Sentencing Issues 2003

A paper by Andrew Haesler
Barrister and Public Defender
June 2003

INTRODUCTION

Let us reflect for a moment on the impact of what Justice McHugh has called out the “persistently punitive attitude of the community toward criminals” Ryan v The Queen (2001) 200 CLR 267 at [46].

In 1989 there were 4,800 people in full time custody in New South Wales. In June 2001 it was 7,750. In February this year the numbers topped 8,000, nearly 2,000 of who were on remand.

More go through the system each year. In the 12 months to 30 June 2001 there were actually 8,646 people sentenced to prison by NSW adult courts. Of this total 5,578 (60%) received sentences of six months or less (BOCSAR Contemporary Issues No 73 September 2002). If United Kingdom studies are applicable here, over 60% will be convicted of another offence within two years. (See “A New Approach to sentencing”- Lord Woolf Judicial Officers Bulletin Vol 15 no3 April 2003). NSW imprisons about -172 people per 100,000 adults, Victoria - 85 per 100,000 in the Northern Territory a staggering- 458 per 100,000. It costs over $180 per day to keep a prisoner in maximum security.

In late 2002 the New South Wales Parliament Select Committee on the Increase in Prison Population recommended that prison sentences of six months or less be abolished. It has been estimated by the Bureau of Crime Statistics that such a measure would reduce the New South Wales prison population by about 10% and save between $33 million and $47 million per year in the recurrent costs of housing prisoners. A significant proportion of those who would be saved a gaol term would be Aboriginal and Torres Strait Islanders (20%) and women (10%).

Those figures do not count those serving periodic detention, home detention and community service orders.

There are in New South Wales enlightened provisions such as s5 Crimes (Sentencing Procedure Act) 1999:

This provision gives legislative effect to the long recognised principle that imprisonment should be a matter of “last resort”. Where reasonable alternatives are available they should be used. R v O’Connor (1986) 23 A Crim R 50 at 53. At times it appears to be a principle more ignored than implemented. Perhaps we are simply reverting to type, after all prisons were in New South Wales’s “first industry.”

Despite the occasional calls to stop the law and order auction, recent comments by both the Premier and Leader of the Opposition in relation to bail laws show it is not likely to end. The Premier in fact recorded in his diaries a confession of a genuine fear that “crime” would be his downfall (SMH 2 May 2003). Given that we cannot expect the easing of tabloid pressure on the government and opposition - the auction will continue. This will at least ensure more work for criminal lawyers! Other members of the public can take comfort from the words of the former Police Minister Mr Costa during the recent election “if you’ve done nothing wrong, you have nothing to fear” (SMH 7 March 2003 p 6).

In the United Kingdom in response to significant increases in prison numbers, sentencing guideline judgements have held that for white collar crimes and first offence burglary, gaol should be a matter of last resort (R v Kefford [2002] EWCA 519 and R v McInerney & Keating [2003] EWCA 3003). Lord Woolf the Lord Chief Justice of England and Wales has made a strong plea for common sense and a responsible approach to sentencing. (See his article in Volume 15 Judicial Officers Bulletin No. 3 April 2003). He there quotes with approval the leading criminologist Sir Leon Radzinowicz:

If only our own senior Judges were as incisive and concerned.

Having got my little diatribe out of the way lets talk about the here and now. What I propose to do in this talk is take you to some of the recent key legislative changes to sentencing law in NSW. Most are contained in the Crimes (Sentencing Procedure Act) 1999, as amended. Of particular importance are the new s3A – Principles of Sentencing, the new s21A - Aggravating and Mitigating matters and the new Part 4 Division 1A - the Standard Non-Parole Period.

There have also been small but significant changes, including sentencing for periodic detention and the repeal of s16G of the Commonwealth Crimes Act 1914. I will then look at some of the what has happened with guideline judgments before concluding with a reviews of significant decisions of the High Court of Australia - Weininger v The Queen (2003) 77 ALJR 872 and Pearce v The Queen (1998) 194 CLR 610.

A comprehensive review of the post 1999 legislation can be found in my paper, presented to an earlier College Criminal Law Day, The Crimes (Sentencing Procedure) Act- 2 Years on and an earlier version of this paper Be Afraid Be Very Afraid – both together with a paper by Chrissa Loukas are available on the Public Defenders' website.  In my later paper I referred to the enterprise of reviewing recent legislative change by reference to Josef Conrad’s novel Heart of Darkness. Let the journey begin!

Section 3A Purposes of sentencing

The section applies to all offences whenever committed except where the sentencing proceedings relate to a conviction of plea of guilty that was entered and not withdrawn before the 1 February 2003 (Schedule 2, Part 7 Crimes (Sentencing Procedure) Act 1999).

One of those who advised on the drafting, Peter Johnson SC, has said the new section 3A does not alter the common law (Johnson SC, Reforms to Sentencing Law, March 2003 available from the Judicial Commission of NSW). In obiter remarks in Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518 at [58] –[60] the Chief Justice was not so blasé. He noted that both 3A (c) (e) and (g) were worded quite differently to their the common law equivalents and add “new elements” to the sentencing task:

The Canadian Supreme Court in R v Gladue [1999] 1 SCR 88, made some interesting and pertinent observations on the purposes of sentencing particularly rehabilitation and on notions of restorative justice.

Periodic Detention:
The Crimes Legislation Amendment (Periodic And Home Detention) Act 2002 snuck through most commentators guard. A new s 65A has been added to the Crimes (Sentencing Procedure) Act 1999. If a person has at any time served more than six months imprisonment for a prior offence at any time or any place he or she cannot get periodic detention!

Non-Association Orders
As of 22 July 2002 a court sentencing for an offence carrying a maximum term of 6 months or more may in addition to any other punishment make an order prohibiting the person from associating with nominated others or banning them from visiting a certain place or district (s17A Crimes (Sentencing Procedure) Act 1999 and part 8A of the Act). They cannot be made if only s10 or s 11 orders are made. They must be for a specified term. They cannot ban you from association with close relatives (s100A)). Breach can result in imprisonment (s100E).

The measures reintroduce the discredited consorting laws most of which (but not all as s546A Crimes Act shows) were repealed decades ago.

Standard Minimum Terms:
According to a study by the NSW Judicial Commission sentencing guidelines in armed robbery matters have been a success, as they have, “reduced systematic excessive leniency and inconsistency in sentencing practice” (The Impact of R v Henry, Judicial Commission: Sentencing Trends No 26, February 2003). While I take issue with the assumption that pre Henry leniency was “excessive” it is clear from the study that guidelines have seen significant increases in both the number of offenders subject to full time imprisonment and in the length of those sentences.

The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 now provides for standard non-parole periods for a number of select and generally, but not exclusively, serious offences. See Table attached. Not all of theses offences need be dealt with on Indictment. The standard minimum applies only if they are. The section along with the new s44(3) applies to all offences committed on or after the 1 February 2003

The standard non-parole period represents “an offence in the middle range of objective seriousness” (s54A). What does this mean?

In particular, is the middle range assessed by reference to some or all of the aggravating circumstances noted in s21A(2)?

What is middle range of ‘objective seriousness’? Is it synonymous with the middle range of criminality? A notion commonly used by the courts e.g. R v Perese [2001] NSWCCA 478 at [68]. It cannot and demonstrably does not, simply mean the mid point on the JIRS statistics, either mean or median as these sentences were calculated taking into account all relevant factors.

Section 21A (see below) states that in determining an appropriate penalty the court is to take into account mitigating and aggravating factor and any other relevant circumstances. If the maximum is reserved for the worst type of aggravated offence (Veen v The Queen No2 (1988) 164 CLR 456 and R v Whyte (2002) 55 NSWLR 252 at [152]) then to reach an objectively determined middle it would seem one must take into account some aggravating circumstances in order to put it in the middle range. This can best be illustrated by comparing the standard minimums for homicide and homicide of an official – items 1A and 1 on the Table to the Act attached.

The notion of a sentencing range or spectrum is often used by appellate courts if not often defined. Judges must “intuit” the: “The range of sentences appropriate for the particular offence (see Justice McHugh in Everett v The Queen (1994) 181 CLR 295 at 306). In doing so it is necessary they consider objective seriousness. As Spigelman CJ noted in Whyte:

More recently, the NSW CCA has taken range to mean anything a from a section 10 bond to the maximum penalty available (see Moon (2000) 117 A Crim R 497). In one extreme and hopefully isolated case, the Court calculated the range by reference to only the maximum penalty (see Markarian [2003] NSWCCCA 8 now subject to an application for special leave to appeal the High Court).

In Ibbs v The Queen (1987) 163 CLR 447 the High Court put the question as:

That calculation is usually made taking into account all the objective features of the case. Adjustments are then made for subjective features. This flows from the well recognised principle that the sentence must be proportionate to the objective gravity of the offence (see Veen No 2 and Whyte).

If the offence falls within the Table the court must start by fixing the standard minimum sentence (s54A(1)). The court must then by reference to s21A only (s54A(2)), then assess where the offence and the offender rests in comparison to a middle range matter and adjust accordingly.

If the Court makes this assessment on the basis that a middle range matter does not have any of the aggravating features in s21A(2) then the increase could be significant.

It would seem inimicable to basic notions of fairness that the Court could count a factor twice. To separate out and allow discrete amounts for different “discounts” has been described as artificial and illogical (see Barr J in R v “X” [2003] NSWCCA 56 at [24] citing R v Gallagher (1991) 23 NSWLR 220 and Wong). The same reasoning would apply to any attempt to separate discrete “aggravating” factors.

The question of whether NSW is to adopt a tiered or instinctive or intuitive approach to sentencing has yet to be fully resolved. For the moment the instinctive model is the law but this is subject to the important qualification that legislative changes, such as this one, can require mathematical interventions. For example, in Whyte, the discount for a guilty plea was held to be valid. (See also the article Sentencing Methodology in Sentencing Trends No 25 December 2002 put out by the NSW Judicial Commission).

For the moment it would appear the following approach to the standard minimums has support.

1. The court may use a staged approach to assist in reaching an appropriate sentence. This approach is in fact mandated by the legislation (S54A). It may be desirable in the interests of transparency and openness (per Kirby J in Wong).
   2. Such a sequential process of reasoning is far from uncommon (particularly in Commonwealth matters, see R v Bourchas [2002] NSWCCA 373 at [120] and R v Dursim [2000] 111 A Crim R 460). A better approach is that advocated by the Chief Justice in Whyte at [160]. Sequence does not matter “as long as all relevant considerations are taken into account.”
   3. The approach however should not be strictly mathematical (see Gallagher, McHugh and Hayne JJ in AB v The Queen (1999) 198 CLR 111 and “X” at [50]). Any sentence however calculated must, when the final result is determined, yield to the production of a sentence that reflects the criminality ( i.e. both the objective and subjective features) involved in the offence (see Power v The Queen (1974) 131 CLR 623 at 628).
   4. As the standard minimum non parole period represents an offence in the middle range of objective seriousness, variation from that starting point must follow if in fact the offence is not, by reference to it’s objective gravity, in the middle of the range (see Veen No 2 and Whyte).
   5. In order for the sentence to be proportionate, an assessment of objective gravity must consider some, if not all, of the aggravating factors in s21A(2). It is not strictly double counting if those factors also bring the sentence up above the standard minimum, or because they are less than that calling for the middle of the range sentence, bring it below it.
   6. Subjective features in s21A(3) must operate to reduce the standard minimum non parole period or that calculated after aggravating features are taken into account.
   7. Common law factors (s21A(1)(c)) and other rules of law (s21A(4)) are not excluded in these calculations. Both must be taken into account. See R v Yeomans [2003] NSWCCA 194 When assessing what is meant by ‘taken into account’ Weininger is now a very important case. See below.
   8. The non parole period, being the minimum period the offender must spend in custody (s44(1), must reflect the criminality involved in the offence (see McDonald CCA NSW, 12 Oct. 1998, unreported and Power at 628).
   9. The court must then consider whether there is anything about the case that warrants a non parole period longer than the statutory 1/3 provided for in s 44(2). (See below). Such a finding being “matters that are required or permitted to be taken into account by the court under any Act...” (s21A(1)) would justify variation from the standard minimum (see Johnson’s Paper at [61]. Any calculation of sentence and any finding of “special circumstances” need not be unduly restricted (R v Simpson (2001) 53 NSWLR 702).
   10. Overall, it is expected that the court must then, as part of an intuitive process “synthesis all the relevant factors in the circumstances of the case” (AG Second Reading Speech Hansard Legislative Assembly 23/10/2002 and Weininger). In the end, the synthesised or intuitive sentence and non parole period must still reflect both the objective and subjective features of the case (see Bugmy v The Queen (1990) 169 CLR 525 at 531 and Whyte at [152] cited above).

For an alternative check list see Peter Johnson’s Paper at [66].

When all is said and done you wouldn’t be a judge for quids! What we must do is stop Judges saying: “It’s all too much, I’ll go to the standard minimum, the aggravate up and mitigate down which leave me back at the standard non parole period. Then I’ll just need to add 1/3 to get the total sentence”.

We must continue to encourage courts to retain an appropriate proportion between the offender and the offence (see Spigelman CJ in Whyte at [152] and Veen No2).
The key to any defence submission must be to convince the Court to depart from the standard minimum for reasons set out in s21A (which includes common law factors s21A(1)). Once that is done the Court is ‘free’ in a sense to give an appropriately proportionate sentence.

The effect, as we have seen however with sentencing guidelines, will be a significant increase in the length of sentences imposed for offences on the “standard minimum” Table. If there is to be a proper proportion between sentences imposed for Table matters and those of similar criminality but which are not on the list, those later sentences must rise.

The existence of a standard minimum does not prevent in an appropriate case, a non custodial sentence or less than full time imprisonment (s54A(c)). However application of due proportion principles and parity principles may. The CCA particularly in its guideline judgements, has stressed the need for consistency in sentencing. (See Spigelman CJ in R v Henry (1999) 46 NSWLR 346 at 353: “If justice is not consistent it is nothing”.) Offences of like criminality committed by offenders with similar features should attract (within an appropriate range) similar sentences.

It is interesting that the CCA in setting guideline sentences adopted a different approach than the new provisions. In cases such as Henry, Whyte and Ponfield [1999] NSWCCA 435 the Court set out a series of typical features, both objective and subjective, as the basis for its guidance as to the range of head sentences sought appropriate.

A Sentencing Council was also established (Part 8B Crimes (Sentencing Procedure) Act) to recommend, among other things, new offences for the Table and matters suitable for Guideline Judgments.

Special Circumstances:
The optimists amongst us have presumed that, although worded differently, the new section (which applies only to offences committed after February 1 2003) merely reverts to the regime that operated under the Sentencing Act 1989 (see Howie & Johnson, Criminal Practice and Procedure NSW at 98,701). The pessimists fear that we now have a third regime imposed upon us. A regime that, in effect, operates to ensure that the only person asking for extended parole and “special circumstances” will be prosecutors. For the moment I’m with the optimists.

Despite the slightly different wording between the old pre 1999 - s5(3) and the new s44(2), the new provision comes in a context of a clear policy direction that sentencing under the new provisions are to remain intuitive and not part of a staged process. The only change, it is said, is that a “bottom up” approach (previously described as “quite artificial” by the Attorney and the Chief Justice) must be adopted.

It would appear that it is intended that we will revert to the pre 1999 view of special circumstances.(This is also the view of Peter Johnson and the present Director of the Criminal Law Review Division, Mark Marien Paper; Standard Non- Parole Periods, delivered to the Public Defender’s Conference May 2003). That is: that in the assessment of overall sentence, a longer parole period can either increase the total sentence or reduce the non parole period (see R v Hampton (1998) 44 NSWLR 729 & R v GDR (1994) 35 NSWLR 376).

In addition, it has recently been held that the assessment of whether there are special circumstances need not be unduly restricted (see Simpson).

Guideline Judgments
The guidance given by these decisions has been preserved despite the introduction of standard minimum non-parole periods. See Clause 46 of Schedule 2 Crimes (Sentencing Procedure) Act 1999 and Hansard 23/10/2002 p 5,815.

Two recent Guideline applications are of particular importance. In Attorney General’s Application No 2 of 2002 [2002] NSWCCA 515 the Court rejected an application. Saying in effect, that there was no demonstrated need for a guideline for. assault police matters.

In Attorney General’s Application No 1 of 2002 [2002] NSWCCA 518 the Court had to consider the approach to sentencing where matters are to be taken into account in Part 3 of Division 3 Crimes (Sentencing Procedure) Act 1999 NSW) –known as the Form 1. The rationale for the Form 1 procedure was summarised by Justice Simpson in R v Lemene (2001) 118 A Crim R 131 at [7].

When taking into account additional charges on a Form 1 a judge cannot in any sense impose a sentence for those offences. It is simply wrong, as some judges have done, to determine the sentence for each individual offence both on the Indictment and on the Form 1 and then adjust for “totality”. Similarly, it is wrong to calculate an amount that would be imposed if the Form 1 matter had been on Indictment and include it in a general equation.

The Chief Justice made it plain in Attorney General’s Application No 1 of 2002 that an offender can only be sentenced for the offences of which he or she has been convicted. The statutory scheme in Part 3 of Division 3 of the Crimes (Sentencing Procedure) Act 1999 NSW does not empower a judge to pass sentence for anything other than the principle offence.

The Form 1 is relevant to any assessment or synthesis of general principles relating to the sentencing of an offender particularly when the Court considers the need for personal deterrence and retribution and perhaps prospects for rehabilitation.

The proper approach is to now to formulate a sentence for the principal offence and then if required increase it to take account the additional matters revealed by the Form 1, so far as they relate to matters such as general and personal deterrence.

This is in accord with the often-quoted principles noted in Veen v The Queen (No2), where antecedent history was similarly seen as a guide post to an appropriate sentence.

As with antecedent history a Court must still be careful when taking into account maters on the Form 1 as these matters:

Fact Finding on Sentence: Weininger v The Queen
When assessing the facts to be ‘taken into account’ on sentence the general rule is that a sentencing judge:

This rule was qualified in Olbrich v The Queen (1999) 199 CLR 270 where it was held that where the facts could not be determined the judge was not obliged to sentence the offender on the most favourable view of the facts. The rule has been further modified by Weininger v The Queen (2003) 77 ALJR 872 where the majority joint judgement of Gleeson CJ, McHugh, Gummow and Hayne JJ (Kirby J dissented) noted:

In Weininger the majority was concerned with what could be “proved” by an absence of convictions on a person’s criminal record. This alone did not allow the sentencing judge to draw the conclusion Mr Weininger was of prior good character. The sentencing Judge was entitled to be “not persuaded”. This was quite different than saying an aggravating feature had been proved beyond reasonable doubt. A judge is entitled to be so unpersuaded and not regard the matter as operating in favour or against the offender (at [29]).

Weininger was a case concerning S 16A of the Commonwealth Crimes Act. It now has added importance now that NSW has adopted similar approach to 16A in s21A Crimes (Sentencing Procedure) Act 1999. Mark Marian in his Paper suggest that formal proof of matters is not required before they can be taken into account as s21A factors on sentencing. This may be so where maters are not controversial, however Weininger did not overrule Storey. Thus if a mater is to aggravate a sentence it must still be proved beyond reasonable doubt.

Weininger is also important for a brief intuitive summary of what is means to impose a sentence:

Concurrent Sentences: Applying Pearce v The Queen
The decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 has proved to be a fertile field for appellate lawyers. Neither Pearce nor subsequent decisions of the CCA seem to have considered s55(1) of the Crimes (Sentencing Procedure) Act 1999 which says that sentences are presumed to be concurrent unless otherwise noted. As it stands Pearce requires the imposition of a sentence appropriate to each individual charge to which a person pleads guilty.

This means unfortunately, that a judge sentencing a single offender in respect of multiple counts may frequently become involved in a somewhat complex exercise in partial accumulation. Post Pearce it is no longer open for a sentencing judge to select the term of imprisonment appropriate to punish the offender for the overall criminality, and impose a sentence of that length in relation to each count. Each count must be considered individually.

In R v Musso [2002] NSWCCA 487 for example the trial judges failed to mention Pearce. He then made some of the sentences wholly concurrent. This the CCA characterised as his Honour not imposing any practical penalty those offences. This then allowed the CCA to intervene and increase those sentences and thus Mr Musso’s overall term in prison. The error did Mr Musso no favours.

As Sully J noted at [31] Pearce is:

Applying Pearce is not difficult. A judge when sentencing an offender for more than one offence must:

Repeal of Section 16 G Crimes Act 1914 (Commonwealth):
Section s 16G of the Crimes Act 1914 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 [2002] 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 that the section was no longer necessary as remissions had been abolished in most states and territories. Nothing else was said. There are no transitional provisions. The repeal applies to all Commonwealth sentences delivered after the 16 January 2003 including those delivered even though a guilty plea was entered before 16 January an after appeal (but see R v Shofield [2003] NSWCCA 3 where the CCA on a Crown appeal allowed the 16G reduction despite the repeal).

Does this mean all Commonwealth sentences must go up by 1/3? I think and hope not. I have successfully argued (DPP v Chew; McGuire ADCJ 27 February 2003) that:

1. The abolition cannot have been intended to have that impact.
   2. It was only required of a court that they make an adjustment.
   3. In the light of the now established tariffs for such offences to “mathematically” increase them in the absence of legislative direction would be an error.
   4. Rather, the court must sentence as if the section did not exist by reference to the objective facts and matters to be taken into account in by reference to s16A.
   5. To do otherwise would be to engage in the frowned upon mechanism of engaging in mathematically calculated sentences, when by the removal of the section, such a requirement is no longer necessary.
   6. Section 16G never requires there be a reduction in sentence below that which was other wise thought adequate and appropriate.
   7. There is no evidence that the existing range of sentences is other than appropriate to met the objective seriousness of the offence.
   8. There is thus, no sensible reason to give a Commonwealth offender a longer sentence than the minimum required by the circumstances of the offence.

That being said, and despite support for my view from the Editors of the Criminal Law Journal ((2002) Crim LJ 61), I sense that some Judges are itching to say that, where a tariff had developed for Commonwealth sentences, some upward adjustment of that tariff (of about 1/3) is necessary to take account of the repeal.

Good luck. Remember “if you’ve done nothing wrong, you have nothing to fear”.

Andrew Haesler
Carl Shannon Chambers
The Public Defenders