Cappis v R [2015] NSWCCA 138 (12 June 2015)

Last Updated: 15 June 2015

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Cappis v R
Medium Neutral Citation:	[2015] NSWCCA 138
Hearing Date(s):	1 June 2015
Date of Orders:	12 June 2015
Decision Date:	12 June 2015
Before:	Gleeson JA at [1] Johnson J at [2] Garling J at [3]
Decision:	(1)Application for leave to appeal granted. (2)Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal – sentence – self represented appellant – whether error in discount for early plea – no offender has an entitlement to a particular discount – CRIMINAL LAW – appeal – sentence – whether Judge erred in concluding a conviction was inevitable – Crown case compelling – open for sentencing Judge to conclude conviction inevitable – CRIMINAL LAW – appeal – sentence – whether bad legal advice – no bad legal advice – CRIMINAL LAW – appeal – sentence – whether error that no further discount for compassionate grounds – appellant a Canadian national – that appellant a foreigner of strictly limited significance – intentionally visited Australia to commit crime
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code 1995
Cases Cited:	Danial v R [2008] NSWCCA 15 R v Ferrer-Esis (1991) 55 A Crim R 231 Trujillo-Mesa v R [2010] NSWCCA 201 Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Shawn Jason Cappis (Applicant) Regina
Representation:	Counsel: Self Represented (Applicant) T Anderson (Crown) Solicitors: Self Represented (Applicant) Commonwealth Director of Public Prosecutions (Crown)
File Number(s):	2013/228673
Publication Restriction:	Not Applicable
Decision under appeal:
Court or Tribunal:	District Court of NSW
Jurisdiction:	Criminal
Date of Decision:	29 May 2014
Before:	Phegan ADCJ
File Number(s):	2013/228673

JUDGMENT

1. GLEESON JA: I agree with Garling J.
2. JOHNSON J: I agree with Garling J
3. GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of NSW by his Honour, Acting Judge Phegan on 30 May 2014.
4. The applicant, Shawn Jason Cappis, pleaded guilty before Phegan ADCJ to a single offence contrary to ss 11.1 and 307.6(1) of the Criminal Code 1995 (Cth), namely that:

“Between 15 March 2013 and 27 July 2013, at Sydney, in the State of NSW, [he] attempted to possess a substance, the substance having been unlawfully imported and the substance being a border controlled drug, namely, methamphetamine, and the quantity possessed being a marketable quantity.”

5. This offence involved 679.7gms of pure methamphetamine.
6. The offence carries a maximum penalty of 25 years imprisonment, and/or in addition a fine of $850,000.
7. Phegan ADCJ imposed a sentence of 6 years and 9 months imprisonment commencing on 27 July 2013 with a non-parole period of 4 years commencing on that day, and expiring on 26 July 2017.

Facts

8. The following summary of facts is taken from the Agreed Statement of Facts tendered to the sentencing Judge, and from his Honour’s summary.
9. The applicant was friendly with a Canadian male, Mr Danny Quart. They shared a room at the Falcon Lodge in North Sydney. At the same time as the applicant and Mr Quart were resident at the Falcon Lodge, two Icelandic nationals were also resident there. The four became friendly.
10. On 11 June 2013, the applicant ceased residence at the Falcon Lodge, as did Mr Quart. Mr Quart returned to Canada from Australia shortly afterwards. On 18 July 2013, the applicant transferred money to Mr Quart in Canada.
11. On 22 July 2013, the applicant, who had travelled to Queensland, telephoned the manager of the Falcon Lodge, enquiring as to whether a package had arrived for “his buddy”, a reference to Mr Quart. He asked the manager to contact him on a mobile telephone number when the package arrived.
12. On the following day, a package on consignment from Canada addressed to Mr Quart at Falcon Lodge, was received at Falcon Lodge. The applicant telephoned the manager and asked him if the package had arrived and, because he was in Brisbane, asked the manager to give the package to his two Icelandic friends.
13. The AFP intercepted the package, forensically examined it, and established that there were four brown-coloured bottles inside containing liquid consisting of between 30% and 37% of pure methamphetamine. The forensic analysis established that the total amount of pure methamphetamine secreted inside the four brown-coloured bottles was 679.7gms.
14. Later on 23 July 2013, the applicant contacted his Icelandic friends and asked them to collect the package for him. He told them that the package contained clothes. That was clearly untrue to his knowledge.
15. There was some difficulty in locating the package at the Falcon Lodge, because the AFP had possession of it. The package was replaced, and on the next day, 24 July 2013, the applicant telephoned the manager at the Falcon Lodge to ascertain whether the package had been located. He was told that it had been. He told the manager that his Icelandic friends would return to collect the package. The applicant then sent them a text message asking them to return to the Falcon Lodge to collect the package.
16. Late in the evening of 26 July 2013, the applicant flew from Brisbane to Sydney. He travelled to the Kings Cross area.
17. On the following day, 27 July 2013, the applicant telephoned a male, Mr Jong Hyon Kim (whom the applicant referred to as “Jack”). He made arrangements to meet Mr Kim in a specified location in Chinatown.
18. On the afternoon of 27 July 2013, the applicant travelled by taxi to the Falcon Lodge and met with his Icelandic friends. He retrieved the package from them. After about 30 minutes the applicant left the premises at North Sydney and travelled to Chinatown where he met Mr Kim. He handed a plastic shopping bag to Mr Kim containing the contents of the package which had been sent from Canada to the Falcon Lodge.
19. The applicant and Mr Kim parted ways, and shortly thereafter the applicant was arrested.
20. Mr Kim was followed and observed, and about an hour after the applicant was arrested, Mr Kim was also arrested. The plastic shopping bag handed to him by the applicant was recovered. Inside the plastic shopping bag were the four brown-glass bottles matching the bottles which had been received at Falcon Lodge.
21. About a month later, one of the two Icelandic friends was arrested and charged.

Sentence Proceedings in the District Court

22. In the proceedings on sentence which took place on 29 May 2014, the Crown tendered an Agreed Statement of Facts. The Crown informed the Court that the applicant did not have any previous criminal history.
23. The applicant’s counsel tendered a psychological report of Ms Anna Robilliard. No other evidence was put before the Court.
24. The Crown handed up written submissions on sentence, and provided a schedule of cases which, the Crown submitted, were comparable.
25. The applicant’s counsel made submissions orally. As well, the applicant’s counsel handed up to the Court a two page document containing a table of other cases, and sentences which had been imposed.
26. The report of Ms Robilliard was not subject to any cross-examination by the prosecutor. The report recorded that the applicant was born in Calgary and was aged 34 at the time of his offence. He came from a family of three children. He was the youngest. After an initial period of time of living with his father and mother, their marriage broke down and his mother, together with all of her children, moved across Canada to a different province. There, the applicant’s mother remarried. He seems to have had a reasonably stable family life thereafter. However, he had some difficulty at school where it appears that he had violent tendencies and a quick temper. The applicant reported to Ms Robilliard that this tendency to violence had generally ceased by about his mid-20s.
27. Having left school, he engaged in a range of casual employment. At the age of 21 he moved to Japan and remained there for two and a half years. He found employment in Japan teaching English. He thereafter returned to Canada where he was in only part-time employment.
28. The applicant had a number of personal relationships. He reported that he had no particular difficulties with his health other than the fact that since about the age of 20 he had been treated for an anxiety disorder for which he was taking medication. He reported that whilst in custody, he had occasionally had panic attacks.
29. According to Ms Robilliard’s report, the applicant reported that he had been using drugs and alcohol since his mid-teens. In particular, from the age of about 19 onwards, he had been accustomed to using cocaine.
30. He reported to Ms Robilliard that he had arrived in Australia from Canada in March 2013, and had planned to stay in Australia for about six months. He reported that he had been a heavy user of cocaine whilst in Australia.
31. Ultimately, Ms Robilliard summarised the applicant’s position in this way:

“Since his arrest and imprisonment, he said he has been able to look back and recognise that his pattern of substance use had escalated out of his control and in recent years he was involved in a sub-culture that shared his lifestyle which enabled him to deny the seriousness of his addictions. This is no longer the case, and Mr Cappis said that he now realises his addictions have directly contributed his criminal involvement and the current legal situation. He described participating in the index offences as the worst mistake of his life. He maintained that he has since made a decision never to use illegal drugs again and minimise his use of alcohol.”

32. The applicant informed Ms Robilliard that he intended to return to Canada on his release from custody, initially to stay with his family.
33. Ms Robilliard thought that the applicant would benefit from individual psychotherapy sessions, training courses that would increase his vocational skills and knowledge, and also monitoring and management of his psychoactive medications both whilst in custody and after his release.
34. During the sentencing proceedings, the Crown submitted that the applicant performed the role of the principal recipient of the drugs in Australia and that, although there was no specific evidence to suggest that the applicant was to receive any financial reward for his role in the offence, a common sense inference was that the applicant was involved for profit.
35. The Crown noted in submissions that the quantity of drugs was significantly above the minimum marketable quantity, and that general deterrence was fundamental consideration in the assessment of the appropriate sentence.
36. Counsel for the applicant did not demur from the descriptions of the applicant’s involvement in the offence. She conceded that her client “did not appear to be at the bottom of the chain”, but that he fell somewhere in the middle because he was not the principal of the offence.
37. The Crown’s submissions noted that the Court should take into account the applicant’s plea of guilty. The Crown conceded that the applicant had entered a plea of guilty at the first reasonable opportunity. However it added this submission:

“However, given the strength of the Crown case, the Crown submits that the Court could not be satisfied that the offender’s plea was more than recognition of the inevitable.”

38. The Crown submitted that the strength of the Crown case may be taken into account and that by reference to a number of authorities, the Court was entitled to consider whether the applicant’s plea was motivated by a willingness to facilitate the course of justice, or simply a “recognition of the inevitable”.
39. The Crown noted, with respect to sentencing for Commonwealth offences, that it was reasonable to adopt a range of discounts of between 10% and 25%. The Crown also noted in its submissions that it was not necessary for a court to specify the quantity of the discount to which regard had been had.
40. On the issue of a discount for the early plea of guilty, the only submission made by counsel for the applicant was that the Court would:

“... allow for the plea of guilty, for the plea at the earliest opportunity, that being in the Local Court”.

41. Counsel for the applicant then addressed his Honour with respect to a series of specific cases. At the end of that address, she said:

“But your Honour, my ultimate submission to you ... would be that the Court may consider that a head sentence somewhere between 5 and 7 years is appropriate in this case.”

42. Counsel for the applicant had previously submitted, having regard to the fact that the applicant was facing his first full-time period of custody, and that he would be returning to Canada upon the completion of any minimum term, that:

“I would ask the Court to consider imposing a minimum term of around the 60-65% mark.”

Remarks on Sentence

43. Phegan ADCJ proceeded to sentence the applicant on 30 May 2014, which was the day following the submissions which had been made.
44. His Honour summarised the Agreed Statement of Facts. He summarised the effect of the report of Ms Robilliard. He then addressed the specific provisions of s 16A of the Crimes Act 1914 (Cth). He also noted that it was important to include as a relevant factor, the concept of general deterrence in any of his statements.
45. The sentencing Judge concluded with respect to the role of the applicant in the offence, that he was not a mere courier, and that he had a role in the importation of the drug which was significant. His Honour said:

“He clearly was an active participant and very much part of the putting in place with the arrangements which brought about the importation of the drug and indeed, even beyond that, the somewhat clandestine arrangement for its collection and its further distribution through Mr Kim.”

46. His Honour concluded that the applicant was at a level of “some significance” in the course of the importation.
47. His Honour moved on to note the quantity which he found was significantly in excess of the minimum marketable quantity of drugs.
48. His Honour then turned to the subjective factors of the applicant’s personal history, and summarised them. He noted in particular that the applicant had no prior criminal record in Australia.
49. His Honour then considered the question of the early guilty plea. He had regard to the fact that the plea occurred at the earliest reasonably practicable opportunity, and also that the case against the applicant was very strong and that a conviction, his Honour found, was almost inevitable. His Honour then said:

“In the circumstances therefore, I regard a reduction of what might otherwise have been the appropriate sentence, by something in the vicinity of, or slightly in excess of, 15% to be appropriate.”

50. Having addressed all of those matters, his Honour then imposed the sentence to which earlier reference has been made.
51. It is convenient to note at this point that the sentence (6 years 9 months) fell within, but towards, the upper end of the range (5 years to 7 years) which counsel for the applicant had submitted was the appropriate head sentence. The non-parole period was about 60% of the overall sentence. This was the most favourable percentage to the applicant urged upon the Court by the applicant’s counsel (60% to 65%).
52. The sentence was dated to commence from 27 July 2013, which was the date upon which the applicant was taken into custody.

Application for Leave to Appeal

53. On 2 February 2015, the applicant lodged a Notice of Application for leave to appeal against his sentence.
54. The grounds of appeal drafted by the applicant himself were as follows:

“1. Not granted my full 25% discount for my early guilty plea.
2. Bad legal advice.
3. Judge’s comments.
4. Discount for compassionate grounds.”

Ground 1: Inadequate Discount for Plea of Guilty

55. The applicant’s written and oral submissions were concise. He submitted that he entered a plea of guilty at the earliest point in time. He submits that he had been advised by his lawyer that he would be given a full 25% discount, that he feels that the 25% discount was “an entitlement”, and that it was an error on the part of the Judge to fail to give him a 25% discount, to represent his early plea of guilty. He drew the Court’s attention to many cases where a discount of 25% had been allowed for an early plea.
56. It cannot be doubted that a significant consideration with respect to the appropriate allowance by way of a discount to an offender who pleads guilty, is whether the plea was entered at the first reasonable opportunity. Here, that was conceded by the Crown, and recognised by the sentencing Judge.
57. The central matter which is required to be considered by the sentencing Judge is the willingness of the offender to facilitate the course of justice by entering the plea. In assessing that willingness, when a sentencing court is dealing with a Commonwealth offence, a relevant consideration for the sentencing Court is the strength of the Crown case against the offender: see Tyler v R; R v Chalmers [2007] NSWCCA 247 at [114] per Simpson J[2007] NSWCCA 247; , 173 A Crim R 458; Danial v R [2008] NSWCCA 15 at [28] per James J.
58. Clearly, there was a strong Crown case against the applicant. As the facts and matters discussed below in [74] and [75] show, a conviction was inevitable. There was no error in the sentencing Judge fixing a discount by having regard to such features.
59. In that respect, it cannot be said that the choice of the figure of 15% for the discount was an inappropriate one.
60. The applicant submitted that he had an entitlement to a discount of 25%.
61. A similar submission was made, and rejected, by this Court in Trujillo-Mesa v R [2010] NSWCCA 201. Fullerton J (with whom Hodgson JA and Price J agreed) said at [17] this:

“This Court has restated in a number of decisions, and without qualification, that there is no entitlement to and no presumption favouring a particular percentile discount for a plea of guilty.”

62. The applicant’s submission that he had an entitlement to a discount of 25% is simply wrong and must be rejected.
63. I would reject the first ground.

Ground 2: Bad Legal Advice

64. The applicant submits that his lawyer informed him that he would be given a full 25% discount for his plea of guilty. The applicant asserts that the lawyer “promised” this to him. He says that the lawyer reassured him that he would receive such a discount.
65. He then submitted:

“When judge said only granted 15%, I urged lawyer to fight. She said don’t fight in front of this judge ‘we will appeal’. ”

66. There is no evidence before the Court as to what the legal advice actually given to the applicant was. The applicant does not suggest in his written submissions that, had he been given different advice, he would not have entered a plea of guilty. There is no application to withdraw his plea of guilty.
67. The proposition that the advice that he received was bad advice depends upon the fact that he was confident that he would receive a 25% discount. For the reasons which I have expressed in dealing with the first ground of appeal, no offender has an entitlement to any particular discount, there is no fixed percentage discount which is applicable in all circumstances, and the application of the discount is a matter entirely for a sentencing Judge.
68. It can be accepted that the applicant’s lawyer may have anticipated a higher discount than 15%, and may have said that to the applicant. However, any such advice is always, in respect of any discretionary consideration in the sentencing process, a matter which is ultimately for the decision of a Judge, and a matter upon which no offender can expect to be given any firm assurance.
69. The applicant complains that his lawyer did not fight the judge when a 15% discount was announced. However, in the course of submissions, no percentage discount was discussed either by the Crown during its submissions or during oral submissions of counsel for the applicant. In the course of discussion during submissions, no percentage discount was raised or discussed. The only time the sentencing Judge announced the discount, was in the course of his Remarks on Sentence. It was at that stage, clearly inappropriate for counsel for the applicant to have said anything at all.
70. This ground of appeal must, in my view, be rejected.

Ground 3: Judge’s Comments

71. The applicant submits that, in effect, the conclusion of the sentencing Judge that, upon the facts, a conviction for his offence was inevitable, was not one that could properly be reached or determined at all.
72. The applicant’s written submissions say that he is not sure how anyone can determine what he would or would not do in any case. He points to the fact his case was dealt with promptly, expeditiously and efficiently with concomitant savings of costs.
73. In my view, this ground has no merit and ought be dismissed.
74. On the facts placed before the sentencing Judge, the evidence gathered by the Crown was overwhelming. The friendship between the applicant and Mr Quart, the transfer of money by the applicant to Mr Quart followed shortly thereafter by the receipt of a package at the residential address of the applicant, which Mr Quart had left, and the enquiries made by the applicant of the manager of the premises to identify the arrival of the package, all provide compelling evidence that the applicant knew that the package was being imported.
75. The recorded discussions between the applicant and his Icelandic friends when the package was being unwrapped, his arrangements with Mr Kim to deliver the package to him and hand over the contents of it, and his actions in taking the contents of the package from Falcon Lodge to Chinatown and handing them over to Mr Kim, which were observed and available to be proved by independent, reliable and corroborated evidence, all demonstrate that this applicant knew that it was a package containing illicit drugs, and was keen to obtain possession of it. The Crown case was compelling.
76. The conclusion of the sentencing Judge was well open to him. There is no error of fact. The applicant’s submissions must be rejected.

Ground 4: Compassionate Grounds

77. The applicant submits that he ought to have been given a further 5% discount on his sentence because he was a foreigner, and that his time in prison would be difficult. He submitted that he has no family or friends to visit him whilst he is in prison. He apparently receives no visits and, because he is a foreigner, he is not able to access work release or weekend leave. He submits that it is hard being away from home, family and friends and in prison.
78. This Court has said on many occasions that these matters are of strictly limited significance.
79. In R v Ferrer-Esis (1991) 55 A Crim R 231, Hunt J (with whom Gleeson CJ and Lee CJ at CL agreed) said at 239:

“There were a number of subjective facts which the Judge took into account. The respondent is incarcerated in a foreign country, living amidst a foreign language and a foreign culture. He is isolated from any outside contact. However, with all due respect to the views to the contrary, which may have been expressed by others, I do not consider that very much weight should be given to that particular circumstance.
The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here (as did the respondent) has not justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact. ...”

80. There is no reason why the fact that any foreigner, present in Australia, as a temporary visitor, who chooses to commit a crime in the deliberate way in which this applicant has, ought expect that such hardship as inevitably follows from being isolated from and friends, ought carry any significant weight.
81. The applicant’s submissions suggest an entitlement to a further 5% discount to reflect this factor. There is no such entitlement. His isolation from family and friends is a factor to be considered, but one which is of very limited significance.
82. Here, on the particular facts of this case, it was a matter which carried very little, if any, weight in the sentencing process. I detect no error on the part of the sentencing Judge with respect to this aspect.
83. This ground fails.

Conclusion

84. No error has been shown with respect to any of the grounds advanced on the appeal.
85. There was no ground which raised any suggestion of a manifest excess in the sentence imposed by the sentencing Judge. Having regard to the seriousness of the offence, and the potential maximum penalty, the sentence is one which, on any view, is well within the range available to a sentencing Judge in the exercise of their discretion.
86. Accordingly, I do not hold the opinion that any less severe sentence is warranted in law, and should have been passed.
87. I propose the following orders:
    • (1) Application for leave to appeal granted.
    • (2) Appeal dismissed.

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