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12
Court of Criminal Appeal 2 October 2002

R v Bourchas [2002] NSWCCA 373 revised - 29

[2002] NSWCCA 373

Also reported as (2002) 133 A Crim R 413
Drugs
SENTENCING ASSISTANCE TO AUTHORITIES TENDERED IN SENTENCING HEARING WHETHER ADMITTED ON THAT BASIS OFFENDER RESENTENCED.

Citation: R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413
Court: NSW Court of Criminal Appeal
Date: 2 October 2002
Judge(s): Giles JA, Levine J, Sperling J

Background

The appellant pleaded guilty to attempting to obtain possession of a commercial quantity of imported heroin (14.768 kilograms at an average purity of 66.4%, with a street value of approximately $10 million). His role was to pose as a courier company employee, collect a consignment at a freight forwarding agency, and extract the concealed heroin. He had performed similar collections on three prior occasions.

Following his arrest, the appellant gave a statement to investigating and prosecuting authorities. That statement was provided on the understanding it would not be used against him. The statement was nonetheless tendered by the Crown at the sentencing hearing in the District Court. The sentencing judge admitted the statement and, critically, used information in it to assess the appellant's criminality more harshly.

The appellant was sentenced to 8 years and 6 months imprisonment with a non-parole period of 5 years and 1 month. He sought leave to appeal, arguing that the sentencing judge misused the statement against him and failed to give adequate credit for the substantial assistance he had provided to authorities.

  • Whether a statement given to authorities on a promise it would not be used against the maker could be admitted and relied upon at the sentencing hearing over the offender's objection.
  • What evidentiary regime governs admissibility rulings at sentencing hearings.
  • Whether, even if admitted, the statement could be used to increase the assessed seriousness of the offender's conduct.
  • Whether the sentencing judge gave an insufficient discount for the appellant's assistance to authorities.
  • Whether the appellant's resistance to the use of the statement could legitimately be counted against him at sentencing.

Decision

The Court of Criminal Appeal found that the sentencing judge erred in using the contents of the statement against the appellant. The statement had been given on an explicit promise that it would not be used against him, and that promise had to be honoured. Whatever the admissibility question, relying on the statement to aggravate the assessment of the appellant's criminality was impermissible.

On the discount for assistance, the Court found the reduction granted at first instance was insufficient. The appellant had not only provided information but had subsequently given evidence for the Crown at the trial of a co-accused (a man named Chen), who was convicted as a result. The Court considered this post-sentencing assistance, alongside the guilty plea entered at the first reasonable opportunity, and calculated a combined discount of approximately 65 per cent from the appropriate head sentence. The Court divided the 50 per cent reduction attributed to assistance into 30 per cent for past assistance and 20 per cent for future assistance.

The Court also addressed whether the appellant's resistance to use of the statement could be treated as a mark against him. The judgment does not endorse that approach, treating it as an additional element in the chain of error at first instance.

After recalibrating the sentence, the Court arrived at a term of 4 years and 11 months imprisonment with a non-parole period of 3 years, noting the sentence remained consistent with those imposed on co-offenders when adjusted for the appellant's greater level of assistance to authorities.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • Appellant sentenced to imprisonment for 4 years and 11 months, commencing 9 April 2000 and expiring 8 March 2005.
  • Non-parole period fixed at 3 years, commencing 9 April 2000 and expiring 8 April 2003.

Key Takeaways

  • A statement given to authorities under a promise it would not be used against the maker cannot properly be relied upon to aggravate the assessed seriousness of that person's offending at sentencing, even if the statement is admitted into evidence.
  • The Court of Criminal Appeal confirmed that assistance to authorities provided after the original sentencing (including giving evidence that leads to a co-accused's conviction) is a relevant consideration when an appellate court resentences an offender.
  • Where multiple errors infect a sentence, including improper aggravation and an inadequate assistance discount, the cumulative effect can produce a manifestly excessive outcome warranting appellate intervention.
  • A combined discount for guilty plea and assistance to authorities of approximately 65 per cent was applied in this case, with the Court expressing the view that a greater reduction would have failed to reflect the objective seriousness of the offence (which carried a maximum of life imprisonment and involved nearly 10 kilograms of pure heroin).
  • Consistency with co-offenders' sentences remained a relevant check on the resentenced term, adjusted to reflect the differing levels of assistance each had provided to authorities.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(c)

Cases cited:
- The Queen v Olbrich (1999) 199 CLR 220
- Siganto v The Queen (1998) 194 CLR 656
- Ugle v The Queen (1989) 167 CLR 647
- Doggett v R [2001] HCA 46
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- R v Cartwright (1989) 17 NSWLR 243
- R v Gallagher (1991) 23 NSWLR 220
- R v Toma [1999] NSWCCA 350
- Meggett (1999) 107 A Crim R 257
- Potter (1994) 72 A Crim R 108
- R v Many (1990) 51 A Crim R 54
- R v Amaral (CCA, 4 August 1992, unreported)
- R v Raz (CCA, 17 December 1992, unreported)
- R v Watson (CCA, 3 June 1992, unreported)
- Transport and General Insurance Co Ltd v Edmondson (1961) 106 CLR 23
- Jones v Sutherland Shire Council (1979) 2 NSWLR 206