New South Wales Court of Criminal Appeal CITATION : R. v. BUGEJA [2001] NSWCCA 196 FILE NUMBER(S) : CCA 60721/00 HEARING DATE(S) : 11 May 2001 JUDGMENT DATE : 11 May 2001 PARTIES : R (Commonwealth) v. BUGEJA, Saviour JUDGMENT OF : Hodgson JA at 1-34, 46; Greg James J at 33; Adams J at 35 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0721 LOWER COURT JUDICIAL Williams, DCJ OFFICER : COUNSEL : D.A. Buchanan for appellant D.G. Staehli for Crown SOLICITORS : John Bettens & Co. for appellant Commonwealth DPP for Crown CATCHWORDS : CRIMINAL LAW - Appeal against sentence - Serious drug offence by repeat offender - Early plea of guilty - Utilitarian discount - Application to Commonwealth offence - Relevant considerations - Whether 10% discount appropriate - Whether appropriate to increase non parole period for repeat offence, when this already taken into account in setting head sentence. Crimes Act 1914 (Cwlth) ss.16A, 16G. LEGISLATION CITED : Customs Act 1901 (Cwlth) ss.233B, 235. Dugs (Misuse and Trafficking) Act 1985 (NSW) s.25(1) Wong & Leung (1999) 108 A Crim R 532 CASES CITED: Winchester (1992) 58 A Crim R 395 R. v. Thomson & Houlton (2000) 49 NSWLR 383 DECISION : See par.46 of judgment IN THE COURT OF CRIMINAL APPEAL 60721/00 HODGSON, JA GREG JAMES J ADAMS J Friday 11 May 2001 REGINA (COMMONWEALTH) V. Saviour BUGEJA JUDGMENT 1 HODGSON JA: On 6 October 2000, the applicant in this matter pleaded guilty before a magistrate to two charges. 2 The first was a charge pursuant to s.233B(1)(c) of the Customs Act 1901 that he, on the 11th day of August 2000, at Penrith in the State of New South Wales, did without reasonable excuse have in his possession prohibited imports to which s.233B of the Customs Act applied, to wit narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to heroin. 3 The second was a charge brought pursuant to s.25(1) of the Drugs (Misuse and Trafficking) Act 1985 (NSW) that he, on about 11 August 2000, did supply a prohibited drug, to wit methylamphetamine. 4 The applicant adhered to those guilty pleas on 27 October 2000 in the District Court before Judge Williams, and on 31 October 2000 the applicant was sentenced by his Honour. 5 On the first charge, relating to the Commonwealth offence, his Honour sentenced the applicant to nine years imprisonment, with a non parole period of six and a half years, both to date from 11 August 2000, the date of the applicant's arrest. 6 On the second charge, relating to the State offence, his Honour sentenced the applicant to imprisonment for a fixed term of three years, to be served concurrently with the sentence imposed for the Commonwealth offence. His Honour declined to set a non parole period, having regard to the non parole period already set for the Commonwealth charge. 7 We are dealing with an application for leave to appeal from those sentences. The facts can be briefly stated. 8 On the evening of 10 August 2000, the police intercepted a telephone conversation involving the applicant, which suggested the presence of drugs at his home in Sydney. 9 On 11 August 2000, Australian Federal Police executed a search warrant on the applicant's home in Penrith. There they found, in a key combination safe, a clip-seal bag containing a quantity of heroin in powder form; in the top drawer of a dresser in the front bedroom, a clip-seal bag with a silver foil containing 0.5 grams of heroin; inside a cylinder on a shelf in a garage, 24 small clip-seal bags containing heroin in powder and in rock form; in a kitchen cupboard above the stove, a small clip-seal bag containing two pieces of heroin; and in the same kitchen cupboard, a set of scales, a plastic food container, a funnel, a Breville coffee and spice grinder, and numerous clip-seal bags. Traces of white powder were found on these items; and in the same cupboard, there was also a package containing five ultra-fine syringes. 10 In the safe in which the police found the heroin, they also found a quantity of methylamphetamine mixed with pseudoephedrine. Cash totalling A$15,000 and US$20, and a large amount of gold jewellery, were also found in the safe. 11 The same day, the applicant was arrested. He declined to take part in a record of interview. 12 In his luggage, police found amongst other things a key and a piece of paper, on which were written a safe combination, both of which were later used to open the safe previously found at the Penrith house. 13 A total of eight individual lots of heroin were found, which together weighed 288.1 grams. The average purity of the eight lots was 44 per cent, and accordingly, for the purposes of sentencing under the Customs Act, the pure weight of heroin was 139.8 grams. 14 I note that under the Customs Act, the trafficable quantity of heroin is two grams and the commercial quantity of heroin is 1.5 kilograms. If the applicant had had no prior relevant conviction, the maximum sentence for an offence under s.233B of the Customs Act involving this quantity of heroin would have been twenty-five years imprisonment and/or a $100,000 fine. However, the appellant did have prior convictions, including a conviction in 1992 for an offence under section 233B, so that s.235 of the Customs Act had the effect that the maximum penalty in this case was imprisonment for life. 15 The weight of the methylamphetamine and pseudoephedrine mixture found in the safe was 21.6 grams. Under the relevant New South Wales Act, an indictable quantity of amphetamine is five grams and a commercial quantity is 250 grams. The applicable penalty in this case was fifteen years imprisonment and/or 2000 penalty units. 16 In his remarks on sentence, the sentencing Judge noted, in relation to the Commonwealth offence, that this was a repeat offence, which was objectively serious and committed for commercial gain. His Honour concluded that the applicant was actively involved in supplying drugs within the community, and accordingly did not equate with someone of the stature of a courier as low down in an organisation, as referred to in Wong and Leung (1999) 108 A Crim R 531. 17 His Honour noted that the applicant pleaded guilty at the earliest opportunity in the Local Court, and that, in accordance with Winchester (1992) 58 A Crim R 395, he was entitled to a greater discount for this plea than if it had been made later. He noted that the guidelines in R. v. Thomson and Houlton (2000) 49 NSWLR 383 were not expressed to apply to Commonwealth offences; but also noted that the general statement of principles would presumably apply, though perhaps the level of discounts may not. His Honour remarked that the plea of guilty had to be seen in the light of the strong Crown case. 18 In relation to the Commonwealth offence, having applied a reduction in accordance with s.16G of the Commonwealth Crimes Act and taking into account all the matters referred to in s.16A of that Act, his Honour arrived at a head sentence of nine years. In relation to the non parole period, his Honour noted that these were repeat offences, and that there was little or no prospect of rehabilitation. His Honour fixed a non parole period of six and a half years. 19 In relation to the State offence, his Honour took into account Thomson and Houlton; but expressed the view that the applicant was not entitled to a discount for the early guilty plea of twenty-five per cent. His Honour said this: A discount of 25 per cent on a sentence would be considered in a case of a first offender whose plea is of significant utilitarian value but in my view repeat serious drug offenders are not entitled to a significant discount on a plea of guilty no matter how utilitarian their plea might be. 20 In the result, in relation to the State offence, his Honour sentenced the applicant to a fixed term of imprisonment for three years, and noted that he allowed a ten per cent deduction for the plea of guilty. 21 The first ground of the application for leave to appeal was that the sentencing Judge erred in fixing, in respect of a Commonwealth offence, a non parole period which, as a proportion of the head sentence, substantially exceeded sixty-six per cent. In fact, the proportion in this case was around seventy-two per cent. 22 That ground was elaborated on, to the effect that the sentencing Judge was also in error in fixing the non parole period by reference to a motive of commercial gain and by reference to the circumstance that these were repeat offences. On this aspect, the submission was in substance that the sentencing Judge had already taken those matters into account in relation to the fixing of the head sentence and, in those circumstances, it was double counting and wrong to take them into account in also fixing a non parole period of higher percentage than the usual range of around sixty to sixty-six per cent. It was submitted that a non parole period of seventy-five per cent was reserved for the worst type of case, and this was very far from the worst type of case. 23 The second ground of the application was that the sentencing Judge erred in his reasons concerning what is called the utilitarian discount for an early plea of guilty, and had made an insufficient discount, particularly in relation to the Commonwealth offence. It was submitted that the statement which I quoted earlier was an error, and contrary to the principles set out in Thomson and Houlton. 24 I will deal first with the second ground to which I have referred. In my opinion, although the case of Thomson and Houlton and the guidelines set out in that case are said not to apply to Commonwealth offences, it seems clear that this is essentially because of the non participation of Commonwealth authorities in that case, and the view being taken that it was, accordingly, not appropriate to purport to set out guidelines to be applicable to all Commonwealth cases. However, in my opinion the general principles stated in that case are applicable to Commonwealth offences, and should generally be applied to Commonwealth offences. 25 The principles which I have in mind as relevant to this case are the principles that a plea of guilty should generally be taken into account having regard to the advantages to the administration of justice and the saving of resources that are involved in such a plea, and that pleas of guilty, and particularly early pleas of guilty, should be encouraged by discounts for that reason alone. Of course, pleas of guilty may be relevant in other ways to the determination of appropriate sentences, for example as indicating remorse, and as being relevant to the need for individual deterrence. However, Thomson and Houlton makes it clear that, quite apart from those matters, the utilitarian aspect, as it is called, of the plea should be taken into account. Thomson and Houlton also indicates that it is generally appropriate to make it clear that such a utilitarian discount is being given, and to express the amount of that discount. 26 There are authorities to the effect that in general terms there should not be specified particular discounts for particular aspects of the case relevant to sentencing, but that the Court should generally make a global assessment, taking into account all relevant matters. However, in relation to the particular aspect of the utilitarian discount for pleas of guilty, Thomson and Houlton is authority for the proposition that that particular aspect should generally be considered separately, and given a separate articulation in terms of a quantum of discount to further the purpose of encouraging pleas of guilty. 27 The other relevant principle that in my opinion emerges from Thomson and Houlton is that, in relation to that particular aspect of a plea of guilty, the predominant consideration as to the amount of the discount is the timing of the plea. Whereas such matters as the strength of the Crown case and the question of whether the plea indicates remorse are highly relevant to other aspects of the relevance of the plea of guilty, Thomson and Houlton indicates that they are not of great significance in relation to the utilitarian discount. For that reason, in my opinion, the statement of principle by the learned trial Judge which I have quoted was incorrect. 28 The range of discount suggested by Thomson and Houlton on this utilitarian basis is ten to twenty-five per cent. Although that range is not expressed as applying to Commonwealth offences in general terms, it seems to me that it is a reasonable range to adopt. 29 In the present case there was an early plea of guilty, although not an earlier statement admitting guilt made to the police; and it seems to me that an appropriate utilitarian discount would be in the order of twenty per cent. The sentencing Judge did not make explicit what discount was allowed in this case in relation to the Commonwealth offence. However, it seems reasonable to conclude that the discount which he allowed was a similar discount to that allowed in relation to the State offence, that is, ten per cent. 30 In my opinion, therefor, there was an insufficient utilitarian discount for the plea of guilty to the Commonwealth offence; and this would now justify a reduction of the head sentence from nine years to eight years. 31 Turning to the first ground of appeal, in my opinion no error is shown in the reasons of the trial Judge. In my opinion, there is no error in taking into account the circumstance that the offence being dealt with is a repeat offence in setting the head sentence, and taking it into account again in determining the proportion that should be adopted for a non parole period. As the trial Judge said, the purpose, or certainly a predominant purpose, of the non parole period is to allow a period of rehabilitation within the community. In my opinion the circumstance that the offence is a repeat offence, and a conclusion by the sentencing Judge that the prospects of rehabilitation are small, are relevant factors in fixing the proportion for the non parole period. In my opinion a sentencing judge is not precluded from taking those matters into account in fixing the proportion, simply because they have also been taken into account in fixing the head sentence. 32 The percentage arrived at of seventy-two per cent is high but, to my mind, it is not so high as to indicate error which would justify interference by this Court, if this Court was not otherwise reassessing the sentence. However, the Court is reassessing the sentence; and in my view, having set a head sentence of eight years, it is appropriate to fix a non parole period of five years and three months, which is approximately two-thirds of the head sentence. 33 GREG JAMES J: I agree with what his Honour has said concerning the error into which the trial Judge fell in failing to afford to the applicant the utilitarian value of his plea. 34 For myself, I would have inclined to the view that his Honour had also fallen into error in the way in which his Honour came to assess the non parole period, perhaps because his Honour appears, arguably, to have increased both the non parole period and the head sentence because the applicant was a repeat offender. However, since I share the view of the presiding Judge that his Honour has fallen into error on the question of the utilitarian value of the plea, and in that regard it falls to this Court to re-sentence, and I share the view of the presiding Judge as to the appropriate sentence, it is not necessary for me to consider further whether further error has been made out. I share his Honour's views and would propose that the applicant be sentenced as his Honour has proposed. 35 ADAMS J: I agree with the result which the learned presiding Judge has proposed and with his Honour's observations concerning the significance of the plea of guilty in the circumstances of this case. I wish, however, to make some observations about the setting of a non parole period with regard to prospects of rehabilitation. 36 So far as setting a non parole period is concerned, there can be little doubt that his Honour imposed a term whose relationship with the head sentence was well within the upper range. That head sentence had already been set with regard to the need for personal deterrence being demonstrated by the offenders' earlier convictions. Thus, if the non parole period were to be set by reference to the conventional two-thirds relationship with the head sentence the need to deal with the issue of personal deterrence was already catered for. 37 On this basis, while there might theoretically be cases where the application of the conventional relationship would produce a non parole period that was too low having regard to the objectives of sentencing law, there would be very few where this was so and the circumstances justifying a significant departure from the usual proportion would need to be comprehensively set out. 38 If application of the conventional ratio produced a sentence that reflected an appropriate measure of denunciation, retribution and general and personal deterrence, it would be wrong, in principle, to increase it because the prospects of rehabilitation were doubtful or even non existent. 39 It seems obvious that the fundamental purpose of rehabilitation is that the offender will no longer offend. That is precisely the same purpose as punishment to deter the offender from committing further offences. For sentencing purposes, there is no difference in substance between the element of personal deterrence and the element of rehabilitation, when properly analysed. Accordingly, where personal deterrence is already factored into the non parole period, to increase it further because of scepticism that the offender will not re-offend is to double up. 40 If the conventional proportion does not produce a sentence which deals appropriately with denunciation, retribution and general and personal deterrence, then, of course, it should be adjusted to do so. If these factors have been adequately reflected in the sentence, having regard to the principle that the lowest sentence should be imposed which fairly accommodates the sentencing elements I have mentioned, it is a fundamental error, in my view, to increase that sentence because the offender is seen as unlikely to be rehabilitated. 41 The statutory proportion in New South Wales is not set on the basis of any particular assumptions about rehabilitation. No more can be said about it, in my view, than that the Parliament considered that part of a sentence should ordinarily be served in custody, and part under sanctions of a different kind, and unless there are circumstances justifying a variation the statutory ratio should apply. 42 What I have called the conventional ratio which operates in Commonwealth cases does not, to my mind, reflect any calculation or assumptions about rehabilitation, except to the extent that it is one of a number of relevant factors. Accordingly, what I have said about the approach to the New South Wales provisions applies, by and large, to the Commonwealth sentencing structure, with some adjustment being necessary, having regard to the applicable statutory regime. 43 In my respectful view, the reasons stated by his Honour for differing from the conventional proportion to such a significant degree in this case, when his Honour set the non parole period, do not adequately explain the reason for so doing. In particular, in light of the matter identified by his Honour as requiring such a variation, there should have been some advertence to the extent to which the non parole period conventionally appropriate did not provide adequate and sufficient personal deterrence and did not reflect the other purposes of sentencing law to which I have adverted. 44 At all events, it is very important that sentencing Judges avoid, so far as they can, the appearance of double counting, and some further explication of the result was, in my view, required in the circumstances of this case. 45 Otherwise I agree with the judgment of the learned presiding Judge. 46 HODGSON JA: The orders are these: In relation to the sentence in respect of the offence under the Customs Act, leave to appeal is granted and the appeal is allowed. The sentence below is quashed. In lieu thereof, the applicant is sentenced to a head sentence of eight years, commencing on 11 August 2000, with a non parole period of five years and three months, to commence from 11 August 2000 and to expire on 10 November 2005. The sentence under the State Act will remain, and the two sentences will be served concurrently. ********** 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.