Court of Appeal (ACT)|2015-02-26|Before: Refshauge, Penfold and Burns JJ

Manyathela v R [2015] ACTCA 13 (26 February 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

The appeal is upheld.
The conviction of the appellant for attempting to possess a marketable quantity of an unlawfully imported border controlled drug is confirmed.
The sentence and non-parole period imposed by Nield AJ on 30 October 2013 are set aside and the appellant is sentenced to imprisonment for six years, to commence on 8 March 2011, reduced from six years and eight months to take account of his plea of guilty.
The appellant is to be released today upon him providing security in the sum of $100 by recognisance, on condition that he will be of good behaviour for a period of two years and six months.

APPEAL - SENTENCING - Appeal against a sentence which is manifestly excessive - Disparity between co-offenders' sentences - Re-sentencing

APPEAL - Attempting to possess a marketable quantity of an unlawfully imported border controlled drug

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Matthews v The Queen; Vu v The Queen; Hashmi v The Queen [2014] VSCA 291

Ojielumhen v The Queen [2014] ACTCA 28

Legal Aid ACT (Appellant)

2. In October 2013 the appellant, Lenin Manyathala, and his cooffender, Osaro Ojielumhen, were both sentenced by Nield AJ on pleas of guilty to charges of attempting to possess a marketable quantity of an unlawfully imported border controlled drug contrary to ss 11.1 and 307.6(1) of the Criminal Code 1995 (Cth). The offence involved the collection from the Canberra post office of a parcel sent from Thailand which contained a DVD player which in turn had, until it was intercepted by the Australian Federal Police, contained just under 200 g pure weight of cocaine.

3. It was clear from his Honour's sentencing remarks that there was little to distinguish the two offenders, with the important exception that the appellant's cooffender had, around June 2013, decided to cooperate with police. He had subsequently provided information or assistance, or both, that his Honour accepted as justifying a 15% sentencing discount for the cooffender on top of the 10% discount allowed to both offenders for their late pleas of guilty.

4. Mr Manyathala was sentenced to imprisonment for seven years and two months, with a non-parole period of four years and eight months. His cooffender was sentenced to imprisonment for six years, with a fouryear non-parole period. Each sentence had started at eight years' imprisonment; for reasons already explained, the appellant's sentence had been reduced by just over 10% and the cooffender's sentence by exactly 25%.

5. The cooffender appealed to the Court of Appeal. On 11 August 2014, his appeal was upheld and the cooffender was re-sentenced, to five years' imprisonment with a non-parole period of two and a half years (Ojielumhen v The Queen [2014] ACTCA 28). The ground of appeal relied on by the cooffender and upheld by the Court of Appeal was, in summary, that at the sentencing hearing, the Crown had indicated what it regarded as an appropriate sentence and Nield AJ had sentenced the cooffender in line with that suggestion. This, it was said, offended the principles set out in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323 (Barbaro). The Court of Appeal concluded that in sentencing the cooffender in accordance with the Crown's submission about a specific sentence, the sentencing judge had had regard to an irrelevant consideration. It decided that the sentencing discretion should be re-exercised, having regard to the circumstances noted by the Court of Appeal (which will be mentioned shortly), so as to impose a significantly shorter sentence than that imposed by Nield AJ.

6. The appellant's appeal, which is brought out of time with leave granted in October 2014, relies on two grounds, being:

(a) first, that the sentence imposed was manifestly excessive in all the circumstances; and

(b) secondly, that his Honour erred in having regard to an irrelevant consideration, namely the Crown's submission as to the appropriate head sentence.

7. The claim of manifest excess is based on the significant disparity now existing between the sentence imposed on the appellant by Nield AJ and the reduced sentence imposed on the cooffender by the Court of Appeal. The specific error alleged in the second ground is the same as that relied on in the cooffender's successful appeal.

8. The Crown appears to say that neither of these grounds of appeal is made out. However, it concedes that the parity principle relied on in the appellant's submissions as the basis for a finding that the appellant's sentence is manifestly excessive provides a separate ground for re-opening the appellant's sentencing and imposing a lower sentence.

9. In relation to the second ground of appeal, the Crown says that, having regard in particular to the post-Barbaro decision of the Victorian Court of Appeal in Matthews v The Queen; Vu v The Queen; Hashmi v The Queen [2014] VSCA 291 (Matthews), the ACT Court of Appeal "ought not to have so readily concluded that the sentencing judge took an irrelevant consideration into account". In support of this submission, the Crown points to the warning from the majority in the Victorian Court of Appeal (Matthews at [18]) that, having regard to the guidance that has been provided by the High Court in Barbaro:

[I]t should not lightly be inferred that a judge who has received a quantified range submission has shirked the task of coming to the judge's own instinctive synthesis on the basis only of the facts as found and relevant sentencing principles.

10. I do not consider that this is an appropriate matter in which to seek to reconcile the decisions in Barbaro and Matthews, especially given that, whatever my conclusion about that issue, I would still have to deal with the parity issue. Rather, I propose to deal only with the parity issue, since I am satisfied that this is a case in which the parity principle requires the appellant's sentencing to be re-opened.

11. For that reason, I also do not propose to consider the question whether in this case the parity principle as a basis for re-sentencing involves a separate specific error not set out in the grounds of appeal or a particular of the manifest excess claim.

12. The parity principle was set out in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 623 by Dawson J, with whom Wilson J agreed, as follows:

There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.

13. In the same case, at 610 - 611, Mason J pointed out that consistency in punishment was important because inconsistency:

is regarded as a badge of unfairness and unequal treatment under the law [and] is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.

14. As noted, Nield AJ certainly took the view that no distinction could be drawn between the two offenders except as regards the cooffender's cooperation with the authorities. It is unarguable in my view that if the appellant's sentence were to be confirmed, despite the cooffender's sentence having been substantially reduced for reasons relating primarily to the course of the joint sentencing process, the appellant would be left with a clearly justifiable sense of grievance. The Crown has sensibly and reasonably conceded as much.

15. The appellant must therefore be re-sentenced in a way that has proper regard to the cooffender's new sentence.

16. In considering whether the cooffender's sentence should be reduced once the opportunity for re-sentencing had arisen, the Court of Appeal that dealt with the cooffender referred to:

(a) the relative seriousness of the drug importation offence and the cooffender's role in that offence;

(b) the cooffender's age and the fact that he was a well educated man, with no prior convictions and with an otherwise unblemished character;

(c) that the cooffender had good prospects of rehabilitation, that he had pleaded guilty, and that he had provided assistance to the authorities; and

(d) finally. that the cooffender had been a compliant prisoner and had also been compliant with his bail conditions.

17. None of these matters distinguishes the cooffender from the appellant.

18. Nield AJ considered that the two men were equally involved in the commission of the offence. The appellant is the younger man by some 10 years and, presumably for that reason, is not as well educated as the cooffender, but he had begun university studies in Canberra before being remanded in custody for this offence. He also had an unblemished character and no prior convictions. Like the cooffender, the appellant was found to have good prospects of rehabilitation and had eventually pleaded guilty. At the sentencing in 2013, the PreSentence Report indicated that the appellant, who has been in custody since his arrest in 2011, had obtained and maintained the minimum security classification due to his general compliance and good behaviour.

19. As already noted, the assistance to authorities given by the cooffender appears to be the only basis for distinguishing between the two offenders, and that is adequately recognised by the different formal sentencing discounts given to the two men.

20. The five-year sentence imposed on the cooffender by the Court of Appeal indicates a starting sentence, before the 25% reduction, of six years and eight months. A 10% reduction would reduce that sentence to six years, starting on 8 March 2011 and expiring on 7 March 2017. A calculation of a new non-parole period on the same basis as was done for the cooffender would yield a new non-parole period of three years, a period that expired nearly a year ago.

21. Accordingly, I do not consider that the appellant should be required at this point to begin the process of applying for parole. Instead, I would order that the appellant be released today under s 20 of the Crimes Act 1914 (Cth), on giving security in the amount of $100 by recognisance that he will be of good behaviour for the next two years and six months.

I certify that the preceding twenty [20] paragraphs numbered [2] to [21] paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

22. I agree with the orders proposed by Penfold J, and with her Honour's reasons. I wish to add that even were this court to embark on a consideration of whether Matthews explains, or is otherwise consistent with, the decision of the High Court in Barbaro, I consider that for the reasons set out in Ojielumhen v The Queen [2014] ACTCA 28, the learned sentencing Judge fell into error in a way that the Victorian Court of Appeal held could, in any event, be inferred (see the decision of the majority in Matthews at [19]).

23. I expressly agree with Penfold J, however, that this is not an appropriate case in which to explore, or explore any further, the extent to which Matthews is, or is not, consistent with, or a proper development of, Barbaro or otherwise.

I certify that the preceding two [2] paragraphs numbered [22] to [23] are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

24. I agree with the orders proposed by Penfold J and with her reasons.

I certify that the preceding paragraph numbered [24] is a true copy of the Reasons for Judgment of his Honour Justice Burns.

Manyathela v R [2015] ACTCA 13

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Judgment (43 paragraphs)

Manyathela v R [2015] ACTCA 13 (26 February 2015)

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Cases Cited (2)