Bertilone v The Queen
[2009] WASCA 149
•25 AUGUST 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BERTILONE -v- THE QUEEN [2009] WASCA 149
CORAM: McLURE JA
BUSS JA
MILLER JA
HEARD: 3 AUGUST 2009
DELIVERED : 25 AUGUST 2009
FILE NO/S: CACR 144 of 2008
BETWEEN: CHARLIE ANTHONY BERTILONE
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :IND 1475 of 2008
Catchwords:
Criminal law - Sentencing - Commonwealth drug importation offences - Reasonable consistency in sentencing Commonwealth offenders - Ratio between head sentences and non-parole periods - Whether a particular ratio or range of ratios is 'the norm' or 'a general guide' - Principles applicable to fixing non-parole periods for Commonwealth drug importation offences
Legislation:
Crimes Act 1914 (Cth), s 16(1), s 16A(1), s 16A(2), s 19AB(1), s 19AB(3)
Criminal Code (Cth), s 307.2(1)
Sentencing Act 1995 (WA), s 93(1)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr M G A Plummer
Solicitors:
Appellant: Brennan & Co
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Bernier v The Queen (1998) 102 A Crim R 44
Bick v The Queen [2006] NSWCCA 408
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Chua v The Queen [2001] WASCA 353
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
Harris v The Queen [2004] WASCA 292
James v The Queen [2009] NSWCCA 62
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Ly v The Queen [2007] NSWCCA 28
Mohlasedi v The Queen [2006] WASCA 267
Mustafa v The Queen [2002] WASCA 243; (2002) 133 A Crim R 133
P v The Queen [2003] WASCA 180
Paunovic v The Queen (1990) 51 A Crim R 174
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v CAK & CAL; Ex parte DPP (Cth) [2009] QCA 23
R v Cheng [1999] SASC 175; (1999) 73 SASR 502
R v Gambier [2009] QCA 138
R v Harkness [2001] VSCA 87
R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125
R v Jimson [2009] QCA 183
R v Mokoena [2009] QCA 36
R v Ngui [2000] VSCA 78; (2000) 1 VR 579
R v Phong [2005] VSCA 149; (2005) 12 VR 17
R v Rajacic [1973] VR 636
R v Riddell [2009] NSWCCA 96
R v Selim [1998] NSWSC 165
R v Thomas [1999] VSCA 204
R v Tran [2007] QCA 221; (2007) 172 A Crim R 436
R v Viana [2001] NSWCCA 171
Tan v The Queen [2003] WASCA 324
The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Wong v The Queen [2001] WASCA 32; (2001) 159 FLR 328
McLURE JA: I agree with Buss JA.
BUSS JA: The appellant was convicted, on his plea of guilty, of one count in an indictment which alleged that on 3 March 2008, at Perth International Airport, he imported a border controlled drug, namely methylamphetamine, and the quantity imported was a marketable quantity, contrary to s 307.2(1) of the Criminal Code (Cth).
On 8 October 2008, Fenbury DCJ sentenced the appellant to 3 years and 9 months' immediate imprisonment with a non‑parole period of 2 years and 6 months. The ratio of the non‑parole period to the head sentence was therefore 66 2/3%.
The appellant appeals to this court against the length of the non‑parole period. On 6 January 2009, Miller JA granted leave to appeal.
The material facts relating to the offence
At all material times, the appellant was ordinarily resident in Perth.
Some time before 3 March 2008, the appellant travelled to Indonesia. On 3 March 2008, he returned from Indonesia to Perth on a commercial passenger aircraft. He was selected for examination by customs officers at Perth International Airport.
The appellant's luggage was searched by a customs officer. A wallet was found. An ion scan swab of the wallet gave a positive reading for methylamphetamine.
A 'frisk search' of the appellant was then carried out. This identified a 'lump' in his groin area. The appellant admitted to the customs officer that the 'lump' was methylamphetamine. On request, the appellant produced a 27.7 g package. It contained methylamphetamine. Later, the drug was analysed. It had a purity of 77.1%. The total weight of pure amphetamine was 21.3567 g.
After the methylamphetamine was discovered and produced, the appellant confirmed he was knowingly in possession of the drug, admitted the drug was methylamphetamine, participated in a recorded interview, and consented to a further external body search.
The appellant had been using methylamphetamine for about 7 years before the commission of the offence. When he was apprehended, the appellant claimed the methylamphetamine was 'a personal amount'. He did not, however, seek to prove before the learned sentencing judge that
he did not intend to sell or supply any of it. Accordingly, he was sentenced on the basis he was in possession of a marketable quantity of the drug, which made him liable to a maximum sentence of 25 years' imprisonment or a fine of $550,000, or both.
The learned sentencing judge's remarks
The learned sentencing judge found the street value in Perth of the methylamphetamine in question was between about $53,000 and $850,000, depending on its 'final purity' (ts 5, 8 October 2008).
His Honour accepted that the appellant was a long‑term user of methylamphetamine, and that while he was in Indonesia on holiday a person approached and offered him the drug for $1,500. The price was substantially lower than the appellant would have had to pay in Perth for a comparable quantity.
The learned sentencing judge noted that the appellant did not endeavour to prove he had no intention to sell or supply the drug, or any of it, to another.
At the time of sentencing, the appellant was aged 44 years. He was a single man with no children. He had a supportive family. Generally, he had been in employment as a painter. His Honour referred to the submissions of the appellant's counsel to the effect that the appellant had ceased using methylamphetamine since his arrest and had 'turned [his] life around' (ts 6, 8 October 2008). He was now involved with charitable work.
The appellant had some prior convictions, but none of relevance to the sentencing process. In particular, he had no prior convictions for drug offences.
The learned sentencing judge found the appellant had engaged in a deliberate and conscious importation of a sizeable quantity of methylamphetamine. He must have known that, if caught, he would be likely to suffer a very serious penalty.
His Honour, after observing that the primary sentencing considerations were personal and general deterrence and appropriate punishment, said:
A sentence of imprisonment is the only appropriate penalty and I do propose to fix a non‑parole period, but I have regard … in determining the length of that non‑parole period to the gravity of the offence and also to the need for general deterrence. General deterrence is to be borne in mind in fixing both what might be called the head sentence and any non‑parole period or minimum term if there is to be one fixed. I have said that I will fix one in this case.
I take account of the early plea of guilty and the assistance that you provide to authorities, and you have made admissions from the very outset. Of course you had little choice, I would have thought, but you could have said nothing. You were caught with the drugs on your person and the search and finding of those drugs was videoed and there's really very little room for controversy or debate or argument, it seems to me (ts 7, 8 October 2008).
The learned sentencing judge then said that, after having regard to all matters he had previously mentioned, he would impose a head sentence of 3 years and 9 months' imprisonment and fix a non‑parole period of 2 years and 6 months. When the sentence was imposed, the appellant was not already serving or subject to a sentence imposed for an offence against the law of the Commonwealth.
The ground of appeal
The sole ground of appeal asserts the learned sentencing judge erred in the exercise of his sentencing discretion by imposing a non‑parole period that was excessive in all the circumstances of the case, and beyond the range of non‑parole periods customarily imposed in similar cases. The particulars of the ground mention the appellant's fast‑track plea of guilty, his cooperation with the authorities, his antecedents, drug history and good prospects of rehabilitation, and the relatively small quantity of the drug.
The appellant's submissions
Counsel for the appellant submitted that under Commonwealth law a sentencing court, in determining the minimum term of imprisonment, must fix a term that justice requires the offender to serve, having regard to all the circumstances of the offence. Generally, non‑parole periods have been between 50% and two‑thirds of the head sentence. It was submitted, however, that a review of numerous cases involving Commonwealth offences dealt with by courts in this State demonstrates that in many, if not most, of those cases, the non‑parole period has been 50% of the head sentence.
Counsel referred to Schubert (whose conviction and sentence is recorded in Harris v The Queen [2004] WASCA 292); Tan v The Queen [2003] WASCA 324; Wong v The Queen [2001] WASCA 32; (2001) 159 FLR 328 and Chua v The Queen [2001] WASCA 353.
Schubert was a drug courier. He imported 6,007 MDMA tablets containing 513 g of pure ecstasy with a gross weight of 1796 g. He pleaded guilty on the fast‑track system, cooperated with the authorities and provided them with significant assistance. He was sentenced to 5 years and 6 months' imprisonment with a non‑parole period of 2 years and 6 months.
In Tan, the offender organised a sophisticated importation, involving three other people, of 5.46 kg of pure methylamphetamine and some pure MDMA, pure amphetamine and pure heroin. He received a net effective sentence of 20 years' imprisonment with a non‑parole period of 10 years.
In Wong WASCA, the offender was convicted after trial of conspiracy to import a commercial quantity of heroin, namely 11.548 kg of pure heroin. He was sentenced to 24 years' imprisonment with a non‑parole period of 14 years.
In Chua, the offender was 'at least a major courier'. He pleaded guilty on the fast‑track system to the importation of 20,833 MDMA tablets having a gross weight of 6.178 kg and a net weight of 2.981 kg. The primary judge sentenced him to 16 years' imprisonment with a non‑parole period of 8 years. On appeal, the sentence was reduced to 13 years and 6 months' imprisonment with a non‑parole period of 6 years and 9 months.
According to counsel for the appellant, in the present case, in order to give appropriate weight to the various mitigating factors, the non‑parole period should have been set at no more than 50% of the head sentence. The mitigating factors referred to by counsel were the appellant's fast‑track plea of guilty, his cooperation with the authorities, the alleged relatively small amount of the drug imported, his motivation for the importation (namely, his drug addiction), his lack of convictions for similar offending, and his good prospects of rehabilitation.
The relevant provisions of the Crimes Act 1914 (Cth)
By s 16A(1) of the Crimes Act 1914 (Cth), relevantly, in determining the sentence to be passed, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. By s 16A(2), in addition to any other matters, the court must take into account such of the matters enumerated in the subsection as are relevant and known to the court. It is unnecessary to reproduce the matters.
Section 19AB(1) provides, relevantly, that subject to s 19AB(3), where a person is convicted of a 'federal offence', and a court imposes on the person a 'federal sentence' of imprisonment that exceeds 3 years, and at the time the sentence is imposed, the person is not already serving or subject to a federal sentence, the court must, relevantly, fix a non‑parole period in respect of that sentence. Section 19AB(3) confers on the court a discretion, in particular circumstances, to decline to fix a non‑parole period. The term 'federal offence' means an offence against the law of the Commonwealth and the term 'federal sentence' means a sentence imposed for a federal offence. See s 16(1).
The nature and purpose of non‑parole periods
Where a sentencing judge fixes a non‑parole period, the non‑parole period is part of the sentence. See R v Rajacic [1973] VR 636, 641; R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 [12].
The fixing of a non‑parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender. See Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.
The non‑parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 ‑ 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367; Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 396; Bugmy, 531.
The considerations which a sentencing judge must take into account when fixing a non‑parole period are the same as those applicable to the setting of the head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function. See Bugmy, 531.
In Bick v The Queen [2006] NSWCCA 408, Price J (Hodgson JA & Howie J agreeing) summarised the main factors which are relevant to the determination, in any case, of the appropriate ratio between the non‑parole period and the head sentence. His Honour said:
Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range: (see Bernier (at 49) and Sweet 125 A Crim R 341 [at 346]), the seriousness of the offence and the prospects of rehabilitation (see Stitt (1998) 102 A Crim R 428 and Meloh [2001] NSW CCA 211 at [10]) and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see Drazkiewicz unreported, Court of Criminal Appeal, NSW 23 November 1993) [15].
Reasonable consistency in sentencing Commonwealth offenders
As Gleeson CJ noted in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, the administration of criminal justice works as a system; it should be systematically fair and that involves, amongst other things, reasonable consistency [6]. His Honour explained:
All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
Most sentencing of offenders is dealt with as a matter of discretionary judgment. Within whatever tolerance is required by the necessary scope for individual discretion, reasonable consistency in sentencing is a requirement of justice [6] ‑ [7].
In R v Tran [2007] QCA 221; (2007) 172 A Crim R 436, Keane JA (White J agreeing) emphasised the importance of reasonable consistency in the sentencing of Commonwealth offenders:
Where the system of criminal justice is enforced by the judicial power of the Commonwealth, State courts exercising that power should strive for reasonable consistency in the sentences imposed throughout the Commonwealth. That objective will usually require recognition of decisions of other States where those decisions concern like cases (Cf Cameron v The Queen (2002) 209 CLR 339 at [44]). That objective was made more difficult to achieve by the differences in the corrective services regimes which have, from time to time, applied in the States and Territories (Cf s 16G of the Crimes Act 1914 (Cth)). But as the analysis of Atkinson J shows, decisions by the courts in the other States, especially in New South Wales and Victoria, suggest that a substantial reduction in sentence is necessary to preserve consistency with those decisions [8].
In Tran, Atkinson J examined consistency in sentencing across Australia for federal offences in the context of an appeal by an offender who was sentenced to 15 years' imprisonment with a non‑parole period of 7 years for importing heroin into Australia. Her Honour (Keane JA & White J agreeing) said:
It is also necessary to consider sentences in other Australian States and Territories to endeavour to ensure consistency across Australia (See Same Crime Same Time: Sentencing of Federal Offenders ALRC Report 103 Recommendation 3-1, 5-1, Chapters 20 and 21; Schedule 2 [142] ‑ [147]). The court is in such a case exercising its federal jurisdiction pursuant to s 68(2) of the Judiciary Act 1903 (Cth). The Court asked the parties for further submissions on this point.
The Australian Law Reform Commission in its Report 103 Same Crime Same Time: Sentencing of Federal Offenders has recently reported on the disparity of sentencing of federal offenders within Australia. Such disparity is inconsistent with the reasonable consistency which, as Gleeson CJ held in Wong v The Queen ((2001) 207 CLR 584 at [6]), is necessary for systematic fairness. It would seem fair that the sentence imposed on an offender for a federal offence should not depend on which side of a State border he or she happens to offend or, to use an example apposite to drug importation, on which bank of the Tweed (or the Murray) he or she happens to land.
The question of how much attention should be paid by intermediate courts of appeal to decisions of other courts of appeal when considering the sentences given to federal offenders was left open by the majority of the High Court in Wong v The Queen ((2001) 207 CLR 584 at [88]). However the footnoted reference was to Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 recently referred to by the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 81 ALJR 1107 at [135] for the well known principle that intermediate appellate courts and trial judges should not depart from decisions of intermediate appellate courts in another jurisdiction in Australia on the interpretation of Commonwealth legislation unless convinced that the interpretation is plainly wrong. Similarly, State courts should, in my view, take into account sentences imposed by other courts within the Commonwealth with regard to offences against Commonwealth legislation (Wong v The Queen (2001) 207 CLR 584 at [118] per Kirby J).
The apparent disparity in sentencing in the various States and Territories was in part attributable to s 16G of the Crimes Act which was introduced in 1990 by the Crimes Legislation Amendment Act (No 2) 1989 (Cth). Section 16G provided:
' … Federal sentence to be adjusted if no State or Territory remissions laws apply
If a federal sentence is to be served in a prison of a State or Territory where State or Territory sentences are not subject to remission or reduction, the court imposing the sentence must take that fact into account in determining the length of the sentence and must adjust the sentence accordingly.'
Section 16G reflected the fact that some States and Territories provided for the remission of sentences to be served and others did not. It was intended that the result of the sentences imposed should be similar by taking into account the effect on lengthening sentences where States had abolished an entitlement to remission. The States and Territories in which remissions had been abolished were New South Wales and the ACT in 1989, Victoria in 1991, South Australia in 1994 and the Northern Territory in 1996. Remissions were abolished in Queensland for offences committed after 1 July 2001. Section 16G was repealed by the Crimes Legislation Amendment Act 2002 (Cth) with effect from 17 January 2003. Thus when comparing sentences imposed for like offences in the various States and Territories prior to 17 January 2003, the effect of s 16G must be considered. However since that date, it has had no relevant effect on a comparison between sentences imposed in different jurisdictions [31] ‑ [35].
I note, for completeness, that in Western Australia, before the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) (Sentencing Amendment Act) on 31 August 2003, offenders sentenced to a fixed term of immediate imprisonment received a virtually automatic one-third remission in the length of their sentences. In other words, offenders sentenced to a fixed term of immediate imprisonment actually served a maximum of two‑thirds of the head sentences pronounced by the court. If the offenders were made eligible for parole under the State sentencing legislation, they could be released into the community at an earlier date. By the Sentencing Amendment Act and the Sentencing Administration Act 2003 (WA), relevantly, the Parliament of Western Australia abolished the scheme for remission. See The State of Western Australia v BLM [2009] WASCA 88; (2009) 256 ALR 129 [190] ‑ [196].
The object of reasonable consistency in sentencing must not fetter a sentencing judge's discretion
Although reasonable consistency in the sentencing of Commonwealth offenders is important, this object must not fetter a sentencing judge's discretion. See R v Ngui [2000] VSCA 78; (2000) 1 VR 579, where Winneke P (Callaway & Buchanan JJA agreeing) observed:
It must, of course, be acknowledged that consistency in sentences imposed for like offences upon like offenders is an objective to which the system of criminal justice aspires. Such consistency, as the courts have frequently stated, is particularly important where the offences are created by Commonwealth statutes and sentences for such offences are being imposed by courts throughout Australia (Compare R v Krasnov (1995) 82 A Crim R 92 at 95). To the extent that judicially expressed guidelines can assist the production of such consistency, then they may be of use. However, the search for sentencing consistency should not be permitted to usurp the discretion of the sentencing judge (583).
This point was stated more emphatically by Callaway JA (Winneke ACJ agreeing & Ormiston JA substantially agreeing) in R v Harkness [2001] VSCA 87:
It is true that a non-parole period sometimes invites scrutiny because it is unusual in the circumstances of the case. R v Krasnov and Shlakht ((1995) 82 A Crim R 92) is a well known example. There are many others. But there is no standard non-parole period, standard proportion or standard gap. There cannot be: it is of the nature of a non-parole period that all the circumstances must be taken into account in order to determine the minimum time that justice requires the prisoner to serve before becoming eligible for conditional release (this has been repeatedly affirmed by the High Court: see the cases cited in the passage about to be quoted). As I said in R v Pope ((2000) 112 A Crim R 588 at [28]. Unfortunately this report incorporated most of the footnotes into the text. The judgment as handed down is available in the Supreme Court library and on the internet) in a judgment in which Phillips, CJ and Batt, JA concurred:
'In VZ [1998] VSCA 32 especially [3], [12 ‑ 15], [18], [22] the Court as presently constituted reviewed some of the principles applicable to non-parole periods. I do not repeat what we said on that occasion. I simply mention two salient points. First, we referred to what Winneke P called in Mulvale (Unreported, Court of Appeal, Vic, No 273 of 1995, 20th February 1996) at p 11 the need for "discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision". Secondly, we said that no mechanistic or formulaic approach could be taken to the fixing of a non-parole period. Because it is the minimum time that the judge determines justice requires that the prisoner serve having regard to all the circumstances (see Power (1974) 131 CLR 623 at 629; Deakin (1984) 11 A Crim R 88 and Bugmy (1990) 169 CLR 525 at 531, 536 and 538; 47 A Crim R 433 at 437 ‑ 438, 441 and 442 ‑ 443), it cannot be fixed automatically by taking two years, or one-third or one-quarter, off the head sentence: see also Saunders [2000] VSCA 58 at [28]. All the relevant factors have to be taken into account and they may be many and varied (see also Director of Public Prosecutions v Adajian [1999] VSCA 105 at [30] and Director of Public Prosecutions (NSW) v Bavandra (2000) 115 A Crim R 152 at [51])' [24].
The ratio between non‑parole periods and head sentences for Commonwealth drug importation offences: the New South Wales authorities
In R v Selim [1998] NSWSC 165, the offender appealed against her sentence for attempting to obtain possession of a prohibited import, namely cocaine, contrary to s 233B(1)(c) of the Customs Act 1901 (Cth). Studdert J (Smart & Hidden JJ agreeing) said there was no rigid rule as to the proportion that a non‑parole period should bear to the head sentence, but more often than not the non‑parole period was more than 50% of the head sentence and was ordinarily of the order of 60% to 66 2/3% of it [22].
In Bernier v The Queen (1998) 102 A Crim R 44, the offender was sentenced to 12 years' imprisonment with a non‑parole period of 7 years and 6 months for importing a commercial quantity of cocaine into Australia. The Court of Criminal Appeal of New South Wales said:
To suggest what relationship the non-parole period should normally bear to the head sentence is just as difficult a task, given the variety of factors to be considered. In Paull at 435; 150, Hunt J emphasised that:
' … the application of set ratios in fixing non‑parole periods necessarily masks the consideration which must be given to the individual facts of a particular case and may have the effect of frustrating the exercise of the discretion according to those facts … '
In Paull and Ferrer‑Esis, Hunt J reviewed in part (but to the extent which was relevant) the history of the State and Commonwealth legislative provisions dealing with head sentences, minimum terms and non‑parole periods. That review revealed the various shifts which had occurred, but care must be taken not to place too much emphasis on past formulations and practices.
Subject to those caveats, the norm for non‑parole periods is in the range of about 60 per cent to 66 and two‑thirds per cent. One factor which may be material is the length of the head sentence and its 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 the caution and flexibility enjoined by Hunt CJ at CL in Lawson (at 324 ‑ 325; 464 ‑ 465) (49).
In R v Viana [2001] NSWCCA 171, the offender appealed against a head sentence of 14 years and a non‑parole period of 10 years for, amongst other offences, conspiracy to import commercial quantities of cocaine. He contended, relevantly, that the non‑parole period represented too high a proportion of the head sentence. The Court of Criminal Appeal of New South Wales dismissed his appeal. Meagher JA (Wood CJ at CL & Studdert J agreeing) held:
The principles of law applicable in this area have been laid down by this court in Bernier v The Queen (1998) 102 A Crim R 44. There is in fact no statute which requires the non-parole period to bear any particular proportion in relation to the head sentence, nor is there any mandatory precedent in this Court which requires a fixed sentence. The most that can be said is that this Court has usually in cases of this sort, thought the proportion ought to be somewhere between 60 and 66 percent. That is not to say that higher percentages cannot stand. Indeed, if one looks at a survey of similar cases, there are many cases in which this court has approved of high percentages as high as 75 percent at least [3].
Bick was a social security fraud case. The ratio of the non‑parole period to the aggregate head sentence was about 78% [12]. Counsel for the offender submitted that 'the norm' for non‑parole periods was in the range of about 60% to 66% of the head sentence. Price J said:
The applicant referred to authorities which indicate that the norm for non‑parole periods is in the range of about 60 to 66% of the head sentence; (see for example: Bernier (1998) 102 A Crim R 44 at 49 and Behar (unreported, Court of Criminal Appeal, NSW, No 60363 of 1998, 14 October 1998)).
The determination of the appropriate non‑parole period for offences in breach of the criminal law of the Commonwealth involves the exercise of judicial discretion [13] ‑ [14].
The Court of Criminal Appeal of New South Wales was not persuaded in Bick that, notwithstanding the high percentage, the offender's non‑parole period was such as ought to attract the intervention of the court [24]. See also the similar observations in Ly v The Queen [2007] NSWCCA 28 [16] ‑ [17], a tax fraud case.
In James v The Queen [2009] NSWCCA 62, the Court of Criminal Appeal of New South Wales referred to a ratio between non‑parole periods and head sentences of 60% ‑ 66% for Commonwealth sentences as 'a general guide' [15]. Blanch J (Beazley JA & Howie J agreeing) said, in dealing with an appeal against sentence for offences relating to child pornography:
The contention is that the usual proportion between the head sentence and the non-parole period is 60 ‑ 66% in Commonwealth sentences. In this case the 18 month sentence is cumulative on 3 months of the State sentence, the effective total sentence is 21 months and the non-parole period is 15 months.
On the other hand in this case the proportion of the sentence for the Commonwealth offence to be served was in fact 66%. Although that is disturbed by the 3 month accumulation, in my view the proportion of the sentences to be served in custody is not outside an acceptable range even if both the sentences were for Commonwealth offences. The ratio of 60 to 66% is a general guide and is not a statutory ratio [14] ‑ [15].
See also R v Riddell [2009] NSWCCA 96, where Beazley JA (Blanch & Howie JJ agreeing) noted, in the course of re‑sentencing an offender for two offences involving attempted possession, and possession, of commercial quantities of cocaine, contrary to the Criminal Code Act 1995 (Cth), that [86]:
in setting the non‑parole period, I have applied the proportion usually set for Commonwealth offences: see, for example, James v R [2009] NSWCCA 62 at [15].
The ratio between non‑parole periods and head sentences for Commonwealth drug importation offences: the Queensland authorities
In R v CAK & CAL; Ex parte DPP (Cth) [2009] QCA 23, Atkinson J (Muir JA & P Lyons J agreeing) accepted that 'the norm' for non‑parole periods for Commonwealth offences is generally considered to be after the offender has served 60% - 66% of the head sentence. Her Honour observed:
The norm for non-parole periods and periods required to be served before a recognizance release order for Commonwealth offences is generally considered to be after the offender has served 60 ‑ 66% of the head sentence (R v Bernier (1998) 102 A Crim R 44 at 49; R v Stitt (1988) 102 A Crim R 428 at 432; R v Sweet (2001) 125 A Crim R 341 at 346 ‑ 347; R v Martinsen [2003] NSWCCA 144 at [14]; Bick v The Queen (Cth) [2006] NSWCCA 408 at [13]; Ly v The Queen [2007] NSWCCA 28 at [16]; Studman v The Queen [2007] NSWCCA 326 at [9] ‑ [11]). The precise figure may be outside this range as it is a matter of judicial discretion and is not necessarily capable of precise mathematical calculation (R v Petersen [2008] QCA 70 at [18]), but that is the usual percentage of the sentence. A sentence that was well outside that range would have to have most unusual factors to justify it [18].
In R v Mokoena [2009] QCA 36, the appellant sought leave to appeal against a sentence of 9 years' imprisonment, with a non‑parole of 4 years and 9 months, imposed in respect of one count of importing a marketable quantity of heroin into Australia. The prosecutor informed the sentencing judge that it was generally accepted, in sentencing for Commonwealth drug offences, that an appropriate range for the non‑parole period was between 60% and 66% of the head sentence [8]. At the Court of Appeal of Queensland's request, counsel for the respondent provided some information as to the practice of setting non‑parole periods for Commonwealth drug offences at a point beyond the half‑way mark of the sentence [10]. Holmes JA (Fraser JA & McMurdo J agreeing) said:
An examination of sentence appeals from other jurisdictions bears out the statement of the prosecutor below. In R v Selim ([1998] NSWSC 165), for example, the New South Wales Court of Criminal Appeal observed,
'There is no rigid rule as to the proportion that a non-parole period should bear to the head sentence, but more often than not the non-parole period is more than fifty percent of the head sentence and is ordinarily of the order of 60% to 66 2/3% of it (At 5).'
Similar comments can be found elsewhere in the judgments of the New South Wales Court of Criminal Appeal (Bernier v The Queen (1998) 102 A Crim R 44 at 49; R v Viana [2001] NSWCCA 171). The practice has been consistently applied in other states (see, eg, R v Phong (2005) 12 VR 17; R v Thomas [1999] VSCA 204; R v Ngui and Tiong [2000] VSCA 78; Mustafa v The Queen (2002) 133 A Crim R 133; R v Cheng (1999) 73 SASR 502). It does not seem, however, that any similar uniformity has developed in respect of Commonwealth offences which do not involve drugs (R v Robertson [2008] QCA 164 at [18]).
The practice of setting non-parole periods in drug importation cases at around the two-thirds mark seems to have originated in New South Wales, where the idea of 'truth in sentencing' reached its zenith with s 28A of the Probation and Parole Act 1983 (NSW). That section required a non‑parole period for a serious offence to be at least three-quarters of the head sentence unless the court determined that the circumstances justified a shorter period. Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) currently requires for all offences where imprisonment is imposed that, in the absence of special circumstances, the ratio of the non-parole period to the balance of the sentence be at least 2:1 [10] ‑ [11].
See also R v Gambier [2009] QCA 138 [43] (A Lyons J, Keane & Chesterman JJA agreeing); R v Jimson [2009] QCA 183 [16] (Fraser JA, de Jersey CJ & Keane JA agreeing).
The ratio between non‑parole periods and head sentences for Commonwealth drug importation offences: the Victorian and South Australian authorities
In Mokoena, Holmes JA said that the practice of the New South Wales courts has been consistently applied in other States. Her Honour referred, by way of example, to R v Thomas [1999] VSCA 204; Ngui; R v Phong [2005] VSCA 149; (2005) 12 VR 17; Mustafa v The Queen [2002] WASCA 243; (2002) 133 A Crim R 133; and R v Cheng [1999] SASC 175; (1999) 73 SASR 502.
In Thomas, the Court of Appeal of Victoria dismissed an appeal by the offender against a head sentence of 7 years and 6 months' imprisonment with a non‑parole period of 5 years for importing a trafficable quantity of cocaine (a ratio of 66 2/3%). In Ngui, the Court of Appeal of Victoria allowed the offenders' appeal and re‑sentenced each of them to 5 years' imprisonment with a non‑parole period of 3 years and 4 months for importing a trafficable quantity of heroin (again, a ratio of 66 2/3%). In Phong, the Court of Appeal of Victoria dismissed an appeal against a sentence of 15 years and 3 months' imprisonment with a non‑parole period of 11 years and 3 months for importing a commercial quantity of heroin (a ratio of about 74%). The Court of Appeal did not, in any of these cases, state that a particular ratio or range of ratios was 'the norm' or 'a general guide'. No relevant issue of principle was discussed.
In Cheng, the Court of Criminal Appeal of South Australia re‑sentenced the offender to 9 years' imprisonment with a non‑parole period of 5 years. The applicable ratio was therefore about 56%. The court did not state any relevant issue of principle. No particular ratio or range of ratios was referred to as 'the norm' or 'a general guide'.
The ratio between non‑parole periods and head sentences for Commonwealth drug importation offences: the Western Australian authorities
Before examining the Western Australian authorities on the ratio between non‑parole periods and head sentences for Commonwealth drug importation offences, I should note that in this State, by s 93(1) of the Sentencing Act 1995 (WA), relevantly, a prisoner serving a parole term is eligible to be released on parole:
(a)if the term served is 4 years or less ‑ when he or she has served one‑half of the term; or
(b)if the term served is more than 4 years ‑ when he or she has served 2 years less than the term.
In other words, under the law of Western Australia, the part of a prisoner's sentence which may be served on parole (assuming a parole eligibility order has been made by the sentencing judge and the prisoner is in fact released on parole) may not exceed 2 years. Also, under the law of this State, the ratio between non‑parole periods and head sentences is fixed by statute.
In Mustafa, the Court of Criminal Appeal of Western Australia re‑sentenced the offender to 10 years and 6 months' imprisonment with a non‑parole period of 5 years and 6 months. The ratio of the non‑parole period to the head sentence was therefore about 52%. The court did not state any relevant issue of principle. No particular ratio or range of ratios was referred to as 'the norm' or 'a general guide'.
In P v The Queen [2003] WASCA 180, Steytler J (Murray & Anderson JJ agreeing) said, in the context of an appeal against the non‑parole period imposed following the appellant's conviction for importing heroin into Australia:
[T]he sole ground of appeal relates to the imposition of the non-parole period of two thirds of the head sentence. It is true that a non-parole period of that proportion is greater than is customarily ordered in this State. However, a sentencing Judge has an undoubted discretion to set a non-parole period at two-thirds of the head term, where that is appropriate: s 19AA and s 19AF of the Crimes Act 1914 (Cth) and s 95 of the Sentencing Act 1995 (WA) and non-parole periods of about two-thirds of the head sentence are sometimes set (see, for example 'X' v The Queen [2000] WASCA 355) [11].
Similarly, in Mohlasedi v The Queen [2006] WASCA 267, Roberts‑Smith JA (Pullin & Buss JJA agreeing) held, in dismissing an appeal against sentence by an offender convicted of importing a trafficable quantity of heroin into Australia:
I do not accept the appellant's submission that separate reasons must be given when a sentencing Judge sets a non-parole period greater than 50 per cent of the head sentence. There is no statutory constraint to that effect and nor does judicial authority limit the exercise of the sentencing discretion in that way. There is no 'normal' nor prima facie standard of 50 per cent of a head sentence for a non-parole period. The determination of a non-parole period when sentencing Commonwealth offenders is part of the exercise of the sentencing discretion generally [64].
See also Paunovic v The Queen (1990) 51 A Crim R 174, where Malcolm CJ (Kennedy J agreeing) said, in rejecting a submission that the non‑parole period for the offence of conspiracy to import cannabis into Australia should be one‑half of the head sentence:
There was some suggestion on behalf of the respondent that the non-parole period should always be fixed at one-half of the head sentence. In my view there is no force in that suggestion: Wehed (unreported, Court of Criminal Appeal, 23 July 1987), per Franklyn J at pp 7 ‑ 8; El Karhani (1990) 51 A Crim R 123 at 137 per Kirby P, Campbell and Newman JJ (177).
The principles to be applied in determining the non‑parole period for a Commonwealth drug importation or related drug offence
In my opinion, the principles to be applied in determining the non‑parole period for a Commonwealth drug importation or related drug offence are as follows.
First, s 19AB(1) of the Crimes Act confers on a sentencing judge a discretion to determine the appropriate non‑parole period.
Secondly, neither s 19AB(1) nor any other statutory provision requires the non‑parole period to bear any particular relationship to the head sentence.
Thirdly, my review of the case law reveals that, in general, the non‑parole periods for Commonwealth drug importation and related drug offences have usually been about 60% to 66 2/3% of the head sentences.
Fourthly, the relationship between non‑parole periods and head sentences which have customarily been imposed for Commonwealth drug importation and related drug offences is, at most, a general guide, and must not control or fetter the proper exercise of a sentencing judge's discretion.
Fifthly, sentencing judges must determine the appropriate non‑parole period in each case by applying the established legal principles set out at [31] ‑ [33] above to the facts of the particular offence and the circumstances of the particular offender. The process is not rigid or mathematical. Care must be taken to ensure that the non‑parole period arrived at in a particular case is the minimum period of imprisonment that justice requires the offender to serve.
Sixthly, sentencing judges must not determine the non‑parole period in any case by applying automatically the general guide I have mentioned. The ratio in a particular case may be within the general guide or may be higher or lower, as the facts and circumstances in question require.
The merits of the appeal
In my opinion, the learned sentencing judge did not make any express or implied error in fixing the non‑parole period. As to the appellant's fast‑track plea, he was entitled to a sentencing discount for the plea, but the extent of the discount was tempered by the powerful prosecution case and his inevitable conviction. As to the appellant's cooperation with the authorities, he was entitled to some credit for his cooperation, but it was not cooperation of the kind which ordinarily warrants a significant reduction in sentence, namely, where an offender's cooperation results in the arrest, trial and conviction of others involved in the relevant offending conduct. As to the amount of the drug imported, although the amount in question (27.7 g) was at the lower end of the scale of illicit drug importations, the purity of the drug (77.1%) was relatively high and the street value of the drug in Perth was substantial. As to the appellant's motivation for the importation, although he had been using methylamphetamine for about 7 years, he did not seek to prove before his Honour that he did not intend to sell or supply any of it. As to the appellant's lack of convictions for similar offending, it is well‑established that the primary sentencing considerations, in the case of drug trafficking, are personal and general deterrence and appropriate punishment, and the offender's personal antecedents, although not irrelevant, generally carry little weight. As to the appellant's prospects of rehabilitation, there was a paucity of evidence before his Honour on this issue. The only 'evidence' advanced on the appellant's behalf was a submission from the Bar table which adopted the words of the pre‑sentence report that the appellant had gone 'cold turkey' since his arrest, and a written reference from a friend of the appellant who wanted the opportunity to assist him. The appellant had not commenced any formal counselling, although it was said on his behalf that he was willing and eager to do so.
The learned sentencing judge's determination of the appropriate non‑parole period involved the exercise of judicial discretion. This court may not substitute its own opinion for that of a sentencing judge merely because it would have exercised a discretionary power differently. See
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671 ‑ 672; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 329.
No statutory provision requires the non‑parole period to bear any particular proportion to the head sentence. There is no usual standard or practice in this State (or elsewhere) that, in circumstances comparable to the appellant and his offending, the non‑parole period for Commonwealth drug importation or related drug offences is about 50% of the head sentence. Although most of the cases selected and relied on by counsel for the appellant (in particular, Schubert, Tan and Chua) involved a ratio of 50%, those cases do not establish a usual standard or practice. See P, Mohlasedi and Paunovic. Also, most of the cases cited by counsel involved sentences passed before the abolition in Western Australia on 31 August 2003 of the virtually automatic one‑third remission in the length of head sentences. See [37] above.
I am satisfied, on the basis of the applicable legal principles I have noted at [55] ‑ [60] above, the facts of the particular offence and the circumstances of the appellant, that the learned sentencing judge did not make any error of principle and that the exercise of his discretion, in setting the non‑parole period at a ratio higher than 50% of the head sentence, did not miscarry.
Conclusion
I would dismiss the appeal.
MILLER JA: I agree with Buss JA.
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