Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AB v R [2013] NSWCCA 333 Hearing dates: 4 December 2013 Decision date: 23 December 2013 Before: Leeming JA at [1] Hall J at [2] Schmidt J at [3] Decision: 1. Leave to file the appeal out of time is allowed. 2. The appeal be dismissed. Catchwords: CRIMINAL LAW - appeal - leave sought for extension of time to lodge appeal - leave granted - importation of border-controlled drug - whether error in assessment of discount on sentence - whether applicant entitled to significant discount for assistance - appeal dismissed Legislation Cited: Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) Cases Cited: House v The King [1936] HCA 40; (1936) 55 CLR 499 Lee v R [2012] NSWCCA 123 R v A [2004] NSWCCA 292 R v AMT [2005] NSWCCA 151 R v Barrientos [1999] NSWCCA 1 R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63 R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415 R v El Hani [2004] NSWCCA 162 R v NP [2003] NSWCCA 195 R v OPA [2004] NSWCCA 464 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v Tae [2005] NSWCCA 29 R v Vo [2006] NSWCCA 165 Regina v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249 Category: Principal judgment Parties: AB (Applicant) Regina (Respondent) Representation: Counsel: Mr D Barrow (Applicant) Mr P McGuire (Respondent) Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2011/409416 Publication restriction: None Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-03-23 00:00:00 Before: Blackmore DCJ File Number(s): 2011/409416 Judgment 1LEEMING JA: I agree with Schmidt J. 2HALL J: I agree with Schmidt J. 3SCHMIDT J: On 22 February 2012 the applicant pleaded guilty in the Local Court to a charge under s 307.2(1) of the Criminal Code Act 1995 (Cth) of importing a marketable quantity of a border-controlled drug, cocaine. The maximum penalty for the offence was 25 years imprisonment. On 22 March 2012, Blackmore DCJ sentenced the applicant to serve 5 years imprisonment, with a non-parole period of 2 years, 6 months, after a 25% discount of 50% for her early plea and assistance to authorities. The sentence dated from her arrest at Sydney airport on 18 December 2011. 4A notice of intention to appeal was lodged on 24 October 2012. The appeal was lodged on 9 August 2013. The applicant sought an extension of time to lodge her appeal, which was not opposed by the Crown. That application is granted. 5The applicant relies on only one ground of appeal, namely that his Honour erred in his assessment of the discount she should receive on sentence for the assistance she gave to authorities after her arrest. Blackmore DCJ's sentencing judgment 6The applicant travelled to Australia from Malaysia on the day of her arrest. She came under the suspicion of customs authorities at the airport and admitted on questioning that she had swallowed 66 pellets of a drug on later analysis found to be 400 grams of pure cocaine. She was then pregnant. 7The applicant agreed to provide assistance to authorities. After treatment in hospital she participated in a controlled operation which resulted in the arrest of those who were to receive the drugs from her. 8The sentencing hearing came on with some urgency, as it resulted, due to the impending birth of the applicant's child. 9A statement of facts was then agreed, various documents, including statements made by the applicant to customs officers and police were tendered, as well as an undertaking given under s 21E of the Crimes Act 1914 (Cth). 10A psychologist's report prepared by Ms Rima Basr was tendered and the applicant also gave evidence, adopting the history she had given Ms Basr. The applicant gave an account, amongst other matters, of how she had been recruited in Malaysia to carry cocaine into Australia and the arrangements made for delivery of the drug here to members of the drug syndicate for whom she had carried the drug. 11It was common ground that on arrest the applicant not only made complete admissions, but also then co-operated with police, providing assistance, which shortly afterwards resulted in the arrest of the offenders to whom she was to deliver the drugs in a controlled police operation. She also undertook to give evidence at their trial and, it is common ground, in fact later did so. She also provided other intelligence which was provided to Malaysian authorities. It was common ground between the parties at the sentencing hearing that the assistance she had provided had thus been 'very high'. 12In his sentencing judgment, Blackmore DCJ noted the circumstances of the applicant's arrest and that the street value of the cocaine which she carried was some $AU285,714 to $AU320,000. As to the seriousness of her offence, his Honour did not accept that she had given herself up to the authorities, observing that the applicant had rather come to their attention in circumstances he described. His Honour considered that she had been lucky that the containers she had swallowed did not rupture. She was then not feeling well and was taken to hospital and later recovered so that she was able to provide the assistance which she gave. 13His Honour considered that the sentence imposed on the applicant had to reflect considerations of general deterrence, given the risk she had posed to her unborn child, albeit noting that the Crown did not rely on that as an aggravating matter. He found her to be a courier, but did not accept that her offence was the result of duress, or that she did not know what she was carrying. His Honour also found the applicant to be a person of prior good character, having no prior criminal record, who thus made a good courier for the syndicate she had assisted. He accepted that she had been naïve, but in the circumstances considered that her prior good character could not carry much weight on sentencing. His Honour noted her personal circumstances and concluded that her offending was partly the result of greed. 14His Honour also considered her family background, her other young child and the circumstances pertaining to the child who was about to be born, as well as the applicant's potential access to a program which permitted mothers to keep young children with them while in custody. He also noted the difficulties which she faced, given that both she and the child were foreign nationals. 15His Honour considered the psychologist's report, which also addressed the consequences for the child's removal from her mother. His Honour considered that the applicant had deliberately put that child at risk of harm, by her offence. He concluded that in the circumstances, the consequences of the sentence for the child could not be considered by way of mitigation of the applicant's offence. He considered that to take that into account, as was urged for the applicant, might encourage recruitment of pregnant women to act as drug couriers and for the commission of further such offences. 16His Honour concluded, however, that the applicant was entitled to a very significant discount on sentence for her assistance, which he found to be: '... of a very high order and has placed her at some risk whilst ever she remains here and also when she returns to Malaysia. The assistance has already achieved concrete results and her help in that regard was regarded essential." 17In the result for that assistance and the early plea his Honour gave the applicant a discount of 50% on her sentence, only 5% of which he attributed to future assistance. The parties' cases 18The applicant's case was that the discount which his Honour granted her did not adequately reflect the very tangible and real assistance which she had given authorities, which had not only led to the arrest and conviction of offenders in Australia after she gave evidence, but the provision of previously unknown information to Malaysian authorities. 19Given her very early plea, and the nature of her assistance, it was argued that this was a case where the combined discount should have exceeded 50%, reflecting that the result of her assistance was that she was at risk in both Australia and Malaysia, 20It is settled that a combined discount for an early plea and assistance could exceed 50%, but rarely more than 60% (see SZ v R [2007] NSWCCA 19; 168 A Crim R 249 at [11] discussed in R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415 at [68] - [71]). It was accepted that fixing a discount was a discretionary matter, which had to be exercised in accordance with binding principles and that on appeal error had to be established in accordance with the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499. It was the applicant's case that such error was here apparent. 21That was submitted to be revealed by the evidence as to the nature of the assistance which the applicant had rendered, which established that this was one of those exceptional cases where a discount greater than 50% was warranted. 22The Crown's case was that his Honour had correctly identified the applicant's assistance to have been of a very high order, as both parties had submitted to him at the sentencing hearing. That there had been no error in not finding that the assistance rendered had been 'exceptional'. The cases advanced below 23In resolving this issue it is pertinent to consider the respective cases advanced at the sentencing hearing. Confidential evidence was led as to the nature of the assistance provided. I have examined that confidential material. It establishes a proper basis for the cases both parties advanced below, that the assistance which the applicant rendered had been of a very high order. Neither party then submitted that it had been exceptional. 24In written submissions below the Crown submitted that combined discounts of more than 40% were exceptional and would not be granted in cases where there was no evidence that the offender would spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It was accepted that the applicant had given significant assistance, which was identified, with the result that she was in protective custody, which, it was accepted, should be reflected in the discount given. 25In written submissions advanced for the applicant it was submitted that the applicant's assistance warranted a 'high discount', the most helpful part of her assistance having occurred early, almost immediately after her detection. 26This matter was taken up with the parties in oral submissions. His Honour suggested to the applicant's counsel that the assistance given by the applicant had been 'very high and therefore its probably getting to the top of the range'. That was accepted, but his Honour continued: "It may not, just so that I don't mislead you, but it may not be right at the top of the range but its certainly over and above the usual because she's offered significant - she gave significant assistance. She put herself out to do it, she put herself in danger by doing it and she's offered future assistance." 27The ratio between the parole and non-parole periods which would be imposed was also addressed, his Honour observing that if the sentence was to be reduced as the result of a significant discount, the non-parole period could not also be reduced significantly. His Honour then observed that "50% might be a reasonable result', observing: "The way you do it is you start with a normal sentence, whatever the normal sentence might be. You reduce it by the discount for the plea. You reduce it by the discount for whatever assistance is provided and then you look at the break up of the parole and non-parole period. Because if the factors here, the child and the child in Malaysia and the fact she's got no contacts here you may well reduce the parole period. That's the way I would look at it. But that's what I'm just saying, you can disagree with me. The Crown might disagree with me." 28The response given for the applicant was 'I don't want to be heard further'. 29For the Crown it was then submitted that more than a 50% combined discount was available only in exceptional cases, and while the assistance which had been given was at a high level, it was not exceptional. His Honour suggested that the range might be 45-50%. He was reminded of the need to identify a component for future assistance. His Honour observed that it seemed that the assistance already provided had been vital. That was not accepted by the Crown, given the nature of the actual assistance in fact provided and the overseas assistance having been simply the provision of intelligence. After discussion it was accepted that weighing would be given to past, rather than future assistance, given its value. 30In reply such a weighing was accepted for the applicant, it being submitted that the assistance she had provided earlier had been 'vital'. His Honour plainly accepted the consensus which had emerged on the evidence, assigning only 5% of the 50% discount for future assistance. The appeal has not been made out 31Under s 16A(2)(h) of the Crimes Act 1914 (Cth), the degree to which an offender has co-operated with law enforcement agencies in the investigation of the offence or other offences in the past, is a matter to be taken into account on sentencing (see R v Vo [2006] NSWCCA 165 at [36]). Relevant considerations in assessing the extent of a discount for such assistance includes the effectiveness of the assistance given and its value to the authorities (see R v El Hani [2004] NSWCCA 162 and R v Barrientos [1999] NSWCCA 1). 32In R v Barrientos, Abadee J reviewed the authorities on such assistance in Commonwealth offences observing at [47]: "Thus in the determination of any discount the relevance and importance of the benefits flowing from assistance is important: see also R v Gallagher (1991) 23 NSWLR 220. There is no fixed tariff for assistance given. Where there is significant assistance the amount 'customarily given in New South Wales which with few exceptions, appears to range from 20 per cent to 50 per cent': see R v Chu per Spigelman CJ at 6-7. That said, the law does not mandate the identification of a precise discrete quantifiable discount for assistance or that the assistance falls within the range. The matter of that discount or its quantification will depend upon a number of factors and the facts of the particular case under consideration. I do not see the authorities suggesting that once any assistance is found then the allowance for such must reflect a range. The worth of the assistance may take it below the range. Whether it does is a matter of fact to be evaluated in accordance with the proved circumstances of the case." 33Under s 21E(1) a sentence may also be reduced because the offender has undertaken to co-operate in future with law enforcement agencies. In that event the Court must state that the sentence is being reduced for that reason, as well as specifying the sentence that would have applied otherwise (see R v Tae [2005] NSWCCA 29 at [19]). 34This is designed to assist an appellate court in re-sentencing an offender who fails to comply with such an undertaking. Section 21E(2) permits an appeal against sentence if the offender fails, without reasonable excuse, to comply with such an undertaking. If such an offender fails to co-operate, having received a reduced sentence on the basis of promised co-operation, on appeal the Court must substitute the sentence or non-parole period that would have been imposed, but for the promised co-operation (see s 21E(3)(a)). 35In the case of a guilty plea for a Commonwealth offence, a court is not required to specify a quantifiable discount (see Lee v R [2012] NSWCCA 123 at [58].) In arriving at any discount care must always be taken to ensure that the resulting sentence is not manifestly inadequate. In R v A [2004] NSWCCA 292 it was thus explained at [25] - [27]: "25 The availability of a discount for assistance, depending on its worth, in order to foster the interests of law enforcement and to recognise the contrition involved as well as the potential risks to the offender, is well recognised: R v Salameh (1991) 55 A Crim R 384, R v Gallagher (1991) 23 NSWLR 220, R v Cartright (1989) 17 NSWLR 243 and R v Dinic NSWCCA 3 September 1997. It is important, if the purpose for allowing a discount is to be achieved, that the offender standing for sentence be clearly appraised of the fact that a benefit was conferred. That will not be conveyed by a bare statement of the kind that was made in this case that the assistance was judged to have been "substantial and beneficial". 26 The level of the discount has customarily been accepted as falling within the range of 20 to 50% R v Chu NSWCCA 16 October 1998, R v Pang [1999] 105 A Crim R 474 and R v El Hani [2004] NSWCCA 162 at para 71. An allowance at the upper end has been reserved for cases where there has been particularly significant assistance, usually involving the offender accepting an obligation to give evidence against other offenders. 27 Where the factors of a plea and assistance are each available, it does not follow that any resulting discount is to be compounded or accumulated: R v Sharma [2002] NSWCCA 142 and R v Hameed [2001] NSWCCA 287. Otherwise there is a risk of the sentence becoming one which is not of a severity appropriate in all of the circumstances of the case. In such cases a combined discount will normally be appropriate: Thompson and Houlton at para 129; El-Hani at paras 65 to 70, and R v Zaluaga-Gomez [2002] NSWCCA 358." 36As to combined discounts in excess of 50%, in R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151, Howie J, with whose additional remarks McClellan CJ at CL agreed, said at [5] that: "...discounts for a plea and assistance of more than 40 percent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population." 37Latham J, with whom McClellan CJ at CL and Howie J agreed, observed at [54]: "While there is no fixed tariff for assistance to the authorities, discounts customarily ranged between 20 percent and 50 percent. There have been comparatively rare cases where a discount in the order of 55 percent or 60 percent has been given. Generally speaking however, a discount of 50 percent is regarded as appropriate to assistance of a very high order. No doubt, that is in part a reflection of the principle that a discount for assistance must not produce a result which is disproportionate to the objective gravity of a particular offence and the circumstances of a particular offender." 38In this case, the submissions advanced for the first time on appeal that the applicant should have received a combined discount greater than 50%, have no foundation in the evidence, or in the way in which the case was conducted below. The evidence established that the applicant is likely to spend a substantial part of her sentence in more onerous conditions than the general prison population. That, and the assistance which she rendered, made it appropriate that the combined discount for her early plea and assistance exceeded 40%. 39It is not apparent from the evidence that the applicant's assistance could properly be characterised as having been more than assistance 'of a very high order', as the parties submitted below and his Honour accepted. That was properly reflected in the sentence imposed, which was reduced by a combined discount of 50% 40The argument pressed on appeal, that the component for future assistance which his Honour identified should have been more than 5%, must be rejected. Even if it were accepted, that could not properly result in a total discount of more then 50% in the circumstances of this case. 41To make good the submission that the applicant's assistance ought to have been found to have been either 'extraordinary' or 'exceptional' so as to warrant a combined discount 'well above' 50%, comparisons were drawn with various cases. Those comparisons were not made out. 42In R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63, for example, the assistance given was described to have been (at [135]): "Turning to the situation of the Respondent, it is unnecessary to particularise the assistance beyond saying that it was extremely valuable, fell into the exceptional category and led to convictions of a number of offenders, one for very substantial drug dealing and some for murder." 43There was not assistance of that kind given in this case. In Regina v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38, the Crown conceded that the discount given was properly available and did not press its appeal against the conclusion that the circumstances were truly exceptional, warranting a 60% discount, which was accepted by the Court after reviewing of the confidential exhibit (see at [22]). A review of the confidential material in this case does not provide a basis for such a conclusion. 44Other cases referred to, which were decided before Sukkar and SZ are likewise not of assistance to the applicant. They establish that combined discounts of more than 60% have been given in the past, but not that such a discount is warranted in this case. In R v NP [2003] NSWCCA 195, for example, the circumstances of the assistance rendered warranting a combined discount of 60% are not revealed sufficiently for any reliable comparison to be made. In R v OPA [2004] NSWCCA 464 the assistance was accepted to have been vital and resulted on appeal in a combined discount of 52.8%. Here the discount given was 50%. What warranted an additional 2.8% discount in that case, is not apparent and thus not of assistance to the applicant. In R v AMT [2005] NSWCCA 151 a discount of 60% resulted from assistance which had led to two separate strike forces assembled by police in response to information provided by the applicant, which led to a number of police "targets" being arrested and charged. This is not such a case. 45The comparisons sought to be drawn on appeal do not establish that his Honour's discretion miscarried. The explanation for the applicant's assistance not having been described below as either 'extraordinary' or 'exceptional' is that the evidence did not warrant such descriptions or a combined discount greater than 50% which was submitted below to appropriately reflect the assistance she had provided. 46In the result, in my view, the appeal must be dismissed. Orders 47I would make the following orders; 1. Leave to file the appeal out of time is allowed. 2. The appeal be dismissed. ********** 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. Decision last updated: 03 February 2014