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6
Court of Criminal Appeal 1 July 2020

R v Sara

[2020] NSWCCA 119

Drugs
APPEAL CROWN APPEAL AGAINST SENTENCE WHETHER SENTENC E MANIFESTLY INADEQUATE

Citation: R v Sara [2020] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 1 July 2020
Judge(s): Bathurst CJ, Hoeben CJ at CL, Harrison J (judgment delivered by Harrison J)

Background

The offender was convicted of conspiring to import a commercial quantity of a border controlled drug, specifically approximately 18 kilograms of pure heroin, contrary to the Criminal Code (Cth). His role in the "Fiji Conspiracy" was that of a middleman: he created introductions between an overseas group and an Australian group, coordinated communications between the two sides, and supplied a purpose-loaded Blackberry device to facilitate those communications. The conspiracy ran from August 2014 to January 2015, though the offender's active participation spanned roughly two months.

The sentencing judge in the District Court, Hunt DCJ, imposed a sentence of 7 years and 6 months imprisonment, commencing 27 December 2016, with a non-parole period of 5 years. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the sentence imposed by the District Court was manifestly inadequate so as to warrant appellate intervention.
  • Whether the sentencing judge made findings of fact that were not open on the evidence.
  • Whether the sentencing judge made specific legal errors in the course of sentencing.
  • Whether the sentencing judge gave undue weight to subjective features at the expense of general and specific deterrence.
  • Whether appellate intervention was required to maintain public confidence in the sentencing of high-level offenders involved in international drug importation conspiracies.

Decision

The Court of Criminal Appeal dismissed the Crown appeal in its entirety, with all three judges agreeing on the outcome. Harrison J delivered the principal judgment, with Bathurst CJ and Hoeben CJ at CL agreeing.

Harrison J found that the sentencing judge had not misconstrued the facts, had not taken into account irrelevant matters, and had not failed to consider any highly relevant matter. Critically, the Crown's primary complaint was that the sentencing judge had failed to ascribe sufficient weight to certain factors, including the need for general and specific deterrence. The Court observed that this kind of argument had been rightly criticised elsewhere, because the assessment of the weight to be given to various pieces of evidence is a matter for the sentencing judge and is one on which informed minds can reasonably differ.

On the question of the offender's role, the Court accepted that the sentencing judge was entitled to characterise him as an intermediary whose participation, while significant, differed from the principal organisers on each side of the conspiracy. The sentencing judge had also considered the fact that the importation was doomed to fail due to the involvement of an undercover operative, and had taken that into account in assessing moral culpability. The Court of Criminal Appeal was not persuaded that this approach was impermissible.

The Court also noted that the Crown had conceded before the sentencing judge that there was no closely analogous comparator case. That acknowledgment made it correspondingly more difficult for the Crown to sustain an argument on appeal that the sentence was clearly wrong. The sentencing judge's remarks were described as well-considered, and the Crown's critique of them was characterised as overly pedantic.

Orders Made

• Crown appeal dismissed

Key Takeaways

  • A Crown appeal on the ground of manifest inadequacy will not succeed merely by arguing that a sentencing judge gave insufficient weight to particular factors; that kind of complaint subverts the legitimate discretion of the sentencing judge, and such arguments have been criticised in multiple appellate decisions.

  • Where the Crown concedes at the sentencing hearing that no closely analogous comparator case exists, this substantially weakens any subsequent appellate argument that the resulting sentence was clearly wrong.

  • A sentencing judge is not precluded from considering the fact that an importation conspiracy was doomed to fail because of undercover police involvement; this can be a relevant factor in assessing an offender's moral culpability.

  • The Court of Criminal Appeal confirmed that the characterisation of an offender's role, including a finding that he functioned as an intermediary rather than a principal organiser, is a factual matter for the sentencing judge where that characterisation is open on the agreed facts.

  • In dismissing the appeal, the Court reinforced that an overly pedantic critique of sentencing remarks does not, without more, establish appellate error sufficient to justify resentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 11.5(1) and 307.1(1)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Burrows v R [2017] NSWCCA 45
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions (Cth) v Haynes [2017] VSCA 79
- Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Haines v R [2018] NSWCCA 269
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Horvath v R [2019] NSWCCA 285
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Moore v R [2016] NSWCCA 185
- Mulato v R [2006] NSWCCA 282
- R v Amohanga [2005] NSWCCA 249
- R v Burns [2007] NSWCCA 228
- R v Hernando [2002] NSWCCA 489