2. Set aside the order made by the Court of Criminal Appeal of Western Australia on 1 May 2002 dismissing the appeal.
3. Remit the proceeding to the Court of Criminal Appeal for consideration and determination in accordance with the reasons of this Court.
On appeal from Supreme Court of Western Australia
Representation:
D Grace QC with M L Tudori for the appellant (instructed by Michael Tudori & Associates)
D J Bugg QC with D W L Renton for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Johnson v The Queen
Criminal law – Sentencing – Federal offences – Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act1901 (Cth) applied – Whether sentencing judge applied peculiarly Western Australian sentencing principles – Whether express reference to relevant considerations in s 16A(2), Crimes Act1914 (Cth) necessary.
Criminal law – Sentencing – Federal offences – Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act1901 (Cth) applied – Totality principle where sentencing for commission of several offences – Whether sentencing judge must fix sentence for each offence and aggregate them before determining questions of totality or concurrence – Whether sentencing judge may in some circumstances lower each sentence before aggregation – Instinctive or intuitive synthesis approach to sentencing.
Criminal law – Sentencing – Federal offences – Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act1901 (Cth) applied – One transaction rule – Where two offences contain common element – Effect of factual errors made by Court of Criminal Appeal – Whether factual errors made by Court of Criminal Appeal in dismissing appeal necessarily leads to conclusion that sentencing judge erred – Whether sentence properly reflects consideration of whether defendant was truly engaged upon one multi-faceted course of criminal conduct.
GLEESON CJ. For the reasons given by Gummow, Callinan and Heydon JJ, I agree that the appeal should be allowed and the matter remitted to the Court of Criminal Appeal for further consideration.
I agree with Gummow, Callinan and Heydon JJ that the errors identified in the reasoning of the Court of Criminal Appeal do not necessarily require the conclusion that there was error on the part of the sentencing judge. I also agree that the appellant failed to make good a number of arguments suggesting that the Supreme Court of Western Australia has systematically adopted an erroneous approach to the sentencing of federal offenders for multiple offences, or…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Johnson v The Queen [2004] HCA 15
Case
[2004] HCA 15
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Criminal Appeal of Western Australia concerning the sentencing of the appellant, Johnson, who had pleaded guilty to two federal offences: attempting to obtain possession of prohibited imports, specifically a commercial quantity of ecstasy and a trafficable quantity of cocaine, contrary to s 233B of the *Customs Act 1901* (Cth). The dispute centred on whether the sentencing judge and the Court of Criminal Appeal had applied the correct principles in determining the appropriate sentence, particularly in light of the appellant's commission of multiple offences.
The legal issues before the High Court included whether the sentencing judge had applied sentencing principles peculiar to Western Australia rather than federal principles, and whether an express reference to the considerations outlined in s 16A(2) of the *Crimes Act 1914* (Cth) was mandatory. Furthermore, the Court considered the application of the totality principle when sentencing for multiple offences, specifically whether sentences must be fixed for each offence and then aggregated, or if individual sentences could be reduced before aggregation. The Court also examined the "one transaction rule" and its relevance when offences share common elements, and whether factual errors made by the Court of Criminal Appeal in dismissing the appellant's appeal necessarily indicated an error in the sentencing judge's determination.
The High Court reasoned that the sentencing judge's approach to sentencing, particularly concerning the aggregation of sentences for the two offences, did not adequately reflect the common factual elements of the criminal enterprise. The Court emphasised that while an "instinctive synthesis" approach to sentencing is permissible, the process should, where applicable, follow structured stages, especially when dealing with multiple offences. The failure to properly consider the commonality of the offences when determining concurrent or cumulative sentences, or when making allowances for cumulative sentences, meant that the sentence imposed was excessive. The Court of Criminal Appeal, in failing to correct this error, also erred.
Consequently, the High Court allowed the appeal, set aside the order of the Court of Criminal Appeal dismissing the appellant's appeal, and remitted the proceeding to the Court of Criminal Appeal for reconsideration and determination in accordance with the High Court's reasons.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order made by the Court of Criminal Appeal of Western Australia on 1 May 2002 dismissing the appeal.
3. Remit the proceeding to the Court of Criminal Appeal for consideration and determination in accordance with the reasons of this Court.
Background
Background to the litigation
This appeal raises questions as to the proper approach to sentencing by State Courts of offenders against Federal criminal law who have committed more than one offence.Facts Schwarz was a "drug runner". He entered Australia on 2 November 2000, carrying more than 5000 tablets containing a substantial quantity of 3,4 Methylenedioxymethamphetamine ("ecstasy"), a prohibited import to which s 233B of the Customs Act 1901 (Cth) applied. That quantity was not less than a commercial quantity within the meaning of s 233B(1)(c) of the Customs Act. He also had in his possession more than a trafficable quantity of cocaine, another prohibited import. He was apprehended and agreed to participate in a controlled delivery of inert substances in substitution for the drugs that had by then been confiscated. In accordance with instructions he had been given in Indonesia by the organiser of the importation, Schwarz checked into an hotel at Como in Perth. He telephoned the organiser to seek further instructions. He was asked to provide his room number and was informed that a person would call on him some time before midday to collect the drugs and to pay him for the importation. The person who was to collect the drugs, for which by then inert substances packaged in one parcel had been substituted, was the appellant. The appellant came to Schwarz's room. As he attempted to leave it he was arrested by Australian Federal Police officers. A second co-offender, Smart, who had been sitting in the appellant's sister's car outside the hotel, was also arrested. He was in possession of a substantial sum of cash. At first instance The appellant was charged with four offences, two of which were subsequently withdrawn. The remaining counts to which he pleaded guilty were:"1.On or about 2 November 2000 at Perth the [appellant] did without reasonable excuse, attempt to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied namely, narcotic goods consisting of a quantity of 3,4 Methylenedioxymethamphetamine (commonly called 'Ecstasy'), being not less than the commercial quantity applicable to that narcotic substance, contrary to s 233B(1)(c) of the Customs Act 1901.2.On or about 2 November 2000 at Perth the [appellant] did without reasonable excuse, attempt to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 applied namely, narcotic goods consisting of a quantity of Cocaine, being not less than the trafficable quantity applicable to that narcotic substance, contrary to s 233B(1)(c) of the Customs Act 1901." The appellant's plea was heard by the Supreme Court of Western Australia (Scott J). His Honour's sentencing remarks included the following:"The pre-sentence report indicates that you are aged 22, single and unemployed. The report indicates that at the time of this offending conduct you were in debt on a bank loan arising out of your purchase of a motor vehicle which had been damaged in an accident. At a rave party you had been offered $2000 to collect a package and you agreed to do that because the money would assist you with the loan.The pre-sentence report also speaks of your family life and the difficulties that you encountered as a child. It is not insignificant that since the end of 1999 you had a problem with cocaine but always pay for the drugs which you use. That having been said, however, it is quite clear that your motive in being involved in this criminal enterprise was to obtain money for the purpose of meeting your liability under the loan.Your counsel has stressed that you did not know the quantity of drugs that you were to obtain, and I accept that as a fact, but nonetheless you were prepared to take whatever the quantity was and facilitate the release of that quantity into the community in exchange for $2000.Your counsel has also indicated that you made a further statement to the Federal Police which purports to exculpate Smart, the man who was downstairs in your sister's car. It is not necessary for me to make any determination as to whether that statement is the truth or not. It is sufficient for the purposes of sentencing to express the conclusion that a statement made by you for the purpose of exculpating an accomplice is not a matter that entitles you to any credit.You are, however, entitled to credit for pleading guilty on the fast-track and accepting responsibility for your criminal conduct. You are not, in my view, however, entitled to any credit for cooperation, having elected to conceal the identity of Craig[6] and having sought to exculpate Smart from criminality. The other matter in your favour is your relative youth and I note that you are only 22 years of age.I also take into account the many character references presented on your behalf that speak highly of you. It is frequently the case in matters of this sort that persons who are well regarded in the community are selected as couriers. The reason is that they attract no suspicion. For that reason references do not carry the same weight as they would in relation to other offences.Counsel for the Crown submitted that your involvement should be seen as equivalent to that of Schwarz. In my view, that is not so. Schwarz was responsible for bringing these illicit drugs into Australia while you had no direct involvement in that aspect of this illegal transaction. Your part was to collect the drugs from Schwarz and to facilitate the distribution of those drugs in this country by passing them on to Craig or disposing of them at his direction.I have taken into account the authorities referred to both by your counsel and by the prosecutor which relate to similar quantities of ecstasy and the matters contained in section 16A(2) of the Crimes Act 1914. In this case, however, not only were you involved in attempting to obtain the ecstasy but also the cocaine, which was part of the package which you were to take possession of. That, in my view, adds to the seriousness of your conduct."[6]The person who offered the appellant the money.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GUMMOW, CALLINAN AND HEYDON JJ
(dissent)
KIRBY J
Whether the instinctive reaction to all of the facts drives the ultimate result or whether it is based on relevant considerations weighed and evaluated in a strictly logical order, I do not stay to examine. Perhaps this merely demonstrates that logical analysis and instinctive synthesis each plays a part in the ultimate orders that judges make. However, I agree that, to the fullest extent possible, the stages described in Pearce should, where applicable, be followed by sentencing judges in arriving at their sentencing dispositions, so far as the issues of cumulation or concurrence or of totality are concerned. Conclusion: errors require resentencing Had the course described in Pearce been taken by the sentencing judge in the present case it would have demonstrated the common elements in the two offences to which the appellant had pleaded guilty. That fact would either have suggested (as I would have been inclined to favour) that the sentences should have been structured to be served concurrently because parts of the criminal enterprise were common to the offences of which the appellant was convicted[56]. Or, at the very least, if cumulative sentences were ordered, it would have ensured that a proper, that is, substantial, allowance was made to reflect the common factual features of the two offences. [56]Fox and Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed (1999), par 9.601. See also R v Longford [1970] 3 NSWR 276 at 277-278; R v Mantini [1998] 3 VR 340 at 346-348; Miles v The Queen [2001] NTCA 9 at [35].Orders The sentencing judge erred. The sentence, in consequence, was excessive. The Court of Criminal Appeal erred, once it granted leave, in failing to correct the sentence. The orders proposed in the joint reasons should be made.