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31
Court of Criminal Appeal 8 March 2011

Alvares v R Farache v R

[2011] NSWCCA 33

Also reported as (2011) 209 A Crim R 297
Drugs
CRIMINAL LAW APPEAL WHETHER ERROR IN FIXING THE NON PAROLE PERIOD

Citation: Alvares v R; Farache v R [2011] NSWCCA 33
Court: Court of Criminal Appeal, New South Wales
Date: 8 March 2011
Judge(s): McClellan CJ at CL, Buddin J (primary reasons), Schmidt J

Background

Two co-offenders sought leave to appeal against sentences imposed in the District Court following guilty pleas to serious Commonwealth drug offences. The offences centred on a conspiracy to import commercial quantities of phenyl-2-propanone (P2P), a border controlled precursor used to manufacture methylamphetamine, with the conduct spanning 2007 to 2008. One applicant also faced counts of importing a commercial quantity of P2P and attempting to possess a commercial quantity of methylamphetamine.

Both applicants played prominent roles in the scheme over an extended period. Each offence on the indictment carried a maximum penalty of 25 years imprisonment. The first applicant received an effective head sentence of 12 years with a non-parole period of 7 years; the second received a head sentence of 9 years with a non-parole period of 5 years.

The applications were heard together by consent, the grounds overlapping substantially. Neither applicant contended that the sentences imposed were manifestly excessive.

  • Whether the sentencing judge failed to properly assess, or gave insufficient weight to, evidence of each applicant's remorse
  • Whether the sentencing judge erred by applying a "norm" ratio of 60 to 66 percent when fixing the non-parole period in relation to Commonwealth offences, given no such statutory formula exists under the relevant legislation
  • Whether the sentencing judge erred by failing to make a finding as to the first applicant's prospects of rehabilitation

Decision

Remorse: The Court of Criminal Appeal found no error in the sentencing judge's approach to remorse. Buddin J examined the sentencing remarks carefully and concluded that his Honour had engaged with the evidence on remorse, even if the findings were qualified or limited in weight. The mere fact that remorse was not treated as a significant mitigating factor did not establish error, particularly where a plea of guilty alone does not automatically demonstrate genuine remorse.

Non-parole period ratio: The Court rejected the argument that the sentencing judge had mechanically applied a 60 to 66 percent ratio as a binding formula. Buddin J acknowledged that no such statutory norm exists for Commonwealth offences, but found that a reference to common ratios or "norms" in sentencing remarks does not of itself constitute error, provided the judge does not treat the ratio as a rigid rule displacing the individual assessment required. On the facts, no such error was established.

Rehabilitation: The Court found no error in relation to the first applicant's rehabilitation prospects. Although the sentencing judge did not make an express finding, Buddin J concluded this was an oversight rather than a failure to consider the issue. The judge's detailed review of the material under the heading "Prospects of Rehabilitation" was plainly directed at forming a positive view, and the earlier finding of some remorse was consistent with a finding of good rehabilitation prospects.

Overall: Even if error had been established on any ground, the Court concluded it would not have found a lesser sentence warranted under section 6(3) of the Criminal Appeal Act 1912, given the objective gravity of the offending and the prominent role each applicant played.

Orders Made

  • Leave to appeal granted in each case
  • Appeals dismissed

Key Takeaways

  • A sentencing judge's reference to a non-parole period "norm" of 60 to 66 percent does not constitute error for Commonwealth offences, provided the ratio is not applied as a rigid formula in place of an individualised assessment.
  • Remorse is not automatically established by a guilty plea alone. Under the principles affirmed in this decision, a sentencing court may give limited weight to remorse where the evidence of it is qualified or insufficiently demonstrated.
  • Where a sentencing judge reviews rehabilitation material in detail but omits an express finding, the Court of Criminal Appeal may treat that omission as an oversight rather than a failure to consider the issue, if the review itself indicates a positive conclusion was reached.
  • Remorse and prospects of rehabilitation are closely linked: as the Court noted by reference to R v MAK, without true remorse it is difficult to make a positive finding on either non-reoffending or rehabilitation.
  • In dismissing both appeals, the Court confirmed that the objective gravity of serious Commonwealth drug offending, involving a prominent role over an extended period, will carry significant weight in the sentencing exercise, capable of outweighing favourable subjective features.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Evidence Act 1995 (NSW)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Cameron v The Queen (2002) 209 CLR 339
- GAS v The Queen (2004) 217 CLR 198
- Weininger v The Queen (2003) 212 CLR 629
- Hili v R; Jones v R [2010] HCA 45; (2010) 272 ALR 465
- R v MAK (2006) 167 A Crim R 159
- R v Ellis (1986) 6 NSWLR 603
- Butters v R [2010] NSWCCA 1
- Pham v R [2010] NSWCCA 208
- R v Qutami (2001) 127 A Crim R 369
- R v Gallagher (1991) 23 NSWLR 220
- Thewlis v R (2008) 186 A Crim R 279
- R v Alameddine [2004] NSWCCA 286
- R v Hooper [2004] NSWCCA 10
- R v Elfar [2003] NSWCCA 358
- R v McGourty [2002] NSWCCA 335
- R v Niketic [2002] NSWCCA 425
- R v Baker [2000] NSWCCA 85
- R v Stafrace (1997) 96 A Crim R 452
- R v Tulloh (NSWCCA, 16 September 1993, unreported)