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Court of Criminal Appeal 28 May 1999

R-v-CASSAR [1999] NSWCCA 152 revised - 18

[1999] NSWCCA 152

Drugs
CASES CITED: VEEN NO. 2 164 CLR 465

Citation: R v Cassar [1999] NSWCCA 152
Court: NSW Court of Criminal Appeal
Date: 28 May 1999
Judge(s): Barr J; McInerney AJ

Background

The appellant was convicted after a jury trial in the District Court of supplying a large commercial quantity of heroin, specifically 3.36 kilograms. He and a co-offender were found to have leased premises under false identities to use as a storage house for the drugs, which had an estimated retail value of approximately $3.9 million. Both were convicted following a trial before Rummery DCJ.

At sentence, the trial judge imposed a total sentence of eleven years on the appellant, comprising a minimum term of eight years and three months and an additional term of two years and nine months. The co-offender received a total sentence of nine and a half years, with a minimum term of five and a half years. The appellant appealed both his conviction and his sentence.

The conviction appeal was abandoned before the hearing. The sentence appeal proceeded on three grounds: that the judge had relied on a factual error about the appellant's parole status; that the disparity between the sentences of the two co-offenders was excessive and unjustified; and that the judge had failed to give any weight to evidence that the appellant faced safety risks in custody and would serve much of his sentence in protective custody.

  • Whether the sentencing judge erred by treating the offending as having been committed while on parole, when this was factually incorrect, and failed to adjust the sentence after being corrected on that point.
  • Whether the disparity between the sentence imposed on the appellant and that imposed on the co-offender was so excessive as to warrant intervention by the Court of Criminal Appeal.
  • Whether the sentencing judge gave adequate consideration to the appellant's need to serve his sentence in protective custody due to safety concerns.

Decision

The Crown conceded the first ground. The sentencing judge had found that the offence was committed while the appellant was on parole, treating that as an aggravating factor. When the error was brought to the judge's attention, his Honour declined to alter the sentence. McInerney AJ held this was sufficient to warrant intervention, and the Court assessed an appropriate discount for that error at one year off the minimum term.

On the parity question, the Court noted some tension in the trial judge's reasoning. The judge had initially found that the criminality of both offenders was equal, yet also made a finding, described by McInerney AJ as "somewhat surprising," that the co-offender played a more rudimentary role. The Court approached the matter on the basis that the judge had treated both offenders as equally culpable, making the three-year gap in minimum terms difficult to justify on the face of the sentencing remarks.

The Court also noted that the trial judge failed to give any identifiable weight to evidence that the appellant would spend a significant portion of his sentence in protective custody due to fears for his safety. This was a relevant factor that the sentencing judge appeared to have overlooked entirely.

The Court allowed the sentence appeal and substituted a total sentence of ten years, comprising a minimum term of seven years and six months and an additional term of two years and six months. The Court also quashed a parole supervision order requiring the appellant to comply with directions from the NSW Protection Service, finding the trial judge had no power to impose that condition.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted; appeal allowed.
  • Original sentence quashed.
  • Appellant sentenced to penal servitude for ten years: minimum term of seven years and six months commencing 16 June 1997 and expiring 15 December 2004; additional term of two years and six months commencing 16 December 2004 and expiring 15 June 2007.
  • Appellant eligible for release on parole on 15 December 2004.
  • Trial judge's parole supervision directions quashed (made without power).

Key Takeaways

  • A sentencing court's reliance on an erroneous factual finding, here that the offending occurred while the appellant was on parole, can constitute a ground for appellate intervention, particularly where the judge declined to correct the sentence after the error was identified.
  • Where a sentencing judge finds co-offenders to be equally culpable, a significantly larger minimum term for one offender requires clear justification; an unexplained three-year disparity in minimum terms will attract scrutiny on a parity ground.
  • Evidence that a prisoner will serve a substantial portion of a sentence in protective custody due to genuine safety fears is a relevant sentencing consideration, and a failure to give it any weight may support appellate intervention.
  • The Court of Criminal Appeal confirmed that a sentencing judge in the District Court has no power to impose conditions requiring supervision by the NSW Protection Service as part of a parole order; such a direction is beyond jurisdiction and will be quashed.
  • In dismissing the conviction appeal and allowing only the sentence appeal, the Court reduced the total sentence by one year, reflecting a targeted discount for the specific error identified rather than a broader reassessment.

Legislation and Cases Referenced

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465

Legislation:
- No specific legislation was identified in the provided text, though the maximum penalty for large commercial drug supply was noted as 25 years' penal servitude.