Acciarito v The Queen
[2019] VSCA 264
•19 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0235
| MARIO ACCIARITO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NIALL and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 October 2019 |
| DATE OF JUDGMENT: | 19 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 264 |
| JUDGMENT APPEALED FROM: | DPP v Acciarito [2018] VCC 1603 (Judge Murphy) |
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CRIMINAL LAW — Sentence — Leave to appeal — Appeal — Whether double punishment — Offender charged with being prohibited person in possession of firearm and trafficking drug of dependence — Whether fact applicant involved in drug offending aggravated offence of possession of the firearm — Whether having taken into account drug offending in sentencing on firearm offence it was permissible to take into account possession of firearm as an aggravating feature of drug offence — Pearce v The Queen (1998) 194 CLR 610; Berichon v The Queen (2013) 40 VR 490 — Whether sentence on possession and trafficking charges and order for cumulation manifestly excessive — Leave to appeal granted — Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Dean Cole & Associates |
| For the Respondent | Mr J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
NIALL JA
ASHLEY JA:
Having pleaded guilty, Mario Acciarito (‘the applicant’) was sentenced by a County Court judge on 1 October 2018 as follows:
Charge Offence Maximum Penalty Sentence Cumulation Charges on Indictment No: G12204543.1 1 Resist emergency worker on duty 5 years 3 months 2 Prohibited person possess a firearm 10 years 4 years Base 3 Negligently deal with proceeds of crime 5 years 1 year 3 months 4 Traffick drug of dependence 15 years 3 years 1 year 6 months Related Summary Charges (County Court Case No: CR-18-00517) 7 Possess prohibited weapon without exemption or approval 2 years 6 months Total Effective Sentence 5 years 6 months Non-Parole Period Fixed 3 years 4 months Pre-Sentence Detention 65 days 6AAA statement 8 years, with a non-parole period of 6 years Other Orders Disposal order, forfeiture order and forensic sample order Application for leave to appeal against sentence
The applicant seeks leave to appeal against sentence on the following proposed grounds:[1]
[1]Hereafter, simply ‘grounds’.
Ground 1: The sentencing judge erred by doubly punishing the applicant.
Particulars:
a.The sentencing judge imposed a significantly higher sentence on charge 2 as a result of that offence having been committed in circumstances where the applicant had also trafficked drugs.
b.That the sentencing judge ordered that 18 months of the sentence imposed on charge 4 be served cumulatively to the sentence imposed on charge 2.
c.In order to ensure that the applicant was not punished twice for the same wrongdoing (that is, trafficking drugs), the sentencing judge ought to have modified the sentence imposed on charge 2 and the order for cumulation made on charge 4 in accordance with the precepts explained in Pearce v The Queen (1998) 194 CLR 610 at 623-624 ([40]-[49]).
d.The sentencing judge erred by failing to do so. That His Honour did not do so is revealed by the fact that double punishment was not referred to in His Honour’s sentencing remarks as well as the sentence imposed on charge 2 and the order for cumulation made on charge 4.
Ground 2: The total effective sentence (constituted by the sentence imposed on charge 2 and the order for cumulation made on charge 4) and the non-parole period fixed are manifestly excessive.
Particulars:
a.The sentences imposed are manifestly too long.
b.The sentencing judge gave manifestly insufficient weight to the applicant’s guilty pleas, the fact that those pleas were first indicated in December 2016, the delay in the determination of the proceedings and the steps that the applicant had taken towards rehabilitation during that period of delay.
Circumstances generally described
The applicant is a man now aged 48. On 11 August 2016, in circumstances which are of no present moment, a vehicle which he was driving was intercepted by two members of the police force. A search of his vehicle revealed a small ‘deal bag’ containing what proved to be methylamphetamine. A later search of his person at Richmond Police Station showed him to be carrying a large vacuum sealed bag containing ten small deal bags, each containing methylamphetamine. Subsequent analysis showed that the combined weight of the methylamphetamine from all the deal bags was 18.6 grams, and that its purity differed greatly from one bag to another. These were the circumstances which led to charge 4, that is, trafficking a drug of dependence.
Cash totalling $7,855 was found in the applicant’s jacket. This was the circumstance which led to charge 3, negligently dealing with proceeds of crime.
After the first deal bag was found, the applicant was told that he was under arrest. He then ran away. He tripped over, and was restrained by the police officers. He resisted attempts to handcuff him by tensing his body and attempting to keep his arms out of reach. It was this conduct which led to charge 1, resisting an emergency worker on duty.
Whilst the applicant was being restrained, he was found to have a .32 calibre handgun tucked into the waistband of his pants. The handgun was loaded with seven bullets. Because of his criminal history, the applicant was a prohibited person. It was these circumstances which led to charge 2, possessing a firearm as a prohibited person.
Later on, there was a search of the applicant’s home, and a laser was found. This led to the summary charge of possessing a prohibited weapon without exemption or approval.
The course of the matter
There was a committal mention on 20 June 2017. An agreement was reached between the prosecution and the applicant resolving the matter, and a plea of guilty was entered. But an issue arose in relation to the quantity of illicit drugs that was to be alleged against the applicant. So on 26 October 2017 a trial date was set, on a plea of not guilty. But then the prosecution returned to its original position and, on 18 June 2018, the applicant reverted to his original plea of guilty. There followed a plea hearing on 21 September 2018 and sentence, as we have said, on 1 October that year.
The applicant’s prior offending
For a number of offences, including possession of amphetamine, the applicant was convicted in the Broadmeadows Magistrates’ Court on 11 March 2004 and a community based order was imposed.
On 26 May 2004, in the same court, the applicant was again convicted of possession of amphetamine, together with a dishonesty offence. Again, a community based order was imposed.
In the Melbourne Magistrates’ Court, on 23 September 2004, the applicant was convicted and imprisoned for dishonesty offences and possession of amphetamine.
On 7 June 2007, in the County Court, the applicant was convicted of attempting to possess a prohibited import, namely ecstasy. He was sentenced on 3 September 2007 to six years’ imprisonment with a non-parole period of four years.
Presumably whilst he was serving that sentence, on 4 October 2007, in the Melbourne Magistrates’ Court, he was sentenced to seven days’ imprisonment for possession of a prohibited weapon without exemption or approval.
Then, in the County Court on 22 November 2007, a sentence of 219 days’ imprisonment (corresponding with pre-sentence detention) was imposed for dishonesty offences and for being a prohibited person possessing an unregistered firearm.
It was uncontroversial on the plea that the applicant’s convictions for drug possession offences reflected the fact that, at those times, he was an illicit drug user.
The prior offending outlined in [12] above which led to a significant period of imprisonment was briefly described by the applicant’s senior counsel on the plea for the instant offending. It was said that there were amphetamines hidden in barbecues which had been imported in a container and that the applicant and a number of others were to unload the container. That was an incomplete description of offending which resulted in the applicant being sentenced to a significant period of imprisonment. Fortunately, however, the prosecutor drew the judge’s attention to the sentencing remarks in that matter.[2] His Honour’s characterisation of the earlier offending — that is, that the applicant had a lesser but important role in a major attempted drug importation — was evidently justified.
[2]R v Mannella, Acciarito and Wood [2007] VCC 1057.
The prior offence of being a prohibited person in possession of an unregistered firearm, according to the judge’s sentencing remarks,[3] was that the applicant was found in possession of a .22 self-loading pistol at his premises. Bearing in mind that the sentence imposed for that and other offences was 219 days’ imprisonment, which was equivalent to the period of pre-sentence detention, it does not appear that the firearm offence was treated by the sentencing judge in 2007 as being very high in the range of seriousness.
[3]DPP v Acciarito [2018] VCC 1603 [11] (‘Sentencing Remarks’).
The applicant’s personal circumstances and steps towards rehabilitation
The applicant, as we have said, is now aged 48, having been born on 10 May 1971. It was said on his behalf on the plea, and not controverted, that he was brought up by his paternal grandparents and father; got a job in the Commonwealth Public Service after leaving school and worked in that employment for many years; married and there were two children of the marriage; and bought a house with his wife, where the family was raised.
His counsel submitted that the applicant began to flirt with use of amphetamines. His marriage started to struggle, and eventually there was a breakup in about 2004. The applicant was then in his thirties. His drug use increased. That led on to the possession offences to which we have referred. There was dishonesty offending also. His major offending was his involvement in the attempted importation of a border-controlled drug, for which he was sentenced in June 2007. He was released in 2011. He found employment in the hospitality industry and tried to connect with his ex-wife and, more particularly, his two sons. Things did not go smoothly, however. He descended again into drug use after the death of his grandmother, and that led on to the instant offending, which resulted in the sentence now challenged.
An important aspect of the plea was evidence that the applicant had made substantial attempts to rehabilitate himself in the period subsequent to him being charged with the instant offences. The evidence was as follows.
After 65 days on remand, the applicant was bailed, and entered a rehabilitation facility, Arrow Health, at Woodend. He was an inpatient at that facility for some three months. Then he spent five months at an Arrow Health facility at Malvern.
A rehabilitation clinician, Arthur Tisonas, gave evidence with respect to the applicant’s progress. Mr Tisonas said that he had first assessed the applicant forensically in October 2016. The history which he was given pointed to a severe substance disorder. The applicant was not coping very well. The applicant said, in essence, that ‘it’s time [I] fixed the problem’. His biggest motivating factor was his two children, by then teenagers.
The witness said that, on the day the applicant was bailed, he drove the applicant to Arrow Health, Woodend. There, very considerable restrictions were placed on the applicant’s daily activities.
Mr Tisonas gave evidence that after three months at Arrow Health, Woodend, the applicant became a resident of the Arrow Health facility in Malvern. There he remained until the end of May or early June 2017.
The applicant’s treatment at the Malvern facility involved a so-called transitional phase, between being within a 24 hour, seven day a week confined facility and, at the other end of the spectrum, continuing rehabilitation in the community. In this phase, the applicant had some scope to have his own time, but there was a curfew, there were rules as to what could and could not be done, there was counselling and drug urine screens.
After his discharge from Arrow Health Malvern, said Mr Tisonas, the applicant was referred to him by Foinix Specialised Forensic Services and Recovery Coaching. From then, until the time of the plea, the applicant had attended weekly consultations with Mr Tisonas.
The witness stated that the delay in the proceeding being finalised had been to the applicant’s advantage. He said that, when the applicant came for weekly cosultations, a urine test was done in-house. There had been a lapse on one occasion. The applicant had been honest about it. What had happened, Mr Tisonas stated, was a ‘lapse’, a ‘bump in the road’, not a relapse in the sense of the applicant going back to where he was when he started. For someone in the applicant’s position, provided he continued with counselling and attendance at meetings, a relapse was highly unlikely.
Pressed by the judge that he did not have a big enough statistical sample of persons of the applicant’s age who had come to treatment, the witness demurred. The applicant, he said, had volunteered his one lapse, which was in about May 2018.
A second witness, Diana Dalheimer, a drug and alcohol counsellor who now works at the Melbourne Drug Court, gave evidence about the applicant’s inpatient stay over the eight month period at the two Arrow Health facilities. She said that the applicant was motivated, he wanted to change, he was a role model to the younger people. When at the Malvern facility, he was the lead tenant. She rated his progress through the system as ‘fantastic’.
The judge suggested to the witness that the applicant could not have been doing that well, because he had been caught driving under the influence of methylamphetamine as recently as May 2018. The witness said that ‘relapse is part of addiction’.
A third witness, Paul Polito, a builder and a former client of Arrow Health, gave evidence of interacting with the applicant during his eight months at the Arrow Health facilities. He gave evidence of attending Narcotics Anonymous meetings with the applicant on a regular basis. In answer to the judge’s question, he said that quite a few had ‘fallen off the wagon’, but often you would find out about a relapse when a person came back and asked for help.
Cross-examined, the witness conceded that he himself had more recently faced a drug trafficking charge and was on a community correction order.
The judge briefly referred to the evidence of the three witnesses,[4] and said that he had taken ‘all this evidence into account’.
[4]Sentencing Remarks [22]–[25].
Sentencing remarks
For the purposes of this application, it is only necessary to refer to the following parts of the judge’s sentencing remarks.
First, on several occasions, the judge emphasised that the applicant’s prior convictions, particularly for drug offending and weapons offences, were ‘very relevant’ to his moral culpability for the offending.[5]
[5]See eg ibid [11], [14], [37].
Second, the judge particularly focused upon the applicant’s prior convictions for being a prohibited person in possession of a firearm and for the applicant’s involvement in what the judge described as ‘a major drug importation’.[6]
[6]Ibid [11]–[12], [37], [42].
Third, the judge repeatedly linked the applicant’s drug trafficking and his possession of the firearm. He said this:
15 … I am satisfied you were involved in a drug trafficking as a principal, as you have admitted by your plea and by your possession of methyl amphetamine in deal bags.
16.A firearm is an accoutrement of a drug trafficker. You were found in possession of a significant quantity of methyl amphetamine, with the various deal bags in your possession. In addition, you were found in possession of a significant amount of cash. The only inferences available is that when you were apprehended by the police, you were an armed drug trafficker. You were trafficking in a dangerous drug that is wreaking havoc through the community.
17.With your prior convictions for similar offending, you bear a high degree of moral culpability for this offending. Your possession of the loaded firearm in these circumstances is very serious. It is one thing to be in possession of a firearm in a bedroom, it is another, different and quite far more serious matter to be in possession of a loaded firearm in circumstances where you are engaged in drug trafficking in a public place in possession of a large sum of cash. Being later found in possession of a laser, another controlled weapon, again is serious given your antecedents. Overall, this is very serious offending, especially given your prior convictions.
…
37.I regard the most salient matters here is that you have a direct prior conviction for a similar offence. Under the legislation, when you have been sentenced to a term of imprisonment of more than five years, you remain a prohibited person for 15 years in relation to firearms. You were only three and a half years into that period when for a second time you were found, and in this case you were carrying, a loaded firearm.
…
39.As I have indicated in this particular case, you were carrying a loaded firearm in circumstances where, on your own admission, you were engaged in other criminal activity. This enhances your moral culpability.[7]
[7]Ibid [15]–[17], [37], [39].
Fourth, the judge said this with respect to the decision of this Court in Akoka v The Queen:[8]
I was referred to the decisions in Akoka v The Queen [2017] VSCA 214 where the Court endorsed and (sic) allowance being made for periods that an offender was involved in a rehabilitation facility. I do not regard it as appropriate to apply an exact equivalence between a sentence of imprisonment and the seven odd months that you were in the Arrow Health facility. I have, however, taken it into account in a general way in relation to the cumulation orders that I have made in this matter.[9]
[8][2017] VSCA 214.
[9]Sentencing Remarks [50].
Fifth, with respect to the applicant’s plea of guilty, and delay, the judge said this:
I give you credit for an early plea of guilty. This was offered at the Magistrates’ Court as you sought to have the matter dealt with summarily. There were also negotiations with the prosecution as to the nature of the drugs charge. This led to some delay for the matter to finally arrive in this court. You have used the period of delay for your rehabilitation and you had the matter hanging over your head for that period. I give that some weight.[10]
[10]Ibid [28].
Sixth, the judge stated that, overall, he regarded the applicant as having ‘reasonable prospects of rehabilitation’.[11] He noted, correctly, that the applicant had failed once in rehabilitation after the substantial sentence which was imposed in 2007, and that, whilst the applicant had been on bail for the instant offending, he had apparently relapsed on one occasion and was yet to face court for a drug driving related matter.[12]
[11]Ibid [29].
[12]Ibid.
Ground 1 —Double punishment
Submissions for the applicant
In support of ground 1, counsel for the applicant submitted in writing that —
(1) It was plain that the judge imposed a significantly higher sentence on charge 2 (the firearm offence), because that offence had been committed in circumstances where the applicant was also guilty of drug trafficking (charge 4).
(2) The fact that the applicant was both in possession of a loaded firearm and was guilty of drug trafficking illuminated his overall culpability. The question whether or not the possession of a firearm is associated with some other criminal activity informs the assessment of the seriousness of the firearm offence.[13]
[13]Counsel paraphrased Berichon v The Queen (2013) 40 VR 490, 496 [26] (Redlich JA) (‘Berichon’).
(3) To the extent that the same conduct informed the drug trafficking charge and was held to aggravate the seriousness of the firearms charge, the applicant ought not to have been punished twice for the overall offending.[14]
(4) The judge fell into error by not modifying the sentence imposed on charge 2 and the order for cumulation made on charge 4.
[14]Counsel cited Pearce v The Queen (1998) 194 CLR 610, 623-24 [40]-[49] (‘Pearce’).
In support of the last-mentioned submission, applicant’s counsel relied upon a number of matters in combination. He contended that —
(1) The sentence imposed on charge 2 was higher than the individual sentences imposed for the offence of a prohibited person possessing a firearm in each of seven identified cases.[15]
(2) Only two sentences reviewed by Priest JA in Berichon came close to the sentence of three years and six months’ imprisonment which was the subject of that appeal.[16]
(3) The applicant’s plea of guilty to drug trafficking was clearly influential in the judge’s decision to impose a very severe sentence on charge 2.
(4) The firearm was not produced by the applicant.
(5) Charges 2 and 4 were not between dates or representative charges.
(6) Not only was a very severe sentence imposed on charge 2 largely because of the offending which constituted charge 4, but 18 months of the sentence imposed on the latter charge was ordered to be served cumulatively upon the sentence imposed on charge 2.
(7) The judge did not refer, in his sentencing remarks, to the significant consideration of the need to avoid double punishment. This of itself invited appellate scrutiny.
[15]Berichon (2013) 40 VR 490; DPP v Basic [2017] VSCA 376; Salapura v The Queen [2018] VSCA 255; Spiteri v The Queen [2018] VSCA 254; Powell v The Queen [2015] VSCA 93; Haddara v The Queen [2015] VSCA 158; and R v Barca [2007] VSCA 167.
[16]Berichon (2013) 40 VR 490, 499–500.
In oral submissions, counsel expanded upon his double punishment argument. He accepted that the case was not one which involved overlapping elements; but he submitted that double punishment can arise in a case such as this. He referred particularly to the reasons for judgment of Redlich JA in Berichon.[17] He submitted that the judge was not entitled to sentence the applicant more heavily on the firearm charge where the weapon had been possessed in the course of the other criminal activity represented by charge 4. He also submitted that the judge was not entitled to impose a heavier sentence on charge 4 by reason of the fact that the applicant was armed when carrying out the trafficking. He tied the latter submission to the effect of the order for cumulation.[18]
[17]Ibid 496 [27].
[18]Remembering that there is no ground that the individual sentence passed on charge 4 was infected by double punishment.
Submissions for the Crown
It was submitted for the Crown in writing that the applicant had extensive prior convictions, including very relevant convictions with respect to the firearm offence which fell for sentence on this occasion, and a significant conviction with respect to drug importation.
It was accepted that the judge had elevated the sentence on charge 2 by virtue of the applicant’s participation in other criminal activity at the same time. But this course, it was submitted, had been expressly sanctioned by this Court in Berichon.[19]
[19](2013) 40 VR 490.
It was permissible, counsel submitted, for the judge to elevate the sentence on charge 2 on two different bases: first, by virtue of a finding that the possession was related to other criminal activities; and second, by virtue of the applicant’s highly relevant criminal antecedents.
Then it was submitted that the question whether there is a breach of the double punishment principle as explained in Pearce v The Queen[20] is to be determined by an examination of the individual sentences imposed for the respective offences in light of the degree of overlap between them.
[20](1998) 194 CLR 610.
The submission continued that, where a weapon is involved, it may be integral to the commission of a criminal offence. Then the degree of overlap is significant. But there is a second class of offence in which the weapon is incidental for the commission of another criminal offence. That was this case. The possession of the firearm was not integral to the trafficking enterprise. In such a case, the moderation required will be minimal. It could not be said that the judge was required to significantly moderate the sentence imposed on charge 2. In the event, the sentence of four years’ imprisonment which was imposed fell within the permissible range.
The submission met the applicant’s argument that the double punishment principle was breached by the sentence imposed on charge 2, as could be seen by comparison with sentences imposed in other cases, by conceding that the sentence imposed ‘is higher than that imposed in almost all other cases’. But that did not, of itself, demonstrate error.
As to the order for cumulation, it was submitted for the Crown that when one looked at the overall sentence imposed in respect of the firearms and trafficking offences, five years and six months’ imprisonment was proportionate to the overall criminality, ‘albeit at the higher end of the range’.
Ground 1: Analysis
Charges 2 and 4 involved distinct and different elements. Charge 2 was satisfied by the applicant’s possession of the firearm. Charge 4 was satisfied by the fact of trafficking the illicit drug. There was no overlap of elements of the kind discussed in Pearce.[21]There is clear authority, however, that double punishment may occur even when there is no such overlap.
[21](1998) 194 CLR 610, 621 [34]–[49] (McHugh, Hayne and Callinan JJ).
The reasons of Redlich JA in Berichon[22] at 496 [26] support a conclusion that the judge was correct to sentence the applicant for a more serious instance of the firearm offence because it was associated, albeit incidentally, with the commission of other criminal offending. Those reasons have been applied, both expressly and implicitly, from time to time thereafter. The circumstances of this case fit what Redlich JA described as the more serious form of the firearm offence.
[22](2013) 40 VR 490.
Applicant’s counsel contended, however, that what Redlich JA said in Berichon[23] at 496 [27] led to a different conclusion. But that is not so. What his Honour was there addressing was the obverse of the present case — that is, a case where the offence other than the firearm possession offence was made worse by the possession of the firearm. There, a heavier sentence would be warranted on that charge, but not on the firearm charge.
[23]Ibid.
Running through both the situations discussed by Redlich JA is this: where there is a firearm possession charge and a charge of other criminal conduct being undertaken at the same time, the gravity of one or other charge may be elevated in the particular circumstances. In the present case, the judge was entitled, for the reasons set out at [55] below, to treat the firearm offence as being in the more serious class of offending of that kind.
In assessing the criminality of the offence of being a prohibited person in possession of a firearm, at one end of the spectrum is possession of a weapon unrelated to other criminal activities, and at the other end of the spectrum is the use of a weapon in the commission of another offence. Possession of a weapon in the course of committing other criminal activity, but without the actual or threatened use of the weapon, falls towards the higher end of the spectrum. That is the factual situation in the present case. The fact that the applicant possessed the weapon, although there was no evidence of its use or threatened use, was the more serious because he possessed it whilst carrying out the drug trafficking the subject of charge 4. The judge was correct to analyse the matter in that way.
But then there is the question whether the judge also elevated the seriousness of the trafficking charge by reason of the applicant being armed. It appears to us that his Honour did so. He referred to a ‘firearm being the accoutrement of a drug trafficker’;[24] to the applicant being ‘an armed drug trafficker’.[25] There were other passages in which his Honour focussed, to the contrary, on the seriousness of the firearm charge. Given that the firearm was not used or deployed in any way in the commsion of the drug offence it was not permissible for the judge to elevate the seriousness of the trafficking charge because of the incidental fact that the applicant was then armed. The criminality associated with the gun and its relationship to the drug offending was fully accounted for in the sentecing on the firearm offence.[26]
[24]Sentencing Remarks [16].
[25]Ibid.
[26]It is not necessary, in order to decide the present matter, to consider whether it follows from what Redlich JA said in Berichon (2013) 40 VR 490 at [26]-[27] that it will always be the case that the seriousness of one but not both charges will be elevated.
Our conclusion that the judge elevated the seriousness of both the firearm and trafficking charges does not depend only on a few passages in the sentencing remarks.
It was, of course, correct for the judge to regard the offences reflected by charges 2 and 4 as being the more blameworthy because the applicant had relevant prior convictions. Further, because there were distinct elements to the conduct constituted by charges 2 and 4, it was appropriate that there be some cumulation of the sentence on the trafficking charge on the sentence imposed on the firearm charge. The judge cannot be criticised for making some order for cumulation.
On the other hand, the prior unregistered firearm possession charge outlined in [14] above was not akin to the instant offending. That offending seems to have been at the least serious end of the spectrum discussed at [55] above, the firearm having been found at the applicant’s premises. The penalty imposed in November 2007 by the County Court judge for that and other offending was low.[27]
[27]See [17] above.
Then, with respect to the trafficking charge, the case against the applicant was that he had engaged in small scale trafficking on a single day. To call the applicant a ‘principal’ as the judge did was, with respect, a misuse of the term. It implied that the applicant was something more than a relatively small scale dealer. But the material went no further. The fact that the applicant had previously been involved in what was apparently large-scale drugs offending did not alter the nature or scale of the instant offending, although it was certainly a relevant prior conviction.
It is undeniable, in our opinion, that the sentence on charge 2 was very heavy. Perhaps slightly less obviously, the same may be said of the sentence on charge 4. The added impact of partial, but substamtial, cumulation produced a total effective sentence of five years and six months’ imprisonment, which was also very heavy in all the circumstances of this matter. But it is not those conclusions which give an answer to the allegation of specific error raised by ground 1. Rather, whilst there was no fault in the judge elevating the seriousness of the firearm offence and sentencing the applicant on that basis, his Honour erred in also elevating the sentence on the trafficking offence because of the applicant’s possession of the firearm. It is for that reason that we would grant leave to appeal on ground 1.
Ground 2 — Manifest excess
Submissions for the applicant
Applicant’s counsel submitted in writing that the total effective sentence (constituted by the sentence on charge 2 and the order for cumulation in respect of ground 4) and the non-parole period fixed were each manifestly excessive, as could be seen from the following circumstances:
·The guilty plea had been indicated at an early stage. It had to be renewed when the prosecution shifted ground on two occasions.
·The applicant has demonstrated commitment to rehabilitation, which has been very largely successful.
·The period of residential rehabilitation for about eight months, involving very substantial restrictions on the applicant’s activities, had to be taken into account.
·There had been delay in bringing the proceeding to conclusion, not by any fault on the applicant’s part; and in that period of delay, the applicant not only had the charges hanging over his head, but had undertaken an intensive and largely successful program of rehabilitation.
Submissions for the Crown
Counsel for the Crown submitted that this ground was the real essence of the appeal. The focus was upon insufficient weight which was said to have been afforded by the judge to the plea of guilty and delay.
Adverting to the difficulties faced by an applicant in showing that a sentence is manifestly excessive, counsel noted that his Honour’s consideration of delay had touched upon the applicant’s attempts to rehabilitate himself. It was further submitted that the judge had been correct to say that whilst the applicant’s efforts in respect of rehabilitation were relevant and the applicant was to be commended for them, at the same time, protection of the community, specific deterrence, denunciation and general deterrence outweighed to a large extent the matters personal to the applicant in his efforts at rehabilitation.
Counsel then submitted that ‘albeit the sentence is plainly severe’, it was within the permissible range. The only matter causing some concern was the judge’s treatment of the time spent by the applicant in the rehabilitation facility. It was accepted that, read literally, what the judge had said was erroneous. But if what his Honour had meant was no more than that the relevant period was taken into account in constructing the total effective sentence and non-parole period, then no different sentence was warranted.
Ground 2: Analysis
The judge, as we have said, was correct to treat the charge 2 offence as being more serious because the applicant carried the weapon when undertaking the charge 4 trafficking offence. It is true also that the applicant had prior convictions that were relevant to both charges 2 and 4. Again, there could be no complaint that the judge cumulated part of the sentence on charge 4 and the sentence on charge 2.
But in sentencing the applicant, the judge had to take account not only of matters going in favour of a heavier sentence, but also matters going in mitigation. Prominent among the latter were the applicant’s substantial attempts at rehabilitation — attempts taken during a period of delay which arose out of the prosecution’s changes of position — the eight month period of residential rehabilitation which involved very substantial restrictions on the applicant’s activities, and the early plea of guilty.
It was submitted for the Crown, as we have already noted, that the total sentence was ‘plainly severe’. Yet it was said to be within the permissible range. With respect, we do not agree. In our opinion the sentence which the judge imposed on the firearm charge was impermissibly high. Review of a considerable number of sentence appeals involving the possession of a firearm by a prohibited person shows, notwithstanding the inevitable limitations of trying to compare the circumstances of one matter with another (a comparison made more difficult by a change to the maximum sentence for the offence), that the sentence imposed in this instance — which was for an offence not at an extreme on the spectrum, and where the prior similar offence had evidently not been a serious instance of that crime — was altogether too high. When there is brought to account the impressive evidence called for the applicant as to his attempted rehabilitation, and the period of restriction in the rehabilitation facility,[28] together with the period of delay for which the applicant bore no responsibility, we consider that a lesser sentence was required on charge 2.
[28]See Akoka v The Queen [2017] VSCA 214 [105]–[114].
Counsel for the Crown fairly pointed to the judge’s observation[29] that he had taken the applicant’s time in the rehabilitation facility ‘into account in a general way in relation to the cumulation orders’ that he had made. Counsel accepted that, read literally, this was erroneous, because a judge must factor such allowance as is being made for residential restrictions of the kind under discussion into both the head sentence and non-parole period. The applicant did not complain, however, that the judge made a specific error in this connection, and our conclusion that the sentence imposed on charge 2 was manifestly excessive obviously does not depend upon an error of that kind having been argued and established.
[29]Sentencing Remarks [50].
The sentence on charge 4 was undoubtedly a heavy one. The trafficking alleged against the applicant was on a small scale. The judge’s characterisation of the applicant as a ‘principal’ was inapt, particularly when it seems likely that the offending was a flow-on from the applicant’s relapse into addiction. Nonetheless, the applicant had a prior conviction for an apparently serious drugs offence and, whatever be the excuse, he was again involved in drugs offending. Notwithstanding the matters which could be called in aid of his complaint about the sentence on charge 4, we are not persuaded that it was wholly outside the permissible range.
Notwithstanding the conclusion just expressed with respect to charge 4, the applicant should have leave to appeal on ground 2.
What orders should be made?
The applicant should have leave to appeal on grounds 1 and 2.
The appeal should be allowed on ground 1 only so far as it concerns the sentence on charge 4 (the trafficking charge) and the order for cumulation. In so concluding we recognise that, in terms, ground 1 does not challenge the individual sentence on charge 4. The applicant should be re-sentenced on charge 4 because the judge wrongly elevated the seriousness of that charge, and because a different and lesser sentence should be imposed; and there should be a different and reduced order for cumulation because that was another way in which the judge erred in elevating the seriousness of the charge 4 offence.
The appeal should be allowed on ground 2 only so far as it concerns the sentence on charge 2 (the firearm charge). The applicant should be re-sentenced on charge 2 because, although there was no specific error in the judge elevating the seriousness of that offence, the sentence imposed was manifestly excessive.
In the event, we will grant leave to the applicant to appeal on grounds 1 and 2. We will allow the appeal on ground 1. We will set aside the sentence imposed on charge 4 and the order for cumulation. In lieu of the sentence on charge 4 we will sentence the applicant to two years’ imprisonment. We will allow the appeal on ground 2, set aside the sentence on charge 2 and in lieu thereof sentence the applicant to three years’ imprisonment, which is to be the base sentence. We will confirm the other individual sentences.[30] We will order that one year of the sentence imposed on charge 4 is to be cumulated on the sentence on charge 2. The total effective sentence will be four years’ imprisonment. We will fix a non-parole period of two years and nine months’ imprisonment. We will confirm ancillary orders made below. We will make an appropriate declaration in respect of pre-sentence detention. We will state, for the purposes of s 6AAA of the Sentencing Act1991 that, had the applicant not pleaded guilty, we would have imposed a sentence of seven years’ imprisonment with a five year non-parole period.
[30]Which were not the subject of discrete challenge.
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