Director of Public Prosecutions (Cth) v Gow

[2015] NSWCCA 208

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208

Hearing dates:

5 June 2015

Decision date:

05 August 2015

Before:

Basten JA at [1];
Garling J at [56];
Hamill J at [71]

Decision:

Dismiss the Director’s appeal against sentence.

Catchwords:

APPEAL – federal offences – Director’s appeal against sentence – manifest inadequacy of sentence as only ground of appeal – respondent sentenced to 8 years imprisonment with a non-parole period of 5 years for drug importation – no guilty plea or other significant mitigating factors – head sentence lenient but not below available range – non-parole period within appropriate range – principles related to prosecution appeal – whether sentence affected by error in point of principle – discretionary considerations where Director’s approach to appropriate sentence inconsistent in comparable case – Criminal Appeal Act 1912 (NSW), s 5D(1)

 

CRIMINAL LAW – sentencing – federal offences – discount for guilty plea – applicability of state and territory laws and practices to discounts for guilty plea in sentencing for federal offences – whether such laws picked up by Judiciary Act 1903 (Cth), ss 68, 69 or 70 – Cameron v The Queen [2002] HCA 6; 209 CLR 339 discussed – Crimes Act 1914 (Cth), s 16A

  CRIMINAL LAW – sentence appeal – prosecution appeal – manifest inadequacy alleged – both parties relied on sentences in similar cases – utility of comparative exercise with previous sentences

Legislation Cited:

Crimes Act 1914 (Cth), ss 16, 16A; Pt 1B
Crimes (Appeal and Review) Act 2001 (NSW), s 68A
Crimes (Sentencing Procedure) Act 1999 (NSW), s 22
Criminal Appeal Act 1912 (NSW), s 5D
Criminal Code 1995 (Cth), s 307.1
Criminal Procedure Act 2009 (Vic), ss 289, 290
Judiciary Act 1903 (Cth), ss 68, 79, 80

Cases Cited:

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244 CLR 638
Cameron v The Queen [2002] HCA 6; 209 CLR 339
CMB v The Queen [2015] HCA 9; 89 ALJR 407
Director of Public Prosecutions (Cth) v Bui [2011] VSCA 61
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 243 FLR 28
Everett v The Queen [1994] HCA 49; 181 CLR 295
Green v The Queen [2011] HCA 49; 244 CLR 462
Griffiths v The Queen (1977) 137 CLR 293
Hili v The Queen [2010] HCA 45; 242 CLR 520
House v The King (1936) 55 CLR 499
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Lee v R [2012] NSWCCA 123
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Munda v State of Western Australia [2013] HCA 38; 249 CLR 600
Ng v R (Cth) [2010] NSWCCA 232
Peel v The Queen (1971) 125 CLR 447
The Queen v Olbrich [1999] HCA 54; 199 CLR 270
R v Aaron Tran [2013] NSWCCA 136
R v Agboti [2014] QCA 280
R v Calis [2013] QCA 165
R v Clarke [1996] 2 VR 520
R v Considine [2013] NSWCCA 97
R v Gallagher (1991) 23 NSWLR 220
R v Holland [2011] NSWCCA 65; 205 A Crim R 429
R v Karan [2013] NSWCCA 53
R v Thathiah [2012] QCA 195
R v Thomson, R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Siganto v The Queen [1998] HCA 74; 194 CLR 656
Webber v R [2014] NSWCCA 111
Wong v The Queen [2001] HCA 64; 207 CLR 584

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Cth) (Appellant)
James Kyle Gow (Respondent)

Representation:

Counsel:
Mr R J Bromwich SC/Ms S Talbert (Appellant)
Ms P M Wass SC/Ms C Bembrick (Respondent)

  Solicitors:
Director of Public Prosecutions (Cth) (Appellant)
Legal Aid Commission (Respondent)

File Number(s):

CCA 2011/362919

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

12 December 2014

Before:

McClintock DCJ

File Number(s):

DC 2011/00362919

Judgment

1. BASTEN JA: On 12 December 2014 McClintock DCJ sentenced the respondent for an offence under the Criminal Code 1995 (Cth) of importing a commercial quantity of cocaine. He was sentenced to eight years imprisonment with a non-parole period of five years.

2. Although the sentence was imposed in the exercise of federal jurisdiction, the Commonwealth Director is entitled to appeal as of right against sentence, pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW). [1] The sole ground identified in a notice of appeal filed on 12 January 2015 was that the sentence was manifestly inadequate.

   1. Judiciary Act 1903 (Cth), s 68(2); Peel v The Queen (1971) 125 CLR 447.

3. Section 5D(1) has the dual functions of conferring power to appeal on the Attorney General and the Director of Public Prosecutions and providing that the Court “may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.” That confers a discretionary power. It has long been established, as with respect to an appeal by an offender, that the general constraints on appellate intervention apply. As explained in House v The King, [2] it is necessary for the appellant to demonstrate that an error has been made in exercising the discretionary power. Absent demonstration that the judge has acted upon a wrong principle, taken into account extraneous or irrelevant considerations, mistaken the facts or failed to take some material consideration into account, the appellate court may only intervene if satisfied that the order is such that “upon the facts it is unreasonable or plainly unjust”, and that a failure to exercise the power according to law may be inferred.

   2. (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).

4. In relation to an appeal by the prosecutor, there may be some awkwardness in characterising a result as “unjust”, being a term more commonly applied to the situation of an individual. That matter highlights the important difference between an appeal brought by an offender and one brought by the prosecutor, in relation to a sentence. Thus, although there is a public interest in each offender being sentenced according to correct legal principle, there is also an individual interest in avoiding a manifestly excessive sentence. As explained in Green v The Queen [3] and recently affirmed in the joint reasons of Kiefel, Bell and Keane JJ in CMB v The Queen, [4] “offender appeals being concerned with the correction of error in a particular case and prosecution appeals being concerned with laying down principles for the guidance of sentencing courts”, the purpose underlying appellate intervention differs and the circumstances in which it occurs must differ. Thus, this Court should not intervene to increase a sentence unless persuaded by the Director that that course is appropriate for the proper performance of the Court’s statutory function, such as establishing a matter of principle. [5] In Everett v The Queen [6] the joint reasons stated that the reference by Barwick CJ in Griffiths to establishing “’some matter of principle’… must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting ‘error in point of principle’.”

   3. [2011] HCA 49; 244 CLR 462 at [1] (French CJ, Crennan and Kiefel JJ).

   4. [2015] HCA 9; 89 ALJR 407 at [55].

   5. See also CMB at [35] (French CJ and Gageler J, referring to Griffiths v The Queen (1977) 137 CLR 293 at 310 (Barwick CJ).

   6. [1994] HCA 49; 181 CLR 295 at 300 (Brennan, Deane, Dawson and Gaudron JJ) (citation omitted)

5. In Munda v State of Western Australia, [7] the joint reasons referred to that passage in Everett as encompassing “the avoidance of manifest inadequacy or inconsistency in sentencing standards.” [8] Although the language in Everett (“what is necessary to avoid”) has been reduced to “the avoidance of”, citation of both in CMB indicates that no diminution was intended of the standard to be applied in determining whether or not to intervene. The public purpose of a prosecution appeal has been described as a “limiting purpose”. [9] In any event, the identification of error is a precondition to the engagement of the power.

   7. [2013] HCA 38; 249 CLR 600.

   8.    At [69] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).

   9.    Green at [36]; CMB at [35] and [55].

Identification of error

6. The Director did not seek to establish some specific error of principle, extraneous consideration or failure to take into account a relevant matter. Rather he submitted that the sentence was manifestly inadequate “in all the circumstances given the objective seriousness of the offending, the maximum penalty, the lack of any substantial mitigation and the need for general deterrence.” [10] The judge had, it was further submitted, “impermissibly departed from the yardstick sentencing guidance provided by this Court and other intermediate appeal courts for similar offending”. [11]

   10.    Written submissions, par 4.

   11.    Ibid, par 5.

7. The maximum penalty was life imprisonment and a possible fine of $1.275 million. No fine was imposed, but there was no complaint about that. Nor was it said that the trial judge was not cognisant of the maximum penalty: he expressly referred to it and was undoubtedly aware of its severity. No doubt there was a need for general deterrence to be reflected in an appropriate sentence, as indeed there was a need for a sufficient sentence to constitute significant personal deterrence. But there was no suggestion that the judge treated these or other standard factors as inapplicable.

8. It may also be noted that the judge was aware of what the Director described as “the lack of any substantial mitigation”. Reference will be made to the express findings in that regard shortly. It may also be said that the judge was fully cognisant of the objective seriousness of the offending and the culpability of the offender: his reasons set out the elements of the offending in some detail.

9. In the end, the Director’s submissions must stand or fall on the proposition that the sentence was manifestly out of line with the range of sentences generally imposed for similar offending. Before addressing that submission, it is convenient to identify the circumstances of the offending as summarised by the sentencing judge.

Circumstances of offending

10. The importation involved packages of cocaine weighing just over 4 kg, constituting 2.3 kg of pure cocaine. (A commercial quantity is 2 kg.) The drug was contained in four packages, one in each of four computer towers, secreted where the compact disc or digital versatile disc drive should have been. [12] The drugs were discovered on importation; the Australian Federal Police were alerted and a controlled operation authorised whereby an inert substance was substituted for the drugs and the consignment was delivered to the address provided, being that occupied by the offender.

    12.    Judgment at 2.

11. The judge expressed himself satisfied beyond reasonable doubt that “the offender knew the substance in the computers was a border controlled drug” and that “he was aware of the approximate quantity of the drug.” [13]

    13.    Judgment at 5.

12. The judge considered that his sole purpose in coming to the country from his home in Canada was to engage in the importation. He dismissed as largely implausible his explanation for his involvement in the receipt of the computers, for impersonating an executive of a non-existent web design company and the reason for his stay in Cabramatta for some weeks without any tourist activity, that being the stated purpose of his trip to Australia. [14]

    14.    Judgment at 6-7.

13. So far as his role in the importation was concerned, the judge noted evidence that “he had some autonomy in the way he conducted himself in Australia and there is little to suggest he had a role above that of a trusted recipient of drugs and as a consignee.” [15] The judge was not satisfied that the offender had organised the importation, noted that he had no apparent resources of his own and operated with a degree of naivety and a lack of professionalism. [16] He used his real driver’s licence and otherwise conducted himself in a manner which the judge considered confirmatory of his presentation in the witness box, namely that he was “neither sophisticated nor has he the capacity for the organisation and planning necessary for such an operation.” In the absence of any other explanation, he considered the offender’s motive was financial gain. He concluded that the offender’s role was “toward the lower end of the hierarchy, not at the lowest end of the hierarchy, he was certainly not a mere minder and he has had some autonomy in his role.”

    15.    Judgment at 8.

    16.    Ibid.

14. The volume of drug involved was characterised as “just above the threshold for a commercial quantity.” [17] He accepted evidence that the wholesale value of the cocaine seized was between $760,000 and about $1 million and the street value as between $1.6 million and $1.8 million.

    17.    Judgment at 9.

Subjective circumstances of offender

15. There was nothing remarkable in the background of the offender, although he gave evidence that he had been “drinking excessively in the months leading up to his arrest.” He admitted to using cannabis “at times when it was easy to obtain.” [18]

    18.    Judgment at 6.

16. The offender did not give evidence at his trial. Somewhat curiously, given that the judge was bound by the verdict of the jury and the findings as to the essential elements of the offence, the offender gave evidence on sentence maintaining his innocence. As a result, the judge was bound to conclude, as he did, that there was no evidence of remorse. [19] The judge took into account evidence that he was a trained carpenter, was hard working and maintained his own home renovation business in Canada, and was neither intelligent nor sophisticated. [20]

    19.    Judgment at 7.

    20.    Judgment at 6, 7-8.

17. There was no suggestion that he had any criminal record, nor that he suffered from any identifiable psychiatric condition. The Director’s submission that there was little if anything by way of mitigation in his personal circumstances may be accepted, although, so far as his role was concerned, he might fairly be described as more misguided than malevolent.

18. So far as the sentence was concerned, because he was convicted after a trial, he obtained no benefit from a plea with utilitarian value.

Assessment of sentence

19. For reasons which will be explained, the Director’s submission that the sentence was markedly lenient and involved a marked disparity from at least some prior appellate court decisions should be accepted. Whether it satisfied the strong language of “an affront to community standards”[21] or was “so disproportionate to the seriousness of the crime as to shock the public conscience”[22] is less certain.

    21. R v Gallagher (1991) 23 NSWLR 220 at 232F-G (Gleeson CJ).

    22. R v Clarke [1996] 2 VR 520 at 522 (Charles JA); Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15] (approving, without restating, the principles articulated in Clarke).

20. On the sentencing hearing, the prosecutor relied on six cases, of which only three were decided by courts of appeal. The two in this State involved guilty pleas, each attracting a discount of 25%, apparently pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW), s 22, a factor to which it will be necessary to return. The closest in time and circumstances to the present offending was Webber v R. [23] That case involved a commercial quantity of cocaine very close in amount to the present facts. Following an early plea of guilty (for which a 25% discount was allowed) a sentence of 11 years was imposed with a non-parole period of 7 years. An appeal by the offender alleging that the sentence was manifestly excessive was rejected in this Court.

    23. [2014] NSWCCA 111.

21. The second case relied upon from this Court was Ng v R (Cth). [24] In that case the sentencing judge had commenced with a notional starting point (before discount) of 15 years, resulting in a sentence of 11 years 3 months and a non-parole period of 7 years 3 months. The offender’s appeal was rejected. Two factors to note in respect of that offence were that it involved heroin, with the result that the pure weight (2.445 kg) was significantly in excess of the commercial quantity (1.5 kg). Secondly, like Webber, it was an appeal by an offender and thus not directly relevant to establishing a lower limit for an appropriate range. [25]

    24. [2010] NSWCCA 232.

    25.    See further at [36]ff below.

22. The third case from an intermediate court of appeal was R v Calis. [26] That case involved importation of 1.3 kg (pure weight) of methamphetamine, for which the commercial quantity was 750 grams. The offender was convicted after a trial and sentenced to 10 years imprisonment with a non-parole period of 5 years. The trial judge found that the offender was a “bare courier”. The offender’s appeal against sentence was dismissed.

    26. [2013] QCA 165.

23. Two other cases in county courts involving not guilty pleas and significant quantities of methamphetamine (3 kg and 2 kg respectively), one by an offender described as more than a mere courier, each of whom received sentences of 15 years with 9 year non-parole periods. A third sentence in the Melbourne County Court, involving 1.5 kg of heroin, where there had been an early guilty plea and an offer of assistance, for a person higher than a courier, involved a sentence of 10 years and 6 months with a non-parole period of 7 years and 6 months.

24. This group of sentences relied upon by the Director as “comparatives” gives limited guidance as to the appropriate range in the present case.

25. The respondent relied upon three further cases in this Court and the Queensland Court of Appeal and five cases in the trial courts. All but one (in the District Court of New South Wales) involved pleas of guilty.

26. One matter which arises in this context is what to make of sentences in the course of which the sentencing judge or the appellate court provided a discount of 25% for an early plea of guilty, in apparent conformity with state practice. It appears to have been commonly accepted in this Court, as explained in Lee v R, [27] that, “[w]hen sentencing for a Commonwealth offence, there is no requirement for the sentencing judge to specify a quantifiable discount for an offender’s guilty plea” and that “[t]he principles [established] in R v Thomson, R v Houlton [28] do not apply to sentencing for Commonwealth offences.” Rather, the Court continued, the plea is to be taken into account “as recognition of an offender’s willingness to facilitate the course of justice but not on the basis that the plea has saved the community the expense of a contested hearing.” The authority for those propositions is said to be Cameron v The Queen. [29]

    27. [2012] NSWCCA 123 at [58] (Hoeben JA, Hidden and Beech-Jones JJ agreeing).

    28. [2000] NSWCCA 309; 49 NSWLR 383 at [155].

    29. [2002] HCA 6; 209 CLR 339.

27. Cameron is not authority for that principle. In Cameron the sentence was imposed for an offence against the Misuse of Drugs Act 1981 (WA), picked up and applied as federal law by the Commonwealth Places (Application of Laws) Act 1970 (Cth). [30] By contrast, s 16A of the Crimes Act 1914 (Cth), identifying general sentencing principles, is said to apply to “federal offences”. The term “federal offence” is defined to mean “an offence against the law of the Commonwealth.”[31] No doubt the Western Australian Court in Cameron was exercising federal jurisdiction, [32] but only Kirby J referred to the possibility that s 16A was applicable and, the point not being argued, dealt with the matter on the basis that the offence remained one against a law of the State. [33] The joint reasons of Gaudron, Gummow and Callinan JJ, whilst recognising that the sentencing exercise took place in federal jurisdiction, made no reference to s 16A, but rather assumed that relevant provisions of the state Sentencing Act applied.

    30.    Cameron at [2] (Gaudron, Gummow and Callinan JJ).

    31. Crimes Act, s 16(1), Federal offence.

    32.    Cameron at [46] (McHugh J).

    33.    Cameron at [91]-[92].

19. Accordingly, Cameron has nothing to say about the operation of Commonwealth law with respect to sentencing. Furthermore, it is at least doubtful that Cameron limits the basis upon which a plea of guilty may be taken into account in the way suggested in Lee. In construing the Western Australian legislation, the joint reasons stated that the relevant provisions “must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice.”[34] It is not possible to read that language as involving a rejection of the second limb identified (saving time and expense). Indeed, it is not possible to read that passage as excluding other relevant bases upon which a plea may considered. What the joint reasons were assessing in that passage was the relevance of identifying the time at which the plea was entered and whether it was possible to enter a plea at an earlier time. Consistently with the proposition that the Court was dealing with state or territory law, the joint reasons in Cameron[35] quoted with approval a passage from Siganto v The Queen [36] to the effect that a plea is a matter to be taken into account in mitigation as evidence of (a) remorse, and (b) sparing the community the expense of a contested trial. The joint reasons continued,[37] noting that remorse was not necessarily the only quality revealed by a plea, which may also indicate “acceptance of responsibility and the willingness to facilitate the course of justice.” Properly understood, all these four overlapping considerations are available bases for reducing a sentence following a plea of guilty.

    34. Cameron at [19].

    35. Cameron at [11].

    36. [1998] HCA 74; 194 CLR 656 at [22] (dealing with the Sentencing Act 1995 (NT)).

    37. At [11].

20. All of this is silent as to whether s 22 of the Crimes (Sentencing Procedure) Act is picked up by s 68 (or s 79 or s 80) of the Judiciary Act, together with the principles established in this State for the application of that section in particular circumstances, including those stated in Thomson and Houlton. A similar, if somewhat more complex application of relevant principle was considered in Bui v Director of Public Prosecutions (Cth). [38] Bui was an appeal from the Victorian Court of Appeal, which had intervened on the application of the Director to increase a sentence for a federal offence. In the past, it has been a well-established principle of state and territory law that, on a prosecution appeal, the otherwise appropriate sentence may be reduced or there may be a refusal to intervene because the offender is put at jeopardy twice in respect of sentence for the one offence, by a prosecutor’s appeal against leniency. In both this State and Victoria, statute has intervened to preclude that form of double jeopardy being taken into account in favour of an offender. [39] In Bui, the Court of Appeal had held that the Victorian provisions “relevantly modified the judge-made rule of double jeopardy and are effective to exclude the rule on Commonwealth appeals relating to sentencing of federal offences.”[40] The joint reasons then stated:[41]

“The argument depended upon the concept of double jeopardy being one of the matters to be taken into account under that section. And on that footing, the question would be whether s 16A would prevent the Victorian provisions being picked up by ss 68, 79 or 80 of the Judiciary Act.”

38. [2012] HCA 1; 244 CLR 638 (French CJ, Gummow, Hayne, Kiefel and Bell JJ).

39. Crimes (Appeal and Review) Act 2001 (NSW), s 68A; Criminal Procedure Act 2009 (Vic), ss 289 and 290.

40. Bui at [9] (referring to Director of Public Prosecutions (Cth) v Bui [2011] VSCA 61 at [69]).

41. Bui at [11].

30. Recognising that “s 16A accommodates the application of some common law principles of sentencing”,[42] the Court concluded that the application of an “automatic discount” would not be consistent with the requirement of s 16A(1) that the court must impose a sentence “of a severity appropriate in all the circumstances of the offence.”[43] The joint reasons further noted that s 16A “has nothing to say about particular matters which an appeal court alone may take into account when considering re-sentencing.”[44] For these reasons, possibly in combination, the Court concluded that the “presumed anxiety and distress on re-sentencing” which has been described as underpinning the double jeopardy principle, is not a matter to which a court on re-sentencing “is to” have regard under s 16A(2), and s 16A is to be applied “without reference to that presumed state of affairs.”[45]

    42. Bui at [18] referring to Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [15]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at [25].

    43. Bui at [19].

    44. Bui at [20].

    45. Bui at [28].

31. Section 16A identifies, as one of the matters which a court is to take into account, the fact that the person has pleaded guilty to the charge. [46] Whether that statement is sufficient to exclude principles of state and territory law, in accordance with Bui, is not easily determined. It is appropriate to disregard the second limb of the reasoning in Bui, as this is not an issue which is confined to an appellate court on re-sentencing. The problem with applying the first limb is that almost anything which might have the effect of mitigating or reducing the relevant sentence might be said to be inconsistent with the requirement in s 16A(1) to impose a sentence “of a severity appropriate in all the circumstances of the offence.”

    46. Section 16A(2)(g).

32. Assistance may be obtained by reference to the passages in Johnson and Hili identified in Bui with apparent approval. Thus, in Johnson the joint reasons of Gummow, Callinan and Heydon JJ stated:[47]

“The proposition contained in the first of the appellant's grounds is largely uncontroversial: that except to the extent stated in ss 16A and 16B of the Act, general common law and not peculiarly local or state statutory principles of sentencing are applicable. That common law principles may apply follows from the use of the words ‘of a severity appropriate in all the circumstances of the offence ...’ in s 16A(1) and the introductory words ‘In addition to any other matters ...’ to s 16A(2) of the Act.”

47. Johnson at [15].

33. The distinction between general common law principles and “peculiarly local or state statutory principles” is by no means easy to apply, nor is the basis for the distinction expressly identified.

34. The guidance from Hili is also inconclusive. Referring to the same passage in Johnson, the Court accepted that s 16A “accommodates the application of [the principle of totality]… and some other judicially developed general sentencing principles because those principles give relevant content to” the statutory expressions referred to in Johnson. [48]

    48. Hili at [25].

35. These authorities reflect a view that the underlying purpose of Part 1B of the Crimes Act (which includes s 16A) is to achieve consistency in the application of general sentencing principles with respect to all federal offences. It is for that reason that “local” sentencing principles are not picked up and applied but general principles, as articulated by sentencing courts, will operate. It follows from that conclusion that any of the factors identified in Cameron rendering a plea of guilty relevant to the sentencing process will operate under s 16A(2)(g). On the other hand, local practices with respect to the level of “discounts” to be applied in different circumstances will not have application in relation to sentencing for federal offences. It follows that, to the extent that sentencing judges in the comparative cases sought to fix a starting point and then to reduce the appropriate sentence by 25% for an early guilty plea, they have operated according to a wrong principle. The value of these cases, as part of their comparative exercise, is therefore limited.

36. The second problem which arises with the comparative exercise derives from the attempt by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [49] to categorise the sentences imposed for various federal offences. The critical categories for present purposes involved importing commercial quantities of drugs, the cases being broken up into four groups. As has been noted in other cases, many offenders fall within the third or fourth groups identified by the Chief Judge. With respect to the third group he stated: [50]

“In this group the head sentences range from 8 years to 15 years, and non-parole periods start at 4 years and end at 11 years. A number of the sentences in this group involved pleas of guilty. The range of sentences represents a noticeable ‘step down’ from the sentences in the previous group. A number of factors appear to explain this. First, the pure quantity of drugs imported is generally below 7 kg. (Two obvious exceptions are Chalmers and NP v R: the former was a successful Crown appeal and the latter involved a very favourable subjective case for the offender.) Secondly, the offenders in this third group occupy mid-range roles between that of principal and courier. (The exception is Speer, which may have been placed within the fourth group had the offender’s plea been entered at an early stage.) Finally, in this group, there are instances of assistance, sometimes significant, provided to the authorities (for example Vasquez-Felipe; NP; Speer; R v W). These efforts attract discounts of up to 30%.”

49. [2010] NSWCCA 194; 79 NSWLR 1.

50.    At [213] (references omitted).

37. With respect to the fourth group, he stated:[51]

“In this group the head sentences range from 6.25 years through to 8 years, while the non-parole periods range from around 3 to 4.5 years. The cases are roughly split between those in which the offenders pleaded guilty and those in which they pleaded not guilty. Quantities of drugs range from 1 kg to 30 kg and offenders occupy roles variously described as instigators, overseers, collectors and couriers. Many offenders in this group had good antecedents and no prior convictions.”

51. At [215].

38. One difficulty with applying these categories is that they are defined by the sentences imposed, not the features of the cases. The sentence in the present case fell at the bottom range of the third group and at the top of the fourth group. [52] It is possible to identify a number of cases having elements of similarity with the present offender who received sentences in the broad range of 7-9 years, with non-parole periods of 5 years or less.

    52.    The specific cases are listed in the Report at pp 85-90 (Group 3) and at 91-94 (Group 4).

39. In Webber [53] Fullerton J noted that there had been a line of cases after De La Rosa in which reliance on the categorisation of offenders by the Chief Judge had been said to be of limited assistance where manifest excess or inadequacy of sentence is alleged. [54] Thus, in R v Holland [55] McClellan CJ at CL had said of his own judgment in De La Rosa that it would be wrong to sentence an offender by attempting to fit the offender within a particular “category” and then impose a sentence appropriate for an offence sharing characteristics common for that category. [56] A more helpful exercise would involve identifying the key characteristics of the case under appeal and then seeking cases which are comparable in the sense of revealing similar characteristics, and then identifying the range of sentences imposed in those cases. The value in such an exercise is that it will identify technical disparities (such as the existence or not of a plea and at what stage), allow proper weight to be given to separate features and allow important factors, such as the activity of the offender, to be assessed more accurately than by reference to imprecise labels. [57]

    53. [2014] NSWCCA 111.

    54.    Webber at [42] (Hoeben CJ at CL and Adamson J agreeing).

    55. [2011] NSWCCA 65; 205 A Crim R 429 at [3].

    56. See also R v Aaron Tran [2013] NSWCCA 136 at [36] (Fullerton J).

    57. See, eg, The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [19]-[21] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

40. The Director relied on the decision of the Queensland Court of Appeal in Calis [58] a case which, together with numerous other authorities was considered by Peter Lyons J [59] in R v Agboti. [60] Agboti involved an applicant who had pleaded guilty to one count of importing a commercial quantity of methamphetamine. She was arrested on arrival carrying a bag of methamphetamine of 2.3 kg pure weight, the threshold for a commercial quantity being 750 grams. The street value was estimated at between $3.4 million and $10.2 million. Having pleaded guilty, the sentencing judge accepted that she showed genuine remorse. [61] A sentence of 11 years imprisonment was imposed with a non-parole period of 5 years and 6 months. On appeal, the sentence was reduced to 9 years and 6 months with a non-parole period of 4 years and 6 months. One of the cases relied upon by the offender was Calis, involving the importation of a commercial quantity of methamphetamine having a pure weight of 1.3 kg, about twice the commercial threshold. The offender was described as a “bare courier”. A sentence of 10 years with a non-parole period of 6 years was said not to be manifestly excessive.

    58. [2013] QCA 165.

    59.    With whom Muir and Morrison JJA agreed.

    60. [2014] QCA 280.

    61. Agboti at [14].

41. A not dissimilar sentence was imposed in the case of R v Thathiah, [62] upon which the applicant also placed reliance. The offender Thathiah was also convicted after a trial, receiving a sentence of 10 years imprisonment with a non-parole period of 5 years, which he alleged was manifestly excessive. The amount involved equated to 1.45 kg of pure methamphetamine. [63] The applicant was refused leave to appeal against his sentence.

    62. [2012] QCA 195.

    63. Agboti at [43].

42. These and other cases referred to in Agboti tend to confirm that the head sentence imposed in the present case is lenient, though not necessarily below an available range, but that the non-parole period is within an appropriate range. Given that the respondent would almost certainly be deported to Canada on completion of his non-parole period, this is not a case in which the Court would intervene merely to vary the head sentence, even were that thought appropriate. In any event, the sentence is not so lenient as to reveal error in principle; it is not necessary to intervene to establish sentencing standards; the Court should therefore dismiss the appeal.

Discretionary considerations

43. If it were otherwise appropriate for the Court to intervene, it would be necessary to consider a range of factors which might militate against intervention. These traditionally include considering the stance adopted by the Director before the sentencing judge; the time at which the offender was put on notice that an appeal was being considered, and the promptness with which a notice of appeal was filed and the matter brought on for hearing. In each of these respects, the Director has acted expeditiously and appropriately. There is one factor which would militate against intervention.

44. This Court was recently required to consider sentences imposed on three co-offenders, Faridani, Karan and Considine. The relevant offence involved importation of a consignment of 3.17 kg of cocaine, said to have a wholesale value of $1 million and a street value of between $2.3 and $2.5 million. Each of the offenders entered a plea of guilty, but the Director appealed with respect to the inadequacy of two, namely Karan and Considine. This Court dealt first with the matter of R v Karan. [64] The decision in the matter of R v Considine was handed down shortly thereafter. [65]

    64. R v Karan [2013] NSWCCA 53 (Johnson, Harrison and Adamson JJ).

    65. R v Considine [2013] NSWCCA 97 (RS Hulme AJ, Emmett JA and Price J agreeing).

45. The sentencing judge found that Faridani played “a significant managerial role in the importation.”[66] The judge indicated that he would have imposed a head sentence of 12 years if convicted after trial but allowed a discount of 40% for a very early plea and a high level of assistance. The head sentence in fact imposed was 7 years 4 months, with a non-parole period of 4 years 10 months. That sentence was not challenged by the Director. The Director accepted that Karan had played a lesser role than Faridani, Karan’s being an intermediate role between that of manager and a courier responsible for collecting the consignment of goods. Karan was responsible for recruiting Considine and another person, Nadan. The sentencing judge indicated that he would have imposed a head sentence of 5 years on Karan, reduced for a plea at the time of trial by 25%, giving a head sentence of 3 years 9 months and a non-parole period of 2 years 6 months. Considine would have received a head sentence of 2 years 6 months, reduced for a plea and other factors by one third to 1 year 8 months with a non-parole period of 6 months. She had significant subjective factors in her favour. Although this Court ultimately did not intervene to increase her sentence, it held that an undiscounted starting point should have been no less than 3 years 6 months. [67]

    66. Karan at [38].

    67. Considine at [30].

46. In the case of Karan, this Court considered that a starting point of 7 years was a minimum, with the result that the starting point proposed by the sentencing judge of 5 years was excessively lenient. The Court further accepted that the discount of 25% was excessive and that a figure of 15% was appropriate. In the event, that the Court imposed a sentence of imprisonment for 6 years with a non-parole period of 4 years. [68]

    68.    Karan at [75] and [78].

47. The circumstances of the various offenders could not readily be equated with the involvement of the respondent in the present case. However, it is clear that he was significantly more involved than Considine but did not exercise the managerial involvement at the level of Faridani. It is possible that he had greater responsibility than Karan, but not markedly so. The difficulty for the Director is that he had submitted that the starting point for Karan should have been “at least 7 years”, prior to discount. [69] That may have been a generous position to take, but it was accepted by this Court. It is not consistent with the proposition that the sentence imposed on the present respondent (8 years imprisonment) was manifestly inadequate.

    69. Karan at [48].

48. Conscious of the need for consistency, the Director put three submissions with respect to the use of Karan as a comparative case. First, he submitted that the offence in question had been that of an accessory to attempt to possess, rather than an importation. That was said to make the comparison “inherently problematic”. While that may be so in some cases, it is not clear that it was so in the present circumstances. This Court noted in Karan [70] that the same maximum penalty (life imprisonment) applied to offences of importation, aid and abet and attempt to possess. It further noted, by reference to authority, that attempts to possess were not necessarily a less serious category than importation.

    70. Karan at [67].

49. Secondly, the Director noted that Karan was a prosecution appeal and therefore, when considering re-sentencing, it was necessary to accept “a degree of restraint”. No doubt that is true and that, in identifying a starting point of seven years, the Director in Karan was seeking to identify the bottom of the range. Nevertheless, the bottom of the range is below the sentence imposed in the present case, meaning that Karan must be distinguished, or the Director has adopted a more stringent standard in the present case.

43. Thirdly, in an apparent attempt to distinguish Karan, the Director noted that there were potential parity issues in that case. The question of disparity apparently arose because the appeal in relation to Considine was not before the Court, so that the Court only had the original sentence imposed on Considine by way of comparison. The significance of this submission is by no means clear: the Court in Karan knew that there was an appeal against leniency in relation to Considine and that its decision would be handed down before the hearing of the appeal in that case. However, there was no indication that a lower sentence was considered appropriate for Karan for that reason, nor that ignorance of the result in Considine had influenced the submissions the Director made with respect to Karan. All that can be said is that the Registrar apparently adjourned the Considine appeal at her request, a course which should ordinarily not happen: it had no effect on the outcome in Karan.

44. In short, none of these factors provides a reason not to infer a degree of inconsistency between the approach adopted in Karan by the Director and the approach he has adopted in the present case. Accordingly, even if the sentence were thought to be unduly lenient, this case would not provide an appropriate vehicle for intervention.

Conclusions

52. As revealed in De La Rosa there is a level of variation, perhaps an undesirable level of variation, between sentences imposed on different offenders for importation of drugs. The variations may be amenable to resolution, but only at a level of fine detail which was not attempted in the present case. It is also true that variations exist between the jurisdictions as to an appropriate ratio between head sentence and non-parole period. However, the ratio exhibited in the present case (the non-parole period being 62.5% of the head sentence) is not unduly low by comparison with other sentences.

53. In the result, it may be said that the present sentence was at the low end of the permissible range, but it has not been demonstrated to lie outside that range. On that basis, the Director’s appeal should be dismissed.

54. Even if the sentence had been thought to fall below the permissible range, the fact that the Director was minded to accept a starting point one year less than the sentence imposed in the present case in the not dissimilar matter of Karan is a factor which may be taken into account in declining to exercise the power to intervene.

55. The Director’s appeal against manifest leniency of the sentence should be dismissed.

56. GARLING J: I am unable to agree with the proposed orders of Basten JA.

57. I gratefully adopt the detailed description in the judgment of Basten JA of all of the facts relevant to the imposition of the sentence by McClintock DCJ on 12 December 2014.

58. I have been persuaded that the sentence imposed by McClintock DCJ was manifestly inadequate, and that the Director’s appeal should be allowed.

59. As mine is a dissenting judgment, I can set out my reasons with some economy.

60. The circumstance surrounding the offence demonstrated that the offence itself was a serious one. Here was a planned importation of a prohibited drug, cocaine, in a commercial quantity. The importation was reasonably sophisticated. Whilst the respondent, who had come from Canada to Australia to engage in the importation, did not organise the importation, he was nevertheless regarded, correctly by the sentencing Judge, as not being a mere minder, but a person who had some autonomy in his role, and who was engaged in that role purely for financial gain.

61. Whilst the respondent had not committed any crimes previously, there was nothing in his subjective circumstances put before the sentencing Judge which provided any basis for a substantial mitigation of the penalty to be imposed. He did not plead guilty, but was sentenced after a conviction at trial.

62. The offence of which the respondent was convicted which was one contrary to s 307.1 of the Criminal Code 1995, carried a maximum penalty of life imprisonment. This was a legislative guidepost to which the sentencing Judge was obliged to have regard.

63. I agree with McClellan CJ at CL in R v Holland [2011] NSWCCA 65 at [3] that it is wrong, in sentencing, for a Judge, or this Court on appeal, to seek out the categories in Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194; (2010) 243 FLR 28, and then impose a sentence appropriate to the category. Rather, it is appropriate to proceed on the basis that the sentence passed in other cases can “… stand as a yardstick against which to examine a proposed sentence”: De la Rosa at [304] per Simpson J. See also Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [54].

64. At the sentencing hearing, and again on appeal, both the Crown and the Respondent referred to cases which they each argued had characteristics which were similar, in some but not all respects, to the present case.

65. The cases, which seem to me to be of particular relevance in the way in which comparable cases can properly be used, suggest that a head sentence in the order of 14 to 15 years with a non-parole period in the order of 7 to 10 years as the range of sentences which had been imposed by sentencing judges, or else upheld in various Courts of Appeal.

66. Those cases, namely Ng v R [2010] NSWCCA 232 and Webber v R [2014] NSWCCA 111, which were decisions of this Court, contain sufficient features of similarity to this matter as to provide a reasonable yardstick against which to examine the sentence imposed by McClintock DCJ.

67. In my opinion these two cases contain characteristics more akin to this case and are a surer guide to an appropriate sentence in this case than many other decisions referred to.

68. By reference to these cases, I am persuaded that the sentence in this case was manifestly inadequate.

69. In my view, the sentence imposed in this case does not adequately address the seriousness of the offence, the role engaged in by the respondent, and the need for general deterrence with respect to offences of importing commercial quantities of prohibited drugs into Australia. Having regard to the value of the importation, and the quantity available for distribution to the end user, a sentence of the kind imposed in this case, particularly after a trial, does not give any adequate attention to the need to deter others from committing similar offences.

70. I also disagree with the conclusion of Basten JA that the residual discretion to dismiss this appeal should be engaged. The facts and circumstances of the decisions to which his Honour refers are, in my view, exceptional, and do not warrant a conclusion that the Director’s appeal in this case ought be dismissed. On the contrary, I am of the view that, in order to ensure proper standards in sentencing for offences of this kind, there is good reason for this appeal to be upheld.

71. HAMILL J: I agree with Basten JA that the appeal should be dismissed. I also agree with his Honour’s reasons for that conclusion.

72. I agree with Basten JA that the High Court in Cameron v The Queen [71] did not limit the impact of a federal offender’s plea of guilty to an assessment of the extent to which it demonstrated a willingness to facilitate the course of justice. However, I would prefer to leave a more general consideration of the interaction of Part 1B of the Crimes Act 1914 (Cth) with the general sentencing law of New South Wales, and the extent to which that consideration is informed by the decisions in cases such as Cameron v The Queen, Wong v The Queen [72] and Bui v DPP [73] for a case when those matters are subject to full argument.

**********

71. [2002] HCA 6; 209 CLR 339.

72. [2001] HCA 64; 207 CLR 584 at 602-603.

73. [2012] HCA 1; 244 CLR 638.

Endnotes

Decision last updated: 05 August 2015