Reported Decision: 179 A Crim R 188 New South Wales Court of Criminal Appeal CITATION: R (Cth) v Ian Robert CHALMERS (No 2) [2007] NSWCCA 340 HEARING DATE(S): On the papers JUDGMENT DATE: 12 December 2007 JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Harrison J at 26 DECISION: Application dismissed. CATCHWORDS: CRIMINAL LAW – application to reopen appeal pursuant to s 43 Crimes (Sentencing Procedure) Act 1999 – whether re-sentencing "contrary to law" – whether applicant entitled to discount for assistance in re-sentencing – whether consideration was given to assistance when re-sentencing – examination of reasons for judgment – applicant not denied benefit of discount for assistance in re-sentencing LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Ho v Director of Public Prosecutions (1995) 37 NSWLR 393 CASES CITED: R v Lee [2007] NSWCCA 234 Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247 PARTIES: Regina (Cth) (Applicant) Ian Robert CHALMERS (Respondent) FILE NUMBER(S): CCA 2007/1431 COUNSEL: W J Abraham QC (Applicant) H Dhanji (Respondent) SOLICITORS: Commonwealth Director of Public Prosecutions (Applicant) Legal Aid Commission (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0273 LOWER COURT JUDICIAL OFFICER: Berman DCJ LOWER COURT DATE OF DECISION: 4 May 2007 IN THE COURT OF CRIMINAL APPEAL 2007/1431 SPIGELMAN CJ SIMPSON J HARRISON J 12 DECEMBER 2007 R (Cth) v Ian Robert CHALMERS (No 2) Judgment 1 SPIGELMAN CJ: I agree with Simpson J. 2 SIMPSON J: On 15 August 2007 this Court delivered judgment in an appeal brought by the Director of Public Prosecutions (Cth) against a sentence imposed upon the present applicant in the District Court following his conviction after jury trial on a charge of conspiracy to import into Australia cocaine in not less than the commercial quantity (Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247). The court allowed the Crown appeal, set aside the sentence imposed in the District Court and imposed a more severe sentence. 3 Pursuant to s 43(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") the applicant now applies to this Court to reopen the appeal. Section 43 is relevantly in the following terms: " 43 Court may reopen proceedings to correct sentencing errors (1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has: (a) imposed a penalty that is contrary to law, or (b) … and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard: (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. (3) … (4) … (5) … (6) …" 4 The applicant argues that the sentence imposed in this Court was "contrary to law". Implicit in the application is that the Court adjust the sentence imposed by reducing it by 10 percent. 5 The basis of the argument is this. The applicant was originally sentenced by Berman DCJ on 4 May 2007. In his remarks on sentence Berman DCJ noted that (notwithstanding that he was convicted after trial) the applicant had assisted the authorities, that "not much came of" the assistance, and determined, therefore, that the sentence then to be imposed would be reduced by approximately 10 percent in recognition of that modest assistance. 6 The Crown appeal raised issues concerning the characterisation of the applicant's role in the conspiracy, the adequacy of the sentence then imposed to reflect this criminality, and the adequacy of the sentence to reflect considerations of general deterrence. No ground of appeal complained either of the fact that a discount for assistance had been allowed, nor of its quantification. 7 In those circumstances, it is now put, the applicant was entitled to have the discount replicated in the sentence substituted by this Court. That entitlement arises (it is implicit in the applicant's argument) because, where such a benefit is allowed at first instance and is not the subject of express complaint in a Crown appeal, it is the usual practice of this Court to adopt both the determination to make the allowance, and its quantification. That is, that, even having found that the Crown had made good some or all of its grounds of appeal, and having selected the sentence that ought, after appeal, be imposed, this Court would ordinarily, following its usual practice, discount the sentence by 10 percent. 8 The judgment of this Court does not indicate that that was done. Express recognition was given, in that part of the judgment that dealt with Berman DCJ's remarks on sentence, to the discount. At [59] the following appears: "His Honour then found that Chalmers had 'assisted the authorities', although he did not specify the nature or level of that assistance, merely observing 'that not much came of' it. Nevertheless, he discounted the sentence he otherwise would have imposed by approximately 10 percent." 9 And a later reference was made to an argument put on behalf of the (then) respondent extrapolating the sentencing starting point, that is, what the sentence would have been had the 10 percent not been allowed. The Court was, therefore, well aware of the fact and the extent of the discount. 10 However, when the re-sentence was proposed, as is now pointed out, no express allowance was made. 11 In proposing the sentence to be substituted, I said: "A useful schedule is set out in a judgment of McClellan CJ at CL in R v Lee [2007] NSWCCA 234. It is a lengthy schedule, and I do not propose to repeat it here. On the basis of that information, and the objective and subjective circumstances, I propose that Chalmers be re-sentenced. I consider the appropriate range of head sentences is of 12 to 16 years. Having regard to the principles that apply to re-sentencing after a successful Crown appeal I propose that Chalmers be sentenced to imprisonment for 12 years with a non-parole period of 8 years." 12 The jurisdiction conferred on this Court by s 43 of the Sentencing Procedure Act to reopen an otherwise finalised appeal depends, relevantly, upon the applicant establishing that the sentence imposed was "contrary to law". Precisely what that means has not (perhaps not surprisingly) been the subject of a great volume of judicial consideration. The predecessor to s 43 was s 24 of the Criminal Procedure Act 1986. Although that section was framed differently, there is no difference in substance between the two provisions. Kirby P (as his Honour then was) with whom Gleeson CJ and Sheller JA agreed, proposed "the broadest available construction" in recognition of the beneficial nature of the provision: see Ho v Director of Public Prosecutions (1995) 37 NSWLR 393. Ho concerned a sentencing exercise in the District Court, in which, it was said, a judge failed (whether deliberately or by oversight was a live issue) to allow credit for presentence time served in custody; the s 43 question (which the Court was not called upon finally to answer) was whether failure to do so resulted in a sentence that was "contrary to law". The Court was of the opinion that failure to consider that question did produce a penalty that was "contrary to law". 13 Kirby P said: "It is a part of the law of sentencing that where a person has, in respect of an event of which that person is convicted and stands for sentence, already served some time in custody, the sentencing judge should take such period into account. Ordinarily, the judge should give credit to the offender for time already served. To fail to consider this is an error of law in the exercise of the sentencing discretion. The resulting penalty is then one 'contrary to law'; (5) Differing views have been expressed by judges concerning the breadth of the phrase 'contrary to law' in s 24. Certainly, the section is not intended to permit a general rehearing of sentencing proceedings on the merits … However, whilst avoiding a rehearing of the merits of the penalty, it is common ground that the purpose of the section is to permit the correction of mistakes where 'such correction would have saved the cost, delay and expense involved in having to institute an appeal' … For the correction of arguable mistakes in sentencing, the section should be given the widest possible operation …" (internal references omitted) 14 These remarks were delivered obiter, the Court having rejected the arguments advanced on behalf of that claimant in support of a summons for judicial review of the sentence imposed in the District Court. That does not diminish their value. The Court saw s 24 as an avenue for that claimant to pursue his complaint in the District Court. Accepting that, I can see no basis upon which it could be held that failure to allow a discount on sentence to which a respondent (or applicant) would ordinarily be entitled (if established) resulted other than in a sentence that is "contrary to law". 15 The first question for this Court, therefore, is whether the sentence imposed upon the applicant was a sentence that was "contrary to law" because the Court failed to take into account, and replicate, (or, for proper reasons, declined to replicate) the discount allowed to the applicant by Berman DCJ. 16 The jurisdictional gateway to the reopening provided by s 24 is the establishment of relevant error of law, of the kind envisaged by Kirby P in Ho. That, in the present case, calls for examination of the judgment. While such error may be established by the failure to give consideration to, and make a determination about, the adoption of the discount, it is not so clear, to me at least, that error would be established had the Court adverted to the matter and determined it against the applicant. 17 The exercise involved has some unusual features. Ordinarily, an appellate Court asked to enquire into asserted error by a sentencing judge by oversight of some relevant factor has only available to it the official record of the Remarks on Sentence, from which it draws the necessary and appropriate inferences. Whether a relevant factor was or was not overlooked would be determined by a different judge – by an objective analysis of the written record. (On rare occasions, that may include the transcript of argument and debate.) Here, however, the Court is in the position of investigating, or enquiring into, its own thought processes. 18 I am firmly of the view that it is highly undesirable, and would be invidious, to undertake that exercise other than by analysis of the written record – in this case, the reasons for judgment. I do not propose to attempt to recall or explore my own thought processes; even less would I attempt to explore those of the other members of the Bench who concurred in my judgment. 19 It is true that the reasons for judgment express no explicit intention either to allow, or not to allow, the discount. Alone that would be suggestive of error of the kind referred to by Kirby P in Ho. 20 However, that is not the entirety of the issue. It is plain that the approach I proposed varied slightly from that taken by Berman DCJ. I attached considerable weight to the extensive review of comparable sentences collected by McClellan CJ at CL in Lee, and derived from that schedule a range of sentences I considered to be applicable to the applicant's circumstances. 21 Re-examination of that schedule discloses, as might have been expected, that a number of the cases involved discounts in varying amounts for assistance. In other words, some discounts for assistance was built into the range of sentences upon the basis of which the ultimate sentence was selected. Two things are here of present significance: one is that the discount allowed by Berman DCJ was modest; the other is that, after determining the range of sentences applicable, I opted, in accordance with the principles applicable to Crown appeals, for the very lowest end of that range. 22 I have therefore concluded that, although it was never made as explicit as it might have been, that the applicant was not denied the benefit of the finding as to the assistance he had given. 23 The jurisdictional gateway to s 43 has therefore not been opened. I would refuse the application on this basis. 24 In any event, even if I were persuaded that the Court should reopen the appeal, I am satisfied that the sentence proposed and imposed was the very lowest possible having regard to the applicant's criminality. Further to reduce the sentence would result in a sentence that is disproportionately low and would, while giving due weight to the subjective circumstances, fail to reflect the objective circumstances. 25 I propose that the application be dismissed. 26 HARRISON J: I agree with Simpson J. ********** 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.