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10
Court of Criminal Appeal 27 May 2020

Weber v R

[2020] NSWCCA 103

Drugs
CRIMINAL LAW APPEAL SENTENCE ERROR ESTABLISHED APPLICANT RESENTENCED CRIMINAL LAW PRACTICE AND PROCEDURE

Citation: Weber v R [2020] NSWCCA 103
Court: NSW Court of Criminal Appeal
Date: 27 May 2020
Judges: Simpson AJA, Rothman J, Bellew J

Background

The applicant was convicted in the District Court of New South Wales of importing a border controlled drug in excess of the marketable quantity, a federal offence under the Criminal Code Act 1995 (Cth). He was arrested on 13 June 2015 and pleaded guilty at the first available opportunity. At the time of his arrest, he also provided information to police, naming individuals he believed to be involved in the drug operation.

The sentencing judge imposed a sentence that included a 25% discount, attributed to three factors: contrition, the early guilty plea, and cooperation with authorities. The applicant sought leave to appeal against that sentence on two grounds. First, that the sentencing judge failed to apply any discount for the utilitarian value of the guilty plea. Second, that the judge failed to give adequate weight to the applicant's cooperation with police.

  • Whether the sentencing judge erred by failing to take into account the utilitarian value of the applicant's early guilty plea, as required under s 16A(2)(g) of the Crimes Act 1914 (Cth)
  • Whether the absence of evidence about the usefulness of information provided to police at the time of arrest disentitled the applicant to a sentencing discount for cooperation under s 16A(2)(h) of the Crimes Act 1914 (Cth)
  • Whether the Crown's concession of error on the first ground was fully justified

Decision

Ground 1: Utilitarian value of the guilty plea

The Crown conceded that the sentencing judge had failed to take into account the utilitarian value of the guilty plea. The Court allowed the appeal on this basis. Bellew J (with Rothman J agreeing) found that the error was established and that resentencing was required.

Simpson AJA expressed reservations about the Crown's concession, noting that the sentencing judge's express reference to the plea having been entered "at the earliest opportunity" was arguably another way of recognising the utilitarian value of the plea, given that early timing is precisely the factor that maximises the cost and time savings to the administration of justice. However, because the Crown's concession stood and the applicant had not had an opportunity to respond to these observations, Simpson AJA treated her views as tentative and agreed with the orders proposed.

Ground 2: Cooperation with police

The Court confirmed that the applicant was entitled to a discount for his cooperation with police, notwithstanding the absence of evidence establishing the actual usefulness of the information he provided. The relevant question was whether the applicant had genuinely provided information and cooperated with authorities. The absence of evidence about what ultimately came of that information did not, in the circumstances, defeat the applicant's entitlement to some discount under s 16A(2)(h).

Resentencing

The Court resentenced the applicant, applying a discount for both the utilitarian value of the early guilty plea and his cooperation with police. The revised sentence was shorter than that originally imposed. The applicant's prospects of rehabilitation were noted to be guarded, as he had not yet successfully addressed his drug use, though he had otherwise engaged productively during his time in custody.

Orders Made

  • Time for bringing the application for leave to appeal against sentence was extended
  • Leave to appeal against sentence was granted
  • The appeal against sentence was allowed
  • The sentence imposed in the District Court was quashed
  • The applicant was resentenced to imprisonment for 7 years and 5 months, commencing 13 June 2015 and expiring 12 November 2022, with a non-parole period of 5 years and 2 months, commencing 13 June 2015 and expiring 12 August 2020

Key Takeaways

  • Under s 16A(2)(g) of the Crimes Act 1914 (Cth), a sentencing court must take into account the utilitarian value of a guilty plea when sentencing a federal offender, not merely the subjective indication of remorse or contrition the plea may represent.
  • A sentencing judge is not required to use the precise phrase "utilitarian value" when allowing a discount for a guilty plea, but the reasons must be capable of being read as encompassing that consideration. Simpson AJA noted, tentatively, that a reference to a plea entered "at the earliest opportunity" may be sufficient to imply that utilitarian value was recognised.
  • Where a federal offender provides information to police at the time of arrest, the absence of evidence about the ultimate usefulness of that information does not automatically disentitle the offender to a discount for cooperation under s 16A(2)(h) of the Crimes Act 1914 (Cth).
  • The timing of a guilty plea remains the primary consideration in quantifying the utilitarian discount: the earlier the plea, the greater the saving to the administration of justice and, correspondingly, the larger the discount.
  • Crown concessions of sentencing error are to be made carefully. The Court of Criminal Appeal noted that a concession based solely on the absence of the words "utilitarian value" may not always be fully justified, depending on what the sentencing judge's reasons reveal about what was actually considered.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A(2)(f), (g), (h)
- Criminal Code Act 1995 (Cth)
- Criminal Code Regulations 2019 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Huang v The Queen (2018) 272 A Crim R 266; [2018] NSWCCA 70
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
- Winchester v R (1992) 58 A Crim R 345
- R v Shannon (1979) 21 SASR 442
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
- RPS v R (2000) 199 CLR 620; [2000] HCA 3
- Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215
- Valsamakis v R [2016] NSWCCA 156
- R v Cartwright (1989) 17 NSWLR 243
- Yenice v R (1994) 72 A Crim R 234
- R v Barrientos [1999] NSWCCA 1
- R v Benais [1999] NSWCCA 236
- R v Riddell (2009) 194 A Crim R 524; [2009] NSWCCA 96
- Pfitzner v R [2010] NSWCCA 314
- R v Elfar [2003] NSWCCA 358