Bass (a pseudonym) v The Queen
[2014] VSCA 350
•22 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0011
| SAMUEL BASS (A PSEUDONYM)[1] |
| Appellant |
| v |
| THE QUEEN |
| Respondent |
[1]To ensure that there is no possibility of identification of the individuals concerned, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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| JUDGES: | MAXWELL P, WEINBERG and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATES OF HEARING: | 14 & 22 October 2014 |
| DATE OF JUDGMENT: | 22 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 350 |
| JUDGMENT APPEALED FROM: | DPP v [Bass] (Unreported, County Court of Victoria, Judge Maidment, 9 July 2013) |
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CRIMINAL LAW – Appeal – Conviction – Trafficking in commercial quantity of methylamphetamine – Crown witness had undertaken to give evidence against appellant – Witness received substantial discount – Defence counsel cross-examined on factors affecting discount – Jury learnt that witness in protection and family to be relocated – No forensic advantage – Serious forensic disadvantage – Appellant had pleaded guilty to separate trafficking charge – Defence counsel informed jury of guilty plea – No forensic advantage – Serious forensic disadvantage – Serious errors by counsel – Whether ‘flagrant incompetence’ – Whether substantial miscarriage of justice – Conviction inevitable – Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Trafficking in commercial quantity of methylamphetamine – Convicted after trial – Sentenced for trafficking large commercial quantity – Crown concession of error – Appeal allowed – Re-sentenced – Total effective sentence 10y 6m, non-parole period 6y 8m.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms J Dixon QC with Mr M D Stanton | Randles, Cooper & Co Pty Ltd |
| For the Respondent | Mr D Gurvich | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA
SANTAMARIA JA:
Summary
The appellant was convicted, after a trial, of one charge of trafficking in a commercial quantity of a drug of dependence. He had earlier pleaded guilty to another charge of trafficking in the same drug.
He was granted leave to appeal against conviction on three grounds. A further ground was added by leave. The first two grounds rested on complaints about the judge’s directions to the jury. For reasons which follow, those grounds are without foundation and must be dismissed.
The other two grounds contended that, because of erroneous decisions by counsel who acted for the appellant at trial, prejudicial information was placed before the jury which was damaging to the defence. The relevant ground is expressed in the language of ‘flagrant incompetence’, that phrase being taken from the judgment of Gleeson CJ in R v Birks.[2]
[2](1990) 19 NSWLR 677, 685 (‘Birks’).
Argument on the appeal was confined to two of the complaints of error on the part of defence counsel. The first related to the cross-examination of a Crown witness (SA), who had given an undertaking to give evidence for the prosecution and had received a sentencing discount in return. The effect of the cross-examination was to bring to the jury’s attention that, as a result of his having given the undertaking, SA had served his sentence in protective custody; his wife and daughter were in witness protection; and, on his release, they would all probably have to be relocated permanently.
The second concerned the appellant’s plea of guilty to the separate trafficking charge. Defence counsel informed the jury of the fact of the plea of guilty, which he said was explained by the fact that his client was a ‘prolific’ user of methylamphetamine. Counsel later sought unsuccessfully to rely on the plea of guilty to establish that the appellant had had the drug in his possession for his personal use.
For reasons which follow, we have concluded that both of these complaints of error should be upheld. Neither decision by counsel could have conferred a forensic advantage on the appellant, and both were almost certain to be very much to his disadvantage. These were serious errors, and they are likely to have caused real damage to the appellant’s defence.
The ultimate question, however, is whether there was a substantial miscarriage of justice as a result of the errors.[3] Having reviewed the evidence, we are satisfied that the appellant’s conviction on the charge of trafficking a commercial quantity was inevitable and that, as a result, there was no substantial miscarriage.[4] Accordingly, the appeal must be dismissed.
[3]TKWJ v The Queen (2002) 212 CLR 124 (‘TKWJ’); Nudd v The Queen (2006) 80 ALJR 614 (‘Nudd’).
[4]Baini v The Queen (2012) 246 CLR 469 (‘Baini’).
The offending
The appellant, now aged 49, stood trial in the County Court at Melbourne charged with one count of trafficking in a commercial quantity of a drug of dependence (methylamphetamine). After a trial lasting some 19 days, he was convicted of that offence.[5] He had earlier, at an aborted trial, pleaded guilty to one count of trafficking simpliciter in a drug of dependence (methylamphetamine). That offence related to a quantity of 70.6 grams of methylamphetamine found in his possession on the day of his arrest.
[5]DPP v [Bass] (Unreported, County Court of Victoria, Judge Maidment, 9 July 2013) (‘Maidment Reasons’).
On 9 July 2013 the appellant was sentenced by Judge Maidment as follows:
Charge Offence Maximum Sentence Cumulation 1 Trafficking in a commercial quantity of a drug of dependence [Drugs Poisons and Controlled Substances Act 1981 s 71AA] 25 years 10 years Base 2 Trafficking in a drug of dependence [Drugs Poisons and Controlled Substances Act 1981 s 71AC] 15 years 2 years, 6 months — Total Effective Sentence: 10 years Non-Parole Period: 6 years, 8 months
A year later, in July 2014, the appellant was sentenced by Judge Smallwood, in the County Court,[6] on a number of charges to which he had pleaded guilty (on separate Commonwealth and State indictments). He was also dealt with, at that time, for breach of an earlier suspended sentence.
[6]DPP v [Bass] (County Court of Victoria, Judge Smallwood, 18 July 2014) (‘Smallwood Reasons’).
On that occasion he was sentenced as follows:
(a) on one charge of conspiracy to counterfeit money: 6 months’ imprisonment, to be served concurrently with the sentence the subject of the present appeal;
(b) on two charges of possession of a drug of dependence, one charge of being a prohibited person possessing an unregistered firearm, and two charges of trafficking in a drug of dependence: a total effective sentence of 42 months’ imprisonment, with 24 months of that sentence to be served cumulatively upon the sentence the subject of the present appeal; and
(c) on the breach of the suspended sentence of 12 months’ imprisonment: to have that sentence restored, with six months to be served cumulatively upon the sentence the subject of the present appeal.
The appellant’s total effective sentence, as it presently stands, is 12 years and 6 months’ imprisonment. Judge Smallwood fixed a single new non-parole period of 6 years from the date of that subsequent sentence. This had the practical effect of extending by some 14 months the minimum term of 6 years and 8 months that had been fixed in July 2013.
APPEAL AGAINST CONVICTION
The appellant’s initial application for leave to appeal against conviction relied, inter alia, upon the following grounds:
1.The learned trial judge erred in failing to direct the jury that, in order to find the applicant guilty, it had to be satisfied beyond reasonable doubt that he intended to traffick in a commercial quantity of methylamphetamine from the outset and contemporaneously with the actus reus of Count 1.
2.The learned trial judge erred in finding that the applicant could be convicted of both Count 1 and Count 2, and in failing to adequately direct the jury as to how it could use the applicant's plea of guilty and the evidence relevant to Count 2 when considering whether he was guilty of Count 1.
3.The learned trial judge erred in admitting into evidence that [OM] was referred to as ‘the new Mokbel’ and was associated with the Comanchero Motorcycle Club.
4.A substantial miscarriage of justice arose by the admission into evidence that the Crown witness, [SA], and his family were in protection.
…
7.An aggregation of errors has resulted in a substantial miscarriage of justice.
Osborn JA granted leave to appeal against conviction, but restricted the grant of leave to grounds 1 and 4.[7] The appellant subsequently elected to renew his application for leave on grounds 2, 3 and 7.
[7][Bass] v The Queen (Unreported, Victorian Court of Appeal, Osborn JA, 4 June 2014).
He also sought leave to add a new ground 4A, following certain comments made by Osborn JA in granting leave.[8] Proposed ground 4A is in these terms:
[8]Ibid [15].
There was a substantial miscarriage of justice due to the flagrant incompetence of trial counsel.
Particulars
(a)Notwithstanding the warning from the learned trial judge, trial Counsel cross-examined the Crown witness, [SA], in a manner that permitted the learned prosecutor to adduce in re-examination that [SA] and his family were in protection, together with the conditions of that protection. Trial Counsel had done the same thing in the first trial which, in part, resulted in the discharge of the jury (as outlined in ground 4);
(b)Trial Counsel submitted that the jury should be informed that the applicant had pleaded guilty to a single count of trafficking in a drug of dependence, constituted by 70.6 grams of methylamphetamine (mixed), which was located when the search warrants were executed at the applicant’s premises on 7 April 2011. The jury was informed of that fact. Trial Counsel intended to close to the jury on the basis that the trafficking was for the applicant’s personal use, but was prevented by the learned sentencing judge from making that submission because there was no evidence of that purported fact;
(c)Trial Counsel failed to seek a direction from the learned trial judge as to how the jury could use the evidence relevant to Count 2 when considering Count 1;
(d)Trial Counsel failed to seek a direction that, in order to find him guilty, the jury had to be satisfied beyond reasonable doubt that the applicant intended to traffick in a commercial quantity of methylamphetamine from the outset and contemporaneously with the actus reus of Count 1 (as outlined in ground 1); and
(e)Trial Counsel failed to seek a propensity warning regarding the applicant’s discreditable conduct, when the defence case was that the applicant had admitted to trafficking in the methylamphetamine that was located at his premises, he was a trafficker of methorphan, and he was associated with drug-dealers and a person described as ‘the new Mokbel’ who was linked to the Comanchero motorcycle club.
Overview of facts and proceedings
The appellant was alleged to have conducted a trafficking business between May 2010 and April 2011 involving a commercial quantity of methylamphetamine. The business was said to have been conducted from his home in Delacombe, Ballarat.
The appellant’s offending was said to have involved frequent communication with various associates, in the course of which there were:
·negotiations for the purchase of material;
·discussions regarding the quality of drugs manufactured and sold; and
·conversations regarding the conversion of the material produced into either ‘speed’ (methylamphetamine in a powder form) or ‘ice’ (methylamphetamine in a crystalline form).
The appellant was alleged to have been linked to the criminal activities of OM, who was himself the subject of a major joint agency investigation begun in March 2010. That investigation produced a large volume of listening device and other intercept material which formed the basis of the evidence led against the appellant at trial.
When a search warrant was executed at the appellant’s home, the police found 70.6 grams of methylamphetamine. That formed the basis of the charge of trafficking simpliciter to which the appellant later pleaded guilty. The 70.6 grams of methylamphetamine was specifically excluded from the trafficking case brought against the appellant.
At his first trial, the appellant pleaded guilty to that single charge of trafficking simpliciter. At the commencement of the subsequent trial, defence counsel informed the judge that he wished to have the fact of the plea of guilty drawn specifically to the attention of the jury. As will appear, this forensic decision is attacked under the ‘flagrant incompetence’ ground of appeal.
In response to that request, the trial judge said in his opening remarks to the jury:
As you’ve heard, he’s charged with one offence of trafficking in a commercial quantity of methylamphetamine between dates and he’s pleaded guilty already to another charge of possessing a smaller quantity, a quantity less than the commercial quantity, on a specific date, namely 7 April 2011. So you don’t have to trouble yourself about the plea of guilty or the charge to which he’s pleaded guilty. The relevance of the evidence relating to that offence will be explained to you during the course of the prosecutor’s opening in due course.
Prosecution case in summary
The prosecution case may be summarised as follows. On 13 May 2010, both OM and SA went to the appellant’s home. During the course of that visit, the three of them jointly engaged in the process of manufacturing a quantity of methylamphetamine.
Between 13 May 2010 and 7 April 2011, the appellant was involved in the continuous business of trafficking methylamphetamine. On a number of occasions, methylamphetamine was ‘cooked’ at his home.
The appellant’s offending was at a high level. It involved substantial quantities of methylamphetamine, estimated to have a wholesale value of about $1.2 million, and a street value of approximately $2.6 million. The appellant was involved more or less continuously throughout the entire period and participated in virtually every facet of the trafficking business.
The offending involved frequent, often daily, communications with drug associates. The language used by the appellant and his associates, as identified on the listening device and other intercept recordings, was consistent with the business of large scale and highly lucrative methylamphetamine production.
The offending conduct included negotiating the purchase of oil; testing the quality of drugs; purchasing methylamphetamine and meth oil; converting the meth oil into powder; packaging the drug, transporting and arranging its distribution; and selling it directly to other distributors and to users.
During the search of the appellant’s home, police located drug paraphernalia, $39,810 in cash, a cash counting machine, and a number of mobile telephones which recorded various notations of debts.
Defence case in summary
The defence case was as follows. The alleged manufacture of methylamphetamine on 13 May 2010 never occurred. The Crown witness, SA, had a long history of dishonesty, and had received a significant sentencing discount in return for his undertaking to give evidence, and was therefore not a credible witness.
The 70.6 grams of methylamphetamine found in the appellant’s house was for his personal use only.
The listening device and other intercept recordings did not relate to the manufacture or sale of methylamphetamine, but rather to the production of a different and less harmful drug, methorphan. That is a dissociative hallucinogenic drug which, although it can be trafficked, cannot be trafficked in a commercial quantity.
Alternatively, even if it were to be found that the appellant was trafficking throughout in methylamphetamine, and not methorphan, the evidence was such that the jury could not be satisfied that he had intentionally trafficked in a commercial quantity of methylamphetamine.
The issues for the jury
Reflecting the way in which the trial was conducted, the judge identified three issues for the jury to determine, as follows:
(a) during the specified period, did the accused intentionally carry on a business of trafficking in a drug of dependence?
(b) if so, did the accused intentionally carry on the business of trafficking in methylamphetamine? and
(c) did the accused intentionally traffick in not less than a commercial quantity of that drug?
The evidence in support of the Crown case
SA’s evidence
SA was the first witness called by the prosecution. He gave evidence of his pre-existing relationship with OM, and OM’s family and associates.
He described himself as a methylamphetamine ‘cook’, and outlined the process that he would generally follow when engaged in the manufacture of that drug. This included the extraction of pseudoephedrine from pills, the conversion of pseudoephedrine into methylamphetamine in a liquid form and the addition of hydrochloric acid to convert that liquid into a powdered form of the drug.
SA said that, in May 2010, he met OM at the Broadmeadows Shopping Centre. OM asked him if he was prepared to ‘pH something’ that night. He agreed to do so. He explained that, on the night in question, he had accompanied OM to the appellant’s house in Delacombe, where he met the appellant for the first time.
The three men then went into the appellant’s garage. The appellant handed him an almost full 1.25 litre ‘Sprite’ bottle containing methylamphetamine in a liquid form. The appellant also provided him with a pyrex dish and some hydrochloric acid. Together they began adding hydrochloric acid to the oil in order to convert, or ‘pH’, that substance.
SA estimated that the process had produced about one kilogram of methylamphetamine in a crystalline form. It took approximately four hours. When it was completed, the group returned to the appellant’s house. There was then a discussion about money, during which SA observed the appellant making entries in a book.
SA said that it was agreed that he would be paid the sum of $7,000 for his role in ‘cooking’ the methylamphetamine. He said that after leaving the property, he had had no further contact with the appellant.
SA acknowledged that he had subsequently done further ‘cooking’ for OM, and for members of OM’s family. He claimed that in the latter part of 2010, a member of that family had threatened him with harm. At one stage, he had even been held hostage.
Under cross-examination, SA gave further details regarding the work he had done on behalf of OM and other members of OM’s family. He acknowledged having received substantial payments from OM for his drug related activities.
Listening device and intercept recordings
A large number of listening device and telephonic intercept recordings were played to the jury. Transcripts of the conversations were prepared. We shall return to the significance of these recordings in due course.
Expert evidence
Priscilla Thwaites was an Australian Federal Police Crime Scene Investigator. She had dealt with more than 70 clandestine laboratories in the past, and was thoroughly familiar with the various methods by which methylamphetamine was manufactured. In particular, she was aware of how that drug was ‘cooked’.
Ms Thwaites had conducted examinations on various items of equipment seized from the appellant’s property. These included a Gas Mate portable cooker and a metal red Retorts base. The latter object was found to contain methylamphetamine. Ms Thwaites also identified a glass beaker which contained traces of that same drug, as well as a glass splash head which she said was an item typically used in the manufacture of methylamphetamine.
A bottle of acetone had also been found at the premises. According to Ms Thwaites, acetone was regularly used in the production of methylamphetamine. There was also a bottle of methylated spirits which she said could be used as part of the extraction process of pseudoephedrine, en route to the manufacture of methylamphetamine. The same was true of caustic soda, or sodium hydroxide, also located in the appellant’s home. Various other items were found to have small traces of methylamphetamine.
The effect of Ms Thwaites’ evidence was that the paraphernalia located at the appellant’s house was entirely consistent with its having been used as a methylamphetamine laboratory. In her opinion, the recorded conversations between the appellant and others involved the use of terminology consistent with ‘a purification process of methamphetamine, involving re-crystallisation’, also known amongst illicit manufacturers as ‘pH-ing’. In particular, she noted that references by the appellant to ‘acetoning’ and ‘filtering’ were typical of statements made regarding the manufacture of methylamphetamine. So too were the appellant’s comments regarding ‘pseudo in a pink ball’.
Ms Thwaites went on to say that methylamphetamine, in its purest form, was a yellow oil, usually sold after preparation as either ‘speed’ or ‘ice’. Speed was the salt or powder form. In order to convert it from its liquid form to a salt or crystalline product it was necessary to add hydrochloric acid, either as a liquid or gas, to the oil, and mix it with a solvent such as ether. The addition of the acid would bring down the pH and result in the formation of methylamphetamine hydrochloride. That was a solid that could then be filtered to produce either powder or crystals.
In a conversation recorded on 22 October 2010, the appellant and others made reference to a drug known as ‘DXM’. Ms Thwaites said that this was an abbreviation for the chemical dextromethorphan, commonly known as methorphan. Methorphan was a drug typically found in cough suppressant. It was legally available, and could be purchased at any chemist shop as an ingredient of cough mixture. Methorphan would be of no use whatever in the production of methylamphetamine. Ms Thwaites acknowledged, however, that methorphan might possibly be used as a ‘cutting agent’ for some drugs. She also accepted that, if taken above its prescribed dosage, it might act as a dissociative hallucinogen.
Ms Thwaites concluded her evidence in chief as follows:
Prosecutor:Overall, what is your opinion having read the transcripts and in particular in reference to the chemicals, precursors and methods used, what do you say about them in relation to the production of methylamphetamine?
Witness:Um, that some of the processes and the chemicals and the equipment can be related to the manufacture of illicit drugs. Some of the precursors and chemicals used indicate that they are consistent with the production of methylamphetamine.
Prosecutor:What about the equipment that was found, the magnetic stirrers, the filter papers, the hot plates, found and talked about, that is magnetic stirrers, filter papers, frying pan, pH testers?
Witness:The equipment that I’ve mentioned can be used or is commonly found in clandestine laboratories and also has household uses as well, some of those pieces of equipment.
Under cross-examination Ms Thwaites acknowledged that she had only a limited understanding of methorphan. She was, however, aware of the fact that it was a scheduled drug, albeit one regarded as less harmful than methylamphetamine, and therefore not in the same category of seriousness as a drug of dependence.
Nathan Green was an Australian Federal Police Forensic Scientist, with extensive experience in the field of illicit drug manufacture. His evidence was to much the same effect as Ms Thwaites’. He was cross-examined regarding his knowledge of methorphan, which was more extensive than Ms Thwaites’.
Mr Green agreed that methorphan would appear as a white powder or salt. He said it was unlikely that methorphan could be refined or produced by using hydrochloric acid, and denied that methorphan could also appear as an oil. Methorphan was always, to his knowledge, a solid, albeit one that was capable of being dissolved in a cough suppressant syrup. He had never come across methorphan in pill form.
In re-examination, Mr Green explained why hydrochloric acid could not be used to convert methorphan into a crystallised substance. Any attempt to ‘cook’ methorphan using hydrochloric acid would inevitably fail, as the end product would not convert into a salt or crystalline substance.
Detective Sergeant Keith Randall, of the Australian Federal Police, gave evidence that the prices mentioned by the appellant in his discussions with his various co-offenders were all consistent with methylamphetamine being the drug under discussion.
Defence evidence
The defence called no evidence.
Charge to the jury
The trial judge told the jury that the defence case was, primarily, that the appellant had been trafficking throughout in methorphan, and not methylamphetamine. The prosecution case was that the methorphan defence was fanciful, particularly having regard to the evidence given by Ms Thwaites and Mr Green, and the contents of the various listening device and telephone intercept recordings.
The Crown case, his Honour said, was that the evidence pointed overwhelmingly towards the appellant having engaged in a substantial drug enterprise, worth at the very least many hundreds of thousands of dollars. In those circumstances, so the Crown argued, the jury should have no difficulty in concluding that the appellant intended, throughout the relevant period, to traffick in a commercial quantity of methylamphetamine.
His Honour then summarised the defence case, as follows. SA’s account of having joined with the appellant in the manufacture of methylamphetamine on 13 May 2010 should be entirely rejected. While it was not disputed that the appellant had been engaged throughout in the manufacture and trafficking of illicit drugs, he had been producing methorphan, not methylamphetamine. But, even if the jury rejected the methorphan defence, the Crown had failed to establish that the appellant had intended to traffick in a commercial — as distinct from some lesser — quantity of methylamphetamine.
Jury note
During their deliberations, the jury sent the judge a note asking ‘Is the commercial quantity over a period of time, ie 12 months? Or does that amount to a one-off?’ After discussing the note with counsel, his Honour responded:
The short answer is over a period of time. In other words, it’s the total amount that the prosecution are able to prove if they can, that the trafficking was involved with over the period covered by the indictment.
Ground 1: failure to direct that intention had to be contemporaneous with acts of trafficking
It is trite law that the appellant could not be convicted of trafficking in a commercial quantity of methylamphetamine on a Giretti[9] basis unless he was proved to have had the intention to traffick in at least that quantity at the time he engaged in the conduct said to constitute the offence.[10] The insuperable obstacle for this ground, however, is that the defence raised no issue in the trial about the contemporaneity of intent and conduct.
[9]R v Giretti (1986) 24 A Crim R 112 (‘Giretti’). In R v McCulloch (2009) 21 VR 340, 345 [12]; (2009) 193 A Crim R 580, 586 [12], the Court (Maxwell P, Vincent JA and Hargrave AJA) said: ‘The Court of Criminal Appeal made clear in R v Giretti, a decision which has been followed and applied on many occasions thereafter, that the term ‘traffick’, interpreted in the context of the Drug, Poisons and Controlled Substances Act 1981, encompasses both single occasions of the prohibited conduct and engagement in a continuing enterprise or business. It has also been decided that in the context of a single transaction, before an individual can be convicted of trafficking a commercial quantity, the prosecution must establish that he or she possessed the intention to traffick in at least the designated amount of the substance.’ (citations omitted).
[10]R v McCulloch (2009) 21 VR 340, 345 [14]; (2009) 193 A Crim R 580, 587 [14]; Mustica v The Queen (2011) 31 VR 367, 374–5 [30]–[34].
In his closing address, defence counsel said:
Don’t be under the misapprehension that Mr [Bass] isn’t a drug trafficker, because he clearly is with methorphan.
….
Behind all the impression that’s been put to you, the facade of methylamphetamine, it just isn’t. It is methorphan. Yes, it is a drug under the schedule here in Victoria, but it has no commercial quantity attached to it. It doesn’t have the ability to charge not less than commercial trafficking for methorphan, because it doesn’t have one. It derives, essentially, from what was spoken of, that it can be used as a cough suppressant. Predominantly, it is a cough suppressant, but in certain quantities, it can produce hypnotic and disassociate effects, as does methylamphetamine.
The similarities between the two are close. In fact, they’re so close that that creates the dilemma. One can understand why investigators, when looking at this, would prefer methylamphetamine. It does have a commercial quantity. Under the Commonwealth Code — that’s not what you're here to look at — methorphan is not a prohibited substance if it is dextromethorphan, which is what this is.
There was certainly an issue as to whether the appellant had the requisite intent to traffick in a commercial quantity of methylamphetamine, as distinct from some lesser quantity of that drug. But there was no issue as to whether there had been sufficient contemporaneity between his state of mind and the acts that he performed.
It was not denied — in fact, it was positively asserted — that throughout the relevant period the appellant intended to traffick in large quantities of an illicit drug. It was the identity of that drug that was in issue, not whether the appellant’s state of mind and his conduct were contemporaneous. Unsurprisingly, therefore, the trial judge was never asked to give a specific direction regarding the need for coincidence between intent and actus reus, and did not do so.
In R v Momcilovic,[11] the Court adapted and reaffirmed what was said in R v Luhan[12], as follows:
The vice inherent in [these] grounds of appeal is that they were premised on a different trial having been conducted from that which was actually conducted on [the applicant’s] behalf. Those who seek to challenge the result of a trial will be treated as bound by the manner in which the trial was conducted, and confined to the matters actually put in issue by them or by their counsel (except where a matter, though not raised, can reasonably be seen to have emerged as a real question from the evidence actually adduced at the trial).[13]
[11](2010) 25 VR 436 (Maxwell P, Ashley and Neave JJA).
[12][2009] VSCA 30.
[13]R v Momcilovic (2010) 25 VR 436, 479 [160] citing R v Luhan [2009] VSCA 30, [37].
What was said there applies with equal force here. Ground 1 must fail.
Ground 2: whether the appellant could be convicted of both count 1 and count 2. Whether the trial judge failed adequately to direct the jury as to how the appellant’s plea of guilty on count 2 could be used in relation to count 1
Osborn JA concluded that there was nothing in this ground. The charges were originally laid as alternatives but, by the time the first trial was scheduled to take place, they had been clearly identified as separate charges. It was on that basis that the appellant pleaded guilty to count 2.
In his opening address, the prosecutor told the jury in the clearest possible terms that the evidence concerning the appellant’s possession of 70.6 grams of methylamphetamine on 7 April 2011 was not relied on to support the Giretti[14] trafficking alleged in count 1. The trial proceeded on that basis.
[14]Giretti (1986) 24 A Crim R 112.
The trial judge, in his charge to the jury, made it clear that the evidence concerning the finding of the 70.6 grams of methylamphetamine at the appellant’s home could not be used ‘on its own’ to show that he had engaged in the business of trafficking. Undoubtedly, however, that evidence was relevant by way of ‘context’, in support of the prosecution case that the appellant had been involved in the manufacture and sale of methylamphetamine throughout the period leading up to that date. On that basis, evidence of his possession of the drug was relevant, whether or not the fact of his plea of guilty was put before the jury.
Osborn JA was correct to refuse leave on this ground. We would do the same.
Ground 3: the references to OM as ‘the new Mokbel’, and his association with the Comanchero Motorcycle Club
Osborn JA refused leave to appeal on this ground. The reference to OM as ‘the new Mokbel’ was made in a covertly recorded conversation which was both relevant and admissible. The prosecution case was that OM was a major supplier of drugs. Whatever connection he may have had to the Comancheros was, at best, incidental. The trial judge offered to provide a warning to disregard publicity about motorcycle gangs. Not surprisingly, defence counsel did not take up that offer.
There is no substance whatever to this ground. Indeed, it should not have been pressed.
Ground 4: miscarriage of justice arising from defence counsel’s cross-examination of SA
As a general rule, an accused person is bound by the way in which his or her counsel conducted the case at trial.[15] Exceptionally, however, the conduct of counsel can be seen to have been so ‘flagrantly incompetent’ as to lead an appellate court to conclude that the accused was denied a fair trial. The relevant authorities will be examined shortly. As will appear, the question for the appeal court is whether there has been a miscarriage of justice.
[15]Patel v The Queen (2012) 247 CLR 531, 562 [114] (French CJ, Hayne, Kiefel and Bell JJ).
First, it is necessary to examine closely what happened with regard to SA at trial. Self-evidently, SA’s evidence was an important component of the prosecution case against the appellant. If possible, therefore, his credit had to be impugned.
Defence counsel put to SA, and he accepted, that he had undertaken to give evidence against the appellant (and others) and that he was acting in accordance with his undertaking. He further put to SA that, as a result of having given that undertaking, he had received a significant reduction in penalty. SA had pleaded guilty to trafficking in a large commercial quantity of a drug of dependence, the maximum penalty for which is life imprisonment, but had been sentenced to only three years’ imprisonment on that charge.
In short, defence counsel had, by this stage, established that SA had derived a substantial benefit by offering to give evidence against the appellant, and by having done so. He had also established that SA stood to lose that benefit if, for whatever reason, he failed to ‘swear up’ to his account of the appellant’s involvement on the night in question.
But defence counsel went further and sought to explore with SA other factors that may have contributed to the very significant reduction in sentence that he had received. The first matter counsel raised with SA was that he would have to serve his entire sentence in protective custody. The relevant exchange was in these terms:
Counsel:By you entering into that undertaking, … you were aware, were you not, that when you were sentenced, that you received some discount as part of that undertaking. You received a discount in your sentence. You weren't given, apart from other matters, which I will raise in a moment, but just — that was told to you that by doing that, that allowed you to get some discount in your overall sentence from the judge?
SA:I find this when I got sentenced, yes.
Counsel:Yes. When you were speaking — sorry, when you gave your plea and you were sentenced and you were sentenced on 16 August 2011, before His Honour Judge Smallwood, you received consideration, in terms of a discount in sentencing, one was as I just mentioned because of the undertaking that you had given to the court?
SA:Yes.
Counsel:The other one was because you pleaded guilty early?
SA: Yes.
Counsel:The other one - and I'll go through them in point form, easier for you, the other was that it would be difficult in terms of you serving a sentence, because you would have to be in protective custody?
SA:Yes.
Counsel:You also received a discount in relation to what's called a utilitarian benefit, that is, you save the court and the State having to have a trial?
SA:Yes.
Counsel:And you also received a discount. I'll just read this bit. You also received a discount in relation to the cooperation that you gave with police?
SA:Yes.
Counsel:So there were a number of factors that enabled you to receive a reduced sentence when your plea was entered and the plea was heard?
SA:Yes.
Counsel:Is that right?
SA:Yes.[16]
[16]Emphasis added.
When it came to re-examination, the prosecutor raised with the judge, in the absence of the jury, the fact that defence counsel had opened up the topic of the sentence discount and the factors which had led to it. He submitted that the proposition advanced through the cross-examination, at least implicitly, was that SA had received ‘a discount beyond what one would reasonably expect him to get’. The contention underpinning the cross-examination was said to be that SA had been prepared to lie to the police, and to the court, ‘about cooking with — about pH-ing with [the accused] so that he could get the substantially discounted sentence …’.
This was an accurate characterisation of the cross-examination, in our view. Unsurprisingly, it was not disputed by defence counsel in argument before the judge. Defence counsel had squarely put in issue both the size of the discount and the reasons for it. The prosecutor pointed out that, although defence counsel had mentioned some of the factors that had contributed to the size of the discount, he had not mentioned all of them.
The trial judge encouraged counsel to confer to see whether a solution could be found to the difficulty raised by the prosecutor. No resolution was achieved. The prosecutor then prepared a document, based on the sentencing remarks of the judge who had sentenced SA, which set out 12 points paraphrasing those remarks.
In subsequent discussion, the trial judge pointed out — by reference to the passage of transcript set out above — that the issue defence counsel had raised was why SA had been given the extraordinarily generous reduction in sentence that he had. Defence counsel himself had ‘opened up what those factors were’.
When defence counsel continued to maintain that he had not opened up that topic, the trial judge expressed concern that counsel did not appear to appreciate the consequences of his actions in cross-examining SA as he had done. Even after extensive argument, his Honour said, defence counsel appeared not to understand the implications of his conduct.
Eventually, after a short further adjournment, it was agreed that a summary of the sentencing considerations which had contributed to SA’s low sentence would be read to SA for his comment. The transcript reads as follows:
Prosecutor:[SA], yesterday […], the defence barrister, asked you some questions about some of the reasons that His Honour gave when he gave you a reduced sentence. Do you remember him asking you questions about that?
SA: Ah yes.
Prosecutor:What I want to do is go through in a bit more detail the reasons or a summary of the reasons — some of the reasons that [the trial judge] gave when sentencing you on 16 August 2011. You were in court when [the trial judge]sentenced you?
SA: Yes.
Prosecutor:On that day, on 16 August 2011, [the trial judge] gave a number of reasons as to why he was giving you a reduced sentence?
SA: Yes.
Prosecutor:I want to read these out to you and just get your comment as to whether you agree this is a summary of what his Honour said. Did he say that he was giving you a discount to the sentence because you had undertaken to give evidence and that had, for you, a number of serious consequences?
SA: Yes.
Prosecutor:Did he say that your wife and daughter now live under witness protection and upon release your wife and daughter may well have to be relocated?
Judge: You, your wife and daughter.
Prosecutor:Sorry, you, your wife and your daughter may well have to be relocated? Did he say that?
SA:(Inaudible reply.)
Prosecutor: Hello?
SA: Ah yes.
Prosecutor:Did he say that because you have made statements - and this is a summary. It's not a — it’s a summary. Because you have made statements and given an undertaking to give evidence your imprisonment is by way of 23 hour lockdown. That is in effect a sentence of solitary confinement?
SA: Yes.
Prosecutor:Did he say that in your time in prison you would only be allowed an occasional phone call?
SA:Yes.
Prosecutor:Did he say that upon release you will have to be relocated probably for life. You will have to sever contacts with all previous associates?
SA: Yes.
Prosecutor:Did he say that you have pleaded guilty to trafficking in a large commercial quantity? The admissions that you made to police in the early stages gave rise to the charge of large commercial quantity. It is clear that such a charge could not have been sheeted home to you without your admissions?
SA: Yes.
Prosecutor: Did he say that there is genuine remorse for your offending?
SA: Yes.
Prosecutor:Did he say that ‘you could not have been more cooperative. The utilitarian benefit of your plea of guilty in terms of avoiding a trial for trafficking in large commercial quantity attracts a discount at the highest end bearing in mind the case against you was created by your own admissions’?
SA: Yes.
Prosecutor:Did he say that ‘you have undertaken to give evidence against a number of people and bearing in mind the nature of the evidence that you will give, the fact that you will be in protection for the rest of your sentence, in effect, in solitary confinement’ that he took those factors into account?
SA: Yes.
Prosecutor:Did he say that after that ‘you, your wife and child will be severely dislocated. It gives rise to a sentence discount of the highest order and at a level rarely seen’?
SA: Yes.
Prosecutor:Did he then sentence you to trafficking in a large commercial quantity, three years imprisonment, recklessly endangering life, six months imprisonment and being a prohibited person with a prohibited weapon, six months imprisonment, a total effective sentence of three years, six months, with a minimum of 18 months?
SA: Yes.
The jury were thus made aware that there were ‘a number of serious consequences’ for SA as a result of his having undertaken to give evidence and that, upon release, SA and his family would have to be relocated ‘probably for life’.
Unsurprisingly, the prosecutor emphasized these matters in his closing address to the jury. He noted the ‘danger [SA] had placed himself into in giving evidence.’ The trial judge, in his charge to the jury, reminded them that SA’s family were living in protection.
Before this Court, the appellant submitted that the jury should never have been apprised of the fact that SA and his family were under protection. Nor should they have been told of the possible need for the family to be relocated in the future. It was said that the probative value of such evidence, such as it was, would have been significantly outweighed by the danger of unfair prejudice to the appellant. According to the submission, all that was relevant to SA’s credibility was his state of mind at the time he made his statement and undertook to give evidence for the Crown. That did not require any exploration of the kind undertaken by defence counsel in cross-examination.
Shortly before the hearing of this appeal, defence counsel of his own volition sought to provide an explanation for his conduct in cross-examining SA as he had done. Having evidently been provided with the appellant’s revised written case (which included ground 4A), counsel filed an affidavit in the appeal, in which he relevantly deposed as follows:
10.On the 18th March 2013 [during the first trial], I cross-examined [SA]. During that cross-examination I endeavoured to extract from the witness that he had received a discount in part through his providing of an undertaking to give evidence against a number of persons, one of which included the applicant. This is a proper form of cross-examination in an attempt to put to the jury that the witness’s credibility should be considered carefully as he has a motive to lie, by receiving in part a discount for giving evidence against the applicant. This was a proper forensic line of questioning. This witness was a key witness for the Crown and an endeavour to undermine this witnesses (sic) evidence was crucial.
11.The inclusion of the Sentencing Judges (sic) remarks was highly prejudicial. I had sought advice in relation to this matter and the subsequent cross-examination of the witness [SA] on the second trial from two Senior Counsel. Counsel had also made submissions as to the prejudice that would flow from its inclusion.
12.All that was intended to be drawn from the cross-examination was that in part he had received a sentencing discount for providing an undertaking to give evidence against a number of people, one of those being the applicant. It would not stop in re-examination a complete summary of the various reasons, but in my respectful opinion a direct recitation of the Learned Sentencing Judges (sic) remarks was highly prejudicial and should not have been allowed.
13.On the 9th of April 2013, the witness [SA] was cross-examined again. Again the issue of the sentencing discount was raised and questions were put to the witness. There was a legitimate forensic reason for establishing the discount in order to reduce the credibility of the witness. It was never trial counsel’s intention that a recital of the Learned Sentencing Judges (sic) remarks should be provided to the jury. The evidence in relation to the Learned Sentencing Judges (sic) remarks including the position that the witness’s family were in protection was not relevant to the applicant. It was argued globally that it was prejudicial to the applicant.[17]
Consideration
[17]Emphasis added.
Puzzlingly, counsel seems not to have recognised that the course he actually took in the cross-examination went far beyond merely establishing that SA had received a sentencing discount for undertaking to give evidence against the appellant (amongst others). As we pointed out earlier, he quickly established those facts. As his affidavit correctly states, that was necessary to enable him to put to the jury that SA had a motive to lie. But those facts were entirely sufficient for that purpose. Nothing more was required.
As appears from the transcript, however, the cross-examination went much further. As we have said, counsel’s evident purpose was to establish that SA had received a very substantial discount. Thus he put to SA — who agreed — that he had been told it was ‘a very good sentence considering the seriousness of the charges’.
Defence counsel evidently perceived some forensic advantage in establishing that the sentencing discount which SA received had been unusually large. He evidently considered that, if this could be established, it would significantly strengthen his attack on SA’s credit. The unstated thesis appears to have been that SA ‘had told a big lie in order to get a big discount’.
In our view, no forensic advantage of that kind could ever have been achieved. First, the jury were in no position to make any assessment as to whether the particular sentencing discount given to SA was small or large. To recite the maximum penalty for the relevant offence — as defence counsel did — gave no indication of what the sentence might otherwise have been or, more importantly, of what kind of discount an offender could expect to receive in return for an undertaking to give evidence. In order to establish that this was an unusually large discount, a whole body of evidence about the usual practice with discounts for co-operation would have been required.
Secondly, even if it could have been demonstrated that this was an unusually large discount, that would not, of itself, have supported an inference that SA was therefore more likely to have told lies. The forensic point to be made was, simply, that the attraction of a sentencing discount itself provided a motive to lie. In that regard, it must be remembered that the undertaking to give evidence (and an outline of the proposed evidence) has to be provided well before the sentencing hearing takes place. At that stage, the witness is likely to have only the most general idea of what sentencing discount he/she may receive.
Thirdly, any comparative examination of sentencing discounts for co-operation would have revealed that — as was the case here — the most significant sentencing consideration is the risk to which the witness exposes himself (and his family) by agreeing to give evidence.[18] It would, in short, have been impossible to demonstrate that it was the quality or (perceived) value of the evidence which SA had promised to give which was the sole, or even the primary, explanation for the size of the discount.
[18]See Scerri v The Queen (2010) 206 A Crim R 1, 8–9 [33]–[37], 10 [43] (Maxwell P and Buchanan JA). See also Kauwenberghs v The Queen (2008) 186 A Crim R 197, 218–9 [98]–[100] (Fullerton J).
On the other hand, opening up the other reasons for the discount almost certainly weakened the defence attack on SA’s credit. If the cross-examination about the discount had been narrowly confined, the defence could have portrayed SA as having received a significant benefit — a large reduction in sentence — in return for giving evidence against the appellant. Once the profound implications for SA’s future and that of his family were revealed, however, it became much clearer to the jury just how dangerous a course this was for SA to have taken. In short, the benefit to SA turned out to be much more qualified than the jury might otherwise have thought.
Defence counsel was well aware of the fact that any cross-examination about the factors which explained the sentencing discount might open up the issue of the risk to SA’s safety and that of his family. He had, after all, taken exactly the same course at the first trial, with the same result. On that occasion, too, the prosecutor had been given leave to re-examine on the basis of the sentencing remarks, and that in turn had caused the trial to be aborted. Counsel also knew, having read the sentencing remarks in relation to SA, exactly what factors the sentencing judge had taken into account in giving SA what the judge described as a ‘quite exceptional’ discount.
The dangers, so far as the appellant were concerned, were obvious. Once counsel suggested to SA that he had been treated with particular leniency for undertaking to give evidence against the appellant, it was inevitable that the prosecutor would seek — as he had done at the first trial — to ensure that the jury were made aware of all of the factors which had contributed to the sentencing discount. The trial judge was undoubtedly correct in permitting the prosecutor to do so.
On the appeal, the Crown submitted that, although defence counsel had undoubtedly erred by cross-examining SA as he had, his conduct did not in the end give rise to any miscarriage of justice. It was submitted that the jury would have had no reason to think that the risks to SA, which led to the need for him to be placed in protective custody and for his family ultimately to be relocated, were in any way attributable to the appellant.
We are not persuaded by that submission. The jury were well aware of the fact that SA was giving evidence in support of a very serious charge against this appellant. There was a distinct possibility that one or more jurors in this trial might have speculated that one of the reasons why SA needed protection was because of the risk that the appellant would seek reprisals against him. In that sense, defence counsel’s cross-examination was damaging to the appellant’s prospects of acquittal.
For the reasons set out above, we concluded that the complaint underpinning ground 4 was made good. It was a different question, however, whether it was sufficient — either on its own or in combination with other matters raised under ground 4A — to give rise to a substantial miscarriage of justice. We deal with that question below.
Ground 4A: ‘flagrant incompetence’ of counsel
We have already dealt with the first limb of ground 4A which, of course, merely replicates ground 4.
The second limb of ground 4A concerns defence counsel’s decision at trial to inform the jury that his client had, at an earlier stage, pleaded guilty to trafficking in methylamphetamine.
During his short opening address to the jury, defence counsel told them, quite openly, that his client was a drug user. He said to the jury that the appellant ‘uses methylamphetamine and he has a well-worn cracky pipe because he is a drug user’. Not only did the appellant use drugs, but he was a ‘prolific user of methylamphetamine’. This, counsel said, was why the appellant had pleaded guilty to the charge of having trafficked in the 70.6 grams of methylamphetamine found in his possession on the day of his arrest.
In the event, the appellant was not called to give evidence. Nor was any other witness called in the appellant’s case.
A proper appreciation of this aspect of ground 4A requires an understanding of the approach taken by the defence to the Giretti[19] charge. As noted earlier, it was conceded that the appellant had been engaged in the commercial production of illicit drugs, but it was submitted that what he had been manufacturing was methorphan, and not methylamphetamine.
[19]Giretti (1986) 24 A Crim R 112.
After the close of evidence, the trial judge reminded defence counsel of what he had said to the jury in his opening address. His Honour asked:
Now, whilst [SA] I think gave evidence that he/they used the cracky pipe to test the product produced from the PH-ing on the occasion of his visit, I don't know that I have spotted any other evidence to the effect that your client is a drug user, much less a prolific drug user. Is there such evidence?
And shortly after, he asked:
Is there material upon which a jury could infer that your client is a prolific drug user in methylamphetamine and if so where is it?
Defence counsel replied that it had always been the appellant’s case that he was a drug user. The trial judge responded that he would not permit counsel to make assertions from the Bar table if they were not supported by any evidence. Counsel then replied that it was open to the prosecution to show that the appellant was not a prolific drug user, seemingly casting the onus upon the Crown to do so. The following exchange then took place:
Judge:It’s not a matter for the prosecution to deal with anything other than the evidence and that you make extravagant comment in your opening address that is now not supported by the evidence or at least there is, it seems to me, no clear support in the evidence, I really can’t see how you can establish that he is a prolific drug user, much less that that is why he pleaded guilty to 70.6 grams. You are not entitled to say that. I mean your client could go into the witness box and say that but he didn’t. I assumed that you were going to call your client with comments like that.
Counsel: I am entitled to say it.
Judge: No, you are not. You are not.
Counsel: Well, with respect I think it’s a matter for the jury —.
Judge: Because it’s not supported by the evidence.
Counsel: The evidence is —.
Judge:You can’t say why your client pleaded guilty because he hasn’t told us.
…
Judge:Where do you get, ‘That is why he pleaded guilty to 70.6 grams’ that he’s a prolific drug user?
Counsel: Because they are my instructions.
Judge: Well, they might be but you can’t give your instructions - - -
Counsel: No, of course not.
Judge: Without providing evidence - - -
Counsel: That’s the evidence I rely upon.
Judge:And you are not entitled to address the jury on that basis and I shall stop you if you do.
Counsel:That’s the evidence I rely upon, Your Honour, that I mentioned before.
Judge:What, that he pleaded guilty because — to 70.6 grams because he’s a prolific drug user?
Counsel: No, because - - -
Judge: Well, what about that assertion? Where is the evidence of that?
Counsel:It's in the listening device (indistinct), that’s how we are putting it, Your Honour.
Judge:Well, you can’t put that, that is why he pleaded guilty because he has not said why he pleaded guilty.
Counsel:It should have been that's why he asserts his guilt, that he uses drugs and those drugs - - -
Judge:No, can’t say that either. You can’t say why he asserts his guilt because he has not given evidence of that effect and I shall stop you if you do.
…
Counsel:All right. Well, I won't mention that bit and I will say that there are references to him using.
Judge: Just be very careful what you do mention.
Counsel: Yes, I will note that down, Your Honour.
Judge:I am giving you examples of what you should not say to the jury.
Counsel: Yes, I will note that down.
Judge:You cannot say anything to the jury that is not supported by the evidence without risking me having to put the jury right.
Counsel:I will not say anything about him as to the plea. Well, we can say it was for his own use?
Judge: You can’t. How can you say that?
Counsel: Why not?
Judge:How can you say that it was for his own use? He has pleaded guilty to trafficking in it?
Counsel:So Your Honour is saying I cannot mention it at all as to the plea?
Judge:You can’t say why he had it in his possession because your client has not given evidence and there is no other evidence of it.
Counsel:I see. I will not say that. I will not say anything about why he had it in his possession then, Your Honour.[20]
[20]There were other matters (such as that the appellant had been a successful harness race trainer) that were raised in counsel’s short opening address to the jury which were also unsupported by evidence.
These extracts are highly revealing, and deeply concerning. As is perfectly clear from the exchanges with his Honour, defence counsel made serious errors, both legal and forensic. The legal error is evident from counsel’s mistaken assumption that the fact of his client’s plea of guilty to trafficking in methylamphetamine could provide an evidentiary basis for a submission to the jury that:
(d) he was a prolific user of methylamphetamine; and
(e) the methylamphetamine found in his home was for his personal use.
First, as the judge pointed out, the plea by itself could never have constituted evidence of either of those matters. Secondly, and in any event, by pleading guilty to the charge of trafficking the appellant had admitted that the quantity of the drug found in his possession was not for his personal use. He was, in other words, a confessed drug trafficker.
The forensic error was equally fundamental. As already pointed out, the entire defence case was that, although the appellant was involved in the commercial production of drugs, he was engaged in the manufacture of methorphan, not methylamphetamine. For the jury to be told that he had pleaded guilty to trafficking in methylamphetamine undercut his entire defence.
On the appeal, the Crown submitted that there was a rational basis for counsel’s decision to tell the jury of the appellant’s plea of guilty to trafficking in methylamphetamine. It showed the appellant to be a man prepared to admit what he had done, and not dissemble before the jury. In that sense, the Crown submitted, defence counsel may have thought that the appellant’s openness and candour would support his claim that he was engaged throughout in the manufacture of methorphan, and not methylamphetamine.
That submission must be rejected. For the reasons we have given , there was nothing to be gained by telling the jury of the plea of guilty to trafficking methylamphetamine. That fact alone could establish nothing favourable to the defence case, but would inevitably be highly destructive to the only defence which counsel had been instructed to put forward, that is, the methorphan defence.
Conclusion on ground 4A
For the reasons we have given, the appellant has made out the first two of his complaints regarding the conduct of the defence at trial. Those are the complaints regarding, respectively:
·the cross-examination of SA about the sentencing discount (grounds 4 and 4A(a)); and
·the jury being informed of the appellant’s plea of guilty to trafficking in methylamphetamine (ground 4A(b)).
Three other complaints were advanced under cover of ground 4A, each relating to what was said to be a failure on the part of defence counsel to seek a necessary direction. At the conclusion of oral argument on the first two complaints, however, the Court indicated that it would not be necessary to hear argument on the remaining complaints. We indicated to the parties that we were satisfied that the first two complaints were made good.
The only remaining question — which we reserved, and on which there was further oral argument — was whether there had been a ‘substantial miscarriage of justice’, within the meaning of s 276(1) of the Criminal Procedure Act 2009. That required consideration of whether the conviction was inevitable.[21] Before we proceed to explain why we have concluded that it was, it is important to refer to the authorities dealing with a contention of the kind advanced under ground 4A, alleging the ‘flagrant incompetence’ of counsel.
[21]Baini (2012) 246 CLR 469.
‘Flagrant incompetence’ and miscarriage of justice
In Birks,[22] Gleeson CJ said:
The relevant principles may be summarised as follows:
1.A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3.However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.[23]
[22](1990) 19 NSWLR 677.
[23]Ibid 685.
In TKWJ,[24] Gleeson CJ elaborated upon these principles. His Honour said:
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.[25]
[24](2002) 212 CLR 124.
[25]Ibid 130-1 [16].
In the same case, Gaudron J put the matter this way:
As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of ‘flagrant incompetence’, ‘egregious error’ or the like.
An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial.
…
Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question.[26]
[26]Ibid 134–5 [31]–[33] (citations omitted).
In Nudd,[27] the High Court again considered the question of incompetence of counsel as the basis for an appeal against conviction. Gleeson CJ said:
A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. … It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function.[28]
[27](2006) 80 ALJR 614.
[28]Ibid 618–9 [9] (citations omitted).
His Honour added:
The reluctance of courts of criminal appeal to enter upon an assessment of the performance of trial counsel is well founded in considerations both of principle and of pragmatism. That reluctance is reflected in the way in which courts respond to an argument that there has been a miscarriage of justice arising from the incompetence of counsel. Such arguments are becoming increasingly common. Nowadays, when most criminal trials and appeals are funded by legal aid, appellants are often represented by counsel who did not appear at the trial. By hypothesis, trial counsel lost; an appellant supported by legal aid will often want new counsel to conduct the appeal. The client may well be dissatisfied with the performance of trial counsel. Appeal counsel will have his or her own ideas about the way the defence case should have been conducted. Inevitably, in some cases, trial counsel will be blamed for failure. Such blame is pointless unless it can be related to a legal rubric of relevance to the jurisdiction being exercised by the court of criminal appeal. The relevant rubric is miscarriage of justice.[29]
[29]Ibid 619–20 [12].
Gummow and Hayne JJ, in a joint judgment, observed that to describe trial counsel’s conduct of a trial as ‘incompetent’ (with or without some emphatic term like ‘flagrantly’) must not be permitted to distract attention from the real question at issue, namely whether in all the circumstances there had been a miscarriage of justice.[30] Callinan and Heydon JJ said:
In this case, on any assessment, whether subjective or objective, counsel’s conduct was incompetent to a serious degree. So too, on either a subjective or an objective assessment, some at least of counsel’s conduct cannot be rationally justified or explained, although perhaps it can be said that the overstatement of the matters required to be proved by the prosecution may have contributed to the appellant’s counsel’s further and significantly greater overstatement of them. That is not however the end of the matter. Was the appellant’s trial a fair one in all of the circumstances? Did justice miscarry to the extent that the appellant was deprived by his counsel’s conduct of a chance of an acquittal? In answering these questions, we keep in mind that the more apparently serious the offence, the greater the need there generally will be for punctiliousness in all respects in the conduct of the trial.
In the end we have come to the conclusion that the appellant was not deprived of a chance of an acquittal despite the incompetence of his counsel at the trial. This is so because we consider the case against the appellant to have been a strong one, and indeed one which was effectively unanswerable.[31]
[30]Ibid 622 [24]. See also Kirby J, 629 [64].
[31]Ibid 644 [158]–[159].
More recently, in Patel v The Queen,[32] the High Court said:
Although the law recognises the possibility that justice may demand exceptions, it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel. The correctness of their counsel’s decision for the most part will not be relevant, for it is the fairness of the process which is in question. Where it can be seen that a failure to object was a rational, tactical decision, the Court is entitled to conclude that no unfairness attended the process.[33]
[32](2012) 247 CLR 531 (‘Patel’).
[33]Ibid 562–3 [114] (French CJ, Hayne, Kiefel and Bell JJ) (citations omitted).
In James v The Queen,[34] Maxwell P surveyed the authorities cited by the High Court in Patel before concluding that:
… in the appellate consideration of whether the course of a trial has occasioned a miscarriage of justice, very great significance is attached to informed decisions made by defence counsel about the best way to conduct the trial in the interests of the accused. As will appear, the proposition which underpins those decisions is that, in an adversarial system, the making of such decisions on behalf of an accused is itself an exercise of the right to a fair trial.[35]
[34][2013] VSCA 55.
[35]Ibid [4].
It follows that, when a ground such as 4A is advanced, the question is not whether there was ‘flagrant incompetence’ on the part of trial counsel but whether, in all the circumstances, there was a miscarriage of justice. In this State, that translates to whether there was a substantial miscarriage of justice.
Substantial miscarriage of justice
Section 276 of the Criminal Procedure Act 2009 provides:
276 Determination of appeal against conviction
(1)On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that—
(a)the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b)as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c)for any other reason there has been a substantial miscarriage of justice.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 274.
In Baini,[36] the High Court analysed the effect of s 276. By majority, the Court held that on its proper construction, this Court, when applying that section, could only be satisfied that an error of the kind that had occurred in that case (a wrongful refusal to sever certain counts from the indictment) did not amount to a substantial miscarriage of justice if it concluded from its review of the record that conviction was inevitable.
[36](2012) 246 CLR 469 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
In Andelman v The Queen,[37] this Court identified some of the salient features in what the majority had said in Baini. This Court said:
[37](2013) 227 A Crim R 81 (Maxwell P, Weinberg and Priest JJA).
·Section 276 is not to be interpreted solely by reference to the interpretation given to the common form criminal appeal proviso in Weiss v The Queen. Comparing ‘a statute with its legislative predecessor … is only a useful exercise if doing so illuminates the actual text of the new provision’.
·There is no ‘single universally applicable’ definition of a ‘substantial miscarriage of justice’. That is because the possible kinds of miscarriage of justice dealt with by s 276(1) are ‘too numerous and too different to permit prescription of a singular test’.
·With respect to ss 276(1)(b) and (c) (with which this appeal is concerned), the types of substantial miscarriage of justice include cases where ‘there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial’.
·Those paragraphs also cover cases where ‘there has been a serious departure from the prescribed processes for trial’.
·A ‘substantial miscarriage of justice’ may occur where there has been a ‘departure from process’ even if the ‘verdict was open or it is not possible to conclude whether the verdict was open’.
·The question whether there has been a ‘substantial miscarriage of justice’ ‘may be affected by the strength of the prosecution case’. In such cases, however, the Court of Appeal must be aware of the ‘natural limitations that attend the appellate task’.
·A finding that the conviction was ‘inevitable’ is merely ‘relevant’ to the Court’s determination of whether there has been a substantial miscarriage of justice. It does not conclude the issue.
·If it is submitted that the verdict was inevitable, the appellant need show ‘no more than that, had there been no error, the jury may have entertained a doubt’.
·In assessing ‘inevitability’, the Court of Appeal must ‘decide that question on the written record of the trial’.
·In cases such as Baini where evidence has been wrongly admitted or excluded, the Court cannot determine that there has been no substantial miscarriage of justice ‘unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made’.
This reading of the majority’s reasons in Baini demonstrates that s 276 is to be applied on a case-by-case basis, having regard to the particular nature of the error made in the trial. Further, whereas the strength of the Crown case may well be a relevant factor, it is not necessarily determinative.[38]
[38]Ibid 99–100 [85]–[86] (citations omitted).
In our view, the two forensic decisions of defence counsel which we have examined — concerning the cross-examination of SA, and the jury being told of the appellant’s plea of guilty to trafficking in methylamphetamine — involved serious errors on counsel’s part. Neither could have operated to the appellant’s forensic advantage and both (especially the second) would inevitably operate to his disadvantage. More concerningly still, counsel appears not to have understood — then or subsequently — that they were errors, less still how serious they were.
The critical question, however, is whether there was, relevantly, a substantial miscarriage of justice. Put another way, was the appellant deprived of a chance that was fairly open to him of acquittal?
In some cases, errors as significant as those made in this case may well result in a conviction being set aside. However, Baini[39] specifically recognises that some errors, even those that can be said to be material, will not vitiate a conviction.
[39](2012) 246 CLR 469.
Such a conclusion is not one that will be lightly reached. As in Nudd, however, there will be times when it can be said that the prosecution case was of such overwhelming strength, that an accused, who was poorly represented, could not successfully have defended the charges even with the aid of the most resourceful and competent of counsel. In those circumstances, there will be no substantial miscarriage of justice.
In our view, this was such a case. We should emphasise that our conclusion does not depend at all upon any finding as to the credibility or otherwise of SA. Nor does it depend upon the fact that the appellant pleaded guilty to having trafficked methylamphetamine in respect of the 70.6 grams of that drug found in his possession when he was arrested. For the purpose of considering whether the conviction of Giretti[40] trafficking was inevitable, we have specifically put both of those matters to one side.
[40]Giretti (1986) 24 A Crim R 112.
The real difficulty from the appellant’s point of view is that the evidence presented against him was absolutely overwhelming. In effect, he convicted himself, out of his own mouth, of Giretti trafficking.
The appellant did so by engaging in the most obvious and incriminating discussions regarding the manufacture and sale of methylamphetamine, all of which were covertly recorded and played to the jury. To make matters worse, he ran a completely hopeless defence which could not withstand a moment’s scrutiny.
We have already set out what the Crown’s experts said as to the paraphernalia located at the appellant’s home. In their opinion, essentially unchallenged, what the police uncovered was nothing less than a methylamphetamine laboratory. Moreover, these experts made it very clear that the discussions that were recorded concerned the manufacture and sale of methylamphetamine, and had nothing whatever to do with any lesser drug such as methorphan.
Even then, given the high bar set by Baini of having to be satisfied that, notwithstanding the significant errors made by trial counsel, a conviction was inevitable, we may have paused before arriving at that conclusion. However, the evidence went a good deal further than even that. The 900 or so pages of listening device and intercept material that was placed before the jury, extending over the period from May 2010 until April 2011, presents a devastating and, we think, unanswerable case against the appellant.
In Hudson v The Queen,[80] this Court addressed the significance of ‘comparable’ or ‘similar’ cases:
The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.
Sentences imposed in ‘like’ cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of ‘current sentencing practices’ which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.
‘Like’ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that ‘comparable cases’ can only provide limited assistance to this Court. They may however be used in search of unifying principles. That was not the use to which counsel sought to employ them here.[81]
[80](2010) 30 VR 610 (‘Hudson’).
[81]Ibid 616–7 [27]–[29] (citations omitted).
In R v McCulloch,[82] the offender was convicted after trial of two counts of trafficking in a commercial quantity of a drug of dependence (tetrahydrocannobinol and methylamphetamine). He was sentenced to 9 years’ imprisonment on each count, with 5 years on Count 2 cumulated on Count 1, resulting in a total effective sentence of 14 years’ imprisonment, with a non-parole period of 11 years.
[82](2009) 193 A Crim R 580.
In that case, the offender had a particularly relevant prior conviction dating back to 1987 when he was found guilty of trafficking in heroin and sentenced to 11 years’ imprisonment with a non-parole period of 8 years and 6 months.
In the present case, by way of contrast, the Crown concedes that the appellant’s prior convictions are of no real significance. Prior to being sentenced on these matters, he had not previously served a term of imprisonment. Nor had he even been under the supervision of Corrections Victoria under a community-based order.
That said, it is to be recalled that the appellant committed his present offences whilst on bail for similar matters. As the judge below correctly observed, his prospects of rehabilitation must be viewed as ‘guarded’.
In Trajkovski,[83] the offender had been found guilty at trial of trafficking in a commercial quantity of methylamphetamine (1.475kg mixed, at the time the commercial range was 1.25kg-2.5kg mixed).[84] He was resentenced by the Court of Appeal to 5 years’ imprisonment on the count of trafficking in a commercial quantity to which he had pleaded not guilty, and 8 years’ imprisonment on the count of trafficking in a large commercial quantity of a drug of dependence, as part of a total effective sentence of 11 years and 3 months’ imprisonment, with a non-parole period of 8 years and 3 months. However, as the Crown pointed out, the entire duration of the relevant offending in Trajkovski was approximately 4 months. That is to be contrasted with the appellant’s offending which occurred over the best part of a year.
[83](2011) 32 VR 587.
[84]Count 1 was a Giretti count of trafficking methylamphetamine in a large commercial quantity. The applicant was acquitted on that count, but convicted of the alternative count of trafficking in a commercial quantity.
In Mustica,[85] the offender was found guilty at trial of two counts of trafficking in a large commercial quantity of a drug of dependence (2.7kg of methylamphetamine, and 1.3kg of MDMA). The Court of Appeal substituted verdicts on both counts for the lesser offences of trafficking in a commercial quantity offences, to which the offender had always been willing to plead guilty. It was found that the trafficking was ‘… in the upper range of trafficking in a commercial quantity of each drug’. The offender fell to be sentenced as a serious drug offender on Count 2. He was resentenced to 6 years and 6 months’ imprisonment on Count 1 and 5 years’ imprisonment on Count 2. This was part of a total effective sentence with other offences of 10 years’ imprisonment, with a non-parole period of 6 years and 6 months. Once again the Crown pointed out that the duration of the relevant offending was much shorter than that of the appellant’s offending in the present case.[86]
[85](2011) 31 VR 367.
[86]In Mustica, Ashley JA (with whom Bongiorno and Hansen JJA agreed) said (at 383 [79]) ’In resentencing the applicant … on counts 1 and 2, the factual essence of the situation is really unchanged. Even if it be accepted that the extent of the proved quantity of methylamphetamine trafficked was somewhat less than the amount alleged, the applicant was a persistent and active trafficker in both that drug and MDMA. He trafficked quantities of each drug which were — it is to be assumed — in the upper range of trafficking in a commercial quantity of each drug. He was not a drug user. He trafficked for profit, and his turnover in money terms was large — even if his business ineptitude meant that his trafficking was not the commercial success that he no doubt hoped that it would be.’
In Mokbel,[87] the offender pleaded guilty to six offences, including blackmail, trafficking in a commercial quantity of ketone (count 3), trafficking in a large commercial quantity of methylamphetamine (an agreement to sell 2.2kg pure, with the large commercial quantity being 750g when in pure form) (count 4).[88] On the offence of trafficking in a commercial quantity of ketone, the offender was sentenced to 7 years’ imprisonment. On the offence of trafficking in a large commercial quantity of methylamphetamine, he was also sentenced to 7 years’ imprisonment.[89] The offender had a limited prior history, and not for drug offending. The Court of Appeal refused the application for leave to appeal against sentence.[90]
[87](2011) 211 A Crim R 37.
[88]Ibid 40–41 [10]–[11].
[89]Ibid 46 [40] (‘identical sentences were imposed on counts 3 and 4’).
[90]No ground of appeal was directed at the conviction for trafficking a commercial quantity of a drug of dependence contrary to s 71AA of the DPCSA .
In Rosenlis,[91] the offender had pleaded guilty to trafficking in a commercial quantity of methylamphetamine (Count 1) and trafficking cocaine (Count 2). He had been dealing in methylamphetamine for about a year. He was 21 years old at the date of sentence and had good prospects for rehabilitation. He was sentenced to 3 years and 4 months’ imprisonment on Count 1, and 4 months’ imprisonment on Count 2, with 2 months of the sentence imposed on Count 2 cumulated on Count 1, resulting in a total effective sentence of 3 years and 6 months’ imprisonment with a non-parole period of 21 months. The Court of Appeal dismissed the appeal against sentence.
[91][2012] VSCA 217.
In Dawid,[92] the offender pleaded guilty to one charge of trafficking in a large commercial quantity of methylamphetamine (between 3-4kg mixed, effectively between 3 and 4 times more methylamphetamine than the appellant had trafficked), and to one charge of trafficking in cocaine. The offending occurred over a year, between 28 October 2010 and 3 August 2011 and the offences were put on a Giretti basis. The offender was sentenced to 8 years and 6 months’ imprisonment on Count 1, and 2 years’ imprisonment on Count 2. Six months of the sentence imposed on Count 2 was cumulated on the sentence imposed on Count 1, resulting in a total effective sentence of 9 years’ imprisonment. A non-parole period was set of 6 years and 2 months.[93] In Dawid, Kaye AJA (with whom Redlich and Whelan JJA agreed) referred to the sentences imposed in the County Court in Turner[94] and Borg[95] as ‘particularly lenient’.[96] In those circumstances, it is difficult to see how the appellant can gain any comfort from them.
[92][2013] VSCA 64.
[93]See the comment of Kaye AJA on the policy behind sentencing for trafficking offences at [180] above.
[94][2012] VCC 1984. Following a plea of guilty, the offender was sentenced to 3 years’ imprisonment with a non-parole period of 18 months. In that case, the offender was sentenced for the offence of trafficking a commercial quantity of a drug on the basis that the trafficking was at the upper end of the commercial quantity tier. He had sold methylamphetamine for approximately 6 and a half months and had a mid-level role.
[95][2012] VCC 1662. The circumstances of Borg were almost identical to those of Turner.
[96][2013] VSCA 64, [48].
What these cases seem to indicate is that the sentence of 10 years imposed upon the appellant for trafficking in a commercial quantity of methylamphetamine is, on any view, close to the very top of the range for offending of this nature by an offender with no significant prior convictions. That is not to say that a sentence of that order should necessarily be viewed as excessive. It does, however, provide a cautionary note, in the light of mitigating factors that may have emerged since the sentence was imposed, as to what an appropriate resentence should be.
Personal circumstances of the appellant
The appellant’s background is best described in the report of Mr Ian Makinnon, as that report was summarised by the sentencing judge.[97] The appellant was born in Australia and grew up in the Ballarat area. He had a normal childhood and good relations with his parents and with his siblings. His father worked as a factory worker and as a horse trainer. His mother, who had primary responsibility for bringing up the children, also worked in a factory until she was injured in a workplace accident. The appellant is now 49 years of age. He is unmarried and, before he was sentenced by Judge Maidment, had been in a relationship. He was educated to year 10 and thereafter became an itinerant factory worker. He worked part-time with his father training racehorses. He himself became a successful trainer, especially in harness racing. He was disqualified from working in the industry for a period of six years as a result of having been found to have used banned substances on the horses.
[97]Maidment Reasons [15]–[29], [37]–[38].
The Crown contends that the appellant’s offending whilst on bail must be seen as diminishing his prospects for rehabilitation. In that regard, it should be noted that the previous offending was of a nature similar to the present.
In R vBasso & Frazzetto,[98] Chernov JA said:
To a great extent, whether the commission of the offence whilst the offender is on bail amounts to an aggravating factor is to be resolved by the application of common sense …[99]
[98](1999) 108 A Crim R 392.
[99]Ibid 397–8 (citation omitted).
In our view, the fact that these offences were committed while the appellant was on bail for similar offences constitutes an aggravating factor, warranting an increase in the penalty that might otherwise be appropriate.
In his reasons for sentence dated 18 July 2014, Judge Smallwood described the appellant’s efforts to rehabilitate himself. His Honour said that he was particularly impressed by two letters, one from a psychologist and one from a prison officer, with regard to the peer program in which the appellant was engaged. His Honour was also impressed with a program regarding school children in which the appellant was participating.
The psychologist said of the appellant, in a letter that he exhibited to his affidavit, that he:
... is currently employed at … Prison as a Peer Listener. The parameters of this role include providing emotional support, advocacy and liaison and information provision to the prisoners located in this correctional facility. A role of this nature requires considerable trust, reliability and dedication, all qualities of which [the appellant] has demonstrated. Appointment to this role is not considered lightly given the demands and requirements of the position, however [the appellant] conducts himself in a manner that is highly regarded by both prisoners and staff within this prison facility.
The appellant has also exhibited to his affidavit a letter from a corrections officer, which speaks of the appellant’s involvement in the prison’s Schools Program. He says that the appellant has been a panel member in the program for the better part of 2014. He goes on to say that the appellant, in his role as an active panel member, is:
… honest when referring to his offending and the effects it had on family and victims. [The appellant] has conducted himself extremely well at all times on this program.
The appellant has also exhibited certificates showing that he has completed various educational programs conducted by the local TAFE. As previously indicated, he has also referred to the confiscation proceedings which have been initiated in respect of the property where he was arrested, and a second rental property. He says that he is concerned that, if his appeal against conviction is dismissed, there will be no basis to challenge those proceedings, and he will be left without any significant assets.
Conclusion
The offence for which the appellant must be resentenced is, as we have said, very serious. He must be severely punished and his conduct clearly denounced. A sentence must be imposed which reflects the need to deter others from engaging in drug trafficking on a scale, and of the type, engaged in by the appellant.
The appellant has shown no remorse whatever for his offending in relation to the Giretti trafficking.[100] He ran a spurious and unmeritorious defence. He is not to be punished for having done so, but that fact reflects poorly on his prospects for rehabilitation. So too does the fact that he committed that offence whilst on bail for other offences.
[100]Giretti (1986) 24 A Crim R 112.
On the other hand there are, as we have indicated, mitigating circumstances that were not present when the appellant was first sentenced for these offences. He appears to have taken some steps towards his rehabilitation since commencing his period of imprisonment. We accept, as Judge Smallwood did, that this demonstrates a level of insight that has emerged belatedly, but for which the appellant is nonetheless entitled to be given credit. To that extent, we agree with Judge Maidment’s assessment that the appellant has ‘reasonable, though guarded prospects of rehabilitation.’[101]
[101]Maidment Reasons [37].
We also accept that, to some degree, regard must be had to those sentences imposed in other broadly comparable cases involving similar offending. So too must regard be had to the sentence imposed on OM, as a matter going to parity.
It will be noted that the Judge Maidment imposed a sentence of 2 years and 6 months for the offence of trafficking that gave rise to charge 2. He directed that it be served wholly concurrently with the sentence of 10 years on charge 1. The appellant submitted that, by imposing a separate sentence on charge 2, albeit wholly concurrent, the judge effectively breached the rule against double punishment. In his submission, the trafficking on charge 2 was wholly subsumed by the offence contained within charge 1, and should not have resulted in any punishment at all.
That particular complaint must be rejected. The parties at all stages treated the trafficking that formed the basis of charge 2 as entirely separate and distinct from the Giretti trafficking encompassed within charge 1. The act of possession that gave rise to charge 2 did not, in any way, overlap with the various acts that, taken together, gave rise to charge 1.[102]
[102]Lecornu v The Queen (2012) 36 VR 382, 386 (Maxwell P with whom Hollingworth and Cavanough AJJA agreed).
In our opinion, the sentence of 10 years’ imprisonment imposed on charge 1, though at the very high end of the range for offending of that nature, was within range. Had it not been for the specific error previously identified, in sentencing the appellant on a factual basis that was not properly open, we would not have interfered with that sentence.
Nonetheless, because the sentencing discretion is reopened, we are no longer concerned, at this stage, with whether the sentence of 10 years’ imprisonment was itself manifestly excessive. We are engaged in the task of resentencing the appellant, having regard to the totality of the material before this Court. Some of that material, which is favourable to the appellant, was not before the sentencing judge.
When sentencing the appellant afresh, we bear in mind not just that new material, but also what we have gleaned for ourselves from considering both comparable cases, and sentencing statistics. We consider, in the light of all that material, that a term of 8 years’ imprisonment is appropriate for charge 1. We would impose the same sentence of 2 years and 6 months as was fixed below on charge 2, and we would make no part of that sentence cumulative upon the sentence imposed on charge 1. We reiterate that we do not consider that sentence to involve any element of double punishment.
Existing sentences
As we have previously indicated, on 18 July 2014, Judge Smallwood: (a) restored 6 months of an earlier suspended sentence; and (b) sentenced the appellant in respect of further Federal and State offences. In sentencing the appellant for those further offences, his Honour imposed a total effective sentence of 42 months. He directed that the restored 6 months be served cumulatively upon the sentences imposed by Judge Maidment. That order seems to us to have been appropriate.
Addressing the principle of ‘totality’, Judge Smallwood directed that 2 years of the total effective sentence of 42 months be cumulated upon the sentence imposed by Judge Maidment. Once again, that order seems to us to have been entirely appropriate.
This Court has no power to interfere with any of the individual sentences imposed by Judge Smallwood. Neither the appellant, nor the Crown, has appealed against any of them. However, it does have power to adjust the sentences imposed by way of resentence if, taking into account the individual sentences, and orders for cumulation imposed by Judge Smallwood, the resentence would offend the principle of totality.
When he imposed sentence on 9 July 2013, Judge Maidment declared presentence detention at 300 days. In the light of our decision to resentence the appellant, it will be necessary to recalculate the period of presentence detention.
Judge Maidment considered that, given the appellant’s prospects of rehabilitation, he stood ‘to benefit from a substantial period on parole’.[103] We agree. Pursuant to s 14 of the Sentencing Act 1991, we are required to fix a single new non-parole period. The total effective sentence arising from the resentence on both charges is, as we have said, 10 years and 6 months. Judge Maidment fixed a non-parole period of 6 years and 8 months, but that did not take into account the additional sentence that would be imposed in July 2014 by Judge Smallwood.
[103]Maidment Reasons [42].
In our opinion, it is appropriate to fix a non-parole period of 6 years and 8 months. That is notionally longer than the period of 6 years fixed by Judge Smallwood, but in reality is less than the 7 years and 10 months that his Honour had in mind when he ordered that the non-parole period to commence on the day that he did. Such presentence detention as is available to the appellant upon our resentencing him will restore the equilibrium.
Addendum
Given the allegation of ‘flagrant incompetence’ levelled at trial counsel, on behalf of the appellant, this Court took the view that it would be appropriate to afford him a second opportunity to respond to what had been said against him during the hearing of the appeal. To that end, he was provided with transcript of the appeal itself, and invited to respond in any way he saw fit.
In the event, counsel swore an affidavit dated 17 December 2014 in which he explained how it was that he came to present the ‘methorphan defence’, notwithstanding its patent hopelessness. He acknowledged that there was overwhelming evidence in support of the alleged offending in the form of telephone intercepts and listening device material. He also acknowledged that the appellant had, on a number of occasions, told him that if he entered the witness box and gave evidence ‘he would be a shocker’. He made it clear that the appellant had told him repeatedly that he would not give evidence because it would be ‘damaging to him’.
Nonetheless, counsel insisted that he had come to a legitimate forensic decision in running the defence as he had, given his instructions. He pointed to what he submitted were indications in the evidence that there might be some substance to the appellant’s claim that, throughout the entire period of the offending, he had only ever manufactured methorphan.
We have considered the various passages in the intercept material to which counsel has referred. We were, of course, aware of those, and had already factored them into our conclusions. The fact that there were some rare and isolated references to methorphan in close to 1,000 pages of intercept material does not assist trial counsel in his attempts to justify having put forward a positive defence that could not possibly have succeeded. Indeed, some of the material to which trial counsel referred, makes it even clearer that the ‘methorphan defence’, upon which the entire trial was conducted, was at all times hopeless.[104]
[104]For example, trial counsel points to evidence that was placed before the jury concerning an importation of 150 kilograms of methorphan into this country that took place in August 2010, allegedly financed by OM. Trial counsel does not explain how the fact that OM may have been involved in an importation of a large quantity methorphan, unconnected to the appellant, in any way supports the appellant’s case that he was engaged in the manufacture of methorphan, rather than methylamphetamine.
Trial counsel also provided further submissions regarding the manner in which he had cross-examined SA, and his reason for having pressed to have the appellant’s plea of guilty to trafficking placed before the jury. He disputed the appellant’s contention that trial counsel had never discussed this matter with him.
Without in any way endeavouring to resolve the factual dispute between the appellant and his trial counsel, it is sufficient to repeat that any advantage that might have accrued to the appellant through informing the jury that he had indeed trafficked methylamphetamine on the day of his arrest would have been far outweighed by the prejudice done to his case, given his defence to the primary charge.
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