Director of Public Prosecutions (Cth) v AB (No 2) - [2006] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v AB (No 2)
Reasons of The Full Court
(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Layton)
13 April 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
On an appeal by the DPP against a sentence pronounced in the District Court following the respondent’s plea of guilty to various Commonwealth offences, the Court quashed an early release order and pursuant to s18A of the Criminal Law (Sentencing) Act 1988 imposed a single, custodial term of imprisonment – following objections by the respondent’s counsel to the form of order, the Court heard further submissions on that issue – held, dismissing the objections, that s 18A could properly be utilised when imposing a sentence for Commonwealth offences – observations as to other procedural matters arising under the Crimes Act 1914 (Cth).
Crimes Act 1914 (Cth) s 19(2), 4K(4), 16F, 17A; Criminal Law (Sentencing) Act 1988 s 9, 18A; Proceeds of Crime Act 2002 (Cth) s 320, referred to.
Director of Public Prosecutions (Cth) v AB [2006] SASC 84; R v Jackson (1998) 72 SASR 490; Putland v Reg (2004) 218 CLR 174; R v Bibaoni [1997] 2 VR 600, considered.

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v AB (No 2)
[2006] SASC 112
Court of Criminal Appeal: Perry, Nyland and Layton JJ
Edited (for publication)

PERRY J. In this matter, on 24 March 2006 the Court allowed an appeal by the Commonwealth Director of Public Prosecutions, when it made an order in the following terms:
The Court did this day order:
1.Leave to appeal granted.
2.Appeal allowed.
3.Sentence under appeal, and early release order, are quashed.
4.In lieu of sentence under appeal there be substituted a sentence of six years and two months imprisonment, with a non-parole period of four years.
5.[AB] surrender his passport to the Clerk of Arraigns by 5 o’clock on 24 March 2006.
6.Adjourned to Wednesday 29 March 2006 at 9.00 am for mention.
At the same time, the Court published reasons for decision (“the appeal reasons”).[1] These reasons should be read in conjunction with the appeal reasons.
[1] [2006] SASC 84.
The matter was adjourned to 29 March as on 24 March, when the appeal reasons were delivered, Mr Niarchos of counsel for the respondent raised several questions as to the form of the order disposing of the appeal, and as to suppression of certain information concerning co-operation with the authorities which had been given by the respondent before he had been sentenced in the District Court.
On 24 March 2006, the hearing was conducted by me and by Layton J, Nyland J being on circuit. Nyland J had authorised the publication of her concurrence with the reasons for judgment delivered by me, and in the order to be made disposing of the appeal.
Nyland J was still on circuit on 29 March 2006 when the hearing proceeded before the remaining members of the Court, on which occasion Mr Niarchos and Mr G. Fisher, then counsel for the appellant, made further submissions. The Court then agreed to reconvene after Nyland J had returned, when the issues raised by Mr Niarchos would be finally addressed.
On 5 April 2006, all three members of the Court sat. Nyland J indicated that she had read the transcript of the two previous hearings. She invited Mr Niarchos to repeat any submissions which he had previously made, but he did not think it necessary to do so.
The Court then confirmed the orders which it had previously made and further ordered that the respondent surrender to the District Court to enable the substituted sentence to be carried out.
These supplementary reasons indicate the basis upon which I joined in the making of the orders, and address the points taken by Mr Niarchos.
Crimes Act 1914 (Cth) (“the Crimes Act”), s 19(2)
As explained in the appeal reasons, the total penalty which would have been imposed by the trial judge, were it not for the discount which he allowed for the plea of guilty and for assistance to the police, was 10 years and 3 months imprisonment. However, he applied a discount of 65 per cent, with the result that the head sentence actually imposed was 3 years and 7 months.
That sentence resulted from the aggregation of individual penalties applied by him with respect to separate offences or groups of offences.
[Detail of the various sentences imposed on particular offences has been omitted from this edited edition of these reasons in the interests of the personal security of the respondent.]
On the appeal, apart from the challenge to the early release order, the sole issue was as to the discount of 65 per cent applied by the sentencing judge. Furthermore it was specifically indicated by the DPP that there was no challenge to the starting point for determination of the sentence, before the discount, that is the total of 10 years and 3 months.
The Court proceeded on that basis.
The DPP contended that this discount was far too high. As will be seen from the appeal reasons, that argument was accepted, and the view was expressed by this Court that an appropriate discount, in all the circumstances, would be 40 per cent.
Rather than track through each of the individual sentences and apply that discount to them and then aggregate the sentences, as the sentencing judge had done, this Court instead simply applied a reduction of 40 per cent to the overall starting point of 10 years and 3 months, giving rise to the substituted sentence of 6 years and 2 months imprisonment, against which this Court set a non-parole period of 4 years.
By doing so, Mr Niarchos contended that this Court had not applied the procedure laid down in s 19(2) of the Crimes Act. That section provides, inter alia:
19(1) ………
(2)Where:
(a)a person is convicted of two or more Federal offences at the same sitting; and
(b)the person is sentenced to imprisonment for more than one or the offences,
the court must, by order direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.
In my view, the argument is misconceived.
Section 19(2) only has application where separate sentences are imposed with respect to more than one offence.
The sentence ordered by this Court to be substituted for the sentence the subject of the appeal was a single sentence of imprisonment, which the Court clearly had power to impose pursuant to s 18A of the Sentencing Act: see R v Jackson[2] and Putland v Reg.[3]
[2] (1998) 72 SASR 490.
[3] (2004) 218 CLR 174.
While the discussion in those cases was largely in the context of the power to pronounce a single sentence pursuant to s 4K(4) of the Crimes Act, and the interrelationship between that provision and State and Territory provisions of the kind which find expression in s 18A, the decisions clearly endorse the legitimacy of the utilisation of s 18A in sentencing for multiple Federal offences.
There is no reference to s 19(2) in either of cases. There was no need to do so, given that s 19(2), as I have already observed, should be construed to apply where separate sentences are imposed for separate offences.
Were it to be otherwise, there would be a conflict between the operation of s 4K(4) and s 19(2), at least with reference to penalties imposed in courts of summary jurisdiction.[4]
[4] R v Bibaoni [1997] 2 VR 600.
Mr Niarchos’ argument seemed to involve the proposition that s 19(2) should be given an operation which obliges a sentencing court to give separate sentences for separate offences. I could not construe the section in that way.
It is entirely within the discretion of a sentencing court dealing with multiple offences, State or Federal, as to whether or not a single sentence is imposed, or separate sentences.
Furthermore, it was not incumbent upon this Court in the order disposing of the appeal, to follow the structure of the sentences imposed by the sentencing judge.
The sentencing judge was, however, bound to comply with s 19(2). Arguably he failed to do so by not indicating expressly when each sentence was to commence. However, he did so impliedly by directing that they be cumulative. No point was taken on the hearing of the appeal as to any irregularity in the process followed by the trial judge in that respect.
The substituted sentence ordered by this Court operates in a completely transparent fashion. Anyone reading the appeal reasons can see that the revised allowance for the plea and co-operation could equally well be applied to the individual sentences set by the sentencing judge or to the total starting point, with the same result.
All that this Court did was to adopt a less cumbersome form of order than would have been the case if separately reduced sentences had been substituted, in which case, the structure envisaged by s 19(2) would necessarily have been followed.
Section 16F of the Crimes Act
This section is in the following terms:
16F(1) Where a court imposes a federal sentence on a person and fixes a non-parole period in respect of the sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of fixing that non-parole period including, in particular, an explanation:
(a)that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and
(b)that, if a parole order is made, the order will be subject to conditions; and
(c)that the parole order may be amended or revoked; and
(d)of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions.
(2)…..
Mr Niarchos suggested that it was for this Court to comply with s 16F, and that the Court had failed to do so.
The submission is misconceived.
The section imposes a duty on the court actually pronouncing a sentence. It is a provision in aid of making sure that the defendant fully understands the sentence that has been pronounced.
In that respect, it performs a similar function with respect to sentences pronounced in Federal matters, as is the case with s 9 of the Sentencing Act with respect to sentences imposed by courts exercising jurisdiction in this State. Section 9 obliges the court, where the defendant is present in court at the time of sentencing, to state its reasons for imposing the sentence, and to cause an explanation of the legal effect and obligations of the sentence and the consequences of non-compliance with it to be given in simple language.
This Court is not the sentencing court. The sentence which was substituted by the order allowing the appeal is a sentence of the District Court. The record of that court will be altered to conform with the order of this Court. That court will then order the respondent to be taken into custody, and issue such warrants as may be necessary to give effect to the substituted sentence.
At the time when the respondent appears in the District Court for that purpose, it would be appropriate for the judge of the District Court dealing with the matter to give the explanations requires by s 16F.
The remaining two points may be dealt with shortly.
Section 17A of the Crimes Act
The appeal reasons make it plain why the Court did not consider that any other sentence was called for. It is neither appropriate nor necessary for us to give further reasons.
Proceeds of Crime Act 2002 (Cth), s 320
This was dealt with by the sentencing judge, at an earlier stage of his reasoning. The appeal judgment operates at a later stage, namely the application of the discount.
Conclusion
None of the points taken by Mr Niarchos as to the form of the judgment caused me to think that it was necessary to reconsider the terms of the order as pronounced on 24 March 2006.
NYLAND J: I agree with the reasons of Perry J and the conclusion reached by him.
LAYTON J: I have had the opportunity of reading the reasons for decision of Justice Perry and respectfully agree with him.