Sentencing Commonwealth Offenders : Some Recent Developments
This paper was written by Andrew Haesler
9 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 16A
Matters to which court to have regard when passing sentence
(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.
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 ..
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:
It should be said that that legislation only requires the sentencing judge to take those matters into account; it does not require judges always to refer to each of them when explaining the sentence imposed. Indeed, the act of sentencing is to a large extent incapable of being fitted into such a straitjacket, and in most cases it is unnecessary for the judge to expose the precise reasoning by which the ultimate sentence has been reached R v Gallagher (1991) 23 NSWLR 220
. It is only where the judge has formed a particular view in relation to one or more of these items which would not otherwise be apparent in the circumstances of the case that reference should be made to the particular items in the judge's remarks on sentence, so that no erroneous conclusion would otherwise be drawn in relation to those matters'.
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 :
Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act 1901 . ...In ... context, a distinction between "couriers" and "principals" may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms.... Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a "courier" or a "principal" must not obscure the assessment of what the offender did'.
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 must 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:
'Sentencing any federal offender must begin with a consideration of the applicable legislation - in this case Pt 1B of the Crimes Act and, in particular, s 16A. Section 16A(2) obliges a court sentencing a federal offender to take into account such matters referred to in that sub-section "as are relevant and known to the court". The court must do that with a view to imposing on the offender a sentence or making an order that is "of a severity appropriate in all the circumstances of the offence". Among the matters which the court must take into account, if relevant and known to the court, are "the character, antecedents, cultural background, age, means and physical or mental condition of the person"'.
'The phrase "known to the court" which qualifies the list of "matters" in pars (a)-(p) of s16A (2) which the court "must take into account" presents the evidentiary and other procedural questions upon which this appeal turns. By what means and at whose instigation are these "matters" to be made known? Are issues of fact to be tendered for resolution by the judicial officer who constitutes "the court" for this purpose? If so, do questions of onus of "proof" arise? Are there here the distinctions found elsewhere between ultimate and evidentiary burdens? To what degree, if at all, is the procedure inquisitorial rather than adversarial?
In R v Olbrich, the Court ... adopted what was said by the majority in the Court of Appeal of Victoria, in R v Storey 1 VR 359 at 369... that a sentencing judge: "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
For present purposes, however, attention to questions of onus and standard of proof may distract attention from another important aspect of the decision in Olbrich. Framing the question in terms of the onus and standard of proof may suggest that all disputed issues of fact related to sentencing must be resolved for or against the offender. That is not so. As was recognised in Olbrich, some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way...
As the majority pointed out in Olbrich at 278 , prosecuting authorities and a sentencing judge will often have only the most limited and imperfect information about how it was that the accused came to commit the offence for which he or she is to be sentenced. Although s16A (2)(a) requires a sentencing judge to take account of the nature and a circumstance of the offence, that requirement is not absolute. They are to be taken into account only to the extent that they are relevant and known to the court. The sentencing judge may not be able to make findings about all matters that may go to describe those circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.
To frame the relevant question in terms of the onus and standard of proof may also suggest that the only material which may be treated as being "known to the court", and on which the judge may act in sentencing an offender, is material revealed by the plea or verdict of guilty, admission by the offender, or evidence received on the sentencing hearing. The use of the phrase "known to the court", rather than "proved in evidence", or some equivalent expression, suggests strongly that s16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase "known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted...
As was pointed out in Storey 1 VR 359 at 372, it is important to avoid introducing "excessive subtlety and refinement" to the task of sentencing. That object is advanced if sentencing and appellate courts pay close attention to identifying those matters that the sentencing judge takes into account in a way that is adverse to the interests of the accused, and those matters that the sentencing judge takes into account in favour of the accused. It must be recognised that not every matter urged on the judge who is to pass sentence has to be, or can be, fitted into one or other category. The judge may be unpersuaded of matters urged in mitigation or in aggravation. The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation. So to conclude would ignore the different standards of proof that are to be applied. It would also be wrong because it would assume that human behaviour could always be described as a dichotomy. It cannot. Human behaviour and characteristics are more varied than that. Further, it would be wrong because it would assume that sentencing is a syllogistic process. It is not. It is a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money'.
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:
'The fundamental principle in sentencing for multiple offences is that the overall sentence imposed must reflect the totality of the criminality evidenced by those offences: the totality principle. Johnson v The Queen makes it clear that this principle was neither established nor affected by the decision in Pearce. The significance of Pearce, in this regard, was to indicate the preferred manner in which sentences are to be structured in order to achieve compliance with the totality principle. In particular this Court has interpreted Pearce as prohibiting the practice of
increasing a sentence
for one offence merely to reflect the totality of the criminality disclosed by all of the offences for which sentence is being passed. Johnson merely confirms that compliance with the totality principle can also be achieved by decreasing a sentence that is to be made wholly cumulative with a sentence for another.
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:
Ultimately, the best guide is that given by the legislature as to the available penalty, dependent upon whether the drug in question is more or less than the trafficable or commercial quantity proscribed, and not upon an impression or judgment as to its perniciousness when compared with other substances, as to which expert opinion may well differ'
R v Casey  VSCA 117 where Winneke P said:
The comments which the Court has made about drug importation in recent years, in my view, apply as much to methylamphetamine as they do to heroin, notwithstanding that it is sometimes thought that amphetamines are 'recreational drugs' of less intensity and addictive power than, for example, heroin and cocaine. His Honour was correct to point out that methylamphetamine, however one classifies it, is a mood-altering drug and is capable of creating anti-social behaviour and damage to the youth of our community in similar proportion to the so-called 'hard drugs'... is non-productive in sentencing offenders to speak of graduations of seriousness depending upon the substance involved'.
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:
When an offence is defined to include any of several categories of conduct the heinousness or otherwise of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case.'
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.:
It is certainly common to describe ecstasy as a mid-range drug. But it does not follow that the importation of ecstasy is less serious than the importation of cocaine.. ... Cocaine is a drug which can cause very great damage to its users. It seems that even in 1989 that was perceived to be the case for ecstasy also. Since 1989 nothing has happened to change that position.
The proposition that ecstasy importation is less serious than cocaine importation, at least in the eyes of the Commonwealth Parliament, is also inconsistent with the fact that the maximum penalty of life imprisonment for importing commercial quantities is the same as the maximum penalty for importing commercial quantities of cocaine (and heroin). Accordingly the guidelines in R v Wong & Leung should not be discounted in considering the appropriate sentence for ecstasy importation'.
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:
In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation, the reward which the offender hoped to gain from participation.
All these are matters properly to be taken into account in determining a sentence. The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament's distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities. No doubt, within both of these categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender'.
This point was taken up by Buddin J in
Cerullo and Soukoulis  NSWCCA 201 at .
So far as the continuing significance of the guidelines established by this Court in R v Wong & Leung(1999) 48 NSWLR 340 are concerned, Hidden J, with whom Levine J and Howie J agreed, said in R v Taru NSWCCA 391 that they 'remain useful notwithstanding the subsequent High Court decision arising from that case, because they were expressed to be based on the existing pattern of sentence at the time the judgment was delivered. Indeed, much of the judgment of the Chief Justice was devoted to consideration of other cases and the patterns of sentence which emerged from them'.
Regina v Mas Rivadavia; Regina v El Akkaoui; Regina v Aksu  NSWCCA 284 Wood CJ CL at  made a similar point:
Guideline decisions have occupied an important role in this State in establishing general sentencing patterns which have emerged for offences of the kind to which they relate, and the decision in Wong and Leung is no exception. However, such judgments have never been intended to operate as straight jackets. Their role is to provide indicators of sentences that have been found to be appropriate, in the general run of cases, to which they are directed. They are, accordingly, expected to be taken into account, by sentencing judges although without excluding the important discretion to take into consideration the differences, objectively and subjectively, which exist in the individual case before the court R v Karacic  NSWCCA 12 and
R v Whyte  NSWCCA 343.
. They are sounding boards which provide an important final check once proper consideration is given to the objective and subjective circumstances, and to the need to ensure that the sentence meets the various requirements of punishment, retribution and deterrence. As such they also provide a useful reference point for this Court when it is asked to review a sentence for manifest leniency or inadequacy'.
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).
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:
'[W]ith the repeal of s 16G... the discount of about one-third previously applied for the lack of remissions is no longer applicable and the old sentencing statistics need to be considered with this in mind. In order to consider the range of sentences without the discount under s 16G it is necessary to increase the sentencing range by 50 percent. For example, if the range of sentences was 6 years to 8 years with the 16G discount, the range without the discount will be 9 years to 12 years'.
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 :
In the context of an appeal against sentence, when a court of criminal appeal is called upon to resentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be resentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood. He should not be denied that entitlement simply because the sentencing judge made a mistake, whether that mistake resulted in a sentence that was too harsh or too lenient. In our view it would require a very clear indication of statutory intention to displace that entitlement'.
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 :
'R v Schofield... indicates that in exercising the discretionary power of sentencing in a Commonwealth matter, a Court may, depending on the facts of the particular case, have regard to the circumstance that the person being sentenced falls, as it were, between two stools and as a matter of fairness give effect to this in fixing the sentence (Regina v Maclay(1990) 19 NSWLR 113 at 127 per Gleeson CJ, Hunt and Loveday JJ). The introductory words of s 16A of the Crimes Act namely '(i)n addition to any other matters', are in my opinion, a sufficient statutory warrant for such an approach. Thus although the Transitional Provisions in the instant case indicate that the amendments applied 'whether or not the offence concerned was committed before (the) amendment commenced' it would have been open to the Judge to recognise the particular circumstances of the appellant by not imposing a penalty that was more harsh than would have been the case had the appellant been sentenced at the time he entered his plea of guilty. The Judge's failure to recognise the existence of such discretion, in my opinion, constituted an error'.
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:
'I have no difficulty in accepting an argument that the repeal of s16G should not result in a mathematical formula being applied to the existing range of sentences in order to derive a particular sentence or range of sentences that are appropriate to be imposed after the repeal. To do so would simply be to make the same error that was identified by this Court in El Kaharniin respect of taking into account the absence of remissions under s16G. But if a sentencing court is minded to look at the range of sentences that were imposed when s 16G applied, then it has to bear in mind that the range of sentences referred to in decided cases and in the available statistical information, had factored into it a discount that is no longer applicable.
A sentencing discretion is not properly exercised by simply determining where in a range of sentences the particular matter before the court falls, and that is so whether that range has been established by a guideline judgment, by a pattern of sentences reflected in statistics maintained by the Judicial Commission, or by a consideration of the sentences imposed in other identified cases. While an established range of sentences for a particular class of offence and offender is important because of the need for consistency in sentencing, a consideration of the range will normally be the last point of reference rather than the first.
The court should determine the sentence for an offender by applying the appropriate statutory and common law principles, including due regard to the maximum sentence prescribed for the offence, and then consider whether the sentence is consistent with the established range, or whether it departs significantly from the range either towards severity or leniency. If the sentence does depart significantly from the range and there is no good reason on the facts of the particular matter or the application of principle to explain and justify the departure, the sentencing court should reconsider the chosen sentence in the light of the established range. By adopting this process the court both exercises a sentencing discretion, unfettered except by the appropriate facts and relevant sentencing principles, and attempts, so far as is appropriate, to conform with the approach adopted by other courts or as laid down in a guideline and, thereby, to achieve a measure of consistency in sentencing....
In my view it is clear that the repeal of the sections was a matter of substance intended to have an impact upon the way that Federal offenders were sentenced in those jurisdictions where they had applied... In my view, if the sentences in this State did not now significantly increase there would arise an inconsistency between the punishment inflicted upon Federal offenders in this State and the punishment inflicted on, say, those in Western Australia, once the remission system was abolished in that State. ... Insofar as the applicant contends that there is no warrant to increase the current range simply by applying some mathematical formula, I agree with that proposition. I also accept that the proper approach to sentencing a Federal offender is to determine the appropriate sentence without taking into account that s16G once existed and has now been repealed. But I cannot agree with the submission that, before imposing a sentence, the court should have regard to the range of sentences that was established when s16G applied and adjust a term of imprisonment, determined without consideration of that range, to conform with it'.
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.
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:
'It follows that the pattern of sentences imposed after the repeal of s16G can be expected to accord with the pattern in earlier cases of the periods determined by the application of normal sentencing principles and the (other) relevant provisions of the Crimes Act prior to the application of the s16G discount rather than in the pattern of the length of the sentences ultimately imposed in the earlier cases. Those pre-discount periods are commonly to be found expressly stated in those cases.
As Howie J made clear, the discount figure of one third was not a fixed proportion. However, it was the reduction almost invariably applied. ... the pattern of sentences can be expected to be of sentences about 50% longer than when the discount was in operation.
Would-be offenders and sentencing judges should be under no misapprehension. The effect of the repeal of the section is that the length of sentences of imprisonment (and non-parole periods) for those offences to which s16G previously applied should, as a necessary and logical consequence of the way the courts implemented s16G,increase by approximately 50%. .'(At  to .)
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:
In R v Maclay (1990) 19 NSWLR 112 this Court (Gleeson CJ, Hunt and Loveday JJ).
commented upon the effect of the introduction of the Sentencing Act 1989: "The primary task of sentencing judges is to apply the new sentencing system according to the terms of the statute paying due deference to established general principles of sentencing....
It is, of course, understandable that a judge may wish to have regard to sentencing patterns, including his or her own sentencing patterns, established under previous legislation. Some caution will need to be exercised in translating such sentencing patterns into actual decisions under the new legislation. Statistical information is occasionally advanced in support of the contention that some judges may have responded subconsciously to the problem of the 'fictional element' introduced in the 1983 legislation and identified in R v O'Brien by increasing non-parole periods in a way that to some extent 'stook account's of the remissions system, but if that were true it would only increase the need for caution to which we have referred. The question as to how prison terms resulting from sentences imposed under the new Act will compare with those resulting from earlier sentences is one, the answer to which will emerge in due time. Pre-conceptions as to how they should compare cannot be allowed to dominate the appreciation of the new statute.
The approach revealed in this passage commends itself to me and can be applied by analogy in the present case. The sounding of the note of caution is timely. When s16G and s19AG were in force, judges in selecting starting points for calculating sentences were not unaware of the large reduction so often wrought by the application of s16G. Its effect tended to have a subtle and perhaps unconscious influence. Inadequate sentences were avoided.
I agree with Howie J that there is no warrant to increase the current range of sentences for Federal offences simply by applying some mathematical formula and that the proper approach to sentencing for a Federal offence is to determine the correct sentence without taking into account that s16G existed and has now been repealed (R v Studenikinat par ). Insofar as regards is had to sentencing patterns which existed prior to s 16G caution must be employed. It would be crude and unfair to increase previous levels of sentences by 50 per cent to take into account the repeal of ss16G and 19AG'.
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]),
' I do not understand his Honour, in this passage, to have suggested that the range which was proposed in Wong & Leung, or that the prior sentencing pattern should now automatically be taken to require adjustment so as to result in an increase of 50%. Such an approach would attribute too great a mathematical approach to the intuitive process of sentencing and to the line of authority, which recognises that there are cases that properly fall outside guideline ranges'.
He then cited Smart J in
Dujeu (at  to ) before concluding:
' So far as there is any difference between the view of Hulme J in Kevenaar on the one hand, and of Smart AJ in Dujeuand of Howie J in Studenikin, on the other hand, then I prefer the views expressed in Dujeu and Studenikin.To the extent that regard is had to Wong and Leung, in the indicative way for which guideline sentences are intended, or to the extent that reference is made to pre s 16G and 19AG sentencing patterns, or to those which will now emerge following the repeal of those sections, it is important for Judges to bear in mind:
It is desirable for the judges, when sentencing, to make it clear that these circumstances have been taken into account, if reference is made to earlier sentencing patterns, or to Wong and Leung.Sentencing must remain an exercise for intuitive synthesis, in which any relevant guideline judgment and sentencing patterns are recognised as important parts of the material available, to be considered alongside any other relevant sentencing principles, the objective and subjective considerations of the instant case, and most significantly, the maximum sentence prescribed for the offence, since it is that which indicates the legislative intentions as to its seriousness.By reference to the pre-existing sentencing pattern, and the range suggested in Wong and Leung for cases which were subject to the s16G discount, it does appear to me that the sentences were lenient. Even allowing for the favourable subjective circumstances of these three offenders, insufficient weight seems to have been given to the punitive, retributive, and deterrent elements that should have been reflected, having regard to the objective criminality of these offenders... The case was one calling, in particular, for a very considerable deterrent element for the well recognised reasons analysed in the decisions such as R v Wong and Ng(1988) 39 A Crim R 1; and R v Saxon(1996) 86 A Crim R 353 as well as for a significant degree of punishment
(a) That Wong and Leung was decided in a context where s16G required an adjustment to be made, although that adjustment was not one that was mathematically and unequivocally linked to a discount of 30%, since there remained an area for sentencing discretion; and
(b) That it is no longer permissible to make an allowance for the s16G
.'(At  to )
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.