New South Wales Court of Criminal Appeal CITATION : Regina v Atkinson [2001] NSWCCA 342 FILE NUMBER(S) : CCA 60631/00 HEARING DATE(S) : 10 August 2001 JUDGMENT DATE : 10 August 2001 PARTIES : Brent Raymond Atkinson (Applicant) Regina (Respondent) JUDGMENT OF : Spigelman CJ at 14,16; Grove J at 15; Einfeld AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0271 LOWER COURT JUDICIAL Hosking DCJ OFFICER : COUNSEL : E Fullerton SC (Applicant) M Cinque (Respondent) SOLICITORS : Legal Aid Commission (Applicant) Director of Public Prosecutions (Cth) (Respondent) Customs Act 1901 (Cth) LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 (NSW) Crimes Act 1914 (Cth) Wong and Leung (1999) 48 NSWLR 340 Ryan v R (2001) 179 ALR 193 R v Ellis (1986) 6 NSWLR 603 CASES CITED: Rv Raz (unreported, NSWCCA, 17 December 1992) Perrier and Richardson (1990) 59 A Crim R 164 R v S [2000] NSWCCA 13 R v K [2000] NSWCCA 73 DECISION : Leave to appeal granted; Appeal allowed IN THE COURT OF CRIMINAL APPEAL 60631/00 SPIGELMAN CJ GROVE J EINFELD AJ 10 AUGUST 2001 REGINA v BRENT RAYMOND ATKINSON JUDGMENT 1 EINFELD AJ: The appellant seeks leave to appeal out of time against a sentence imposed by Judge Hosking in the District Court on 28 July 2000. 2 He had pleaded guilty before a magistrate to two narcotic charges. The first was possession of approximately 800 grams of cocaine in contravention of section 233B of the Customs Act 1901 (Cth), the maximum penalty for which is twenty-five years imprisonment and a fine of $100,000. The second guilty plea concerned the supply of around 2.2 kilograms of cocaine in breach of section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), carrying a maximum penalty of life imprisonment. The cocaine was about 57 per cent pure, meaning that the 800 grams of mixture became about 470 grams of pure narcotic. The appellant was apprehended on 13 September 1999 and the charges relate to events which occurred in the three preceding months. He is now thirty-nine years of age. 3 For the first offence his Honour imposed a sentence of seven and a half years imprisonment with a non-parole period of four and a half years. The sentence for the second charge was a fixed term of four and a half years to be served concurrently, as was agreed by the Crown to be appropriate in the circumstances. The imprisonment was to date from the appellant's arrest. 4 This incarceration regime has been the applicable guideline as understood at the time, but it did not accord with the decision of this Court in Wong and Leung (1999) 48 NSWLR 340 which laid down for couriers and the like a term of eight to twelve years for two to three and a half kilograms of pure cocaine. Here the amount of pure substance was somewhat less than one and a half kilograms. This fact requires a conclusion that the learned sentencing judge erred in determining the principles applicable to the fixing of the head sentence by considering the total quantity of substance rather than, as is required by statute, the quantity of pure drug. This error means that the sentencing of this appellant may be considered afresh by this Court. I agree nonetheless with his Honour's observation that the objective gravity of these offences is considerable. 5 It has at all times been common ground that the appellant has rendered considerable assistance to investigating police. In the first instance, his original arrest occurred in the context of the discovery at his then abode of less than 1 gram of cocaine, but the appellant promptly took police to other premises of which they were not aware where the drug which forms the basis of the first charge was located. Without this admission, this cocaine would not have been found. The second charge also arose from an admission, this time made in a formal police interview which was recorded, that the cocaine seized earlier was part of a recent importation of two and a half kilograms and the supply of what appears to be almost 3 kilograms of cocaine in all. The appellant had already sold what was called "a good 20 ounces", that is more than half a kilogram, for $70,000 to $80,000 and a further half a kilogram obtained from other sources which he had sold three months earlier for around $100,000. Again, in the absence of this admission, the appellant would not have faced this supply charge. 6 Furthermore, the appellant agreed to assist police with their ongoing investigations into the activities of the importers of the cocaine and signed an undertaking under section 21E of the Crimes Act 1914 (Cth) to give evidence against other persons then to be charged. He is in protective custody as a consequence of the risks he has thereby assumed. This adds another element of hardship to the incarceration itself. 7 It is well settled that voluntary disclosure of criminality and assistance to police in continuing investigations, and in obtaining the conviction of guilty persons, entitles a wrongdoer to significant favourable considerations in the sentencing process sometimes called leniency and the Crown has at all times conceded that this appellant is entitled to a separate and substantial discount on both grounds. However, in Ryan v R (2001) 179 ALR 193 at 197, McHugh J stated that this concept, rather than being described as a significant added element of leniency, (see R v Ellis (1986) 6 NSWLR 603): "is a statement of general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case." 8 Before allowing for such considerations, the learned sentencing judge commenced with a head sentence of twelve and a half years on the basis that this appellant was more than a courier, though less than a principal. The essence of this appeal is that the 40 percent discount determined by his Honour was inadequate and the sentence thus excessive. Half of the 40 percent was attributed to past assistance and the other half to the future, so that if he does not give the assistance, he will lose 20 percent of the discounted term. 9 It has been held that the appropriate range for such assistance will normally be between 20 and 50 percent and some cases are mentioned. However, R v Raz (unreported, NSWCCA, 17 December 1992) received a discount of 55 percent and in Perrier and Richardson (1990) 59 A Crim R 164 McGarvie J suggested that two-thirds may be appropriate in certain drug cases so that ring leaders can be caught and convicted. Moreover, this Court in R v S [2000] NSWCCA 13 noted that 60 percent has been allowed in some cases and in R v K [2000] NSWCCA 73 Simpson J commented that discounts in excess of 50 percent have been given. 10 The appellant has asked this Court to intervene to allow 50 percent discount. However, I consider the 40 percent allowance to have been within the range appropriate to the circumstances of the case. 11 Moreover, the identified error of his Honour seems to transfer from the Commonwealth offence to the State offence the major focus of the sentencing process. Having regard to a Crown concession in this regard, it appears that 2.2 kilograms of drug is the relevant amount to consider in this respect and the Crown suggests that this justifies the sentence given in any event. However, it seems to me to be inappropriate to allow the Crown to now change the basis on which the sentencing took place in the District Court, which it did not criticise until today. 12 Taking into account the various matters required by section 16A, including the plea of guilty, the subsequent remorse that it demonstrates and other evidence of remorse, the revelation of the offences concerned and the other matters to which his Honour referred in his remarks, including the reasonable, though not unblemished, character of the appellant, the excellent prospects of rehabilitation and his relative youth, as well as the unlikelihood of any repetition, it seems to me that the appropriate sentence for the Customs Act offence is a head sentence of ten years. From this term a 40 percent discount for assistance, retaining the two 20 percent halves of that amount, would reduce the period to six years, for which a non-parole period should be fixed of three years and nine months. 13 So far as concerns the State offence, taking into account all the circumstances, including the matters I have mentioned such as the assistance given, the revelation of undetected crime and the various subjective matters, I would fix a sentence of ten years from which there should be a 25 percent discount for the timely plea of guilty which gave great utilitarian benefit to the authorities and various other benefits to the community. This would mean a head sentence of seven years and six months to date from the date of arrest. Having regard to the special circumstances that have applied to which I have generally referred, I believe that we should depart from the statutory ratio and fix a non-parole period of three years and nine months. 14 SPIGELMAN CJ: I agree. 15 GROVE J: I agree. 16 SPIGELMAN CJ: The orders are as indicated by Einfeld AJ. 17 Mr Atkinson, with respect to the sentence under the Customers Act offence, the Court has reduced your sentence, in accordance with your appeal, to a head sentence of six years and a non-parole period of three years and nine months. You will have to serve a period of imprisonment of not less than that non-parole period and if a parole order is made, you will have a period of service in the community to complete service of the sentence. The parole period will in all probability be subject to conditions and the parole order may be amended or revoked. If you fail without reasonable cause to fulfil those conditions, you may be returned to prison for the balance of your time. 18 As for the matter of the other sentence, you have heard that a period of four years has been reduced from the total sentence for the assistance you have given and offered to give in the future to the authorities. Two years of that has in effect been earned, another two years remains to be earned. As with the State offence, you have heard although the head sentence is longer than the head sentence for the Commonwealth offence, nevertheless, the Court has exercised its discretion to make the non-parole period the same in both cases. Of course, the two years for future assistance would be added on to the six years if you do not fulfil your obligation, or such part thereof, depending on the events if they transpire as they should. 19 One matter that was implicit in Einfeld AJ's proposed order was a formal order granting leave to appeal out of time and that will be added to the orders to which his Honour referred. 20 The orders of the court are as indicated with that additional order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.