R v Salcedo

Resentencing the applicant 25 The statement of facts presented to the sentencing judge on 1 April 2003 by the Commonwealth Director of Public Prosecutions (the "Commonwealth DPP") alleged that the amount of pure ecstasy the subject of the charge against the applicant was 339.7 grams. That was the total net amount of pure ecstasy contained in the tablets the two offenders had imported. The Crown relied upon the total weight of the pure ecstasy on the basis the two offenders had been involved in a joint criminal enterprise to import the tablets. The applicant's legal representatives did not contest that proposition. 26 After the applicant had been sentenced on 1 April 2003, the Commonwealth DPP applied to have the matter relisted before the sentencing judge. This was because the Commonwealth DPP had formed the view that the Criminal Code Act 1995 (Cth) did not allow for the application of the doctrine of joint criminal enterprise. When the matter was relisted the Commonwealth DPP submitted that the applicant should be resentenced on the basis that he had imported only the quantity of pure ecstasy in the tablets strapped to his body, namely 169.9 grams. Although the papers do not identify the jurisdictional basis of the Commonwealth DPP's application, it would appear to have been based upon s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which permits a court which has imposed a penalty which is contrary to law to reopen the proceedings and impose the appropriate penalty: see Erceg v District Court of New South Wales [2003] NSWCA 379. 27 Christie DCJ accepted the Commonwealth DPP's submission that he should resentence the applicant for importing the lesser amount of ecstasy. He reviewed the remarks he had made in sentencing the applicant for the first time. In considering how he might revise the sentence, his Honour said: "I considered it at some length because I am concerned and I was concerned a little time after I passed sentence upon Mr Salcedo, that he received the benefit of a - quite frankly - a significantly lighter sentence than some members of the community might think appropriate. But that is water under the bridge - I am more firmly of that view now than I ever was - but it is water under the bridge. I did say at that time that having done what I did, I do not believe there is anything else I can do for the prisoner unless I passed a sentence that would not reflect the gravity of the particular offence. So I ask myself if he was sentenced on that basis whether there is any room to interfere with Mr Salcedo's sentence, bearing in mind that I hold the view that the sentence he received could be considered in some sections of the community, as over lenient in any event. I have convinced myself again, with some significant reservation, that it is possible that Mr Salcedo might justifiably entertain a genuine sense of grievance if in fact his sentence was not at least marginally ameliorated by reason of the fact that he had been sentenced on the basis of a joint importation with Mr Moustapha, at least having regard to the quantity that he brought here. I feel that I, in ameliorating a sentence - and I shall only do it quite marginally - but in ameliorating his sentence, I am fast approaching a stage where the sentence may not sufficiently reflect the objective criminality that the offence disclosed . Nevertheless, the previous sentence was 6 years from 21 September 2002 to 20 September 2008, with a non-parole period of 4 years from 21 September 2002 to 20 September 2006. A parole period of 2 years from 21 September 2006 to 20 September 2008. So that if I am to adjust it for half of the quantity imported, … I feel that there would be some justification for moderately adjusting the sentence, having regard to the fact that the volume imported is a relevant factor. Not the only factor of course, but it is a factor. Now the Crown having abandoned that principle of common purpose as I say, in terms of this sentencing procedure for very good reason and indeed one of my brother judges so decided some time ago and nobody contests that that is the correct approach, I propose to reduce the prisoner Salcedo's sentence by 3 months." (emphasis supplied) 28 He then resentenced the applicant to 5 years and 9 months imprisonment from 21 September 2002 to 20 June 2008. He reduced his non-parole period by 3 months to 3 years and 9 months from 21 September 2002 to 20 June 2006. His parole period remained at 2 years.

Remarks on Moustapha's sentence 29 Moustapha also pleaded guilty to two charges, one of importing not less than the trafficable quantity of 3,4 Methylenedioxymethamphetamine (ecstasy), namely 169.8 grams (Customs Act 1901 (Cth), s 233B), and the other of importing Tier 1 goods, namely anabolic steroids without approval (Customs Act, s 233BAA(4)). 30 Moustapha was sentenced on the same day the sentencing judge resentenced the applicant. The sentencing judge "notionally included" his remarks on the applicant's sentence in his sentencing remarks in relation to Moustapha. 31 The sentencing judge noted that Moustapha entered a plea of guilty to both charges at the earliest opportunity. 32 The sentencing judge noted that the principal issue debated before him was parity between the co-offenders. 33 He concluded that he should proceed to sentence Moustapha on the same basis as the applicant insofar as he considered that the men had only decided to bring back the ecstasy after they arrived in Amsterdam. He also accepted that Moustapha, like the applicant, was a principal and not a courier. However, in sentencing Moustapha the sentencing judge concluded that he had been in error in concluding in connection with the applicant's sentence that "to a very large degree, this importation was intended to supply [the applicant] and [Moustapha] with a source of this drug for his own use". That was because, having read some of the remarks made by Moustapha in his record of interview, his Honour concluded that: "… [T]he real motivation for this importation, or the significant portion of the motivation was a quick turnover of money and the consequent profits used to alleviate what Mr Moustapha perceived to be his pressing indebtedness." 34 Having made what he frankly acknowledged was an error in favour of the applicant, his Honour concluded that he should perpetuate it in favour of Moustapha "because it would be quite improper of me to take a different view now in sentencing Mr Moustapha." 35 His Honour repeated what he had said at the time of sentencing the applicant, namely that he proposed to deal with the matter "as leniently as the circumstances permit, but consistent with one's duty to the community, that this type of offence must in all circumstances be discouraged and penalties passed that are commensurate with the gravity of the crime". He observed that "[t]he objective seriousness of this crime could not be overstated". 36 In dealing with Moustapha's subjective circumstances, the sentencing judge noted that he was entitled to significant consideration by way of the utilitarian value of his plea of guilty, by reason of the fact that it was made at the earliest opportunity and reflected a "genuine feeling of contrition and remorse". 37 His Honour then turned to consider whether Moustapha was entitled to any amelioration of the sentence that had been passed upon the applicant by reason of two matters. The first was the contents of Ex H which referred to some assistance Moustapha had afforded authorities. The sentencing judge concluded that that exhibit entitled Moustapha to "some marginal consideration". The second matter was that it was the applicant's money, not Moustapha's, which had financed the enterprise. 38 The sentencing judge concluded that in terms of the criminality exhibited in relation to the offences, any differentiation between the applicant and Moustapha was "pretty marginal". He accepted that neither man was a commercial drug runner and that neither entered upon the enterprises in relation to which he was sentencing Moustapha on a regular basis or moved in "the drug milieu". 39 He accepted, in relation to Moustapha, that the offence was completely out of character. He concluded that Moustapha's subjective circumstances were "marginally more compelling" than the applicant's. That was partly because of some material concerning Moustapha's wife. He took into account the matters to which s 16A of the Crimes Act 1914 (Cth) required the Court to have regard when passing sentence which, in his view, "marginally favour [Moustapha] when compared with [the applicant]" as did the contents of Ex H. 40 The sentencing judge referred to the constraints under which, in his view, he was operating. They were the parity principle as well as the fact that he had already had to adjust the applicant's sentence to a level where it may not sufficiently reflect the objective criminality of the offence. 41 He concluded that he had to make the same adjustment in favour of Moustapha as he had made in favour of the applicant as well as a further marginal adjustment having regard to the matters peculiar to Moustapha to which I have already referred. Having referred to those matters, however, his Honour was of the view that he could not make any further adjustment without passing a sentence that would not reflect the gravity of the particular offence and its objective criminality. Indeed, his Honour expressed the view that the sentence he was about to pass on Moustapha probably fell short of the latter requirement but having sentenced the applicant on that basis, he did not believe there was any other course he could adopt. 42 He sentenced Moustapha to five years and three months imprisonment with a non-parole period of three years and six months in respect of the first matter and a fixed term of imprisonment of three months in respect of the second. The fixed term was concurrent with the first sentence. It dated from 21 September 2002 and had already been served by the date the sentence was imposed.

Grounds of Appeal 43 The grounds of appeal upon which the applicant relies are that:

(a) the sentencing judge erred in imposing a greater sentence on him as compared to his co-accused, Moustapha, thus giving rise to a justifiable sense of grievance;

(b) the sentencing judge erred when resentencing the applicant, overlooked or gave insufficient weight to time served and to be served in protective custody.

The applicant's submissions 44 The applicant submitted that the sentencing judge erred in giving Moustapha a sentence which was less than the applicant's and that the discrepancy between the two sentences had given rise to a justifiable sense of grievance. The applicant submitted that the reasons the sentencing judge gave in reducing Moustapha's sentence were insufficient to identify a necessary distinction between the two offenders when the factors favouring the applicant were considered. In particular the applicant drew attention to the issue of protective custody and noted that when the sentencing judge resentenced the applicant he made no reference to that factor. 45 While the applicant acknowledged that the sentencing judge had been entitled to take into account Moustapha's subjective circumstances as well as Ex H, he submitted that those factors did not relevantly distinguish the two offenders when appropriate weight was given to the issue of protective custody. 46 The applicant submitted that the sentence for the co-offenders ought to have been the same when considering the parity principle.

The Crown's submissions 47 The Crown submitted that the applicant had not demonstrated that the sentencing judge failed to take into account the fact that the applicant expected to serve his sentence in protective custody or did not give it appropriate weight. They drew attention to the line of authority demonstrating that it can no longer be assumed that a prisoner who will serve his sentence in protective custody will find prison life more difficult or onerous than other prisoners in the general prison population or that the prisoner will be deprived of amenities or opportunities for self-improvement courses and education: see Howie J's remarks in R v Mostyn, above at [179] ff. 48 The Crown contended that mere disparity between sentences imposed on co-offenders was not of itself a ground for the intervention of an appellate court, referring to Lowe v R [1984] HCA 46; (1984) 154 CLR 606 and R v Postiglione [1997] HCA 26; (1997) 189 CLR 295. It submitted that in order for an appellate court to interfere with a sentence on the basis of the parity principle, the difference between the sentences must be manifestly excessive so as to engender a justifiable sense of grievance. It argued that the latter factor would only be engaged if an ordinary reasonable member of the community would consider that the differences in the sentences resulted in an injustice, referring to Steer v The Queen [2000] FCA 462; (2000) 171 ALR 463. 49 The Crown submitted that the applicant had not established that the difference between the sentences imposed on him and his co-offender was manifestly excessive or that the differences between their sentences would engender a justifiable sense of grievance. 50 The Crown challenged the applicant's contention that his expectation that he would serve his sentence in protective custody in effect cancelled out the discount on sentence received by Moustapha for his assistance on the basis that that submission sought to ascribe to sentencing a process of mathematical precision, an approach which had often been condemned: see Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624 per McHugh, Hayne and Callinan JJ. 51 The Crown also submitted that the parity principle had to give way, in appropriate circumstances, to the requirement that the administration of justice should be served by a sentence reflecting the objective criminality of the offence. It drew attention to R v Chen & Others [2002] NSWCCA 174; (2002) 130 A Crim R 300 at [289] where Heydon JA, Sully and Levine JJ said: "A further principle in [the parity] context of course is the entitlement in the Court of Criminal Appeal to reduce an otherwise appropriate sentence in order to avoid disparity engendering a justifiable sense of grievance, that entitlement being a discretionary one. The exercise of that discretion may be affected by a view being formed that a stage has been reached at which the inadequacy of the lower sentence is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one, and a reduction of an otherwise appropriate sentence to remove that disparity becomes an affront to the proper administration of justice: Regina v Diamond (NSW CCA, unreported, 18 February 1993 per Hunt CJ at CL at 5-6, with whom James J agreed, Smart J - as he then was - dissenting)." 52 The Crown did not accept that the sentencing judge erred in the manner for which the applicant contended. Further, it submitted that the sentence his Honour imposed was such that the Court would not conclude that another, less severe sentence, was warranted in law. The Crown submitted that the sentencing judge made a number of findings which were unduly favourable to the applicant. These included the fact that he sentenced the applicant on the basis that he was of prior good character where as, in fact, the applicant's criminal history was not insubstantial and could, the Crown submitted, be seen as indicating a "continuing attitude of disobedience of the law" deserving of a severe penalty: cf Veen v The Queen [No 2] (1998) 164 CLR 465 at 477; R v McDonald (1998) 28 MVR 432. 53 The Crown also submitted that another highly favourable finding the sentencing judge had made which, indeed, he had subsequently come to doubt (if not regret), was his conclusion during his remarks on the first sentence on 1 April 2003 that the importation was intended to supply the co-offenders with drugs for their own use. 54 The Crown submitted that even if the applicant was able to demonstrate a justifiable sense of grievance arising out of manifest disparity this Court should not intervene to vary the sentence on the basis that such intervention would constitute an affront to the proper administration of justice.

Consideration 55 Although the circumstances in which the applicant came to be sentenced proceeded in the two stages I have outlined, the present application, in my view, must be considered on the basis that the sentence finally imposed upon the applicant related to his plea of guilty to importing not less than 169.9 grams of ecstasy. At times the application appeared to proceed as if it were a review of the sentencing judge's resentencing exercise. That, in my view, was an erroneous approach. The true question is whether, in all the circumstances, the final sentence was excessive. 56 That being said, it is necessary to have regard to the remarks the sentencing judge made on the occasion of the applicant's first sentence because they formed part of the explanation for the final sentence. All that happened when the applicant was resentenced was that the sentencing judge considered the effect, if any, which he should give to the fact that the Crown conceded that the amount of ecstasy which should be the subject of the charge was 169.9 grams as opposed to 339.7 grams. 57 In Wong v R [2001] HCA 64; (2001) 207 CLR 584 at [64] Gaudron, Gummow and Hayne JJ said, in referring to the offence of being knowingly concerned in the importation of heroin, that the difficulty of detecting the offence and the great social consequences that follow from its commission meant that deterrence was to be given chief weight in the sentencing task and "that stern punishment will be warranted in almost every case." Their Honours also referred to the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation and the reward which the offender hoped to gain from participation, as matters properly to be taken into account in determining a sentence in such cases. Later (at [70]) their Honours said that "selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle". This Court, too, has made it plain that penalties are not proportionate to quantity, although quantity is clearly of significance in assessing the objective criminality of the offence: R v Schofield [2003] NSWCCA 3 at [43] per Hulme J. 58 While it was significant that the applicant was a principal, characterising the offender as such cannot be permitted to obscure the assessment of what the applicant did: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 279 [19] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. 59 What Wong v R and R v Olbrich make plain is that the task of the sentencing judge is to take into account all the objective circumstances of the offence in characterising its criminality as well as such subjective circumstances as appear appropriate. The first part of the exercise is reinforced by s 16A of the Crimes Act 1914 (Cth) which required the sentencing judge to take into account "the need to ensure that the person is adequately punished for the offence" and the requirement that the sentencing judge "impose a sentence … that is of a severity appropriate in all the circumstances of the offence": s 16A(2)(k), s 16A(1). 60 The sentencing judge recognised in his 1 April 2003 remarks on sentence the need to impose a sentence which would operate as a general deterrent to the community from being involved in crimes of this nature. As he later recognised he probably had not achieved that result, indeed he acknowledged he may have imposed a sentence which did not reflect the objective criminality of the s 233B offence and might be one which members of the community would think was "significantly lighter than … appropriate." 61 These matters, in my opinion, provide important context to the application of the parity principle. 62 The parity principle reflects the proposition that consistency of punishment is of fundamental importance in the administration of justice: Lowe v R, above, at 610 per Mason J (as he then was). As it turns upon the perception that discrepancies in sentence may give rise to a "justifiable sense of grievance" or "give the appearance that justice has not been done" (Lowe v R, above, at 610 per Gibbs CJ (with whom Wilson J agreed)), the principle is not attracted on appeal unless it can be demonstrated that there is a manifestly excessive or marked disparity between the sentences imposed on co-offenders. Mere disparity is not sufficient to attract appellate review: Lowe v R, above, at 610 per Gibbs CJ, at 611 per Mason J, at 624 per Dawson J (with whom Wilson J also agreed). Thus it should be accepted, as the Crown submitted, that mere disparity is not sufficient to attract the parity principle. 63 The question whether the difference between the applicant's sentence and Moustapha's sentence could be said to constitute a "marked" as opposed to a "mere" disparity was not the subject of debate on appeal - however it may be disposed of, in my view, by the fact that the sentencing judge himself accepted that the difference between the two offenders was "marginal" and it was to the subjective matters relating to Moustapha to which he referred when reducing his sentence. It might be accepted, therefore, that the case falls into the category of a "mere" as opposed to a "marked" disparity. 64 In such circumstances the parity principle is not offended and the applicant's first ground of appeal must fail. 65 I should add that even if I were of the view that there was an unacceptable disparity between the applicant's sentence and his co-offenders the case would be one where a reduction of the sentence to remove that disparity would, having regard to the leniency extended to the applicant, be an affront to the proper administration of justice: R v Chen & Others, above. 66 The applicant's second ground of appeal revolved around his complaint that the sentencing judge had overlooked or given insufficient weight to the fact that the applicant had served part of his sentence in protective custody and would serve his sentence in those circumstances. 67 In my view this ground of appeal misunderstands the exercise the sentencing judge undertook when he resentenced the applicant. He had already taken into consideration on the occasion of the first sentence the applicant's submission concerning the time he had served and may in the future serve in protective custody. When he resentenced the applicant on 31 July 2003 he did not, and was not in my view required to, revisit every aspect of the original sentence. The only matter to which he had to attend was to impose a sentence which accorded with law as the Commonwealth DPP had advanced and sentence the applicant on the basis that the charge against him involved 169.9 grams of ecstasy rather than 339.7 grams. 68 Thus, his Honour only addressed the question of ameliorating the applicant's sentence by reference to the significance the weight of the ecstasy should be given having regard to the overall criminality of the offence. 69 There is no basis in my view for the applicant's submission that his Honour failed to have regard to the protective custody issue. He took that issue into account in determining the first sentence. He referred to the remarks he had made at the time of the first sentence when he resentenced the applicant. It was unnecessary for him to reiterate the remarks he made on the occasion of the first sentence. 70 It might be noted, in this respect, that in his first remarks on sentence the sentencing judge attributed no particular significance to the overall weight of the ecstasy upon which the Crown relied although, clearly, it was a matter to which he had some regard. However, as Wong v R, above, emphasises, his Honour had regard, in particular, to the fact that the applicant was a principal and that there was some element of commercial gain. It goes without saying that the applicant was in no doubt about what was being imported. 71 In such circumstances the sentencing judge was required to give chief weight to the deterrent factor of the sentence he was imposing: Wong v R, above, (at [64]). 72 For reasons which, quite frankly, do not emerge from the sentencing judge's remarks on the occasion of the first sentence, the sentencing judge took the view that he should deal with the matter leniently. I would agree with his remarks. The applicant was given the benefit of that leniency when the first sentencing exercise was undertaken - a benefit he retained on the imposition of the final sentence. It is clear that, having reviewed his remarks of April 2003, the sentencing judge struggled on the second occasion to reduce the sentence in any respect. 73 In my opinion the applicant has failed to make out his grounds of appeal. 74 I would grant the application for leave to appeal against sentence, but dismiss the substantive appeal. 75 LEVINE J: I agree with McColl JA. 76 HIDDEN J: I agree with McColl JA.

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