Barbaro v The Queen
[2021] VSCA 277
•7 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0167
| PASQUALE BARBARO | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 September 2021 |
| DATE OF JUDGMENT: | 7 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 277 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1176 (Judge McInerney) |
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CRIMINAL LAW – Appeal pursuant to leave – Sentence – Appellant pleaded guilty to trafficking in a commercial quantity of a drug of dependence (MDMA), trafficking in a drug of dependence (cannabis), trafficking in a drug of dependence (methylamphetamine), possessing a registered general category handgun without a licence, and related summary charges – Total effective sentence 7 years and 10 months’ imprisonment with non-parole period of 5 years – Error by judge as to applicability of provisions of Sentencing Act 1991 – Error by judge as to size of commercial quantity of Cannabis L – Whether errors materially affected exercise of sentencing discretion – Whether judge erred in not taking into account appellant’s dysfunctional upbringing and limited intellect as relevant mitigating circumstances – Whether sentence manifestly excessive – Appeal allowed – Resentenced to 5 years’ imprisonment non-parole period of 2 years and 9 months – Bugmy v The Queen (2013) 249 CLR 571, Director of Public Prosecutions v Drake [2019] VSCA 293 applied – Sentencing Act 1991 ss 5(2H), 5(2HC).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms C A Boston | Sarah Tricarico Lawyers |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA
T FORREST JA:
The appellant pleaded guilty, in the County Court of Victoria, to one charge of trafficking in a drug of dependence in a commercial quantity (MDMA), one charge of trafficking in a drug of dependence (cannabis), a second charge of trafficking in a drug of dependence (methylamphetamine) and one charge of possessing a registered general category handgun without a licence. He also pleaded guilty to related summary charges of possess an unregistered Category A longarm, being an unlicensed person store ammunition in an insecure manner, and possession of property reasonably suspected of being the proceeds of crime.
After a plea made on his behalf, the appellant was sentenced to a total effective sentence of 7 years and 10 months’ imprisonment, with a non-parole period of 5 years. That sentence was constituted as follows:
Charges
Offence
Maximum
Sentence
Cumulation
1
Trafficking in a drug of dependence (commercial quantity) — MDMA[1]
25 years’ imprisonment
7 years’ imprisonment
Base
2
Trafficking in a drug of dependence — Cannabis L[2]
15 years’ imprisonment
2 years’ imprisonment
6 months
3
Trafficking in a drug of dependence — Methylamphetamine
15 years’ imprisonment
19 months’ imprisonment
3 months
4
Possessing a registered general category handgun without a licence[3]
4 years’ imprisonment
1 year imprisonment
1 month
Summary Charge 4
Non-prohibited person possess a Category A Longarm without a licence[4]
2 years’ imprisonment
2 months’ imprisonment
Nil
Summary Charge 5
Unlicensed person store ammunition in an insecure manner[5]
40 penalty units
Convicted and fined $1,652.20
Nil
Summary Charge 6
Deal with property suspected of being proceeds of crime[6]
2 years’ imprisonment
3 months’ imprisonment
Nil
Total Effective Sentence
7 years and 10 months’ imprisonment
Non-parole period
5 years’ imprisonment
Pre-sentence detention, s 18(1) Sentencing Act 1991
16 days
Section 6AAA statement
11 years and 3 months’ imprisonment with a non-parole period of 6 years and 8 months
[1]Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 71AA(1).
[2]Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 71AC(1).
[3]Contrary to Firearms Act 1996 s 7(1).
[4]Contrary to Firearms Act 1996 s 6(1).
[5]Contrary to Firearms Act 1996 s 129A.
[6]Contrary to Crimes Act 1958 s 195.
In the original notice of application for leave to appeal, the appellant sought to rely on four grounds. On the hearing of the application before a single judge, the appellant was granted leave to rely on an additional fifth ground. The judge, who heard the application, granted the appellant leave to appeal on grounds 3, 4 and 5, and referred to a bench, consisting of two or more members of the Court of Appeal, the application for leave to appeal on ground 1. His Honour refused leave on ground 2.[7]
[7]Barbaro v The Queen [2021] VSCA 61.
The grounds, upon which the appellant appeals against sentence, are therefore as follows:
Ground 1:
The learned sentencing judge erred in fettering his discretion due to an erroneous belief:
(i)that section 5(2H) of the Sentencing Act 1991 required that the relevant circumstances be ‘rare and exceptional’; and
(ii)that section 5(2HC) applied to the sentencing task.
Ground 3:
The learned sentencing judge erred in failing to mitigate the applicant’s sentence on account of his drug addiction, which commenced in childhood in the context of a chronically dysfunctional home environment, parentification, extremely low to borderline intellectual ability, and borderline personality disorder.
Ground 4:
The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in light of the applicant’s early guilty pleas, genuine remorse, rehabilitation and increased burden of imprisonment, together with other factors in mitigation.
Ground 5:
The learned sentencing judge erred in sentencing the applicant on charge 2 on the basis that a commercial quantity of cannabis is one kilogram as opposed to 25 kilograms.
Circumstances of offending
In May 2017, investigators of the Drug Task Force of the Victoria Police commenced an investigation into drug trafficking in the western suburbs of Melbourne conducted by the father of the appellant, Michael Barbaro, and two other men. It was later identified that the appellant was also involved in the drug trafficking. In April 2018, police investigators began monitoring a listening device that was located in the garage of the appellant’s father’s residence in Sydenham (the ‘Sydenham premises’). It became apparent that the appellant regularly spent time at those premises, where he participated in conversations regarding drugs, drug trafficking and firearms.
On 13 June 2018, police executed search warrants at the residences of the suspects. In the course of the execution of those search warrants, the appellant was arrested at the Sydenham premises, and was taken to his house in Taylors Hill where a search warrant was executed.
In the course of the search of the Taylors Hill residence, the following items were located:
a.925.5 grams of MDMA (Charge 1: Traffick in a Drug of Dependence – Commercial Quantity)
b.186 grams of Cannabis (Charge 2: Traffick in a Drug of Dependence)
c.1,002.2 grams of Methylamphetamine (Charge 3: Traffick in a Drug of Dependence)
d.A pistol (Charge 4: Possessing a Registered General Category Handgun Without a Licence)
e.A Crossman 1077 .177 calibre air rifle (Related Summary Charge 4: Non-Prohibited Person Possess Unregistered Longarm Without a Licence)
f.Quantities of ammunition (Related Summary Charge 5: Unlicensed Person Possess Ammunition)
g.Several items of jewellery (Related Summary Charge 6: Deal With Property Suspected of Being Proceeds of Crime)
h.Two mobile phones.
The total weight of the mixed quantity of MDMA that was located at the premises was 925.5 grams. On analysis, it was 23 per cent pure, so that it comprised 212.82 grams of a pure quantity. Under the relevant provisions of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’), a commercial quantity of MDMA is specified as being over 500 grams mixed or 100 grams pure. A large commercial quantity of a mixed substance containing MDMA is one kilogram (1,000 grams).
The methylamphetamine (which was the subject of charge 3) was contained inside a cereal box that was taped up and located within a wall cavity in the garage of the premises. The mixed quantity of the methylamphetamine weighed 1,002.2 grams and was of 84 per cent purity. A large commercial quantity of methylamphetamine is one kilogram (1,000 grams) of mixed substance containing the drug; a commercial quantity of methylamphetamine is 500 grams of mixed substance containing methamphetamine. The prosecution alleged that the appellant was storing the package, containing the methylamphetamine, at his house for his father, and that he knew that it contained a quantity of a drug of dependence, but he did not know the precise quantity of it.
In the course of the search, the police located other indicia of drug trafficking, including firearms, ammunition, jewellery and multiple mobile telephones. The pistol, that was the subject of charge 4, was located in the kitchen cupboard by the microwave. It was not loaded. Ammunition for the pistol was located in a bag on the floor of the kitchen.
Following the execution of the search warrant, the appellant was taken to the police station for interview. He gave a ‘no comment’ response to the allegations put to him. He was initially remanded in custody. Three days later, on 15 June 2018, he was bailed to the Raimond Hader Clinic (‘the Hader Clinic’), where he remained for treatment for drug addiction for a period of three months. The first committal mention was heard on 10 April 2018. At that mention, the appellant’s matter was listed for a committal hearing, and the three other accused persons’ matters were adjourned to 21 May 2019. Subsequently, the appellant’s committal proceeding was listed for 9 October for a hearing over a period of three days. On 11 October 2019, the appellant pleaded guilty to the charges on the indictment and the three related summary charges that were transferred to the County Court.
Previous convictions
The appellant had a number of previous convictions for road traffic offences, which the judge noted were essentially of no relevance. He had no other previous convictions.
The plea
The plea, that was submitted on behalf of the appellant, focused substantially on his dysfunctional childhood, which, in the context of the appellant’s limited intellectual functioning, had led the appellant to become heavily addicted to illicit substances, and on the steps taken by the appellant to reform, commencing with the period of treatment that he received in the Hader Clinic.
The appellant was born in October 1989. At the time of the offending, he was twenty-eight years of age. He had a limited education due to his intellectual capacity. His home life was quite chaotic. He was raised in an atmosphere of parental disharmony in which he regularly had to intervene to stand between his parents in the course of their arguments. The appellant’s father was a heavy user of drugs, and his mother would absent herself from the family for extended periods of time.
After leaving school, the appellant engaged in some employment as a concreter. However, by then he had become heavily addicted to illicit substances. At the age of twelve years, he had commenced to smoke cannabis. When he was seventeen years of age, he began to use amphetamines and methylamphetamine. At about that time, he left home and lived in transient accommodation, at one stage consuming methylamphetamine daily for a period of six months.
The appellant had commenced a relationship with his partner, at the age of twenty years. They had three children. In addition, his partner had a daughter from a previous relationship who the appellant treated as his own. At the time of sentence, the appellant’s partner was eight months’ pregnant.
As mentioned, shortly after his arrest, the appellant was released on bail, on the condition that he attend, and undergo, treatment at the Hader Clinic. He attended that clinic, on an inpatient basis, for a period of ninety days. On the plea, evidence was given by Mr Jackson Oppy, the general manager of the clinic. Mr Oppy explained that the clinic provided a combination of group and individual therapies. During the three months that the appellant spent in the program, he engaged very well with it. His urine drug screens returned negative. Mr Oppy stated that the treatment provided during that period was quite intensive, commencing each day at 7:00 am and lasting until 11:00 pm.
After the appellant had completed three months at the Hader Clinic, he was released on bail to reside with his mother. He commenced treatment with a drug counsellor, Ms Amanda Brown, of Lamberti & Associates, on 16 September 2018 and continued until the date of his sentence on 3 August 2020. In her report, which was tendered on the plea, Ms Brown stated that during that period, the appellant was committed to the treatment, and that he had insight into his risk of remission into further drug abuse. The appellant had regularly attended his appointments, and supervised urine drug screening produced negative results. In addition, the appellant had continued to attend Narcotics Anonymous meetings twice each week. After the onset of the COVID-19 pandemic, those meetings were conducted by videolink.
In her report, Ms Brown noted that, during the two years that she had treated the appellant, he had made remarkable changes to his life. During that time, he had worked as a cement renderer to support his young family and he had spent all of his spare time with his children.
In July 2020, the appellant was assessed by Mr Luke Armstrong, a consultant psychologist, for the purposes of the plea. Mr Armstrong’s report was tendered, and he gave evidence, on the plea.
Essentially, Mr Armstrong formed two principal conclusions. First, Mr Armstrong noted that due to the frequent disputes between the appellant’s parents, the appellant had been forced to step between them and mediate. Mr Armstrong regarded the appellant’s behaviour as consistent with a process called ‘parentification’. In his evidence, Mr Armstrong explained that when a child is exposed to an environment in which his or her parents cease to function as predictable and safe attachment figures, the child implicitly takes on the role of parent. The circumstances, in which the appellant was exposed to chronic levels of dysfunction in the household, had had a serious effect on his later development. As part of that process, the appellant had developed a close attachment to his father, who was a drug addict, and who was incapable of being a reliable father figure. Mr Armstrong considered that those circumstances, combined with the appellant’s limited intellectual capacity, had led him to self-medicate, first with cannabis, and later with amphetamine and methylamphetamine. Mr Armstrong diagnosed the appellant to manifest seven traits of a Borderline Personality Disorder. Mr Armstrong also diagnosed the appellant to suffer anxiety and depression.
The second related finding by Mr Armstrong was that the appellant had an extremely low to borderline level of intellectual functioning, which magnified the degree of his psychological disorder. In particular, the appellant’s verbal reasoning abilities were in the borderline range and were only above those of three per cent of his peers. His perceptual reasoning was in an extremely low range and above those of only two per cent of his peers. His ability to sustain attention, concentrate and exert mental control was in the borderline range; the appellant performed better than only approximately six per cent of his peers in this area. In short, Mr Armstrong considered that the appellant’s overall abilities were somewhere between the extremely low to borderline range of intellectual functioning.
Mr Armstrong considered that, during the previous two years, the appellant had developed some insight that he suffers ongoing mental health problems that will require long term commitment to treatment. In addition, the appellant ‘acutely’ comprehended that his drug abuse related offending was connected with his father’s own drug and mental health problems. Mr Armstrong expressed the opinion that the appellant has good prospects of rehabilitation.
Finally, on the plea, the appellant tendered a report of his general practitioner, Dr Walter Di Bartolo. In that report, Dr Di Bartolo noted that the appellant suffers from severe asthma, primarily characterised by status asthmaticus, which is a severe condition, in which bronchospastic or asthma attacks continuously follow one another without interruption. Dr Di Bartolo expressed the view that, in the context of the current global outbreak of the coronavirus, a person affected with that form of asthma would be at a high risk of becoming very ill, if he or she were infected by the COVID-19 virus.
Provisions of Sentencing Act 1991 applicable to charge 1
Before we summarise the judge’s reasons for sentence, it is convenient, first, to set out, in brief, the provisions of the Sentencing Act 1991 (the ‘Sentencing Act’) that are applicable to ground 1.
The Sentencing (Community Correction Order) and Other Acts Amendment Act2016 (the ‘Amendment Act’) came into operation on 2 October 2017. Section 4 of that Act inserted s 5(2H) into the Sentencing Act. That provision required that a judge, in sentencing a person for a ‘category 2 offence’, must impose a term of imprisonment (not being one combined with a community correction order (‘CCO’)), unless one of the exceptions, prescribed by that section, applied. One such exception, prescribed by s 5(2H)(e), was where the judge was satisfied that there were ‘substantial and compelling circumstances that justify not making’ such an order. Section 3 of the Amendment Act defined ‘category 2 offence’ to include an offence against s 71AA of the Act (that is, trafficking in a commercial quantity of a drug of dependence).
Subsequently, on 28 October 2018, s 76 of the Justice Legislation Miscellaneous Amendment Act 2018 (the ‘2018 amendment’) introduced s 5(2HC) into the Sentencing Act. The 2018 amendment made two relevant changes to s 5(2H). First, it added the words ‘that are exceptional and rare’ to s 5(2H)(e), so that that provision required the imposition of a term of imprisonment, unless there were substantial and compelling circumstances ‘that are exceptional and rare’. Secondly, the 2018 amendment introduced s 5(2HC), which provided that, in determining whether there were substantial and compelling circumstances that are exceptional and rare, the Court was to give less weight to the personal circumstances of the offender than to other matters, such as the nature and gravity of the offence, and the Court was not to have regard at all to the offender’s prospects of rehabilitation, previous good character or early guilty plea.
As the appellant’s offending occurred on 13 June 2018, the provisions that were included in the Sentencing Act, by reason of the 2018 amendment, did not apply to the sentencing of the appellant.
Reasons for sentence
In his reasons for sentence,[8] the judge, having outlined the circumstances of the offending, noted that in the absence of an applicable exception, s 5(2H) of the Sentencing Act mandated the imposition of an immediate gaol term. The judge noted that counsel for the appellant had relied on the exception specified in s 5(2H)(e) of that Act. In particular, counsel had relied on the steps taken by the appellant towards rehabilitation, his asthmatic condition, the appellant’s compliance with original bail conditions imposed on him, the fact that the appellant had no relevant previous convictions, and the appellant’s exceptional family circumstances.[9] Having considered those factors, the judge concluded that ‘… the high hurdle, as referred to in Farmer,[10] has not [been] surmounted’.[11]
[8]DPP v Barbaro [2020] VCC 1176 (‘Reasons’).
[9]Ibid [17]
[10][2020] VSCA 140, [51].
[11]Reasons [22].
We interpolate that Farmer v The Queen[12] was concerned with the provisions of s 5(2H)(e) of the Sentencing Act as amended by the 2018 legislation, so as to require, in that case, the establishment of ‘substantial and compelling circumstances that are exceptional and rare’.
[12][2020] VSCA 140.
Accordingly, the judge concluded that an immediate term of imprisonment must be imposed on the appellant.[13]
[13]Reasons [23].
The judge then turned to consider the mitigating factors relied on by the appellant. He took into account the following factors:
·the appellant’s guilty plea, which the judge accepted was made at the earliest possible time, and which had utilitarian value;
·the steps taken by the appellant towards his rehabilitation;
·the appellant had no previous convictions;
·the appellant had demonstrated genuine remorse;
·the delay of two years between the appellant’s arrest and sentence, during which the appellant had taken appropriate steps in rehabilitation;
·the effect of the appellant’s ‘parentification’ which had led to his addiction, together with his undiagnosed longstanding issues of anxiety and depression at the time of the offending. In respect of that factor, the judge said that while he did not consider those circumstances to be mitigatory, he accepted that they were ‘an explanation and the background to’ the appellant’s offending;[14]
·the evidence that the appellant would need treatment for anxiety and depression while in gaol;
·the appellant’s family would suffer stress as a result of the appellant’s imprisonment, and as a consequence he would find a term of imprisonment more burdensome;
·the increased risk to the appellant’s health as a result of the COVID-19 pandemic while he is in prison, which risk was enhanced by his severe asthmatic condition;
·the appellant would need treatment for his asthma.[15]
[14]Ibid [34].
[15]Ibid [26]–[38].
The grounds of appeal
Grounds 1, 3 and 5 each allege specific error by the judge in the sentencing reasons. While it is common ground that the sentencing reasons contained the errors specified in grounds 1 and 5, we are not persuaded that those errors were material to the determination of the appellant’s sentence. On the other hand, for the reasons that follow, we consider that ground 3 should be upheld. In those circumstances, it is not necessary for us to address ground 4, which alleges manifest excess.
For convenience we will deal briefly, first, with grounds 1 and 5, before turning to ground 3.
Ground 1 — submissions
On the plea, the prosecutor, defence counsel and the judge each proceeded on the incorrect understanding that the amendment to s 5(2H)(e), introduced by the 2018 amendment, applied to the sentencing of the appellant. Thus, it was (incorrectly) assumed that in order that the exception, provided by s 5(2H)(e) of the Sentencing Act to the mandatory imposition of a prison sentence, applied, the appellant was required to establish, not only the existence of substantial and compelling circumstances, but also that such circumstances were exceptional and rare. In addition, it was incorrectly understood that by reason of the 2018 amendment, in determining whether substantial and compelling circumstances that were exceptional and rare existed, the Court was to give less weight to the personal circumstances of the appellant than to matters such as the nature and seriousness of the offence, and that the Court was not to have regard at all to the appellant’s prospects of rehabilitation, previous good character, or early guilty plea.
It is common ground that, in proceeding on that basis, the sentencing judge fell into error. On behalf of the appellant, it was submitted that that error vitiated the exercise by the judge of the sentencing discretion. In response, counsel for the respondent submitted that the error could not have materially affected the sentence imposed on the appellant, and in particular, it could not have affected the judge’s conclusion that the exception, provided in s 5(2H)(e) to the mandatory imposition of a gaol term, did not apply to the appellant’s case.
The question is whether the error by the sentencing judge could have materially affected the decision of the sentencing judge that the exception, provided in s 5(2H)(e), did not apply to the appellant’s sentence.[16] That question is resolved by considering whether, if the sentencing judge had correctly construed the requirements of s 5(2H)(e), he might have imposed a non-custodial sentence on the appellant, or a sentence of no more than 12 months’ imprisonment combined with a CCO. The resolution of that issue does not require the Court to assess, as a matter of fact, whether the error actually influenced the determination of the sentence by the judge. Rather, the Court assesses the capacity of that error to have such an effect.[17]
[16]R v Beary (2004) 11 VR 151, 159 [21]; [2004] VSCA 229 (Callaway JA); Gillespie (a pseudonym) v The Queen [2018] VSCA 151, [53] (Whelan and McLeish JJA); Johns v The Queen [2020] VSCA 135, [83]–[86] (Ferguson CJ, McLeish and Niall JJA) (‘Johns’).
[17]Newman (a pseudonym) v The Queen [2019] NSWCCA 157, [12] (Basten JA); Johns [2020] VSCA 135, [84] (Ferguson CJ, McLeish and Niall JJA).
Counsel for the appellant submitted that it was open to the sentencing judge to sentence the appellant to a combination sentence of one year imprisonment together with a lengthy period in which he was subject to a CCO. In support of that submission, counsel noted that there were a number of mitigating factors. In particular, the appellant pleaded guilty at the earliest opportunity, and the judge recognised that the plea had particular utilitarian value. The appellant had no previous convictions. There had been a two year delay between the appellant’s arrest and his sentence, during which he had taken significant steps towards his rehabilitation. The stringent circumstances in which the appellant underwent rehabilitation initially at the Hader Clinic had a punitive element, for which he was entitled to some credit in accordance with the principles in Akoka v The Queen.[18] Having attended at the Hader Clinic, the appellant had undergone treatment with Ms Brown, the drug counsellor, and he had also participated in meetings with Narcotics Anonymous. During the period of two years before his sentencing, the appellant had lived a productive and law abiding life. In those circumstances, it was submitted, it was in the interests of society that the appellant be subject to a sentence, which would enable him to be supervised for a period of time in the community under a CCO. Counsel emphasised that, in Boulton v The Queen,[19] the Court had outlined the punitive nature of a sentence involving a CCO. Accordingly, it was submitted, it was open to the judge to impose a combination sentence comprising one year’s imprisonment together with a five year CCO.
[18][2017] VSCA 214, [105]–[115] (Warren CJ, Kyrou and Redlich JJA).
[19](2014) 46 VR 308; [2014] VSCA 342.
In response, counsel for the respondent submitted that the offending by the appellant was too serious to commit the judge to conclude that it was reasonably open to impose a sentence of 12 months’ imprisonment combined with a CCO. Counsel noted that the sentence imposed by the judge, of 7 years and 10 months’ imprisonment, properly reflected the gravity of the offending by the appellant, and reinforced the proposition that the sentencing disposition sought by the appellant was not reasonably open to the judge. In support of that submission, counsel relied on a number of authorities, in which the Court has emphasised the importance of general deterrence as the primary sentencing consideration in cases involving trafficking of illicit substances on the scale undertaken by the appellant. Counsel noted that the appellant pleaded guilty to three charges of trafficking, one of which was a charge of trafficking a commercial quantity of drugs. In those circumstances, it was submitted, it was not reasonably open to the judge to have imposed a sentence that combined one year’s imprisonment with a CCO.
Ground 1 — conclusions
As we have mentioned, the central question, under ground 1, is whether the error made by the judge (and counsel then appearing for the appellant and the prosecutor), concerning the requirements of s 5(2H)(e) of the Sentencing Act, had the capacity to influence the determination by the judge of the appellant’s sentence. The error could only have been material, if it had the capacity to influence the decision of the judge not to sentence the appellant to a term of imprisonment of one year or less in addition to imposing a CCO under s 44 of the Sentencing Act.
In order for the judge to have made an order under s 44, his Honour would have been required to have been satisfied that there were ‘substantial and compelling circumstances’ that would justify the imposition of a term of imprisonment of less than 12 months in respect of the offences to which the appellant had pleaded guilty. In determining that issue, it is necessary to take into account s 5(2I) of the Sentencing Act, which provides that in determining whether there are substantial and compelling circumstances under sub-s (2H)(e), the Court must have regard (inter alia) to the intention of Parliament that, in sentencing an offender for a category 2 offence, the Court should ordinarily impose a term of imprisonment (and not a combined sentence under s 44 of the Sentencing Act).
The offence of trafficking in a drug of dependence in a commercial quantity, which is the subject of charge 1, is of its nature a serious criminal offence, the maximum sentence for which is 25 years’ imprisonment. In addition, the appellant was to be sentenced for two other charges of trafficking in a drug of dependence. It is well established that, ordinarily, any person, who chooses to engage in trafficking large quantities of illicit drugs, will, upon apprehension, be sentenced to a lengthy term of imprisonment, in order to vindicate the sentencing purposes of general deterrence and denunciation.[20] In the present case, as we will discuss, the appellant had made commendable progress towards his rehabilitation. Nevertheless, the offending, and in particular the offence which was the subject of ground 1, was too serious to have permitted the judge to conclude that there were ‘substantial and compelling circumstances’ that would have justified his Honour imposing a sentence of imprisonment of 12 months (or less) in combination with a CCO. Accordingly, the error, that is the subject of ground 1, was not material to the sentencing of the appellant.
[20]Wong v The Queen (2001) 207 CLR 584, 608 [64]; [2001] HCA 64 (Gaudron, Gummow and Hayne JJ); R v Nguyen [2010] NSWCCA 238, [72] (Johnson J, Macfarlan JA agreeing at [1], R A Hulme J agreeing at [137]); Dawid v DPP [2013] VSCA 64, [35] (Kaye AJA, Redlich JA agreeing at [1], Whelan JA agreeing at [2]); Kim v The Queen [2019] VSCA 149, [31] (Kaye and T Forrest JJA).
It follows that ground 1 does not succeed.
Ground 5 — submissions
Ground 5 is directed to the judge’s characterisation of the second charge, which was a charge of trafficking in Cannabis L. His Honour stated:
Again, the circumstances of such trafficking is by being in possession for sale. The amount was 186.6 grams. It is to be pointed out that the next level for commercial quantity begins at 1 kilogram. Again, the seriousness of this offence is demonstrated by the fact that pursuant to s 71AC(1), the maximum sentence is 15 years.[21]
[21]Reasons [4].
It is common ground that the judge erred in noting that the threshold for a commercial quantity of Cannabis L was one kilogram. The correct threshold, for that substance, was 25 kilograms.
Counsel for the appellant submitted that, as sentencing for drug trafficking is significantly quantum based, the error by the judge was a material error affecting the sentence imposed on charge 2. Counsel pointed out that, based on that misconception by the judge of the threshold for a commercial quantity of cannabis, the drug seized at the appellant’s premises constituted 19 per cent of a commercial quantity. In fact, the quantity seized constituted a mere 0.7 per cent of a commercial quantity of the substance. In those circumstances, it was submitted, the error by the judge was material to the imposition of 2 years’ imprisonment on charge 2, and to the judge’s direction that six months of that sentence be served cumulatively on the sentence imposed on charge 1.
In response, counsel for the respondent submitted the error by the judge was not material to the sentence imposed by his Honour. In short, counsel submitted that the reference by the judge, to the incorrect threshold, was only by way of background to his Honour’s correct reference in that passage, to the maximum sentence for the offence.
Ground 5 — conclusions
We are not persuaded that the error made by the judge, as to the threshold for a commercial quantity of Cannabis L, was a material error in the determination of his Honour’s sentence in respect of charge 2. Taken in context, it would seem that his Honour’s reference to that threshold was merely by way of a background observation. The judge correctly noted that the seriousness of the offence was demonstrated by the maximum sentence of 15 years’ imprisonment. While, in view of the appellant’s mitigating circumstances, the sentence imposed in respect of charge 2 was somewhat stern, nevertheless we do not consider that it reflected that the sentence was or could have been the product of the error made by the judge as to the threshold for a commercial quantity.
For those reasons, ground 5 does not succeed.
Ground 3 — submissions
Under ground 3, counsel for the appellant submitted that the judge erred in concluding that while the appellant’s drug addiction, the effect of the process of ‘parentification’, and his undiagnosed issues of anxiety and depression, were explanatory of the appellant’s offending, they were not mitigating circumstances.[22]
[22]Ibid [34].
In support of that submission, counsel relied on the evidence that the appellant’s drug addiction had developed in the context of the dysfunctional home environment in which he had been raised as a child, and the evidence of the psychologist, Mr Armstrong, that the appellant’s offending was related to his drug addiction. Counsel also pointed to the evidence concerning the appellant’s Borderline Personality Disorder, and his extremely low to borderline intellect. It was submitted that the judge erred in considering that although those factors might have explained the appellant’s offending, they did not mitigate his moral culpability for it.
In response, counsel for the respondent submitted that the passage in the judge’s sentencing reasons should not be construed in a literal manner. Rather, it was submitted, the judge correctly observed that the personal factors relied on by the appellant, including his parentification and his drug addiction, did not mitigate the objective gravity of his offending. Further, it was submitted, by noting that those circumstances were ‘an explanation and background’ to his criminality, the judge correctly took those matters into account in assessing the moral culpability of the appellant for the offending. Counsel further submitted that the judge was correct to consider that the appellant’s drug addiction was not a relevant mitigating circumstance. He contended that, while in an appropriate case an offender’s drug addiction may constitute a mitigating circumstance, the weight to be attributed to such a factor is significantly diminished, if not nullified, in cases involving drug trafficking operations which are ‘above street level’.[23] In the present case, the offending included trafficking of three types of illegal drugs, and, in particular, it included the trafficking of a commercial quantity of MDMA. Further, the appellant’s role in the drug trafficking enterprise was significant. Accordingly, it was submitted, the judge did not err in considering that the appellant’s drug use, while providing a context to the offending, did not mitigate it.
[23]R v Bernath [1997] 1 VR 271, 276 (Callaway JA).
Ground 3 — conclusions
Notwithstanding the valiant submissions made on behalf of the respondent, we consider that the meaning of the passage in the judge’s sentence, on which ground 3 is based, is quite clear. The judge, in express terms, sentenced the appellant on the basis that the issues relating to his psychological health, the effect of parentification, and his drug addiction, were not mitigating factors, although they did provide an ‘explanation and background’ to his offending. Understood in that way, it is clear that the judge erred in failing to take into account, in the appellant’s favour, an important mitigating factor.
In the present case, the evidence that was adduced on the plea established two important propositions. First, the evidence demonstrated that the dysfunctional circumstances of the appellant’s upbringing had played a relevant role in the appellant, from an early age, becoming addicted to drugs, and to the development and exacerbation of his psychological disorder. Secondly, it is clear, from the evidence given on the plea, that the appellant’s drug addiction, his disorder, his limited intellect, and the enduring effects of his dysfunctional upbringing, played a significant causative role in his offending.
In order to understand the relevance of those propositions, and the weight that ought to be attributed to them as a mitigating factor, it is important to consider, in a little more detail, the evidence that was given on the plea in respect of them.
In respect of the first proposition, Mr Armstrong, in his report, noted that the appellant, during his childhood, had been exposed to an abusive and extreme environment that had led to distortions in his development of healthy attachment relationships. Mr Armstrong noted that, as a consequence, from a young age the appellant had developed chronic and extreme manifestations of anxiety, inferiority, ‘let down’ and dysphoric mood. During his adolescence, the appellant’s experience of a toxic family environment had continued. It was within that context that Mr Armstrong noted that the appellant had encountered ‘the duality of a flawed father’ who himself had problems in his relationship, drugs and offending. The appellant nevertheless idealised his father and felt compelled to rescue his parents. It was that context that fuelled a craving in the appellant to self-medicate with substances, which quickly developed into a psychological dependency on cannabis and subsequently amphetamine.
In his evidence on the plea, Mr Armstrong explained that when a child, such as the appellant, is exposed to chronic levels of dysfunction in a household, and the child takes on the role of being an intermediary between his or her parents, it has serious consequences on the child’s later development. In particular, in circumstances in which the appellant idolised his profoundly flawed father, he was unable to formulate his own identity and he lived, to some extent, through his father. Mr Armstrong was also of the view that the appellant’s development was further retarded by his limited intellectual development.
Thus, the judge had before him cogent evidence that provided a strong causal link between the appellant’s drug abuse, and the dysfunctional circumstances of his upbringing. Further, Mr Armstrong expressed the unsurprising opinion, in his report, that the appellant’s offending occurred within the context of his significant drug addiction, and that his drug abuse and related offending were ‘entwined’ within the appellant’s father’s own drug and mental health problems. In other words, the evidence that was before the judge demonstrated, in quite detailed form, that the appellant’s dysfunctional and erratic upbringing, combined with his limited intellectual function, played a significant causative role in the appellant’s drug abuse and, relevantly, in the offending for which he was sentenced.
Those propositions, about which Mr Armstrong gave evidence, were not the subject of any dispute in the plea. Counsel for the prosecution cross-examined Mr Armstrong as to other matters, including the appellant’s prospects of rehabilitation. However, counsel did not put in issue the two propositions, about which Mr Armstrong gave evidence, and which we have just summarised. Further, it is clear, in the sentencing reasons upon which ground 5 is based, that the judge did not reject either such proposition.
It is well established that where it is demonstrated that an offender’s criminal behaviour is causally connected with the effects of trauma and dysfunction experienced during the offender’s developmental years, that circumstance is relevant to an assessment of the offender’s subjective culpability.[24] The rationale for that principle is that, in such a case, the subjective (moral) responsibility of the offender, who has suffered such trauma or dysfunction, should not be equated with the culpability of an offender who has had the benefit of a stable and constructive upbringing.[25]
[24]R v Fernando (1992) 76 A Crim R 58, 62–3 (Wood J); R v Fuller-Cust (2002) 6 VR 496, 520 [78]–[79]; [2002] VSCA 168 (Eames JA).
[25]DPP v Heyfron [2019] VSCA 130, [57] (Priest, Kaye and T Forrest JJA); Bergman (a pseudonym) v The Queen [2021] VSCA 148, [86]–[90] (Maxwell P and Kaye JA).
In Bugmy v The Queen,[26] the High Court, in considering the relevance of childhood trauma and dysfunction in the context of the sentencing of an Aboriginal offender, stated the relevant principles in the following terms:
The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.
The Director’s submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[27]
[26](2013) 249 CLR 571; [2013] HCA 37.
[27]Ibid 594–5 [42]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (citation omitted).
The relevance of those considerations was further considered by this Court in Director of Public Prosecutions v Drake.[28] The Court said:
There seems little doubt that the experience of growing up in an environment of alcohol abuse and overt violence has left its mark on the respondent. Indeed, we have no reason to doubt the opinion of Mr Cummins, the psychologist, that the respondent is afflicted by a trauma-related disorder in the form of PTSD, characterised by flashbacks and negative ruminative thinking concerning his upbringing and sexual abuse. Notwithstanding his criminal history, the respondent’s personal history of childhood deprivation and abuse remains a feature of his make-up, relevant to the determination of the appropriate sentence in the present case.
In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.[29]
[28][2019] VSCA 293.
[29]Ibid [31]–[32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (citation omitted).
In the present case, the judge accepted that the process of ‘parentification’, which had developed in the dysfunctional environment in which the appellant had been raised, had led to his addiction, and to his longstanding psychological issues of anxiety and depression. Further, by accepting that those circumstances were both an ‘explanation’ of, and background to, the appellant’s offending, the judge impliedly accepted that the appellant’s drug addiction, and his psychological issues, which had their origins in the dysfunctional environment in which the appellant had been raised, had a relevant causal connection with the offending for which he was sentenced.
In those circumstances, it is clear that the judge erred in sentencing the appellant on the basis that the factors of the appellant’s upbringing, and his drug addiction, were not mitigating circumstances. On the contrary, it is clear that those circumstances operated to materially mitigate the appellant’s subjective culpability for his offending. As the authorities had made plain, the moral culpability of the appellant, for the offending, could not be equated with that of a person who had committed the same offence, but who had had the benefit of a stable and normal upbringing during childhood and adolescence.
For those reasons, ground 3 must succeed. The error made by the judge was significant and material to the determination of the appellant’s sentence.
It follows that the appeal should be allowed. In those circumstances, it is unnecessary for us to rule on ground 4.
Resentence
On the question of resentence, counsel for the appellant relied on the mitigating factors outlined in the plea before the judge. In addition, counsel updated the Court about the present circumstances of the appellant. At the time of sentencing, the appellant’s partner was pregnant with their fourth child. She has subsequently given birth. Due to the outbreak of the COVID-19 pandemic, the appellant has only had one visit (which lasted 20 minutes) from his partner and children since his sentencing. He has been confined to two Zoom calls per week, and to telephone conversations with them. It was submitted that the appellant’s domestic circumstances had added, and would continue to add, significantly to the burden of imprisonment. Not only is he separated from his family, but also he is aware that his partner is, understandably, suffering considerable difficulties looking after their four children who are under the age of seven years.
In addition, counsel provided to the Court an updated medical report from the appellant’s medical practitioner, Dr Di Bartolo, which explained that, for medical reasons, the appellant has not been able to be vaccinated against the coronavirus. Dr Lahn Straney, an epidemiologist, in a report entered to the Court, explained that due to the appellant’s underlying respiratory condition, he may be at higher risk of developing a severe bout of COVID-19. Dr Straney points out that, at the present time, there is no proven therapy for that illness.
Further, counsel pointed out that due to the onset of the pandemic, the appellant has only been able to attend a limited number of programs directed to his rehabilitation. In addition, he has not been able to have any advantage of treatment, for his underlying drug addiction and psychological problems, that he was receiving before he commenced his term of imprisonment. The appellant has returned a number of negative urine drug screens, and he has attended and completed some educational courses that have been made available since he has been in custody.
In resentencing the appellant, the starting point is that the objective gravity of the offences committed by the appellant, and in particular the offence that was the subject of charge 1, was, from an objective perspective, particularly serious. As we have discussed when considering ground 1, in sentencing offenders for such offences, the purposes of general deterrence and denunciation must take precedence. The proliferation of illicit drugs in the community, and the significant harm and suffering caused by them, has had the consequence that the courts, in sentencing offenders who have been engaged in the drug trade, must impose sentences that are of sufficient severity to make plain that any person, who is minded to participate in that trade, will, upon apprehension, suffer a significant period of deprivation of his or her liberty. It is only in that way that the courts can do their part in combating the scourge of the proliferation of drugs.
On the other hand, for the reasons that we have explained when considering ground 3, the moral culpability of the appellant, for the offending, was significantly reduced by reason of the dysfunctional circumstances in which he spent his childhood and adolescent years, his limited intellectual functioning, and his underlying psychological issues. As a consequence, the weight to be attributed to the sentencing purposes of general deterrence and denunciation is substantially moderated, but it is not eliminated.
As we have discussed, the appellant had available a number of important mitigating factors. He pleaded guilty at an early stage, and his plea was of real utilitarian value. The appellant has no relevant previous convictions. There was a significant delay between the appellant’s guilty plea and his sentencing. As we have discussed under ground 3, the moral culpability of the appellant was significantly moderated by reason of his background circumstances and consequential drug addiction. Importantly, since his apprehension, the appellant has undertaken significant and most impressive steps to reform. It is very much in the interests, not only of the appellant, but also of society, that the appellant’s rehabilitation be given significant weight in the sentencing process. In order for that to be achieved, it is necessary that the appellant’s longstanding drug addiction, and his underlying psychological issues, receive appropriate treatment, of the kind that was available to him before he commenced his term of imprisonment. In addition, the appellant was entitled to rely, as a mitigating circumstance, on the highly restrictive (quasi punitive) nature of the residency in the Hader Clinic in which he commenced his rehabilitative process.
Finally, as outlined by counsel for the appellant, it is clear that a term of imprisonment will weigh more heavily on the appellant than on others. For medical reasons, the appellant is, at present, not able to be vaccinated against the COVID-19 virus, due to his underlying comorbidities. As a consequence, while he is in the prison system, and indeed after his release, he is and will be more vulnerable to infection from the virus. If that were to occur, he is more likely to suffer a severe bout of the illness than would a person who has had the advantage of vaccination. In addition, the appellant’s family circumstances, and in particular his separation from his partner and four young children (including a child who was born since he was incarcerated), is an additional circumstance adding to the burdensome nature of imprisonment on the appellant.
Taking those mitigating circumstances into account, counsel for the appellant submitted that it would be appropriate for this Court, in resentencing the appellant, to impose a further sentence of 12 months’ imprisonment in combination with a CCO. Pursuant to s 44(1) of the Sentencing Act, such a sentence would not take into account the period of some 13 months’ imprisonment already served by the appellant.
Certainly, such a disposition would optimise the appellant’s prospects of rehabilitation, by enabling him earlier to resume the type of treatment which he was undergoing while he was awaiting sentencing. However, and notwithstanding the strong mitigating circumstances relied on by counsel, we do not consider that such a sentence would, ultimately, adequately reflect the objective gravity of the offending of the appellant, nor would it sufficiently vindicate the important sentencing purposes of general deterrence and denunciation.
We are, however, satisfied that there are particularly unusual mitigating circumstances available to the appellant, which require the imposition of sentences which would be significantly less than the sentences that should otherwise be imposed for the kind of offending in which the appellant engaged.
Balancing the objective gravity of the offending on the one hand, and those mitigating circumstances, we would resentence the appellant as follows:
Charge 1 — 4 years and 6 months’ imprisonment
Charge 2 — 18 months’ imprisonment
Charge 3 — 15 months’ imprisonment
Charge 4 — 6 months’ imprisonment.
We would direct that 3 months of the sentence, imposed on charge 2, 2 months of the sentence, imposed on charge 3, and 1 month of the sentence, imposed on charge 4, be served cumulatively on each other and on the sentence imposed on charge 1. We would otherwise confirm the sentences imposed on the three summary charges. Consequently, the appellant will be resentenced to a total effective term of 5 years’ imprisonment. We would direct that the appellant not be eligible for parole for a period of 2 years and 9 months.
Accordingly, the appellant is resentenced as follows:
Charges
Offence
Maximum
Sentence
Cumulation
1
Trafficking in a drug of dependence (commercial quantity) — MDMA
25 years’ imprisonment
4 years and 6 months’ imprisonment
Base
2
Trafficking in a drug of dependence — Cannabis L
15 years’ imprisonment
18 months’ imprisonment
3 months
3
Trafficking in a drug of dependence — Methylamphetamine
15 years’ imprisonment
15 months’ imprisonment
2 months
4
Possessing a registered general category handgun without a licence
4 years’ imprisonment
6 months’ imprisonment
1 month
Summary Charge 4
Non-prohibited person possess a Category A Longarm without a licence
2 years’ imprisonment
2 months’ imprisonment
Nil
Summary Charge 5
Unlicensed person store ammunition in an insecure manner
40 penalty units
Convicted and fined $1,652.20
Nil
Summary Charge 6
Deal with property suspected of being proceeds of crime
2 years’ imprisonment
3 months’ imprisonment
Nil
Total Effective Sentence
5 years’ imprisonment
Non-parole period
2 years and 9 months’ imprisonment
Pre-sentence detention, s 18(1) Sentencing Act 1991
446 days
Section 6AAA statement
8 years’ imprisonment with a non-parole period of 4 years and 6 months
- - -
8
19
0