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47
Court of Criminal Appeal 14 December 2001

Regina v Togias

[2001] NSWCCA 522

Also reported as (2001) 127 A Crim R 23
Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE COURIER ACTING FOR FINANCIAL GAIN CROWN APPEAL MANIFEST INADEQUACY RELEVANCE OF INTERNATIONAL CONVENTIONS

Citation: Regina v Togias [2001] NSWCCA 522
Court: NSW Court of Criminal Appeal
Date: 14 December 2001
Judges: Spigelman CJ; Grove J; Einfeld AJ

Background

The respondent pleaded guilty in the District Court to importing a commercial quantity of MDMA (ecstasy) under the Customs Act 1901 (Cth). The quantity was approximately one kilogram, double the commercial threshold. She had acted as a courier for financial gain, placing her at the lower end of the drug importation hierarchy but still within a range ordinarily attracting substantial custodial sentences.

The respondent became pregnant after her arrest and charge. By the time she appeared for sentencing before Woods DCJ, she had recently given birth and was apparently breastfeeding. The sentencing judge imposed three years imprisonment, wholly suspended, placing significant weight on the potential separation of mother and newborn child.

The Crown appealed, contending the sentence was manifestly inadequate. The Court of Criminal Appeal was asked to assess both the adequacy of the sentence and the procedural approach taken by the sentencing judge in addressing the family circumstances.

  • Whether a fully suspended three-year sentence for importing a commercial quantity of MDMA was manifestly inadequate in the circumstances.
  • Whether the sentencing judge had sufficient evidentiary basis to give substantial weight to the probable effect of imprisonment on the respondent's newborn child under s 16A(2)(p) of the Crimes Act 1914 (Cth).
  • Whether the sentencing judge should have deferred sentencing to obtain evidence about custodial arrangements, including whether the respondent and child could be accommodated together in prison.
  • Whether the limitations on periodic detention and home detention in NSW applied to federal offences by operation of s 20AB(1A) of the Crimes Act 1914 (Cth).
  • What relevance, if any, international conventions (including the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Innocenti Declaration on breastfeeding) had to the sentencing exercise.
  • Whether, on remittal, resentencing should be conducted by a different judge (the majority and Einfeld AJ differed on this point).

Decision

The Court unanimously found the three-year wholly suspended sentence manifestly inadequate. The sentencing range for couriers at the lower end of the hierarchy for offences of this type was five to nine years, with non-parole periods of three to six years. A sentence of three years, entirely suspended, fell well outside that range and failed to meet the mandatory requirement in s 16A(1) of the Crimes Act 1914 (Cth) to impose a sentence of severity appropriate to all the circumstances.

The Court accepted that the probable effect of a sentence on a defendant's family and dependants is a legitimate sentencing consideration under s 16A(2)(p). However, exceptional circumstances are required before that consideration can justify a substantial departure from the otherwise appropriate custodial term. The evidentiary foundation in this case was thin: little sworn evidence had been placed before the sentencing judge about the respondent's family circumstances, the arrangements available for the child if the respondent were imprisoned, or the prison system's capacity to house mother and child together.

Spigelman CJ and Grove J held that the appropriate course had been to defer sentencing so that proper evidence could be gathered, including an assessment of whether custodial arrangements could be made humane by accommodating the child with the mother. The sentencing judge had correctly identified that the evidence from the Department of Corrective Services disclosed potentially unacceptable delays, but erred in not using the power to defer sentence to address that problem before making an order. Einfeld AJ agreed the sentence was manifestly inadequate but expressed different views on some of the subsidiary questions, including whether resentencing should be by the same or a different judge.

On the question of international conventions, the Court observed that instruments such as the Convention on the Rights of the Child could inform the interpretation of domestic legislation but did not override it. The Court also clarified that state-based restrictions on periodic detention and home detention were not abolished for federal offenders by s 20AB(1A) of the Crimes Act 1914 (Cth): applicable state limitations remained in force.

Orders Made

  • Appeal allowed.
  • Matter remitted to the District Court for resentencing.

Key Takeaways

  • A fully suspended sentence for importing double the commercial quantity of MDMA was held manifestly inadequate, with the appropriate custodial range for lower-hierarchy couriers being five to nine years, with non-parole periods of three to six years.
  • Under s 16A(2)(p) of the Crimes Act 1914 (Cth), the probable effect of a sentence on family members and dependants is a recognised sentencing factor, but exceptional circumstances are required before it can justify a substantial reduction from an otherwise appropriate custodial sentence.
  • Where insufficient evidence exists about the impact of custody on a defendant's infant child, the correct procedural response is to defer sentencing to obtain that evidence, not to impose a suspended sentence in the absence of a proper evidentiary foundation.
  • In an appropriate case, the inability of prison authorities to provide humane custodial conditions (including contact between a mother and infant) could justify declining to impose a custodial sentence, but that conclusion must rest on actual evidence rather than inference.
  • International conventions, including the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women, may inform the interpretation of domestic sentencing legislation but do not displace it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2)(p), 20AB(1A)
- Customs Act 1901 (Cth), s 233B(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11(1)(c)
- Crimes Legislation Amendment Act (No 2) 1990
- Crimes Regulations 1990 (Cth)
- Justices Act 1902 (NSW)
- Human Rights Act 1998 (Imp)

Key Cases:
- R v Griffiths (1977) 137 CLR 293
- R v Capper [2000] NSWCCA 63
- Minister for Immigration & Ethnic Affairs v Teoh (1994-1995) 183 CLR 272
- Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
- Mabo v Queensland (No 2) (1991-1992) 175 CLR 1
- Kartinyeri v The Commonwealth (1998) 195 CLR 337
- R v Caradonna [2000] NSWCCA 398
- R v Ceissman [2001] NSWCCA 73
- R v Luong [2000] NSWCCA 139
- Nguyen v The Queen [2001] WASCA 72
- Baker v Canada (1999) 174 DLR (4th) 193
- R v La Mude [2001] VSCA 33