Butler v R

decision 1HIS HONOUR: The applicant has applied for an inquiry into his sentence pursuant to s78(1) Crimes (Appeal and Review) Act 2001 (the Act). The application seeks the referral of the sentence to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912. 2The applicant submits that there is a doubt or question as to a mitigating circumstance in the case, namely that the applicant's sentence was infected by "Muldrock error" in that the standard non-parole period was given undue emphasis in the sentencing process, contrary to the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 3The applicant pleaded guilty in the Local Court and was sentenced on 24 February 2005 by Black DCJ for offences of: (i) Supply a large commercial quantity of a prohibited drug (LSD) contrary to s25(2) of the Drug Misuse and Trafficking Act 1985. (ii) Supply an indictable quantity of a prohibited drug. (iii) Supply a trafficable quantity of a prohibited drug. (iv) Supply a prohibited drug. Four further charges were taken into account on a Form 1 when sentencing for the "supply large commercial quantity" charge. 4The offence of supplying a large commercial quantity of a prohibited drug carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. 5For the offence of supplying a large commercial quantity of a prohibited drug the applicant was sentenced to imprisonment with a non-parole period of 12 years with an additional term of 6 years. The sentence commenced on 20 April 2004. The applicant is eligible for release to parole on 19 April 2016. The sentences on Counts (ii) - (iv) were shorter and concurrent with this sentence. 6The applicant sought leave to appeal from these sentences to the Court of Criminal Appeal. He was granted leave and the appeal was successful (Des Rosiers v Regina [2006] NSWCCA 16). The Court (Latham J with whom McClellan CJ at CL and Howie J agreed) rejected those appeal grounds directed at the sentence imposed for the supply a large commercial quantity offence but re-sentenced and reduced the sentences imposed in respect of Counts (ii) - (iv). Accordingly, the applicant's earliest release date remains 19 April 2016. 7The facts of the matter can be briefly stated. As a result of information obtained by police, the applicant's home was searched on 20 April 2004. Police found a substantial quantity of pieces of paper impregnated or to be impregnated with LSD. They found a quantity of the drug known as MDMA (Count (ii)) and an appreciable quantity of cannabis (Count (iii)). 8The information acquired by police included the product of a lawfully obtained telephone intercept linking the applicant with another person. It appeared from the conversations between the applicant and that person that he was preparing blotting paper under the instructions of the applicant. The applicant had requested 50,000 to 100,000 items and had indicated the need to send money to Thailand. 9In the Court of Criminal Appeal it was noted that the LSD was worth somewhere between $200,000 and $1,500,000. 10In view of the fact that the applicant's appeal to the Court of Criminal Appeal was successful and he was re-sentenced, the remarks of the sentencing judge are not pertinent to this application, except insofar as they provided a basis for the intervention of the Court of Criminal Appeal. If, as the applicant submits, the sentence imposed on him was infected by "Muldrock error", the sentence under scrutiny must be that imposed by the Court of Criminal Appeal. 11The leading judgment of the Court was that of Latham J. Those parts of the judgment relevant to this application are: "12 The grounds of appeal filed on behalf of the applicant assert four specific errors on the part of the sentencing Judge. In addition, it is argued that the sentence imposed on the applicant was, in all the circumstances, manifestly excessive and that a lesser sentence was warranted in law. ... ... 14 His Honour next referred to the standard non-parole period (15 years) prescribed for the offence by s 54 of the Crimes (Sentencing Procedure) Act 1999 and to this Court's decision in R v Way [2004] NSWCCA 131. Apart from noting that it was "not to be regarded as either a starting post or a finishing post or anything apart from that", there was no further discussion of the relevance of the standard non-parole period to the sentencing exercise being undertaken. The Crown's written submissions on sentence canvassed the authorities relating to Way and sought to place the offence "well beyond the middle range of objective seriousness", having regard to the quantity of the drug and its commercial value. In these circumstances, his Honour erred in not identifying a basis for departing from the standard non-parole period. Nowhere in the remarks on sentence does his Honour assess the objective gravity of the offence in terms of the spectrum of offences of this type, nor is there any attempt to meet the requirements of s 54B(4) of the Crimes (Sentencing Procedure) Act; R v Mills (2005) 154 A Crim R 40; [2005] NSWCCA 175. 15 The applicant's counsel in this Court conceded that the supply large commercial quantity offence lies in the upper range of objective gravity, a concession properly made in my view when one has regard to the quantity of LSD and the evidence pointing to the large scale production of LSD for profit. ... 35 As noted at par 15, there can be no doubt that the supply large commercial quantity offence lay at least at, if not above, the mid-range of objective gravity. The applicant had the means to distribute at least 40,000 individual doses or tabs of LSD. ... 36 For these reasons, I would not regard the sentence as manifestly excessive. I acknowledge the logical result of this finding, that is, that a starting point of 24 years is adopted, before the application of the full extent of the discount for the plea of guilty. I also acknowledge that such a sentence is heavy indeed. However, this was an offence which arguably called for the imposition of the standard non-parole period. His Honour was alerted to the Crown's submission and could not have failed to appreciate the relevance of that benchmark, even if (as I am inclined to think is the position) he determined to depart from the standard non-parole period because of the plea of guilty. Where the legislature has fixed the standard non-parole period at a level significantly above that imposed for offences committed before 1 February 2003, it is inevitable that sentences for these offences committed after 1 February 2003 will increase, despite no apparent legislative intention to that effect; R v Pellew [2004] NSWCCA 434 at pars 36 and 37; R v Mills [2005] NSWCCA 175 at par 53. 37 It remains to re-sentence the applicant. ... [Latham J then set out relevant subjective matters]. 38 ... [Latham j re-sentenced the applicant in respect of Counts (ii) - (iv)]. 39 In my view, the issues of concurrency, accumulation and totality are to be resolved in this case by recognising that the gravity of the primary offence, and the sentence required to reflect that gravity, are also capable of reflecting the totality of the applicant's criminality. The remaining offences pale into relative insignificance against the criminality inherent in the primary offence. The principles of denunciation and retribution are of such prominence in the formulation of the sentence for the primary offence that any lesser sentence, merely to allow for a measure of accumulation, would be inappropriate. I would therefore make all sentences concurrent." 12The applicant accepted that the test to be applied in determining an application of this kind is whether it appears that there is a doubt or question as to guilt as to any mitigating circumstances in the case. He submitted that the doubt or question as to sentence may be formed where the material causes the judge considering the matter unease or a sense of disquiet in allowing the sentence to stand (Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 35, 48; R v Rendell (1987) 32 A Crim R 243 at 245; CDPP v Moore (2000) 112 A Crim R 331; Re Pedrana (2000) 117 A Crim R 459). The applicant submitted that the mitigating circumstances in this application is the possibility that had proper sentencing principles been applied by the Court of Criminal Appeal, the resulting sentence would have been less than that actually imposed. 13The applicant submitted: "52 There exists a powerful argument that if the applicant had been sentenced at first instance in accordance with the principles mandated in Muldrock, his sentence would have been appreciably less than it currently is. Similarly, had the Court of Criminal Appeal considered the appeal in accordance with the principles mandated in Muldrock, it is likely that the standard non-parole period would not have been given primary or determinative significance and that a lesser sentence would have been imposed on Count 1. This is a mitigating circumstance for the purposes of Part 7. ... 55 As detailed above, the standard non-parole period was a dominant factor in the first instance sentencing and in the reasoning of the Court of Criminal Appeal in rejecting the ground of appeal alleging manifest excess." Consideration 14In my opinion, the applicant's submissions do not properly state the effect of the decision in Muldrock. There the Court said: "27 Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. 28 Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period. 29 A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to "mak[ing] a record of its reasons for increasing or reducing the standard non-parole period" is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences. 30 The full statement of reasons for the specification of non-parole periods either higher or lower than the standard assists appellate review and in this way promotes consistency in sentencing for Div 1A offences. It may also increase public awareness of the sentencing process. 31 The maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence. An increase in the maximum penalty for an offence is an indication that sentences for that offence should be increased. It appears that for most, if not all, Div 1A offences, the standard non-parole period exceeds the mean non-parole period for the offence recorded in the statistics kept by the Judicial Commission of New South Wales in the period before the enactment of Div 1A. As the Court of Criminal Appeal correctly pointed out in Way, it is necessary to treat this circumstance with care. The standard non-parole period represents the non-parole period for an hypothetical offence in the middle of the range of objective seriousness without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case. It may be, as the Court of Criminal Appeal observed in Way, that for some Div 1A offences there will be a move upwards in the length of the non-parole period as a result of the introduction of the standard non-parole period. This is the likely outcome of adding the court's awareness of the standard non-parole period to the various considerations bearing on the determination of the appropriate sentence. It is not because the standard non-parole period is the starting point in sentencing for a midrange offence after conviction." 15With the benefit of that guidance, consideration must be given to the role that the standard non-parole period played in the sentencing by the Court of Criminal Appeal. In Butler v R [2012] NSWCCA 23 at [26] - [28] Davies J (with whom Whealy JA and Rothman J agreed) said: "Merely showing that a sentencing judge sentenced pre-Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury with the result that a two stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick." 16Here the sentence was imposed following a plea of guilty. It is acknowledged that the Court of Criminal Appeal placed more weight on the standard non-parole period than did the sentencing judge. It is also acknowledged that Latham J commented that the sentencing judge had erred in "not identifying a basis for departing from the standard non-parole period". Those matters, however, are not indicative of error (see Muldrock at [30]). 17It is also significant that when considering the relevance of the standard non-parole period to the sentence, Latham J appropriately referred to the standard non-parole period as a "benchmark". At no point did her Honour purport to or in actuality give to the standard non-parole period determinative significance. Her Honour's approach was fully consistent with the guidance provided by Muldrock. 18In dismissing that ground of appeal raising manifest excess, Latham J took into account the objective seriousness of Count 1 which she regarded as substantial. This does not indicate "Muldrock error". On the contrary, it is clear from Muldrock at [27] and [29] that the assessment of the objective seriousness of an offence remains an important part of the overall sentencing process. 19Moreover, it is clear from the concluding remarks of Latham J at [39] that she expressly followed the process required in Markarian v The Queen [2005] HCA 25; 228 CLR 357 in that she took into account all of the factors which were relevant to sentence, discussed their significance and then made a value judgment as to whether the sentence imposed for Count (i) was manifestly excessive. 20I am not persuaded that "Muldrock error" has occurred in the sentencing of the applicant. Accordingly, I do not entertain any doubt or question as to the mitigating circumstances in the applicant's case. 21The application is refused.