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[2005] NSWCCA 214
Court of Criminal Appeal (NSW)
2005-05-24
Simpson J, Rothman J
Original judgment source is linked above.
the application for leave to appeal 29 As I have indicated above, the grounds of appeal concern a discernible disparity of treatment of the applicant when compared with the co-offenders, and the manner in which his Honour gave effect to the repeal of s16G.
disparity 30 In sentencing the co-offenders, his Honour specifically referred to questions of parity arising from the sentence already imposed upon the applicant. He noted the significantly lower quantity of the drug imported by the applicant. He observed that the reason for this was the applicant's inability to consume or insert any more of the drug and appears to have regarded this as not indicating a lower level of moral culpability in the applicant. In this view there is some merit, but, nevertheless, the quantity of the drug is one relevant consideration. 31 What his Honour went on to say was this: "In a number of ways, then, it seems to me that there is a significant argument for parity in this case. The Crown points out that there is a lack of equivalence in the cooperation extended by these offenders, or any of them, and that extended by [PP]. This is a fact to which the Crown submits, and I consider correctly, must be recognised." 32 In other words, his Honour accepted that, in the assessment of their criminality, and their subjective circumstances, all the offenders ought to be treated equally, but that, while the applicant was entitled to a discount on his sentence for assistance to the authorities, the co-offenders were not entitled to that further discount. His Honour went on to say: "The Crown submits that [this] is not to be done simply by factoring back into the equation the 20% discount for assistance given to the offender [PP], but must be acknowledged in the sentences passed on the other offenders, in some way, which will mean that there is a difference in the sentences of those offenders compared with the offender [PP]. ... It seems to me, in broad terms, there is a real risk of a justifiable sense of grievance should the court approach the sentencing of these offenders, or any of them, in a manner that is significantly different to the manner in which the sentencing of the offender [PP] was approached. Whilst there are a number of differences in objective and subjective circumstances between the various co-accused, they are, in most respects, differences which tend to balance themselves out." 33 His Honour gave no explanation for allowing to the co-offenders a greater discount for their pleas of guilty than he allowed for the applicant. I can identify no basis on which it could be said that the applicant's plea of guilty was of lesser utilitarian value than the guilty pleas of any of the co-offenders. This, alone, in my opinion, gives rise to a sense of grievance in the applicant, and a sense of grievance which, in my opinion, cannot be said to be other than justifiable. 34 Secondly, the co-offenders received the benefit of what was, in effect, a rounding down of the sentence of seven years and two months which would have resulted after the discount of 20%. This gave the co-offenders the benefit of an additional two months' reduction. From a starting point of nine years, application of a 15% discount in respect of the applicant's sentence resulted in a sentence of 91.8 months, which is almost two months more than eight and a half years. However, no rounding down was effected in the applicant's case. 35 Finally, having fixed the applicant's non-parole period at 66% of the total sentence, his Honour divided the sentences of three of the co-offenders into 60% for the non-parole period and 40% for the parole period. 36 It seems to me that the applicant has been unfairly treated in comparison with the co-offenders in each of these ways. It is particularly glaring in the face of his Honour's stated view that there was a "significant argument for parity". The "significant argument for parity" could not, in the application of proper sentencing principle, have denied the applicant the benefit of the 20% he was allowed for his assistance. 37 I am satisfied that the applicant has made good this ground of appeal. Its effect can be seen, perhaps, most clearly by examination of the non-parole periods. The applicant's non-parole period was only four months less than those of three of the co-offenders, and equal to that of the fourth. And yet he had purportedly been given a benefit of a 20% discount for assistance. There is, in my opinion, a real public interest, in addition to the interests of the applicant, in correcting this error. It is in the community's interests that offenders such as the applicant give assistance to the authorities, and that is the very purpose for which the tradition has evolved of allowing discounts which are, sometimes, quite significant. Treating the applicant as he has been treated affords no incentive to any offender to provide assistance to the authorities. I recognise that it might be said that the applicant's assistance is not at the upper end of the scale; but that argument is of little weight in the light of the stated intention to assess it as worth 20%.
section 16G 38 This Court has not always spoken with one voice on the effect of the repeal of s16G. At one end of the scale is the decision in R v Kevenaar [2004] NSWCCA 210, a decision to which I was a party. There Hulme J (with whom I concurred) said: "48 Would-be offenders and sentencing judges should be under no misapprehension. 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%." 39 However, the Court otherwise constituted has cautioned against too mathematical an approach. In R v Studenikin [2004] NSWCCA 164; 60 NSWLR 1 Howie J wrote: "50 I have no difficulty in accepting an argument that the repeal of s16G should not result in a mathematical formula being applied to the existing range of sentences in order to derive a particular sentence or range of sentences that are appropriate to be imposed after appeal. ... But if a sentencing court is minded to look at the range of sentences that were imposed when s16G applied, then it has to bear in mind that that range of sentences referred to in decided cases and in the available statistical information, had factored into it a discount that is no longer applicable." 40 In R v Dujeu [2004] NSWCCA 237 Smart AJ, with whom Hislop J agreed, agreed that the mathematical formula approach was undesirable. In R v Mas Rivadivia [2004] NSWCCA 284 Wood CJ at CL favoured the approach taken in the last two mentioned cases, to the extent that they differed from Kevenaar. 41 In R v Bezan [2004] NSWCCA 342 Wood CJ at CL accepted, as it had been accepted in the cases previously mentioned, that, even excluding a mathematical approach, the effect of the repeal was likely to result in an increase in sentences. 42 How did Graham DCJ treat this question? In sentencing the applicant, and having referred to the guideline judgment in Wong and Leung, his Honour said: "In any event, without s16G, the guideline would, mathematically speaking, now be something in the order of seven and a half years to ten and a half years ... It seems to me, however, that, taking into account all of the factors here, a commencement point would be a sentence, based on the old five to seven year guideline, of nine years. That takes into account the absence of any section 16G considerations. Thus, the sentence here would be fixed at a starting point of nine years, on the assumption of a plea of guilty, but not on an earliest plea of guilty." 43 There is cause, in that passage, to conclude that his Honour did apply something of a mathematical formula. However, I am not able to see that that approach resulted in any miscarriage of justice. Even while cautioning against the application of mathematical formulae, this Court has, in the decisions referred to, accepted that the practical effect of the repeal will be something of an increase in sentences. I am unable to see that a starting point of nine years for the applicant's offence was in any way erroneous. I would reject this ground of appeal. 44 Nevertheless, for the reasons I have given in relation to the first ground, I am of the view that the applicant has made good his application and is entitled to have the sentence set aside and to be re-sentenced. 45 Against the possibility of re-sentencing, the Court received affidavit evidence from the applicant. He deposed to his good behaviour whilst in custody. He has become a fulltime student and has studied various computing courses and literacy. He is writing his autobiography which he hopes to have published. He has found imprisonment to be very lonely and this is hardly surprising given that his family live overseas, his wife and children in Thailand, his mother in Austria. The affidavit does little more than confirm the material that was before the sentencing judge. 46 In my opinion, the correct approach to resolving this sentencing question is to bring the applicant's sentence into line with the sentences imposed upon the co-offenders, and to allow the further discount of 20% for assistance. The applicant is entitled to a discount for his plea of guilty of 20% and this would, as in the case of the co-offenders, after an equivalent rounding down, give a starting point of seven years. From that he is entitled to a further discount of 20%, giving a head sentence of five years and seven months. The non-parole period would be 60% of that term, that is, three years and four months. 47 The orders I propose are:
(iii) in lieu thereof the applicant be sentenced to imprisonment for five years and seven months commencing 14 November 2003, with a non-parole period of three years and four months expiring on 13 March 2007. 48 ROTHMAN J: I agree with Simpson J. **********
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R
PP
R v Bezan [2004] NSWCCA 342 R v Dujeu [2004] NSWCCA 237 R v Kevenaar [2004] NSWCCA 210 CASES CITED: R v Mas Rivadivia [2004] NSWCCA 284 R v Studenikin [2004] NSWCCA 164; 60 NSWLR 1 R v Wong and Leung [1999] NSWCCA 420; 108 A Crim R 531 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
the remarks on sentence 18 The remarks on sentence were comprehensive, lengthy, and, for the most part, unexceptionable. The judge recounted the facts of the offence in some detail. For reasons which he gave, and which it is unnecessary to repeat, he accepted the applicant's evidence as to his history of drug use. He also appears to have accepted that the applicant's correct name is PL, and the second account given by him as to how he came to be in possession of and travelling on the passport he was using, that is, that the true owner of the passport had been a friend of his and that he had stolen his passport. 19 Graham DCJ dealt with the assistance given by the applicant to the AFP. An assessment of the value of that assistance was provided to the Court as a confidential exhibit. The assistance was in two parts: the offer to participate in a controlled delivery, which, ultimately, for reasons never fully explained, did not take place; and the information provided by the applicant in the recorded interview. As to this, Graham DCJ observed that it was consistent with information already held by the AFP and was not itself productive of any further arrests. It was of "intelligence value" only and of slight value. 20 His Honour appears also to have accepted, contrary to the position adopted by the Crown, that the applicant felt coerced into participating in the offence, although he recognised that coercion did not reach the level of providing a defence. 21 His Honour rejected a Crown submission that, far from being "a bare courier" the applicant was "somebody who was closely associated with the people behind the operation, and trusted by them to be a discrete (sic) courier." Just what conclusion the judge reached in this respect is not entirely clear: while he considered that submission "overstate[d]" the situation, he also thought it "contain[ed] more than a kernel of truth." Eventually he concluded that the applicant was a courier. 22 His Honour correctly observed that general deterrence is an important aspect of sentencing in respect of crimes against s233B. He accepted that there was a degree of planning and organisation involved, and that the applicant's economic need provided some measure of mitigation in terms of objective culpability. 23 He accepted that the contrition expressed by the applicant was genuine. 24 He accepted that the plea of guilty was, in reality, entered at the earliest reasonable opportunity and would attract a very substantial discount for its utilitarian value alone. As against that, he recognised that a trial would not have been lengthy. Having considered matters favourable to the applicant in relation to the plea of guilty, his Honour determined that, notwithstanding the decision of the High Court in Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584, the guideline promulgated by this Court in that case (R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340) remains of some relevance. Having, effectively, adopted the sentences proposed in Wong and Leung, Graham DCJ turned to the effect of the repeal of s16G of the Crimes Act 1914 (Cth). S16G formerly provided: "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. " 25 S16G was repealed before the applicant's sentencing. His Honour concluded that the repeal meant that the Wong and Leung guideline, of five to seven years, would, after discarding s16G, be a sentence of nine years. He took that as his starting point for the applicant's sentence, but reduced that by reason of the applicant's plea of guilty, and by reason of the assistance he had given. He quantified the discount for the plea of guilty at 15%, and the discount for assistance at 20%. Thus, he arrived at a head sentence of six years, with a non-parole period of four years. the non-parole period was accordingly fixed at about 66% of the head sentence, a fairly conventional proportion.