Regina v PHA

Resentencing Salcedo 23 The statement of facts presented to the sentencing judge on 1 April 2003 by the Commonwealth Director of Public Prosecutions (the "Commonwealth DPP") alleged that the amount of pure ecstasy the subject of the charge against Salcedo was 339.7 grams. That was the total net amount of pure ecstasy contained in the tablets the two offenders had imported between them. The Crown relied upon the total weight of the pure ecstasy on the basis the two offenders had been involved in a joint criminal enterprise to import the tablets. Salcedo's legal representatives did not contest that proposition. 24 After Salcedo had been sentenced on 1 April 2003, the Commonwealth DPP applied to have the matter relisted before the sentencing judge. This was because the Commonwealth DPP had apparently formed the view that the Criminal Code Act 1995 (Cth) did not allow for the application of the doctrine of joint criminal enterprise. When the matter was relisted the Commonwealth DPP submitted that Salcedo should be resentenced on the basis that he had imported only the quantity of pure ecstasy in the tablets strapped to his body, namely 169.9 grams. 25 Christie DCJ accepted the Commonwealth DPP's submission that he should resentence Salcedo for importing the smaller amount of ecstasy. He reviewed the remarks he had made in sentencing Salcedo for the first time. In considering what Salcedo's revised sentence should be, his Honour said: "I considered it at some length because I am concerned and I was concerned a little time after I passed sentence upon Mr Salcedo, that he received the benefit of a - quite frankly - a significantly lighter sentence than some members of the community might think appropriate. But that is water under the bridge - I am more firmly of that view now than I ever was - but it is water under the bridge. I did say at that time that having done what I did, I do not believe there is anything else I can do for the prisoner unless I passed a sentence that would not reflect the gravity of the particular offence. So I ask myself if he was sentenced on that basis whether there is any room to interfere with Mr Salcedo's sentence, bearing in mind that I hold the view that the sentence he received could be considered in some sections of the community, as over lenient in any event. I have convinced myself again, with some significant reservation, that it is possible that Mr Salcedo might justifiably entertain a genuine sense of grievance if in fact his sentence was not at least marginally ameliorated by reason of the fact that he had been sentenced on the basis of a joint importation with Mr PHA, at least having regard to the quantity that he brought here. I feel that I, in ameliorating a sentence - and I shall only do it quite marginally - but in ameliorating his sentence, I am fast approaching a stage where the sentence may not sufficiently reflect the objective criminality that the offence disclosed. Nevertheless, the previous sentence was 6 years from 21 September 2002 to 20 September 2008, with a non-parole period of 4 years from 21 September 2002 to 20 September 2006. A parole period of 2 years from 21 September 2006 to 20 September 2008. So that if I am to adjust it for half of the quantity imported, that is half of the quantity that I earlier quoted from my remarks on 1 April, which can be found at page 2 of those remarks, I feel that there would be some justification for moderately adjusting the sentence, having regard to the fact that the volume imported is a relevant factor. Not the only factor of course, but it is a factor. Now the Crown having abandoned that principle of common purpose as I say, in terms of this sentencing procedure for very good reason and indeed one of my brother judges so decided some time ago and nobody contests that that is the correct approach, I propose to reduce the prisoner Salcedo's sentence by 3 months." 26 He than resentenced Salcedo to 5 years and 9 months from 21 September 2002 to 20 June 2008. He reduced his non-parole period by 3 months to 3 years and 9 months from 21 September 2002 to 20 June 2006.

Remarks on the applicant's sentence 27 The applicant was sentenced on the same day the sentencing judge resentenced Salcedo. The sentencing judge "notionally included" his remarks on Salcedo's sentence in his sentencing remarks in relation to the applicant, no doubt in recognition of the parity principle - that having been the principal issue debated before him. 28 The sentencing judge noted that the applicant entered a plea of guilty to both charges at the earliest opportunity. 29 He concluded that he should proceed to sentence the applicant on the same basis as Salcedo insofar as he considered that the men had only decided to bring back the ecstasy after they arrived in Amsterdam. He also accepted that the applicant was a principal, like Salcedo, and not a courier. 30 In sentencing the applicant, however, the sentencing judge said that he had been in error in finding in connection with Salcedo's sentence that "to a very large degree, this importation was intended to supply [Salcedo] and his co-offender with a source of this drug for his own use". That was because, having read some of the remarks made by the applicant in his record of interview, his Honour concluded that: "… [T]he real motivation for this importation, or the significant portion of the motivation was a quick turnover of money and the consequent profits used to alleviate what [the applicant] perceived to be his pressing indebtedness." 31 Having made what he frankly acknowledged was an error in favour of Salcedo, his Honour determined that he had to perpetuate that error in favour of the applicant "because it would be quite improper of me to take a different view now in sentencing [the applicant]." 32 His Honour also said that, as with Salcedo, he proposed to deal with the matter "as leniently as the circumstances permit, but consistent with one's duty to the community, that this type of offence must in all circumstances be discouraged and penalties passed that are commensurate with the gravity of the crime". He observed that "[t]he objective seriousness of this crime could not be overstated". 33 In dealing with the applicant's subjective circumstances, the sentencing judge noted that he was entitled to significant consideration because of the utilitarian value of his plea of guilty, it having been made at the earliest opportunity and reflecting a "genuine feeling of contrition and remorse". 34 His Honour then turned to consider whether the applicant was entitled to any amelioration of the sentence that had been passed upon Salcedo by reason of two matters. The first was the contents of Ex H which referred to some assistance the applicant had afforded authorities. The sentencing judge concluded that that evidence entitled the applicant to "some marginal consideration" and "affected the sentence to be passed, but not by…a significant degree". The second matter was that it was Salcedo's money, not the applicant's, which had financed the enterprise. 35 The sentencing judge concluded that in terms of the criminality exhibited in relation to the offences, any differentiation between the applicant and Salcedo was "pretty marginal". He accepted that neither man was a commercial drug runner and that neither entered upon the importation of narcotics on a regular basis or moved in "the drug milieu". 36 He accepted that the applicant's offence was completely out of character. He concluded that the applicant's subjective circumstances were "marginally more compelling" than Salcedo's. That was partly because of some material concerning the applicant's wife. He took into account the matters to which s 16A of the Crimes Act 1914 (Cth) required the Court to have regard when passing sentence which, in his view, "marginally favour [the applicant] when compared to Salcedo" as did the contents of Ex H. 37 His Honour then listed a number of documents which had been placed before him, the contents of all of which he said he had taken into consideration in determining the sentence. 38 His Honour then referred to the constraints under which, in his view, he was operating, both by reference to the parity principle as well as the circumstance that he had already had to adjust Salcedo's sentence to a level where it may not sufficiently reflect the objective criminality of the offence. 39 He concluded that he had to make the same adjustment in favour of the applicant as he had made in favour of Salcedo as well as a further marginal adjustment having regard to the matters particularly relevant to the applicant's circumstances. Having referred to those matters, however, his Honour was of the view that he could not make any further adjustment without passing a sentence that would not reflect the gravity of the particular offence and its objective criminality. Indeed, his Honour expressed the view that he thought the sentence he was about to pass probably fell short of the latter requirement but having sentenced Salcedo on that basis, he did not believe there was any other course he could adopt. 40 His Honour then proceeded to impose the sentence I have already set out.

Grounds of Appeal 41 The application relies upon three grounds of appeal:

1. That the sentencing judge erred in determining that the sentence of the co-offender, Jerry Salcedo, to which the sentencing judge had regard in applying the parity principle, should be reduced by three months from six years to five years nine months in order to reflect the change in the particulars of the offence for which he was being sentenced, that change being a reduction in the quantity of the drugs imported from 340 grams to 170 grams of ecstasy.

2. That the sentencing judge erred in determining that the applicant's sentence should be the same as that of his co-offender where the evidence established that Salcedo's role in the overall criminal enterprise was clearly more culpable than that of the applicant.

3. That the sentencing judge erred in determining that the sentence to be imposed on the applicant should only be reduced, by reason of his significant degree of cooperation with and assistance to the authorities, by six months as to the overall sentence, representing a reduction of 8.7%, and by three months as to the non-parole period, representing a reduction of 6.6%.

The applicant's submissions Ground 1 42 The premise upon which the first ground of appeal was based related to the starting point for the application of the parity principle. The applicant submitted that the sentencing judge had been correct in considering that a sentence of six years with a non-parole period of four years was appropriate for Salcedo in relation to the charge relating to 340 grams of ecstasy but that his Honour had erred in reducing that sentence only to five years and nine months in relation to the lesser amount of 169.9 grams of ecstasy. The applicant submitted that the reduction in the pure quantity of drugs imported from 339.7 grams to 169.9 grams was a matter of "real significance" in determining the appropriate penalty. The applicant argued that Wong v R [2001] HCA 64; (2001) 207 CLR 584 demonstrated that quantity was a "very important consideration in drug importation". The applicant submitted that the reduction was insufficiently large, taking into account the "significantly different level of criminality involved".

Ground 2 43 The second ground focussed expressly on the parity principle. In essence the applicant submitted that the sentencing judge erred by treating the two offenders as people who were effectively equivalent. He contended he had been denied an entitlement to be dealt with on sentence more favourably than Salcedo. 44 The applicant submitted that there were a number of matters which should have led the sentencing judge to draw a "real distinction" between the two offenders. He contended that it was apparent that Salcedo was the instigator of the activity in the sense that he invited the applicant to accompany him overseas. He pointed out that Salcedo was slightly older than the applicant although he acknowledged that that was not a matter of great significance. He pointed out that Salcedo had paid for both plane tickets as well as for the drugs that were imported. Thus, in addition to being the instigator, he submitted that Salcedo was the financier. 45 He submitted that the person who paid entirely for the drugs was the person who, in the normal course of events of this kind, would stand to benefit more substantially than the person who paid nothing. 46 In addition to those matters, the applicant submitted that his subjective circumstances entitled him to more favourable consideration than Salcedo. Ground 3 47 The applicant submitted that Ex H disclosed he had given the authorities a very high level of assistance which should have attracted a discount in the order of 50% of his sentence. He submitted that he had legitimate reason to think that the risks he had taken and the dangers to which he had subjected himself and members of his family had not been recognised by the "miniscule reduction" that he had received. He submitted that when the level of assistance he had afforded was rewarded with such a marginal refinement of the overall sentence, no encouragement was given to offenders in the future to cooperate in the manner in which he had. 48 The applicant submitted that the sentencing judge appeared to have concluded he was inhibited from granting any but a marginal reduction in the applicant's sentence because of s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which relates to the power to reduce penalties for assistance provided to law enforcement authorities. He submitted that there was "plenty of scope" for the sentence to have been reduced "significantly further". He referred to R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413 where a person closely involved in the importation of 17.1 kilograms of pure heroin was ultimately sentenced to imprisonment for five and half years with a non-parole period of three years after allowing significant discounts for his assistance to authorities. 49 The applicant submitted that his offence was not as serious as that committed by Bourchas. He argued that the sentencing judge was wrong to say that he had "very little room to move" in adjusting the sentence to be imposed on the applicant to meet the seriousness of the offence he had committed but at the same time by taking into consideration his "very valuable assistance". The Crown's submissions

Ground 1 50 The Crown took issue with the applicant's reliance upon Wong v R, above, to submit that "quantity is a very important consideration in drug importation offences". The Crown drew attention to the passage, in the joint judgment of Gaudron, Gummow and Hayne JJ (at [67] - [70]) where their Honours concluded that to select "weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle". The Crown pointed out that their Honours also emphasised that there would be many cases in which a sentencing judge would be more concerned to identify the level of the offender's criminality by looking to the state of the offender's knowledge about the importation in which he or she was involved. 51 The Crown also referred to submissions made by Mr Byrne SC who appeared on behalf of the applicant before the sentencing judge and in this Court. Mr Byrne SC had said: "… realistically the fact that it's half the quantity is not going to cut the sentence in half, it's going to shave something off to recognise that …". 52 The Crown submitted that in fixing the appropriate sentence the sentencing judge properly had regard to s 16A(1) of the Crimes Act 1914 (Cth) which required him to "impose a sentence … that is of a severity appropriate in all the circumstances of the offence".

Ground 2 53 The Crown again drew attention to submissions made by Mr Byrne SC at the sentencing hearing that the applicant's criminality was "slightly less than that of Mr Salcedo in relation to the charge of importing the ecstasy" and that "the less(er) criminality of this prisoner should be reflected in a marginal reduction from the sentence that was imposed on Mr Salcedo". 54 The Crown submitted, in effect, that in the light of those submissions it was not open to the applicant to assert that the sentencing judge's finding that the difference in culpability between the two offenders was "marginal" could be criticised. 55 The Crown also contended there was no evidence that Salcedo was the instigator. It pointed out that the sentencing judge had proceeded on the basis advanced at the sentencing hearing that both offenders had decided to undertake the importation when they were in Amsterdam. 56 The Crown also challenged the applicant's submission that it was "inevitable" that Mr Salcedo would obtain the largest share of any profit to be gained. The Crown drew attention to the fact that there was no evidence about what was to happen to the profits. During oral submissions it drew attention to the applicant's record of interview, in which he said he was to get half the proceeds of the sale of the ecstasy.

Ground 3 57 The Crown submitted that the assistance demonstrated by Ex H was not such as would attract a discount in the order of 50%. The Crown drew attention to R v Barrientos [1999] NSWCCA 1 at [47] where Abadee J (with whom Sheller JA agreed, as did Hulme J on this point) pointed out that there was no "fixed tariff" for any discount to a sentence in respect of assistance given to authorities and that where it could be concluded that there was "significant assistance", the range in New South Wales was from 20% to 50%. 58 The Crown also referred to R v Gallagher (1991) 23 NSWLR 220 at 232 where Gleeson CJ pointed out that when discounts were provided on sentence for assistance, care should nevertheless be taken to ensure "that the ultimate sentencing result …is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in the light of the considerations of policy which support the principle set out above, it constitutes an affront to community standards". 59 The Crown submitted that even if the sentencing judge made any of the errors relied upon by the applicant the sentences imposed were, nevertheless, such that the Court would not conclude that another, less severe, sentence was warranted. 60 First, the Crown drew attention to the fact that the sentencing judge had made a number of findings which were very favourable to the applicant. These included sentencing the applicant on the basis that he was of prior good character whereas, in fact, the applicant had prior convictions. 61 Secondly, the Crown drew attention to the fact that the sentencing judge allowed the applicant the benefit of his conclusion in the Salcedo matter that the importation was intended to supply the two men with a source of drug for their own use, contrary to his conclusion that the men in fact intended to sell the tablets for profit. 62 Thirdly, the Crown drew attention to the fact that the sentencing judge had imposed a wholly concurrent term of imprisonment for the applicant's importation of steroids. The three packages of steroids which the applicant had sent to Australia using false sender names had an estimated value of $196,000. The Crown noted that the sentencing judge appeared to have accepted the applicant's assertion that the steroids were for his personal use, but pointed out that clinical notes produced on the applicant's behalf indicated that he was receiving one injection of Sustanon 250mg per week and that at that rate, the steroids he imported, at 1 vial per injection, would have lasted him about 9.4 years. 63 Finally, the Crown criticised the applicant's reliance upon R v Bourchas. It drew attention to R v Shepherd [2003] NSWCCA 287; (2003) 142 A Crim R 101 where Howie J (with whom Tobias JA and Shaw J agreed) criticised this practice and observed that at the end of the day each sentence was determined "by the particular facts and circumstances of the matter before the Court when viewed against the legislative regime for sentencing an offence of that type". 64 The Crown drew attention to the range of sentences in respect of ecstasy matters such as that set out by Hulme J in R v Schofield [2003] NSWCCA 3; (2003) 138 A Crim R 19 and submitted that, by comparison with those sentences, the sentence imposed on the applicant for the ecstasy matter was well within the range properly open to the sentencing judge.

Consideration 65 When this matter was first called on, the Court put to Mr Byrne SC that the first ground of appeal amounted to a collateral attack on Salcedo's sentence. Mr Byrne SC accepted that that was so and also informed the Court that Salcedo had lodged an application for leave to appeal against his sentence. While Mr Byrne SC submitted that there were cases where people who were co-offenders had had their appeals dealt with separately, he acknowledged that there were few where the first ground of appeal sought to challenge the sentence of the co-offender as its founding premise. 66 Mr Byrne SC accepted that his starting point had to be to demonstrate that Salcedo's sentence was manifestly excessive, in order, as I understood his submission, to obtain what I might term the flow-on effect which would follow by reason of the parity principle. 67 In such circumstances the Court heard the appeal but determined that it should not dispose of it until Salcedo's appeal had been heard and determined. 68 The Court has now determined that appeal (R v Salcedo [2004] NSWCCA 430) and determined that it should be dismissed. In such circumstances the applicant's first ground of appeal cannot succeed and should be rejected. 69 Turning to ground 2, I would reject the applicant's submission that there was a real distinction between the two offenders. First, having regard to the sentencing judge's finding (which was not challenged) that the idea of purchasing the ecstasy was conceived in Amsterdam, it is of little moment that it was Salcedo who invited the applicant to accompany him overseas. In other words, on the sentencing judge's findings of fact, they departed contemplating a conventional overseas holiday. Furthermore, there did not appear to be any evidence as to who conceived the idea of purchasing the ecstasy once in Amsterdam. 70 Turning to ground 3, it might be noted that the applicant's submission that the sentencing judge had reduced his head sentence by 8.7% and his non-parole period by 6.6% to reflect the assistance he had afforded authorities was based on his counsel's interpretation of the judgment. The sentencing judge did not specify the discount he allowed in this regard, a matter of which the applicant made no complaint. 71 The applicant's submission that his assistance should have been rewarded with a reduction in the order of 50% was, I infer, a reference to the range of 20% to 50% said to be "normally appropriate for assistance": see R v El Hani [2004] NSWCCA 162 at [71] per Howie J (with whom Simpson and Bell JJ agreed). It should be noted, however, that this Court has emphasised that there is no fixed tariff for assistance: see R v Cartwright (1989) 17 NSWLR 243 at 255 per Hunt J and Badgery-Parker J (with whom Mahoney JA generally agreed); R v Gallagher (1991) 23 NSWLR 220 at 234 per Hunt J; R v Chu (New South Wales Court of Criminal Appeal, unreported, 16 October 1998, per Spigelman CJ (with whom McInerney and Sperling JJ agreed)). 72 In such circumstances it was clearly in his Honour's discretion to determine what discount was appropriate having regard to his evaluation of the assistance disclosed by Ex H. It does not appear from his Honour's remarks that his ultimate sentence, and what the applicant suggests was a marginal reduction for the assistance to authorities, was influenced by a concern that a lesser sentence would have failed to have complied with s 23 of the Crimes (Sentencing Procedure) Act 1999 to which he made no express reference and which would have to give way to s 16A of the Crimes Act 1914 (Cth) in any event (although even in Commonwealth offences it may be appropriate to have regard to sentencing criteria State authorities have devised: see R v El Hani [2004] NSWCCA 162 at [60]). 73 If his Honour felt constrained at all that constraint would, in my view, have been the constraint imposed by s 16A and its requirement that he impose a sentence that was of a severity appropriate in all the circumstances of the offence, including the requirement that he ensure that the applicant was adequately punished. These requirements are reflected in R v Gallagher, to which the Crown referred, where it was emphasised that the provision of assistance to authorities should not be permitted to lead to a discounted sentence which did not reflect the objective criminality of the offence. 74 In this case, as I have already noted, the sentencing judge said he proposed to deal with the matter leniently although he also acknowledged the necessity to ensure that the sentence was commensurate with the gravity of the crime. He had made this observation when sentencing Salcedo as well. 75 For my part, his Honour never adequately explained why the offences deserved leniency. In AB v The Queen [1999] HCA 46 at [116]; (1999) 198 CLR 111 at 156, Hayne J said that "leniency may be given to an offender where to do so advances some policy of the criminal law". In this case the applicant was entitled to some leniency because of his plea of guilty and also the assistance he had afforded the authorities. His co-offender, Salcedo, was also entitled to some leniency because of his plea of guilty. However, it appears to me that the sentencing judge was of the view that some additional leniency should be afforded the co-offenders for reasons which he never explained. Apart from the co-offenders' pleas of guilty and the applicant's assistance to the authorities, there was nothing in the nature of the offences to which they pleaded guilty which entitled them to additional leniency. Indeed, to the extent that the sentencing judge indicated that he intended to deal with the offenders leniently, it might be thought that, notwithstanding his reference to the fact that the sentence must be commensurate with the gravity of the crime, his Honour had not adequately addressed the requirement that stern punishment was warranted: Wong v R, above, at [64]. It is apparent that the sentencing judge appreciated that he had fallen into error in the leniency he had extended to Salcedo which he thought bound him by reference to the parity principle, when he lamented the level of his original sentence when resentencing Salcedo. 76 Although it is not apparent what discount the sentencing judge afforded the applicant by reason of the assistance to authorities, it is plain that it could best be described as minimal. That was, in my view, a matter within his Honour's discretion both by reference to his evaluation of the assistance the applicant had afforded the authorities but also by reference to his obligation to ensure that the sentence was of an appropriate severity in all the circumstances. 77 In my view ground 3 should be rejected.

Order 78 I would grant the application for leave to appeal against sentence but dismiss the substantive appeal. 79 LEVINE J: I agree with McColl JA. 80 HIDDEN J: I agree with McColl JA.

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