Reported Decision: 177 A Crim R 13 New South Wales Court of Criminal Appeal CITATION: Patrick Springer v Regina [2007] NSWCCA 289 HEARING DATE(S): 18 September 2007 JUDGMENT DATE: 16 October 2007 JUDGMENT OF: McClellan CJ at CL at 1; Barr J at 14; Bergin J at 37 DECISION: 1. Grant leave to appeal and allow the appeal. 2. Quash the sentence appealed from and sentence the appellant to a non-parole period of two years and nine months, commencing on 16 December 2005 and expiring on 15 September 2008 and a period during which he shall be eligible to be released on parole, commencing on 16 September 2008 and expiring on 15 June 2010. PARTIES: Patrick Springer, Regina FILE NUMBER(S): CCA 2006/4996 COUNSEL: M Thangaraj C O'Donnell SOLICITORS: Watsons Solicitors & Barristers Commonwealth Director of Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0186 LOWER COURT JUDICIAL OFFICER: Bennett DCJ IN THE COURT OF CRIMINAL APPEAL 2006/4996 McCLELLAN CJ at CL BARR J BERGIN J 16 OCTOBER 2007 PATRICK SPRINGER v REGINA JUDGMENT 1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgment of Barr J. I agree with the orders which his Honour proposes and his reasons. I wish only to add the following additional remarks. Evidence on the appeal 2 This Court has an established practice by which it receives evidence of post sentence conduct which will be taken into account if patent or manifest error is demonstrated when determining whether a different sentence should be imposed. Douar v The Queen [2005] NSWCCA 455 at [121]; Baxter v Regina [2007] NSWCCA 237. 3 However, there are exceptional cases where, although error in the original sentence cannot be demonstrated, evidence of post sentencing events will be received. I discussed some of the relevant principles in Iglesias v R [2006] NSWCCA 261 at [8]-[12] (see also Perkins v R [2007] NSWCCA 80, (2007) 169 A Crim R 516 at [25]-[27]). Examples include: · Evidence which shows that the applicant's treatment in custody has been quite different to the expectation from the evidence led before the sentencing judge: R v Keir (2004) NSWCCA 166 in which reference was made to Regina v Goodwin (1990) 51 A Crim R 328; Regina v Bradley (2004) NSWCCA 88; Wilson v Department of Corrective Services (1997) 93 A Crim R 301. That evidence may demonstrate that the basis upon which the sentencing discretion was exercised has been thwarted. · Evidence which shows that the sentencing judge has been unwittingly misled as to some material fact or significant aspect of the evidence at the time of sentencing. For example fresh evidence which shows that the applicant had, as at the time of sentencing, given more assistance than the police evidence had revealed to the sentencing judge (R v Cartwright (1989) 17 NSWLR 243 at 257; R v Gallagher (1991) 23 NSWLR 220 at 232-233). · Evidence of circumstances relevant to the sentence which, although in existence at the time of sentencing, were not discovered until after the sentence had been imposed. For example, where the offender was only found to be suffering from AIDS after sentence but was obviously infected at the time of sentence (R v Cartwright (1989) 17 NSWLR 243 at 257; R v Bailey (1988) 35 A Crim R 458 at 462). A similar approach may be taken when, although symptoms may have been present their significance may not have been appreciated at the time of sentencing (Iglesias). · Evidence of facts or events occurring after sentencing, which show the true significance or provide the basis for a full appreciation of facts in existence at the time of sentencing (R v Smith (1987) 44 SASR at 588 per King CJ; R v P [2003] NSWCCA 298 at [19]; R v MJM [2004] NSWCCA 66 at [46]). · Evidence which demonstrates that the sentencing judge has drawn inferences on a misunderstanding of tendered medical evidence. (R v Swindale, Court of Criminal Appeal, 22 June 1998, unreported; R v Goodwin (1990) 51 A Crim R 328). · Evidence indicating that the offender knew of the existence of facts, but did not realise their significance at the time of sentencing and could not inform the legal advisers of them (R v Goodwin (1990) 51 A Crim R 328 at 330 per Hunt J; R v Cartwright (1989) 17 NSWLR 243 at 257; R v W [2001] NSWCCA 172 at [23]; R v MJM [2004] NSWCCA 66 at [46]). Non-parole periods 4 Section 19AB of the Crimes Act 1914 (Cth) deals with non-parole periods for federal offences in the following terms: "(1) Subject to subsection (3), where: (a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and (b) a court imposes on the person a federal life sentence, or a federal sentence that exceeds, or federal sentences that, in the aggregate, exceed 3 years; and (c) at the time the sentence or sentences are imposed, the person is not already serving or subject to a federal sentence; the court must either: (d) fix a single non-parole period in respect of that sentence or those sentences; or (e) make a recognizance release order. … … … (3) Where, but for this subsection, a court would be required by this section to fix a non-parole period, or make a recognizance release order, in respect of a person, the court may decline to do either if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that neither is appropriate. (4) Where the court decides that neither a non-parole period nor a recognizance release order is appropriate, the court must: (a) state its reasons for so deciding; and (b) cause the reasons to be entered in the records of the court." 5 Notwithstanding these general provisions minimum non-parole periods of at least three-quarters of the sentence of imprisonment now apply to certain offences under the Anti-Terrorism Act 2004 (Cth) (see s 19AG of the Crimes Act 1914). 6 Generally speaking, the non-parole period in respect of Commonwealth offences should be set within a range of 60% to 66% of the head sentence. In R v Bernier (1998) 102 A Crim R 44 at 49, the Court said: "…The norm for non-parole periods is in the range of about 60 percent to 66 and two-thirds percent. One factor, which may be material, is the length of the head sentence and the position in the permissible range. Circumstances may exist which make it appropriate to move outside the usual range for non-parole periods. The process is not mathematical or rigid, and often requires a finely tuned assessment. The determination of the appropriate non-parole period, as of the head sentence, should be approached … with caution and flexibility" [ Ly v Regina [2007] NSWCCA 28 at [16] per Adams J with whom Howie J and Price J agreed; Regina v Sweet [2001] NSWCCA 445 at [33] per Spigelman CJ with whom Studdert J and Ireland AJ agreed]. 7 With respect to the flexibility when determining non-parole period for federal offences, Spigelman CJ in Regina v Sweet [2001] NSWCCA 445 said at [34]: "The reference to "flexibility" in matters of this character must be acknowledged in all such cases because the court is dealing with the exercise of discretion. To suggest that there is some form of "double counting" involved in taking into account matters on both the head sentence and the fixing of the non-parole period is, in my opinion, to wrongly suppose that mathematical precision is involved in the sentencing exercise and to introduce an undesirable form of inflexibility into the sentencing exercise. A norm is not a rule or fixed ratio." 8 His Honour also said, at [38], when commenting on s 19AB of the Crimes Act 1914 (Cth): "Where the legislative scheme permits a court to refuse to fix any non-parole period by reason of "the nature and circumstances of the offence … and … the antecedents of the person", then such matters may be taken into account when fixing the relationship between the non-parole period and the head sentence. While a non-parole period of seventy-five percent will be infrequent, and indeed perhaps rare, it is not impermissible, let alone itself indicative of error." 9 Confirming the discretion under s 19AB and the absence of any prescribed or preconceived "statutory ratio", in Mirza v R [2007] NSWCCA 257, Howie J (with whom McClellan CJ at CL and Harrison J agreed) said at [9]: "The Judge also indicated that he found special circumstances to "vary the statutory ratio that is applicable in Commonwealth matters". His Honour with respect was clearly in error in the manner in which he determined the non-parole period as there is no such statutory relationship. But this error seems to have favoured the applicant because the non-parole period is 55 per cent of the total sentence and this is below the usual range of non-parole periods fixed for Commonwealth offences." 10 There may also be occasions when a non-parole greater than 66% of the overall sentence is appropriate. In R v Acosta [1999] NSWCCA 334 at [12], Kirby J (with whom Meagher JA and James J agreed) said that a non-parole period, which represented 75% of the sentence "should be reserved for the worst class of case". 11 However, in Sweet at [40]-[42] Spigelman CJ pointed out that this view could not be reconciled with of s 19AB of the Crimes Act 1914. The Chief Justice said: "…[Kirby J] made reference to R v Paull (1990) 20 NSWLR 427 and R v Behar . In neither of those authorities is the phrase "worst class of case" used. The phrase "worst class of case" is terminology that is used in criminal sentencing with respect to circumstances in which the maximum penalty for an offence is appropriate. However, in that context there is a fixed, identifiable and quantified amount, to which terminology such as "worst class of case" is clearly appropriate. In the case of a non-parole period, on any view, there is a range of permissible percentages within which the exercise of the discretion can occur. As I understand Kirby J, his Honour was saying that seventy-five per cent would be a rare case. What his Honour identified as a "worst class of case" cannot be limited to the circumstances in which a maximum penalty is imposed. Any suggestion that the Court cannot impose a ratio greater than seventy-five percent would be contrary to the express legislative provision in s19AB(3) of the Crimes Act (Cth) , which permits the Court in certain circumstances not to fix a non-parole period of any kind at all. 12 Recently, in R v Lee [2007] NSWCCA 234, in relation to a major drug offence, with the agreement of Howie J and Hall J, I said at [38]: "Although this provides a sentence where the non-parole period is greater than 66% of the total sentence the objective criminality of the offender more than justifies this term of full time custody (see Bick v R [2006] NSWCCA 408 at [21]-[23]; R v Sweet [2001] NSWCCA 445 at [18]-[20])." 13 Each case must be determined having regard to the particular circumstances relating to the offence and the offender. 14 BARR J: This is an application by Patrick Springer for leave to appeal against a sentence imposed in the District Court. On 16 December 2005 he was intercepted at Sydney International Airport, having arrived on a flight from Vietnam. He was taken to hospital for a scan, which revealed foreign objects that he had swallowed. They turned out to comprise 96.4 grams weight of heroin, the equivalent of 71.8 grams of pure heroin. He immediately co-operated with officers of the Australian Federal Police. He made full admissions and gave details identifying those who had recruited him in Germany and had facilitated his travel to Vietnam and the identity of those in Vietnam who supplied him with the heroin for importation. 15 On 1 March 2006 he pleaded guilty at the Central Local Court to a charge laid under s307.2 Commonwealth Criminal Code, namely that on 16 December 2005 at Sydney he imported into Australia a marketable quantity of a border controlled drug, namely heroin. He was committed to the District Court for sentence. 16 On 20 April 2006 he attended the offices of the Australian Crime Commission and provided further information about his involvement and a draft statement was prepared. In preparation for it the applicant had arranged to obtain from Germany a photograph taken at a nightclub in that country, showing himself and two of the participants he had previously identified. 17 Evidence, including the tender of an agreed statement of facts, was put before the District Court to give an appreciation of the value the police were putting on the information supplied by the applicant. The police regarded everything he had told them as true and accepted that he had told them everything he knew and had done everything he could to assist them in their inquiries into the importation, particularly with a view to commencing prosecutions against the other participants. At that stage, however, the police were assessing the assistance as only of "intelligence value". That meant that although it told the police important things about the way drug importation syndicates operate, it was then considered unlikely to result in the prosecution of any other person, this despite the applicant's express offer to give evidence in any such proceeding. 18 The applicant gave evidence at hearing and confirmed these matters and reasserted his willingness to assist the police. 19 The sentencing judge observed that the applicant had done all he could to assist the authorities but that, through no fault of his own, they had been able to proceed no further against the other members of the syndicate. His Honour said this, in part - …he has given exhaustive assistance, all that he could have done, and it should be measured probably in terms of contrition, rather than a great discount, rather than being weighed in terms of assistance. 20 In my view that was a proper approach, and no attack has been made upon it in this Court. His Honour regarded this full working out of the applicant's contrition as entitling him to a discount of one-third from his sentence. His Honour adopted a starting sentence of nine years and thereby produced a head sentence of six years. 21 No attack was made upon his Honour's process of reasoning or upon the selection of a starting point for the head sentence, though there was criticism of his Honour's allocation of the term into non-parole and parole periods, a matter to which I shall presently refer. 22 Although two grounds of appeal were filed, only one was argued, namely that fresh evidence is now available in relation to the applicant's assistance to the prosecuting authorities that may have had a bearing on the exercise of the sentencing judge's discretion. 23 The evidence relied on comprises documents annexed to the affidavit of Penelope Purcell and read on the application. That evidence and the record together establish that - 1. On 16 December 2005 the applicant was arrested and interviewed. 2. On 20 April 2006 the applicant was interviewed in the offices of the Australian Crime Commission. He identified co-offenders by reference to a photograph. 3. On 14 July 2006 he was sentenced. 4. On 20 December 2006 officers of the Australian Crime Commission attended the place where the applicant was held and interviewed him again. They showed him photographs mounted on boards. He selected from them photographs of three persons involved in the importation, including the two he had identified in April 2006, and told police what parts the several participants had played. 5. On 31 December 2006 a news broadcast reported that one of the persons identified and described by the applicant had been arrested and that the Australian Crime Commission had tapped the telephones of others concerned. 6. Because of these developments the Australian Crime Commission wished the applicant to sign a further statement. The applicant accepted advice that he should seek leave to appeal and his solicitors wrote to the office of the Director of Public Prosecutions and asked that before the applicant signed any further statement the office should provide for use in the appeal a letter describing the assistance the applicant had given. 7. On 1 June 2007 the office of the Director of Public Prosecutions wrote to the applicant's solicitor referring to the sentencing proceedings and the appeal and saying this in part - This office is of the view that, strictly speaking, these documents were only relevant in the context of the sentence proceedings. However, it is apparent that there have been significant developments in this matter subsequent to the sentence proceedings. Accordingly, in the event that your client signs his statement in relation to the prosecution of Mr Lee & Ors, this office has no objection to your client being shown draft copies of the Letter of Assistance and the Section 21E Undertaking, both of which will be executed at an appropriate time assuming they are relevant in the appeal proceedings. 8. On 5 June 2007 the applicant signed a further statement dealing with his identification by photographs of the three persons concerned. 24 It is plain that before sentence the applicant supplied the Australian Crime Commission with information and a photograph by which he identified two of the persons involved in the importation. Other evidence adduced in this Court shows that an examination of telephone intercepts and previously intercepted SMS communications caused the investigators to reassess the value of the information and assistance furnished by the applicant. They were thereby enabled to identify others concerned in the importation. As a result, it is expected that the criminal trial of one man will shortly commence and that proceedings against others may follow. The prosecution will depend on the co-operation of the applicant in giving evidence and otherwise assisting. The applicant has always held out that he is prepared to do so. Whereas at the time of sentence his assistance was believed to be of limited value, with no expected prosecutions, it is now seen to be of much greater value. It is to be assumed that, as generally happens in such cases, his active co-operation will make it more difficult for him to serve his sentence, restricting his movements, and will place him in danger during and after the service of his prison sentence. 25 Counsel for the Crown fairly acknowledged the significance of the events which took place after sentence was imposed and submitted that if evidence of them were admitted, an overall discount of fifty per cent or thereabouts would be justified. However, counsel submitted that the evidence was inadmissible in this Court, being essentially of events that had occurred since sentence. It was submitted that the Court could consider the proposed evidence only if it decided to re-sentence. It could decide to re-sentence only if it found error in the sentencing process. There was no error. 26 This Court firmly stated in R v Munday [1981] 2 NSWLR 177 at 178 - It has been made plain in this Court on many occasions that the court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the province of the executive Government and not of an appeal court. 27 In R v Scullion Court of Criminal Appeal, New South Wales, 15 July 1992, unreported Clarke JA cited that passage and continued - Where circumstances arise for the first time after sentencing which are alleged to render the sentence imposed either excessive or inadequate, the review of that sentence is the proper province of the executive government and not of this Court: R v Munday (1981) 2 NSWLR 177, at 178. That particular principle has been applied directly to the situation where, as it claimed to be the situation in this case, a prisoner continues to give significant assistance to the authorities after the sentence has been imposed and where that assistance had not been anticipated by the sentencing judge. (Cartwright (1989) 17 NSWLR 243 at 257.) 28 Clarke JA also referred to R v Gallagher Court of Criminal Appeal, New South Wales, 27 August 1991, unreported in which Gleeson CJ observed that post-sentencing assistance may be relevant to an appellate court on re-sentencing, but not to the correctness of the original sentence. See also R v Willard (2001) 120 A Crim R 450 per Simpson J at 454; R v MJM [2004] NSWCCA 66 per Simpson J at [47]. 29 However, there are qualifying cases which derive their authority from the need to do justice in all the circumstances in the case before the Court. In R v Scullion Clarke JA said, after referring to the principal authorities - The rule is not, however, an absolute one for in exceptional circumstances the courts have had regard to events which have occurred since sentencing in considering the question whether an appeal against a sentencing order should be allowed. Nonetheless the courts which have taken post sentencing facts into account have been at pains to make it clear that it will only be in rare and exceptional cases that the court will be entitled to have regard to those facts. 30 R v Many (1990) 51 A Crim R 54 is such as case. In the exceptional circumstances attending the applicant, this Court decided to admit on appeal evidence of assistance which Many knew about at the time of sentence and could have told the sentencing court about. In other cases evidence of a relevant circumstance put before the sentencing court has been incomplete or incompletely understood. So, where an offender has been sentenced on the basis of a crude or imperfect understanding of an acknowledged illness then suffered, appellate courts have received evidence which refines or perfects knowledge of that illness and of its effect on the appellant so as to show that the sentencing court ought to have imposed a more lenient sentence. Examples are R v Smith (1987) 27 A Crim R 315; R v Bailey (1988) 35 A Crim R 458; R v Ehrenburg, Court of Criminal Appeal, New South Wales, 14 December 1990, unreported; R v Rigby [2006] NSWCCA 205 and R v Eliasen (1991) 53 A Crim R 391. 31 Most of these cases deal with illnesses of appellants which, though manifest at the time of sentence, were unable then to be fully understood or assessed but which, and the effects of which, were able better to be appreciated by the time of the appeal. As King CJ said in R v Smith at 316 - The proper purpose of fresh evidence on an appeal against sentence is to bring before the Court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. 32 In my opinion this is an exceptional case of the latter kind. Virtually everything the applicant did in order to assist the authorities to identify and prosecute his co-offenders was done before sentencing, and the Court knew about it. The Court wrongly assessed the material as being only of "intelligence value". The Court reached that conclusion because that was the evidence of the investigators. The fact was, however, that even at that stage the evidence was apt to produce the results it did eventually produce. The applicant had identified the participants, including by photograph, and the investigators were armed to make the inquiries that they later did make. It was not until after sentence, however, that they put to full use the information the applicant had furnished, particularly in the context of the SMS messages of which they had had records all along. So it can be said that although the facts were known on sentencing, their true significance was not. In my opinion the evidence is fresh. The Court should receive it. 33 Because of the realistic approach of counsel for the Crown, there is no difficulty in deciding what the result should be. I would allow an overall discount of fifty per cent for all the subjective features, including assistance to the authorities, past and future. Applying that discount to a starting sentence of nine years I would impose an overall sentence of four and one-half years. I would apportion half the discount, that is twenty-five per cent of nine years, to future assistance. 34 On appeal, counsel complained that the sentencing judge had erred in apportioning non-parole and parole periods in the proportion two to one. It was submitted that ordinarily sixty per cent ought to be apportioned to the non-parole period. In my opinion the sentencing judge did not fall into error in selecting the ratio he did: both sixty per cent and two-thirds are within the range of discretion. However, when this Court sentences afresh it exercises its own discretion. I would apportion a little more than sixty per cent to the non-parole period. 35 I propose the following orders - 1. Grant leave to appeal and allow the appeal. 2. Quash the sentence appealed from and sentence the appellant to a non-parole period of two years and nine months, commencing on 16 December 2005 and expiring on 15 September 2008 and a period during which he shall be eligible to be released on parole, commencing on 16 September 2008 and expiring on 15 June 2010. 36 I would state, pursuant to s21E(1)(b) Crimes Act 1914 (Commonwealth), that the non-parole period had been reduced by twenty-five per cent on account of the promise of future assistance. 37 BERGIN J: I agree with the orders proposed by Barr J and the reasons therefor. ************* 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. 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