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[2008] NSWCCA 257
Court of Criminal Appeal (NSW)
2008-10-24
McClellan CJ, Simpson J, Clellan CJ
Original judgment source is linked above.
The application for leave to appeal 34 Since, despite the partial accumulation of the sentence imposed in respect of the third count, all sentences are, in reality, to be served concurrently, the application concerns only the sentence imposed in respect of the first, and most serious, count. It was that sentence to which the argument was addressed. 35 Two grounds of appeal were advanced. They were pleaded as: "1. The learned sentencing judge erred in his approach to the application of s 54B of the Crimes (Sentencing Procedure) Act 1999 when determining the objective seriousness of the offence. 2. The learned sentencing judge gave insufficient weight to the applicant's subjective circumstances."
Ground 2: subjective circumstances 36 Counsel who appeared for the applicant chose to argue first, and most forcefully, the second ground. In support of this ground she argued that inadequate weight was given to the subjective circumstances, which I have outlined above. In particular, she argued that inadequate weight was given to the psychiatric evidence, that is, concerning the applicant's depressive state. I do not accept that this is so. His Honour made adequate reference, although brief, to all matters. I would reject this ground of appeal. 37 This Court has considered on many occasions the ways in which evidence of psychiatric illness may be taken into account in mitigation of sentence: see, for example R v Letteri, (NSWCCA, 18 March 1992, Unreported); R v Engert (1995) 84 A Crim R 67; R v Scognamiglio (1991) 56 A Crim R 81; R v Champion (1992) 64 A Crim R 244; R v Wright (1997) 93 A Crim R 48; R v Fahda [1999] NSWCCA 267; R v Benitez [2006] NSWCCA 21. 38 It is sufficient to say that the applicant's case does not fit really - or at all - into any of the formulations. To the extent that it was relevant, it was taken into account by Black DCJ. 39 Counsel also referred to the evidence of the applicant's prior good character and the impressive assessment of his prison workplace supervisor. None of this persuades me that inadequate weight was given to any of the subjective circumstances or to the subjective case as a whole.
Ground 1 40 In Way this Court held that the standard non-parole period applies to sentences for offences following a trial. Where a plea of guilty has been entered, the standard non-parole period continues to have application as a "reference point, or benchmark, or sounding board or guidepost". S 54B of the Sentencing Procedure Act relevantly provides: "1. … 2. When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period. 3. The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in s 21A. 4. … 5. …" 41 (S 21A of the Sentencing Procedure Act requires a sentencing court to take into account all relevant aggravating and mitigating features, and, in subs (2) and (3) sets out a catalogue of such features - and adds that any other relevant features not mentioned must also be taken into account.) 42 By s 54A(2) the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of the kind under consideration. 43 Thus, any relevant aggravating or mitigating factor is available to be taken into account in the determination of whether or not the standard non-parole period is to be set in respect of any individual offence. 44 The nub of the argument advanced in support of the first ground was drawn from statistics maintained by the Judicial Commission of NSW. The caution that must be exercised in the use of these statistics is well known. That is for a number of reasons, including that the bare statistics do not expose the relevant objective and subjective facts and circumstances which, together, are the key to the selection of the appropriate sentence in any individual case. With that caution in mind, the statistics serve a useful purpose in promoting consistency in sentencing, and therefore enhancing confidence in the criminal justice system. 45 In written submissions (not prepared by counsel who appeared on the application) it was put that analysis of the statistics reveals that the head sentence here imposed lies within the top twenty percent of sentences imposed, and the non-parole period lies in the top sixteen percent of all non-parole periods imposed, for offences of the kind to which the applicant pleaded guilty. No primary material was provided to support those percentages. The Crown did provide some material, less favourable to the applicant. Those figures showed that the applicant's head sentence fell within the top twenty-eight percent of sentences imposed in respect of offences of supplying not less than the commercial quantity of prohibited drugs; and the non-parole period in the top thirty-one percent. (It may be that the discrepancy represents the pattern of sentencing since the applicant was sentenced.) It is of some significance that the documentation relied on by the Crown concerned only offences dealt with under the standard non-parole period regime introduced in 2003 by Pt 4 Div 1A. 46 In the written argument counsel focused heavily upon the quantity of the drugs involved. 47 In R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340 this Court promulgated guideline sentences with respect to Commonwealth offences of importing prohibited drugs. The sentences proposed were graduated according to the weight or quantity of the drug involved. 48 On appeal, the High Court [Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584] allowed an appeal and set aside the orders there made. In doing so, five members of the Court rejected the proposition that the weight of a drug involved in such an offence is "the chief factor" to be taken into account in fixing sentences. Their Honours did not, however, exclude the quantity as one of a number of relevant circumstances to be taken into account. Gaudron, Gummow and Hayne JJ, in a joint judgment, said: "No doubt, within both of those categories [trafficable and commercial quantities], the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender." 49 I have earlier set out the quantities which amount to a commercial quantity of ecstasy; it includes anything from 0.125 grams to anything up to but under 0.5 kilograms. In the applicant's case, the quantity was a little over twice the commercial quantity, and a fraction of the upper limit of that quantity. 50 It may reasonably be assumed that the statistics on which the parties relied included supplies of the drug in substantially greater quantity than that the subject of the applicant's offence. It may also be assumed that they include some offenders with prior criminal histories, and with subjective cases less favourable than that of the applicant. 51 In response to the applicant's submissions, the Crown relied upon well-known authority to the effect that neither the sentence identified in the statistics as the upper end of the range, nor the standard non-parole period, represent the upper limit of the range of sentences open to a sentencing judge. That upper limit is represented by the statutory maximum. 52 The Crown is, of course, correct. But that does not provide an answer to the applicant's contention. The fact is that, even on the revised statistics (as provided by the Crown) for an offence involving a quantity of the drug very much towards the bottom of the commercial quantity range, the applicant was sentenced to a term of imprisonment towards the top of the range within which offenders are, as a matter of practice, ordinarily sentenced. And the selection of that sentence cannot be explained by any of the other factors to which the High Court referred in Wong. There were no aggravating circumstances, either specified in s 21A(2) of the Sentencing Procedure Act, or otherwise; the applicant's subjective case was extremely favourable, his prospects of rehabilitation held to be "unusually good', and he had no prior convictions. These circumstances do not suggest any justification for a sentence that might be seen as more appropriate to an offence of supplying the large commercial quantity, for which the maximum penalty is imprisonment for life. 53 I have come to the view that the applicant has made good this ground of the application and that, when regard is had to sentencing patterns, and particularly to the quantity of drug involved, the sentence imposed was manifestly excessive. I would reduce the head sentence and the non-parole period by 6 months. 54 The orders I propose are:
(2) Appeal allowed, sentence imposed on count 1 quashed;
(3) In lieu thereof, the applicant be sentenced to imprisonment comprising a non-parole period of 3 years to date from 16 November 2005 and expire on 15 November 2008, with a balance of term of 2 ½ years to expire on 15 May 2011;.
I would confirm the sentences imposed in respect of counts 2 and 3.
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Stuart Leslie WOOD
R
CITATION: Stuart Leslie WOOD v R [2008] NSWCCA 257
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Letteri, (NSWCCA, 18 March 1992, Unreported) R v Engert (1995) 84 A Crim R 67 R v Scognamiglio (1991) 56 A Crim R 81 CASES CITED : R v Champion (1992) 64 A Crim R 244 R v Wright (1997) 93 A Crim R 48 R v Fahda [1999] NSWCCA 267 R v Benitez [2006] NSWCCA 21 R v Wong; R v Leung [1999] NSWCCA 420; 48 NSWLR 340 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
R v Way [2004] NSWCCA 131; 60 NSWLR 168. 32 His Honour noted the subjective factors, making specific reference to the letter from the applicant's mother, and one of the testimonials, and the psychiatric report. He accepted the applicant's expressed contrition as genuine; and found the prospects of rehabilitation to be "unusually good". It was these last findings that prompted him to make the finding of special circumstances, thus enabling him to expand the parole period and reduce the non-parole period. 33 Having regard to the nature of the arguments advanced on behalf of the applicant, it is convenient to set out in full two passages from the remarks on sentence. "The two main reasons for going below it [the standard non-parole period] are first of all that this is a plea and therefore strictly speaking, the period does not apply. Secondly I see that the amount involved was something over twice what is identified as the commercial quantity. I am not really going to get involved in the sort of level of commercial supplies that can or cannot take place. I would not have thought that this was a particularly enormous quantity, and that that is the reason why I will regard it as a lower than middle-of-the-road offence, without going any further into quantities or quantifications." "Having said all that, it is now for me to identify the non-parole period … and I say that despite [counsel's] forceful plea, partly because of the provisions about the standard non-parole period, but also because of the quantities involved in this case, it would be wrong in my view, for me to pass a sentence which allowed his either immediate or almost immediate release. The non-parole period in my view, will have to be one of 3 ½ years"
[2001] HCA 64