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Court of Criminal Appeal 14 March 2000

Regina v Capper

[2000] NSWCCA 63

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE CHILDREN NOW MADE WARDS OF THE STATE WHETHER COURT SHOULD SHOW MERCY

Citation: Regina v Capper [2000] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 14 March 2000
Judge(s): Fitzgerald JA; Abadee J; Barr J

Background

The applicant pleaded guilty in the District Court to being knowingly concerned in the importation of 478.9 grams gross (167.1 grams pure) of MDMA, commonly known as ecstasy, in contravention of the Customs Act 1901 (Cth). District Court Judge Latham DCJ sentenced him to five years' imprisonment with a non-parole period of three years. Both parties accepted that a custodial sentence was unavoidable.

The applicant was the sole carer of two young children, aged 12 and 10 at the time of the appeal. Their mother was hospitalised with a mental illness. Evidence before the sentencing judge established that the applicant was a devoted father and his children's primary source of support and affection. Following his imprisonment, the children were declared wards of the State by the Campsie Children's Court and placed with foster parents on a permanent basis.

The applicant sought leave to appeal on the ground that his sentence was excessive, relying solely on the detrimental effect his imprisonment would have on his children.

  • Whether the sentencing judge failed to take into account the probable effect of the sentence on the applicant's children, as required by s 16A(2)(p) of the Crimes Act 1914 (Cth).
  • Whether, even if that factor was considered, the sentencing judge gave it insufficient weight, particularly in light of the children subsequently becoming wards of the State.
  • Whether the Court of Criminal Appeal could or should reduce the sentence on the basis of "mercy," even in the absence of exceptional circumstances.

Decision

The Court rejected the first submission outright. The sentencing judge's remarks explicitly acknowledged the hardship to the children and addressed it as required by s 16A(2)(p) of the Crimes Act 1914 (Cth). Her Honour also made personal remarks acknowledging the applicant's parenting abilities after pronouncing sentence. There was no error of omission.

On the question of insufficient weight, the Court found nothing in the circumstances to suggest that a shorter sentence was warranted because of the impact on the children. Section 16A(2) lists a broad range of factors, some favouring leniency and others pointing toward punishment and deterrence. The court's overarching obligation under s 16A(1) is to impose a sentence appropriate to all the circumstances of the offence, and the diversity of factors under s 16A(2) reflects the inherently discretionary nature of that task.

The Court also addressed the argument that it could exercise "mercy" in reducing a sentence even without exceptional circumstances, drawing on the Victorian Court of Appeal's approach in Carmody (1998) 100 A Crim R 41. The Court assumed, without deciding, that such a power exists under the Crimes Act 1914 (Cth). Even on that assumption, no basis for its exercise was found on the facts of this case.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A sentencing judge's explicit acknowledgment of hardship to a defendant's children in sentencing remarks is sufficient to demonstrate compliance with the obligation under s 16A(2)(p) of the Crimes Act 1914 (Cth).
  • Under s 16A(2), hardship to family members is one of many factors the court must weigh. It does not automatically compel a reduction in sentence, particularly for serious drug importation offences where a custodial sentence is unavoidable.
  • The broad discretionary nature of federal sentencing reflects the tension between the diverse factors in s 16A(2), including deterrence, punishment, and the welfare of dependants.
  • The Court of Criminal Appeal left open, without deciding, whether a power to show "mercy" in the absence of exceptional circumstances applies to sentencing under the Crimes Act 1914 (Cth), finding the question unnecessary to resolve on these facts.
  • In refusing the appeal, the Court confirmed that the subsequent warding of the applicant's children did not, of itself, establish that the original sentence was excessive or that insufficient weight had been given to the children's interests.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d) and Schedule 6
- Crimes Act 1914 (Cth), ss 16A(1) and 16A(2)(p)
- Children (Care and Protection) Act 1987 (NSW)

Cases:
- R v Carmody (1998) 100 A Crim R 41 (Victorian Court of Appeal)