Citation: R (Cth) v Ian Robert Chalmers (No 2) [2007] NSWCCA 340
Court: NSW Court of Criminal Appeal
Date: 12 December 2007
Judge(s): Spigelman CJ, Simpson J, Harrison J
Background
The respondent had been convicted after a jury trial of conspiracy to import cocaine into Australia in a commercial quantity. Following that conviction, the District Court sentenced him and applied a discount of approximately 10 percent to reflect modest assistance he had provided to authorities, even though he had not pleaded guilty.
The Commonwealth Director of Public Prosecutions successfully appealed that sentence. On 15 August 2007, the Court of Criminal Appeal allowed the Crown appeal, set aside the original sentence, and imposed a more severe term of 12 years' imprisonment with a non-parole period of 8 years. The Crown appeal had not challenged either the fact of the assistance discount or its size.
The respondent then applied under section 43 of the Crimes (Sentencing Procedure) Act 1999 to reopen the appeal. He argued that the re-sentence was "contrary to law" because the Court's substituted sentence had not expressly replicated the 10 percent assistance discount that Berman DCJ had originally allowed.
Legal Issues
- Whether the re-sentence imposed by the Court of Criminal Appeal was "contrary to law" within the meaning of section 43 of the Crimes (Sentencing Procedure) Act 1999, so as to enliven the court's power to reopen the proceedings.
- Whether the Court, when re-sentencing after a successful Crown appeal, was required to expressly replicate the assistance discount that had been allowed at first instance and had not been challenged on appeal.
- Whether the absence of any explicit reference to the discount in the re-sentencing reasons was sufficient to establish that the discount had been overlooked.
Decision
Simpson J (with whom Spigelman CJ and Harrison J agreed) acknowledged that section 43 should be given a broad construction, following the guidance in Ho v Director of Public Prosecutions (1995) 37 NSWLR 393. Under that approach, a failure to consider a matter to which a sentencer is legally obliged to give weight, such as pre-sentence custody, can produce a penalty that is "contrary to law." The applicant argued the same logic applied here: because the discount was unchallenged on appeal, failing to replicate it amounted to a legal error.
Simpson J declined to explore her own or her colleagues' thought processes beyond what appeared in the written reasons. She held that, in investigating whether an error occurred in the court's own reasoning, the appropriate and only proper course was to analyse the written judgment, not to attempt to reconstruct internal deliberations.
On close re-examination of the reasons, Simpson J found that the re-sentence had been built upon the sentencing range derived from a comparative schedule set out in R v Lee [2007] NSWCCA 234. That schedule incorporated cases in which various assistance discounts had already been applied. In addition, the court had selected the very lowest end of the applicable range. Taking those factors together, Simpson J concluded that, although the discount had never been made explicit, the applicant had not in fact been denied its benefit.
The court also noted that, even if the power to reopen had been enlivened, a further reduction to the sentence would have produced a term disproportionately low in light of the objective seriousness of the offending.
Orders Made
- Application dismissed.
Key Takeaways
- Section 43 of the Crimes (Sentencing Procedure) Act 1999 permits reopening of finalised proceedings, including appeals, where a penalty imposed is "contrary to law," but it is not a vehicle for a general rehearing on the merits of the sentence.
- Where a Crown appeal does not challenge an assistance discount allowed at first instance, the ordinary practice of the Court of Criminal Appeal is to replicate both the determination and the quantification of that discount when re-sentencing.
- The absence of explicit reasoning on a sentencing factor does not automatically establish that the factor was overlooked: the reasons must be read as a whole, including the methodology and comparative materials used to arrive at the sentence.
- In assessing whether the Court of Criminal Appeal made an error in its own re-sentencing, Simpson J held it was inappropriate to look beyond the written reasons to reconstruct the judges' thought processes.
- A re-sentence pitched at the very lowest end of a comparable-cases range, where some of those comparables already incorporated assistance discounts, may implicitly reflect an unspoken allowance for modest assistance, even without express acknowledgment.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
Cases:
- Ho v Director of Public Prosecutions (1995) 37 NSWLR 393
- R v Lee [2007] NSWCCA 234
- Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247