Markarian v R [2005] HCA 25;

Markarian v R [2005] HCA 25; - HCA 2005 case summary — Zoe

[34]

"'The degree by which, having regard to the maximum penalties provided by the Act in question, the [appellant's] conduct ... offend[ed] against the legislative objective of suppressing the illicit traffic in the prohibited drug' was substantial. Albeit it was a long way short of the 999.9 g maximum for a commercial quantity, the 415 g the distribution of which he assisted well exceeded the 250 g upper limit for an indictable quantity for the supply of which Parliament had seen fit to prescribe a maximum penalty of 15 years. The [appellant's] activities extended over a period of almost six months. They amounted to conscious deliberate criminality, day after day, for reward, even if that reward was in the form of drugs. At the time he was on parole - a seriously aggravating feature - and had previously been convicted of supplying prohibited drugs and imprisoned. By his repeated offending the [appellant] 'manifested ... a continuing attitude of disobedience of the law'[9]. > > ... > > There were also the offences on the Form 1. The second, involving cannabis, carried a penalty of two or 10 years also depending on whether it was prosecuted summarily or on indictment. In that this offence may have been part of the [appellant's] active assistance to Mr Caccamo in the latter's drug dealing activities, it is proper to regard it as part of the same criminal activity. However, in that a different drug was involved, the criminal activity covered a broader spectrum and merited an increase in punishment. > > It seems likely that the third of the offences in the Form 1 - which being of possession rather than supply, carried a maximum period of imprisonment of two years - was associated with either the operation which was the subject of the first Form 1 offence or the [appellant's] own heroin addiction. It seems very likely that the fourth of these offences, which, under s 527C of the Crimes Act 1900 (NSW) carried a maximum period of imprisonment of six months - was also an incident of the [appellant's] own commercial dealing. It does not disadvantage the [appellant] to so regard both of these offences."

[69]

"Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted. > > It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. > > In R v Thomson[31], Spigelman CJ reviewed the state of the authorities in Australia that deal with the 'two-stage' approach of arriving at a sentence, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen[32] expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to 'discount' a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher[33] when he said that: > > '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.' > > So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform." (emphasis in original)

[105]

"This throws one back upon a preliminary question as to the general principles upon which punishment should be meted out to offenders. In the nature of things there is no precise measure, except in the few cases in which the law prescribes one penalty and one penalty only. In all others, the judge must, of necessity, be guided by the facts proved in evidence in the particular case. The maximum penalty may, in some cases, afford some slight assistance, as providing some guide to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none. The function of the criminal law being the protection of the community from crime, the judge should impose such punishment as, having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances, and to be likely to be a sufficient deterrent both to the prisoner and to others. When the facts are such as to incline the judge to leniency, the prisoner's record may be a strong factor in inducing him to act, or not to act, upon this inclination. Considerations as broad as these are, however, of little or no value in any given case. It is obviously a class of problem in solving which it is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule. > > The position of the judge is analogous to that of a civil jury who are called upon to award damages for a breach of contract, or a tort, in relation to goods which have no market value, and for the assessment of the value of which no generally accepted measure exists. The jury must do the best they can; and so must the judge. In applying considerations as general as these, it is necessarily not often that it can be said, with reasonable confidence, that the sentence imposed was wrong." (emphasis added)

At a glance

Court

Decision date

Before

Source

Judgment (330 paragraphs)

Markarian v R [2005] HCA 25; (2006) 228 CLR 357; (2005) 215 ALR 213; (2005) 79 ALJR 1048 (18 May 2005)

Parties

Legislation Cited (12)

Cases Cited (43)