Atanackovic v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0164

STANIMIR ATANACKOVIC	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, KYROU and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6, 7 May 2015
DATE OF JUDGMENT:	5 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 136
JUDGMENT APPEALED FROM:	DPP v Atanackovic [2014] VCC 946

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CRIMINAL LAW – Sentence – Federal offences – One charge of possessing a marketable quantity of an unlawfully imported border controlled drug and one charge of trafficking in a controlled drug – Guilty plea – Sentence of 3 years and 6 months on first charge and 1 year and 6 months with 6 months cumulation on second charge – Crown concession of vitiating error based on sentencing judge’s misstatement of pure quantity of the drug the subject of first charge – Whether a different sentence should be imposed – Whether a Community Correction Order (CCO) combined with time served appropriate sentencing disposition – Appeal dismissed.

CRIMINAL LAW – Sentence – Federal offences – Judiciary Act 1903 (Cth) s 68(1)(c) – Principles for determining applicability of state sentencing laws to federal offences – CCO cannot be combined with a term of imprisonment for a single federal offence – Crimes Act 1914 (Cth) pt 1B leaves no room for operation of Sentencing Act 1991 ss 5(4C), 44 – Whether a combination sentence constitutes double punishment – Meaning of ‘sentence’ – Desirability of national consistency in sentencing of federal offenders – Hili (2010) 242 CLR 520 applied.

CRIMINAL LAW – Sentence – Guideline judgment in Boulton [2014] VSCA 342 not applicable to sentencing for a federal offence – Judiciary Act 1903 (Cth) s 80 – Inconsistency between guideline judgment and Crimes Act 1914 (Cth) pt 1B – Bui (2012) 244 CLR 638 applied.

CRIMINAL LAW – Sentence – Observations on CCOs as a sentencing option – Boulton [2014] VSCA 342 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D D Gurvich	Victor C Andreou
For the Respondent	Ms W Abraham QC with Ms K Breckweg	Office of the Commonwealth Director of Public Prosecutions

WEINBERG JA

KYROU JA
KAYE JA:

Introduction and summary

On 3 June 2014 the appellant (now aged 51) pleaded guilty to possessing a marketable quantity of cocaine and to trafficking cocaine. Following a plea on that day he was sentenced on 26 June 2014 as follows:

Charge on Indictment Offence Maximum Sentence Cumulation

1 Possess a marketable quantity of an unlawfully imported border
controlled drug [cocaine] [s 307.6(1) Criminal Code (Cth)]. [1]
25 years’
imprisonment
and / or 5,000

penalty units.
3 years
6 months Base

2
Trafficking in a controlled drug [cocaine]
[s 302.4(1) Criminal

Code (Cth)].

10 years’
imprisonment
and / or 2,000

penalty units.

1 year
6 months
Sentence to commence 12 months before the expiry of the sentence on charge 1

Total Effective Sentence: 4 years

Non-Parole Period: 2 years 6 months

Pre-sentence Detention Declared: 102 days

6AAA Statement: TES 6 years; NPP 4 years
[1]Criminal Code Act 1995 (Cth) sch 1 (‘Criminal Code (Cth)’). All references to the Criminal Code (Cth) are to that code as at 29 July 2011.

On 30 October 2014, Priest JA granted the appellant leave to appeal on the following grounds:

1.The learned sentencing judge, in assessing the seriousness of the offence, erred by taking into account the total quantity of the cocaine possessed rather than the pure quantity of cocaine.
2.The sentence on charge 1 and the total effective sentence are manifestly excessive.
3.The learned sentencing judge failed to comply with section 19(2) of the Crimes Act 1914 (Cth).

Ground 1 relates to the sentencing judge’s observation in his sentencing remarks that the quantity of cocaine the subject of charge 1 ‘was many times the marketable threshold … and falls just short of a commercial quantity’ and that it was of ‘high purity’.[2] In fact, as discussed further below,[3] for the purposes of charge 1, while the appellant was in possession of a gross quantity of 1,982.4 grams of cocaine, the pure quantity of that drug was 1,194.3 grams. At the time that the appellant committed the offence which is the subject of charge 1, s 314.4 of the Criminal Code (Cth) provided that the threshold for a marketable quantity of cocaine was 2.0 grams and the threshold for a commercial quantity of that drug was 2.0 kilograms. Section 312.1(1) of the Criminal Code (Cth) provided that it was the pure form of the drug that was relevant to sentencing.
[2]DPP (Cth) v Atanackovic [2014] VCC 946, [43] (‘Reasons’).
[3]See [121] below.

On the hearing of the appeal on 6 May 2015, the Crown conceded that the judge made the error set out in Ground 1 and that this was a vitiating error. As a result of this concession, the parties agreed that the issues for this Court were whether a different sentence should be imposed[4] and, if so, what that sentence should be. The hearing proceeded on this basis without any discussion of the correctness of the Crown’s concession. As discussed below,[5] although we have reservations about the concession, we are bound by it and have decided the appeal on the basis that the concession was correct.
[4]Criminal Procedure Act 2009 s 281(1)(b).
[5]See [149]–[152] below.

The appellant abandoned Ground 3 on the basis that, although the sentencing remarks may have not done so, the formal Record of Orders complied with the requirements of s 19(2) of the Crimes Act 1914 (Cth).[6]
[6]Section 19(2) provides that, where a person is sentenced to imprisonment for more than one federal offence, the court must direct when each sentence commences, but so that there is no gap between the end of one sentence and the commencement of another.

In the course of his oral submissions on whether a different sentence should be imposed, counsel for the appellant relied upon the guideline judgment in Boulton v The Queen[7] in support of the proposition that the appropriate sentence for the appellant was time served in conjunction with a Community Correction Order (‘CCO’). No reliance had been placed on Boulton in the appellant’s written case. The Crown contended that, while a CCO is available as a sentencing option for a federal offence,[8] the approach to sentencing enunciated in the guideline judgment was inapplicable because it was inconsistent with pt 1B of the Crimes Act1914 (Cth), which sets out the sentencing principles to be applied for federal offences.
[7][2014] VSCA 342 (‘Boulton’ or ‘guideline judgment’). Boulton comprises reasons for judgment in respect of three separate appeals and an appendix setting out guidelines for sentencing courts. In these reasons, all references to Boulton or the ‘guideline judgment’ are to the judgment and the guidelines collectively. However, unless otherwise indicated, all references to particular paragraphs in Boulton are to paragraphs in the judgment rather than in the appendix.
[8]Section 16(1) of the Crimes Act 1914 (Cth) defines ‘federal offence’ as ‘an offence against the law of the Commonwealth.’

In view of the importance of this issue and the manner in which it arose, the hearing of the appeal was adjourned to 7 May 2015 in order to give the Crown an opportunity to brief senior counsel to address the Court. With the consent of the parties, the Court was reconstituted by adding a third member for the resumed hearing.

We will discuss the issues in the appeal in the following order:

(a) Whether Boulton is applicable to the sentencing of federal offenders[9] under pt 1B of the Crimes Act1914 (Cth);
[9]Section 16(1) of the Crimes Act 1914 (Cth) defines ‘federal offender’ as ‘a person convicted of a federal offence.’ In these reasons, references to the sentencing of a federal offender are to a person being sentenced solely for federal offences.

(b) the circumstances of the appellant’s offending;

(c) the appellant’s personal circumstances;

(d) the judge’s sentencing remarks; and

(e) whether a different sentence should be imposed.

For reasons that follow, we have concluded that Boulton does not apply to the sentencing of federal offenders. We have also concluded that, even if Boulton applied to the present case, the appeal should, in any event, be dismissed.

Is Boulton applicable to the sentencing of federal offenders?
Boulton and its statutory context

Before considering Boulton, it is convenient to set out the statutory context in which it was decided. As we have indicated, Boulton is a guideline judgment. It was made under s 6AB(1) of the Sentencing Act 1991 (‘Sentencing Act’). Part 2AA of that Act is titled ‘Guideline Judgments’. Section 6AB relevantly provides:

6AB Power of Court of Appeal to give or review guideline judgments
(1) On hearing and considering an appeal against sentence, the Court of Appeal may (on its own initiative or on an application made by a party to the appeal) consider whether―
(a) to give a guideline judgment; or
(b) to review a guideline judgment given by it in a previous proceeding.

Section 6AA of the Sentencing Act defines ‘guideline judgment’ relevantly as ‘a judgment that is expressed to contain guidelines to be taken into account by courts in sentencing offenders’. Section 6AG provides that a guideline in a guideline judgment ‘is additional to any other matter that is required to be taken into account [by a sentencing court] under Part 2 [of the Sentencing Act]’ and that it ‘does not limit or take away from any such requirement.’

Part 2 of the Sentencing Act is titled ‘Governing Principles’ and comprises ss 5 to 6AAA. Section 5 relevantly provides:

5 Sentencing guidelines
(1) The only purposes for which sentences may be imposed are—
(a)to punish the offender to an extent and in a manner which is just in all of the circumstances; or
(b) to deter the offender or other persons from committing offences of the same or a similar character; or
(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or

(e) to protect the community from the offender; or
(f) a combination of two or more of those purposes.

…
(2)       In sentencing an offender a court must have regard to―
(a)       the maximum penalty prescribed for the offence; and
…
(b)       current sentencing practices; and
(c)       the nature and gravity of the offence; and
(d) the offender's culpability and degree of responsibility for the offence; and
…
(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and

(f) the offender's previous character; and
(g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.

…
(3)A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
(4) A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
…
(4C)A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.[10]

[10]Sub-section (4C) was inserted in s 5 of the Sentencing Act with effect from 29 September 2014 by s 16 of the Sentencing Amendment (Emergency Workers) Act 2014 (‘2014 Act’).

The CCO regime commenced on 16 January 2012, having been introduced by the Sentencing Amendment (Community Correction Reform) Act 2011. The regime is provided for under pt 3A of the Sentencing Act, which comprises ss 36 to 48Q, relevant portions of which are extracted below: [11]
[11]Prior to 29 September 2014, s 44(1) provided that the maximum period of imprisonment that could be imposed in conjunction with a CCO was 3 months. This period was increased to 2 years with effect from that date by s 18 of the 2014 Act.

36 Purpose of an order
(1) The purpose of a community correction order is to provide a community based sentence that may be used for a wide range of offending behaviours while having regard to and addressing the circumstances of the offender.
…

37 Community correction order
A court may make a community correction order in respect of an offender if—
(a) the offender has been convicted or found guilty of an offence punishable by more than 5 penalty units; and
(b) the court has received a pre-sentence report (if required) and has had regard to any recommendations, information or matters identified in the report; and

(c) the offender consents to the order.

38 Period and commencement of a community correction order
(1) The period of a community correction order is the period determined by the court which must not exceed—
…
(b) in the case of an order made by the County Court or the Supreme Court whichever is greater of—
(i) the maximum term of imprisonment for the offence; or

(ii) 2 years.

(2) Unless section 44(3) applies, a community correction order must commence on a date specified by the court that is not later than 3 months after the making of the order.

…
43 Fine and a community correction order
A court may impose on an offender a fine authorised by law in addition to making a community correction order.

44 Imprisonment and a community correction order
(1) When sentencing an offender in respect of one, or more than one, offence …, a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 2 years or less.
…
(3)If a court makes a community correction order in respect of an offender in addition to imposing a sentence of imprisonment in accordance with this section, the community correction order commences on the release of the offender from imprisonment or, if the offender is released on parole, on the completion of the parole period (as defined in section 55(1) of the Corrections Act 1986).
…

…
48A Matters to be considered when attaching conditions
The court must attach conditions to a community correction order in accordance with—
(a) the principle of proportionality; and
(b) the purposes for which a sentence may be imposed as set out in section 5; and
(c) the purpose of a community correction order set out in section 36.

Sections 45 and 46 of the Sentencing Act, which are in pt 3A div 3, set out mandatory terms which are attached to each CCO. Those terms apply during the period of the CCO and include both positive obligations and restraints on particular conduct. The positive obligations include compliance with directions given by the Secretary to the Department of Justice and various reporting obligations. The restraints include that the offender must not commit any offence punishable by imprisonment, or leave Victoria without permission. Division 4 of pt 3A sets out conditions that may be attached to a CCO in addition to the mandatory terms prescribed by ss 45 and 46. They include an unpaid community work condition, a non-association condition, a curfew condition and treatment and rehabilitation conditions. Division 5 of pt 3A provides for variation of a CCO.

There are three additional aspects of the CCO regime that are not included in pt 3A of the Sentencing Act but which are relevant to this appeal. First, s 7(1)(e) of that Act provides that a court may make a CCO ‘with or without recording a conviction’. Secondly, s 83AD(1) of that Act provides that contravention of a CCO without a reasonable excuse is an offence punishable by 3 months’ imprisonment. Thirdly, s 83AS(1)(c) of that Act provides that, if a court finds a person guilty of an offence under s 83AD, it may, in addition to sentencing the offender for that offence, cancel the CCO and ‘deal with the offender for the offence with respect to which the [CCO] was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence’.

In the context of a combined sentence of imprisonment and a CCO in accordance with s 44(1) of the Sentencing Act, it should be noted that s 11 prescribes the fixing of non-parole periods. That section relevantly provides that the sentencing court must fix a non-parole period for a term of imprisonment of 2 years or more but has a discretion whether to do so for a term of imprisonment of less than 2 years but not less than 1 year. The section also provides that a non-parole period must be at least 6 months less than the term of imprisonment.

In Boulton, this Court noted that the Victorian Parliament intended CCOs to replace Community Based Orders (‘CBOs’), Intensive Correction Orders (‘ICOs’) and suspended sentences and that data collected by the Sentencing Advisory Council suggested that CCOs were not yet being fully utilised.[12]
[12]Boulton [2014] VSCA 342, [47].

This Court stated that the availability of the CCO ‘dramatically change[d] the sentencing landscape’ as sentencing courts could now choose a disposition which enabled all of the purposes of punishment to be served simultaneously in preference to an option of imprisonment, which was skewed towards retribution and deterrence.[13] At other points in the guideline judgment, the Court described the CCO as a ‘radical new sentencing option, with the potential to transform sentencing in this State’[14] and said that its advent ‘call[ed] for a re-consideration of traditional conceptions of imprisonment as the only appropriate punishment for serious offences’.[15] The Court also observed that the challenge for sentencing courts in the early years of the CCO regime would be to re-examine the conventional wisdom about the types of offending which ordinarily attract a term of imprisonment. This re-examination was said to be essential ‘if the CCO is to fulfil its potential as a sentencing option, in accordance with the legislature’s clearly-expressed intention’.[16] The Court went on to say that:

a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide).[17]

[13]Boulton [2014] VSCA 342, [113].

[14]Boulton [2014] VSCA 342, [4].

[15]Boulton [2014] VSCA 342, [5].

[16]Boulton [2014] VSCA 342, [103].

[17]Boulton [2014] VSCA 342, [131].

The Court stated that a CCO was punitive for two reasons. First, the conditions which may be attached to the order — in addition to the mandatory terms which ‘materially impinge on an offender’s liberty’ — ‘are variously coercive, restrictive and/or prohibitive’.[18] Secondly, as a result of ss 83AD and 83AS(1)(c) of the Sentencing Act, contravention of any condition attached to a CCO was an offence punishable by 3 months’ imprisonment and also carried with it the prospect that the offender would be resentenced on the original offence.[19]
[18]Boulton [2014] VSCA 342, [91], [93].
[19]Boulton [2014] VSCA 342, [92].

The Court compared the CCO with imprisonment and listed the numerous adverse features of the latter sentencing option.[20] The Court ultimately concluded that the CCO offered the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who were dependent on him or her.[21]
[20]Boulton [2014] VSCA 342, [104]–[112].
[21]Boulton [2014] VSCA 342, [115].

The Court said the following about s 5(4C) of the Sentencing Act and its effect on the suitability of CCOs as a sentencing option:

What is most powerful about s 5(4C) is that it prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:
(a) the purposes for which sentence is to be imposed on the offender; and
(b) whether those purposes can be achieved by a CCO to which one or more of the specified (onerous) conditions is attached.

The process of deliberation which this provision requires should assist in the reconceptualisation of sentencing options to which we have referred. In particular, that process will throw into much sharper focus the distinction we have sought to draw, between the narrow punitive purpose (and effect) of imprisonment, on the one hand, and the multi-purpose character of the CCO. The sentencing court should ask itself a question along the following lines:
Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?[22]

[22]Boulton [2014] VSCA 342, [120]–[121].

In the subsequent decision of Sherritt v The Queen,[23] Maxwell P stated that ‘[t]he Court in Boulton emphasised that, if the CCO is to serve the purpose which Parliament quite clearly envisaged for it, sentencing courts (including this Court) need to rethink the conventional wisdom about whether prison is really the only option.’[24]
[23][2015] VSCA 1 (‘Sherritt’).
[24]Sherritt [2015] VSCA 1, [46].

Relevant Commonwealth legislation

The appellant was charged under ss 302.4(1) and 307.6(1) of the Criminal Code (Cth). Those sections relevantly provide:

302.4 Trafficking controlled drugs
(1)       A person commits an offence if:
(a)       the person traffics in a substance; and
(b)       the substance is a controlled drug.
Penalty: Imprisonment for 10 years or 2,000 penalty units, or both.

307.6Possessing marketable quantities of unlawfully imported border controlled drugs …
(1)       A person commits an offence if:
(a)       the person possesses a substance; and
(b)       the substance was unlawfully imported; and
(c) the substance is a border controlled drug …; and

(d) the quantity possessed is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.

Part IB of the Crimes Act1914 (Cth) sets out the regime for the sentencing, imprisonment and release of federal offenders. Division 2 of pt IB, which comprises ss 16A to 16D, sets out the general sentencing principles that are to be applied in respect of federal offences. Section 16A relevantly provides:

16AMatters to which court to have regard when passing sentence etc.—federal offences
(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the offence;
(b) other offences (if any) that are required or permitted to be taken into account;
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;

(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim;
(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;
(fa) the extent to which the person has failed to comply with:
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii) any obligation under a law of the Commonwealth;
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;

about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g) if the person has pleaded guilty to the charge in respect of the offence—that fact;
(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;
(j) the deterrent effect that any sentence or order under consideration may have on the person;
(k) the need to ensure that the person is adequately punished for the offence;
(m) the character, antecedents, age, means and physical or mental condition of the person;
(n) the prospect of rehabilitation of the person;
(p) the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.

…
(3)Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1),[25] 20(1)[26] or 20AB(1)[27] is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.
…

[25]Section 19B empowers the sentencing court to discharge an offender without proceeding to a conviction.

[26]Section 20(1) empowers the sentencing court to release a convicted offender on a recognizance release order.

[27]Section 20AB(1) is set out at [30] below.

The sentencing discretion in respect of federal offences is limited in some respects by s 17A(1), which provides:

17A Restriction on imposing sentences
(1) A court shall not pass a sentence of imprisonment on any person for a federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

Division 4 of pt 1B of the Crimes Act 1914 (Cth) is headed ‘The fixing of non-parole periods and the making of recognizance release orders’ and comprises ss 19AB to 19AK. Sections 19AB(1) and 19AC(1) apply to persons convicted of a federal offence who are not already serving a federal sentence. Whereas s 19AB(1) applies where the court imposes either a life sentence or a sentence exceeding 3 years for the offence, s 19AC(1) applies where the court imposes a sentence that does not exceed 3 years. Where a federal offender is sentenced in accordance with s 19AB(1), the court must either fix a non-parole period or make a recognizance release order. However, where a federal offender is sentenced in accordance with s 19AC(1), the court must make a recognizance release order and must not fix a non-parole period.

A recognizance release order is defined in s 16(1) of the Crimes Act 1914 (Cth) to mean an order made under s 20(1)(b). Section 16 is in pt 1B div 1 whereas s 20 is in div 5. Section 20(1)(b) empowers the court to sentence a federal offender to imprisonment but direct, by order, that the person be released, upon giving security either forthwith or after having served a specified period of imprisonment. The conditions on which the security is to be given, as set out in s 20(1)(a), are as follows:

(i) that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;
(ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A) on or before a date specified in the order; or
(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order;

(iii) that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order; and
(iv) that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed …

Sections 19AB(3) and 19AC(4) of the Crimes Act 1914 (Cth) provide exceptions to the requirements imposed under ss 19AB(1) and 19AC(1) respectively. They provide that a court may decline to fix a non-parole period or make a recognizance release order under those sections if, having regard to the nature and circumstances of the offence and to the antecedents of the offender, the court is satisfied that such an order is not appropriate. Section 19AC(3) provides that, if the sentence imposed in accordance with s 19AC(1) does not exceed 6 months, the court is not required to make a recognizance release order.

Division 5 of pt 1B of the Crimes Act 1914 (Cth) is headed ‘Conditional release on parole or licence’ and comprises ss 19AL to 20AC. The matters that div 5 deals with include the making of parole orders (s 19AL), when a person must be released from prison in accordance with a parole order (s 19AM) and the conditions that attach to a parole order (s 19AN). Division 5 also contains s 20, which provides for the making of recognizance release orders, as set out at [27] above.

A CCO made under pt 3A of the Sentencing Act is available for a federal offence by virtue of s 20AB(1) of the Crimes Act 1914 (Cth), which is contained within pt 1B div 5, and reg 6 of the Crimes Regulations 1990 (Cth).[28] Section 20AB relevantly provides:
[28]Alam v The Queen [2015] VSCA 48, [22] n 11.

20AB Additional sentencing alternatives
(1) Where under the law of a participating State or a participating Territory a court is empowered in particular cases to pass a sentence or make an order known as a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention or an attendance order, or to pass or make a similar sentence or order or a sentence or order that is prescribed for the purposes of this section,[29] in respect of a State or Territory offender, such a sentence or order may in corresponding cases be passed or made by that court or any federal court in respect of a person convicted before that first-mentioned court, or before that federal court in that State or Territory, of a federal offence.
…
(3) Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).
(4) Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person convicted of an offence against the law of the Commonwealth, the court may also do all or any of the following:
(a) impose any fine or other pecuniary penalty that the court is empowered to impose on the person for the offence;
(b) make any order requiring the person to make reparation or restitution, or pay compensation, in respect of the offence that the court is empowered to make;
(c) make any other order that the court is empowered to make.

[29]The orders that are prescribed by reg 6 of the Crimes Regulations 1990 (Cth) include a ‘Community correction order [made under] Part 3A of the Sentencing Act 1991 of Victoria.’

Section 20AC(6) of the Crimes Act 1914 (Cth), which sets out the consequences that attend an offender’s failure to comply with an order made under s 20AB(1), relevantly provides:

Where, in accordance with this section, a person in respect of whom a sentence has been passed, or an order has been made, under subsection 20AB(1) appears or is brought before the court by which the sentence was passed or the order was made, the court (whether or not constituted by the judge or magistrate who passed the sentence or made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with the sentence or order or with any requirements made in relation to the sentence or order by or under the applied provisions,[30] may:
(a) without prejudice to the continuance of the sentence or order, impose a pecuniary penalty not exceeding 10 penalty units on the person;
(b) revoke the sentence or order and … deal with the person, for the offence in respect of which the sentence was passed or the order was made, in any manner in which he or she could have been dealt with for that offence if the sentence had not been passed or the order had not been made and he or she was before the court for sentence in respect of the offence; or

(c) take no action.

[30]Section 20AC(1) defines ‘the applied provisions’ relevantly as ‘the provisions of the laws of a State … that apply to and in relation to the sentence or order by virtue of subsection 20AB(3).’

One of the issues that arises from the parties’ submissions[31] is whether, pursuant to s 44(1) of the Sentencing Act, a CCO can be combined with a term of imprisonment of 2 years or less for an offender who is convicted of a single federal offence. That issue is discussed at [78] to [93] below.
[31]See [53]–[63] below.

Section 68(1)(c) of the Judiciary Act1903 (Cth) (‘Judiciary Act’) provides that the laws of a State ‘respecting … the procedure for … trial and conviction on indictment [of persons charged with offences] … shall, subject to [s 68], apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State … by [s 68]’. The High Court has held that the powers conferred under sentencing laws fall within this description.[32]
[32]Putland v The Queen (2004) 218 CLR 174, 178–9 [4], 188 [34] (‘Putland’).

Additionally, s 80 of the Judiciary Act provides:

80 Common law to govern
So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.

Case law on the applicability of state sentencing law to federal offences

The Crimes Act 1914 (Cth) does not set out a comprehensive code for the sentencing of federal offenders.

This proposition was first clearly expressed by the New South Wales Court of Criminal Appeal in Director of Public Prosecutions (Cth) v El Karhani.[33] In that case, the Court held that the list of matters in s 16A(2) of the Crimes Act 1914 (Cth) must be read subject to the primary duty in s 16A(1) to ensure that the sentence ‘is of a severity appropriate in all the circumstances of the offence.’ That duty imported into the function of sentencing federal offenders the general principles of sentencing law, such as that of general deterrence. The statement in s 16A(2) that the matters there listed were ‘in addition to any other matters’ to be taken into account made it ‘plain beyond argument that the legislature was not seeking, by the list, to exclude other relevant matters.’[34]
[33](1990) 21 NSWLR 370 (‘El Karhani’).
[34]El Karhani (1990) 21 NSWLR 370, 378.

El Karhani was subsequently referred to in Putland v The Queen.[35] In that case, the majority of the High Court decided that pt 1B of the Crimes Act 1914 (Cth) did not exclude the operation of s 52(1) of the Sentencing Act (NT), which allowed for aggregate sentencing for multiple offences. Gleeson CJ stated that s 68 of the Judiciary Act would not pick up and apply a state law if a federal law ‘expressly or by implication made contrary provision’, or if there were a federal legislative sentencing scheme which was ‘complete upon its face’ and could ‘be seen to have left no room’ for the state law.[36] He then stated:

Part 1B of the Crimes Act deals with the sentencing, imprisonment and release of federal offenders. Division 2 (ss 16A-16D) deals with general sentencing principles. In particular, ss 16A and 16B refer to matters to which a court, sentencing a person for a federal offence, must have regard. The actual decision in El Karhani was that those matters are not comprehensive, and that Pt 1B is not a code. In particular, it makes no reference to general deterrence, a matter so obviously relevant to sentencing that the statement of matters to which regard must be had is manifestly incomplete.
…
In El Karhani, the Court of Criminal Appeal decided that the sentencing principles stated in Pt 1B were not comprehensive; they did not set out to cover the field. [37]

[35](2004) 218 CLR 174.

[36]Putland (2004) 218 CLR 174, 179–180 [7], citing R v Gee (2003) 212 CLR 230, 254 [62]. See also at 189 [41] per Gummow and Heydon JJ.

[37]Putland (2004) 218 CLR 174, 181 [12], 184 [20].

Gummow and Heydon JJ, with whom Callinan J agreed, similarly dismissed the proposition that pt 1B ‘covered a field’ as an exhaustive statement of the will of the Commonwealth Parliament with respect to sentencing for federal offences.[38] Nonetheless, they observed that in some instances, pt 1B was intended to make exhaustive provision on particular subjects, an example of which was pt 1B div 4.[39] In support of this proposition, they cited the Explanatory Memorandum to the Crimes Legislation Amendment Bill (No 2) 1989 (Cth), which introduced pt 1B of the Crimes Act 1914 (Cth) and stated that pt 1B div 4 established ‘a separate regime for fixing federal non-parole periods rather than relying on applied State or Territory legislation’.[40]
[38]Putland (2004) 218 CLR 174, 193 [53], 215 [121].
[39]The relevant portions of pt 1B div 4 are set out at [26]–[28] above.
[40]Putland (2004) 218 CLR 174, 193 [52].

In the same year, the plurality[41] in Johnson v The Queen[42] stated that ‘except to the extent stated in ss 16A and 16B of the [Crimes Act 1914 (Cth)], general common law and not peculiarly local or state statutory principles of sentencing are applicable’ to the sentencing of federal offenders.[43] This was said to follow from the use of the words ‘of a severity appropriate in all the circumstances of the offence’ in s 16A(1) and the introductory words ‘[i]n addition to any other matters’ to s 16A(2) of the Act.[44] On this basis, the plurality accepted that the principle of ‘totality’, as expressed in Mill v The Queen,[45] was accommodated by s 16A.[46]
[41]Gummow, Callinan and Heydon JJ.
[42](2004) 205 ALR 346 (‘Johnson’).
[43]Johnson (2004) 205 ALR 346, 353 [15] (emphasis added).
[44]Johnson (2004) 205 ALR 346, 353 [15].
[45](1988) 166 CLR 59.
[46]Johnson (2004) 205 ALR 346, 352–8 [14]–[15], [18]–[22], [25]–[35].

In Hili v The Queen,[47] the plurality[48] affirmed the reasons in Johnson and stated:

[Section] 16A of the Crimes Act, on its proper construction, accommodates the application of common law principles of sentencing, such as the principle of ‘totality’ discussed in Mill v The Queen. Section 16A accommodates the application of that and some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression ‘of a severity appropriate in all the circumstances of the offence’ used in s 16A(1), as well as some of the expressions used in s 16A(2), such as ‘the need to ensure that the person is adequately punished for the offence’ (s 16A(2)(k)). But s 16A does not permit the making of generalisations across all forms of federal offence about how individual sentences are to be fixed. To attempt such a generalisation would depart from the injunction that the sentencing court ‘must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence’ [scil the particular offence for which a sentence is to be imposed]. [49]

[47](2010) 242 CLR 520 (‘Hili’).

[48]French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[49]Hili (2010) 242 CLR 520, 528 [25] (citations omitted) (emphasis in original).

The plurality also affirmed the reasons in Putland, and stated:

[Part] IB of the Crimes Act is not ‘an exhaustive statement of the will of the Parliament with respect to sentencing for federal offences’. As noted earlier, there are some powers given by State or Territory law in relation to the sentencing of offenders that are picked up and applied by s 68(1) of the Judiciary Act when a court, exercising federal jurisdiction, sentences a federal offender. So, for example, in Putland, the Court held that s 68(1) picked up a provision of Northern Territory legislation relating to the imposition of an aggregate term of imprisonment.
In addition, there are respects in which Pt IB of the Crimes Act itself refers to
and picks up State and Territory legislation affecting service of a sentence of imprisonment.[50]

[50]Hili (2010) 242 CLR 520, 536 [51]–[52] (citations omitted).

Nonetheless, the plurality held that State and Territory provisions relating to the fixing of the period an offender must serve in prison before being released, or becoming eligible for release, were not picked up by s 68(1) of the Judiciary Act. This was because pt 1B div 4 of the Crimes Act 1914 (Cth) did not expressly engage any State or Territory law which prescribed how non-parole periods were to be fixed and made exhaustive provision on the subject of the fixing of non-parole periods and the making of recognizance release orders for federal offenders.[51] In support of this conclusion, the plurality relied on the reasons of Gummow and Heydon JJ, with whom Callinan J agreed, in Putland, which are set out at [38] above.[52]
[51]Hili (2010) 242 CLR 520, 527–8 [22], 536 [52].
[52]Hili (2010) 242 CLR 520, 536 [52].

In Bui v Director of Public Prosecutions (Cth),[53] the High Court considered whether the principle of double jeopardy, as it applied to the resentencing of offenders by the Court of Appeal on appeals brought by the Commonwealth Director of Public Prosecutions, was relevant to the sentencing of federal offenders.
[53](2012) 244 CLR 638 (‘Bui’).

The Court stated that s 16A of the Crimes Act 1914 (Cth) applied ‘of its own force’ to the sentencing of federal offenders.[54] The Court cited Johnson and Hili in support of the proposition that, on its proper construction, s 16A accommodated the application of some common law principles, including general deterrence,[55] proportionality[56] and totality.[57] The Court further stated that s 16A was able to accommodate judicially-developed sentencing principles which gave content to the expression ‘of a severity appropriate in all the circumstances of the offence’, in s 16A(1) and expressions such as ‘the need to ensure that the person is adequately punished for the offence’ which appears in s 16A(2)(k).[58]
[54]Bui (2012) 244 CLR 638, 650 [18].
[55]Bui (2012) 244 CLR 638, 650–1 [18]. The Court cited El Karhani (1990) 21 NSWLR 370, 378 in relation to general deterrence.
[56]Bui (2012) 244 CLR 638, 650–1 [18]. The Court cited Wong v The Queen (2001) 207 CLR 584, 597 [31], 609-10 [71] (‘Wong’) in relation to proportionality.
[57]Bui (2012) 244 CLR 638, 650–1 [18]. The Court cited Johnson (2004) 205 ALR 346, 356–8 [25]–[34] in relation to totality.
[58]Bui (2012) 244 CLR 638, 651 [18].

Nonetheless, the Court rejected the proposition that the principle of double jeopardy was accommodated by s 16A on the following relevant bases:

(f) The appellant contended that the principle of double jeopardy was one of the ‘other matters’ which ‘the court must take into account’ under s 16A(2) and that it was a matter that operated as an automatic discount of the sentence to be imposed. In dismissing this contention, the Court stated:

Application of an automatic discount would not be consistent with the requirement of s 16A(1) that a sentence be appropriate in its severity in all the circumstances of the case. And to read s 16A in the manner submitted by the appellant would be to gloss the text impermissibly by introducing a notion for which there is no textual foundation. It would go well beyond giving relevant content to any of the expressions found in the section.[59]

(g) The terms of s 16A, in particular those of sub-s (2), were addressed to matters affecting sentencing in all courts exercising federal jurisdiction and drew no distinction between the matters to be taken into account by a sentencing court at first instance or by a court on appeal.[60]

(h) Section 16A(2)(m) referred to the ‘mental condition’ of the offender as one of the matters the sentencing court must take into account. This was a reference to the actual mental condition of the offender which must be established by evidence.[61] However, the principle of double jeopardy is based on the presumed distress and anxiety of an appellant occasioned by having to stand for sentence again.[62] In the case before the Court, there was evidence that the appellant suffered actual anxiety and distress as a result of the institution of the appeal by the Commonwealth Director of Public Prosecutions. In these circumstances, s 16A left no room to accommodate the principle of double jeopardy.[63]

[59]Bui (2012) 244 CLR 638, 651 [19].

[60]Bui (2012) 244 CLR 638, 651 [20].

[61]Bui (2012) 244 CLR 638, 651–2 [21]–[23].

[62]Bui (2012) 244 CLR 638, 648 [10].

[63]Bui (2012) 244 CLR 638, 652 [25].

The Court went on to consider the applicability of the principle of double jeopardy to sentencing for federal offences pursuant to s 80 of the Judiciary Act. The Court stated that, as that principle is judge-made law, if it were to be ‘picked up’ for the purpose of sentencing for federal offences, ‘it would be via s 80 of the Judiciary Act’.[64] That section only permitted the adoption of the common law (subject to any statutory modification by the relevant State or Territory) if the laws of the Commonwealth ‘are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment’. This language was said to be ‘apt to speak of a gap in Commonwealth statute laws’.[65] However, in the case of the principle of double jeopardy, as s 16A(2)(m) referred to the actual ‘mental condition’ of the offender whereas the principle was based on presumed anxiety and distress, there was no gap or omission in Commonwealth statute law such as to bring s 80 into play. Thus, the Court stated, ‘[r]e-sentencing is able to occur and will occur according to s 16A without reference to that presumed state of affairs’.[66]
[64]Bui (2012) 244 CLR 638, 653 [26].
[65]Bui (2012) 244 CLR 638, 653 [27].
[66]Bui (2012) 244 CLR 638, 653 [28].

Following Bui, in order for a state common law sentencing principle to apply to sentencing for federal offences, it must be ‘accommodated’ by s 16A of the Crimes Act 1914 (Cth) or be ‘picked up’ by s 80 of the Judiciary Act. On the other hand, the applicability of state statutory provisions dealing with sentencing depends on whether they are ‘picked up’ by a Commonwealth statutory provision such as s 68(1)(c) of the Judiciary Act.

Case law on consistency in sentencing of federal offenders

In Leeth v Commonwealth,[67] the High Court upheld the validity of a provision of the Commonwealth Prisoners Act 1967 (Cth) which permitted the non-parole period for federal offenders to be fixed under state and territory laws, with the result that non-parole periods could vary significantly according to the jurisdiction in which a sentence was imposed.[68] Mason CJ, Dawson and McHugh JJ observed that there was no general requirement in the Constitution that federal laws should have a uniform operation throughout the Commonwealth.[69] They relevantly stated:

It is obviously desirable that, in the sentencing of offenders, like offenders should be treated in a like manner. But such a principle cannot be expressed in absolute terms. Its application requires the determination of the categories within which equal treatment is to be measured. Its application in Australia is necessarily upon a State by State basis, for it has long been recognized that sentencing practices may not be uniform from State to State but may be affected by local circumstances. Of course, with many offences, particularly federal offences, local circumstances may, under State sentencing practices, have no bearing upon the appropriate sentence and it may be proper to have regard to sentences imposed elsewhere in Australia.
…
The sentencing judge may … have regard to the sentences imposed in other States in order to achieve as far as possible a measure of consistency.[70]

[67](1992) 174 CLR 455 (‘Leeth’).

[68]Section 29 of the Crimes Legislation Amendment Act (No 2) 1989 (Cth) repealed the Commonwealth Prisoners Act 1967 (Cth) and pt 1B div 4 of the Crimes Act 1914 (Cth) was added to provide for the fixing of a non-parole period for federal offenders in accordance with those provisions. See [26]–[29], [38], [42] above.

[69]Leeth (1992) 174 CLR 455, 467.

[70]Leeth (1992) 174 CLR 455, 470–1 (citations omitted).

Brennan J similarly stated that the sentencing discretion to be exercised in respect of federal offences need not lead to the imposition of uniform sentences in all parts of Australia. His reasoning, however, gave greater weight to the relevance of ‘local factors’ in the sentencing of federal offenders by state courts:

It is of the nature of the judicial power to sentence that its exercise is governed by the circumstances of each case unless statute eliminates the sentencing discretion. The exercise of the sentencing discretion is affected by the particular factors relevant to the instant case and the instant offender. Those factors may vary from locality to locality: for example, an offence may be prevalent in one locality and rare in another, and sentences in those localities for offences of the same kind and seriousness may properly reflect those factors. The sentencing principles are uniform, but their application may require weight to be given to local factors. Where there are no local factors to be taken into account, a broad consistency is to be expected in the sentences imposed for like conduct committed in breach of the same law.[71]

[71]Leeth (1992) 174 CLR 455, 476.

In Putland, after referring to the Explanatory Memorandum to the Crimes Legislation Amendment Bill (No 2) 1989 (Cth), Gleeson CJ observed that ‘notably missing’ from its statement of purposes was any reference to an overriding or general purpose of providing complete uniformity of treatment as between federal offenders.[72] He further noted that s 68 of the Judiciary Act ‘reflects a permissible legislative choice, and one which, for a century, has resulted in some differences in the sentencing of federal offenders according to where they are sentenced’.[73] Similarly, Gummow and Heydon JJ, with whom Callinan J agreed, observed that Leeth was authority for the proposition that ‘specific restrictions and implications arising from the federal structure apart, there is no implication to be drawn from the Constitution that federal laws must operate uniformly throughout the Commonwealth’.[74] They therefore concluded that the laws of the Commonwealth did not mandate a single sentencing outcome in respect of any particular federal offence.[75]
[72]Putland (2004) 218 CLR 174, 185 [22].
[73]Putland (2004) 218 CLR 174, 185 [25] (citations omitted).
[74]Putland (2004) 218 CLR 174, 195 [59].
[75]Putland (2004) 218 CLR 174, 195 [59].

In Hili,[76] the High Court rejected a submission that a mathematical approach should be adopted to fixing the period to be served in custody for a federal offence in the name of ensuring consistency. The plurality cited with approval the reasons of Gleeson CJ in Wong v The Queen,[77] in which he stated that the administration of criminal justice should be systematically fair, and that involved, amongst other things, ‘reasonable consistency’.[78] The plurality stated that the consistency that was to be sought was consistency in the application of the relevant legal principles, which required consistency in the application of pt IB of the Crimes Act 1914 (Cth).[79] What was meant by the pursuit of ‘reasonable consistency’ was the treatment of like cases alike and different cases differently.[80] The plurality relevantly stated that the first and paramount means of achieving consistency in federal sentencing was to apply the relevant statutory provisions. Those provisions had to be applied without being distracted or influenced by other and different provisions that would be engaged if the offender concerned were not a federal offender.[81] The plurality then addressed issues of comity, stating:

In dealing with appeals against sentences passed on federal offenders, whether the appeal is brought by the offender or by the prosecution, the need for consistency of decision throughout Australia is self-evident. It is plain, of course, that intermediate courts of appeal should not depart from an interpretation placed on Commonwealth legislation by another Australian intermediate appellate court, unless convinced that that interpretation is plainly wrong. So, too, in considering the sufficiency of sentences passed on federal offenders at first instance, intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts, unless convinced that the decision is plainly wrong.[82]

[76](2010) 242 CLR 520.

[77](2001) 207 CLR 584.

[78]Hili (2010) 242 CLR 520, 535 [47] quoting Wong (2001) 207 CLR 584, 591 [6].

[79]Hili (2010) 242 CLR 520, 527 [18], 535 [49].

[80]Hili (2010) 242 CLR 520, 535 [49].

[81]Hili (2010) 242 CLR 520, 536 [50].

[82]Hili (2010) 242 CLR 520, 538 [57] (citations omitted).

This Court has emphasised the importance of national consistency[83] and the principles of comity[84] in the sentencing of federal offenders.[85]
[83]Nguyen v The Queen (2011) 31 VR 673, 681 [30], 698–9 [104]; R v Ngui (2000) 1 VR 579, 583 [12].
[84]DPP (Cth) v D'Alessandro (2010) 26 VR 477, 483 [21].
[85]See also Sir Guy Green, ‘The Concept of Uniformity in Sentencing’ (1996) 70 Australian Law Journal 112; Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006); Justice Mark Weinberg, ‘The Labyrinthine Nature of Federal Sentencing’ (2012) 11 Judicial Review 47, in relation to inter-jurisdictional consistency in the sentencing of federal offenders.

Parties’ submissions on applicability of CCO statutory regime to federal offenders

The Crown accepted that the CCO regime in the Sentencing Act could be applied in the sentencing of federal offenders. However, it submitted that certain provisions of that Act could not apply to the sentencing of those offenders.

The first of the provisions of the Sentencing Act which the Crown submitted could not apply to the sentencing of federal offenders was s 44. This authorises a ‘combination sentence’ whereby a CCO can be added to a term of imprisonment. The Crown submitted that such a combination sentence could not be imposed for the same federal offence under pt 1B of the Crimes Act 1914 (Cth) and that, to the extent that s 44(1) was inconsistent with pt 1B, s 44(1) was inapplicable in the federal sphere by virtue of the operation of s 20AB(3) of the Crimes Act 1914 (Cth).

There were two alternative limbs to the Crown’s submission. The first limb was that imprisonment and a CCO were alternative sentences which could not be combined for a single offence because of the principle that an offender could only be the subject of a single sentence for an offence. The second limb was that a sentencing disposition which combined imprisonment and a CCO would be contrary to Putland and Hili.

In relation to the first limb, the Crown relied upon the fact that s 16A of the Crimes Act 1914 (Cth) uses the word ‘sentence’ in the singular, which was said to reflect the common law principle that an offender cannot be punished twice for the same offending conduct. According to the Crown, a CCO constituted a separate form of punishment and was thus a separate sentence to a sentence of imprisonment. On the other hand, a sentence of imprisonment for a specified period followed by a period of ‘weekend detention’[86] was said to constitute a single sentence, namely imprisonment, divided into two temporal forms. The Crown contended that a sentence that combined two separate sentencing dispositions — such as imprisonment and a CCO — could only be imposed if this was expressly authorised by federal law. This proposition was said to be supported by authorities which held that a fine could not be imposed in combination with a conditional discharge without conviction.[87]
[86]Periodic detention orders, which were commonly referred to as ‘weekend detention’ orders, were a sentencing option available in New South Wales. They were abolished by the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW).
[87]The Crown relied upon DPP (Cth) v Ede (2014) 289 FLR 82, 89–90, [34]. In that case, the New South Wales Court of Appeal held that the power of a court under s 19B of the Crimes Act 1914 (Cth) to impose a condition on an offender who is discharged without conviction did not extend to the imposition of a community service order, as such an order could only be imposed on a person after he or she is convicted. The Court of Appeal cited R v Ingrassia (1997) 41 NSWLR 447, 450–1 and Federal Commissioner of Taxation v Doudle (2005) 195 FLR 76, 83 [26], which held that the relevant legislative provision did not permit the combination of a conditional discharge and punishment in the form of a fine.

According to the Crown, this proposition was also supported by statutory provisions which expressly permit a sentence to comprise more than one sentencing disposition: such provisions would be unnecessary, so it was said, if such sentences could be imposed in the absence of express statutory authority. The Crown gave as examples of such statutory provisions s 44(1) of the Sentencing Act — which permits the combination of imprisonment and a CCO — and ss 302.4(1) and 307.6(1) of the Criminal Code (Cth) — under which the appellant was convicted in the present case — which expressly permit the combination of imprisonment and a fine. The Crown contended that s 20AB(4) of the Crimes Act 1914 (Cth), which empowers a sentencing court to make ancillary orders when imposing a sentence, also supported its submission. This was said to be because that provision would be unnecessary if the court could have made such orders in the absence of express statutory authority.

The Crown submitted that, as neither the Crimes Act 1914 (Cth) nor any other federal law expressly authorised a combined sentence of imprisonment and a CCO, the imposition of such a sentence would be contrary to pt 1B of that Act.

In relation to the second limb of its submission that a federal offender could not be sentenced to a term of imprisonment combined with a CCO, the Crown contended that divs 4 and 5 of pt 1B of the Crimes Act 1914 (Cth) left no scope for such a sentence. The Crown relied on the statements of Gummow and Heydon JJ in Putland[88] and the plurality in Hili[89] to the effect that pt 1B div 4 dealt exhaustively with the subject of federal non-parole periods and the making of recognizance release orders for federal offenders. For the same reason, it was said that s 20(1)(b) — and, more broadly, pt 1B div 5 in which it was contained — was also exhaustive on the subjects of the conditions that could be attached to a recognizance release order and release from custody. According to the Crown, as both divs 4 and 5 of pt 1B exhaustively provided for the release from custody of federal offenders — including the circumstances in which, and the conditions upon which, such release could occur — they left no scope for the operation of any state provision that deals with those matters. It followed, so it was said, that there was no room for a CCO — which was a sentence to be served in the community subject to compliance with various conditions —to be combined with a term of imprisonment in the manner provided by s 44 of the Sentencing Act.
[88]See [38] above.
[89]See [42] above.

The Crown accepted that a CCO could be imposed in addition to a sentence of imprisonment for multiple federal charges, although this was said to raise the difficulty that, if all of of the charges related to offending of equal seriousness, it would arguably be inappropriate for one charge to attract a sentence of imprisonment, whereas the others attracted a CCO. The Crown conceded that, in the present case, the appellant had been charged with two different offences of different magnitudes and, consequently, this difficulty did not arise.

Other provisions of the CCO regime in the Sentencing Act which the Crown submitted did not apply to the sentencing of federal offenders were as follows:

(i) Under ss 83AD(1) and 83AS(1)(c) of the Sentencing Act, the consequences of a breach of a CCO could include conviction for a separate offence punishable by 3 months’ imprisonment, cancellation of the CCO and resentencing for the original offence. By contrast, under s 20AC(6) of the Crimes Act 1914 (Cth), such consequences could include a pecuniary penalty not exceeding 10 penalty units, revocation of the CCO and resentencing for the original offence or no action being taken. Accordingly, a federal offender who breaches a CCO is not guilty of a separate offence punishable by 3 months’ imprisonment.

(j) Section 5(4C) of the Sentencing Act, which precludes a sentencing court from sentencing an offender to a term of imprisonment unless the sentencing purposes cannot be achieved by a CCO, does not apply to federal offenders. This is because the provisions of pt 1B of the Crimes Act 1914 (Cth) which set out when one sentencing disposition should be preferred over another covered the field and left no room for the operation of s 5(4C).

The appellant submitted that there was nothing in the Crimes Act 1914 (Cth) that supported the proposition that a sentence could not involve a combination of imprisonment and a CCO. In particular, he drew attention to s 20AB(4)(c) of that Act, which provided that where a court passed a sentence or made an order under s 20AB(1), it may also ‘make any other order that the court is empowered to make’. This language was said to encompass the possibility of a combination sentence. He further noted that, in any case, the combination of a CCO with a term of imprisonment did not constitute the imposition of two separate sentences, but instead was a means of structuring of a single sentence.

The appellant also submitted that the language of s 17A(1) of the Crimes Act 1914 (Cth) — which required a sentencing court, before passing a sentence of imprisonment, to be ‘satisfied that no other sentence is appropriate in all the circumstances of the case’ — was entirely consistent with the language of s 5(3), (4), (4B), (4C), (5), (6) and (7) of the Sentencing Act.

Parties’ submissions on the application of Boulton to federal offenders

The Crown relied on the differences between the provisions of the Sentencing Act dealing with CCOs and the provisions of the Crimes Act 1914 (Cth) that are summarised at [54] to [61] above in support of the proposition that Boulton could not apply to the sentencing of federal offenders under pt 1B of the Crimes Act 1914 (Cth). This was said to be because Boulton relied on the CCO sentencing scheme in the Sentencing Act, key features of which were not applicable to pt 1B of the Crimes Act 1914 (Cth).

According to the Crown, the differences between the provisions of the Sentencing Act and the Crimes Act 1914 (Cth) that apply to CCOs are significant for the following reasons:

(k) First, the power to combine a CCO with a term of imprisonment pursuant to s 44(1) of the Sentencing Act was an important feature which underpinned the reasoning in Boulton. That feature is absent in relation to the sentencing of federal offenders for a single offence for the reasons set out at [54] to [60] above and thus undermines the applicability of Boulton in the federal sphere.

(l) Secondly, the conclusion in Boulton that a CCO was punitive relied in part on the fact that, under s 83AD(1) of the Sentencing Act, a breach of a CCO could lead to conviction for a separate offence and imprisonment for 3 months. However, as that provision and s 83AS(1)(c) are displaced by s 20AC(6) of the Crimes Act 1914 (Cth), this punitive feature of a CCO does not apply to Commonwealth offences.

(m) Thirdly, the approach set out in Boulton was informed by the significant changes to the Victorian sentencing regime that were brought about by the abolition of suspended sentences, ICOs and CBOs and the advent of CCOs as a new sentencing option. The reference in Boulton to the ‘dramatically change[d] … sentencing landscape’ in Victoria, which underpins the decision, is to these changes. As recognizance release orders — which can be used to achieve the same result as a suspended sentence — are available as an alternative to a CCO under pt 1B of the Crimes Act 1914 (Cth), part of the underlying rationale of the approach in Boulton has no application to the sentencing of federal offenders.

(n) Fourthly, s 5(4C) of the Sentencing Act strongly influenced the reasoning in Boulton. As s 5(4C) does not apply to the sentencing of federal offenders for the reasons set out at [61(b)] above, that reasoning cannot be transposed to the federal sphere.

The Crown contended that the Court’s reasons in Boulton were based on the provisions of pt 3A of the Sentencing Act viewed as a ‘complete package of provisions’. As some parts of that package are not applicable to federal offences, it followed, so it was said, that the Court’s reasons in Boulton can have no application to those offences.

As an example of the effect of an inconsistency between state and federal sentencing principles, the Crown cited Tyler v The Queen.[90] In that case, the New South Wales Court of Criminal Appeal held that the state-based principle that a sentence may be discounted by reference to the utilitarian value of an offender’s guilty plea — in the sense that such a plea has saved the community the expense of a contested hearing — had no application for the purposes of sentencing federal offenders in New South Wales. Instead, such offenders could be given a discount if a plea of guilty evinced a willingness to facilitate the course of justice.[91] This approach was favoured by the majority of the High Court in Cameron v The Queen[92] which involved an offender who was sentenced under the Sentencing Act 1995 (WA). In R v Sharma,[93] the New South Wales Court of Criminal Appeal held that the approach in Cameron was not applicable to sentencing of offenders under New South Wales law because the Crimes (Sentencing Procedure) Act 1999 (NSW) differed from the Sentencing Act 1995 (WA). However, that Court subsequently held in Tyler that the approach in Cameron was applicable to the sentencing of federal offenders in New South Wales because the Crimes (Sentencing Procedure) Act 1999 (NSW) did not apply to the sentencing of such offenders.
[90](2007) 173 A Crim R 458 (‘Tyler’).
[91]Tyler (2007) 173 A Crim R 458, 476–7 [110]–[114].
[92](2002) 209 CLR 339, 343–4 [11]–[15] (‘Cameron’).
[93](2002) 54 NSWLR 300, 307–312 [32]–[53], 314–16 [62]–[68].

The Crown submitted that, while state common law principles are capable of being made applicable to the sentencing of federal offenders in accordance with the principles set out at [35] to [47] above, a decision of a state court which espoused a particular sentencing philosophy or approach was not so capable. The Crown characterised the guideline judgment in Boulton as a ‘philosophy or approach to sentencing’ which was informed by a perceived need to promote greater use of the CCO regime and, as such, was incapable of being picked up by operation of the Judiciary Act. The Crown submitted that the philosophy or approach to sentencing of federal offenders was prescribed in pt 1B of the Crimes Act 1914 (Cth), and there was nothing in that part which would permit state intermediate appellate courts to dictate a general approach or philosophy to sentencing for federal offending.

The Crown placed particular emphasis on what it described as this Court’s ‘direction’ in Boulton as to the proper question that a sentencing court should ask itself, namely: ‘Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?’ This direction was said to be inconsistent with the terms of s 16A(1) of the Crimes Act 1914 (Cth), which required the imposition of a sentence that was ‘of a severity appropriate in all the circumstances of the offence’.

The Crown accepted that a feature of the principle of parsimony, which treats imprisonment as a sentencing disposition of last resort, found expression in s 17A(1) of the Crimes Act 1914 (Cth) and consequently applied to federal offenders. Nonetheless, the Crown contended that, as this Court’s direction in Boulton was addressed specifically towards the use of a CCO in preference to imprisonment, it constituted a different principle to that enshrined under s 17A(1) of the Crimes Act 1914 (Cth).

The appellant submitted that Boulton applied to the sentencing of federal offenders with necessary modifications arising from the fact that, by virtue of ss 20AB and 20AC of the Crimes Act 1914 (Cth), not all the provisions of pt 3A of the Sentencing Act apply to the imposition of a CCO on a federal offender.[94] He also submitted that the general principles outlined in the guideline judgment had application to the sentencing of federal offenders because those principles were not inconsistent with pt 1B of the Crimes Act 1914 (Cth).
[94]See [26]–[31] above.

The appellant contended that a comparison of the language of Boulton and its statutory context against the language of pt 1B of the Crimes Act 1914 (Cth) revealed minimal differences. In support of this proposition, the appellant made the following submissions:

(o) It was misconceived to draw a distinction between the guideline judgment and the language of s 16A(1) of the Crimes Act 1914 (Cth) because the language of s 16A(1) was ‘unhelpful’ in that it merely reiterated the task of a court in exercising the sentencing discretion.

(p) In any case, the language of s 16A(1) of the Crimes Act 1914 (Cth) was virtually the same as that employed in s 5(1)(a) of the Sentencing Act.

(q) Under s 20AC(6) of the Crimes Act 1914 (Cth), breach of a CCO could result in the imposition of a pecuniary penalty or the revocation of the original sentence and the resentencing of the offender. It was therefore misleading to submit that the Court’s reliance in Boulton on the punitive nature of a CCO had no application to federal offences.

(r) Section 16A(3) of the Crimes Act 1914 (Cth) — which obliged a sentencing court, when determining whether to impose a CCO, to have regard to ‘the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that … order’ — required consideration of all of the factors relevant to a CCO, including its punitive nature and its rehabilitative and deterrent aspects, that had been raised in Boulton. Section 16A(3) was also said to be similar to s 48A of the Sentencing Act.

The appellant listed a number of principles that he said were applicable in both the State and Federal sphere without alteration. These included: proportionality, general deterrence, the effect on the victim, cooperation, specific deterrence, just punishment and character. By analogy, the appellant contended that the fact that there were minor inconsistencies between the language of Boulton and Commonwealth sentencing principles or the provisions in pt 1B of the Crimes Act 1914 (Cth) did not mean that the guideline judgment had no application at all to the sentencing of federal offenders. On the contrary, so it was said, Boulton was applicable but allowance for the inconsistencies had to be made in its application.

Parties’ submissions on consistency in the sentencing of federal offenders

The Crown submitted that Hili requires sentencing courts in Victoria to have regard to sentencing principles for federal offences that had been developed in other cases, including cases decided in other jurisdictions. This requirement was said to extend to principles dealing with the types of federal offences for which the appropriate sentence was a term of imprisonment or where general deterrence was the paramount sentencing consideration. According to the Crown, these principles could not be modified by a change of sentencing options in one jurisdiction or a change of philosophy towards sentencing in that jurisdiction. It followed, so it was said, that the observations in Boulton about re-consideration of traditional conceptions of imprisonment as the only appropriate punishment for serious offences were confined to sentencing in Victoria for Victorian offences and had no application to the sentencing of federal offenders.

The appellant noted that the authorities had never required total uniformity of sentences and accepted that local factors may affect the sentence imposed on a federal offender.[95] In the appellant’s submission, Hili[96] stood for no more than the proposition that courts should pursue consistency in the application of relevant legal principles when sentencing federal offenders but not consistency in the sense of a numerical or mathematical equivalence. The appellant also relied on the reasons of Maxwell P in Pham v The Queen.[97] In the light of the punitive effect of a CCO, the appellant contended that the sentencing principles enunciated in Boulton did not constitute a substantial departure from sentencing principles in other states and therefore would not undermine the requirement for consistency in the sentencing of federal offenders between states. Indeed, the appellant submitted that the applicability of Boulton to federal offenders may promote consistency, at least in Victoria.
[95]In support of this proposition, the appellant cited Putland (2004) 218 CLR 174; Leeth (1992) 174 CLR 455.
[96](2010) 242 CLR 520.
[97][2014] VSCA 204. Cf the reasons of Osborn and Kyrou JJA. On 15 May 2015, the High Court granted special leave to appeal in Pham.

The appellant identified the following sentencing options in other Australian jurisdictions which were said to be equivalent to CCOs:

(s) home detention, intensive correction orders and community service orders in New South Wales;[98]
[98]Crimes (Sentencing Procedure) Act 1999 (NSW) ss 6, 7, 8.

(t) community service orders and intensive correction orders in Queensland;[99]
[99]Penalties and Sentences Act 1992 (Qld) pt 5 div 2, pt 6.

(u) community service and supervision in South Australia;[100]
[100]Criminal Law (Sentencing) Act 1988 (SA) pt 6.

(v) community service conditions as part of good behaviour orders in the Australian Capital Territory;[101]
[101]Crimes (Sentencing) Act 2005 (ACT) ch 6 pt 6.1.

(w) community work orders, community based orders, home detention orders and community custody orders in the Northern Territory;[102]

(x) community based orders, intensive supervision orders and conditional suspended imprisonment in Western Australia;[103] and

(y) community service orders in Tasmania.[104]

[102]Sentencing Act (NT) pt 3 div 4, pt 3 div 4A, pt 3 div 5 sub-div 2, pt 3 div 5 sub-div 2A.

[103]Sentencing Act 1995 (WA) pt 9, pt 10, pt 12.

[104]Sentencing Act 1997 (Tas) pt 4.

The appellant submitted that if there were significant differences between the above sentencing options and CCOs, they were the result of the availability of CCOs rather than Boulton.

Analysis: can a CCO be combined with imprisonment for a single federal offence?

It was common ground on the appeal that, where an offender is convicted of one or more Victorian offences, a CCO can be imposed in conjunction with a term of imprisonment of 2 years or less for that offence or all of those offences. It was also common ground that where a federal offender is being sentenced for more than one offence, a CCO can be imposed for one offence and a term of imprisonment can be imposed for another offence, resulting in a combination of the two sentencing dispositions for the overall offending. By contrast, as we have already noted, the Crown submitted that, where a federal offender is being sentenced for a single offence, a single sentence must be imposed and thus a CCO cannot be combined with any term of imprisonment.

As the appellant in the present case pleaded guilty to two federal offences, the Crown acknowledged that it was possible for a CCO to be imposed for one of the offences and for a term of imprisonment to be imposed for the other offence. As a result of this acknowledgment, it is not necessary for us to decide whether it is possible to combine a CCO with a term of imprisonment of two years or less for a federal offender who is convicted of a single offence. However, as the question of the availability of such a combination sentence is relevant to the applicability of Boulton to federal offenders, we will consider it.

We agree with the Crown’s submission that the observations in Boulton were based on all the features of pt 3A of the Sentencing Act viewed as a ‘complete package of provisions’. We also agree that, as important features of that ‘package’ are not applicable to the sentencing of federal offenders, Boulton can have no application in the federal sphere. The features of the ‘package’ can be described accurately as ‘peculiarly local or state statutory principles of sentencing’ which, according to Johnson,[128] are inapplicable to the sentencing of federal offenders.[129] We reject the appellant’s submission that Boulton can somehow be treated as divisible, with some of its observations applying to the sentencing of federal offenders and some of them being inapplicable.
[128](2004) 205 ALR 346.
[129]See [39] above.

It follows from the above discussion that, even if it is assumed that the guideline judgment is part of the ‘common law in Australia’, it is inconsistent with ‘the laws of the Commonwealth’, namely the Crimes Act 1914 (Cth).[130]
[130]In Wong (2001) 207 CLR 584, 597–8 [31]–[32], 609–11 [71]–[73], 613–17 [80], [83]–[88], 627–9 [119]–[124], 631–5 [129]–[140], 638 [149], 642–4 [165]–[168], the High Court expressed reservations about guideline judgments for the sentencing of federal offenders.

Further, having regard to s 20AB of that Act and the provisions of pt 3A of the Sentencing Act that it expressly ‘picks up’, we are not satisfied that the laws of the Commonwealth contain a gap that needs to be filled by the guideline judgment.[131] This conclusion is supported by the provisions of the Crimes Act 1914 (Cth) discussed above which we stated left no room for the application of the guideline judgment.
[131]See [43]–[47] above.

For the above reasons, neither s 16A of the Crimes Act 1914 (Cth) nor s 80 of the Judiciary Act provides a legal foundation for the application of the guideline judgment to the sentencing of federal offenders.

The above discussion indicates that, if the guideline judgment were applicable to the sentencing of federal offenders in Victoria, there is potential for many such offenders to be the subject of a CCO rather than being imprisoned and thus for significant inconsistencies to arise between Victoria and other jurisdictions in relation to the nature of the punishment that is imposed on such offenders. None of the cases that deal with the desirability of reasonable national consistency and comity in the sentencing of federal offenders have held that a sentencing principle that has been adopted in a particular jurisdiction cannot be applied to the sentencing of such offenders if such application would result in disparity in sentencing between that and other jurisdictions. Accordingly, we have not relied on the potential for inconsistency that the application of the guideline judgment would create if it were applied to the sentencing of federal offenders as a basis for supporting our conclusion that the guideline judgment does not apply to the sentencing of federal offenders in Victoria.

This conclusion clearly has the benefit of lessening the potential disparity in the sentencing of federal offenders. However, it must be acknowledged that, where a sentencing court is giving consideration to imposing a CCO on an offender who is convicted of a Victorian offence and a federal offence, it may be seen as anomalous that the guideline judgment can be taken into account in respect of the Victorian offence but not in respect of the federal offence.

It follows from the above that, in considering the questions whether a different sentence should be imposed on the appellant, and, if so, what that sentence should be, this Court must not apply the guideline judgment in Boulton.

We now turn to the issues that are relevant to those questions.

Circumstances of the appellant’s offending

On 26 July 2011, the appellant’s co-offender, Geoffrey Mayer (a pseudonym), took an amount of cocaine that had been imported from the United States to an apartment which was owned by the appellant’s wife, Suzana Atanackovic. Between 14 August 2011 and 22 August 2011, the appellant and Ms Atanackovic were the only people who attended the apartment.

On 24 August 2011, the appellant left Australia on a flight to Singapore.

On 6 September 2011, the police executed a search warrant at the apartment. In the bedroom, the police found approximately 1,500 grams of cocaine in three cryovac bags and 15 bags containing a total of approximately 500 grams of cocaine, which had a purity level of 60 per cent. In the kitchen, the police found two resealable bags containing a total of approximately 65 grams of cocaine, which had a purity level of 35 per cent. During the searches, the police also observed drug trafficking paraphernalia including a home-made press, vacuum seal machine and bags, coffee grinder, electronic scales, numerous clip seal bags and a container of creatine powder. The police seized a total of 1,982.4 grams of cocaine, with a pure weight of 1,194.3 grams, and replaced it with a substitute powder. Later, on 16 September 2011, the police re-entered the apartment, feigned a burglary and removed the substitute powder.

On 1 October 2011, the appellant returned from overseas and, upon becoming aware of the feigned burglary, contacted Mr Mayer, who was in London, and used code words to advise that the cocaine had disappeared. On 11 October 2011, Mr Mayer returned to Melbourne. On 20 October 2011, the appellant met Mr Mayer at a café. Later that day, the appellant telephoned Ms Atanackovic and — using coded words — he advised her that, during the meeting, he and Mr Mayer had discussed sharing responsibility for the lost cocaine.

On a number of occasions between 12 October 2011 and 11 November 2011, the appellant was observed preparing cocaine at the apartment and supplying the drug to different people at various addresses. He met Mr Mayer on a number of occasions during and shortly after this period and on one occasion, 24 October 2011, was observed giving money to Mr Mayer.

The appellant was arrested on 8 November 2012 and gave a no comment record of interview. Search warrants were executed at his home (which was not the apartment) and at a storage unit rented by him on the same day. At his home, the police located 12.4 grams of pure cocaine, clip seal bags, $35,000 in cash and a number of valuable watches. At his storage unit, the police located 68.5 grams of pure cocaine and other items including clip seal bags, digital scales and a grinder.

The appellant was committed for trial on 18 June 2013 following a contested committal hearing and entered a plea of not guilty to the charges at that time. He was arraigned and pleaded guilty to the charges on 3 June 2014.

Circumstances of the appellant

The appellant was born in Belgrade, Serbia, where he attended university. He migrated to Australia at the age of 24 and has consistently worked as a painter and decorator.

The appellant and his wife are unable to have children but had a close relationship with his nephew, Jordan. The appellant was diagnosed with an aggressive form of breast cancer in 2006, for which he successfully underwent surgery within a month of diagnosis. The diagnosis, and knowing that he could not have children, led to depression, for which he self-medicated with cocaine. He had been using between three and five grams of cocaine per week.

On the plea hearing, the appellant relied on two reports by Carla Lechner, clinical and forensic psychologist, dated 29 November 2012 and 22 May 2014. In the more recent report, Ms Lechner diagnosed the appellant with Adjustment Disorder with Depression and Stimulant Use Disorder, which was said to now be in remission. She stated that these disorders were active in the months preceding his arrest. She also made the following relevant observations about the appellant:

(kk) he had acknowledged his role in the offending and had expressed regret, shame and embarrassment;

(ll) he had worked hard at his rehabilitation, having abided by his bail conditions,[132] returned to full-time work, commenced part-time study, remained abstinent from drug use, attended for counselling and re-engaged fully with family life, including caring for Jordan; and

(mm) he had excellent rehabilitation prospects and a favourable prognosis.

[132]The appellant was on bail between 24 January 2013 and 3 June 2014.

A report by Dr Vanda Brink, clinical psychologist, dated 29 May 2014, was tendered in which Dr Brink diagnosed the appellant with Generalised Anxiety Disorder with co-morbid Depression. She opined that the triggers for his anxiety and depression were, among other things, the development of breast cancer and his inability to father a child and that he had used cocaine as a method of self-medicating to stave off anxiety and depression. She also stated that he had acknowledged and taken responsibility for his offending and had expressed deep regret for his behaviour. She described his prognosis for continued rehabilitation as very positive.

Dr Brink also gave evidence on the plea hearing that the appellant had attended 15 counselling sessions with her and that he was extremely remorseful for his actions. She said that incarceration would cause a deterioration in his mental health. This was because, given his long-standing history of pre-morbid vulnerability to anxiety and depression, he was more likely than the average person to suffer mental health deterioration while in custody.

Three reports for the Court Integrated Services Program (‘CISP’) were also tendered. The final report, dated 15 April 2013, indicated that, after being released on bail, the appellant had successfully completed the program and that he had attended all scheduled CISP appointments as well as appointments with external agencies.

Dr Peter Pjesivac, the appellant’s treating doctor and friend, gave evidence that the appellant was extremely remorseful.

The appellant gave evidence about the circumstances of the offending. He admitted that he made something in the order of $15,000 to $20,000 from trafficking cocaine. In relation to the cocaine that Mr Mayer had delivered to the apartment, he said that although he did not know the precise amount, he knew that it was significant. He also said that he did not know that the cocaine was going to be trafficked and believed that Mr Mayer would remove it within a short timeframe.

Judge’s sentencing remarks

To avoid doubly punishing the appellant, the judge quarantined the quantity of cocaine found in the apartment to charge 1. This had the effect that charge 2 only covered the possession, preparation and packaging for sale or distribution of the cocaine located in the appellant’s home and self-storage unit. The offences being so separated, the judge stated that a degree of cumulation was warranted.[133]
[133]Reasons [43].

The judge accepted the Crown’s submission that the appellant’s culpability in respect of charge 1 was high because, while it could not be said that he was going to be involved in the trafficking of the cocaine located in the apartment, he understood that it was to be commercially trafficked by others and he facilitated its safe storage for that purpose.[134] The judge rejected the appellant’s evidence that that he did not realise that the cocaine stored in his bedroom was to be trafficked. The judge described the appellant as the ‘trusted minder’ of the cocaine and said that he was satisfied that the appellant ‘had knowledge and awareness that the cocaine would be sold in the future by somebody, not necessarily [the appellant], but for a commercial purpose’.[135]
[134]Reasons [43].
[135]Reasons [25].

In reference to the quantity of cocaine the subject of charge 1, the judge made three relevant observations. First, when reciting the history of the appellant’s offending, the judge said that the police ‘located and seized a total of 1,982.4 grams of cocaine, with a total pure weight of 1,194.3 grams’.[136] Secondly, in the context of his discussion of the sentencing considerations relevant to Mr Mayer, the judge said that ‘[t]he amount imported was just short of a commercial quantity and something like 600 times the 2 grams which I have referred to’.[137] Thirdly in the context of his discussion of the sentencing considerations relevant to the appellant, the judge said:

The quantity was many times the marketable threshold, as I have already said, and falls just short of a commercial quantity. It was of high purity.[138]

[136]Reasons [7].

[137]Reasons [33].

[138]Reasons [43].

The judge found that the appellant’s offending was motivated by financial gain and concluded that specific and general deterrence were highly relevant considerations in ‘cases such as this’.[139] He accepted that the appellant had a cocaine habit at the time of the offending and was using cocaine to self-medicate, although he stated that, other than explaining why the appellant became involved with Mr Mayer, this did not significantly moderate his culpability.[140]
[139]Reasons [43].
[140]Reasons [45].

The judge accepted the evidence of Dr Pjesivac that the appellant was genuinely remorseful and had gained an appreciation of the harmful effects of drug use. He described the appellant’s time in custody as salutary and was satisfied that the appellant had done all that he could to comply with his various treatment programs to ensure that he remained drug free into the future.[141] He also referred to the appellant’s strong work ethic and strong family relationships, which were said to be relevant to his prospects of rehabilitation.[142]
[141]Reasons [44]–[45].
[142]Reasons [45].

The judge noted that the appellant had no relevant prior convictions and that he had pleaded guilty. The plea justified a reduction in the severity of the sentence to be imposed because it evidenced an acceptance of responsibility, was reflective of some remorse and also had utilitarian value.[143]
[143]Reasons [45]–[46].

Finally, the judge said that he moderated the appellant’s sentence ‘for Verdins principles 5 and 6’.[144]
[144]Reasons [47]. See R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’). Principle 5 is that the existence of the offender’s impaired mental functioning at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. Principle 6 is that where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

Should a different sentence be imposed?
Parties’ submissions on whether a different sentence should be imposed

The appellant submitted that both the individual sentence imposed for charge 1 and the total effective sentence were wholly outside the range of sentencing options available to the judge. In support of this submission, the appellant referred to the matters set out at [138] to [140] above which the judge had taken into account. The appellant emphasised that he had excellent prospects of rehabilitation and noted that there had been a delay of approximately two and a half years between the commission of the offences and sentence, during which period he had demonstrated a strong ability to rehabilitate. He also emphasised that incarceration would be detrimental to his mental health and thus principles 5 and 6 set out in Verdins[145] were enlivened.
[145](2007) 16 VR 269. See n 144.

The appellant tendered three documents, which were said to be relevant to the questions of whether a different sentence should be imposed and what that sentence should be.[146] The first document was a report titled ‘Melbourne Assessment Prison Prisoner Industry Work Report’ which showed that the appellant had an excellent prison work history. The second document was a pathology report which indicated that the appellant’s urine was drug-free. The third document was an updated report by Dr Brink dated 3 May 2015. This report concluded that the appellant had undertaken courses and engaged in other activities in prison which had benefitted him and given him a positive outlook on life, and that his mental health had significantly improved since he was sentenced. Dr Brink’s report also stated that the appellant had taken responsibility for his actions and that he was not at risk of any reoffending.
[146]See Kentwell v The Queen (2014) 313 ALR 451, 462–3 [43]–[44]; Bass v The Queen [2014] VSCA 350, [163]–[164], [174]–[177].

In respect of the seriousness of his offending, the appellant submitted that his criminality on charge 1 was limited to minding the cocaine, or permitting the cocaine to remain at the apartment for a period of approximately six weeks. The appellant emphasised the following:

(nn) the cocaine was placed in the apartment by Mr Mayer;

(oo) there was no evidence that he was involved or knew of the importation;

(pp) the offence was committed between 26 July 2011 and 6 September 2011 (the day that the cocaine was seized), however he was overseas between 24 August 2011 and 1 October 2011;

(qq) the judge accepted that he was not to be involved in trafficking the cocaine; and

(rr) there was no evidence as to his relationship with Mr Mayer and what, if anything, was done with the cocaine in the apartment between its delivery by Mr Mayer and seizure by the police.

The appellant submitted that, in accordance with the principles in Boulton, a CCO may be imposed in an appropriate case for the federal offences with which he was convicted. He also submitted that, irrespective of whether Boulton applies to the present case, an appropriate sentencing disposition was a CCO combined with a term of imprisonment corresponding with time served.

The Crown submitted that the sentence imposed on the appellant was of such a degree of leniency that even if he were now to be sentenced on the basis of the pure amount of cocaine in his possession, the sentence imposed on charge 1 and the total effective sentence could not be said to be wholly outside the range of sentencing options available to the sentencing judge. The Crown argued that, while the quantity of a narcotic could have significance in fixing a sentence, it was not, alone, the chief factor to be taken into account in that process.[147]
[147]In support of this proposition, the Crown relied on Wong (2001) 207 CLR 584, 609 [67]–[70].

In respect of the sentence imposed on charge 1, the Crown contended that the following factors assumed great significance in the appellant’s sentencing:

(ss) the offending represented by charge 1 was very serious as indicated by the maximum penalty of 25 years’ imprisonment;

(tt) 1,194.3 grams of pure cocaine is over 500 times the threshold of a marketable quantity of cocaine;

(uu) the wholesale price of a kilogram of cocaine at the relevant time was approximately $200-$250,000. The street value of a kilogram of cocaine if sold at 60% purity was approximately $322,000 if sold in ounce quantities ($9,000 per ounce) and approximately $3 million if sold in gram quantities ($300 per gram);

(vv) the appellant’s moral culpability was high as he understood that the cocaine was to be commercially trafficked by others and, by being a ‘trusted minder’ for the cocaine, he facilitated its safe storage for that purpose;

(ww) the appellant was motivated by financial gain; and

(xx) irrespective of whether the appellant was overseas for a period during which the offending occurred, he was nevertheless in possession of the drugs for the entire six week period of the offending.

In respect of the total effective sentence, the Crown made the following submissions:

(yy) in the light of the maximum penalties applicable to charges 1 and 2, the appellant’s offending warranted serious punishment;

(zz) the conduct the subject of charge 2 was not insignificant as it involved possession of 68.5 grams of cocaine and additional sales of unknown quantities to different customers for which the appellant received $15,000 to $20,000; and

(aaa) as charges 1 and 2 related to separate and distinct examples of criminal activity and different quantities of cocaine, a degree of cumulation was warranted and, in the circumstances, 6 months’ cumulation was not excessive.

The Crown submitted that the current sentencing practice in Australia (including Victoria) for the offences for which the appellant was convicted is that a reasonably lengthy term of imprisonment is appropriate. Accordingly, having regard to this practice and all the circumstances of the present case, a CCO — whether on its own or, if permissible, combined with a term of imprisonment of up to 2 years — is outside the sentencing range that is reasonably available. This was said to be so irrespective of whether Boulton applied to the present case.

Decision on whether a different sentence should be imposed

Before addressing the parties’ submissions on whether a different sentence should be imposed, we wish to make some observations on the Crown’s concession that the judge’s observations about the weight of the cocaine that was the subject of charge 1 constituted a vitiating error.[148] As the parties conducted the appeal on the basis of that concession without any indication from the bench that the concession was incorrect, we will decide the appeal consistently with that concession. However, we wish to record that, having had the opportunity to reflect on the matter, we have some reservations about the correctness of the concession.
[148]See [3]–[4] above.

There are two reasons for our reservations. First, the sentencing remarks that we have set out at [136] above clearly indicate that the judge was aware that the pure quantity of the cocaine that was the subject of charge 1 was 1,194.3 grams. Not only did the judge contrast the pure quantity of 1,194.3 grams with the gross quantity of 1,982.4 grams, he also stated that the quantity was ‘something like 600 times’ the marketable threshold of 2 grams. In this context, it appears that the judge’s statements that the quantity was ‘just short of a commercial quantity’ were an inadvertent misstatement rather than indicating that the appellant was being sentenced on the basis of the gross quantity.

Secondly, even if the judge erroneously sentenced the appellant on the basis of the gross quantity of 1,982.4 grams rather than the pure quantity of 1,194.3 grams, it would still have been open to this Court to have concluded that such an error could not have materially affected the sentence.[149] The pure quantity is a significant marketable quantity of cocaine and thus a serious offence requiring serious punishment. The appellant accepted that the possession offence was inherently serious and that general deterrence was an important sentencing consideration in relation to it. In these circumstances, it is to be doubted whether it could be said that the sentence that was imposed by the judge was not of a severity appropriate in all the circumstances of the offence for the purposes of s 16A(1) of the Crimes Act 1914 (Cth).
[149]R v Beary (2004) 11 VR 151, 159 [21], 163 [39]; DPP v Aydin [2005] VSCA 86, [10].

However, as we have said, this appeal falls to be decided on the basis that the Crown concession was correct.

In our opinion, a sentence of 3 years and 6 months’ imprisonment for possession of 1,194.3 grams of cocaine can on no view be considered an inappropriate sentence in the circumstances of the present case. We agree with the judge that, although the appellant was not going to be personally involved in the trafficking of the cocaine, his moral culpability was high because he knew that the cocaine that he was safeguarding was destined for commercial trafficking. His role as ‘trusted minder’ was an important one in the carrying out of the criminal enterprise of Mr Mayer.

We accept that there were strong mitigating circumstances that required moderation of the sentence to be imposed on the appellant, including his guilty plea, his remorse and his positive prospects of rehabilitation. While it appears that incarceration has not been as detrimental to the appellant’s mental health as was thought on the plea, it has not been submitted by the Crown — and we do not find — that he has ceased to be entitled to the benefit of Verdins principles 5 and 6.

As against these mitigating circumstances, the authorities make clear that general deterrence must be given significant weight in relation to the offences for which the appellant has been convicted.[150] The authorities also emphasise the importance of specific deterrence, but that is not a concern in the present case.
[150]Beqiri v The Queen (2013) 37 VR 219, 231 [65]; Nguyen v The Queen (2011) 31 VR 673, 681–3 [33]–[34]; R v Nguyen (2010) 205 A Crim R 106, 126–8 [71]–[72].

Having regard to the seriousness of the appellant’s offending and giving due weight to the mitigating circumstances upon which the appellant has relied and the aggravating circumstances on which the Crown has relied, we have no hesitation in concluding that the proper exercise of the sentencing discretion in the present case requires the imposition of a substantial period of imprisonment.

The appellant has not complained about the sentence or the order for cumulation in respect of charge 2. This is not surprising. Having regard to the separate instance of serious offending — which involved a not inconsiderable quantity of cocaine and multiple occasions of trafficking to various people — a sentence of 18 months’ imprisonment with cumulation of 6 months can only be described as moderate.

We do not accept the appellant’s submissions that a CCO ‘back-ended’ to the period of imprisonment already served would be an appropriate sentencing disposition in the present case. The appellant’s overall offending was very serious and the requirements of condign punishment and general deterrence can only be achieved by imprisonment. The evidence on the plea, as updated on the appeal, does not indicate that the appellant has any particular needs that can best be met by the attachment to a CCO of any of the conditions set out in pt 3A div 4 of the Sentencing Act (if those conditions could be attached to the suggested combination sentence).

Our conclusion at [158] above would have been the same even if Boulton[151] had been applicable in the present case. There is nothing in that case that alters the longstanding principles for assessing the seriousness of individual offences and the weight to be given to particular sentencing considerations in relation to them. Drug offences are intrinsically serious and even though specific deterrence may not be prominent for some offenders, general deterrence will ordinarily be a primary consideration. Offending of the nature and scale undertaken by the appellant in the present case has traditionally been dealt with by a lengthy period of imprisonment and there is nothing in Boulton that requires a different sentencing disposition in the present case.
[151][2014] VSCA 142.

We would add that, contrary to the assumption that appears to underpin some submissions that have been made to this Court since Boulton, that case, where it applies, has not elevated CCOs to the status of ‘sentencing option of choice’ for any particular offences. In saying that CCOs may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment,[152] Boulton was simply making the obvious point that, given the multifaceted features of CCOs, a CCO may be more appropriate than imprisonment across a broad range of offences. Likewise, the statement in the case that a CCO, where appropriate, should be preferred to imprisonment, is a salutary reminder of the longstanding principle of parsimony. Such statements do not create any presumption that a CCO is suitable for any particular offence, still less that it is appropriate in the circumstances of any particular offender.[153] The appropriate sentencing disposition in each case will depend on the statutory provisions and sentencing considerations that are pertinent to that case, informed by relevant case law.
[152]See [18] above.
[153]Hutchinson v The Queen [2015] VSCA 115, [17]–[18].

For the above reasons, we are not satisfied that a different sentence should be imposed. Accordingly, the appeal will be dismissed.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Possess a marketable quantity of an unlawfully imported border controlled drug [cocaine] [s 307.6(1) Criminal Code (Cth)]. [1]	25 years’ imprisonment and / or 5,000 penalty units.	3 years 6 months	Base
2	Trafficking in a controlled drug [cocaine] [s 302.4(1) Criminal Code (Cth)].	10 years’ imprisonment and / or 2,000 penalty units.	1 year 6 months	Sentence to commence 12 months before the expiry of the sentence on charge 1
Total Effective Sentence:		4 years
Non-Parole Period:		2 years 6 months
Pre-sentence Detention Declared:		102 days
6AAA Statement:		TES 6 years; NPP 4 years

[2015] VSCA 136

5 June 2015