Stipkovich v The Queen
[2018] WASCA 63
•9 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STIPKOVICH -v- THE QUEEN [2018] WASCA 63
CORAM: MITCHELL JA
BEECH JA
ALLANSON J
HEARD: 3 APRIL 2018
DELIVERED : 9 MAY 2018
FILE NO/S: CACR 167 of 2017
BETWEEN: KEVIN JERKO STIPKOVICH
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MCGRATH J
Citation: R -v- STIPKOVICH [2017] WASCSR 136
File Number : INS 123 of 2016
Catchwords:
Criminal law and sentencing - Appellant convicted of attempted possession of a border controlled drug - Appellant sentenced to 14 years' imprisonment with a non-parole period of 11 years - Whether non-parole period manifestly excessive
Legislation:
Crimes Act 1914 (Cth), s 19AB
Criminal Code (Cth), s 11.1, s 307.5
Result:
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | Mr P D Yovich SC |
| Respondent | : | Ms G M Cleary |
Solicitors:
| Appellant | : | Holborn Lenhoff Massey |
| Respondent | : | Commonwealth Director Of Public Prosecutions |
Case(s) referred to in decision(s):
Aboud v The Queen [2017] NSWCCA 140
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Bick v The Queen [2006] NSWCCA 408
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Chan, Lo and Nguyen v The Queen [2010] NSWCCA 153
Christov v The Queen [2009] NSWCCA 168
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Devine v The State of Western Australia [2010] WASCA 94
Director of Public Prosecutions (Vic) v Dalgliesh [2017] HCA 41
DPP v Thomas [2016] VSCA 237
Fattal v The Queen [2013] VSCA 276
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Karam v The Queen [2015] VSCA 50
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Kev v The Queen [2015] VSCA 232
Kleindyk v The Queen [2016] WASCA 123
Lam v The Queen [2014] WASCA 114
Luong v DPP [2013] VSCA 296
McKey v The State of Western Australia [2010] WASCA 210
Norton v The Queen [2003] WASCA 86
Papadimitriou v The Queen [2011] WASCA 140
Power v The Queen (1974) 131 CLR 623
Putland vThe Queen [2004] HCA 8; (2004) 218 CLR 174
R v Alwis [2012] QCA 308
R v Choi [2007] NSWCCA 150
R v Karam [2015] VSCA 50
R v Kilic [2016] HCA 48; (2016) 259 CLR 256
R v Ng [2012] WASCA 180
R v Nguyen; R v Pham [2010] NSWCCA 238
R v Oprea [2009] QCA 184
R v Pham [2015] HCA 39; (2015) 256 CLR 550
R v Riddell [2009] NSWCCA 96
R v Stipkovich [2017] WASCSR 136
Sayed v The Queen [2012] WASCA 17
Sinclair v The State of Western Australia [2014] WASCA 22
Yu v The Queen [2016] NSWCCA 73
Zhang v The Queen [2010] NSWCCA 105
JUDGMENT OF THE COURT:
Introduction
The appellant was convicted after trial of one count of attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.5 and s 11.1(1) of the Criminal Code (Cth). The total weight of the methamphetamine was 9.5649 kg at a purity of 78.1%, being 7.4561 kg of the drug in a pure form.
The appellant was sentenced to a term of imprisonment of 14 years, with a non‑parole period of 11 years. The appellant appeals against the sentence on the ground that the non‑parole period was manifestly excessive. For the reasons that follow, we are not persuaded that error can be inferred from the result of the discretionary decision to fix the length of the non‑parole period. The appellant seeks leave to add a ground asserting error in failing to take into account the appellant's admissions and cooperation at trial. While we would grant leave to add this ground, the ground has not been established. Consequently, the appeal must be dismissed.
The facts
As we have said, the appellant was convicted following a trial. He was tried with a co‑offender who was also convicted.
The judge's findings of fact for the purpose of sentencing are not challenged on appeal. Relevantly, they may be summarised as follows.
On 9 September 2015, Australian Border Force officers conducted an examination of a consignment that had arrived at Fremantle from Hong Kong on 9 September 2015 aboard the vessel APL Malaysia. The consignment contained six cardboard boxes wrapped in green hessian and yellow strapping, containing 1,800 mobile telephone chargers. An x‑ray examination revealed anomalies and a white powdery substance was found concealed in the chargers.
The consignment was addressed as follows:
Consignee:
George Falzetti Paul
** Greenham Place,
Karnup, WA, 6176Consignor:
EKE SUUYAH
*** Building, ** Xyixinju Baiyunbao Street,
Baiyun District, Guangzhou, 510 440, CNThe address of the named consignee is the residence of the appellant.
The consignment was deconstructed by Australian Federal Police officers, and the methamphetamine was replaced with an inert substance. On 14 September 2015, a controlled operation authority was granted pursuant to s 15GI of the Crimes Act 1914 (Cth).
In the period immediately after the importation, the appellant and his co‑offender communicated with Ms Chen who works for Lefeng Logistics, a freight forwarding company. The communications included an email sent from the co‑offender's Yahoo account to Ms Chen in response to a request for the passport of George Falzetti Paul. On 2 September 2015, there were communications between the co‑offender's Yahoo account and Ms Chen about whether Lefeng Logistics had received payment. There were then communications about the organisation of a courier.
The sentencing judge found that the appellant and the co‑offender were both aware of the communications that were being sent and that those communications occurred for the purpose of arranging the taking of possession of the controlled drugs.[1] The judge found that there was text message communication between the appellant and his co‑offender during the period in which arrangements were being made to take possession of the drugs.[2]
[1] R v Stipkovich [2017] WASCSR 136 (sentencing remarks) [14].
[2] Sentencing remarks [16].
The sentencing judge found that the appellant assisted his co‑offender in making payment to St George Bank for the release of the consignment.[3] His Honour further found that both were involved in the forwarding of a purported photograph of George Falzetti Paul to Lefeng Logistics[4] and found that the appellant used the Dell printer at his residence to print documents.[5]
[3] Sentencing remarks [20].
[4] Sentencing remarks [21].
[5] Sentencing remarks [22].
On 15 September 2015, the consignment was delivered to the freight forwarding company Geodis Wilson, 223 Hampton Road, South Fremantle, awaiting collection. At about 2.13 pm on 16 September 2015, a courier from 'Fasta Couriers' arrived at Geodis Wilson and collected the consignment. The courier drove directly to ** Greenham Place, Karnup, which is owned by the appellant's father.[6] The appellant was the registered proprietor of the two neighbouring properties at ** and ** Greenham Place.[7] The sentencing judge found that both the appellant and his co‑offender arranged for the delivery using the co‑offender's Yahoo account and the appellant's phone, which was used to make a call by a person working at the behest of the appellant and the co‑offender.[8] Immediately after delivery, there were five missed telephone calls between the appellant and his co‑offender. When the courier approached the property, the gates were closed and two males approached before the courier departed the premises.
[6] ts 64.
[7] ts 64.
[8] Sentencing remarks [25].
The judge found that the appellant and his co‑offender placed the consignment in a utility vehicle registered to the appellant.[9] The appellant then drove the utility, followed by his co‑offender in a four-wheel drive to an off-road location east of Harvey Road, Karnup.[10] The appellant and his co‑offender unloaded the consignment into a hollow area and were observed concealing it underneath bush and shrubbery.[11] The appellant was then seen driving the utility vehicle away from that location, while his co‑offender remained.[12] The appellant and his co‑offender were arrested later than afternoon.[13]
[9] Sentencing remarks [29].
[10] Sentencing remarks [30].
[11] Sentencing remarks [31].
[12] Sentencing remarks [32].
[13] Sentencing remarks [33].
At trial, the appellant and the co‑offender each blamed the other and denied that they were knowingly involved in the offence. The judge found that both offenders were equally culpable, and were working together.[14]
[14] Sentencing remarks [45].
The judge found that both the appellant and the co‑offender undertook specific acts with the aim of taking possession of the controlled substance. His Honour accepted that there may have been others who were involved in the importation. Further, the judge was unable to make any finding as to what the appellant and the co‑offender intended to do with the drugs, other than to take possession of them and to make substantial personal profit.[15] The judge found that the role of the appellant and of the co‑offender was not merely that of courier or bailee but that, on the other hand, they were not some form of 'Mr Big'. Nonetheless, the appellant's role and acts were pivotal in the process and the two acted as a team together.[16]
[15] Sentencing remarks [47] ‑ [48].
[16] Sentencing remarks [52].
The appellant's personal circumstances
The appellant was 47 years of age when sentenced, and is now 48.
After leaving school at year 11, the appellant has worked in truck driving and some other unskilled occupations. He also conducted a business of collecting scrap metal.
The appellant has three children, two of whom are adults, and the youngest of whom was 11 years of age at the time of sentencing. The appellant was the primary carer for his elderly father who has significant health issues.
The appellant has a substance abuse problem, being a user of methamphetamine.
The sentencing judge received references which spoke highly of the appellant's personal qualities.
The sentencing judge noted that the appellant has a criminal record that includes previous drug offence relating to cannabis and possession of a smoking implement in 1992, but that the appellant had extended periods without offending. The appellant maintained his innocence in discussions with the author of the pre‑sentence report.
Sentencing remarks
Given that no issue is taken with any aspect of his Honour's sentencing remarks, and given the limited scope of the appeal, it is not necessary to detail the remarks of the learned sentencing judge. His Honour outlined the facts of the offending as set out above, and the appellant's personal circumstances. His Honour referred to relevant sentencing principles, with which no issue is taken on appeal.
The judge imposed a term of 14 years' imprisonment and fixed a non‑parole period of 11 years.[17]
[17] Sentencing remarks [77].
Grounds of appeal
The primary ground of appeal alleges that the sentencing judge erred in law by imposing a non‑parole period that was manifestly excessive in all the circumstances of the case. Leave to appeal has been granted.[18]
[18] Order of Mazza JA, 29 October 2017.
The appellant seeks leave to add an additional ground alleging that the sentencing judge erred in failing to take into account as a mitigating factor the appellant's admissions and other cooperation in his trial.
Sentencing for drug offences: general principles
The court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.[19]
[19] Crimes Act 1914 (Cth), s 16A(1).
Section 16A(2) of the Crimes Act 1914 (Cth) prescribes matters that a sentencing court must take into account if those matters are relevant and known to the court.
Well‑known sentencing considerations for drug offences were outlined by Buss JA in R v Ng:[20]
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant.
[20] R v Ng [2012] WASCA 180 [34].
Setting the non‑parole period: general principles
The Crimes Act creates a separate and exhaustive regime for fixing non‑parole periods for sentences of imprisonment for federal offences.[21] In applying that regime, the court has no regard to sentencing practice and decisions under the State regime for non‑parole periods. In this case, there was, and could be, no suggestion that the sentencing judge was influenced by State law and practice as to the fixing of the non‑parole period.[22]
[21] Putland vThe Queen [2004] HCA 8; (2004) 218 CLR 174 [52].
[22] Appeal ts 13.
Generally, with specified exceptions, a court must fix a single non‑parole period when sentencing for a federal offence and when imposing a sentence exceeding 3 years' imprisonment upon a person not already serving a federal sentence.[23]
[23] Crimes Act s 19AB.
The fixing of a non‑parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender.[24]
[24] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.
The length of the non‑parole period should be the minimum time that a judge determines justice requires that the offender must serve, having regard to all the circumstances of the offence.[25] The evident legislative intention is for a non‑parole period to provide for mitigation of the punishment of the prisoner in favour of rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires must be served, having regard to all the circumstances of the offence.[26]
[25] Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367.
[26] Power v The Queen (1974) 131 CLR 623, 628 ‑ 629; Sayed v The Queen [2012] WASCA 17 [120]; Lam v The Queen [2014] WASCA 114 [45].
When fixing the non‑parole period, the court must consider all of the circumstances of the case, including the matters listed in s 16A(1) and (2) of the Crimes Act.[27] The considerations which a sentencing judge must take into account when fixing a non‑parole period are the same as those applicable to the setting of the head sentence. However, the weight to be attached to those factors, and the manner in which they are relevant, will differ due to the different purposes underlying each function.[28] Sentencing factors counting against mitigation may increase both the length of the head sentence and the proportion that the non‑parole period bears to the head sentence.[29] The converse is true of factors in favour of mitigation.[30]
[27] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [40].
[28] Bugmy (531); Sayed v The Queen [121]; Lam v The Queen [47].
[29] Lam v The Queen [56].
[30] Lam v The Queen [57].
The following have been described as the main factors relevant to the determination, in any case, of the appropriate ratio between the non‑parole period and the head sentence:[31]
Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range: (see R v Bernier (1998) 102 A Crim R 44 at 49 and R v Sweet 125 A Crim R 341 at 346), the seriousness of the offence and the prospects of rehabilitation (see R v Stitt (1998) 102 A Crim R 428 and R v Meloh [2001] NSW CCA 211 at [10]) and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see R v Drazkiewicz unreported, Court of Criminal Appeal, No 60705 of 1992, NSW 23 November 1993).
[31] Bick v The Queen [2006] NSWCCA 408 [15], cited with approval in Sayed v The Queen [122].
The discretion to fix the non‑parole period is not constrained by a requirement to bear a particular relationship with the head sentence. It is wrong to approach the discretion from a judicially determined percentage as a norm or starting point.[32]
[32] Hili v The Queen [44].
In Lam,[33] McLure P observed that the range of non‑parole periods customarily imposed for drug offences could not, as a matter of statutory construction, be higher than the 75% minimum specified in s 19AG, which is reserved for the most serious offences in which general deterrence is a weighty factor. However, her Honour observed, 75% is not a non‑parole period ceiling for other types of offences in a unusual circumstances.
[33] Lam v The Queen [56].
We respectfully doubt the correctness of these observations, which were not necessary for the decision in Lam. Section 19AG creates a mandatory minimum non‑parole period for the serious offences to which it applies. For both offences within s 19AG, and offences not within the ambit of that section, the fixing of a non‑parole period involves the exercise of a broad discretion with reference to the considerations to which we have already referred. For cases within s 19AG, the exercise of that discretion is subject to the express statutory minimum. On the face of it, the prescription of a mandatory minimum for one class of offences does not control the different question of the range of customarily imposed minimum periods for offences not within s 19AG. It is not necessary to express a concluded view on that issue. For the purposes of this appeal, it is sufficient to note that senior counsel for the appellant did not submit that unusual circumstances are required before a non‑parole period of 75% or more can be imposed for an offence that is not within s 19AG.[34] In our opinion, he was right not to do so.
[34] Appeal ts 14, 27.
Appeals against the non‑parole period: general principles
The starting point is the discretionary character of the decision in fixing the length of the non‑parole period. An appellate court can only interfere if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
In Lam,[35] McLure P (Buss & Newnes JJA agreeing) explained the process of determining whether a non‑parole period is manifestly excessive:
In determining whether a non-parole period is manifestly excessive (or inadequate) this court applies the same test it applies to head sentences, modified to take into account any statutory minimum or maximum. In particular, the court has regard to any statutory limits on the available minimum period, the standards of sentencing customarily imposed for offences of the relevant type, the place which the criminal conduct occupies on the scale of seriousness and the antecedents of the offender: Prestidge v The State of Western Australia [2014] WASCA 16; Rosewood v The State of Western Australia [2014] WASCA 21; Stinson v The State of Western Australia [2014] WASCA 72. Whether it be a challenge to the head sentence or a non-parole period, the standards customarily imposed provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind that there is scope for significant variations in relevant sentencing factors and no single correct sentence: Stinson [17]. It has also applied the principles approved in Hili to federal offences: Bertilone v The Queen (2009) 231 FLR 383.
[35] Lam v The Queen [49].
Given the focus on comparable cases in the appellant's submissions in this appeal, the last point made by her Honour warrants some elucidation. In 2012, Buss JA observed that a review of the case law revealed that, in general, the non‑parole periods for federal drug importation and related drug offences (of which the offence committed by the appellant was an example) have usually been about 60% to 66 2/3% of the head sentences.[36] However, past practice must be treated with caution because, to an extent at least, it reflects an erroneous approach of presuming a norm in that range, departure from which must be justified.[37]
[36] Sayed v The Queen [123], see also Lam v The Queen [60].
[37] Lam v The Queen [58], [60].
Further and in any event, the range of sentences customarily imposed does not mark the boundaries of a proper exercise of discretion.[38] The following observations as to the sentence imposed apply equally to the discretion to fix the non‑parole period. It was observed in R v Kilic[39] that past cases:
may provide a relevant 'yardstick' by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a 'broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle'. (citations omitted)
[38] Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 [41]; R v Pham [2015] HCA 39; (2015) 256 CLR 550 [47]; Director of Public Prosecutions (Vic) v Dalgliesh [2017] HCA 41 [83].
[39] R v Kilic [2016] HCA 48; (2016) 259 CLR 256 [22].
Consistency does not arise out of numerical equivalence; the sentencing process is more complex than a mathematical comparison.[40] The consistency that is sought is consistency in the application of the relevant legal principles.[41] To apply a rigid mathematical analysis would amount to adopting the impermissible 'norm' jurisprudence rejected in Hili.[42]
[40] R v Pham [27] ‑ [29].
[41] Hili v The Queen [49]; R v Pham [28].
[42] Lam v The Queen [58], [60].
In Lam, the court rejected a contention that non‑parole periods of 85.7% and 76.9% of the head sentence imposed on the two appellants were manifestly excessive. McLure P observed that the non‑parole periods were very high, but pointed to unusual features of the case. There were no mitigating factors. There was nothing in the material before the sentencing judge to suggest remorse, a willingness to facilitate the course of justice, or insight or acceptance of responsibility. Further, and in her Honour's view most significantly, the appellants did not engage in any meaningful way in the sentencing process. Her Honour found that unusually long non‑parole periods were open in the circumstances.[43]
[43] Lam v The Queen [60].
As proposed ground 2 alleges express error, it is convenient to deal with the appellant's application for leave to add ground 2, before turning to the primary issue of whether the appellant's non‑parole period of 11 years was manifestly excessive.
Ground 2: did the judge fail to take into account the appellant's admissions and cooperation at trial?
The appellant seeks leave to add, as ground 2, a new ground of appeal alleging that the learned sentencing judge erred in failing to take into account as a mitigating factor the appellant's admissions and other cooperation in his trial.
The application to add ground 2 was first anticipated in an email sent to the court by counsel for the appellant on the morning of the hearing of the appeal. The email stated that the appellant's counsel (who received appeal books two weeks earlier) had identified the possible ground in considering the trial transcript late the previous day. At the hearing of the appeal, counsel was not in a position to indicate whether he would actually seek leave to add the additional ground. Directions were made for the filing of any application for leave, and for the determination of the application and any proposed additional ground on written submissions.
The extension of time to file the application should be seen as extraordinary. Where counsel is briefed after the appellant's case has been filed, undertaking the preparation required to assess the adequacy of existing grounds must be given priority and ordinarily should be done in time to enable any application to amend the grounds to be filed prior to the hearing. At the latest, any application to amend should be made at the hearing of the appeal.
The grant of leave to amend was not opposed by the respondent, and only modest delay has resulted from the late application. It is therefore in the interests of justice that leave to add ground 2 be granted notwithstanding the belatedness of the application.
At his trial, the appellant and his co‑offender made substantial admissions. The admissions were set out in a document read by the Crown prosecutor in her opening address[44] and tendered as exhibit P1.[45] Broadly speaking, the admissions related to:
(a)the continuity of the quantity of border controlled drug from its discovery, seizure and to the delivery of samples to the National Measurement Institute and their subsequent analysis;
(b)the shipping and consignment details;
(c)the examination, discovery of the drugs and the deconstruction of the consignment and drugs;
(d)the grant of controlled operation authorities and search warrants;
(e)the fact that methamphetamine is a border controlled drug and that the amount involved exceeded a commercial quantity;
(f)the accuracy of the table of communications and key events; and
(g)the appellant's and his father's ownership of identified property.
[44] ts 62 ‑ 65.
[45] ts 65.
The appellant's submissions in support of this ground may be summarised as follows:
(1)The admissions made by the appellant (and his co‑offender) materially shortened the trial by reducing the evidence required to be called by the prosecution and the cross‑examination of some of the prosecution witnesses.[46]
(2)The appellant points to a number of cases where an offender has been given credit for making admissions at trial.[47]
(3)The effect of the cases is that admissions and other conduct facilitating the course of the trial may be recognised as mitigatory in sentencing for federal offences; whether a discount is given and the extent of any discount are matters to be determined having regard to all the circumstances.[48]
(4)The appellant's cooperation in the trial process facilitated the course of justice and was relevant both to the head sentence to be imposed and to the non‑parole period.[49]
(5)The appellant's willingness to facilitate the course of justice was a matter to be taken into account, particularly in circumstances where, as on this appeal, the Crown relies on the appellant's lack of remorse and failure to explain the offending as reasons why the non‑parole period was unusually high.[50]
(6)The failure to give the discount in this case was an express error.[51]
[46] Appellant's submissions in support of ground 2 (appellant's ground 2 submissions) [4] ‑ [6].
[47] Appellant's ground 2 submissions [8] ‑ [13], referring to Devine v The State of Western Australia [2010] WASCA 94; Papadimitriou v The Queen [2011] WASCA 140; Sinclair v The State of Western Australia [2014] WASCA 22; R v Alwis [2012] QCA 308; R v Karam [2015] VSCA 50.
[48] Appellant's ground 2 submissions [15].
[49] Appellant's ground 2 submissions [16].
[50] Appellant's ground 2 submissions [17].
[51] Appellant's ground 2 submissions [18].
If ground 2 is made good, it would constitute an express error in relation to the fixing of the head sentence, not only the fixing of the non‑parole period. The fixing of the non‑parole period is part of a single sentencing decision; sentencing remarks explain why that single sentence has been imposed.[52]
[52] Norton v The Queen [2003] WASCA 86 [12]; Lam v The Queen [63].
The appellant's submissions in support of this ground assert, but do not demonstrate, that the judge failed to take into account the appellant's admissions and cooperation at trial. An allegation that a sentencing judge has failed to take into account a relevant consideration is difficult to make out.[53] A failure by a sentencing judge to expressly refer in sentencing remarks to a particular factor does not establish that the judge failed to consider that matter.[54] That is all the more so where, as here, no submission was made to the sentencing judge that he should take account of the appellant's admissions in the course of submissions on sentence. Moreover, having presided over the trial, the sentencing judge was aware of the admissions which the appellant had made. In those circumstances, and where counsel for the appellant did not mention the appellant's admissions in sentencing submissions, the fact that the sentencing judge did not refer to those admissions is an inadequate basis to infer that the judge failed to take the admissions into account. The appellant has not pointed to any other circumstance that supports the drawing of that inference. In some cases, a positive statement made by the sentencing judge supports an inference that a relevant matter has been overlooked because it does not sit easily with the matter said to have been overlooked or ignored. The appellant did not point to any such statement in the sentencing remarks and we cannot identify one.
[53] McKey v The State of Western Australia [2010] WASCA 210 [5]; Papadimitriou [315].
[54] Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [27]; Papadimitriou [315].
In some cases, failure to mention a matter that, of itself, necessarily called for a substantial discount in the sentence might sustain an inference that the matter was not taken into account. The appellant's admissions were not of that character. The utilitarian value of the manner in which a trial is conducted is not a mandatory relevant consideration under s 16A(2) of the Crimes Act.[55] The weight to be given to the appellant's admissions was a matter for the sentencing judge to determine in light of all the circumstances of the case.[56] While in some cases mitigating credit has been given for the making of admissions, there are many cases where a sentencing judge has not done so without appellable error.[57] In all the circumstances of this case, the view was open that the appellant's admissions did not attract any or any substantial weight in the sentencing process. That is reinforced by the fact that counsel for the appellant did not refer to the admissions in his submissions to the sentencing judge.
[55] See, by analogy, Christov v The Queen [2009] NSWCCA 168.
[56] Karam v The Queen [2015] VSCA 50 [156].
[57] See, for example, R v Choi [2007] NSWCCA 150 [152]; Christov v The Queen [71]; R v Oprea [2009] QCA 184 [25] ‑ [28], [35]; Fattal v The Queen [2013] VSCA 276 [193] ‑ [194]; Karam v The Queen [158] ‑ [159].
For all these reasons, the appellant has not demonstrated that the judge made an appellable error by failing to take into account his admissions at trial. Consequently, while we would grant leave to amend to add ground 2, the ground fails.
Ground 1: disposition
The appellant's submissions rely heavily on a comparison between the non‑parole period imposed in this case and the non‑parole period fixed in a number of other appellate decisions concerning serious Commonwealth drug offences. The appellant's submissions refer to seven cases said to have been comparable.[58] In all of these cases, the non‑parole periods imposed fell within the range of 60 ‑ 66% of the head sentence.[59] The appellant submits that the non‑parole period in this case is 'manifestly out of step' with those set in comparable and more serious cases.[60] Further, the appellant submits that several of these cases involved more serious offending than the appellant's - whether because of the substantial quantities involved, the mix of additional offences or the offender's greater role - yet resulted in very similar non‑parole periods, despite substantially longer head sentences being imposed.[61]
[58] R v Riddell [2009] NSWCCA 96; Zhang v The Queen [2010] NSWCCA 105; Chan, Lo and Nguyen v The Queen [2010] NSWCCA 153; R v Nguyen; R v Pham [2010] NSWCCA 238; Yu v The Queen [2016] NSWCCA 73; Kleindyk v The Queen [2016] WASCA 123; Papadimitriou; appeal ts 11 ‑ 12, 30.
[59] Appellant's submissions [28] ‑ [29]; appeal ts 11 ‑ 12, 30.
[60] Appeal ts 3.
[61] Appellant's submissions [31]; appeal ts 8 ‑ 9, 11 ‑ 12, 30, referring to Nguyen, Kleindyk and Papadimitrou.
In our opinion, the cases relied on by the appellant do not sustain a conclusion that the sentencing judge's discretion miscarried in this case. The following considerations are relevant to that opinion. First, the cases referred to by the parties are a relatively small sample of cases. Secondly, four of the cases[62] were decided before Hili. Consequently, as McLure P observed in Lam,[63] they must be treated with caution because, to an extent, they may reflect the previous erroneous approach of presuming a norm in a range of 60 ‑ 66%. Thirdly, with only one exception,[64] the cases concerned appeals against the length of the head sentence and did not involve any ground of appeal complaining of the length of the non‑parole period. Moreover, the dismissal of an offender's appeal against sentence or an appellate court's resentencing on a successful appeal does not fix the boundaries of the range of sentences available on a proper exercise of discretion. In our view, the combination of these considerations means that the cases relied on by the appellant provide an insecure foundation for an implication of error from the outcome of the sentencing judge's exercise of discretion in fixing the non‑parole period in this case.
[62] Namely Riddell; Zhang; Chan, Lo and Nguyen; and Nguyen and Pham.
[63] Lam v The Queen [58] ‑ [60].
[64] Namely Papadimitrou.
Further, in all but one of the cases on which the appellant relies,[65] the offender pleaded guilty. A plea of guilty bears favourably on the prospects of the offender's rehabilitation. Given the purpose of the fixing of a non‑parole period, the prospects of rehabilitation are relevant to the fixing of the appropriate length of the non‑parole period. Mitigating factors such as a plea of guilty and other matters bearing favourably on the prospects of an offender's rehabilitation may both decrease the length of the head sentence and also decrease the proportion that the non‑parole period bears to the head sentence.[66]
[65] Namely Papadimitrou.
[66] Lam v The Queen [57].
By contrast, the appellant in the present case pleaded not guilty and, following conviction, continued to deny his responsibility for the offence.
In addition to Lam, other examples may be seen of appellate sentences for offences of a similar nature involving non‑parole periods exceeding 70% of the head sentence. See, for example, DPP v Thomas[67] (offender Wu 71%; plea of guilty); Kev v The Queen[68] (74.6%; plea of not guilty; Luong v DPP[69] (73.3%; plea of not guilty). In the context of offences of an entirely different character,[70] the New South Wales Court of Criminal Appeal has recently emphasised the challenges faced by an appellant who asserts implied error in the fixing of the non‑parole period.[71] An appeal against a non‑parole period of 75% of the head sentence by an offender who pleaded guilty and had good prospects of rehabilitation was dismissed.
[67] DPP v Thomas [2016] VSCA 237.
[68] Kev v The Queen [2015] VSCA 232.
[69] Luong v DPP [2013] VSCA 296.
[70] Using a carriage service to menace, harass or offend or to procure or groom a child under the age of 16 years for sex.
[71] Aboud v The Queen [2017] NSWCCA 140 [46] ‑ [47].
Taking into account the circumstances of the appellant's offence, his personal circumstances and all relevant sentencing factors, we are not persuaded that the non‑parole period of 11 years is unreasonable or plainly unjust. Error cannot be inferred from the sentencing outcome.
For these reasons, ground 1 fails.
Conclusion
The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
ASSOCIATE TO THE HONOURABLE JUSTICE BEECH7 MAY 2018
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