Collier v R [2012] NSWCCA 213 | Case summary

24The Crown accepts that the error asserted in Ground 1 occurred. Section 45(1) of the Crimes (Sentencing Procedure) Act which permits a court to decline to set a non-parole period does not apply to a standard non-parole period offence: SGJ v R; KU v R [2008] NSWCCA 258 at [76]-[78]. 25The Crown acknowledged that, error having occurred, the Court might think it appropriate that the fixed term of 15 years should be treated as the total length of sentence that his Honour intended to impose and, accordingly, provide an appropriate non-parole period. If the total term of the sentence is 15 years the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act would produce a corresponding non-parole period of 11 years and 3 months. However, the Crown submitted that this would be excessively lenient and a better alternative would be to impose a non-parole period of close to 15 years and add an appropriate term. 26Apart from the error identified in Ground 1, there are other problems with the manner in which his Honour imposed the sentences and accordingly, it will be necessary to resentence her. 27The applicant was sentenced before the decision in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 was delivered. The applicant asserted that his Honour had erred by adopting a two-stage approach to sentencing her. Emphasis was placed on the following remarks of his Honour made during the course of submissions: "Well the recent authorities as I understand them say when you're faced with a non-parole period on a plea you first of all assess where it stands and then you apply the appropriate reduction ... So it seems to me, of course there are other factors but that's the way you start so just so that you're aware of that." 28Emphasis was also placed on the following passage in his Honour's remarks on sentence: "So the authorities have somewhat come to rule the issues here because part of my function is to assess the gravity in the scale of things of these particular offences bearing in mind the standard non-parole period of fifteen years and also, to assess whether there are aggravating factors ..." 29Although his Honour was sentencing before the decision in Muldrock I do not think that these statements by his Honour contain the asserted error. While his Honour's remarks were relatively brief, I am not persuaded that he had regard to the standard non-parole period as being other than one of the matters which is to be considered when determining the appropriate sentence. 30Ground 3 raises for consideration the decision in Pearce v R [1998] HCA 57; (1998) 194 CLR 610. Although the Crown submitted otherwise, I am satisfied that an error has occurred. His Honour's remarks on sentence indicate that his Honour first determined the appropriate overall sentence before determining the sentences which he considered appropriate for each individual count. The decision in Pearce required his Honour to first consider the sentence appropriate for each count and then consider the appropriate degree of concurrency or accumulation in order to determine the overall sentence. 31The second complaint made by the applicant under Ground 3 is that his Honour provided an excessive degree of accumulation. His Honour decided that the sentence for count 1, which included the matter on the Form 1, should commence on 23 August 2008 and the sentence for count 2 commence on 23 August 2013. Accordingly, the sentence for count 1 provides for 5 years wholly referable to that count, the other 10 years being served concurrently with count 2. 32Each offence involved the supply of prohibited drugs and it was, in my opinion, appropriate that separate charges should be brought in relation to each type of drug. Although the offences were committed as part of the one sophisticated criminal enterprise, the legislature has marked out separate offences for different drug types. The total criminality of the applicant's offending could not be appropriately dealt with by imposing sentences that were wholly concurrent. Only sentences that in a real and significant manner marked out the criminality involved in the separate offences was appropriate in all the circumstances. 33However, when reconsidering the sentence I shall return to consider the appropriate degree of accumulation. To my mind a lesser period than 5 years is appropriate. 34Under Ground 4 it was submitted that the sentencing judge failed to consider or find special circumstances. It was submitted that virtually nothing was noted by the sentencing judge about the applicant's background and there was no finding expressed by his Honour in relation to the applicant's contrition or prospects of rehabilitation. 35It was submitted to this Court that the applicant, being almost 50 years of age and facing her first time in custody with good prospects of rehabilitation, should have been given the benefit of a finding of special circumstances. 36Inherent in this submission appears to be a misunderstanding of the role of special circumstances when sentencing. A finding of special circumstances is appropriate and relevant to a decision by a sentencing judge as to whether to depart from the statutory ratio between the non-parole period and the overall sentence. The authorities are replete with findings by sentencing judges and by this Court of special circumstances. When an offender's history of offending or personal circumstances indicate that he or she would benefit from an extended period of supervision within the community a finding of special circumstances may be appropriate. For my part, as I said in R v Clark [2009] NSWCCA 49 at [12], I have considerable reservations about whether the fact that a person will be in custody for the first time is capable of constituting special circumstances: see also R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47 at [10]. The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ). Many persons who are sentenced will receive a sentence of imprisonment for the first time. That fact alone is unlikely to justify a finding that the offender's circumstances are special. 37The issue of special circumstances was discussed with his Honour in the course of the sentencing hearing. Given the proximity of that hearing to the sentencing of the applicant, I do not conclude the matter was overlooked by his Honour. Rather, as I myself would have determined, his Honour was of the opinion that there was no reason for a finding of special circumstances in the present case. His Honour's decision provided for the applicant to serve a period of 5 years on parole which, having regard to the fact that offenders are generally only supervised for 3 years upon release to parole, would be more than adequate to meet the need for the offender's rehabilitation. As it happens, a variation of the statutory ratio between the non-parole period and the additional term was made with respect to count 2. The additional term for the aggregate sentence was one-third of the non-parole term. To that extent, his Honour appears to have appropriately reflected a finding of special circumstances. A similar finding is appropriate when resentencing the applicant. 38As I have previously indicated, the errors that I have identified mean that it is necessary to resentence. Ground 5 asserts that the sentences were manifestly excessive and it is appropriate to consider this matter when resentencing. 39I have previously related the circumstances of the applicant's offending. Each offence was serious, reflecting the applicant's involvement at a high level of a sophisticated criminal organisation involved in the supply of prohibited drugs. The applicant is a person of intelligence who embarked upon her criminal activities purely for profit. There was no suggestion that she was impaired either psychologically or by any addiction which may have contributed to her offending. The sentencing judge had the benefit of a report from a forensic psychologist, Kathryn Wakely that indicated that the applicant would benefit from admission to a program of psycho-therapy aimed at managing her impulsivity, underlying feelings of dependence and moderating her need for social approval and acceptance. The psychologist believed that a treatment program may also assist the applicant to avoid anti-social associates upon her release. In making these recommendations the psychologist was conscious of the need to ensure the applicant's effective rehabilitation in the community. However, there was no suggestion that by reason of any identified condition the applicant's sentence should be ameliorated. 40This Court has had occasion to consider appropriate sentences for persons involved in importing or supplying prohibited drugs on many occasions. It is a regrettable element of contemporary society that many persons are sentenced for this type of offending. Apart from the need to punish offenders and denounce their offending, sentencing principles require a sentence of sufficient severity to deter others from committing similar offences: R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 361. 41In the present case each of the counts for which the applicant was convicted carries a maximum term of life imprisonment. The legislature has also provided a standard non-parole period of 15 years. The applicant pleaded guilty and is entitled to a full discount for her plea. 42The applicant did not give evidence at her sentence hearing and, accordingly, it was difficult for the sentencing judge, as it is for this Court, to assess whether or not the applicant is genuinely remorseful for her conduct. Ms Wakely's report is not sufficient to underpin a finding on this issue. No submission to that effect was made at the sentencing hearing. 43There is nothing in the evidence to suggest that by reason of any illness or psychiatric issue the applicant's incarceration would be more onerous than it would be for other offenders. 44There is nothing in the evidence to allow an opinion to be formed as to the prospects of the applicant reoffending. Without evidence from the applicant, or from others who may have assessed her situation, her future prospects are unknown. 45There can be no doubt that the applicant's offending reflected a high level of involvement in a significant criminal enterprise. Although she was not at the pinnacle of the enterprise her role means that she must receive a significant sentence. Her plea of guilty means that she accepted that she supplied at least 1 kilogram of heroin and at least 1 kilogram of methylamphetamine. There are, of course, offenders who have been sentenced for supplying significantly larger quantities, attracting a sentence of greater severity than would be appropriate for the applicant. A table of offenders and sentences which have been imposed for the supply of a large commercial quantity of heroin was provided to assist the sentencing judge. I have also had regard to that table. These issues are also discussed in R v Attallah [2005] NSWCCA 277; R v Laalaa [2009] NSWCCA 250 and R v Paxton [2011] NSWCCA 242. 46Relevant principles in relation to accumulation, concurrency and totality were discussed by Johnson J in Paxton at [208]-[209], [212]-[216]. My decision as to the appropriate sentence has been made with those principles in mind. Because of these issues it will be necessary to adjust the non-parole period for count 1 to preserve the statutory ratio for the overall sentence. For that reason I find special circumstances. 47Whether when resentencing in respect of a sentence for which the sentencing judge has erroneously omitted to define a non-parole period this Court can or should increase the overall term of that sentence was not thoroughly explored in argument. In any event I am satisfied that it is unnecessary to consider that issue in the present case. 48Having regard to all of the matters relevant to the applicant's sentence in my opinion, in relation to count 1, the applicant should be sentenced, having regard to the matter on the Form 1, to a term of 15 years imprisonment with a non-parole period of 10 years and 6 months commencing on 23 August 2010. 49In relation to count 2, I would impose a sentence of 12 years imprisonment with a non-parole period of 9 years. I would provide for an accumulation of 3 years resulting in an overall sentence of 18 years. 50Accordingly the orders I propose are: 1.Grant leave to appeal. 2Uphold the appeal and quash the sentence imposed in the District Court. 3.In relation to count 2 sentence the applicant to a non-parole period of 9 years commencing on 23 August 2008 and expiring on 22 August 2017 with an additional term of 3 years expiring on 22 August 2020. 4.In relation to count 1 and having regard to the matter on the Form 1 sentence the applicant to a non-parole period of 10 years and 6 months commencing on 23 August 2011 and expiring on 22 February 2022 with an additional term of 4 years and 6 months expiring on 22 August 2026. The aggregate non-parole period is accordingly 13 years and 6 months with an additional term of 4 years and 6 months. 51R A HULME J: I agree with McClellan CJ at CL. 52McClellan CJ at CL has referred (at [47]) to the question whether this Court can or should increase the overall term of a sentence where at first instance there has been an error in failing to set a non-parole period. I agree that because the issue was not fully explored in argument it is inappropriate in this case for the question to be resolved. 53The issue has arisen with surprising frequency in recent times where fixed terms of imprisonment have been imposed erroneously in respect of standard non-parole period offences but it is not confined to such cases. The response by this Court when confronted with such an error has not been consistent. 54Section 45 of the Crimes (Sentencing Procedure) Act 1999 is in these terms: (1) When sentencing an offender to imprisonment for an offence or, in the case of an aggregate sentence of imprisonment, for offences (other than an offence or offences set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the offence or offences if it appears to the court that it is appropriate to do so: (a) because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or (b) because of any other penalty previously imposed on the offender, or (c) for any other reason that the court considers sufficient. (2) If a court declines to set a non-parole period for a sentence of imprisonment or an aggregate sentence of imprisonment, it must make a record of its reasons for doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence. 55In the present case, not only was there the error in imposing a fixed term of imprisonment but there was also a failure to provide reasons for doing so (s 45(2)). The failure to give reasons does not invalidate the sentence (s 45(4)). But the effect is to leave this Court to speculate as to whether the judge intended to set the fixed term at the level of the total term he otherwise would have imposed (encompassing both non-parole and parole periods), or whether he intended to set it at the level only of the non-parole period. 56There are a multitude of cases in which reference has been made to a notion that a fixed term should be set at the level of what would otherwise have been a non-parole period. As far as I am aware, the notion had its origins in the early 1990s when the prevailing legislation was the Sentencing Act 1989. Section 5 provided for a court to set a minimum term and an additional term of imprisonment. Section 6 provided a discretion for a court to "decline to set minimum and additional terms for the offence" and to instead set a fixed term. Where multiple sentences were accumulated, it was thought that in respect of sentences to expire before others there was "no utility" in providing for an additional term, as it would be subsumed by one or more sentences to expire later: see, for example, R v Radenkovic (Court of Criminal Appeal, 6 March 1990, unreported); R v Donovan (Court of Criminal Appeal, 9 September 1992, unreported); R v Close (1992) 31 NSWLR 743; and R v Thomas (1992) 65 A Crim R 269. 57The notion of fixed terms of imprisonment being the equivalent of what would otherwise have been the non-parole period was carried forwarded into the era of the replacement legislation, the Crimes (Sentencing Procedure) Act. One of the most frequently cited cases is R v Dunn [2004] NSWCCA 346 where it was said in the joint judgment of Handley JA, James and Howie JJ: [161] In re-sentencing the applicant fixed terms of imprisonment should be imposed for most of the offences, because if a sentence containing a non-parole period and a parole period was set, the parole period would be subsumed in the non-parole period or the fixed term of some longer sentence or sentences. There is no necessity, as Judge Finnane thought, to set a non-parole period for every one of the sentences. In accordance with sentencing principle, where a fixed term of imprisonment is imposed the fixed term will be equivalent, not to the total term of a sentence containing a non-parole period and a parole period, but merely to the non-parole period of such a sentence. (Emphasis added) 58I have identified 26 cases in this Court in which the nature of a fixed term of imprisonment has been an issue. Many have involved standard non-parole period offences but not all of them. The majority have treated a fixed term as the equivalent of a non-parole period (or a minimum term in the earlier cases). But I have not detected any case in which there has been reference to the terms of the legislation. Construed literally, the discretion provided in s 6 of the Sentencing Act was to decline to set both a minimum term and an additional term and, in lieu, set a fixed term. Construed literally, the discretion provided in s 45 of the current legislation is to decline to set a non-parole period. Neither provided, in terms, for discretion to reduce a sentence by not including within it an additional term, or parole period. 59This issue has affected the way in which this Court has dealt with errors in setting fixed terms of imprisonment for standard non-parole period offences. On some occasions, it is apparent (either explicitly or implicitly) that regard was had to the notion that a fixed term equates to the length of a non-parole period to justify the Court increasing the length of the sentence, notwithstanding the appeal was against the severity of sentence: see, for example, Leddin v R [2008] NSWCCA 242; KC v R [2009] NSWCCA 110; KAF v R [2009] NSWCCA 184; and Paxton v R [2011] NSWCCA 242. 60In at least two cases the sentence was increased without any reason being given but presumably it was on the basis that the fixed term represented a non-parole period: SGJ v R; KU v R [2008] NSWCCA 258; and Russell v R [2010] NSWCCA 248. 61On other occasions the sentence has not been increased at all. In Forbes v R [2009] NSWCCA 292 a fixed term of 2 years was replaced with a non-parole period of 18 months with a balance of term of 6 months. The same approach was taken in Amacha v R; R v Amacha [2010] NSWCCA 180 and Smaragdis v R [2010] NSWCCA 276. 62Whether a sentencing court has the power within the terms of s 45 of the Crimes (Sentencing Procedure) Act to reduce what would otherwise be the appropriate sentence by setting a fixed term of imprisonment is a question best left for resolution in an appropriate case in the future. Resolution of that question will also bear upon whether, in an appeal against the severity of a sentence, this Court can or should increase the sentence where a fixed term has been erroneously imposed. 63SCHMIDT J: I agree with McClellan CJ at CL.

Collier v R

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