R v Suarez-Mejia
[2002] WASCA 187
•17 JULY 2002
R -v- SUAREZ-MEJIA [2002] WASCA 187
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 187 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:186/2001 | 20 MAY 2002 | |
| Coram: | MURRAY J PARKER J MILLER J | 17/07/02 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | CCA 186/2001: Appeal dismissed, CCA 189/2001: Application for leave refused | ||
| A | |||
| PDF Version |
| Parties: | THE QUEEN CARLOS ARTURO SUAREZ-MEJIA |
Catchwords: | Criminal law Sentence Crown appeal Possession of prohibited import Equivalent of 707 kilograms of pure cocaine Life imprisonment with non-parole period of 20 years Non-parole period not manifestly inadequate Criminal law Sentence Crown appeal Competence Non-parole period a "punishment imposed or order made" pursuant to Criminal Code (WA), s 688(2)(d) Crimes Act 1914 (Cth), s 19AB(1) |
Legislation: | Criminal Code (WA), s 688(2)(d) |
Case References: | R v Campillo, unreported; District Ct of NSW (Keleman DCJ); No 99/11/0474 AB v The Queen (1999) 198 CLR 111 Bugmy v The Queen (1990) 169 CLR 525 Cameron v The Queen (2002) 76 ALJR 382 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Grimwood v The Queen [2002] WASCA 135 Inge v The Queen (1999) 199 CLR 295 Jacovic v The Queen [2002] WASCA 149 Lauritsen v The Queen (2000) 22 WAR 442 Lowndes v The Queen (1999) 195 CLR 665 Pearce v The Queen (1998) 194 CLR 610 Power v The Queen (1974) 131 CLR 623 Punch v The Queen (1993) 9 WAR 486 R v Bateman [2000] NSWSC 915 R v Clarke [1996] 2 VR 520 R v Engert (1995) 84 A Crim R 67 R v Flavel [2001] NSWCCA 227 R v Gonzales-Betes [2001] NSWCCA 226 R v Good [1988] WAR 224 R v Meggett (1999) 107 A Crim R 257 R v Sherratt (2000) 112 A Crim R 177 R v Shrestha (1991) 173 CLR 48 R v Thomson (2000) 49 NSWLR 383 R v Wong (1999) 48 NSWLR 340 Thompsett v The Queen [2001] WASCA 8 Vanit & Ors v The Queen (1997) 190 CLR 378 Veen v The Queen (No 2) (1988) 164 CLR 465 Verschuren v The Queen (1996) 17 WAR 467 Wangsaimas & Ors v The Queen (1996) 6 NTLR 14 Wong v The Queen (2001) 76 ALJR 79 Wood v The Queen [2002] WASCA 175 Boxtel v The Queen [1994] 2 VR 98 Chua v The Queen [2001] WASCA 353 DPP (Cth) v El Karhani (1990) 97 ALR 373 DPP v Buhagiar & Heathcote [1998] 4 VR 540 Gallagher v The Queen (1991) 23 NSWLR 220 R v Allpass (1993) 72 A Crim R 561 R v Barany (2000) 114 A Crim R 426 R v Beatriz Gonzales-Betes Suarez, unreported; DCt of NSW (Ainslie-Wallace DCJ), Library No 99/11/0475 R v Bellissimo (1996) 84 A Crim R 465 R v Bernath [1997] 1 VR 271 R v Cartwright (1989) 17 NSWLR 243 R v Darwell (1997) 94 A Crim R 35 R v Dinic (1997) 149 ALR 488 R v Duffy (1996) 85 A Crim R 456 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Flavel, unreported; DCt of NSW (Ainslie-Wallace DCJ), Library No 99/11/0473 R v Heryadi (1998) 98 A Crim R 578 R v Leucus (1995) 78 A Crim R 40 R v Paull (1990) 20 NSWLR 427 R v Su & Ors [1997] 1 VR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : R -v- SUAREZ-MEJIA [2002] WASCA 187 CORAM : MURRAY J
- PARKER J
MILLER J
- Appellant
AND
CARLOS ARTURO SUAREZ-MEJIA
Respondent
- Applicant
AND
THE QUEEN
Respondent
(Page 2)
Catchwords:
Criminal law - Sentence - Crown appeal - Possession of prohibited import - Equivalent of 707 kilograms of pure cocaine - Life imprisonment with non-parole period of 20 years - Non-parole period not manifestly inadequate
Criminal law - Sentence - Crown appeal - Competence - Non-parole period a "punishment imposed or order made" pursuant to Criminal Code (WA), s 688(2)(d) - Crimes Act 1914 (Cth), s 19AB(1)
Legislation:
Criminal Code (WA), s688(2)(d)
Result:
CCA 186/2001: Appeal dismissed
CCA 189/2001: Application for leave refused
Category: A
Representation:
CCA 186 of 2001
Counsel:
Appellant : Mr D J Bugg QC & Mr H G Dembo
Respondent : Mr O P Holdenson QC & Ms V Amidzic
Solicitors:
Appellant : Commonwealth Director of Public Prosecutions
Respondent : Amidzic & Co
(Page 3)
CCA 189 of 2001
Counsel:
Applicant : Mr O P Holdenson QC & Ms V Amidzic
Respondent : Mr D J Bugg QC & Mr H G Dembo
Solicitors:
Applicant : Amidzic & Co
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
AB v The Queen (1999) 198 CLR 111
Bugmy v The Queen (1990) 169 CLR 525
Cameron v The Queen (2002) 76 ALJR 382
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Grimwood v The Queen [2002] WASCA 135
Inge v The Queen (1999) 199 CLR 295
Jacovic v The Queen [2002] WASCA 149
Lauritsen v The Queen (2000) 22 WAR 442
Lowndes v The Queen (1999) 195 CLR 665
Pearce v The Queen (1998) 194 CLR 610
Power v The Queen (1974) 131 CLR 623
Punch v The Queen (1993) 9 WAR 486
R v Bateman [2000] NSWSC 915
R v Campillo, unreported; DCt of NSW (Keleman DCJ); No 99/11/0474; 9 February 2001
R v Clarke [1996] 2 VR 520
R v Engert (1995) 84 A Crim R 67
R v Flavel [2001] NSWCCA 227
R v Gonzales-Betes [2001] NSWCCA 226
R v Good [1988] WAR 224
R v Meggett (1999) 107 A Crim R 257
R v Sherratt (2000) 112 A Crim R 177
R v Shrestha (1991) 173 CLR 48
R v Thomson (2000) 49 NSWLR 383
R v Wong (1999) 48 NSWLR 340
Thompsett v The Queen [2001] WASCA 8
Vanit & Ors v The Queen (1997) 190 CLR 378
(Page 4)
Veen v The Queen (No 2) (1988) 164 CLR 465
Verschuren v The Queen (1996) 17 WAR 467
Wangsaimas & Ors v The Queen (1996) 6 NTLR 14
Wong v The Queen (2001) 76 ALJR 79
Wood v The Queen [2002] WASCA 175
Case(s) also cited:
Boxtel v The Queen [1994] 2 VR 98
Chua v The Queen [2001] WASCA 353
DPP (Cth) v El Karhani (1990) 97 ALR 373
DPP v Buhagiar & Heathcote [1998] 4 VR 540
Gallagher v The Queen (1991) 23 NSWLR 220
R v Allpass (1993) 72 A Crim R 561
R v Barany (2000) 114 A Crim R 426
R v Beatriz Gonzales-Betes Suarez, unreported; DCt of NSW (Ainslie-Wallace DCJ), Library No 99/11/0475
R v Bellissimo (1996) 84 A Crim R 465
R v Bernath [1997] 1 VR 271
R v Cartwright (1989) 17 NSWLR 243
R v Darwell (1997) 94 A Crim R 35
R v Dinic (1997) 149 ALR 488
R v Duffy (1996) 85 A Crim R 456
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Flavel, unreported; DCt of NSW (Ainslie-Wallace DCJ), Library No 99/11/0473
R v Heryadi (1998) 98 A Crim R 578
R v Leucus (1995) 78 A Crim R 40
R v Paull (1990) 20 NSWLR 427
R v Su & Ors [1997] 1 VR 1
(Page 5)
1 MURRAY J: I have had the advantage of reading in draft the judgment to be published by Parker J with which I am in general agreement. As I have reached the same conclusion by a slightly different route, I should set out my own reasoning.
2 No time need be spent on the application for leave to appeal brought by Suarez-Mejia which was abandoned at the hearing of the appeal. Leave to appeal in that matter should therefore now formally be refused. I merely note in passing that the application was for leave to appeal against the severity of the sentence of life imprisonment with a non-parole period of 20 years and sought the reduction of the non-parole period on the grounds that Scott J, in fixing that period, placed too much weight upon the size of the importation and insufficient weight upon the applicant's personal circumstances and his co-operation with the investigating police.
3 On the other hand, as Parker J has observed, the Crown's appeal against the sentence of life imprisonment with a non-parole period of 20 years is again directed towards the non-parole period, alleging that that period "was manifestly inadequate in all the circumstances of the case". Subsidiary grounds contend that Scott J erred in not attaching more weight to the respondent's prior conviction and in giving too much weight to his plea of guilty. As Parker J has said in argument it was sought to amplify the general ground of appeal by identifying an error of principle said to have been committed by Scott J when, having said that the offence was of such gravity that in his Honour's view it required the imposition of a sentence of life imprisonment (a proposition apparently accepted by counsel for both the appellant and the respondent), his Honour employed a two-tiered process in explaining how he came to fix the non-parole period at 20 years.
4 His Honour's remarks have been set out by Parker J. Although they actually refer to sentencing the respondent "to a term of 28 years imprisonment before becoming eligible for parole", it is evident that his Honour was referring to the fixing of the non-parole period. Understood in that way, his Honour said that he would have concluded that the appropriate period was one of 28 years had it not been for the early plea of guilty before a Court of Petty Sessions and the respondent's participation in the process of expedited committal provided by the Justices Act 1902 (WA), s 101, the respondent's remorse and his personal circumstances. In view of those matters, however, his Honour fixed the term of the non-parole period at 20 years.
(Page 6)
Two-tiered Sentencing
5 It is convenient to deal shortly with this aspect of the argument now. In the first place there is, in my opinion, no requirement for a sentencing judge, in explaining the reasons for the discretionary judgment made, to explain why the judge did not do something different, why in this case he did not fix a non-parole period of 28 years or any term other than the 20 years fixed. To take that course tends to divert attention in reviewing the Judge's sentencing remarks from the explanation given for the sentencing decision ultimately made and whether in doing so the discretion can be seen to have miscarried because something has been taken into consideration which ought not to have been, something has been overlooked which ought to have been considered, some identifiable error of principle has been made, or, even though no particular error can be identified, the result achieved can be seen to fall outside the acceptable range of a sound discretionary judgment. That is a conclusion in sentencing cases which the courts have expressed in many cases in terms of manifest inadequacy or excess, by which it is meant to convey the caution that, recognising the discretionary nature of the judgment under review, an appellate court will not intervene unless the judgment can be seen to be so plainly wrong that it may be said to fall outside a sound discretionary range.
6 The second matter to which I wish to refer in relation to the two-tiered process identified in this case is that, in my opinion, it has become increasingly clear over recent years that unless mandated by statute, eg, the Crimes Act 1914 (Cth), s 21E(1) in respect of promised future co-operation with law enforcement agencies, it is an error for a sentencing Judge to nominate a term of years and then progressively reduce the term having regard to identified matters of mitigation, in just the same way as it would be an error to endeavour to allocate particular periods to factors thought to play a part in arriving at the "starting point" to which particular discounts are applied.
7 I do not propose to discuss the relevant authorities. There are many of them, usefully reviewed by Spigelman CJ in R v Thomson (2000) 49 NSWLR 383 at 396 – 411 [54] - [113]. In that case the Court of Criminal Appeal of NSW dealt with an application for a sentencing guideline judgment in respect of pleas of guilty. A bench of five Judges was constituted. Spigelman CJ started from the position that having regard to the authorities generally:
(Page 7)
- "The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought to be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole." [57]
8 His Honour went on to note that in NSW it appeared there were real concerns that proper weight was not being given by sentencing judges to the making of early pleas of guilty, the utilitarian value of which to the administration of criminal justice in that State was regarded as being of considerable importance. At par [112] his Honour ultimately concluded:
"In view of the evidence before this Court which establishes that the objective of encouraging early pleas is not being attained, this Court should adopt a guideline designed to ensure that offenders, and those who advise them, will know that in this State a discount for a plea is in fact given on a systematic basis and that the earlier the plea, the greater the benefit. This objective will best be served if sentencing Judges adopt the practice of quantifying the discount and relating the quantification in some way to the timing of the plea. This Court should promulgate a guideline which encourages sentencing Judges to do this."
- The relevant guideline, consistently with the views expressed by his Honour with which the other members of the Court agreed, was at 419 [160] expressed in these terms:
"Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate."
(Page 8)
- dissenting judgments which, however, did not depend upon this point, McHugh J at 120 – 122 [13] – [18] and Hayne J at 156 [115] – [116] expressed the view that the two-stage approach was erroneous. Gummow J may have already adverted to the same point of view when in Pearce v The Queen (1998) 194 CLR 610 at 624 [46] his Honour said that, "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision."
10 Most recently, in Wong v The Queen (2001) 76 ALJR 79 decided after Thomson, the majority of the High Court, Gaudron, Gummow and Hayne JJ, discussed the approach of the Court of Criminal Appeal of NSW in formulating sentencing guidelines in respect of those knowingly concerned with the importation of narcotics which involved increments to or decrements from a pre-determined range of sentences. Their Honours said that the guidelines formalised the two-stage approach to sentencing which they said at 93 [74] was, "not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted." At [75] their Honours continued:
"It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features."
- At 94 [77] their Honours concluded:
"The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge
(Page 9)
- must distil an answer which reflects human behaviour in the time or monetary units of punishment."
11 It is the case that on the High Court different views have been expressed. Kirby J in particular has expressed the contrary view: see Wong at 100 [102] – [103]. In Cameron v The Queen (2002) 76 ALJR 382 at 395 [69] - [71] his Honour said that not only was it not an error to use a two-stage approach to sentencing but, "I remain of the opinion that where a 'discount' for a particular consideration relevant to sentencing is appropriate, it is desirable that the fact and measure of the discount should be expressly identified." His Honour does not I think suggest that the sentencer will be in error if that is not done.
12 However that may be, it seems to me that the preponderance of authority now clearly favours the view that, except in the case where a statute requires the sentencer to expressly identify a "discount" in terms of a reduction in time or by a proportion from a specified term, then the two-tiered approach should not be employed.
13 The question which remains is whether if that is done an appellate court should conclude that there has been an error of principle of the kind which would require the court to conclude that the exercise of sentencing discretion has miscarried. In Punch v The Queen (1993) 9 WAR 486 at 496, in reasons with which Pidgeon J agreed, I thought there was no appellable error in such an approach. Anderson J at 503 went further and expressed the view that the use of the two-tiered approach "ought not to be regarded as an error of principle."
14 The question was revisited by this Court in Verschuren v The Queen (1996) 17 WAR 467. Malcolm CJ, with whom Pidgeon J agreed, at 473 expressed the view that the use of the two-tiered approach involved no error and while I expressed again my preference, for reasons there set out which need not now be repeated, for the approach described as "instinctive synthesis", at 491 I expressed the opinion (wrongly it now seems) that it was neither an error of principle to adopt a two-stage or two-tiered approach to the fixing of sentence, nor to decline to do so. In those circumstances, all members of the Court again expressed the view that no appellable error was made if a sentencing Judge used the two-stage approach. This Court has continued to take that approach: see most recently Grimwood v The Queen [2002] WASCA 135; delivered 22 May 2002.
(Page 10)
15 I think that approach to be correct. Whether the appeal is brought by the Crown or by leave by the convicted person, it is the sentence imposed, including its constituent elements, such as in this case the non-parole period, against which the appeal is brought. The appeal may be grounded in an identified error in principle or in the manifestly inadequate or excessive nature of the sentence, but in either event the appeal will not succeed unless the appellant can establish error of a kind which has caused the exercise of discretion to miscarry as reflected in the sentence imposed. Under the Criminal Code (WA), s 689(3):
"On an appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quashed the sentence passed at the trial, and pass such other sentence warranted in law by the verdict or which may lawfully be passed for the offence of which the appellant or an accused person stands convicted (whether more or less severe) in substitution therefore as they think ought to have been passed and in any other case shall dismiss the appeal."
16 In the final analysis therefore I think that it will only be where the adoption of a two-tiered sentencing process has the effect of causing the sentencing Judge to neglect relevant matters, to place an undue emphasis on particular matters the subject of quantified discounts, or otherwise by the use of a mathematical approach to cause a sentence to be imposed which falls outside the range of sound discretionary judgment, that an appeal will succeed. Otherwise, as I said in Punch, it seems to me that the mechanical processes employed, if they are not productive of error in the final result, will not lead the appellate court to intervene.
Competence of the Appeal
17 I turn then to the question raised as to the competence of the appeal. The offence of importation of narcotics of which the respondent was convicted was an offence against the Customs Act 1901 (Cth), s 233B(1). Having regard to the fact that a commercial quantity of cocaine was involved, the offence was punishable under s 235(2)(c) of the Customs Act by "a fine not exceeding $750,000 or imprisonment for life, or both, or for such period as the court thinks appropriate". Therefore the sentence of life imprisonment is not a mandatory sentence but, under s 19AB(1)(b) and (d), and s 16(1), it was a federal life sentence in respect of which the court was obliged, if it did not make a recognisance release order, subject to s 19AB(3), to "fix a single non-parole period". By s 19AB(3) the court may decline to fix a non-parole period or make a recognisance release
(Page 11)
- 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." In other words, the Court is to have regard to the very matters relevant to sentence generally in making this decision. Where, as in this case, a non-parole period is fixed, it is as defined in s 16(1) as:
"that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law."
19 The Code, s 688(2)(d) confers a right of appeal on the prosecution:
"against any punishment imposed or order made in respect of a person convicted on indictment or convicted by a court of summary jurisdiction and committed for sentence."
- Parker J has canvassed the history of that provision and I will not repeat what his Honour has written. In my opinion, a sentence of imprisonment for life, including its constituent part, the non-parole period, imposed under federal legislation, is a "punishment" within the meaning of s 688(2)(d). If I am wrong in that view, then I consider that to fix a non-parole period under the Crimes Act is to make an order in respect of the person convicted and punished by the imposition of the sentence of life imprisonment: cfThompsett per Kennedy J at par [20] and Parker J at
(Page 12)
- [50]; see also R v Good [1988] WAR 224, 229. In my opinion, the appeal is competent.
The Merits of the Appeal
20 Parker J has described the factual circumstances of the case, both those concerned with the nature of the offence and the circumstances of its commission, and the matters personal to the respondent, including his antecedents and the relevant prior conviction.
21 I have nothing to add to his Honour's review of the previously decided authorities in other jurisdictions to which we were referred. Consideration of those cases does not seem to me to show error in the non-parole period fixed. Indeed, there is little in them beyond the careful consideration given by the courts concerned to the multitude of circumstances relevant to the exercise of sentencing, including the fixing of the non-parole period. To my mind, there is nothing to be discerned by way of a tariff approach to the exercise, nor could there be. I found the exercise to be generally unhelpful one way or the other.
22 There is a distinct difference between the fixing of a non-parole period for a federal life sentence and a life sentence, including a strict security life sentence, imposed under State law. In that case, by the Sentencing Act, s 90 and s 91, there is a statutory range within which the "minimum period" must be set when a life sentence is imposed for murder or for wilful murder and when a sentence of strict security life imprisonment is imposed for wilful murder. In this case, however, the Court is at large and is given no guidance by the statute as to the period which might be thought to be appropriate. It seems to me that in those circumstances it is necessary when reviewing the discretionary judgment fixing a non-parole period to understand what the sentencing court is about when it undertakes that exercise as part of the process of imposing an indeterminate sentence of life imprisonment.
23 This Court has given consideration to such matters in relation to the task of setting the minimum period when imposing mandatory sentences of life imprisonment and strict security life imprisonment. The authorities are R v Sherratt (2000) 112 A Crim R 177, Lauritsen v The Queen (2000) 22 WAR 442, Jacovic v The Queen [2002] WASCA 149 and most recently Wood v The Queen [2002] WASCA 175; 27 June 2002. There is no need for present purposes to repeat what was said in those cases in reasons in which I was particularly guided by the decisions of the High
(Page 13)
- Court in Bugmy v The Queen (1990) 169 CLR 525 and Inge v The Queen (1999) 199 CLR 295.
24 Those cases lead me to express my agreement with Parker J that in this statutory context, as in a case where a non-parole period is fixed in relation to a finite term, the non-parole period is that identified by a majority of the High Court in Power v The Queen (1974) 131 CLR 623 at 629. In passing sentence, by choosing to impose life imprisonment, the Court will have regard to all those matters concerning the commission of the offence and the culpability of the offender as well as matters personal to the offender, whether they be circumstances of aggravation or mitigation, to determine the sentence to be imposed proportionate to the gravity of the crime for the purpose of the protection of the community, deterrence both particular and general, retribution and punishment, and the reformation of the offender. The same matters will be considered in relation to fixing the non-parole period, but for the different purpose in terms of the statute, as it was put in Power at 629:
"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."
25 It is because of the focus of attention upon the purpose of reformation of the offender after serving the minimum period that justice requires, that I have said in other cases that I regard a ground of appeal which complains that a non-parole period was manifestly inadequate or manifestly excessive as unhelpful because it tends to treat the non-parole period as if it was a finite term imposed, as if it was the whole of the sentence. In my opinion, bearing in mind the purpose to be served by fixing the non-parole period, the true question may be formulated as I put it in Wood at par [12]:
"Did the sentencing judge err in mistaking the principles involved, by overlooking some relevant matter of fact, or by having regard to some matter which was irrelevant to the exercise of the discretion, or is it a case where, although no specific error can be identified, the exercise of the discretion must be regarded as having miscarried because the period fixed falls outside the range regarded by the appellate court as manifesting a sound exercise of discretion?"
(Page 14)
26 In relation to that question, I have nothing to add to the views expressed by Parker J. This was undoubtedly a major importation of a particularly deleterious drug capable of causing incalculable harm when distributed in the community. The respondent's involvement was important to the enterprise. He was the trusted link between the overseas suppliers and the Australian purchasers. He was involved for profit alone and in the context of his personal circumstances he would have profited enormously if not apprehended. The period he should be required to serve before being released on parole was, having regard to the purposes his punishment was to serve, a very substantial one, particularly because he had offended in this general way in the past. The principles of the protection of the community, his particular deterrence, general deterrence and retribution demanded the imposition of substantial punishment, both by the sentence of life imprisonment and the non-parole period fixed.
27 And yet upon his apprehension the respondent's remorse was complete. He immediately provided his full co-operation to the investigating authorities. He held nothing back and in the circumstances his fast-track plea of guilty was substantially to his credit, not only because of the co-operation with the processes of the law but because it made his expression of contrition complete. In addition, he will serve his sentence, however long it may be, in a prison in a foreign land remote from family and friends. He has, by his conduct, destroyed his relationship with his son and his capacity to assist and maintain his more extended family.
28 Scott J appears to have overlooked nothing of relevance. In the light of all the material circumstances, can it be said that his exercise of discretion miscarried because the period he fixed falls outside the range of periods which might appropriately be fixed to be served before parole may be contemplated for the purpose of endeavouring to secure the rehabilitation of the respondent by means of his conditional freedom? For my part I am not so persuaded. The period of 20 years is a very long one and I am unable to say that it is so unduly short as to demonstrate that the exercise of discretion by Scott J has miscarried. I would dismiss the appeal and observe in concluding these reasons that it will be apparent that my view owes nothing to special considerations of double jeopardy applicable to Crown appeals.
29 PARKER J: Carlos Arturo Suarez-Mejia (the "respondent") was convicted on his plea of guilty on arraignment before Scott J on 4 December 2001. The conviction was in respect of one count of
(Page 15)
- importing into Australia a commercial quantity of cocaine contrary to s 233B(1) of the Customs Act 1901 (Cth).
30 After hearing submissions in mitigation from counsel for the respondent, and counsel for the Crown, Scott J adjourned to give consideration to the matter of sentence. The respondent was sentenced on 7 December 2001 to a term of life imprisonment with a non-parole period of 20 years. His Honour also made an order under the Proceeds of Crime Act 1987 confiscating the sum of $8,000 which was found in the respondent's possession when he was arrested.
31 The Crown appeals against the sentence imposed by his Honour. The essential issue is whether the non-parole period of 20 years was inadequate.
32 The respondent, in a separate application which was also before us, sought leave to appeal against the sentence imposed on him. The essential point which was to be raised by this application was whether the non-parole period of 20 years imprisonment was excessive. This application for leave to appeal by the respondent was, however, not pursued before us and was formally abandoned.
Factual Circumstances
33 The circumstances of the offence and personal to the respondent, as they appear from what was before Scott J, are as follows.
34 The respondent is a 32 year old Columbian national. On the account the respondent gave to the investigating officers, in about April 2001 the respondent was approached whilst in a bar in Medellin, Columbia by a man he named as Garcia. He was offered US$200,000 by Garcia to assist in the importation of cocaine into Australia by boat. He was to be paid on his return to Columbia after the importation had been achieved. It was the respondent's account that he was told that approximately 1,000 kilograms of cocaine was to be imported into Australia by the boat. The respondent agreed to join in the venture.
35 Two United States nationals named Parrish and Reaves, who had also agreed to become involved, purchased a 30 metre vessel in Louisiana in the United States. The vessel was named the White Dove. In early May 2001, Parrish and Reaves sailed the White Dove from the United States to Praia the capital of Cape Verde off the west coast of Africa.
(Page 16)
36 On 25 May 2001 the respondent flew from Columbia to Cape Verde, arriving there on 28 May. The White Dove arrived on 29 May 2001. In Cape Verde fuel was purchased and customs formalities were completed. The White Dove left Cape Verde on or about 3 June 2001. The respondent, Parrish and Reaves were on board. The White Dove travelled to a point about 1,033 nautical miles south of Praia in the Atlantic Ocean. She was there met by another vessel and 38 bags of cocaine were transferred to the White Dove. The White Dove then proceeded past the Cape of Good Hope across the Indian Ocean to Western Australia.
37 In July 2001 the respondent contacted two Columbian nationals who were in the Broome region of Western Australia. He did this by satellite telephone from the White Dove. The call was intercepted by Federal police. The two Columbian nationals had been under police surveillance.
38 In the early hours of the morning of 27 July 2001 the White Dove made landfall at Dulverton Bay, which is north of Geraldton. The respondent, Parrish and Reaves loaded the cocaine onto inflatable dinghies and the respondent and Reaves transported the cocaine ashore and concealed it beneath rocks on the beach. Reaves then returned to the White Dove which was put onto autopilot and the vessel's bilge pumps were reversed. Parrish and Reaves disembarked and the boat was left to sail out to sea where she sank some 12 nautical miles off the coast. Parrish and Reaves rejoined the respondent on the beach.
39 The three men were then arrested. On his arrest the respondent was found to be in possession of US$8,000 which he indicated had been provided to him by Garcia for travel expenses. The 38 bags of cocaine were located under the rocks on the beach and were seized. They were later found to contain some 1,000 kilograms of impure cocaine, which represented some 707 kilograms of pure cocaine. It is the largest recorded single importation of cocaine into Australia. Its value was estimated at between $104 million and $400 million.
40 The respondent was taken to Geraldton and interviewed. He frankly admitted his involvement in the importation. His admissions were recorded. In addition to the matters that have been outlined already the respondent also indicated that Reaves was the captain of the vessel, although the respondent had taken turns on watch while the vessel was sailing on autopilot. They had approached the Western Australian coast in darkness to avoid detection. His intention, after landing and secreting the cocaine, had been to hire a car and go to a hotel where he was to await a call from a person with a Spanish accent.
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41 It was submitted to his Honour in mitigation that the respondent had had a particularly difficult childhood. Like so many people in Columbia his parents had been in very poor circumstances, his father drank alcohol to excess which led to a great deal of violence in the home. Nevertheless, it appeared that he had completed secondary schooling, had joined the army and served as an officer for some years, following which he had eventually established his own business, but this had failed leaving him without employment. It was extremely hard for the respondent to survive financially given the depressed economic situation of Columbia. He was caring for a child of his who was some 4 years of age with the assistance of a sister and his mother who were also dependant on him. His sister was married but she had a very difficult marriage and had separated from her husband. Her children were with her. It was by virtue of his severe financial difficulties that the respondent was persuaded, it was submitted, to become involved in the offence as this would enable him to earn US$200,000 which he needed.
42 The respondent accepted he had experimented with the use of drugs but he was not a regular user or an addict. It was stressed that because of his arrest and imprisonment in Australia he was not in a position to meet the payments on his home in Columbia which would be subject to foreclosure action by his bank. This would leave his son, his mother and sister and her children without financial support or a place to live. This prospect and his absence from his son caused him great anguish, it was submitted.
43 He had throughout the relevant time acted on the instructions of Garcia. He had no part whatever in the planning and would achieve no benefit other than the US$200,000. He did not know Parrish and Reaves before they met at Cape Verde. Reaves was the captain of the boat and Parrish the crew member. It was accepted by his counsel that the primary role of the respondent was to watch over the cocaine in the vessel and ensure that it arrived in Western Australia and to deliver it in accordance with directions he was to receive. It was no part of his role to be involved in any way with what happened to the cocaine once it had been delivered in Australia. He would then return to Columbia. It was admitted that the respondent had previously been convicted for the importation of 1.5 kilograms of cocaine into Curacao, for which he had been sentenced to 18 months imprisonment of which he served 9 months.
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The Sentence
44 It was expressly accepted by counsel for the respondent that in the circumstances the only appropriate maximum penalty was that of life imprisonment. This had been the submission for the Crown. No issue concerning this is raised on this appeal. The submissions in mitigation, before his Honour, concentrated therefore on the question of the appropriate non-parole period. In this respect counsel for the Crown appearing before Scott J stressed that the importation involved 707 kilograms of pure cocaine. The commercial quantity of cocaine set out in Schedule VI is 2 kilograms. After referring his Honour to a number of sentences in cases of some comparability, in particular, in New South Wales, it was submitted by counsel for the Crown that the non-parole period should be in the order of 25 years imprisonment.
45 On this appeal it is accepted by the Commonwealth Director of Public Prosecutions, who appeared, that the sole ground of appeal is that the non-parole period was manifestly inadequate in all the circumstances of the case. In the way of providing some particularisation of that ground it is submitted that more weight should have been attached to the respondent's prior conviction in Curacao and that too much weight was given to the respondent's plea of guilty.
46 In the course of detailed sentencing remarks on 7 December 2001, Scott J spelt out the circumstances of the offence and of the respondent's involvement. No objection is raised on this appeal against any aspect of his Honour's observations. In the course of them, his Honour said:
"I accept that you had nothing to do with the operation of the vessel White Dove apart from the fact that occasionally you supervised the vessel whilst it was on automatic pilot. The operation of the vessel was left to the two crewmen. Your role, as I have said, was to safeguard the cocaine and to ensure that it was passed on to the land-based contacts in Western Australia. That, however, as you would appreciate, is a very serious role in relation to such a significant shipment of drugs."
47 His Honour also dealt briefly but accurately with the comparative cases to which he had been referred by counsel in the course of their submissions, and canvassed in a manner to which no objective is taken the circumstances personal to the respondent, his cooperation with the authorities in Australia and his early plea of guilty in Petty Sessions on the "fast-track" system. His Honour observed that in accordance with
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- accepted authority in this State significant discount should be given for cooperation and for a plea of guilty. His Honour then continued:
"For the offence to which you have pleaded guilty you will be sentenced to a term of life imprisonment. But for your plea of guilty on the fast track, your remorse and the factors personal to you, you would have been sentenced to a term of 28 years imprisonment before becoming eligible for parole. Allowing for the facts personal to you and the discount that is appropriate to a plea of guilty on the fast-track, that term will be reduced to a period of 20 years which will run from 27 July 2001, the date upon which you were arrested.
In fixing your sentence I have taken into account the matters referred to in section 16A of the Commonwealth Crimes Act 1914. I note your record in Curacao for an offence involving 1.5 kilograms of cocaine where you received a sentence of 18 months imprisonment with a minimum term of 9 months."
As was observed by Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321 at [6]:
"Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive."
" … 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."
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- As was further observed by Brennan and McHugh JJ in R v Shrestha (1991) 173 CLR 48 at 63, after canvassing a number of authorities:
"It is clear that, although a minimum term is a benefit for the offender, it is a benefit which the offender may be allowed only for the purpose of his rehabilitation and it must not be shortened beyond the lower limit of what might be reasonably regarded as a condign punishment. Moreover, the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public."
While the question of a non-parole period has come to be considered in the leading authorities in the contexts of different parole legislation, the underlying principles appear to remain uniform. It follows from the nature of a non-parole period and its objectives that all matters relevant to the exercise of the sentencing discretion are again to be taken into account, although they may carry a different weight because of the different question being considered at the stage of fixing the non-parole period. For the purposes of sentence in this case regard is required to be had to such of the matters listed in s 16A of the Crimes Act 1914 (Cth) as are relevant and known to the Court.
49 Even though the ground of appeal relied on is the manifest inadequacy of the non-parole period of 20 years imprisonment, in his submissions the appellant did point to the observation of his Honour quoted above, that had it not been for the plea, remorse and personal factors, a non-parole period of 28 years would have been fixed, but having regard to those matters this was reduced to 20 years, as revealing an error of principle. I will deal with this on its merits even though the ground does not specifically raise the error of principle advanced in argument.
50 The error of principle contended is that his Honour was following what has been described as the "two stage" approach to sentencing, rather than the intuitive or instinctive synthesis of all relevant factors. Reliance is placed on the observations of Gaudron, Gummow and Hayne JJ in Wong v The Queen (2001) 76 ALJR 79 at 93 – 94 [76]. It is to be noted, however, from the observations of Kirby J in Cameron v The Queen (2002) 76 ALJR 382 at [69] – [71] that there remains some difference of view as to the appropriate approach in this respect to the task of sentencing. It is not appropriate for this Court to seek to resolve that issue in such circumstances. I am not persuaded, therefore, that it is appropriate to accept, as a matter of settled principle, that any degree of resort to a two stage approach to sentencing must necessarily involve an error of
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- principle, and further, even if it should involve an error, that it is of a nature which necessarily requires the conclusion that the sentence must be set aside.
51 In my respectful view, what is critically important is to appreciate, as the instinctive or intuitive synthesis approach clearly reflects, that the process of sentencing involves a need to weigh many factors which may often tend in different directions. The significance of these factors may vary according to the particular circumstances of each case. As has been held by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 the purposes of criminal punishment are the protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. With regard to these in R v Engert (1995) 84 A Crim R 67 Gleeson CJ (as he then was) observed:
"A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasions even intricate. In the given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration …
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in light of the purposes to be served by the sentencing exercise."
52 The nature of the process may well commend, generally or in a particular case, a process involving the synthesis of all relevant circumstances to produce a single result. Nevertheless, there are considerations which have been well rehearsed in many decisions, and which are summarised by Kirby J in Cameron v The Queen, which may well commend to a sentencing Judge the value, at least in the particular case, of indicating with some precision the effects of the weight he or she has attached to particular considerations in reaching the sentence or in fixing the non-parole period. Where this is done, if the weight so indicated does not reveal some unwarranted imbalance and does not lead to a distorted result, it is difficult to see that there is justification for setting aside the result simply because the Judge has revealed a particular aspect of the reasoning. There are, of course, pitfalls which may be
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- apprehended when this is attempted. It may readily lead to the mistaken apprehension, for example, that ipso facto a plea of guilty should lead to a specific discount, regardless of the circumstances which led to that plea of guilty and regardless of the other circumstances of the case which may interrelate with the early plea of guilty.
53 In my respectful view, what remains of importance is that the ultimate sentence, and in particular in this appeal the non-parole period, is one which reflects a proper appreciation and balancing of all relevant considerations in the particular circumstances of the case, and which serves the purposes of the sentencing exercise in the sense indicated in Veen, or respectively of a non-parole period, and has not been affected by the inappropriate application of some fixed rule of thumb as to a particular aspect of the sentencing process.
54 In this particular case, his Honour was dealing with an offence which by its nature and circumstances was very serious indeed and for which the public interest called for a very substantial term of imprisonment, both for the primary sentence and the non-parole period. With particular reference to the non-parole period the circumstances disclosed that the offender cooperated readily with the investigating officers and frankly admitted his involvement in the offence and entered a plea of guilty in the Court of Petty Sessions. His cooperation extended beyond the initial interview, although it appears that in the result it did not prove to be of material assistance. The circumstances were clearly confirmatory of the genuine remorse which the respondent felt and which was also noted in the pre-sentence report which was provided to his Honour. The circumstances personal to the respondent which have been detailed earlier in these reasons indicated a number of matters which told in favour of the respondent, although none of them told with particular force having regard to the nature and circumstances of the offence. However the exercise of the discretion to fix a non-parole period might be approached as a matter of technique, it is clear that the respondent's early plea of guilty and genuine remorse would properly weigh significantly in the respondent's favour and in addition, some of the matters personal to him, though to a much more limited degree. While in his sentencing remarks it is clear that his Honour sought to separately reflect these, so that the significance he attached to them was apparent and was identified in terms of years, given the circumstances of this case it is not apparent that his Honour has attached to these matters any undue or inadequate weight, or that any different result would have followed had his Honour simply considered them along with all other relevant considerations to arrive at a single result for the non-parole period.
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55 I am not persuaded that, by giving separate consideration the plea of guilty and the respondent's remorse, and the factors personal to the respondent, his Honour has been misled into attaching to those matters, separately or in combination, some inappropriate weight given all the circumstances of this case, or that by treating them separately in this way there has been an error which requires that the non-parole period be set aside.
56 It is clear from the sentencing comments that his Honour was well conscious that he was dealing with a federal offence and of the requirements of s 16A of the Crimes Act. For the reasons already given, in the particular circumstances of this case, to the degree that his Honour has separated out his consideration of three factors, it is not shown that by doing so his Honour has failed to achieve a result which reflects a correct application of s 16A in so far as the factors it identifies are relevant to the fixing of a non-parole period.
57 In support of the principal proposition for the appellant reference was made to a number of sentences imposed in respect of offences concerning the importation into Australia of narcotics. It was submitted that the non-parole periods imposed in these cases serve to demonstrate the manifest inadequacy of the non-parole period of 20 years imposed in the present case. The same cases had been referred to Scott J and he expressly commented on each of them in his sentencing comments. A reference was made to R v Flavel [2001] NSWCCA 227, R v Gonzales-Betes [2001] NSWCCA 226, R v Campillo, unreported; DCt of NSW (Keleman DCJ); No 99/11/0474; 9 February 2001, Wangsaimas & Ors v The Queen (1996) 6 NTLR 14, Vanit & Ors v The Queen (1997) 190 CLR 378 and R v Bateman [2000] NSWSC 915 and to the unreported sentencing decisions with respect to Flavel and Gonzales-Betes.
58 Flavell, Gonzales-Betes and Campillo concerned the same importation of cocaine. There were some 171 kilograms of pure cocaine totalling some 244.8 kilograms in bulk. Terms of life imprisonment were imposed on each offender with non-parole periods varying between 22 and 25 years. Each of the offenders was convicted after trial. In the case of Wangsaimas there were three offenders (one of whom was Vanit) who were convicted of the importation of 89.1 kilograms of pure heroin. Each offender pleaded guilty and was sentenced to life imprisonment without parole. On appeal non-parole periods of 22 and 25 years were fixed. In the case of Bateman the offender pleaded guilty to importation of 502 kilograms containing 383 kilograms of pure cocaine. A sentence of 13 years imprisonment with a non-parole period of 8 years was imposed
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- although the sentencing comments of James J indicated that he commenced his consideration of sentence in that case from a starting point of 40 years, which was reduced by some 50 per cent having regard to significant cooperation with the investigating authorities, and then from 20 years by a further one-third to allow for the absence of any system of remissions.
59 In the course of submissions reference was also made to R v Meggett (1999) 107 A Crim R 257, R v Wong (1999) 48 NSWLR 340 and Wong v The Queen (supra).
60 To the extent that the starting point of 40 years imprisonment in the case of Bateman is relied on, it is to be remembered that the actual sentence imposed in that case was 13 years with a non-parole period of 8 years. While the learned sentencing Judge may have commenced his consideration from a starting point of 40 years imprisonment that was in respect of the head sentence, not the non-parole period. The other New South Wales cases each involve a significantly smaller amount of prohibited substance than the present case. However, the essential nature of the offence, the commercial importation of a prohibited narcotic, is the same. A life sentence was imposed in each case. The non-parole periods between 22 and 25 years were fixed according to the respective roles and personal circumstances of each offender. Significantly, none of those offenders pleaded guilty, showed remorse or cooperated with the authorities. The offenders in the case of Wangsaimas were involved in the commercial importation into Australia of heroin although the quantity was significantly smaller than in the present case. In each case the decision of the Court of Criminal Appeal indicates that the non-parole periods of between 22 and 25 years imposed on the respective offenders represented the Court's assessment of the particular circumstances of the offence and each offender.
61 Of the sentences relied on as substantially comparable, only the Northern Territory non-parole periods fixed in the case of Wangsaimas& Ors would offer support for the proposition that the non-parole period of 20 years in the present case was inadequate. A material point of distinction with the New South Wales sentences is the absence of pleas of guilty, genuine remorse or cooperation with the investigating authorities. The absence of those factors could well justify a longer non-parole period in respect of those offenders, than in the present case.
62 I will not summarise again the circumstances of the offence or of the offender. It is significant that this is such an extremely large and valuable
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- importation of prohibited narcotic and that the respondent's involvement was for financial gain. It is also relevant that he has previously offended in another country in a similar way. Having weighed all the circumstances of this case, but especially those matters, it is my impression that the non-parole period of 20 years was certainly at the low end of an appropriate range. While the considerations are finally balanced, I am not persuaded, however, that it can be said of the non-parole period that it is manifestly inadequate in the sense relevant to this appeal.
63 In reaching this conclusion I am particularly conscious that this is a Crown appeal against the inadequacy of sentence. Further, the issue is not the head term but the non-parole period.
64 There are clearly established principles which apply to Crown appeals of this nature. A convenient statement of them may be found in the decision of Charles JA in R v Clarke [1996] 2 VR 520 at 522 – 523. In particular, it is established that an appeal by the Crown should only be brought in a rare and exceptional case and to establish a point of principle. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle, (b) where it is necessary to lay down principles for the governance and guidance of the exercise of the sentencing discretion, (c) to establish and maintain adequate standards of punishment, (d) to correct idiosyncratic views of individual judges, (e) to correct a sentence which is so disproportionate as to shock the public conscience, and (f) to ensure uniformity. A Court of Criminal Appeal is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive; it may only interfere if there is manifest inadequacy or the sentencing judge fell into material error of law or fact.
65 The proposition in the last sentence in the preceding paragraph was underlined by the High Court in Lowndes v The Queen (1999) 195 CLR 665 at 671 – 672 where it was said that:
" … a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion … The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
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66 It has also been observed in a number of decisions that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time. Because this is an unfortunate effect of a Crown appeal against sentence it is normal for the Crown to be required to demonstrate clearly that the sentence is so manifestly inadequate as necessarily to demonstrate error. Even where such error is demonstrated it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences.
67 These matters have been the subject of further elaboration and consideration in recent decisions. A convenient example is to be found in the observations of Kirby J in Dinsdale v The Queen (supra) at 339 – 341, [57] – [62]. As was observed by McHugh J in Everett v The Queen (1994) 181 CLR 295 at 306:
"Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a court of criminal appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence."
68 It is only after giving full consideration to the principles outlined that I have come to the view that, while at the lenient end of an appropriate range, if not at its lowest extremity, I am nevertheless not persuaded that the non-parole period of 20 years fixed in this case reveals manifest inadequacy such as would justify this Court interfering with the exercise of the discretion by the Judge below.
Competence of appeal
69 There is one further and significant issue raised by the respondent. It is objected that the appeal by the Crown is incompetent. The respondent's contention is that the sentence imposed below is that of life imprisonment. The fixing of a non-parole period, it is submitted, is not part of the actual sentence. As a consequence the respondent contends that no appeal may be brought by the Crown solely in respect of the inadequacy of a non-parole period.
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70 There is no statutory definition of the term "sentence" in the CrimesAct. As a matter of ordinary English usage a sentence is the punishment imposed on a person following conviction of an offence. By s 16A of the CrimesAct a court is required to "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence". It is clear that, at least for some purposes, a distinction is made between a sentence and an order. Both the sentence or the order must, however, be of a severity appropriate in all the circumstances of the offence. Among the forms of order that are within the express contemplation of the CrimesAct are a recognizance release order, s 19AC; an order discharging an offender without proceeding to conviction under s 19B(1)(d); a conditional release order under s 20(i); a community service order, an attendance centre order, an attendance order or an order that is prescribed, s 20AB(1). It is to be noted that the various orders for which s 20AB provides appear to be among what are described in the heading to the section as "additional sentencing alternatives". In addition to those types of orders, s 20AB also provides for a sentence of periodic detention or a sentence that is prescribed.
71 By s 19AB(1) of the CrimesAct a court which imposes a federal life sentence or a federal sentence or sentences that in the aggregate exceed 3 years imprisonment:
" … must either:
(d) fix a single non-parole period in respect of that sentence or those sentences; or
(e) make a recognizance release order."
- It is to be noted that where more than one federal sentence is imposed at the one time only one non-parole period is to be fixed. This characteristic, by which a non-parole period is somewhat detached from a particular sentence where there is more than one federal sentence to be served, is further confirmed by s 19AB(2) which requires a court imposing a further federal sentence on a person who is already serving a federal sentence, in some circumstances, to fix a single non-parole period in respect of all the federal offences the person is to serve or complete, or to make a recognizance release order. Similarly s 19AD(2).
72 By s 19AL, where a non-parole period has been fixed in relation to a federal sentence or sentences, the Attorney-General of the Commonwealth must, by order in writing, direct the release of the prisoner on parole either at the end of the non-parole period or on a specified day not earlier than
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- 30 days before the end of the non-parole period. While the actual release from prison on parole pursuant to this provision is ordered by the Attorney-General as an executive act, the non-parole period, as fixed by the sentencing court, determines the limits of the period within which the Attorney-General is required to order the release of the person from prison.
73 In this respect it is to be noted that by s 16(1) of the CrimesAct it is provided that a "non-parole period", in relation to a sentence or sentences of imprisonment, "means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law".
74 Section 19AH provides:
"(1) Where a court fails to fix, or properly to fix, a non-parole period, or to make, or properly to make, a recognizance release order, under this Act:
(a) that failure does not affect the validity of any sentence imposed on a person; and
(b) the court must, at any time, on application by the Attorney-General, the Director of Public Prosecutions or the person, by order, set aside any non-parole period or recognisance release order that was not properly fixed or made and fix a non-parole period or make a recognisance release order under this Act."
- This provision may lend some prima facie support for the respondent's submission that under the CrimesAct a non-parole period is distinct from the sentence which is imposed, as the validity of the sentence imposed is not affected by any failure to fix or to properly fix a non-parole period. On the other hand, by virtue of the defined meaning of non-parole period and the operation of s 19AL and the general scheme of these provisions, it is clear that the effect of a non-parole period, as fixed by the court at the time of sentencing, is to preclude the release from prison of the offender on parole during that non-parole period. The legislative scheme of these provisions is consistent with the concept of a non-parole period being the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances of the case; see Power v The Queen (supra) at 629. Hence, s 19AH(1) may well be
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- understood, as was submitted by the appellant in this case, as simply preserving from total invalidity a sentence affected by the failure to fix a non-parole period, or to do so properly, so that when that failure is corrected the whole sentence is and remains valid.
75 While much of the respondent's argument in this respect focussed on the Crimes Act, there is no need to form a final view on the question whether, for the purposes of the CrimesAct, a non-parole period fixed by a judge is, strictly, a part of the sentence. The reason for this is to be found in the Criminal Code (WA) pursuant to which the appeal has been instituted in this case. By s 688(1a)(b) of the Code it is provided that a person convicted on indictment may appeal "with the leave of the Court of Criminal Appeal, against any other sentence passed upon him, unless the sentence is one fixed by law". In respect of appeals on the part of the prosecution, however, it is provided by s 688(2)(d) that the prosecution may appeal "against any punishment imposed or order made in respect of a person convicted on indictment …".
76 When s 688(2)(d) was first introduced into the Code by Amendment No 20 of 1954 it provided for an appeal on the part of the prosecution "against any sentence which in the circumstances of the case cannot lawfully be passed …". That was amended by Act No 49 of 1975 so that the appeal on the part of the prosecution might be made "against any punishment or order imposed or made on the conviction of a person on indictment". The provision was then further amended by Act No 62 of 1976, in particular to allow for appeals on the part of the prosecution in respect of persons convicted summarily but committed for sentence to the District Court or Supreme Court.
77 There is thus a distinction in the present s 688 between a "sentence" and a "punishment imposed or order made". That distinction is also to be found in the legislative history of s 688(2)(d) itself. In the particular context of the Code at the time of the 1954 Amendment, s 18 provided for punishments which could be inflicted under the Code. Among these was "Finding security to keep the peace and be of good behaviour". By the then s 19(6) and (7) an offender might be ordered to enter into a recognisance to keep the peace or be of good behaviour, and by s 19(8) a court instead of passing sentence might order the offender to be discharged upon his entering into a recognisance to appear and receive judgment when called upon. These provisions of s 18 and s 19have been repealed in the last decade. The Amendment in 1975 to substitute in s 688(2)(d) the notion of a punishment or order, instead of a sentence, was clearly intended to expand the scope for appeals by the prosecution. In
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- 1975 s 18 still enumerated punishments that could be inflicted under the Code. It is not the case, however, that there was, or is, any justification for limiting s 688(2)(d) to the punishments then listed in s 18. Then and now there were provisions in statutes of the State other than the Code, which constituted indictable offences and provided for their punishment. It has not been doubted that these non-Code punishments are within the reach of s 688(2)(d). Similarly, appeals involving punishments for federal offences.
78 The question posed by the submission of the respondent in this case falls to be determined, therefore, according to whether the non-parole period fixed by Scott J in the present case was part of the punishment imposed in respect of the respondent's conviction for the federal offence and, if not, whether the fixing of the non-parole period was otherwise an order made in respect of the respondent, within the meaning of s 688(2)(d) of the Code. The notion of "any punishment imposed" in s 688(2)(d) of the Code appears not to be limited or confined to any narrow understanding of a sentence, and is not governed by whether, strictly, for the purposes of the Crimes Act a non-parole period is a part of the sentence. It appears to me that, given the nature and effect of a non-parole period under the Crimes Act, on any ordinary understanding of the notion of a "punishment imposed", a non-parole period in respect of a sentence of life imprisonment is a material component of the punishment imposed on the respondent in this case for the purposes of s 688(2)(d). If that was not the case, it would further appear to me that the fixing of a non-parole period pursuant to s 19AB of the CrimesAct would also be within the concept of an order made in respect of a person convicted on indictment for the purposes of s 688(2)(d) of the Code even though it is not described as an order by the Crimes Act.
79 In my view, the appeal in the present case although confined to the non-parole period fixed by Scott J, is competent by virtue of s 688(2)(d) of the Code.
Conclusion
80 For the reasons given I would dismiss the appeal.
81 MILLER J: I have had the opportunity of reading in draft the reasons for judgment of both Parker J and Murray J. I agree with their Honour's reasons and I too would dismiss this appeal.
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