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22
Court of Criminal Appeal 21 May 2004

R v Studenikin

[2004] NSWCCA 164

Also reported as 60 NSWLR 1
Drugs
CRIMINAL LAW AND PROCEDURE SENTENCING SECTION 16G OF CRIMES ACT (CTH)

Citation: R v Studenikin [2004] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 21 May 2004
Judges: Grove J, Howie J, Newman AJ

Background

The applicant was convicted of a Commonwealth drug importation offence and sentenced in the District Court by Hock DCJ. The sentence imposed was challenged on appeal as manifestly excessive. The applicant also raised a secondary argument based on the Court of Criminal Appeal's earlier decision in R v Speer, concerning the treatment of s 16G of the Crimes Act 1914 (Cth) at sentencing.

Section 16G had required sentencing courts in New South Wales to reduce Commonwealth sentences by approximately one third, to account for the abolition of remissions in NSW and to achieve parity with prisoners in other states where remissions remained available. That section was repealed with effect from 6 January 2003, with no transitional provisions included in the amending legislation, other than a clause providing the repeal applied to sentences imposed after commencement regardless of when the offence was committed.

The applicant had been sentenced after the repeal took effect. The question was whether the sentencing judge had erred by failing to recognise a discretion to give the applicant the benefit of the former one-third reduction, given that his offending and guilty plea pre-dated the repeal.

  • Whether the sentence imposed was manifestly excessive having regard to the objective seriousness of the offence, the applicant's subjective circumstances, and relevant discounts for the guilty plea and assistance
  • Whether, following the repeal of s 16G, a sentencing court retained a discretion to apply a one-third reduction where the offender's offending and plea pre-dated the repeal
  • Whether the absence of transitional provisions in the repealing legislation, combined with the broad language of s 16A of the Crimes Act 1914 (Cth), permitted a court to give effect to fairness considerations in fixing the sentence

Decision

On the main ground of appeal, the Court found the sentence of 13 years imposed by Hock DCJ was manifestly excessive. Howie J assessed the objective seriousness of the offence alongside the applicant's subjective circumstances, including his guilty plea and the limited assistance he provided. Taking those matters into account under ss 16A and 16B of the Crimes Act 1914 (Cth), a sentence of 10 years and 6 months was appropriate. The non-parole period of 7 years, however, was considered appropriate and was left undisturbed.

On the s 16G argument, Grove J (with whom Howie J and Newman AJ agreed) examined the decisions in R v Speer and R v Schofield. Those cases had recognised that, even after the repeal of s 16G, a sentencing court retained a discretion to take account of the fact that an offender's circumstances straddled the change in the law, and to avoid imposing a harsher sentence than would have applied had the offender been sentenced before the repeal. The source of that discretion was identified in the introductory words of s 16A of the Crimes Act ("in addition to any other matters"), which were considered a sufficient statutory warrant for recognising relevant circumstances of fairness.

The Court confirmed that the absence of transitional provisions in the repealing legislation was a relevant consideration. While the amending Act expressly applied to sentences imposed after commencement, that provision did not remove the court's sentencing discretion altogether. A sentencing judge could, depending on the facts, exercise that discretion to give the offender the benefit of the former reduction where fairness demanded it, and failure to recognise that discretion existed constituted error.

In this case, having already found the sentence excessive on the primary ground, the Court allowed the appeal, quashed the original sentence, and substituted the reduced term.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Sentence of 10 years and 6 months substituted, to date from 5 June 2002
  • Non-parole period of 7 years unchanged

Key Takeaways

  • Following the repeal of s 16G of the Crimes Act 1914 (Cth), a sentencing court was not automatically precluded from giving an offender the benefit of a one-third reduction where the offending and plea pre-dated the repeal; a residual discretion remained.
  • The introductory words of s 16A of the Crimes Act 1914 (Cth), framed as "in addition to any other matters," provided a statutory basis for recognising fairness considerations when an offender fell between two sentencing regimes.
  • Absence of transitional provisions in the repealing legislation was identified as a relevant consideration in the exercise of sentencing discretion, not merely a neutral omission.
  • A sentencing judge's failure to recognise the existence of this discretion, where the offender's circumstances called for its consideration, constituted an error warranting appellate intervention.
  • In assessing whether a sentence is manifestly excessive for a Commonwealth offence, the Court of Criminal Appeal applied ss 16A and 16B of the Crimes Act 1914 (Cth) and considered the objective seriousness of the offence, the offender's subjective circumstances, and relevant discounts, without necessarily working backward from a postulated starting point.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 16B, 16G, 19AG
- Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth), s 4 and Schedule 3
- Sentencing Act 1989 (NSW)
- Acts Interpretation Act 1901 (Cth), s 8
- Customs Act 1901 (Cth), s 233B(1)(b)
- Migration Act 1958 (Cth), s 234(1)(b)

Cases:
- R v Speer [2004] NSWSC 115 (NSWCCA, 22 March 2004)
- R v Schofield [2003] NSWCCA 3
- R v Paull (1990) 49 A Crim R 142
- R v El Karhani (1990) 51 A Crim R 123
- Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370
- R v O'Brien (1984) 2 NSWLR 449
- R v Maclay (1990) 19 NSWLR 112
- Radenkovic v The Queen (1990) 170 CLR 623
- Wong and Leung v The Queen (2001) 207 CLR 584
- R v Wong and Leung (2000) 48 NSWLR 340
- R v Chan (2002) 128 A Crim R 119
- R v MJR (2002) 54 NSWLR 368
- Beard v The Queen [2003] WASCA 362