Citation: R v Ka Chung Li [2000] NSWCCA 551 revised 25/05/2001
Court: NSW Court of Criminal Appeal
Date: 8 December 2000
Judge(s): Mason P, Hidden J, Carruthers AJ
Background
The appellant, a 20-year-old man originally from Hong Kong, pleaded guilty in the District Court to supplying a commercial quantity of heroin. He was arrested after being observed carrying a shopping bag containing approximately 700 grams of heroin (around 540 grams pure) on public transport in Sydney. His admitted role was that of a "runner," tasked with delivering the drug to a contact in Hurstville for $250.
The District Court sentenced him to six years' imprisonment under the then-applicable Sentencing Act 1989, comprising a minimum term of three years from 2 March 1999 and an additional term of three years. The sentencing judge took into account his guilty plea, contrition, youth, absence of prior convictions, and difficult personal circumstances, and found special circumstances justifying the equal division between minimum and additional terms.
The appeal concerned whether the sentencing judge had properly credited the appellant for assistance he provided to police following his arrest.
Legal Issues
- Whether the sentencing judge erred by failing to give the appellant any discount for the assistance he provided to authorities after his arrest
- Whether, even where error is identified, the Court of Criminal Appeal should intervene and what adjustment, if any, was warranted
Decision
The day after his arrest, the appellant gave police information about a man known as "Michael," whom he identified as a partner of co-accused Arthur Wan in drug distribution. He took police to a street in Ultimo and identified a block of units where he believed Michael lived. He also indicated a willingness to speak to police again if needed.
Before the sentencing judge, the Crown's written submissions incorrectly asserted that the appellant had given an oral undertaking to give evidence against his co-accused but had since declined. The Court of Criminal Appeal found there was no evidence of any such undertaking. Despite this, the sentencing judge appeared to treat the absence of ongoing cooperation as a reason to discount the value of the assistance actually given. His Honour made no mention of the assistance the appellant did provide.
Hidden J, with whom Mason P and Carruthers AJ agreed, found that the appellant was entitled to some leniency for the assistance he provided, regardless of whether that information had proved fruitful. The applicable framework at the time was s 442B(3)(c) of the Crimes Act 1900 (now repealed), read alongside the Court of Criminal Appeal's own decision in R v Cartwright. The sentencing judge had fallen into error, though Carruthers AJ noted this was not through any fault of his own, but arose from the way the material had been presented by those appearing before him.
The Court was satisfied that intervention was warranted, though it noted the original sentence was not harsh given the seriousness of the offence. Any substantial adjustment would have produced a sentence insufficient to reflect the criminality involved. The Court therefore made a modest reduction.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentence imposed in the District Court quashed
- In lieu, the appellant sentenced to imprisonment for five years from 2 March 1999, with a non-parole period of two and a half years
Key Takeaways
- A sentencing court errs by giving no weight to actual assistance rendered to authorities simply because the offender did not go further and offer to give evidence against a co-accused, particularly where no undertaking to give evidence was ever made.
- Under s 442B(3)(c) of the Crimes Act 1900 (as it then stood), and consistent with R v Cartwright, an offender is entitled to some credit for assistance provided to police even if the information ultimately proves fruitless.
- Inaccurate material placed before a sentencing judge by counsel can produce appealable error even where the judge bears no personal fault; Carruthers AJ specifically noted the sentencing judge was not to blame.
- The Court of Criminal Appeal will intervene on a sentence appeal only where error is established and it is persuaded that a different sentence was warranted in law, not merely on the basis of error alone.
- Where intervention is warranted but a substantial reduction would produce an inadequate sentence, the Court will make only a modest adjustment to correct the identified error.
Legislation and Cases Referenced
Legislation:
- Sentencing Act 1989 (NSW) (now repealed)
- Crimes Act 1900 (NSW), s 442B (now repealed)
Cases:
- R v Cartwright (1989) 17 NSWLR 243