This paper was written by Andrew HaeslerPublic Defender9 September 2004
Times are tough and sentences reflect the times. Where parliament sees fit to allow for sentences of draconian potential, the courts are increasingly seeking to reach that potential. There is little in the way of judicial restraint when it comes to imposing significant sentences on those who commit federal offences. Many would argue that restraint is not called for. Yet as we have seen with the recent heroin drought it is not penalties that deter but detection. As Jacobs J said many years ago in
Griffiths v The Queen (1977) 137 CLR 293, '
The deterrent to an increased volume of serious crime is not so much heavier sentences as the impression on the minds of those who are persisting in a course of crime that detection is likely and punishment will be certain.' Oh were such sensible comments to be made today!
Under the Constitution the administration of criminal justice is substantially but not exclusively a matter for the states. There are no express provisions in the Constitution allowing the Commonwealth to introduce criminal legislation. Fox & Freiberg,
Sentencing: State & Federal Law in Victoria 2nd Ed. 1999 para. 1.301. The power to make criminal laws is an incidental one There are a number of heads of power in s.51 and in the executive power s. 61. See Australian
Communist Party v The Commonwealth (1951) 83 CLR 1 at 212 per McTiernan J & Milicevic v Campbell (1975) 132 CLR 307, Quick,
Legislative Powers of the Commonwealth and the States of Australia, Law Book Co 1919, p13. Although the High Court has original jurisdiction to try offences and the Commonwealth could direct that only federal courts try federal matters, generally state courts deal with breaches of federal law. Fox & Freiberg, op. cit. at para. 1.303. The
Judiciary Act 1903 (Comm.) requires those courts to apply state law to the disposition of federal matters. Differences in approach and procedure are not sufficient to invalidate this process. In
Leeth v The Commonwealth (1992) 174 CLR 455 at 470, the High Court noted the obvious desirability of uniformity but also acknowledged that no principle could, because of local circumstances, be absolute.Those differences led however to the introduction of the now considerable body of Commonwealth criminal procedural legislation which can be found in Part 1B Crimes Act 1914 Comm. and the Commonwealth Criminal Code. The Criminal Code Chapter 2 contains all the principles concerning criminal responsibility that are to be applied in respect of Commonwealth offences. The language of the provisions in this Part draw heavily upon the judgment of Brennan J in
He Kaw Teh v The Queen (1985) 157 CLR 523. The common law concept of actus reus is replaced in the Code by the term "physical element" and the concept of mens rea by the term "fault elements". However Chapter 2 draws a much more rigid distinction between intention and recklessness than did Justice Brennan, in
He Kaw Teh at 570.
Part 1B Crimes Act 1914 (Comm.)
Matters relating to sentencing Federal offenders are found in the
Crimes Act Part 1B.
Section 16A CRIMES ACT 1914- SECT 16AMatters to which court to have regard when passing sentenceetc.(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:(a) the nature and circumstances of the offence;(b) other offences (if any) that are required or permitted to be taken into account;(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;(d) the personal circumstances of any victim of the offence;(e) any injury, loss or damage resulting from the offence;(f) the degree to which the person has shown contrition for the offence:(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or(ii) in any other manner;(g) if the person has pleaded guilty to the charge in respect of the offence—that fact;(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;(j) the deterrent effect that any sentence or order under consideration may have on the person;(k) the need to ensure that the person is adequately punished for the offence;(m) the character, antecedents, cultural background, age, means and physical or mental condition of the person;(n) the prospect of rehabilitation of the person;(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.(3)Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1), 20(1) or 20AB(1) is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.sets out matters, which must be taken into account by a sentencer. There is a tendency (as with s21A of the NSW
Crimes (Sentencing Procedure) Act 1999) to use these sections as a check-list and in every sentence hearing to go through each sub-section point by point. This is not strictly necessary and can introduce a mechanistic aspect to the sentencing process. This in turn, can lead to too great an emphasis being placed on the objective gravity of the offender's conduct rather than an overall view of the individual circumstances of the offender and of the crime committed. See McHugh J in
AB v The Queen (1999) 198 CLR 111 at 121-122 ..In
R v Ferrer-Essis (1991) 55 A Crim R 231, at 237, Hunt CJ CL criticised the trial judge for elaborating his views upon each of the items enumerated in the checklist provided by s16A:
Generally however greater exposition by sentencing judges of their reasons and reasoning process should be encouraged. As Kirby J said in
AB v The Queen '
It is too late (and undesirable) to return to unexplained judicial intuition'. Kirby J in
AB v The Queen at 150-  (Emphasis added). This however does not mean a strict mathematical approach is required. Such an approach has generally been disapproved of. It can lead to double counting As
R v Gallagher illustrates.. It can lead to the domination of the process by the objective gravity of the offences McHugh J in
AB v The Queen & Spigleman CJ in
R v Way  NSWCCA 131 at  &
R v Thomson and Houlton (2000) 49 NSWLR 383 at paras 57-60. It can lead to ridiculously high sentences and gross injustice
R v Markarian  NSWCCA 8, presently reserved before the High Court - HC S600/2003..
Fact finding and section 16A
Olbrich v The Queen (1999) 199 CLR 270 a circumstance of great significance was the role of the offender. However in many cases, it is impossible to determine precisely what that role is. As their Honours pointed out at :
The High Court in
Weininger v The Queen (2002) 212 CLR 629 Gleeson CJ, McHugh, Gummow, Hayne, and Callinan JJ at  to . considered the terms m
ust take into account and
known to the court. In summary, the court took the view that although matters of aggravation and mitigation had to be proved to the requisite standards some matters could simply be taken into account and did not need to be 'proved' in the conventional sense. It is worth setting out a lengthy passage from that judgment:
Other provisions in Part 1B
Section 16 BA provides for other federal offences to be taken into account as on the NSW Form 1 (Division 3 Part 3,
Crimes (Sentencing Procedure) Act 1999 NSW.Section 16 E(1) applies NSW law to the commencement of sentences and non-parole orders (see
R v Paull (1990) 20 NSWLR 427 at 433-444).Section 19 gives the court the power to accumulate sentences. Sentences may be concurrent, partially concurrent or cumulative.Section 19 AB allows for the fixing of a single recognisance release order or non-parole order for multiple offences. Sentencing for multiple offences was recently reviewed by the High Court in
Johnson v The Queen  HCA 15. In
R v Knight  NSWCCA 145, Howie J (at ) summarised the present position:
Section 20AB allows for NSW community based orders such as Community Service, Home Detention and Periodic Detention to apply to federal offenders.Section 20C allows children charged under federal law to be treated in the same manner as children under state law, although I note the death penalty is not available.Section 21E requires that where a reduction is made in sentence for cooperation with authorities the court must state the sentence that would have been imposed but for that reduction.
Drug Importation Offences: The nature of the drug - not all are equal:
A practice has arisen that the court will generally take into account the nature of the drug imported and rank it in order of seriousness based on its perceived negative effects. Heroin and cocaine are viewed as the most heinous. Other drugs such as MDMA are (or should I say were) viewed as of mid-range heinousness. Typical of cases where judges have said that mid-range drugs such as MDMA are less serious is
R v Durant  NSWCCA 295 See also
R v Robertson (1989) 44 A Crim R 224 and
R v Croker (1992) 58 A Crim r 359. where it was accepted that MDMA is not as bad in its effect as heroin and this could give rise to a discount in the sentence that should be imposed. Much can depend on the information that is put before the court about the drug and its effects See for example
R v Beresford (1972) 2 SASR 446..Attitudes have changed. In
R v Poon (2003) 56 NSWLR 284, the NSWCCA led by Justices Hulme and Ipp, held that ranking of drugs according to perceived dangerousness ran counter to the scheme of maximum penalties in the
Customs Act 1901(Comm.) Cannabis is recognised in the Act as deserving of a lesser penalty. It was not accepted that MDMA should be regarded as a mid-range drug.The Court relied on a passages from Wood CJ CL in
R v Bimahendali (1999) 109 A Crim R 355 at 362:
R v Casey  VSCA 117 where Winneke P said:
The reasoning in
Poon, based as it was on the available maximum penalty, however is flawed. It was recognised by the High Court in
Ibbs v The Queen (1987) 163 CLR 447 at 452:
There is a difference between (a) recognising an offences maximum penalty and having regard to it as an expression of the seriousness with which the legislature views an offence
Baumer v The Queen (1988) 166 CLR 51 at 56-57. and (b) reasoning from the available maximum that the legislature intends importation of all drugs to be deserving of equal punishment. One cannot simply presume that the parliament accepted that every drug would lead to, in a possible a worst case assessment, the maximum penalty available.That being said, the trend is now to against that proposition. As Heydon JA put it in
Amran Efendi v R  NSWCCA 391 with whom Wood CJ at CL and Carruthers AJ agreed.:
If an argument is to be made that an imported drug is less serious than heroin or cocaine you had better have evidence available to back it up. To put is simply it is the actual criminal and moral culpability of the offenders rather than of the drug imported that needs to be assessed.
How much weight should be given to the weight of the drug:
Following the successful appeal in
Wong v The Queen (2001) 207 CLR 584, it is no longer correct to sentence an offender convicted of being knowingly concerned in the importation of drugs by reference primarily to the weight of the particular drug. It is more appropriate to have particular regard to the role played by the offender in the importation. In
Wong the High Court specifically disapproved of the earlier guideline judgment of the NSW CCA
R v Wong, R v Leung (1999) 48 NSWLR 340 and of a guideline that was based almost exclusively on the weight of the drug imported.In the joint judgment of Gaudron, Gummow and Hayne it was said (at  & that:
This point was taken up by Buddin J in
Cerullo and Soukoulis  NSWCCA 201 at .
Regina v Mas Rivadavia; Regina v El Akkaoui; Regina v Aksu  NSWCCA 284 Wood CJ CL at  made a similar point:
Repeal of 16G
Section s16G of the
Crimes Act 1914 The related s19AG was also repealed. was designed to ensure that a court imposing federal sentences which were to be served in a prison of a State or Territory where sentences were not subject to remissions, had to take that fact into account in determining the length of the sentence and adjust the sentence accordingly. A rule of thumb developed that Commonwealth sentences should be reduced by 1/3 of that which would otherwise be appropriate (see
R v Paull (1990) 49 A Crim R 142).The rigidity of the initial formulation in
Paull was moderated in
El Karhani (1990) 51 A Crim R 123. There it was held, no precise formulae need be applied to satisfy s16G. A stage was later reached where the DPP successfully argued that a failure to give a 1/3 adjustment was not an error. The 1/3 reduction was held neither to be 'invariable' or 'inevitable (see
R v Budiman (1998) 102 A Crim R 411 at 415). Nevertheless, Courts were required to, and did, make due allowance for the requirements of the section. A failure to take the section into account at all was an error (see
R v O'Connor  NSWCCA 156).The
Crimes Legislation Amendment (
People Smuggling, Firearms Trafficking and other Measures) Act 2002 (Comm.) contained a little gem. In schedule 3 clause 1 'Other Measures', appear the words: '
Crimes Act 1914 section 16G - repeal the section'.It was explained to Parliament in the second reading speech '
The bill will also repeal sections 16G and 19AG of the Crimes Act 1914. That amendment will mean that courts will no longer have to take into account whether or not remissions are available in a state or territory when sentencing federal offenders in that state or territory. This shift follows the abolition of remissions in most states and territories and the move towards the removal of remissions in the remaining jurisdictions'. that the section was no longer necessary, as remissions had been abolished in most states and territories. Nothing else was said. There were no transitional provisions. The repeal applied to all Commonwealth sentences delivered after the 16 January 2003 including those matters where a guilty plea was entered before 16 January and where a person came to be re-sentenced after appeal.There was an automatic assumption by some judges that Commonwealth sentences must go up by 50%! Justice Howie
The Judicial Review Vol. 6 no.3 at p.39was the first to advocate this view in a talk at the annual judges conference:
The consequences of the repeal were first considered by the Court of Criminal Appeal in
R v Schofield  NSWCCA 3. Mr Schofield had received the benefit of s16G at first instance. When the court intervened and he came to be re-sentenced following a successful Crown appeal the section had been repealed. Carruthers AJ, with whom Heydon JA agreed, took the view that that Schofield should nevertheless be given the benefit of a deduction of one third from that figure, applying
Radenkovic v The Queen (1990) 170 CLR 623 at :
Hulme J reached the same point by applying the principle of 'double jeopardy' in Crown appeals.Soon after, a similar result was achieved by a different method in
R v Speer  NSWCCA 118. Speer was arrested at Sydney Kingsford-Smith Airport on 26 April 2002 with a commercial quantity of heroin. He pleaded guilty on 11 November 2002. However he was not sentenced until 21 February 2003 by which date s 16G had been repealed. O'Keefe J (with whose judgment Beazley JA and Bell J agreed) stated at :
The efficacy of the Howie view and what was said in
Speer was raised in
R v Studenikin  NSWCCA 164. Mr Studenikin had been caught at Sydney airport on the 5 June 2003 with ecstasy/MDMA with a total weight of 14 kilograms and pure weight of 3.2 kilograms. For various reasons he did not formally plead guilty until after the repeal of s16G. He received an overall sentence of imprisonment of 12 years with a non-parole period of 7 years. Judge Hock, took the view that the Studenikin had to be sentenced without regard to the sentencing practice, which operated prior to 16 January 2003.The court Grove, Howie JJ and Newman AJ rejected the reasoning in
Speer. It also rejected the argument that sentences need not go up following the repeal. Justice Howie did however back away from the more dogmatic statements in his earlier talk. At  t0  he said:
The court found that he sentence originally imposed was nevertheless manifestly excessive. They quashed the sentence imposed and substituted a sentence of 10 years and 6 months. The non-parole period determined by Judge Hock however remained the same.In
R v Kevenaar & Ors  NSWCCA 210 the court dealt with Crown appeals which again raised the vexed question of the effect of s.16G. The leading judgment came from Hulme J. Simpson & Howie JJ agreed:
The Court in
Kevenaar thus went further than what Howie J had said in
Studenikin, reverting to the original position explained by Howie J at the judges' conference.To complicate matters a more moderate position was taken by a different court in
R v Dujeu  NSWCCA 237. There, Smart AJ, took what in my (biased) opinion is a more realistic view of the repeal My opinion is of course biased by this view according with what I had submitted in
Studenikin.. His Honour with whom Hislop J agreed noted that:
Wood CJCL dealt with the conflict between what was said by Smart AJ and Hulme J in
Regina v Mas Rivadavia; Regina v El Akkaoui; Regina v Aksu  NSWCCA 284. After quoted the passage from Hulme J in
Kevenar noted above he said (at [ 79]),
He then cited Smart J in
Dujeu (at  to ) before concluding:
In conclusion:1. Sentences for Commonwealth offences will go up following the repeal.2. There should not be a simple mathematical increase of 50%.3. When reference is had to pre-January 2003 sentences, for considerations of consistency or parity, that those other sentences received a s16G discount must be factored into any analysis.4. For matters that arose before January 2003 there is conflicting authority as to whether Speer or Studenikin applies. Where there is to be a re-sentencing after appeal fairness and the application of Radenkovic v The Queen and Schofield will allow for a s16G discount (see most recently Regina v Prasad  NSWCCA 293 at .)
Well what's it worth?
I am going to duck this one, as each case must be examined on its merits or in the defence case demerits. The Judicial Commission statistics are a good starting point. Comparisons can be made with similar offences can be made using the tables from the Public Defenders Office website. All I can say is post- January 2003 sentences will go up across the board.
The Commonwealth Attorney General has asked the Australian Law Reform Commission to look at Part 1B and specifically the problem of the maintenance or otherwise of sentencing between states and between federal and state offenders within states. Unfortunately relief could take some time as the ALRC is not to report until January 2006.