The Repeal of s 16G of the Crimes Act 1914 (Cth)
13 On 19 December 2002, assent was given to the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth). That Act provided, inter alia, for the removal of s 16G from the Crimes Act 1914 (Cth), with effect from 16 January 2003. That section had required a discount to be given in the case of offenders sentenced for Federal offences in States and Territories which did not have a system for remissions. The present offence took place well after the repeal of s 16G took effect, and the section, accordingly, had no application.
14 At the time of sentencing consideration had not been given, at an appellate level, to the consequences of the repeal of s 16G for the future sentencing of Federal offenders. All that his Honour said in relation to this aspect of the case was:
"I take into account that s 16G of the Crimes Act 1914 has now been repealed and that at least on one view of it the effect of the repeal of that section means that, if anything, sentences should be increased in relation to such offences by comparison to sentences imposed before the repeal in January 2003 of s 16G."
15 Earlier his Honour had stated:
"In terms of the applicable sentencing range, I have had regard to the comments and observations of the New South Wales Court of Criminal Appeal in the case of Queen v Wong and Leung 1999 108 ACR 531 at 556. In particular, I have also considered three authorities helpfully provided by the Crown on sentence, namely Prisoner's Appeals in the cases of Queen v Nguyen CCA unreported 6 October 1994 and Queen v Koglbauer reported 1992 65 ACR 357. In addition I have taken into account, and found helpful to a degree, sentencing statistics kept by the New South Wales Judicial Commission in more than eighty cases involving the importation of the trafficable quantity of heroin. I am aware that no case is identical and one has to be careful of sentencing statistics. I have, nevertheless, found them to be of some assistance in this case."
16 It is clear from those passages that his Honour was aware of the repeal of s 16G and that he had given consideration to the pre-repeal sentencing pattern, and to three decisions which formed part of the range from which the Judicial Commission statistics were compiled.
17 A number of decisions have now been delivered by this Court concerning the way in which the repeal of s 16G should be taken into account, namely R v Studenikin [2004] NSWCCA 164, R v Kevenaar [2004] NSWCCA 210, R v Dujeu [2004] NSWCCA 237, R v Quoc Phang Dang [2004] NSWCCA 265, R v Van Ich Dang [2004] NSWCCA 269 and most recently R v Mas Rivadavia [2004] NSWCCA 284.
18 The effect of the decisions in Studenikin, Dujeu and Mas Rivadavia is that while the repeal of s 16G is likely to result in an increase in the current and future sentencing pattern over that which is to be discerned by reference to the pre-repeal cases, which had been the subject of a s 16G discount, the proper approach is to set a sentence that meets the requirements of s 16A(1) of the Crimes Act 1914, and the relevant objectives of sentencing, without giving a s 16G discount.
19 Moreover, they establish that it would be inappropriate to approach the sentencing exercise upon a broad arithmetic approach that would require the pre-repeal sentencing range (which may have been influenced by sentences imposed following reliance upon the guideline in Regina v Wong and Leung (1999) 48 NSWLR 340 before the successful appeal from that decision (Wong v The Queen (2001) 207 CLR 584), to be adjusted by some bare arithmetic formula, let alone one that would call for its increase by the factor of 50%, in order to restore an equivalence with the pre-repeal range.
20 I am not persuaded that Kevenaar or either of the Dang decisions should be understood as suggesting that there should be an automatic adjustment in the order of 50%, since to do so would be to resort to the mathematical approach which was accepted, in each decision, to be inappropriate. In this regard it needs to be born in mind that the guideline judgment reflected a range, and acknowledged that, in appropriate cases, there could be a departure above or below it.
21 Judges were not unaware, during the period when s 16G was in force, that it was a somewhat beneficial provision, in that it gave an allowance for remissions which were as yet unearned, compared with the position of State offenders, who needed to earn remissions through good conduct, in those jurisdictions where a remission system existed. That was a matter properly taken into account by Judges and it does not follow that the starting points selected in the pre-repeal cases involving Federal offenders would necessarily have been the same had the section not been in force. So much was recognised by Smart AJ in Dujeu at para 42.
22 What the line of authority mentioned does establish, in my view, is that care needs to be taken when reference is made to individual pre-repeal decisions, or to the pre-repeal range which is disclosed in the sentencing statistics. This follows from the circumstance that those earlier sentences, and the guidelines which were proposed in Wong and Leung, were predicated respectively upon the basis that by reason of s 16G there had been, or would be, a discount of the kind referred to in R v El Karhani (1990) 51 A Crim R 123, as being necessary for sentences passed in those States which lacked a remissions system.
23 That discount, as the decision in El-Karhani and subsequent decisions made clear, was never regarded as involving a fixed or arbitrary ratio. Rather, it was considered to be an appropriate reference or starting point, it still being necessary to pass a sentence that properly took into account the prescribed maximum penalty, the gravity of the offence, and the objective and subjective considerations relevant to the particular offender.
24 What is now required by s 16A(1) of the Crimes Act 1914 is that a sentence be imposed that "is of a severity appropriate in all of the circumstances of the case", including those that are identified in s 16A(2) and (3). The approach required by this section does not materially differ from that held to be appropriate in R v Maclay (1990) 19 NSWLR 112, in the context of the introduction into New South Wales of the former Sentencing Act 1989.
25 The Crown submission that error was demonstrated, in so far as his Honour had not unequivocally accepted that there now needed to be a significant increase in the pre-repeal range, accordingly involves something of an overstatement. As the decisions cited do suggest, it is likely that there will be some increase in sentences but the extent of the increase will only become apparent as further sentences are imposed that are free of the s 16G constraint.