R v Wegener

[1999] NSWCCA 405

CITATION:	R v Wegener [1999] NSWCCA 405
FILE NUMBER(S):	CCA 60300/99
HEARING DATE(S):	08/12/99
JUDGMENT DATE:	8 December 1999
PARTIES :	Regina v Heinz George Wegener
JUDGMENT OF:	James J at 1; Sperling J at 29

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0483
LOWER COURT JUDICIAL OFFICER:	Flannery DCJ

COUNSEL:	C K Maxwell (Crown) G Nicholson QC (Applicant)
SOLICITORS:	SE O'Connor (Crown) Mark Rumore (Aplplicant)
CATCHWORDS:	Criminal law and procedure: Sentencing - Periodic Detention - Periodic Detention of Prisoners Amendment Act No 43 of 1998 - two stage process required.
DECISION:	Appeal allowed

IN THE COURT OF

CRIMINAL APPEAL

060300/99

JAMES J
SPERLING J

WEDNESDAY 8 DECEMBER 1999

REGINA v HEINZ GEORGE WEGENER

JUDGMENT

1   JAMES J: Heinz George Wegener has applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Flannery on 10 May 1999, after the applicant had pleaded guilty to one charge of supplying cannabis leaf. His Honour sentenced the applicant to imprisonment for three years to be served by way of periodic detention, commencing from 21 May 1999.

2   The facts of the offence were stated by Judge Flannery in his remarks on sentence as follows:

“The short facts are that about 5.50pm on 28 January 1998 at Kingsford Smith Domestic Airport the prisoner Mr Wegener was at that place and the drug detection dogs reacted to a suit carrier as containing illegal narcotics. The carrier had been booked under the flight from Adelaide to Sydney by Mr Wegener. The carrier was placed on to the conveyor belt and went on to the baggage carousel. Mr Wegener removed the carrier from the carousel. He was carrying a black coloured briefcase.
Members of the Australian Federal Police approached him and he was conveyed to the baggage office. He conceded that the suit carrier contained cannabis and that the briefcase also contained cannabis. From inspection of both the carrier and the briefcase 17 parcels of what turned out to be cannabis leaf were located, weighing an estimated 7.5 kilograms. The estimated street value being $75,000”.

3   In short, the applicant, for a promised reward of $1,700, acted as courier of seven and a half kilograms of cannabis leaf on a flight from Adelaide to Sydney.

4 The quantity of cannabis leaf, 7.5 kilograms, was greater than the trafficable quantity for cannabis leaf, which is 300 grams, but less than the commercial quantity, which is 25 kilograms. The supply alleged by the Crown was a deemed supply under section 29 of the Drug Misuse and Trafficking Act. Under section 32 of that Act, the maximum term of imprisonment for the offence of supplying a quantity of cannabis leaf which is less than the commercial quantity is ten years.

5   In his remarks on sentence Judge Flannery noted the most outstanding subjective characteristics of the applicant. The applicant was 47 years old at the time of sentencing. He had no previous convictions. He had a wife and two children and resided in Adelaide. He had spent two weeks in custody before being granted bail. He had pleaded guilty to the offence.

6   His Honour found that the applicant had suffered an emotional breakdown at the beginning of 1998. His father had died, his wife was ill and his wife's father was ill and his daughter had been injured in traffic accidents. He had entrusted money to a man who had defrauded him of $200,000.

7   His Honour found that the evidence of the good character of the applicant was compelling. References favourable to the applicant had been provided by a member of the clergy, by members of Rotary and by other business people.

8   In the proceedings on sentence the applicant gave evidence that he was involved in a business venture in the Pacific, which required him to make periodical journeys to Vanuatu.

9   Near the conclusion of his remarks on sentence, his Honour said:

“I have come to the view that everything piled up on the prisoner about this time, that this offence was committed. Illness and death in the family, the financial loss through a man in whom he trusted his investments and that he foolishly, very foolishly, undertook the task which involves him being charged here. And it is for those reasons that I have imposed the sentence that I have”.

10   In written submissions lodged on behalf of the applicant it was not submitted that the sentence imposed by Judge Flannery was outside the range of sentences within a sound exercise of his Honour's sentencing discretion. The argument which was advanced on behalf of the applicant was based on something said by his Honour in court on 10 May 1999, shortly before he delivered his formal remarks on sentence. His Honour is recorded as saying that he proposed imposing a sentence of periodic detention for three years. His Honour is then recorded as saying:

“I know what Mr Laffan (the Crown’s legal representative) may be thinking, that I shouldn’t give that much, perhaps because if I was giving him full time imprisonment it wouldn’t be that much.
* * *
..but as I said the other day it’s been mine (ie my experience) that some people would prefer to serve a full time sentence of a shorter period. He does realise that, if he does breach it, that he runs the risk of serving the balance unserved in full time. Did you explain that to him?”

11   Mr Rumore, the applicant's legal representative in the proceedings on sentence, replied:

“I have indeed your Honour and I will reinforce that if your Honour wishes by just outlining it to him once again very briefly. But that is of course the benefit that he seeks your Honour as an alternative to a full time custodial sentence, even though that’s a lengthy period your Honour has in mind. Certainly, if he was to be incarcerated on a full time basis he wouldn’t have the opportunity to see his family at all. He wouldn’t have the opportunity to conduct any business or to try and finalise his affairs at all. So it’s in that respect that even though it’s a lengthy period your Honour has in mind, if not indeed the maximum period of periodic detention, that at least he could conduct some affairs and have some ongoing contact with his family, who would otherwise not be able to visit him”.

12   There may be a question whether it is legitimate to refer to what was said in argument by way of supplementing or interpreting a sentencing judge’s formal remarks on sentence. However, it has frequently happened in this Court that resort has been had to parts of the record of the proceedings on sentence to explain or supplement a sentencing judge’s remarks on sentence, which are often fairly brief.

13   It was submitted on behalf of the applicant that by what the sentencing Judge had said on 10 May, the sentencing Judge had made it clear that, if he had been sentencing the applicant to full-time imprisonment, he would have sentenced the applicant to a shorter term of imprisonment than three years. It was submitted that:

"In adjusting the sentence upwards from that which he would have passed, had his Honour imposed a sentence of full-time imprisonment, his Honour fell into error."

14   It was submitted that his Honour should first have determined what would be the appropriate term of imprisonment and only then should he have decided whether the term of imprisonment should be served by way of periodic detention.

15   Even if it is not legitimate to refer to what his Honour said in the proceedings on sentence, I consider that it is abundantly clear, having regard to the objective and the subjective circumstances of the offence and the range of the sentences usually imposed for this kind of offence, that his Honour did not intend to impose a sentence of full-time imprisonment for as long as three years.

16 If the Periodic Detention Of Prisoners Act had not been amended by the Periodic Detention Of Prisoners Amendment Act No 43 of 1998, I would have rejected the submissions made by counsel for the applicant. See, for example, the decisions of this Court in R v Sadebath (Unreported, Court of Criminal Appeal, 14 May 1992), and R v Bang (Unreported, Court of Criminal Appeal, 1 September 1992).

17   In R v Sadebath Allen J, with whose judgment the other members of the Court agreed, said at pp7-8:-

“Nevertheless it (periodic detention) is severe punishment. Insofar as the severity of the hardship caused by it during the time it is being served is less than it is in the case of a full-time custodial sentence, that disparity can be dealt with by increasing the length of the periodic sentence. It is not as if one cannot, by adjusting the length of the term to be served by way of periodic detention, end up with a sentence every bit as onerous for the recipient of it than if he had received a substantially shorter sentence of full-time custody”.

18   In R v Bang Badgery-Parker J said at pp17-18 (the other members

of the Court delivered separate judgments but would not appear to have disagreed with Badgery-Parker J on this point):

“A literal interpretation of the provisions of the Periodic Detention of Prisoners Act 1981, might be thought to require a sentencing judge to engage upon a two stage process: first, to determine the appropriate sentence of imprisonment, and then, having reached a conclusion about that, to undertake examination of the question whether in the circumstances of the particular case that sentence ought be served by way of periodic detention. Indeed, I think it is correct to say that that approach was regularly adopted by judges of the District Court and of the Supreme Court over a period of years without criticism from the Court of Criminal Appeal.
Nevertheless, there were also occasions when, equally without criticism by this court, sentencing judges refused to avail themselves of the option of periodic detention, first because as the law used to stand that option was only available in respect of a sentence not exceeding 18 months, and secondly because of a recognition of the element of leniency obviously involved in an order that a sentence be served by way of periodic detention. The combination of those two circumstances often produced a situation where a judge was compelled to take the view that the resulting sentence would be manifestly inadequate. The adoption of such a view involved some blurring of the two stage approach.
However, the two stage approach has now been held by this court to be invalid: Duroux (CCA, unreported 11 April 1991), Pangallo (CCA, unreported 13 August 1991). In each case the leading judgment was delivered by Lee CJ at CL, in Duroux with the concurrence of Mathews and Sharpe JJ and in Pangallo with the concurrence of McInerney and Sharpe, JJ”.

19 However, the Periodic Detention Of Prisoners Act was amended by the Periodic Detention Of Prisoners Amendment Act No 43 of 1998, which commenced on 1 February 1999 and which would accordingly have applied to the sentence passed by his Honour. By the Amendment Act, section 5 of the principal Act was very substantially amended. Section 5 as amended now provides in part as follows:

“5(1) This section applies to a person on whom a court has imposed a sentence of imprisonment comprising:
(a) A fixed term of imprisonment not exceeding 3 years, or
(b) a minimum and an additional term that do not in the aggregate exceed 3 years.
(1A) A court that has sentenced a person to whom this section applies may by order direct that the minimum term of the sentence concerned (or, in the case of a fixed term sentence, the whole of the fixed term) be served by way of periodic detention.
(1B) Such an order may not be made unless the court is satisfied:
(a) that it is appropriate in the circumstances of the case that the person serve the sentence by way of periodic detention….”

20   These amendments to section 5 of the principal Act were made by clauses 3 and 4 of Schedule 1 to the Amendment Act. The effect of the amendments made by schedule 1 (3) and (4) was stated in the explanatory note to the bill which became the Amendment Act as being:

“Schedule 1[3] and [4] amend section 5 so as to replace existing subsection (1) with new subsections (1), (1A) and (1B) and to add a new subsection (7). The effect of the amendments are:
* * *
(b) to remove any doubt as to the requirement for a court to have sentenced a person before it considers whether or not to make a PDO (a periodic detention order) in respect of the person, and to ensure that such a sentence will be either a fixed term of imprisonment or a minimum and an additional term of imprisonment…”

21   In his second reading speech on the bill which became the Amendment Act the Minister said, inter alia:

“The bill makes it plain that those who abuse the relative leniency of a sentence to be served by way of periodic detention face full-time imprisonment. The periodic detention scheme was originally introduced to be a real alternative to full-time imprisonment. This intention is currently reflected in section 5(1) of the Act, which provides that when a person is convicted of an offence and sentenced upon that conviction to imprisonment for a term of not less than three months and not more than three years, the court may order that the person’s sentence be served by way of periodic detention.
The intention of section 5(1) is that the sentence of imprisonment should be determined first, and only then should consideration be given to whether the person serves the sentence in full-time imprisonment or by way of periodic detention. Despite the wording of section 5(1), interpretation of the section by the courts has been variable, thereby reducing the diversionary effect of periodic detention. The bill repeals section 5(1) and inserts new sections, including new section 5(1A), which requires a court to set a fixed term or a minimum and an additional term before making a periodic detention order. Offenders sentenced to periodic detention will therefore be in no doubt, from the outset, as to the term they face in full-time custody if they fail to attend periodic detention”.

22   Having regard to the terms of the Amendment Act and to the purposes of the Amendment Act as stated in the explanatory note and in the Minister's second reading speech, I consider that the decisions of this Court in such cases as R v Sadebath and R v Bang are no longer applicable. So much was conceded by counsel for the Crown on this application.

23 As a result of the amendments to the Periodic Detention Of Prisoners Act, it is only after a sentencing Judge has imposed a sentence of imprisonment comprising a fixed term of imprisonment not exceeding three years or a minimum term and an additional term that do not in the aggregate exceed three years, that the sentencing Judge can then give consideration to whether he or she should order that the minimum term of the sentence imposed or, in the case of a fixed term, the whole of the sentence should be served by way of periodic detention.

24   The provisions of the Periodic Detention Of Prisoners Amendment Act No. 43 of 1998 were not drawn to the attention of Judge Flannery in the proceedings on sentence. In his remarks on sentence his Honour said that “Mr Wegener is convicted and sentenced to three years imprisonment to be served by way of periodic detention”. His Honour clearly did not impose a sentence comprising a minimum term and an additional term. I have already stated my conclusion that it is clear that his Honour did not intend to impose a fixed term of imprisonment of three years. It was ultimately accepted by the Crown on the hearing of this application that his Honour had not complied with the requirements of section 5(1) of the Act as amended.

25   It follows that in the present case, leave to appeal should be granted and the appeal against sentence should be allowed.

26   The question then arises whether this Court should proceed to re-sentence the applicant or whether the proceedings should be remitted to Judge Flannery to re-sentence the applicant in the light of this judgment.

27   Counsel for the applicant submitted that the matter should be remitted to Judge Flannery. I consider that this would be an appropriate course. As I have already said, his Honour sentenced the applicant on 10 May 1999, without the provisions of the Amendment Act having been drawn to his attention. We have been informed by counsel for the applicant that he would wish to adduce further evidence in the re-sentencing of the applicant but that that further evidence is not available to-day.

28 I would propose that leave to appeal against the sentence imposed by Judge Flannery on 10 May 1999 be granted; that the appeal against that sentence be allowed; that the sentence imposed by Judge Flannery be quashed and that the matter be remitted to Judge Flannery for re-sentencing in accordance with this judgment and, insofar as periodic detention may be involved, in accordance with the provisions of the Periodic Detention Of Prisoners Act as amended and particularly section 5. I am not to be taken as expressing a view one way or the other as to whether the sentence to be imposed by his Honour on a re-sentencing should be a sentence of imprisonment to be served by way of periodic detention.

29   SPERLING J: I agree with the orders proposed by James J.

30   It does not seem to me to be necessary to refer to what was said in the course of argument before the sentencing judge commenced his remarks on sentence. For the reasons otherwise given by James J, it is clear that the condition precedent for an order for periodic detention - the imposition of a sentence for a fixed term or for a minimum and an additional term - was not fulfilled in this case, and the sentence which was imposed must therefore be set aside.

31   I add the following observations. The statute, as amended, now requires that the court impose a sentence in the ordinary way before consideration can be given to whether the sentence should be served by periodic detention. That leads to a difficulty in implementing the statute as amended. Periodic detention is substantially more lenient than full time custody for the same period. That is self-evident. Full time custody is custody for seven days a week continuously. Periodic detention is custody for two days a week periodically (which converts to community service after one third of the term has passed). The difference has been recognised in the authorities cited by James J in this case. It was also recognised by the sentencing judge when he said in the course of argument that he was imposing a longer sentence than he would otherwise have fixed because it was to be served by periodic detention.

32   It follows that, speaking generally, a term of imprisonment which is appropriate if served by full time custody would be much too lenient to be appropriate if served by periodic detention. There may be cases where that would not be so but they would be exceptional. In the result, I do not see how a court could, in the ordinary case, conscientiously make an order for periodic detention in relation to a sentence imposed in the usual way. Yet that is what the statute now contemplates will happen. The statute, as amended, seems to me to be unworkable.

33   I would propose a scheme along the following lines:

(1) The court to determine an appropriate term to be served by periodic detention (x).

(2) In the event of serious and repeated breach, the offender to serve a period of full time custody under a prescribed formula (say, x divided by 3.5, with credit for days of periodic detention served).

(3) The Parole Board to have power to vary (2) above in special circumstances and/or grant parole.

JAMES J: The orders of the Court will be as proposed by me.

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