Macallister (a pseudonym) v R [2020] NSWCCA 306

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Macallister (a pseudonym) v R [2020] NSWCCA 306 Hearing dates: 2 November 2020 Decision date: 25 November 2020 Before: Leeming JA at [1] Bellew J at [2] Wright J at [102] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed on the applicant in the District Court is quashed. (4) In lieu thereof, the applicant is sentenced to imprisonment for 7 years and 6 months commencing on 28 August 2016 and expiring on 27 February 2024. (5) Specify a non-parole period of 4 years and 7 months' imprisonment commencing on 28 August 2016 and expiring on 27 March 2021. (6) Pursuant to s16AC(2)(a) of the Crimes Act 1914 (Cth), state that the sentence is being reduced because the applicant has undertaken to co-operate with law enforcement agencies. (7) Pursuant to s16AC(2)(b) of the Crimes Act 1914 (Cth), specify that but for the reduction made on account of the applicant's undertaking to co-operate with law enforcement agencies, the sentence that would have been imposed would have been one of 12 years and 9 months' imprisonment. Catchwords: CRIMINAL LAW – Offences – Sentence – Appeal – Applicant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug – Where applicant had assisted the authorities by making an induced statement outlining the circumstances of the importation and his involvement in it – Statement far more detailed than the facts tendered on sentence – Where Crown tendered the applicant's statement in the context of his assistance – Failure on the part of both the Crown and counsel then appearing for the offender to address the issue of the use to which the statement could be put by the sentencing judge – Where the sentencing judge made a series of findings based on the statement as to the applicant's role and his level of criminality in comparison with his co-offenders – Where those findings were adverse to the applicant – Error established CRIMINAL LAW – Offences – Sentence – Appeal – Applicant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – Objectively serious offending involving the importation of sixteen times the commercial quantity of cocaine – Where applicant pleaded guilty and expressed genuine contrition – Where applicant co-operated with law enforcement and provided a high level of assistance extending to promised future assistance – Where applicant had fears for his personal safety arising out of his assistance to authorities – Where applicant's criminality at a substantially higher level than either co-offender – Applicant re-sentenced CRIMINAL LAW – Practice and procedure – Use which can be made on sentence of an induced statement which has been made by an offender for the primary purpose of assisting the authorities – Necessity for both the Crown and defence to be clear at the time of tendering the statement as to the use to which it is intended that such statement be put – Observations as to the obligations on both the Crown and the defence to assist a sentencing judge – Observations as to the basis on which the sentence hearing should properly have been conducted Legislation Cited: Criminal Code 1995 (Cth) Crimes Act 1914 (Cth) Cases Cited: Govindaraju v R [2011] NSWCCA 255 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Gwardys v R [2019] NSWCCA 62 JMS v R [2010] NSWCCA 229 Klomfar v R [2019] NSWCCA 61 Lowe v The Queen (1984) 145 CLR 606; [1984] HCA 46 OS1 v R [2012] NSWCCA 102 PC v R [2020] NSWCCA 147 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v Bourchas (2002) 133 A Crim R 413; [2002] NSWCCA 373 R v Chen & Ors (2002) 130 A Crim R 300; [2002] NSWCCA 174 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Leroy [1984] 2 NSWLR 441 R v Lopez-Alonso (1996) 86 A Crim R 270 R v Nguyen; R v Pham [2010] 205 A Crim R 106; [2010] NSWCCA 238 R v NP [2003] NSWCCA 195 R v Pang (1999) 105 A Crim R 474; [1999] NSWCCA 4 R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Macallister (a pseudonym) – Applicant Regina – Respondent Representation: Counsel: M Ramage QC – Applicant B Anniwell – Respondent