Bentley v The Queen
[2010] VSCA 217
•26 August 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0791
| WARREN BENTLEY | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE, HARPER and HANSEN JJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 26 August 2010 | ||
DATE OF JUDGMENT: | 26 August 2010 | ||
MEDIUM NEUTRAL CITATION: | [2010] VSCA 217 | ||
| JUDGMENT APPEALED FROM: | R v Bentley (Unreported, County Court of Victoria, Judge McInerney, 31 August 2009) | ||
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SENTENCING – Trafficking methylamphetamine – Possession of methylamphetamine and other drugs – Possession of property suspected of being proceeds of crime – Guilty plea – Prior convictions – Total effective sentence of 3 years and 3 months’ imprisonment with non-parole period of 18 months – Offences committed while on bail for violence offence and during suspended sentence for earlier drug offences – Statute provided that sentence be served cumulatively on earlier sentence unless otherwise ordered – Judge directed cumulation – Sound exercise of discretion – Totality principle not offended – Sentence reasonably open – Application for leave refused – Sentencing Act 1991, s 15, s 16(3C).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Doyle | Revill & Papa Lawyers |
| For the Crown | Mr P Rose SC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
I will invite Hansen JA to give the first judgment.
HANSEN JA:
Warren Bentley (‘the applicant’) pleaded guilty in the County Court to three counts on a multiparty presentment,[1] namely one count of trafficking in methylamphetamine (count 3), one count of possessing methylamphetamine (count 4) and one count of possessing other drugs of dependence including testosterone (count 5). He also pleaded guilty to a summary offence, namely dealing with property – in this case $26,660 – suspected of being the proceeds of crime. The maximum penalties for these offences were imprisonment for, respectively, 15 years (count 3), five years[2] (count 4), 12 months[3] (count 5), and two years (the summary offence). The offences were committed in October 2007 when the applicant was aged 35 years. Following a plea in mitigation, he was sentenced on 31 August 2009 to three years on count 3, one year on count 4, two months on count 5, and six months for the summary offence, with three months of the sentence on count 4 to be served cumulatively upon the sentence of three years on count 3, making a total effective sentence of 3 years and 3 months' imprisonment with a non-parole period of 18 months.
[1]Count 2 was withdrawn as duplicitous, and counts 1, 6 and 7 related to the applicant’s two co-accused.
[2]As the judge found the possession was for the purpose of trafficking.
[3]As the judge found the possession was not for the purpose of trafficking.
The applicant seeks leave to appeal against sentence. His notice of appeal contains a single ground which contends that the judge ‘failed to apply, or failed to apply adequately, the principle of totality’. The applicant sought leave to add a second ground of appeal, namely that the judge ‘failed to exercise, or erred in the exercise of his discretion with respect to concurrency and cumulation’. In my view, it is appropriate to grant leave to rely on ground 2. However, for the reasons that
follow, I would refuse the application for leave to appeal against sentence.
The background facts are of short compass, and can be gleaned from the learned judge’s sentencing remarks. The applicant and his two co-accused had an arrangement for the manufacture of methylamphetamine at a drug laboratory they had set up at the home of one of the applicant’s co-accused. They intended to use pseudoephedrine from cold and flu tablets to produce methylamphetamine. After gathering information through listening devices, the police raided the laboratory and subsequently searched the parties’ homes, which led to the other counts on the presentment and the summary offences.
The judge noted that there was no evidence of any sale of any product. He referred, however, to authorities to the effect that heavy punishment was required to deter people from drug trafficking. He also noted that the applicant’s counsel on the plea conceded that a term of immediate imprisonment was appropriate in all the circumstances.
As to the applicant’s personal circumstances, he was aged 37 at the time of sentence, and had struggled with drug addiction for many years. He had 33 prior convictions from five previous court appearances, including numerous convictions for drug offences and offences of dishonesty. Indeed, the present offending was in breach of a suspended sentence imposed on the applicant in December 2006 after he was convicted in the Magistrates’ Court on 18 charges (including drug possession), and sentenced to terms of imprisonment of one month (on one charge), two months (on each of five charges) and three months (on one charge), to be served concurrently, but suspended for 12 months. It is also to be noted that the present offending occurred while the applicant was on bail for the offence of intentionally causing injury, in respect of which he was ultimately sentenced by Judge Lacava on 19 March 2009 to 18 months' imprisonment, as to which 9 months was suspended for a period of two years. The learned sentencing judge referred to the applicant’s excellent rehabilitation, his ongoing family support particularly from his mother, his excellent trade qualifications and references, the fact that he had taken advantage of programs in prison and had remained drug free. The learned judge also found that his risk of re-offending was low provided that he remained drug free.
I now turn to the grounds of appeal, commencing with ground 2.
The starting point is that the present offending occurred while the applicant was on bail for the offence of intentionally causing injury in respect of which his appeal was heard and dispensed by this Court this morning. Accordingly, s 16(3C) of the Sentencing Act 1991 had the effect that, unless the sentencing judge otherwise directed, any sentence imposed for the present offences was to be served cumulatively on the uncompleted portion of the sentence imposed by Judge Lacava. At the time of sentence, the uncompleted portion of the sentence was a little less than four months. In this regard, the learned sentencing judge told the applicant that:
Pursuant to the operation of s 15 of the Sentencing Act 1991 … you will have to finish your current nine months [in effect, the four months remaining on the unsuspended portion of the sentence imposed by Judge Lacava], then serve the minimum period of 18 months that I have imposed and then you will be eligible for release in regard to the suspended sentence.
The record of orders also referred to s 15 of the Sentencing Act 1991.
In fact, as counsel for the Crown correctly conceded, s 15 does not deal with concurrency and/or cumulation orders, but rather with the order in which sentences are to be served, where an offender has been sentenced to several terms of imprisonment in respect of any of which a non-parole period was fixed. Thus, in the present case, s 15 was relevant in that it provided that the sentence of Judge Lacava was to be served first, followed by the sentence for the present offending. However, s 15 said nothing about whether the present sentence was to be served concurrently or cumulatively on the remaining portion of the earlier sentence. That question was governed by s 16.
As to that, counsel for the applicant submitted that although the question of concurrency was not discussed on the plea, s 16 conferred a wide discretion on the judge, which discretion was not exercised. Further, he submitted that the judge erred in treating s 15 as effectively requiring the sentences to be served cumulatively. He conceded that the prima facie position under s 16(3C) was that cumulation applied, but nevertheless submitted that a strong argument could be mounted for a measure of concurrency.
I do not accept the applicant’s submission. The effect of s 16(3C) was that cumulation would apply unless the judge otherwise ordered. Counsel on the plea did not ask the judge to otherwise order. It is true that the judge did not refer to s 16. Indeed, in making the direction as to cumulation, he purported to act under s 15. Nevertheless, the fact that the judge specifically directed cumulation indicates that the judge turned his mind to that issue. In my view, the judge intended that the applicant serve the sentence cumulatively upon the earlier sentence. It follows that I am not persuaded that the judge failed to exercise the discretion conferred by s 16.
On the contrary, in my view the judge’s decision to order cumulation was a sound exercise of the discretion. At the time of sentence, there were only four months remaining on the earlier sentence, so any order as to concurrency would have been limited to that period. Moreover, although the applicant’s drug addiction no doubt lay at the heart of both sets of offending, the two sets of offending were quite unrelated in time and nature, which was a factor telling against concurrency,[4] as was the fact that the offending occurred while the applicant was on bail for the violence offence the subject of the earlier sentence. Of course, none of these factors alone required the judge to order cumulation, as the question whether to order cumulation or concurrency confers a broad discretion on the sentencing judge, to be exercised judicially taking account of all relevant circumstances, including the need to avoid imposing a crushing sentence or one that otherwise offends the principle of totality.[5] That said, in the circumstances of the present case, it is difficult to see how the judge could have done otherwise than order cumulation.
[4]R v Mantini [1998] 3 VR 340, 348-350.
[5]R v O'Rourke [1997] 1 VR 246, 253.
As to ground 1, I do not accept that the judge failed to adequately apply the
totality principle. The judge was plainly conscious of the earlier sentence and the effect that it would have on the total minimum time the applicant was required to spend in prison. The judge set a non-parole period of less than half of the total effective sentence. Taking into account the 135 days of pre-sentence detention that the judge declared as having been served, the effect of the sentence imposed was to require the applicant to spend, as from the date of the later sentence, a further 18 months in prison before being eligible for parole. In my view, neither this further minimum period, nor the total effective sentence, were crushing or out of proportion to the totality of the criminal conduct involved. It should not be overlooked that the applicant engaged in serious offending on at least two separate occasions, and the second set of offending occurred while on bail for the first. In all the circumstances, the sentence was well within the range open to the learned sentencing judge.
I would therefore refuse the application for leave to appeal against sentence.
NETTLE JA:
I agree, but would add that Mr Doyle on behalf of the applicant advanced a powerful argument in support of the contention that the judge failed to exercise the discretion reposed in him by s 16(3C) of the Sentencing Act1991. It in no way detracts from the quality of that argument that I am not persuaded that the judge erred in the manner alleged. But if it had been demonstrated that his Honour was in error in that respect – and I do not consider that he has been – I am not satisfied that a different sentence should be imposed. Thus, I agree with his Honour, Hansen JA, for the reasons he has given, that the application should be refused.
HARPER JA:
I too am not satisfied that, even were the arguments put on behalf of the applicant in relation to s 16(3C) accepted, a different sentence should be imposed. I agree with the result to which Hansen JA has come and I also agree with his reasons.
NETTLE JA:
The order of the Court is that the application for leave to appeal against sentence is refused.
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