Des Rosiers v R

1. [1]

   MACFARLAN JA: On 24 February 2005 the appellant was sentenced by a judge of the District Court in respect of the following offences of which he had been convicted following pleas of guilty:

2. [2]

   The maximum penalty in respect of Count 1 was life imprisonment and/or a 5,000 penalty unit fine, with a standard non-parole period of 15 years specified. The maximum terms of imprisonment that could be imposed in respect of Counts 2, 3 and 4 were 15 years, 10 years and 15 years respectively. There were no standard non-parole periods in respect of those offences.

3. [3]

   The sentences imposed by the District Court were:

4. [4]

   On 10 February 2006 this Court allowed an appeal by the appellant ([2006] NSWCCA 16), imposing different sentences in respect of Counts 2 and 3 to those imposed by the District Court but imposing the same sentences in respect of Counts 1 and 4. As with the District Court’s sentences, the sentences on Counts 2, 3 and 4 were wholly concurrent with the longer term imposed in respect of Count 1. This Court’s sentences accordingly did not vary the offender’s overall sentence or non-parole period.

5. [5]

   Following the High Court decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, the appellant applied under s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) to a judge of the Supreme Court for his case to be referred to this Court to be dealt with as a further appeal under the Criminal Appeal Act 1912 (NSW). The application was refused on 20 June 2014 but, relying upon the later decisions in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 and Buttrose v Attorney General (NSW) [2015] NSWCA 221; 324 ALR 562 as well as Muldrock, the appellant applied again, with the result that on 4 April 2016 his case was referred to this Court to be dealt with as an appeal. This having occurred, the appellant does not require leave to appeal (Louizos v The Queen [2014] NSWCCA 242 at [6]). He appeals only in relation to the sentence on Count 1. As the non-parole period fixed by that sentence expired on 19 April 2016 and the non-parole period in relation to the Counts 2, 3 and 4 sentences expired earlier, the appellant became eligible for release on parole on 20 April 2016. He was released on parole the following day.

6. [6]

   On this appeal the Crown made a well-founded concession that in at least one respect this Court’s previous decision on 10 February 2006 is inconsistent with the subsequent decision in Muldrock. That error vitiated the Court’s exercise of its sentencing discretion and it falls to this Court to re-exercise that discretion (Kentwell at [42]).

The factual circumstances

1. [7]

   The relevant facts were summarised in this Court’s previous judgment as follows:

The District Court sentencing judgment

1. [8]

   As reflected in [10] quoted in the previous paragraph, the sentencing judge concluded that the street value of the LSD the subject of Count 1 was “somewhere between $200,000 and $1,500,000, depending on how it is sold, the quantities or the strength in which it is sold, and many other factors”. He concluded that the activities in which the appellant was involved constituted a significant operation.

2. [9]

   His Honour then referred to countervailing factors of general deterrence on the one hand and the age of the appellant on the other. He found special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) by reason of the appellant’s age and his good prospects of rehabilitation and allowed an unspecified discount to reflect the appellant’s pleas of guilty.

The previous Court of Criminal Appeal judgment

1. [10]

   This Court identified a number of errors in the District Court judgment, including the taking into account of the wrong maximum penalties for some of the offences and undue emphasis placed by his Honour on the appellant’s age (54 at the time of sentence).

2. [11]

   The Court then considered and rejected the contention that the sentence on Count 1 was manifestly excessive. The Court had earlier (at [15]) concluded that a concession by the appellant’s counsel that the Count 1 offence lay in “the upper range of objective gravity” was properly made having regard “to the quantity of LSD and the evidence pointing to the large scale production of LSD for profit”. At paragraph [35], the Court said:

3. [12]

   On the present appeal, the appellant submitted that in its previous decision this Court erred in the following respects:

   1. (1)

      The Court’s judgment conflicted with the approach to sentencing adopted in the subsequent decision of Muldrock by:

   2. (2)

      In re-sentencing, considering whether the sentencing decision below was in error rather than exercising an independent sentencing discretion (compare Kentwell at [42]).

   3. (3)

      Using a finding of special circumstances to increase the head sentence rather than to decrease the non-parole period (compare Kentwell v R (No 2) [2015] NSWCCA 96 at [32]-[36]).

4. [13]

   The Crown conceded that the Court made the error referred to above in [12(1)(c)], concerning the assessment of objective seriousness. While it did not accept that the other alleged errors occurred, it observed, correctly, that the conceded error required this Court to exercise the sentencing discretion afresh. The Court is not required to “assess whether and to what degree the error influenced the outcome” (Kentwell in the High Court at [42]). In these circumstances, it is unnecessary for this Court to determine whether the other alleged errors occurred.

The additional evidence on this appeal

1. [14]

   Evidence of the appellant’s progress towards rehabilitation was admitted “on the usual basis”, that is, to be taken into account in the event that the sentencing discretion was to be re-exercised. The Court also admitted evidence of the steps taken, and the time spent by or on behalf of the appellant, to have his Count 1 sentence reviewed in light of the High Court decisions in Muldrock and Kentwell. The Court has a general discretion to admit further evidence on appeal although it should not ordinarily do so where the evidence is inconsistent with the case that the appellant ran in the sentencing court (Betts v The Queen [2016] HCA 25; 90 ALJR 758 at [2]). The evidence admitted on this appeal does not attract that qualification to the general rule.

2. [15]

   To an affidavit of 29 July 2016, the appellant’s solicitor annexed copies of documents obtained by him from the appellant’s Corrective Services (Case Management and Parole) files. These contained detailed considerations of the appellant’s conduct and progress during the 12 years of his incarceration from April 2004 to April 2016. The following summary appeared in the relevant Community Corrections Officer’s report of 10 February 2016:

3. [16]

   These comments were followed by the following expression of opinion by the Acting Manager of Glen Innes Community Corrections dated 11 February 2016:

4. [17]

   The documents also indicate that the appellant has acted appropriately following his release, maintaining contact with his parole officer and remaining drug free.

5. [18]

   An affidavit of the appellant read on the appeal stated his regret and embarrassment at having engaged in criminal conduct and described his efforts whilst incarcerated to take up all work and educational opportunities that presented themselves. He is presently in employment and has been re-establishing his religious connections.

6. [19]

   A further affidavit of his solicitor detailed the protracted efforts made on the appellant’s behalf to have his sentences reviewed following the High Court decision on 5 October 2011 in Muldrock. These culminated in the appellant’s first application under s 78 of the Crimes (Appeal and Review) Act, which was refused on 20 June 2014, and to the second application, which was granted on 4 April 2016. The Crown did not suggest on the present appeal that there were any more active or persistent steps that the appellant could have taken to obtain the right of appeal which is the subject of this judgment.

Re-exercise of the sentencing discretion

1. [20]

   A re-sentencing court must make its own assessment of the appropriate sentence, without allowing the original sentence to dictate or guide the exercise of its discretion (see Thammavongsa v R [2015] NSWCCA 107 at [4]-[7]; [21]-[25] and [44]-[45]). When it has done that, the Court must compare the appropriate sentence with that originally imposed and if it is less than the latter substitute it for the latter (Criminal Appeal Act 1912 (NSW), s 6(3)). If it is more, the appeal should be dismissed (Thammavongsa [24]-[25]). If findings of fact made when a sentence was first imposed are not challenged on appeal, there is no reason why the court should not adopt them for the purposes of re-sentencing (Thammavongsa at [23]).

Objective seriousness

1. [21]

   In Muldrock, the Court indicated that sentencing courts are to be “mindful of two legislative guideposts: the maximum sentence and the standard non-parole period” and that meaningful content can only be given to the latter concept by determining the “objective seriousness of an offence … without reference to matters personal to a particular offender or class of offenders” (at [27]). As noted above, the different approach taken by this Court in its earlier decision in relation to the present appellant constituted error (at [13] above).

2. [22]

   The District Court found that the value of the LSD the subject of Count 1 charged against the appellant was between $200,000 and $1,500,000 ([10] quoted in [7] above). In its previous decision this Court (at [35]) described that estimate as “somewhat conservative”, but on the present appeal, the appellant’s senior counsel sought to demonstrate by reference to the evidence before the District Court that the estimate was in fact realistic. On this footing, the appellant contended that this Court could not be satisfied beyond reasonable doubt (which is the relevant standard) that the LSD had a street value in excess of $200,000. As the Crown did not seek to contradict this analysis, it should be accepted. Nevertheless, it is relevant that there was, on the evidence, a real possibility of a much greater amount being realised for the LSD.

3. [23]

   In light of this, whilst I would accept the Crown’s submission that Count 1 constituted “an extremely serious drug offence”, I would not accept its submission that it was at the upper end of the range of objective seriousness (Crown’s written submissions, [22]). Rather, I would describe the offence as somewhat in excess of the mid-range of seriousness, the following additional matters being relevant in this respect:

   1. (1)

      On the Australian Federal Police’s estimate, the LSD was capable of producing some 82,000 individual doses or tabs. The appellant submitted that only an estimate of 40,000 was justifiable. Accepting this, there was nevertheless a very substantial quantity of LSD involved.

   2. (2)

      The appellant was primarily responsible for the production of the LSD.

   3. (3)

      The production undertaken was on a large scale, and well-planned and organised.

   4. (4)

      The enterprise was conducted for profit and was likely to reap significant financial rewards.

Subjective features

1. [24]

   On this appeal the Crown accepted ([24]) that the evidence before the District Court established the following subjective factors that this Court should take into account on re-sentencing:

2. [25]

   In addition, as I have noted earlier, further evidence of events occurring since the District Court hearing was admitted on the appeal. The topics dealt with were summarised by the Crown as follows:

3. [26]

   All of these matters operate in the appellant’s favour. The material includes strong evidence of remorse, the support of friends and associates, the absence of any taking by the appellant of illicit drugs, his good behaviour during his incarceration, his attempts to obtain additional occupational qualifications and his employment both before and after he was admitted to parole.

4. [27]

   Furthermore it is appropriate to take into account the long delay that has occurred, through no fault of the appellant, in the court system producing a final determination of the proper sentence referable to the appellant’s Count 1 offence. This is relevant in a case where, in light of the sentences that I propose below, the appellant will probably have been incarcerated for a longer period than was warranted. I say “probably” because the non-parole period to be fixed upon re-sentencing in respect of Count 1 has been assessed by reference to matters that include the appellant’s circumstances up to the present time, as well as the fact of delay in the sentence being imposed. To attempt (in my view, unnecessarily) to identify the sentence that would have been appropriate at earlier points in time, one would have to identify with some precision the evidence that was or would have been available at those points.

Sentencing statistics and previous cases

1. [28]

   A sentencing court must have regard to sentencing statistics and other cases where they establish a range of sentences that have been imposed or evidence principles that may assist in the sentencing process in the subject case (Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48]-[49]; Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41]; R v Pham [2015] HCA 39; 90 ALJR 13 at [28]-[29]).

2. [29]

   Neither party to the present appeal suggested that there were sentencing statistics or previous cases that might provide such assistance. Nor did my examination of the statistics that the Crown provided to the Court suggest that a range of sentences that might give guidance to the Court had been established.

Conclusion on re-sentencing

1. [30]

   I proceed then to undertake in respect of Count 1 the “instinctive synthesis” required on re-sentencing (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [50]-[51] per McHugh J).

2. [31]

   For this purpose, I take into account the objective and subjective factors to which I have referred and allow a 25% discount from the head sentence for the appellant’s early plea of guilty. Further, in accordance with Muldrock, I am mindful of the two legislative guideposts: the maximum sentence and the standard non-parole period. In respect of Count 1 they are a maximum penalty of life imprisonment and a standard non-parole period of 15 years. There are no aggravating or mitigating factors to be taken into account pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) beyond those to which I have made reference in the course of describing the applicable objective and subjective features of the case.

3. [32]

   I take into account also the considerable importance of general deterrence in a case such as the present. However, in light of the appellant’s strong subjective case to which I have referred above and the consequent unlikelihood of the appellant further offending, deterrence specific to the appellant is not a significant factor. He is in the unusual position of being able, because of the passage of time, to demonstrate his rehabilitation is a reality as opposed to a mere prospect.

4. [33]

   In light of all of these circumstances, my independent assessment of the appropriate minimum period of detention in relation to the Count 1 offence is 10 years 6 months. Applying the statutory ratio of 3:1 (s 44(2) of the Sentencing Procedure Act) results in a balance of the term of the sentence of 3 years 6 months. There are not in my view any special circumstances that require a variation of the statutory ratio (s 44(2)). Indeed, there is good reason to maintain the statutory ratio: the appellant was incarcerated for approximately 12 years and has subsequently been on parole for about 4 months. With the head sentence that I propose, the appellant will remain on parole for approximately another 1 year 8 months. Bearing in mind his good conduct in prison and whilst on parole, and his present employment, this is a sufficient period for him to be on parole before completion of his sentence.

5. [34]

   As this sentence is less severe than the sentence imposed in this Court in its earlier decision, s 6(3) requires the earlier sentence to be quashed and the appropriate sentence passed in substitution. In such a case, the earlier sentence is properly described in the language of s 6(3), as not “warranted in law” (Kentwell at [42]).

Orders

1. [35]

   For the reasons given above, I propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Quash the sentence imposed by the Court of Criminal Appeal on 10 February 2006 in respect of Count 1.

   3. (3)

      For the offence of Supply a Large Commercial Quantity of LSD (Count 1), and taking into account the offences on the Form 1, sentence the appellant to a term of imprisonment of 14 years commencing on 20 April 2004 and expiring on 19 April 2018, with a non-parole period of 10 years and 6 months commencing on 20 April 2004 and expiring on 19 October 2014.

   4. (4)

      Note that the sentences imposed by this Court in relation to Counts 2, 3 and 4 on 10 February 2006 expired prior to the expiration of the above sentence in relation to Count 1. As a result, the appellant became eligible for release to parole on expiration of the non-parole period in relation to his Count 1 sentence, being 19 October 2014.

2. [36]

   HALL J: I agree with Macfarlan JA.

3. [37]

   BELLEW J: I agree with Macfarlan JA.