Lam v The Queen
[2014] WASCA 114
•3 JUNE 2014
LAM -v- THE QUEEN [2014] WASCA 114
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 114 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:107/2013 | 5 MARCH 2014 | |
| Coram: | McLURE P BUSS JA NEWNES JA | 3/06/14 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| A | |||
| PDF Version |
| Parties: | VAN TONG LAM THE QUEEN THI NHANH LE |
Catchwords: | Criminal law Appeals against sentence Importing a marketable quantity of heroin Whether non-parole periods manifestly excessive Whether sentencing judge erred in not giving reasons for imposing high non-parole periods. |
Legislation: | Acts Amendment (Imprisonment and Parole) Act 1987 (WA) Crimes Act 1914 (Cth), pt IB, s 16, s 16A, s 16AA, s 16AB, s 16B, s 16BA, s 16C, s 16D, s 16F, s 16AF, s 19AMA, s 19AA, s 19AC(1), s 19AB, s 19AG, s 19AL, s 19AN, s 19AQ, s 20(1)(b), s 21F Crimes Legislation Amendment (Power and Offences) Act 2012 (Cth) Criminal Code (Cth), s 307.2(1) Judiciary Act 1903 (Cth), s 68(1) Offenders Probation and Parole Act 1963 (WA) Parole of Prisoners Ordinance 1971 (ACT) Sentencing Act 1995 (WA), s 89, s 90 Sentencing Administration Act 2003 (WA), s 31 |
Case References: | Bertilone v The Queen (2009) 231 FLR 383 Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 52 De Hollander v The Queen [2012] WASCA 127 Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 Dujeu (2004) 146 A Crim R 121 Fraser v The State of Western Australia [2009] WASCA 23 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Mohlasedi v The Queen [2006] WASCA 267 Norton v The Queen [2003] WASCA 86 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 Prestidge v The State of Western Australia [2014] WASCA 16 R v Krasnov (1995) 125 FLR 120 R v Ruha; Ex parte Director of Public Prosecutions (Cth) [2010] QCA 10; (2010) 198 A Crim R 430 Rosewood v The State of Western Australia [2014] WASCA 21 Stasinowsky v The State of Western Australia [2009] WASCA 20 Stinson v The State of Western Australia [2014] WASCA 72 Trinh v The Queen [2013] WASCA 258 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LAM -v- THE QUEEN [2014] WASCA 114 CORAM : McLURE P
- BUSS JA
NEWNES JA
- Appellant
AND
THE QUEEN
Respondent
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEVENSON DCJ
File No : IND 1499 of 2011
Catchwords:
Criminal law - Appeals against sentence - Importing a marketable quantity of heroin - Whether non-parole periods manifestly excessive - Whether sentencing judge erred in not giving reasons for imposing high non-parole periods.
Legislation:
Acts Amendment (Imprisonment and Parole) Act 1987 (WA)
Crimes Act 1914 (Cth), pt IB, s 16, s 16A, s 16AA, s 16AB, s 16B, s 16BA, s 16C, s 16D, s 16F, s 16AF, s 19AMA, s 19AA, s 19AC(1), s 19AB, s 19AG, s 19AL, s 19AN, s 19AQ, s 20(1)(b), s 21F
Crimes Legislation Amendment (Power and Offences) Act 2012 (Cth)
Criminal Code (Cth), s 307.2(1)
Judiciary Act 1903 (Cth), s 68(1)
Offenders Probation and Parole Act 1963 (WA)
Parole of Prisoners Ordinance 1971 (ACT)
Sentencing Act 1995 (WA), s 89, s 90
Sentencing Administration Act 2003 (WA), s 31
Result:
Appeals dismissed
Category: A
Representation:
CACR 107 of 2013
Counsel:
Appellant : Mr A G Elliott
Respondent : Mr P D Yovich
Solicitors:
Appellant : Patti Chong Lawyer
Respondent : Director of Public Prosecutions (Cth)
CACR 108 of 2013
Counsel:
Appellant : Mr A G Elliott
Respondent : Mr P D Yovich
Solicitors:
Appellant : Patti Chong Lawyer
Respondent : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Bertilone v The Queen (2009) 231 FLR 383
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 52
De Hollander v The Queen [2012] WASCA 127
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Dujeu (2004) 146 A Crim R 121
Fraser v The State of Western Australia [2009] WASCA 23
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Mohlasedi v The Queen [2006] WASCA 267
Norton v The Queen [2003] WASCA 86
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Prestidge v The State of Western Australia [2014] WASCA 16
R v Krasnov (1995) 125 FLR 120
R v Ruha; Ex parte Director of Public Prosecutions (Cth) [2010] QCA 10; (2010) 198 A Crim R 430
Rosewood v The State of Western Australia [2014] WASCA 21
Stasinowsky v The State of Western Australia [2009] WASCA 20
Stinson v The State of Western Australia [2014] WASCA 72
Trinh v The Queen [2013] WASCA 258
1 McLURE P: These are appeals against sentence. The appellants and Nga Thi Trinh were convicted of importing into Australia a marketable quantity of a border controlled drug, namely heroin, contrary to s 307.2(1) of the Criminal Code (Cth). The appellants were convicted after trial. Ms Trinh pleaded guilty.
2 The appellants and Ms Trinh were sentenced by Stevenson DCJ on 26 April 2013. A sentence of 7 years' imprisonment with a non-parole period of 6 years was imposed on Mr Lam (the appellant in CACR 107/2013); a sentence of 6 years 6 months imprisonment with a non-parole period of 5 years was imposed on Ms Le (the appellant in CACR 108/2013); and a sentence of 5 years' imprisonment with a non-parole period of 3 years 4 months was imposed on Ms Trinh. Ms Trinh's non-parole period was reduced from 3 years 6 months to 3 years 4 months because of time spent in custody. Her appeal against sentence has been dismissed: Trinh v The Queen [2013] WASCA 258.
3 The proportions that the non-parole periods bear to the head sentences are as follows:
Mr Lam - 85.7%
Ms Le - 76.9%
Ms Trinh - 66.6% (70% but for the reduction for time spent in custody).
4 The appellants contend that the sentencing judge erred in failing to give reasons for the non-parole periods he imposed and that their non-parole periods are manifestly excessive.
5 The facts found by the sentencing judge are as follows. On or about 20 June 2011 Mr Lam posted a parcel containing heroin from Ho Chi Minh City in Vietnam to Ms Trinh, using DHL Express Courier service. The parcel contained 479.4 g of heroin within three smaller parcels with a purity of 49.3%, 46.3% and 50.3% respectively. The weight of pure heroin was 233.7 g. The drugs were hidden in a statue of Buddha.
6 Mr Lam and his wife, Ms Le, had organised for Ms Trinh to be a 'post box' to collect the parcel and deliver it to Quong Nguyen. Telephone records showed that Ms Le had a consistent, ongoing relationship with Ms Trinh in the days leading up to the collection of the heroin.
7 A customs officer detected the drugs in the Buddha parcels and caused it to be delivered to the Australian Federal Police who substituted an inert substance for the heroin and arranged for it to be delivered to Ms Trinh. She was caught in possession of the parcel.
8 Before sending the parcel with the drugs, the appellants had arranged for another Buddha statue to be sent to their home address by DHL Express Courier. This was intended as a test run.
9 Mr Lam had filled in the relevant forms to send both parcels and his fingerprint was found on one of the forms associated with the drug parcel. His handwriting was identified on that form and another.
10 The appellants and Ms Trinh had used multiple mobile telephones, most registered in names other than their own, to contact each other, swapping handsets and sim cards regularly. The sentencing judge found that they had done so as part of a subterfuge to conceal their connections with each other.
11 Mr Lam gave evidence at trial. The sentencing judge found that he had manufactured his evidence to meet the case as it was disclosed to him for the purpose of the trial (ts 1002). Ms Le (and Ms Trinh) did not give evidence at trial.
12 Despite the strength of the evidence against the appellants and the jury verdicts, the appellants maintained their denials of responsibility for the importation. The trial judge found that the appellants were the main instigators of the offence and were acting in concert with each other. A higher head sentence was imposed on Mr Lam because he took the active steps involved in posting the parcel of heroin from Vietnam to Australia.
13 Mr Lam was aged 59 at the time of sentence. He was a market gardener, had no criminal record and was not a user of illicit drugs. He came to Australia in 1982 as a refugee with his wife, Ms Le. The court received an oral pre-sentence report relating to Mr Lam. It is apparent that he was a reluctant interviewee (ts 969 - 970) and that a risk assessment in relation to future offending was not possible because of the continued denial of the offence.
14 Ms Le was 55 years old at the time of sentence. She too had no criminal record and was not a user of illicit drugs. The author of the pre-sentence report was unable to make an assessment as to the risk of her reoffending.
15 The sentencing judge inferred that the appellants committed the offences for financial gain.
Fixing of non-parole periods – the statutory framework
16 As the offence committed by the appellants and Ms Trinh is a federal offence, Part IB of the Crimes Act 1914 (Cth) applies.
17 The general matters to which the court must have regard in sentencing for a federal offence are specified in s 16A - s16D of the Crimes Act. The non-parole period is part of the sentence: De Hollander v The Queen [2012] WASCA 127 [79].
18 An understanding of the purpose or rationale of parole is necessary for the resolution of the issues in this appeal. The purpose or rationale is linked with the particular statutory scheme under consideration. The federal scheme is contained in the Crimes Act.
19 The 'non-parole period', in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence(s) during which the person is not to be released on parole (s 16(1)).
20 Division 4 of Pt IB of the Crimes Act deals with the fixing of non-parole periods and the making of recognisance release orders and is exhaustive. The State and Territory provisions on the subject are not picked up by s 68(1) of the Judiciary Act 1903 (Cth): Hili v The Queen (2010) 242 CLR 520 [21]. Division 5 of Pt IB deals with conditional release on parole. Both divisions were amended in significant respects by the Crime Legislation Amendment (Power and Offences) Act 2012 (Cth) (the 2012 Amendment Act). Before that Act came into effect, a parole period for a federal offender who was not subject to a life sentence could not exceed five years. The parole period for a federal offender serving a life sentence had to be at least five years.
21 The current law on parole periods is in s 19AMA of the Crimes Act. If a person is not serving a State or Territory sentence, the parole period starts when the person is released from prison. A parole period ends, if a person is not serving a federal life sentence, at the end of the last day of their federal sentence as reduced by any remissions or reductions under s 19AA. These are remissions or reductions provided for by a law of a State or Territory in respect of State or Territory sentences. The five year maximum parole period has been deleted. However, the parole period for a federal life sentence remains five years or more.
22 The scheme of the Crimes Act relating to a person convicted of a federal offence who is not already serving or subject to a federal sentence is as follows. If the court imposes a federal sentence that does not exceed three years, the court must make a recognisance release order in respect of that sentence and must not fix a non-parole period: s 19AC(1).
23 Subject to s 19AB(3), if the court imposes a federal life sentence or a federal sentence that exceeds three years, the court must either fix a single non-parole period or make a recognisance release order: s 19AB(1).
24 Under s 19AB(3), a court may decline to fix a non-parole period or make a recognisance release order if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that neither is appropriate.
25 In respect of specified offences (treachery, a terrorism offence, treason and urging violence and offences relating to espionage and similar activities) the court must fix a single non-parole period of at least three quarters of the sentence or if two or more sentences have been imposed, the aggregate of those sentences: s 19AG. There is no minimum non-parole period for the offence committed by the appellants.
26 Under s 19AL, which is in Div 5 of Pt IB, the Attorney-General (or a duly authorised delegate) must either make, or refuse to make, an order directing that the person be released from prison on parole (parole order) before the end of the non-parole period. Prior to the commencement of the 2012 Amendment Act, release on parole was automatic for a federal sentence or aggregate sentence of more than three years and less than 10 years.
27 If the Attorney-General refuses to make a parole order he or she must give the offender notice of the refusal, and the reasons for it, in writing and must reconsider that decision within 12 months of the refusal: s 19AL(2). The Crimes Act does not specify the matters which must be taken into account in deciding whether or not to make a parole order.
28 Section 19AL(3) provides that a parole order must specify whether or not a person released on parole is to be subject to supervision. The responsibility for supervision rests with the State parole service pursuant to arrangements made under s 21F of the Crimes Act.
29 A parole order under s 19AL is subject to, inter alia, the condition that the offender must, during the parole period be of good behaviour and not violate any law: s 19AN(1).
30 Where a person to whom a parole order relates is sentenced to life imprisonment or to a sentence, or aggregate sentence, of more than three months in respect of a federal, State or Territory offence committed during the parole period, the parole order is taken to have been revoked upon the imposition of the sentence or sentences: s 19AQ(1). Where the parole order is revoked, the person becomes liable to serve that part of the sentence or each sentence for a federal offence that the person had not served at the time of his or her release: s 19AQ(5).
31 Section 16F of the Crimes Act requires the sentencing court to explain to the offender the purpose of fixing the non-parole period imposed. However, there is no express statutory statement as to the purpose of parole. The Australian Law Reform Commission (ALRC) in its 'Same Crime - Same Time: Sentencing of Federal Offenders Report 103 justified the movement away from automatic release on parole to the current discretionary scheme on the basis that the latter 'provides an incentive to participate in rehabilitation programs and to address offending behaviour; assists with the management of offenders in custody; and encourages development of post-release plans' [23.63].
32 The ALRC also recommended [23.77] that federal sentencing legislation should state that the purposes of parole are:
(a) the reintegration of the offender into the community;
(b) the rehabilitation of the offender; and
(c) the protection of the community.
33 Although this ALRC recommendation was not implemented in the 2012 Amendment Act, it is a fair summary of the purposes identified in the relevant case law.
34 A recognisance release order is defined in s 16 of the Crimes Act as an order under s 20(1)(b) which permits a sentencing court to make a recognisance release order that will take effect at any time within the period of the sentence imposed: from the time at which the sentence is imposed, to a very short time before it expires. Under s 19AF, a sentencing court must fix the pre-release period (the period to be served before being eligible for release on giving security) so that it ends not later than the end of the sentence, as reduced by any remissions or reductions under s 19AA.
35 Recognisance release orders are for the period specified in the sentence. There is no discretion to refuse to release the offender at the conclusion of the specified period: s 20(1)(b).
36 The statutory regime relating to parole for federal offenders is markedly different from that in the Sentencing Act 1995 (WA). A court sentencing an offender to a fixed term for a State offence may order that the offender be eligible for parole: s 89(1). If the court makes a parole eligibility order, the decision whether or not to release a prisoner on parole is made by the Prisoners Review Board.
37 The grounds for deciding not to make a parole eligibility order are specified in s 89(4). However, the sentencing court has no role to play in fixing the length of the non-parole period, except where an offender is sentenced to life imprisonment (s 90). For sentences other than life imprisonment, the effect of the legislative scheme is that the maximum period an offender can be on parole is two years, regardless of the length of the head sentence. Further, the default position is that an offender is supervised during the parole period: Sentence Administration Act 2003 (WA), s 31.
38 This State's legislative scheme reflects the policy position that a parole period of more than two years can have a detrimental effect on the chance of reducing recidivism: Western Australian Ministry of Justice, Report of the Review of Remission and Parole, March 1998 [7.2.6] (the MOJ Report). This has been the legislative policy since the commencement of the Acts Amendment (Imprisonment and Parole) Act 1987 (WA). Before then, the court had a general discretion as to the length of the non-parole period under the Offenders Probation and Parole Act 1963 (WA) (the 1963 WA Act). The practice that developed under the 1963 WA Act was that a minimum term of imprisonment of about half the head sentence had to be served before a prisoner was released on parole. By the late 1970's that had fallen to one third. See the Second Reading Speech for the Sentencing Legislation (Transitional Provisions) Amendment Bill 2008, 26 November 2008.
39 The MOJ Report states that the primary purposes of parole are to (1) support the reintegration of offenders from prison to the community and (2) reduce the risk of reoffending. Parole is also seen as an important management and control tool because of its 'constant review of offenders in prison; continued re-evaluation of risk; leverage of offenders before release to ensure good behaviour in the community; supervision after release; and potential to reimprison parolees who appear to present a threat to the community' [3.1].
40 Thus, the rationale for parole systems, regardless of their structure, is to reduce the risk of sentenced prisoners reoffending after their release from custody. The Commonwealth has moved away from its former position that, for fixed sentences, there is a maximum parole period beyond which conditional release on parole becomes risk neutral or counterproductive.
The case law
41 As is to be expected, much attention was given by the parties to the meaning and effect of the High Court's decision in Hili, a case concerning federal offenders. The Crimes Act as it stood before the commencement of the 2012 Amendment Act governed the sentencing of the offenders, Mr Hili and Mr Jones. They had pleaded guilty to revenue offences against Commonwealth law. Each was sentenced at first instance to a total sentence of 18 months' imprisonment with a recognisance release order to take effect after seven months. On a prosecution appeal, the NSW Court of Criminal Appeal (NSW CCA) increased their total sentences to 3 years' imprisonment with a recognisance release order to take effect after 18 months' imprisonment. The High Court considered, among other things, whether there is or should be a normal starting point, expressed as a percentage, for the period of imprisonment that a federal offender should actually serve in prison before release on a recognisance release order.
42 Quoting extensively from the decision of the Queensland Court of Appeal in R v Ruha; Ex parte Director of Public Prosecutions(Cth) (2010) 198 A Crim R 430, the NSW CCA had concluded that 'the "norm" for a period of mandatory imprisonment under the Commonwealth legislation is between 60% and 66%, which figure will be affected by special circumstances applicable to a particular offender'. The High Court rejected this proposition (whilst approving the reasoning in Ruha) saying that the use of the expression 'norm' for non-parole periods for federal offences was apt to mislead, both because it is ambiguous and because it necessarily distracted attention from the applicable statutory provisions. In particular, references to a 'norm' will mislead if it is read as saying that the same proportionate relationship should (or should normally) exist between the time that is to be served in prison and the length of the head sentence imposed regardless of the type of federal offence and/or the mitigating factors in a particular case and if it suggests the offender must demonstrate some special circumstance to warrant a departure from a set, mathematically calculated, relationship [38]. The High Court continued:
In determining what recognisance release order is to be made, s 16A(1) requires the sentencing court to "make an order that is of a severity appropriate in all the circumstances of the offence". What is the "severity appropriate" is determined having regard to the general principles identified by this court in Power v The Queen, Deakin v The Queen and Bugmy v The Queen.
...
[T]here neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognisance release order... Rather, a sentencing judge should determine the length of sentence to be served before a recognisance release order takes effect by reference to, and application of, the principles identified by this court in Power, Deakin and Bugmy.
43 The principles identified by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367, and Bugmy v The Queen (1990) 169 CLR 525 relate to parole.
44 The mathematical approach to fixing the non-parole period was advanced by the respondent in Hili as a means of ensuring consistency in the sentencing of federal offenders. The High Court said that consistency is not demonstrated by and does not require, numerical equivalence [48]; that the history of sentencing can establish a range of sentences that have in fact been imposed but does not establish the upper or lower limits of the discretionary range are correct [54]; and that:
Past sentences ... can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence [54].
45 The High Court in Power considered the proper construction of the Parole of Prisoners Ordinance 1971 (ACT), s 4 of which required the court to specify a non-parole period. With limited exceptions, the executive could not order the prisoner to be released until the expiration of the non-parole period. The High Court held that:
• it was erroneous to fix as the non-parole period the shortest time required for a parole authority to form a proper view of the prisoner's prospects of rehabilitation;
• the legislative intention was to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
46 The statutory parole scheme considered in Power is materially the same as the current parole scheme under the Crimes Act. The principles in Power were approved and applied in Deakin in relation to the statutory scheme in the 1963 WA Act.
47 In Bugmy the High Court was considering a challenge to a minimum term of 18 years 6 months for an offender sentenced to life imprisonment for murder. Although in the minority, the following statement of principle by Mason CJ and McHugh J is accepted as a correct statement of the law:
[C]onsiderations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function [531].
48 This court has applied the principles in Power, Deakin and Bugmy when reviewing minimum periods for sentences of life imprisonment for murder under s 90 of the Sentencing Act: Stasinowsky v The State of Western Australia [2009] WASCA 20 [72]; Fraser v The State of Western Australia [2009] WASCA 23 [15].
49 In determining whether a non-parole period is manifestly excessive (or inadequate) this court applies the same test it applies to head sentences, modified to take into account any statutory minimum or maximum. In particular, the court has regard to any statutory limits on the available minimum period, the standards of sentencing customarily imposed for offences of the relevant type, the place which the criminal conduct occupies on the scale of seriousness and the antecedents of the offender: Prestidge v The State of Western Australia [2014] WASCA 16; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72. Whether it be a challenge to the head sentence or a non-parole period, the standards customarily imposed provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind that there is scope for significant variations in relevant sentencing factors and no single correct sentence: Stinson [17]. It has also applied the principles approved in Hili to federal offences: Bertilone v The Queen (2009) 231 FLR 383.
50 In situations where the non-parole period relates to a life sentence, the proportion that the non-parole period bears to the head sentence is not available for assessing broad consistency. The sole focus is on the absolute figures, as is the case for head sentences. However, where the head sentence is fixed, the proportion that the non-parole period bears to the head sentence is commonly used throughout Australia in identifying the non-parole period to be imposed.
51 The High Court in Hili approached recognisance release orders and parole under the Crimes Act as interchangeable for the purpose of the principles to be applied in determining the pre-release and non-parole periods.
52 That may not always be the case. A recognisance release order can be used to impose what is, in substance and effect, a different type of sentence, being a suspended term of imprisonment as distinct from a term of immediate imprisonment: De Hollander [76].
53 In any event, there can be no doubt that the law stated by the High Court in Hili is intended to apply to the determination of the non-parole period under the Crimes Act. Further, although the High Court in Hili was addressing the statutory framework as it was before the commencement of the 2012 Amendment Act, it is not suggested by the parties that those amendments affect its reasoning.
54 Hili does not disapprove of the identification of the non-parole period by reference to its proportionate relationship to the head sentence. Indeed that approach is statutorily approved in s 19AG of the Crimes Act. Further, as a matter of sentencing practice, and having regard to the purpose of parole, it is a natural reference point and is the best tool for measuring consistency in the application of the relevant sentencing principles.
55 This is best illustrated by considering the consequences of determining the non-parole period by reference to a fixed proportion of the head sentence. First, the non-parole period will be the same for all head sentences of the same length. Second, the length of the non-parole period will increase as the head sentence increases. The use of a fixed proportion allows for wide numerical variations in the length of the non-parole period to reflect wide variations in the length of head sentences. That is, the use of the same fixed proportion to different head sentences does not produce numerical equivalence. Third, the proportion between different head sentences imposed on different offenders and associated non-parole periods (and parole periods) will remain constant. For example, if the proportion of the non-parole period to the head sentence was 66% for both Mr Lam and Ms Trinh, Mr Lam's head sentence, non-parole period and parole period would all be 1.4 times longer than that of Ms Trinh. That outcome can be seen as consistent with the rationale for parole. [In fact, Mr Lam's head sentence is 1.4 times longer than Ms Trinh's, his non-parole period 1.8 times longer and his parole period 8 months shorter]. Fourth, the length of the non-parole period is informed, indirectly, by all the relevant sentencing considerations and principles that inform the determination of the head sentence. For example, positive factors for or against the prospects of rehabilitation will be reflected in the length of the head sentence, even when general deterrence is a weighty sentencing consideration.
56 However, the effect of Hili is that the same sentencing considerations that increase the head sentence can have a different and additional effect on the length of the non-parole period. That is, sentencing factors which count against mitigating punishment in favour of rehabilitation can increase both the head sentence and the proportion that the non-parole period bears to the head sentence. However, the range of non-parole periods customarily imposed for drug offences, on a proportionate or percentage basis, could not as a matter of statutory construction, be higher than the three quarter (75%) minimum specified in s 19AG, which is reserved for the most serious offences in which general deterrence is a weighty factor. However, 75% is not a non-parole period ceiling for other types of offences in unusual circumstances.
57 Conversely, because a non-parole period is a mitigation of punishment in favour of rehabilitation, positive sentencing factors in favour of rehabilitation in a particular case can reduce not only the length of the head sentence but also lower the proportion that the non-parole period bears to the head sentence. However, as Power makes clear, there is a limit below which the non-parole period cannot go. It cannot be reduced below the minimum that the justice of the case requires in order to satisfy all of the other sentencing objectives, including punishment, retribution and general deterrence.
58 In summary, Hili establishes that it is wrong to rely on a fixed or narrow range expressed as a proportion or percentage of the head sentence as a starting point (or an end point) for determining the non-parole period. To the extent that the non-parole periods customarily imposed reflect erroneous past practice, they are an unreliable yardstick or benchmark for consistency purposes.
Manifest excess
59 I turn now to the application of the general principles to the facts of this case. There is an additional matter to which regard must be had. The appellants and Ms Trinh are co-offenders to whom the parity principle of sentencing applies. The parity principle requires that like offenders should be treated in a like manner: Green v The Queen (2011) 244 CLR 462 [28].
60 The range of non-parole periods customarily imposed in sentencing for drug importation offences is ordinarily within the range of 60 - 66% of the head sentence. However, that range is in all likelihood affected (or infected) by the 'norm' jurisprudence, either directly or indirectly. Even putting that range to one side, there is no doubt that the non-parole period for each appellant is very high. However, the circumstances of each appellant share some unusual features. There were no mitigating factors. There was nothing in the material before the sentencing judge to suggest remorse, a willingness to facilitate the course of justice, insight or acceptance of responsibility. Further, and most significantly, neither appellant engaged in any meaningful way in the sentencing process. The court was presented with a largely blank canvas. The overwhelming impression is that the appellants acted after evaluating the risks and the rewards of committing the offence. An unusually long non-parole period was open in the circumstances.
61 There were two sentencing matters that distinguished Mr Lam from his wife. First, Mr Lam was more actively involved in the offending. Second, the trial judge made a positive finding that Mr Lam had manufactured his evidence to meet the prosecution case disclosed to him. Those matters, but more particularly the second, entitled the sentencing judge to differentiate between the appellants both in the length of the head sentence and the proportion of the head sentence required to be spent in custody. The differences in sentencing factors between the co-offenders justified different head sentences and proportionately different non-parole periods. Any adjustments I would make would be at the margins and involve tinkering. That is not this court's role. I am not persuaded that the non-parole periods are manifestly excessive.
The scope of the requirement for reasons
62 It is not in dispute that a sentencing judge is under an obligation to give reasons for decision. The issue in this case is the scope of that duty; in particular was the sentencing judge in this case required to give reasons explaining his decision for imposing high non-parole periods. Reliance was placed on the decision of the Victorian Court of Appeal in R v Krasnov (1995) 125 FLR 120. In that case the offender pleaded guilty to importing drugs into Australia for which he was sentenced to a total sentence of 16 years' imprisonment with a non-parole period of 14 years. The offender claimed the non-parole period was manifestly excessive. In the course of considering that question, the court said that when a sentencing judge decides to impose a sentence which is in important respects unusual, one would generally expect to see stated reasons for taking that course, in much the same way as one would expect reasons to be given if no non-parole period was fixed (127).
63 The position in Victoria differs from that in this jurisdiction and New South Wales: Norton v The Queen [2003] WASCA 86 [12], Mohlasedi v The Queen [2006] WASCA 267 [64] - [65] and Dujeu (2004) 146 A Crim R 121 [12] - [14]. The position was explained by Anderson J (with whom Parker J agreed) in Norton as follows:
A Judge who passes a sentence with a non-parole period passes only one sentence not two: Power v The Queen (1974) 131 CLR 623 at 629 - 630. The purpose of sentencing remarks is to explain why that single sentence has been imposed. Most if not all of the facts and circumstances relevant to the fixing of a head sentence will be relevant to the fixing of the minimum time which the prisoner must remain in custody. The question is whether sufficient reasons have been given for the single sentence. The sentencing reasons stand as the reasons for both the head sentence and the non-parole period [12].
64 A sentencing judge is not required to explain why a particular head sentence from within a discretionary range has been imposed. The same applies to the non-parole period. The correctness of this view is reinforced by the High Court's rejection of the notion of a 'norm' as a starting point, a departure from which requires special or exceptional circumstances. The sentencing judge's reasons sufficiently explain the reasons for the sentences imposed on the appellants.
Conclusion
65 The appellants have failed to establish that the sentencing judge made any express or implied material error. Accordingly, the appeals must be dismissed.
66 BUSS JA: I agree with McLure P.
67 NEWNES JA: I agree with McLure P.
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