MONDAY 24 SEPTEMBER 2007
R v Joy Lorraine KNIGHT
R v Viliame BIUVANUA
Judgment
1 McCLELLAN CJ AT CL: The principles by which the Court will review a sentence at the request of the Crown are well known. They were considered in R v MD, BM, NA & JT (2005) 156 A Crim R 372 [18]-[21].
2 Notwithstanding the impact that these principles should have on the number and likely success of Crown appeals in recent years the number of Crown appeals has increased. The proportion of those appeals which have been upheld by this Court has also increased. There are two issues which seem to be causing particular difficulty. There are continuing problems with the application of the High Court's decision in R v Pearce (1998) 194 CLR 610. (see eg R v BSW [2007] NSWCCA 59; Le Huynh v R [2006] NSWCCA 77; R v Saba [2006] NSWCCA 214; Daniel Robert Vos v R [2006] NSWCCA 234) particularly with respect to questions of totality. The application of the standard non-parole period to the sentence to be imposed is also causing problems. (see eg Reaburn v R [2007] NSWCCA 60; MLP v R [2006] NSWCCA 271; Lovell v R; Dominey v R [2006] NSWCCA 222). The present case is an illustration of the latter problem.
3 The principles relevant to consideration of the standard non-parole period were provided by this Court in R v Way (2004) 60 NSWLR 168. In that case the court said:
"In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.
The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range.
The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.
Sight should also not be lost of the fundamental principle noted in Hoare v The Queen (1989) 167 CLR 348 at 354: "Secondly, a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances."
It is true that the Division does not specify either a minimum or a maximum non-parole period for the relevant offence, nor is there anything to suggest that it had in contemplation either a linear, or an exponential progression within a range between those points, in which the mean was to be understood as the standard non-parole period. Had there been an intention to convert sentencing to a precise arithmetic exercise of that kind then those reference points would need to have been identified and consideration given to the weight to be attached to the adjusting factors. The absence of any provision of that kind is a further pointer towards the continuation of a wide area of discretion, without resort to some rigid mechanistic or arithmetic approach, of the kind which would be totally unsuited to the difficult task of sentencing.
The approach which we have outlined does not seem to require a departure from the intuitive or instinctive synthesis approach to sentencing which received judicial support in R v Thomson and Houlton (2000) 49 NSWLR 383 at paras 57-60 and which was favoured in the joint judgment in Wong v The Queen (2001) 207 CLR 584, but which has also attracted some criticism ( R v Markarian [2003] NSWCCA 8 - special leave to appeal to the High Court granted). Nor do we see it as requiring resort to a rigid two-tiered approach which involves determining an objective sentence and then adjusting it to take account of subjective factors of the kind which was criticised in AB v The Queen (1999) 198 CLR 111, per McHugh and Hayne JJ.
In R v Whyte (2002) 55 NSWLR 252 Spigelman CJ did not regard the use of guideline judgments as being inconsistent with the ultimate application of an "instinctive synthesis approach" (at paras 160 - 167) and we do not see that any material difference arises where the benchmark or reference point is given by legislation.
Moreover, if the exercise is confined to a single stage, the risk of double counting which might otherwise be involved can be avoided. That arises from the circumstance that some of the aggravating and mitigating factors referred to in s 21A (eg the use of violence on the one hand, or the presence of provocation or duress on the other hand) are of direct application to the circumstances in which the offence occurred, and need to be taken into account in assessing where the offence ranks in the range of seriousness. If they were to place it for example in the mid range, then to bring them to account again for the purposes of s 54B(2) would involve double counting.
The approach which we favour is consistent with the disclosed legislative intention that Division 1A of Part 4 was to operate, not by way of any mandate or removal of sentencing discretion, but rather as providing a guidepost, or benchmark, against which the case at hand could be compared. That is not say that it should be merely acknowledged in the passing. It takes its place alongside guideline judgments, and the prescribed maximum sentence for the relevant offence, which are to be taken into account in the same way that sentencing judges are required to take into account the provisions of s 21A, 22, 22A and 23, when exercising their sentencing discretion."
4 Where a sentencing judge contemplates imposing a sentence which is significantly less than the standard non-parole period it is prudent for the judge to closely examine the relevant findings before finally determining whether the proposed sentence is appropriate. Of particular significance will be the finding in relation to the objective seriousness of the offending. That finding must be carefully considered and appropriately described. A finding of "at least mid range" suggests that the sentencing judge is of the view that the offence is above the mid range. If that is the case the finding should make this apparent and define the extent to which it falls above the mid range. The sentence should appropriately reflect this finding.
5 In many of the cases where this Court finds problems with the consideration of the standard non-parole period the sentence imposed by the primary judge differs markedly from the sentence which the relevant legislation contemplates as being appropriate, making intervention necessary notwithstanding the principles considered in MD & Ors. As this Court has previously acknowledged a successful Crown appeal imposes a greater burden on the offender: see R v Witchard [2007] NSWCCA 167 at [33]-[34]. Both this consideration, but more importantly considerations of the integrity of the sentencing process, require that sentencing judges continuously remind themselves of the principles provided by the relevant legislation and developed by this Court.
6 I agree with Howie J.
7 HIDDEN J: I joined in the order of the Court that the appeal in respect of Mr Biuvanua should be dismissed for the reasons expressed by Howie J.
8 I also agree with the orders proposed by Howie J in the appeal in respect of Ms Knight for the reasons his Honour has given. One can understand that the sentencing judge was moved by the evidence about that respondent's background. There is no need to go to the detail of it, some of which is sketched in the judgment of Howie J. That background was seriously disturbed and, in particular, devoid of moral guidance. Her Honour described the respondent as having been raised "in an emotionally deprived and anti-social environment." That evidence was relevant to sentence, as evidence of an offender's background generally is, but it was not a proper foundation for the marked leniency extended to the respondent.
9 HOWIE J: These are Crown appeals against what is asserted to be the inadequacy of sentences imposed upon the respondents in the District Court by Murrell DCJ (the Judge). On 15 August after hearing oral argument the Court reserved on the appeal in respect of the respondent Knight but dismissed the appeal against the sentence imposed upon the respondent Biuvanua.
10 Ms Knight pleaded guilty to an offence that between 8 September and 30 September 2005 she supplied not less than a large commercial quantity of ecstasy. Mr Biuvanua pleaded guilty to an offence that on 29 September 2005 he knowingly took part in the supply of a large commercial quantity of ecstasy. Each of the offences for which the respondents were to be sentenced carried relevantly a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment.
11 Ms Knight also asked that the Judge take into account four further offences of supplying prohibited drugs between 8 September and 29 September 2005 on a Form 1. The drugs were ketamine, methylamphetamine, cocaine, and cannabis leaf in quantities well above the indictable quantity prescribed for each drug.
12 As a result of the pleas of guilty the Judge sentenced Ms Knight to a term of imprisonment made up of a non-parole period of 6 years and a balance of term of 4 years. The sentences dated from 29 September 2005 and Ms Knight is eligible for release to parole on 28 September 2011. Mr Biuvanua was sentenced to a term of imprisonment made up of a non-parole period of 2 years with a balance of term of 18 months. He is eligible to be released to parole on 28 September next.