Elshani v R

[2015] NSWCCA 254

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Elshani v R [2015] NSWCCA 254

Hearing dates:

10 August 2015

Decision date:

19 October 2015

Before:

Gleeson JA at [1]
Adams J at [9]
Beech-Jones J at [39]

Decision:

1. Leave to appeal is granted.

 

2. The non-parole period is quashed and, in lieu thereof, a non-parole period is imposed of 3 years and 3 months commencing on 1 November 2012 and ending on 31 January 2016.

 

3. In accordance with s 16F of the Crimes Act 1914 (Cth) the appellant’s solicitor is directed to explain to the appellant, in language likely to be readily understood by him, the purpose and consequences of fixing the 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.

Catchwords:

CRIMINAL LAW – appeal – sentencing – mistaken application of Crimes (Sentencing Procedure) Act 1999 (NSW) in sentencing for offence under s 302.3 of the Criminal Code Act 1995 (Cth) by primary judge – error in finding “special circumstances” and failing to explain sentence in accordance with s 16F(1) of the Crimes Act 1914 (Cth) indicative of mistaken application of NSW legislation

CRIMINAL LAW – appeal – re-sentencing pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) – application of s 16A(2)(p) of the Crimes Act 1914 (Cth) – probable effect of sentence on person’s family – whether only “exceptional hardship” on offender’s family can be taken into account upon sentencing

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth), Pt IB, Div 4, ss 16A(2), 16F(1), 19AB
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Criminal Appeal Act 1912 (NSW), s 6(3)
Criminal Code Act 1995 (Cth), s 302.3

Cases Cited:

Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
Bugmy v The Queen [1990] HCA 18; 169 CLR 525
Bui v Director of Public Prosecutions for the Commonwealth of Australia [2012] HCA 1; 244 CLR 638
Director of Public Prosecutions (Cth) v Ip [2005] ACTCA 24
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
Huynh v R [2015] NSWCCA 167
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Khoo v R [2013] NSWCCA 323
Markovic v The Queen [2010] VSCA 105; 200 A Crim R 510
MLP v R [2014] NSWCCA 183
Nguyen v The Queen [2001] WASCA 119; 160 FLR 284
R v Ajelara [2015] QCA 56
R v Berlinsky [2005] SASC 316
R v Hinton [2002] NSWCCA 405; 134 A Crim 286
R v Huston; Ex parte Director of Public Prosecutions (Cth) [2011] QCA 350; 219 A Crim R 209
Kentwell v R [2014] HCA 37; 252 CLR 601
R v Lin [2014] NSWCCA 254
R v Matthews (1996) 130 FLR 230
R v Nguyen [2006] NSWCCA 369
R v Qian Lin [2014] NSWCCA 254
R v Sinclair (1990) 51 A Crim R 418
R v Togias [2001] NSWCCA 522; 127 A Crim R 23
R v Zerafa [2013] NSWCCA 222
S v The Queen [2003] WASCA 309

Category:

Principal judgment

Parties:

Avdi Elshani (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Game SC / D Barrow (Appellant)
A N Williams (Respondent)

  Solicitors:
The Law Practice (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2012/00341737

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

14 October 2013

Before:

Syme DCJ

File Number(s):

2012/00341737

Judgment

1. GLEESON JA: I agree with Adams J, for the reasons that he gives, that the sentencing judge erred in sentencing the applicant in accordance with the State legislation, Crimes (Sentencing Procedure) Act 1999 (NSW), rather than the Commonwealth legislation, Part IB of the Crimes Act 1914 (Cth). Accordingly this Court must exercise the sentencing discretion afresh in accordance with the provisions of s 6(3) of the Criminal Appeal Act 1912 (NSW): Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42].

2. The Court had before it additional material on resentencing (which was not before the sentencing judge) concerning the effect of the applicant's incarceration on his family. That material, which is summarised in the reasons of Adams J, concerns the psychological injury suffered by the applicant's wife and each of his children as a result of his incarceration.

3. The Court is required under s 16A(2)(p) of the Crimes Act to take into account the “probable effect” upon an offender's family or dependants of any sentence under consideration. Authority in this Court requires that this particular consideration must be read consistently with common law principles of sentencing. Accordingly it is necessary for the applicant to show exceptional hardship to a family member or dependant to ameliorate an otherwise appropriate sentence: R v Togias [2001] NSWCCA 522; 127 A Crim R 23 at [13]-[17] (Spigelman CJ); R v Hinton [2002] NSWCCA 405; 134 A Crim 286 at [31] (Howie J); and R v Zerafa [2013] NSWCCA 222; 235 A Crim R 265 at [93] (Hoeben CJ at CL; Latham J agreeing).

4. The premise of this approach is that s 16A accommodates the application of the common law principle of sentencing referred to in the preceding paragraph because that principle gives relevant content to some of the expressions used in s 16A(2): Hili v The Queen [2010] HCA 45; 242 CLR 520 at [25]; Bui v Director of Public Prosecutions for the Commonwealth of Australia [2012] HCA 1; 244 CLR 638 at [18]-[19]. Whether that premise is correct in respect of subs (2)(p), has been challenged in the dissenting judgment of Beech-Jones J in Zerafa. Nonetheless, the approach of the majority in Zerafa and the line of authority on which it is based, has been consistently followed in this court, most recently in R v Lin [2014] NSWCCA 254 at [71]; and Huynh v R [2015] NSWCCA 167 at [34].

5. The “exceptional hardship” approach to s 16A(2)(p) has also been applied by intermediate appellate courts in Victoria, South Australia, Western Australia and Queensland but not in the Australian Capital Territory: see R v Matthews (1996) 130 FLR 230 at 233; Markovic v The Queen [2010] VSCA 105; 200 A Crim R 510; R v Berlinsky [2005] SASC 316; R v Sinclair (1990) 51 A Crim R 418 at 430-431; Nguyen v The Queen [2001] WASCA 119; 160 FLR 284 at [39] (Malcolm CJ), [66] (Wallwork J); S v The Queen [2003] WASCA 309 at [29] (Miller J, Mckechnie J agreeing) cf Wallwork AJ dissenting at [39]; R v Huston; Ex parte Director of Public Prosecutions (Cth) [2011] QCA 350; 219 A Crim R 209; R v Ajelara [2015] QCA 56; cf Director of Public Prosecutions (Cth) v Ip [2005] ACTCA 24 at [60].

6. I am satisfied, for the reasons that Adams J gives, that the material presented on resentence demonstrates that the probable effect of the applicant's incarceration upon his family will give rise to exceptional hardship: s 16A(2)(p) Crimes Act.

7. In these circumstances, it is unnecessary to address the applicant's contention that the decision of the majority in R v Zerafa and the other decisions of this Court and other intermediate appellate courts that have applied the “exceptional hardship” approach to s 16A(2)(p) were wrongly decided. That contention would require the Court to be “convinced” that the interpretation of s 16A(2)(p) of the Crimes Act in those decisions is “plainly wrong”: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 at 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]. No good reason has been shown why the Court should undertake that task in circumstances where it is unnecessary to do so.

8. I agree with Adams J and Beech-Jones J, for the reasons that they each give, that a head sentence of 6 years is appropriate. I consider that a non-parole period of 3 years 3 months is appropriate for the reasons given by Beech-Jones J at [43]. I agree with the orders proposed by Adams J.

9. ADAMS J: On 15 May 2013 the applicant pleaded guilty in the Local Court to the offence of trafficking a marketable quantity of heroin between 30 October and 2 November 2011 in Sydney, an offence under s 302.3 of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is 25 years imprisonment. A marketable quantity of heroin is between 250g and 1.5kg, the amount in the possession of the applicant being 1.053kg. He was convicted in the District Court on his plea and sentenced on 14 October 2013 to an overall sentence of 6 years with a non-parole period of 4 years commencing 1 November 2012. A discount of 25 per cent was allowed for his early plea.

Amended grounds of appeal

10. Leave was granted permitting the applicant to amend his grounds of appeal. The Crown did not oppose this course. The grounds are as follows –

“Ground 1: Her Honour erred in failing to consider the impact of the custodial sentence upon the applicant’s family when determining a sentence of a severity appropriate in all the circumstances of the case.

Ground 2: Her Honour erred when finding special circumstances by applying principles associated with the sentencing of offenders for offences against NSW laws.

Ground 3: Her Honour failed to sentence the applicant in accordance with Part 1B of the Crimes Act 1914.”

The facts

11. Agreed facts were tendered. The following summary is taken from the learned primary judge’s reasons. Late in October 2012 the applicant contacted a Mr Ng in Singapore to arrange for the collection of prohibited imports for which the applicant had been awaiting delivery in Australia for a number of weeks. It was ultimately arranged that they would be delivered on 31 October. On that day, a Mr Goh arrived in Sydney and took instructions from contacts in Malaysia about making contact with a person in Sydney. At about the same time the applicant spoke to his Singapore contact and then a Malaysian contact, which ultimately resulted in he and Mr Goh contacting each other. After a number of communications between Mr Goh and his Malaysian contacts, the drugs were delivered to him. The applicant was told by Mr Ng that the transaction was ready to be completed and he travelled from Queensland to Sydney on 1 November to receive the drugs. Later that night, the applicant met with Mr Goh and obtained 1.497kg of heroin (net weight 1.053kg) and handed over about $10,000, although this amount was only part payment and perhaps as much as $300,000 was outstanding. There was no evidence as to how this balance was to be dealt with. The applicant was arrested in a car with the heroin in his possession at about 10.00pm that night, shortly after the exchange. Mr Goh was arrested in his hotel in Coogee whilst one of his associates was also arrested at a hotel in Kensington.

12. The primary judge inferred that Mr Goh handed the drugs to the applicant on the assumption that the latter was to distribute the drugs further in Australia and that further payment would be made at some time in the future. She noted that there was no evidence as to whether the applicant was to personally profit from an arranged on-sale or whether he was to arrange the wholesale of the package. As it happened, Mr Goh was in possession of a further 1.5kg of the drug when he was arrested and her Honour thought it a fair assumption that he was going to distribute this quantity himself. The large number of communications involving Singapore and Malaysian connections showed that the transaction was a result of considerable organisation but there was no evidence that Mr Goh or the applicant either knew each other or were involved in the arrangements that led to the ultimate delivery of the drugs to Mr Goh. The applicant and Mr Goh were more than couriers, but no evidence justified a finding of greater involvement. Mr Goh’s evidence in the proceedings was that he expected to receive about $25,000 for his part in the offence but, as I have mentioned, there was no evidence as to how much the applicant was to receive. Her Honour, not surprisingly, inferred that the applicant expected to obtain the quantity of drugs he received and was going to arrange payment for it or on sell it.

13. Both the applicant and Mr Goh played important parts in the offence of trafficking heroin into Australia but their roles appear to have been organised by others. No inference could be drawn, in particular, that the applicant was to be the principal distributor of the drugs in Australia. Because of the greater quantity with which Mr Goh was concerned, a total of 2.285kg of pure heroin, he was guilty of having trafficked a commercial quantity and liable to a maximum sentence of life imprisonment.

Subjective features

14. The applicant did not give evidence. Some documents were tendered on his behalf to the effect he was undertaking some courses and working in prison. There were testimonials from friends who had known the applicant for some years, referring to his strong feelings for his family and expressing surprise about his involvement in the crime. The applicant also wrote a letter addressed to the judge expressing his embarrassment and shame and a promise of reformation, acknowledging also that he had let down his family, especially his children, as well as his friends. There was also evidence that he had been generous with his time and resources towards fellow Albanians in Kosovo who had been affected badly by the civil war in the 1990s.

15. A report from Mr Watson-Munro, a psychologist, was also tendered without objection. It is fairly summed up in the written submissions of Mr Game SC, appearing for the applicant on the appeal, as concluding that the applicant was stressed and troubled by his isolation from his family and suffered from depression; he was not a drug user; and although his marriage was over, his family were very supportive. He did not suffer from a mental illness but was depressed and anxious and needed medication and cognitive behaviour therapies. He was very remorseful. The primary judge referred briefly to this report, noting that the background to which it referred did not appear to be disputed. Her Honour referred to the applicant’s difficult life circumstances resulting from the conflict in Kosovo. Although these did not have anything to do with the commission of the offence, her Honour apparently accepted they had led to his being depressed and he was “understandably anxious”. Her Honour noted that the applicant would serve his sentence away from his family, who mostly resided in Queensland, and that this would cause “some difficulties for him”. Her Honour referred to the testimonials which had been tendered and concluded –

“[The applicant] comes to this Court as a person of prior good character and the only blemish on his criminal record relate to some convictions which are irrelevant for the circumstances of this sentence. His wife and his daughter have both written letters to the Court indicating they fully support him, as have other people who indicate that in general he is a very hard worker who they believe would not normally involve himself in this sort of offence.”

Her Honour accepted that the applicant’s acknowledgement of the loss that the commission of the offence would cause to his family and to his community was sincere.

16. Of significance, given the second and third grounds of appeal, was the way in which her Honour calculated the non-parole period. I set out the relevant passage in full –

“I accept, therefore, that both offenders are entitled to a finding of special circumstances to some extent because both of them, separately and in different forms, will suffer isolation in custody. Mr Goh because of his language and cultural isolation and Mr Elshani because of his family isolation and his general mental health issues. Mr Elshani, I find, has good prospects of rehabilitation based mainly on his strong family support and good character in the past. I do, however, find that he will need substantial supervision on his release into the community because of his involvement in this offence.” [Emphasis added.]

Submissions

17. Mr Game SC, for the applicant, pointed out that the applicant stood to be sentenced for an offence committed against the Crimes Act 1914 (Cth). Pt IB of the Act deals with the sentencing, imprisonment and release of a federal offender and Div 4 deals with the fixing of non-parole periods and the making of recognizance release orders. The notion of “special circumstances” is immaterial although it is undoubtedly of particular importance in setting non-parole periods under the Crimes (Sentencing Procedure) Act 1999 (NSW) applicable to NSW offences, s 44(2) of which provides –

“44 Court to set non-parole period

(1) …

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).”

18. Nothing in the Commonwealth legislation mirrors or reflects this provision. The setting of a non-parole period is entirely within the discretion the Court, calculated of course by reference to the conventional and applicable sentencing principles. It is now not controversial that there is no “normal” non-parole period for federal offences determined by a percentage of the head sentence: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520. In dealing with what the Court described as a “fundamental starting point”, it said (at [21]) –

“Of their own force the laws of the States with respect to the sentencing of offenders could have no operation with respect to the sentencing of offenders against laws of the Commonwealth (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 352 [35]; [1999] HCA 9; Solomons v District Court (NSW) (2002) 211 CLR 119 at 134 [21]; [2002] HCA 47). Any relevant operation is by reason of a federal law which ‘picks up’ State law. By operation of s 68 of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’), some State and Territory laws in relation to the sentencing of offenders are picked up and applied when a court, exercising federal jurisdiction conferred by s 68, sentences a federal offender (Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8). But, to the extent to which Pt IB of the Crimes Act otherwise provides, State and Territory laws in relation to the sentencing of offenders are not picked up …”

19. It was submitted by Mr Game SC, firstly, that the reference to special circumstances indicated that the primary judge was mistakenly applying the procedure for assessing and setting a non-parole period under the NSW Act. This submission was reinforced by her Honour sentencing the applicant by referring firstly to the non-parole period of 4 years and then to the “balance of 2 years”, language which echoes that used in s 44 of the NSW Act. No such process is either mandated or proposed in s 19AB of the Commonwealth legislation, which simply provides (in s 19AB(1)) that, where a person is convicted of a federal offence and a life sentence or a sentence exceeding 3 years is imposed, the Court must either fix a non-parole period or, in the circumstances specified, make a recognizance release order. Thus, the sentence is first imposed and then a non-parole period set. Further precision is unnecessary for present purposes. The NSW Act prescribes a calculus which provides that, unless special circumstances are present, the specified ratio between the non-parole period and the balance of the term would be applied. In short, there must be material that justifies a variation of what might be referred to fairly as the default position which otherwise is to apply. This approach is very different to that for which the Commonwealth legislation provides: there is no default proportion which must be considered, let alone applied unless there are reasons amounting to special circumstances justifying departure.

19. Furthermore, the judge, in setting the sentence, clearly stated the expiry date of the non-parole period but gave no further information about the nature of the sentence, thus omitting to give the information required by s 16F(1) of the Commonwealth Act, which provides as follows –

“Court to explain sentence

(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.”

This tends to confirm that the primary judge had in her mind the State rather than the Commonwealth regime when sentencing the applicant.

21. The Crown prosecutor in this Court pointed out, rightly, that if there was an error made by the primary judge, it did not result from any of the submissions made either by the defence or by the Crown. Indeed, the latter pointed out, in particular, that there was no assumed starting point for the ratio of the period to be served as a proportion of the head sentence, citing Hili & Jones in this respect. It was submitted that the matters referred to by the primary judge in setting the non-parole period were relevant for that purpose and that the ultimate proportion reflected the submission of Mr Boulten SC for the applicant that “the normal pattern on non-parole periods of about 60 to 66% of the total sentence would be appropriate”. It was submitted in this Court by the prosecutor, in short, that the primary judge’s reference to special circumstances was inconsequential.

Consideration

22. The sentence proceedings took place on 11 October 2013, a weekend intervened and the applicant was sentenced on 14 October 2013. Although it may be that her Honour’s reasons were not quite ex tempore, I think it is appropriate to consider them in light of the pressures of work in the District Court which requires matters to be quickly dispatched. Her Honour’s reasons are therefore not to be approached in a closely analytical way and there must be due recognition for the risk, to which we are all subject, of a slip of language or awkwardness of expression which does not correctly reflect the notion sought to be expressed. However, making every allowance, I do not consider that her Honour made this kind of mistake. The consistent working through the State regime demonstrates, in my respectful view, that, indeed, her Honour mistakenly applied the State rather than the Commonwealth legislation. This is significant because of the different character of the discretion concerning the setting of the non-parole period. It follows that the second and third grounds of appeal are made out. It is not therefore necessary to consider the first ground of appeal although the material upon which it depends is necessary to the task of resentencing the applicant in accordance with the provisions of s 6(3) of the Criminal Appeal Act 1912 (NSW). To that matter I now turn.

The applicant’s family circumstances

23. Evidence of the applicant’s family circumstances has been placed before the Court. At first instance, the impact of the applicant’s incarceration on his family came from a letter from his wife, which was tendered without objection. In this Court, the applicant read without objection the affidavit of Mr Ricci, his solicitor, which annexes reports by Ms Johnstone, a forensic psychologist in respect of the applicant’s de facto spouse, his elder daughter (19 years of age), his elder son (17 years), younger daughter (16 years) and younger son (aged 15 years). In addition, reports were annexed from Ms Atkinson, the applicant’s wife’s treating psychologist and Ms Fornasier, that of the applicant’s elder daughter. This material is far more informative than that which was before the primary judge. Ms Johnstone’s reports contain detailed histories, results of psychometric testing, clinical observations and recommendations. It is not necessary for present purposes to set out all this information in detail and privacy considerations make it undesirable to do so. (The summaries omit quotation marks for ease of reading.)

24. As a provisional diagnostic impression, the applicant’s spouse meets the criteria for a DSM-V diagnosis of Adjustment Disorder With Mixed Anxiety and Depressed Mood. Her symptoms are clinically significant, evidenced by impairments in social and other important areas of functioning. The stress-related disturbance is not another mental disorder and is not merely an exacerbation of a pre-existing mental disorder. The symptoms do not represent normal bereavement. Overall, the onset of her adjustment difficulties appear to have occurred immediately in the aftermath of the applicant’s incarceration and she displays a pattern of protracted distress and psychological difficulties. She needs continuing medical and psychological help. The report of Ms Atkinson essentially agrees with that of Ms Johnstone, although my impression is that the difficulties seen by Ms Atkinson are somewhat less psychologically damaging than Ms Johnstone’s assessment suggests.

25. So far as the applicant’s elder daughter is concerned, Ms Johnstone describes serious emotional dysfunction, including suicidal ideation, following her father’s arrest and incarceration, one of the consequences of which was she felt unable to take up a university opportunity. She has had panic attacks and developed other significant responses to her stress, not only unhealthy in a physical sense but also in her social connections. She has displayed a high degree of worry and anxiety over her family as a whole, particularly about the welfare of her younger sister and over the family’s financial situation. Psychometric assessment confirmed significant problems suggesting an individual who is experiencing severe levels of depression and anxiety, generally appears to be overwhelmed by emotional lability and negative thoughts and has developed a degree of detachment as a form of coping with other unhealthy psychological traits. Ms Johnstone’s provisional diagnostic impression is that she met the criteria for the DSM-V diagnosis of Major Depressive Disorder, Single, Moderate, With Anxious Distress (Moderate) and Panic Disorder (provisional). She had some pre-existing vulnerabilities but, since her father’s incarceration, she has experienced a number of significant psychological and adjustment difficulties, which are most evident in her schooling and the development of depressive and anxious symptoms. She displays a pattern of protracted distress and needs further referral for psychological and/or psychiatric services, which may include consideration of antidepressant medication. Ms Fornasier reported that, when treatment commenced, she suffered from extremely severe depression, anxiety and stress. After intervention, her depression reduced to moderate, but her anxiety remained extremely severe and her stress remained severe. There was some progress over the course of treatment and it is reasonable to expect that she would benefit from more assistance.

26. Ms Johnstone reports that, following his father going into gaol when he was in year 11, the applicant’s elder son’s school performance suffered, he gained weight and became more isolated. However, he is now enrolled at university doing a full time degree and reports no significant worries or concerns so far as undertaking his studies is concerned. Out of university he reported what appears to be a somewhat isolated social life generally. He reported experiencing heightened levels of stress and more labile emotions and mood with suicidal ideation, though this is “much less now” that school is finished. Her provisional diagnostic impression is that he currently meets criteria for the DSM-V diagnosis of Autism Spectrum Disorder. (He had previously been diagnosed with Asperger’s disorder which is no longer separately recognised and falls within the definition of Autism Spectrum Disorder.) Overall, he displayed a relatively “standard” pattern of behaviour associated with the separation from his father, displaying a pattern of initial distress which appears to have declined over time. He struggled to manage negative emotional states overall but has managed to cope with very serious emotional difficulties caused by his father’s incarceration. Ms Johnstone did not consider that he required any additional supports or services.

27. The younger daughter experienced considerable emotional upset at the time of her father’s incarceration and has ongoing concerns as to how her family, especially her mother, is coping with the separation. Ms Johnstone’s provisional impression was that she meets the criteria for the DSM-V diagnosis of Anorexia, Severe (provisional). She is medically considered to be severely underweight and warrants referral for further assessment and intervention. Some compensatory mechanisms have worked at a superficial level but these processes, while effective in the short term, can be conceptualised as a “ticking time bomb”, in which a point of exhaustion is reached when the individual cannot sustain their level of functioning without appropriate support and adaptive coping. She needs regular engagement with a general practitioner since, in the absence of treatment her prognosis is guarded and her health and general wellbeing may deteriorate. With appropriate treatment, her prognosis would be more positive.

28. The youngest child reports a history of troubling interactions at school. He self-harmed for a brief time after his father’s incarceration and has recurrent suicidal ideation, most recently in about August 2014 when he felt overwhelmed and depressed. He reports symptoms associated with depression (compounded by the serious problems at school) and an increased level of hyper vigilance. He meets the criteria for the DSM-V diagnosis of Unspecified Trauma–and–Stressor Related Disorder (Provisional) and Panic Disorder (Provisional). In short, this young boy presented with a number of symptoms that are causing him clinically significant adjustment difficulties and distress. He would likely benefit from further assessment and ongoing management of his current psychopathology.

29. This evidence indicates that, although in some respects the applicant’s children have learnt to cope to a significant degree with the applicant’s incarceration, they suffer from significant adverse psychological consequences. To my mind, these are substantially greater than those ordinarily to be associated with separations of this kind.

Can the problems of the applicant’s family be taken into account?

30. Of course, there is no bright line and the significance of this in the sentencing context is necessarily a matter of fact and degree. However, it seems fair to say that the consequences for the applicant’s family of his incarceration appear to be relevant under s 16A(2) of the Crimes Act 1914 (Cth) which requires that “the court must take into account … (p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants”. However, this paragraph has not been applied in accordance with what would seem to be its plain language. In R v Zerafa [2013] NSWCCA 222; 235 A Crim R 265 this Court considered a line of authority commencing with R v Togias [2001] NSWCCA 522; 127 A Crim R 23 and R v Hinton [2002] NSWCCA 405; 134 A Crim 286, which has been followed in Victoria and Queensland and to some extent in South Australia and Western Australia (but not in the Australian Capital Territory) to the effect that the common law rule that only exceptional hardship to an offender’s family can be taken into account applies also to s 16A(2)(p). Following a review of the authorities both here and in the other States to which I have referred, Hoeben CJ at CL (with whom Latham J agreed) concluded (at [93]) that it was not appropriate for this Court to overrule or depart from the principle stated in Togias and Hinton in respect of the application of s 16A(2)(p) and that, if there were to be a change in the position, as the Chief Justice said in Togias (at [17]), “only the High Court can effect it”. Beech-Jones J, for his part, dissented on the introduction of the requirement of exceptional circumstances before s 16A(2)(p) could be relevant. Following a detailed discussion of authorities both in this State and elsewhere, his Honour noted –

“[139] … As best as I can ascertain, none of the judgments that have adopted or applied this principle has attempted to reconcile it with the express words of the section or considered the secondary materials concerning its introduction. In my view those matters invalidate the assumption upon which this stream of cases has flowed, namely that the section was not intended to modify the common law's treatment of hardship to an offender's family.

[140] This succession of cases has led to the adoption of a principle with little to commend it. If in other contexts Courts are bound to consider the impact of their orders on innocent third parties (Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; 195 CLR 1 at [65] to [66]; Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 324 and 332), why is the impact on children of any sentence under consideration to be excluded unless their hardship is only exceptional? The primary objects in sentencing of "retribution, deterrence [and the] protection of society" described by Wells J in Wirth can still be given effect to without requiring sentencing courts to divide the forms of hardship occasioned to an offender's family into those which meet the description "exceptional" and those which do not. The assessment of probable hardship to family members is a task that sentencing courts are perfectly able to undertake, and no doubt they do. In any event, the words of the section and the secondary materials indicate a clear policy choice on the part of the legislature on this topic.

[141] Further, the difficulty that accompanies the addition of a gloss to a legislative provision that is otherwise clear is revealed by the different formulations of the gloss that have emerged from the cases. The construction adopted by Howie J in Hinton suggests that no consideration can be given to hardship that falls short of the description "exceptional". The judgment of Spigelman CJ in Togias suggests that something other than "substantial weight" might be afforded to probable hardship occasioned to family members of offenders even if exceptional circumstances cannot be demonstrated. [R v] Nguyen [2006] NSWCCA 369 appears to confirm that. In circumstances where s 16A(2) specifies that a court is to take a "matter into account", what authority does an intermediate court of appeal have to specify the weight a sentencing court attaches to that factor? The relevant constraint on a sentencing court affording too much weight to the factor set out in s 16A(2)(p) is to be found in s 16A(1). Unconstrained by authority, in my view, s 16A(2)(p) should be applied by sentencing courts according to its terms, without having to determine whether the circumstances are exceptional or otherwise. If the result of affording weight to that consideration is that the sentence is unduly lenient then that will attract appellate interference on the established basis that it is manifestly inadequate, but not because some specified level of weight was attached to this factor that the Crimes Act does not expressly preclude. A sentence that is manifestly inadequate does not conform with s 16A(1).”

31. His Honour concluded (at [144]) that “the construction of s 16A(2)(p) which reads the provision as though it was preceded or proceeded by the words ‘in an exceptional case’ is plainly wrong” and should not be followed.

32. I should mention that it was put as a secondary argument by counsel on behalf of Zerafa (and by Mr Game SC here) that some weight at least could be given to the probable hardship to the respondent’s family as found by the primary judge as part of the mix of subjective circumstances, relying on R v Nguyen [2006] NSWCCA 369. The possibility of this approach was mentioned by Hodgson JA (Levine and Howie JJ agreeing) in R v Girard [2004] NSWCCA 170 where his Honour said –

“[22] I would adopt the remarks of this court in R v X [2004] NSWCCA 93 at [24] in the following terms:

I have already acknowledged the exigent nature of the respondent's family circumstances. To have regard to those circumstances as part of the general mix of subjective matters is one thing. It is, however, an entirely different thing to isolate those family circumstances, characterise them as highly exceptional, and use that characterisation as a justification for a discrete and substantial measure of leniency added onto the respondent's entitlements under the general law and under the general requirements of sections 22 and 23 of the Sentencing Procedure Act.”

33. In Nguyen, James J (Hidden and Hislop JJ agreeing) agreed with this approach. The majority in Zerafa, upholding the Crown appeal as to inadequacy, did not find it necessary to consider it. Hoeben CJ at CL said –

“[97] … I am not satisfied on my reading of this material that even if those parts which related to the effect of the respondent's incarceration on his family were taken into account on sentencing, it would significantly affect the outcome. As her Honour concluded, those circumstances do not amount to "exceptional" hardship. Except for the nervous symptoms likely to be experienced by the respondent's son, it is the sort of reaction that one would expect from most close families if a father received a prison sentence. Accordingly, even if as the respondent urged upon the Court, hardship to third parties was taken into account in the sentencing process, it would not operate to significantly mitigate the sentence which should be imposed.”

34. As the prosecutor in this Court pointed out, Zerafa has been followed in R v Qian Lin [2014] NSWCCA 254; MLP v R [2014] NSWCCA 183; Khoo v R [2013] NSWCCA 323; Huynh v R [2015] NSWCCA 167 and, in Queensland, in R vAjelara [2015] QCA 56.

35. In my respectful view, despite the persuasive (indeed convincing) dissenting judgment of Beech-Jones J in Zerafa, the principle stated by the majority has now become too embedded for this Court to reconsider it.

36. At all events, I have concluded that the psychological injury suffered (in various ways and to a greater or lesser extent) by each member of the applicant’s family as a result of his incarceration is indeed exceptional within the meaning of that term at common law and thus is to be taken into account under s 16A(2)(p). It is substantially greater than the ordinary or expected sadness, anxiety or disappointment that would normally follow a separation of the present kind. Furthermore, that each member of the family is adversely affected reduces the ordinary support usually provided by members of the family to each other. It follows that real significance should be accorded this factor when weighing the applicant’s subjective circumstances.

37. The applicant has also placed before the Court additional material relating to his conduct whilst in prison, indicating that he is participating in a number of useful education programs and is currently on TAFE release having enrolled in a certificate course involving training in various work skills. He has worked within the gaol and holds a trusted position with minimal supervision. I have noted already the report of Mr Watson-Munro to the effect that the applicant has a long standing depressive illness together with an anxiety disorder associated with developing agoraphobia for which treatment is necessary. This gives particular point to his knowledge of the significant problems caused by his incarceration for his family, which adds a degree of harshness to his sentence. Despite this condition he has been able to function apparently well in the prison environment.

Assessment

38. Mr Game SC did not submit that the overall sentence of 6 years was inappropriate, rather focusing his attention on the non-parole period. It seems to me, at all events, that a sentence of 6 years imprisonment, having regard to both the objective and subjective features of this case, is appropriate. I agree with Gleeson JA and Beech-Jones J that a non-parole period of 3 years and 3 months should be imposed. Accordingly, I propose the following orders –

1. Leave to appeal is granted.

2. The non-parole period is quashed and, in lieu thereof, a non-parole period is imposed of 3 years and 3 months commencing on 1 November 2012 and ending on 31 January 2016.

3. In accordance with s 16F of the Crimes Act 1914 (Cth) the appellant’s solicitor is directed to explain to the appellant, in language likely to be readily understood by him, the purpose and consequences of fixing the non-parole period including, in particular, an explanation:

1. 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

2. that, if a parole order is made, the order will be subject to conditions; and

3. that the parole order may be amended or revoked; and

4. of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions.

39. BEECH-JONES J: I have read the judgment of Adams J. I agree with Adams J that the sentencing judge erred in sentencing the applicant in accordance with the statutory regime provided for in the Crimes (Sentencing Procedure) Act 1999 (NSW) rather than in accordance with Part IB of the Crimes Act 1914 (Cth). This error warrants this Court re-exercising the sentencing discretion in its own right.

40. One issue that arises on resentencing is the proper construction of s 16A(2)(p) of the Crimes Act 1914 and, in particular, whether it is only family hardship that can be characterised as exceptional that can be taken into account in the course of determining a sentence that is “of a severity appropriate in all the circumstances of the offence” as referred to in s 16A(1). Senior Counsel for the applicant, Mr Game SC, submitted that decisions, including judgments of this Court, that adhere to that construction are clearly wrong and should not be followed (see Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 at 492). I agree for the reasons I stated in R v Zerafa [2013] NSWCCA 222 at [111] to [149]; “Zerafa”). In my view “s 16A(2)(p) should be applied by sentencing courts according to its terms, without having to determine whether the circumstances are exceptional or otherwise” (Zerafa at [141]).

41. As Adams J has pointed out at [34], since Zerafa a number of decisions of this Court as well as a decision of the Queensland Court of Appeal (R v Ajelara [2015] QCA 56) have reaffirmed the contrary view. However in those cases and all which preceded Zerafa there was no discussion of how the preferred interpretation of s 16A(2)(p) could be arrived at having regard to orthodox principles of statutory construction. The issue presented by the continued maintenance of this construction of s 16A(2)(p) is not the same as that which presents itself to a Court at this level of the judicial hierarchy that is determining whether it will depart from some well established doctrine of the common law. Instead the issue is whether such a Court will maintain an interpretation of a statutory provision which is contrary to Parliament’s clearly stated intention and which has been established by a line of authority that has not sought to justify it. In my view it should not be maintained. The line of authority is clearly wrong and should not be followed.

42. The material concerning the applicant’s family is summarised in the judgment of Adams J. That material indicates that they have been experiencing significant hardship since his incarceration especially his youngest two children. The material does not give much insight into the role played by the applicant in his family prior to his arrest. Nevertheless there is sufficient material to conclude that his absence is exacerbating their unfortunate situation and placing great stress on the children’s mother. In my view the material presented on sentence is similar to the material in Zerafa that warranted the attribution of “real weight in the process of synthesising the various factors relevant to fixing an appropriate sentence” (Zerafa at [152]). In particular the material points to a reduction in the non-parole period that might otherwise be imposed so that the adverse affectation of the applicant’s children may be reduced while the community are afforded a measure of protection from his supervision while on parole (see Bugmy v The Queen [1990] HCA 18; 169 CLR 525).

43. On resentencing there was no real dispute by either party as to the appropriateness of the head sentence of six years. However both that aspect of the sentence and the contentious aspect, namely the non-parole period, must be reconsidered by this Court in the fresh exercise of its discretion to resentence (Kentwell v R [2014] HCA 37; 252 CLR 601). Having regard to the seriousness of the offence especially the quantity of heroin but also bearing in mind the limited findings as to the applicant’s level of involvement, his plea of guilty and his subjective case I consider that a six year head sentence is appropriate. In relation to the non-parole period there is no “judicially determined norm or starting point” (Hilli v R; Jones v R [2010] HCA 45; 242 CLR 520 at [44]). The sentencing judge found that the applicant had “good prospects of rehabilitation”. Bearing in mind that finding and the material concerning his family, I consider that a non-parole period of three years and three months is appropriate.

44. I agree with the orders proposed by Adams J.

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Amendments

26 October 2015 - Coversheet decision and paragraph [38], order (2): non-parole period expiry date corrected to "31 January 2016".

Paragraph [14], second sentence: "expressed" deleted and replaced with "expressing".

Decision last updated: 26 October 2015