Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125 [2011] 2 Qd R 40

SUPREME COURT OF QUEENSLAND CITATION: Bryce v Chief Executive Officer of Customs (No 2) [2010] QSC 125 PARTIES: JEFFREY ANDREW JOHN BRYCE (applicant) v CHIEF EXECUTIVE OFFICER OF CUSTOMS (respondent) FILE NO/S: BS 7538 of 2009 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 30 April 2010 DELIVERED AT: Brisbane HEARING DATE: 1 December 2009 JUDGE: Fryberg J ORDERS: 1. Fix two years and nine months as the non-parole period in respect of the sentences imposed on the applicant in this Court on 15 March 2006. 2. The application is otherwise dismissed. 3. Direct that the Registrar forward copies of the file and these reasons for judgment to the Legal Services Commissioner. CATCHWORDS: Criminal law – Sentence – Sentencing orders – Non parole period or minimum term – Queensland – Federal offenders – State court sentencing federal offender – Sentence to be served in Queensland prison Criminal law – Sentence – Sentencing procedure – Comparisons – Consistency for federal offences – Imprisonment in default of payment of fine – Different procedures in different states and territories – Different Commonwealth policies in different states and territories – Not material inconsistency Criminal law – Sentence – Sentencing procedure – -- 1 of 34 -- 2 Comparisons – Consistency for federal offences – Imprisonment in default of payment of fine – Different procedures in different states and territories – State procedures expressly adopted by federal law – No need to adjust sentences to account for differences Criminal law – Sentence – Sentencing procedure – Irregularities – Generally – Power to reopen proceedings – “criminal proceeding” Criminal law – Sentence – Sentencing procedure – Irregularities – Generally – Reopening proceedings – Sentence not in accordance with the law – Ignorance of comparable interstate sentences for federal offences – Procedural error High Court and Federal Court – The federal judicature – Criminal jurisdiction – Application of State laws – Exception where “otherwise as provided” – Customs Act 1901 (Cth), s 247 and Excise Act 1901 (Cth), s 136 – Crimes Act 1914 (Cth), Part 1B High Court and Federal Court – The federal judicature – Criminal jurisdiction – Generally – Application to reopen proceedings – Whether federal jurisdiction exhausted – Sufficient connection with original proceedings despite time lapse Taxes and duties – Customs and excise – Jurisdiction and procedure in customs prosecution – Other matters – Nature of proceedings – Classification as criminal or civil proceedings – Relevant considerations – Qualities of a customs prosecution, penalties provisions and purpose of the classification Taxes and duties – Customs and excise – Penal provisions – Offences – Penalties – Other offences – Pecuniary penalties – Default periods of imprisonment – Non parole period not fixed at time of sentence – Application for reopening of order Corrective Services Act 2006 (Qld), s 178, s 179, s 180, s 184, sch 4 Crimes Act 1914 (Cth), s 15A, s 16A, s 16E(1)(2), s 18(2), s 19A, s 19AA, s 19AB, s 19AH, s 19AZ, s 19AZD, s 20AB Customs Act 1901 (Cth), s 234, s 235(4), s 245, s 247 Evidence Act 1977 (Qld), s 92, s 93 Evidence Act 1995 (Cth), s 5, s 143 Excise Act 1901 (Cth), s 120, s 134, s 136 Judiciary Act 1903 (Cth), s 39(2), s 68, s 79, s 80 Penalties and Sentences Act 1992 (Qld), s 15A, s 55, s 182A, s 184, s 188, s 189, s 191 -- 2 of 34 -- 3 Sentencing Act 1995 (WA), s 59(3) Uniform Civil Procedure Rules 1999 (Qld), r 668 Australian Customs Service v Nabhan [2009] NSWSC 199, cited Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1, cited Australian Securities and Investments Commission v Petsas [2005] FCA 88, cited Bryce v Chief Executive Officer of Customs [2009] QSC 298, related Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132, cited CEO of Customs v Labrador Liquor Wholesale P/L & Ors (2001) 162 FLR 230; [2001] QCA 280, cited Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49, cited Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Others [2006] QSC 004, cited Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Others (No 2) [2006] QSC 040, cited Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2006] QCA 166, cited Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2006] QCA 558, cited Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2007] QCA 035, cited Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd & Ors [2007] QCA 079, cited Customs, Chief Executive Officer v Labrador Liquor Wholesale Pty Ltd (2000) 157 FLR 395; [2000] QSC 171, cited Customs, Chief Executive Officer of v Labrador Liquor Wholesale Pty Ltd & Ors [1999] QSC 384, cited Jack Brabham Holdings Pty Ltd v Button (1988) 94 FLR 278, cited L Vogel and Son Pty Ltd v Anderson (1968) 120 CLR 157, [1968] HCA 90, cited Labrador Liquor Wholesale Pty Ltd Ors v CEO Customs [2007] HCATrans 3, cited Labrador Liquor Wholesale P/L & Ors v Chief Executive Officer of Customs [2006] QCA 104, cited Labrador Liquor Wholesale Pty Ltd & Ors v Chief Executive Officer of Customs [2007] QCA 001, cited Labrador Liquor Wholesale Pty Ltd v Chief Executive Officer of Customs [2007] HCATrans 102, cited Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29, cited -- 3 of 34 -- 4 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8, cited R v CAK and CAL; ex parte Cth DPP [2009] QCA 023, cited R v Cassar; ex parte Attorney-General [2002] 1 Qd R 386; [2001] QCA 300, cited R v Chandler [2010] QCA 021, cited R v Dobie [2001] QCA 162, cited R v Dobie [2004] 2 Qd R 537; [2004] QCA 140, distinguished R v Fidler [2010] QCA 025, cited R v Gee (2003) 212 CLR 230; [2003] HCA 12, cited R v Le [1996] 2 Qd R 516; [1995] QCA 479, cited R v MacCormack (2005) 196 FLR 13; [2005] QSC 049, distinguished R v MacKenzie [2002] 1 Qd R 410; [2000] QCA 324, cited R v Mara [2009] QCA 208, cited R v Marshall [2010] QCA 029, cited R v McQuire [2004] 1 Qd R 685; [2003] QCA 523, cited R v Mokoena [2009] 2 Qd R 351; [2009] QCA 036, cited R v Peters [1997] 1 VR 489, cited R v Robertson (2008) 185 A Crim R 441; [2008] QCA 164, cited R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 010, applied R v Shrestha (1991) 173 CLR 48; [1991] HCA 26, cited R v Sinclair (1990) 51 A Crim R 418, cited R v Suarez-Mejia (2002) 131 A Crim R 577; [2002] WASCA 187, cited R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, cited R v Voss; ex parte A-G (Qld) [2001] QCA 483, cited Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, applied Williams v The King [No 2] (1934) 50 CLR 551; [1934] HCA 19, cited Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited COUNSEL: J A Griffin QC for the applicant C K Copley for the respondent SOLICITORS: MCG Legal for the applicant Australian Government Solicitor for the respondent [1] FRYBERG J: The proceeding before me is the latest, but I suspect not the last, chapter in the long-running saga involving shipments of liquor and cigarettes to Fiji and Honiara by Labrador Liquor Wholesale Pty Ltd.1 1 For previous proceedings see Customs, Chief Executive Officer of v Labrador Liquor Wholesale Pty Ltd [1999] QSC 384; Customs, Chief Executive Officer of v Labrador Liquor Wholesale Pty Ltd -- 4 of 34 -- 5 PROCEDURAL HISTORY [2] On 6 February 2006 I convicted the applicant, his company Labrador Liquor Wholesale Pty Ltd and his co-director of (inter alia) 14 offences of evasion of customs and excise duties. On 3 March 2006 I ordered that they pay penalties of 14 different amounts in respect of those offences. The penalties ranged from $16,172.50 to $665,889.40 and totalled $4,644,429.60. I further ordered that if the applicant or his co-director failed to pay any such penalty immediately, he be imprisoned for a period ranging from six days to 238 days respectively. The periods were calculated at the rate of one day for each $2,800 of penalty. I made no other order, so the imprisonment was required to be served cumulatively.2 [3] The applicant appealed against his conviction and sentence for those 14 offences.3 Ground 2 of the amended notice of appeal against sentence asserted that I erred in failing to observe the requirements of Part 1B of the Crimes Act 1914 (Cth). The applicant’s outline of submissions instanced, as an example of this, my failure to fix a non-parole period or make a recognisance release order in respect of the default imprisonment as required by s 19AB(1) of the Crimes Act; or to state my reasons for not so doing as required by s 19AB(4). [4] The judges hearing the appeal were divided on this question. The Chief Justice held that s 19AB was inapplicable because any imprisonment was contingent upon non- payment of penalty. Jerrard JA held that it was appropriate to make orders under s 19AB and proposed fixing a single non-parole period of 2½ years in respect of each of the sentences “in accordance with the standard sentencing regime for offenders who contravene State laws.”4 Williams JA held: “If the second and third appellants are imprisoned in default of payment of the penalties imposed, and that period of imprisonment is for more than three years, then it is arguable they could apply pursuant to s 19AB of the Crimes Act 1914 for a non-parole period to be fixed; but it is not appropriate to determine such entitlement at this stage.” 5 [5] Ground 3 of the notice of appeal asserted that the sentences which I imposed were manifestly excessive and at variance with penalties imposed in similar cases. The applicant’s outline of submissions made it clear that this ground related to the total [2000] QSC 171; CEO of Customs v Labrador Liquor Wholesale Pty Ltd [2001] QCA 280; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QSC 004; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 040; Labrador Liquor Wholesale Pty Ltd v Chief Executive Officer of Customs [2006] QCA 104; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 166; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558; Labrador Liquor Wholesale Pty Ltd v Chief Executive Officer of Customs [2007] QCA 001; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2007] QCA 035; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2007] QCA 079; Labrador Liquor Wholesale Pty Ltd v CEO Customs [2007] HCATrans 3; Labrador Liquor Wholesale Pty Ltd v Chief Executive Officer of Customs [2007] HCATrans 102; Bryce v Chief Executive Officer of Customs [2009] QSC 298. 2 Penalties and Sentences Act 1992, s 182A(2)(b). 3 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558. 4 Ibid at [107]. 5 Ibid at [48]. -- 5 of 34 -- 6 sum imposed by way of penalty. There was no challenge to the quantum of the default imprisonment. One error of principle in the exercise of the discretion to impose default imprisonment was asserted. Jerrard JA (with whom on this point the other members of the court agreed) wrote: “The appellants did not challenge the view that, if the ordered penalties were entirely unpaid – as appeared very likely – default periods totalling up to five years were appropriate, in view of their overall criminality. They did not suggest that any other, lesser, default periods for the particular offences, or in total, ought to have been ordered. Their argument was that it was wrong in principle to have regard to general deterrence when fixing periods of imprisonment in default, but I respectfully disagree.”6 So far as is relevant for present purposes, the appeal was dismissed. [6] The applicant applied for special leave to appeal to the High Court. That application was refused on 2 March 2007. In its reasons for judgment the court said: “So far as section 19AB of the Crimes Act 1914 (Cth) is concerned, the applicants state no ground of appeal founded on that provision. We express no view on the point, which is a point that divided the Court of Appeal. In particular, we express no view on whether an application may now be made in reliance upon that section.”7 [7] Following the decision of the High Court, a warrant for the applicant’s arrest was issued (on 19 April 2007). It was not executed until 12 September 2008. The applicant deposed that he was allowed to remain at large “due to the fact that I was at the time in the care of a doctor in relation to my heart complaint and awaiting a heart operation”. He has been in custody since the latter date, a period of 595 days measured to the date of this judgment. [8] The present application was filed on 14 July 2009. In it the applicant sought an order “that pursuant to Section 19AH(1)(b) of the Crimes Act 1914 (Cth) … the Court fix a non-parole period under the Act.” [9] On 6 July 2009 I ordered the separate determination of two questions of law arising in the application. Those questions were: “(a) whether Section 19AB of the Act was applicable in respect of the sentencing of Mr Bryce upon conviction for offences against the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth) by the Honourable Justice Fryberg on 15 March 2006 as varied by Order of the Court of Appeal made on 9 February 2007; and (b) whether there has been a failure to fix a non-parole period in respect of the said sentencing for the purpose of Section 19AH(1).” 6 Ibid at [102]. 7 [2007] HCATrans 102. -- 6 of 34 -- 7 In a reserved judgment delivered on 18 September 2009,8 Applegarth J determined those questions in the affirmative. [10] His Honour also held that it was unnecessary to determine whether there should be a declaration that ss 178-180 and 184 and sch 4 of the Corrective Services Act 2006 (Qld) applied to the applicant’s imprisonment, as the applicant had submitted. The applicant did not seek this relief before me and must be taken to have abandoned it. [11] The balance of the application came before me for hearing on 1 December 2009. At the outset, the applicant sought and was granted leave to amend the originating application by adding to the orders sought: “1A ... alternatively that the sentence imposed on the Applicant be reopened pursuant to S. 188 of the Penalties and Sentences Act 1992 and the Applicant released from imprisonment.” THE APPLICATION UNDER S 188 [12] In support of para 1A, the applicant submitted that there is no legislative provision in any other Australian jurisdiction equivalent to s 182A of the Penalties and Sentences Act 1992 (Qld), pursuant to which the default imprisonment is ordered. He submitted that in such circumstances the principles of parity [sic; semble consistency] of sentencing dictate that default imprisonment not be ordered. Implicitly, he submitted that this is sufficient to bring the case within s 188 of the Act and that the fact that there has been an appeal at which the matter could have been raised is of no consequence. [13] Section 188 relevantly provides: “188 Court may reopen sentencing proceedings (1) If a court has in, or in connection with, a criminal proceeding, including a proceeding on appeal — (a) imposed a sentence that is not in accordance with the law; or (b) failed to impose a sentence that the court legally should have imposed; or (c) imposed a sentence decided on a clear factual error of substance; or (d) failed to fix a date for the offender to be released on parole as required under part 9, division 3; the court, whether or not differently constituted, may reopen the proceeding. (2) … (3) If a court reopens a proceeding, it— (a) must give the parties an opportunity to be heard; and (b) may resentence the offender— (i) for a reopening under subsection (1)(a)—to a sentence in accordance with law; or (ii) for a reopening under subsection (1)(b)—to a sentence the court legally should have imposed; or 8 Bryce v Chief Executive Officer of Customs [2009] QSC 298. -- 7 of 34 -- 8 (iii) for a reopening under subsection (1)(c)—to a sentence that takes into account the factual error; or (iv) for a reopening under subsection (2)—to a sentence under subsection (4); and (c) may amend any relevant conviction or order to the extent necessary to take into account the sentence imposed under paragraph (b). (4) … (5) The court may reopen the proceeding— (a) on its own initiative at any time; or (b) for a reopening under subsection (1)—on the application of a party to the proceeding made within— (i) 28 days after the day the sentence was imposed; or (ii) any further time the court may allow on application at any time; or (c) for a reopening under subsection (1)(d)—on the application of the chief executive (corrective services); ...”. [14] The first question which arises is whether the application should have been brought in the Court of Appeal division. [15] The second question is whether s 188 has any application to sentences imposed under Commonwealth legislation. The applicant does not suggest that, standing alone, the section could have any application. He submits that the section applies by virtue of s 79 of the Judiciary Act 1903 (Cth). [16] The third question is whether, assuming s 188 is picked up by s 79 of the Judiciary Act, these proceedings are criminal proceedings within the meaning of s 188. [17] The fourth question is whether the matters relied upon by the applicant answer the description in one or other of the preconditions set out in sub-ss 188(1)(a), (b) or (c). [18] The fifth question is whether the grounds relied on by the applicant are made out in the circumstances of the case. This question really involves two issues: whether it is correct that there is no legislative provision in any other Australian jurisdiction equivalent to s 182A of the Penalties and Sentences Act 1992; and whether in such circumstances principles of consistency of sentencing dictate that default imprisonment not be ordered. [19] It may also be necessary to consider whether the Court should allow further time for making the application under s 188(5)(b)(ii). 1. In which division of the Court should the application have been brought? [20] The applicant appealed against the sentence. The appeal was dismissed9 and an application for special leave to appeal to the High Court was also dismissed.10 The first ground of appeal was that the trial judge erred in imposing sentences of imprisonment on him. However the argument advanced to the Court of Appeal 9 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2006] QCA 558. 10 Labrador Liquor Wholesale Pty Ltd v Chief Executive Officer of Customs [2007] HCATrans 102. -- 8 of 34 -- 9 under that ground related to the power to impose default imprisonment, not to the point now raised by the applicant, and it was so treated by the court. This is therefore not a case where the applicant seeks to relitigate a point already decided by the Court of Appeal.11 That being so, in cases where the Court of Appeal has dismissed the appeal12 (or even, in some cases, varied the sentence13), the court which imposed the sentence is the trial court. The Trial Division of the Supreme Court was the correct forum. 2. Jurisdiction: does s 79 of the Judiciary Act 1903 (Cth) pick up s 188 of the Penalties and Sentences Act 1992 (Qld)? [21] Senior counsel for the applicant made no submissions regarding jurisdiction in his initial outline of submissions. He dealt with the question only in submissions in reply where, for the first time, he relied upon s 79 of the Judiciary Act. That was unfortunate. The question of jurisdiction to reopen the sentence was plainly one of importance and it ought to have been dealt with in counsel’s initial submissions. The practice of withholding arguments until reply is to be deprecated, not only in relation to oral submissions but also in relation to written outlines. [22] Section 79 relevantly provides: “79 State or Territory laws to govern where applicable (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. ...” [23] The submission was: “The jurisdiction to re-open the sentence under s. 188 of the Penalties and Sentences Act 1992 (Qld) arises by reason of s. 79 of the Judiciary Act. … [I]n MacCormack [2005] QSC 49, an application was made before Wilson J to reopen a sentence imposed under the Customs Act. The applicant had been convicted of being knowingly concerned in the importation of narcotics. The offence was a federal one under the Customs Act 1901, and the provisions of the Crimes Act 1914 (C’th) were applicable to the sentencing. Her Honour stated: ‘The application was properly brought before the court, which was the court which imposed the sentence’.”14 The submission went on to note that her Honour cited R v Dobie,15 a Court of Appeal decision in which s 188 was held to be applicable to an application for reopening of a federal sentence. 11 Compare R v Voss; ex parte Attorney-General (Qld) [2001] QCA 483. 12 R v Dobie [2004] QCA 140. 13 R v McQuire [2004] 1 Qd R 685; [2003] QCA 523. 14 It was not argued that s 68(1) of the Judiciary Act could be applied. 15 [2004] 2 Qd R 537; [2004] QCA 140. -- 9 of 34 -- 10 [24] Several features of the two cases cited should be noted. Unfortunately they were not dealt with in the submission. First, Dobie was not a case arising under the Customs Act 1901 (Cth). It involved sentences for fraud offences.16 The sentence which was sought to be reopened was one imposed by the District Court in proceedings on indictment, where the court had jurisdiction under s 68 of the Judiciary Act. Second, s 79 was not referred to in Dobie. Third, the same was true in MacCormack17: the sentence in that case was imposed after the applicant had been convicted on indictment18 of being knowingly concerned in the importation of narcotics in not less than trafficable quantities. Again s 79 was not referred to. Fourth, in neither case was it argued that s 188 had no application to sentences governed by the Crimes Act 1914 (Cth). In both it was assumed that the section was available if its terms were satisfied. Finally, Wilson J’s statement quoted in the submission was in context referring to the question whether the application should have been brought before the trial court or the Court of Appeal in a case where the Court of Appeal had previously dismissed an appeal against the sentence. Her Honour was not addressing the question whether an application could properly be brought at all. [25] All those features make the present case distinguishable. Here the original proceedings were conducted in the Supreme Court exercising jurisdiction conferred by s 245 of the Customs Act 1901 (Cth) and s 134 of the Excise Act 1901 (Cth). They were conducted “in accordance with the usual practice and procedure of the Court in civil cases”, as was required by ss 247 and 136 of those Acts respectively. The 14 customs and excise penalties were imposed under ss 234 and 120 of those Acts. The imposition of the penalties was governed by the provisions of the Crimes Act relating to the sentencing, particularly the relevant provisions of Part 1B of that Act (“Sentencing, imprisonment and release of a federal offenders”). Whether s 79 picks up s 188 depends upon the terms of the former section, not upon what was said in those two cases. “except as otherwise provided” [26] The first point is whether the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth) make other provision within the meaning of s 79. [27] Sections 247 and 136 are materially identical. It is sufficient to quote only the former: “247 Prosecutions in accordance with practice rules Every Customs prosecution in a court referred to in subsection 245(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge.” 16 See R v Dobie [2001] QCA 162. 17 [2005] QSC 049. 18 In the Supreme Court it was required to be prosecuted on indictment: Customs Act 1901 (Cth), s 235(4). -- 10 of 34 -- 11 [28] This section can be relevant only if, in making the application before me, the applicant can be regarded as “proceeding with” the Customs prosecution. I deal with that question below.19 For now let him be so regarded. [29] In Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd,20 the High Court held that s 247 operated to pick up s 92 of the Evidence Act 1977 (Qld), that being a provision applied in relation to the admissibility of documentary evidence in accordance with the usual practice and procedure of the Supreme Court of Queensland. It held that the topic of the admissibility of documentary evidence fell within the expression “the usual practice and procedure of the court in civil cases”. Consequently s 247 required the application of s 92 of the Evidence Act. In other words, a law of the Commonwealth “otherwise provided”, the exception in s 79 operated and s 93 of the Evidence Act could not be caught up. [30] The Court has a procedure for reopening an order (if one disregards the appeal process for present purposes). It is set out in r 668 of the Uniform Civil Procedure Rules 1999 (Qld). It is not frequently used, but nonetheless can in my judgment be described as the usual procedure of the Court.21 The rule provides: “668 Matters arising after order (1) This rule applies if— (a) facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or (b) facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order. (2) On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief. (3) Without limiting subrule (2), the court may do one or more of the following— (a) direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just; (b) set aside or vary the order; (c) make an order directing entry of satisfaction of the judgment to be made.” [31] In my judgment s 247 requires the application of that rule in cases where it is desired to reopen an order made in the exercise of jurisdiction under the Customs Act (and s 136 of the Excise Act requires the same in the case of an order under it). It follows that those sections “otherwise provide” within the meaning of s 79 the Judiciary Act. Consequently, that section cannot pick up s 188 of the Penalties and Sentences Act. The application under the latter section must be dismissed. [32] Unfortunately, neither party addressed the question whether those Commonwealth laws operated to exclude the operation of s 79. Ordinarily I would in these 19 Paragraph [42]. 20 (2003) 216 CLR 161; [2003] HCA 49. 21 It is unnecessary to consider the ambit of the Court’s inherent jurisdiction. -- 11 of 34 -- 12 circumstances seek further submissions. In the present case it is unnecessary to do so, as the result to which I come on the issues argued by the parties is the same. I shall therefore proceed to consider those issues on the assumption that I am wrong in the views which I have expressed in relation to ss 247 and 136, and that those laws have not “otherwise provided” (“the s 247 assumption”). [33] Despite the length of and range of topics dealt with by Part IB of the Crimes Act 1914, the respondent did not contend that this Part otherwise provided within the meaning of s 79 of the Judiciary Act; nor did he submit that s 188 of the Penalties and Sentences Act was inconsistent with any provision of Commonwealth law or the Constitution. I shall therefore pass over this aspect of the matter briefly. [34] In a number of sections contained in Part IB, and one earlier in the Act, the provisions of State and Territory laws are expressly called up when that result is desired.22 At first sight that would seem to support an argument that Part IB intends to exclude the call up of State or Territory laws when those laws are not expressly called up. If that were so it would presumably mean that, save where State or Territory laws are expressly called up by Part 1B, sentencing for Commonwealth offences is controlled only by Part IB and by the common law.23 It must now be taken as settled that Part IB does not cover the field of sentencing for Commonwealth offences. The High Court so held in Putland v The Queen.24 Although that case arose under s 68, extensive reference to s 79 was made in it. The exclusion argument just referred to does not appear to have been raised by counsel, and it is not expressly referred to in the judgment; but, sitting at first instance, I do not regard that as a sufficient ground for distinguishing the reasoning of the High Court. [35] Adopting the s 247 assumption, the result must be that neither the Constitution nor any law of the Commonwealth has “otherwise provided” within the meaning of s 79. “exercising federal jurisdiction” [36] The proceedings before me are, in form, fresh proceedings commenced by originating application. The submissions on behalf of the applicant made no attempt to demonstrate how this Court could be said to be exercising federal jurisdiction in hearing the application. Yet it is plain on the face of s 79 that the section cannot operate except in relation to a court which is already exercising federal jurisdiction. That is how the High Court approached the matter in Solomons v District Court of New South Wales: “[T]he section operates only where there is already a court ‘exercising federal jurisdiction’, ‘exercising’ being used in the present continuous tense.”25 It cannot be said that the Court is exercising federal jurisdiction by reason of s 79 when the question is whether s 79 applies in the proceeding. Some other basis for concluding that the Court is exercising federal jurisdiction in these proceedings must be found. 22 Crimes Act 1914, s 15A, s 16E(1)(2), s 18(2), s 19A, sub-ss 19AA(1), (2) and (4), s 19AZ, sub- ss 19AZD(1) – (3) and s 20AB. 23 Judiciary Act 1903, s 80. 24 (2004) 218 CLR 174; [2004] HCA 8. 25 Solomons v District Court of New South Wales (2002) 211 CLR 119 at p 134. -- 12 of 34 -- 13 [37] At the time I ordered the default imprisonment I was undoubtedly exercising federal jurisdiction. As already noted, that jurisdiction was conferred by s 245 of the Customs Act 1901 and s 134 of the Excise Act 1901.26 It might therefore be thought that the jurisdiction was spent at the latest when the last order made by the Court of Appeal (on 16 March 2007) was perfected. That is conventionally regarded as when a court exercising civil jurisdiction becomes functus officio. At that point it could be said that the “matter” the subject of federal jurisdiction ceased to exist. The applicant tacitly recognised this by commencing proceedings on the civil side by originating application on 14 July 2009, two years and four months later. [38] I would reject that view. In my judgment what was said by McHugh J in Solomons applies in the present case: “The third respondent also submitted that the acquittal of the appellant quelled the federal controversy between the Crown and the appellant, that thereafter the District Court no longer had a ‘matter’ before it, and that accordingly its federal jurisdiction was spent. However, to adopt that argument would give too restrictive a meaning to the constitutional term ‘matter’. A ‘matter’ is not at an end because the court has settled the controversy that is central to the matter. Inevitably, incidental matters and procedures may remain alive. In a civil action, for example, the parties may be given ‘liberty to apply’. If the jurisdiction and power conferred by s 2 of the Costs Act would otherwise apply to a court exercising federal jurisdiction, the acquittal of the applicant would not prevent s 2 from applying in federal jurisdiction. Indeed, an application under s 2 could be made long after the fact of acquittal and even to a different judge of the court where the applicant had been tried.”27 [39] Kirby J took a similar approach:http://www.austlii.edu.au/au/cases/cth/HCA/2002/47.html - fn41 “[T]he notion that federal jurisdiction in the District Court was lost in this case at the moment of acquittal of the appellant involves too narrow a view of the conferral of such jurisdiction. It is by no means uncommon for ancillary questions to arise in a criminal court following a judgment of acquittal and discharge of a prisoner who had been charged with, and tried for, an offence. Questions can arise as to the return or safekeeping of exhibits; the return of property; the lodgment of appeals, including appeals on issues of legal principle that cannot affect the acquittal; victim compensation and so forth. It would be seriously inconvenient for a court, such as the District Court in the proceedings involving the appellant, to lose jurisdiction in the matter at the instant an order of acquittal was pronounced. Nothing in the Judiciary Act obliges such an artificial construction.”28 26 It was not submitted that s 39(2) of the Judiciary Act 1903 conferred an alternative or wider jurisdiction. 27 (2002) 211 CLR 119 at p 142 (citation omitted). 28 Ibid at p 161(citation omitted). -- 13 of 34 -- 14 [40] It is true that the other five members of the court assumed that “an application under s 2 of the Costs Act, after verdict and before judgment, is made when the jurisdiction with respect to the prosecution is not exhausted”;29 and that assumption would not suffice in the present case. In addition the delay in commencing the present application is not indicative of the close relationship between it and the original proceedings.30 However there are two features which place the present applicant in a stronger position than the applicant in Solomons. First, an application for a certificate under the costs legislation was not as closely related to the original proceedings as an application to reopen a sentence said to be erroneous. Second, at the time of sentencing, I granted the applicant liberty to apply. Those features, plus the dicta quoted above, are in my judgment determinative. [41] On the s 247 assumption, I conclude that the Court is exercising federal jurisdiction within the meaning of s 79. [42] For the same reasons, I conclude that the Court is proceeding with the original prosecutions under s 247 of the Customs Act and s 136 of the Excise Act.31 3. Section 188: “a criminal proceeding” [43] On the s 247 assumption, s 188 applies if the court32 has done certain things “in or in connection with a criminal proceeding”. The meaning of those words does not change because the court is exercising federal jurisdiction: “It is a truism, as Kitto J pointed out in Pedersen v Young, that s 79 of the Judiciary Act ‘does not purport to do more than pick up State laws with their meaning unchanged’. Section 79, therefore, does not give to a State law a new or extended meaning when it is made applicable in federal jurisdiction.”33 [44] Were the proceedings in which the default imprisonment was ordered a “criminal proceeding” within the meaning of the section? “In 1775 Lord Mansfield said: ‘Now there is no distinction better known, than the distinction between civil and criminal law; or between criminal prosecutions and civil actions’: Atcheson v Everitt (1776) 1 Cowp 383, 391 [98 ER 1142, 1147]. The criminal law was concerned with acts which affected the public interest whereas civil liability was imposed in relation to conduct which caused actual damage to an individual interest. This distinction provided the basis for Blackstone’s classification of law. According to Blackstone ‘Wrongs are divisible into two sorts or species: private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as 29 Ibid at p 133. 30 In Solomons, the delay was two days. 31 See para [28]. 32 It was not suggested that this Court ceased to be a court within the meaning of s 188 because it was exercising federal jurisdiction, nor that it was beyond the power of the State Parliament to legislate for State courts exercising federal jurisdiction. 33 Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at p 611 per McHugh J (citation omitted). -- 14 of 34 -- 15 individuals; and are thereupon frequently termed civil injuries; the latter are a breach and violation of public rights and duties which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanours’: Commentaries, 1st ed. (1768), vol. III, at 2. Acts which were prosecuted by the criminal law were punished, while those who transgressed civil laws were made to pay compensation. The distinction is the root cause of the fundamental differences developed by the common law for criminal and civil proceedings, especially in the rules for discovery, the burden of proof and the admissibility of evidence. For some time, however, the reasonably clear line between the civil and criminal law has been collapsing. So great is the collapse that in 2003 Hayne J was able to say that the distinction between civil and criminal proceedings ‘is, at best, unstable’.”34 [45] The dictum of Hayne J there referred to is to be found in his majority judgment in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd. He wrote of the distinction, “It seeks to divide the litigious world into only two parts when, in truth, that world is more complex and varied than such a classification acknowledges.”35 Gummow J referred to the “dangers in enforcing a system of classification containing but two classes, civil and criminal.”36 The court rejected such a classification as a basis for determining the standard of proof. [46] Opinions may differ about whether this represents a collapse of the distinction between civil and criminal proceedings. Perhaps it might be regarded as a shifting of the boundary line. I would be inclined to regard the decision of the High Court simply as illuminating one characteristic of a proceeding which bears both civil and criminal characteristics. It was that duality which made the classification an unhelpful tool for determining the appropriate standard of proof. The existence of borderline cases exhibiting both criminal and civil characteristics does not in my opinion invalidate the distinction between civil and criminal proceedings. Indeed, in Labrador itself the High Court implicitly recognised the distinction when it held that the provisions of the Evidence Act which would be applied in civil cases were to be applied in the trial of the proceedings. There is no distinction between “cases” and “proceedings” in this context. When “criminal proceeding” is used as a determinative criterion in a statute, it may be necessary to determine whether the statutory criterion is satisfied. That can be done only by determining whether the case at hand answers the statutory description. [47] On the s 247 assumption, the matter now under discussion cannot be resolved in the same way as the High Court resolved the question of the applicability of the Evidence Act. The assumption means that s 247 does not provide the answer. Nor can it be resolved in the same way as the High Court resolved the question of the standard of proof. That question was resolved by focusing on the type of order sought in the proceedings,37 not by attempting to classify the proceedings as civil or 34 Australian Securities and Investments Commission v Petsas [2005] FCA 88 per Finkelstein J. 35 (2003) 216 CLR 161 at p 198. 36 Ibid at p 172. 37 Ibid at p 206. -- 15 of 34 -- 16 criminal. In my judgment the proper approach is to have regard to the qualities of a customs prosecution, the provisions of the Penalties and Sentences Act and the purpose for which the classification is being made. [48] That does not mean that previous authority is irrelevant. A number of earlier cases in which it was held that proceedings for a penalty were civil proceedings were referred to in the judgment of the Full Court of the Federal Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission.38 I do not find them particularly helpful in resolving the problem now before the Court. None of them involved the reopening of a sentence and some were so old that one must be concerned at the possibility that they were affected by intuitive perceptions of the role of civil and criminal law in substantially different social conditions. [49] The default imprisonment was imposed in respect of offences created by s 234 of the Customs Act and s 120 of the Excise Act. Some characteristics of those provisions were described by Kirby P (as he then was) in Jack Brabham Holdings Pty Ltd v Button: “It will be observed that the provisions set out appear in Pt XIII of the Act titled ‘Penal Provisions’. The section heading is ‘Customs Offences’. The section is expressed in the language of criminal offences. The verbs are those familiar to penal provisions in criminal and quasi-criminal legislation. Thus the section talks of ‘contravenes’, of ‘guilty’, of ‘an offence’, of ‘punishable’ and ‘upon conviction’. These are all words apt for activities stigmatised as criminal. So is the reference to ‘a penalty’. The amount fixed appears akin to a fine, although it is not described as such. On the face of these provisions, therefore, the proceedings would appear to be criminal in nature. In addition to the linguistic matters referred to, there are the other features which are familiar in criminal and quasi-criminal prosecutions. The proceedings involve the invocation of the public law of the Commonwealth. The penalty is obviously the provision of a sanction for a breach of that law. It does not represent a claim in the nature of a private suit in which the Commonwealth is suing for a wrong, done to it by a conventional tort, just as a private citizen might otherwise do. It is, instead, a particular means of ensuring compliance with the Act. A ‘conviction’ of an ‘offence’ and the imposition of a ‘penalty’ in a public court necessarily involves the opprobrium which typically attaches to the imposition by a court of a sanction for breach of a statutory provision. Even the provision for a multiple recoupment to the revenue of the Customs duty evaded is an indication of the punitive rather than compensatory nature of the sanction imposed.”39 [50] The Penalties and Sentences Act 1992 does not define criminal proceedings, nor does it divide all proceedings into one or other of two classes. It does however 38 [2007] FCAFC 132. See also the cases cited by Kirby P in Jack Brabham Holdings Pty Ltd v Button (1988) 94 FLR 278 at pp 290-1. 39 Jack Brabham Holdings Pty Ltd v Button at p 285. -- 16 of 34 -- 17 recognise the existence of each class. ‘Civil proceedings’ is referred to in s 191. ‘Criminal proceedings’ is used not only in s 188, but also in ss 15A and 189. That usage throws no light on the meaning of the expression. However s 188 is concerned with sentences. Sentence is a defined term. Its meaning includes any penalty ordered to be paid and penalty is very widely defined. Default imprisonment may be ordered if a fine is not paid. [51] The purpose of s 188 is obvious. It is to permit the rectification of certain types of error in sentencing. The nature of proceedings under the Customs Act and the Excise Act meshes with that purpose. [52] In my judgment these factors indicate that for the purposes of s 188, the proceeding is to be regarded as a criminal proceeding. 4. The statutory preconditions [53] It was not clear, at least at first, how the matters relied upon by the applicant fitted into s 188(1). The Court of Appeal has referred to the desirability of stating those matters with precision in relation to para (c), and its remarks are equally applicable to the other paragraphs: “Regrettably his Honour did not on 11 April 2001 precisely specify the ‘clear factual error of substance’ upon which he relied as sufficient to impugn the sentences imposed in 1991. Yielding to the discipline of doing so may rationally have uncovered the patent inapplicability of s 188.”40 That applies as much to the submissions of counsel as it does to reasons for judgment. Unfortunately, it is necessary now to set out at length the applicant’s submissions on what the relevant matters were. [54] In his initial outline the applicant submitted (citation omitted): “5.3 Your Honour was not informed at the sentencing process that s. 182A of the Penalties and Sentences Act is unique to Queensland. Comparison of s. 82A with its closest equivalents in other States and territories indicates the following differences in relation to the fixing of the term of imprisonment where the court is imposing sentence in relation to an offence where the legislation providing for the offence refers to monetary penalties only. (a) Outside Queensland, the legislation relates to the recovery of fines, usually previously-imposed fines. Speaking generally, such legislation makes provision of various kinds relating to the recovery of fines, including (in specified and often limited circumstances) imprisonment. Length of imprisonment is often capped. Such legislation is, of course, quite different in nature from s. 182A. To the extent to which Judges or Magistrates become involved in the process in those matters, the 40 R v Cassar; ex parte Attorney-General [2002] 1 Qd R 386 at p 387; [2001] QCA 300 at [8] (judgment of the Court). -- 17 of 34 -- 18 legalisation generally does not provide for any involvement on the part of the sentencing Judge; (b) It is only in Queensland that the sentencing judge has a discretion to impose an unconditional term of imprisonment by way of punishment as well as by way of imposition of imprisonment for non-payment of the fine (in the present case as stated above, the imprisonment was imposed for both of those purposes); (c) It is only in Queensland that an unconditional sentence of imprisonment can be imposed as part of the sentencing process.” [55] Asked to identify how that related to the terms of the section, counsel referred to para 1.8 of his submissions in reply. That was apt to confuse rather than clarify. Paragraph 1.8 read (with original emphasis): “1.8 In paragraph 23 of the respondent’s submissions, it is stated that ‘The applicant’s primary approach is that, as CEO Customs v. Nabhan demonstrates, default imprisonment cannot be directly imposed in a prosecution in the New South Wales Supreme Court and thus, in order to achieve consistency within the Federation, the applicant ought not be further detained in jail’. That paragraph understates the applicant’s primary approach in three ways. First, in this case the primary Judge was not compelled to order imprisonment. Exercise of the power under s. 182A was discretionary. The applicant submits that the primary judge was not properly informed when invited to exercise that discretion. He was not informed that, in circumstances in which the matter was a federal matter in which consistency of sentence between States for similar offences was therefore a matter for close consideration, an exercise of discretion in that form was available only in Queensland. Secondly, he was not informed that, if he exercised the discretion he would bring about a result which was probably unique in Australia in respect of evasion offences under the two relevant Acts – and, in this regard, it is relevant that the respondent has not, in its submissions, cited one case in which an offender has been sentenced to imprisonment for such offences. Thirdly, it is submitted that it was not only New South Wales that default imprisonment could not be directly imposed in this kind of matter. That was the case in all States.” [56] Further interrogation led to the following exchange: “MR GRIFFIN: All, (a), (b) and (c). HIS HONOUR: (a), (b) and (c)? MR GRIFFIN: Yes, possibly (a), (b) and (c). Bearing in mind the Dobie approach which is that it doesn’t have to be jurisdictional. HIS HONOUR: Yeah, what is the error of law I made that you say? -- 18 of 34 -- 19 MR GRIFFIN: The error of law was in exercising your discretion incorrectly in imposing the sentence by reason of the fact that your Honour was not properly informed that the exercise of that discretion would result in a disparity between the sentence given to Mr Bryce and the sentence given to people in identical circumstances in other states. HIS HONOUR: That is an error of law, is it? MR GRIFFIN: That’s an error of law, yes. HIS HONOUR: Interstate sentencing disparity is an error of law. MR GRIFFIN: In the Commonwealth sphere it is, because----- HIS HONOUR: Under Commonwealth. MR GRIFFIN: Yes, and I will take your Honour to the case of Tran that supports that. In fact, if your Honour would go to Tran. HIS HONOUR: Yeah, can I get the list of them first though, before we do? Is that the only error of law? MR GRIFFIN: The error of law is, as I indicated, the - in circumstances in which your Honour was not required to apply section 182A, in which it was discretionary, your Honour was not properly - was not properly informed of the facts relevant to the exercise of that discretion. HIS HONOUR: Being not properly informed is not an error of law by me. MR GRIFFIN: It is not. That led your Honour then to impose a sentence which was not consistent with the sentence imposed on similar offenders in other states. HIS HONOUR: Yes, all right. I made a note of that. I said is that the only one? MR GRIFFIN: Well, together with the other ways of putting it, that we put there in 1.8. That is to say, that you weren’t informed that---- - HIS HONOUR: Look, Mr Griffin, my being not informed of something cannot amount to an error of law by me. MR GRIFFIN: No, true, your Honour. HIS HONOUR: I want you to identify what is the error of law I made? MR GRIFFIN: The error of law was in exercising the discretion in favour of imposing a five year term of imprisonment when that discretion should not have been exercised in the circumstances. HIS HONOUR: Yeah but that’s - what circumstances? MR GRIFFIN: In the circumstances in which it being a Commonwealth - a federal offence, the exercise of discretion did not tend to the - to consistency of sentencing, it tended the other way. HIS HONOUR: All right. MR GRIFFIN: i.e. it led to an inconsistency in sentencing. HIS HONOUR: Okay, well, I can follow that. Now, you say it falls under B. Is that anything other than the obverse of A? -- 19 of 34 -- 20 MR GRIFFIN: It is the obverse of A, yes. HIS HONOUR: C. MR GRIFFIN: To the extent to which the matters I adverted to are factual matters, the - your Honour proceeded on the basis of a factual error of substance. HIS HONOUR: What’s the actual----- MR GRIFFIN: The factual error of substance was that, in fact, people charged with those offences in other states were being dealt with consistently with what your Honour imposed. HIS HONOUR: So, what you are saying is that it’s an error of fact if in a Commonwealth sentencing matter a Judge is not referred to comparable sentences in other states and doesn’t take them into account. MR GRIFFIN: No, but if the result is going to be such an awesome discrepancy as occurred in the present case, it’s an error of law if those facts are not brought to the Judge’s attention. HIS HONOUR: I got the error of law bit. We are down to C now. MR GRIFFIN: Yes. HIS HONOUR: What is the error of fact you say I made? MR GRIFFIN: The error of fact is that your Honour proceeded on the assumption that as a matter of fact offenders were dealt with similarly in other states. HIS HONOUR: I don’t know I did. I don’t know that - you would have to get the transcript. MR GRIFFIN: Well, your Honour, there is nothing in the transcript. That is the whole point. Your Honour wasn’t advised about any of these matters. HIS HONOUR: But I don’t think I made any assumption. I don’t think I paid any attention to what was happening in other states. I am trying to remember but I don’t really remember.”41 [57] The correct approach to the application of s 188 has been authoritatively stated: “The jurisdiction to reopen sentencing proceedings under s 188 depends on clear statutorily expressed criteria. There is no occasion to adopt anything but a strict approach to their applicability. Otherwise, the integrity of the sentencing process will be imperilled.”42 (a) sentence not in accordance with the law [58] As best I can understand that rather confused exchange, the first submission was that to impose a sentence not consistent with sentences imposed in other States was to impose a sentence not in accordance with the law. An alternative way of expressing it may be that, during the sentencing process, failing to take a relevant fact (namely that default imprisonment cannot be and/or is not imposed by a 41 Emphasis added. 42 R v Cassar at p 389. -- 20 of 34 -- 21 sentencing judge in other States) into account was to impose a sentence not in accordance with the law. [59] There is little authority on the proper construction of s 188(1)(a). In R v Dobie43 it was held that the paragraph was not limited to jurisdictional error. That accords with the language of the paragraph. Plainly, for example, it would cover a case where the sentence imposed exceeded the statutory maximum for the offence. It also covers a case where a judge makes an order which the court is not empowered to make, for example imprisonment with hard labour. However it does not in my judgment cover a case where the sentence was manifestly excessive, notwithstanding that in one sense it may be said that it is not in accordance with the law for a judge to impose a manifestly excessive sentence. Similarly, an error of process during the sentence hearing is not (or at least is not normally) covered. The paragraph focuses on the sentence imposed and its congruity with the law. [60] In sentencing offenders against Commonwealth laws it is proper for a court to take comparable sentences from other jurisdictions into account. In R v Chandler, Keane JA wrote (citing Wong v The Queen44): “The underlying value of equality under the law is best served by reference to the guidance afforded by authoritative sentences of this Court or of the Courts of other States and Territories which concern comparable cases. In this way a sentencing judge may seek to achieve reasonable consistency in the overall sentence.”45 It does not follow that a sentence which is not consistent with sentences imposed in other States is one which is not in accordance with the law within the meaning of s 188. If an offender believes that such a sentence is manifestly excessive, the remedy is to appeal. [61] By the same token, if the sentencing judge has failed during the sentencing process to take interstate decisions (or for that matter, local decisions) into account, the resulting sentence is not for that reason alone one which is not in accordance with the law. It is the responsibility of counsel to place comparable sentences before the sentencing judge; but comparable cases can sometimes be overlooked. If the judge sentences in ignorance of some such cases, that sentence is not thereby rendered unlawful. Indeed, unless it is manifestly excessive, it is not appellable. Even between co-offenders (where the parity principle applies), disparity in sentences is a ground of appeal only if the difference between sentences is manifestly excessive.46 [62] The applicant submitted that “it is only in Queensland that an unconditional sentence of imprisonment can be imposed as part of the sentencing process”. I examine below the correctness of that proposition, as well as the question whether it is a fair description of what occurred when the applicant was sentenced. Suppose the submission be correct. How can a sentence of default imprisonment which, ex hypothesi, can lawfully be imposed as part of the sentencing process be said to be one which is not in accordance with the law? 43 [2004] 2 Qd R 537; [2004] QCA 140. 44 (2001) 207 CLR 584 at p 591. 45 [2010] QCA 021 at [19]. 46 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46. -- 21 of 34 -- 22 [63] Similar reasoning applies in relation to the alleged failure to take legislation from other States and Territories into account. In my judgment s 188(1)(a) does not apply every time it can be demonstrated that an error has occurred during the sentencing process. The paragraph focuses on the resulting sentence, not on what has occurred during the hearing. It is not intended to operate by analogy with the Judicial Review Act. [64] I hold that the present case does not fall under s 188(1)(a). (b) sentence not one which legally should have been imposed [65] Counsel conceded that the submission under this paragraph was simply the obverse of that under para (a). It too must be rejected. (c) clear factual error of substance [66] The applicant’s submission under this paragraph must be rejected because it fails to demonstrate the existence of any clear factual error. I accept that for the purposes of this paragraph an incorrect assumption may amount to a factual error.47 Had I made an assumption that offenders were dealt with in other States by the imposition of periods of default imprisonment, I would have said so in my sentencing reasons. The same is true had I made an assumption that an unconditional sentence of imprisonment can be imposed as part of the sentencing process in other States.48 The reasons were given in writing after reservation of my decision. They dealt at some length with the question of default imprisonment, but contained no reference to the way offenders might be dealt with in other States. I accept counsel’s assurance that the transcript of the sentence hearing contains no such reference. I have no recollection of turning my mind to the question of default imprisonment for customs penalties in other States, and I think I would recall that had it occurred. [67] Finally, rereading my reasons now, I do not think that they were affected by any unconscious assumption of the sort relied upon by the applicant. I note that I did refer to decisions from other jurisdictions in relation to the question whether punishment was an available purpose of default imprisonment,49 but those were not decisions relating to the Customs Act or the Excise Act. I cannot believe that the exercise of my discretion was in any way affected by an unconscious assumption. [68] Even on the s 247 assumption, the applicant does not satisfy the preconditions set out in s 188(1). That is sufficient to require the application to be dismissed. 5. National consistency of sentencing of federal offenders [69] In the light of this conclusion it is strictly not necessary to deal with the fifth question. I do so for the sake of completeness and because of the work which the parties put into it. 47 R v MacKenzie [2002] 1 Qd R 410; [2000] QCA 324. 48 Assuming that an error as to the law in other States and Territories is to be regarded as a factual error within the meaning of the paragraph. I must take judicial notice of that law: Evidence Act 1995 (Cth), ss 5, 143. 49 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 040 at paras [49] - [52]. -- 22 of 34 -- 23 Comparison of Queensland law with that of other States and Territories [70] The applicant submitted that only in Queensland can an unconditional sentence of imprisonment be imposed as part of the sentencing process and only in Queensland does a sentencing judge have a discretion to impose an unconditional term of imprisonment by way of punishment as well as by way of imposition of imprisonment for non-payment of a fine. He submitted that outside Queensland the sentencing judge was usually not involved in the recovery of fines. [71] The applicant also relied upon the decision of Fullerton J in Australian Customs Service v Nabhan.50 In that case, in the course of expressing her reasons for imposing penalties in excess of $8 million for four offences of smuggling and four of evasion, her Honour said, “I have no confidence at all that the penalties I will impose will have any deterrent effect on the defendant at all. That said, the enforcement of the penalties will be an avid waste of time.”51 [72] The respondent submitted that power to imprison in default of payment of the pecuniary penalty exists in a majority of States and Territories, either directly or on a secondary basis. In particular he submitted that default imprisonment as a primary sentence was available under the Sentencing Act 1995 (WA) and under the Sentencing Act (NT).52 Those Acts empower at least the Supreme Court to order imprisonment in default of payment. Like s 182A of the Queensland Act, they operate as surrogate Commonwealth laws under s 15A(1) of the Crimes Act (Cth). In all other States and Territories except South Australia, it was submitted, mechanisms exist for the imposition of imprisonment in default of payment by enforcement action on the part of an authority other than the sentencing judge. These mechanisms operate under s 15A(1AA) to 15A(1ACA) of the Crimes Act. [73] In reply, the applicant accepted that he might ultimately have been imprisoned for failure to pay the fine in practically all jurisdictions, including Queensland.53 He submitted that this furnished no answer to his primary proposition, because imprisonment was not resorted to by way of secondary enforcement. To demonstrate the latter proposition that he submitted that the respondent had not cited any case where such enforcement action had ever been taken. Moreover, he submitted, in New South Wales it was the policy of the respondent’s officers that fine defaulters not be imprisoned. [74] The applicant also submitted in reply that default imprisonment was not available as a primary sentence in penalty proceedings under the Customs Act or Excise Act in Western Australia because the relevant State provision required the period of imprisonment to be the shorter of a period determined by a statutory formula and the period for which the person could have been imprisoned by way of statutory penalty. Since no statutory penalty of imprisonment was provided under the Customs Act or Excise Act, the applicant could not have been imprisoned at all in that State. He sought to distinguish the Northern Territory legislation on the 50 [2009] NSWSC 199. 51 Ibid at [62]. 52 Subject to the Fines and Penalties (Recovery) Act (NT). 53 I have therefore not attempted to analyse the legislation of the States in detail. -- 23 of 34 -- 24 grounds that the maximum period of imprisonment cannot exceed three months and that there was provision for fines to be changed to community work orders. [75] The submissions in the preceding paragraph may be dealt with summarily. The applicant’s submission misstated the effect of the Western Australian legislation. Section 59(3) of the Sentencing Act 1995 provided for the period of imprisonment to be the shorter of the formula amount and “the term of imprisonment (if any) provided by the statutory penalty for the offence concerned”. The words in parenthesis demonstrate quite clearly that the statute envisages a situation where no statutory penalty is provided, and operates in that situation. As to the Northern Territory, the fact that there is provision for fines to be changed to community work orders is irrelevant. Most if not all jurisdictions have similar provisions. The applicant has made no application under the Queensland provision, s 55 of the Penalties and Sentences Act, nor has he submitted that the section does not apply to his case. [76] In my judgment the respondent’s submissions are to be preferred to those originally advanced by the applicant. I do not think it matters that there are differences among the various jurisdictions in the identity of the enforcement authority and the mechanism by which the enforcement is effected. Once it is accepted that the applicant could ultimately have been imprisoned in default of payment in practically all Australian jurisdictions, the applicant’s principal submission fails. There is no inconsistency of punishment. In particular, no inconsistency results from the fact that in Queensland that imprisonment may be ordered by the sentencing judge and in other jurisdictions by another judge or court or by an administrative authority. I do not understand Fullerton J to have been saying in Nabhan that fines could not be enforced by imprisonment in New South Wales in customs or excise cases. [77] In short, while there is some variety among the States and Territories in relation to the enforcement mechanisms, there is nothing relevantly unique about the Queensland position. [78] As to the applicant’s alternative position in its submission in reply, the respondent conceded the existence in New South Wales (but only in New South Wales) of the policy relied on by the applicant. There is no evidence of the position in other jurisdictions. The proposition that imprisonment is not resorted to by way of secondary enforcement in other jurisdictions is, therefore, not made out. The failure of the respondent to cite any case of secondary enforcement from another jurisdiction does not prove that it does not happen. Principles of consistency [79] In case that conclusion is wrong, I shall deal with the balance of the applicant’s submissions on the question of consistency. Let it be assumed, as the applicant submits, that what is desirable is consistency in sentencing, not consistency in overall result; in other words, consistency in the primary sentence without regard to secondary enforcement. [80] There is no doubt that one of the fundamental principles of our system of sentencing is that offenders in like cases should receive like punishment. The applicant cited a dictum of Mason J: -- 24 of 34 -- 25 “Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”54 And another of Gleeson CJ: “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.”55 [81] Those passages demonstrate that what gives rise to a sense of injustice is unjustifiable discrepancy, and what is required for justice is reasonable consistency. Consistency for its own sake or to satisfy a bureaucratic desire for national neatness is not a proper objective of sentencing. Ralph Waldo Emerson wrote: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do.”56 [82] It has long been recognised that in the Australian federal system there are significant difficulties in achieving equality of treatment of federal offenders. Where State laws and sentencing practices differ, inequalities may arise in respect of federal offenders sentenced in different States. The inequalities are the result of the policy inherent in the Judiciary Act 1903 and the Crimes Act 1914. In 1934, Dixon J wrote (referring to appeals): “[W]hen this construction is given to the words of the provision, they necessarily extend to all remedies given by State law which fall within the description ‘appeals arising out of the trial or conviction on indictment or out of any proceedings connected therewith.’ This accords with the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice. It is, in my opinion, no objection to the validity of such a provision that the State law adopted varies in the different States.”57 [83] In R v Gee, Gleeson CJ wrote, after referring to that passage: “That general policy reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal 54 Lowe v The Queen (1984) 154 CLR 606 at pp 610-1. 55 Wong v The Queen (2001) 207 CLR 584 at p 591. 56 Emerson R, “Self-reliance” in Essays: First Series, Fraser, London, 1841, cited in Spigelman, J J “Consistency and Sentencing” (2008) 82 ALJ 450. 57 Williams v The King [No 2] (1934) 50 CLR 551 at p 560. -- 25 of 34 -- 26 justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter.”58 [84] The consequence is that some variation in sentencing between different jurisdictions is inevitable. The existence of variation is widely accepted.59 It is the result of a deliberate legislative choice by the Commonwealth. The courts must apply that choice, even if the result is a degree of inconsistency in sentencing in different jurisdictions. [85] The applicant relied principally upon the decision of the Court of Appeal in R v Tran. In that case, after citing Wong v The Queen, Keane JA said: “Where the system of criminal justice is enforced by the judicial power of the Commonwealth, State courts exercising that power should strive for reasonable consistency in the sentences imposed throughout the Commonwealth. That objective will usually require recognition of decisions of the States where those decisions concern like cases. That objective was made more difficult to achieve by the differences in the corrective services regimes which have, from time to time, applied in the States and Territories .”60 Atkinson J wrote that State courts should take into account sentences imposed by other courts within the Commonwealth with regard to offences against Commonwealth legislation. [86] The applicant submitted that courts should compensate for differences in State legislation in order to achieve uniformity (of sentencing of federal offenders) as far as possible. It may be accepted that such differences should often be taken into account by sentencing judges, but this must be subject to any express provision found in Commonwealth legislation. Section 15A(1) of the Crimes Act, which picks up s 182A of the Penalties and Sentences Act, implicitly recognises the likelihood of differences among the various jurisdictions and makes provision for the modification or exclusion of State laws where that is desired by the Commonwealth. Subject to any laws made pursuant to that provision, the section provides an example of the adoption or acceptance of jurisdictional differences as a matter of federal legislative policy. As the respondent submitted, federal laws are not required to operate uniformly throughout the Commonwealth and sentencing outcomes may differ according to the laws of the State or Territory of conviction.61 [87] Effect must be given to this legislative intent. That is not to say that default imprisonment must be imposed in every case where sentencing occurs in 58 R v Gee (2003) 212 CLR 230 at p 241. 59 See for example Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, 2006, para 3.25; Adsett D and Pedley M, Variations in Federal Sentencing, paper delivered to the National Judicial College of Australia Sentencing Conference, 6 & 7 February 2010 at p 7. 60 [2007] QCA 221 at [8] (citations omitted). 61 Citing Leeth v The Commonwealth (1992) 174 CLR 455 and Putland v The Queen (2004) 218 CLR 174. This explains why neither of these cases was cited in R v Tran. -- 26 of 34 -- 27 Queensland. Whether it should be imposed is a matter for the exercise of judicial discretion. It was so treated at the time of sentencing in the present case. A blanket rule that the discretion must never be exercised to impose default imprisonment in Queensland because there is no provision for such imprisonment in South Australia, or because the respondent’s officers in New South Wales have a policy not to enforce penalties in this way, would defeat the legislative intent. So would a rule that a sentence must be imposed in all pecuniary penalty cases in Queensland without regard to mechanisms for secondary enforcement of pecuniary penalties by default imprisonment in other jurisdictions. [88] Nothing in R v Tran suggests otherwise. That case dealt with the situation where the relevant statutory regime in the various jurisdictions was identical. It is not so in the present case. [89] It follows that the applicant has not made out the grounds relied upon for invoking s 188 of the Penalties and Sentences Act. Conclusion on para 1A of the application [90] The application must be dismissed. It is therefore unnecessary to consider whether it would be appropriate to allow an extension of time for making it. For the record I note that the respondent opposed an extension on the ground that there was no adequate explanation for the delay of well over two years. NON-PAROLE PERIOD [91] The application to fix a non-parole period is brought under s 19AH(1)(b) of the Crimes Act (Cth). The applicant submitted that on such an application evidence of events which have occurred since the original date of sentencing was admissible. The respondent did not challenge that submission and such evidence was admitted. I shall take it into account. [92] The submissions of the parties focused largely on the proportion which the non- parole period should bear to the total period of imprisonment. The applicant also relied on the judgment of Jerrard JA when the case was before the Court of Appeal. He submitted that apart from the implications of Nabhan, a ruling in accordance with his Honour’s remarks would be in accordance with judicial comity. His Honour was the only judge who dealt with the question in the appeal. He wrote, “I would fix a single non-parole period of two and a half years in respect of each of those sentences, in accordance with the standard sentencing regime for offenders who contravene State laws.”62 The applicant also relied on R v Mokoena63 where it was said, citing R v Robertson,64 that no uniformity (of proportion) seemed to have developed in respect of Commonwealth offences not involving drugs. [93] The respondent relied on the decision in R v CAK and CAL; ex parte Cth DPP65 as a later authority which must be taken to have required Robertson to be read down. There it was said (citation omitted): 62 [2006] QCA 558 at [107]. 63 [2009] QCA 036. 64 [2008] QCA 164 at [18]. 65 [2009] QCA 023. -- 27 of 34 -- 28 “The norm for non-parole periods and periods required to be served before a recognizance 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.” 66 He submitted that although that decision was delivered one week before Mokoena, it must be taken to have been upheld in the later decision of R v Mara.67 [94] The Court of Appeal has attempted to address the apparent conflict between the authorities since the hearing of the present matter. In a single judgment, the court wrote, after a review of all of the authorities: “ ... Sentencing judges should take into account decisions which are sufficiently like the subject case to shed light on the proper sentence. That includes comparable decisions both in Queensland and in the other States and the Territories which shed light upon the proper orders, although sentencing judges should also take into account that both the head sentence and order for early release in such cases might have been influenced by inconsistent local sentencing practices which must be put to one side in sentencing for Commonwealth offences. In the end, the proportion which the period to be served in prison bears to the whole term is not itself a separate and distinct object of any part of the sentencing exercise. Rather, it is the result of the sentencing judge’s discretionary determination of both the appropriate sentence of imprisonment and the appropriate terms of the recognizance release order after taking into account all of the circumstances of the offence, rather than by applying or making adjustments to any rule of thumb.”68 That passage was subsequently applied in R v Chandler.69 To the extent possible I shall apply it here.70 [95] Neither side cited any directly comparable case. The applicant relied on the decision in Nabhan, particularly the passage cited above,71 in support of a submission that if the default imprisonment were not set aside, he should be released on parole forthwith. I reject that submission. I see nothing in that decision which supports it. 66 Ibid at [18]. 67 [2009] QCA 208. 68 R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 010 at [56] - [57] (citations omitted). 69 [2010] QCA 021 at [18]. 70 Although I note that the issue may not be resolved: R v Fidler [2010] QCA 025; R v Marshall [2010] QCA 029. 71 Paragraph [71]. -- 28 of 34 -- 29 [96] I also reject the submission that for reasons of judicial comity I should make the order which Jerrard JA would have made.72 I do so for several reasons. First, it is wrong to fix the period in respect of each of the sentences of default imprisonment where those sentences are to be served cumulatively. It would be impossible to give effect to such an order. Moreover in the present case the period of 2½ years proposed by his Honour is longer than any one of the sentences. “Sentences” in s 19AB and in the definition of non-parole period in s 16 of the Crimes Act must refer to the sentences considered as one group and the period must be fixed in relation to the group as a single whole. Second, I do not understand what his Honour meant by “the standard sentencing regime for offenders who contravene State laws”. At the time his Honour was writing, and when the judgment was handed down, the sentencing regime prescribed for parole for offenders who contravene State laws was that set out in Div 3 of Pt 9 of the Penalties and Sentences Act. That regime remains in force. In cases where the head sentence exceeds three years it confers a discretion on, and in some cases obliges, the sentencing judge to fix a parole eligibility date as part of the sentencing process; but it makes no provision for the duration of the period prior to the offender’s eligibility for or release on parole.73 Third, and most importantly, s 19AH of the Crimes Act obliges me to exercise a discretion for myself, not simply to follow someone else’s view. [97] I have been unable to extract any statistics in a useful form from the Queensland Sentencing Information Service database.74 Some statistics on the sentencing of federal offenders appear in appendix 1 to the report of the Australian Law Reform Commission on that topic.75 However as the report makes clear, the use which can be made of those statistics is limited for a number of reasons. Moreover they are now more than five years out of date. Adsett and Pedley have provided more helpful statistics in their 2010 paper.76 They analysed head sentences and non- parole periods imposed on federal offenders whose head sentences were in the 3-10 year bracket in the three years between 2006/7 and 2008/9, a total of 439 sentences. Their work shows that the relationship between non-parole periods and head sentences varies, depending upon the type of offence. In the category most relevant in the present case, fraud and corporations law offences, there was a much greater spread in the relationship than there was when all offences were considered together. In 36% of the 52 offences of this type, the proportion was less than 50%; and 40% of those offences the proportion was in the 50%-69% bracket; and in 13% of them the proportion was in the 70-79% bracket. The authors suggested that the wider spread might reflect the wide range of offences within the fraud/corporate offending group of offences and a wider variety of circumstances of offending. [98] The nature of parole has recently been described in these terms: 72 See para [92]. 73 It is unlikely that his Honour was referring to s 184 of the Corrective Services Act 2006, as 2½ years or about 916 days is equivalent to more than 55% of the applicant’s period of imprisonment. Moreover some might question whether that section is aptly described as part of the standard sentencing regime for State offenders. 74 http://www.sentencing.justice.qld.gov.au. 75 Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders. 76 Adsett D and Pedley M, Variations in Federal Sentencing at p 28. -- 29 of 34 -- 30 “Parole generally refers to a period during which the offender is released from prison, subject to varying levels of supervision, to facilitate their reintegration back into the community. It is in the interests of both the offender and the community that this process is supervised – given both the difficulties and stress which this process poses for the offender … and the concerns which the community may have that the offender could resume criminal activity when released. The concept and availability of parole implies that the sentencing court does not always consider that the purposes for which the particular sentence was imposed require that the full tariff be served, but the setting of a non-parole period indicates that the court may consider this is the minimum time that will be required to achieve these purposes.”77 [99] In R v Suarez-Mejia, the Western Australian Court of Appeal wrote: “The nature of a non-parole period was described by Barwick CJ, Menzies, Stephen and Mason JJ in Power v The Queen (1974) 131 CLR 623 at 629 as being: ‘ ... to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.’ As was further observed by Brennan and McHugh JJ in R v Shrestha (1991) 173 CLR 48 at 63, after canvassing a number of authorities: ‘It is clear that, although a minimum term is a benefit for the offender, it is a benefit which the offender may be allowed only for the purpose of his rehabilitation and it must not be shortened beyond the lower limit of what might be reasonably regarded as a condign punishment. Moreover, the release of an offender for the purposes of rehabilitation through conditional freedom is not to be seen solely as a mercy to the offender but also, and essentially, as a benefit to the public.’ While the question of a non-parole period has come to be considered in the leading authorities in the contexts of different parole legislation, the underlying principles appear to remain uniform. It follows from the nature of a non-parole period and its objectives that all matters relevant to the exercise of the sentencing discretion are again to be taken into account, although they may carry a different weight because of the different question being considered at the stage of fixing the non-parole period. For the purposes of sentence in this case regard is required to be had to such of the matters listed in s 16A of the Crimes Act 1914 (Cth) as are relevant and known to the Court.”78 77 Mackenzie G and Stobbs N, Principles of Sentencing, Federation Press, Sydney, 2010 at p 198. 78 [2002] WASCA 187 at [48]. Although Brennan and McHugh JJ were dissenting in R v Shrestha, there seems to have been no disagreement about the passage quoted. -- 30 of 34 -- 31 [100] It is unnecessary to repeat the factual background and conclusions recorded at some length at the time of sentencing.79 It is however necessary to refer to the further evidence tendered on the hearing of the application. [101] Much of the applicant’s affidavit was historical or argumentative. Nonetheless it disclosed some new material and provided detail of other matters already before the Court. It showed that the applicant was educated to Grade 10 standard and he then did an accounting course lasting three years, apparently at a Technical College. He subsequently undertook a course in real estate at a TAFE college. He has never been unemployed. For the past 25 years he has conducted his own business in the alcohol trade. He has a close-knit family which he has always supported; his three children are now adults. As a result of his imprisonment his wife has returned to the workforce after 30 years absence. [102] I found previously that the applicant had shown little willingness to co-operate in the administration of justice. There is little reason to change that conclusion. He claims that he co-operated with law enforcement agencies throughout the course of the trial, but no detail is given. Perhaps he is referring to the statement of agreed facts used during the trial. After the warrant of arrest was served he continued to co-operate fully with the police in regard to his whereabouts. His expression of contrition is carefully crafted and less than overwhelming: “I very much regret the circumstances which led to my convictions, and can assure the Court that there is no prospect of me reoffending.”80 [103] The affidavit provides some detail regarding the applicant’s health, but the substance of the previous findings remains. Since his incarceration a heart operation has been delayed and he claims that his memory has deteriorated. For a relatively short period after his incarceration he was, he claims, repeatedly given incorrect medication. His family have been obliged to sell property to pay legal bills and have attended counselling and taken antidepressants. He has missed attending a number of important family occasions. His wife and daughter travel for a total of six hours a day between the Sunshine Coast and Numinbah to visit him each weekend. He has been of good behaviour in prison. [104] A number of references were tendered in support of the application. To the extent that they are argumentative, I have given them little or no weight. None of the references demonstrates any sign that the writer had read the reasons for the making of the order. That said, they do add a little to the evidence. Those from members of his family support the evidence which he has given and demonstrate the hardship and distress which imprisonment causes to the family of an offender. One cannot but feel sympathy for them. Friends have written of his honesty and easy, caring personality. They reinforce the evidence of the distress which his imprisonment has caused his family. However references to his honesty are belied by the circumstances of his offending. [105] As noted above,81 the matters relevant to the exercise of the sentencing discretion may carry a different weight when the court is considering the imposition of a non- parole period from that which they carry when fixing a head sentence. In the 79 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 040. 80 Paragraph 24 of his affidavit. 81 Paragraph [99]; see also R v Ruha at [46]. -- 31 of 34 -- 32 present case, the most important factors are the circumstances of the offence, the applicant’s age and health, the effect of his imprisonment on his family, the degree to which he has shown contrition for the offence, the degree to which he has co- operated with law enforcement agencies in the investigation of the offence, the deterrent effect of the sentence, both generally and on him, the need to ensure that he is adequately punished for the offence and his prospect of rehabilitation.82 It is also relevant to take into account that the imprisonment is being served in Queensland. [106] I bear in mind that the non-parole period must not be less than the lower limit of what might reasonably be required for condign punishment.83 At the same time, the focus must be on the applicant’s rehabilitation. [107] His contrition is limited and ambiguous: he “regrets the circumstances that led to his conviction”. He has not addressed his offending conduct: he has given no explanation of his motives; he has displayed no realisation of the wrongness of his actions; he has given no account of what happened to his share of the proceeds of sale of the dutiable goods; and he has expressed no remorse for blackening the characters of officers of Fiji customs, Solomon Islands customs and the late Mr Michael Quan.84 Unless he addresses these matters it is difficult to see how he can achieve full rehabilitation. [108] Nothing has changed in relation to his willingness to co-operate in the administration of justice save that he did not resort to flight in the period before his arrest. He has offered no assistance in identifying others who must have been involved in disposing of the un-exported goods. [109] It is difficult to accept his assurance that there is no prospect that he will reoffend. His age and the absence of any criminal history certainly make it less likely that he will reoffend than someone younger or with a substantial criminal history; but these factors carry less weight in cases of “white collar” crime. I accept that the business of Labrador Liquor Wholesale Pty Ltd will not be resumed on his release, but in the absence of any evidence of his intentions, I see no reason to suppose that he will seek work in any field other than that in which he has worked for 25 years. That would provide both temptation and opportunity. The deterrent effect of the sentence imposed on him would, I assume, be considerable; but illicit dealings in alcohol are difficult to detect and deterrence depends at least as much on the risk of detection as it does on the nature and extent of punishment. His good behaviour in prison is neutral in this respect. [110] The importance of general deterrence in cases such as the present has been emphasised at least since the decision of the High Court in L Vogel and Son Pty Ltd v Anderson.85 Self-evidently the non-parole period must reflect that importance. 82 See Crimes Act, s 16A. 83 Paragraph [99]. 84 See Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 040 at [15]. 85 (1968) 120 CLR 157; [1968] HCA 90. -- 32 of 34 -- 33 [111] The applicant’s family has undergone hardship and distress as a result of his imprisonment, but it is of the same order as usually attends such an event. Notwithstanding the existence of s 16A(2)(p) of the Crimes Act, it carries little weight in circumstances such as the present.86 [112] The fact that the applicant is serving his time in Queensland means that his fellow inmates will mostly comprise offenders sentenced for Queensland offences. That means that in accordance with Queensland sentencing practice, and with certain exceptions, those serving a head sentence of more than three years will mainly comprise people who will become eligible for parole at about the halfway point of their sentences or earlier. That suggests the desirability of imposing a similar regime on the applicant: “It is notorious that the application of different regimes to prisoners serving their sentences in the same prison, particularly in relation to the date of release, is productive of conflict and unrest and is inimical to good prison administration.”87 It is also productive of a sense of unfairness, which may or may not be justified. [113] Balancing all of these factors I fix a non-parole period of two years and nine months. OTHER MATTERS [114] Three peripheral matters should be mentioned in conclusion. First, the applicant deposed that the present application has cost in excess of $115,000,88 which seems to be substantially confirmed by the statements of his wife and daughter. I cannot understand how a simple application could have cost so much. After these reasons are published, I shall refer the file to the Legal Services Commissioner for investigation. [115] Second, the source of a good deal of indignation on the part of the applicant and some of those who wrote references seems to be the fact that they believe he would not have been imprisoned had he committed the offences in New South Wales. The existence of the policy referred to above gives some ground for that belief. The indignation is understandable, for the policy gives rise to a perception of unequal treatment of like offenders. The objective of maximum possible consistency in sentencing referred to above is defeated by such policies. The law is brought into disrepute. There is also a practical objection: the policy may cause those who wish to evade customs and excise duties to congregate in New South Wales. If that should happen, the shades of the Rum Corps might be stirred from their graves. [116] Third, some of the applicant’s family and friends, and perhaps the applicant himself, seem to believe that the sole purpose of the default imprisonment was enforcement of the pecuniary penalties. That belief is false; if they have been told that by anyone, they have been misinformed. Another, and important, purpose was to ensure that the applicant’s conduct did not go unpunished. As I said at the time the 86 R v Sinclair (1990) 51 A Crim R 418; R v Le [1996] 2 Qd R 516 at p 522; R v Peters [1997] 1 VR 489. 87 Leeth v The Commonwealth (1992) 174 CLR 455 at p 466. 88 Paragraph 20 of his affidavit. -- 33 of 34 -- 34 order was made, “Not to impose imprisonment in default … would be to grant immunity for impecuniosity.”89 The applicant is not in jail simply because he did not pay the penalty; he is there because he committed serious offences against the law. ORDERS [117] The orders of the Court are: 1. Fix two years and nine months as the non-parole period in respect of the sentences imposed on the applicant in this Court on 15 March 2006; 2. Otherwise, application dismissed. 3. Direct that the Registrar forward copies of the file and these reasons for judgment to the Legal Services Commissioner. 89 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (No 2) [2006] QSC 040 at [52]. -- 34 of 34 --