Citation: Jones (a pseudonym) v R [2021] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 22 September 2021
Judges: McCallum JA, Hamill J, and Cavanagh J
Background
The applicant pleaded guilty in the District Court to supplying a large commercial quantity of methylamphetamine (approximately 19.86 kg) and a separate count of supplying ephedrine in an indictable quantity. The offending came to light after a police officer conducting a random breath test stopped the applicant's vehicle in rural New South Wales and discovered the drugs during a search. A pseudonym was assigned to the applicant, and extensive suppression orders were made given the sensitive nature of some of the proceedings.
The sentencing judge accepted the applicant's remorse and early plea, applying a 25% discount for utilitarian value. His Honour also applied an additional 10% discount for assistance provided by the applicant to the authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), resulting in a total discount of 35%. The overall sentence imposed was 9 years and 3 months imprisonment with a non-parole period of 6 years and 9 months.
The applicant appealed on a single ground: that he was denied procedural fairness because confidential material describing the nature and extent of his assistance to the authorities was provided to the sentencing judge by the Crown, but was not made available to his own legal representatives.
Legal Issues
- Whether the applicant was denied procedural fairness when confidential assistance material was provided to the sentencing judge without being disclosed to the applicant's legal representatives
- Whether the principles established by the High Court in HT v The Queen [2019] HCA 40 required the defence to have access to that material
- Whether, if procedural fairness was denied, the sentence should be set aside and the matter remitted for resentencing
Decision
The Court of Criminal Appeal allowed the appeal. It found that the procedure adopted at sentencing, whereby the Crown provided the assistance material directly to the judge without disclosing it to the applicant's lawyers, was inconsistent with the requirements of procedural fairness as confirmed by the High Court in HT v The Queen.
In HT v The Queen, the High Court held that an offender's legal representatives must have access to material placed before a sentencing court about assistance to authorities, so that they can make submissions about it. The rationale is that the offender should have the opportunity to address, supplement, or correct the material that a court is using to determine a potentially significant aspect of the sentence. In this case, the applicant's counsel was expressly told at the hearing that the assistance material had been provided to the judge but would not be disclosed to the defence.
The Court noted that the sentencing judge had assessed the assistance as "very significant and very useful" and had applied only a 10% discount on that basis. The denial of procedural fairness meant the applicant's representatives had no opportunity to make submissions that might have persuaded the sentencing judge to apply a more generous discount. The Court found this constituted a material denial of procedural fairness and set the sentence aside, remitting the matter to the District Court for resentencing.
Orders Made
The full orders extracted from the judgment were suppression and pseudonymity orders rather than the core appeal orders. The key orders and directions made were:
- No further publication of the applicant's name or identifying details in connection with these proceedings
- Court listings to use a pseudonym or anonymous initials
- Any judgment to use a pseudonym or anonymous initials (the pseudonym assigned was "Bill Jones")
- No publication of evidence or submissions relating to the nature of the applicant's assistance, or details as to his location or his family's location
- The above suppression orders to operate throughout the Commonwealth of Australia for 50 years or until further order
- Prior orders made by Button J on 19 February 2021 extended to all material in Confidential Exhibit 1
- The appeal was allowed, the sentence set aside, and the matter remitted to the District Court for resentencing
Key Takeaways
- The Court of Criminal Appeal confirmed that the principles in HT v The Queen apply directly to situations where confidential assistance material is tendered to a sentencing court: an offender's legal representatives must have access to that material so they can make submissions about it.
- Procedural fairness at sentencing is not satisfied by a judge independently reviewing confidential material and forming their own view of its weight, without giving the defence any opportunity to address it.
- Where assistance to authorities attracts only a partial discount, denial of access to the underlying material may be a material error, because the defence is deprived of the opportunity to advocate for a higher discount.
- The appropriate remedy for a procedural fairness denial of this kind was to allow the appeal, set aside the sentence, and remit the matter for resentencing, rather than for the Court of Criminal Appeal to resentence the applicant itself.
- Suppression orders covering sensitive assistance material can operate for extended periods and across all Australian jurisdictions under the Court Suppression and Non-publication Orders Act 2010 (NSW), where the statutory grounds under s 8(1) are established.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(m), 23
- Criminal Appeal Act 1912 (NSW), s 12(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 33
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 10, 11
Cases:
- HT v The Queen (2019) 93 ALJR 1307; [2019] HCA 40
- R v Birks (1990) 19 NSWLR 677; (1990) 48 A Crim R 385
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6