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Court of Criminal Appeal 25 November 2020

Macallister (a pseudonym) v R

[2020] NSWCCA 306

Drugs
CRIMINAL LAW OFFENCES SENTENCE APPEAL CONTROLLED DRUG OFFENDERS

Citation: Macallister (a pseudonym) v R [2020] NSWCCA 306
Court: NSW Court of Criminal Appeal
Date: 25 November 2020
Judges: Leeming JA, Bellew J, Wright J

Background

The applicant pleaded guilty in the District Court of NSW to importing a commercial quantity of cocaine, contrary to s 307.1(1) of the Criminal Code 1995 (Cth). The cocaine, weighing approximately 42.7 kilograms with a purity yield of 32.1 kilograms, had an estimated street value of between $22.9 million and $28.9 million, representing sixteen times the commercial quantity threshold.

Shortly after pleading guilty, the applicant made a lengthy induced statement to the Australian Federal Police (AFP) setting out, in considerable detail, the circumstances of the importation and his personal involvement in it. The statement was made primarily to assist the authorities, and the applicant also signed an undertaking under s 16AC of the Crimes Act 1914 (Cth) to give full and frank evidence consistent with it.

At the sentencing hearing, the Crown tendered the statement in the context of the applicant's assistance to authorities, but neither the Crown nor the applicant's counsel addressed how the statement could properly be used by the sentencing judge. The sentencing judge drew on the statement to make findings adverse to the applicant regarding his role and level of criminality relative to his co-offenders. The applicant was sentenced to 8 years and 5 months' imprisonment with a non-parole period of 5 years and 7 months. He sought leave to appeal against that sentence.

  • Whether the sentencing judge erred by using the applicant's induced statement, made primarily to assist authorities, as a basis for findings that elevated the objective gravity of the offence.
  • What use a sentencing judge may properly make of an induced statement tendered in the context of an offender's assistance to authorities.
  • What obligations fall on the Crown and defence counsel to clarify, at the time of tendering such a statement, the purposes for which it is tendered and the uses to which it may be put.
  • Whether the applicant warranted re-sentencing, and if so, what sentence was appropriate.

Decision

The Court of Criminal Appeal found that error was established. The sentencing judge had made a series of findings, adverse to the applicant, about his role and level of criminality compared to his co-offenders, and those findings drew on the contents of the induced statement rather than being confined to the facts formally tendered on sentence. Because the statement had been made primarily to assist the authorities, and because its proper use was never clarified at the hearing, the sentencing judge should not have used it to aggravate the applicant's objective criminality in the way she did.

The Court was critical of the conduct of the sentencing proceedings below. Neither the Crown nor defence counsel addressed the sentencing judge on the limits of the statement's use. The Court observed that this created a significant problem: the statement, which went substantially beyond the agreed statement of facts, was effectively used as evidence against the applicant's interests without any proper foundation being laid for that use. Both the Crown and the defence had obligations to assist the sentencing judge on this question, and neither discharged those obligations adequately.

On re-sentencing, the Court assessed the offending as objectively serious, involving a very large quantity of cocaine and a level of criminality substantially higher than that of the two co-offenders. Against that, the applicant received significant credit for his early guilty plea, genuine contrition, high-level cooperation with law enforcement (including promised future assistance), and genuine fears for his personal safety arising from that cooperation. Taking all of these matters into account, the Court re-sentenced the applicant accordingly, noting that the sentence which would have been imposed absent the assistance discount would have been 12 years and 9 months' imprisonment.

Orders Made

• Leave to appeal is granted
• The appeal is allowed
• The sentence imposed on the applicant in the District Court is quashed
• The applicant is sentenced to imprisonment for 7 years and 6 months commencing on 28 August 2016 and expiring on 27 February 2024
• A non-parole period of 4 years and 7 months' imprisonment is specified commencing on 28 August 2016 and expiring on 27 March 2021
• Pursuant to s16AC(2)(a) of the Crimes Act 1914 (Cth), the sentence is being reduced because the applicant has undertaken to co-operate with law enforcement agencies
• Pursuant to s16AC(2)(b) of the Crimes Act 1914 (Cth), but for the reduction made on account of the applicant's undertaking to co-operate with law enforcement agencies, the sentence that would have been imposed would have been one of 12 years and 9 months' imprisonment

Key Takeaways

  • An induced statement made by an offender primarily for the purpose of assisting law enforcement authorities is not automatically available as general sentencing evidence to elevate the objective gravity of the offending. Its use at sentence depends on the basis on which it is tendered and the limits placed on that use.
  • Both the Crown and defence counsel carry obligations to assist the sentencing court by making clear, at the time an induced statement is tendered, whether its use is confined to the assessment of assistance or whether it extends to other sentencing purposes. Failure to address this question creates procedural error.
  • Where defence counsel also makes submissions by reference to the contents of an induced statement, the situation becomes more complex, but this does not cure the fundamental problem of the statement's use going beyond its proper scope without clear agreement or direction.
  • Substantial cooperation with authorities, including high-level assistance and promised future assistance, can significantly reduce a sentence for serious drug importation offending, even where the offender's objective criminality is assessed as considerably greater than that of co-offenders.
  • In re-sentencing, the Court of Criminal Appeal identified the pre-assistance sentence as 12 years and 9 months' imprisonment, with the ultimate sentence reflecting a meaningful discount for cooperation under the applicable provisions of the Crimes Act 1914 (Cth).

Legislation and Cases Referenced

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

Cases
- Govindaraju v R [2011] NSWCCA 255
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Gwardys v R [2019] NSWCCA 62
- JMS v R [2010] NSWCCA 229
- Klomfar v R [2019] NSWCCA 61
- Lowe v The Queen (1984) 145 CLR 606; [1984] HCA 46
- OS1 v R [2012] NSWCCA 102
- PC v R [2020] NSWCCA 147
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Bourchas (2002) 133 A Crim R 413; [2002] NSWCCA 373
- R v Chen & Ors (2002) 130 A Crim R 300; [2002] NSWCCA 174
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Leroy [1984] 2 NSWLR 441
- R v Lopez-Alonso (1996) 86 A Crim R 270
- R v Nguyen; R v Pham [2010] 205 A Crim R 106; [2010] NSWCCA 238
- R v NP [2003] NSWCCA 195
- R v Pang (1999) 105 A Crim R 474; [1999] NSWCCA 4
- R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355
- 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