R v Irusta

The Crown appeal against sentence 31 On behalf of the DPP it was argued that the sentence imposed was manifestly inadequate and that a number of specific errors infected the sentencing process. I will deal with the arguments, not necessarily in the sequence in which they were put to the court.

(i) sentencing in relation to offences of attempting to commit a crime. 32 The DPP challenged those passages in the remarks on sentence, to which I have already referred, in which his Honour expressed the view that sentences for attempted but incomplete offences are conventionally less than sentences for completed offences. It will be recalled that his Honour made this observation in the context of considering the applicability of the guideline promulgated by this court in Wong and Leung which, he noted, was specifically concerned (so far as the facts then before the court go) with offences that had been completed. 33 The argument advanced on behalf of the DPP in written submissions was that neither s233B of the Customs Act, which creates a variety of offences, including attempts, nor the judgment in Wong and Leung, differentiates between attempts and completed offences in the manner adopted by Goldring DCJ; and that there is accordingly no warrant for treating an offence of attempt as of lesser gravity than a completed offence. 34 S 233B is a comprehensively drafted section which creates offences of, in each case without reasonable excuse:

(a) having possession, on board any ship or aircraft, of any prohibited import;

(b)` bringing, attempting to bring, or causing to be brought into Australia, any prohibited import;

(c) importing or exporting or attempting to import or export to or from Australia any prohibited imports or prohibited exports;

(d) having possession, or attempting to obtain possession, of prohibited imports that have been imported in contravention of the Customs Act ;

(e) conveying or attempting to convey any prohibited imports which have been imported in contravention of the Customs Act;

(f) having possession of, or attempting to obtain possession of, prohibited imports that are reasonably suspected of having been imported in contravention of the Customs Act ;

(g) conspiring to import, bring or cause to be brought into Australia, or to export from Australia, any prohibited import or prohibited exports

(h) aiding, abetting, counselling or procuring, or being knowingly concerned in the importation or bringing into Australia, or exporting from Australia, any prohibited imports or prohibited exports;

(i) failing to disclose to an officer on demand any knowledge concerning importation, or intended importation or exportation or intended exportation of any of prohibited imports or prohibited exports. 35 S235 prescribes maximum penalties applicable to the offences so created. The section distinguishes (by reference to Schedule VI), between trafficable and commercial quantities of different drugs and specifies different penalties that are graduated according to the quantity and the classification of the drug involved. From s235 together with Schedule VI, the legislature's perception of the seriousness of any particular drug can be discerned. Where the drug is regarded most seriously (for example, heroin) the quantities that constitute trafficable and commercial quantities are lower; where a drug is regarded as less threatening (such as cannabis) the quantities that constitute trafficable and commercial quantities are higher. Maximum custodial penalties range from imprisonment for two years to imprisonment for life. 36 A distinction not drawn in s235 for sentencing purposes is a distinction between attempts to commit an offence and completed offences. Nor is any distinction drawn between the various forms of offences created by s233B; that is for sentencing purposes, there is no differential regime provided for possession (whether on board an aircraft or ship or otherwise in Australia); or for conspiring, aiding and abetting, or conveying or attempting to convey prohibited imports. The sentencing provisions are concerned with (relevantly) offences against s233B, which are treated as of a class. The only distinctions expressly recognised for the purpose of the sentencing regime are between classes of drugs and quantities that constitute trafficable and commercial quantities. 37 On behalf of the DPP it was suggested that this approach was reflected and adopted in Wong and Leung. In that case the guideline sentences promulgated were differentiated by reference to the identity of the drug concerned and the quantity involved, specifically in respect of couriers and participants at a low level in the importing organisation. The court made no attempt to graduate sentences by reference to the various forms offences against s 233B might take. From that, on the DPP's argument, it should be inferred that the court envisaged that all offences under s 233B should be treated equally, attracting the same penalty as one another, to be differentiated by reference to the identity and quantity of the drug and the objective and subjective circumstances demonstrate. 38 Counsel for the DPP somewhat retreated from this submission in oral argument. What he put was that sentences for attempts should remain within the guideline, but he acknowledged that it would be appropriate that those sentences be fixed at towards the lower end of the range rather than the upper end. 39 In my view, for the purposes of this argument, Wong and Leung should be put to one side. There is nothing in the reasons given for the conclusions there expressed to suggest that the court's attention was drawn to any differentiation between different offences against s233B. The court did not purport to attempt any analysis of the relative seriousness of one form of a contravention of s 233B vis a vis others. The offence with which the court was concerned was of being knowingly concerned in an importation. It would be quite wrong to determine this question by reading into that judgment something that simply is not there, that was not before the court, and that the court did not expressly (or implicitly) consider or determine. That does not mean that Wong and Leung is entirely irrelevant to sentencing for other offences under s 233B. It merely means that that judgment does not speak of the relative seriousness of the different offences that are created by the section. 40 Nor does this mean that the argument based on the construction of the section itself is without substance. On this point, I merely note that, in my opinion, Wong and Leung throws no light on the question now raised. 41 In fact, the question in general seems to be relatively free of authority. In R v Taouk ((1992) 65 A Crim R 387) Badgery-Parker J wrote: "It would seem to be correct, however, as counsel for the appellant submitted, that where a person comes to be sentenced for an attempt which was predestined to fail, that is a circumstance which may go in mitigation of penalty. It does not necessarily, however, as counsel further contended, compel a conclusion that the offence should not be viewed seriously." (p390) 42 Words of significance in that passage are "for an attempt which was pre-destined to fail". Badgery-Parker J (with whom Clarke JA and Abadee J agreed) was there concerned with a charge of attempting to pervert the course of justice by bribing a judge. It was assumed that the attempt was foredoomed to fail. 43 It could hardly be said, in the present case, that the applicant's attempt was foredoomed, or predestined, to fail. That circumstance came about only because of the apprehension of Aussem at the airport. 44 Badgery-Parker J went on to say: "After a sentencing judge has established the facts of the offence, his prime task is to evaluate the objective seriousness of the offence. In making such an evaluation, where the charge is of an attempt to commit a substantive offence, it will be relevant for the judge to consider, first, that the charge is of attempt only and, by hypothesis, the substantive offence was not completed; and it will be relevant to consider the chances that the attempt, if not interrupted, would have succeeded. If on the facts it appears that the attempt was unlikely to succeed or indeed, that although physically possible there was in reality no prospect that it would succeed, this is a matter which might be seen to reduce the objective seriousness of the crime. However, it must also always be necessary for the sentencing judge to consider the seriousness of that which was attempted. In every case where a person is to be sentenced for an attempt to commit a substantive offence, such factors will need to be weighed if the evidence raises the question for consideration. It may be postulated that where the offence attempted is grave, a sophisticated attempt which came close to success is likely to attract a heavier sentence than a naive and ill-prepared attempt predestined to fail. On the other hand, a determined and all but effective attempt to commit a minor crime would attract perhaps a more severe sentence than a naïve and inefficient attempt to do the same thing, although the relative triviality of the offence would tend to narrow the margin between the two outcomes. …There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them, and that relationship has to be weighed in each case in the light of all of the circumstances." (pp 390-391) 45 Further, his Honour observed that the crime with which the court was there concerned, the crime of attempting to pervert the course of justice, was not an ancillary offence but was itself a substantive offence. He therefore considered that, in sentencing for such an offence, the relevance of the fact that the attempt was doomed to failure was of far less significance than in the case of sentencing for an attempt to commit a substantive crime, and the potential seriousness of the consequences if the crime had been completed of much greater weight. 46 The latter observations are applicable to the offence of attempting to obtain possession of prohibited drugs. The statute has made the attempt itself a substantive offence. That is to be contrasted with attempts under the NSW Crimes Act which, by s344A, are made liable to a penalty equivalent to the penalty applicable to the substantive offence. They are properly to be considered ancillary offences. 47 On the other hand, there are many instances in the criminal law which recognise that, for sentencing purposes, the criminality of an act is substantially to be judged by reference to the consequences of that act. It would affront common sense to suggest that, generally speaking, a person convicted of an attempt to murder should be punished as severely as if the attempt had been successful. There are many more such instances. 48 Another circumstance that needs to be acknowledged is that, notwithstanding the manner in which the legislature has set about prescribing maximum penalties for offences against 233B, it seems to me that common sense dictates that some instances of the conduct proscribed are inherently more serious than others. For example, in the ordinary case, a person who is convicted of the importation of drugs would be regarded as more culpable than a person who attempted to convey the same drugs. This comparison arises again in another context in this case: see para 63 . 49 The argument simply highlights what is, in any event, a commonplace in sentencing jurisprudence and which emerges from the remarks of Badgery-Parker J extracted above. In sentencing, a judge must take into account all of the circumstances and sentence according to the overall culpability of the offender, having regard in that evaluation to the subjective as well as the objective features. 50 When one looks at all of those matters in the present case, the DPP's submission that the fact that the respondent pleaded guilty to an attempt as distinct from a completed offence, taken alone or in conjunction with all other circumstances, did not warrant the imposition of a sentence below the range promulgated in Wong and Leung, has a great deal of force. In my opinion the judge overstated the position when he said that attempts are necessarily to be treated as less serious, and warranting less severe punishment, than the completed offence. 51 I am satisfied that the DPP has established error in this respect, in that the sentencing judge accorded too much weight to the non completion of the offence.

A second specific error asserted by the DPP concerned the approach taken by the sentencing judge to s16G of the Crimes Act 1914. That section requires judges sentencing in jurisdictions whose corrective services regimes do not provide for remissions to take that circumstance into account in the offender's favour. Judge Goldring plainly took the view that the guideline sentences promulgated in Wong and Leung were intended as sentences before the reduction required by s 16G. I am firmly of the view that his Honour's conclusion was wrong. Wong and Leung promulgated a guideline for application by NSW judges sentencing in accordance with the NSW regime. That regime does not provide for remissions. It is axiomatic that the guidelines were formulated having in mind the requirements of s16G. To fix a sentence by reference to the guidelines and then further to reduce it to take account of s 16G was twice to give the respondent credit for the absence of remissions. Error in this respect has also been demonstrated.

A further complaint was that, although his Honour stated his intention of sentencing in accordance with the guideline, he in fact did not do so. The guideline promulgated for an offence involving a low range (2 - 3.5 kg) commercial quantity of cocaine is a head sentence of eight to twelve years. However, the guideline was expressly stated to be applicable to couriers and low level participants. This raises the question of the respondent's role in the enterprise. His Honour made no specific finding of fact as to the respondent's role, or the level at which he was involved in the organisation. The DPP's submission took alternative approaches, either of which would, on his argument, expose error. Either (i) (by inference) the sentencing judge found the respondent to have been involved at courier or other low level; if so, the finding of fact is demonstrably wrong; or (ii) if the sentencing judge found (as, on the DPP argument, he was bound to find) the respondent was involved as at a higher level, then to take the guideline for couriers and low level participants as his starting point demonstrated a different error. 52 There was not a great deal of evidence about the respondent's role. The statement of facts that was tendered by agreement showed that the respondent made contact with Aussem during the evening of 3 June, met him a little later, and returned (but did not make actual contact) the following day. The respondent agreed in cross-examination that he had received instructions by telephone from an overseas participant. The transcript of the conversation between the respondent and Aussem in one passage recorded the respondent saying that he would "have to ring there and fix it over there", that he "was told to speak with you and fix it", and that he had been told "to move it". In another passage he is recorded as saying that he needed "material" to work with, and that with "material" he could earn "that money" in two hours. From this, the DPP submitted, it was not open to Judge Goldring to conclude that the respondent's role in the importation was at a level that would render the guidelines in Wong and Leung applicable. 53 I am unable to accept this proposition. Receiving instructions from overseas is not necessarily inconsistent with the functions of a low level participant. There was, as I have observed, very little evidence as to the respondent's involvement. The onus was on the DPP to adduce the evidence from which the respondent's level of involvement could be established, if he sought findings of fact adverse to the respondent. Before such a finding could be made, it would be necessary that the evidence establish the respondent's alleged increased involvement beyond reasonable doubt. 54 The evidence to which the DPP now points may well have been sufficient to justify a finding that the respondent was engaged at a greater level than that envisaged by the Wong and Leung guideline. But sufficiency of evidence to justify an adverse finding does not establish error in a judge who fails to make that finding. In order to establish error it is necessary that the evidence relied upon dictate such a finding. This evidence does not dictate such a finding. I am not satisfied that the DPP has discharged the onus of establishing error in the implicit finding of fact, if that is what it was. It was therefore not inappropriate for the judge to take as a starting point the guideline applicable to couriers and low-level participants for the relevant quantity of cocaine. Indeed, in the light of the sparsity of the evidence, to do otherwise might well have been demonstrative of error. I would note, however, that it is not so clear that it was appropriate, in the circumstances of this case, to take the very bottom of that range as the starting point.

(iv) the quantity involved in the attempt 55 It may be that one reason for the selection of the bottom of the range was his Honour's view that, although the quantity of cocaine in Aussem's possession was 4 kg (gross 3 kg pure), there was no evidence that the respondent had attempted to obtain the whole of that amount. In another passage his Honour said that there was no evidence that the respondent had attempted to obtain more than 1 kg. This gives rise to the next matter argued. That was that it was an error to proceed on the basis that there was no evidence that the respondent had attempted to obtain 3 kg of the drug, or any more than 1 kg. I agree that to say that there was "no evidence" to support a conclusion that the respondent had attempted to obtain the whole quantity is to overstate the position. The respondent had pleaded guilty to a charge that involved not less than the commercial quantity. That is 2 kg. It was not open to his Honour, that plea having been accepted, to reduce the sentence on the basis that the evidence did not substantiate, or might not have substantiated, that charge. Further, there was evidence sufficient to permit the conclusion that the respondent had attempted to obtain the whole amount in the possession of Aussem. The only real evidence about what the respondent attempted to do is to be found in the transcript of the conversation with Aussem. There are passages in the transcript that give rise to a clear inference that the respondent was hoping and attempting to obtain all of the cocaine Aussem was carrying. For example, Aussem asked the respondent if he (the respondent) knew how much he (Aussem) had, to which the respondent replied "They told me four…". The reference to "four" in the context of quantity is consistent with the quantity of the substance in which the cocaine was contained that was in the possession of Aussem. That is, Aussem had 4 kg of a substance, and it is a clear inference that this is what the respondent was referring to. A little later, in the context of a discussion about money, the respondent said: "Yeah. You give me half, I bring you twenty thousand and you give me the rest to work with." 56 This was evidence on which a conclusion was available that the respondent did attempt to obtain the 3 kg of pure cocaine in Aussem's possession. But that is the high point, from the DPP's point of view. There is other discussion, for example, about the respondent being given half a kilogram, or one kilogram. While it was wrong to say there was "no evidence" that the respondent attempted to obtain the whole amount, it would have been legitimate to have viewed the evidence as failing to establish beyond reasonable doubt that the respondent attempted to obtain any more than 2 kg. But his Honour did not do this. Having regard to the offence to which the respondent pleaded guilty, it was necessary to sentence on the basis that the quantity which he attempted to obtain was not less than 2 kg. It was open to the sentencing judge to conclude that the evidence was equivocal as to an attempt to obtain the whole 3 kg. Since his Honour approached the question on the basis that there was no evidence to establish that the respondent had attempted to obtain the whole amount, or more than 1 kg, he did not turn his mind to the evidence, and did not make a finding of fact based upon the evidence. There being no appropriate finding based upon on the evidence was made, it is appropriate that this court proceed to make the relevant finding. In my view the evidence is equivocal. The transcript of the tape recorded conversation shows clearly enough that the respondent was negotiating with Aussem, and that he was anxious to obtain whatever quantity he could, although whether on one single occasion or progressively, as he obtained the necessary funds, does not matter. 57 I would add that, if there were any real room for legitimate doubt about what the DPP could have proved in this regard, it was open to his Honour to take that into account in relation to the extent to which the respondent's sentence was to be reduced in recognition of his plea of guilty. A plea entered in the face of a strong Crown case does not attract recognition to the same extent as a plea entered in circumstances where the Crown might have encountered difficulty in proving some element of the charge. But that is not how his Honour used his erroneous view of the evidence. He used it in mitigation of sentence, with reference to the question of the quantity of drug involved. That was, with respect, an error.

(v) parity 58 The final matter raised by the DPP involves an unusual reliance upon the principles of parity in sentencing: R v Lowe (1984) 154 CLR 606. The co-offender to whom reference was made is Aussem. 59 This requires some attention to the sentence imposed on Aussem. At first instance he was sentenced to a term of imprisonment for eight years with a non parole period of two and a half years. A Crown appeal was successful and Aussem was re-sentenced: R v Aussem [2000] NSWCCA 220; unreported, 9 June 2000.While the head sentence was reduced to six years, the non parole period was increased to three years. Spigelman CJ specifically observed that, but for future assistance promised by Aussem (which extended to an undertaking, pursuant to S 21E of the Crimes Act 1914 to give evidence against other participants) the sentence after appeal would have been eight years with a non parole period of four years. 60 The point that is now made by the DPP is that Aussem would be entitled to feel "a justifiable sense of grievance" when his sentence is compared with that of the respondent. That submission is made, principally on the basis that the very substantial assistance given by Aussem compared to the "assistance" given by the respondent, which was, in the view of the federal agent, virtually non existent or illusory, warranted a greater differentiation than the sentences as presently constituted demonstrate. 61 In a curious way, this revives the argument earlier referred to (in the context of sentencing for attempts as distinct from completed offences) about the appropriate sentencing regime for the range of offences provided for in s233B. 62 Assuming, for the moment, that a prosecuting authority is entitled to invoke the parity principles in order to seek an increased sentence (which is, in my view, a novel proposition), it would be necessary to consider all the relevant circumstances of the two offences and the two offenders. Plainly, the discount on sentence to which Aussem was entitled on account of his assistance to authorities was very substantially greater than that to which the respondent was entitled. Indeed, while it would seem Aussem could lay claim to a discount right at the top of the available range, the respondent barely established an entitlement to any discount, and what he was entitled to was minimal. 63 However, in assessing a parity argument, it would be necessary also to assess the relative involvement of the two and this assessment in this case would tip the balance the other way. Common sense would, as I have earlier observed, suggest that an actual importation (of which Aussem was guilty) weighs more heavily and attracts a greater sentence than an attempt to obtain possession of the same quantity of the drug once imported. In this context, it is to be borne in mind that the charge to which the respondent pleaded guilty, and in respect of which he stood to be sentenced, was a charge of attempting to obtain possession of the drug. Although it defies common sense to suggest that his intention was limited to obtaining possession, the inferences of more serious (intended) criminality that arise from that circumstance were not available to increase the sentence. It was open to the DPP to charge the respondent with additional offences, but in the absence of such additional charges, it would not be open to the judge to sentence for that additional criminality. Judge Goldring was sentencing solely, for an attempt to obtain possession of the cocaine. 64 These considerations persuade me that, even if a parity argument is available to the DPP (a question which need not be decided) it should be rejected. 65 The consequence of the above is that the DPP has succeeded in establishing error in the reduction given by reason of section 16G, in the approach taken to the fact that the offence was an attempt as distinct from a completed offence, and in the view taken by the sentencing judge that the evidence was not capable of disclosing that the respondent had attempted to obtain possession of the 3 kg of cocaine in Aussem's possession. There was no basis for sentencing the respondent more leniently than provided in the guideline in Wong and Leung; nor was it, in my view, open to sentence him at the very bottom of the range there provided. It is therefore necessary that this court re-sentence having regard to the particular principles that apply to re-sentencing after a successful Crown appeal. The respondent is entitled to have imposed the minimum sentence that at first instance would have met the facts of the case. 66 I propose that the respondent be re-sentenced and that a head sentence of eight years with a non-parole period of five years be imposed. The sentence should commence on 5 June 2000. The orders I propose are:

1. leave be granted to appeal against the sentence imposed on the state charge, but that the appeal be dismissed;

2. the Crown appeal against the sentence imposed in relation to the Commonwealth offence be upheld;

4. in lieu thereof the respondent be sentenced to imprisonment for eight years commencing on 5 June 2000 with a non-parole period of five years. 67 By s 16F of the Crimes Act 1914 a court imposing a sentence with a non parole period is obliged to explain, in language readily understood, the meaning of the sentence imposed. As it is unlikely that the respondent will be present when judgment is delivered, that function may be discharged by an explanation in writing. An appropriate explanation was given to the respondent by Judge Goldring, and, except for the term of the sentence, what is entailed in the sentence I propose is no different and requires no additional explanation. 68 The respondent has served the entirety of the sentence imposed in relation to the state charge; the sentence imposed in relation to the Commonwealth charge is a total sentence of eight years commencing on 5 June 2000. He will be obliged to serve at least five years, the period specified in the non-parole period, and will be eligible for release on parole on 5 June 2005. *****

69 DOWD J: I have read the judgment of Simpson J in draft form. I concur with the proposed orders, and with her Honour's reasons therefore. *****

I agree with the orders proposed by Simpson J and with her Honour's reasons for the same. **********

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