Regina v K. [2000] NSWCCA 73 | Case summary

SIMPSON J : 1 On 16 October 1997 the applicant was sentenced by his Honour Judge H H Bell ADCJ following his pleas of guilty to two charges. The first was a charge of knowingly taking part in the manufacture of not less than the large commercial quantity of a prohibited drug (the drug commonly known as Ecstasy). By reason of the quantity of the drug involved the applicant was, by s 24 (2) of the Drug Misuse and Trafficking Act 1985, exposed to a potential penalty of imprisonment for life. The second charge was a charge of escaping lawful custody. By s 34(2) of the Correctional Centres Act 1952 the applicant was exposed to a maximum penalty of penal servitude for ten years, which, by sub s (2), was required to be cumulative upon all previous sentences imposed by the court. 2 On the count of escape Bell ADCJ sentenced the applicant to a fixed term of penal servitude for three years to commence on 16 October 1997 and expire on 15 October 2000. On the drug manufacturing charge he imposed a cumulative sentence of five years' imprisonment, made up of a minimum term of two years commencing on 16 October 2000 and expiring on 15 October 2005. By application dated 10 November 1997 the applicant seeks leave to appeal against the sentences. 3 The facts were these. On 25 February 1994 the applicant was convicted of a charge of manufacturing a prohibited drug, a charge of knowingly being concerned in the importation of a prohibited drug (LSD), and a charge of possession of narcotic goods reasonably suspected of having been unlawfully imported. The last two being Commonwealth offences, the applicant was sentenced to imprisonment for six years with a non parole period of thirteen months and one week, commencing on 25 February 1994; and on the first charge, a State charge, to imprisonment for six years made up of a minimum term of two and a half years and an additional term of three and a half years. He was to be eligible for parole on 20 September 1996. 4 By April 1996 the applicant was attending Meadowbank TAFE pursuant to pre-release arrangements in the Department of Corrective Services. On 2 April he attended TAFE but failed to return to the prison. On 22 February 1997 he was apprehended by police in a Sydenham hotel. Initially he supplied false particulars to police and he had in his possession a birth certificate that did not belong to him. 5 An electronically recorded interview was conducted on 23 February 1997. The applicant admitted that he had been involved in the manufacture of Ecstasy in a laboratory at Brookvale. In fact police already had information to that effect because a fire had taken place in the laboratory on 25 August 1996 and investigation of the fire had yielded evidence of the illicit drug manufacture that was taking place therein. The applicant's fingerprints had been identified on equipment and documentation in the premises. Three kilograms of Ecstasy was recovered from the damaged laboratory. This is six times more than the quantity which constitutes a large commercial quantity. 6 At the time of the interview the applicant gave information about his own involvement but declined to nominate others involved. He told police that he had been involved in the project whilst in prison and that his escape had been engineered to allow a greater level of participation because of a lack of success on the part of those more closely engaged in the operation. 7 Subsequently the applicant gave considerable assistance to the authorities in relation to certain criminal offences. It is inappropriate here to detail that assistance. Evidence of the assistance was placed before the sentencing judge using the customary sealed envelope procedure. 8 The judge's remarks on sentence expressing his reasons for adopting the course he took can be dealt with briefly. He had regard to the seriousness of the drug offence and the previous drug offences. Although he did not specifically refer to it in the remarks on sentence there was evidence undoubtedly taken into account by him of the applicant's personal history. He was born on 19 April 1965 and was thirty-one years of age at the time he was engaged in the manufacture. He was born in Hungary and was a gifted student, but, following anti-communist activities, he escaped in 1986 and came to this country as a political refugee. He has had a variety of different forms of employment interspersed with periods of imprisonment, invariably drug related (although there is no suggestion that he is in any way addicted to or a user of drugs). 9 Having considered all the material, Judge Bell concluded that, absent the assistance that had been given by the applicant, the appropriate sentencing starting point, for the two charges combined, was "something in excess of twelve years". This he reduced, applying the principles in R v Cartwright (1989) 17 NSWLR 243, to a total term of eight years with an effective minimum term of five years and an additional term of three years. He achieved this by sentencing the applicant firstly on the escape charge, in relation to which he imposed a fixed term of imprisonment to commence on 16 October 1997, and secondly on the drug charge, in relation to which he imposed a cumulative sentence of five years divided into a minimum term of two years and an additional term of three years. 10 It is important to note that, following imposition of those sentences, both parties recognised their appropriateness and neither saw fit to appeal. Both now maintain their acceptance of the correctness of the sentences as then imposed. 11 The application to this Court was based entirely upon fresh evidence adduced on behalf of the applicant. The Crown did not contest the admissibility of the evidence nor its relevance. Put shortly, it established that the assistance the applicant had rendered to authorities both before and since sentencing was of greater value than had previously been appreciated. Detective Inspector Willingham, a very experienced and highly ranking police officer gave oral evidence to that effect, saying, in essence, that the value of the applicant's assistance ranked among the highest he had seen. 12 I do not propose to say more about the nature of the applicant's assistance. Affidavits and statements have been placed in a sealed envelope which will remain with the papers and be marked for disclosure only on the order of a judge of this Court. 13 Counsel for the Crown did not argue against the proposition that the additional evidence cast the applicant's assistance in a new light such that this court ought set aside the sentences imposed and sentence afresh. The Crown Prosecutor did, however, caution against reducing the sentence to a level that failed to meet the objective seriousness of the applicant's conduct. He reminded the Court of the provisions of s 442B(2) of the Crimes Act 1900 which is a statutory direction to a court reducing a sentence by reason of assistance to authorities not to "reduce a sentence so that the sentence becomes unreasonably disproportionate to the nature and circumstances of the offence". Counsel argued that any sentence less than that imposed would infringe that statutory injunction. He reminded the Court of the quantity of the drug involved and the applicant's recidivism in this respect. 14 It will be seen that there is in fact a good deal of common ground between the parties. Both accept that the sentencing judge's starting point of twelve years was then appropriate. Both accept that the reduction then made was then appropriate. Both accept that the sentences imposed were, in the light of what was appreciated at that time, appropriate. Both accept that the new material before this Court should be regarded as putting a different, and more favourable to the applicant, complexion on his assistance. Both accept that this Court should re-sentence, taking into account the recent evaluation of the applicant's assistance. The point of departure is the Crown's argument that the sentences in fact imposed were at the bottom of the range properly available and that further to reduce the sentences would transgress s 442B(2). 15 I do not agree. I have carefully read the material detailing the applicant's assistance and I have carefully considered Inspector Willingham's evidence. Discounts of 50 percent in recognition of substantial assistance have not been uncommon in the past, and discounts in excess of that figure are not unheard of. 16 Having regard to the evidence of Detective Inspector Willingham in particular, and the material in the sealed envelope, I am of the view that the applicant is entitled to a discount of 50 percent from the sentencing judge's starting point of a total term of twelve years for both offences. That results in a combined total term of six years. Like the sentencing judge I would sentence first on the charge of escape lawful custody and impose a fixed term of two years commencing 16 October 1997. On the drug manufacturing charge I would impose a total term of imprisonment for six years, to be served concurrently with the sentence for escape. I would divide that into a minimum term of four years and an additional term of two years. I adopt the reason of the sentencing judge for electing to impose a fixed term on the escape charge, and for varying the ratio contained in s 4(a) of the Sentencing Act 1989 on the drug charge. 17 The orders I propose are as follows:

Regina v K.

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