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Court of Criminal Appeal 27 April 2018

Wu v R

[2018] NSWCCA 74

Drugs
CRIME APPEAL AGAINST SENTENCE OBJECTIVE SERIOUSNESS OF OFFENDING SENTENCE NOT MANIFESTLY EXCESSIVE NO BASIS FOR ANY GROUNDS OF APPEAL

Citation: Wu v R [2018] NSWCCA 74
Court: NSW Court of Criminal Appeal
Date: 27 April 2018
Judges: Hoeben CJ at CL, Fullerton J, Davies J

Background

The appellant pleaded guilty in the District Court to supplying a large commercial quantity of methylamphetamine, specifically 5.98 kg of the drug, an amount approximately six times the statutory threshold for a "large commercial quantity." The offence occurred on 10 August 2015, when the appellant flew from Melbourne to Sydney, used a falsely subscribed mobile phone to communicate in code with a member of a criminal syndicate, collected a backpack containing the drugs from an unknown male at Milsons Point, and was arrested shortly afterwards in a hotel car park.

The appellant was sentenced by Acting Judge Delaney to nine years' imprisonment, with a non-parole period of five years and nine months. The maximum penalty for the offence is life imprisonment, and the standard non-parole period is 15 years.

The appellant sought leave to appeal, arguing that the sentencing judge had misjudged his role, overstated his culpability and financial motivation, erred in the treatment of subjective matters, and imposed a sentence that was manifestly excessive.

  • Whether the sentencing judge correctly assessed the appellant's role in the offending as a courier
  • Whether the sentencing judge erred in treating certain statements the appellant made to a psychiatrist as unreliable, given those statements were inconsistent with the agreed facts
  • Whether the sentencing judge improperly placed an evidential onus on the appellant to establish the limits of his role
  • Whether the sentencing judge adequately considered remorse, contrition, prospects of rehabilitation, and prior good character in fixing both the head sentence and the non-parole period
  • Whether the sentencing judge incorrectly used the standard non-parole period as a guideline
  • Whether the overall sentence was manifestly excessive

Decision

Role and objective seriousness: Davies J, with whom Hoeben CJ at CL and Fullerton J agreed, rejected the contention that the sentencing judge had misjudged the appellant's role. The judge accepted the Crown's characterisation of the appellant as a courier, but found the offending was still just below the mid-range of objective seriousness. That finding was open given the weight and high purity of the drug, the sophisticated planning involved (including coded telecommunications and a falsely subscribed phone), and the financial motivation.

Untested assertions to the psychiatrist: The Court confirmed the principle, drawn from R v Qutami and Imbornone v R, that a sentencing judge is not obliged to accept, without more, assertions a defendant makes to a third party such as a psychiatrist, particularly where those assertions are inconsistent with agreed facts. Here, the appellant had told the psychiatrist he had no knowledge of the drug and had only used the phone once on the day of arrest. Both claims conflicted directly with the agreed statement of facts, which recorded him using the phone on around 13 occasions that day. The sentencing judge was entitled to treat those parts of the report with caution.

Subjective matters and standard non-parole period: The Court found the sentencing judge had in fact taken remorse, rehabilitation prospects, and good character into account, and had not relegated them solely to a "special circumstances" analysis. As to the non-parole period, the judge had selected 13 years as the starting point for the head sentence (not the standard non-parole period of 15 years), reduced it by 25% for the guilty plea, and then further reduced the statutory ratio to produce a non-parole period of five years and nine months. That methodology demonstrated the standard non-parole period had not been used as a mechanical starting point.

Manifest excess: Because no error was established under Ground 1, the manifest excess ground also failed. The Court noted that, in cases involving drug supply, sentences of sufficient severity are required to denounce the offending and deter others, consistent with the principles in Collier v R.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A sentencing court is not required to accept unsworn assertions made by an offender to a psychiatrist where those assertions are inconsistent with facts formally agreed between the parties at sentencing.
  • The Court of Criminal Appeal confirmed that a courier role does not automatically place drug supply offending at the lower end of objective seriousness, particularly where the drug is of significant weight and purity, coded communications are used, and financial gain is the motive.
  • No error arises from a sentencing judge selecting a starting point below the standard non-parole period and then applying a reduction for a guilty plea; the figures themselves demonstrate that the standard non-parole period has not been treated as a baseline.
  • Remorse, rehabilitation, and good character are not confined to the special circumstances analysis; they are relevant to both the head sentence and the non-parole period, and the sentencing judge was found to have addressed them throughout the remarks on sentence.
  • In dismissing the appeal, the Court reiterated that sentences of sufficient severity in drug supply matters serve the purposes of denunciation and general deterrence, citing Collier v R.

Legislation and Cases Referenced

Legislation
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- Collier v R [2012] NSWCCA 21
- House v The King (1936) 55 CLR 499
- Imbornone v R [2017] NSWCCA 144
- Muldrock v The Queen (2011) 244 CLR 120
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- Vaiusu v R [2017] NSWCCA 71