Green (a pseudonym) v R

[2020] NSWCCA 358

Court of Criminal Appeal (NSW)|2020-11-09|Before: Meagher JA, Walton J, Beech-Jones J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2020-11-09

Before

Meagher JA, Walton J, Beech-Jones J

Catchwords

[2018] NSWCCA 57 Jinde Huang aka Wei Liu v R (2018) 332 FLR 158
[2018] NSWCCA 70 Kaurasi v R [2020] NSWCCA 253 Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37 LB v R [2013] NSWCCA 70 Lehn v R (2016) 78 MVR 353
[2016] NSWCCA 255 Mulato v R [2006] NSWCCA 282 O'Neile v R [2018] NSWCCA 291 R v Borkowski (2009) 195 A Crim R 1

Source

Original judgment source is linked above.

Catchwords

[2018] NSWCCA 57 Jinde Huang aka Wei Liu v R (2018) 332 FLR 158[2018] NSWCCA 70 Kaurasi v R [2020] NSWCCA 253 Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37 LB v R [2013] NSWCCA 70 Lehn v R (2016) 78 MVR 353[2016] NSWCCA 255 Mulato v R [2006] NSWCCA 282 O'Neile v R [2018] NSWCCA 291 R v Borkowski (2009) 195 A Crim R 1[2009] NSWCCA 102 R v Ehrlich (2012) 219 A Crim R 415[2012] NSWCCA 38 R v Kaldow (2004) 150 A Crim R 271[2004] NSWCCA 425 R v Lee [2007] NSWCCA 234 R v NguyenR v Pham (2010) 205 A Crim R 106[2010] NSWCCA 238 R v Sukkar (2006) 172 A Crim R 151[2006] NSWCCA 92 Robinson v R [2017] NSWCCA 315 Xiao v R (2018) 96 NSWLR 1

Judgment (19 paragraphs)

[1]

[4]

UTILITARIAN VALUE OF PLEA

There was no discussion between the sentencing judge and counsel for the Crown and applicant during sentencing proceedings about the basis of any discount for the applicant's guilty pleas (hereinafter, "the guilty plea"), aside from the applicant's counsel's submission that a combined discount in excess of 50% for assistance and the guilty plea was warranted.
The sentencing judge correctly characterised the applicant's past assistance to law enforcement as "a very significant form of co-operation" which led to a number of "significant outcomes which include convictions for persons associated with the importation and money laundering". The level of past assistance, together with future assistance, was characterised by the sentencing judge as "indeed probably [an] exceptional degree of cooperation and undertaking by the [applicant]".
In his remarks on sentence, the sentencing judge referred to the guilty plea of the applicant in the following way: Both matters resulted in pleas of guilty in the Local Court and I intend to take I that into account in the manner specified relating to Commonwealth matters in terms of facilitating the course of justice. Overall. I will indicate a global figure for the discount in respect of all matters at the end of my remarks.
In quantifying the discount to be given for both the guilty plea and the assistance provided by the applicant, his Honour stated the following: So far as the discount for the plea of guilty and the co-operation, as I indicated this is a Commonwealth matter. I note that as I have already indicated in my view there is very significant and unusual, indeed probably exceptional degree of co-operation and undertaking by the offender. Accordingly taking into account that and the other matters I intend to apply an overall discount of 50% in respect of those matters. In relation to future co-operation I intend to apply a discount in the vicinity of 15% which is incorporated in the above figure.
It may be inferred from those remarks on sentence that the discount of 50% that was applied by the sentencing judge incorporated some unquantified discount for the applicant's plea without any attribution to the discount concerning the utilitarian value of the plea. Rather, his Honour referred to the court taking into account the plea "facilitating the course of justice".
Those reasons for sentence were given at a time when the decisions in this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 and Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 and Jinde Huang aka Wei Liu v R (2018) 332 FLR 158; [2018] NSWCCA 70 ("Huang") had not been determined. Those, and subsequent decisions, hold that in sentencing for a Commonwealth offence, a discount may be given for the utilitarian value of a plea.
It was common ground that the sentencing judge had allowed no discount for the utilitarian value of the plea of guilty. That concession was well made. An acknowledgement of willingness to facilitate justice is not relevant to the utilitarian value of the plea: Bae v R [2020] NSWCCA 35 ("Bae") at [57]-[58]; see also R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32(4)] (per Howie J, with McClellan CJ at CL and Simpson J agreeing).
In Huang, the Court held that a failure to have regard to the utilitarian value of a plea of guilty when sentencing for a Commonwealth offence amounted to an error (see also Hijazi v R [2020] NSWCCA 97 at [8]). The Crown properly conceded that error.
That same consideration was productive of a concession by the Crown, again properly made, as to the appropriateness of granting an extension of time: Baladjan v R [2018] NSWCCA 304 at [92] (per Bathurst CJ, with whom Hoeben CJ at CL and Fagan J agreed). Leave should be granted upon the same basis.

[5]

RE-SENTENCING

Having found error in the sentencing judgment, this Court must exercise the sentencing discretion afresh taking into account the purposes of sentencing and the factors that the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") requires to be considered: see ss 3A and 21A; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43] and Lehn v R (2016) 78 MVR 353; [2016] NSWCCA 255 at [60], [65], [86] and [128]. Such an exercise involves the exercise of an independent discretion with a sentence fixed which is appropriate having regard to the offender and the offence. (See also: O'Neile v R [2018] NSWCCA 291).
In undertaking that process, some particular considerations may be mentioned at the outset: 1. The Crown accepted that the applicant entered his pleas of guilty prior to committal. The utilitarian value of his pleas was high and, in recognition of that value, a discount of 25% should be applied to sentence in the ordinary course: Kaurasi v R [2020] NSWCCA 253 at [3] and [44]. 2. Neither party challenged any of the facts found by the sentencing judge, or any other findings of the sentencing judge (other than in relation to the guilty plea). The Court may, therefore, have regard to the unchallenged findings of fact made by the sentencing judge: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]. 3. The Court may also, in the circumstances, have regard to the sentencing judge's findings regarding objective seriousness: Mulato v R [2006] NSWCCA 282 at [46]. The appropriate sentence is to be determined on the material that was before the sentencing judge, the sentencing judge's unchallenged findings, and any relevant evidence of post-sentence conduct: DL v The Queen at [9].
The applicant accepted that, even in the presence of Xiao error, satisfying s 5(1)(c) of the Criminal Appeal Act, the granting of a 50% discount for his guilty plea and assistance may still be considered appropriate, albeit for a different reason (utilitarian value versus a willingness to facilitate the course of justice) and that no lesser sentence may be warranted but, it was submitted, in this case a lesser sentence was warranted.
The Crown submitted that, exercising the sentencing discretion afresh, the Court would come to the view that no lesser sentence was warranted in law having regard to the matters listed in s 16A of the Crimes Act and, in the case of the applicant's drug importation offence, the general sentencing principles concerning federal drug offences articulated in R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 at [72].
The Crown submitted, that, in all the circumstances, a lesser sentence than that imposed by the sentencing judge would not reflect the objective criminality of the offences nor would it reflect the need for general deterrence in respect of offences of this kind.
The Crown submitted that the appeal should be dismissed, pursuant to s 6(3) of the Criminal Appeal Act, on the basis that no lesser sentence is warranted in law.

[8]

Count 2

The applicant engaged in the following conduct giving rise to the offence. He: 1. was the nominated recipient of 10 consignments containing not less than a commercial quantity of methamphetamine, the 10th consignment containing 12.0116 kilograms of pure methamphetamine; 2. was the sole Director and Secretary of the company that the consignments were consigned to; 3. telephoned the consignor of the consignments on three occasions; 4. opened an account with DHL, tracked the consignments on the DHL website, and communicated with DHL in relation to the delivery of the consignments; 5. communicated with Australian Border Force in relation to the clearance of the consignments; 6. communicated with, and reported to, the Hong Kong contact in connection with the consignments of drugs; 7. signed for, received and held the consignments and their contents at his residence in Sydney; 8. communicated with others to confirm successful delivery of the consignments; 9. used a Blackberry device to communicate with others to avoid detection by law enforcement; and 10. discussed with his Hong Kong contact his suspicions with respect to a consignment containing a tracking device, discussed the removal and destruction of the device, and removed the device from the consignment.
Further, there was no dispute as to the sentencing judge's findings as to the applicant's role (which findings were amply available on the material before the Court): 1. He was engaged in a management undertaking in respect of the importation in Australia at the direction of "[redacted]". 2. He was a trusted intermediary who acted in various executive capacities such as having full responsibility over the consignments and distributing the contents. 3. He played a pivotal and integral role in the importation. 4. He was not the principal or "mastermind" but clearly he was not a courier or low level operator - he could be described as a "lieutenant".
The applicant committed the offence while on bail for count 1, which was an aggravating circumstance of the offence.

[13]

Subjective Features

The applicant is presently 41 years of age.
At the time of committing the count 1 offence, the applicant did not have a criminal history.
Additionally, the following background factors should be taken into account: 1. The applicant was born in Hong Kong and raised in Macau until 12 years of age before moving to New Zealand with his sibling and mother. He had intermittent contact with his father from this point. The applicant continues to have a close relationship with his mother, who gave evidence in his support during the sentencing proceedings. 2. The applicant attended TAFE in Australia and completed a Diploma of Business Studies in 2007. He worked with his father in Macau over a period of years and returned to Australia in 2012 where he worked within a company. When he committed the offences his wages had been cut and he was facing financial pressure. 3. In this context, he met "[redacted]" who involved the applicant in count 1. Following his arrest for count 1, the applicant was threatened by [redacted] and he agreed to being involved in count 2. The sentencing judge accepted that the applicant was under some pressure.
Before the sentencing judge, the applicant tendered an opinion of a clinical psychologist, Mr Sam Borenstein, dated 17 August 2017. It was his opinion that the initial offences were committed in the context of the applicant experiencing "a chronic and severe Adjustment Disorder with Mixed Anxiety and Depressed Mood". It was submitted for the applicant that his judgment and decision making was impacted negatively by symptoms of depression and traumatic stress which, in the psychologist's opinion, was directly connected to the commission of the offence.
The sentencing judge accepted that the applicant was placed under pressure not amounting to legal duress. His Honour regarded the applicant's diagnosed psychological state as a contributing factor which would be taken into account in the overall mix of factors, even though "it did not impact significantly on general or deterrence". His Honour also took into account his "mental health in relation to general issues" but considered that it did not contribute significantly to the commission of the offence. (His Honour also took into account the pressure placed upon the applicant to continue his criminality but only to a "very, very moderate degree".)
I have taken into account the psychological evidence (of Mr Borenstein) that the initial offences by the applicant occurred whilst he was experiencing a chronic and severe Adjustment Disorder with Mixed Anxiety and Depressed Mood and that those conditions "impacted significantly on his decision making and judgment". As to count 2, Mr Borenstein's opinion was that there "was a direct connection between the applicant's symptoms of depression and traumatic stress and the importation offence" and that his judgment and decision making was "impacted negatively" by the "severity of his symptoms over and above the level of depression and anxiety" which contributed to the first count.
Those opinions, in my view, are consistent with the findings made by the sentencing judge with respect to count 2.
The following further findings of the sentencing judge as to subjective factors must be taken into account, namely, that the applicant had: 1. a low risk of reoffending; 2. good prospects of rehabilitation; 3. prior good character prior to the commission of count 2; 4. expressed remorse to others; and 5. limited insight into the effects of the drugs he imported on the community.

[14]

Discounts

As earlier mentioned, the sentencing judge correctly characterised the applicant's past assistance to law enforcement as "a very significant form of co-operation" which led to a number of "significant outcomes which include convictions for persons associated with the importation and money laundering". The level of past assistance, together with future assistance, was characterised by the sentencing judge as "indeed probably [an] exceptional degree of cooperation and undertaking by the [applicant]".
His Honour remarked that the discount being applied was "generally speaking… only given when the assistance is of a very high order".
The applicant submitted that the combined discount was 50%, with 15% of that being for future assistance. The remaining 35% was for the guilty plea and the assistance. Given the assessment of the assistance as at an "exceptional" level, it is likely that the component of 35% that was for a plea of guilty was, in fact below 25%, taking into account the limitations, as the sentencing judge then perceived them, in the Commonwealth sentencing law. The applicant further submitted that, even if it were to be inferred that the sentencing judge afforded a 25% discount, the Court's re-sentencing discretion is enlivened.
It was submitted the level of assistance provided by the applicant is reflected in the "ambit of the assistance and its consequence". The applicant not only provided information to assist but participated in a controlled delivery.
The Crown submitted that the overall discount of 50% that was applied to the applicant's sentence was appropriate and an overall discount exceeding 50% was not warranted in this case.
It was further submitted by the Crown that the Court has stated on numerous occasions that discounts for pleas and assistance of more than 50 per cent should be granted very exceptionally, if at all, 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: R v Sukkar (2006) 172 A Crim R 151; [2006] NSWCCA 92; R v Ehrlich (2012) 219 A Crim R 415; [2012] NSWCCA 38; LB v R [2013] NSWCCA 70 at [62]; Haouchar v R [2014] NSWCCA 227 at [37]; Robinson v R [2017] NSWCCA 315 at [39].
In Z v R [2014] NSWCCA 323, McCallum J (with whom Garling J agreed) said (at [27]): [27] The view has been expressed and endorsed in this Court that, in general a single, combined discount should be given for both a plea of guilty and assistance and that such a discount should not normally exceed 50 percent: SZ v R [2007] NSWCCA 19; 168 A Crim R249 at [3] per Howie J; Simpson J agreeing at [1]; at [53] per Buddin J. Buddin J ventured the view that a combined discount exceeding 50 per cent should be reserved for an exceptional case (at [53]).
A number of findings by the sentencing judge are appropriate in that respect. I will mention those findings below together with some further observations arising from the material before the Court. The sentencing judge: 1. accepted that the applicant's level of assistance was significant; 2. accepted that the applicant was deeply concerned about his safety and that his concern was realistic; 3. recognised a significant amount of endangerment to the applicant and his family both in custody and on release. The applicant has an ongoing concern about a threat to himself and his family, and continues to speak of his fear of reprisal attacks. However, there has been no actual materialisation of that risk. The applicant's classification in custody would suggest the corrections authorities consider the risk to be lower and manageable at that level of security; 4. recognised that the applicant's inevitable time served in protective custody would be more onerous that in the general goal. However, the evidence before this Court indicates that in custody he has been housed in less strict classifications. There is no evidence that, as those custody arrangements have materialised, the applicant's time in custody has been significantly more onerous that the general prison population.
I consider that, having regard to the aforementioned principles, a discount of greater than 50% should not be given for the applicant's plea and his past and future assistance to authorities, notwithstanding that a discount of 25% is warranted for the utilitarian value of the plea and the level of assistance provided was significant. The circumstances of this case are not exceptional so as to warrant a greater discount. Nor would such a discount accord with the principles of sentencing, having regard to the objective seriousness of the drug offences in this case.

Green (a pseudonym) v R

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Judgment (19 paragraphs)

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Legislation Cited (4)

Cases Cited (30)