R v Dujeu

Court of Criminal Appeal (NSW)|2004-06-11|Before: Dowd J, Hislop J, Smart AJ

CITATION : R v Dujeu [2004] NSWCCA 237 revised - 04/08/2004 HEARING DATE(S) : 11 June 2004 JUDGMENT DATE : 3 August 2004

JUDGMENT OF : Dowd J at 1; Hislop J at 28; Smart AJ at 29 DECISION : Leave to appeal granted; appeal dismissed.

CATCHWORDS : Severity appeal - reasons given for sentence - no reasons specifically given for non-parole period - effect of repeal of ss16G and 19AG Commonwealth Crimes Act 1914 - no error LEGISLATION CITED : Commonwealth Crimes Act 1914 Sentencing Act 1989 Bernier v R (1998) 102 A Crim R 44 Bugmy v R (1990) 169 CLR 525 Deakin v R (1984) 58 ALJR 367 Griffiths v R (1977) 137 CLR 293 Norton v R [2003] WASCA 86 Power v R (1974) 131 CLR 623 CASES CITED : R v Maclay (1990) 19 NSWLR 112 R v Nai Poon (2003) 56 NSWLR 284 R v Oliver (NSWCCA, 20/03/80, unreported) R v Pawa [1978] 2 NZLR 190 R v Robinson (1979) 22 SASR 367 R v Studenikin [2004] NSWCCA 164 R v Visconti [1982] 2 NSWLR 104 PARTIES : Anthony Daniel Dujeu Crown FILE NUMBER(S) : CCA 60063/04 COUNSEL : Crown: Mr M Wigney Appellant: Mr S Odgers SC SOLICITORS :

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0335 FILE NUMBER(S) : LOWER COURT Bell DCJ JUDICIAL OFFICER :

15 - IN THE COURT OF CRIMINAL APPEAL 60063/04

DOWD J HISLOP J SMART AJ

Tuesday, 3 August 2004 R v Anthony Daniel DUJEU Judgment 1 DOWD J: This is an application for leave to appeal by Anthony Dujeu against the sentence imposed by Bell DCJ after a plea of guilty to importing a trafficable quantity of methylamphetamine (242.5g pure) on 22 January 2003. 2 The applicant was sentenced to a head sentence of seven years from the date of arrest with a non-parole period of four and a half years, which is calculated to be 64.3 per cent of the head sentence. It is conceded by the applicant that although the head sentence is high, it is within the appropriate range of sentences, and that the non-parole period is also within the appropriate range, and that therefore neither the head sentence nor the non-parole period are suggested to be in error on that count. 3 The applicant was sentenced after the repeal of s16G of the Commonwealth Crimes Act 1914 (the "Act"), which provided for the imposition of a sentence which took into account State and Territory sentences not being subject to remission or reduction. This was also after the repeal of s19AG of the Act, which dealt with the application of that same factor concerning remissions to non-parole periods.

4 Sections 16G and 19AG of the Act are in the following terms: Section 16G (repealed) Federal sentence to be adjusted if no State or Territory remission laws apply

If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly.

Section 19AG (repealed) Non-applicability of State or Territory remission or reduction laws to be taken into account

In calculating a non-parole period or pre-release period, in respect of a federal sentence, the court fixing that period:

(a) must take into account the fact that, under section 19AA, any non-parole period, or pre-release period specified in a recognizance release order made, in respect of the sentence will not be subject to remission or reduction other than a remission or reduction applying under subsection 19AA (4); and

(b) must adjust the period accordingly. 5 The first ground of appeal is that the sentencing judge gave no reasons for the proportion which the non-parole period bore to the head sentence. The applicant asserted strong reasons for a lower non-parole period: first, the applicant's relative youth; secondly, his prior good character; thirdly, his genuine remorse; fourthly, that he was a drug user at the time of the commission of the offence who had since indicated a clear intention to address that drug abuse; and finally, his general unlikelihood of re-offending. The applicant relied on the pre-sentence report of 30 June 2003, the report of a Bill Roberson dated 15 July 2003, and the applicant's oral evidence given before the Court. 6 Relying on the judgment of Dawson, Toohey and Gaudron JJ in Bugmy v R (1990) 169 CLR 525, it was contended on behalf of the applicant that there is some degree of mercy due to the offender in the fixing of the minimum term, and that this results in a benefit to the community. 7 The short summary of the facts is that after arriving in Sydney from Denpasar, Indonesia, the applicant passed through customs, but on arrival at his sister's home he asked her to call an ambulance to take him to hospital because he believed he had sustained an overdose of drugs. The ambulance officers were advised by the applicant that he believed that he had internally absorbed methylamphetamine, from a large number of containers he had ingested prior to leaving Indonesia. 8 After the third day of his admission to hospital the applicant passed from his body capusules, which ultimately totalled 60 in number, of very high purity methylamphetamine, the weight being 303.2 grams. For this amount, if "cut", street distribution could realize approximately $1.5 million. One or more of the capsules had ruptured during the flight from Indonesia. The applicant had been a regular user of methylamphetamine and thus understood his symptoms. This importation could well have succeeded but for the medical circumstances which intervened. The applicant, however, was importing the drugs for reward in terms of drugs and cash. 9 To the police, the applicant initially asserted that he was going to use the drugs for himself, and he denied that he was to receive a reward for importing the drugs. The learned sentencing judge found that Mr Dujeu told him some, but not all of the truth, and the gaps in his story, particularly in relation to the arrangements as to meeting the person to whom he was to deliver the drugs, caused his Honour a sense of disquiet as to the applicant's overall truthfulness. His Honour nonetheless approached the matter on the basis that the applicant was a courier, and took that into account as a basis for the sentencing. 10 It was submitted by the Crown that, the non-parole period being four years and six months (being 64.3 per cent of the head sentence), the applicant's concession that that was within range was properly made. It was submitted by the respondent that the sentencing judge is not required to give separate reasons for setting a non-parole period, and that even if that failure to ascribe reasons were an error, that would not justify this Court setting aside a judgment which is otherwise conceded to be within the appropriate range (both head sentence and non-parole period being conceded to be within an appropriate range).

11 It was further submitted on behalf of the Crown that a number of findings of fact made by the learned sentencing Judge were taken into account, namely:

a) that the applicant entered his plea at the earliest opportunity, demonstrating contrition;

b) that the applicant had an unblemished record; c) that as a young man, the applicant would in fact face hardship in jail; d) that the applicant was genuinely sorry for what he has done; and e) that it was unlikely that the applicant would re-offend. 12 It was further put on behalf of the respondent that the sentencing judge, in sentencing, had clearly set out his findings of fact; had taken into account the objective seriousness of the offence; had addressed the matters listed in s16A of the Act; had given a twenty per cent discount for the early plea of guilty; and had accepted that the applicant had an unblemished character, but that this was not necessarily unusual in drug matters. The learned sentencing judge also considered the issue of making a recognizance release order as an alternative to a non-parole period. In particular, his Honour considered a number of comparative cases referred to by the Crown, including R v Nai Poon (2003) 56 NSWLR 284, as well as the Judicial Commission statistics. 13 Although conceded by the Crown, indeed correctly, that sentencing judges are under an obligation to give reasons for decisions, this clearly occurred in this sentencing. 14 There is no obligation to give separate reasons for a non-parole period, and no express requirement in the Act. In Norton v R [2003] WASCA 86, Anderson J, with whom Parker J agreed, stated at para 12: I think that this submission involves a misconception. A Judge who passes a sentence with a non-parole period passes only one sentence not two: Power v R (1974) 131 CLR 623 at 629 - 630. The purpose of sentencing remarks is to explain why that single sentence has been imposed. Most if not all of the facts and circumstances relevant to the fixing of a head sentence will be relevant to the fixing of the minimum time which the prisoner must remain in custody. The question is whether sufficient reasons have been given for the single sentence. The sentencing reasons stand as the reasons for both the head sentence and the non-parole period.

15 It was further submitted on behalf of the respondent that it was clear that the learned sentencing judge was endeavouring to be as lenient as he could be to the applicant, whilst at the same time taking into account the very serious nature of the offence. All matters articulated by Bell DCJ were relevant to both the non-parole period and the head sentence. In this case, the non-parole period was clearly squarely within the normal sentencing parameters. No particular reasons were required for the fixing of the non-parole period. 16 The respondent says in relation to the second ground of appeal, which was that the non-parole period was manifestly excessive, that the non-parole period was within the range and there is no basis upon which it could be said to be so excessive as to manifest an error in principle. 17 At the hearing, submissions were sought as to the effect on sentences of the repeal of ss16G and 19AG of the Act. The applicant submitted that the repeal of ss16G and 19AG would not, in itself, justify a change to the normal ratio between non-parole period and head sentence in Commonwealth matters. It was also submitted that it may require the sentencing judge to give close attention to the principle in Bugmy (supra) that the abolition of those sections does not necessarily in all cases flow through to a proportional increase in non-parole periods. 18 It was further submitted for the applicant that considerations of mercy, a lesser emphasis on objective seriousness, and greater emphasis on rehabilitation may mean that a severe head sentence is accompanied by a non-parole period which is relatively short. It was suggested that it should be perhaps 50 per cent of the head sentence. 19 In reply, the respondent submitted that there is no reason why the repeal of ss16G and 19AG of the Act would have any effect on the appropriate range, and that therefore the normal 60 to 66 2/3 per cent should continue, subject to the observations made in Bernier v R (1998) 102 A Crim R 44 at 49.7 that consideration must be give to the individual facts of the case, and that the process is not a mathematical or rigid one. 20 The submission by the respondent, with which I agree, is that the proper approach in sentencing a federal offender is to determine the appropriate sentence without taking into account that ss16G and 19AG once existed and have now been repealed. 21 In R v Studenikin [2004] NSWCCA 164, Howie J, with whom the other members of the Court agreed, said at para 71: Insofar as the applicant contends that there is no warrant to increase the current range simply by applying some mathematical formula, I agree with that proposition. I also accept that the proper approach to sentencing a Federal offender is to determine the appropriate sentence without taking into account that s16G once existed and has now been repealed. But I cannot agree with the submission that, before imposing a sentence, the court should have regard to the range of sentences that was established when s16G applied and adjust a term of imprisonment, determined without consideration of that range, to conform with it. To do so would be to thwart the obvious intention of Parliament and, in effect, to preserve the operation of s16G. If regard is to be had to the range of sentences established under the operation of s16G for any legitimate purpose, the sentencer must take into account that the level of the range of sentences is due to the operation of a provision, no longer existing, that reduced the otherwise appropriate sentences by approximately a third. To use that range for the purpose of determining whether a particular sentence is an appropriate one, without taking that fact into account, would be to err in the exercise of the sentencing discretion. 22 Taking into account the matters considered by the learned sentencing judge, it is clear that his Honour took into account a range of matters that were applicable both to the head sentence and the fixing of the non-parole period. The sentence which is imposed, for which his Honour gave reasons, is one sentence, not two (see Power v R (1974) 131 CLR 623). 23 The principles to be applied in fixing a non-parole period, as established in Bugmy (supra), were not misapplied by his Honour. 24 It is clear in careful and considered remarks on sentence that the learned sentencing judge, in fixing both the head sentence and non-parole period, considered, as appropriate to the purposes of a head sentence and a non-parole period, all relevant matters which had been taken into account. 25 I do not consider that there is any error demonstrated in the fixing of the non-parole period, which is clearly not manifestly excessive. I consider that his Honour articulated appropriate reasons in fixing the sentence to understand his reasons for both the head sentence and non-parole period. 26 Where there is something unusual about a non-parole period, then it is clearly desirable that such matters be dealt with in a Court's reasons, but there is no requirement in law that that be done. The obligation is to give reasons for the sentence. 27 The orders that I would propose, therefore, are: i. that leave to appeal be granted; ii. that the appeal be dismissed.

29 SMART AJ: Anthony Daniel Dujeu seeks leave to appeal against the asserted severity of a head sentence of 7 years with a non-parole period of 4½ years for importing a trafficable quantity of methylamphetamine (242.5g pure).

30 After arriving by air in Sydney from Denpasar, Indonesia early on 22 January 2003, the applicant passed through Customs without incident. On arrival at his sister's home he had her call an ambulance to take him to hospital as he felt he was suffering from a drug overdose. He told the ambulance officers that he was internally carrying drugs which he believed to be "Ice". Over that day and the ensuing days he passed in all some 60 small capsules of methylamphetamine, weighing 303.2 grams and with a high purity. One or more of the capsules ruptured during the flight from Indonesia. The applicant was importing the drugs for reward.

31 The Federal Agent in charge of the case has written: "Based on the current street price of methylamphetamine and how it is cut, it is estimated that 242.5 grams could realise approximately $114,867 to $1,455,000."

32 Much depended on how much methylamphetamine was recovered and how it was able to be sold. I would be sceptical about the likelihood of obtaining a figure towards the top of the range. Despite my caution, on any view a significant quantity of methylamphetamine was imported. The offender said he had no idea of the figures.

33 During the late afternoon of 22 January 2003 the applicant in response to police questioning told the State police that he had swallowed between 30 and 40 bags of "ice" (later amended to 40-50 bags), that he had been in Bali and obtained the drugs from a Bali man for $300, that he was going to use all of the drugs and that no-one had paid him to bring the drugs back.

34 The offender started using marihuana when he was aged 16 and became a regular user. Around 18 or 19 he started using amphetamines and soon used those on a regular basis. Before he went to Bali on holiday he was using marihuana and amphetamines regularly and ecstasy occasionally. The offender stated that he met a Balinese man by the name of Wayan on the beachfront bar and purchased amphetamines from him every second or third day. Drugs were readily available. The offender believed that Wayan knew his first name and that he was from Sydney but no more. According to the offender, towards the end of his last week in Bali Wayan asked if the offender wanted to bring some amphetamines back with him to Australia for the man. Wayan offered to give the offender $1000 and 20 grams for doing the latter. Upon arrival he was to meet someone at David Jones in the city at midday the next day for the exchange. The offender stated that what he had told the police was untrue. He had panicked. The corrected version of events was first given when the offender gave evidence at the sentence hearing. The police had had no opportunity to investigate the offender's claims. The offender conceded that he did not know the name of the person who was to meet him nor did he have any means to contact him. He was told that the person who was to meet him would have his description.

35 When asked by the judge whereabouts in David Jones they were to meet the offender replied, "In front of the store, on the corner of Market and Pitt Streets". Neither of the two city stores of David Jones is on the corner of Market and Pitt Streets. When pressed as to the meeting point the offender said "the entrance in front of the Centrepoint Arcade, the door in front of the, opposite the road sorry."

36 The judge advised counsel for the offender prior to counsel's address that the offender had "some real problems in credibility". A reading of the offender's evidence shows that this remark was justified. It alerted counsel to an important area for his address.

37 The judge said that the gaps in the offender's story, particularly the arrangements to meet left him (the judge) with a sense of disquiet as to the offender's overall truthfulness. The judge thought that the offender had told some, but not all, of the truth.

38 The judge thought that it was unlikely that the offender, a young man, would have had the money to purchase the drugs. He thought it was probable that the offender was a courier.

39 The offender was born on 14 August 1980 and was thus aged 22 at the time of the offence. He had no previous convictions. He had been employed as a chef.

40 The judge allowed the offender a discount of 20 per cent for his early plea of guilty. The judge attached weight to the relative youth of the offender, his prior good character, the low risk of him re-offending and his genuine remorse. The judge accepted that he would experience hardship in gaol. The judge also took into account that the offender was a drug addict at the time of the offence but that he had indicated an intention and desire to address his drug abuse. The offender fell into a well recognised pattern for youthful drug offenders. There was nothing distinctive about his case.

41 From time to time the Legislature changes the sentencing regime which is applicable. There has been a recent change in the Commonwealth Crimes Act 1914. Sections 16G and 19AG of that Act have been repealed. In R v Maclay (1990) 19 NSWLR 112 this Court (Gleeson CJ, Hunt and Loveday JJ) commented upon the effect of the introduction of the Sentencing Act 1989: "The primary task of sentencing judges is to apply the new sentencing system according to the terms of the statute paying due deference to established general principles of sentencing. … In carrying out the task of fixing a minimum term in such a case as the present, the sentencing judge should address the prescribed maximum penalty fixed by statute and the gravity of the offence, paying regard to the objective features of the case and subjective considerations relevant to the particular offender.

It is, of course, understandable that a judge may wish to have regard to sentencing patterns, including his or her own sentencing patterns, established under previous legislation; R v Oliver (Court of Criminal Appeal,20 March 1980, unreported), quoted in R v Visconti [1982] 2 NSWLR 104 at 107; Griffiths v R (1977) 137 CLR 293 at 326-327 and R v Pawa [1978] 2 NZLR 190 at 191. Some caution will need to be exercised in translating such sentencing patterns into actual decisions under the new legislation. Statistical information is occasionally advanced in support of the contention that some judges may have responded subconsciously to the problem of the 'fictional element' introduced in the 1983 legislation and identified in R v O'Brien by increasing non-parole periods in a way that to some extent 'took account' of the remissions system, but if that were true it would only increase the need for caution to which we have referred. The question as to how prison terms resulting from sentences imposed under the new Act will compare with those resulting from earlier sentences is one, the answer to which will emerge in due time. Pre-conceptions as to how they should compare cannot be allowed to dominate the appreciation of the new statute."

42 The approach revealed in this passage commends itself to me and can be applied by analogy in the present case. The sounding of the note of caution is timely. When s 16G and s 19AG 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 s 16G. Its effect tended to have a subtle and perhaps unconscious influence. Inadequate sentences were avoided.

43 I agree with Howie J that there is no warrant to increase the current range of sentences for Federal offences simply by applying some mathematical formula and that the proper approach to sentencing for a Federal offence is to determine the correct sentence without taking into account that s16G existed and has now been repealed (R v Studenikin [2004] NSWCCA 164 at par [71]). Insofar as regards is had to sentencing patterns which existed prior to s 16G caution must be employed. It would be crude and unfair to increase previous levels of sentences by 50 per cent to take into account the repeal of ss 16G and 19AG.

44 As was pointed out in Maclay (and by analogy) the correct approach will usually involve the sentencing judge addressing the prescribed maximum penalty fixed by statute and the gravity of the offence, paying regard to the objective features of the case and subjective considerations relevant to the particular offender and, of course, following the terms of the Crimes Act 1914 (Cth).

45 As to the non-parole period the correct approach is contained in the joint judgment of Dawson Toohey and Gaudron JJ in Bugmy v R (1990) 169 CLR 525 in two passages. At 536 the majority said (omitting citations): "Referring to Power , this Court said in Deakin v The Queen : 'The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence'."

46 At 538 the majority continued (citations omitted): "But in the end the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole: see generally King CJ in Reg v Robinson . There is no incongruity necessarily involved in this approach, as Jenkinson J noted in Morgan and Morgan when, as a member of the Victorian Court of Criminal Appeal he said: 'The term of the sentence is the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender. The … minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify."

47 In substance the judge applied these principles. He also gave effect to the principles in R v Bernier (1998) 102 A Crim R 44 at 49. The repeal of ss 16G and 19AG has not affected the application of the principles in Bernier which recognised that the circumstances of a particular case might lead to either a lesser or greater non-parole period.

48 Appeal Ground 1 reads: "The sentencing judge erred in failing to give reasons for the non-parole period imposed on the applicant.

49 The judge imposed one sentence and gave comprehensive reasons for his decision which applied both to the head sentence and the non-parole period. The judge is not required to give separate reasons for imposing a particular non-parole period under s 19AB of the Crimes Act. It suffices if he has given adequate reasons for the overall sentence. This is especially so where, as here, the non-parole period for a standard non-distinctive case is within the normal and long accepted range of 60 to 66? per cent of the head sentence. That range has been applied for many years and was confirmed in Bernier.

50 In Norton v R [2003] WASC 86 Anderson J (with whom Parker J agreed) rejected the contention that separate (or particular) reasons were required in respect of the non-parole period imposed pursuant to s 19AB of the Crimes Act 1914 (Cth): "I think this submission involves a misconception. A Judge who passes a sentence with a non-parole period passes only one sentence not two. Power v The Queen (1974) 131 CLR 623 at 629-30. The purpose of sentencing remarks is to explain why that single sentence has been imposed. Most if not all of the facts and circumstances relevant to the fixing of a head sentence will be relevant to the fixing of the minimum time which the prisoner must remain in custody. The question is whether sufficient reasons have been given for the single sentence. The sentencing reasons stand as the reasons for both the head sentence and the non-parole period."

51 Those remarks, with which I agree, apply to this case. The judge in the present case carefully considered all the relevant factors and, as he stated, endeavoured to be as lenient as permissible having regard to all the circumstances. He was not helped by the offender's lack of truthfulness.

53 Appeal Ground 2 reads: "The non-parole period imposed on the applicant is manifestly in error and excessive.

54 The non-parole period was well within permissible limits. I have earlier pointed out the strong subjective features which were noted by the judge and taken into account by him and that there was nothing distinctive about this case as the offender fell within a well recognised category of young drug offenders of prior good character. Examples of this category occur with unhappy frequency.

55 In my opinion there is no substance in the contention that the non-parole period was manifestly excessive. The size and secretive nature of the importation, which had a high chance of succeeding, preclude a lesser non-parole period.

57 I have considerable doubt whether leave to appeal should be granted. Because of the points raised it is probably better to grant leave to appeal. The appeal should be dismissed.

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