Barwick v The Queen
[2015] VSCA 100
•15 May 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 1014 0137
| SHANE BARWICK |
| v |
| THE QUEEN |
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| JUDGES: | REDLICH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 April 2015 |
| DATE OF JUDGMENT: | 15 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 100 |
| JUDGMENT APPEALED FROM: | DPP v Barwick [2014] VCC 858 (Judge Lawson) |
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CRIMINAL LAW — Sentence — Indictable offences of trafficking and possession of drugs and summary offences of dealing with property suspected to be the proceeds of crime and possession of prohibited weapon — Appellant sentenced to 5 years’ and 3 months’ imprisonment with 3 years’ non-parole period — Judge pronounced an erroneous sentence on one charge with an order for cumulation — Error corrected and head sentence reduced but no adjustment was made to the non-parole period.
CRIMINAL LAW — Current sentencing practice — Summary offences of dealing with property suspected to be the proceeds of crime, Crimes Act 1958 s 195 — Summary offence of possessing prohibited weapon, Control of Weapons Act 1990 s 5AA — Individual sentences and orders for cumulation for summary offences significantly above dispositions in similar cases — Total effective sentence manifestly excessive — Appeal allowed — Appellant resentenced to 4 years’ and 9 months’ imprisonment with 2 years’ and 7 months’ non-parole period.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms M Fox | Garde Wilson Lawyers |
| For the Crown | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
KYROU JA:
Introduction and summary
On 26 May 2014, the appellant (now aged 31) pleaded guilty to a number of drug and related offences in the County Court. The offences included a number of summary offences which had been transferred to the County Court pursuant to s 145 of the Criminal Procedure Act 2009. Following a plea, the appellant was sentenced on 30 May 2014 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Trafficking in a
drug of dependence [MDMA (‘ecstacy’)] — commercial quantity [Drugs Poisons and Controlled Substances Act 1981 (‘DPCS Act’) s 71AA]25 years 4 years Base 2 Trafficking in a
drug of dependence [methylamphetamine] [DPCS Act s 71AC]15 years 18 months - 3 Prohibited person in possession of a firearm [Firearms Act 1996 s 5(1)] 10 years 12 months 6 months 4 Possession of a
drug of dependence (Cannabis L) [DPCS Act s 73(1)]5 penalty units Convicted and discharged - 5 Possession of a
drug of dependence (methorphan) [DPCS Act s 73(1)]30 penalty units or 1 year imprisonment Convicted and discharged - Summary charges 6 Dealing with property suspected to be the proceeds of crime [Crimes Act 1958 s 195] 2 years 12 months 3 months 9 Possess prohibited weapon [Control of Weapons Act 1990 s 5AA] 2 years 12 months 3 months 15 Dealing with property suspected to be the proceeds of crime [Crimes Act 1958 s 195] 2 years 9 months 3 months 16 Without approval deal with unauthorised explosives [Dangerous Goods Act 1958 s 54(5)] 100 penalty units Convicted and fined $100 - 19 Possess police identification [Police Regulation Act 1958 s 97] 100 penalty units Convicted and fined $1,000 - 20 Possession of cartridge ammunition [Firearms Act 1996 s 124] 40 penalty units Convicted and fined $750 - Total Effective Sentence: 5 years, 3 months Non-Parole Period: 3 years Pre-sentence Detention Declared: 35 days 6AAA Statement: 7 years; non-parole period: 4 years, 5 months
On 14 October 2015, Redlich JA granted leave to appeal on the following grounds:
2.Having corrected the error referred to in Ground 1,[1] the learned sentencing judge adjusted the head sentence but not the non-parole period. In doing so, the learned sentencing judge failed to give effect to her stated intention to allow a ‘significant gap’ between head sentence and non-parole period.
3.No complaint is made as to the individual sentences and orders for cumulation made on the Indictment. In relation to the summary offences which carried a possible custodial sentence (charges 6, 9 and 15[2]), the learned sentencing judge erred by imposing individual sentences and orders for cumulation (a) by failing to take account of current sentencing practice for such offences in the Magistrates’ Court; and (b) that were manifestly excessive in all the circumstances. This resulted in an overall [total effective sentence] and non-parole period that were manifestly excessive in all the circumstances.
[1]Ground 1 related to an initial error by the sentencing judge whereby she purported to sentence the appellant on charge 17, resulting in the total effective sentence being three months higher than she intended. By Ground 1, the appellant contended that, although the error was pointed out and corrected, it remained an error because the judge arguably misunderstood the totality of the applicant’s criminality. Redlich JA did not consider that Ground 1 was reasonably arguable and leave to appeal on that ground was refused.
[2]Ground 3 originally referred to charge 12 instead of 15. The error was corrected at the commencement of the hearing of the appeal.
For reasons that follow, the appeal will be allowed and the appellant will be resentenced.
Circumstances of the offending
On 13 August 2013, as a part of an ongoing police investigation into drug distribution in the Bayside area, the police observed the appellant appearing to carry out a drug transaction in a vehicle at a shopping centre. The police arrested the appellant at that location and found that he was in possession of $1,650 in cash, a flick knife and keys. The appellant’s vehicle was searched and the police located a second flick knife and two Apple iPhones.
The police executed a search warrant at the appellant’s home, where he resided with his grandparents, and located the following:
(a) approximately 1,280 ecstasy tablets in zip lock bags (charge 1);
(b) approximately 16.5 grams of methylamphetamine in zip lock bags (charge 2);
(c) approximately 15 grams of cannabis (charge 4);
(d) $18,500 in cash (charge 6);
(e) a set of knuckledusters, an expandable baton, a boxcutter, two laser pointers and a taser (forming, along with the two flick knives found in the initial search of the appellant and his vehicle, charge 9);
(f) a Raymond Weil gold watch, three gold bracelets, two Apple iPhones, a money counting machine, a safe, a security system, cameras and various other surveillance devices (charge 15);
(g) fireworks (charge 16);
(h) cartridge ammunition in a cash box in the lounge room (charge 20),
(i) digital scales and multiple ziplock bags.
In the course of their investigation, the police executed a search warrant at the home of the appellant’s neighbour where they seized, among other things, two locked cases. The police ascertained that the keys held by the appellant opened the two locked cases.
The first locked case contained a further estimated 1,992 ecstasy tablets (charge 1), a small amount of other tablets containing ecstasy and two white tablets containing methorphan (charge 5). The second locked case contained a MAB branded Model E automatic pistol (charge 3) and a police wallet and badge (charge 19). The appellant accepted on his plea that these items belonged to him and that his neighbour had been looking after them while he was overseas, and that he had not arranged for their return.
The total weight of the seized ecstasy was 1,064.6 grams with a mixed purity ranging from 7 per cent to 60 per cent. The purity of 60 per cent was attributed to a powder with a weight of 4.5 grams. On the plea, the Crown conceded that, apart from this powder, ‘all the rest of it [was] relatively low level’. The weight of the methylamphetamine was 16.5 grams with a purity ranging from 60 per cent to 70 per cent.
There was evidence that the seized ecstasy tablets had an estimated value ranging from $41,363 to $99,270 and that the seized methylamphetamine had an estimated value ranging from $9,429 to $16,500.
The appellant made a no comment record of interview following his arrest on 13 August 2013. He was granted bail on 12 September 2013.
Circumstances of the appellant
The appellant had been in his grandparents’ care since he was approximately six weeks old. His biological mother was a heroin addict and spent substantial periods in jail. At the time of the plea, she lived in Ballarat and had a limited relationship with the appellant. The appellant had never known his biological father. The appellant had an ongoing close relationship with his biological mother’s sister.
The appellant completed his secondary education to Year 11 and then undertook a nine month Technical Tertiary Orientation Program in which he was exposed to a number of trades. His employment history consisted of a number of unskilled jobs. He had ceased working approximately eight months prior to his arrest.
After being granted bail, the appellant worked as a labourer with Property One Solutions. The owner of that company, Michael Di Stella, wrote a letter to the County Court confirming that the appellant had worked for him full-time and that Mr Di Stella was willing to keep the appellant’s job open for a time.
The appellant’s counsel submitted that he had been using drugs in the past, although experimentally. His personal use of the drug ‘ice’ escalated in late 2012, during which time he was employed at AAA Supplements although from early 2013 he effectively ceased working. When asked about the trigger for this escalation, counsel stated that the appellant was ‘really at a bit of a loss to explain’ however it seemed to be ‘a combination of the people he started mixing with, the availability of the drug to him and the grip it got on him’. The appellant’s girlfriend — who at the time of the plea had resumed her relationship with him — broke up with him during this period due to his escalating drug use. The appellant then started gambling, which was said to be connected to his drug use. Counsel for the appellant submitted that he was trafficking to fund his drug use and his gambling habit.
On the hearing of the plea, the appellant enjoyed the support of his grandparents, his biological mother’s sister, his girlfriend and Joseph Lamberti, an experienced drug rehabilitation counsellor.
The appellant’s grandmother gave evidence that, since being granted bail, he was a ‘completely different person’ and was ‘trying to do the right thing all the time’. She stated that the resumption of the appellant’s relationship with his girlfriend had made a ‘really big difference’ and that he now helped his grandparents with various chores. She also stated that the appellant had been complying with all of his bail conditions.
A report of Mr Jeffrey Cummins, clinical and forensic psychologist, dated 22 May 2014 was tendered. Mr Cummins indicated that the appellant had ‘favourable and most probably very favourable’ prospects of rehabilitation.
Mr Lamberti gave evidence that he had first seen the appellant during an in-custody assessment on 6 September 2013. Following his release on bail, and in accordance with a condition of his bail that he follow Mr Lamberti’s lawful directions, the appellant attended approximately 20 sessions with Mr Lamberti. He received treatment on lifestyle changes, behaviour modification and relapse prevention. Mr Lamberti observed that the appellant had disassociated himself from his old friends, was working full-time, had re-established a relationship with his grandparents, his mother’s biological sister, and girlfriend and had expressed remorse for his offending. Mr Lamberti agreed with Mr Cummins’ assessment of the appellant’s prospects of rehabilitation.
The appellant’s prior convictions largely related to driving offences, including the offence of recklessly engaging in conduct that placed another person in danger of serious injury, which arose out of a police pursuit. The appellant also had prior convictions for an unlawful assault, throwing a missile and being drunk in a public place, which arose after he was involved in a fight at a McDonald’s outlet. The appellant had no prior convictions relating to drug offences.
Sentencing remarks
The sentencing judge acknowledged that the context of the appellant’s offending was that his use of ‘ice’ had ‘got out of control’ and that he was trafficking primarily to fund his drug and gambling habit.[3] She also noted that the appellant was being charged for trafficking on the one day only.[4]
[3]DPP v Barwick [2014] VCC 858, [13], [27] (‘Reasons’).
[4]Reasons [27].
The judge also accepted that the appellant has demonstrated a real commitment to changing his lifestyle and had an insight into his offending. This was said to be borne out by the significant behavioural changes that he made since being granted bail, namely disassociating from drug taking friends, working full-time, enjoying work and becoming ‘crime-free and drug-free’.[5] She also made reference to the appellant having ‘built up’ his relationship with his grandparents, his sister and his girlfriend, and accepted that he was remorseful.[6] She considered the appellant’s prospects of rehabilitation were very favourable.[7] She also considered that, through his pleas of guilty, the appellant accepted the seriousness of his offending and took full responsibility for his behaviour.[8]
[5]Reasons [22].
[6]Reasons [25].
[7]Reasons [22].
[8]Reasons [25].
The judge held that a term of imprisonment was appropriate in all the circumstances having regard to the seriousness of the offending, particularly the charge relating to trafficking in not less than a commercial quantity of ecstasy (charge 1).[9] She stated that general deterrence was of paramount consideration in relation to the appellant’s offending. Although she considered that specific deterrence was relevant, it was less important in the light of what she described as ‘the very real steps’ the appellant had already taken towards his rehabilitation.[10]
[9]Reasons [27].
[10]Reasons [28].
In making her orders, the judge stated that she ‘allowed a significant gap between the head sentence and the non-parole period to enable [the appellant’s] supported release back into the community, if appropriate.’ She stated that this was ‘to facilitate [the appellant’s] ongoing rehabilitation and to further encourage [him] to continue [his] rehabilitation.’[11]
[11]Reasons [34].
Initial sentencing error which the judge corrected
The judge proceeded to announce the individual sentences for each of the indictable and summary offences. In respect of charge 3, which was an indictable offence described as ‘being a prohibited person in possession of a firearm’, she sentenced the appellant to 12 months’ imprisonment.[12] She also referred to a ‘charge 17’, which was described as ‘being a prohibited person possessing a firearm’, for which she sentenced the appellant to 12 months’ imprisonment and ordered cumulation of three months.[13]
[12]Reasons [30].
[13]Reasons [32], [33].
After reading out the individual sentences for the indictable and summary offences, the judge stated that the total effective sentence was five years and six months.[14] After making the remarks described at [23] above, she announced a non-parole period of three years.[15]
[14]Reasons [33].
[15]Reasons [34].
Following a question from the prosecutor, the judge realised that she had made an error in sentencing the appellant on charge 17 and that she should instead have sentenced him on charge 16, which concerned the possession of fireworks. This error arose because charge 17, which had originally been included in the prosecution Notice of Related Summary Offences, had become charge 3, for which she had already announced a sentence of 12 months’ imprisonment. The judge’s comments upon realising her error were as follows:
HER HONOUR: … Sorry, I announced 17, which is wrong. So it's Charge 16, possess unauthorised fireworks.
…
HER HONOUR: Yes, I have made a mistake there. That is only a monetary fine, so you will be convicted and fined $100 for that, sorry and I added three months imprisonment, so I will have to confirm that that was wrong. …
After recalculating the total effective sentence, the judge said:
Five years and three months, and the non-parole period is three years. [16]
[16]Reasons [45], [47], [51].
Ground 2: Insufficient gap between head sentence and non-parole period
The appellant submitted that, upon realising her error in sentencing him to a total effective sentence of five years and six months on the basis of ‘charge 17’ and consequently adjusting the head sentence to five years and three months, the judge should also have adjusted the non-parole period she had originally announced.
The appellant relied on the stated intention of the judge to impose a ‘significant gap’ between the head sentence and the non-parole period,[17] which he submitted was appropriate given his efforts at rehabilitation while on bail and his prospects of rehabilitation. By failing to alter the non-parole period in the light of her error in calculating the head sentence, it was said that the judge did not give effect to her intention to impose a ‘significant gap’ between the head sentence and the non-parole period.
[17]See [23] above.
The Crown submitted that, upon realising her error, the judge adjusted the head sentence but confirmed that the non-parole period would be three years. In the Crown’s submission, it was clear that the judge turned her mind to the non-parole period for a second time. The Crown contended that it could be assumed that, as an experienced judge, she could readily make an assessment of the appropriate non-parole period without leaving the bench or giving the matter significant reconsideration.
The Crown also argued that, given the level of offending and the surrounding circumstances, any decision by the judge not to further reduce the non-parole period in the light of her adjustment of the head sentence could not offend her intention to allow ‘a significant gap’ between the head sentence and the non-parole period.
The Crown stated that the ratio between the head sentence and the non-parole period before the judge realised her error was 54.5 per cent and after she realised the error it was 57 per cent. The new ratio was said to be a lenient disposition which gave effect to the judge’s intention of imposing a ‘significant gap’ between the head sentence and the non-parole period. It was further submitted that the difference between 54.5 per cent and 57 per cent was not significant and could not be said to demonstrate any error in the exercise of the sentencing discretion.
We cannot exclude the possibility that the judge subjectively reconsidered the question of the non-parole period upon correction of the error relating to charge 16 and decided to depart from the original ratio between the head sentence and that period. However, if the judge did so, there is no apparent reason for such a departure, particularly in the light of her emphatic statement that she had ‘allowed a significant gap between the head sentence and the non-parole period to enable [the appellant’s] supported release back into the community, if appropriate’.[18]
[18]Reasons [34].
In the light of the spontaneous manner in which the error was detected and resolved, the more likely explanation for the departure from the original ratio is that the judge failed to consider whether the gap between the non-parole period and the head sentence previously fixed should be preserved. This explanation is supported by the judge’s statement that the ‘non-parole period is three years’ which suggests that she simply read out the non-parole period she had previously announced. If the judge had reconsidered what that period should be, it would be expected that she would have said something like: ‘the non-parole period will remain three years.’
In all circumstances, we are satisfied that the judge failed to reconsider the ratio between the non-parole period and the head sentence and that this failure constitutes a sentencing error.
Contrary to the Crown’s submission, the altered ratio between the head sentence and the non-parole period made a material difference in the appellant’s circumstances, as it deprived him of the opportunity of being released on parole approximately 7 weeks earlier than the judge’s sentence permitted.
Accordingly, Ground 2 is made out.
Ground 3: Current sentencing practice for summary offences
At the commencement of the hearing of the appeal, the appellant informed this Court that the reference to current sentencing practice in the Magistrates’ Court in Ground 3 had become ‘moot’ as the parties had not been able to obtain any meaningful information on that Court’s sentencing practice in relation to the summary offences in charges 6, 9 and 15. However, both parties provided to this Court separate tables summarising sentences imposed in relation to those summary offences. Those tables are attached to these reasons as Appendix A in the case of the appellant’s two tables and Appendix B in the case of the Crown’s table.
The appellant’s tables summarised sentences imposed by the County Court in relation to those summary offences.[19] In all but one case, the principal indictable offences in each case summarised in the appellant’s tables related to trafficking or cultivation of drugs offences. [20] The Crown’s table summarised sentences imposed by the Supreme Court and the Court of Appeal in relation to the summary offences in charges 6, 9 and 15. The principal indictable offences in each case summarised in the Crown’s table varied and included trafficking offences, sexual offences, property offences and violence offences.
[19]One of the cases in the appellant’s first table was DPP v Grech [2012] VCC 2117 (‘Grech Sentence’). The appellant also referred to this Court’s appellate decision in that case, Grech v The Queen [2013] VSCA 117 (‘Grech Appeal’).
[20]The exception was DPP v Murphy [2013] VCC 615, where the principal indictable offences were theft, stalking, aggravated burglary, recklessly causing injury and attempted aggravated burglary.
As the appellant’s tables dealt with cases that are more comparable to the present case, they are a more reliable indicator of current sentencing practice for the summary offences of dealing with property suspected to be the proceeds of crime and possession of a prohibited weapon in the context of an offender who is convicted of a trafficking offence. However, even though the Crown’s table dealt with less comparable cases, what was readily apparent from both that table and the appellant’s first table was that, in all but five cases,[21] no offender had been sentenced to 12 months’ imprisonment or more for the summary offence of dealing with property suspected to be the proceeds of crime. In most cases, the sentence imposed for that offence was three or four months’ imprisonment[22] and the level of cumulation was one month or less or total concurrency.[23]
[21]R v Nurdag [2011] VSC 254; DPP v Holder [2014] VSCA 61; Umi v The Queen [2013] VSCA 211; Wilson v The Queen [2012] VSCA 141; DPP v Money [2014] VCC 1207.
[22]Grech Appeal [2013] VSCA 117; DPP v Tran [2012] VCC 725; DPP v Nguyen [2013] VCC 673; DPP v Nguyen [2014] VCC 245 (in which there were two charges of dealing with property suspected to be the proceeds of crime, one of which attracted a sentence of 7 months while the other attracted a sentence of 4 months); DPP v Nelson [2014] VCC 1110; DPP v Mikula [2014] VCC 1809; DPP v Kassar [2014] VCC 12; DPP v Spong [2014] VCC 1860; Grech Sentence [2012] VCC 2117.
[23]Murrell v The Queen [2014] VSCA 337; Abela v The Queen [2014] VSCA 266; Saner v The Queen [2014] VSCA 134; DPP v Holder [2014] VSCA 61; Berry v The Queen [2013] VSCA 349; Umi v The Queen [2013] VSCA 211; Do v The Queen [2013] VSCA 189; Grech Appeal [2013] VSCA 117; Abdifar v The Queen [2012] VSCA 66; R v Stamenkovic [2009] VSCA 185; R v Lines [2007] VSCA 229; R v McLeod [2007] VSCA 183; Wilson v The Queen [2012] VSCA 141; DPP v Tran [2012] VCC 725; DPP v Nguyen [2013] VCC 673; DPP v Nguyen [2014] VCC 245; DPP v Nelson [2014] VCC 1110; DPP v Taleb [2013] VCC 1311; DPP v Nguyen [2013] VCC 1031; DPP v Kelly [2013] VCC 2030; DPP v Markovski [2014] VCC 26; DPP v Nguyen [2014] VCC 708; DPP v Mikula [2014] VCC 1809; DPP v Kassar [2014] VCC 12; DPP v Spong [2014] VCC 1860; Grech Sentence [2012] VCC 2117.
In relation to the summary offence of possessing a prohibited weapon, the parties’ tables did not contain any case in which a sentence of 12 months’ imprisonment was imposed. The longest sentence that was imposed for that offence was nine months’ imprisonment.[24] In most cases, the sentence imposed was one or two months[25] and the level of cumulation did not exceed one month.[26]
[24]Murrell v The Queen [2014] VSCA 337; DPP v Money [2014] VCC 1207.
[25]Green v The Queen [2011] VSCA 371; Guden v The Queen [2010] VSCA 196; Power v The Queen [2010] VSCA 139; DPP v Dinah [2013] VCC 1092; DPP v Battisti [2012] VCC 1385; DPP v Murphy [2013] VCC 615; DPP v Geyer [2013] VCC 1668.
[26]Murrellv The Queen [2014] VSCA 337; R v Lines [2007] VSCA 229; Abdifar v The Queen [2012] VSCA 66; Wilson v The Queen [2012] VSCA 141; DPP v Pollard [2010] VSCA 272; Tarakci v The Queen [2010] VSCA 270; Guden v The Queen [2010] VSCA 196; Power v The Queen [2010] VSCA 139; DPP v Haddara [2014] VCC 536; DPP v Dinah [2013] VCC 1092; DPP v Battisti [2012] VCC 1385; DPP v Murphy [2013] VCC 615; DPP v Geyer [2013] VCC 1668. The order for cumulation in DPP v Money [2014] VCC 1207 was three months.
In the light of the above information concerning the current sentencing practice in the County Court, the appellant submitted that the individual sentences imposed in respect of charges 6, 9 and 15 and the orders for cumulation were manifestly excessive.
In relation to the two proceeds of crime offences (charges 6 and 15), the appellant submitted that his offending was not at the serious end of the spectrum. He contended that the judge should have treated the offences as being part and parcel of the trafficking offences and, accordingly, she should have imposed modest individual offences with total concurrency with the sentences on the indictable offences. This was the approach that was adopted by the County Court in DPP v Nguyen,[27] DPP v Taleb[28] and DPP v Mikula.[29]
[27][2014] VCC 245, [25].
[28][2013] VCC 1311, [37].
[29][2014] VCC 1809, [32].
In relation to charge 15, the appellant emphasised the following circumstances: most of the items the subject of the charge were found in their packaging in his lounge room; no evidence was given as to the value of any of those items; and there was no suggestion that he had stolen any of the items, or was in any way handling stolen property.
In relation to the possession of a prohibited weapon offence (charge 9), the appellant submitted that the judge should have imposed a lower individual sentence. He acknowledged that, on the hearing of the plea it was conceded that, in view of the fact that the conduct the subject of charge 9 constituted separate offending, it was open to the judge to make a modest order for cumulation.
In relation to all three summary offences, the appellant submitted that the sentences were not only inconsistent with current sentencing practice, but they also failed to properly take into account all the relevant mitigating circumstances. The appellant relied particularly on the lack of relevant prior convictions and his excellent prospects of rehabilitation.
In the light of the current sentencing practice that was disclosed by the parties’ tables, the Crown conceded that the individual sentences and the orders for cumulation in relation to summary charges 6, 9 and 15 were stern but did not concede that they were outside the range of sentences that were open to the judge in the proper exercise of her discretion. The Crown submitted that if this Court finds sentencing error and resentences the appellant, it should order a level of cumulation for charges 6, 9 and 15. This was said to be because the offending in relation to the proceeds of crime offences did not entirely overlap with the trafficking offences and the possession of a prohibited weapons offence constituted separate criminality which involved an array of weapons.
In our opinion, the appellant has demonstrated that the individual sentences and orders for cumulation for summary offences 6, 9 and 15 significantly depart from current sentencing practice. Having regard to this disparity and the strong mitigating circumstances in the appellant’s favour, we are also satisfied that those sentences and orders for cumulation are manifestly excessive.
Accordingly, Ground 3 is made out.
Resentence
For the reasons set out above, the appeal will be allowed. The appellant will be resentenced in accordance with the following table:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Trafficking in a
drug of dependence [ecstacy] — commercial quantity25 years 4 years Base 2 Trafficking in a
drug of dependence [methylamphetamine]15 years 18 months - 3 Prohibited person in possession of a firearm 10 years 12 months 6 months 4 Possession of a
drug of dependence (Cannabis L)5 penalty units Convicted and discharged - 5 Possession of a
drug of dependence (methorphan)30 penalty units or 1 year imprisonment Convicted and discharged - Summary charges 6 Dealing with property suspected to be the proceeds of crime 2 years 4 months 1 month 9 Possess prohibited weapon 2 years 2 months 1 month 15 Dealing with property suspected to be the proceeds of crime 2 years 4 months 1 month 16 Without approval deal with unauthorised explosives 100 penalty units Convicted and fined $100 - 19 Possess police identification 100 penalty units Convicted and fined $1,000 - 20 Possession of cartridge ammunition 40 penalty units Convicted and fined $750 - Total Effective Sentence: 4 years, 9 months Non-Parole Period: 2 years, 7 months
We declare pursuant to s 6AAA of the Sentencing Act 1991 that, but for the appellant’s plea of guilty, we would have sentenced him to 6 years’ and 6 months’ imprisonment with a non-parole period of 4 years.
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TABLE OF CASES WHERE RELATED SUMMARY OFFENCE OF “DEAL WITH PROPERTY SUSPECTED OF BEING THE PROCEEDS OF CRIME” (s195 Crimes Act 1958) IS RELEVANT
| CASE | MAIN CHARGE(S) | RELATED SUMMARY CHARGE | SENTENCE ON SUMMARY CHARGE | TOTAL SENTENCE |
| DPP v Tran [2012] VCC 725 (31 May 2012) | Trafficking heroin and methamphetamine | Deal with property suspected of being the proceeds of crime ($22,335). Cash found at house during execution of warrant. | 4 months, 1 month cumulative | Bao TRAN: TES 29m NPP 18m |
| DPP v Nguyen [2013] VCC 673 (17 May 2013) | Trafficking cannabis | Three summary offences of deal with property suspected of being the proceeds of crime ($20,000 cash, a BMW and a Honda Integra Coupe). Cash found at house in shoebox. | On each of the summary offences, sentenced to 3 months imprisonment on each, all concurrent | TES 18m NPP 9m |
| DPP v Nguyen [2014] VCC 245 (7 March 2014) | Traffick DOD CQ (heroin) and traffick DOD (methamphetamine) | Summary charge of deal with property suspected of being the proceeds of crime ($12,810) and second summary charge of deal with property suspected of being the proceeds of crime ($2,350). Cash found on two separate occasions when accused intercepted by police. | 7 months on first summary charge, 4 months on second summary charge. Wholly concurrent. His Honour noted at [25]: “I also regard the proceeds of crime offences as being part and parcel of your trafficking and for those reasons I do not intend to impose any cumulation of sentence arising from either of those proceeds of crime offences or indeed the offences subject to Charge 2 on the indictment.” | TES 4 ½ years NPP 2 ½ years. |
| DPP v Nelson [2014] VCC 1110 (19 May 2014) | Traffick CQ methamphetamine | Deal with property suspected of being the proceeds of crime ($17,950). Cash found on accused when intercepted by police. | 3 months concurrent | TES 4y 9m NPP 3y |
| DPP v Taleb [2013] VCC 1311 (16 August 2013) | Trafficking CQ methamphetamine and possess DOD | Deal with property suspected of being the proceeds of crime ($12,035.40). Cash found at home during execution of warrant | 9 months, concurrent (closely linked to commercial trafficking so no cumulation ordered – see paragraph [37]). | TES 5 ½ y NPP 3y |
| DPP v Nguyen [2013] VCC 1031 (7 May 2013) | Traffick CQ (methamphetamine); cultivate CQ cannabis; theft of electricity | Deal with property suspected of being the proceeds of crime ($82,050). Found at property where cultivation occurred | Sentenced to 5 months on summary charge, 1 month cumulative | TES 5y NPP 2y 10m |
| DPP v Kelly [2013] VCC 2030 (29 November 2013) | Trafficking methamphetamine, handling stolen goods, RCSI, possess DOD. | Deal with property suspected of being the proceeds of crime ($785). Found during search of accused’s vehicle | 1 month, concurrent | TES 4y 6m NPP 30m |
| DPP v Markovski [2014] VCC 26 (31 January 2014) | Main charge trafficking in DOD. | Summary charge of deal with property suspected of being the proceeds of crime ($5370). Found in possession of accused when arrested. | 6 months on summary offence, 1 month cumulation (offences committed whilst on parole). | TES 25m NPP 16m |
| PDPP v Nguyen [2014] VCC 708 (19 May 2014) | Main charge – cultivate CQ cannabis. | Summary charge of deal with property suspected of being the proceeds of crime ($640). Found at premises where cultivation occurring. | 1 month concurrent. | TES 24m NPP 207 days |
| DPP v Mikula [2014] VCC 1809 | Main charge – trafficking CQ meth and other drug offences | Summary charges (2) of deal with property suspected of being the proceeds of crime – 1 re $10,380 cash, 1 re range of electrical items. Found at accused’s premises. | On first summary charge, 4 months. On second summary charge, 3 months. Wholly concurrent. See comments at paragraph [32] – really reflective of drug trafficking and features of the trafficking. | TES 5y NPP 3y 4m |
| DPP v Money [2014] VCC 1207 (4 August 2014) | Main charges – drug trafficking (methamphetamine and 1,4-butanediol) and possession of various drugs | 3 summary offences of deal with property suspected of being the proceeds of crime (Ch 9 - $75,773; Ch 10 - $1880; Ch 11 – mobile phone) | Sentenced to 12 months on Ch 9, 9 months on Ch 10 and 6 months on Ch 11. Sentenced to 9 months on Ch 14. 6 months of the sentence on Ch 9 cumulative, 3 months of the sentence on Ch 14 cumulative, otherwise concurrent. | TES 5y NPP 2y 6m |
| DPP v Kassar [2014] VCC 12 (24 January 2014) | Main charges – Cultivate CQ, theft of electricity | Summary offence of deal with property suspected of being the proceeds of crime ($29,500 cash). Found in kitchen. | Sentenced on summary offence to 3 months wholly concurrent. | TES 28m NPP 14m |
| DPP v Spong [2014] VCC 1860 | Main charge – cultivate CQ | Summary offence of deal with property suspected of being the proceeds of crime ($12,800 cash). Found at property where crop being cultivated. | Sentenced on summary offence to 4 months, one month cumulative | TES 3y 4m NPP 2y |
| DPP v Grech [2012] VCC 2177 (18 December 2012) | Main charges - Trafficking in amphetamine, possession of cannabis. | 3 summary charges of deal with property suspected of being the proceeds of crime - $23,000 cash (one charge); a Telstra T-Hub (one charge) and a car purchased by the accused (one charge). | On the summary charges, 4 months on each charge, one month of each cumulative. | TES 5y 3m NPP 3y |
TABLE OF CASES WHERE SUMMARY OFFENCE OF “POSSESS PROHIBITED WEAPON” IS RELEVANT
| NAME | MAIN CHARGE(S) | RELATED SUMMARY CHARGE | SENTENCE ON SUMMARY CHARGE | TOTAL SENTENCE |
| DPP v Haddara [2014] VCC 536 | Main charges – trafficking DOD, possessing DOD, multiple firearm charges | Number of summary charges including: Ch 21 – possess prohibited weapon (PPW) – three Samurai swords in sheaths, one imitation revolver, one crossbow, one black flick knife and a large metal sword with a serrated edge Ch 26 – PPW – Yukon crossbow | Sentenced on above summary charges to 4 months on each charge, 1 month of each cumulative. | TES 7y NPP 4y 6m |
| DPP v Dinah [2013] VCC 1092 (26 July 2013) | Main charge – possession of items related to drug trafficking | Summary charge of PPW (4 pairs of knuckle dusters). Found in safe in brother’s bedroom. | Sentenced on summary charge to 1 month cumulative | CCO with 3m jail and 9m CCO |
| DDP v Battisti [2012] VCC 1385 (3 Sept 2012) | Main charge – traffick DOD (methamphetamine) | Summary charge of PPW (dagger) | Sentenced on summary charge to 2 months concurrent | TES 12m, all but 77 days suspended for 3 years |
| DPP v Murphy [2013] VCC 615 (23 May 2013) | Main charges – theft, stalking, aggravated burglary | Summary charge of PPW (numchuckas). Found at home during execution of search warrant. | Sentenced to 1 month concurrent | TES 4y 4m NPP 3y |
| DPP v Geyer [2013] VCC 1668 (7 August 2013) | Main charges – firearms offences, drug trafficking | 3 summary charges of PPW (an ASP baton, samurai sword and crossbow). Found during execution of search warrant. | 2 months on each summary charge, concurrent and concurrent | TES 5y NPP 3y |
| DPP v Bailek [2012] VCC 955 (11 July 2012) | Main charges – possess methamphetamine and possess precursor chemical | 4 summary charges of PPW (crossbow, three swords and three butterfly knives). Crossbow was a toy (not contested by Prosecution). Found at accused’s home and put they were not used. | On summary charges of PPW re crossbow – dismissed without conviction. On remaining two summary charges of PPW – convicted and discharged. | 3m wholly suspended for 2 years |
| CASE | MAIN CHARGE(S) | RELATED SUMMARY CHARGE | SENTENCE ON SUMMARY CHARGE | TOTAL SENTENCE |
| R v Nurdag [2011] VSC 254 | Trafficking amphetamine, MDMA, Cannabis, Firearms charge and Manslaughter | Proceeds of crime - Honda motorcycle, Bolwell scooter and Ducel motorcycle. | 12 months 3 months to be served cumulatively | TES 11 years NPP 8 ½ years |
| Murrell v The Queen; DPP v Murrell [2014] VSCA 337 Co offender with Saner and Kamal | Burglary and Theft | Possess Prohibited Weapon – Taser seized in search of home | PPW - 9 m PoC – 9m | TES 17 ½ years NPP 14 years |
| Abela v The Queen [2014] VSCA 266 | Burglaries, thefts, obtaining of property by deception, handling stolen goods, and proceeds of crime | Proceeds of crime Tools, building materials, tyres, computers and other electrical goods. | 6 months’ imprisonment (1 month cumulated | TES 6 years NPP 3 ½ years |
| Saner v The Queen; Kamal v The Queen [2014] VSCA 134 Co offenders with Murrell | Burglary, theft, firearms | Proceeds of crime – 3 charges | 6 months each | Saner NPP 4 y 3 m |
| DPP v Holder [2014] VSCA 61 | 1 x LCQ MDMA | Proceeds of crime Not stated | 1 year | TES 8 years and 6 m NPP 5 years and 9 months |
| Berry v The Queen [2013] VSCA 349 | Dishonesty and other offences 58 offences | Proceeds of crime including three gift cards | 1 month, 7 days cuml | TES 4 years 3 months and 25 days NPP 2 years 6 months |
| Umi v The Queen [2013] VSCA 211 | Robbery and associated offences | Proceeds of crime shotgun and a number of items, including the hooded jacket and shoes worn during armed robbery & shotgun cartridges at the house. Shotgun stolen from a house in Lalor | 18 months | TES 7 years and 6 months’ NPP 4 years and 6 months |
| Do v The Queen [2013] VSCA 189 | Commercial quantity of narcotic plant * Post-sentence diagnosis of terminal cancer – Short life expectancy – New evidence – Mercy – Appeal allowed | Proceeds of crime $560 in cash | 28 days ,14 days cuml | TES 2 years 14 days NPP 247 days (time served) |
| Grech v The Queen [2013] VSCA 117 | Trafficking Amphetamine Possess Cannabis | Proceeds of crime 2004 Ford GT sedan, Telstra T-Hub and $23,750 cash. | 3 months each charge, 1 month on each cumulative | TES 3 years 6 months NPP 18 months |
| R v Stamenkovic [2009] VSCA 185 | Trafficking methylamphetamine | 5 x Proceeds of crime | 1 month | TES 20 months NPP 12 months |
| R v Lines [2007] VSCA 229 | Count of trafficking in a drug of dependence and many summary offences | 4 x Proceeds of crime charges $4,450 x 2, $2,750 in cash and motor vehicle number plates 1 x PPW - sword 1 x PCW – long knife | 6 months on each Proceeds of crime charge | TES 6 years NPP 4 years |
| R v McLeod [2007] VSCA 183 | Counts of trafficking in a drug of dependence (methylamphetamine and ecstasy), and single counts of obtaining property by deception | Proceeds of crime $30,671 in cash, | 6 months | TES 2 years and 10 months. NPP 1 year and 9 months |
| Ludwig v The Queen [2015] VSCA 35 | Drug offences | 4 PPW offences – knuckle duster, laser pointer, mitigation handgun, hunting knife | fines | TES 3 years and 11 months and, after serving 30 months’ imprisonment, a Recognisance Release Order for a period of two years |
| Ahmad v the Queen [2015] VSCA 23 | Affray, trafficking | PPW – imitation firearm PCW - knife | PPW – 250 days PCW – 180 days | TES 3 months' imprisonment and 3 year community correction order for affray - Sentence cumulated on sentence of 590 days' imprisonment for other offences |
| Wilson v The Queen; DPP v Sassine; DPP v Kalakias; Wilson v The Queen [2012] VSCA 141 | Manufacturing and trafficking of MDMA, methylamphetamine and cocaine –Possess pill press – Handle stolen goods | PPW – type not stated Proceeds of Crime – no details stated | PPW, 6 m, 3m x 2, 3m (3 different offenders) PoC: 1 year, 6 m (2 offenders) | S Wilson: 11y 6m / 8y 9m |
| Abdifar v The Queen [2012] VSCA 66 | Multiple offences related to two home invasion incidents | Possession of prohibited weapon (crossbow) Possession of property reasonably suspected of being proceeds of crime $4,125 | 6 months each | TES 7 years and 6 months’ NPP 5 years and 9 months |
| D H C v The Queen [2012] VSCA 52 | Multiple counts of sexual offences against children, including rape and procuring and producing child pornography | Possess a prohibited weapon (not stated what) | $500 | TES 23 years and five months’ imprisonment NPP 19 years and six months’ |
| Green v The Queen [2011] VSCA 371 | Armed robbery | One of possessing a prohibited weapon - knuckleduster three of possessing a controlled weapon two box cutters and a pocket | PPW – 2 months PCW – 14 days each | TES 4 years and two months. |
| DPP v Pollard [2010] VSCA 272 | Trafficking in a drug of dependence, namely methylamphetamine, in a large commercial quantity | Possessing a prohibited weapon without exemption (charges 6 and 7). - sword and a taser gun | 6 months each | TES 3 years and 6 months NPP 12 months |
| Tarakci v The Queen [2010] VSCA 270 | Three counts of trafficking in a drug of dependence, namely methylamphetamine and MDMA (counts 1, 7 and 8), two counts of possessing an unregistered hand gun (counts 2 and 3), three counts of possessing a drug of dependence, namely Alprazolam and MDMA (counts 4, 5 and 9), and two counts of dealing with the proceeds of crime (counts 6 and 10) | Possessing a controlled weapon (a knife) without lawful excuse (charge 11), and seven counts of possessing a prohibited weapon without an exemption or approval, namely, capsicum spray, two flick knives, two extendable batons and two sets of knuckle-dusters (charges 5, 7, 8, 15, 16, 17 and 18). | 6 months on each | TES 42 months NPP 27 months' imprisonment |
| Guden v The Queen [2010] VSCA 196 | Threat to kill, causing serious injury intentionally | PPW – machete (?) | 1 month | TES: 8 years |
| Power v The Queen [2010] VSCA 139 | Trafficking in commercial quantity of ecstasy – Other drug and weapons offences | Possessing a prohibited weapon - samurai sword, | 1 month | TES 4 years 3 months’ NPP 2 years |
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