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Court of Criminal Appeal 29 June 1999

REGINA v N [1999] NSWCCA 187 revised - 30

[1999] NSWCCA 187

Also reported as (1999) 106 A Crim R 493
Drugs
SENTENCE RELEVANCE OF ENTRAPMENT THREATS BY POLICE INFORMER ASSISTANCE TO AUTHORITIES SENTENCE REDUCED

Citation: Regina v N [1999] NSWCCA 187
Court: New South Wales Court of Criminal Appeal
Date: 29 June 1999
Judge(s): Spigelman CJ, Adams J, Dunford J

Background

The appellant was a woman who, while serving periodic detention for a prior heroin supply offence, was approached by a police agent at her community service placement. The agent repeatedly pressured her to supply heroin to an undercover police officer, despite her ongoing refusals. She ultimately acquiesced and was charged with supply of a prohibited drug (heroin) on two occasions in mid-to-late 1997, the first involving a small sample quantity supplied as a precursor to the second, larger transaction.

At trial before a judge alone in the District Court, the appellant sought to have evidence excluded on entrapment grounds, arguing the agent's conduct was so improper that public policy required exclusion and an acquittal. That argument was rejected. She pleaded not guilty but was convicted, and on 4 September 1998 she was sentenced to 42 months imprisonment, comprising a minimum term of 28 months and an additional term of 14 months.

On appeal, the appellant challenged the sentence as excessive, pointing to the sentencing judge's findings that she had indeed been subjected to the pressure applied by the informer, and arguing those findings were not adequately reflected in the penalty imposed.

  • Whether the sentencing judge misapplied section 5 of the Sentencing Act 1989 in calculating the ratio between the minimum term and the additional term
  • Whether the failure to impose and express separate sentences for each charge in the indictment constituted error
  • Whether the appellant's culpability was materially diminished by the conduct of the police informer in pressuring her to commit the offences
  • What weight entrapment-like circumstances and informer threats should carry at the sentencing stage

Decision

The Court of Criminal Appeal found that the sentencing process had miscarried on two procedural grounds. First, the sentencing judge appeared to apply the additional term as a fraction of the total sentence rather than of the minimum term, as section 5 of the Sentencing Act 1989 requires. Second, the judge had not expressly addressed and recorded separate sentences for each charge, contrary to the approach endorsed in Pearce v The Queen. The Court emphasised that the serious limitation of a person's liberty must not be left ambiguous or uncertain.

Beyond those technical errors, the Court found a more substantive failing. The sentencing judge had expressly accepted the appellant's evidence that she was approached at her community service placement and subjected to repeated and significant pressure by the police informer. That finding was unchallenged by the Crown. Despite accepting those facts, the sentence did not adequately reflect the significant reduction in culpability those circumstances warranted.

Adams J applied the principle from R v Touk that where there is a real possibility that an offender would not have committed the crime but for the assistance, encouragement or incitement of police agents, and where that involvement diminishes culpability, the sentence must respond accordingly. Spigelman CJ agreed, noting that the accepted evidence significantly diminished the appellant's culpability in the particular circumstances of the case.

The Court set aside the original sentence and imposed a substantially reduced term, finding the original 42-month sentence excessive when measured against the full picture of how the offending came about.

Orders Made

  • The sentence imposed below was quashed.
  • A new sentence of 20 months imprisonment was substituted, comprising a minimum term of 15 months commencing 4 September 1998 and expiring 3 December 1999, and an additional term of 5 months commencing 4 December 1999 and expiring 3 May 2000.
  • The appellant was ordered to be released to parole at the expiration of the minimum term.

Key Takeaways

  • Where a sentencing judge expressly accepts that an offender was subjected to repeated pressure by a police informer acting in connection with law enforcement, that finding must be meaningfully reflected in the sentence imposed; failing to do so constitutes appealable error.
  • The principle confirmed in R v Touk holds that entrapment-like conduct by police or their agents does not necessarily require acquittal but can significantly diminish an offender's culpability at the sentencing stage.
  • Under section 5 of the Sentencing Act 1989, the additional term is calculated as a fraction of the minimum term, not of the total sentence; applying the ratio to the total is a legal error.
  • Sentencing judges dealing with multiple charges in a single indictment are required to express sentences individually for each charge and to address how they are to be served, in accordance with the approach endorsed in Pearce v The Queen; ambiguity in the structure of a sentence is itself an error.
  • Accepting unchallenged evidence that a police informer procured an offender's participation through persistent inducement is a very material factor that an appellate court will weigh afresh when re-exercising sentencing discretion.

Legislation and Cases Referenced

Legislation
- Sentencing Act 1989 (NSW), s 5

Cases
- Pearce v The Queen (1998) 156 ALR 684
- Ridgeway v The Queen (1995) 78 A Crim R 307
- Regina v Salem (unreported, NSW CCA, 3 October 1997)
- R v Williamson (1972) 2 NSWLR 281
- R v Abusifah (1991) 24 NSWLR 531
- R v Touk (1993) 65 A Crim R 387