R v BDW; R v DAA

This case was about the proper construction of s 161S(2) Penalties and Sentences Act 1992, a procedural provision within Pt 9D which applies to the sentencing of offenders for serious and organised crime. The Court held, per curiam, that s 161S(2)(b) creates an additional or threshold requirement of “significant use” before future or past cooperation can be taken into account to reduce or mitigate a sentence under ss 13A or 13B, which does not otherwise apply when sentencing a person for offences under Part 9D. For future or past cooperation to be of “significant use” it must be of real use to a successful prosecution of a proceeding about a major criminal offence. Where this threshold is not met, the procedure under ss 13A and 13B does not apply. There was no error in the approach of the sentencing judge. Leave to appeal was allowed given the importance of resolving questions of statutory construction, however, the appeal was dismissed.

Bowskill CJ and Mullins JA and Boddice J

22 November 2022

Background

BDW and DAA (together, the “applicants”) sought leave to appeal against sentence. [1]. The applicants had been convicted and sentenced for trafficking in dangerous drugs with a circumstance of aggravation, namely, as participants of a criminal organisation contrary to s 5(1) Drugs Misuse Act 1986 and s 161Q(1) Penalties and Sentences Act 1992 (the “aggravated offence”). [1], [7]. The aggravated offence was a “prescribed offence” for the purpose of s 161R, which meant that Part 9D, which deals with sentencing of offenders for serious and organised crime, applied to the sentencing of the applicants for the aggravated offence. [5]–[8].

Under Part 9D the sentencing judge was required to impose a total effective sentence with a “base component” and a “mandatory component”: s 161R(1)–(2). [8]. The base component was the sentence for the aggravated offence without regard to, inter alia, the applicable mandatory component: s 161R(2)(a). [8]. The applicable mandatory component was 7 years’ imprisonment: s 161R(2)(b). [8]. The mandatory component had to be served cumulatively with the base component and could not be “mitigated or reduced” under any law, which relevantly, includes the procedure under ss 13A and 13B which allows for the reduction of a sentence to take into account cooperation: s 161R(3). [8].

The factual basis of sentence was contested. [2]–[3]. The factual controversy was whether the undertakings to cooperate with law enforcement agencies, which had been given by each applicant, would be “of significant use in a proceeding about a major criminal offence” under s 161S, which is the “only means” by which the mandatory component can be mitigated or reduced. [3]. The sentencing judge found that the future cooperation would not be of “significant use” which meant that the applicants were required to serve the mandatory component cumulatively with the base component. [3], [35], [37]. It was argued that such a finding was not open on a proper construction of s 161S:

Whether the sentencing judge correctly applied s 161S(2) Penalties and Sentences Act 1992

Where an offender is sentenced under Part 9D and undertakes to cooperate in the future, the court must be satisfied that the cooperation will be of significant use in a proceeding for a major criminal offence under s 161S. [22]. It follows that s 161S imposes an additional or threshold requirement before the procedure under s 13A can have any application. [22]. The words “significant use” in the text of subparagraph (b) must bear their plain meaning. [24]. The focus is “not on how cooperative the offender has been; the question of ‘significant use’ is a reference to the use of the evidence which has been provided”. [24]. This construction is consistent with the competing purposes of Part 9D. [25].

The applicants argued that there is a public interest in the threshold test of “significant use” not being too onerous. [26]. The Court rejected this submission. [26]. The context of the threshold test contained in s 161S(2)(b) is to limit the circumstances where s 13A can operate to ameliorate the consequences of the “mandatory regime” under Part 9D. [39]. The Court held that two requirements must be met for s 161S(2) to be satisfied: the offender has undertaken to cooperate in a proceeding for a major criminal offence; and the cooperation is of significant use, not merely of use. [39]–[41]. The Court observed that having regard to the text, context and purpose of s 161S(2)(b) “significant use” means that:

“… [T]he offender’s cooperation … need not be an essential part of the prosecution case, but must involve more than undertaking to give evidence of a peripheral nature in the proceeding about a major criminal offence. The evidence must be of real use to a successful prosecution of the proceeding about a major criminal offence”. [42].

The applicants both gave induced statements which outlined the evidence they undertook to give in a proceeding for a major criminal offence. [31]–[32]. The Court considered that this was the appropriate approach to assessment of “significant use” in the context of future assistance. [33]–[34]. It was argued that the threshold should be applied with reference only to the induced statement and what facts must be proved to establish the relevant major criminal offence. [30]–[32]. The Court rejected this submission. [30]. The threshold test in s 161S(2)(b) requires “a qualitative evaluation of the cooperation which has been offered, which must be undertaken in the circumstances of the particular case”. [30].

The sentencing judge had found that the cooperation, even had the applicants not been charged with the aggravated offence, would not have attracted a reduction. [37]. The induced statements related to one person and disclosed nothing that was not already known. [37]. DAA’s induced statement was “vague, imprecise and empty of material” and suggested that she was a “passive participant” which was inconsistent with the other evidence. [49]. The prosecution did not intend to call the applicants to give evidence, which could be taken into account. [43]. There was no error in the approach of the sentencing judge. [44]. It was open to conclude that the cooperation would not be of “significant use”. [44].

Disposition

In the result, leave to appeal was allowed and the appeals were dismissed. [44], [51], [54]–[56].

D Kerr