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Court of Criminal Appeal 12 December 2019

ZZ v R

[2019] NSWCCA 286

Drugs
CRIME DRUG IMPORTATION OFFENCES ARREST INTERVIEW POST WHETHER EVIDENCE OF POST SENTENCING EVENTS IS ADMISSIBLE

Citation: ZZ v R [2019] NSWCCA 286
Court: Court of Criminal Appeal, New South Wales
Date: 12 December 2019
Judges: Hoeben CJ at CL; R A Hulme J; Button J

Background

The applicant, a German national, was detected at Sydney International Airport in April 2017 carrying cocaine concealed in the lining of her suitcase. The pure weight of cocaine in her case was 824.4 grams. Following her arrest, she participated in an interview with Australian Federal Police and identified the person in Germany who had recruited her as a drug courier, providing that recruiter's name, physical description, and likely location.

The applicant was sentenced in the District Court in October 2018 after pleading guilty to importing a marketable quantity of cocaine contrary to s 307.2(1) of the Criminal Code (Cth). The sentencing judge imposed five years' imprisonment with a non-parole period of three years and two months. While granting a 25 per cent reduction for the early plea and remorse, the judge declined to give any further reduction for co-operation with authorities. The judge found that the information the applicant had provided in her post-arrest interview had been of no real assistance.

After sentence, the applicant was interviewed by German authorities. That interview was subsequently described as being of "great value" to German prosecutors pursuing the recruiter. The initial information she had given Australian police was confirmed as true and correct. The applicant then sought leave to appeal against her sentence on the ground that the sentencing judge had mistaken the value of her assistance to authorities.

  • Whether the sentencing judge erred in finding that the applicant's post-arrest co-operation with police was of no real assistance to authorities, thereby declining to apply a discount under s 16A(2)(h) of the Crimes Act 1914 (Cth).
  • Whether evidence of events occurring after sentencing, specifically the post-sentence interview with German authorities and the subsequent assessment of its value, is admissible on a sentence appeal.
  • Whether, if admissible, that post-sentence evidence entitled the applicant to a reduction in sentence for co-operation with law enforcement.

Decision

The Court of Criminal Appeal unanimously allowed the appeal. All three judges agreed with the reasons given by R A Hulme J, and the court held that the applicant was entitled to a discount for her co-operation with authorities.

On the admissibility question, the court confirmed the general proposition that evidence of post-sentencing events is inadmissible on appeal. However, the court recognised a well-established exception: post-sentence events may be taken into account where they demonstrate the true significance of facts that already existed at the time of sentencing. The court applied this exception by reference to R v Smith (1987) 44 SASR 587 and Khoury v R [2011] NSWCCA 118.

The post-sentence interview with German authorities, and the subsequent assessment of the applicant's co-operation as being of "great value," shed retrospective light on the true worth of the information she had given Australian Federal Police immediately after her arrest. That initial information had been confirmed as accurate. On that basis, the court was satisfied the exception applied and the evidence was admissible to inform the appeal.

Resentencing on the available material, the court adopted the same starting point of six years and eight months used by the sentencing judge. The total discount was increased from 25 per cent to 35 per cent to account for the applicant's plea, remorse, and co-operation with law enforcement, producing a reduced sentence.

Orders Made

  • Leave to appeal granted and the appeal allowed.
  • The sentence imposed in the District Court on 12 October 2018 was quashed.
  • A substituted sentence of imprisonment for 4 years and 4 months was imposed, with a non-parole period of 2 years and 9 months dating from 15 April 2017, with eligibility for release on parole on 14 January 2020.

Key Takeaways

  • Post-sentence events are generally inadmissible on a sentence appeal, but the Court of Criminal Appeal confirmed an exception applies where those events reveal the true significance of facts that existed at the time of sentencing.
  • Under s 16A(2)(h) of the Crimes Act 1914 (Cth), a sentencing court must take into account the degree to which an offender has co-operated with law enforcement agencies; where the value of that co-operation was not appreciated until after sentence, the exception to the inadmissibility rule may be engaged.
  • A post-sentence assessment confirming that an offender's initial information was accurate and of significant value to a foreign prosecution was sufficient to attract the admissibility exception and to ground a reduction in sentence.
  • The sentencing court's failure to give any weight to the applicant's post-arrest disclosure of her recruiter's identity and location was treated as an error once subsequent events confirmed the value of that information.
  • In resentencing, the Court of Criminal Appeal applied the principle of parity by reference to the identical sentence given to the applicant's partner, while adjusting the discount upward to reflect the now-established value of the applicant's co-operation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(2)(h), 16F
- Criminal Code (Cth), s 307.2(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- DL v The Queen [2018] HCA 32; (2018) 358 ALR 666
- R v Green (1918) 13 Cr App R 200
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
- R v Smith (1987) 44 SASR 587