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Court of Criminal Appeal 24 May 2002

R v W [2002] NSWCCA 192 revised - 27

[2002] NSWCCA 192

Also reported as (2002) 129 A Crim R 400
Drugs
PLEA OF GUILTY DISCOUNT ON SENTENCE FOR GUILTY PLEA ASSISTANCE TO AUTHORITIES DISCOUNT FOR ASSISTANCE 25% DISCOUNT INADEQUATE NON

Citation: R v W [2002] NSWCCA 192; (2002) 129 A Crim R 400
Court: NSW Court of Criminal Appeal
Date: 24 May 2002
Judge(s): Sheller JA, Levine J, Simpson J

Background

The applicant pleaded guilty in the District Court to being knowingly involved in the importation of not less than a traffickable quantity of methylamphetamine, an offence under the Customs Act 1901 (Cth) carrying a maximum penalty of 25 years' imprisonment. The offence involved two shipping containers from China concealing over 66 kilograms (pure weight) of methylamphetamine, with an estimated street value of $24 million. The applicant's role was to cut open the modified metal struts of the containers, extract the drugs, reweld the metal, and deliver the packages to various Sydney locations. He held relevant trade qualifications and acted under the direction of an overseas organiser he had known for many years.

Police had already identified the importation, removed the bulk of the drug, and replaced it with an inert substance before the applicant carried out his assigned task. He was arrested on 10 December 2000 while under continuous surveillance. The following day he agreed to cooperate with police and subsequently provided extensive assistance, including a detailed statement implicating other offenders, signing an undertaking to give evidence for the Crown.

Shadbolt DCJ sentenced the applicant to seven years' imprisonment with a non-parole period of five years and three months. The sentencing judge applied a 50% reduction overall, attributing 25% specifically to the applicant's assistance to authorities. The applicant sought leave to appeal, challenging both the adequacy of the discount for assistance and the ratio of the non-parole period to the head sentence.

  • Whether the 25% discount applied for assistance to authorities adequately reflected the level and value of that assistance
  • Whether fixing the non-parole period at 75% of the head sentence was erroneous, given that the ordinary ratio falls between 60% and 66.67%
  • Whether additional subjective material presented on appeal, including family hardship, should influence resentencing

Decision

The Court of Criminal Appeal upheld the head sentence of seven years, finding that the seriousness of the offence and the nature of the applicant's participation meant interference with the head sentence was not justified. The sentencing judge had described the offence as among the most serious of its type, and the Court accepted that any lesser head sentence would be an affront to community standards.

On the discount for assistance, the Court examined the sealed material describing the applicant's cooperation and found it disclosed a very high level of assistance. However, the Court ultimately concluded that, despite the inadequacy of the 25% discount in reflecting that assistance, this could not translate into a reduction of the head sentence, as a lesser term would not be appropriate given the objective gravity of the offending.

The Court did find error in the non-parole period. The ordinarily accepted ratio of non-parole period to head sentence is between 60% and 66.67%. A ratio of 75%, as fixed by the sentencing judge, requires specific justification. The Court found that the circumstances identified by Shadbolt DCJ did not justify that departure from the norm, and that the sentencing judge's reasoning in this respect was flawed.

On the additional subjective material concerning family hardship, Simpson J applied the principle from R v Edwards (1996) that hardship to third parties, including family members, is only a relevant sentencing factor in highly exceptional circumstances or where refusal to take it into account would be effectively inhuman. The Court did not consider those circumstances were met here, and the new material did not alter the resentencing outcome beyond the correction to the non-parole period.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; the sentence imposed by Shadbolt DCJ quashed
  • In lieu thereof, the applicant sentenced to imprisonment for seven years with a non-parole period of four years and seven months

Key Takeaways

  • The Court of Criminal Appeal confirmed that a non-parole period set at 75% of the head sentence departs from the ordinary range of 60% to 66.67% and requires specific, articulable justification from the sentencing court.
  • Where such justification is not established, the elevated non-parole period ratio constitutes a sentencing error amenable to correction on appeal, even where the head sentence itself remains undisturbed.
  • A high level of assistance to authorities may be recognised as inadequately discounted by a sentencing court, yet still not justify reducing an otherwise appropriate head sentence where objective gravity of the offence is extreme.
  • Under the principle in R v Edwards (1996), hardship suffered by an offender's family is only a proper sentencing consideration in highly exceptional circumstances, or where declining to take it into account would be effectively inhuman.
  • Sealed material describing the nature and extent of an offender's cooperation with authorities can be reviewed by an appellate court in assessing whether the sentencing discount for assistance was appropriate.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes Act 1914 (Cth), ss 16A(1), 21E

Cases
- R v Cartwright (1989) 17 NSWLR 243
- R v Thomson and Houlten [2000] NSWCCA 309; 49 NSWLR 383
- R v Raz, unreported, NSWCCA, 17 December 1992
- R v Bugeja [2001] NSWCCA 196, unreported, 11 May 2001
- R v Edwards (1996) 90 A Crim R 510