Citation: R v A [2004] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 16 December 2004
Judge(s): Wood CJ at CL; Hulme J; Bell J
Background
The applicant, a Vietnamese-born woman who had settled in Australia in 1989, pleaded guilty in the District Court to importing heroin concealed in a pair of shoes. The heroin had a pure weight of 316.9 grams and an estimated street value of AUD $754,000. She was sentenced by Solomon DCJ to seven years' imprisonment with a non-parole period of four years and six months.
The applicant had been recruited at a local club and offered $20,000 plus travel expenses to act as a courier. She acknowledged knowing the conduct was illegal but had seen it as a way to assist her family in Vietnam. The sentencing judge accepted that she was a courier operating at the lowest level of the importation and that the assistance she had provided to the Australian Federal Police was "substantial and beneficial."
The applicant sought leave to appeal on the ground that the sentencing judge had failed to give adequate consideration to the discount for her assistance to authorities and had erred in his approach to the repeal of s 16G of the Crimes Act 1914 (Cth), a provision that had previously required a mandatory reduction in sentences for federal offences.
Legal Issues
- Whether the sentencing judge gave adequate consideration to the discount for the applicant's substantial assistance to authorities under the Crimes Act 1914 (Cth)
- Whether exchanges between the bench and counsel during submissions could be treated as part of the sentencing judge's formal reasons
- How the repeal of s 16G of the Crimes Act 1914 (Cth) should be approached when sentencing for federal offences, and what effect it should have on the sentencing range
Decision
The Court granted leave to appeal but ultimately dismissed the appeal. On the question of transparency in sentencing, the Court confirmed that judges are required to disclose in their reasons the process by which a sentence is reached. Exchanges between the bench and counsel during submissions do not form part of those reasons, and a passing observation made during argument cannot safely be taken as a judge's considered or final view.
The Court examined the sentencing judge's reasons and, despite the absence of an explicit numerical breakdown of the discount for assistance, was satisfied that the judge had taken all relevant factors into account. No error was established that would warrant interference with the sentence imposed.
On the effect of the repeal of s 16G, the Court addressed a significant interpretive question. Section 16G had required sentencing courts to reduce federal sentences to account for the fact that federal prisoners were not eligible for remissions available to state prisoners. Its repeal, under the transitional provisions of the amending legislation, meant it no longer applied to sentences imposed after the repeal date. Hulme J, in a separate judgment, expressed the view that the repeal should logically result in an increase in sentences of approximately 50% above those imposed when s 16G was operative, because courts had consistently expressed a "head sentence" before applying the s 16G reduction, and those head sentences remained the appropriate starting point. His Honour rejected the suggestion that judges had unconsciously inflated starting points to counteract the effect of s 16G, finding no evidence to support that proposition.
Bell J agreed with Wood CJ at CL. Wood CJ's reasoning accepted that the sentencing judge's approach, while not fully articulated in the reasons, did not disclose appellable error on the facts of this case.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Exchanges between a sentencing judge and counsel during submissions do not constitute the judge's formal reasons for sentence, and a passing remark made in the course of argument cannot safely be treated as the judge's final or considered view.
- Transparency in sentencing requires judges to disclose in their reasons the process by which a sentence is reached, but the absence of an explicit numerical discount does not automatically constitute appellable error if it is clear all relevant factors were taken into account.
- Under s 16G of the Crimes Act 1914 (Cth), while it was in force, courts were required to reduce the sentences of federal offenders to account for their ineligibility for remissions applicable to state prisoners, with the reduction generally quantified at approximately one-third of the sentence.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the repeal of s 16G should, as a matter of logic, result in an increase in sentences for federal offences of approximately 50% above the pre-repeal range, given that pre-repeal "head sentences" were the genuine starting points before the statutory reduction was applied.
- No evidence supported the proposition that sentencing judges during the s 16G era had inflated their starting points to counteract the effect of the provision, and statements to the contrary in earlier decisions were regarded as substantially understating the proper effect of the repeal.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2), 16A(3), 16G, 21E
- Customs Act 1901 (Cth), s 233B(1)
Cases:
- Cameron v The Queen (2002) 76 ALJR 383
- R v Bezan [2004] NSWCCA 342
- R v Budiman (1998) 102 A Crim R 411
- R v El Karhani (1990) 51 A Crim R 123
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Henry (1999) 46 NSWLR 346
- R v Kain [2004] NSWCCA 143
- R v Kevenaar [2004] NSWCCA 210
- R v Klein [2001] NSWCCA 120
- R v Muanchukingkan (1990) 52 A Crim R 354
- R v Smith and Jones [2001] NSWCCA 279
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Wong and Leung (1999) 48 NSWLR 340
- Various other NSWCCA decisions cited in the judgment