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Court of Criminal Appeal 23 August 2002

R v Cousins & Anor [2002] NSWCCA 340 revised - 11

[2002] NSWCCA 340

Also reported as (2002) 132 A Crim R 444
Drugs
SENTENCE APPEALS POSSESSION OF PRECURSOR SENTENCES NOT EXCESSIVE NO OTHER SENTENCE WARRANTED IN LAW APPEALS DISMISSED.

Citation: R v Cousins & Anor [2002] NSWCCA 340
Court: Court of Criminal Appeal, New South Wales
Date: 23 August 2002
Judge(s): Giles JA, Sperling J, Greg James J

Background

Two applicants, a married couple, each pleaded guilty in the Local Court at Grafton to possessing pseudoephedrine, a precursor chemical intended for use in the manufacture of a prohibited drug. Pseudoephedrine is found in common pharmaceutical products such as Sudafed and can be used to manufacture amphetamines. They were committed to the District Court at Grafton for sentencing.

The sentencing judge, Ducker DCJ, imposed terms of imprisonment of 3 years 2 months (non-parole period 1 year 8 months) on the first applicant and 2 years 8 months (non-parole period 1 year 4 months) on the second applicant. Both sentences were dated from 25 March 2002.

The applicants sought leave to appeal, arguing that the sentencing judge had erred in the way he approached their guilty pleas and, separately, that the sentences were manifestly excessive.

  • Whether the sentencing judge failed to give any discount for the guilty pleas, or gave a discount based on the wrong legal rationale
  • Whether the sentencing judge erred by declining to apply a discount for the objective utilitarian value of the guilty pleas, in light of the High Court's decision in Cameron v The Queen (which the sentencing judge followed) and before R v Sharma (which later clarified that Cameron had not displaced the utilitarian discount for NSW offences)
  • Whether, even if sentencing error was established, the sentences were manifestly excessive or should otherwise be varied under s 6(3) of the Criminal Appeal Act 1912

Decision

On the first issue, the Court of Criminal Appeal rejected the argument that the sentencing judge had given no guilty plea discount at all. Reading the reasons as a whole, Giles JA was satisfied that the 20 per cent reduction the sentencing judge announced was in fact applied when pronouncing each sentence. The reference to "subjective matters" in the judge's remarks when sentencing the first applicant was understood to encompass the plea-related considerations he had just described, not merely personal background factors.

On the second issue, the Court accepted that an error had occurred. The sentencing judge, following Cameron v The Queen, declined to give weight to the objective utilitarian value of the guilty pleas (the saving of public expense from a contested hearing). That approach was later found to have been wrong in R v Sharma, which held that Cameron had not overturned R v Thomson in its application to NSW offences, because s 22 of the Crimes (Sentencing Procedure) Act 1999 preserved the utilitarian discount. The sentencing judge had therefore been working from an erroneous legal premise when he characterised the utilitarian rationale as prohibited.

Despite that error, the Court found that the 20 per cent discounts actually applied were as large as could properly have been expected even under the correct approach. No different sentence was therefore warranted in law under s 6(3) of the Criminal Appeal Act 1912. That provision requires the Court to form a positive opinion that some other sentence should have been passed before it can intervene; identifying error alone is insufficient. The sentences were not manifestly excessive on the objective facts of the offending.

One procedural correction was required. The sentencing judge had omitted to make a formal order directing the release of the second applicant on parole at the expiry of her non-parole period, as required by s 50 of the Crimes (Sentencing Procedure) Act 1999 because her sentence was under three years. The Court of Criminal Appeal made that order.

Orders Made

  • Leave to appeal granted in each case
  • Appeals dismissed in each case, subject to the following order
  • Order that the applicant Patricia Grenda Cousins be released from custody on 24 July 2003

Key Takeaways

  • Establishing sentencing error does not automatically lead to a different sentence on appeal. Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must form a positive opinion that some other sentence is warranted in law and should have been passed before it can substitute a new sentence.

  • A sentencing judge's application of the wrong legal rationale for a guilty plea discount does not require resentencing if the discount actually given was as much as the correct approach would have produced.

  • The decision illustrates the transitional uncertainty created between Cameron v The Queen [2002] HCA 6 and R v Sharma [2002] NSWCA 142. Sentencing judges who followed Cameron by excluding the utilitarian rationale were found to have erred once Sharma confirmed that s 22 of the Crimes (Sentencing Procedure) Act 1999 preserved the utilitarian discount for NSW State offences.

  • Under R v Thomson and as confirmed in R v Sharma, the appropriate range for a guilty plea discount in NSW remained ten to twenty-five per cent, anchored in part by pragmatic considerations about saving public resources, notwithstanding the reformulated language in Cameron.

  • Where a sentence of less than three years is imposed, s 50 of the Crimes (Sentencing Procedure) Act 1999 requires a formal order directing release on parole at the end of the non-parole period. Omitting that order is a procedural error the appellate court will correct.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1986 (NSW), s 24A(1) and s 33AB
- Drug Misuse and Trafficking Act Regulations (NSW), cl 7A
- Crimes Legislation Further Amendment Act 2000 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 50
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Cameron v The Queen [2002] HCA 6; 76 ALJR 382
- R v Sharma [2002] NSWCA 142
- R v Thomson (2000) 49 NSWLR 383
- R v Astill (No 2) (1992) 64 A Crim R 289
- R v Cocking [1999] NSWCCA 311