R v Tranter (No 2)
[2014] SASCFC 66
•3 July 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRANTER (NO 2); R v COMPTON
[2014] SASCFC 66
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Stanley)
3 July 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - RELEVANT MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES
Appeals against sentence.
The appellants were sentenced for their respective offences connected with an illegal importation of a border controlled precursor, pseudoephedrine, from Thailand to Australia. On 6 May 2010, police substituted an inert substance for the pseudoephedrine (the police substitution). Mr Compton was charged with “importing”, the acts relied upon occurring between 29 April 2010 and 6 May 2010 whereas Mr Tranter was charged with “attempting to import”, the acts relied occurring between 6 May 2010 and 14 May 2010. Mr Tranter appealed on grounds including that the Judge wrongly took into account in aggravation of penalty conduct by him prior to the police substitution which would have warranted a conviction for a different offence in breach of the principle in De Simoni v The Queen. Mr Compton appealed on grounds including that the death of his partner after his sentence of imprisonment was imposed would leave their young children without suitable care; and that his offending was less serious than that of Mr Tranter and the Judge erred in adopting the same starting point for both.
Held (the Court, allowing Mr Tranter’s appeal against sentence):
1. The sentencing remarks disclosed an unacceptable risk that a number of matters were incorrectly taken into account as positively aggravating Mr Tranter’s offending including that he had planned and organised the importing venture prior to the police substitution. In the circumstances, this was tantamount to finding him guilty of “importing” when the prosecution had positively eschewed laying that charge. The principle in De Simoni (as explained in Olbrich), that a sentence may not be increased by reference to conduct which would have warranted a conviction for a different offence had been infringed.
2. While it may generally be accepted that in proving the fault elements of the offence, the prosecution could rely upon the conduct of Mr Tranter prior to the police substitution as bearing upon the interpretation of the belief and intent with which he performed acts subsequent to the police substitution, her Honour erred in taking that previous conduct into account in sentencing in the circumstances of this case.
3. The De Simoni principle does not deny that there are limited ways in which past misconduct associated with present offending may be legitimately taken into account when sentencing. However, here there was insufficient focus in the sentencing remarks on the precise offence charged which gave rise to the real possibility that the offence of “attempt to import” was treated as aggravated by other uncharged conduct of Mr Tranter which in fact constituted the different and distinct offence of “import”, an offence that the prosecution positively elected not to lay against him.
4. The prosecution contention that the principle in De Simoni does not apply because the maximum penalty for the charge of “importing” and “attempting to import” is the same is erroneous. The principle in De Simoni as explained in Olbrich applies in such circumstances.
5. The sentence imposed by the District Court is set aside, and a head sentence of four years and six months imprisonment with a non-parole period of two years and nine months is imposed.
Held (the Court, allowing Mr Compton’s appeal against sentence):
1. The sentence was manifestly excessive in view of first, the fresh evidence that Mr Compton’s partner had died and that the welfare of their young children would be greatly jeopardised if he remained in custody; and second, the offending by Mr Compton was less serious than that of Mr Tranter and the Judge erred in adopting the same starting point.
2. Having regard to Mr Compton’s guilty plea and time already served in custody, the sentence imposed in the District Court is set aside, and a head sentence of two years and three months imprisonment is imposed. However, in the special circumstances of the case, Mr Compton is to be released forthwith pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) upon him entering a recognisance to be of good behaviour with various conditions.
Criminal Code 1995 (Cth) ss 11.1, 300.2, 307.12(1); Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) Sch 9; Crimes Act 1914 (Cth) ss 16A(2)(a), 20(1)(b); Customs Act 1901 (Cth) s 233B; Criminal Law Consolidation Act 1935 (SA) s 170, referred to.
R v De Simoni (1981) 147 CLR 383; R v Olbrich (1999) 199 CLR 270, applied.
El-Ghourani v The Queen (2009) 195 A Crim R 208, distinguished.
R v Lawless (Unreported, Court of Criminal Appeal of New South Wales. Gleeson CJ, Hunt CJ at CL and Blanch J, 24 June 1994), not followed.
Barbaro v The Queen (2014) 88 ALJR 372; Hili v The Queen (2010) 242 CLR 520; R v Bukvic (2010) 107 SASR 405; R v Delphin (2001) 79 SASR 429; R v Godfrey (1993) 69 A Crim R 318; R v Guiu (2002) 129 A Crim R 387; R v MacNeil-Brown (2008) 20 VR 677; R v Newman [1997] 1 VR 146; R v Reiner (1974) 8 SASR 102; R v Teremoana (1990) 54 SASR 30; R v Tran [2011] SASCFC 153; Tu v The Queen (2011) 205 A Crim R 566, discussed.
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; R v Tranter (2013) 116 SASR 452; Veen v The Queen (No 2) (1988) 164 CLR 465; Wong v The Queen (2001) 207 CLR 584, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"choice of charge", "context for sentence", "different and distinct offence", "conduct relied upon"
R v TRANTER (NO 2); R v COMPTON
[2014] SASCFC 66Court of Criminal Appeal: Kourakis CJ, Peek and Stanley JJ
THE COURT.
The appellants have each been sentenced for their respective offences connected with an illegal importation of a border controlled precursor from Thailand into Australia. They appeal against their respective sentences.
Mr Tranter stood trial with a co-accused, Mr Tuohy. The jury found Mr Tranter guilty of an offence contrary to s 307.12(1) and s 11.1, Criminal Code 1995 (Cth) (the Code) of attempting to import a marketable quantity of a border controlled precursor, pseudoephedrine (the precursor), between 6 May 2010 and 14 May 2010. The jury acquitted Mr Tuohy.
Mr Compton pleaded guilty to a charge contrary to s 307.12(1) of the Code of importing a marketable quantity of a border controlled precursor, pseudoephedrine, between 29 April 2010 and 6 May 2010.[1]
[1] As amended on 25 February 2013: See Tranter AB177.
Although the charges against Mr Tranter and Mr Compton are different, they both relate to what may be referred to as the same importation and were dealt with by the same sentencing Judge. The bases of their respective appeals are different and we will consider first, the appeal by Mr Tranter; second, the re-sentencing of Mr Tranter; third, the appeal by Mr Compton; and fourth, the re-sentencing of Mr Compton.
PART A: CONSIDERATION OF MR TRANTER’S APPEAL
The charges in the Information against Mr Tranter appear as follows:
COUNT ONE JOSEPH TUOHY
is charged with the following offence
STATEMENT OF OFFENCE
Import a marketable quantity of a border controlled precursor intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug; s 307.12(1) Criminal Code (Cth) 1995
PARTICULARS OF OFFENCE
Between 22 April 2010 and 6 May 2010, at Port Adelaide in the State of South Australia and elsewhere, Joseph Tuohy imported a marketable quantity of pseudoephedrine concealed within two marble stools.
COUNT TWO JASON OAKLEY TRANTER
is charged with the following offence
Attempt to import a marketable quantity of a border controlled precursor intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug; s 307.12(1) and 11.1 Criminal Code (Cth) 1995
PARTICULARS OF OFFENCE
Between 6 May 2010 and 14 May 2010, at Naracoorte in the State of South Australia and elsewhere, Jason Tranter attempted to import a marketable quantity of pseudoephedrine concealed within two marble stools.
On 24 May 2013, the trial Judge sentenced Mr Tranter to five years imprisonment and ordered that he was not eligible for parole until he had served three years imprisonment. The maximum penalty for the offence is 15 years imprisonment or a fine of $330,000 or both.
On 28 June 2013, this Court dismissed Mr Tranter’s appeal against his conviction (“the conviction appeal”).[2]
[2] R v Tranter (2013) 116 SASR 452.
Mr Tranter’s grounds of appeal against sentence
Mr Tranter’s grounds of appeal against sentence appear as follows:
1.The sentence is manifestly excessive.
2.The non-parole period is manifestly excessive.
3.The learned Sentencing Judge erred in failing to order the appellant’s conditional release or conditional release after serving a certain period in relation to the sentence of imprisonment imposed.
4.The learned Sentencing Judge erred in her evaluation of the level of seriousness of the appellant’s offending in that, inter alia, Her Honour:
4.1 erroneously had regard to conduct of the appellant prior to 6 May 2010 for purposes other than inferring his state of mind at the time of the picking up of the crate on 13 May 2010;
4.2 erroneously had regard to words and conduct of Compton, Tuffnel and others in the absence of the appellant prior to the picking up of the crate on 13 May 2010;
4.3 erroneously found for the purposes of sentencing that the appellant was involved in the importing of the crate into Australia prior to 6 May 2010;
4.4 failed to limit the evaluation of the seriousness of the appellant’s conduct to the conduct relied upon by the prosecution at trial that constituted the attempt offence;
4.5 failed to give any or adequate weight to the evidence of the value of the precursor bearing in mind in particular, Her Honour’s finding that the appellant was not involved in any proposed manufacture of an illegal drug; and
4.6 erroneously equated the appellant’s role with that of Compton relying on conduct prior to the 13 May and/or that involved principles of joint liability.
5.The Learned Sentencing Judge erred in arriving at the length of the non-parole period and/or determining not to order conditional release in that Her Honour inter alia:
5.1 erred in her evaluation of the level of seriousness of the appellant’s conduct;
5.2 erred in rejecting the submission that the appellant was unlikely to offend again upon the basis that the appellant maintained his innocence;
5.3 erred in failing to give any or adequate weight to the opinion of the psychologist as to the unlikelihood of the appellant reoffending;
5.4 erred in failing to give any or adequate weight to the factors relied upon by the appellant that indicated he had rehabilitated and/or was unlikely to offend again;
5.5 erred in failing to give any or any adequate weight to the appellant’s antecedents, family and business circumstances, evidence of good character, community contribution and the potential impact of his imprisonment on others and upon those who depended upon the continuation of his business interests.
We foreshadow that we find that the principle in R v De Simoni[3] has been infringed, that ground 4 of appeal is made out, and that a re-sentencing by this Court is required. Since all of the other grounds of appeal seek a re-sentencing, it is unnecessary to consider them. Our reasons follow.
[3] (1981) 147 CLR 383.
The case presented against Mr Tranter and the basis of his sentencing
The facts and circumstances of the case and the evidence adduced are dealt with in the judgments delivered on the conviction appeal.[4] However, some aspects of the case at trial should be noted here as they inform the correct approach to sentencing Mr Tranter.
[4] R v Tranter (2013) 116 SASR 452.
Mr Tranter was charged with attempt to import and the date particulars were “[b]etween 6 May 2010 and 14 May 2010”. Those particulars were important for they refer to the fact that on 6 May 2010, police fully substituted an inert substance for the imported pseudoephedrine tablets. The surrounding events were summarised in the conviction appeal thus:[5]
[47]On 5 May 2010, a crate with a bill of lading addressed to Tuohy arrived in Adelaide by sea from Thailand. It was inspected by Australian Federal Police and found to contain one marble bowl, one marble vase, and two marble stools in which were secreted 2,734.2g of tablets containing 557.8g of pure weight pseudoephedrine. On 6 May 2010, police substituted an inert substance for the tablets and the crate was allowed to be transported to Tuohy’s carwash where it was delivered on 13 May 2010.
[5] R v Tranter (2013) 116 SASR 452.
The relevant part of the prosecution submissions as to the nature of the case against Mr Tranter appeared in the conviction appeal judgment as follows:[6]
A brief summary of the acts by the two accused persons relied upon by the prosecution and the factual matrix on appeal is correctly summarised by the respondent in its written submissions thus:
9. In relation to Tuohy, the acts performed by him which were said to satisfy the first element of the offence included confirming his status as the consignee with Navia, discussing the required documentation for customs clearance with Navia, providing his PO box address to Navia in order to receive a quote for their services and receiving documents from FedEX regarding the shipment and causing them to be passed on to Navia.
10. In relation to the appellant, the acts performed by him which were said to satisfy the first element of the offence included collecting the crate from Tuohy’s car wash, transporting the crate on his ute, opening the lid of the crate at [a winery], taking the crate home and removing the substance from the secreted locations prior to the disposal of the broken marble stools and the empty crate at the dumpsite.
…
11. The appellant personally committed those acts after the substitution of an inert substance for the pseudoephedrine on 6 May 2010. The legal effect of the substitution was that it was “impossible” for him to “deal with the substance in connection with its importation”. Unknown to the appellant, the substance had been substituted for inert tablets during the course of its importation.
12. A person may be found guilty of attempting to commit an offence even if [sic] committed the offence attempted is impossible. Because of the substitution, it was impossible for the appellant to complete the import offence. Accordingly, the appellant was charged with attempt to commit the s 307.12 offence.
13. At trial, Tuohy did not dispute committing the acts which were said to comprise the first element of the offence. The issue at trial was his state of mind at the time he performed the acts. …
14. At trial, the appellant did not dispute that he committed some of the acts which were relied upon by the prosecution to prove the first element. He did not dispute that he collected the crate from the car wash, transported it on his ute, opened the lid at [the winery] and took the crate home. The issues at trial were (1) his state of mind when he performed those acts and (2) whether he removed the secreted substance from inside the stools prior to the disposal of items at the dumpsite. …
[6] (2013) 116 SASR 452. Extracted from [53] and [89]. Mr Tranter is here referred to as “the appellant”.
The definition of “import” and the charge of attempt
The Information charged Mr Tranter with an offence dependent upon proof that he performed certain acts (with the required “fault elements”) after the time of the police substitution on 6 May 2010. The charge was “attempt to import” rather than “import” because it was not possible to charge “import” where the acts by Mr Tranter relied upon were limited to acts post that police substitution. The reasons for this are more fully discussed in the conviction appeal but may be briefly summarised as follows. As from 20 February 2010, s 300.2 of the Code has defined “import” thus: [7]
import, in relation to a substance, means import the substance into Australia and includes:
(a) bring the substance into Australia; and
(b) deal with the substance in connection with its importation.
[7] See Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) Sch 9.
In his judgment on the conviction appeal, Peek J said of the offence of “attempt to import” post 20 February 2010:[8]
[86]The appellant is charged with attempt to “import” and the prosecution relies solely on acts alleged to have been performed after a full police substitution. In such circumstances, paragraph (a) cannot be pressed into use because, on the limited acts relied upon by the prosecution here, it cannot be said that the appellant did “bring [or send] the substance into Australia” and nor did he attempt to do so. If the appellant is to be convicted, it must be via paragraph (b) and that is exactly what the prosecution submitted here.
…
[95]A principle of importance in this case is that when an accused is charged with attempting to import, the prosecution may rely upon an attempt to commit an act which, if successfully performed, would constitute “import” by virtue of paragraph (b) of the definition of “import”.
[96]That being so, although the charge of attempt is quite adequately pleaded in the present Information, the effect of paragraph (b) of the definition of “import” is that the particulars are to be understood as the appellant “attempted to deal with the substance in connection with its importation”.
(Footnotes omitted; Emphasis in original)
[8] R v Tranter (2013) 116 SASR 452.
A contrast between the charge against Mr Tranter and the charges against Mr Touhy and Mr Compton
There is a clear contrast between the charge laid against Mr Tranter (on the one hand) and the charges laid against Mr Touhy and Mr Compton (on the other hand). The joint Information against Mr Tranter and Mr Touhy (reproduced above) shows that the prosecution chose to proceed against Mr Touhy for the substantive charge of import and that the date particulars were “[b]etween 22 April 2010 and 6 May 2010”, thus indicating that the acts relied upon occurred prior to the police substitution on 6 May 2010. Similarly, in relation to Mr Compton, the prosecution chose to proceed with the substantive charge of import and that the date particulars were “[b]etween 29 April 2010 and 6 May 2010”.[9]
[9] As amended on 25 February 2013: See Tranter AB177.
It is thus evident that the prosecution have taken a considered course in the laying of the particular charge against Mr Tranter. They have positively elected not to charge him with a charge of “import” based on events prior to the police substitution, although that is what they did do in the cases of Mr Tuohy and Mr Compton.
It is also to be noted that Mr Tranter has denied any wrongdoing either before, or after, the police substitution on 6 May 2010 and continues to do so. There can be no question of any concession or waiver on his part as to the correct basis of sentencing.
The sentencing Judge’s sentencing remarks in relation to Mr Tranter
Her Honour commenced her sentencing remarks by correctly delineating the parameters of the offence for which Mr Tranter was to be sentenced:[10]
A.Jason Oakley Tranter, you were found guilty by the jury of one count of attempting to import a marketable quantity of a border controlled precursor intending to use or believing that another person intended to use any of the substance to manufacture a controlled drug. The offence was committed by you between 6 and 14 May 2010. …
[10] Sentencing Remarks Tranter AB405. Letters have been added to the relevant paragraphs for ease of analysis.
Her Honour then referred to the fact that Mr Compton had pleaded guilty to the different offence of importing, that offence being committed by him between 29 April 2010 and 6 May 2010. Her Honour then addressed Mr Tranter as follows:[11]
B.Your involvement in this matter, Mr Tranter, involved considerable planning and organisation by you. This planning commenced with the discussions with Geoffrey Tuffnell, or ‘Sep’ as he was called in these proceedings. You were then given documents to enable the crate to be imported into Australia containing the border controlled precursor and thereafter arranged for the documentation to be completed by Mr Compton and the charges to be paid to Navia, the import agents. I am not going to address all of the evidence that supports these findings but it is to be found in the telephone communications between you and various parties and on the laptop that was in your possession amongst other things.
C.The charge of attempted importation related to you physically collecting the crate from Mr Tuohy’s carwash and ultimately transporting it to your home in Neuarpurr. It was there that the marble stools, containing what you thought was the border controlled precursor, were unpacked and the substance was then disposed of by you or others. It has never been recovered. Fortunately the AFP and customs had intervened to substitute an inert substance so that the material that you or others disposed of was not a harmful substance. You are not entitled to any credit for this fortunate event. (Emphasis added)
[11] Sentencing Remarks Tranter AB406.
Her Honour then referred at some length to Mr Tranter’s personal circumstances. Her Honour then stated:[12]
D.Your part in this offending was serious. In all you attempted to import 550g of pseudoephedrine that could be used to manufacture 437g of methyl-amphetamine hydrochloride or 352g of methylamphetamine base. When these drugs reached street level they could be sold for hundreds of thousands of dollars. I do not need to tell you the devastating effects that these drugs have on the community and the individuals who consume them.
E. The organisation of importing these drugs was substantial. It involved sourcing it in Thailand or elsewhere and the involvement of many individuals to pay the fees and organise the importation. There must have been a substantial amount of money to have been made out of your offence and even if it is not immediately obvious why you would have embarked upon this offending, you undoubtedly did, using your considerable business acumen to assist you.
F.There has been no suggestion during this matter that you were to be involved in the manufacture of the controlled drugs and I take that into account.
(Emphasis added)
[12] Sentencing Remarks Tranter AB410.
Analysis of the Judge’s sentencing remarks
The Judge’s initial approach at paragraph A was obviously appropriate. However, paragraph B is problematic in that the introductory words “Your involvement in this matter” suggest that this matter is the subject matter of the sentencing proceedings concerning both Mr Compton and Mr Tranter.
Clearly, what her Honour refers to in paragraph B as “these findings” relate to activities by the appellant well prior to the police substitution and suggests that the appellant’s involvement in this matter was wider than the offence charged against him, the date particulars of which were limited to the period between 6 May 2010 and 14 May 2010.
It is true that her Honour at paragraph C did go back to the particular charge, referring to the “charge of attempted importation”. However, paragraphs D and E, which are to be read together with the preceding paragraphs, strongly suggest that her Honour considered that the appellant was to be sentenced for all of his activities in relation to the importation and particularly including the activities set out and referred to in paragraphs B, D and E.
At paragraph D, the introductory words “Your part in this offending was serious” predicate an overall “offending” in which the appellant played a part. Her Honour proceeds to state that that part was a serious part. The natural meaning of what follows in paragraph D is that it refers to the matters initially set out in paragraph B and then continues to address a time period prior to the occurrence of the police substitution.
At paragraph E, again it is the matters set out in paragraph B that are being referred to. But more than this, her Honour at paragraph E explicitly refers to organising the importation from the Thailand end (“sourcing it in Thailand or elsewhere and the involvement of many individuals to pay the fees and organise the importation”). It is directly in this context that her Honour refers to the appellant’s activities in Thailand and the use of his considerable business acumen to organise the criminal venture. It is clear that paragraph E specifically pronounces the appellant’s activities to have been of critical importance to the importation venture from the very beginning.
At paragraph F, her Honour correctly observed that she would not sentence on a basis that Mr Tranter was involved in the manufacture of the controlled drugs. However, that can in no way rectify what had gone before. Indeed, if anything, it tends to suggest in the fashion of expressio unius that this is the only matter that her Honour excludes from consideration.
The principle in R v De Simoni
In R v De Simoni (De Simoni), Gibbs CJ (Mason and Murphy JJ concurring) stated:[13]
… [T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
[13] (1981) 147 CLR 383, 389.
The principle in De Simoni was more recently confirmed by the High Court in R v Olbrich (Olbrich), where Gleeson CJ, Gaudron, Hayne and Callinan JJ stated:[14]
[18]Finally, inquiring about what was done or intended by a person who imported drugs into Australia (apart, that is, from the acts which constitute the importation) will not always be relevant to sentencing that offender for the crime of importation. The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of other offences in this country. But it would be quite wrong to sentence an offender for crimes with which that offender is not charged.[15]
(Emphasis added)
[14] (1999) 199 CLR 270, 278-279.
[15] Their Honours cited R v De Simoni at this point.
A consideration of the Judge’s sentencing remarks by direct reference to the remarks of the High Court in De Simoni and Olbrich does appear to indicate that the principle in De Simoni has been infringed.
The respondent essentially advanced three main contentions in support of the approach taken by the Judge. The first contention was that in proving the “fault elements” of the offence, the prosecution relied upon the conduct of Mr Tranter after 6 May 2010 as well as evidence of Mr Tranter’s acts prior to that date.[16] The second contention was that a sentencing judge is entitled to refer to the entirety of what occurred as setting the context to the consideration of the culpability of the offender.[17] The third contention was that the principle in De Simoni does not apply because the maximum penalty for the charge of attempted importation and importation is the same.[18] We proceed to consider those contentions.
[16] Respondent’s Summary of Argument [23].
[17] Respondent’s Summary of Argument [28].
[18] Respondent’s Summary of Argument [30].
The respondent’s first contention
The respondent’s first contention may be generally accepted but it has little present relevance. The jury could only convict Mr Tranter if satisfied beyond reasonable doubt as to his guilt based on the conduct alleged against him post the police substitution on 6 May 2010. The relevance of proven acts of Mr Tranter prior to 6 May 2010 at trial was that the jury, when considering with what belief and intent Mr Tranter performed particular acts after 6 May 2010, could take into account all of his activities, including those prior to 6 May 2010. This was summarised on the conviction appeal by Peek J thus:[19]
[138]The prosecution did not rely upon the doctrines of complicity and common purpose or joint commission to establish the criminal liability of either accused; indeed, the prosecution only relied upon conduct of the appellant occurring after 6 May 2010. However, that is not to say that the prosecution was precluded from submitting that in considering the belief and intent that accompanied the appellant’s acts after 6 May 2010 the jury could take into account the acts of the appellant that the jury found proven prior to that date. The appellant was well aware of that position throughout the trial and the Judge directed that the jury could proceed in that manner on a number of occasions.
…
[140]…[H]er Honour correctly directed that in determining whether the appellant did have the required intention, one can look at the appellant’s actions before and after the relevant acts of the appellant between 6 May 2010 and 14 May 2010. …
(Footnotes omitted; Emphasis added)
[19] R v Tranter (2013) 116 SASR 452, 485.
There is a clear difference between the evidence that may be adduced at trial to prove a charge and the basis upon which the Judge may later sentence if the defendant is convicted. To take an obvious analogy, if the prosecution lead at trial similar fact evidence of other (uncharged) murders in aid of proof of the offence of murder charged in the Information, the convicted defendant is not to be sentenced for committing the uncharged murders even if the Judge considers that he or she is guilty of them.
The respondent’s second contention
The respondent’s second contention was that the particularisation of Mr Tranter’s conduct after 6 May 2010 for the purpose of the first element of the offence did not preclude the sentencing Judge from considering his acts prior to that date in order to determine his level of involvement in the (attempted) importation; that her Honour was required by s 16A(2)(a), Crimes Act 1914 (Cth) to take into account so far as known to the court the nature and circumstances of the offence; and that her Honour was entitled to refer to the entirety of what occurred as setting the context to the consideration of the culpability of the offender (relying on R v Guiu (Guiu),[20] El-Ghourani v The Queen (El-Ghourani),[21] R v Tran (Tran)[22]). The respondent further submitted that it was relevant that when Mr Tranter collected the crate from the carwash on 13 May 2010, he had known about what was in the crate for weeks and had not come into the venture for the first time on that date.
[20] (2002) 129 A Crim R 387, 394-395 [30], 397 [36] (Greg James J).
[21] (2009) 195 A Crim R 208, 217 [33]-[37] (Spigelman CJ).
[22] [2011] SASCFC 153.
As to this contention, much will depend on the meaning and relevance of “setting the context” and on the extent to which the principle in De Simoni will foreclose any aggravation of sentence despite the existence of such “context”. We first consider some decisions of the New South Wales Court of Criminal Appeal upon which the respondent relies and then some decisions of this Court.
The respondent relies upon the decision in Guiu,[23] particularly at paragraphs [30] and [36] in the judgment of Greg James J. However, paragraph [30] does no more than summarise the appellant’s submissions and paragraph [36] again is largely couched in terms of the appellant’s submissions:[24]
[36]Those submissions concede that it was open to the sentencing judge to refer to the entirety of what had occurred (see Laurentiu (1992) 63 A Crim R 402 at 415-416 per Wood J) but as setting the context to the consideration of the culpability of the offender in her doing that which supported the charge against her.
[23] (2002) 129 A Crim R 387.
[24] (2002) 129 A Crim R 387, 397.
Greg James J then proceeded to outline the Crown submissions:[25]
[37]It was submitted on behalf of the Crown that her Honour’s findings were open to her when considering the entirety of the transaction and that the proper focus of her Honour’s inquiry was on “the applicant’s conduct and knowledge relative to the act of collecting the substitute for the narcotics and thus attempt[ing] to possess the original consignment”. It was submitted that it was necessary for the sentencing judge to determine whether the applicant’s role was to do no more than collect the drugs or whether it entailed, as was found, some greater degree of criminal responsibility. It was contended that it was open for the trial judge to form a view that a person in the position of the applicant bears greater responsibility than the person who brought the narcotics into the country, and that thus the sentence was appropriate. Reliance was placed on the decision of this Court in Lawless …
[25] R v Guiu (2002) 129 A Crim R 387, 397.
His Honour then reproduced part of the judgment in R v Lawless (Lawless)[26] and stated:[27]
[38]So far as those observations do not accord with the approach of the High Court in Olbrich, they are no longer to be followed. That portion of the judgment as might suggest that the principles in De Simoni cannot apply because the offences have the same maximum sentence and that all the conduct of the prisoner may be taken into account must be qualified by reference to the principles in Olbrich in which specific reference was made to De Simoni in the joint judgment as supporting the principles then enunciated.
[39] I am therefore unable to accept the submissions of the Crown. …
[26] (Unreported, Court of Criminal Appeal of New South Wales, Gleeson CJ, Hunt CJ at CL and Blanch J, 24 June 1994).
[27] R v Guiu (2002) 129 A Crim R 387, 398 (Greg James J).
On close analysis, the case of Guiu offers very little support for the broad position sought to be taken by the respondent in the present case. While the later decision in El-Ghourani[28] may appear to be more helpful to the respondent in some respects, it is a very different case to the present. The appellant there was charged with attempting to possess a marketable quantity of a border controlled drug. Spigelman CJ (with whom James and Simpson JJ concurred) stated:[29]
[33]As the authorities to which I have referred indicate, the act of possession can be attended by a wide range of moral culpability. The circumstances in which a person charged with a possession offence came into possession of the offending matter, and what it was that the person intended to do with that matter, can all be relevant to determining the degree of moral culpability attached to the act of possession itself.
[34]In my opinion, her Honour made permissible use of the applicant’s involvement in the overall transaction. Indeed, he himself gave evidence to the effect that he was involved in a drug smuggling syndicate. The issue her Honour had to resolve was the degree of his involvement. In assessing the evidence in this respect, her Honour did not lose the focus on the particular charge, namely that of an attempt to possess.
[35]Her Honour’s focus appears in the express statement her Honour made that she would keep the nature of the charge “firmly in mind”. Moreover, the overall context of the remarks on sentence, particularly the passage set out at 9 above, indicates that her Honour did not fail to maintain the focus. The passage commences with a statement: “I do not accept that he was merely to receive the package and then hand it on to others” (emphasis added). The reference to “receive” maintains the focus on possession. Similarly, in the second last sentence of the paragraph her Honour said: “He had the important role of arranging for the receipt of the drugs into Australia and was the person who was to retrieve them from the frames” (emphasis added). The reference to “receipt” also maintains the focus on possession.
[36]In both of the passages set out in the previous paragraph, the period in which an act of “possession” could be said to continue was identified by her Honour in the reference to the fact that it was the role of the applicant to “remove them from the frames” and to “retrieve them from the frames”. The possession was continuing and indicated a greater degree of involvement than merely an act of “passing the parcel”.
[37]Her Honour was focused on the issue of possession as she said she would be and was concerned to identify the moral culpability of the applicant. His involvement in the overall transaction was not only relevant and material to this issue but was of determinative significance. Her Honour approached the sentencing task without any error of principle. (Emphasis added)
[28] (2009) 195 A Crim R 208, 217 [33]-[37] (Spigelman CJ).
[29] El-Ghourani v The Queen (2009) 195 A Crim R 208, 217.
It can be seen that both the sentencing Judge and the Court of Criminal Appeal paid particular attention to the nature of the possession by the appellant. Thus, his earlier conduct was relevant to determining the nature of the possession offence that he committed by reference to such questions as: was it a spontaneous, somewhat pointless and perhaps naïve possession or (on the other hand) was it a calculated, targeted and sinister possession?
The Court of Criminal Appeal carefully scrutinised the remarks of the sentencing Judge to determine whether her Honour had maintained sufficient focus on the offence of possession in contradistinction to other possible offences committed by the appellant. The Court decided that the Judge had maintained sufficient focus and it is not necessary to consider that decision further. But the approach of the sentencing Judge in El-Ghourani may usefully be contrasted with the approach of the Judge in the present case, for here it does seem that there was too little focus on the precise offence charged, with the real possibility that that offence was in effect treated as aggravated by other conduct of the appellant which in fact constituted a different and distinct offence.
During the course of the present appeal hearing, the respondent also referred to the more recent New South Wales decision of Tu v The Queen.[30] The appellant was there found guilty of two offences under the Customs Act 1901 (Cth) s 233B; the first for attempting to obtain possession of prohibited imports (“the drugs”). Customs officers found the drugs hidden in a container imported from China; they substituted a harmless substance and delivered the shipment to the consignment address.[31] The Judge inferred that the appellant had participated at the China end of the operation and that he had a greater role than a co-offender, Ms Zhang, and found the offending to be within the “worst case” class and imposed the maximum penalty of 25 years imprisonment. The Court was of the view that the only explanation for the Judge’s classification of the appellant’s offending as within the “worst case” class was his Honour’s findings of participation by the appellant in the importation itself. Thus, McCallum J (with whom McClellan CJ at CL concurred) stated:[32]
[30] (2011) 205 A Crim R 566.
[31] The second offence was that of possession of trafficable prohibited imports relating to a further quantity of the same drug found in the applicant’s apartment.
[32] Tu v The Queen (2011) 205 A Crim R 566, 586-588.
[127]In my view, all of those matters were equivocal so far as any comparative analysis is concerned. The applicant gave evidence that he had travelled to China several times but that evidence on its own was not capable of sustaining an inference as to any participation on the part of the applicant at the China end of the operation. Even if such an inference were open, it should not have been taken into account, for the reasons stated below.
…
[137]The applicant relied on the judge’s remarks set out above and, in particular, the words “but as far as importing of trafficable quantities of drugs is concerned it must be regarded in that way [as an offence of the worst type]”. It was submitted that those remarks reveal that his Honour sentenced the applicant on the basis that he was complicit in the importation of the drugs, an offence with which he was not charged. The judge’s approach was said for that reason to offend against the principles stated in the decision of the High Court in R v De Simoni (1981) 147 CLR 383; 5 A Crim R 329.
[138]The common law principle reiterated in De Simoni is that circumstances of aggravation not alleged in the indictment cannot be relied upon for the purpose of sentencing if those circumstances could have been made the subject of a distinct charge: per Gibbs CJ at 389.7; 333. The principle was implicitly reaffirmed in R v Olbrich (1999) 199 CLR 270; 108 A Crim R 464 at [18], where De Simoni was cited as authority for the unexceptionable proposition that “it would be quite wrong to sentence an offender for crimes with which that offender is not charged.”
[139]The applicant noted that, contrary to what appeared to be suggested in the submissions of the Crown, the principle applies even where the crime charged and the crime not charged carry the same maximum sentence: R v Guiu (2002) 129 A Crim R 387 at [38] per Greg James J, Barr J agreeing at [7]; and see Hodgson JA at [3]. It was stated in that case that, to the extent that observations to the contrary made by Hunt CJ at CL in R v Lawless (1994) (unreported, Court of Criminal Appeal, NSW, No 60808 of 1992, 24 June 1994) do not accord with the approach of the High Court in Olbrich, they are no longer to be followed.
[140]As noted by the Crown, the judge’s remarks in the present case, read as a whole, disclose that his Honour had clearly in mind that the offences for which he was sentencing the applicant were possession offences. However, absent the references to matters only relevant to complicity in the importations, it is difficult to see what basis there was for the judge’s conclusion that the applicant’s culpability warranted the maximum sentence on either count.
[141]Unquestionably the amounts of the drug involved were very large but that is not the determinative consideration. To the extent to which it can be ascertained, the role played by the offender is also of great importance in assessing the objective criminality of the offence: Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1 at [255] per McClellan CJ at CL. Nothing in the facts on which the applicant stood to be sentenced warranted the conclusion that the role he played, which essentially entailed sorting the cartons at the warehouse on the day of his arrest, was such as to place his culpability at the top end of the calendar.
[142]The Crown submitted that it was appropriate for the judge to have regard to “the entire transaction”. As correctly noted on behalf of the applicant, however, that approach must yield to the principle stated in De Simoni. To the extent that the entire transaction brought into consideration complicity in the importation by way of aggravation, such conduct could plainly have been made the subject of a distinct charge and accordingly ought not to have been taken into account. When that conduct is excluded from consideration, what remains is recognisably outside the worst category. (Emphasis added)
Again, on balance, the case of Tu v The Queen tends to support the position of the present appellant, Mr Tranter, when the sentencing remarks here are considered in detail.
The respondent’s third contention
The respondent’s third contention was that the principle in De Simoni does not apply in the present case because the maximum penalty for the charge of attempted importation and importation is the same. The respondent on the hearing of the appeal, presumably in reliance on the judgment of Hunt CJ at CL in R v Lawless,[33] stressed that in the present case the maximum penalty for the charge of attempt to import is exactly the same as that for the substantive offence of importing and submitted:[34]
… So one can’t even get to the first stage of De Simoni that there was a higher offence that could have been charged because the only other offence that could have been charged was import prior to 6 May as an alternative and it has exactly the same penalty and it involved in this case exactly the same substance.
[33] (Unreported, Court of Criminal Appeal of New South Wales, Gleeson CJ, Hunt CJ at CL and Blanch J, 24 June 1994).
[34] Appeal Transcript T49.
However, it has been seen in the course of consideration of the New South Wales decisions above that although that submission might previously have been supported by the judgment of Hunt CJ in Lawless,[35] since the subsequent High Court decision in Olbrich it has been stressed that such a limited construction of De Simoni is incorrect.[36]
[35] (Unreported, Court of Criminal Appeal of New South Wales, Gleeson CJ, Hunt CJ at CL and Blanch J, 24 June 1994).
[36] R v Guiu (2002) 129 A Crim R 387, 398 [38] (Greg James J), 388 [7] (Barr J), 388 [3] (Hodgson JA); El-Ghourani v The Queen (2009) 195 A Crim R 208, 216 [27]-[30] (Spigelman CJ, with whom James and Simpson JJ concurred); Tu v The Queen (2011) 205 A Crim R 566, 570 [19] (McCallum J, with whom McClellan CJ at CL concurred).
Consideration of the application of the principle in De Simoni to the present appeal
The principle in De Simoni does not deny that there are limited ways in which past misconduct associated with present offending may be legitimately taken into account when sentencing.
In R v Tran, Gray J observed:[37]
[28]The following may be accepted as established; the context and surrounding circumstances include a consideration of whether the act charged is isolated or forms part of an ongoing course of conduct; the offence for which a defendant is to be sentenced may take its colour from, and its character is affected by, the context in which it was committed; a sentencing Judge is entitled to take into account the context and the surrounding circumstances of a crime; the context and surrounding circumstances may be brought to account in considering whether to extend leniency so as to reduce what would otherwise be a proper sentence; the commission of other crimes not asked by a defendant to be taken into account cannot be used to increase what would otherwise be a proper sentence and a defendant is not to be punished for conduct which is said to be criminal unless the defendant is charged with a relevant offence and has the opportunity to defend the charge.
[29]When uncharged acts are of a similar character to the offence for which the defendant is to be sentenced, they may have relevance to several sentencing considerations that do not amount to matters of aggravation. For example; to militate against leniency on the basis of the offence being isolated or an aberration, to consider the importance of personal deterrence in the sentencing process; to indicate the defendant’s moral culpability; to assess the defendant’s prospects of rehabilitation; to diminish the importance of a lack of prior convictions when such offending has been occurring for some length of time; and finally, as part of the defendant’s “character and antecedents” pursuant to section 10 of the Sentencing Act. These matters are relevant to sentencing as they may indicate that a defendant has had time to reflect on his offending and yet has determined to proceed with the subject offence; has engaged in the subject offending in an organised and planned manner; intends to continue with the offending; or was motivated by greed.
[30]These considerations are all matters relevant to the assessment of personal deterrence, prospects of rehabilitation and the protection of the community. As such, they are relevant to the determination of the appropriate sentence for the offence and for the particular defendant. They are factors that may lead to the imposition of a more severe sentence than might have otherwise been imposed. It does not follow however, that the sentence to be imposed will be increased beyond that which is proportionate to the offence for which the defendant is to be sentenced. It does not follow that the defendant is being sentenced for uncharged acts.
[37] [2011] SASCFC 153 [29]-[30].
Of course, these remarks rightly emphasise in the initial paragraph the exclusionary rule to which the following paragraphs are subject. It is to be stressed that the tail must not be permitted to wag the dog; it is of primary concern that uncharged previous discreditable conduct must not be used to positively aggravate the offending charged and thereby positively increase the sentence. As Duggan J (with whom Mohr J concurred) stated in R v Godfrey: [38]
… Conduct amounting to the commission of other similar offences can only provide a basis for increasing the sentence if the accused is found guilty of those offences at trial, pleads guilty to them, asks for them to be taken into account in fixing penalty, or agrees that counts in the information are to be regarded as representative offences.
This is not to say that the sentencing judge cannot take into account the context and surrounding circumstances of the crime charged. It may be that in a particular case the court will be required to consider whether it is entitled to extend leniency on the basis that it is dealing with an isolated offence. But it cannot increase the sentence by reason of a finding on a disputed facts hearing that offences not admitted or asked to be taken into account have in fact been committed. To do this would be to deprive the accused of a proper trial on those counts.
[38] (1993) 69 A Crim R 318, 322-323.
The fact is that a matter such as the determination of whether positive leniency will be extended in a particular case by reference to previous (uncharged) behaviour raises real tensions between opposing principles of law. To take the matter of extending positive leniency as an example, for South Australia the locus classicus is the following statement of Bray CJ in R v Reiner (Reiner):[39]
On the other hand the learned Judge was entitled to take into account the context and the surrounding circumstances of the crime and in particular it was permissible, relevant and important for him to know whether the act charged was an isolated offence or whether it was only, to use the metaphor often adopted, the tip of an iceberg. The surrounding circumstances of the crime may be taken into account in considering whether or not to extend leniency so as to reduce what would otherwise be a proper sentence but the commission of other crimes not asked to be taken into account under the procedure just mentioned cannot be used in order to increase what would otherwise be a proper sentence. As I have said on another occasion, the distinction between refraining from taking something off and adding something on when there is no fixed normal penalty may seem, in some cases, to approach the metaphysical. But it is a recognised and time-honoured distinction for all that.
[39] (1974) 8 SASR 102, 105.
In the later decision in R v Teremoana,[40] Cox J, although perhaps not embracing the metaphysical, again stressed that this area often involves difficult questions of degree. His Honour stated:[41]
… As a general rule, the judge who is sentencing a person who has been convicted of an offence will have regard to all of the circumstances surrounding the offence and this may include its impact upon other people. Care must be taken, however, not to take into account actions of the defendant, however reprehensible they may have been, that were really irrelevant to the crime charged, and special caution is needed if the result of taking something into account will be to punish the defendant for an offence of which he was not been convicted. … (Emphasis added)
[40] (1990) 54 SASR 30.
[41] R v Teremoana (1990) 54 SASR 30, 36.
After reference to various cases (including De Simoni) his Honour stated:[42]
Applying these principles to the facts of a particular case has sometimes caused difficulty. Plainly if the defendant has already been acquitted by the jury on one particular count the judge may not have regard to allegations distinctive to that count when sentencing the defendant on other counts on which he has been found guilty. The situation will be essentially the same where he pleads guilty to one count and the Crown decides not to press a related charge of a serious offence on the same information, or indeed where a related charge could have been laid but in fact was not. See, for example, R v King (1925) 25 SR (NSW) 218; Lovegrove v The Queen [1961] Tas SR 106; R v Toomey [1964] Crim LR 419 and R v Boney; Ex parte Attorney-General [1986] 1 Qd R 190. On the vexed matter of representative counts, see R v Hutchison [1972] 1 WLR 398; R v Price [1979] Crim LR 468; and R v Singh and Singh [1981] Crim LR 509, and the local case of R v Reiner (1974) 8 SASR 102, and also the Victorian case of R v Wright (1974), cited in R Fox and A Freilberg, Sentencing; States and Federal Law in Victoria (1985), 2.322-2.324. However, it is certainly not a universal rule that the judge, when sentencing for the offence specifically charged in the information, may never have regard to relevant actions of the defendant that, strictly speaking, constituted separate offences. If they were offences of lesser gravity than the offence of which the defendant has been convicted, then it will be a matter of degree and fairness whether they may properly be taken into account as a part of the circumstances surrounding the offence charged. If a burglar is disturbed in the course of ransacking a house, and seriously assaults the victim, the assault should be separately charged and not regarded as a mere matter of aggravation of the burglary. R v Parsell (1980) 28 SASR 369. On the other hand, relatively minor indecencies that are directly associated with an act of rape, though serious enough in themselves, are often not separately charged but are nevertheless taken into account by the sentencing judge as circumstances of aggravation. (Emphasis added)
[42] (1990) 54 SASR 30, 37-38.
As referred to above, a portion of his Honour’s statement (“If they were offences of lesser gravity … then it will be a matter of degree and fairness whether they may properly be taken into account …”) needs adjustment in the light of the High Court decision in Olbrich. However, from the point of view of the present appellant, the judgment of Cox J is useful for it strongly indicates that the present case, as a matter of degree, would have been decided in his favour even before Olbrich.
In the later decision in R v Delphin (Delphin),[43] this Court took a firm view of the applicability of the De Simoni principle in the context of the offence of serious criminal trespass contrary to s 170, Criminal Law Consolidation Act 1935. The Court noted that this offence is completed at the point of entry into the subject premises and if further offences are later committed inside the premises, they should usually be separately charged. In Delphin, the appellant was charged simply with serious criminal trespass in a place of residence but property to the value of $3,520 was in fact stolen. Debelle, Bleby and Wicks JJ observed:[44]
[39]In this case the commission of the serious criminal trespass occurred on entry. The intention could not have covered the individual items alleged. It could only cover a general intention to steal. A separate, identifiable and serious offence appears to have been committed in addition to the serious criminal trespass. The appellant was not charged with that offence, and it would be wrong to take the extent of that larceny into account in this particular case in determining the penalty for the serious criminal trespass.
[40]It follows that where the prosecution alleges that a substantive offence has been committed on the premises subsequent to the serious criminal trespass, where the intention accompanying the trespass is not identical with that relevant to the substantive offence, and where the circumstances of that offence are to be taken into account in sentencing, the substantive offence must be separately charged. The circumstances cannot be taken into account merely as background circumstances to a charge of serious criminal trespass.
[43] (2001) 79 SASR 429.
[44] R v Delphin (2001) 79 SASR 429, 439.
In coming to that view, their Honours reproduced with approval a lengthy passage from the judgment of the Victorian Court of Criminal Appeal in R v Newman[45] in which Winneke P (with whom Hayne JA and Crockett AJA agreed) considered the application of the De Simoni principle in some detail. Their Honours concluded:[46]
Although it has been said that the application of the principle sometimes requires a sentencing judge to adopt an artificial and, at times, quite unrealistic view of the facts (cf R v Wyllie [1989] VR 21 at 32), it seems to me that, in a case like the present, the matter is very much in the hands of the Crown. If it desires the judge to have the flexibility, in imposing sentence, of dealing with the offender for aggravating circumstances which in themselves amount to a discrete and serious offence, then it is within the Crown’s capacity to shape its presentment accordingly. In this case it chose not to do so. …
[45] [1997] 1 VR 146.
[46] [1997] 1 VR 146, 151.
This passage has an important bearing on the present case. As noted above, it would have been quite possible to charge Mr Tranter with importing (prior to the substitution) and if he had been convicted that conviction would have captured all of the pre-substitution matters to which her Honour referred. However, the prosecution positively elected not to do so.
During the hearing of the appeal, senior counsel for the respondent was asked why Mr Tranter was not charged with an offence of importing (prior to the substitution) as well as the present charge (or as an alternative charge if that were considered more appropriate). No substantial answer was given and no legal impediment to such a course was suggested. In any event, the intractable fact remains that while the prosecution considered it quite possible to lay charges of importing here (vide Messrs Tuohy and Compton) they positively elected not to do so in the case of the appellant, Mr Tranter.
Finally, we refer to the more recent decision of this Court in R v Bukvic[47] which perhaps places matters in a slightly more broad perspective.
[47] (2010) 107 SASR 405.
The appellant there was apprehended in an airline queue at Adelaide Airport on 12 January 2007 with a suitcase containing 4.571 kilograms of cannabis, with a value between $22,150 and $35,239. He was booked on a flight to Sydney and on a flight to return to Adelaide the same day. In the period from 1 August 2005 to 21 February 2007, a Ms Schmaal had booked numerous interstate airline flights which generally involved a same or next day return for a small group of people including the appellant. The appellant eventually pleaded guilty to the offence of attempting to traffic in a controlled drug on 12 January 2007, contrary to ss 11.1(1) and 302.4(1) of the Code. The prosecution submitted that the appellant should be sentenced on the basis that he had also acted as a drug courier on flights in October, November and December 2006. By contrast, the appellant submitted that the offending on 12 January 2007 was an isolated offence. In the event, the sentencing Judge decided not to take into account other offending as a matter of positive aggravation on the basis that the prosecution had not proven beyond reasonable doubt that such offending had occurred. At the same time, his Honour also decided that he would not accept as a matter of positive mitigation that the offending on 12 January 2007 was an isolated offence and accordingly would not extend positive leniency on that basis.
White J (with whom Doyle CJ concurred) held that it was not open to treat the alleged previous conduct as a matter of positive aggravation even if the prosecution had proven beyond reasonable doubt that it had occurred. Thus, his Honour observed:[48]
[37]The judge’s consideration of the parties’ submissions concerning the appellant’s previous conduct required the application of two important sentencing principles. The first is that the prosecution has the onus of establishing any aggravating circumstance which it alleges and offenders have the onus of establishing any mitigatory matter which they allege. That does not mean that all matters put before a judge are to be characterised as favourable or adverse, or as aggravating or mitigatory. Some matters may be properly known to, and relied upon by, a sentencing judge which fit into neither category.
[38]The second principle is that an offence is not to be regarded as aggravated by some conduct which would constitute a different offence for which the offender has been neither charged nor convicted. If the prosecution does wish to rely on the aggravating factor in those circumstances, it must bring a charge of the separate offence, and have the accused tried on that charge. In this way the second principle qualifies the operation of the first.
[39]Because the earlier conduct relied upon by the prosecution in the present case involved the commission of offences, the application of the second principle meant that the appellant’s earlier flights could not be regarded as circumstances of aggravation so as to justify the imposition of a sentence going beyond that which was appropriate for the 12 January 2007 offence, considered by itself. Even if the judge had been satisfied beyond reasonable doubt, on the material before him for the purposes of sentencing, that the appellant had committed offences on those flights, he could not have taken that into account so as to increase the sentence which may otherwise have been imposed. …
(Footnotes omitted; Emphasis added)
[48] R v Bukvic (2010) 107 SASR 405, 413-414.
However, on the other hand, White J held that the rejection of such a positively aggravating matter did not mean that the appellant’s submission that the offending on 12 January 2007 was an isolated offence should be accepted. His Honour, applying Reiner, concluded:[49]
[41]The fact that the uncharged conduct could not be used so as to lead to the imposition of a greater sentence did not preclude it being used to deny the appellant any leniency which may otherwise have been possible. On the contrary, it was open to the judge to deny him leniency on that basis. …
…
[49]In the present case, the judge did not use the material concerning the appellant’s previous conduct in a way which was adverse to him, in the sense discussed in the authorities. The appellant’s own submission that the offence committed on 12 January 2007 was an isolated act was tantamount to a plea of his good character. In effect (although not in express terms) the appellant asked the judge to sentence him on the basis that his incursion into crime on 12 January 2007 was an isolated act, possibly resulting from poor judgment or from his succumbing to momentary temptation but, in reality, an act which was out of character for him. The prosecution disputed that contention. The judge was asked to resolve the dispute “on the papers”.
[50]As the matter asserted by the appellant was mitigatory in nature, the appellant had the onus, as the judge correctly found, of establishing on the balance of probabilities the circumstance which he asserted. There was ample evidence justifying the judge’s rejection of the appellant’s claim. Having rejected the claim, the judge was not bound to sentence the appellant on the basis that it was correct, simply because it was not open to the prosecution to prove the contrary.
[Footnotes omitted]
[49] R v Bukvic (2010) 107 SASR 405, 414, 417.
Kourakis J (as he then was) expressed the matter thus:[50]
[69]When a court’s sentencing power is enlivened by the conviction of an offender on one offence, the court cannot take the opportunity to impose punishment for another offence of which he or she has not been convicted but which has come to the attention of the court. If the objective and personal circumstances of the offence and the offender (which I shall refer to as the totality of the known circumstances) on which the offender is to be sentenced warrant a particular penalty, a greater penalty cannot be imposed because the proved or admitted facts show that he or she has committed one or more other offences. …
[50] R v Bukvic (2010) 107 SASR 405, 419.
Conclusion as to ground 4 of Mr Tranter’s appeal
The sentencing Judge was entitled to find, and to sentence on the basis, that Mr Tranter had committed the offence of which he had been convicted for reasons of commercial gain and that his offending was not spontaneous, pointless or naïve but rather was calculated, targeted and sinister.
However, we conclude that Mr Tranter has nevertheless made out ground 4 of appeal on the basis that there is an unacceptable risk that her Honour incorrectly took a number of matters into account as positively aggravating Mr Tranter’s offending, in particular her findings that he had positively planned and organised the importing venture prior to the substitution on 6 May 2010 as set out in the paragraphs designated B and E in her remarks reproduced above. In the circumstances of the present case, this was tantamount to finding him guilty on a charge of importing when the prosecution had positively eschewed laying that charge. We come to this conclusion for all of the reasons given above including that:
·The ambit of the appellant’s offending was closely delineated in the Information by the date range (which had specific reference to conduct subsequent to the police substitution on 6 May 2010) and by the choice of the charge of attempt to import rather than importing (which again had specific reference to the police substitution on 6 May 2010).
·There was no impediment to charging the appellant with importing (prior to the police substitution on 6 May 2010) other than a prosecution decision that the evidence did not support such a charge. Such a charge was laid against both Mr Tuohy (who was acquitted on the merits) and Mr Compton (who pleaded guilty to the charge).
·The appellant in no way acquiesced in being sentenced on a basis that previous offending was to be taken into account or that the charge was some kind of “representative charge”. He positively denied any previous misconduct in relation to the importation.
·Nor did the appellant make any submission to the effect that he was guilty of the charge on a limited extenuating basis and that leniency should be accorded. On the contrary, the appellant denies that he has committed any offence at all.
·The remarks of the sentencing Judge indicate that her Honour took into account as aggravating features conduct by the appellant which constituted a different serious charge of importing (prior to the police substitution on 6 May 2010). There was insufficient focus on the nature and limitations of the charge actually laid against the appellant.
·The remarks of the sentencing Judge are such as to infringe the principle in De Simoni as explained in Olbrich.
Accordingly, ground of appeal 4 is made out to the extent that there must be a re-sentencing of Mr Tranter.
PART B: RE-SENTENCING OF MR TRANTER
The maximum penalty for the offence of which Mr Tranter was convicted is 15 years imprisonment or a fine of $330,000.
The facts can be shortly reprised. Mr Tranter gave evidence that he travelled to Thailand in March 2010 and had met the man Mr Tuffnell, also known as Sep, there. Mr Tranter testified that Mr Tuffnell had told him that he was sending a package to Joe Tuohy’s carwash in Naracoorte and asked Mr Tranter to pick it up. Mr Tuohy was well known to Mr Tranter. Back in Australia, Mr Tranter conducted an internet search to track the passage of the crate on 27 April 2010.
The particular matters charged against Mr Tranter are as follows. On 13 May 2010 Mr Tranter personally collected the crate from Tuohy’s carwash which, by then, contained an inert substance secreted in marble stools. Mr Tranter took the crate to his home in the back of his ute. Shortly after arriving he made a telephone call to his wife to ask if she had cooking scales.
The learned sentencing Judge found that Mr Tranter unpacked the marble stools from the crate at his home and that he retrieved and then disposed of the substitute substance. In a phone call made on 14 May 2010 at 8:37am, Mr Tranter was recorded as complaining that the senders of the crate had packed too little pseudoephedrine and, in colourful terms, accused the senders of being stupid.
Mr Tranter’s offending was calculated to complete the importation of a substantial amount, 550 grams, of pseudoephedrine. That amount of pseudoephedrine could be used to produce 437 grams of methyl-amphetamine hydrochloride or 352 grams of methyl-amphetamine base, with a street value of several hundred thousand dollars.
But for the intervention of law enforcement officers, Mr Tranter would have delivered the pseudoephedrine, if not to the ultimate manufacturers of the drug methyl-amphetamine, to persons closely connected with them. As the sentencing Judge observed, the drug methyl-amphetamine has “devastating effects” on the community and the individuals who consume it.[51]
[51] Sentencing Remarks Tranter AB140.
Putting aside, as we must, the evidence of Mr Tranter’s knowing involvement in the importation of the pseudoephedrine before its substitution, Mr Tranter fell to be sentenced against the following circumstances.
First, he played a part in a sophisticated operation to import a large amount of pseudoephedrine. The offending was, therefore, objectively serious and because Mr Tranter was aware of its magnitude and sophistication when he collected the crate from the carwash, he bears a large degree of moral culpability for assuming responsibility for the last leg of the importation. Mr Tranter has no claim to the relative leniency that might be extended to a person who naively becomes involved in an importation of this kind.
Secondly, Mr Tranter played an important part in the importation. He was entrusted by the organisers of the importation with the sole custody of the pseudoephedrine from the time he collected it. It can be inferred that it was his responsibility to deliver the pseudoephedrine to the intended manufacturers of the methyl-amphetamine, or at least to intermediaries very closely connected with them. Mr Tranter cannot claim that his involvement was limited and isolated. Mr Tranter’s sentence must, therefore, be fixed on the basis that even though Mr Tranter’s precise role is not clear, his involvement in the importation was a critically important one.
We turn to Mr Tranter’s personal circumstances. Mr Tranter is 42 years of age. He has been married for 20 years and is the father of four children. The youngest is eight years of age. The Judge accepted that over his life Mr Tranter had made a substantial contribution to his local community. His referees spoke very highly of him. Mr Tranter had extensive agricultural business interests in the production of potatoes, onions and wine. His businesses employ many people. Mr Tranter has suffered from depression and anxiety as a result of his apprehension and charging for this offending.
The Judge rightly rejected a submission that she could have confidence that Mr Tranter would not offend in the future, given his plea of not guilty and his failure to take responsibility for his offending. We would adopt the same position.
In the course of the appeal hearing, this Court was provided with summaries of sentences imposed for offences of this kind and bundles of sentencing remarks. The use which can be made of that material is of course limited. Nonetheless, in order to arrive at a proportionate sentence and to maintain sentencing coherence, it is often necessary to engage in a comparative exercise.[52] In doing so in this case, it appears that Mr Tranter’s sentence is higher than the general run of the cases provided to the Court which are in the order of two to three years.
[52] Veen v The Queen (No 2) (1988) 164 CLR 465.
As the High Court observed in Hili v The Queen (Hili)[53] the circumstances attending the offending and the offender vary greatly from case to case. Little use can be made of statistical analysis and the graphical depiction of sentences. The focus must remain on relevant legal principle but, importantly, one of those principles is the treatment of like cases alike and different cases differently. In Hili the High Court explained:[54]
In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour saidfn46: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence” (emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned”.
[53] Hili v The Queen (2010) 242 CLR 520, 537 [54].
[54] Hili v The Queen (2010) 242 CLR 520.
In Barbaro v The Queen,[55] French CJ, Hayne, Keifel and Bell JJ explained that the purported setting of bounds to the available range of sentences by counsel appearing in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.[56]
[55] (2014) 88 ALJR 372, 379 [40].
[56] Hili v The Queen (2010) 242 CLR 520, 535-536 [48]-[49].
As the plurality pointed out in Hili,[57] in seeking consistency in sentencing Judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.[58] And as each of Buchanan JA and Kellam JA rightly observed in R v MacNeil-Brown:[59]
The synthesis of the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.
Importantly, in undertaking that comparison it may mislead to focus on the amount of the controlled substance alone. As the circumstances of this case indicate, the nature and extent of the offender’s involvement in the importation will be an important consideration. [Footnotes omitted]
[57] Hili v The Queen (2010) 242 CLR 520, 536-537 [53]-[54].
[58] Cf Wong v The Queen (2001) 207 CLR 584, 606 [59]; Hili v The Queen (2010) 242 CLR 520, 537 [54]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, 70-71 [304] (Simpson J).
[59] (2008) 20 VR 677, 711 [130] (Buchanan JA) and 715-716 [147] (Kellam JA).
Overall, for the reasons already given, Mr Tranter’s offending is of a high order. Mr Tranter’s prior good character, his involvement in the community and his success in business, viewed in isolation, would offer some support for a rehabilitative sentence. However, in the absence of any explanation from Mr Tranter for the offending those very circumstances, and in particular his success in business, strongly suggest that the motive for his offending was greed. It is important that persons who have access to financial resources from lawful business interests who may be tempted to chase higher returns available in illegal enterprises be deterred from doing so.
In all of the above circumstances, we impose a head sentence so as to correctly reflect all relevant matters pertaining to the sentencing of Mr Tranter including the extent of his offending as delineated above. We set aside the sentence imposed in the District Court and instead impose a head sentence of four years six months with a non-parole period of two years and nine months.
PART C: CONSIDERATION OF MR COMPTON’S APPEAL
On 24 May 2013, the trial Judge sentenced Mr Compton to three years and nine months imprisonment and ordered that he was not eligible for parole until he had served two years imprisonment. The maximum penalty for the offence is 15 years imprisonment or a fine of $330,000 or both (the same maximum as that applicable to Mr Tranter).
Mr Compton’s grounds of appeal against sentence appear as follows:
1.The sentence imposed by the learned sentencing Judge was manifestly excessive.
Particulars
1.1 The learned sentencing Judge erred by concluding that taking into account all of the relevant circumstances of the case except for the Appellants’ (sic) guilty plea and cooperation, the appropriate sentence was five years imprisonment.
1.2 The head sentence and non-parole period imposed by the learned sentencing Judge were manifestly excessive.
1.3 The learned sentencing Judge erred by failing to order the Appellant’s immediate release on a recognizance to be of good behaviour.
1.4 In the light of fresh evidence the Appellant applies to tender, concerning his de-facto partner’s very serious illness and its impact on her ability to care for the Appellant’s two children, the Appellant’s imprisonment will cause extreme hardship to his de-facto partner and children.
2.The learned sentencing Judge erred by sentencing the Appellant for conduct by him after 6 May 2010. The Appellant’s conduct after 6 May 2010 was not part of the offence he pleaded guilty to, but comprised a different offence he was not charged with.
3.The learned sentencing Judge erred by sentencing the Appellant on the basis that he was, “… as culpable as Mr Tranter” and that they should receive the same sentence (except for the discount for guilty plea and cooperation), when Tranter’s position and role was more significant than that of the Appellant.
After the hearing of the appeal and whilst judgment was reserved, Mr Compton applied to have the hearing re-opened because of a dramatic deterioration in the health of his partner and her subsequent death. The matter was called back on before the Court on 20 March 2014. The Court gave permission to the appellant to adduce further evidence as to his partner’s death and the consequential effect on arrangements for the care of his children. We foreshadow that we will allow Mr Compton’s appeal on that ground. In those circumstances, it is not necessary to deal with Mr Compton’s other grounds of appeal except to the extent that his relative culpability will be dealt with on re-sentencing.
The circumstances of Mr Compton’s offending can be shortly summarised. Mr Compton had known Mr Tranter for over 15 years. He had worked for Mr Tranter prior to the offending for about 11 years, but not continuously. Mr Compton, like Mr Tranter, was a friend of Mr Tuffnell, who played a part in arranging the importation from Thailand. Mr Compton’s role was to clear the pseudoephedrine through Australian Customs. He received paperwork for that purpose from Mr Tranter. Mr Compton, using a false name, dealt with the import agent with respect to the clearing of the crates from Thailand. He arranged for a third party to pay the import charges and provided that third party with the money to do so. It was not clear what Mr Compton’s reward was to be for his role but his assistance was certainly not gratuitous.
After a disputed facts hearing the Judge rejected defence submissions that Mr Compton:
·simply did the bidding of Mr Tranter;
·assisted in the importation as a favour for Mr Tranter without an expectation of receiving a reward; and,
·was not aware that border control precursors were being imported until late in the course of the importation.
Mr Compton was born on 20 May 1974. Although he has a prior history of relatively minor traffic convictions, he had not previously committed any drug-related offences and had not served any period of imprisonment. He is a trained auto electrician, character referees spoke highly of his strong work ethic, and he had a good employment history. He worked as a fly-in-fly-out worker for several years before taking up employment in 2009 as a shed manager for a vegetable producer and wholesaler at Virginia. Whilst on bail, awaiting the finalisation of his matter in the District Court, Mr Compton worked as an auto electrician on mining sites in Western Australia.
Mr Compton entered into a de facto relationship with Paradee Budtarach in January 2008. Ms Budtarach was born in Thailand but had lived in Australia for about 10 years. Their eldest daughter, Sienna, was born on 28 May 2009 and a second daughter, Gina, was born on 28 April 2012. Mr Compton’s character referees described him as a loving and caring father and partner.
It was put to the sentencing Judge that, if Mr Compton were to be imprisoned, his then living partner and their two children would suffer substantial hardship. Ms Budtarach had limited English. She had previously worked as a commercial cleaner but would be dependent on social security payments if Mr Compton was imprisoned. It was submitted that she might be forced to sell the family home and even to return to Thailand because of the inadequate support available to her in Australia. The sentencing Judge recorded in her sentencing remarks that she took into account that hardship.
At the time of Mr Compton’s sentencing in May 2013, it was not known that Ms Budtarach had contracted lung cancer. In an affidavit provided to the Court on the first hearing of the appeal, Ms Budtarach deposed that she had been feeling generally unwell from about April 2012. After Mr Compton’s imprisonment, she experienced pain when breathing, found difficulty in swallowing, and had difficulty sleeping. A chest x-ray and CT scan taken in June 2013 showed that Ms Budtarach had advanced lung cancer, which had metastasised into her lymph nodes, rib and spine. A report of a respiratory physician dated 16 July 2013, received by this Court on the first hearing, disclosed that Ms Budtarach had “confirmed stage 4 adenocarcinoma” and that her treatment would include ongoing chemotherapy at the Medical Oncology Unit. Counsel for the respondent rightly consented to receiving the evidence of Mr Budtarach’s illness as further evidence on appeal.
After the Court reserved its decision, Ms Budtarach’s condition continued to deteriorate. A senior medical oncologist with the Royal Adelaide Hospital Cancer Centre reported on 12 February 2014 that Ms Budtarach’s condition had dramatically worsened. She had been admitted to the Royal Adelaide Hospital in early February 2014 with a malignant pericardial effusion. After her admission, Ms Budtarach suffered a thrombo-embolic stroke in her brain stem, which caused severe disability.
Mr Compton subsequently made an application for bail, which the Chief Justice granted on strict conditions on 14 February 2014. As a result, Mr Compton was able to be with his children and Ms Budtarach in the days leading to her death on 16 February 2014. Mr Compton is now the sole carer of his daughters, Sienna and Gina.
The appeal was called on for a further hearing in light of these sad developments. This Court received, again with the consent of the respondent, further evidence, by way of affidavit, concerning the care of the children should Mr Compton be returned to custody.
A speech pathologist has reported that Sienna’s language skills are within the severe language disorder range for her age. Sienna receives weekly speech therapy sessions during her attendance at an Early Learning Centre.
As would be expected, Sienna and Gina were very unsettled and saddened by the death of Ms Budtarach. Sienna regressed to bed-wetting and wanting bottles. Her appetite fell away. She would wake during the night crying and she became generally uncommunicative and reluctant to attend kindergarten. Gina became much more demanding.
Other than foster care, the only practical and humane caring arrangements which could be made for Sienna and Gina if Mr Compton were returned to custody, would be to place them in the care of Mr Compton’s brother, Dean, and his wife, Janine.
Ms Janine Compton works in a demanding role as a community nurse and she has only a limited ability to take leave. Mr Dean Compton is self-employed. He and his wife reside in a four-bedroom house. They have three teenage sons. If they were to have the care of Sienna and Gina, their domestic accommodation would be very cramped. Assuming responsibility for the care of the children would burden them financially. Two of their sons are privately schooled. They are likely to incur substantial medical expenses in providing treatment for Sienna’s early learning and speech difficulties and providing counselling for both Sienna and Gina.
Mr Dean Compton deposed, and there is no reason to doubt, that the general living standard of his family would be significantly reduced and pressure would be placed on the personal relationship with his wife if they were to take care of the children. That would, in turn, impact adversely on the welfare of Sienna and Gina.
In a report reviewed by this Court, the family’s general practitioner reported in strong terms on the likely damaging effect on the children should Mr Compton be returned to prison:
There is no question that it would be psychologically damaging to the children with the severe disruption to all routines and emotional supports that would be involved. This is not in the children’s interests nor in [Mr Compton’s] Shane’s, who has been impressive in his care of the children. For his paternal role to be suddenly taken away would also be medically/psychologically damaging to him as well.
The children were assessed by clinical psychologists, Luke Broomhall and Samantha Vincent, in March 2014. They made the following observations and recommendations:
1The future emotional and behavioural stability of Sienna and Gina Compton would most appropriately be advanced by their father whilst they reside together in the house in which they had lived with their mother, which is ready to return to immediately. This house is familiar to them, provides a sense of stability, connection with their mother and they have their own room and possessions. This is preferable to their current living arrangements with their uncle, Dean Compton, and his family.
2Both Sienna and Gina Compton face the risk of further emotional and behavioural regression (which could create significant negative long-term impacts on their emotional wellbeing, educational achievement and personality development) if they are not in the care of their father. Mr Compton was assessed as an emotionally involved, responsive care-giver, which is crucial for Sienna and Gina’s ability to cope with the death of their mother.
3Sienna Compton should continue to enjoy the supportive nurturing environment provided by the Early Learning Centre and progress to primary school within this environment. The school seems to have an understanding of Sienna’s individual needs, current circumstances and provides a supportive nurturing environment to best support her language and social development.
4Mr Shane Compton should be referred as soon as practicable to an appropriately trained psychologist for assistance in managing his grief process around the death of his partner. As part of such therapeutic interaction, Mr Compton should be assisted with strategies and advice around the care and support of his daughters, given their own grief process and in the context of Sienna’s behavioural and emotional regression subsequent to her mother’s illness and death.
On the receipt of further evidence in a sentence appeal, the question is whether the sentence is manifestly excessive having regard to all of the known circumstances, including those revealed by the additional circumstances. Receiving the further evidence is no reason in itself to set aside the sentence imposed at first instance.
The welfare of Mr Compton’s children will be jeopardised if he were to be returned to prison. They are in need of high levels of care which can only be met by their father and without which they will face an unhappy childhood and an uncertain and disadvantaged future. Their circumstances are exceptional, or to put it in another way, their interests are so strong as to shift the balance of sentencing considerations in favour of a disposition which substantially reduces the period of imprisonment which would otherwise be warranted in respect of Mr Compton’s offending. The sentence imposed by the Judge must now be viewed as manifestly excessive. We would set aside that original sentence for this reason.
PART D: RE-SENTENCING OF MR COMPTON
On re-sentencing Mr Compton, we take the view that his offending is not as culpable as that of Mr Tranter. Even though Mr Compton was involved in the importation of the pseudoephedrine from Thailand, his involvement was limited to attending the discrete tasks in dealing with the paperwork. It is probable that he was allocated that task as part of a plan to leave false trails which led away from the principals. Importantly, he was never going to be entrusted with the sole custody of the pseudoephedrine.
The Judge erred in adopting the same starting point in respect of Mr Compton as was adopted in respect of Mr Tranter. We would commence with a nominal starting point of four years. Applying the same reduction for Mr Compton’s guilty plea, we would have imposed a sentence of three years, with a non-parole period of 20 months. Mr Compton served nine months in custody before his release on bail.
In the special circumstances of this case, we would impose a period of imprisonment but release Mr Compton forthwith pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). Having regard to the time he has served, we would impose a sentence of two years three months but order that Mr Compton be released upon entering into a recognizance that he will be of good behaviour for a period of four years and
·for a period of two years commencing on his release he will be under the supervision of a probation officer assigned by the Department of Correctional Service and obey all reasonable directions of that probation officer
·during the period of the recognizance he will not take part in the importation of any goods into Australia unless he has first notified the Australian Federal Police of his intention to do so.
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