Regina v Karacic [2001] NSWCCA 12 | Case summary

The applicant be resentenced; that he be sentenced to a term of imprisonment of eight years dating from 31 March 2000 and a non parole period of five years to be set. The prisoner will be eligible for release on parole on 30 March 2005. 40 SPIGELMAN CJ: I agree with the orders proposed by Whealy J and with his Honour's reasons. I wish to add a few brief observations of my own. 41 The circumstance justifying intervention with the sentence, identified by his Honour, is the fact that the sentencing judge had before him an erroneous criminal history, which suggested that the appellant had served a term of imprisonment for an unconnected and non drug related offence in 1992. 42 It is frequently the case that trial judges impose on a young person who is showing indications of going off the rails, a short term of imprisonment in order to give that person a short sharp shock. That kind of sentencing practice would have been well-known to a judge of the experience of Kinchington DCJ. The short period of imprisonment of three months may have appeared to his Honour to have been of that character and that it did not work. Accordingly, when it came to the issue of personal deterrence, when determining the appropriate sentence for the offences for which his Honour came to sentence the appellant, his Honour may have considered that a greater than otherwise appropriate sentence was appropriate because of the fact that a prior period of incarceration had not taught the appellant a lesson. 43 As is now clearly known to be the case, there was no such period of imprisonment by reason of a successful appeal. For that reason I agree with Whealy J that the sentencing process miscarried and it is appropriate for this Court to intervene. 44 His Honour made reference in his judgment to the fact that the Appellant was not entitled to any discount for assistance. I myself would say that such limited assistance as the Appellant gave in the delivery of the vehicle to a point, said by the Appellant to be the delivery point, was entitled to be taken into consideration. I would not discount it entirely, but he was not entitled to any substantial discount. It was not of a character that is appropriate to quantify. 45 In this area of sentencing it is now reasonably clear that the giving of assistance to the authorities is a major consideration differentiating cases. This is clear from the significance attached to those cases in which assistance was given in the schedules appended to my judgment in R v Wong and Leung [1999] 48 NSWLR 340 at pages 373 to 378. 46 Furthermore, I wish to associate myself with some remarks of the learned President of the Court of Appeal of the Supreme Court of Victoria in the case of R v Ngui and Tiong [2000] 111 A Crim R 593 where Winneke P said at paragraph 13: "Insofar as the authorities suggest that it is the level and quality of the co-operation and assistance given by a 'bare courier', rather than his plea of guilty or lack of prior convictions, which will predominantly influence the level of the sentence imposed, then I agree with them. Such couriers are almost entirely chosen from the ranks of those who have no prior convictions because, if it were otherwise, the chances of apprehension would be increased. Furthermore, if the courier is intercepted in the possession of drugs, it is almost inevitable that he will plead guilty. Thus, for the purposes of sentencing, it will be the level and quality of the co-operation which is given by the courier which will largely govern his prospects rather than his antecedents and the nature of his plea. This is not to say that a plea of guilty by a courier of prohibited imports, and his status as a first offender, will, in the absence of co-operation, carry no weight in the sentencing process." 47 This passage requires some adaptation to the circumstances of this case for, as Whealy J points out, the level of involvement went beyond that of a courier. Nevertheless, whilst it may have been higher up in the appropriate hierarchy of the criminal enterprise, similar reasoning to that of Winneke P in Ngui and Tiong applies in circumstances where the involvement of the person in association with the drugs is such that a plea of guilty is almost inevitable, as it was in this case. 48 Whealy J has also referred to the decision in Wong and Leung, in terms of the guideline. As his Honour has indicated, the guideline is not binding in any formal sense. I would accept what Winneke P said in Ngui and Tiong that a guideline of this character, based as it is on prior decisions of the courts, has the following utility as expressed by Winneke P at paragraph 13: " ... the utility of the relevant guidelines expressed in Wong and Leung will be as a 'sounding board' or a 'check' against the exercise of the sentencing judge's discretion. In truth they cannot be anything more because they do not assume to take into account many factors which, in the individual case, will bear upon the level of the appropriate sentence to be imposed." 49 The schedules annexed to the judgment in Wong and Leung, on which a guideline for a mid level trafficable quantity of six to nine years was identified, show a distinct concentration of head sentences in this range. The range reflected all of the relevant considerations that go into the exercise of the sentencing discretion including variations within the range of 200 grams to one kilogram in the quantity but also other factors such as pleas of guilty and the like, with separate consideration being given to the very significant factor of assistance to the authorities. 50 Accordingly, the guideline makes no assumption one way or the other about such matters as whether there was a plea of guilty, as Callaway JA correctly stated in Ngui and Tiong supra at paragraph 17. 51 There may be some infelicity of expression in paragraphs 140 and 141 of my judgment in Wong insofar as I refer to the proposition that the various factors are, "intended to be encompassed by the range" of the guideline. All I meant to suggest by that was that such factors had in fact been taken into consideration by the various judgments set out in the schedule which indicated that a range of that character had encompassed most of the cases that appeared to have been decided by the courts prior to Wong. 52 Similarly, in paragraph 141 I made express reference to the fact that sentences outside the range would be appropriate where circumstances could be identified. I mentioned, some of those factors in paragraph 141, indicating that it was not intended to be an exhaustive statement of those factors. Nothing in paragraphs 140 and 141 was intended to qualify the proposition stated earlier in Wong itself, and other guideline judgments of this Court, that the guidelines were intended to be indicative only. Nevertheless they are appropriate indicators or, to use the words of Winneke P again, a "sounding board" or a "check", so that in circumstances such as the present, the Court does not fail to consider the level of sentences that have been found to be appropriate in the general run of similar cases, whilst taking into account the differences between the circumstances of the individual case and those of previous cases. 53 For the reasons advanced by Whealy J, I agree that the use of the guideline in that limited way, as adjusted by the circumstances of the case, leads to the sentence that his Honour has identified to be appropriate. 54 GROVE J: I agree with the judgment of Whealy J and also with the additional remarks of the Chief Justice and therefore the orders proposed. 55 SPIGELMAN CJ: The orders of the Court are as indicated by Whealy J. 56 SUTHERLAND: Your Honour the Chief Justice, could I remind the court of the provisions of section 16F and if I might if it is of any passing assistance to your Honour just pass up the observations of Justice Wood which may be of some general assistance. 16F requires some words I think. 57 SPIGELMAN CJ: Mr Karacic, could you rise? You have heard the judgments of Justice Whealy J and my own judgment? 58 APPELLANT: Yes. 59 SPIGELMAN CJ: And you understand that the service of the sentence will entail a period of imprisonment of not less than the non parole period of five years and that if a parole order is made, a period of service in the community called the parole period will be required in order for you to complete the service of the sentence. Do you understand what I have said to you? 60 APPELLANT: Yes. 61 SPIGELMAN CJ: And a parole order could be subject to conditions and that it can be amended or revoked and that there may be significant consequences if you fail to fulfil the conditions imposed upon the parole order. 62 APPELLANT: Yes certainly. 63 SPIGELMAN CJ: Do you understand that? 64 APPELLANT: I do. 65 WHEALY J: May I also add that in proposing the sentence that I have given, I have taken into account the matters referred to in s 16A of the Crimes Act 1914 and the fact that any custodial sentence imposed upon the applicant is to be served without any remissions in this State.

Regina v Karacic

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