F v The Queen
[2005] WASCA 135
•22 JULY 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: "F" -v- THE QUEEN [2005] WASCA 135
CORAM: STEYTLER P
ROBERTS-SMITH JA
MCLURE JA
HEARD: 16 MAY 2005
DELIVERED : 22 JULY 2005
FILE NO/S: CCA 187 of 2004
BETWEEN: "F"
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WILLIAMS DCJ
File No :IND 1627 of 2004
Catchwords:
Criminal law - Sentencing - Whether sentence manifestly excessive - Whether reduction for cooperation with authorities - Section 21E of Crimes Act - Turns on own facts
Legislation:
Crimes Act 1914 (Cth), s 16A, s 16G, s 21E
Customs Act 1901 (Cth), s 233B(1)(c)
Result:
Leave to appeal granted
Appeal allowed
Sentence set aside
Resentenced
Category: B
Representation:
Counsel:
Appellant: Mr T F Percy QC & Ms B J Lonsdale
Respondent: Mr D W L Renton
Solicitors:
Appellant: Max Crispe
Respondent: Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Barany v The Queen [2000] WASCA 240
De Bonde v The Queen [2002] WASCA 251
Harris v The Queen [2004] WASCA 292
Lowndes v The Queen (1999) 195 CLR 665
R v B [2004] WASCA 1
R v Chan (1989) 38 A Crim R 337
R v Kevenaar (2004) 148 A Crim R 155
R v Schofield (2003) 138 A Crim R 19
Case(s) also cited:
Cameron v The Queen (2002) 209 CLR 339
Cardile v The Queen [2003] WASCA 72
Dinsdale v The Queen (2000) 202 CLR 321
Festus v The Queen [2002] WASCA 25
Gallagher v The Queen (1991) 23 NSWLR 220
Grimwood v The Queen [2002] WASCA 135
Heryadi v The Queen (1998) 19 WAR 383
Johnson v The Queen (2004) 78 ALJR 616
Playle v The Queen [2004] WASCA 86
R v Guiu (2002) 129 A Crim R 387
R v Irusta (2000) 117 A Crim R 6
R v MacGregor (2000) 120 A Crim R 24
R v Mada (2003) 137 A Crim R 460
R v Oancea (1990) 51 A Crim R 141
R v Pang (1999) 105 A Crim R 474
R v Pejovski [2001] NSWCCA 182
R v Pop (2000) 116 A Crim R 398
R v Suarez-Mejia (2002) 131 A Crim R 564
R v Willard (2001) 120 A Crim R 450
White v The Queen (2003) 39 MVR 157
STEYTLER P: I agree with McLure JA, for the reasons which she has given, that the appellant should have leave to appeal, that the appeal should be allowed, the sentence imposed by the sentencing Judge set aside and the appellant sentenced, in lieu, to a term of 5 years' imprisonment with a non‑parole period of 2 and a half years.
ROBERTS-SMITH JA: I have read the draft reasons prepared by McLure JA. I agree with those reasons and have nothing further to add.
MCLURE JA: The appellant was convicted on his own plea of guilty of one count of attempting to have in his possession a trafficable quantity of 3,4‑Methylenedioxymethamphetamine, also known as ecstasy, which had been imported into Australia contrary to s 233B(1)(c) of the Customs Act 1901 (Cth).
On 16 November 2004 Williams DCJ sentenced the appellant to a term of 8 years' imprisonment with a non‑parole period of 4 years. The appellant seeks leave to appeal against his sentence.
The relevant facts are that a parcel was sent from the United Kingdom addressed to a woman at an address in Ballajura. The parcel was intercepted upon its arrival in Australia by Australian Customs Service officers on 13 June 2004. Upon examination, the parcel was found to contain approximately 1000 ecstasy tablets with a gross weight of 241.5 grams (65.1 grams pure), concealed inside a number of Jumbo marker pens.
The parcel was taken by members of the Australian Federal Police who substituted an inert substance for the ecstasy and arranged for the parcel to be delivered to the intended address. The appellant subsequently took possession of the parcel and was arrested by police. In an interview with police he admitted the offence and further stated that he had been instructed by a person he named in England to collect the parcel and to deliver it to someone else but that he had been arrested prior to receiving the details of that person.
The appellant had no relevant prior convictions and a good employment record. The appellant contends that the learned sentencing Judge:
(1)did not give any, or any significant, discount for the early plea of guilty;
(2)failed to take into account that the offence was only an attempt rather than a completed offence;
(3)failed adequately to take into account significant mitigating factors personal to the appellant;
(4)failed to have regard to the extent of the appellant's co‑operation with authorities and his offer of future co‑operation.
Grounds (3) and (4) are drafted as particulars of a claim that the sentence of 8 years is manifestly excessive. The appellant challenges the length of the term, not the nature of the penalty. The legal principles applicable to the disposition of the application are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen (1999) 195 CLR 665. It is entitled to intervene if a material error of law or fact is discerned in the sentencing Judge's reasons. Alternatively, error may be inferred if the result is "manifestly excessive".
In determining whether a sentence is manifestly excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by the law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender: R v Chan (1989) 38 A Crim R 337 at 342.
As the appellant was convicted of a federal offence, the Crimes Act 1914 (Cth) applies. Section 16A of the Crimes Act identifies matters that the Court must take into account in determining the sentence to be passed. Under s 16A(2) those matters include:
"(g)if the person has pleaded guilty to the charge in respect of the offence - that fact;
(h)the degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence or of other offences".
Under s 21E(1) of the Crimes Act, if a federal sentence or a federal non‑parole period is reduced because an offender has undertaken to co‑operate with law enforcement agencies in proceedings relating to any offence, the court must specify that the sentence is being reduced for that reason and what sentence would have been imposed but for that reduction and if the non‑parole period is reduced, specify that it is being reduced for that reason and state what the period would have been but for that reduction.
Section 21E only relates to future co‑operation, not past co‑operation. It concerns the consequences of non‑co‑operation where it has been promised. It does not deal with co‑operation as a mitigating factor which comes within s 16A(2)(h).
Analysis
The appellant was unable to identify any material error of fact or law in relation to the discount for the appellant's fast‑track plea of guilty. The sentencing Judge expressly stated that he took the plea of guilty into account and gave credit for it. That being the case, the guilty plea is one of the circumstances to which regard should be had in considering whether the sentence is manifestly excessive.
There is also no proper foundation for the claim that the sentencing Judge erred in failing to take into account that the offence was only an attempt. The sentencing Judge identified the offence as an attempt at the commencement of his reasons, recited the relevant facts revealing it to be an attempt and sentenced on that basis. The gravamen of the contention is that a sentencing Judge is required to state whether or not the nature of the offence as an attempt rather than a completed offence impacted on the sentence. There is no warrant in the Crimes Act or in principle for imposing such an obligation on a sentencing Judge. In any event, the appellant accepts that it would not be an error to fail to reduce the sentence for that reason. The concession is correctly made. There may be no material difference in the levels of culpability, a point made by Hulme J in R v Kevenaar (2004) 148 A Crim R 155 at 169:
"… I regard the comfort the respondents can derive from the fact that their offences were but attempts as so limited as to be negligible. It was only through the actions of the Customs authorities that their attempts were not successful. It is artificial to suggest that the respondents' criminality would have been to any appreciable extent greater than it was had the Customs authorities allowed the parcel containing the MDMA to be delivered intact and then arrested the respondents when they had possession of its original contents."
As a result of the view I have reached on the trial Judge's treatment of future co‑operation, it is unnecessary to determine whether the sentence was manifestly excessive. However, it is appropriate to comment on one of the relevant considerations in the assessment, namely, the standards of sentencing customarily observed with respect to the crime. It is highly desirable that there be a relatively consistent approach taken by courts throughout Australia in sentencing for a federal offence under the Customs Act. We were referred by the appellant to a number of New South Wales authorities, including R v Schofield (2003) 138 A Crim R 19 and Kevenaar. Hulme J in Kevenaar undertakes an analysis of many of the New South Wales decisions. However, particular care is required when considering those decisions because many were decided at a time when s 16G of the Crimes Act applied to decisions in New South Wales. The practical effect of that section was to reduce the head sentence by one third: Kevenaar at [46] - [48]. A consideration of the authorities in this jurisdiction provide support for the view that the sentence of 8 years was, at least, at the high end of the discretionary range (see Barany v The Queen [2000] WASCA 240; De Bonde v The Queen [2002] WASCA 251; R v B [2004] WASCA 1; Harris v The Queen [2004] WASCA 292).
I turn now to co‑operation. The sentencing Judge had before him a letter dated 3 November 2004 from the Australian Federal Police. Insofar as future co‑operation was concerned, the letter indicated that the appellant had signed an undertaking to testify against the person based in the United Kingdom who was involved in the importation of the drugs the subject of the appellant's conviction (the "first undertaking"). The undertaking was to testify against the person should extradition to Australia be successful. The likelihood of the person being extradited was said to be small. The sentencing Judge described the appellant's assistance as being only partially helpful. He then referred to s 21E as follows:
"Pursuant to section 21E of the Crimes Act, if I propose to make a specific reduction, I need to specify. In my view the assistance is not such that I should make any specific reduction, I just take it into account in the overall sentencing."
It is clear the sentencing Judge was aware of s 21E and that if he reduced the sentence because of future co‑operation, he had to specify the extent of the reduction. That being the case, it is reasonable to infer that the sentencing Judge did not reduce the sentence for future co‑operation. Although it may be correct to describe the appellant's assistance as only partially helpful, it cannot be said that the undertaking to provide future co‑operation is valueless. It ought to have resulted in some reduction of the sentence. I am satisfied that the sentencing Judge erred in giving no reduction. That error caused the exercise of the sentencing discretion to miscarry, in which case this Court may exercise its own discretion where it has the materials to do so.
As a result, this Court can take into account post‑sentencing events which, in this case, is a further undertaking from the appellant to provide evidence against a third person in Western Australia relating to that person's alleged involvement in dealing with moneys believed to be the proceeds from the sale of drugs (the "second undertaking").
In resentencing the appellant, I have taken into account the matters specified in s 16A that are relevant, including, among other things, the serious nature of the offence and the circumstances of its commission, the appellant's fast‑track plea of guilty and his co‑operation with law enforcement agencies. Notwithstanding that mitigatory factors personal to the offender have diminished weight because of the nature and seriousness of the offence, they remain relevant and I have taken them into account. Having regard to all relevant matters save for the appellant's undertakings to provide future co‑operation, I would sentence him to a term of 7 years' imprisonment with a non‑parole period of 3 and a half years. For the future co‑operation the subject of the first undertaking, I would reduce the sentence by 6 months and the non‑parole period by 3 months. For the future co‑operation the subject of the second undertaking, I would reduce the sentence by 18 months and the non‑parole period by 9 months. That results in a total reduction of 2 years to the head sentence and a total reduction of 1 year to the non‑parole period.
Accordingly, I would grant leave to appeal, allow the appeal, set aside the sentence imposed by the sentencing Judge and sentence the appellant to a term of 5 years' imprisonment with a non‑parole period of 2 and a half years.
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