BATHURST CJ: I have had the advantage of reading the judgment of Wilson J in draft. I agree with the orders proposed by her Honour and, subject to what I have written below, with her Honour's reasons.
Wilson J refers at [44] to the approach taken by the sentencing judge to the sentencing discount to be given for an early plea for a federal offence. That approach is based on the decision of this Court in Tyler v The Queen (2007) 173 A Crim R 458; [2007] NSWCCA 247. The question of whether that approach is correct need not be considered in the present case for two reasons. First, because it was not the subject of any ground of appeal and second, because the effect of the primary judge's adjustment to the head sentence, as described in [70] of the judgment of Wilson J, was to effectively allow a generous discount of 29.5% for the plea of guilty. It could not be said that the applicant would be entitled to any greater discount were it given on the basis of its utilitarian value.
Further, I agree with Wilson J that although error has been established in the present case, no lesser head sentence is warranted in law.
As Wilson J has pointed out, the applicant was sentenced on two charges, the Commonwealth offence carrying a maximum penalty of 25 years imprisonment and the supply offence a maximum of 15 years imprisonment. In addition, two offences of possessing a prohibited drug were before the sentencing court, on a Form 1 document, to be taken into account against the supply offence.
The Commonwealth offence involved some degree of planning, and the imported cocaine was found by the sentencing judge to have a street value in excess of $1 million. The sentencing judge found that the applicant's motive was financial reward and that the Commonwealth offence was a very serious example of an offence of this nature. These findings were not disputed.
In relation to the supply offence, the sentencing judge imposed a fixed term of imprisonment of 12 months taking into account the matters on the Form 1 schedule. Only two months of that sentence was to be served before the sentence for the Commonwealth offence commenced.
In addition, it must be borne in mind that the applicant was on a bond at the time of offending.
Taking all these matters into account along with the generous discount for the plea, notwithstanding the applicant's relatively strong subjective case, it seems to me that no lesser head sentence is warranted than that imposed by the sentencing judge. I agree with Wilson J, however, that the non-parole period should be reduced to a period of five years.
I have also had the benefit of reading the judgment of R A Hulme J in draft. I agree with his Honour's reasons.
R A HULME J: Subject to the following, I agree with the reasons of Wilson J and the orders she proposes. I also agree with the further analysis in the judgment of Bathurst CJ at [2]-[7].
In relation to Ground 1, I am not sure that the sentencing intended his conclusion ("not entitled to any leniency") to relate to the fact that the applicant was on a bond at the time of the offending as opposed to the fact that he had a prior conviction. The full quote from the judgment is as follows:
"The offender has a previous matter on his criminal record where he was convicted of assault occasioning actual bodily harm in 2014 and sentenced to a 24 month good behaviour bond with a fine of $750 and as a result he is not entitled to any leniency on the basis of his record."
It seems to me that his Honour had regard to both the fact of the prior conviction and that the applicant was on a bond as justifying the conclusion that he was not entitled to any leniency. It would have been more conventional to regard the fact that the applicant was on conditional liberty at the time of the offending as a matter of aggravation, but the denial of leniency, in part for this reason, has the same practical effect.
WILSON J: On 15 August 2016 sentence was imposed on Ferenc David Stemler (the applicant) for two drug offences. The offences were attempt to possess a marketable quantity of an unlawfully imported border controlled drug (cocaine) contrary to s 307.6 of the Criminal Code Act 1995 (Cth), and supplying prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), relying on the deeming provision at s 29 of that Act. The former carries a maximum penalty of 25 years imprisonment and / or a fine of $850,000; the latter a maximum of 15 years imprisonment and / or a fine of 2000 penalty units. Two offences of possessing a prohibited drug (cannabis and cocaine respectively) were before the sentencing court on a Form 1 document, to be taken into account against the State offence pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
For the State offence, taking into account the two offences of possession of a prohibited drug, the sentencing judge imposed a term of 12 months imprisonment to date from 2 October 2015. For the Federal offence a term of 11 years imprisonment was imposed, with a non-parole period ("NPP") of 5 years and 9 months fixed, to date from 2 December 2015.
On 19 October 2016 the matter was re-listed before the sentencing judge so that an error in sentence might be corrected. The head sentence of 11 years for the Federal offence, as announced on 15 August 2016, did not include the reduction in sentence that was allowed by the sentencing judge to recognise the early entry of the plea of guilty and resultant benefit to the administration of justice. The head sentence was corrected by his Honour to one of 7 years and 9 months imprisonment. Although the NPP of 5 years and nine months was left unchanged during the proceedings in court, it appears that the sentencing judge subsequently amended it in Chambers, reducing it by 6 months to a term of 5 years and 3 months. That was the NPP as entered on the record of the District Court as the order of the court.
The applicant seeks leave to appeal against the sentence imposed by his Honour Acting Judge Delaney with respect to the Federal offence, raising three proposed grounds of appeal:
1. His Honour erred in concluding that the applicant was entitled to no leniency, as a result of his earlier conviction for an assault;
2. In finding special circumstances relative to the Commonwealth offence, which warranted a reduction in the non-parole period, his Honour erred by adopting a two stage approach to sentencing, which was not permitted by part 1B Crimes Act 1914 (Cth); and
3. In reducing the sentence to reflect the applicant's willingness to facilitate the course of justice as demonstrated by his plea of guilty, his Honour failed to give effect to such finding in the determination of the non-parole period.
[2]
The Crown Case on Sentence
On 5 April 2015 a consignment declared as toner cartridges arrived in Sydney from the United States. Inside the box were four cartridges, with each of the cartridges containing four packages of what was determined to be cocaine, in a total weight of 1985.9 grams. The purity of the substance was later found to be 71.2%, and the weight of pure cocaine 1413.9 grams.
The consignment was intercepted by Border Control officers and, subsequently, the Australian Federal Police ("AFP") began an investigation. The cocaine was removed from the consignment, which was then sent on for delivery to the intended addressee, Daniel Pecenka. An AFP officer posed as an Australia Post delivery driver.
On 15 April 2015 the delivery driver attempted to deliver the package to a residential address in Campsie, but no-one was at home. A delivery advice was left in the mailbox, asking the addressee to telephone a particular number.
Later that day the applicant arrived at the Campsie address and took the delivery notice from the mailbox. He left the address, later stopping at a Telstra public telephone box, where he placed a call to the telephone number on the delivery notice. He was holding the notice in his hand at the time. An AFP officer took the call, announced as originating from a blocked number, and spoke with the applicant, who identified himself as Daniel. An arrangement was made for the delivery of the consignment at 2.30pm that day.
Sometime later the applicant, using a different public telephone, again called the delivery driver, and arranged for the package to be delivered at 3.15pm.
At 2.30pm the applicant arrived at the delivery address in Campsie and waited there in his car. When the delivery driver arrived, he identified himself as Daniel's little brother, and placed a telephone call, purportedly to Daniel, to see when Daniel could arrive at the address.
About a quarter of an hour later Daniel Pecenka arrived at the address and signed for the delivery of the consignment. He showed the delivery driver his NSW Driver's License as proof of identity. When the driver observed that the applicant and Pecenka did not look like brothers, the applicant said they were step-brothers.
After the driver left, the two men pumped their fists into the air in a gesture of success or triumph. The applicant took possession of the package and put it in the boot of his car. He shook hands with Pecenka and drove off. The package was not recovered by investigating police.
Having identified the applicant's mobile telephone service, a warrant was obtained permitting its electronic interception.
On 27 April 2015 AFP officers attended the delivery address and spoke with Daniel Pecencka, who said that he lived at the address with his mother, had not received any packages recently, and knew nothing about drugs.
Minutes after the officers left Pecencka's address, he placed a telephone call to the applicant's mobile service, which went unanswered. Later in the day he sent a text message to the applicant's service, asking him to call "when you can". When the applicant sent a return text stating he was in Queensland and busy, the following messages were exchanged:
Penecka: Oh Shiet, when do you get back to Sydney?
Applicant: Thursday sorry brah trying to sort everything something went wrong and figuring it out
Penecka: O yeah, cause we gotta illch man, gotta talk shit over aye
Applicant: yeah gee.
On 30 June 2015 Pecencka gave a statement as a witness to police, stating he had known the applicant since they were children, and had allowed him to have a package delivered to his home address.
On 2 October 2015 a search warrant was executed on the applicant and his home and car were searched. A number of items were seized, including 5 mobile telephones, 2 SIM cards, electronic scales, and a safe containing small amounts of cocaine and cannabis and some cash. The safe also contained 27.2 grams of methylamphetamine, to which the State charge relates. He was arrested.
When interviewed, the applicant acknowledged a friendship with Pecencka, but denied all knowledge of the importation of drugs through the mail, or of having Pecencka receive a package on his behalf. He was shown photographs of himself using a public telephone box on the day the delivery was made, but said he couldn't remember anything about it.
As the interview progressed the applicant told police that he was asked to pick up a package from Pecenk's house by a person whom he had known for 2 years, and was given a Nokia phone by that person to use for the delivery. The person, whom he would not name, collected the package from the applicant two days after the applicant had collected it from Pecenka's house. The applicant said that he received no reward for his participation in the collection of the package. He claimed not to have opened the package or known what was inside it, although he suspected that the box contained fraudulent car parts. He knew that his involvement was wrong and illegal.
As to the discovery of the items at his home, the applicant asserted that his "mate" paid him $100 per week to store the safe for him, and he was unaware of the contents. At a recent party at his house he thought people had been supplying drugs in his bedroom.
The Crown provided the sentencing judge with a copy of the applicant's criminal history, which recorded one conviction from 2 December 2014 for assault occasioning actual bodily harm, with respect to which the applicant had been placed on a 2 year bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act. The bond was current at the time of the commission of the present offences.
[3]
The Applicant's Case
The applicant gave evidence before the sentencing judge. He was 21 years old at the time of sentence (and 20 when the offences were committed) and supported in court by a number of family members.
Referring to a report from Dr Richard Furst that became Ex. 1 on sentence, the applicant said that he had told Dr Furst the truth about his circumstances. He confirmed the history given to Dr Furst of heavy weekend alcohol use from age 19 years, which gradually led to his use of cannabis, cocaine, and methylamphetamine (or "ice"). He said that he began using drugs at a time when, having failed to gain acceptance to the Australian Army, he was feeling "lost" and depressed.
The applicant, who had been in custody since his arrest on 2 October 2015, said that he had found prison "hard", but that he had stopped using illegal drugs as a consequence of his incarceration.
As to the circumstances of his offending the applicant claimed to have facilitated the collection of the package to clear a debt of $5000 he owed to the unnamed individual, money he had lost gambling. He had been told the package contained car parts, but suspected the contents may have been drugs.
He claimed that the methylamphetamine found by police in the safe in his bedroom had been intended by him for personal use, and future sale to friends and acquaintances. He said he had never used the scales to weigh that drug. His claim to police that a "mate" paid him to keep the safe had simply been an attempt to deflect the police from discovering the contents of the safe. His possession of multiple mobile telephones he explained by saying he kept old phones.
In cross-examination, the applicant conceded that he had used public telephone booths to call the mail delivery driver because it was a safe way to avoid detection by police. He said that he was aware that he was subject to a bond to be of good behaviour at the time.
The report from Dr Furst was prepared on 19 June 2016 after the doctor had interviewed the applicant for about one hour, and had access to the charges and fact sheet. Dr Furst set out the information he obtained from the applicant as to his background and circumstances.
The applicant had been born in Hungary and migrated to Australia with his family at about age 5. His father died when he was 9 years old. Although he was tearful when discussing his father's death with Dr Furst, his memory of his home life with his parents had been of witnessing domestic violence, particularly when his father was drunk.
The applicant attended school until Year 12, and was an average student who had no particular difficulties at school. He played football at under twenties grade level. His ambition had been to join the Army, but his application was rejected, and this left him feeling aimless. He was drinking heavily, and also began to use drugs. The applicant was using illicit drugs daily from 2014, including about a gram of "ice" every day. He also became addicted to gambling on poker machines.
At the time of his arrest, the applicant had been living with his twin brother, his mother, his step-father, and his step-brother in western Sydney.
On examination Dr Furst found the applicant to be a polite young man of at least average intelligence who showed no signs of anxiety, agitation or depression.
On the basis of the history the applicant gave him, Dr Furst opined that he met the diagnostic criteria for Substance Use Disorder and Gambling Disorder. The doctor thought the applicant would benefit from alcohol, drug, and gambling rehabilitation programmes, and regarded him as motivated to participate in such programmes.
Dr Furst noted that the applicant accepted his guilt and regretted his actions.
The applicant's expressions of remorse were also noted by his mother, step-father, and brother, who each provided a written reference for tender to the sentencing court. Friends who had met the applicant through school, a church group, or football, also provided references, emphasising the positive change in the applicant since his arrest, and his remorse for his crimes. A staircase construction company located in Brisbane and associated with the applicant's uncle provided confirmation of a job as a trainee that was open to the applicant upon his release from prison.
[4]
The Conclusions of the Sentencing Judge
After having set out the offences to which the applicant had entered pleas of guilty, and the maximum penalties specified for each, the sentencing judge set out the facts of the applicant's crimes from the Crown's statement of facts (as outlined above), there being no real dispute with those facts.
His Honour referred to the applicant's criminal history, saying,
The offender has a previous matter on his criminal record where he was convicted of assault occasioning actual bodily harm in 2014 and sentenced to a 24 month good behaviour bond with a fine of $750 and as a result he is not entitled to any leniency on the basis of his previous record.
The sentencing judge set out the applicant's personal circumstances, taken from the content of the report of Dr Furst.
His Honour accepted that the applicant was both remorseful and contrite, and concluded that he had some prospects of rehabilitation, the process being already underway. The positive reference from the applicant's uncle's firm was noted, as was the offer of future employment.
His Honour accepted that the failure of the applicant to gain acceptance to the Army had had a "massive effect" on his life.
As to the circumstances of the offending conduct, the sentencing judge observed that the applicant had clearly had prior knowledge of the expected arrival of the package, and had arranged for the delivery driver to deliver it, using public telephones as part of a deliberate strategy to avoid detection. The scale of the attempt to possess the cocaine was significant, the threshold for a marketable quantity of cocaine being 2 grams, whilst the contents of the package fell only just short of the commercial quantity of 2 kilograms, with over 1.4 kilograms of the weight being pure cocaine. His Honour concluded that the applicant's motivation was financial reward.
It was noted that the guilty pleas were entered at the first available opportunity and should be acknowledged by a reduction of the sentence that would otherwise have been imposed of 25% with respect to the State offence. As to the implications of the early plea relevant to the Federal offence, his Honour said,
I am reminded about the basis on which some reduction should be granted for the plea of guilty. Unless it is established on the balance of probability that the plea demonstrates genuine remorse, acceptance of responsibility and / or willingness to facilitate the course of justice, no such deduction can be granted, but I am satisfied in this case that the plea indicated an acceptance of responsibility, and therefore that some deduction should be granted.
The sentencing judge had regard to the applicant's youth and immaturity, and the circumstances in which he had come to offend. He concluded however that the applicant had well known what he was involved in, and that the criminality of the importation offence was very serious, with the supply offence falling into the lower range of objective seriousness.
Sentence was fixed having regard to considerations of general deterrence, and the need for "some modest accumulation" as between the two offences.
On 19 October 2016 the matter was again mentioned before his Honour, having been re-listed by the court to correct an error. The sentencing judge said,
[…] I announced in Mr Stemler's case a head sentence of 11 years. But what I did not do, after having announced that, was say that was the sentence that would have been imposed after trial if there had been no plea of guilty. [..]
[..] the amendment that I propose in relation to this matter is that in lieu of the head sentence announce[d] of eleven years, the head sentence will be seven years, nine months.
His Honour subsequently, in Chambers, reduced the NPP to 5 years and 3 months imprisonment.
[5]
Ground 1: His Honour erred in concluding that the applicant was entitled to no leniency, as a result of his earlier conviction for an assault
As noted at [49] above, in his Remarks on Sentence ("ROS") his Honour referred to the applicant's 2014 conviction for assault occasioning actual bodily harm, and the 24 month s 9 bond that he was subject to, concluding,
"as a result he is not entitled to any leniency on the basis of his previous record".
The applicant submits that, in so saying, his Honour denied the applicant "all leniency" and fell into error. The applicant concedes that, whilst he was not entitled to be shown the same leniency as a person with no criminal record, his criminal history contained no drug offences and only one, relatively minor, assault matter, and thus he should have been afforded "substantial leniency".
An offender's criminal record is relevant to determining any claim for leniency, as well as in illuminating other matters that feature in the exercise of the sentencing discretion. It can demonstrate whether the instant offence is an aberration, or manifests a continuing attitude of defiance to the law, thus requiring greater emphasis to be given to considerations of protection of society, retribution and specific deterrence: Weininger v The Queen (2003) 212 CLR 629 at [32]; Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; R v McNaughton (2006) 66 NSWLR 566 at [20].
It is also a matter which may be considered pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act, as an aggravating factor relevant to NSW offences, and pursuant to s 16A(2)(m) of the Crimes Act 1914 (Cth), as a matter to be taken into account relevant to Federal offences.
The applicant's contention that error has occurred places emphasis on his Honour's reference to the disentitlement to leniency, but overlooks the words which immediately precede it, that being the reference to the 2 year bond the applicant had been sentenced to only a matter of months before the commission of these crimes. Having referred to the conviction and bond, his Honour continued, "and as a result" he is not entitled to leniency. It is clear that his Honour was referring to the existence of a current bond to be of good behaviour, a feature of the matter that was relevant to sentence, and did, in that sense, disentitle the applicant to leniency.
The sentencing judge went on to refer to the various features of the applicant's subjective case, and took each into account as matters in mitigation in determining the sentences to be imposed. Some leniency was thus afforded to the applicant.
His Honour's comment has to be understood in its overall context. Having regard to the whole of his remarks, it seems clear that the reference to leniency was intended to relate directly to the fact that the applicant was subject to conditional liberty when the offences were committed. Having reached that conclusion, I am not persuaded that error has been established.
[6]
Ground 2: In finding special circumstances relative to the Commonwealth offence, which warranted a reduction in the non-parole period, his Honour erred by adopting a two stage approach to sentencing, which was not permitted by part 1B Crimes Act 1914 (Cth)
In endeavouring to make good this ground the applicant places reliance upon comments made by the sentencing judge during exchanges with counsel during the proceedings on sentence, comments which were not ultimately reflected in his Honour's judgment.
On 21 June 2016 the sentencing judge asked counsel then appearing for the applicant,
HIS HONOUR: Are there any special circumstances you are going to be maintaining for? He will need to be rehabilitated eventually after his release.
COUNSEL: That's right, in terms of the State offence.
HIS HONOUR: But the question of course, as so many of these cases, he is likely to be in for so long that question may be a moot one.
COUNSEL: Well I concede that, but certainly in terms of his first time in custody, his youth - he's still only 21.
HIS HONOUR: The cases have now tended to pull back on the question of whether or not the first time in custody is a proper basis for finding special circumstances.
COUNSEL: If your Honour's against me on that -
HIS HONOUR: I'm not, I am just asking you the question.
COUNSEL: Yes, well that may be so, your Honour, but I think -
HIS HONOUR: I am inclined to find, for a man of his age, that special circumstances should be found to vary any difference between the said sentence and the time he eventually spends in custody.
COUNSEL: Well I know -
HIS HONOUR: Remembering that this is a Commonwealth matter.
COUNSEL: I accept that, but your Honour will have to sentence him on the State matter as well, so I think special circumstances are probably more relevant in terms of that, but youth and rehabilitation are the only two submissions I can really make in that regard.
HIS HONOUR: Yes, thank you.
His Honour later observed that "you can assume that I will find special circumstances". That observation could only have applied to the offence of supplying a prohibited drug, since a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act could not be made with respect to the Federal offence.
In later imposing sentence for the State offence, the sentencing judge did not in fact make such a finding. A term of 12 months imprisonment was fixed for the offence. No reference to special circumstances was made.
However, the applicant argues that the exchange between his Honour and counsel during the proceedings on sentence must have applied to the Federal offence, since it was the only offence ultimately penalised by a sentence comprising a non-parole period. The ratio of head sentence to NPP of that sentence was one of a little over 67%. It is submitted that the sentencing judge must have engaged in an impermissible "two-step process" by first determining an assumed starting point, and then seeking to identify "special circumstances". Such an approach was held to be incorrect with respect to Federal crimes in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at 534 [44] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ where it was said that,
These are reasons enough to conclude that there neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. More particularly, these are reasons enough to conclude that it is wrong to say, as the Court of Criminal Appeal did38, "that the 'norm' for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66%, which figure will be affected by special circumstances applicable to a particular offender". It is wrong to begin from some assumed starting point and then seek to identify "special circumstances". Rather, a sentencing judge should determine the length of sentence to be served before a recognizance release order takes effect by reference to, and application of, the principles identified by this Court in Power, Deakin and Bugmy [citations omitted].
The applicant's submission relies upon his Honour's comments and questions during the proceedings on sentence; there is nothing in the sentencing judgment that echoes the pre-sentence exchange, or supports a conclusion that the sentencing judge approached the question of the determination of the NPP for the Federal offence on an incorrect two-step basis.
There is a real danger in advancing - or determining - a ground of appeal on the basis of comments made by a sentencing judge during proceedings, not reflected in the ultimate judgment. Such an approach assumes that anything said at that preliminary stage necessarily evidences a concluded view that is later reflected in the sentence imposed. That is not always, and even not often, the case.
Ordinarily, the material placed before a sentencing judge during proceedings on sentence will be material seen by his or her Honour for the first time. The issues raised by counsel as relevant to the determination of sentence will be well considered by those at the bar table, but newly heard by the sentencing judge. In such circumstances it will generally be the case that the judge will ask questions or make comments which are expressive of no more than a preliminary thought or query. Such comments and questions should not be taken to convey a concluded view. Particularly in circumstances where a sentencing judgment is subsequently reserved, any early expressed thoughts may change, as time is taken to consider the evidence and arguments.
This Court will not ordinarily find error on the basis of exchanges between the bench and counsel, as any views expressed are not necessarily concluded ones: R v Kain [2004] NSWCCA 143 at [56]; R v A [2004] NSWCCA 292 at [12]; R v Van Hong Pham [2005] NSWCCA 94 at [11].
Here it is clear that, whilst his Honour was initially giving consideration to a finding of special circumstances, that was no more than a possibility, and one necessarily confined to the State offence, it being the only offence amenable to such a finding. It is reasonable to conclude that, after giving the sentence thought, and having had an opportunity to more carefully consider the relevant information, the sentencing judge decided that the structure of the sentences to be imposed would be best effected by imposing a fixed term for the State offence. A finding of special circumstances thus had no relevance.
In determining the ratio of sentence to apply to the more serious Federal offence, the sentencing judge ultimately determined to fix a NPP that gave a ratio of 67.7% as between the NPP and the head sentence. The task for his Honour was not to approach that issue by mathematical calculation, but by reference to the applicable statutory scheme, being that contained in Part 1B of the Commonwealth Crimes Act, together with relevant sentencing principles at common law.
In Commonwealth matters, there is no standard ratio of sentence; rather, s 16A(1) of the Crimes Act 1914 requires the imposition of a sentence which is of a severity appropriate in all of the circumstances of the offence. In determining the sentence to be imposed, his Honour took into account the applicable maximum penalty for a s 307.6 offence, the facts of the offence and the role of the applicant, the gravity of the offending conduct, the early entry of a plea of guilty which was accepted as an indication of acceptance of responsibility for the crime, and the applicant' subjective case.
There was no error in that approach.
[7]
Ground 3: In reducing the sentence to reflect the applicant's willingness to facilitate the course of justice as demonstrated by his plea of guilty, his Honour failed to give effect to such finding in the determination of the non-parole period
Referring to the chronology of the imposition of sentence - that is, the judgment handed down on 15 August 2016, the correction made on 19 October 2016, and thereafter the unannounced amendment made by his Honour to the NPP in Chambers later that day - the applicant argues that there was confusion attending the determination of the NPP, and his Honour failed to give effect to his finding that the early guilty plea demonstrated a willingness to facilitate the administration of justice.
On 19 October 2016 when correcting the sentence imposed earlier in August, the sentencing judge told the parties,
[…] I announced in Mr Stemler's case a head sentence of 11 years. But what I did not do, after having announced that, was say that was the sentence that would have been imposed after trial if there had been no plea of guilty. [..]
[..] the amendment that I propose in relation to this matter is that in lieu of the head sentence announce[d] of eleven years, the head sentence will be seven years, nine months. I confirm the non-parole period as announced but they will be the alterations that I propose to make unless there is any submission that there is something there that should be changed. Mr Sommerville, if there is I'm happy to hear anything you've got to say about that.
COUNSEL: As I understand the legislation, your Honour, I haven't done the numbers, I must say, and I'm referring to a decision of Cayade (?) Mr Howie J [Cahyadi v R [2007] NSWCCA 1]. I'll [give] a copy to my friend, I'm happy to hand a copy to your Honour. But I'm just struggling at the moment. I thought, and as I say, I haven't done the numbers, that the appropriate non-parole period falls between six in 66% [sic] of the head sentence. I presume, and I'm referring to point 37.
HIS HONOUR: And I gave five years and nine months. So, that should be something less than that, shouldn't it?
COUNSEL: Yes.
CROWN: Your Honour, in Commonwealth matters, there's no designated -
HIS HONOUR: There's no, it's no designated period.
CROWN: - ratio, so it's whatever your Honour considers appropriate.
HIS HONOUR: That's the basis upon which I originally intended to do it Mr Sommerville.
COUNSEL: Thank you your Honour.
HIS HONOUR: So, that means that it's a head sentence of seven years, nine, and a non-parole period of five years, nine. […] They will be the orders of the Court.
Despite the confirmation of the NPP of 5 years and 9 months in court, the record of the District Court of the sentence imposed reflects a NPP of 5 years and 3 months. The applicant argues that the "confusion" attending the sentence imposed, and the amendment to the NPP made in Chambers without reasons given in court, suggests that the original error in sentence was not confined to the head sentence of 11 years imposed in August 2016, but extended to the calculation of the NPP ultimately fixed. It is submitted that a NPP which is 67.7% of the head sentence does not adequately reflect the finding of the sentencing court that the applicant had demonstrated a willingness to facilitate the course of justice in entering his plea of guilty in the Local Court.
It must be remembered that, as was observed during the exchange set out at [80] above, there is no set ratio of NPP to head sentence that applies to sentences fixed with respect to Commonwealth offences. Counsel referred to Cahyadi v R at [37], where Howie J noted that it was generally appropriate for the NPP to fall between 60% and 66% of the head sentence. However, the judgment in Cahyadi pre-dates the decision of the High Court in Hili v The Queen, which expressly disapproved a statement of that nature:
The fact that the sentence imposed upon the applicant has a ratio of a little over 67% as between the NPP and the head sentence cannot demonstrate error. Nor can the fact that the head sentence was corrected by a reduction of 23% whilst the NPP was reduced by only 8.7% reveal error, as the applicant contends. To approach the matter in that way is to endorse a process of sentencing by equation, a proposition that is entirely at odds with the approach of synthesising all relevant considerations to arrive at an appropriate sentence by instinctive judgment: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 387 [73].
What does give rise to concern however, is the lack of transparency in the process by which his Honour arrived at the NPP as the appropriate period by which to reflect the criminality of the offence, having regard to all relevant features of the case in accordance with s 16A(1) of the Commonwealth Crimes Act. On the basis of the record, it is simply not possible to determine why his Honour ultimately concluded that 5 years and 3 months was the proper period that the applicant had to spend in custody, in circumstances where he had earlier announced a NPP of 5 years and 9 months. It is that lack of transparency, or "confusion" as referred to by the applicant, which establishes error, rather than any considerations of mathematical calculation.
Error having been established it falls to this Court to re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601, unless no less severe sentence is warranted in law: s 6(3) Criminal Apeal Act 1912 (NSW).
Having had regard to the evidence tendered before the Court on sentence, I cannot conclude that any lesser sentence than one of 7 years and 9 months was warranted in all of the circumstances of the case. Accepting that the applicant's early plea of guilty did facilitate the administration of justice and demonstrate his acceptance of responsibility for his crime, I would fix a NPP of 5 years.
The orders I propose are:
1. Leave to appeal granted;
2. Appeal allowed.
3. Quash the sentence imposed upon Ferenc Stemler by the District Court for the offence of attempt to possess a marketable quantity of an unlawfully imported border controlled drug (cocaine) contrary to s 307.6 of the Criminal Code Act 1995 (Cth) and, in lieu, sentence him to imprisonment for 7 years and 9 months, to date from 2 December 2015, and expiring on 1 September 2023. A non-parole period of 5 years is specified, expiring on 1 December 2020.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 December 2017