R v Capper

[2000] NSWCCA 63

CITATION:	Regina v Capper [2000] NSWCCA 63
FILE NUMBER(S):	CCA 60452/99
HEARING DATE(S):	10/03/00
JUDGMENT DATE:	14 March 2000
PARTIES :	Regina v Wayne Bradley Capper
JUDGMENT OF:	Fitzgerald JA; Abadee J; Barr J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/3002
LOWER COURT JUDICIAL OFFICER :	Latham DCJ

COUNSEL :	Mr T.J. O'Donnell (Applicant) Mr M Ierace SC (Respondent)
SOLICITORS:	Mr David Cohen (Applicant) Suite 15, 301 Castlereagh Street, Sydney Commonwealth Director of Public Prosecution (Respondent)
CATCHWORDS:	Criminal Law - Appeal against sentence - effect of sentence on applicant's children - whether taken into account by sentencing judge - children now made wards of the State - whether Court should show mercy
LEGISLATION CITED:	Customs Act 1901 (Cth) Crimes Act 1914 (Cth)
DECISION:	Leave to appeal refused

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60452/99
DC 99/11/3002

FITZGERALD JA
ABADEE J
BARR J

Tuesday 14 March 2000

REGINA v Wayne Bradley CAPPER

JUDGMENT

1   THE COURT: The applicant has applied for leave to appeal against a sentence imposed on him in the District Court on 3 August 1999 following his guilty plea to one count that, on 19 November 1998, he was knowingly concerned in the importation of not less than a trafficable quantity of the drug colloquially known as ecstasy contrary s 233B (1)(d) of the Customs Act 1901 (Cth). 2 There is nothing remarkable about the circumstances of Mr Capper’s offence or the sentence which was imposed. The amount of ecstasy imported was 478.9 grams gross, equivalent to 167.1 grams pure. Under sch 6 of the Customs Act, .5 gram pure ecstasy is a trafficable quantity, and 500 grams pure is a commercial quantity. The maximum custodial sentence for Mr Capper’s offence was imprisonment for 25 years. He was sentenced to imprisonment for 5 years, with a non-parole period of 3 years. It was conceded both before this court and the sentencing judge that a custodial sentence was unavoidable. 3 In this Court, Mr Capper submitted that he should have received a more lenient sentence for only one reason; namely, that he was at all material times a sole parent of two children whose mother is hospitalised with mental illness, and that his sentence will probably have a serious detrimental effect upon those children, a matter which the sentencing judge was required to take into account under s 16A(2)(p) of the Crimes Act 1914 (Cth). Mr Capper has two children, a girl now aged 12 years and a boy now aged 10 years. 4 There was evidence before the sentencing judge that Mr Capper was a very good father to the children, which her Honour obviously accepted. There was also evidence before the sentencing judge in the form of a psychologists’ report which pointed out that Mr Capper is the children’s “major source of support and affection” and that their separation from him would have a “deleterious effect” on their welfare. 5 One submission made on Mr Capper’s behalf was that the sentencing judge failed to take the probable effect of Mr Capper’s sentence on his children into account. However, that is patently erroneous. The sentencing remarks include the following statement”

“Mr Marshall, who appears for Mr Capper, has urged upon me the effect of the prisoner’s incarceration upon his two young children as a factor which would result in the imposition of a sentence significantly less than what would be otherwise be called for in the circumstances of this case. I take into account that hardship under s 16A of the Crimes Act 1914, but such hardship as there may be could not in my view cause me to draw back from imposing a full time custodial sentence in respect of the present offence.”

After sentencing Mr Capper, her Honour continued:

“Mr Capper, can I just say that your ability to parent these two children under the circumstances in which you have, are a credit to you. It brings me no pleasure to separate you from them and I know that as soon as you are released you will resume that fathering role.”

6   The other principal submission made on behalf on Mr Capper was that the sentencing judge did not give due weight to the probable effect of Mr Capper’s sentence upon his children. It is sufficient to mention two matters. 7   Without objection from the prosecution, an additional affidavit was filed in this Court on behalf of Mr Capper. The facts stated by the deponent, who describes herself as Mr Capper’s de facto wife for the last four years, were not contested. After Mr Capper was taken into custody, two respectable friends of an age suitable to care for the children took them “in a foster situation on a temporary basis”. On 10 February 2000, the Campsie Children’s Court declared the children wards under the Children (Care and Protection) Act 1987 until each obtains the age of 18 years. Since that date, the children have resided with the same foster parents at their residence at Manly on a permanent basis. According to statements made to the Children’s Court by a representative from the Department of Community Services, Mr Capper will be able to apply to vary the order declaring the children wards upon his release. 8 Subsection 16A(2) of the Crimes Act provides that, in determining the sentence to be passed in respect of any person for a federal offence, the Court must take into account, in addition to any other matters, “such of the following matters as are relevant and known to the Court”. Thirteen matters are specified, including “(p) the probable effect that any sentence … under consideration would have on any of the person’s family or dependants.” Some of the matters specified in subs 16A(2) would, in appropriate circumstances, favour leniency, while others point in the opposite direction. For example, two of the matters referred for in s 16A(2) are:

“….
(j) The deterrent effect that any sentence … under consideration may have on the person;
(k) The need to ensure that the person is adequately punished for the offence;
……”

The diversity of the specified factors and the tension between them emphasise the broad discretionary nature of the sentencing process. As s 16A(1) provides, the court’s function, taking all appropriate matters into account, is to “impose a sentence … that is of a severity appropriate to all the circumstances of the offence.”

9 There is obviously nothing in the circumstances associated with the length of Mr Capper’s sentence to give cause for speculation that a shorter period of imprisonment was called for because of s16A(2)(p) of the Crimes Act. 10   The final submission from Mr Capper was that, even where there are no exceptional circumstances, the Court “…can…show some mercy”, a course adopted by the Victorian Court of Appeal in Carmody. (1998) 100 ACrimR 41. See per Tadgellja, with whom Winneke P and, Semble, Calloway JA agreed. 11 Assuming, without deciding, that “mercy” in the sense spoken of in Carmody 100 ACrimR 41. is applicable to an exercise of the sentencing power under the Crimes Act (Cth), there is nothing in the circumstances of this case which would justify this Court in reducing Mr Capper’s sentence for that reason. 12 For the above reasons, at the end of the hearing Mr Capper was refused leave to appeal.