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Court of Criminal Appeal 3 August 2004

R v Dujeu [2004] NSWCCA 237 revised - 04

[2004] NSWCCA 237

Also reported as 146 A Crim R 121
Drugs
SEVERITY APPEAL REASONS GIVEN FOR SENTENCE NO REASONS SPECIFICALLY GIVEN FOR NON PAROLE PERIOD NO ERROR

Citation: R v Dujeu [2004] NSWCCA 237 revised – 04/08/2004; reported at 146 A Crim R 121
Court: NSW Court of Criminal Appeal
Date: 3 August 2004
Judge(s): Dowd J, Hislop J, Smart AJ

Background

The appellant pleaded guilty in the District Court to importing a trafficable quantity of methylamphetamine (242.5 grams pure) into Australia from Indonesia. He had internally concealed approximately 60 capsules of high-purity methylamphetamine, one or more of which ruptured during the flight. He came to police attention after seeking hospital treatment on arrival, believing he had overdosed.

The sentencing judge (Bell DCJ) imposed a head sentence of seven years with a non-parole period of four and a half years, representing approximately 64.3 per cent of the head sentence. The appellant was treated as a courier and received a 20 per cent discount for his early guilty plea, though the sentencing judge expressed some concern about his lack of full candour with police.

The appellant sought leave to appeal against the severity of the sentence, conceding that both the head sentence and non-parole period fell within the appropriate range, but arguing that the sentencing judge had erred in how the sentence was reasoned and set.

  • Whether a sentencing judge is required to give separate, specific reasons for the proportion of the non-parole period relative to the head sentence
  • Whether the non-parole period was manifestly excessive in light of the appellant's favourable subjective circumstances, including youth, prior good character, remorse, and low likelihood of reoffending
  • The effect of the repeal of ss 16G and 19AG of the Commonwealth Crimes Act 1914, which had previously required courts to adjust federal sentences and non-parole periods to account for the absence of remission laws in the relevant State or Territory

Decision

On the first ground, the Court held that a sentencing judge is not required to give separate reasons specifically addressing the non-parole period. A sentence with a non-parole period is a single sentence, not two. Provided the sentencing remarks adequately explain the overall sentence, that explanation serves as the reasoning for both the head sentence and the non-parole period. The Court endorsed the reasoning in Norton v R [2003] WASCA 86 to this effect.

The Court found that Bell DCJ had given adequate reasons for the overall sentence. His Honour carefully addressed the objective seriousness of the offence, the s 16A factors under the Commonwealth Crimes Act 1914, the appellant's favourable subjective circumstances, and comparable sentences. The non-parole period of 64.3 per cent fell comfortably within the well-established range of 60 to 66⅔ per cent recognised in Bernier v R.

On the second ground, the Court rejected the contention that the non-parole period was manifestly excessive. The appellant's favourable personal circumstances had plainly been taken into account. The Court noted that young, first-time drug offenders of prior good character form a recognised (and regrettably common) category in this area of sentencing. The size of the importation, its high purity, and the secretive method of concealment, which gave the offence a strong prospect of success, warranted the period imposed.

The Court granted leave to appeal given the legal points raised, but dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge who imposes a sentence with a non-parole period is imposing a single sentence, and is not obliged to provide discrete reasons specifically for the non-parole period, provided the sentencing remarks adequately explain the overall sentence.
  • The Court of Criminal Appeal confirmed that the long-accepted range of 60 to 66⅔ per cent for non-parole periods relative to head sentences applies to standard, non-distinctive cases, and a period within that range will not ordinarily attract appellate intervention.
  • In dismissing the second ground of appeal, the Court observed that strong subjective features (youth, good character, remorse, and low reoffending risk) do not automatically produce a lower non-parole period where the objective seriousness of the offending remains high.
  • Concessions by an appellant that both the head sentence and non-parole period are within the appropriate range significantly constrain the available grounds of severity appeal.
  • The repeal of ss 16G and 19AG of the Commonwealth Crimes Act 1914 (which had required adjustment of federal sentences and non-parole periods to reflect the absence of State remission laws) was noted as part of the sentencing context, and the Court found no error arising from that legislative change.

Legislation and Cases Referenced

Legislation:
- Commonwealth Crimes Act 1914 (Cth), including the repealed ss 16G, 19AG, and s 16A
- Sentencing Act 1989 (NSW)

Cases:
- Bernier v R (1998) 102 A Crim R 44
- Bugmy v R (1990) 169 CLR 525
- Deakin v R (1984) 58 ALJR 367
- Griffiths v R (1977) 137 CLR 293
- Norton v R [2003] WASCA 86
- Power v R (1974) 131 CLR 623
- R v Maclay (1990) 19 NSWLR 112
- R v Nai Poon (2003) 56 NSWLR 284
- R v Oliver (NSWCCA, 20 March 1980, unreported)
- R v Pawa [1978] 2 NZLR 190
- R v Robinson (1979) 22 SASR 367
- R v Studenikin [2004] NSWCCA 164
- R v Visconti [1982] 2 NSWLR 104