R v A

Court of Criminal Appeal (NSW)|2004-12-16|Before: Wood CJ, Hulme J, Bell J

CITATION : R v A [2004] NSWCCA 292 HEARING DATE(S) : 19/8/04 JUDGMENT DATE : 16 December 2004

JUDGMENT OF : Wood CJ at CL at 1; Hulme J at 34; Bell J at 54 DECISION : Leave to appeal granted. Appeal dismissed.

CATCHWORDS : Criminal law - importation of heroin - appeal against sentence - whether discount for Applicant's assistance to authorities given adequate consideration - interpretation pertaining to sentencing discount under repealed s 16G Crimes Act 1914 - s 16A(1), s 16A(2), s 16A(3), s 16G, s 21E Crimes Act 1914 (Cth) - s 233B(1) Customs Act 1901 (Cth). LEGISLATION CITED : Crimes Act 1914 (Cth) Customs Act 1901 (Cth) Cameron v The Queen (2002) 76 ALJR 383 R v Auv [2002] NSWCCA 375 R v Behar NSWCCA 14 October 1998 R v Bernier (1998) 102 A Crim R 44 R v Bezan [2004] NSWCCA 342 R v Budiman (1998) 102 A Crim R 411 R v Cartwright (1989) 17 NSWLR 243 R v Chu NSWCCA 16 October 1998 R v Dang [2004] NSWCCA 265 R v Dang [2004] NSWCCA 269 R v Dinic NSWCCA 3 September 1997 R v Dujeu [2004] NSWCCA 237 R v Elchami NSWCCA 15 December 1995 R v El Hani [2004] NSWCCA 162 R v El Karhani (1990) 51 A Crim R 123 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Henry (1999) 46 NSWLR 346 R v Huang (2000) 113 A Crim R 386 R v Gallagher (1991) 23 NSWLR 220 R v Hameed [2001] NSWCCA 287 R v K [2000] NSWCCA 200 R v Kain [2004] NSWCCA 143 CASES CITED : R v Karacic (2001) 121 A Crim R 7 R v Kevenaar [2004] NSWCCA 210 R v Klein [2001] NSWCCA 120 R v Lee and Ng NSWCCA 20 December 1996 R v Maclay (1990) 19 NSWLR 112 R v Mas Rivadavia [2004] NSWCCA 284 R v Morgan (1993) 70 A Crim R 368 R v Muanchukingkan (1990) 52 A Crim R 354 R v Olbrich (2000) 117 A Crim R 326 R v Oliver (1980) 7 A Crim R 174 R v Pang [1999] 105 A Crim R 474 R v PPB [1999] NSWCCA 360 R v Quoc Phang Dang [2004] NSWCCA 265 R v Salameh (1991) 55 A Crim R 384 R v Sharma [2002] NSWCCA 142 R v Smith and Jones [2001] NSWCCA 279 R v Sutton [2004] NSWCCA 225 R v Studenikin [2004] NSWCCA 164 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Trevenna [2004] NSWCCA 43 R v Van Ich Dang [2004] NSWCCA 269 R v Wong and Leung (1999) 48 NSWLR 340 R v Zuluaga-Gomez [2002] NSWCCA 358 PARTIES : Regina A FILE NUMBER(S) : CCA 1874/04 COUNSEL : M Cinque (Crown - Commonwealth) H Dhanji SOLICITORS : Commonwealth Director of Public Prosecutions S E O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0336 FILE NUMBER(S) : LOWER COURT Solomon DCJ JUDICIAL OFFICER :

10 - IN THE COURT OF CRIMINAL APPEAL 60241/04

WOOD CJ at CL HULME J BELL J

Thursday 16 December 2004 Regina v A Judgment 1 WOOD CJ at CL: The Applicant, who is to be referred to by a synonym, seeks leave to appeal against a sentence of imprisonment for 7 years with a non-parole period of 4 years and 6 months, that was imposed on her by Judge Solomon, in the District Court on 6 November 2003, following her plea of guilty to one count of importing into Australia prohibited imports to which s 233B(1)(b) of the Customs Act 1901 (Commonwealth) applied. The substance in question involved heroin of a pure weight of 316.9 gms, being an amount not less than the trafficable quantity, which was estimated to have a street value of AUD $754,000.

Facts 2 On 4 February 2003 the Applicant, who was of Vietnamese origin, but who had settled in this country in 1989, flew into Sydney from Hong Kong. She was found to be wearing a pair of shoes in which the heroin was concealed. 3 Initially she informed investigators that she had purchased the shoes in a Saigon market eight days previously, that she had visited Saigon for the sole purpose of visiting her father, that she had paid for the travel herself, and that she had no knowledge of anything being concealed in her shoes. 4 Subsequently she admitted to police that she had been approached by a man in a local club and offered $20,000, together with reimbursement of her travel expenses, to commit the offence. She acknowledged that what she had been doing was illegal, but had thought of it as a way to help her family in Vietnam. 5 She provided assistance to the Australian authorities in the terms recorded in a sealed letter which was placed before his Honour, and which we have also read. His Honour accepted that the information provided was "substantial and beneficial", and the Crown does not challenge that assessment, nor does it seek to question the finding that the Applicant was a courier, acting at the lowest end of this importation. 6 Objectively his Honour correctly noted that this was a serious offence, as is reflected by the maximum available penalty which is one of imprisonment for 25 years, or a fine of $50,000 or both, and that the community will not tolerate persons who bring large quantities of narcotic goods into this country. The need for significantly deterrent sentences in relation to couriers is well established: see R v Muanchukingkan (1990) 52 A Crim R 354, R v Budiman (1998) 102 A Crim R 411, R v Behar NSWCCA 14 October 1998, and R v Klein [2001] NSWCCA 120. 7 The financial reward of $20,000 expected by the Applicant in the present case was substantial, and it is clear, upon her own admission, that she went into the venture with her eyes open. Regrettably, it appears that it is not uncommon for couriers of a Vietnamese background, who have settled in this country, to be used to bring back trafficable quantities of heroin, concealed on their person, or in articles carried in their baggage, after making a short visit to their place of birth. Those who organise such ventures, and those who are tempted to accept such roles for financial reward, need to be deterred by significant sentences imposed by courts in this country. They also need to be acutely aware of the risk of facing capital punishment in Vietnam, if they happen to be intercepted at an airport, in that country, with narcotics in their possession, on their way back to Australia. 8 His Honour somewhat succinctly adverted to the relevant subjective circumstances of the Applicant as specified in s 16A(2) Crimes Act 1914 (Cth), including the facts that:

(i) the Applicant had pleaded guilty at the earliest practical opportunity (because she had not received legal assistance until two days prior to the trial) (ii) she was contrite for her actions; (iii) she was aged 42 years and had no relevant criminal record; (iv) she had experienced "a sad and difficult life", having been significantly traumatised by events which had occurred to her family during the war in Vietnam, had escaped from that country at the age of 26, and had found it necessary to prostitute herself in order to pay for her escape with the result that she had been subsequently unable to form any personal relationships; (v) she had limited English, no family and few friends in Australia; (vi) she suffered from a back condition; (vii) serving a prison sentence would be more onerous for her than would normally be the case; (viii) she had used her time in custody in an attempt to rehabilitate herself by undertaking courses in English and computer skills; and had additionally undertaken voluntary work; (ix) she had provided substantial and beneficial information to the Australian Federal Police. 9 There is no suggestion that his Honour overlooked any of the objective or subjective factors that were relevant for sentencing. However it was pointed out that his Honour had not, in the reasons for judgment, quantified the discount that was to be given for the Applicant's early plea or for her co-operation with the authorities. 10 Attention was drawn to the following exchange which occurred during the submissions on sentence: "HIS HONOUR: Would you say that the level of assistance negates the effect of there not being a 16G to be applied. McNAUGHTON: Possibly in the end result. HIS HONOUR: In the end result, I think it just about balances itself out. McNAUGHTON: Yes although the exercise is obviously different in terms of -- HIS HONOUR: I'm not going to in my mind go through the exercise with that in mind however if I regard the 16G adding about 30 percent to the other sentences and then saying that the level of assistance gives her about a 30 percent discount and the other sentences are appropriate in terms of assistance to me." 11 It is now submitted that his Honour erred in failing properly to discount the Applicant's assistance to the authorities, and in his approach to the repeal of s 16G of the Crimes Act 1914 (Cth). 12 Transparency in sentencing is necessary in so far as it is expected that Judges will disclose, in their reasons, the process by which a sentence is reached: R v Smith and Jones [2001] NSWCCA 279 at para 5. Exchanges between the Bench and Counsel in the course of the proceedings do not form part of the reasons, and it would not be safe to assume that some observation passed by a Judge, during submissions, necessarily represents a considered or final view as to the basis upon which a particular case is decided: R v Kain [2004] NSWCCA 143 at para 56. 13 When the matter came before his Honour he did not have the benefit of the several decisions which have since been delivered by this Court concerning the way in which the repeal of s 16G should be taken into account, namely R v Studenikin [2004] NSWCCA 164, R v Kevenaar [2004] NSWCCA 210, R v Dujeu [2004] NSWCCA 237, R v Quoc Phang Dang [2004] NSWCCA 269, R v Van Ich Dang [2004] NSWCCA 269 and most recently R v Mas Rivadavia [2004] NSWCCA 284 and R v Bezan [2004] NSWCCA 342. 14 The effect of the decisions in Studenikin, Dujeu and Mas Rivadavia is that while the repeal of s 16G is likely to result in an increase in the current and future sentencing pattern over that which is to be discerned by reference to the pre repeal cases, which had been the subject of a s 16G discount, the proper approach is to set a sentence that meets the requirements of s 16A(1) of the Crimes Act 1914, and the relevant objectives of sentencing, without giving a s 16G discount. 15 Moreover, they establish that it would be inappropriate to approach the sentencing exercise upon a broad arithmetic approach that would require the sentencing range referred to, for example, in Regina v Wong and Leung [1999] 48 NSWLR 340 to be adjusted by some bare arithmetic formula, let alone one that would call for its increase by the factor of 50%, in order to restore an equivalence with the pre-repeal range. 16 I am not persuaded that Kevenaar or either of the Dang decisions should be understood as suggesting that there should be an automatic adjustment in the order of 50%, since to do so would be to resort to the mathematical approach which was accepted, in each decision, to be inappropriate. In this regard it needs to be born in mind that the guideline judgment reflected a range, and acknowledged that, in appropriate cases, there could be a departure above or below it. 17 Judges were not unaware, during the period when s 16G was in force, that it was a somewhat beneficial provision, in that it gave an allowance for remissions which were as yet unearned, compared with the position of State offenders, who needed to earn remissions through good conduct, in those jurisdictions where a remission system existed. That was a matter properly taken into account by Judges and it does not follow that the starting points selected in the pre-repeal Federal cases would necessarily have been the same had the section not been in force. So much was recognised by Smart AJ in Dujeu at para 42. 18 What the line of authority mentioned does establish, in my view, is that care needs to be taken when reference is made to individual pre-repeal decisions, or to the pre-repeal range, or to the guideline judgment. That arises from the circumstance that those earlier sentences, and the guidelines which were proposed in Wong and Leung, were predicated respectively upon the basis that there had been, or would be, a discount of the kind referred to in R v El Karhani (1990) 51 A Crim R 123, as being necessary for sentences passed in those States which lacked a remissions system. 19 That discount, as the decision in El-Karhani and subsequent decisions made clear, was never regarded as involving a fixed or arbitrary ratio. Rather, it was considered to be an appropriate reference or starting point, it still being necessary to pass a sentence that properly took into account the prescribed maximum penalty, the gravity of the offence, and the objective and subjective considerations relevant to the particular offender. It cannot therefore be assumed that there has always been a discount given of this magnitude, and to make any assumption to that effect by reference to the statistics, or the prior sentencing pattern, is to invite error. 20 What is now required by s 16A(1) of the Crimes Act 1914 is that a sentence be imposed that "is of a severity appropriate in all of the circumstances of the case", including those that are identified in s 16A(2) and (3). The approach required by this section does not materially differ from that held to be appropriate in R v Maclay (1990) 19 NSWLR 112, in the context of the introduction into New South Wales of the former Sentencing Act 1989. 21 The observations of his Honour during the submissions did involve something of an arithmetic error if read literally, since the elimination of the s 16G discount would result in a 50% addition to any sentence that had been previously discounted by about one-third for the absence of remissions (not the 30% addition which his Honour mentioned). That is of little moment, and it may be that his Honour expressed himself infelicitously in this exchange. 22 Whatever be the situation in that regard, the present matter is complicated by the fact that his Honour did not articulate, in the reasons, the discount which had been given for the plea or for the assistance. Although, subject to compliance with s 21E of the Crimes Act 1914 (Cth), it is not mandatory for a sentencing judge to specify the precise extent of the discount given for such factors, it does remain desirable for Judges to quantify their effects or to make clear, at least in general terms, the extent to which allowance has been made: see R v Thomson and Houlton (2000) 49 NSWLR 383 at para 60 and R v PPB [1999] NSWCCA 360 at para 29 per Kirby J. 23 The recent observations of Howie J in R v Sutton [2004] NSWCCA 225 are apposite in this respect:

"16 While there is no obligation on a sentencer to nominate the utilitarian value for the plea, I cannot personally understand why certain judges seek to avoid doing so in simple cases, such as the present. But if judges are not prepared to make the discount clear by quantifying it or indicating the starting point of the sentence before the application of the discount, then with respect, they should carefully and correctly enunciate the factors taken into account and the principles being applied in determining the discount which they are applying. As Dunford J noted in R v Mako [2004] NSWCCA 90 at [21]:

In all cases the important consideration is to expose the transparency of the process so that it can be seen that an appropriate discount has been allowed. 17 Time and again this Court is left to try to fathom what discount was given, either for pure utilitarian value or in combination with contrition, in cases where the judge has not referred to the fact that a discount was given or the value of it, when a simple statement of the percentage value of the discount or the starting point of the undiscounted sentence would have revealed whether the sentencing discretion miscarried on that account." 24 In the case of a Federal offender, it is the willingness of that offender to facilitate the course of justice, the acceptance of responsibility and the expression of contrition, that are each conveyed by a plea, which gives rise to an entitlement to a discount for that factor: Cameron v The Queen (2002) 76 ALJR 382. 25 The availability of a discount for assistance, depending on its worth, in order to foster the interests of law enforcement and to recognise the contrition involved as well as the potential risks to the offender, is well recognised: R v Salameh (1991) 55 A Crim R 384, R v Gallagher (1991) 23 NSWLR 220, R v Cartright (1989) 17 NSWLR 243 and R v Dinic NSWCCA 3 September 1997. It is important, if the purpose for allowing a discount is to be achieved, that the offender standing for sentence be clearly appraised of the fact that a benefit was conferred. That will not be conveyed by a bare statement of the kind that was made in this case that the assistance was judged to have been "substantial and beneficial". 26 The level of the discount has customarily been accepted as falling within the range of 20 to 50% R v Chu NSWCCA 16 October 1998, R v Pang [1999] 105 A Crim R 474 and R v El Hani [2004] NSWCCA 162 at para 71. An allowance at the upper end has been reserved for cases where there has been particularly significant assistance, usually involving the offender accepting an obligation to give evidence against other offenders. 27 Where the factors of a plea and assistance are each available, it does not follow that any resulting discount is to be compounded or accumulated: R v Sharma [2002] NSWCCA 142 and R v Hameed [2001] NSWCCA 287. Otherwise there is a risk of the sentence becoming one which is not of a severity appropriate in all of the circumstances of the case. In such cases a combined discount will normally be appropriate: Thompson and Houlton at para 129; El-Hani at paras 65 to 70, and R v Zaluaga-Gomez [2002] NSWCCA 358. 28 The absence of any sufficient reference to the discount that was allowed, and the observations of his Honour concerning s 16G, make it appropriate, in my view, for the Court to review for itself whether some sentence other than that imposed should have been passed, in the light of the plea and the assistance, and in the light of what should now be regarded as an appropriate range of sentences for a courier, involved in the importation of heroin in a comparable quantity. In that regard reference to the decision in Wong and Leung continues to be of some assistance, so long as it is recalled that the guideline range of six to nine years there proposed for a mid level trafficable quantity of heroin assumed a s 16G discount. 29 That review has been assisted by an examination of the sealed letter in which the details of the Applicant's assistance are to be found. I have also made reference to several comparative cases such as R v Chu NSWCCA 16 October 1998, R v Auv [2002] NSWCCA 375, R v Lee and Ng NSWCCA 20 December 1996, R v Karacic (2001) 121 A Crim R 7, R v Elchami NSWCCA 15 December 1995, R v K [2000] NSWCCA 200, R v Huang (2000) 113 A Crim R 386 and R v Olbrich (2000) 117 A Crim R 326, all of which were decided when s 16G was in force; and to post repeal decisions such as R v Dang [2004] NSWCCA 265, and R v Dang [2004] NSWCCA 269. In that regard, I accept that these cases represent only a sample of the cases that make up the range and that there are inevitably differences in their objective and subjective circumstances: R v Morgan (1993) 70 A Crim R 368 and R v Trevenna [2004] NSWCCA 43. 30 However, so far as they provide some general guidance as to the range, subject to the discount that was given where it was applicable, they are capable of being taken into account in an attempt to secure some general consistency in sentencing: R v Henry (1999) 46 NSWLR 346, R v Oliver (1980) 7 A Crim R 174 at 177. 31 Having read the Letter of Assistance and having examined the decisions mentioned, I am not persuaded, allowing for a combined discount in the order of 40 to 50% for the plea and assistance, which I consider to have been appropriate in the present case, that the sentence was outside a permissible sentencing range. In this regard the sentence does not appear to be excessive having regard to the range and the sentencing pattern which existed before the repeal of s 16G. Moreover, as I have already noted, despite the Applicant's subjective circumstances, this was not the case of an unwitting courier duped into a narcotics run. Rather it involved a cool headed decision to become involved in an illegal and risky venture for a considerable sum of money. 32 I am also not persuaded that a lesser non-parole period should have been fixed. The period of 4 years 6 months represented 64% of the term, and as such it was within the conventional range of 60 to 66.6% referred to in R v Bernier (1998) 102 A Crim R 44. 33 I would grant leave to appeal but I would dismiss the appeal. 34 HULME J: I agree with the orders proposed by Wood CJ at CL and, subject to the following remarks, with his Honour's reasons. My principal point of difference lies in his Honour's remarks concerning the effect of the repeal of Section 16G of the Crimes Act (Cth). 35 I of course accept, it having been laid down by Parliament in Section 16A of that Act that a court, sentencing an offender in this area "must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence". That is the law now. It was the law when Section 16G was in operation albeit the severity appropriate then had to reflect the requirements of that section which was regarded as mandating a significant discount. 36 Furthermore I accept that sentencing is not a simple mathematical exercise. However, in part sentencing deals in figures. Parliament has used them in setting maximum terms of imprisonment and sentences are expressed by reference to them. Factors taken into account in sentencing are not uncommonly expressed in mathematical terms. Thus in R v Thomson and Houlton 2000 49 NSWLR 383 the guideline laid down for the discount to be applied for the utilitarian value of a plea of guilty was expressed in percentages. A similar approach, using percentages or fractions, has commonly been adopted in discussions concerning the allowance or discount to be afforded to offenders for assistance to the authorities - see for example El Hani [2004] NSWCCA 162 at [71 - 74]; R v Chu (unreported, CCA, 16 October 1998); R v Cartwright (1989) 17 NSWLR 243 at 255-6. When s16G was in operation, the allowance or reduction in sentence which, in the circumstances of sentencing in New South Wales, was required by the section was commonly expressed in terms of one third or a percentage (not necessarily 33 1/3%). 37 Against this background there can be no sensible criticism of the use of figures or mathematics in expressing the consequences of the repeal of s16G. Furthermore it follows as the night the day that, all other things remaining the same, if one omits from a particular starting point a discount of approximately one-third then, the result will be approximately 50% higher than if the discount had been applied. The fact that such a result is, or can be described as, "mathematical" does not invalidate it. 38 In R v Dang [2004] NSWCCA 269, where the sentencing judge had increased a figure of 8 years to 12 years to reflect the repeal of s16G, Hidden J, with whom the Chief Justice and Buddin J agreed, saw nothing wrong with this approach, providing that mathematics were kept in their proper place. 39 As Howie J, with whom Grove J and Newman AJ agreed, in R v Studenikin [2004] NSWCCA 164 at [43] pointed out, "To give effect to the sections (16G and 19AG), the courts in this State proceeded to sentence a Federal offender by determining the appropriate head sentence and non-parole period by the application of normal sentencing principles and the relevant provisions of the Crimes Act (Cth) and then, before pronouncing the sentence reduced it by a period of about a third." 40 At [62 - 63], his Honour continued:- "62 In any event, it is wrong, in my view, to approach this matter on the basis that it involves a question of whether the courts in this State should increase sentences as a result of the repeal of s 16G. The issue is rather whether the courts in this State have the power to continue to apply the discount authorised by s 16G after the repeal of that provision. If this issue is stated in this way, the answer is obvious. In the absence of a statutory warrant to do so, a court has no power to reduce a sentence that has been determined by a proper application of the sentencing principles laid down by the statute or the common law to the facts and circumstances of the particular case. It seems to me, with respect, to be a matter of common sense and simple logic, that, if the courts of this State have been reducing the sentences imposed upon Federal offenders by reason only of the operation of a specific statutory provision, the courts can no longer reduce sentences in that way once the statutory authority to do so has been withdrawn.

63 As I have already indicated, the normal principled approach taken to sentencing Federal offenders when s 16G was in operation was to apply the relevant discount after the court had determined the appropriate sentence that should be imposed for the offence by the application of the relevant sentencing principles. If the authority to discount the otherwise appropriate sentence is withdrawn, the court has no option but to impose the sentence which it has determined is the appropriate one." 41 Against these, if I may say so, accurate statements of how sentencing generally proceeded while s16G was in operation and of the effect of its repeal, it is a matter of elementary logic that, as I said with the concurrence of Simpson and Howie JJ in R v Kevenaar [2004] NSWCCA 210, at [46] and [48]:- "It follows that the pattern of sentences imposed after the repeal of s16G can be expected to accord with the pattern in earlier cases of the periods determined by the application of normal sentencing principles and the (other) relevant provisions of the Crimes Act prior to the application of the s16G discount rather than in the pattern of the length of the sentences ultimately imposed in the earlier cases. Those pre-discount periods are commonly to be found expressly stated in those cases. … The effect of the repeal of the section is that the length of sentences of imprisonment (and non-parole periods) for those offences to which s16G previously applied should, as a necessary and logical consequence of the way the courts implemented s16G, increase by approximately 50%. 42 My choice of "approximately 50%" depended on the discount applied in consequence of s16G having been, or been approximately, one-third. One-third was the figure referred to by Howie J in R v Studenikin and, as I said in R v Kevenaar, the reduction almost invariably applied. 43 I should acknowledge that in R v Bezan [2004] NSWCCA 342, Wood CJ at CL, with the concurrence of Buddin and Shaw JJ, said, at [19]:- "(The decisions in Studenikin [2004] NSWCCA 164, Dujeu [2004] NSWCCA 237 and Mas Rivadavia [2004] NSWCCA 284) establish that it would be inappropriate to approach the sentencing exercise upon a broad arithmetic approach that would require the pre-repeal sentencing range … to be adjusted by some bare arithmetic formula, let alone one that would call for its increase by the factor of 50%, in order to restore an equivalence with the pre-repeal range." 44 However, subject to the recognition that the 50% is an approximate figure, exactly the same result follows whether one looks only at the pre-discount periods expressly identified in many of the pre-repeal case as determined by the application of normal sentencing principles, or looks at the sentences ultimately imposed and increases them by approximately 50%. Unless and until one is prepared to say that the conclusions expressed in those pre-repeal cases as to the appropriate sentences determined by the application of normal sentencing principles are wrong, it is entirely academic in any consideration of pre-repeal cases whether one uses those conclusions or the after-discount sentences imposed and increases the latter "mathematically". 45 In making these remarks, I do not intend to suggest that the starting point in the determination of a sentence in any particular case is either the sentence imposed in another, or indeed the pattern of sentences imposed in a group of earlier cases - c.f. Howie J in R v Studenikin at [51]. I seek merely to state what seems to me the inevitable consequence of the repeal of a section which, in the way it was implemented, authorised a discount from, to re-quote Howie J, "the appropriate head sentence and non-parole period (determined) by the application of normal sentencing principles and the relevant provisions of the Crimes Act (Cth)". 46 In R v Kevenaar, at [49], I observed: - "That proposition (expressed in paragraph 48 and quoted above) depends on an assumption that the pattern of sentencing operating prior to the repeal of s16G was not excessive. After a thorough investigation of the cases in this area on a number of occasions, including in R v Spiteri , R v Schofield and R v Bourel (unreported, CCA, 11 December 1998) I am satisfied that it was not. There certainly has been no appellate court indication that it was. 47 In R v Dujeu [2004] NSWCCA 237, at [42] Smart AJ said:- "… When s16G and s19AG were in force, judges in selecting starting points for calculating sentences were not unaware of the large reduction so often wrought by the application of s16G. Its effect tended to have a subtle and perhaps unconscious influence. Inadequate sentences were avoided." 48 In this case at [17], the Chief Judge has said that the beneficial effect (to offenders):- "… was a matter properly taken into account by Judges and it does not follow that the starting points selected in the pre-repeal Federal cases would necessarily have been the same had the section not been in force." 49 If by these statements it is intended to suggest that, within the narrow range of sentences a judge often regards as all possibly appropriate immediately prior to making a final decision in a particular case, knowledge of the discount required by s16G may have influenced a decision towards the top of that range, then I have no difficulty with the first 2 of the sentences just quoted from R v Dujeu and with what the Chief Judge has said. However, for that influence to have been more than very marginal would mean that effect was not being given to the requirements of s16G and the authorities which quantified the entitlement that section gave to an offender. Thus, by way of example, an offender whose sentence determined in accordance with normal sentencing principle would be 9 years but who was entitled to a s16G discount of one third, would not receive it if, because the judge was "not unaware of the large reduction … wrought by the application of s16G" the starting point adopted was 10 years. 50 I do not suggest that matters would generally be as precise as in the example just given but it illustrates the limited scope there is to explain, or justify departure from, previous starting points by reference to the existence of s16G. I do not accept that, during the period when Section 16G was in force and judges were obliged to make the allowance the section dictated, they adopted as a starting point for the determination of the sentences figures calculated - a term, I make clear, I use in contradistinction to "designed" - to deprive offenders of the benefits Parliament had dictated and cases such as El Karhani (1990) 51 A Crim R 123 and others have generally quantified as of the order of one-third. 51 I am also unwilling to accept that a decade of statements by dozens, if not hundreds, of judges as to what, prior to the application of s16G in the particular case were appropriate sentences, were in fact wrong. I have seen no evidence to that effect. The studies of case in this area to which I referred in R v Kevenaar at [49] did not so suggest. Furthermore, the examination of prior Federal cases conducted by the Chief Justice in R v Wong and Leung (1999) 48 NSWLR 340 at [33 - 86] and his Honour's endorsement of the conclusion that the range of sentences since R v Ferrer-Esis (1991) 55 A Crim R 231 has tended to be lower than indicated in that case runs contrary to any suggestion that there had been any upward adjustment to, consciously or unconsciously, counter the effect of s16G. 52 Thus it is that I adhere to the view expressed in R v Kevenaar that, as a necessary and logical consequence of the way the courts implemented s16G, its repeal should lead to an increase in sentences to which it would have applied of approximately 50%, and regard statements, such as that in R v Bezan at [18] to the effect that "the repeal of s16G is likely to result in an increase in the current and future sentencing pattern over that which is to be discerned by reference to the pre-repeal cases, which had been the subject of a s16G discount" as very substantially understating what should be the effect of the repeal. 53 I may perhaps add that I have sought to have a thorough search conducted to find any authorities in other states bearing on the effect of the repeal of s16G. No such cases have been found. 54 BELL J: I agree with Wood CJ at CL. **********

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