Citation: R v Pang [1999] NSWCCA 4 revised - 08/03/99 (reported at 105 A Crim R 474)
Court: NSW Court of Criminal Appeal
Date: 12 February 1999
Judge(s): Meagher JA; Wood CJ at CL; Barr J
Background
The appellant pleaded guilty in the District Court to being knowingly concerned in the importation of a commercial quantity of heroin, contrary to s 233B(1)(d) of the Customs Act 1901. His role was that of a courier: he collected, signed for, and delivered a consignment of approximately 2,495 grams of pure heroin (with an estimated street value of $3.5 million) that had been concealed inside hollowed-out computer instruction books.
The appellant was arrested as he was about to leave Australia. After initially denying involvement, he cooperated fully with the Australian Federal Police, providing frank and detailed statements and signing an undertaking to give evidence against several co-accused. The sentencing judge in the District Court acknowledged this assistance and applied reductions under the relevant Commonwealth provisions, ultimately imposing a head sentence of six years with a non-parole period of five years.
The appellant challenged that sentence on two grounds: that the discount given for his assistance was insufficient, and that no allowance had been made for the absence of remissions in the NSW criminal justice system when fixing the non-parole period.
Legal Issues
- Whether the sentencing judge allowed a sufficient discount for the appellant's assistance to authorities, including both his provision of information and his undertaking to give evidence against co-accused
- Whether the sentencing judge erred by failing to extend the s 16G remissions adjustment to the non-parole period, resulting in a non-parole period that was 83 per cent of the head sentence
Decision
The Court of Criminal Appeal accepted both grounds of appeal. On the question of the assistance discount, the Court found that the appellant's cooperation was of a high order. His statements were full and frank, his assistance with investigations was of real value, and his undertaking to give evidence against co-accused went beyond the mere provision of information. The 25 per cent discount applied by the sentencing judge did not adequately reflect the genuine and extensive nature of that cooperation.
The Court confirmed that there is no fixed tariff for assistance discounts, with reductions ranging between 20 and 50 per cent in the cases considered. However, the end result must not be so far removed from the objective gravity of the offence as to constitute an affront to the community. In the circumstances of this case, a 50 per cent discount was appropriate.
On the non-parole period, the Court held that the adjustment for the absence of remissions under s 16G of the Crimes Act 1914 (Cth) should flow through to the non-parole period, not just the head sentence. A non-parole period is ordinarily set at between 60 and 66 per cent of the head sentence, though no fixed rule applies. The non-parole period of five years represented 83 per cent of the six-year head sentence, which the Court found to be far too high and in excess of the proportion this Court had previously indicated was appropriate only for very serious cases.
Applying a 50 per cent discount to a starting point of ten years (with a non-parole period of seven years), the Court re-sentenced the appellant to five years imprisonment with a non-parole period of three years. The Court also stated, as required under s 21E of the Crimes Act 1914 (Cth), what sentence would have been imposed without any assistance, and what would have been imposed had the assistance been limited to providing information without an undertaking to give evidence.
Orders Made
- Application allowed
- Sentence imposed below quashed
- Sentence of imprisonment for five years with a non-parole period of three years imposed
Key Takeaways
- Involvement at any level of a drug importation offence must attract a significant sentence to serve the interests of general deterrence, regardless of the offender's position in the chain of culpability.
- There is no fixed discount for assistance to authorities: the reduction has ranged between 20 and 50 per cent, depending on the quality and extent of the cooperation, though the resulting sentence must not be so lenient as to constitute an affront to the community.
- Where an offender both provides information and undertakes to give evidence against co-accused, the combined value of that cooperation may justify a discount at the higher end of the range. In this case, a 50 per cent discount was warranted.
- The s 16G adjustment for the absence of remissions in NSW applies to both the head sentence and the non-parole period. A non-parole period that is 83 per cent of the head sentence will ordinarily be excessive, with 60 to 66 per cent representing the usual range (though no rigid rule governs the proportion in any individual case).
- In re-sentencing under s 21E of the Crimes Act 1914 (Cth), courts must record the notional sentence that would have been imposed without assistance, and may also indicate the sentence appropriate where assistance was limited to information alone, without an undertaking to give evidence.
Legislation and Cases Referenced
Legislation
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes Act 1914 (Cth), ss 16A, 16G, 21E
Cases
- Cartwright (1989) 17 NSWLR 243
- Gallagher (1991) 53 A Crim R 248
- Paull (1990) 20 NSWLR 427
- El Karhani (1990) 21 NSWLR 370
- Perrier and Richardson (1990) 59 A Crim R 164
- Ferrer-Esis (1991) 55 A Crim R 231
- Chu, NSWCCA, 16 October 1998 (unreported)
- Behar, NSWCCA, 14 October 1998 (unreported)
- Raz, NSWCCA, 17 December 1992 (unreported)
- Robertson, NSWCCA, 6 November 1998 (unreported)
- Bernier, NSWCCA, 19 May 1998 (unreported)
- Drazkiewicz, NSWCCA, 12 November 1993 (unreported)
- Bushell, NSWCCA, 17 July 1998 (unreported)