R v Studenikin

"In sentencing the offender, in addition to the factors to which I have specifically referred, I have taken into account the matters set out in s 16A of the Crimes Act 1914. These sentencing proceedings began before the repeal of s 16G of the Crimes Act 1914. Despite counsel for the offender's statements to the contrary, I am of the view that I must now sentence the offender without regard to the sentencing practice which operated prior to 16 January 2003 the date of the repeal." 37 It is convenient to deal with the applicant's grounds of appeal together as they rely upon the same basic contention, being that her Honour imposed a sentence that was excessive by reason of the manner in which her Honour took into account the repeal of s 16G. Before dealing with the arguments in support of this application it is necessary to set out shortly the history of s 16G and its effect on sentencing in this State. Although the relevant provisions that were repealed were both ss 16G and 19AG, the practice has arisen of referring only to s 16G when discussing issues arising under both provisions. That is how the parties referred to the question arising on the application before the Court and, as a matter of convenience, I will do the same 38 In 1989 a package of legislation was enacted in this State under a policy known as "truth in sentencing". Part of that package of reform was the abolition of the prison remission system. The history of remissions and the effect of their abolition were considered in R v Maclay (1990) 19 NSWLR 112. It is unnecessary to re-canvass that matter in any detail in order to determine the issue raised in the present application. However, two matters should be noted at the outset. The first is that sentencing courts were generally not permitted to take into account the effect of remissions when determining the sentence and non-parole period to be imposed, and, in particular, a court was not permitted to anticipate the remissions that might be applied to the sentence and to attempt to negate them; Maclay at 121. The second is that remissions were, to a very large degree, automatic and had the effect of reducing both the head sentence and the non-parole period by at least a third. 39 At the same time as remissions were abolished, a new regime of sentencing was introduced by the provisions of the Sentencing Act 1989. The provisions of that Act and their effect were also considered in Maclay. The Court was there principally concerned with an argument to the effect that, following the implementation of the Sentencing Act, the courts should deduct from the non-parole period, determined in accordance with the provisions of the Act and normal sentencing principles, a period equal to the remissions that a prisoner would have received immediately prior to their abolition. That argument was rejected. It will be necessary to return to Maclay shortly, but the effect of the decision was that sentencing courts should simply apply the provisions of the Act without regard to the sentences that would have been served by prisoners before its commencement. 40 The abolition of the prison remission system in New South Wales was revolutionary and other States and Territories did not immediately follow suit. The Commonwealth Government was concerned that disparity would arise between the periods of custody to be served by Federal prisoners in the different jurisdictions within the Commonwealth depending upon whether remissions were available or not. As a consequence, s 16G was inserted into the Crimes Act. 41 The section was a follows:

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." 42 There was criticism of the provision as being ineffective to achieve its aim of consistency between the various jurisdictions and in that it created a differential between the sentences to be served by Federal offenders and State offenders within the same jurisdiction. See R v Paull (1990) 20 NSWLR 427 at 431. It was also held that the section only applied to the head sentence and not the non-parole period. That interpretation resulted in the enactment of s 19AG of the Crimes Act, a provision that required the court also to take into account the absence of remissions when determining the non-parole period. 43 To give effect to the sections, the courts in this State proceeded to sentence a Federal offender by determining the appropriate head sentence and non-parole period by the application of normal sentencing principles and the relevant provisions of the Crimes Act (Cth) and then, before pronouncing the sentence, reduced it by a period of about a third. Although Hunt J in Paull suggested that a set formula should be applied to determine the appropriate discount to be applied by reason of s 16G, that approach was disapproved in Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370. It was held that a discretion should be exercised in determining the effect of s 16G on the otherwise appropriate sentence and that, although a discount of a third was a "legitimate starting point", in an appropriate case a sentencing judge could "moderate" the discount. The seriousness of the particular offence committed was identified as one reason why a court might depart from the normal discount; R v Chan (2002) 128 A Crim R 119. It was unnecessary for the judge to specify the actual discount that was applied; R v Budiman (1998) 102 A Crim R 411, or the reason for departing from the normal discount unless that departure was substantial; R v Bradley (1997) 137 FLR 314. However, it was an error for the sentencing judge to fail to indicate that the section was being taken into account in determining the sentence that was imposed; R v O'Connor [2002] NSWCCA 156. 44 The courts in Victoria took a similar approach to the application of s 16G after that State abolished its remission system. See R v Li [1998] 1 VR 637. 45 As would be expected, since the introduction of s 16G a range of sentences has been established in this State for offences under s 233B of the Customs Act. The applicable range for any particular category of offence reflected the nature and amount of the drug involved and the role played by the offender in the importation or the organisation behind it. The established range, applicable to each of the different categories of offences arising under s 233B, was recognised and promoted in the guideline judgment of R v Wong and Leung (2000) 48 NSWLR 340. It has continued to impact upon the sentences imposed on individual offenders notwithstanding that the High Court set aside the guideline in Wong and Leung v The Queen (2001) 207 CLR 584. Obviously, that range reflects the impact of s 16G on sentences imposed upon Federal offenders in this State and is lower than would have been the case had those sections not applied. 46 Sections 16G and 19AG were repealed by item 1 in Schedule 3 of the Amendment Act. Section 4 of that Act provides:

The amendments made by items 1, 2 and 3 of Schedule 3 apply to any sentence imposed after the commencement of those items, whether or not the offence concerned was committed before that commencement. 47 This Court was referred to both the second reading speech of the Minister introducing the relevant bill and the Explanatory Memorandum that accompanied it. Whether it is strictly necessary to consider such extraneous material is a moot point. It has been argued, on behalf of the applicant, that Federal Parliament should not be taken as having intended that the repeal of the sections would have any impact upon the established range of sentences for Federal offences, or at least those offences under s 233B of the Customs Act. But as Maclay demonstrates, the fact that Parliament or the responsible Minister believed that the passage of a piece of legislation would not bring about a certain consequence does not require the courts to construe the legislation in a way consistent with that expectation and inconsistent with the plain words of the legislation. 48 The applicant's principal argument is that the repeal of s 16G should not result in courts in this State increasing sentences for Federal offenders. In particular it is contended that Judge Hock should have sentenced the applicant consistently with the range of sentences established as being appropriate prior to the repeal of s 16G. It was conceded on behalf of the applicant that no specific error could be identified in the sentencing remarks of Judge Hock, other than her Honour's failure to have regard to the established range. But it was argued that the sentence imposed was manifestly excessive when compared with the range that had been established for offences of the kind committed by the applicant. 49 Because of the gross disparity between the sentence imposed by Judge Hock and the existing range of sentences, the applicant submitted that Judge Hock must have taken into account the repeal of s 16G by increasing the sentence established by the existing range by fifty percent. That mathematical process, so it is argued, was used to convert the existing range of sentences from one reflecting a standard reduction of the otherwise appropriate sentence by a third, as a consequence of the application of s 16G, to a range reflecting the appropriate sentence without that discount. In support of that contention, it was argued that the range of sentences appropriate for the importation offence committed by the applicant, prior to the repeal of s 16G, was 7 to 8 years imprisonment with a non-parole period of 4 to 5 years. Therefore, so the argument ran, it was not a matter of pure chance that her Honour's sentence of 12 years with a non-parole period of 7 years is roughly equivalent to a 50 per cent increase in a sentence that would have fallen within the established range. 50 I have no difficulty in accepting an argument that the repeal of s 16G 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 the repeal. To do so would simply be to make the same error that was identified by this Court in El Kaharni in respect of taking into account the absence of remissions under s 16G. But if a sentencing court is minded to look at the range of sentences that were imposed when s 16G applied, then it has to bear in mind that the 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. 51 A sentencing discretion is not properly exercised by simply determining where in a range of sentences the particular matter before the court falls, and that is so whether that range has been established by a guideline judgment, by a pattern of sentences reflected in statistics maintained by the judicial commission, or by a consideration of the sentences imposed in other identified cases. While an established range of sentences for a particular class of offence and offender is important because of the need for consistency in sentencing, a consideration of the range will normally be the last point of reference rather than the first. 52 The court should determine the sentence for an offender by applying the appropriate statutory and common law principles, including due regard to the maximum sentence prescribed for the offence, and then consider whether the sentence is consistent with the established range, or whether it departs significantly from the range either towards severity or leniency. If the sentence does depart significantly from the range and there is no good reason on the facts of the particular matter or the application of principle to explain and justify the departure, the sentencing court should reconsider the chosen sentence in the light of the established range. By adopting this process the court both exercises a sentencing discretion, unfettered except by the appropriate facts and relevant sentencing principles, and attempts, so far as is appropriate, to conform with the approach adopted by other courts or as laid down in a guideline and, thereby, to achieve a measure of consistency in sentencing. 53 The principal submission made on behalf of the applicant is that the repeal of s 16G and the fact that the court is no longer required to take into account the absence of remissions should have no significant effect upon the established range of sentences for offences under s 233B. It is argued that it is not apparent in the second reading speech or otherwise, that it was the intention of the Parliament in repealing s 16G that sentences for Federal offenders should increase. Further, it was submitted that there is no reason why the existing range of sentences should be increased in order to achieve the purposes of punishment. Finally, it was contended that if the courts of this State were to give effect to the repeal of s 16G by an increase in sentences for Federal offences, the likely consequence would be a disconformity between sentences imposed in this State and those imposed in other jurisdictions, a state of affairs that the Government sought to avoid by the enactment of s 16G in the first place. 54 That part of the second reading speech that was concerned with the repeal of ss 16G and 19AG is of little assistance, if any is required, in determining what the consequence of the repeal of these provisions should be. It was as follows;

The bill will also repeal sections 16G and 19AG of the Crimes Act 1914. That amendment will mean that courts will no longer have to take into account whether or not remissions are available in a state or territory when sentencing federal offenders in that state or territory. This shift follows the abolition of remissions in most states and territories and the move towards the removal of remissions in the remaining jurisdictions. 55 With respect, it was not strictly accurate to speak of a court "having to take into account whether or not remissions were available". The repealed sections only required that a court take into account the fact that no remissions or reductions of a sentence were available. If the offender was sentenced in a jurisdiction, where there was a remission system operating to reduce the actual time a prisoner would serve as a consequence of the imposition of a Federal sentence, the court simply ignored that fact when determining the appropriate sentence. The application of remissions to a sentence did not have the effect of reducing the term of the sentence imposed by the court, but rather the amount of the sentence that had to be served by the prisoner. The application of remissions is an executive act and not a judicial one. 56 The policy behind the enactment of s 16G initially, and in its later repeal, is the same: there should be consistency in the punishment inflicted upon Federal offenders regardless of the jurisdiction in which the punishment is imposed. Consistency in the punishment inflicted upon Federal offenders could never be achieved by requiring consistency in the length of sentences imposed while ever one or more of the jurisdictions retained a system for remission of sentences. In order to achieve consistent punishment it was necessary that any jurisdiction not having a remission system reduce the sentences actually imposed to take account of that fact. Hence s 16G was intended not only to authorise the giving of a discount of the otherwise appropriate sentence but to require that one be given to off-set the fact that the period served in custody was not reduced by remissions. It replaced an executive act with a judicial one. 57 Therefore, it should be assumed that, as a consequence of the operation of s 16G, there would be a discernable difference in the length of sentences imposed in those jurisdictions where it operated when compared with those jurisdictions where it did not. The inconsistency in the length of the sentences actually imposed by the courts would be offset by the operation of remissions in those jurisdictions where the sentences imposed were longer because they were not discounted by the operation of s 16G. The actual punishment inflicted upon Federal offenders, that is the time actually served in custody, was, therefore, generally consistent across the Commonwealth, notwithstanding the appearance of inconsistency in the sentences actually imposed. For example, in Beard v The Queen [2003] WASCA 362 at [36] in a case of a fraud against the Commonwealth it was recognised that, if regard was to be paid to sentences for Federal offences imposed in New South Wales, the sentences "need to be notionally adjusted by a factor of 1.5". 58 It follows that, if the legislature in a particular jurisdiction discarded the existing remission system, section 16G applied and the court was to take account of that fact when sentencing Federal offenders by reducing the sentences imposed by an amount roughly equivalent to the remissions that had been applied before the system was abolished. 59 When it became apparent that no jurisdiction was going to retain a system of remission or reduction of prison sentences, at least to a significant degree, then there was no purpose seen in retaining s 16G. In any jurisdiction that had not abolished its remission system by the time s 16G was repealed, such as Western Australia and Tasmania, sentences would be unaffected by the repeal of the section because it had never applied to that jurisdiction. The sentences imposed by the courts in those jurisdictions would not vary when the remission system was ultimately abolished, because courts generally have no regard to the remission system when imposing sentences. Federal prisoners in those jurisdictions would be required to serve the whole of the sentence without reduction or remission. The length of the sentences imposed for Federal offences would not change but the period to be served by Federal offenders sentenced thereafter would increase. However, in order that the punishment of Federal offenders in those jurisdictions would be consistent with Federal offenders in jurisdictions where s 16G applied, the section had to be repealed so that the discounting of sentences under that section was removed. 60 I would have thought that what I have just written about the practical effect of the operation of s 16G and its repeal was self-evident, at least to Federal Parliament, the responsible Minister and those advising him. Yet the applicant's argument is based upon a proposition that the repeal of s16G was not intended to affect the actual terms of sentences imposed upon Federal offenders in those jurisdictions where it had applied and that the range of sentences that resulted from its application should remain as a check or guide to the sentences to be imposed after its repeal. This argument, with respect, treats the repeal of the relevant sections as if it were an inconsequential matter of mere form arising from a housekeeping exercise by the parliamentary draftsman. It my view it is clear that the repeal of the sections was a matter of substance intended to have an impact upon the way that Federal offenders were sentenced in those jurisdictions where they had applied. 61 The applicant has submitted that, if as a consequence of the repeal of s 16G, sentences significantly increased in this State, there would be a real likelihood of inconsistency in sentencing between this and other jurisdictions such as that which s16G was introduced to address. In my view, if the sentences in this State did not now significantly increase there would arise an inconsistency between the punishment inflicted upon Federal offenders in this State and the punishment inflicted on, say, those in Western Australia, once the remission system was abolished in that State. I am unconvinced that other jurisdictions in which s 16G operated would not experience an increase in sentences for Federal offenders by reason of the repeal of the section. If they do not, then clearly the legislature's purpose in repealing those sections would be frustrated. 62 In any event, it is wrong, in my view, to approach this matter on the basis that it involves a question of whether the courts in this State should increase sentences as a result of the repeal of s 16G. The issue is rather whether the courts in this State have the power to continue to apply the discount authorised by s 16G after the repeal of that provision. If this issue is stated in this way, the answer is obvious. In the absence of a statutory warrant to do so, a court has no power to reduce a sentence that has been determined by a proper application of the sentencing principles laid down by the statute or the common law to the facts and circumstances of the particular case. It seems to me, with respect, to be a matter of common sense and simple logic, that, if the courts of this State have been reducing the sentences imposed upon Federal offenders by reason only of the operation of a specific statutory provision, the courts can no longer reduce sentences in that way once the statutory authority to do so has been withdrawn. 63 As I have already indicated, the normal principled approach taken to sentencing Federal offenders when s 16G was in operation was to apply the relevant discount after the court had determined the appropriate sentence that should be imposed for the offence by the application of the relevant sentencing principles. If the authority to discount the otherwise appropriate sentence is withdrawn, the court has no option but to impose the sentence which it has determined is the appropriate one. If before passing that sentence, the court went on to consider the range of sentences that would have applied under the requirement of s 16G and proceeded to reduce the sentence to accord with that range, it would be simply applying s 16G indirectly. It would have no power or authority to take that course. 64 I have not yet referred to the Explanatory Memorandum that accompanied the bill. I have not done so because I do not believe it is necessary to rely upon extraneous material in order to determine the effect of the repeal of s 16G. If the Memorandum contained a suggestion that it was not intended or anticipated by the Government that the repeal would have the consequence that I believe it does, then I would disregard it. However, the Memorandum makes it clear that s 16G was being repealed to bring about the consequences that I have set out above and for the reasons that I have given. It would have been extraordinary, not to say alarming, had it been otherwise. 65 The Memorandum contained the following explanation for the repeal of the provisions:

The provisions were introduced in 1989 following the abolition of remissions in New South Wales. The inclusion of sections 16G and 19AG was intended to address concerns that New South Wales' abolition of remissions would result in higher sentences being imposed on federal prisoners in that state than any other jurisdiction.

However, as more jurisdictions have abolished remissions (only Western Australia and Tasmania still have some form of remission), sections 16G and 19AG have had the effect of reducing the maximum applicable prison term for all Commonwealth offences by one third. Further, West Australian legislation abolishing remissions is intended to commence in 2003, and the Tasmanian Attorney-General has signalled an intent to remove automatic remissions. In any event, remissions in Tasmania have already been reduced from one third of most sentences to a maximum of three months.

In addition, the provisions have created intra-state disparity between Commonwealth and State prisoners in jurisdictions where there are no state remissions. This is contrary to Commonwealth sentencing policy which promotes the maintenance of intra-state parity of sentences.

There has been considerable judicial consideration and criticism of the application of 16G and 19AG on the grounds outlined above, and it is undesirable that the maximum prison terms which appear on the statute books are discounted in this way. Given the abolition of remissions in most jurisdictions, and their limited application in Tasmania at the present time, it is appropriate that sections 16G and 19AG now be repealed." 66 Although there is a confusion about the distinction between the length of a sentence and the period of punishment resulting from the sentence evident in this explanation, it is clear that the Government was concerned about two consequences it perceived as arising from the continued operation of s 16G and that advocated for its repeal: it led to a reduction in the effectiveness of the maximum sentence prescribed by the statute, and it created an unacceptable disparity between the sentences to be served by State offenders and Federal offenders in the same jurisdiction. It is clear, in my view, that the Government had reached the conclusion that it was no longer appropriate that sentences of imprisonment for Federal offenders should be discounted in the way that s 16G both authorised and required. It was not only foreseen that the repeal of the provision would have the effect of increasing the length of sentences imposed upon Federal offenders in those jurisdiction where it had operated, but that was the desired consequence. 67 The argument that there is no reason for sentences to be increased in order to make them more effective as forms of punishment by way of deterrence and denunciation does not avail the applicant. As I have already noted, any increase in sentences consequent upon the repeal of s 16G is not a result of the courts voluntarily exercising a choice to increase sentences, but rather a result of the fact that the courts no longer have the power or authority to continue discounting them. The resulting increase in the sentences for Federal offender that must, in my view, inevitably follow the repeal of s 16G is not a result of an intention on the part of the courts or the Government to make the punishment for Federal offences more effective. It is the result of a different objective being pursued by the Government, that being disclosed in the Memorandum. 68 It follows that in my opinion there is no substance in the submission that the sentence was manifestly excessive in that it fell outside the range of sentences established for the offence for which the applicant was being sentenced. Nor should the sentence be considered as manifestly excessive because it would result in the applicant spending longer in prison than other Federal offenders who were sentenced before the repeal of s 16G for comparable offences. 69 It was also submitted that the sentence is unfair in that the applicant is being sentenced under a new sentencing regime or practice and that it should not have retrospective effect. It is open to some argument whether the repeal of s16G does create a new sentencing regime or practice such that the principles considered in cases such as R v MJR (2002) 54 NSWLR 368 apply. But in any event, Parliament declared that the repeal of the sections is to take effect on a certain date and is to apply to all sentences imposed upon Federal offenders after that date regardless of when the offence was committed. It is not open, in my view, for a court to act in opposition to the will of Parliament and determine for itself when, and in what circumstances, the repeal of s 16G should take effect. 70 Once again, the argument that the court should sentence an offender by applying the s 16G discount, either directly or indirectly, notwithstanding its repeal overlooks the fact that the court lacks the power to do so. I do not understand how a court can proceed to reduce a sentence for a purpose that is unauthorised by statute, even disregarding the fact that the authority to do so has been expressly withdrawn by Parliament. 71 Insofar as the applicant contends that there is no warrant to increase the current range simply by applying some mathematical formula, I agree with that proposition. I also accept that the proper approach to sentencing a Federal offender is to determine the appropriate sentence without taking into account that s 16G once existed and has now been repealed. But I cannot agree with the submission that, before imposing a sentence, the court should have regard to the range of sentences that was established when s 16G applied and adjust a term of imprisonment, determined without consideration of that range, to conform with it. To do so would be to thwart the obvious intention of Parliament and, in effect, to preserve the operation of s 16G. If regard is to be had to the range of sentences established under the operation of s16G for any legitimate purpose, the sentencer must take into account that the level of the range of sentences is due to the operation of a provision, no longer existing, that reduced the otherwise appropriate sentences by approximately a third. To use that range for the purpose of determining whether a particular sentence is an appropriate one, without taking that fact into account, would be to err in the exercise of the sentencing discretion. 72 In my opinion the sentencing judge did not err in stating that she was sentencing the applicant "without regard to the sentencing practice which operated prior to 16 January 2003, the date of the repeal", if by that statement she meant that she was not taking into account that, before that date, sentences were reduced by the operation of s 16G. To the contrary, she would have erred had had she done otherwise. 73 The sentence imposed in the present case was one of imprisonment for 12 years as against a maximum penalty of life imprisonment. The applicant was to be sentenced on the basis that he imported six times the commercial quantity of MDMA into Australia for profit to himself. Although the quantity of drug may not be decisive in the determination of the appropriate sentence, it is a highly relevant matter, if for only the reason that it reveals the potential danger to the community posed by the conduct of the offender. Parliament itself recognises the significance of the quantity of the drug and its nature in the structure of offences. 74 The applicant was a not unintelligent man who clearly understood the significance of his conduct and the risks involved. Although he may not have been a principal in the organisation behind the importation, he was not simply a "mule" courier; a person bringing drugs into the country without any real understanding or conception of the criminality of his actions or the potential consequences if he were arrested. 75 There was little by way of subjective circumstances that could assist the applicant. He had a previous criminal offence, although not involving drugs. As her Honour appreciated, the fact that he was a person who would find it difficult in custody simply because he was a foreigner, without friends and family, and with little knowledge of English could not be a matter to which great weight could be attached in the circumstances. 76 Her Honour did not indicate what discount she applied by reason of his early plea, remorse, and limited assistance to authorities. Her Honour regarded his prospects for rehabilitation as reasonable, but that finding must be seen in the light of the fact that he was involved in a serious criminal venture for commercial gain. His expressed reasons for committing the offence were inconsistent and unsatisfactory. There was nothing that suggested that his criminal activity was a result of some aspect of his life, personality or intellectual abilities that could be addressed by intervention of some kind while in custody. He expressed the intention of returning to Russia on his release. In those circumstances a non-parole period of 7 years was lenient. 77 I am persuaded that, taking into account all relevant considerations under s 16A and s 16B of the Crimes Act, and in particular the plea of guilty and his assistance, such as it was, that the sentence is manifestly excessive. In many cases this Court will arrive at such a conclusion by determining the starting sentence that must have been chosen by the judge before the appropriate discounts were applied. That is, in my respectful view, a course that often requires the Court to make assumptions about how the sentencing judge proceeded to determine the sentence that might be unfounded. I am prepared to content myself with an assessment of the objective seriousness of the offence, the subjective circumstances of the offender and the maximum penalty for the offence. 78 On the basis that it might have been necessary for this Court to resentence the applicant, an affidavit by him was tendered. It informs the Court of what the applicant has been doing while serving his sentence and his present attitude to his offending. I do not believe that it reveals any matter that should impact upon the sentence that I believe was the appropriate one to have been imposed by Judge Hock. 79 In my opinion the sentence is excessive and one of 10 years and 6 months should be imposed. However, the non-parole period of 7 years is appropriate, and I do not believe that any lesser minimum period of custody is warranted or justified by the evidence before her Honour or the material contained in the affidavit. 80 In so far as the applicant sought to rely upon the decision in R v Speer [2004] NSWSC 115, I have had the advantage of reading in draft the judgment of Grove J and agree with what the Presiding Judge has written. 81 I propose the application for leave be granted and the appeal be allowed. I would quash the sentence imposed and substitute a sentence of 10 years and 6 months to date from 5 June 2002. The non-parole period determined by her Honour should remain. 82 NEWMAN AJ: I agree with the judgment and orders proposed by Howie J. **********

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