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Court of Criminal Appeal 26 May 2021

Jones (a pseudonym) v R

[2021] NSWCCA 106

Firearms & weapons
APPEAL CRIMINAL APPEAL SENTENCING FIREARMS OFFENCES DISCOUNT FOR ASSISTANCE ALLEGED INCOMPETENCE OF COUNSEL

Citation: Jones (a pseudonym) v R [2021] NSWCCA 106
Court: NSW Court of Criminal Appeal
Date: 26 May 2021
Judge(s): Basten JA, Davies J, Button J

Background

The appellant pleaded guilty in the District Court to three serious firearms offences: supplying prohibited firearms to an unauthorised person, possessing a firearm part while subject to a Firearms Prohibition Order, and manufacturing a prohibited firearm without a licence. Two further offences (intimidation and dealing with proceeds of crime) were taken into account on a Form 1. The offending involved brokering the supply of six firearms, including an AK-47 and an Uzi, between members of an outlaw motorcycle gang network, and the home manufacture of a MAC-10 styled firearm.

After his arrest in March 2017, the appellant cooperated with police by participating in a controlled operation, making calls and travelling to the Newcastle area to pressure a contact into supplying firearms. The operation ended prematurely when that contact was inadvertently arrested on an unrelated warrant. Police provided the sentencing court with a letter detailing this assistance.

The District Court sentenced the appellant to an aggregate of eight years with a five-year non-parole period. The sentencing judge applied a total discount of 20 per cent, comprising 15 per cent for the guilty plea and five per cent for past assistance under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The appellant sought leave to appeal on two grounds: alleged incompetence of his former counsel in the conduct of the sentence proceedings, and error in the quantum of the discount awarded for assistance.

  • Whether a miscarriage of justice arose from counsel's alleged incompetence, specifically in failing to inform the appellant of the contents of the police assistance letter, failing to take instructions on that letter, failing to adduce complete evidence of the assistance provided and its consequences, and failing to arrange cross-examination of the police author of the letter.
  • Whether the sentencing judge erred in allowing only a five per cent discount for the appellant's assistance to authorities, having regard to the full scope of that assistance and the risks incurred by the appellant.

Decision

On the incompetence ground, the Court accepted that the appellant's former counsel had not shown the appellant the police assistance letter before sentencing, had not taken instructions on it, and had not adduced evidence about the personal consequences the appellant suffered as a result of his cooperation. The Court found this conduct fell below the standard expected of competent counsel and that the sentencing judge had not been given a complete picture of the appellant's assistance.

The Court found that the sentencing judge was materially misled as to the significance of the assistance and the risks the appellant incurred. In particular, the Court concluded that while the controlled operation did not result in arrests, the appellant's efforts were genuine and substantial, and that he had experienced assaults in custody during the relevant period. However, the Court also found there was no evidence establishing a connection between those assaults and the assistance provided, and no basis to conclude that the appellant's cooperation had become known to those he assisted against.

On the question of the appropriate discount, the Court determined that an overall discount of 30 per cent was warranted, replacing the 20 per cent allowed below. The Court revised the indicative sentences accordingly and imposed a reduced aggregate sentence of seven years with a non-parole period of four years and five months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Colefax SC on 7 February 2019 quashed.
  • In lieu, the appellant sentenced to an aggregate term of seven years commencing 1 November 2017 and expiring 31 October 2024, with a non-parole period of four years and five months expiring 31 March 2022.

Key Takeaways

  • Counsel's failure to show an appellant the police assistance letter, take instructions on its contents, and adduce evidence of the personal consequences of cooperation constituted incompetence that caused a miscarriage of justice by leaving the sentencing court with an incomplete account of the assistance rendered.
  • A conviction for a miscarriage of justice on the incompetence ground does not require proof that counsel acted in bad faith; it is sufficient that the conduct fell below the standard of a competent practitioner and that the deficiency materially affected the sentencing outcome.
  • Where a controlled operation ends prematurely through circumstances outside an appellant's control, the genuineness and extent of effort expended during that operation remains a relevant consideration in calibrating the discount for assistance.
  • The absence of evidence linking custodial assaults to cooperation with authorities precluded any increase in the discount on that basis, even where the appellant held a genuine subjective belief in such a connection.
  • The Court of Criminal Appeal revised the total discount from 20 per cent to 30 per cent, producing a reduction in the aggregate sentence of one year, illustrating that incomplete evidence at first instance about assistance can produce a material sentencing error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193C
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Firearms Act 1996 (NSW), ss 50A, 51, 74

Cases
- HT v The Queen [2019] HCA 40; (2019) 374 ALR 216
- Hutchinson v R [2014] NSWCCA 317
- Nauer v R [2020] NSWCCA 174
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46