Jackson v R [2020] NSWCCA 230
Jackson v R [2020] NSWCCA 230 · Read the judgment on AustLII
Catchwords: Sentencing – elderly offenders – crushing sentence
In this decision the Court of Criminal Appeal (‘CCA’) has pointed out that although advanced age can be relevant in many ways, it does not follow that elderly offenders are necessarily entitled to a lower sentence.
The applicant pleaded guilty and was sentenced for importing about 700kg of cocaine (the equivalent of about 548kg pure), and dealing with $60,000. He and his co-offenders organised the importation of the drugs from Tahiti by secreting it in a catamaran.
The applicant got a 40% discount for the combination of his plea and for past and future assistance to authorities. He was sentenced to imprisonment for 19 years and 6 months, with a non-parole period of 12 years and 6 months. He appealed on grounds including that the sentence was manifestly excessive. There was also a challenge to the sentencing judge’s characterisation of his role. That point is not discussed here, except to observe that the CCA (Rothman J, Johnson J agreeing with additional remarks, Bell P agreeing with both) held that it was accurate to describe the applicant as ‘the principal [of the drug enterprise] in Australia’ – and in fact that may have been an understatement (at [55]-[57]) or even a gross understatement (at [64]).
In arguing that the sentence was manifestly excessive, the applicant sought to draw attention to the fact that he was 64 years old at the time of sentencing, with the consequence that he will be 76 years old when the non-parole period expires. He also relied on his health, although the details are not set out in the judgment. As against that, however, in the primary judgment Rothman J pointed out that it was the applicant’s choice to commit an offence of such seriousness at a time in his life when any sentence that would be imposed would be lengthy, and there was no delay in dealing with the proceedings (at [71]-[72]). There is not an automatic discount from an appropriate sentence simply because an offender may be relatively old when first eligible for parole – although the age of the applicant is a relevant factor which the sentencing judge considered (at [73]). An offender’s advanced age may be relevant in a number of ways. For example, it may render imprisonment more onerous than it would be for a younger offender. Or it may be appropriate in fixing an appropriate sentence that the offender should have an opportunity for rehabilitation in the community at the conclusion of the sentence. Where a sentence is so long that it is unlikely that and offender will have any meaningful life afterwards, that may be an important consideration. Advanced age may be relevant in other ways, too, but it was thought unnecessary to list them all (at [74]-[75]). However, in this case, at age 76, the applicant will nowadays likely have many years ahead of him in which to establish his rehabilitation (at [77]). There was a claim that the sentence was ‘crushing’, but it was not the sentence that was crushing; any crushing effect is a result of the applicant’s decision, at his age and health, that he would undertake criminal activity that would attract such a sentence (at [81]).
In the additional remarks of Johnson J (with whom Bell P agreed), his Honour noted that whilst the applicant’s age needed to taken into account, this cannot give rise to the expectation that an older person can offend with relative impunity (at [4]). The description of a particular punishment as being a ‘crushing sentence’ is familiar to courts, but that does not articulate some applicable test. The assessment of whether a sentence is crushing must have regard to the offence committed by the offender, the maximum penalty, and the subjective and objective factors which should be appropriately brought into account sentence (at [6]).
It followed that the appeal was dismissed.