C v R

Judgment 1HOEBEN JA: Offence and sentence The applicant pleaded guilty in the Local Court to a charge that: At 9.58 4 July 2010 at Baulkham Hills the accused did attempt to possess a substance, being a substance that is reasonably suspected of being unlawfully imported, the substance being a border control drug, namely cocaine, and the quantity possessed being a commercial quantity contrary to subs 307.8(1) of the Criminal Code (Cth). The maximum penalty for this offence is imprisonment for life and/or a fine of $825,000. 2The sentence proceedings took place over two days, 19 and 26 August 2011, and the sentence was imposed by her Honour Judge Hock in the District Court on 28 October 2011. The applicant was sentenced to imprisonment, with a non-parole period of 10 years and 6 months, commencing 4 July 2010 and expiring 3 January 2021, with a balance of term of 6 years and 4 months, expiring 3 May 2027. 3The applicant has appealed against the sentence on the following grounds: Ground 1: The learned sentencing judge erred in failing to adequately discount the applicant's sentence on the basis of his plea of guilty and assistance to the authorities. Ground 2: A miscarriage of justice was occasioned as a result of the absence of evidence as to the conditions in which the applicant was, and is likely to remain, held in custody. Factual background 4In about 2008 the Australian Federal Police commenced an investigation into the suspected criminal activity of a syndicate believed to be importing cocaine into Australia. 5The investigation concluded in about July 2010 with a number of arrests, including the applicant. The quantity of cocaine involved in the importation had a total weight of 240.307 kgs with an estimated pure weight of between 145.5 kgs and 166 kgs. 6The applicant was to have received half of the cocaine shipment from a Mr Gonzales, being approximately 120 kgs of cocaine with a pure weight of between 72.75 kgs and 83.4 kgs. The estimated wholesale value of the cocaine of which the applicant attempted to take possession was between $AU22,828,500 and $AU 25,832,250. The street value would, of course, have been much greater. Pursuant to s 314.4 of the Criminal Code, a commercial quantity of cocaine is 2 kgs. This offence involved a quantity of approximately 36 times the commercial quantity. 7The applicant arrived in Sydney from Los Angeles with a man named Guzman on 21 May 2010. They stayed in two different hotels, before moving into a rental property in Baulkham Hills on 2 June 2010. In order to secure the property, the applicant made arrangements to pay six months rental in advance in cash. 8On 13 June 2010 the container ship, "APL Hyundai Grace", arrived in Melbourne with two containers on board suspected by the AFP to contain drugs. The containers were found to contain pallets on which were loaded tiles. Secreted within those tiles were approximately 230 kgs of cocaine. The AFP reconstructed the tiles with inert material in place of the cocaine and repacked the pallets into the containers for a controlled delivery. 9On 3 July 2010 the applicant received and helped to unload the pallets at the Baulkham Hills property. On 4 July 2010 at about 9.45am police officers entered the property and found the applicant in the process of breaking apart the tiles. The applicant admitted to police that he believed it was cocaine that he was removing from the tiles. 10At the time of his arrest, the applicant was in possession of a Blackberry. He provided police with the password to access its content. Although the messages were in a rather crude code, it is apparent that the applicant had received instructions concerning the delivery of part of the cocaine. The times at which the messages on the Blackberry were received was consistent with them being sent from Mexico and being received by the applicant between 8.30 and 9am on 4 July 2010. Initially the applicant declined to be interviewed, but later that month made two formal statements to the police on 9 and 12 July 2010. Proceedings in the District Court 11Her Honour found that the applicant was aware that he would be dealing with a large quantity of cocaine, although he may not have known the precise quantity. Her Honour based that conclusion on the substantial funding which had been provided to him, in excess of $40,000. He knew that he needed a car to carry something heavy, he understood "bricks" to mean kilograms of drugs and the message which he received demonstrated that he was to deliver a substantial quantity. 12Her Honour assessed the position of the applicant as above that of a low-level participant or courier. She reached that conclusion because: He came to Australia specifically to take part in the offence. He rented the property at Baulkham Hills for six months and paid in advance. A car was obtained which was suitable for the delivery of the drugs. When Gonzales arrived with the drugs the applicant helped him unload them and store the pallets. At the time the police entered the premises, the applicant was engaged in breaking the pavers and had already removed some of the substituted material. He was in communication with two people in Mexico who were giving him instructions. On 3 and 4 July 2010 the applicant received and sent a number of email messages in respect of the drugs. His involvement in the delivery took place over a considerable period of time between May in the US and July in Australia. Her Honour concluded that the applicant had played a significant role in the enterprise, but was not one of the principals. As a result, his criminality was of a high order that must be reflected in his sentence. 13In relation to his subjective case, her Honour noted that he was aged 31 and had no prior convictions. While this entitled him to some leniency, her Honour noted that such factors had less weight in drug importation offences. 14The applicant gave evidence in the sentencing proceedings and relied upon a psychological report. On the basis of that material, her Honour recorded that his parents were of Mexican background, but had migrated to New York before he was born. The applicant was raised in the United States but maintained a cultural connection to Mexico. He was the eldest of four boys. His parents divorced when he was 16, due to his father's dominating and abusive attitude. The applicant had a close relationship with his mother and with one of his brothers. He had type 1 diabetes, but otherwise was in good health. 15He left school at the Australian equivalent of Year 9 and at that time was displaying disturbing behaviour such as attending school while intoxicated by alcohol or cannabis. He later completed his Year 12 equivalent, obtained an associate degree in culinary arts and completed a short course in information technology. His employment was generally in the hospitality area. 16By 18 he was binge drinking at weekends. He continued to binge drink even after he was diagnosed with diabetes, which occurred when he was aged 25. His use of cannabis increased as he got older and he began to use cocaine from age 16. By age 27 he was using about two grams per day. 17The applicant had been involved in two serious long-term relationships. The first ended when he was 22 when his partner terminated his child, which caused him to become depressed and increase his substance abuse. He was involved for 10 months with a woman he met in Mexico but that relationship ended as a result of his imprisonment. 18Her Honour found: "Even accepting that his judgment was to some extent impaired by his emotional state and/or depression at the time he agreed to become involved he was perfectly capable of participating in the offence and following the instructions he was given, both in the United States and here in Australia. Further, he was motivated to become involved for financial gain." (ROS 7.3) 19Her Honour found evidence of remorse and that his prospects for rehabilitation were reasonable, particularly if he followed the recommendations of the psychologist in respect of participating in courses while in custody. 20The applicant provided assistance to the authorities. Her Honour assessed that assistance in the following terms: "He has provided assistance to the authorities. Some aspects of that information provided were assessed as unreliable, namely his recruitment and matters relating to the Mexican drug syndicate. However, in a significant respect his assistance was extremely useful to the authorities. It is neither necessary nor advisable to provide further details in these remarks but they are set out in Exhibit 1 and in particular, paras 8 to 12 and para 20 of Annexure A in Exhibit B. In respect of those matters the information was regarded as truthful and reliable. The offender has not suffered any injury because of the assistance provided but he is understandably concerned, both for himself and for his family. He is presently in the Special Purpose Centre at Long Bay, separated from the mainstream prisoners. However, there is no evidence that his conditions of imprisonment will be more onerous than those of the general population. He will, of course, be isolated from family and friends, but that factor can be given little weight when the offender came here for the sole purpose of committing this very serious offence. I have taken into account the plea of guilty which was entered at the first available opportunity in the Local Court. While the case against the offender was a strong one, that plea does indicate an acceptance of responsibility and a willingness to facilitate the course of justice. I have reduced the otherwise appropriate sentence by 35 percent for the plea and for the assistance given rounding down to a whole month." (ROS 7.6 - 8.5) THE APPEAL Ground 1: The learned sentencing judge erred in failing to adequately discount the applicant's sentence on the basis of his plea of guilty and assistance to the authorities. 21The applicant accepted that in sentencing for Commonwealth offences, the focus is not on the utilitarian value of the plea of guilty but rather on the offender's "willingness to facilitate the course of justice" - Cameron v R [2002] HCA 6; 209 CLR 339. Despite that being so, the applicant submitted that the range of available discounts in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 had been applied in sentencing for Commonwealth matters (R v Bugeja [2001] NSWCCA 196; Charkawi v R [2008] NSWCCA 159; Tiknius v R [2011] NSWCCA 215 (particularly at [82])). 22That being so, the applicant submitted that the range of discount available for his early plea of guilty was between 10 percent and 25 percent and should have been at the top of that range, given her Honour's acceptance that the plea was entered at the earliest opportunity. The applicant noted from Tiknius v R that the plea of guilty did not include any allowance for contrition or remorse and that any allowance for those matters was to be taken into account in addition to the discount for the plea of guilty. 23The applicant submitted that the assistance which he provided was of a high level and was deserving of a much higher rate of discount than was allowed by her Honour. The applicant submitted that although he had not given evidence, he had not been asked to do so. Rather, the timeliness and quality of the assistance provided enabled a strong case to be brought against two other offenders so that in reality, his testimony was unnecessary. 24The applicant relied on such cases as R v Chu [1998] NSWSC 568 and R v NP [2003] NSWCCA 195 per Hodgson JA at [29] - [30] as authority for the proposition that there was a discount range of 20 - 50 percent for assistance alone. The applicant submitted that the observation by Howie J in R v El Hani [2004] NSWCCA 162 at [71] to the effect that Cartwright and Chu were both decided before Thomson and Houlton and were cases where the discount for assistance included the benefit to be received for a plea of guilty, was factually incorrect in that in both Cartwright and Chu there had been no plea of guilty. The applicant submitted that this error placed some doubt on the statement of principle in El Hani. 25The applicant relied on, and referred the Court to R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151 and SZ v Regina [2007] NSWCCA 19; I68 A Crim R 249. In Sukkar Latham J (with whom McClellan CJ at CL and Howie J agreed) said: "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." In SZ v Regina Buddin J (with whom Simpson and Howie JJ agreed) said: "52 I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender. See, for example, R v NP (supra); R v OPA [2004] NSWCCA 464 and R v AMT [2005] NSWCCA 151. 53 However, in light of the authorities to which I have referred and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case. ..." 26On the basis of those statements of principle, the applicant submitted that although it is not appropriate to speak in terms of a tariff, the range of discounts for assistance alone was customarily between 20 and 50 percent. He submitted that the restrictions in s 23(3) Crimes (Sentencing Procedure) Act 1999 (NSW) and in s 16A(1) Crimes Act 1914 (Cth) only operate to reduce the value of assistance when the sentence was likely to become disproportionately low. He submitted that such was not the case here. In that regard, he also relied upon R v Lenati [2008] NSWCCA 67 where a substantial discount for assistance was allowed to stand, even though the offender had not complied with his undertaking to provide future assistance. 27The applicant submitted that on the assumption that he would have received a discount of 25 percent for his plea of guilty, the discount for his assistance must have been 10 percent. Given the nature of the assistance, he submitted that this was patently inadequate and thus indicative of latent error in the approach of the sentencing judge. 28The applicant submitted that there is a high public interest in assistance being given which, as in the present case, leads to the detection and arrest of persons receiving large quantities of imported drugs. Consequently, there is a strong public policy interest in encouraging persons in his position to give assistance of the nature which he did. 29The applicant relied upon the impact on him and his family of the fact that he had provided assistance. In his evidence he referred to his fear of retribution and there was evidence from the police to the effect that he had a genuine basis for being fearful. The applicant referred to a fear of retribution while he was inside prison, as well as outside. 30The applicant noted that the sentencing judge had acknowledged that he was being held at the Special Purpose Centre at Long Bay and would be separated from the main prisoner population. Despite this, she was not prepared to take that matter into account in the absence of evidence to the effect that his conditions of imprisonment would be more onerous than those of the general prison population. The applicant submitted that it was "relatively well known" that the conditions of custody within the Special Purpose Centre were more onerous than those experienced by the general prison population. The applicant referred to the evidence to that effect in R v Standen [2011] NSWSC 1422 where James J noted: "An important subjective factor is the onerousness of the prisoner's conditions of custody, compared with the conditions of custody of prisoners in the general prison population. The prisoner is confined alone in a small cell with a small kitchenette and a small exercise yard. For most of the period he has been in custody since his arrest he has not had any association with any other prisoner. When he has had association, it has been with only one other prisoner. He has no access to any programs for prisoners. These onerous conditions of custody are likely to continue until at least the last three years of his sentence. This is an important factor in determining the length of the sentences I should impose." 31The applicant submitted that while it may have been desirable for detailed evidence to be put before the Court (by either party), the simple fact that the applicant was housed in the Special Purposes Centre was a relevant matter to be taken into account with respect to the discount to be allowed for his assistance. On that issue, the applicant submitted that it was not, in the circumstances of this case, necessary for him to adduce evidence beyond the fact of his incarceration in the Special Purpose Centre. Consideration 32A sentencing court is obliged, pursuant to s 16A(2)(g) Crimes Act 1914 (Cth) to take into account that an offender has pleaded guilty. Although there is no requirement to reduce a federal offender's sentence because of the fact of a plea of guilty, it is accepted that the general principles set out in R v Thomson; R v Houlton apply and that the range of discount should be between 10 percent and 25 percent. 33That having been said, it does not necessarily follow that the applicant would have received the maximum discount of 25 percent. As Simpson J (with whom Spigelman CJ and Harrison J agreed) said in Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 114: "[The sentencing judge] was called upon to sentence Tyler in accordance with the principles stated by the High Court in Cameron. This specifically excludes reference to the utilitarian value of the plea. Since the test is the willingness of the offender to facilitate the course of justice, one relevant consideration, at least in some cases, is the strength of the Crown case: this may cast some light upon the question whether the plea of guilty was truly motivated by a willingness to facilitate the course of justice, or, more pragmatically, for example, by recognition of the inevitable. Nor is there any requirement, in sentencing Commonwealth offenders, for quantification of a discount for the plea of guilty." 34As her Honour pointed out, the Crown case against the applicant was very strong. Accordingly, even though his plea was entered at the earliest opportunity, it was well within the sentencing judge's discretion to have assessed the discount for his plea at something less than 25 percent. Accordingly, it does not follow that the allowance for assistance was no more than 10 percent. 35In SZ v Regina Howie J at [9] - [11] set out the considerations to be borne in mind when a sentence is to be discounted for an offender's guilty plea and assistance. "9 I will assume for present argument that before Thomson and Houlton the discount for assistance was given in addition to any reduction in the sentence for a plea and could extend up to 50 per cent. But in my opinion after that decision, when the discount for the utilitarian value of the plea could be as high as 25 per cent, the courts generally had less scope to give a discount for assistance where there had been an early plea of guilty. This is simply because, as I have pointed out, there is a limit to the amount to which a sentence can be discounted and yet not fall beneath the bottom line. Similarly if an Ellis discount is allowed for disclosing unknown criminality in addition to a discount for an early plea, the ability to give any further discount for whatever purpose is reduced. 10 There is in my opinion nothing unfair about this result nor is the public policy in encouraging assistance necessarily reduced. There is still on offer, even after an early plea, a discount of somewhere in the vicinity of 25 per cent, or more in an exceptional case. The simple fact is that it is more important to the administration of justice to encourage and reward early pleas of guilty. If the pursuit of that policy diminishes the ability to encourage and reward assistance, so be it. There is a greater public policy at stake and that is public confidence in the courts to impose sentences that are just and reasonable to all concerned. 11 In my opinion the application of two discrete discounts, as was done in the present case, is liable to lead to error unless the court is conscious of the overall discount being given and considers whether a discount of that degree can result in a sentence that does not infringe s 23(3). An overall discount of more than 60 per cent, however derived, will rarely, if ever, result in a sentence that is not manifestly inadequate. If then special circumstances are found and the non-parole period is reduced to say 50 per cent of the overall sentence, the unreasonableness of the sentence is magnified. It should be borne in mind that a discount in the overall sentence will inevitably result in a discount of the non-parole period. This is why it is important to avoid double counting in cases of assistance by finding special circumstances for the very same reasons that the sentence was reduced: R v S (2000) 111 A Crim R 225; R v PG (2001) 122 A Crim R 529." 36While keeping in mind the observations of Howie J, it should be noted that the level of assistance provided by the applicant was significant. As her Honour observed, no useful purpose is served by setting out the assistance in detail. It is sufficient to say that the applicant actively assisted the police in the use of the Blackberry as a result of which two of the intended cocaine recipients were arrested. Although the applicant terminated his assistance thereafter, and refused to provide further help to the authorities, the assistance which he had already provided had produced tangible and positive results. 37Not only was the assistance useful but as the applicant explained in his evidence, he was afraid both for himself and for his family that the fact of his assistance was known to the Mexican suppliers of the drug and that retribution would be sought against him and them. These fears were justified. They did not depend only upon the applicant's evidence, but were supported by police evidence to similar effect. In that regard, the activities of the Mexican drug cartels in relation to such matters are notorious. I am satisfied that the assistance provided by the applicant has placed him and his family at real risk of harm from the suppliers of the drug. 38The fact that he has provided assistance not only renders the applicant liable to retribution when he is released, but also while he is serving his sentence. It is for that reason that he was in the Special Purposes Centre at the time when he was sentenced. Although no evidence was adduced as to what, if any, hardships that involved, the applicant submitted that it is well known that conditions of imprisonment in such circumstances were more onerous than those experienced by other prisoners. He submitted that her Honour was therefore in error in disregarding this matter when assessing what discount to allow for his assistance. 39Her Honour approached this issue on the basis of the remarks of Howie J in R v Sukkar at [3] where his Honour said: "3 As Latham J points out, the discount for assistance reflects a number of considerations that impact upon the sentence to be imposed upon the offender. One factor has traditionally been that a person giving assistance will normally be at risk within the gaol environment and, therefore, may need protection for a substantial part, if not all, of the term of the sentence. When this Court has expressed the view that the appropriate range for the plea of guilty and assistance is between 20 and 50 per cent, that range has been formulated on the basis that some reduction was due, not only to encourage others to give information to the authorities but also "to compensate them for the more difficult conditions under which they will inevitably have to serve their sentences as a result of having given that information", see R v Cartwright (1989) 17 NSWLR 243 at 250. 4 However, it is no longer inevitable that an offender who has provided assistance will serve the sentence in more difficult conditions. As was pointed out in R v Mostyn [2004] NSWCCA 97; (2004) 145 A Crim R 304 the experience of this Court at least has been that prisoners who have provided assistance are not serving their sentences, or even a significant part of their sentences, in any more onerous conditions than prisoners in the general prison population. In Mostyn the appellant's discount was reduced when the Court came to re-sentence him because of evidence placed before this Court that indicated that he was not serving his sentence in more difficult circumstances nor was he deprived of programmes to aid in his rehabilitation. 5 It seems to me that the courts should now acknowledge the reality of the situation and reduce the range of discount to reflect the fact that one of the bases of the discount is no longer generally applicable. In my opinion discounts for a plea and assistance of more than 40 per cent 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. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact." 40That statement of principle has not met with universal approval. It was qualified by Basten JA in R v DW [2012] NSWCCA 66 at [15] and by RS Hulme J in that same case at [144]. A possible accommodation of the two approaches was set out in the judgment of RS Hulme J in R v Charman [2007] NSWSC 1177 at [20] - [21]: "20 ... The prisoner is currently on protection and in my judgment of the prison system, the probabilities are that that circumstance is likely to continue. What the precise consequences to the conditions of his incarceration will be is impossible to assess, it being well known that these will depend, inter alia, on what gaol or gaols he is sent to and, whatever the reason may be, prisoners are moved frequently. It is not possible to detail the very many previous cases where offenders coming before me have been on protection, but experience in this Court and the Court of Criminal Appeal leads me firmly to the view that the probability is that the prisoner will suffer some appreciable increase to the harshness of incarceration by being on protection. 21 (I am conscious that in that last paragraph I am differing to some degree with the appreciation of the "on protection" regime apparent in Howie J's remarks in R v Sukkar [2006] NSWCCA 92 at [3,5] and quoted in a number of subsequent cases, including SZ v R [2007] NSWCCA 19. I certainly accept that one cannot, as one previously could, draw the inference that a prisoner on protection will inevitably or very probably endure significantly harsher conditions of incarceration for the whole period he is on protection. However, my experience is as I have indicated.)" 41The better view, in my opinion, is that an offender in the position of the applicant during a sentence hearing, if he or she wishes to gain some benefit in the sentencing process because of the conditions under which the sentence is likely to be served, should adduce evidence as to those conditions. If the Crown disputes that evidence, it can call its own evidence, otherwise the evidence of the offender should be given appropriate weight. 42In this case the only evidence adduced was that the applicant was serving his sentence under some form of protection. There was no evidence as to the nature and extent of restrictions, if any, which were imposed. In those circumstances, the fact that he was serving his sentence under a form of protection should have been taken into account by her Honour but only in a general sense, i.e. that normally some additional restrictions and constraints are imposed upon a person serving a sentence in such a way. If, however, an applicant seeks to have the conditions under which he or she is serving a sentence taken into account in such a way as to have a significant effect on the sentence to be imposed, then some evidence of those conditions needs to be adduced. 43That did not happen here. It was an error on the part of her Honour to effectively ignore the fact that the applicant was in the Special Purpose Centre at Long Bay but in the absence of any further evidence, the weight to be given to that fact could only be modest. 44Taking those matters into account, and in particular the significance of the applicant's assistance and the resulting danger to which he and his family are exposed, I have concluded that the discount for assistance allowed by her Honour was inadequate and that the applicant will need to be re-sentenced. Ground 2: A miscarriage of justice was occasioned as a result of the absence of evidence as to the conditions in which the applicant was, and is likely to remain, held in custody. 45In oral submissions the Court was advised that this ground of appeal was to be relied upon only if the applicant's first ground of appeal was dismissed. In any event, the matters raised in this ground of appeal have been canvassed, in a general sense, when considering the first ground of appeal. Conclusion 46Because it is necessary to re-sentence the applicant, I have taken into account the affidavit of the applicant of 13 February 2013 which deals with the current conditions under which he is serving his sentence. In that affidavit, he deposes that between July and October 2010 he was placed in "C Wing" of the Long Bay Correctional Centre where his conditions of imprisonment were quite restrictive. In October he was moved to "B Wing" which while still involving restrictions is a significant improvement on "C Wing". While the applicant described the restrictions imposed on him in "B Wing", he did not indicate to what extent those restrictions exceed those to which the general gaol population is exposed. Nevertheless, I accept that conditions within "B Wing" are more restrictive for the applicant than if he were part of the general gaol population and I have taken that into account. 47In assessing an appropriate discount for the applicant's early plea of guilty and his assistance to the authorities, I have to also take into account the objective gravity of the offence for which he has been sentenced and to make sure that the penalty that is imposed is not unreasonably disproportionate to its nature and circumstances. Taking all those matters into account, I propose to apply a discount approaching 45 percent. The actual discount which I have allowed is slightly less than that figure. 48The orders which I propose are as follows: