High Court of Australia Deane, Dawson, Toohey, Gaudron and McHugh JJ Savvas v The Queen [1995] HCA 29 ORDER Appeal dismissed Cur adv vult The Court delivered the following written judgment:— 1 June 1995 Deane, Dawson, Toohey, Gaudron and McHugh JJ After a lengthy trial the appellant was convicted of two offences. One was of conspiring with others to import a quantity of heroin, not less than the commercial quantity. This is an offence against the Customs Act 1901 Cth. The other was of conspiring with others to supply the heroin. This is an offence against the Drug Misuse and Trafficking Act 1985 NSW. In respect of the offence of conspiring to import heroin, Hunt J sentenced the appellant to a term of imprisonment for twenty-five years, with a minimum term of eighteen years. In respect of the offence of conspiring to supply heroin, Hunt J sentenced the appellant to a minimum term of imprisonment of eighteen years, together with an additional term of six years. His Honour specified 25 August 2006 as the date on which the appellant would be eligible for parole. The sentence of eighteen years is to be served concurrently with the sentence of twenty-five years. The maximum penalty for the offences involved was life imprisonment. The appellant appealed against his convictions. The Court of Criminal Appeal dismissed his appeal [1] and there that matter rests. The Court of Criminal Appeal granted leave to appeal against the severity of the sentences but dismissed the appeal [2] . It is against that dismissal that the appellant appeals to this Court. 1. R v Savvas (1991) 55 A Crim R 241. 2. R v Savvas [No 2] (1991) 58 A Crim R 174. There is only one ground in the notice of appeal. It reads: The Court of Criminal Appeal erred in finding that Hunt J did not err in taking into account for the purpose of sentencing a finding of fact amounting to the commission of substantive crimes for which the Appellant had neither been charged nor convicted. There is some ambiguity in the ground. It may be taken to mean that Hunt J was not entitled to embark upon fact finding as alleged or that, even if the fact finding was warranted, Hunt J erred because in truth he sentenced the appellant for offences with which he had not been charged. But as the argument was developed in the Court of Criminal Appeal and in this Court, it is the latter aspect upon which the appellant relies. The appellant submitted that the jury's verdicts amounted to a finding that he had been a party to unlawful agreements to import and supply heroin. The verdicts said nothing, so the argument ran, as to any overt acts in which the appellant engaged by reason of any conspiracy. And Hunt J was not justified in sentencing the appellant in light of those acts. There is no question that Hunt J made detailed findings of fact in the course of unusually long remarks on sentence. His Honour explained that he did so because of the many issues raised on behalf of the appellant. As part of his consideration of the relevant material, Hunt J said: The facts which were necessarily involved in the jury's verdicts of guilty are that the prisoner agreed with McCann (who was undoubtedly the sole head of the gang) and others to import very large quantities of heroin in these unaccompanied suitcases and thereafter to distribute that heroin. The part agreed to be played by the prisoner was to provide whenever required a corrupt Customs officer who would ensure that each suitcase would be removed from the airport without going through Customs and then delivered to a member of the McCann gang. For doing so, the prisoner and his Customs man were each to receive the sum of $100,000 for each suitcase handled. Hunt J then said that, for the purpose of sentencing the appellant, any additional facts must be found by him, so long as they did not conflict with the jury's findings. As to those additional facts, the onus lay on the Crown to satisfy him beyond reasonable doubt. His Honour discussed several aspects of this fact finding process, with which it is unnecessary to deal except to the extent they were challenged in argument before this Court. However, there is one aspect which featured in that argument. It was in relation to his Honour's statement: What is disputed is whether I am entitled to take into account the additional evidence in the trial that heroin was in fact imported and distributed pursuant to that conspiracy and that the prisoner was involved in those events. (Emphasis added.) As his Honour observed, that evidence was admitted as part of a circumstantial case in order to establish both the conspiracy and the appellant's participation in it. In referring to the additional evidence, the appellant argued, Hunt J went beyond any facts which the jury must have found and, furthermore, his Honour was effectively dealing with the appellant for substantive offences of importation and supply, offences with which he had not been charged. His Honour had discussed that argument at length and rejected it. He then identified thirty-two "basic facts" which, he said, were established by the Crown. There is no need to set out these facts; it is enough to quote his Honour's conclusion which was: I am satisfied beyond reasonable doubt that I should conclude from all of that material that the prisoner continued to perform his part in the conspiracy and that he was involved in the importation of four suitcases of heroin and in the distribution of two of them. The restriction of that last finding to only two of the four suitcases imported necessarily disregards the evidence of James which I have accepted, that the prisoner told him that he had delivered the last suitcase to McCann just before McCann was murdered. Against that background Hunt J proceeded to sentence the appellant. It is unnecessary to follow his Honour through the steps he took in arriving at the sentences he considered appropriate in the circumstances. Although he imposed very lengthy terms of imprisonment, this appeal is not on the ground that the sentences imposed were excessive. Rather, the complaint is that the sentences were tainted by error as a result of the fact finding upon which Hunt J embarked and the significance he attached to the facts so found in the sentences which were imposed. Putting to one side for a moment the particular situation of conspiracy, there are relevantly two principles at work in the sentencing process. They are reflected in the judgment of Gibbs CJ in R v De Simoni [3] where his Honour said: However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he had not been convicted The combined effect of the two principles is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. 1. (1981) 147 CLR 383 at 389. So far as the offence of conspiracy is concerned, the appellant's argument seeks to exclude from the circumstances of the offence any reference to overt acts. In dismissing the appellant's appeal Gleeson CJ, with whom Loveday J agreed while adding some observations of his own, identified the issue as [4] "whether it was permissible for the sentencing judge to make findings of fact about, and take into account, the evidence at the trial concerning the activities that were undertaken in furtherance of the conspiracies to which the appellant was found to be a party." This is not quite the way Hunt J approached the matter. As appears from the passage quoted earlier in this judgment, his Honour saw the issue as whether he could take into account the evidence that heroin was in fact imported and distributed pursuant to a conspiracy "and that the prisoner was involved in those events". That is a somewhat narrower approach than that identified by the Chief Justice and in the end it is the approach which this Court is called upon to endorse or reject. 1. R v Savvas [No 2] (1991) 58 A Crim R 174 at 175. The trend of Australian authority is clear. In R v Kane Gowans J, with whom McInerney and Nelson JJ agreed, said [5] : "In my opinion, any considerations which advert to the content and duration and reality of the conspiracy are proper to be taken into account." This approach was referred to with approval by the Court of Criminal Appeal in Victoria in R v Raptis, Lilimbakis & Sinclair [6] . Earlier, in R v Marie, Chitrizza & Casagrande [7] the Court of Criminal Appeal in New South Wales had regard to the amount of heroin imported in dealing with a sentence for conspiracy. Later, in R v Shepherd [No 2] [8] that Court, in dealing with an appeal against sentence for conspiracy to supply heroin, noted: "The activities of the appellant in the fulfilment of the conspiracy to supply extended over a period of some years." Other decisions are collected by Gillies [9] in support of the following proposition: "A considerable number of more recently reported cases illustrate the imposition of sentences by reference to what was actually done in the transaction of the conspiracy." 1. R v Kane [1975] VR 658 at 661. 2. (1988) 36 A Crim R 362 at 365. 3. (1983) 13 A Crim R 440. 4. (1988) 37 A Crim R 466 at 478. 5. Law of Criminal Conspiracy, 2nd ed (1990), pp 254-255. In the Court of Criminal Appeal in this case, Gleeson CJ observed [10] : "The Australian authorities in this regard are consistent with the course of decision in other jurisdictions." In support of that statement his Honour referred to a number of decisions [11] . 1. R v Savvas [No 2] (1991) 58 A Crim R 174 at 176. 2. See R v Lawrence (K A) (1987) 9 Cr App R (S) 354; R v McGinty [1983] NZLR 524 at 531; R v Hunter [1985] 1 NZLR 115 at 120-121; R v Prickong [1990] 1 NZLR 5 at 9. This approach has the apparent endorsement of this Court. In R v Hoar [12] Gibbs CJ, Mason, Aickin and Brennan JJ said: In exceptional cases the element of concert may justify a more severe penalty for conspiracy than for the substantive offence which the conspirators commit but where a court, imposing a penalty for conspiracy, takes into account the overt acts of the conspiracy, it would be wrong to impose a further penalty in respect of those acts. These remarks were made in a context where the Federal Court had taken into account the overt acts of a conspiracy in determining the sentence to be imposed. Nothing in the decision of this Court threw any doubt on the propriety of taking overt acts into account. 1. (1981) 148 CLR 32 at 38. The basis of Kirby P's dissent in the present case appears from the following passage in his judgment [13] : [I]t would be unjust, under the guise of sentencing the applicant following his conviction on two counts of conspiracy, in effect, to sentence him for the substantive offences upon which he was never put on trial. With every respect to the trial judge, this is what I believe was done. 1. R v Savvas [No 2] (1991) 58 A Crim R 174 at 180. Kirby P reached that conclusion principally because of two passages in Hunt J's remarks on sentence. One passage has already been quoted in this judgment, in which his Honour said that he was satisfied that the appellant "was involved in the importation of four suitcases of heroin and in the distribution of two of them". The other passage, which appears earlier in Hunt J's remarks, reads: In my view, the Crown is entitled to have me take into account the circumstances of the present case which may have been established in the evidence which show that the prisoner performed the agreement which constituted the conspiracy, and that he was in fact involved in the importation and distribution of large amounts of heroin in accordance with that agreement. That is not to say that the sentences to be imposed are intended to include within them separate or additional periods to cover the further offences committed by the prisoner but in relation to which he has been neither charged nor convicted. The additional facts are relevant only as demonstrating the extent of the prisoner's criminality by his involvement in the conspiracy. Whether or not a sentencing judge is entitled to look at events relating to the implementation of a conspiracy and an accused's role in those events, there is a danger in describing that role in terms of "further offences committed by the prisoner". The choice of language is likely to give rise to a belief that the prisoner is being dealt with for something which has not been the subject of a charge. But the language has to be taken in context and, in the present case, Hunt J was at pains to point out that he was not sentencing the appellant for anything other than the conspiracy offences of which he was convicted. The choice of language aside, it is artificial to ignore what the judgment in Kane describes as "considerations which advert to the content and duration and reality of the conspiracy" [14] . And this can hardly be avoided if the actions of the accused are excluded from consideration. That is particularly true in the present case where the conspiracy was of an ongoing nature to import heroin on a large scale and where the appellant's part in that conspiracy was to provide a corrupt Customs officer each time an importation of heroin was to take place. After all, if, after agreeing to provide a corrupt Customs officer, the appellant had a change of heart and decided not to play any part in the importation of the heroin, it is inconceivable that this would not be a matter urged in mitigation of sentence. Yet, counsel's submission, in answer to a question from the Bench, was that the sentencing judge must always sentence on the basis that the conspiracy was not implemented. 1. R v Kane [1975] VR 658 at 661. To some extent, perhaps to a large extent, the argument as to what a sentencing judge may properly take into account in imposing a sentence for conspiracy is conducted under the shadow which the courts have cast upon the bringing of conspiracy charges. Concern has frequently been expressed about the possible misuse of these charges. The House of Lords expressed its misgivings in Verrier v Director of Public Prosecutions [15] and this Court did so in R v Hoar [16] . Part of the concern is that an accused, convicted of a conspiracy charge, may be punished for a substantive charge which the Crown has not brought, whether for lack of evidence or for some other reason. The line is sometimes a fine one to walk but it has to be walked if a conspiracy charge is brought and the accused is convicted. 1. [1967] 2 AC 195. 2. (1981) 148 CLR 32. In the present case Kirby P said [17] The key to a principled approach to sentencing a person such as the applicant who has been convicted by a jury of conspiracy is to ensure that he is punished solely for the offence of which he stands convicted. This is the criminal agreement which constitutes the conspiracy and not the substantive offence. As a statement of principle, his Honour's statement is indisputable. But it leaves for determination just what is involved in sentencing for the offence of conspiracy. In that regard Kirby P spoke of "facts relevant to sentencing [deriving] strictly from the consequences which necessarily follow from the jury's verdict" [18] . If what is meant is that the sentencing judge is confined to a consideration of the agreement itself and may make no findings as to events which followed, the statement is at odds with the authorities mentioned earlier in this judgment. And it is at odds with the broader principle that a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury's verdict [19] . 1. R v Savvas [No 2] (1991) 58 A Crim R 174 at 184. 2. R v Savvas [No 2] (1991) 58 A Crim R 174 at 185. 3. Liu v The Queen (1989) 40 A Crim R 468 at 473-474. It is commonplace that the ingredients of the offence of conspiracy are complete once there is agreement between two or more persons [20] . But it is equally plain that the conspiracy does not end with the making of the agreement. "It will continue so long as there are two or more parties to it intending to carry out the design." [21] The conspiracy alleged by the Crown in the present case continued over a period of a year or so and during that time the parties to the conspiracy decided on such matters as the dates of importation of heroin and the quantities involved. A finding of guilt by the jury that there was a conspiracy as alleged by the Crown necessarily involved, as has already been stated, an agreement by the appellant with others to import large quantities of heroin and thereafter to distribute it. In assessing what Gleeson CJ described as "the degree of criminality involved in the appellant's participation in the conspiracy" [22] , Hunt J was entitled to have regard to the part the appellant played. A permissible, perhaps the only, way in which his Honour could do that was by considering the number of importations and supplies of heroin in which the appellant was involved. 1. Gerakiteys v The Queen (1984) 153 CLR 317 at 327, 334; R v Kamara [1974] AC 104 at 119. 2. R v Doot [1973] AC 807 at 823. See also R v G, F, S and W [1974] 1 NSWLR 31 at 43-44. 3. R v Savvas [No 2] (1991) 58 A Crim R 174 at 177. Conclusion No error has been shown in the way in which Hunt J approached sentencing the appellant. We would dismiss the appeal.