Briggs v R

Briggs v R - [2010] NSWCCA 250 - NSWCCA 2010 case summary — Zoe

[28]

21 Neither the Crown nor the applicant challenged the correctness of this approach on the appeal. It was in accordance with settled sentencing principles for his Honour to have specified the discount value of the plea of guilty in the calculation of sentence (see R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1), but for his Honour to have quantified the value of the plea in combination with the other factors to which he referred, and to notionally appoint a discount of something in the order of 10 per cent for them (assuming the full allowance of 25 per cent for the early plea) before arriving at the total sentence, was contrary the approach to sentence for which the High Court in Markarian v R [2005] HCA 25; 228 CLR 357 is authority. In Ayoub v R; El Masri v R [2010] NSWCCA 196, Rothman J had occasion to refer to the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian where their Honours emphasised the need to identify all relevant factors to the sentence under consideration to ensure transparency and accessible reasoning in the published reasons which are the final product in the sentencing process but that absent specific statutory requirements, a process by which a sentencer adds or subtracts passages of time, item by item, from some subliminally derived figure should not be adopted. Rothman J also noted that in Markarian at [51] McHugh J regarded the concept of instinctive synthesis in sentencing practice as: "…the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence." 22 Consistent with that approach, McHugh J went on to observe that, in effect, while greater and lesser weight will be allocated to some factors depending on their relevance, the determination of an appropriate sentence taking account of all relevant factors is intuitive, not a matter of calculus. The sole ground of appeal

[32]

27 In so far as matters (a) and (f) are concerned, the Crown accepted that while they were both capable of constituting special circumstances, it is open to conclude from the sentencing remarks that his Honour considered the issue of whether they should have the effect of altering the statutory ratio and that he declined to exercise his discretion without recording his reason. 28 It was appropriate for the Crown to emphasise that a sentencing judge is under no obligation to give reasons for not finding special circumstances, and that the question of whether or not a fact (or a combination of facts) is sufficiently special to justify a lower proportionate relationship between the non-parole period and the total sentence is a matter for discretionary judgment in the particular case. It was also appropriate for the Crown to emphasise that this Court should be slow to intervene where it is submitted that special circumstances should have been found in the court below unless it is satisfied that the non-parole period imposed by the sentencing judge is manifestly excessive (see R v Fidow). 29 That said, in the present case his Honour made no reference at all to whether the statutory ratio should be varied, with or without reference to special circumstances, before varying it so as to increase the statutory ratio, and that this occurred despite the fact that argument was directed to the question of special circumstances in the sentence hearing. For that reason I am of the view that the question whether there was error in failing to find special circumstances is a legitimate inquiry in this case (see R v Pevy [2004] NSWCCA 414 per Santow JA at [21]). I am also satisfied that it is appropriate to inquire into whether the sentencing judge's failure to apply the statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act was due to oversight - the alternate basis upon which the applicant seeks the intervention of this Court. As Grove J observed in Wakefield v R [2010] NSWCCA 12 at [26]: "…It is true that, whilst the statute requires reasons to be stated for reducing the non-parole period against the stated formulation, no such requirement has been legislated if it is increased. However it has been stated in this Court more than once that it is expected that in circumstances where there is such an increase some reasons should be provided if only to forestall a conclusion that the specification was the result of error or oversight. In R v Dunn [2007] NSWCCA 312 it was said that this was especially the case where cumulation had taken place. Other examples of intervention by this Court in similar circumstances can be found in R v Lyndon [2003] NSWCCA 152; R v Ibraham [2005] NSWCCA 43."

[36]

32 The Crown did not submit, either in the sentence hearing or on the appeal, that this was a wholly inappropriate case for altering the statutory ratio whether because it was the applicant's first committal into custody or because of the need for supervised adjustment upon his release, or for any other reason. Neither was it submitted that the applicant's young family and supportive partner and sister, and his sound future employment prospects could not operate as a stabilising force upon his eventual release and which, in conjunction with a period of supervision on parole, might qualify as a special circumstance thereby enlivening the discretion to extend the non-parole period. What the Crown submitted was that in setting the non-parole period his Honour was constrained by the need for the period in custody to appropriately reflect the criminality involved in the commission of the offence (using the standard non-parole period of 15 years as a relevant guide), and that a finding of special circumstances would have offended against the principle that the non-parole period not be ameliorated below that level (see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 per Spigelman CJ at [59]). The Crown submitted that it is implicit in the sentencing remarks, and his Honour's overall approach to the structure of the sentence, that he was satisfied that a non-parole period of 8 years was the minimum period of full-time custody that the applicant should be required to serve in all the circumstances, in particular where a commercial supply of drugs was involved, and that no error has been shown to justify overturning that discretionary judgment. 33 It is not to the point that some lesser non-parole period may have been imposed. What the applicant must establish if this Court is to intervene is that his Honour erred in not finding special circumstances and that, in the result, a non-parole period of 8 years is excessive. I am not persuaded that is the case. I do not consider that his Honour was obliged to find special circumstances or that his discretion in fixing the non-parole period at 8 years miscarried for that reason.

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Judgment (39 paragraphs)

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Cases Cited (12)