; balance term expiring 26 October 2025.
  • First eligible for parole on 27 June 2022.

Key Takeaways

  • A sentencing judge who proceeds on the basis that a s 23 assistance discount has already been exhausted in prior proceedings, without access to the transcript of those proceedings, may commit a factual error sufficient to vitiate the sentence.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999, the absence of a connection between the assistance provided and the specific offence being sentenced is a factor that may reduce, but does not eliminate, the available discount.
  • Sentence disparity between co-offenders does not automatically give rise to a legitimate grievance: where individual culpability within a joint criminal enterprise differs, differentiated sentences are permissible.
  • Section 23(4)(c) requires a court to state separately the amount by which a sentence is reduced for past assistance and for an undertaking to provide future assistance, where both grounds apply.
  • Supplying a complete and accurate evidentiary record to a sentencing court, including transcripts of related proceedings, is critical to ensuring that prior reductions are accurately identified and that no component of a discount is inadvertently applied twice or omitted entirely.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Crimes Act 1900 (NSW), s 97(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Cases:
- R v XX [2017] NSWCCA 90; (2017) 266 A Crim R 132
- Burrows v R [2017] NSWCCA 45
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- Sheen v R [2014] NSWCCA 42
- Franklin v R [2018] NSWCCA 245
- SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249