Kumova v The Queen
[2012] VSCA 212
•21 September 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0117 | |
| EMRE KUMOVA | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE, REDLICH and OSBORN JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 27 August 2012 | |
| DATE OF JUDGMENT | 21 September 2012 | |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 212 | |
| JUDGMENT APPEALED FROM | DPP v Kumova (Unreported, County Court of Victoria, Judge O’Neill, 18 May 2011) | |
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CRIMINAL LAW – Sentencing – Trafficking in a large commercial quantity of methylamphetamine – Appellant sentenced to total effective sentence of 10 years’ imprisonment with a non-parole period of seven years and six months – Non-parole period – Whether judge erred in failing to give effect to intention of fixing a ‘shorter than usual’ non-parole period – Appeal dismissed – Relevance to sentencing of a ‘usual non-parole period’ – Wallace v R [2012] VSCA 114, Romero v R (2011) 206 A Crim R 519, R v Bolton and Barker [1981] 1 VR 692, R v Detanamo [2007] VSCA 160, R v Tran and Tran [2006] VSCA 222, Hili v The Queen (2010) 242 CLR 532 and Muldrock v The Queen (2011) 244 CLR 120, referred to.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr M J Croucher SC with Ms Sarah Leighfield | Grigor Lawyers |
| For the Crown | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
On 29 April 2011 the appellant pleaded guilty before a judge of the County Court to trafficking in a large commercial quantity of methylamphetamine. The offending was committed over the period 20 November 2009 to 30 March 2010. During that time, the appellant was involved in 200 drug-related telephone calls concerning 13.723 kilograms of the substance, as follows: (1) 896 grams was offered to be sold in four offers to sell; (2) 224 grams was agreed to be sold on one occasion; (3) 7.840 kilograms was sold and supplied in 17 transactions; (4) there were approximately 15 other transactions where the amount that was supplied could not be quantified; and (5) 4.763 kilograms was obtained by the appellant for the purpose of sale but intercepted and seized by police before the sale could be effected.
Following a plea in mitigation of penalty, the judge sentenced the appellant to ten years’ imprisonment (the maximum penalty is life imprisonment) with a non-parole period of seven years and six months.
The appellant sought leave to appeal against the sentence on two proposed grounds, namely: (1) that the judge erred in failing to give effect to his intention to fix a shorter than usual non-parole period; and (2) the judge erred in paying undue regard to the gross weight of the substance trafficked (13.7 kilograms) and insufficient regard to the fact that the methylamphetamine in question was only about 10 per cent pure.
On 14 September 2011, I granted him leave to appeal on Ground 1 but refused him leave to appeal on Ground 2. He did not renew his application for leave to appeal on Ground 2 and accordingly it is no longer necessary to consider.
Ground 1: Shorter than usual non-parole period
Counsel’s submissions in support of Ground 1 were based on the observations of this court in R v Tran and Tran,[1] that:
The non-parole period imposed demarcated the minimum period that the appellant serve in custody and the longest possible term of his parole supervision. The Sentencing Act 1991 requires that the non-parole period be at least six months less than the terms of the head sentence. Beyond that legislative direction there is no requirement at law which calls for a set ratio between the head sentence and the non-parole period. The Australian Law Reform Commission recently reported that ‘case law recognises that the non-parole period is generally set at 60 to 66.6% of the head sentence with the non-parole period increasing to 75% in the worst category of case’. This accords with the observations of Callaway JA in R v Bolton & Barker[2] that ‘[I]n the majority [of cases] the proportion is between two-thirds and three-quarters but both shorter and longer periods are found’.
[1][2006] VSCA 222, [27]–[28] (footnotes omitted) (Redlich JA with whom the other members of the court agreed).
[2][1998] 1 VR 692, 699 (Callaway JA).
In R v Detenamo,[3] Redlich JA referred with approval to Tran and Tran and went on to add that:
A non-parole period which exceeds three-quarters of the length of the head sentence is not necessarily indicative of error as there is no fixed standard for the non-parole period. However, where a non-parole period is imposed which is unusual by comparison with other cases and having regard to the facts of the instant case and the course of the plea, reasons should generally be given, and an absence of reference to the sort of factors mentioned by Callaway JA in R v VZ[4] invites appellate scrutiny and may reflect error…
[3][2007] VSCA 160, [18]–[28].
[4][1998] 7 VR 693, [13] (Callaway JA).
Counsel for the appellant submitted that, in light of Tran and Tran and Detenamo, and given the judge’s expressed intention of setting a shorter than usual non-parole period, the head sentence of 10 years’ imprisonment should have attracted a non-parole period of no longer than six years; and so, in setting a non-parole period of seven years and six months, the judge failed to give effect to his expressed intention of setting a shorter than usual non-parole period.
Last year, when I heard the application for leave to appeal, I was persuaded that the point was reasonably arguable. As I said then, however, I reached that view with some reluctance. Now, having heard the full argument, it appears to me to be flawed. The problem with it is that it assumes that the concept of a ‘usual non-parole period’ of between 60 per cent and 75 per cent of head sentence applies in all cases regardless of the length of the head sentence. That is just not so.
The usual non-parole period
In recent times, there have been several decisions in this court in which judges have expressed distinct reservations about any idea of a ‘usual non-parole period’. For example, in Wallace v R,[5] Maxwell P and Buchanan JA said that there is no usual non-parole period and that phrases such as ‘shorter than usual and longer than usual’ are unhelpful. In their Honours’ view, such expressions are likely to create false or unrealisable expectations which lead to appeals. It is preferable, they said, to speak in terms of a non-parole period being shorter than it otherwise would have been because of the particular circumstances of the case. To the same effect, in Kneifati v R,[6] Maxwell P, Buchanan and Hansen JJA stated that there is no ‘usual’ or ‘normal’ ratio between the non-parole period and the head sentence. The High Court has spoken in similar terms (in relation to the Commonwealth and New South Wales sentencing regimes) in Hili v The Queen[7] and Muldrock v The Queen.[8]
[5][2012] VSCA 114, [16].
[6][2012] VSCA 124, [24].
[7](2010) 242 CLR 520, 534 [44].
[8](2011) 244 CLR 120, 131–2 [26]–[28].
As those decisions tend to show, the idea of a ‘usual non-parole period’ can be problematic. Taken literally, it tends to imply the existence of a starting point in a two part sentencing process. A two part sentencing process is forbidden.[9] We must adhere to intuitive synthesis.
[9]Markarian v The Queen (2005) 228 CLR 357, 375 [39] and 377–378 [51].
Authority also dictates, however, that we must strive for consistency.[10] It requires that we look to comparable cases.[11] Look at enough of them, and the patterns become ineluctable. It does not offend the principle of intuitive synthesis, nor is it unhelpful to a sentencing judge to be aware of the patterns. Hence, over the last two decades, this court has often referred to the ‘usual non-parole period’ in the
sense of something between 60 per cent and 75 per cent of the head sentence.[12] For the same reasons, the Full Court of the Supreme Court of South Australia has followed a similar practice.[13]
[10]Wong v The Queen (2001) 207 CLR 584, 591 [6] (Gleeson CJ).
[11]Hili v The Queen (2010) 242 CLR 520, 535 [47]–[49].
[12]See, for example, R v Bolton & Barker [1998] 1 VR 692, 699 (Callaway JA); R v VZ [1998] 7 VR 693, [13] (Callaway JA); R v J T A V [1999] VSCA 75, [20] (Charles JA, Phillips CJ agreeing) and [26] (Chernov JA); R v Ghareeb [2003] VSCA 111, [21] (Eames JA, Vincent JA and Ashley AJA agreeing); R v Roach [2005] VSCA 162, [16] (Callaway JA, Ormiston and Charles JJA agreeing); R v Bullen [2005] VSCA 206, [15] (Callaway JA, Chernov and Vincent JJA agreeing); DPP v McClelland [2008] VSCA 168, [55] (Neave JA, Ashley and Mandie JJA agreeing); R v Bertrand [2008] VSCA 182, [158] (Vincent, Redlich and Weinberg JJA); R v Roussety [2008] VSCA 259, [48] (Nettle JA, Vincent, Ashley, Redlich and Weinberg JJA agreeing); DPP v Clark [2010] VSCA 64, [17] (Hansen AJA, Ashley and Mandie JJA agreeing); Diver v R [2010] VSCA 254, [32]–[33] (Ashley JA, Neave and Weinberg JJA agreeing); Borthwick v R [2012] VSCA 180, [16] (Forrest AJA, Weinberg and Bongiorno JJA agreeing).
[13]See, for example, R v Gjoni [2012] SASCFC 48, [7]; R v Hunt and Yates [2012] SASCFC 74, [38].
Even so, it is important to keep in mind the limitations of the ‘usual non-parole period’. First, as was explained in Baker & Bolton and in Detemano, the ‘usual non-parole period’ is in truth no more than an empirical observation that, over a range of cases over a period of years, non-parole periods have tended to range between 60 per cent and 75 per cent of head sentence.
Secondly, the idea of the ‘usual non-parole period’ does not mean that there have not been non-parole periods less than 60 per cent or more than 75 per cent of head sentence over that range of cases. For example, in Zamfirescu v R,[14] in which the offending in issue was conspiring to misuse ATM customer data with the intention of defrauding banks, the head sentence was five years’ imprisonment and the non-parole period was four years or, in other words 80 per cent of the head sentence. In rejecting an appeal against what the appellant complained was the higher than usual non-parole period, Weinberg JA, with whom Mandie JA agreed, said:
It must be remembered that the non-parole period is the ‘minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.’[15] The Crown rightly characterised the appellant’s criminality as ‘very serious’. Both general and specific deterrence had to feature heavily in relation to the sentences imposed for these two offences. A non-parole period of four years was entirely reasonable, given the circumstances of this case. If anything, the total effective sentence of five years might be viewed as somewhat lenient.[16]
[14][2012] VSCA 157, [26].
[15]Power v The Queen (1974) 131 CLR 623, 628 (Barwick CJ, Menzies, Stephen and Mason JJ). See also Hili v The Queen (2010) 242 CLR 520, 533 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[16]Footnote omitted.
Thirdly, although the range of cases to which the idea of a ‘usual non-parole period’ relates may properly be described as ‘relatively broad’, it is limited. The idea of a usual non-parole period of between 60 per cent and 75 per cent of head sentence ceases to be of much assistance once one approaches a head sentence of in the order of 10 years‘ imprisonment or more. As Redlich JA explained in Romero v R:[17]
For offences that do not attract the sort of sentences reserved for murder and other very serious crimes, non-parole periods between 60 and 66 per cent and up to 75 per cent of the head sentence are not regarded as uncommon. Where the ratio of the non-parole period to the head sentence exceeds these figures, the absence of an explanation may invite appellate scrutiny.[18] Even then, the fact that the non-parole period exceeds 80 per cent of the length of the head sentence does not inevitably lead to the conclusion that the sentencing judge made an error, because there is no set formula or fixed standard that applies to the fixing of a non-parole period.[19] Moreover, counsel for the applicant appeared to accept that the common ratios applicable with respect to lesser offences are not particularly instructive in the case of very serious crimes where the head sentence is much higher. That concession, in my view, was rightly made. The ratio between the head sentence and non-parole period more commonly found for lesser offences and lower sentences are generally unlikely to be appropriate for murder and other serious crimes attracting similarly long head sentences, as they would create inordinately long parole periods and the non-parole period would not then, as it must, also reflect the gravity of the offending.[20] The non-parole sentence would be shortened beyond the lower limit of what might be reasonably regarded as condign punishment.[21] Other purposes of sentencing that are relevant to fixing the non-parole period as well as to fixing the head sentence, such as deterrence and protection of the community, would not then have been given their necessary weight.
[17](2011) 206 A Crim R 519, [25] (Buchanan and Mandie JJA agreeing).
[18]R v Bolton & Barker [1998] 1 VR 692; R v Detenamo (2007) VSCA 160; R v Krasnov and Shlakht (1995) 125 FLR 120, cited in Ashe v R (2010) VSCA 119, [33] (Neave and Redlich JJA, Coghlan AJA).
[19]R v VZ (1998) 7 VR 693, 700 (Batt JA); R v Detenamo [2007] VSCA 160, [26]; R v Bertrand (2008) 20 VR 222, 248.
[20]Bugmy v The Queen (1990) 169 CLR 525, 532.
[21]R v Shrestha (1991) 173 CLR 48, 63 (Brennan and McHugh JJ).
Fourthly, although comparable cases can and do provide guidance, the point of a non-parole period is that it is a sentencing judge’s perception of the minimum time which the offender should spend in gaol before becoming eligible for release.[22] Since each case is unique, and since the setting of a non-parole period is a matter of sentencing discretion, outcomes are likely to vary. To a considerable extent, what is usual or normal is what a sentencing judge considers to be usual or normal for the nature and gravity of the offence in question in all the circumstances of the case, and what is less than normal will accord to that conception.
[22]Power v The Queen (1974) 131 CLR 623, 628–9 (Barwick CJ); Bugmy v The Queen (1999) 169 CLR 525, 531 (Mason CJ and McHugh J) (in diss, but not in point of principle); Hili v The Queen (2010) 242 CLR 520, 534 [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Bearing those considerations in mind, I am not persuaded that the judge in this case set a non-parole period any different to the period which his Honour intended to set. Contrary to what is suggested by the ground of appeal, the judge did not say that he proposed to set a shorter than usual non-parole period. Rather, his Honour noted that it was the submission of counsel who appeared for the appellant on the plea that it would be appropriate to set a shorter than usual non-parole period. What the judge said was that, given the appellant’s youth and prospects of rehabilitation, a longer period on parole was warranted.
As I read his Honour’s remarks, they were calculated to convey that, because of the appellant’s youth and prospects of rehabilitation, his Honour thought it appropriate to set a shorter non-parole period than he would otherwise have set. Just as in Wallace, therefore, so too here, the sentencing judge set exactly the non-parole period which he considered to be appropriate.
Nor do I accept that the non-parole period which the judge in fact set was beyond the range of the usual non-parole period for the subject class of offence. Perhaps, if the head sentence had been significantly less than 10 years’ imprisonment, it would have been arguable that, because the judge intended to set a lesser non-parole period than would have been the case if the appellant were not of youthful age with favourable prospects of rehabilitation; and because the period set was fairly high up in the range of between 60 per cent and 75 per cent of head sentence, the judge’s perception of what was required was excessive. But that was not this case.
As has been noted, the concept of a usual non-parole period of between 60 per cent and 75 per cent of head sentence ceases to be of much guidance where the head sentence is in the order of 10 years’ imprisonment or more. As Redlich JA stated in Romero, in such cases it is to be expected that the usual range of non-parole periods will ordinarily be higher. Just as the needs of denunciation, deterrence, condign punishment and community protection demand a head sentence of a higher order, so too are they likely to dictate that the non-parole period be a higher percentage of the head sentence. Otherwise, the gap between head sentence and non-parole period may so much to detract from the punitive effect of the sentence as to prejudice community protection and undermine public confidence in the integrity of the sentencing process.
According to any proper view of the matter, the offending for which the appellant stood to be sentenced in this case was grave offending of a most obnoxious and anti-social kind. All drug trafficking is loathsome. Drug trafficking of a large commercial quantity is intolerable. This was committed over a period of 130 days between 20 November 2009 and 30 March 2010 during which the appellant operated as a ‘principal player’ methylamphetamine wholesaler. His quantifiable sales ranged from 224 grams (half a pound) to 896 grams (2 pounds) at prices of between $50,000 and $56,000 per 448 grams (per pound). Of the amount so trafficked over that period which can be quantified, 896 grams was offered for sale by way of four offers; 224 grams was agreed to be sold on one occasion; 7.840 kilograms was sold and supplied in 17 transactions; and 4.763 kilograms was obtained by the appellant for the purpose of sale but was fortunately intercepted and seized by police. As well as that, there were 15 other transactions in which the amount supplied could not be quantified to the requisite standard
The judge was persuaded that there were some mitigating circumstances. The appellant’s age and education – he was 27 at the time of offending and he had completed year 12 at school – his plea of guilty, remorse and prospects of
rehabilitation, and perhaps the fact that he did not appear to have benefited as much financially as one might expect, all militated in his favour and thus went in reduction of the sentence and non-parole period which might otherwise have been imposed.
It remains, however, that the offending was of a nature and gravity which demanded a sentence in the formulation of which considerations of general deterrence, denunciation, community protection and condign punishment were of the utmost importance, and those considerations also applied to the formulation of the non-parole period albeit with room for greater weight to be accorded to the appellant’s prospects of rehabilitation.[23]
[23]Bugmy v The Queen (1990) 169 CLR 525, 531–2 (Mason CJ and McHugh J) (in diss, but not in point of principle).
In the result, a head sentence of 10 years was anything but excessive and, in the circumstances of this case, a non-parole period of eight years would have been unremarkable. Given that the period in fact set was seven and half years, it was well open to the judge to conclude that it was appropriate.
Conclusion
For these reasons, I would dismiss the appeal.
REDLICH JA
OSBORN JA:
We agree with Nettle JA for the reasons he has given that the appeal against sentence should be dismissed. We wish to make some additional observations as to the concept of a ‘usual non-parole period’.
A usual non-parole period
It is trite to say that there is no usual head sentence or minimum sentence for any offence or category of an offence.[24] In each case there will always be a range of
head and minimum sentences that are reasonably open. Although the term ‘a usual non-parole period’ is sometimes inappropriately employed when the sentencing judge is referring to a single non-parole period, we wish to focus upon the importance and utility of the concept when it is used as descriptive of a range of non-parole periods that are usual, expressed as a proportion of head sentences.
[24]Ashdown v The Queen [2011] VSCA 408, [174].
Like the head sentence, determination of the non-parole period involves the application of well settled principles and practices to the circumstances of the case. All factors are taken into account, first in determining the head sentence and then in fixing the non-parole period.[25] The factors may be differently weighted at each stage of the exercise because there are different purposes behind each function. In fixing the proportion of the head sentence to be given to the minimum sentence there are sentencing principles in operation which, together with the individual circumstances of the case will determine the proportion which the non-parole period must bear to the head sentence. First, like the head sentence, the non-parole period must also reflect the objective gravity of the offence so that the non-parole period should constitute the minimum period of imprisonment that justice requires the prisoner to serve. Secondly, punishment is mitigated in favour of the prisoner’s rehabilitation. The benefit of the minimum term is for the purpose of the offender’s rehabilitation. Thirdly, in fixing the minimum term, the interests of the community, which imprisonment is designed to serve, must be taken into account. Those principles which inform the question of the length of the minimum period have been identified by the High Court in Power v The Queen,[26] Deakin v The Queen,[27] and Bugmy v The Queen.[28] Whilst different types of offending may raise different issues[29] these underlying principles which are to be applied in every case in fixing non-parole periods, have resulted in a usual or common range of minimum sentences, expressed as a proportion of the head sentence. Whilst there is in law no correct ratio, in the majority of cases the proportion is between 60 per cent and 75 per cent, but both longer and shorter periods are found. For higher head sentences the ratio will often be higher for the reasons Redlich JA explained in Romero v R.[30]
[25]Bugmy v R (1990) 169 CLR 525, 531 (Mason CJ, McHugh J).
[26](1974) 131 CLR 623.
[27](1984) 58 ALJR 367; 54 ALR 765.
[28](1990) 169 CLR 525.
[29]See eg s 6D Sentencing Act 1991.
[30][2011] VSCA 45.
No matter how different the individual offences may be and how different the personal circumstances of the offender, the principles which bear upon the determination of how much of the head sentence the prisoner should be required to serve before becoming eligible to conditional freedom, provide a significant level of constraint as to the range of minimum sentences that are open. So the gap between the head and minimum sentence cannot become so great that the minimum sentence no longer adequately reflects the gravity of the crime and fails to satisfy punitive sentencing principles. Furthermore, very long parole periods are rarely desirable. On the other hand, the minimum sentence cannot be fixed so close to the head sentence, that it may fail to give effect to the prisoner’s prospects for rehabilitation and so mitigate punishment. The prospect of early release also serves as an incentive to the prisoner to behave within the prison setting and to pursue rehabilitative programmes. In every case, these considerations serve to confine the choice as to the proportion of the head sentence that must be served. The law does not permit idiosyncratic, erratic or unprecedented views to influence the length of a term of imprisonment that may be imposed. The practice also informs the question whether the particular minimum sentence that has been imposed is one that was reasonably open.
Consistency of punishment between those deserving of equal punishment is a fundamental element of sentencing. The law requires discretionary decisions to be made in conformity with well settled principles and practices. The practice advances the underlying value of equality under the law and the search for and application of unifying principles. By this judicial method the law promotes consistency and fairness in decision making and diminishes the risk of capricious or arbitrary adjudication.[31]
[31]Norbis v Norbis (1986) 161 CLR 513, 519–20 (Mason and Deane JJ).
The concept of a range of usual non-parole periods expressed as a proportion of the head sentence is an element of sentencing practice which provides a general guide to the sentencing judge. The judge is obliged to have regard to sentencing practice.[32] The judge having considered the individual circumstances of the case and arrived at a minimum sentence may then review the proportion of that sentence to the head sentence in the light of the usual range of non-parole periods. Understood in that way, the practice promotes consistency in sentencing in the application of the principles to which we have referred. But as the joint reasons of the High Court in Hili v The Queen[33] in speaking of Federal sentences state, the usual range of non-parole periods cannot be used as a starting point or norm which will then be adjusted to allow for the special circumstances of the offence and the offender. Such an approach would be to embark upon an impermissible two tiered sentencing process with the attendant risk that the individual circumstances of the case will not receive their due weight.[34]
[32]Section 5 Sentencing Act1991.
[33][2010] 242 CLR 520, [44].
[34]Ibid [36]–[44].
The concept of usual non-parole periods is not new to the law. For example, Hayne JA (as he then was) referred in 1997 to ‘a shorter thanusual non-parole period’ in Bolton & Barker[35] where there are ‘particularly good prospects of rehabilitation’. Callaway JA also discussed the usual non-parole period. These passages from Bolton & Barker were referred to with approval by Winneke P and Charles JA in DPP v Bulfin[36] and in later cases. There have been continuous and frequent occasions, far too many to recount, where the concept of a ‘usual non-parole period’ has been referred to and applied by this court.[37]
[35]Unreported, Court of Appeal, 14th March 1997, p.1.
[36][1998] VSC 261.
[37]It is also frequently referred to by other intermediate appellate courts.
Senior Counsel, who appeared for the Director of Public Prosecutions submitted that when sentencing an offender, there must always be a range of non-parole sentences, applicable to the particular circumstance of that case, within which a reasonable exercise of the sentencing discretion must fall. That proposition is undoubtedly correct. He further rightly submitted that the appropriate range of minimum sentences that were open in a particular case, is informed by the ‘practice’ that the ratio between the head sentence and the non-parole period is usually, but not always between 60 per cent and 75 per cent. He submitted that the ‘practice’ of having regard to the range of non-parole periods which are usually fixed has its role to play in the determination of an appropriate non-parole period. We also accept that submission. It accords with the approach which has been adopted in our Court for some decades that generally speaking the non-parole period which is set falls within those parameters. For example, in Gray v R[38] Nettle JA said:
Under Ground 2, counsel for the appellant argued that the non-parole period of three years, representing three quarters of the total effective sentence, was at the upper end of the range in a case in which one should expect it to be at the lower end of the range, and was indicative of sentencing error.
I agree. As Redlich JA explained in R v Tran and Tran, although there is no legal requirement for a set ratio between head sentence and non-parole period (other than, of course, that the non-parole period be at least six months less that the head sentence), current sentencing practice is generally to set a non-parole period at between 60 and 66 per cent, increasing to 75 per cent in the ‘worst category of case’. A non-parole period which is less than or exceeds that range is not necessarily indicative of error but, where a non-parole period is set which is unusual by comparison with other cases, having regard to the facts of the case and the course of the plea, an absence of reasons of the kind essayed by Callaway JA in R v VZ invites appellate scrutiny and may reflect error.
[38][2010] VSCA 312.
The concept of the usual non-parole period frequently receives attention during the plea in mitigation, providing as it does a reference point for submissions as to where the non-parole period should fall. The sentencing remarks will often refer to the concept. There are two contexts in which it is used. The first is where it is intended to be descriptive of the range of non-parole periods usually imposed. The second is in the different context of the minimum sentence that is about to be imposed and is most often referred to in response to a submission that the minimum sentence should be lower than might otherwise be expected for specific reasons.
There are recent observations of this Court in Wallace,[39] Kneifati[40] and Borthwick[41] which disapprove of the use of the formulation ‘usual non-parole period,’ in this latter more narrow context of the specific sentence that is to be imposed. They make the point that for a judge to say ‘I propose to give you a shorter than usual non-parole period’ is apt to mislead and create false expectations - and lead to misconceived appeals against sentence. What the judge is ordinarily understood to mean in that context is something like: ‘In view of your strong prospects for rehabilitation [or other special feature], I propose to give you a shorter non-parole period than I would otherwise have done’. Such a statement creates no false expectations and, in particular, cannot give rise to a complaint on appeal that the judge failed to give effect to the stated intention. Ex hypothesi, no-one knows what the judge would have done but for the special features of the case at hand. These cases encourage sentencing judges to avoid the first formulation and adopt the second.[42]
[39][2012] VSCA 114.
[40][2012] VSCA 124.
[41][2012] VSCA 180.
[42]Wallace v The Queen [2012] VSCA 114, [16]; Kneifati v The Queen [2012] VSCA 124, [27]; Borthwick v The Queen [2012] VSCA 180, [15].
Nothing in these cases casts doubt upon the importance or utility of the concept when it is used as descriptive of a range of non-parole periods that are usual, expressed as a proportion of head sentences. Although the concept will never be determinative of the appropriate non-parole period in a particular case, a range of non-parole periods expressed as a proportion of the head sentence and meeting the description of ‘usual’ or ‘common’ or which reflect ‘the common experience of a non-parole period’[43] informs the sentencing task by providing an important guide to sentencing judges and illuminates the issue on appeal as to whether a particular minimum term was reasonably open.
[43]Diver v The Queen [2010] VSCA 254, [33].
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