Ground 1 - insufficient weight given to remorse
16In written submissions the applicant complained that in his remarks, Black DCJ made no reference to the account taken of his contrition and remorse, matters which a sentencing judge was bound to consider.
17The applicant's plea, his frank admissions in the agreed statement, the profound remorse noted in the psychologist's report in evidence and the contrition and remorse evidenced by his settlement of related civil proceedings brought by the New South Wales Crime Commission under the Confiscation of Proceeds of Crime Act 1989, were all relevant to remorse and ought, it was argued, to have resulted in a lesser sentence than that imposed. While it was accepted that foregoing ill gotten gains could never mitigate sentence, it was submitted that regard had to be paid to assistance to authorities in resolving forfeiture proceedings, when that was consistent with demonstrated remorse.
18It was also argued that while the psychologist's report as to remorse was taken into account in relation to the question of rehabilitation, that was a different mitigating matter to the question of remorse, which had to be considered separately. It followed that his Honour erred in not taking remorse into account in the sentence imposed.
19In oral submissions it was also argued that there was a tension in the authorities as to the proper approach to be taken in a case where co-operation had been given in civil forfeiture proceedings, which should be resolved in this case. It was submitted that the Court should clarify that such co-operation should be taken into account when determining sentence. Public policy factors supported such an approach being taken. They included the benefit flowing to authorities who take such civil proceedings and to the courts who hear such cases. Defendants should also know at the earliest opportunity, that co-operation in civil forfeiture proceedings will be taken into account on sentencing.
20The Crown's case was that error of the kind necessary to permit appellate intervention in the sentencing judges' discretion, that is a failure to exercise the discretion, could not be established (see Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 330). In the sentencing proceedings it had not been submitted that co-operation in the civil proceedings should be accepted as reflecting the applicant's remorse. There was a further difficulty in that the submissions which were advanced as to what had transpired in those proceedings, had no evidential basis.
21It was also submitted that the psychologist's report as to remorse was arguably consistent with regret at the position in which the applicant found himself, rather than true remorse. The Crown challenged the weight which could be placed on that report, submitting that apart from the bare plea, there was no indication from the applicant himself as to remorse. The onus fell on him to establish that mitigating factor (see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270).
22What his Honour said as to mitigating matters which he took into account in determining the sentence was:
"Now the next aspect to look at is - well there are two aspects, first of all, are there special circumstances here? If there are not, the non-parole period would be one of six years and nine months. If there are, that can be reduced. The other factor to look at is the impact of count 2 and I think it is sufficient to say that I accede to Mr Bassett's submission that this is part of the big picture which is covered by the gravity of count 1 and although it calls for its own individual sentence, there is no call here for accumulating in any way at all and it will be appropriate to impose a fixed term concurrent with the non-parole period for the count 1 offence.
The factors upon which it is said that special circumstances could apply to vary the normal ratio are the report of Ms Robilliard in so far as it relates to the offender in person and his general background. There are some references which I think are helpful and the various submissions of Mr Bassett. In my view the significant thing here is first of all he is comparatively young, this is his first sentence of any significance. There are, I am satisfied, significant and very high prospects of rehabilitation.
There are other things that have happened as a result of this. I refer to them but I have to refer to them with some caution because it is my view I cannot give too much weight to them. The Crime Commission becomes involved in these situations and imposes financial penalties, it is important that the public know that, significant financial loss has resulted. As yet there is no clear authority from the Court of Criminal Appeal that that is appropriate to be taken into account because it arises under separate and specific legislation. Perhaps one day there will be something authoritative about it but I make it clear I am referring to it in that way just so that everybody knows so that it is known that I have not ignored it but I do not think I can give it any significant weight but at the end of the day that is not going to prejudice the offender.
Now the other aspects, it has disrupted his personal life, I can understand that and he does too. He was obviously - had made his choice for his future wife and it is a matter of great regret to him that that all has fallen away. It is quite understandable from her point of view and he acknowledges that but I think that is a matter which I can pay some attention to and I note the constructive and sensible approach he has taken as far as revoking his own bail and identifying targets that he has in mind to occupy himself with while in custody. So for all those reasons I am satisfied that special circumstances do apply and therefore that the non-parole period, and I to some extent bear in mind appropriate principles of parity with the other offenders, therefore the non-parole period which I impose is one of five years imprisonment.
So on count 1 there will be a sentence of nine years commencing on 31 December 2008 and expiring on 30 December 2017. The non-parole period of five years will commence on 31 December 2008 and expire on 30 December 2013. In relation to count 2 there will be a sentence of twelve months imprisonment, a fixed term, commencing on 31 December 2008 and expiring on 30 December 2009. I take into account the Form 1 in relation to count 1 and I think that is all I need to say.
23From these remarks it is apparent that while not expressly referring to remorse, his Honour accepted that remorse had been established. That conclusion was plainly reflected in the sentence imposed.
24In the written submissions advanced for the applicant on sentencing, under the heading 'mitigating factors' the matters identified were good character, as attested by references in evidence; the motivation for the offence being the desire to repay a debt to his uncle, as evidenced by the psychiatrist's report; and various matters in that report establishing that he had good prospects of rehabilitation. His plea, his record, his subjective features, assistance to authority and the nature of his imprisonment were also all dealt with.
25Under the heading 'special circumstances' the submission made was that the non-parole period should be reduced, for the following special circumstances:
" Special Circumstances
30. Section 44 of the Crimes (Sentencing Procedure) Act 1999 requires that the proportion of the total sentence served on parole must not exceed one third of the non-parole period unless special circumstances apply.
31. In relation to Mr Stock, the court should consider the following special circumstances:
a. at his age a long custodial sentence will impact on his ability to effectively reengage in the community on release
b. he regrets his offence and has shown remorse and shows good prospects of rehabilitation
c. his criminality was partly motivated by a strong emotional connection to his uncle, Nathan Stock
d. as a result of the criminality, Mr Stock has lost assets including his home he(sic) where the criminality took place. Purchased in 2005, it was valued at $800,000 prior to his arrest but sold at the(sic) (Robilliard report p 5.8)
32. The defendant does not presume to inform the court as to what should be established by the court for a non-parole period based on these special circumstances. However, the defendant asks the court to utilise its discretion to reduce the period.
33. If the court is not minded to accept that the offence lies in the low end of the mid-range as submitted, the defendant asks the court to apply the special considerations in establishing any non-parole period for whatever range it finds against the defendant, and to also apply the full 25% discount to that finding."
26In oral submissions it was put to his Honour that:
"Your Honour in relation to special circumstances, this matter has had a devastating effect on Mr Stock in relation to his own personal assets because of certain properties that would have to be sold throughout the proceeding(sic) in what has been a down market at the time and certainly the property that was his home where the activities were taking place was sold at a significantly reduced amount at an auction to what it had been valued at prior to his arrest.
Your Honour I don't think I need to go into those matters there any further, we've asked to - and also the prosecutor's mentioned the indication for the backdating and crediting of time already served. Perhaps one last point I should make and it's in the written submissions your Honour is that as soon as Mr Stock did plead, enter his plea in relation to the charges, he did seek himself to revoke his bail and go back inside so that he could confront what he knew would become a custodial sentence at some point. Your Honour unless you have questions to ask me based on those written submissions, I've nothing further to say orally."
27It follows that the conclusion that his Honour did not take the evidence before him as to remorse into account in determining sentence is not available. What weight he gave to that evidence was a matter for him (see R v Baker [2000] NSWCCA 85 at [11]). His Honour's conclusion that not much weight could be given to co-operation in the civil proceedings, reflected the fact that there was no evidence upon which any conclusions could be reached about those proceedings, or the nature of the co-operation provided. All that was known was what was put by way of the above submission. In that context I cannot see that his Honour erred. On appeal it was submitted that:
"We submit that the Sentencing Act provides that the Court can proceed without formal procedures of evidence. I think that is still the case with the Sentencing Act, and it proceeded on an informal basis which was common ground between the parties. It is for that reason I have filed in Court the actual Court orders which form part of the Supreme Court file.
There was a summons, a proceedings and a settlement. The settlement was by consent without conditions, so I cannot come forward and say he has handed over money in excess of what his crime was. That is not available to me. What I am saying is he genuinely did resolve these proceedings and resolve expensive and lengthy litigation."
28Even this material was not put before his Honour.
29It was also argued that there was a tension reflected in various authorities, flowing from the view, on the one hand, that co-operation in civil forfeiture proceedings could be taken into account on sentencing and on the other, that it was not available.
30In R v Murray (unreported, Court of Criminal Appeal, NSW, Barr J, 29 October 1997), Barr J observed:
"However, it is an equally strong principle in my opinion, that no matter how strong the subjective features of a case, they must never be allowed to produce a sentence which fails to take account of the objective gravity of the case. In my opinion the applicant's co-operation with the authorities and the repayment of monies derived from her criminal activity did not merit a reduction of the sentence for assistance to the authorities. The applicant was entitled to rely on those circumstances as evidence, together with her plea of guilty, of the genuineness of her remorse and that is a finding that his Honour made in her favour. It was given effect to in the sentence imposed by his Honour.
In the end I do not think that the applicant has demonstrated error on the part of the sentencing judge. Although I would grant leave to appeal, I would dismiss the appeal."
31In R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152, Sully J observed at [77]:
"In my opinion, it would better accord with the manifest policy of the New South Wales legislation to adopt in relation to it the clear and resolute approach of the New Zealand Court of Appeal. Applying the principles thus established to the particular facts of the present case, it would be, in my opinion, and to borrow respectfully from King CJ, farcical to give the present respondent the consideration that he claims by reason of his cooperation with the Crime Commission in the matter of disgorging his ill-gotten gains from criminal activity of the enormity previously described and discussed. In such a case as the present one, the sanction of condign punishment by way of substantial imprisonment, and the sanction of disgorgement of ill-gotten gains, are intended by the legislature to be; should be seen by all concerned to be in fact; and should be enforced resolutely by the Courts as, complementary sanctions intended to strengthen each other, rather than as alternative sanctions which a resourceful offender can juggle in a way that effectively causes the one to weaken, rather than to strengthen, the other."
32When special leave was sought in the High Court, it was refused. It was observed in Kalache v The Queen S83/2000 [2000] HCATrans 713 at :
"GLEESON CJ: The Court is of the view that this application for special leave to appeal should be refused. We do not consider that the case is a suitable vehicle for consideration of the issues sought to be raised on behalf of the applicant. We do not think that Justice Sully intended to say that co-operating in returning the proceeds of crime could not, as a matter of law, be taken into account in the sentencing process. If his Honour intended to say so, we would not agree with such a broad proposition. The Court is not persuaded that in the facts and circumstances of the present case there has been any miscarriage of justice."
33In R v Presta [2000] NSWCCA 40 it was observed at [29] by Grove J:
"The next proposition advanced on behalf of the appellant was that his Honour erred in not taking into account on the matter of sentence the consent of the applicant to the forfeiture of his house. It would appear that pursuant to the Confiscation of Proceeds of Crime Act the appropriate authority had made application for forfeiture of the house. In terms of the statute it was manifestly clear that in every case of the counts that I have mentioned it was the very location used in the commission of the crimes. It is true that it is apparent that the appellant consented to the making of an order, but it is well nigh impossible to conceptualize any sustainable basis upon which he could resist. Nevertheless it was argued that it was a matter which his Honour could have taken into account in a slightly oblique fashion in the sense of confirming some contrition on the part of the appellant adding to the contrition which might be inferred from the plea of guilty which, amongst other things, has been pointed out by counsel for the appellant relieved the victims of the undoubtedly onerous prospect of having to give evidence and relive their experiences as they related them."
34Regina v Farah [2005] NSWCCA 67 was a case where the sentencing judge Sides DCJ had taken account of the orders made in the civil recovery proceedings, not as evidencing contrition (the confiscation having followed contested proceedings), but as featuring as a part of the punishment imposed for the offence. It was observed:
"20 His Honour considered that expressions of remorse by the applicant were belated but were, nevertheless, genuine and should be reflected in the sentences his Honour would impose.
21 His Honour said in his remarks on sentence that he took into account in the applicant's favour the delay which had occurred in the sentencing of the applicant, especially the delay which had occurred after he had pleaded guilty, which had not been the applicant's fault.
22 His Honour said that he took into account in favour of the applicant that on 24 October 2003 Adams J of this Court had made an order against the applicant under the Criminal Assets Recovery Act that he pay to the New South Wales Treasury the sum of $32,200, which was approximately equivalent to the total amount of money the applicant had received from committing the three offences. Adams J's judgment is reported ( New South Wales Crime Commission v Farah (2003) 142 A Crim R 108).
23 In his judgment Adams J said that he accepted that the applicant had not derived any benefit from the money he had received, which he had almost immediately paid over to someone else, and that the order his Honour would be making was to be regarded as part of the punishment for the applicant's offences. At par 21 of his judgment Adams J said:-
"It seems to me that the consequence of the order that I make, which should fairly be regarded as taking from the defendant considerably more than the financial benefit he obtained from his crime, is not a mere expropriation of his ill-gotten gains but is a penalty visited upon him for engaging in criminal activity. In short, it is part of his punishment. The mere fact that the proceedings are stated to be civil proceedings is a description of their procedural character. That they are aimed at punishing and deterring criminals is clear beyond question and that they are part of the structure for enforcing the criminal law of the State is not to be disguised by procedural trappings. Accordingly, the penalty in this case should be taken into account in measuring the level of the additional punishment to which the defendant will be liable when he is sentenced for the crimes that produced the proceeds referred to in the present order".
24 In his remarks on sentence Sides DCJ said he had been influenced by Adam J's order in deciding to make the three sentences he imposed concurrent with each other and not, at least to some extent, cumulative."
35It was also submitted that it was relevant to note that while there was no New South Wales legislation dealing with the account which could be taken of confiscation proceedings in later sentencing, there was both Commonwealth and Victorian legislation, between which there was a tension. They respectively provide:
Proceeds of Crime Act 2002 (Cth)
320 Effect of the confiscation scheme on sentencing
A court passing sentence on a person in respect of the person's conviction of an * indictable offence:
(a) may have regard to any cooperation by the person in resolving any action taken against the person under this Act; and
(b) must not have regard to any * forfeiture order that relates to the offence, to the extent that the order forfeits * proceeds of the offence; and
(c) must have regard to the forfeiture order to the extent that the order forfeits any other property; and
(d) must not have regard to any * pecuniary penalty order, or any * literary proceeds order, that relates to the offence.
321 Deferral of sentencing pending determination of confiscation order
If:
(a) an application is made for a * confiscation order in respect of a person's conviction of an * indictable offence; and
(b) the application is made to the court before which the person was convicted; and
(c) the court has not, when the application is made, passed sentence on the person for the offence;
the court may, if satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the confiscation order.
Sentencing Act 1991 (Vic)
5 Sentencing guidelines
...
(2A) In sentencing an offender a court-
(a) may have regard to a forfeiture order made under the Confiscation Act 1997 in respect of property -
(i) that was used in, or in connection with, the commission of the offence;
(ii) that was intended to be used in, or in connection with, the commission of the offence;
(iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i) or (ii);
(ab) if it is satisfied that property was acquired lawfully, may have regard to automatic forfeiture under the Confiscation Act 1997 in respect of property -
(i) that was used in, or in connection with, the commission of the offence;
(ii) that was intended to be used in, or in connection with, the commission of the offence;
(iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i) or (ii);
(b) must not have regard to a forfeiture order made under that Act in respect of property that was derived or realised, or substantially derived or realised, directly or indirectly, by
any person as a result of the commission of the offence;
(c) may have regard to a pecuniary penalty order made under that Act to the extent to which it relates to benefits in excess of profits derived from the commission of the offence;
(d) must not have regard to a pecuniary penalty order made under that Act to the extent to which relates to profits (as opposed to benefits) derived from the commission of the offence;
(e) subject to paragraph (ab), must not have regard to any property forfeited under automatic forfeiture or a pecuniary penalty order made in relation to a Schedule 2 offence under that Act.
(2B) Nothing in subsection (2A) prevents a court from having regard to a forfeiture order or civil forfeiture order made under, or automatic forfeiture occurring by operation of, the Confiscation Act 1997 as an indication of remorse or co-operation with the authorities on the part of the offender."
36It was argued that the common law position in New South Wales was akin to the statutory provision in Victoria, namely that both co-operation and compulsory confiscation could be taken into account on sentencing. The Victorian legislation was consistent with the approach adopted by Adams J in Farah . The orders there made were of a punitive kind and so were accepted as being available to be taken into account as an element of punishment for the offence. That approach is not available under the Commonwealth legislation, where the only account which could be taken of the confiscation, when there was co-operation, was that it was consistent with genuine contrition and remorse, as Barr J had accepted in Murray .
37It does not appear to me that there is such a restriction at present in New South Wales, albeit that position will alter with the enactment of the Crimes (Sentencing Procedure) Amendment Act 2010, which provides:
24B Confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing
(1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the consequences for the offender of any order of a court imposed because of the offence under confiscation or forfeiture legislation.
(2) In this section:
confiscation or forfeiture legislation means the following:
(a) the Confiscation of Proceeds of Crime Act 1989,
(b) the Criminal Assets Recovery Act 1990,
(c) the Proceeds of Crime Act 2002 of the Commonwealth,
(d) any other law prescribed by the regulations for the purposes of this definition.
38In this case, there was no suggestion that the confiscation to which the applicant had agreed, involved any element of punishment for his offences. There was no evidence as to what the settlement was, or the circumstances in which it was reached. Nor was it dealt with in the agreed facts. The submission that Black DCJ erred in the approach which he adopted to the question of remorse, as evidenced by co-operation in the forfeiture proceedings, was pressed on the basis that while evidence about that matter was not led, his Honour was entitled to proceed informally at the sentencing hearing, given the provisions of the Crimes (Sentencing Procedure) Act. In my view, that does not overcome the difficulty with the applicant's complaint. As discussed in GAS v R [2004] HCA 22; (2004) 217 CLR 198 at [30]:
"Thirdly, it is for the sentencing judge, alone, to decide the sentence to be imposed [R v Olbrich (1999) 199 CLR 270]. For that purpose, the judge must find the relevant facts [Cheung v The Queen (2001) 209 CLR 1 at 9-11 [4]-[10]]. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case [R v Olbrich (1999) 199 CLR 270 at 278 [15]]. The present appeal provides an example. The limitation arose from the absence of evidence as to who killed the victim, and the absence of any admission from either appellant that his involvement was more than that of an aider and abettor."
39Whether or not co-operation in civil forfeiture proceedings in a particular case may be accepted as evidencing remorse, depends on the circumstances revealed on the evidence. In some cases, it will not evidence remorse, rather a mere acceptance of the inevitable. In this case, given the absence of evidence as to what had occurred in the forfeiture proceedings, the conclusion which his Honour reached as to the weight which could be given to that factor was clearly correct.
40His Honour was also bound by s 21A(3) of the Crimes (Sentencing Procedure) Act , which provides that a mitigating factor to be taken into account in determining sentence is:
(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),
41It follows that if an offender wishes to have account taken of particular matters claimed to evidence remorse, including any co-operation provided in civil forfeiture proceedings, evidence establishing what is relied on must be led. There are, of course, different ways in which such matters can be put into evidence, for example by way of agreed facts, documentary evidence, or evidence given by the offender. What the evidence reveals can have an impact on the view formed by the sentencing judge as to the existence and nature of any remorse found to have been shown.
42Here the applicant gave no evidence, nor was there any evidence led as to what had transpired in the forfeiture proceedings. Nor was that matter dealt with in the agreed statement of facts. The psychiatrist's report did deal expressly with remorse, but what was there noted by Ms Robilliard as having occurred was not entirely consistent with the agreed facts in a number of significant respects. In my view, not being frank with the psychiatrist as to such matters is not consistent with true remorse. Nor was what Ms Robilliard observed particularly suggestive of remorse, or an acceptance of responsibility for the applicant's offences. What Ms Robilliard observed was:
"William acknowledged that he is upset and angry with his uncle Nathan for involving him in activities that led to these charges and consequent imprisonment, however, he stated that "ultimately I put myself here by agreeing to allow Nathan to set and by helping him". William expressed profound remorse over his involvement in this enterprise. From his perspective he said he feels "I've lost everything" including his trust in people. He said he definitely does not want to come back to gaol again. He said he was always satisfied with legitimate earnings and in future he will be very careful about whom he trusts, including members of his own family.
...
The client's involvement in the events that culminated in his arrest and imprisonment were facilitated by his strong emotional connection to his paternal uncle, Nathan. There was a 3 year age gap between them and throughout life William described looking up to Nathan in a way he believes he would have an older brother. He perceived Nathan as good at various activities he admired, popular and well known in the district. His uncle always had money and was generous with it. When William began setting up his own business about a year prior to his arrest, Nathan helped him with handouts of cash which finally totalled around $75,000. William maintained he reluctantly agreed to allow his uncle to set up the cannabis growing enterprise on the property he was buying because it promised to yield him $10,000 a month which he would then have used to repay the loan. He said he was also mildly intimated by Nathan however William did not suggest he was forced into the agreement and stated clearly that he accepted responsibility for his own actions. He said he deeply regretted his decision and that the experience has damaged his trust in others especially in light of the relationship between himself and his uncle. "
43In my view this ground was not established. That his Honour was obliged to give remorse any greater weight than he did, is not apparent.