R v PBH

In this significant recent matter, the Court addressed the operation of ss 161S and 161R of the Penalties and Sentences Act 1992 in relation to the fixing of indicative sentences.

Sofronoff P and McMurdo JA and Boddice J

5 March 2021

On his own pleas of guilty the applicant had been sentenced to a term of six years’ imprisonment, with eligibility for parole after he had served two years for trafficking in schedule 1 dangerous drugs, together with a serious organised crime circumstance of aggravation. [2]. The sentence imposed allowed for a reduction under s 13A of the Penalties and Sentences Act 1992 (“the Act”). Had the sentence not been reduced, a term of 16 years, inclusive of a “mandatory component” of seven years’ imprisonment pursuant to s 161R(2)(b) of the Act would have been imposed. As matters eventuated however the sentencing judge elected to reduce the sentence having regard to s 161S of the Act and the applicant’s undertaking to cooperate in major crime proceedings. [3].

In seeking leave to appeal against sentence the applicant submitted that: [4]–[5]:

1. the primary judge erred in law in fixing the indicative sentence, since he held that the indicative sentence had to include the mandatory component according to s 161R; and
2. under s 13A, the primary judge incorrectly discounted the indicative sentence for past as well as future cooperation.

The crux of the applicant’s argument was that the sentence imposed was excessive since it was the end result of an indicative sentence which itself was excessive. The applicant contended that when s 161S is engaged, the operation of s 161R is displaced to avoid the scenario of an offender being given the benefit of both their past and future cooperation. [4], [17]. Whilst the Court did not consider that argument to be meritorious it found that the primary judge had erroneously discounted the indicative sentence for past as well as future cooperation. [5].

In relation to the application of s 161S the Court clarified that it is within its purview to order that the “mandatory component”, as required by s 161R(2), need not be served cumulatively with the base component or entirely in a corrective services facility. That said, the issue of whether the imposition of the mandatory component can be reduced arises. [14]. Whilst the requirement for the mandatory component is found in s 161R(2), (instead of s 161R(3) or s 161R(4)), s 161R(3) stipulates that “the mandatory component … must not be mitigated or reduced under this Act or another Act or any law”. Section 161S applies despite s 161R(2), in order that the power to reduce a sentence where s 13A or s 13B are engaged may be exercised to lessen the mandatory component itself. [15]. The Court held that, properly construed, s 161S(1) “provides that ss 13A and 13B ‘apply’ for the sentencing of an offender of this category … [That] means that a court’s duty to mitigate the sentence for an offender’s cooperation is to apply in the sentencing of an offender under Part 9D. It also means that the procedure under s 13A, or in a case involving only past cooperation, the procedure under s 13B, is to be followed”. [19]. It follows that s 161R operates subject to the sentence being mitigated for past and/or future cooperation, the court being able and bound to give credit for both, whilst following s 13A. The indicative sentence pursuant to s 13A(7) will reflect what would have been imposed but for the undertaking of future cooperation, and of course it will also take into account any past cooperation. Past cooperation might potentially be used in order to reduce both the base and mandatory components. [20].

Additionally, the applicant contended that the sentencing judge had not accounted sufficiently or at all for past cooperation in the indicative sentence. Central to that submission were the sentencing remarks which he had made in open court, to the effect that the applicant had provided “some special cooperation”, for which the result, by law, was that a mandatory component of seven years “does not apply in your circumstance”. The Court of Appeal shared the view that that was a misstatement of the effect of s 161S. It confirmed that s 161R(2) still applied, subject to mitigation of the indicative sentence having regard to past cooperation, and reduction of the ultimate sentence having regard to future cooperation. [23].

Put simply the Court’s view was that notwithstanding the fact that the sentencing judge had referred to the applicant’s past cooperation in his sentencing remarks, it did not, without more, follow that he had given credit for it in his assessment of the indicative sentence. As such the Court held that he had failed to discount the indicative sentence by not giving the applicant credit for his past cooperation. [25]. That error warranted the Court’s intervention by means of a fresh reconsideration of the indicative sentence (as distinct from the actual sentence). [26], [27].

In the result, the Court permitted the application for leave to appeal and the appeal. The ultimate sentence remained intact however the indicative sentence, assessed under s 13A(7) of the Penalties and Sentences Act 1992, was varied to fairly reflect the applicant’s cooperation. [28]. The Court noted that its power to vary an indicative sentence is well established: see R v McGrath [2002] 1 Qd R 520, 525 [15].

A de Jersey