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[2011] NSWCCA 33
Court of Criminal Appeal (NSW)
2011-02-07
McClellan CJ, Buddin J, Schmidt J, Clellan CJ
Original judgment source is linked above.
Judgment 1McCLELLAN CJ at CL ; I agree with Buddin J. 2BUDDIN J : These applications for leave to appeal, which were heard together by consent, involve challenges to the sentences imposed upon the applicants in the District Court. Each of the applicants pleaded guilty to various drug offences which were committed in contravention of the Criminal Code Act 1995 (Cth). 3The applicant Alvares stood for sentence in respect of the following offences: Count One: Conspiracy to Import Commercial Quantity of a Border Controlled Precursor. Between about 7 June 2007 and 25 July 2007 at Sydney, in the State of New South Wales and elsewhere, did conspire with Hassan Farache and Shelton Chowsen and divers others to import a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely phenyl-2-propanone (P2P), and the quantity being a commercial quantity. Offence on Schedule: Conspiracy to Pre-Traffic a Commercial Quantity of a Border Controlled Precursor. Between about 7 June 2007 and 25 July 2007 at Sydney, in the State of New South Wales and elsewhere, did conspire with Hassan Farache and Shelton Chowsen and divers others to pre-traffic in a substance, the substance being a border controlled precursor, namely phenyl-2-propanone (P2P), and the quantity pre-trafficked being a commercial quantity. Count Two: Import a Commercial Quantity of Border Controlled Precursor (P2P). Between 28 February 2008 and 12 March 2008, at Sydney in the State of New South Wales and elsewhere did import a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely phenyl-2-propanone,(P2P) and the quantity imported being a commercial quantity. Count three: Attempt to Possess Commercial Quantity of Methylamphetamine. Between 23 March 2007 and 25 March 2007, in the State of New South Wales and elsewhere, did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methylamphetamine, and the quantity possessed being a commercial quantity. 4The applicant Farache stood for sentence in respect of the following offences: Count One: Conspiracy to Pre-Traffic a Commercial Quantity of a Border Controlled Precursor. Between about 7 June 2007 and 25 July 2007 at Sydney, in the State of New South Wales and elsewhere, did conspire with Richard Alvares and Shelton Chowsen and divers others to pre-traffic in a substance, the substance being a border controlled precursor, namely phenyl-2-propanone (P2P), and the quantity pre-trafficked being a commercial quantity. Offence on Schedule: Conspiracy to Import Commercial Quantity of a Border Controlled Precursor. Between about 7 June 2007 and 25 July 2007, at Sydney in the State of New South Wales and elsewhere, did conspire with Richard Alvares and Shelton Chowsen, and divers others to import a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controller precursor, namely phenyl-2-propanone (P2P), and the quantity pre-trafficked being a commercial quantity. Count Two: Aid and Abet importation of a Commercial Quantity of Border Controlled Precursor. Between 28 February 2008 and 12 March 2008, at Sydney in the State of New South Wales and elsewhere, did aid and abet the importation of a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely phenyl-2-propanone, (P2P) and the quantity imported being a commercial quantity. 5Each of the offences on the indictment, as well as each of the matters on the schedule, attracted a maximum penalty of imprisonment for 25 years and/or 5000 penalty units. 6The applicant Alvares was sentenced in respect of count 3, to 6 years imprisonment to date from 24 April 2008. In respect of count 2, he was sentenced to 6 years imprisonment to date from 24 April 2010. In respect of count 1, and taking into account the matter on the schedule, he was sentenced to 8 years imprisonment to date from 24 April 2012. The effective head sentence was accordingly 12 years imprisonment. His Honour fixed, as he was obliged to do, a single non-parole period of 7 years which will expire on 23 October 2015. 7The applicant Farache was sentenced in respect of count 2, to 5 years imprisonment to date from 24 July 2008. In respect of count 1, and taking into account the matter on the schedule, he was sentenced to 7 years imprisonment to date from 24 July 2010. The effective head sentence was accordingly 9 years imprisonment and a non-parole period of 5 years, which will expire on 23 January 2014, was fixed. 8His Honour indicated that the sentences were structured in a manner that gave effect to the principles of totality: see Pearce v The Queen (1998) 194 CLR 610. 9Each of the applicants was arrested and taken into custody on 24 April 2008. As is apparent, the sentence in respect of the applicant Alvares was backdated to that date. However, a later commencement date was selected by his Honour in respect of the applicant Farache to take account of other sentences which he was then serving. On 15 October 2008 he received a sentence of 12 months imprisonment with a non-parole period of 9 months to date from 24 March 2008 (that is,1 month prior to his arrest for these matters) in the Local Court for offences of goods in custody (consisting of a driver's license) and possession of ammunition without a permit. Those items were discovered by police during the course of executing a search warrant upon the applicant's premises in relation to the present offences. At the same time the applicant was also sentenced in the Local Court in respect of unrelated offences of drive whilst disqualified, have false instrument and possess prohibited weapon. He was sentenced in respect of each of those charges to concurrent terms of imprisonment of 12 months with a non-parole period of 9 months to date from 15 October 2008. On appeal, the non-parole periods in respect of that latter group of offences were reduced to 7 months, the consequence being that that period expired on 14 May 2009. The sentencing judge indicated that it was his intention to commence the sentences for the present matters on 24 October 2008, a date which he selected because it was 7 months from 24 March 2008. Nevertheless, when his Honour passed sentence, he ordered as I have indicated, that the sentences should commence on 24 July 2008. It is apparent that the applicant Farache has inadvertently received the benefit of that 3 month period. 10The applicant Alvares relies upon the following grounds of appeal:
known to the court'', rather than proved in evidence'', or some equivalent expression, suggests strongly that s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase known to the court'' should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted. In addition to the points just made about what is known to the sentencing judge, there is another important feature of fact finding in sentencing which must be recognised. Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple. Further, a sentencing hearing is not an inquisition into all that may bear upon the circumstances of the offence or matters personal to the offender. Some matters may be fixed by the plea or verdict of guilty although, even there, there may be ambiguities (as for example, in some homicide cases where a verdict of manslaughter is returned). Many of the matters relevant to fixing a sentence are matters which either the prosecution or the offender will draw to the attention of the sentencing judge. Some matters will remain unknown to the sentencing judge. The question then becomes, what use is the sentencing judge to make of what is known, and of the matters urged by the parties? This is not just a series of choices for the judge between alternatives. Not only may some things be unknown, some will concern matters in which a range of answers may be open. As was pointed out in Storey, it is important to avoid introducing excessive subtlety and refinement'' to the task of
sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different
standards of proof that are to be applied. It would also be wrong
because it would assume that human behaviour can always be
described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that. Further, it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money. [at paras 22-24]
42In GAS v The Queen (2004) 217 CLR 198, the Court, in the context of discussing a plea agreement which had been reached between the parties, observed:
Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to the judge's capacity to find potentially relevant facts in a given case. ...
Fourthly, as a corollary to the third principle, there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found the relevant law and sentencing principles. It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel. [paras 30-31]
43It may also be noted that the rules of evidence only apply to sentence proceedings if the court makes a direction to that effect: Evidence Act 1995 (NSW) s 4(2).
44The issue which presently falls to be considered arose because each of the applicants was endeavouring to persuade the sentencing judge, with a view to ameliorating the otherwise appropriate sentence, that he was remorseful, and genuinely so. Remorse in this context means regret for the wrongdoing which the offender's actions have caused because it can be safely assumed that an offender will always regret the fact that he or she has been apprehended. Remorse is but one feature of post-offence conduct upon which an offender may seek to rely as a matter which has the potential to mitigate penalty. The manner in which the issue of remorse is approached is not unique to either the sentencing process or to the courtroom. Indeed, it is a common feature of everyday existence. Ordinary human experience would suggest that it is only natural that a person who has committed some misdeed would wish to make the most favourable impression possible in seeking to make amends for it. It is unsurprising that such a person would also wish to maximise the prospect that his or her expression of remorse was seen as genuine by the person or persons whose task it was to determine the appropriate sanction for the misdeed. Such an outcome is likely to be assessed as having increased prospects if the expression of remorse, whether it be by deed or word, is communicated directly, rather than indirectly to those responsible for determining the sanction. By the same token, an assessment of the genuiness of the remorse by the person or persons to whom it is expressed, is likely to be better informed in circumstances in which it is expressed directly, that is face to face. That is because remorse is an intrinsically subjective matter, the evaluation of which depends upon the subtleties of human interaction.
45It has also been recognised that the issue of remorse may be interconnected with other features of an offender's subjective case. In Wong v The Queen (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ approved the statement made by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 in which his Honour said:
It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical. [at 228]
46It is common ground that the sentencing judge did give some, albeit limited, weight to the evidence which had been adduced about the applicant's remorse. When distilled to its essence, the submission which was advanced was that the sentencing judge erred in giving it only limited weight. It was contended that the material before the sentencing judge required that substantial weight should have been afforded to the evidence. Such a submission falls to be considered in the light of what was said by Spigelman CJ in R v Baker [2000] NSWCCA 85. His Honour observed:
Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined. [at para 11]
47In my view, the applicants have failed to demonstrate that his Honour fell into error. Putting the matter another way, his Honour's findings were plainly open to him in light of the material (to which his Honour made specific reference) that had been adduced at the sentence hearing. It is also important to recall the precise terms of the statutory provision with which his Honour was concerned. In my view, his Honour's reasoning is unimpeachable for the very reasons which he identified, namely that it was very difficult for him to assess the extent to which the applicants were genuinely remorseful for their conduct when they had not expressed it to him directly and thereby exposed themselves to being tested upon the issue. That would be a sufficient basis, in itself, upon which to determine this ground.
48Nevertheless, in deference to the lengthy submissions which were advanced by counsel, both orally and in writing, it will be necessary to consider the issues which were raised in some greater detail. It was accepted by counsel that questions of whether or not remorse has been demonstrated, and indeed the extent of any such remorse, were matters entirely within the sentencing judge's discretion. Nonetheless, it was submitted that the sentencing judge "failed to engage in his own assessment of the weight of the applicant's remorse" because, so it was put, he must have felt constrained by statements from this court to which reference will be made shortly. Counsel acknowledged that, given that there was no express reference by his Honour to such authorities, it had to be inferred that his Honour had felt so constrained. The inference was founded, as counsel recognised in oral argument, upon his Honour's use of the expression "cannot" in the passage from the Remarks on Sentence which I highlighted earlier. I pause to indicate that I would not interpret the remarks in that fashion. In my view, his Honour was saying no more than that he was unable, given the nature and source of the evidence which had been adduced upon the issue, to make an assessment of the extent of the remorse. Indeed, his Honour specifically used the word "unable" when considering this issue in respect of the applicant Alvares. As I have already said however, his Honour did accept the evidence that was before him, such as it was, and indeed gave it some weight. It may well be that his Honour's conclusions were in conformity with the consistent statements from this court to the effect that caution is to be applied in approaching the question of the weight that is to be attributed to hearsay material. That hardly suggests, of itself, that his Honour was in error. On the contrary, it rather indicates, in my view, that his Honour's approach was fundamentally sound.
49It is now convenient to refer to the authorities to which counsel directed the court's attention. In R v Qutami (2001) 127 A Crim R 369 in which Smart AJ, with whom Simpson J agreed, said:
There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.
There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements. (paras 58-9)
50Spigelman CJ said:
I agree with the observations of Smart AJ as to the limited weight that ought to be given to self-serving, untested statements made to experts which are tendered in sentencing hearings. (para 79)
51Subsequently in R v McGourty [2002] NSWCCA 335, Wood CJ at CL, with whom the other members of the court agreed, said:
So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to a psychologist. Recently this Court has criticised the practice of placing material of this kind before sentencing judges, in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of a record: Regina v Qutami [2001] NSWCCA 353, at paras 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ).
I whole heartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested. (paras 24-5)
52There are many other decisions to similar effect. See, for example, R v Tulloh (Court of Criminal Appeal, (NSW) 16 September 1993 unreported at 4); R v Niketic [2002] NSWCCA 425; R v Hooper [2004] NSWCCA 10; R v Alameddine [2004] NSWCCA 286.
53It was submitted that those statements were prescriptive in nature and were thus likely to be applied in a fashion which effectively placed a fetter upon the exercise of a sentencing judge's discretion. It was also submitted that no statutory foundation for the statements was to be found in s 16A(2) of the Act. Although in written submissions, counsel had contended that those decisions were wrongly decided, that submission was not pressed in oral argument. Rather, it was argued that they did not apply to Commonwealth offences or in circumstances in which no objection was raised to the evidence being given.
54Since counsel placed considerable reliance upon this court's decision in R v Elfar [2003] NSWCCA 358, it is necessary at this stage to consider its significance. That case involved a Crown appeal against the inadequacy of a sentence that had been imposed upon a young man who had pleaded to having been involved in a large-scale conspiracy to "re-birth" stolen vehicles in order that they could be sold overseas. The respondent's father was a co-conspirator. The sentencing judge had before him a pre-sentence report, two psychological reports and a letter addressed to him from the respondent. Much of that material was directed to highlighting the influence which the respondent's father exerted over him and to the violence which he had exacted upon him. It also contained assertions that the respondent's father had forced his son to assist him in his criminal activities. The sentencing judge accepted that the respondent's "criminal activity was due to the duress of his father". The sentencing judge apparently accepted, without reservation, the accounts recorded in the material which had been placed before him, notwithstanding the fact that the respondent had not given sworn evidence.
55The Crown submitted that the sentencing judge had erred in accepting two major components of the respondent's case solely on the basis of hearsay material. Whealy J, with whom the other members of the court agreed, said:
There is, however, a problem for the Crown in relation to the first submission. The Crown was represented throughout the sentence hearing. The transcript records that, when the hearsay material was tendered, there was no objection taken to it. There was no qualification expressed as to the way in which the sentencing judge might use the material. The Crown did not, at any time suggest that there was any dispute as to the assertion that the respondent had been, in effect, coerced into the criminal enterprise by the force of his father's personality and his position as family leader. Nor was there any dispute raised with the proposition that the respondent had expressed remorse and contrition on a number of occasions in relation to his involvement in these serious criminal activities. Moreover, at one stage, the solicitor appearing for the offender indicated her willingness to call the offender's grandmother to give evidence of her observations of the behaviour of the offender's father towards him. The respondent's grandmother was then present in court with an interpreter available to translate her evidence. His Honour, however, indicated that, for his part, he did not require to hear from the witness in view of the material in the statements. More importantly, the Crown made no demur to the proposition that the sentencing judge might accept the statements in the material before him, without hearing direct evidence on the issue. Additionally, the Crown did not express any wish to test the available witness in cross-examination on any matter relating to the issue.
While sentencing judges are required in general to act with caution and employ a sound level of judicial scepticism when confronted with statements in reports or other material which are not supported by an offender's evidence, I do not think it is open to the Crown to complain of appellable error in this court if its representative in the court below has not plainly taken up a disputant position, either when the material was tendered or when submissions were made. This is even more so when, as here, the Crown had raised no objection whatsoever and made no submissions in opposition to the documentary material or its hearsay contents.
In some situations, the evidence placed before a sentencing court will be so inconsistent, so contrary to common sense and the agreed facts that, even without Crown intervention, adverse submission or opposition, it will be quite apparent to the sentencing judge that little or no weight should be given to the material. The duty of the sentencing judge will be plain in such a situation. There will be a need for the sentencing judge to inform the parties of his preliminary attitude to the tendered material and to invite submissions and provide the opportunity for further evidence. Absent satisfaction, the judge will be entitled to, and should exercise considerable caution in placing reliance on the material. In many cases, only very limited weight, if any, will be given to the material. When, as happened here, however, there was a consistent body of coherent credible evidence, admittedly of a hearsay kind, supporting the existence of genuine exculpatory factors, it will be necessary for the Crown to state that it disputes the position revealed in that material and to say why that is so.
In this regard this case was perhaps an unusual one. This was so because of the consistent nature of the material and its inherent credibility. Nevertheless, there was not one suggestion made that the sentencing judge should reject the material, or treat it as of little value because of the absence of direct evidence from the respondent. If the Crown wished to take an adverse position in that regard during the sentence hearing it needed to do so clearly and explicitly.
Because of the Crown's failure to take that position in the rather unusual circumstances of this matter; and because of its tacit acceptance that the sentencing judge might reliably act on that material, there is, in my view, no substance in the first point of the argument. [paras 27-31] (emphasis added)
56The applicant relied upon his Honour's observations as providing support for the proposition that since the Crown in the present case had not raised any objection to the tender of the material (or at least not to the material concerning the issue of remorse), or made any submission that it should be approached with caution, then that material should not only have been accepted but should have been afforded substantial weight. Moreover, it was submitted that the decision made it clear that a sentencing judge is under a duty as a matter of procedural fairness, to put a party on notice especially where the evidence is uncontested, as to any preliminary view about the weight to be given to particular material which he or she may have formed. That was necessary, so it was submitted, to enable the parties to consider their positions and so that they could proceed with the benefit of that indication. Support was also, it was submitted, to be found in the underlined passage from Olbrich (supra) to which reference was made earlier.
57I am unable to accept that his Honour's observations should be construed in that fashion. His Honour was not, as I read the judgment, seeking to lay down rules of general application. In my view, what his Honour said was utterly uncontroversial in the context of deciding that particular case. It is important to reiterate that Elfar (supra) involved a Crown appeal and, as Whealy J was at pains to point out, the Crown sought on appeal to impugn findings of fact that were based on material to which no objection had been taken at first instance. Furthermore, his Honour described the case as an "unusual one" and referred to the "consistent nature of the material and its inherent credibility". There was, as I read the judgment, statements from other family members to the effect that the respondent had indeed been afraid of his father and that he had previously made unsuccessful attempts to leave home and cease working for his father. There was also reference to the fact that the respondent's father had previously served a minimum term of 4 years imprisonment for a very similar offence. Moreover in a passage to which the Court's attention was not drawn, his Honour went on to say:
The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports - ( R v Palu per Howie J with whom Levine J and Heydon J (sic) agreed (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so. [at para 25]
58Not only does the court in Elfar make clear its "emphatic endorsement" for the principles expressed in Qutami (supra) and McGourty (supra) but nowhere in the judgment is there to be found any support for the proposition that in the absence of objection to material adduced on behalf of an offender, evidence of remorse must be afforded substantial weight. Nor is there any support for it in Olbrich (supra). At one stage it was submitted that this court had, in effect, created a principle that has been interpreted, particularly in the District and Local Courts, as having the consequence that an offender cannot get a meaningful benefit for remorse unless he or she gives sworn evidence. It is not easy to reconcile that submission with the approach taken by this Court in determining the Crown appeal in Elfar itself. Nevertheless, circumstances may arise in which it will be prudent for a sentencing judge to remind the parties during the course of a sentence hearing of what was said by this court in Qutami (supra).
59Counsel also sought to draw comfort from the fact that there is a contrast between the Commonwealth provision dealing with remorse and the equivalent provision under State legislation. Section 21A(3) of the Crimes (Sentencing Procedure) Act 1999 lists the mitigating factors which are to be taken into account in determining the appropriate sentence. That list includes:
(i) the remorse shown by the offender for the offence, but only if
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).
60Counsel relied upon this court's decision in Butters v R [2010] NSWCCA 1 as support for the proposition that even that provision does not require the offender to give evidence.
61Fullerton J, with whom the other members of the court agreed, said:
The applicant submitted, and correctly, that the prosecutor misstated the law when he submitted that s 21A(3)(i) of the Crimes (Sentencing Procedure) Act requires an offender who is claiming the benefit of remorse in mitigation of sentence to give evidence in the sentence proceedings, and that in the absence of such evidence little weight ought attach to out of court statements of remorse by the offender. Contrary to the prosecutor's submission there is no statutory requirement that an offender give evidence before remorse can be taken into account in the calculation of sentence. Furthermore, the prosecutor's reliance on R v Thomas [2007] NSWCCA 269 as authority for the proposition he advanced was in error.
On a proper construction, s 21A(3)(i) requires an offender to provide evidence that he or she has accepted responsibility for his or her actions and has acknowledged any injury, loss or damage caused by his or her actions or any reparation for such injury, loss or damage (or both), as a statutory precondition to any reliance on remorse as a mitigating factor. The requirement to provide evidence before remorse can be relied upon does not equate with a requirement that an offender give evidence either of remorse generally or of the matters set out in the section. This much is clear from Thomas at [18]-[19] per Basten JA:
"18 The other evidence of remorse is recorded in a report dated 13 December 2006, prepared by a psychologist, Mr Peter Ashkar. Mr Ashkar reported:
"He accepts responsibility for the ... offence. He tells me he was heavily intoxicated on bourbon when he committed this offence. ... He also tells me he was in the company of antisocial peers at this time. He attributes his offending behaviour to his alcohol use at that time.
Matthew expresses considerable regret and remorse over his offending behaviour: 'I was definitely in the wrong ... I'm sorry ... I do feel bad for doing it ... I've learnt my lesson ... Never to get in trouble again ... It's just not worth it'."
19 The failure of Mr Thomas to give evidence to that effect himself in the witness box; his continued adherence, through many days of hearing, to an implausible story which was disbelieved, but constituted a significant attempt to diminish his responsibility for the offence, and the fact that he committed a further serious offence less than a month later, all require consideration in assessing the genuineness of remorse and the extent to which his expression of remorse can mitigate an otherwise appropriate sentence. A finding of genuine remorse should not be made lightly, especially in circumstances where there are contra-indications. A sentencing judge should indicate the manner in which he or she has taken into account the possibility that expressions of regret may be triggered by the threat of incarceration. On the other hand, it is fair to say in the present case that his Honour accepted the genuineness of his attempts to overcome abuse of alcohol which would provide a basis for the conclusion that there was a genuine attempt to address an underlying cause of the violent behaviour." [at paras 16-17]
62Although counsel did not refer to it, it is instructive to record what her Honour then went on to say, because her observations are apposite to the present case:
18 In the present case the statutory precondition in s 21A(3)(i) was satisfied in any event. There was ample evidence in the tendered material that the applicant accepted responsibility for his actions and acknowledged the very significant injury suffered by victim as a result of his actions. However, as is clear from the remarks on sentence..., his Honour did not disregard the evidence bearing upon remorse because the applicant did not go into the witness box and give evidence. Rather he considered that in assessing the weight of evidence of remorse, sourcing as it did solely from the tendered material, he was entitled to take into account the fact that the applicant did not give evidence. This was a course properly open to him. It is an approach that is consistent with this Court cautioning against an uncritical reliance on material contained in tendered reports (or other third party statements) for evidentiary purposes where an offender has not given evidence (see R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 and TS v R [2007] NSWCCA 194 at [30]).
63That said, I do not accept that the fact that the State and Commonwealth legislation is cast in different terms has any significance so far as the application of the statements made in Qutami (supra) is concerned.
64It was submitted that a further reason why the evidence before the sentencing judge should have been afforded substantial weight was because there were no "contra-indications of remorse". I understand that expression to mean that there was nothing in the evidence which was inconsistent with the evidence of remorse. However, the applicant Farache told the psychologist Sam Borenstein, in relation to his involvement in these offences, that it was "pretty much nothing". He appeared to attribute his involvement to the fact that he owed money to the applicant Alvares for drugs and that he was thus beholden to him. Moreover, when he was first interviewed by police he denied knowledge of the contents of the consignment. In light of that material, it was well open to the sentencing judge to accept the Crown's submission that "little weight should be given to the history provided by [the applicant Farache] as to his role particularly when what he says is significantly at odds with the statement of facts and what can be discerned from the phone calls". None of those considerations suggest that the applicant Farache was prepared to accept complete responsibility for his actions. Accordingly, I would not be prepared to accept the proposition that there were "no contra-indications of remorse", at least so far as the applicant Farache is concerned.
65As I have said the determination of questions of fact, such as the extent to which remorse has been shown, is quintessentially a task that falls to the sentencing judge. Indeed, a sentencing judge is not bound to accept assertions by an offender that he is remorseful, even when that assertion is made in the witness box: R v Stafrace (1997) 96 A Crim R 452. Nor will what Simpson J described, in Pham v R [2010] NSWCCA 208 [at para 33], as "the often ritual incantation of remorse and contrition" be automatically accepted by a sentencing judge.
66It is important to emphasise that the court was not taken to any decision in which it has been authoritatively stated that an offender will only be entitled to the benefit of a finding of remorse in the event that he or she gives sworn evidence to that effect. Indeed it would be surprising if there was any such authority because it is readily apparent that an offender may, in some circumstances, demonstrate remorse by either words or conduct without giving sworn evidence. It may emerge, for example, from a confession which is made by an offender to police in a recorded interview about his or her involvement in an offence. Indeed, on occasions a court is requested to view the electronic recording of such an interview, or parts thereof, because it clearly demonstrates the offender's remorse at a point in time which is much closer to the commission of the offence than the sentence hearing. Such an exercise may well assume added significance should the offender have gone further and provided assistance to the authorities. Alternatively, an offender, who is racked with guilt, may come forward and disclose his or her involvement in an offence of which the authorities may otherwise be completely unaware: R v Ellis (1986) 6 NSWLR 603.
67There are other types of conduct on the part of an offender which may well also be indicative of remorse. It may consist, for example, of making reparation to the victim of a crime which entails a loss of money. Alternatively, an offender having committed a crime, may ring and request assistance from the police and/or emergency services. Those calls are usually recorded and sometimes provide very clear evidence of the offender's remorse. Nevertheless, I recognise that there is the potential for this consideration to overlap with what is sometimes referred to as "post-crime ameliorative conduct". Such a situation may arise, for example, where an offender makes an emergency call which has the effect of saving someone's life: see Thewlis v R (2008) 186 A Crim R 279.
68Finally, it was submitted that the logical consequence of the pronouncements of this court in Qutami (supra) would result in making sentence proceedings in the District and Local Courts "unworkable". So far as that submission is concerned, I would respectfully adopt what Fullerton J said in Butters (supra). Her Honour observed:
The applicant's counsel advanced the submission that if uncontested evidence of remorse from third party sources is to be accompanied in every case by evidence from an offender confirming its genuineness, the efficient, and at times the necessarily informal dispatch of sentence matters in the District Court would be compromised. Efficiency is always a laudable objective. It should not, however, take precedence over the application of sentencing principles, in this case a principle enshrined in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, the application of which has been authoritatively determined by this Court in Thomas . [at para 19]
69I would reject this Ground of Appeal.
Ground 2 (Alvares)
Ground 3 (Farache)
70Counsel for the applicant Alvares assumed the main burden for advancing the submissions in respect of this ground. They were adopted by counsel for the applicant Farache. Counsel pointed out that the non-parole period which was imposed by the sentencing judge in respect of the applicant Alvares was 62.5% of the effective head sentence, whilst in the case of the applicant Farache, it was 61.11% of the effective head sentence. It was submitted that it could be inferred that in fixing those periods, the sentencing judge had accepted the submissions which had been made on behalf of the parties at the sentence hearing. It is convenient to now refer to those submissions.
71Counsel who appeared for the applicant Alvares during the sentence proceedings made the following submission:
The last matter on which I'm going to address the court, your Honour, is the proportion between the non-parole period and the head sentence. I've handed up the case of Bermier, (sic) your Honour, and in that judgment the court refers to consideration being given to the individual facts of the case. Whilst it might normally be the case that the ordinary proportion in Commonwealth matters between the non-parole period and the head sentence is somewhere in the range of 60 percent to 66 percent it's not a case where there's a mathematical or rigid approach. It requires an assessment and sometimes circumstances may exist which would permit a court to move outside the usual range.
In this matter, Mr Alvares' matter there are five circumstances which do permit the court to move outside of the usual range...
(Counsel then outlined those matters).
72Counsel who appeared for the applicant Farache submitted that "so far as the non-parole period is concerned, your Honour knows very well what the normal range is for cases like this and I would submit this is a case that should fit within the normal range".
73The Crown, for its part, made the following submission:
The Court of Criminal Appeal has said that it is generally appropriate for the ratio of the non-parole period to head sentence, duly adjusted having regard to all relevant subjective factors, to be approximately 60 per cent to 66 per cent.
74The consequence, it was submitted, was that the sentencing judge had fallen into error of the kind identified by the High Court in Hili v R; Jones v R [2010] HCA 45; (2010) 272 ALR 465.
75That case involved an application for special leave from a decision of this court allowing a Crown appeal in respect of various sentences which had been imposed under the Crimes Act 1914 (Cth) . A majority of the court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) concluded that:
[t]hese are reasons enough to conclude that there neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. More particularly, these are reasons enough to conclude that it is wrong to say, as the Court of Criminal Appeal did, "that the 'norm' for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66%, which figure will be affected by special circumstances applicable to a particular offender". It is wrong to begin from some assumed starting point and then seek to identify "special circumstances". Rather, a sentencing judge should determine the length of sentence to be served before a recognizance release order takes effect by reference to, and application of, the principles identified by this Court in Power, Deakin and Bugmy. [at para 44]
76In reaching that conclusion, their Honours observed that:
[t]he proposition stated by the Court of Criminal Appeal in this matter: "that the 'norm' for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66%, which figure will be affected by special circumstances applicable to a particular offender" should not be accepted. Its error is revealed by consideration of two points: the first point is a general proposition about references to a "norm"; the second comprises a set of more specific propositions drawn from what was said by the Queensland Court of Appeal in Ruha.
First, any reference to a "norm" for non-parole periods for federal offences is, at the very least, apt to mislead. Reference to a "norm" is ambiguous. It does not reveal whether the proposition is prescriptive or descriptive. That is, is the "norm" that is identified a statement of what ought to be, or is it an observation of what has been done in past cases? If it is the former, what is its statutory root? As the earlier description of the applicable statutory provisions shows, there is none. Is it a proposition of universal application, or are there exceptions? Apparently there are exceptions: in "special circumstances". What are "special circumstances"? What is the source of these exceptions? None was identified. If reference to a "norm" is intended as a compendious description of what has been done in other cases, what are those other cases? Why are they useful comparators? Is the historical description of what has been done intended to guide what should be done thereafter? What is the principle that will tell a sentencing judge when or how the "norm" should be applied?
Even if the ambiguities inherent in references to a "norm" were to be resolved, references to a "norm" will necessarily mislead if they distract attention from the applicable statutory provisions: Pt IB of the Crimes Act. They will mislead if they suggest that the same kind of sentencing outcome will generally be expected in the sentencing of any federal offender. That is, they will mislead if they are read as saying that the same proportionate relationship should (or should normally) exist, between the time that is to be served in prison and the length of the head sentence imposed, in relation to all federal offences, no matter whether the offender has defrauded the Commonwealth, has been knowingly concerned in the importation of prohibited imports, or has committed some other federal offence. They will mislead if they suggest that matters such as the absence of prior convictions, or the willingness to co-operate with authorities, can have no effect on fixing a non-parole period, or time to be served before a recognizance release order takes effect, greater than a stated small percentage of the head sentence. They will mislead if they suggest that the offender must demonstrate some special circumstance to warrant departure from a set, mathematically calculated, relationship between the time to be served in custody and the head sentence. [paras 36-8]
77In the final analysis, the High Court decided that notwithstanding the fact that this court had erred in its approach, it had nonetheless "sufficiently revealed why the sentences were manifestly inadequate [and that the applicants had not demonstrated] that, if proper principles had been applied, any lesser sentence should have been passed by the Court of Criminal appeal on either applicant". [at para 14].
78I would reject this ground of appeal for the simple reason that the sentencing judge did not say anything which might suggest that he had fallen into error of the kind identified in Hili and Jones (supra). First, his Honour did not, as counsel had urged, refer to a 'norm', or 'a range', or a 'starting point'. Nor, as counsel for the applicants concede, did the sentencing judge make any reference to those submissions. Indeed, if his Honour had pursued the course for which counsel for the applicants at first instance contended, then he may very well have fallen into error of the very kind identified by the High Court. Nor would I accept the submission that merely because the non-parole period which was imposed fell between 60% and 66%, it was to be inferred that his Honour had, in effect, placed a fetter upon the exercise of his discretion. I referred earlier to his Honour's exposition of the various principles which he applied in exercising his sentencing discretion. He was aware, for example, of the need to avoid taking a "mathematical approach" to the task. I am not persuaded that his Honour, when setting the non-parole period, did anything other than have proper regard to the various features of the case in arriving at what he regarded as being the minimum period which the applicants must spend in custody. Moreover, his Honour's approach appears to be entirely consistent with what the High Court said in Hili and Jones (supra) in which it was observed that:
[t]he Court of Appeal in Ruha examined what considerations bear upon fixing the length of a pre-release period under a recognizance release order. As the Court of Appeal rightly said, s 16A(1) and (2) "make it plain that all of the circumstances, including the matters in the non-inclusive list in s 16A(2), must be taken into account in making recognizance release orders just as they must be taken into account in imposing a sentence of imprisonment". In determining what recognizance release order is made, s 16A(1) requires the sentencing court to "make an order that is of a severity appropriate in all the circumstances of the offence". What is the "severity appropriate" is determined having regard to the general principles identified by this court in Power v R, Deakin v R and Bugmy v R. [para 40] (footnotes omitted)
79I would reject this Ground of Appeal.
Ground 3 (Alvares)
80In complaining that the sentencing judge had erred in failing to find that the applicant Alvares had "good prospects of rehabilitation", counsel sought to link this ground with ground 2. The sentencing judge dealt with the issue of the applicant Alvares' prospects of rehabilitation in the following fashion:
Prospects of rehabilitation Alvares
The offender has had a good prior work history and expressed confidence in easily securing employment upon his release.
The offender told the psychologist that he has discontinued association with his co-offenders.
The psychologist did not detect any underlying behavioural conditions which would significantly impede rehabilitation.
The offender reported binge alcohol consumption on weekends from the age of seventeen. He however told the psychologist that his use had not increased over time. In the twelve months prior to his arrest he had consumed cocaine however there is nothing in the report to suggest that there was any causal link between his alcohol and drug taking and the offending for which he faces sentence here. The offender has commenced a drug and alcohol program course at Parklea Gaol.
The psychologist notes that the offender reported problematic gambling behaviour from a young age. The offender stated that he would gamble most of his wages. Risk assessment of the offender placed him "...at the lower end of the problem gambling range and indicates that the offender may require professional assistance." (para 16)
Testing carried out by the psychologist suggests that the offender is placed within the average range of cognitive ability.
The psychologist suggests that against a background of exposure to family conflict the offender has displayed a history of poor coping responses to stressful periods in his life, such as gambling drug and alcohol use and other impulsive behaviours described as a "maladaptive coping strategy". The offender reported experiencing significant levels of stress, mainly about his brother's welfare at the time the offences were committed. The psychologist expresses the view that the offender's difficulty coping with this stressful period may have contributed to his poor choice to become involved in criminal activity (at para 25).
The offender has the support of his family and has no criminal antecedents. He has a good history of education and employment.
A number of testimonials have been tendered. There are a number of common themes. All vouch for his good character and express shock at becoming aware of the nature of the present charges. It is clear that there is a level of support for the offender in the community.
The psychologist suggests that the offender would benefit from supervision when he is released. That supervision would address the offender's "underlying impulse disorder that has led to previous problematic gambling and substance abuse." (at para 27). Supervision would include counselling directed at relapse prevention.
The psychologist comments that there is a risk of the offender continuing to be exposed to antisocial influences in custody (at para 28). It is suggested that the sentence should "tend to maximise the period under supervision in the community".
81So far as the applicant Farache is concerned, the sentencing judge undertook a similar review of his prospects before concluding that:
the offender faces a significant period in custody which is likely to have a significant deterrent effect upon him. He also has significant support in the community. I am of the view that with appropriate supervision upon his release the offender has good prospects of rehabilitation.
82It was submitted that his Honour erred in not making a similar finding in respect of the applicant Alvares, particularly as his prospects of rehabilitation were stronger than those of the applicant Farache. In that respect, it was observed that the applicant Alvares was the younger of the two and, unlike his co-offender, had no prior criminal record. True it is that his Honour made no express finding about this aspect of the matter. However, it can be readily inferred that his Honour did form the opinion that the applicant had "good prospects of rehabilitation". Accordingly, in my view his Honour's failure to refer to it, in terms, was simply an oversight. It is almost impossible to imagine that his Honour's extensive review of the material set out under the heading "Prospects of Rehabilitation", which I reproduced a little earlier, can have served any purpose other than to provide the basis for a positive finding in relation to his rehabilitation prospects. Moreover, the fact that his circumstances are at least equivalent to, if indeed not more favourable than those of the applicant Farache, serves only to confirm that impression. Finally, the fact that his Honour had earlier found that there was some evidence that the applicant was remorseful, is another indication that his Honour believed that the applicant had "good prospects of rehabilitation".
83As this court said in R v MAK (2006) 167 A Crim R 159:
Section 21A of the Crimes (Sentencing Procedure) Act...requires the sentencing court to take into account specifically, as matters in mitigation of sentence, not only the plea of guilty but also that the offender is unlikely to re-offend and has good prospects of rehabilitation. In respect of the last two matters it is clear that remorse will be a major factor in determining whether those matters of mitigation exist: without true remorse it is difficult to see how either finding could be made. [at 169]
84I would reject this Ground of Appeal.
Conclusion
85There were, as his Honour indicated, some important subjective features to be weighed in favour of each of the applicants. Nonetheless, the objective gravity of the offences for which the applicants stood to be sentenced, was very significant. Each faced sentence in respect of a series of serious drug offences, in the commission of which, they had each performed a prominent role over a not inconsiderable period of time.
86That leads me to conclude that even if, contrary to the conclusions which I have reached in dealing with the grounds of appeal, error had been established, I would not be prepared to conclude that a lesser sentence was warranted and ought to have been imposed: s6(3) Criminal Appeal Act 1912. It may be observed that neither applicant complained that the sentences which had been imposed were manifestly excessive.
87I propose in each case that leave to appeal be granted but that the appeal be dismissed.
88SCHMIDT J : I agree with Buddin J.DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 March 2011
(2002) 209 CLR 339
(2004) 217 CLR 198
(2010) 272 ALR 465
(1998) 194 CLR 610
(1986) 6 NSWLR 603
(1991) 23 NSWLR 220
(2003) 212 CLR 629
(2001) 207 CLR 584
(2005) 215 ALR 213
(1999) 199 CLR 270