Reported Decision : [2000] 49 NSWLR 149 [2000] 113 A Crim R 39 New South Wales Court of Criminal Appeal CITATION : Regina v Carrion [2000] NSWCCA 191 FILE NUMBER(S) : CCA 60648/99 HEARING DATE(S) : Friday 12 May 2000 JUDGMENT DATE : 26 May 2000 PARTIES : Regina v Roy Carrion JUDGMENT OF : Spigelman CJ at 1; Wood CJ at CL at 21; Foster AJA at 22; Grove J at 23; James J at 53 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0890 LOWER COURT JUDICIAL Woods DCJ OFFICER : COUNSEL : P.G. Berman with M. Grogan (Crown/Applicant) J.S. Stratton (Respondent) SOLICITORS : S.E. O'Connor (Applicant) T.A. Murphy (Respondent CATCHWORDS : Criminal Law and Procedure - Sentence - Crown Appeal Against Inadequacy - Drug Trafficking - Absence of Exceptional Circumstances - Full Time Custody Required - Resentence - Applicability of Crimes (Sentencing Procedure) Act 1999 After Successful Crown Appeal Against Original Sentence Imposed Prior to Proclamation of that Act. Sentencing Act 1989 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Criminal Appeal Act 1912 Crimes Legislation Amendment (Sentencing) Act 1999 Interpretation Act Act 1987 R v GDR 1994 35 NSWLR 376 R v Hampton 1998 46 NSWLR 729 R v Bloomfield 1998 44 NSWLR 734 Rodway v The Queen 1990 169 CLR 515 Radenkovic v The Queen 1990 170 CLR 623 Siganto v The Queen 1998 194 CLR 656 CASES CITED: Breeze v R 1999 106 A Crim R 441 Samuels v Songaila 1977 16 SASR 397 Bakker v Stewart 1980 VR 17 R v Mason & Saunders 1997 98 A Crim R 204 R v Cacciola Unreported CCA 15 October 1998 Griffiths v The Queen 1997 137 CLR 293 R v Bond 1990 48 A Crim R 1 DECISION : Crown Appeal Allowed ; Respondent Resentenced. IN THE COURT OF CRIMINAL APPEAL 60648/99 SPIGELMAN CJ WOOD CJ at CL FOSTER AJA GROVE J JAMES J Friday 26 May 2000 REGINA v ROY CARRION JUDGMENT 1 SPIGELMAN CJ: An issue has arisen as to the appropriate form of the order for this Court to make in the case of a successful Crown appeal. When the Respondent was sentenced by Woods DCJ the sentence was imposed pursuant to the provisions of the Sentencing Act 1989 then in force. Section 5 of that Act would have required his Honour, if he had imposed a full time custodial sentence, to have fixed a minimum term and then an additional term. That Act is now repealed. The equivalent provision under s44 of the Crimes (Sentencing Procedure) Act 1999 requires the identification of a term and then a non-parole period. 2 In what form should this Court make a new sentence upon a successful Crown appeal? The issue is one of statutory construction. 3 The matter comes before this Court pursuant to s5D of the Criminal Appeal Act 1912 which relevantly provides: "5D(1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper". 4 Of particular significance for present purposes is that the statutory power is conferred in terms of the formulation "vary the sentence". This is in contrast with s6(3) of the Act with respect to appeals by convicted persons against severity of a sentence, which is in the following terms: "6(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal". This power expressly provides for a quashing of the original sentence and the substitution of another sentence therefore. 5 Section 44 of the Crimes (Sentencing Procedure) Act 1999 is in the following terms: "44(1) When sentencing an offender to imprisonment for an offence, a court is required: (a) firstly, to set the term of the sentence, and (b) secondly to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The non-parole period must not be less than three-quarters of the term of the sentence unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision. …". 6 As can be seen from the introductory words of s44(1) the relevant obligation is imposed upon "a court". That word is defined in s3(1) to include the Court of Criminal Appeal. 7 Section 3(1) also provides a definition of sentence which means, relevantly: "(b) when used as a verb, to impose a penalty for an offence". 8 The phrase in s44(1) "when sentencing an offender to imprisonment for an offence …" can be read as "when imposing a penalty for an offence". In my opinion when this Court, pursuant to s5D, exercises the discretion to "vary the sentence and impose such sentence as to the Court may seem proper" it is "sentencing an offender" within the meaning of s44(1) of the Crimes (Sentencing Procedure) Act 1999. Accordingly it is obliged, subject to any statutory provision to the contrary, to impose a sentence in the form for which s44 provides. 9 In its submissions in the present proceedings, the Crown drew to the Court's attention the possibility, without formally submitting, that such contrary provision could be found in cl 37 of sch 2 of the Crimes (Sentencing Procedure) Act 1999 which provides: "37 Subject to the regulations: (a) anything begun before the appointed day under a provision of the old legislation for which there is a corresponding provision in this Act maybe continued and completed under the old legislation as if the Crimes Legislation Amendment (Sentencing)Act 1999 had not been enacted ….". 10 It is the Crimes Legislation Amendment (Sentencing) Act 1999 which, by s3, repeals the Sentencing Act 1989. 11 The suggestion put forward is that the imposition of a sentence can be characterised as "anything begun" within the meaning of that phrase as it appears in cl 37(a) and that the consideration by the Court of Criminal Appeal of the exercise of its discretion to "vary the sentence and impose such sentence …" under s5D(1) of the Criminal Appeal Act, can be characterised as that "thing" being "continued and completed" also within cl 37(a) of the 1999 Act. 12 In my opinion, the imposition of a sentence is not something "which begins" at a certain point of time. Nor can it be said to be "continuing" until "completed" in an appellate court. (It may be that the position is different in the case of a sentence hearing which was being conducted on the day that the new Act came into force and which was completed after the Act was in force. That is not this case.) 13 Section 5D(1) begins with the proposition that a particular sentence has been "pronounced". All things that are required to be done, have been done. Nothing, in terms of the judicial process, as distinct from the sentence itself, can be described as "begun". The process of appeal does not involve a "continuation" of any process. Nor does a determination by the Court of Criminal Appeal involve the "completion" of any process. Although what the Court is empowered to do is expressed in terms of "vary the sentence", these words do not, in this context, suggest that any particular "thing" has been in process over a period of time. 14 In my opinion, cl 37(a) does not constitute a statutory provision which leads to a conclusion that s44 of the 1999 Act is not applicable in the present case. 15 The Crimes (Sentencing Procedure) Act is in large measure a consolidating Act, but it is not only a consolidating Act. A specific difference is found in the comparison between s44 of the 1999 Act and s5 of the 1989 Act. The previous legislation provided for the setting of a minimum term and an additional term. The new legislation provides, firstly, for the setting of a total term and then, for a non-parole period. This Court had rejected a construction of the Sentencing Act 1989 that in some way it was appropriate to proceed on the basis that the total sentence was a primary consideration. (See R v GDR (1994) 35 NSWLR 376 at 376-377, 378; R v Hampton (1998) 46 NSWLR 729 at 731-732; R v Bloomfield (1998) 44 NSWLR 734 at 740). 16 The 1999 Act makes it clear that the Court must first set the total sentence. Accordingly under this Act, unlike the 1989 Act, a finding of "special circumstances" would necessarily result in the reduction of what is now called the "non-parole period". 17 Perhaps there are other changes in the new sentencing regime which may give rise to issues as to whether or not a previous provision continues to apply. I have in mind in particular s55 of the Interpretation Act 1987 concerning an Act which "increases the penalty" for an offence. This section is repealed by cl 4.33 of sch 4 of the Crimes Legislation Amendment (Sentencing) Act 1999 and re-enacted as s19 of the Crimes (Sentencing Procedure) Act 1999. 18 No issue was raised in the present proceedings that any aspect of the course of resentencing by this Court under s44 of the 1999 Act would involve any "increase in penalty" within the meaning of the traditional provision now found in s19 of that Act. Nor was any submission made to the effect that any provision of s30(1) of the Interpretation Act 1987, which also impinges on the continued operation of repealed Acts, was relevant to the decision before the Court. 19 The identification of when a change in sentencing regime ought to be characterised as an "increase in penalty" or when the common law principles reflected in s30 of the Interpretation Act apply, sometimes gives rise to difficult questions, which it is unnecessary to answer. (See Rodway v The Queen (1990) 169 CLR 515 at 521 and 523; c/f Radenkovic v The Queen (1990) 170 CLR 623 at 632; Siganto v The Queen (1998) 194 CLR 656 at 662; Breeze v R (1999) 106 ACrimR 441 at 444; Samuels v Songaila (1977) 16 SASR 397 esp at 403, 412-413; Bakker v Stewart [1980] VR 17 at 21; Bond v R (1990) 48 ACrimR 1 at 3-4; R v Mason & Saunders (1997) 98 ACrimR 204 at 207). 20 I agree with the orders proposed by Grove J and his Honour's reasons. 21 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Grove J. I agree with his reasons and the orders he proposes. 22 FOSTER AJA: I also have had the advantage of reading in draft the reasons for judgment of Spigelman CJ and of Grove J and agree with their reasons and the orders proposed. 23 GROVE J : This is a Crown appeal asserting inadequacy of sentence imposed by Woods DCJ in the Sydney District Court. The respondent had pleaded guilty to two counts of knowingly taking part in the supply of prohibited drugs, respectively that commonly referred to as ecstasy and cannabis leaf. 24 The circumstances found by the learned sentencing judge included the following. Intense police surveillance including the use of listening devices was directed at a flat in Clovelly occupied by one Leslie Kalache, a person significantly involved in drug trafficking. On 21 May 1997 the respondent's brother Ray Carrion was released from gaol. Between 24 May and 21 June 1997 the two brothers visited the Clovelly flat on ten occasions. On 21 July 1997 the respondent visited the flat alone. Conversations were recorded. It is unnecessary to recite the content. His Honour found that collective involvement in selling drugs was unequivocally demonstrated and no challenge to that finding is made. He sentenced the respondent in each case to three years imprisonment (presumed to be understood as concurrent fixed terms) to be served by way of periodic detention. 25 His Honour acknowledged that he had been expressly referred by the Crown to the decision of this Court in R v Cacciola , unreported 15 October 1998 which reaffirmed that trafficking in illicit drugs must attract full time custodial sentence other than in exceptional circumstances. He found that the circumstances in this case were exceptional. 26 His Honour listed two groups of matters which he categorized as common place and exceptional. In the former category he included the guilty plea, remorse, an intention not to reoffend and proven rehabilitation in relation to the respondent's own drug use (demonstrated by a series of clear urine tests). In the latter he specified five matters which he considered were all relevant to the relationship between the respondent and his brother Ray. First, they shared an institutional history in the sense that both had served lengthy periods in prison; second, the respondent was under the influence of his brother in an unusual and exceptional way; third, fears of security in gaol arising out of a belief that he was a selected victim for a fate similar to his brother who was murdered after his return to prison; fourth, it was clear from the taped product of the listening device that the respondent did not want to become involved and, fifth, that Kalache had preyed on Ray Carrion before he was released with the intention of recruiting him to his drug trafficking operation and this in turn drew the respondent into them. 27 The Crown has submitted that none of these matters was capable of constituting exceptional circumstances which would justify the imposition of a sentence other than full time custody. I would uphold the Crown submission and I deal with the five aspects indicated by his Honour seriatim. 28 The sharing of an institutional history demonstrates that the brothers had significant individual criminal records. Possession of such a record denies leniency. It is antithetical to principle to consider it a matter of mitigation, still less a matter of exceptional mitigation. 29 There is no elaboration of what is conceived to be the unusual and exceptional influence of his brother Ray upon the respondent. Earlier in his remarks his Honour had referred to Ray Carrion being described as a self centred and forceful personality who made decisions for other family members not necessarily in their best interests. It is not clear why this should particularly translate into a strong influence on the respondent and further translate into a significant mitigation of his criminality. The extent of influence would rationally be measured in the context of the earlier specific finding that his Honour did not accept that "in any way Roy Carrion was a powerless tool of his brother". 30 The particular fear for safety of the respondent if returned to prison was sought to be evidenced by testimony from Mr O'Brien his solicitor. He referred to a murder in Goulburn Gaol, now about four to five years ago, of an unnamed aboriginal prisoner. Five men including Ray Carrion were charged with that murder. The respondent was not one of these and has never been charged in respect of that murder. Mr O'Brien stated that a list of those five charged was circulated within the aboriginal community. He reported that one person on the list, in addition to Ray Carrion, was now dead and that two others had been bashed whilst in gaol. Mr O'Brien's thesis was that, because the respondent was Ray Carrion's brother, there was an assumption in the aboriginal community that he would seek to revenge his brother, thus he became a marked man and therefore his life would be placed at risk. 31 The theoretical premises of Mr O'Brien's evidence do not provide objective evidence for reasonable fear. Although his Honour included reference to this in the list of exceptional matters, he observed that the expressed fears did not of themselves justify other than a full time custodial sentence. It was not a relevant factor in the assessment of the sentence imposed and could not constitute an exceptional reason for departing from applicable authority. 32 The fourth matter to which express considerable weight was given, was a finding that it was clear from the tapes that the respondent did not want "to be involved". Insofar as this is to be understood as a finding that the respondent did not wish to involve himself in the commission of crime, the finding is demonstrably wrong. 33 Two statements from the listening device product identified as Tape 494A have been referred to in submissions. It can be mentioned in passing that this is a recording of conversation between the respondent and Kalache in the absence of Ray Carrion. Both counsel for the Crown and for the respondent agreed that the statements should be interpreted in their context. I agree. 34 The first statement "I never wanted to be involved with it" is part of a conversation about Ray Carrion's lavish spending and his gambling. It is the latter about which the respondent is saying that he does not wish to be involved as his added remark "I reckon he (Roy) shouldn't do it" shows. There is nothing to suggest that the respondent is telling the principal drug trafficking operative that he or his brother did not or do not wish to be involved in that activity. Their actions contradict any such understanding. The second statement, in part "I hate doing the gear mate" is plainly a reference to the respondent's own drug use. It follows immediately his statements that he doesn't like heroin, he does like pot and that the only thing he has done with E's (ecstasy) is smoke it. 35 There is force in the Crown submission that what is manifest is the respondent's preparedness to engage in drug trafficking whilst being discriminating about his own drug use. Rather than being a matter of mitigation, the respondent's remarks are capable of enhancing his culpability. 36 So far as the fifth matter is concerned, it is not possible to conceive how a circumstance that Kalache may have recruited Ray Carrion to his organization before he left gaol and that subsequently the respondent also joined in, can become a matter of mitigation at all. 37 There is no basis for categorizing this case as exceptional. In my opinion the sentences were manifestly inadequate and should be quashed and the Court should proceed to resentence. 38 Before turning to deal with this matter an issue arises as to whether the resentence in this Court should be expressed and imposed in terms of the Crimes (Sentencing Procedure) Act 1999 which was proclaimed in force on and from 3 April 2000. It is contended by the Crown that it is unclear whether resentence following a successful appeal pursuant to s5D of the Criminal Appeal Act 1912 should apply the new Act having regard to transitional provisions therein. Reference is made to clause 37 of schedule 2 of the Crimes (Sentencing Procedure) Act and submission is made that the applicability is dependent upon construction of a phrase appearing therein "anything begun before the appointed day". 39 Attention is drawn to the different language in s5D of the Criminal Appeal Act which empowers the Court to "vary the sentence and impose such sentence as to the (court) may seem proper" and s6(3) of that Act which provides that in respect to an appeal under s5(1) against sentence the Court may "quash the sentence and pass such other sentence in substitution thereof". The Crown therefore observed that upon particular construction of the language in the schedule of the 1999 Act and by reference to the statutory language it can be concluded that whilst an exercise of power pursuant to s6(3) of the Criminal Appeal Act is a fresh sentencing exercise, resentencing under s5D of the Act is not, but is rather a variation of sentence which therefore is to be regarded as continuance and completion of something and governed by the legislation in effect prior to 3 April 2000. 40 Section 5D of the Criminal Appeal Act 1912 has been described as "truly appellate" in nature: Griffiths v The Queen 1977 137 CLR 293. When a court upholds an appeal it sets aside the sentence originally imposed and when it imposes some other sentence it exercises its own powers of finding, discretion and assessment. It is therefore in a real sense a fresh sentence and not a continuation of the sentence which has been previously imposed and is not to be categorized as a variation. The earlier sentence which has been quashed has no continuing existence. That, therefore the court after a successful Crown appeal pursuant to s5D of the Criminal Appeal Act is engaged in a new sentencing exercise, is confirmed by the perception that the earlier sentence has been set aside: compare R v Bond 1990 48 A Crim R 1. There is no continuing sentence and the construction suggested by the Crown to be applied to the words in clause 37 of schedule 2 to the Crimes (Sentencing Procedure) Act 1999 should not be adopted. 41 Since preparing the foregoing I have had the opportunity to read in draft form the detailed judgment on this issue prepared by Spigelman CJ. I agree with his reasons. 42 I would therefore proceed to resentence in this appeal in terms of the lastmentioned Act. 43 This Court makes its own findings in respect of sentence and it is unnecessary to resolve debate about whether or not particular findings in the court below in addition to those already discussed were or were not properly viewed as mitigating factors. 44 The respondent together with his brother and Kalache were involved in selling drugs. The counts demonstrate involvement of the respondent in the sale of two separate types of drugs. He was engaged in this traffic for financial gain and was active between May and July 1997. 45 The respondent was born on 24 April 1959. He has a considerable prior record including convictions for armed robbery in both New South Wales and South Australia. He has been sentenced for escape from lawful custody. He has had problems with personal drug use which he is taking steps to address and there is a report from Dr Roberts, a psychiatrist in this regard. I will not repeat the matters discussed in connection with the finding in the court below of exceptional circumstances. I would find that the respondent's expressions of remorse and intention not to reoffend were matters of speculation. He did not himself give evidence in the sentence proceedings and the court below has no advantage in that regard. 46 Some matters are of benefit to the respondent on resentence. Following a successful Crown appeal it is appropriate to approach the new sentence with a degree of restraint bearing in mind what is referred to, and readily understood, as double jeopardy. There is evidence of the satisfactory service to date of the periodic detention ordered by the sentence which I propose should be quashed. 47 Finally there is the weight to be given to the pleas of guilty. What was described as legal argument proceeded before the District Court on 21 and 22 July 1999. Being raised were objections concerning the validity of the listening device warrant, objections to the terms of an intended count for conspiracy and its specification of various sorts of drugs and, in the event of admission otherwise, to particular content of the product of the listening device. On the latter day, it was indicated that the respondent would plead guilty to what was described as a new indictment and on 23 July he pleaded guilty to the two counts mentioned at the commencement of this judgment. 48 The pleas of guilty therefore were offered at the earliest effective opportunity. Counsel for the respondent submitted that there should be a substantial discount on pragmatic grounds, the avoidance of a long and expensive trial. 49 The Crown acknowledged that the pleas of guilty had the utilitarian benefit of saving time and the expense of a trial. It was submitted, however that beyond that, once the respondent was identified as a participant in the taped conversations the case against him was overwhelming. His identification was made certain by the availability of the surveillance evidence of the flat in Clovelly. 50 The respondent should receive a benefit for his pleas of guilty based upon these pragmatic considerations. 51 I find there are no special circumstances leading to a departure from the proportion between head sentence and non parole period specified in s44(2) of the Crimes (Sentencing Procedure) Act 1999. Three days pre-sentence custody before entry to bail should be credited. 52 I propose the following orders: (1) The Crown appeal be allowed. (2) The sentences imposed in the court below be quashed. (3) In lieu thereof the respondent be sentenced on each count to three years imprisonment to commence on 23 May 2000 to be served concurrently. I would specify a non parole period of two years and three months to commence also on 23 May 2000. (4) I would order the release of the respondent to parole on 22 August 2002. 53 JAMES J: I agree with the judgment of Grove J and I also agree with the judgment of Spigelman CJ. ********** 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.