Prosecutors Must Show Letters of Assistance to Defence Lawyers

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By Paul Gregoire and Ugur Nedim

A police officer pulled over Bill Jones (a pseudonym) in the remote Murrumbidgee River region of NSW – close to the border with Victoria – on 25 June 2018 to carry out a random breath test. And the officer became suspicious, as the driver was shaking.

On searching the driver’s vehicle, the NSW police officer found two bags containing quite significant amounts of methamphetamine. So, the officer arrested Jones – who was driving from South Australia to Sydney – and took him to the Balranald Police Station.

Jones voluntarily took part in an interview at the station, in which he admitted there was another sizable bag of ice in his car. All up, the police found 19.682 kilograms of methamphetamine in the vehicle, along with two smaller bags containing 201.6 grams of ephedrine: a prohibited stimulant.

In going before the NSW District Court for sentencing over charges of supply, it was heard that Jones had arrived in Australia in 2000 as a refugee, and due to the anxiety and depression he experienced, he wasn’t able to work with other people.

Jones also supplied assistance to police in the form of information regarding another matter that was of such a sensitive nature that its details couldn’t be disclosed during proceedings, but the fact that he had willingly provided this help served as a factor that lessened the length of his sentence.

Sentencing proceedings

Despite Jones pleading guilty early on, his sentencing proceedings were drawn out over six days between February and May 2019. The hearings began at Broken Hill District Court and ended in Sydney District Court, while Jones was first represented by a solicitor and later a barrister.

The first charge Jones was sentenced in relation to was one count of supplying a large commercial quantity of a prohibited substance, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for this offence is life imprisonment and/or a fine of $550,000.

This offence also carries a standard non-parole period of 10 years imprisonment. An SNPP is a reference point or guidepost for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

Jones also pleaded guilty to one count of supplying an indictable amount of a prohibited drug, contrary to section 25(1) of the Act. This crime carries a maximum penalty of 15 years behind bars and/or a fine of $220,000.

The second charge was in relation to the ephedrine and it was placed on a Form 1. This meant that instead of being separately convicted and sentenced for this offence, it was taken into account when the sentence was handed down for the principal offence, that being large commercial supply.

On 16 May 2019, NSW District Court Judge Paul Lakatos sentenced Jones to 9 years and 3 months prison time, with a non-parole period of 6 years and 9 months.

A discount of 25 percent was applied to this sentence in relation to the utilitarian value of Jones having pleaded guilty at the earliest possible time. And a 10 percent discount was further applied in recognition of the assistance Jones had given to police in regard to another matter.

His Honour outlined that the sentence without the 35 percent discount having been applied would have consisted of 14 years and 3 months as a head sentence, with non-parole set at 10 years and 5 months.

A question of fairness

Jones went on to appeal his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 16 August this year.

The offender raised one ground on appeal. This involved his being “denied procedural fairness by not having the opportunity to view the material that was provided to the Court describing the nature and extent” of the assistance he gave authorities.

As NSWCCA Justice Richard Cavanagh explained, the matter all boiled down to an exchange on the last day of the sentencing proceedings, which occurred between the sentencing judge, the Crown prosecutor and Jones’ lawyer.

The exchange begins with the prosecutor asking the judge to close the court, so she can deliver the document containing the matter Jones assisted the police with. And the sentencing judge confirmed the matter was not to do with the offender’s case directly.

Jones’ lawyer then outlined that he hadn’t seen the evidence. The sentencing judge asks the defence lawyer if he’d like to see the document, to which he states that he does, and his client would also like this to be the case.

However, the prosecutor then steps in to advise that if the lawyer does wish to look over this evidence the person who produced it in South Australia would have to be consulted beforehand.

At this point, the sentencing judge confirms that what is contained in the document will prove favourable to Jones. And the defence lawyer decides not to hold up matters any further – being the sixth day of proceedings – and the hearing continues on to sentencing.

Developments from on high

Justice Cavanagh explained that Jones’ appeal had been prompted by the 2019 High Court case HT versus the Queen, in which it was found that a defendant had been denied procedural fairness as her lawyers weren’t provided access to assistance evidence due to public interest immunity.

His Honour further outlined that in HT, it was heard that the trial court had assured the defendant that the evidence, which was denied the defence team, was favourable to their client and therefore there wasn’t such a necessity for it to be viewed.

However, the High Court unanimously ruled that this was beside the point.

And while it was true in Jones’ case that an offer to cite the evidence was made, his Honour pointed out it was also true that his lawyer had stated that Jones had requested it be looked at, and it was the Crown’s interjection and the drawn out timeframe that led to this request not being adhered to.

Jones “was in the position that he could not make submissions as to the content of the confidential material and not determine whether it was of such significance that it would warrant a substantial discount in penalty”, Justice Cavanagh said, because he was not presented with the material.

“He was thus denied procedural fairness,” his Honour concluded.

Orders on appeal

As the NSWCCA found procedural fairness had been denied, Justice Cavanagh granted the appeal and ordered that the original sentence be quashed on 22 September this year. And the matter was remitted to the NSW District Court for resentencing.

Despite the Crown suggesting that resentencing should happen during the appeal, his Honour stated that this would simply repeat what had occurred during the original sentencing hearing, as Jones would still not have cited the evidence and been able to present submissions in regard to it.

NSWCCA Justices Lucy McCallum and Peter Hamill agreed with their colleague’s orders.

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