Johnson v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ.,Gummow,Callinan,Heydon JJ,Kirby J.
• Judgment Date: 30 March 2004
• Neutral Citation: [2004] HCA 15,2004-0330 HCA A
• Docket Number: P44/2003
• Date: 30 March 2004

Chad Johnson

Appellant

and

The Queen

Respondent

[2004] HCA 15

Gleeson CJ, Gummow, Kirby, Callinan AND Heydon JJ

P44/2003

HIGH COURT OF AUSTRALIA

Johnson v The Queen

Criminal law — Sentencing — Federal offences — Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act 1901 (Cth) applied — Whether sentencing judge applied peculiarly Western Australian sentencing principles — Whether express reference to relevant considerations in s 16A(2), Crimes Act 1914 (Cth) necessary.

Criminal law — Sentencing — Federal offences — Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act 1901 (Cth) applied — Totality principle where sentencing for commission of several offences — Whether sentencing judge must fix sentence for each offence and aggregate them before determining questions of totality or concurrence — Whether sentencing judge may in some circumstances lower each sentence before aggregation — Instinctive or intuitive synthesis approach to sentencing.

Criminal law — Sentencing — Federal offences — Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act 1901 (Cth) applied — One transaction rule — Where two offences contain common element — Effect of factual errors made by Court of Criminal Appeal — Whether factual errors made by Court of Criminal Appeal in dismissing appeal necessarily leads to conclusion that sentencing judge erred — Whether sentence properly reflects consideration of whether defendant was truly engaged upon one multi-faceted course of criminal conduct.

Crimes Act 1914 (Cth), ss 16A, 16B, 19(2).

Customs Act 1901 (Cth), s 233B.

Representation:

D Grace QC with M L Tudori for the appellant (instructed by Michael Tudori & Associates)

D J Bugg QC with D W L Renton for the respondent (instructed by Commonwealth Director of Public Prosecutions)

ORDER

1. Appeal allowed.

2. Set aside the order made by the Court of Criminal Appeal of Western Australia on 1 May 2002 dismissing the appeal.

3. Remit the proceeding to the Court of Criminal Appeal for consideration and determination in accordance with the reasons of this Court.

1 Gleeson CJ. For the reasons given by Gummow, Callinan and Heydon JJ, I agree that the appeal should be allowed and the matter remitted to the Court of Criminal Appeal for further consideration.

2 I agree with Gummow, Callinan and Heydon JJ that the errors identified in the reasoning of the Court of Criminal Appeal do not necessarily require the conclusion that there was error on the part of the sentencing judge. I also agree that the appellant failed to make good a number of arguments suggesting that the Supreme Court of Western Australia has systematically adopted an erroneous approach to the sentencing of federal offenders for multiple offences, or to the application of what is sometimes called the principle of totality. In particular, the submission that there is inconsistency between the principles stated in Mill v The Queen1 and Pearce v The Queen2, and that Pearce effectively eliminated one of the two alternative courses said in Mill to be available to sentencing judges 3, should be rejected.

3 Despite an unsuccessful attempt by the appellant to construct various issues of sentencing principle, the ultimate question in the case is whether there was adequate consideration of the merits of the appellant's contention that the sentences imposed paid insufficient regard to the common aspects of the two offences of which he was convicted.

4 In Attorney-General v Tichy4, Wells J said:

‘It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his

criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.’

5 It may be added that the Crimes Act 1914 (Cth), in s 19, allows for sentences that are partly cumulative, and partly concurrent. And, as was observed in Mill5, a sentencing judge, in a suitable case, may respond to considerations of the kind discussed by Wells J by lowering individual sentences rather than by making sentences wholly or partly concurrent. Ultimately, justice requires due consideration of whether, and to what extent, the appellant ‘was truly engaged upon one multi-faceted course of criminal conduct’, and whether the sentences imposed properly reflected the outcome of that consideration.

6 Gummow, Callinan AND Heydon JJ. This appeal raises questions as to the proper approach to sentencing by State Courts of offenders against Federal criminal law who have committed more than one offence.

Facts

7 Schwarz was a ‘drug runner’. He entered Australia on 2 November 2000, carrying more than 5000 tablets containing a substantial quantity of 3,4 Methylenedioxymethamphetamine (‘ecstasy’), a prohibited import to which s 233B of the Customs Act 1901 (Cth) applied. That quantity was not less than a commercial quantity within the meaning of s 233B(1)(c) of the Customs Act. He also had in his possession more than a trafficable quantity of cocaine, another prohibited import. He was apprehended and agreed to participate in a controlled delivery of inert substances in substitution for the drugs that had by then been confiscated.

8 In accordance with instructions he had been given in Indonesia by the organiser of the importation, Schwarz checked into an hotel at Como in Perth. He telephoned the organiser to seek further instructions. He was asked to provide his room number and was informed that a person would call on him some time before midday to collect the drugs and to pay him for the importation. The person who was to collect the drugs, for which by then inert substances packaged in one parcel had been substituted, was the appellant. The appellant came to Schwarz's room. As he attempted to leave it he was arrested by Australian Federal Police officers. A second co-offender, Smart, who had been sitting in the appellant's sister's car outside the hotel, was also arrested. He was in possession of a substantial sum of cash.

At first instance

9 The appellant was charged with four offences, two of which were subsequently withdrawn. The remaining counts to which he pleaded guilty were:

• ‘1. On or about 2 November 2000 at Perth the [appellant] did without reasonable excuse, attempt to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied namely, narcotic goods consisting of a quantity of 3,4 Methylenedioxymethamphetamine (commonly called “Ecstasy”), being not less than the commercial quantity applicable to that narcotic substance, contrary to s 233B(1)(c) of the Customs Act 1901.

• 2. On or about 2 November 2000 at Perth the [appellant] did without reasonable excuse, attempt to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 applied namely, narcotic goods consisting of a quantity of Cocaine, being not less than the trafficable quantity applicable to that narcotic substance, contrary to s 233B(1)(c) of the Customs Act 1901.’

10 The appellant's plea was heard by the Supreme Court of Western Australia (Scott J). His Honour's sentencing remarks included the following:

‘The pre-sentence report indicates that you are aged 22, single and unemployed. The report indicates that at the time of this offending conduct you were in debt on a bank loan arising out of your purchase of a motor vehicle which had been damaged in an accident. At a rave party you had been offered $2000 to collect a package and you agreed to do that because the money would assist you with the loan.

The pre-sentence report also speaks of your family life and the difficulties...