R v Panchal[2009] QDC 105

HIS HONOUR: The accused may remain seated during the ruling.

I have before me three unrelated Commonwealth matters for argument in relation to how wide is the sentencing discretion in relation to the time actually served, or, as it is referred to in the vernacular as the "bottom", for Commonwealth non-drug matters where the sentence is not in excess of three years and the accused is released on recognisance? Such is Commonwealth legislation and it is the Commonwealth sentencing regime that must be applied and not any of the particular State sentencing regimes, some of which have not insubstantial differences, perhaps none greater than that between Queensland and New South Wales. The Commonwealth sentencing regime says that the release on recognisance can be after any period not exceeding the head sentence.

The fundamental system in Queensland is that the bottom, generally speaking, on a plea of guilty can not unusually result in release after serving about a third of the sentence. The New South Wales State Legislation has as the not unusual bottom about two-thirds. When the relevant Commonwealth legislation came into existence with its varying amendments, the question has to be asked, firstly, what assistance is provided in the Commonwealth legislation in relation to the range of the bottom, how wide the sentencing discretion may be?

I have referred to the limited assistance, namely, that the release on recognisance can't be longer than after the head sentence. It is eminently desirable that there be uniformity in sentence for Commonwealth offending in whichever State the offending may occur.

When a State Court of Appeal or a sentencing Judge is considering the sentence, assistance of course may be obtained from interstate appellate authorities. But how does the norm develop? If the bulk of the sentencing in the early matters, particularly before the Court of Appeal is in Queensland, one might anticipate the norm for the bottom would be one-third.

If the sentencing were by judges from New South Wales, judges used to the New South Wales State sentencing regime, would it be in the least unusual that their sentencing would have as a bottom about two-thirds? In the real world what are the matters that are most likely to be before a State Court of Appeal? An answer of some attraction is that those in the State in which the sentencing regime has the highest bottom. Would it therefore be unsurprising that the greater numbers before a State Court of Appeal would be in New South Wales? Would those matters then go before a State Court of Appeal whose members are used to the New South Wales system in which, far from there being anything unusual about the bottom being two-thirds, that such would be said by them to be the norm?

It was always my understanding of the sentencing practice for Commonwealth matters in Queensland that the bottom was, give or take, about one-third. It was always my understanding that in New South Wales matters the bottom was higher. An authority that seems now to be regularly, if not universally, cited by the Commonwealth Director of Public Prosecutions on such sentencing is that in Bernier (1998) 102 A Crim R 44 wherein the Court said at page 49:

"... the norm for non-parole periods is in the range of about 60 per cent to 66 and two-thirds per cent. One factor which may be material is the length of the head sentence and its position in the permissible range. Circumstances may exist which make it appropriate to move outside the usual range for non-parole periods. The process is not mathematical or rigid, and often requires a finely tuned assessment. The determination of the appropriate non-parole period, as of the head sentence, should be approached with the caution and flexibility."

Bernier involved a drugs importation case. In New South Wales there followed any number of Court of Appeal authorities that followed the State said principle and usually enunciated the self same principle themselves.

Over the period in which the Commonwealth matters were receiving such bottoms in New South Wales, matters in Queensland were regularly the subject of sentence in Queensland with a bottom of about a third. It is to be remembered that Commonwealth matters form a very, very small percentage indeed of matters before the State sentencing Court. A Judge who sits, as I do, in the criminal Court every day of the working year can go a whole year without doing a Commonwealth matter. On other occasions you might get as many as two or three or four a year.

The practice developed, unsurprisingly, that the Commonwealth Director of Prosecutions, in doing such Commonwealth matters before Appeal Courts in States other than New South Wales, referred to the said New South Wales authorities. Some interstate Courts went into the question of such being sentences by New South Wales Courts and how far the respective statements of principle went and what was the appropriate statement of principle, say, for a Court in a State other than New South Wales.

Three matters have been before the Queensland Court of Appeal recently. The first was Robertson, CA 29/08 or [2008] QCA 164, such being argued on the 26th of May 2008 with the decision being given on the 20th of June 2008. The functional offending in Robertson was false pretences with intent to defraud committed over a period of about six years; second count of defrauding the Commonwealth in the ensuing 17 years; and count 3, dishonesty causing a loss to the Commonwealth in the then ensuing about three and a-half years. Such involved dishonesty over a substantial period of time and involved a substantial amount of money, namely $121,593.61. At the time of sentence, partial compensation in the sum of $4,416.80 had been made by fortnightly withholding by the Commonwealth from her aged pension payment.

The drug matter of Mokoena, CA 213/08 or [2009] QCA 36, was argued in the Court of Appeal on the 28th of November 2008 with the said decision being delivered on the 27th of February 2009.

The third matter of CAK & CAL; ex parte Commonwealth Director of Public Prosecutions, CA 312 & 313/08 or [2009] QCA 23, was argued on the 11th of February 2009, that is after Mokoena, but delivered before the decision of Mokoena, and, of course, after the decision in Robertson. In CAK the Court stated at page 5 at paragraph [18]:

"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."

There is a footnote thereon and the footnote gives the citations of the following seven cases: R -v- Bernier (1998) 102 ACrim R 49, R-v-Stitt (1998) 102 ACrim R 428, R-v-Sweet (2001) 125 ACrim R 431, R -v- Martinsen [2003] NSWCCA 114 at paragraph 14, R -v- Bick [2006] NSWCCA 408 at paragraph 13, R -v- Ly [2007] NSWCCA 28 at paragraph16, Studman [2007] NSWCCA 326 at paragraph9. All seven cases are New South Wales Court of Appeal cases. Unsurprisingly, all say that the bottom is about two-thirds, which of course is the figure that would apply for a State offence in New South Wales, according to New South Wales legislation.

The Courts in each of Mokoena and Robertson referred to the New South Wales authorities and the differences in the legislation. The Court in CAK made that statement of principle, as I said, with the footnote referring to those seven authorities, but such was not gone into in detail. The Court does not in its written decision refer to Robertson. My understanding is that in oral argument Robertson may have been referred to. I am bound by a decision of the Court of Appeal. Do Robertson and/or Mokoena add a rider to the principle enunciated in CAK which has great similarities to Panchal's case. Problems arise, of course, if there are conflicting decisions of the one State Court of Appeal and, of course, where there is consideration of a situation in which a decision may be given perincuriam.

CAK & CAL referred to a matter analogous to the matter of Panchal before me. I am bound by what the Court of Appeal said in CAK. The Court in CAK continued:

"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."

Most importantly, and most relevantly, the Court then said:

"In this case, taking into account the offenders' early pleas of guilty by way of exofficio indictment, the past co-operation by the respondents, the payment of the loss sustained to the Commonwealth by the respondents and their apparent rehabilitation, the appropriate period before recognisance release order was appropriate would have been towards the lower end of that range in the region of 60 percent."

What the Court is saying there, the relevance of all those matters which would result in, arguably, not insubstantial allowance under the Queensland State legislation, would have the effect of, say, reducing the bottom from 66 and two-thirds percent to 60 percent; to the minds of some, not a very significant reduction. What the Court of Appeal stated in CAK, is that it would then require a most unusual factor to reduce the bottom to below 60 percent particularly if such were to be reduced not insubstantially.

In Robertson, Fraser JA for the Court referred to the above stated principle in Bernier about the norm being 60 percent to 66 and two-thirds percent of the maximum. He referred to the serious dishonesty case of Ly, stating:

"It would also be contrary to principle to apply those remarks to this very different case as though they replace the statutory discretion."

Referring to Bernier, his Honour stated:

"I would regard the statement" (as cited above) "that subject to caveats concerning consideration being given to the individual facts of a particular case 'the norm for non-parole periods is in the range of about 60 percent to 66 and two-thirds percent as one which should be understood as limited to cases concerning the nature of the offending considered in that case."

His Honour said later:

"The decisions cited for the respondent which do not 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 percent to two-thirds of the head sentence."

The Court in Mokoena referred inter alia to Robertson. The Court there was concerned with an accused's appeal. He had a head sentence of three years' imprisonment with release on recognisance after 15 months. The Court in Robertson considered the special circumstances and special facts therein and reduced the bottom to 12 months. In Mokoena, Holmes JA adopted the statement of principle in Robertson, remembering that her Honour in Mokoena was dealing with a drugs case. HerHonour at paragraph 10 on page 4 stated:

"At this Court's request, counsel for the respondent" (that is the Commonwealth Director of Public Prosecutions) undertook to provide some information as to the practice of setting non-parole periods for Commonwealth drug offences at a point beyond the halfway mark of the sentence. An examination of sentence appeals from other jurisdictions bears out the statement of the prosecutor below. In Selim [1998] NSWSC 165, for example, the New South Wales Court of Criminal Appeal observed: 'There is no rigid rule as to the proportion that a non-parole period should bear in the head sentence, but more often than not, the non-parole period is more than 50 percent of the head sentence and is ordinarily of the order of 60 percent to 66 and two-thirds percent of it.'"

Similar comments can be found elsewhere in the judgments of the New South Wales Court of Criminal Appeal, her Honour referring inter alia to Bernier and yet another New South Wales appeal case, Viana [2001] NSWCCA 171. Her Honour continued:

"The practice has been consistently applied in other States."

Referring to the Victorian cases of Phong, Thomas, Ngui and Tiong, the South Australian case of Cheng, and a case of Mustafa, the reference being (2002) 133 A Crim R 133, her Honour continued, not unimportantly:

"It does not seem, however, that any similar uniformity has developed in respect of Commonwealth offences which do not involve drugs."

Her Honour therein referring to Robertson and adopting such in effect with approval. Her Honour continued:

"[11] The practice of setting non-parole periods in drug importation cases at around the two-thirds mark seems to have originated in New South Wales, where the idea of “truth in sentencing” reached its zenith with s 28A of the Probation and Parole Act 1983 (NSW). That section required a non-parole period for a serious offence to be at least three-quarters of the head sentence unless the court determined that the circumstances justified a shorter period. Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) currently requires for all offences where imprisonment is imposed that, in the absence of special circumstances, the ratio of the non–parole period to the balance of the sentence be at least 2:1.

[12] In contrast, in Queensland for many years, eligibility for parole for a prisoner not serving a life term, or (since 1997) not subject to a serious violent offence declaration, commenced, in the absence of an order, after the prisoner had served half of his term of imprisonment. That regime still applies, albeit to a more limited class of prisoner. As a result, the tendency has been to recognise mitigating factors such as co-operation with the authorities by setting a non-parole date earlier than that statutory half-way mark. But that statutory position has no application, direct or indirect, to the process of fixing a non-parole period for a Federal offence. The setting of the non-parole period is, of course, a matter of individual discretion; but at the same time, in exercising Federal jurisdiction, consistency with decisions in other jurisdictions is, as this Court observed in R v Tran 172 ACR 436 or [2007] QCA 221, desirable."

When one looks at that authority, there are certain remarks which say that the sentencing discretion is wider. I'm in the somewhat difficult position in that I feel constrained to follow the direct statement relevant to the principles before me as enunciated in CAK. CAK involved so many features that are similar to the matter of Panchal. It is a serious dishonesty offence involving a substantial amount of money with a serious breach of trust.

These are general comments in relation to the ultimate individual sentence. I shall be taking into account all the submissions. I've actually heard oral evidence from Panchal himself and from the very experienced psychiatrist, Dr Klug.

As I said, there is a number of important similarities to CAK and, as with CAK, Panchal is an exofficio indictment. As with the accused there and Panchal here, there has been significant cooperation in the administration of justice and with the authorities. Compensation has been made in full and there is evidence of apparent rehabilitation. As a matter of law, CAK says, that would seem to reduce 66 and two-thirds percent to 60 percent of the head sentence and that there would then have to be most unusual factors for the reduction to be further. If it had not been for the decision in CAK, everyone understands that the bottom I would arguably impose would be lesser than that which will ultimately be imposed.

Looking at what's said in Mokoena and in Robertson, it would suggest that there's a wider scope for the range for the bottom. When one looks at the footnotes appended to Exhibit A in the very detailed and helpful submissions by the Crown counsel (I have received great assistance from the detailed submissions, the industry with thoroughness and relevance of all counsel who have been involved), such footnotes suggest that prior to the New South Wales Court of Appeal statement of principle in relation to the norm having wider acceptance, that the Courts of Appeal in other States, including Queensland, implemented a bottom of lesser, not insubstantially less, than 60 percent.

If there is conflict between the authorities, is the situation one that can only be resolved in a Court of Appeal? Will it comprise a Court of three or a Court of five as happened in Lockwood [1981] Qd R 209 to overrule the Court of Appeal decision in Burnell [1966] QdR 348.

Is it the situation that a Court of three could adjudicate on whether any decision was given per incuriam and/or where there is conflict, whether there should be clarification? Is it a matter that might ultimately have to be resolved in the High Court? As I say, my concern throughout this has been that the State sentences in the New South Wales Court of Appeal seem to have set the norm for other States and if the norm had been set, say, by the Queensland Court of Appeal with a number of other cases following thereon, would their arguably have been a different norm? I can't speculate on those matters. I am bound by what the Court of Appeal said and for the purposes of Panchal I shall be following what the Court said in CAK.

In relation to the Assad matter, he still hasn't got a legal advisor. Yet again he says he hopes to have one in the near future. When that matter comes on for sentence I imagine it would be listed for sentence on Friday or Friday week, that matter can be resolved then.

In relation to the matter of Stares, because of the very helpful written submissions of both sides and more particularly the concessions made by Mr Kent, Commonwealth Crown counsel, therein, it would seem that the problem will not arise in such matter.

So, in relation to the matter of Stares, this matter by agreement between Mr Kent and Mr Smith is that that sentence will be heard on the 6th of May 2009 and bail is enlarged.

In relation to Panchal, I shall proceed to sentence forthwith.