R v Panchal

[2009] QDC 105

[2009] QDC 105

DISTRICT COURT
CRIMINAL JURISDICTION

JUDGE HOWELL

Indictment No 269 of 2009
THE QUEEN
v.

MUKESH PANCHAL

Indictment No 1853 of 2008
THE QUEEN
v.

LEANNE MARGARET STARES

Indictment No 3256 of 2008
THE QUEEN
v.

MICHAEL BOGHDADI ASSAD

BRISBANE
..DATE 27/04/2009

RULING

2-1

HIS HONOUR: The accused may remain seated during the ruling.

1

I have before me three unrelated Commonwealth matters for
argument in relation to how wide is the sentencing discretion
in relation to the time actually served, or, as it is referred
to in the vernacular as the "bottom", for Commonwealth non-
drug matters where the sentence is not in excess of three
years and the accused is released on recognisance? Such is
Commonwealth legislation and it is the Commonwealth sentencing
regime that must be applied and not any of the particular

State sentencing regimes, some of which have not insubstantial	10
differences, perhaps none greater than that between Queensland and New South Wales. The Commonwealth sentencing regime says that the release on recognisance can be after any period not exceeding the head sentence.
The fundamental system in Queensland is that the bottom,
generally speaking, on a plea of guilty can not unusually
result in release after serving about a third of the sentence.
The New South Wales State Legislation has as the not unusual
bottom about two-thirds. When the relevant Commonwealth	20
legislation came into existence with its varying amendments,
the question has to be asked, firstly, what assistance is
provided in the Commonwealth legislation in relation to the range of the bottom, how wide the sentencing discretion may be?
I have referred to the limited assistance, namely, that the release on recognisance can't be longer than after the head sentence. It is eminently desirable that there be uniformity
in sentence for Commonwealth offending in whichever State the	30
offending may occur.
When a State Court of Appeal or a sentencing Judge is considering the sentence, assistance of course may be obtained from interstate appellate authorities. But how does the norm develop? If the bulk of the sentencing in the early matters, particularly before the Court of Appeal is in Queensland, one might anticipate the norm for the bottom would be one-third.
If the sentencing were by judges from New South Wales, judges	40
used to the New South Wales State sentencing regime, would it be in the least unusual that their sentencing would have as a bottom about two-thirds? In the real world what are the
matters that are most likely to be before a State Court of Appeal? An answer of some attraction is that those in the State in which the sentencing regime has the highest bottom.
Would it therefore be unsurprising that the greater numbers before a State Court of Appeal would be in New South Wales? Would those matters then go before a State Court of Appeal
whose members are used to the New South Wales system in which,	50
far from there being anything unusual about the bottom being two-thirds, that such would be said by them to be the norm?
It was always my understanding of the sentencing practice for
Commonwealth matters in Queensland that the bottom was, give
or take, about one-third. It was always my understanding that
in New South Wales matters the bottom was higher. An
authority that seems now to be regularly, if not universally,
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cited by the Commonwealth Director of Public Prosecutions on

such sentencing is that in Bernier (1998) 102 A Crim R 44	1
wherein the Court said at page 49:

"... the norm for non-parole periods is in the range of
about 60 per cent to 66 and two-thirds per cent. One
factor which may be material is the length of the head
sentence and its position in the permissible range.
Circumstances may exist which make it appropriate to move
outside the usual range for non-parole periods. The

process is not mathematical or rigid, and often requires	10
a finely tuned assessment. The determination of the appropriate non-parole period, as of the head sentence, should be approached with the caution and flexibility."

Bernier involved a drugs importation case. In New South Wales there followed any number of Court of Appeal authorities that followed the State said principle and usually enunciated the self same principle themselves.

Over the period in which the Commonwealth matters were	20
receiving such bottoms in New South Wales, matters in Queensland with a bottom of about a third. It is to be remembered that Commonwealth matters form a very, very small percentage indeed of matters before the State sentencing Court. A Judge who sits, as I do, in the criminal Court every day of the working year can go a whole year without doing a Commonwealth matter. On other occasions you might get as many as two or three or four a year.
30
The practice developed, unsurprisingly, that the Commonwealth Director of Prosecutions, in doing such Commonwealth matters before Appeal Courts in States other than New South Wales, referred to the said New South Wales authorities. Some interstate Courts went into the question of such being sentences by New South Wales Courts and how far the respective statements of principle went and what was the appropriate statement of principle, say, for a Court in a State other than New South Wales.
40
Three matters have been before the Queensland Court of Appeal
recently. The first was Robertson, CA 29/08 or [2008] QCA
164, such being argued on the 26th of May 2008 with the
decision being given on the 20th of June 2008. The functional
offending in Robertson was false pretences with intent to
defraud committed over a period of about six years; second
count of defrauding the Commonwealth in the ensuing 17 years; and count 3, dishonesty causing a loss to the Commonwealth in the then ensuing about three and a-half years. Such involved dishonesty over a substantial period of time and involved a	50
substantial amount of money, namely $121,593.61. At the time of sentence, partial compensation in the sum of $4,416.80 had been made by fortnightly withholding by the Commonwealth from her aged pension payment.
The drug matter of Mokoena, CA 213/08 or [2009] QCA 36, was
argued in the Court of Appeal on the 28th of November 2008
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with the said decision being delivered on the 27th of February

2009.	1
The third matter of CAK & CAL; ex parte Commonwealth Director of Public Prosecutions, CA 312 & 313/08 or [2009] QCA 23, was argued on the 11th of February 2009, that is after Mokoena,
but delivered before the decision of Mokoena, and, of course, after the decision in Robertson. In CAK the Court stated at page 5 at paragraph [18]:

"The norm for non-parole periods and periods required to	10
be served before a recognisance release order for the offender has served 60 to 66 per cent of the head sentence."

There is a footnote thereon and the footnote gives the
citations of the following seven cases: R -v- Bernier (1998)

102 A Crim R 49, R -v- Stitt (1998) 102 A Crim R 428, R -v-

Sweet (2001) 125 A Crim R 431, R -v- Martinsen

[2003] NSWCCA 114 at paragraph 14, R -v- Bick	20
at paragraph 16, Studman [2007] NSWCCA 326 at paragraph 9.
[2006] NSWCCA 408 at paragraph 13, R -v- Ly [2007] NSWCCA 28 Unsurprisingly, all say that the bottom is about two-thirds, which of course is the figure that would apply for a State offence in New South Wales, according to New South Wales legislation.
The Courts in each of Mokoena and Robertson referred to the
New South Wales authorities and the differences in the	30
legislation. The Court in CAK made that statement of
principle, as I said, with the footnote referring to those
seven authorities, but such was not gone into in detail. The
Court does not in its written decision refer to Robertson. My understanding is that in oral argument Robertson may have been referred to. I am bound by a decision of the Court of Appeal. Do Robertson and/or Mokoena add a rider to the principle
enunciated in CAK which has great similarities to Panchal's
case. Problems arise, of course, if there are conflicting
decisions of the one State Court of Appeal and, of course,	40
where there is consideration of a situation in which a decision may be given per incuriam.
CAK & CAL referred to a matter analogous to the matter of said in CAK. The Court in CAK continued:

"The precise figure may be outside this range as it is a
matter of judicial discretion and is not necessarily

capable of precise mathematical calculation, but that is	50
the usual percentage of the sentence. A sentence that was well outside that range would have to have most unusual factors to justify it."

Most importantly, and most relevantly, the Court then said:

"In this case, taking into account the offenders' early
pleas of guilty by way of ex officio indictment, the past

co-operation by the respondents, the payment of the loss

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sustained to the Commonwealth by the respondents and

their apparent rehabilitation, the appropriate period	1
before recognisance release order was appropriate would have been towards the lower end of that range in the region of 60 per cent."

What the Court is saying there, the relevance of all those matters which would result in, arguably, not insubstantial allowance under the Queensland State legislation, would have

the effect of, say, reducing the bottom from 66 and two-thirds

per cent to 60 per cent; to the minds of some, not a very	10
significant reduction. What the Court of Appeal stated in reduce the bottom to below 60 per cent particularly if such were to be reduced not insubstantially.
In Robertson, Fraser JA for the Court referred to the above
stated principle in Bernier about the norm being 60 per cent
to 66 and two-thirds per cent of the maximum. He referred to
the serious dishonesty case of Ly, stating:
20

"It would also be contrary to principle to apply those
remarks to this very different case as though they

replace the statutory discretion."

Referring to Bernier, his Honour stated:

"I would regard the statement" (as cited above) "that
subject to caveats concerning consideration being given
to the individual facts of a particular case 'the norm

for non-parole periods is in the range of about 60	30
per cent to 66 and two-thirds per cent as one which should be understood as limited to cases concerning the nature of the offending considered in that case."

His Honour said later:

"The decisions cited for the respondent which do not
concern offending of the nature in issue here, provide no
support for its proposition that the norm for non-parole

periods is in the range of about 60 per cent to two-	40
thirds of the head sentence."

The Court in Mokoena referred inter alia to Robertson. The
Court there was concerned with an accused's appeal. He had a
head sentence of three years' imprisonment with release on
recognisance after 15 months. The Court in Robertson
considered the special circumstances and special facts therein
and reduced the bottom to 12 months. In Mokoena, Holmes JA
adopted the statement of principle in Robertson, remembering

that her Honour in Mokoena was dealing with a drugs case.	50
Her Honour at paragraph 10 on page 4 stated:

"At this Court's request, counsel for the respondent" the practice of setting non-parole periods for Commonwealth drug offences at a point beyond the halfway mark of the sentence. An examination of sentence appeals

(that is the Commonwealth Director of Public

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from other jurisdictions bears out the statement of the

prosecutor below. In Selim [1998] NSWSC 165, for	1
example, the New South Wales Court of Criminal Appeal observed: 'There is no rigid rule as to the proportion that a non-parole period should bear in the head sentence, but more often than not, the non-parole period is more than 50 per cent of the head sentence and is ordinarily of the order of 60 per cent to 66 and two- thirds per cent of it.'"

Similar comments can be found elsewhere in the judgments of	10
referring inter alia to Bernier and yet another New South
the New South Wales Court of Criminal Appeal, her Honour continued:

"The practice has been consistently applied in other

States."

Referring to the Victorian cases of Phong, Thomas, Ngui and

Tiong, the South Australian case of Cheng, and a case of	20
Mustafa, the reference being (2002) 133 A Crim R 133, her Honour continued, not unimportantly:

"It does not seem, however, that any similar uniformity has developed in respect of Commonwealth offences which do not involve drugs."

Her Honour therein referring to Robertson and adopting such in
effect with approval. Her Honour continued:

30

"[11] The practice of setting non-parole periods in drug importation cases at around the two-thirds mark seems to have originated in New South Wales, where the idea of
“truth in sentencing” reached its zenith with s 28A of the Probation and Parole Act 1983 (NSW). That section required a non-parole period for a serious offence to be
at least three-quarters of the head sentence unless the
court determined that the circumstances justified a
shorter period. Section 44 of the Crimes (Sentencing

Procedure) Act 1999 (NSW) currently requires for all	40
offences where imprisonment is imposed that, in the
absence of special circumstances, the ratio of the non–
parole period to the balance of the sentence be at least
2:1.
[12] In contrast, in Queensland for many years,
eligibility for parole for a prisoner not serving a life
term, or (since 1997) not subject to a serious violent
offence declaration, commenced, in the absence of an
order, after the prisoner had served half of his term of	50
imprisonment. That regime still applies, albeit to a more limited class of prisoner. As a result, the tendency has been to recognise mitigating factors such as co-operation with the authorities by setting a non-parole date earlier than that statutory half-way mark. But that statutory position has no application, direct or indirect, to the process of fixing a non-parole period for a Federal offence. The setting of the non-parole
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period is, of course, a matter of individual discretion;

but at the same time, in exercising Federal jurisdiction,	1
consistency with decisions in other jurisdictions is, as this Court observed in R v Tran 172 ACR 436 or [2007] QCA 221, desirable."

When one looks at that authority, there are certain remarks
which say that the sentencing discretion is wider. I'm in the
somewhat difficult position in that I feel constrained to
follow the direct statement relevant to the principles before

me as enunciated in CAK. CAK involved so many features that	10
are similar to the matter of Panchal. It is a serious dishonesty offence involving a substantial amount of money with a serious breach of trust.
These are general comments in relation to the ultimate individual sentence. I shall be taking into account all the submissions. I've actually heard oral evidence from Panchal himself and from the very experienced psychiatrist, Dr Klug.
As I said, there is a number of important similarities to CAK	20
and, as with CAK, Panchal is an ex officio indictment. As
with the accused there and Panchal here, there has been
significant cooperation in the administration of justice and
with the authorities. Compensation has been made in full and there is evidence of apparent rehabilitation. As a matter of law, CAK says, that would seem to reduce 66 and two-thirds
per cent to 60 per cent of the head sentence and that there
would then have to be most unusual factors for the reduction
to be further. If it had not been for the decision in CAK,
everyone understands that the bottom I would arguably impose	30
would be lesser than that which will ultimately be imposed.
Looking at what's said in Mokoena and in Robertson, it would
suggest that there's a wider scope for the range for the
bottom. When one looks at the footnotes appended to Exhibit A
in the very detailed and helpful submissions by the Crown
counsel (I have received great assistance from the detailed
submissions, the industry with thoroughness and relevance of
all counsel who have been involved), such footnotes suggest
that prior to the New South Wales Court of Appeal statement of	40
that the Courts of Appeal in other States, including
principle in relation to the norm having wider acceptance, insubstantially less, than 60 per cent.
If there is conflict between the authorities, is the situation
one that can only be resolved in a Court of Appeal? Will it
comprise a Court of three or a Court of five as happened in
Lockwood [1981] Qd R 209 to overrule the Court of Appeal
decision in Burnell [1966] QdR 348.	50
Is it the situation that a Court of three could adjudicate on
whether any decision was given per incuriam and/or where there
is conflict, whether there should be clarification? Is it a matter that might ultimately have to be resolved in the High Court? As I say, my concern throughout this has been that the
State sentences in the New South Wales Court of Appeal seem to
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have set the norm for other States and if the norm had been

set, say, by the Queensland Court of Appeal with a number of	1
other cases following thereon, would their arguably have been a different norm? I can't speculate on those matters. I am bound by what the Court of Appeal said and for the purposes of Panchal I shall be following what the Court said in CAK.
In relation to the Assad matter, he still hasn't got a legal advisor. Yet again he says he hopes to have one in the near future. When that matter comes on for sentence I imagine it would be listed for sentence on Friday or Friday week, that	10
matter can be resolved then.
In relation to the matter of Stares, because of the very helpful written submissions of both sides and more particularly the concessions made by Mr Kent, Commonwealth Crown counsel, therein, it would seem that the problem will not arise in such matter.
So, in relation to the matter of Stares, this matter by
agreement between Mr Kent and Mr Smith is that that sentence	20
will be heard on the 6th of May 2009 and bail is enlarged. In relation to Panchal, I shall proceed to sentence forthwith.

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