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10
Court of Criminal Appeal 9 August 2019

Le v Regina

[2019] NSWCCA 181

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENDER DID NOT

Citation: Le v Regina [2019] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 9 August 2019
Judge(s): Bathurst CJ, Price J, N Adams J

Background

The applicant pleaded guilty to cultivating not less than a large commercial quantity of cannabis, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). He and his co-offender were arrested at a house in Bonnyrigg where police discovered 223 cannabis plants in a sophisticated hydroponic setup across five converted rooms.

A key factual distinction between the two offenders arose at the time of arrest. The applicant cooperated with police by conducting a recorded walk-through of the premises, admitting he had been hired as caretaker of the crop for six months. His co-offender, by contrast, fled out the back door, scaled several fences, and declined to answer any questions.

Judge Townsden in the Campbelltown District Court sentenced both offenders identically: a non-parole period of 2 years and 4 months, with an additional term of 1 year and 9 months. The applicant sought leave to appeal, arguing the sentencing judge failed to account for his admissions at arrest as either evidence of assistance to authorities or evidence of remorse.

  • Whether the sentencing judge erred by failing to treat the applicant's admissions and walk-through at the scene as evidence of assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether those same admissions should have been treated as evidence of remorse under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), warranting a discount not afforded to the co-offender
  • Whether the identical sentences imposed on both offenders could only be explained by the sentencing judge overlooking the applicant's admissions

Decision

The Court of Criminal Appeal refused leave to appeal, with N Adams J delivering the principal judgment (Bathurst CJ and Price J agreeing).

On the assistance question, the Court found the admissions did not rise to the level of meaningful assistance to authorities. The applicant told police he had no idea who set up the electricity bypass and could not identify the organisers of the operation. He provided no information about any other person's criminal activity. The Court held that conducting a walk-through of premises already in police possession, without naming or assisting in the identification of other participants, did not constitute the kind of assistance that warranted a sentencing reduction beyond that already given for the plea.

On the remorse question, the Court accepted that admissions at the scene can, in principle, constitute the clearest evidence of remorse, being made before any legal advice about sentencing discounts. However, the Court declined to find error on the facts. The applicant did not give evidence at the sentencing hearing, which meant the sentencing judge had no opportunity to assess whether the admissions genuinely reflected remorse rather than a strategic decision. The sentencing judge had acknowledged the admissions and the applicant's expressions of remorse through counsel and in a psychologist's report, but was not compelled to treat them as evidence of additional remorse going beyond what the guilty plea itself already reflected.

The Court also rejected the premise underlying the applicant's core argument, namely that the two offenders had otherwise identical subjective circumstances. Their backgrounds and motivations differed materially. The co-offender faced financial hardship and was supporting family. The applicant had enjoyed parental funding through three courses of university study in Australia and became involved in the criminal enterprise only after his parents withdrew support when he refused to return to Vietnam. Those differences provided a separate basis for the identical sentences, independent of the admissions issue.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • Cooperating with police by walking through premises already under police control, without identifying other participants in the criminal enterprise, is unlikely to constitute "assistance to authorities" sufficient to attract a sentencing discount beyond that given for a guilty plea.
  • A sentencing court is not required to treat admissions made at the time of arrest as evidence of remorse additional to that reflected in a plea of guilty, particularly where the offender does not give evidence and the court has no opportunity to assess the sincerity of that remorse.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the proposition that admissions at arrest can be the clearest form of remorse is not a universal rule and depends on the circumstances of each case.
  • Identical sentences imposed on co-offenders do not necessarily indicate that a distinguishing factor was overlooked. A sentencing court may reach the same outcome through different reasoning paths where the offenders' subjective circumstances differ in other respects.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), meaningful assistance to authorities requires more than passive cooperation at the scene of an already-executed search warrant.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a), s 25(1), s 32, s 33, s 43
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i), s 23
- Electricity Supply Act 1995 (NSW), s 64(1)

Cases
- Browning v R [2015] NSWCCA 147
- CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346
- R v Ellis (1986) 6 NSWLR 603
- R v XX [2017] NSWCCA 90
- Zreika v R [2012] NSWCCA 44