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Court of Criminal Appeal 11 September 2020

Jackson v R

[2020] NSWCCA 230

Drugs
CRIME SENTENCE APPEAL MANIFEST EXCESS OFFENDER WAS PRINCIPAL IN AUSTRALIA “MIDDLE MANAGER” NO ERROR IN CHARACTERISATION

Citation: Jackson v R [2020] NSWCCA 230
Court: NSW Court of Criminal Appeal
Date: 11 September 2020
Judges: Bell P; Johnson J; Rothman J

Background

The appellant pleaded guilty in the NSW District Court to two Commonwealth offences: importing a commercial quantity of cocaine (547.71 kg of pure cocaine concealed aboard a catamaran sailed from Tahiti to Lake Macquarie) and dealing with $60,000 in cash as proceeds of crime. He was sentenced on 29 January 2019 by Berman SC ADCJ. A 40% discount was applied to both sentences for the guilty plea and for past and future assistance under the Crimes Act 1914 (Cth).

The overall effective sentence was a head sentence of 19 years and 6 months, with a non-parole period of 12 years and 6 months, commencing 15 November 2017. The notional starting point for the overall sentence, before the discount, equated to 32 years and 6 months. The appellant was 63 years of age at the time of the offence.

The appellant applied for leave to appeal on two grounds, arguing that the sentencing judge had mischaracterised his role in the enterprise and that the total sentence was manifestly excessive.

  • Whether the sentencing judge erred in characterising the appellant's role within the drug importation syndicate, in particular whether he should have been described as a "middle manager" rather than the Australian principal of the enterprise
  • Whether the total sentence imposed was manifestly excessive, including whether it constituted a "crushing sentence" that warranted reduction

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's characterisation. The appellant had recruited two co-offenders into the enterprise, organised the logistics and funding (including providing $10,000 for travel to Tahiti), directed the recovery of the drugs, and discussed anticipated proceeds in the tens of millions of dollars. The sentencing judge was entitled to treat him as the principal in Australia for this importation. The court found the "middle manager" characterisation pressed by the appellant was inconsistent with the agreed facts.

On the second ground, the court rejected the submission that the sentence was manifestly excessive. Appellate courts applying the House v The King standard can only intervene if error is demonstrated; a sense of unease about a sentence is insufficient. The court found the sentencing judge had correctly identified and applied all relevant principles, including the purposes of punishment, proportionality, and the significant discount for the plea and assistance.

Both Johnson J and Rothman J separately addressed the "crushing sentence" argument. The court noted that describing a sentence as "crushing" does not articulate any applicable legal test. Whether a particular sentence is crushing must be assessed by reference to the offence, the maximum penalty, and all objective and subjective factors. Here, if the sentence was effectively one that would extend across most of the appellant's remaining life expectancy, that was a consequence of the extreme seriousness of the offending, not a sentencing error.

The court also rejected any suggestion that the appellant's age of 63 entitled him to significant mitigation in circumstances where he was a mature, experienced person who made a considered decision to engage in serious criminality for financial gain. The sentencing judge had acknowledged the threats said to have influenced the appellant but found their impact on sentence to be relatively modest, a finding not challenged on appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that an offender's characterisation as the "Australian principal" of a major importation enterprise is supported where that offender recruited participants, provided funding, directed logistics, and stood to receive the primary financial benefit.
  • A sentence that effectively extends across most of an older offender's remaining life expectancy does not automatically constitute error; where the objective seriousness of the offence warrants it, such an outcome may be unavoidable.
  • Describing a sentence as "crushing" does not constitute a legal test; courts assess whether a sentence is excessive by reference to the offence, the maximum penalty, and all relevant objective and subjective factors.
  • An older offender's age is a relevant sentencing factor, but it cannot produce an expectation that serious offending will be met with relative leniency, particularly where the offending was calculated and motivated by financial gain.
  • No appellate intervention is warranted unless legal error is established in the sentencing exercise; the House v The King standard requires more than a generalised sense that the sentence was too heavy.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.1(1), 400.5(1)
- Crimes Act 1914 (Cth), ss 16A, 16AC

Cases
- House v The King (1936) 55 CLR 499
- Veen v R (No 2) (1988) 164 CLR 465
- Bugmy v The Queen (1990) 169 CLR 525
- R v Holyoak (1995) 82 A Crim R 502
- The Queen v Olbrich (1999) 199 CLR 270
- Dinsdale v The Queen (2000) 202 CLR 321
- R v McLean (2001) 121 A Crim R 484
- Wong v R (2001) 207 CLR 584
- GAS v The Queen (2004) 217 CLR 198
- Goebel-McGregor v R [2006] NSWCCA 390
- Ta'ala v R [2008] NSWCCA 132
- Barton v R [2009] NSWCCA 164
- R v Nguyen; R v Pham (2010) 205 A Crim R 106
- Tiknius v R (2011) 221 A Crim R 365
- Paxton v R (2011) 219 A Crim R 104
- Barbaro v the Queen; Zirilli v the Queen (2014) 253 CLR 58
- ZA v R (2017) 267 A Crim R 105
- R v Kassir [2020] NSWCCA 88
- R v Jackson [2019] NSWDC 1