Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Alvares v R Farache v R [2011] NSWCCA 33 Hearing dates: 7 February 2011 Decision date: 08 March 2011 Before: McClellan CJ at CL at [1]
Buddin J at [2]
Schmidt J at [88]Decision: In each case leave to appeal is granted and the appeal is dismissed
Catchwords: CRIMINAL LAW - APPEAL - offences involving conspiracy to import commercial quantities of a border controlled precursor - whether error in approach to assessing the evidence of remorse - whether error in fixing the non-parole period - whether error in relation to prospects of rehabilitation Legislation Cited: Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Evidence Act 1995 (NSW)Cases Cited: Butters v R [2010] NSWCCA 1
Cameron v The Queen (2002) 209 CLR 339
GAS v The Queen (2004) 217 CLR 198
Hili v R; Jones v R [2010] HCA 45; (2010) 272 ALR 465
Pearce v The Queen (1998) 194 CLR 610
Pham v R [2010] NSWCCA 208
R v Alameddine [2004] NSWCCA 286
R v Elfar [2003] NSWCCA 358
R v Ellis (1986) 6 NSWLR 603
R v Baker [2000] NSWCCA 85
R v Gallagher (1991) 23 NSWLR 220
R v Hooper [2004] NSWCCA 10
R v MAK (2006) 167 A Crim R 159
R v McGourty [2002] NSWCCA 335
R v Niketic [2002] NSWCCA 425
R v Tulloh (Court of Criminal Appeal, (NSW) 16 September 1993 unreported
R v Qutami (2001) 127 A Crim R 369
R v Stafrace (1997) 96 A Crim R 452
Thewlis v R (2008) 186 A Crim R 279
Weininger v The Queen (2003) 212 CLR 629
Wong v The Queen (2001) 207 CLR 584Category: Principal judgment Parties: Richard Benjamin Alvares (Applicant)
Hassan Farache (Applicant)
Regina (Respondent)Representation: Counsel:
P Hamill SC (Applicant Alvares)
M Thangaraj SC/S Bogan (Applicant Farache)
W Roser SC (Crown)
Solicitors:
Legal Aid Commission (Applicant Alvares)
Nyman Gibson Stewart (Applicant Farache)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2008/17567; 2008/17569 Decision under appeal
- Date of Decision:
- 2009-12-21 00:00:00
- Before:
- Zahra DCJ
- File Number(s):
- 2008/17567; 2008/17569
Judgment
McCLELLAN CJ at CL ; I agree with Buddin J.
BUDDIN J : These applications for leave to appeal, which were heard together by consent, involve challenges to the sentences imposed upon the applicants in the District Court. Each of the applicants pleaded guilty to various drug offences which were committed in contravention of the Criminal Code Act 1995 (Cth).
The applicant Alvares stood for sentence in respect of the following offences:
Count One: Conspiracy to Import Commercial Quantity of a Border Controlled Precursor.
Between about 7 June 2007 and 25 July 2007 at Sydney, in the State of New South Wales and elsewhere, did conspire with Hassan Farache and Shelton Chowsen and divers others to import a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a…
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Details
- Case
- [2011] NSWCCA 33
- Decision Date
CaseChat Overview and Summary
The case of Alvares v R; Farache v R involves appeals against convictions and sentences for conspiracy to import commercial quantities of a border controlled precursor. The applicants argued that there were errors in the approach to assessing their evidence of remorse, the fixing of their non-parole periods, and the assessment of their prospects for rehabilitation. The High Court of Australia was called upon to review these issues.
The primary legal issues revolved around the evaluation of the applicants' evidence of remorse, the appropriateness of the non-parole periods set by the sentencing judge, and the overall assessment of the prospects for rehabilitation. The applicants contended that the sentencing judge erred by giving limited weight to their expressions of remorse, which they argued should have warranted substantial weight. They further argued that the non-parole periods were excessive and that their prospects for rehabilitation were underestimated.
In addressing the assessment of remorse, the Court noted that while the sentencing judge did consider the evidence of remorse, the applicants did not express it directly to him. The Court held that it was difficult to assess the genuineness of their remorse without direct communication. Therefore, the Court found that the sentencing judge's approach was reasonable and that the applicants had not demonstrated an error on the part of the judge. Regarding the non-parole periods, the Court found no basis to interfere with the sentencing judge's discretion. Similarly, the Court found no error in the assessment of the applicants' prospects for rehabilitation, as the sentencing judge had considered all relevant factors.
The Court upheld the convictions and sentences, finding no merit in the applicants' grounds of appeal. The decisions of the lower courts were affirmed.
The primary legal issues revolved around the evaluation of the applicants' evidence of remorse, the appropriateness of the non-parole periods set by the sentencing judge, and the overall assessment of the prospects for rehabilitation. The applicants contended that the sentencing judge erred by giving limited weight to their expressions of remorse, which they argued should have warranted substantial weight. They further argued that the non-parole periods were excessive and that their prospects for rehabilitation were underestimated.
In addressing the assessment of remorse, the Court noted that while the sentencing judge did consider the evidence of remorse, the applicants did not express it directly to him. The Court held that it was difficult to assess the genuineness of their remorse without direct communication. Therefore, the Court found that the sentencing judge's approach was reasonable and that the applicants had not demonstrated an error on the part of the judge. Regarding the non-parole periods, the Court found no basis to interfere with the sentencing judge's discretion. Similarly, the Court found no error in the assessment of the applicants' prospects for rehabilitation, as the sentencing judge had considered all relevant factors.
The Court upheld the convictions and sentences, finding no merit in the applicants' grounds of appeal. The decisions of the lower courts were affirmed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
It may also be noted that the rules of evidence only apply to sentence proceedings if the court makes a direction to that effect: Evidence Act 1995 (NSW) s 4(2). The issue which presently falls to be considered arose because each of the applicants was endeavouring to persuade the sentencing judge, with a view to ameliorating the otherwise appropriate sentence, that he was remorseful, and genuinely so. Remorse in this context means regret for the wrongdoing which the offender's actions have caused because it can be safely assumed that an offender will always regret the fact that he or she has been apprehended. Remorse is but one feature of post-offence conduct upon which an offender may seek to rely as a matter which has the potential to mitigate penalty. The manner in which the issue of remorse is approached is not unique to either the sentencing process or to the courtroom. Indeed, it is a common feature of everyday existence. Ordinary human experience would suggest that it is only natural that a person who has committed some misdeed would wish to make the most favourable impression possible in seeking to make amends for it. It is unsurprising that such a person would also wish to maximise the prospect that his or her expression of remorse was seen as genuine by the person or persons whose task it was to determine the appropriate sanction for the misdeed. Such an outcome is likely to be assessed as having increased prospects if the expression of remorse, whether it be by deed or word, is communicated directly, rather than indirectly to those responsible for determining the sanction. By the same token, an assessment of the genuiness of the remorse by the person or persons to whom it is expressed, is likely to be better informed in circumstances in which it is expressed directly, that is face to face. That is because remorse is an intrinsically subjective matter, the evaluation of which depends upon the subtleties of human interaction. It has also been recognised that the issue of remorse may be interconnected with other features of an offender's subjective case. In Wong v The Queen (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ approved the statement made by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 in which his Honour said: It is common ground that the sentencing judge did give some, albeit limited, weight to the evidence which had been adduced about the applicant's remorse. When distilled to its essence, the submission which was advanced was that the sentencing judge erred in giving it only limited weight. It was contended that the material before the sentencing judge required that substantial weight should have been afforded to the evidence. Such a submission falls to be considered in the light of what was said by Spigelman CJ in R v Baker [2000] NSWCCA 85. His Honour observed: In my view, the applicants have failed to demonstrate that his Honour fell into error. Putting the matter another way, his Honour's findings were plainly open to him in light of the material (to which his Honour made specific reference) that had been adduced at the sentence hearing. It is also important to recall the precise terms of the statutory provision with which his Honour was concerned. In my view, his Honour's reasoning is unimpeachable for the very reasons which he identified, namely that it was very difficult for him to assess the extent to which the applicants were genuinely remorseful for their conduct when they had not expressed it to him directly and thereby exposed themselves to being tested upon the issue. That would be a sufficient basis, in itself, upon which to determine this ground.
Decision
Reasons for decision
CLELLAN CJ
BUDDIN J
SCHMIDT J
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Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ, BUDDIN J, SCHMIDT J
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