Regina v X, Regina v Y [2002] NSWCCA 40

Reported Decision : (2002) 130 A Crim R 153

New South Wales Court of Criminal Appeal

CITATION : Regina v X, Regina v Y [2002] NSWCCA 40 FILE NUMBER(S) : CCA 60291/01; 60320/01; 60321/01 HEARING DATE(S) : 3 September 2001 JUDGMENT DATE : 26 February 2002

PARTIES : Regina v X, Regina v Y JUDGMENT OF : Bell J at 1; Howie J at 2; Smart AJ at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0539; 00/11/0540 LOWER COURT JUDICIAL Mitchelmore ADCJ OFFICER :

(C) D Fagan SC COUNSEL : (X) R Hoenig (Y) S J Odgers SC (C) Cwth DPP SOLICITORS : [X] M Rumore [Y] Jeffreys & Associates]

DECISION : See paras 75-81 of judgment

IN THE COURT OF CRIMINAL APPEAL 60291/01 60320/01 60321/01

BELL J HOWIE J SMART AJ

Tuesday 26 February 2002

NON-PUBLICATION REGINA v X REGINA v Y

JUDGMENT

1 BELL J: I agree with the orders proposed by Smart AJ for the reasons that his Honour gives. 2 HOWIE J: I have had the very great benefit of reading in draft the judgments in these matters prepared by Smart AJ. I gratefully adopt his summary of the facts and the principles to be applied in determining the appropriate sentences for each of the respondents. 3 I agree with Smart AJ that in the case of each of the respondents the appeals should be allowed and the sentences increased. However, I cannot agree with his Honour's decision that in each case the non-parole period should remain unaffected. I would increase them. I appreciate that I am in the minority in this view and, therefore, will give my reasons briefly. 4 In my opinion, the sentences imposed by the sentencing judge failed to a very significant degree to reflect the objective seriousness of the offences, the extent of the respondents' criminality in the scheme to import large quantities of drugs into Australia, the need to denounce such activity which so significantly imperils this community, and the need for general deterrence. Whatever the subjective circumstances of the respondents, however significant be the assistance given and proffered by them and notwithstanding the difficult circumstances of the custody they face as a result of the assistance given by them, the total sentences imposed and particularly the non-parole periods specified were, in my respectful opinion, inadequate to properly punish them for what they did. 5 In my opinion a discount of the extent granted to the respondents is appropriate only in the most exceptional case. Whether it is an exceptional case is not determined only upon an assessment of the assistance granted or the consequence of that assistance. The determination of whether a particular case is so exceptional as to justify the reduction of the otherwise appropriate sentence by more than half cannot be considered in isolation from a proper regard to the offence committed or the need for general deterrence. A failure to do so is likely to result in a sentence that is inadequate to a significant degree. Encouragement of offenders to co-operate is one thing: the passing of an inadequate sentence because of that co-operation is quite another. The deterrence aspect of the sentence is diluted by the promise of a discount if the offender co-operates when caught. I do not believe such a discount can be justified in the present case having regard to the very great seriousness of the offences committed and the substantial criminality of the respondents' involvement in them. 6 But at the end of the day, no matter what be the mechanics of arriving at the sentence, the starting point chosen or the discounts applied, the sentencing court must stand back and ask whether the sentence is appropriate to the crime committed. When that question is asked in the present cases, the answer is a resounding "No". 7 I believe that the Crown's submission put to this Court that the starting sentence for X before the application of the discounts for assistance and under s 16G of the Crimes Act 1914 should have been life imprisonment had very substantial merit. Such a sentence would have been justified, in my view, even though the respondent was not a principal in the conspiracy. What he did, in the context of the seriousness of the importations in which he was involved, particularly when considered against the fact that he had a previous conviction for a serious offence of this type, justified a life sentence before the discounts were applied. As against the seriousness of his criminal conduct, the subjective material was of little weight. 8 The maximum sentence for an importation is not necessarily reserved for a principal. The importation can be of such seriousness and the role of a participant so significant to the importation that the objective seriousness of the offence committed warrants the imposition of the maximum penalty notwithstanding that the criminal activity of others involved in the importation may have been more serious. If the respondent's activity warranted the maximum penalty, he can be hardly heard to complain that others more seriously involved also received the maximum penalty. 9 Had the sentencing judge started his assessment of the appropriate sentence for X on the basis that the objective facts warranted life imprisonment, there would, in my view, have been no appealable error in that determination. But that is not the question before this Court when considering an appeal by the Crown. It cannot be said that his Honour had no discretion other than to impose the maximum sentence of life imprisonment on X. Therefore, the Crown's submission that his Honour was in error in not starting from that sentence must fail. 10 In any event, it will rarely, if ever, be appropriate for the Crown to argue on its appeal to this Court that the maximum sentence should have been imposed when the Crown made no such submission to the sentencing court. The Crown should not be heard to make a different case in this Court than it did at first instance. I appreciate that it is not normal practice for the Crown to urge a sentencing judge to impose a particular sentence, but the imposition of the maximum penalty for any offence is such an unusual and significant step, that, in my view, the Crown should make such a submission before the sentencing judge to permit the offender to meet it and the sentencing judge to consider its merits. 11 I agree with Smart AJ that the starting sentence for X was manifestly inadequate and, although I doubt the appropriateness of the figure chosen by his Honour, I am prepared to accept it for the reasons he gives in his judgment. The non-parole period imposed upon X was also manifestly inadequate. However, I cannot agree with Smart AJ that a minimum period of custody at the bottom of the available range should be considered now or should have been considered by the sentencing judge. 12 The non-parole period is part of the sentence and should be determined according to the facts and circumstances of the particular offender. Simply because a guideline has emerged which suggests that a non-parole period of about two-thirds of the total sentence is generally to be considered appropriate for Commonwealth offences in the normal case, it does not follow that the sentencing judge, or this Court, is relieved from making a proper determination of the minimum period that a particular prisoner should serve in custody. To observe that there is a proportion of the total sentence that will generally be appropriate for a non-parole period and then simply to apply it as a matter of course is to reduce sentencing to a mathematical formula. I believe that there is a real danger of this happening in the sentencing of Commonwealth offenders. I have little doubt that it was the course taken by the sentencing judge. 13 I cannot agree that an appropriate non-parole period for X is 60 per cent of the total sentence. The non-parole period is to reflect all the relevant factors that determine the appropriate punishment, including not only rehabilitation but also specific and general deterrence. Having regard to X's previous conviction and the fact that the overall sentence has been substantially reduced by reason of the custodial consequences for him of the assistance he has given and proffered, a non-parole period of 60 per cent is, with respect, completely unjustified. Although the age of X might in some circumstances be a relevant matter, it has little, or no significance in determining the appropriate non-parole period in this case. X was 55 years of age when he committed the present offences which involved serious and continued criminality extending over a period of 5 months. The fact that he is now required to serve a lengthy sentence at the age of 57 years seems to me to be of no consequence. Nor does the age at which he will be released after an appropriate period in custody have any relevance in determining what that period of custody should be. The fact that X may have to leave the country at the expiration of the sentence would argue against the imposition of the normal non-parole period, let alone, one at the bottom of that range. Further, the nature of his custody is a matter that was taken into account in the exceptional discount that was applied to the head sentence and that, necessarily, reduced the non-parole period he would be required to serve. It is not a factor that should necessarily be taken into account again as justifying a non-parole period at the bottom of the range. 14 The Crown appeal has succeeded in respect of the sentence imposed upon X. That means that this Court should now re-sentence the respondent and consider for itself the appropriate non-parole period. The non-parole period of 6 years remains, in my respectful opinion, manifestly inadequate. I believe that the proportion of the sentence to be served by way of a non-parole period should be 75 per cent and, therefore, 7 years 6 months. That is the non-parole period that, in my view, should now be imposed.