Consistency in Sentencing

1. Consistency in Sentencing The Commonwealth dilemma

2. Sentencing complexity • “The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment.” Wong v The Queen (2001) 207 CLR 584 at 612

3. What is consistency? “The outcome of discretionary decision making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as assistance; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency. Most sentencing of offenders is dealt with as a matter of discretionary judgment. Within whatever tolerance is required by the necessary scope for individual discretion, reasonable consistency in sentencing is a requirement of justice.” Gleeson CJ in Wong v The Queen (2001) 207 CLR 584 at 591

4. State courts are influenced by state legislation and practices when sentencing • “This court recognised in R v Tran (2007) 172 A Cr 436 that when sentencing federal offenders Queensland courts can take into account comparable sentences imposed by other Australian intermediate courts of appeal.” • Tran cautioned ‘however, that Queensland sentencing courts must be careful to ensure when considering interstate sentences that they are comparing like with like. State courts in sentencing federal offenders tend to be influenced by the sentencing regimes apposite in that State. It is, for example, common in federal sentencing in States other than Queensland, for offences involving the importation of drugs for a parole release date to be set after 60 per cent to 65 per cent, even where the offender has pleaded guilty and co-operated with the authorities. See for example Okeke v The Queen (2005) NSWCCA 444 and Suret v The Queen (2000) WASCA 405. By contrast ordinarily when Queensland defendants are sentenced a parole eligibility date is not set after the half way point unless there is a compelling reason to delay it. This is to encourage the rehabilitation of offenders…..Nonetheless it is recognized that when sentencing Commonwealth offenders the court must consider sentences across Australia. “ R v Oprea

5. Is 60 – 66% NP recognised as the “norm” Australia wide in drug sentences • In Queensland – recognised as the usual ratio but subject to discretion R v Tran, R v Oprea, R v Harris • In New South Wales – recognised as usual sentence but can be higher Bernier v The Queen, R v Viana • In Victoria – No relevant principle stated but sentences in that range upheld on appeal R v Thomas, R v Ngui • In South Australia – No particular range laid down as the norm See Cheng • In Western Australia – in general 60 – 66% parole periods applied but this is not to be used as a guide to determine sentences Bertilone v The Queen • In Tasmania – no particular range has been set down • In Northern Territory – norm is 60- 66% for NP but not for recog release orders

6. Western Australian position • “ First, section 19AB(1) of the Crimes Act confers on a sentencing judge a discretion to determine the appropriate non-parole period. • Secondly, neither section 19AB(1) by any other statutory provision requires a non-parole period to bear any particular relationship to a head sentence. • Thirdly, my viewing of the case law reveals that in general the non-parole periods of the Commonwealth drug importation and related drug offences have usually been about 60 to 66 and 2/3 per cent of the head sentences. • Fourthly the relationship between non-parole periods and head sentences which have customarily been imposed for Commonwealth drug importation and related drug offences is, at most, a general guide, and must not control or fetter the proper exercise of a sentencing judge’s discretion. • Fifthly, the sentencing judges must determine the appropriate non-parole period in each case by applying the established legal principles set out at 31 to 33 above to the facts of a particular offence and the circumstances of the particular offender. The process is not rigid or mathematical. Care must be taken to ensure that the non-parole period arrived at in a particular case is the minimum period of imprisonment that justice requires the offender to serve. • Sixthly, the sentencing judges must not determine the non-parole period in any case by applying automatically the general guide I have mentioned. The ratio in a particular case may be within the general guide or may be higher or lower, as the facts and circumstances in question require.”

7. Does the general sentencing pattern in drug cases translate to other Commonwealth offences? • “To the extent that decisions establish ranges within which sentences are regularly imposed for similar offending, it is of course right to take them into account, but in the end the proportion which the period to be served in prison bears to the whole term is to be fixed by taking into account all of the circumstances rather than by some rule of thumb. The authorities do not condone, in any aspect of sentencing, some arithmetical approach under which a deduction is made from a pre-determined range of sentences: the sentencing judge is obliged ‘to take account of all the relevant factors and to arrive at the single result which takes due account of them all’. Whilst the Crown submitted in that case that the non-parole period was in the range of 60 per cent to two thirds of a head sentence the court did not accept that the cases put up were comparable.

8. R v Robertson The court noted that generally the higher non-parole periods or later release date times were for more serious offences and noted at paragraph 18 ‘the decisions cited for the respondent which do concern offending of the nature in issue here provide no support for its proposition that the norm for non-parole periods is in the range of about 60 per cent to two thirds of the head sentence: in these broadly comparable cases the relationship between the pre-release period and the total period of imprisonment varied between less than one third, one third, slightly more than one third, about 40 per cent and 50 per cent. The variation reflects the marked variation in the facts of these cases.” R v Robertson

9. CAK and CAL • “The norm for non-parole periods and periods required to be served before a recognisance release order for Commonwealth offences is generally considered to be after the offender has served 60 to 66 per cent of the head sentence. The precise figure may be outside this range as it is a matter of judicial discretion and is not necessarily capable of precise mathematical calculation, but that is the usual percentage of the sentence. A sentence that was well outside that range would have to have most unusual factors to justify it”.

10. Cases quoted in CAK and CAL • R v Bernier – NSW drug offences • R v Stitt – NSW tax fraud $624,000 • R v Sweet – NSW $110,000 75% • R v Martinsen – NSW fraud $80,000 66.7% • Bick v Regina – NSW fraud $309,551 77.78% • Ly v R – NSW fraud $329,692 57% • Studman v R – NSW fraud 514,000 77.8%

11. Consistency in Crown submissions • “Your Honour the principle I think is consistency. The principle is that the actual custody of proportion that has been imposed across other jurisdictions and across Queensland for other offences, and for some Commonwealth offences such as social security fraud. The actual period of custody has tended to be more in the range of one third rather than two thirds and it is the Court of Appeal’s view that for all Commonwealth offences there should be consistency in sentencing.”

12. Child pornography sentences • Queensland has a very wide range but generally an average of 33per cent. • South Australia 60per cent to 66per cent. • Victoria 50per cent to 55per cent. • Western Australia 0per cent but all with head sentences of two years or under. • New South Wales 60per cent to 66per cent but with some as low as 33per cent and 55per cent and • Tasmania 55per cent (only one case).

13. The practical problems • The norm is not “normal” for sentences of less than three years. • The mitigation in those sentences is often strong and the discretion is therefore wide • The need for consideration of state practices where the sentences are mixed with state offences • The need for consideration of similar state offences R v Gambier