Recent Developments in Sentencing Commonwealth Offenders

BY Hearsay

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Recent Cases

The approach of the Queensland Court of Appeal to the sentencing of Commonwealth offenders over the last 12 months has not been easy to follow.

Case 1: Robertson

In R v Robertson [2008] QCA 164 the Court of Appeal considered an appeal against sentence by an applicant who had received (over a 26 year period) Commonwealth benefits totalling $121,000.00 in excess of her entitlements. She was sentenced at first instance to 3 years’ imprisonment, to be released on a recognisance after 15 months. On appeal, her representatives submitted that she had not obtained the “usual allowance of one third”. (The initial release date that was ordered equated to 42% of the head sentence).

The Commonwealth DPP submitted that “the norm for non-parole periods is in the range of about 60 percent to two-thirds of the head sentence, although subject to judicial discretion”, pointing to interstate decisions in support of that contention. Such a submission, had it been successful, would have had significant consequences for Robertson, in that she would have been required to serve in the region of 2 years of her 3 year head sentence, rather than the 15 months ordered.

The Court of Appeal did not accept the Crown’s position. Fraser JA (at [10]) noted that:

“I accept that in striving to achieve consistency in sentencing, state courts exercising the judicial power of the Commonwealth should have regard to comparable, authoritative decisions of courts throughout Australia; but in my opinion the decisions cited for the [Commonwealth’s] proposition were not comparable ones”.

His Honour went on to say (at [18]) that:

“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 percent to two-thirds of the head sentence: in the broadly comparable cases the relationship between the pre-release period and the total period of imprisonment vary between less than one-third, one-third, slightly more than one-third, about 40 percent and 50 percent. The variation reflects the marked variation of the facts in these cases”.

Daubney J specifically noted (at [43]) that he agreed with everything said by Fraser JA.

Ultimately, whilst rejecting any notion that the “usual” factors in mitigation entitled the applicant to be released at the one-third mark, the court ultimately amended the original sentence with the effect that Ms Robertson would become eligible for release after serving 12 months of her 3 year term.

Case 2: Cak and Cal

An entirely different approach was taken by the Court in February this year in the case of R v Cak and Cal; ex parte Commonwealth DPP [2009] QCA 23. That case involved a Commonwealth appeal against a sentence of 3 years with release after 4 months for two offenders who pleaded guilty to two counts of dishonestly obtaining a financial advantage by deception.

In the Court’s judgment, Atkinson J relied upon various interstate authorities to conclude (at [18]) that:

“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 percent 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”.

Her Honour indicated that, given the mitigating features in the present case, a release date towards the lower end of that range, i.e. about 60% of the head sentence, would be appropriate.1 The sentence was then further reduced to reflect some other unusual features of the case, but it is clear that Her Honour’s view was that 60 to 66% was the appropriate non-parole period range. Importantly, in making this statement, no distinction was drawn between different classes of Commonwealth offences; rather it was suggested that the 60 to 66% range is the norm for Commonwealth offences generally. His Honour Justice Lyons agreed with the reasons of Atkinson J in that regard.

Case 3: Mokoena

One week later, on 27 February this year, a differently constituted Court of Appeal considered R v Mokoena [2009] QCA 36 and provided a different analysis again. The case involved the importation of heroin, for which the applicant was sentenced at first instance to 9 years jail with a non-parole period of 4 years and 9 months (i.e. about 53% of the head sentence).

In this case Holmes JA observed (at [8]) :

“that form of sentence — with eligibility for parole set beyond the half way mark – departs from usual sentencing practice in Queensland on a plea of guilty. The learned sentencing judge, however, was informed by the prosecutor that it was generally accepted, in sentencing for Commonwealth drug offences, that an appropriate range for the non-parole period was between 60 and 66 percent of the head sentence”.

At the Court’s request, the Commonwealth undertook to provide information to the Court about the practice of setting non-parole periods for Commonwealth drug offences at a point beyond the half way mark of the sentence. In due course, the prosecution pointed to various interstate authorities, particularly from New South Wales, in support of its “60 to 66%” contention. Her Honour noted though that “it does not seem, however, that any similar uniformity has developed in respect of Commonwealth offences which do not involve drugs”.

Her Honour went on to state (at [11] — [12]) that:

“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 & 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 is to be at least 2:1.

In contrast, in Queensland for many years, eligibility for parole for a prisoner not serving a life term … 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 the 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 … desirable”.

In the end, Holmes JA (with whom Fraser JA and McMurdo J agreed) determined that the setting of a non-parole period of 53% of the sentence was consistent with the practice in other drug importation cases, in this State and others, of setting the non-parole period beyond the half way mark of the head sentence. Her Honour pointed specifically to the interests of comity between courts exercising federal jurisdiction in that regard.

Discussion

With due respect to contrary views, it is the author’s experience that sentences for Commonwealth offences in Queensland have previously reflected the traditional Queensland position of release at or before half way2 (often at a third following a plea of guilty). That practice is even more common with sentences involving release by way of a recognisance, where frequently only a small portion of the head sentence is served in custody.3 Whilst the position is clearly not settled, it would seem that there is a growing trend of setting the parole eligibility date for federal offenders beyond the half way mark of their head sentence. This development seems to have sprung from a desire to have Queensland sentences for federal offenders achieve comity with other states where “truth in sentencing” principles mandate that non-parole periods are significantly longer than in Queensland.

The obvious, and undesirable, consequence of this new trend will be that those convicted of Commonwealth offences are likely to serve longer in custody than those sentenced for similar offences under Queensland legislation.4 By way of simple illustration, a Queensland public servant who pleads guilty to stealing money from his employer (the State government) might be sentenced to 3 years’ jail, to serve 12 months. However a Commonwealth public servant with the same antecedents, pleading guilty to an identical crime (but against the Commonwealth government) would serve 2 years of the 3 year head term — double the period of actual imprisonment served by the Queensland offender.

Summary

The following points emerge from this discussion:

It can be expected that the Commonwealth DPP will now regularly seek non-parole periods for the sentencing of Commonwealth offenders to be 60 to 66 percent of the head sentence, even on pleas of guilty, and this may be expected to be especially so in the case of more serious Commonwealth offences — serious fraud, tax and drug offences.
Without a corresponding reduction in head sentence (and there has been no suggestion in the cases that such an approach would be appropriate), this will certainly result in increased periods of imprisonment being served by Commonwealth offenders.
The Court of Appeal’s approach to this matter has so far varied, but it would seem that the “two thirds rule” is most likely to find favour with the Court in relation to drug offences.

Already, this issue has created difficulties for sentencing courts,5 and practitioners whose task it is to advise on likely sentencing outcomes are confronted with much uncertainty. It is therefore an issue which is likely to receive further attention from our Court of Appeal, and perhaps the High Court.

Glen Cranny

Footnotes

Indeed, that calculation produced a result in excess of what the Crown had sought at first instance.
Section 184 of the Corrective Services Act 2006 (Qld) provides for parole eligibility at the half-way point for certain prisoners, including those sentenced to more than 3 years imprisonment.
Under ss19AB-AC Crimes Act 1914 (Cth), it is only sentences involving a custodial term exceeding 3 years that may involve a non-parole period — lesser terms involve release by way of recognisance.
This raises an interesting argument about whether a judge sentencing a Commonwealth offender should take into account the fact that a Queensland offence, equally or more applicable to the conduct in question, should have been preferred. In this regard, see Liang & Li 82 A Crim R 39.
See for example the recent comments of Howell DCJ in R v Panchal and Ors. [2009] QDC 105.

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