Regina v J & H

Regina v J & H - [2005] NSWCCA 1 - NSWCCA 2005 case summary — Zoe

[27]

The Crown's stance at the sentence hearing 29 At the sentence hearing senior counsel, who was then briefed for the Crown, made a number of submissions that were favourable to the respondents' cases. At H's sentence hearing she submitted: "The only matter really that I wish further to address your Honour is the question of section 16G of the Crimes Act , a provision which was subject to repeal and indeed has ceased be operational (sic), as and from 16 January 2003. We ask your Honour however to give H the benefit of a notional operation of 16G." (T 21/05/04 18.13-14) 30 In the context of an exchange between counsel for the Crown and the Judge concerning the effect of the repeal of s 16G counsel for the Crown put this submission: "We submit that the principle as an overriding principle of fairness ought dictate at least this in end result, that by reason of the change in the law this man (H) ought not to do more in real time than that which the principal served, that is the principal in the enterprise, X, and not withstanding the fact that of course X's sentence was discounted because of assistance." (T 21/05/04 19.14-20) 31 The Judge rejected the submission that he might take into account in the exercise of discretion that the respondent in each case had lost the benefit of s 16G. He considered an appropriate starting point for the sentence to be imposed on J to be eleven years. In the case of H his Honour considered the appropriate starting point to be eight and a half years. From these starting points he deducted eighteen months in each case in recognition of the respondent's contrition and willingness to facilitate the course of justice by his plea of guilty. The sentences were in each case backdated to give credit for periods of pre-sentence custody. Each sentence was backdated by six and a half months in addition to the pre-sentence custody. This represented an allowance in recognition that each respondent had been the subject of onerous bail conditions for a period of thirty-seven months. J's sentence was reduced by two years in recognition of the assistance that he had provided to the authorities. J's case on sentence

[28]

32 The Judge noted that at the date of sentence J was almost sixty-three years of age. He had been in conflict with the law since his youth. He had a number of convictions for offences of dishonesty, many of which could be described as petty. In 1968 he had been sentenced to a term of seven years' imprisonment following his conviction for two counts of burglary. On appeal the sentence had been reduced to six years' imprisonment. Thereafter he had been convicted of the conspiracy to import offence and sentenced to the twenty-five year term. 33 The evidence of J's assistance to the authorities was contained in Ex "F". It disclosed that after entering his plea of guilty, J had provided valuable information to a law enforcement agency in relation to two discrete areas of interest unconnected to the present offence. In one area of significant public interest, the intelligence provided by J was described as being very valuable. 34 Reports from two psychiatrists were tendered in J's case. Both doctors assessed J as suffering from a major depressive disorder. His treating psychiatrist said that J exhibited some signs of post-traumatic stress symptoms. These were said to relate, among other things, to his lengthy incarceration in maximum security during his earlier sentence. He was said to have witnessed a great deal of violence. His treating psychiatrist considered J to be psychologically quite vulnerable in a correctional environment. 35 A psychologist, Mr Watson-Munro, expressed the opinion that J had been severely institutionalised as the result of his lengthy imprisonment. He observed that J had been released without the benefit of supervision to assist with his reintegration into the community. 36 J was diagnosed in 1997 with prostate cancer. He has suffered from high blood pressure for many years. 37 J's partner, a senior employee with a government department, gave oral evidence on his behalf. They had met while J was in custody and formed a relationship following his release. She said that J had found the adjustment to life outside prison difficult and that this had imposed strains on their relationship. He had been at ease with an old associate such as Y. After J was released on bail in December 2002 he was "a different person" to the person who had been sentenced in November 2001. She believed that he had abandoned his old contacts. He appeared to have developed greater insight than in the past and, in her view, he now wanted to be a decent citizen. The Judge was impressed by this witness.

[34]

48 I do not consider that the imposition of sentences on J and H approaching the magnitude of that imposed on X are to be seen as anomalous. In Postiglione v R (1997) 189 CLR 295 Dawson and Gaudron JJ observed: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them: see Lowe v R (1984) 154 CLR 606 at 610-11 per Mason J. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated." X was a person without relevant criminal history. His sentence was discounted by operation of s 16G. He then received a discount of 15% for his plea of guilty. The sentence was then reduced by a further 50% in recognition of assistance to the authorities that had led to the conviction of five members of the syndicate. It is to be borne in mind that circumstances personal to X produced a sentence of 12 years from a starting point of some 42 years. 49 Counsel for both J and H submitted that the range proposed by Hulme J in Kevenaar needed to be approached with caution. His Honour considered that a necessary and logical consequence of the repeal of s 16G on the length of sentences of imprisonment for offences to which the section had previously applied would be an increase by a factor of approximately fifty percent: at [48]. This is not a view that has been adopted in subsequent decisions of this Court: R v Dujeu [2004] NSWCCA 237; 146 A Crim R 121; R v Dang [2004] NSWCCA 269; R v Mas Rivadavia [2004] NSWCCA 284; and R v Bezan [2004] NSWCCA 342. Counsel submitted that the approach to be preferred is that explained by Wood CJ at CL in Bezan at [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."

[48]

67 Taking into account the considerations to which s 16A of the Crimes Act 1914 directs attention (and to which I have referred in setting out the evidence that was before the Judge together with the additional evidence that was admitted on the appeal) I propose that J be re-sentenced to a term of imprisonment of nine years and six months to date from 10 July 2002. Generally in the sentencing of offenders for Commonwealth offences the non-parole period is fixed within the range sixty percent to sixty-six percent of the sentence. The Judge referred to this range and then determined, in light of the evidence of J's rehabilitation, to fix a non-parole period that was fifty-three percent of the sentence. I do not consider that there are circumstances that make it appropriate to depart from the conventional range. I propose a non-parole period of five years and nine months. The sentence will expire on 9 January 2012. The first date on which J will be eligible for consideration of release on parole is 9 April 2008. 68 The role played by H was somewhat less than that played by J. H had been at liberty in the community for a lengthy period during which he had not re-offended. H is entitled to a discount in recognition of his willingness to facilitate the course of justice by his plea of guilty on the day fixed for his trial. The Judge allowed a discount of approximately eighteen percent on this account. Given the timing of the plea this was a generous discount. The evidence disclosed that H entered his plea first on the date fixed for trial and that J entered his plea thereafter. I propose to allow the same discount as that allowed by the Judge. Again, taking into account the considerations to which s 16A of the Crimes Act directs attention I propose that H be sentenced to a term of imprisonment of nine years to date from 11 August 2002. The Judge specified a non-parole period of the order of fifty-three percent of the sentence. I do not consider that the circumstances of H's case justify a departure from the usual range. I propose a non-parole period of five years and three months. The sentence will expire on 10 August 2011. The first date on which H will be eligible for consideration of release on parole is 10 November 2007. ORDERS

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