Wong and Leung and the repeal of s 16G and s 19AG
65 Notwithstanding the criticisms which were expressed by the High Court in Wong v The Queen (2001) 207 CLR 584 concerning the extent of the emphasis that had been given in the guideline to the weight of the narcotic involved, and concerning the need for greater attention to be given to the role played by the offender, the range of sentences which were suggested by the Court of Criminal Appeal continued to be regarded as providing a useful guide before the repeal of ss 16G and s 19AG (which had made similar provisions in relation to non-parole periods: see for example R v Taru [2002] NSWCCA 391; R v Marchando [2003] NSWCCA 71 and R v Cerullo [2003] NSWCCA 201.
66 Guideline decisions have occupied an important role, in this State in establishing general sentencing patterns which have emerged for offences of the kind to which they relate, and the decision in Wong and Leung is no exception. However, such judgments have never been intended to operate as straight jackets. Their role is to provide indicators of sentences that have been found to be appropriate, in the general run of cases, to which they are directed. They are, accordingly, expected to be taken into account, by sentencing judges although without excluding the important discretion to take into consideration the differences, objectively and subjectively, which exist in the individual case before the court: R v Karacic [2001] NSWCCA 12 and R v Whyte [2002] NSWCCA 343.
67 They are sounding boards which provide an important final check once proper consideration is given to the objective and subjective circumstances, and to the need to ensure that the sentence meets the various requirements of punishment, retribution and deterrence. As such they also provide a useful reference point for this Court when it is asked to review a sentence for manifest leniency or inadequacy.
68 Attention has recently been given to the consequences of the repeal of s16G of the Crimes Act in relation to the pattern of sentencing which had been developed during its currency, both before and after the decision in Wong and Leung.
69 As was observed by this Court in R v El Kaharni (1990) 51 A Crim R 123 at 136-137, that section required the court to adjust the sentence so as to take into account the absence of any remission or reduction. It was recognised throughout Australia, at the time of its enactment, that the reduction of custodial sentences for remissions was about one-third of the sentence. This was regarded "as an appropriate starting point" for an application of the section, although without specifying such a ratio in any fixed or arbitrary way.
70 In subsequent decisions it became the practice to make an adjustment in the order of that referred to in El Kaharni as "an appropriate starting point". It was also recognised that, in an appropriate case, for example one involving particularly serious criminality, the discount might be moderated: R v Chan (2002) 128 A Crim R 119.
71 While in each of the three cases before the Court, the offence had been committed before the date of the repeal of s 16G, the pleas were not entered until after that date, so that the decisions in R v Speer [2004] NSWCCA 118 and R v Schofield [2003] NSWCCA 3, as well as that in Radenkovic v The Queen (1990) 170 CLR 623 were distinguishable. They were decisions where, in the exercise of the Court's general sentencing discretion, it was held that, as a matter of fairness, sentences should be imposed that were no more harsh than those that would have been passed had the section still been in force.
72 It is implicit in these decisions, and it was accepted in R v Studenikin [2004] NSWCCA 164 and in R v Kevenaar [2004] NSWCCA 210, that the repeal of s 16G, at least in cases where there was a plea or conviction recorded after 16 January 2003, will normally lead to the imposition of a heavier sentence than that discernible in the pre-repeal pattern of sentencing.
73 Howie J, with whose reasons Grove J and Newman AJ agreed, observed in Studenikin said:
"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."
74 An argument was advanced in Studenikin that the repeal of the section should not have any significant effect upon the established range of sentences, since there was no apparent intention, expressed in the amending legislation (s 4 Crimes Legislation Amendment (People Smuggling, Firearms and Trafficking and Other Measures) Act 2002), that sentences for federal offences should increase.
75 His Honour identified the error in this argument in the following passages of his judgment, which in my respectful opinion, are clearly correct:
"62 … 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.
…
66 …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."
76 After repeating (at para 70) that a court cannot reduce a sentence for a purpose that is unauthorised by statute, his Honour continued in a passage which is critical for this appeal, and with which I express my full agreement:
"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."
77 Earlier in his reasons Howie J had made the following pertinent observations in relation to the sentencing discretion:
"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."
78 The consequences of the repeal of s 16G also arose for consideration in R v Kevenaar [2004] NSWCCA 210, a case in which, after citing Studenikin, Hulme J said, with the concurrence of Simpson and Howie JJ:
"46 … the pattern of sentences imposed after the repeal of s16G can be expected to accord with the pattern in earlier cases of the periods determined by the application of normal sentencing principles and the (other) relevant provisions of the Crimes Act prior to the application of the s16G discount rather than in the pattern of the length of the sentences ultimately imposed in the earlier cases. Those pre-discount periods are commonly to be found expressly stated in those cases.