R v Spillane

The application 13 In this Court, three challenges have been made to the manner in which his Honour approached his sentencing task. In my view, all of these challenges have been made good. 14 Firstly, I consider that his Honour fell into error in what counsel for the applicant described as his "arithmetical" approach to the determination of the head sentence by reference to the sentence in Bowers. That case involved a commercial quantity of ecstasy, attracting a higher maximum penalty. In so saying, I recognise that there may well be some overlap in sentence for offences involving quantities towards the top of the trafficable range and towards the bottom of the commercial range. In any event, sentencing for offences of this kind must not be approached on the basis of "some precise mathematical relationship between the sentence and the amount of the drugs involved": R v Doan (CCA unreported, 27 September 1996) per Hunt CJ at CL at p5. 15 True it is that his Honour also had regard to other decisions of this Court to which he was referred by the prosecution, to the requirements of s16A of the Crimes Act (Cth) and to the fundamental common law principles of sentencing. Nevertheless, it appears that the sentence of 7 years was arrived at primarily by the impermissible process which I have outlined. 16 Secondly, I am satisfied that his Honour failed to give appropriate weight to the applicant's assistance to the police, limited as it was. In his remarks on sentence, after noting that the applicant was unwilling to nominate others involved in the offence, his Honour continued: So that it is only a limited amount of kudos that he is entitled to receive from having answered the telephone a couple of times and gone down to the foyer at the Top of the Town Hotel in Sydney whilst being watched by the Federal police. Of course, the easiest thing in the world if you went down into the foyer, would be with a nod or a frown not seen by the overlooking police officers but seen by the person coming into a foyer, would be to tip them off. 17 There was no evidence to suggest that the applicant might have attempted to warn off any accomplice who approached him, and the observation in the last sentence of that passage was entirely uncalled for. No doubt, his agreement to accompany the police to the hotel was driven by the circumstances in which he found himself and, as I have said, he stubbornly maintained his innocence when he was later interviewed. Nevertheless, he was entitled to be sentenced on the basis that his agreement to assist the police was genuine, and it is in the public interest that cooperation with the police in furtherance of their investigation of a crime be encouraged by the extension of leniency. Of course, subject to statutory requirements such as s21E of the Crimes Act (Cth), it is not necessary to specify a period by which a sentence has been reduced on that account: R v Gallagher (1991) 23 NSWLR 220. Here, however, his Honour did so. In my view, a reduction of three months was inadequate to reflect the measure of leniency to which the applicant was entitled. 18 Thirdly, it was not open to his Honour to characterise ecstasy as more dangerous than a middle range drug on the basis of anecdotal evidence and media reportage, and in the absence of the evidence of appropriately qualified experts. The Crown prosecutor in this Court did not suggest that it was. However, he submitted that that is not what his Honour intended to convey by those remarks. Rather, he argued, his Honour was simply expressing his sympathy with the observation of Hunt CJ at CL in Bowers that the assessment of the harmful potential of ecstasy should not be assumed but should be informed by scientific research. I do not agree. From the passage of the remarks on sentence referred to in par 12 of these reasons it is clear that his Honour was arriving at his own conclusion about the matter and, in so doing, departing from existing authority. 19 For these reasons, I am satisfied that his Honour erred in his approach to the matter and it falls to this Court to determine the sentence, in the exercise of its own discretion.