Cuthbertson v The Queen
[2019] VSCA 104
•15 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0147
| JIA CUTHBERTSON | Applicant |
| V | |
| THE QUEEN | Respondent |
---
| JUDGES: | PRIEST and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 May 2019 |
| DATE OF JUDGMENT: | 15 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 104 |
| JUDGMENT APPEALED FROM: | DPP v Cuthbertson (Unreported, County Court of Victoria, Judge Lyon, 1 June 2018) |
---
CRIMINAL LAW — Appeal — Sentence — Importation of marketable quantity of border controlled drug (cocaine) — Criminal Code Act 1995 (Cth) sch 1 s 307.2(1) — Guilty plea — Sentenced to eight years and three months imprisonment — Whether sentencing judge failed to make an allowance for the plea — Whether allowance for plea can be inferred —R v Gillick (2001) 125 A Crim R 395 — Whether term of imprisonment manifestly excessive — Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Edney | Doogue + George Defence Lawyers |
| For the Respondent | Ms K Breckweg | Commonwealth Director of Public Prosecutions |
PRIEST JA:
I agree with Emerton JA, whose reasons for judgment I have had the advantage of reading in draft.
EMERTON JA:
On 28 May 2018, the appellant pleaded guilty before a judge in the County Court of Victoria to the Commonwealth offence of importing a marketable quantity of a border controlled drug contrary to s 307.2(1) of the Criminal Code (Cth) (charge 1), and two State offences: being a prohibited person possessing an imitation firearm contrary to s 5AB(2) of the Control of Weapons Act 1990 (charge 2), and possessing an unregistered general category hand gun contrary to s 7B(1) of the Firearms Act 1966 (charge 3).
On 1 June 2018, the judge sentenced the appellant to a total effective sentence of 8 years and 3 months’ imprisonment, with a non-parole period of 5 years and 9 months as follows:
Commonwealth Charge Offence Sentence Starting Date 1 Import a marketable quantity of a border controlled drug 8 years and 3 months 1 June 2018 Victorian Charge Offence Sentence Cumulation 2 Prohibited person possess an imitation firearm 12 months — 3 Possess an unregistered hand gun 9 months – Total Effective Sentence: 8 years and 3 months’ imprisonment Non-Parole Period: 5 years and 9 months’ imprisonment Pre-Sentence Detention 140 days
On 11 October 2018 the appellant was granted leave to appeal the sentence on the following two grounds:
(1)The sentencing judge erred in failing to give any, or proper weight to the appellant’s plea of guilty.
(2) The sentence on charge 1 is manifestly excessive.
The offending
On 15 October 2017, Australian Border Force members intercepted a consignment at Melbourne Airport consisting of a cardboard box containing four shock absorbers. The consignment had been sent from Thailand. Concealed within two of the shock absorbers was a white powdery substance that was subsequently analysed and found to be cocaine. The consignee was ‘Larry Longworth’ and the consignee address was a parcel locker at a 7-Eleven store at 22 Scoresby Road, Bayswater in Victoria. The alternative delivery address for the parcel locker was the Heathwood Post Office.
The IP address used to create and access the parcel locker account belonged to Jia Cuthbertson of 17 Clarence Road, Wantirna. On 6 October 2017, the appellant had opened the Australia Post parcel locker in the name of ‘Larry Longworth’ using the Australia Post website and by attending the Heathwood Post Office. When he did so, he provided his address as 4 Peck Street, Bayswater, and a mobile phone number of a phone that he had also acquired on that day in the name of Larry Longworth of 4 Peck Street, Bayswater. The mobile phone had been acquired at the Optus shop located within the terminal of Melbourne Airport using a scanned copy of a fake Victorian driver’s licence in the name of Larry Longworth with the address of 4 Peck Street, Bayswater.
On 18 October 2017, a man claiming to be ‘Larry Longworth’ made three calls to Australia Post inquiring about the consignment. The caller asked about the parcel locker notification process and the estimated delivery time. During one call he said the consignment was a gift from his partner overseas; during another, he said the consignment contained car parts from overseas. He said the consignment was from Thailand and provided the tracking number.
On the morning of 20 October 2017, Australia Post sent an automatic text message to the mobile service advising that the consignment was available for collection from the Heathwood Post Office.
Later that day, the appellant was captured on CCTV parking a silver Toyota on Wantirna Road in Ringwood, walking towards the Heathwood Post Office before briefly entering and then leaving without picking anything up. The appellant got into the car and left but returned some twenty minutes later, when he again went into the Heathwood Post Office and again left without collecting a parcel. However, three minutes later, the appellant returned and entered the Heathwood Post Office a third time. This time, he spoke to a person at the counter, who was an Australian Federal Police member posing as an Australia Post employee. He told the person (the police member) that he was ‘Larry’ and showed him the text message that he had received from Australia Post. He presented three documents as proof of his identity: an Optus phone bill, an Origin Energy bill and an AGL electricity bill, all of which were addressed to Larry Longworth of 4 Peck Street, Bayswater. None of these documents was authentic. The appellant signed for the consignment using the name Larry Longworth. He was then arrested by police who seized his mobile phone.
The silver Toyota was located and searched. Police seized a backpack from the boot that contained one ‘Denix’ brand imitation hand gun and one ‘Gamo’ brand air pistol. In addition, police found two cocaine test kits and a set of scales in the glove box.
The silver Toyota from which these items were seized was registered to Master Poultry Group, where the appellant worked as a sales representative.
Police interviewed the appellant later on the day of his arrest. During the interview, the appellant made extensive admissions as to how he came to be involved in the importation of the cocaine.
The appellant told investigators that he had travelled back and forth to Thailand since 2011. In Thailand, he met a person in a bar—PG—who was from Queensland but lived in Thailand. PG told the appellant that he survived in Thailand by importing drugs into Australia. The appellant sometimes socialised with PG and occasionally did drugs with him. He went to ‘underground’ casinos with PG and on two occasions PG arranged a line of credit with casinos and covered the appellant’s gambling debts to the tune of $40,000 to $50,000. On one occasion, the appellant caused damage to a bar in a fight with the owner. PG again bailed him out by paying for the damage. As a result of this incident and the gambling debts, the appellant became indebted to PG in the amount of approximately $80,000. PG told the appellant that he knew the appellant would pay him back saying, ‘When I need some help, you’ll help me out’. The appellant sensed that PG would want him to help with something illegal.
The appellant told investigators that when he returned to Thailand in September 2016, PG asked him to repay the debt by picking up a few packages for him. The appellant said ‘okay’ because he did not have the money to repay PG. He left Thailand in December 2016 and thereafter all communications with PG were by email and on his personal phone. PG contacted him in February or March 2017 and asked him to pick up two kilograms of ‘ice’. The appellant made excuses as to why he could not do so. He told investigators that he called the AFP and Victoria Police, but they could not help him.
The appellant told investigators that he was contacted by PG again in July 2017 and told that it was time to repay the $80,000 debt. PG told the appellant that every time he did ‘it’, his debt would be reduced by $20,000. The appellant said he would simply pay off the debt, but PG said he wanted the money ‘tomorrow’. The appellant asked PG if he could send PG $40,000 and ‘do this once off’ to clear the debt and PG said ‘okay’, but told him he needed to register a phone and parcel box. In early October 2016, the appellant transferred $40,000 to PG in a number of payments of just under $10,000. The transfers were in small amounts because PG did not want the payments to be ‘red flagged’.
The appellant told investigators that he was in contact with PG over the week prior to the pickup and he told PG he thought something was wrong because the parcel had not arrived. PG said it was ‘all good’. The appellant told PG that he no longer wanted to be part of it but was told it was too late to back out. PG said that if the appellant did not go through with collecting the parcel there would be ‘consequences’. The appellant understood the consequences to be that he would be ‘knocked’, as PG associated with ‘bikies in Thailand’ and he had heard stories about what they would do to people who crossed them. PG knew where he lived and where his partner’s family lived in Thailand.
The appellant told investigators that he did not know exactly what would be inside the parcel but he knew it would be drugs, probably cocaine. He also told them that if they wanted more help to catch the guys behind the importation, he would assist them.
Submissions on the plea
On the plea, defence counsel tendered and relied upon a number of documents:
(a) six character references (one from each of the appellant’s partner, mother, brother, friend and from both his former employer and his employer at the time of the offending);
(b) the unreported Court of Appeal decision in R v Jia Cuthbertson,[1] which was an appeal from the sentence imposed on the appellant for murder when he was 16 years old;
[1]Supreme Court of Victoria, Court of Appeal, Charles and Callaway JJA and Vincent AJA, 13 November 1995.
(c) three medical reports relating to injuries suffered by the appellant in a transport accident that occurred on 2 November 2010;
(d) prison psychiatric records from the appellant’s time on remand between 2 February and 28 April 2018;
(e) extracts from the appellant’s Corrections Victoria Individual Management File concerning the appellant’s need for protection in prison; and
(f) a report of Dr Mathew Barth, psychologist, dated 27 April 2017.
Also tendered was a bundle of screenshots of text messages containing threats to the appellant that were received on his private telephone between 21 February 2018 and 4 May 2018.
Defence counsel submitted that the appellant had made full admissions about his involvement in the importation. While the offending involved a significant quantity of cocaine, it was a single transaction and its duration was comparatively short: 14 days between 6 and 20 October 2017. The appellant acknowledged that he took steps to conceal the collection of the parcel by obtaining a phone and a parcel locker in a false name, but counsel submitted that he did those things under the direction of others, who provided him with the documentation to enable him to do it.
Defence counsel described in some detail the appellant’s extraordinary, and extraordinarily difficult, personal history and circumstances.
The appellant was the fourth of eight children raised in an abusive and dysfunctional family. His father was a violent criminal. He left school in Year 10, when his father conscripted him and his older brothers to help to steal and strip motor cars for unlawful resale. At the age of 16, at his father’s direction and under coercion, he killed a woman who was a prospective police witness to his father’s criminal activities. The murder was chillingly brutal. The appellant pleaded guilty to murder and served 6 years’ imprisonment before being released on parole. He began serving his sentence at the age of 17 in Pentridge Prison, where he spent two and a half years before being moved, first to Loddon Prison and then to the Won Wron Training Facility. He completed his VCE while he was in Pentridge.
From the time of his release from prison until he was placed in custody as a result of the present offending, the appellant was in steady employment and did not commit any further offences. However, his life was not unattended by tragedy and trauma. In February 2010, he became the father of conjoined twin daughters, one of whom died at birth and the other in April 2011. In November 2010, he was knocked from his bicycle by a hit and run driver and suffered a head injury as well as other injuries. He was hospitalised for an extended period. Since that time he has received treatment for post-traumatic stress disorder and depression.
According to his counsel, the appellant’s trips to Thailand, involving illegal gambling and associating with criminals who entertained him with alcohol and drugs, have to be seen in the context of the traumatic events of 2010 and 2011. The appellant suffered not only physical injuries, but also significant emotional injuries.
In 2014, the appellant met his partner, Duangnapa Pimwong, in Thailand. In 2015, their son was born. In 2016, the appellant moved his family to Australia and set up a household in Wantirna with his younger brother, Shannon. Ms Pimwong’s application for permanent residency in Australia was being sponsored by the appellant and, as a result of his conviction, her immigration status has been jeopardised, placing further pressure on the appellant. Defence counsel stressed the appellant’s fear that Ms Pimwong and his child would have to return to live in Thailand as a consequence of his offending.
Defence counsel acknowledged that importing drugs in order to pay off a debt does not necessarily involve any less culpability than the importation of drugs for a profit, but emphasised that the repayment of the gambling debt took place in circumstances where the appellant had a fear of reprisals from persons who he regarded as dangerous.
Defence counsel also placed considerable emphasis on the appellant’s circumstances in prison where, because of threats to his life, he has to be held in a management unit. He has received direct threats to his safety and has learned that a contract has been taken out on him by persons associated with his criminal associates in Thailand. This has affected his mental health and has limited, and will continue to limit, his access to education programs and to work while imprisoned. It also limits the number of visits per month he can receive from his family and friends.
Defence counsel further submitted that the appellant’s mental illness, his diagnosed chronic post-traumatic stress disorder and major depressive disorder, were likely to make prison considerably more burdensome for him.
In his written submission, defence counsel advanced six matters as mitigating factors:
(g) the appellant’s plea of guilty, which was entered at the earliest opportunity, had utilitarian value, and should be used as part of the evidence of remorse, acceptance of responsibility and willingness to facilitate the course of justice;
(h) the appellant’s cooperation with authorities, which also constituted evidence of remorse;
(i) the appellant’s remorse evidenced by, among other things, his voluntary revocation of bail;
(j) the extra burden of imprisonment borne by the appellant as an isolated prisoner, as a result of being under threat of harm in prison;
(k) his prospects of rehabilitation, submitted to be ‘good’ due to a number of strong protective factors; and
(l) his mental health.
Ultimately, defence counsel submitted that the extraordinary circumstances of the appellant’s personal background, the particular circumstances of his offending and the six mitigating factors, including the degree of cooperation given by the appellant, should properly leave the Court with the impression that there was scope for the exercise of clemency.
In oral submissions, counsel for the Crown said nothing about the plea. Her submissions focussed on the appellant’s culpability, based on his knowledge that the quantity of drugs to be imported would not be trivial, his association with PG and the financial motivation for his offending. It was submitted that while the ‘non-exculpatory duress’ under which the appellant acted was capable of having some mitigating effect, its influence on the appellant’s circumstances was limited by the fact that the appellant was knowingly involved with a person he knew to be a criminal engaged in drug trafficking, illegal gambling and murder. The Crown did not dispute that both the appellant’s mental health and the threats he was receiving would make his time in prison more onerous, but cautioned against the Court treating the impact of the appellant’s imprisonment on family members as a mitigating factor. Counsel for the Crown also submitted that the Court should be guarded about the appellant’s prospects for rehabilitation.
Reasons for Sentence
Having set out the charges and the circumstances of the offending, the sentencing judge recorded that the quantity of cocaine imported by the appellant was 419 times over the marketable quantity and that it represented about 41 per cent of the commercial quantity. The appellant’s role in facilitating the pickup of the consignment was crucial to the success of its distribution and, while he was not to be sentenced as a principal and had taken his instructions from others, but for the appellant’s participation and willingness to do the dangerous work, the job of the principal importers would have been much harder.
The judge stated that he did not consider the fact that the appellant’s actions were compelled by a fear of harm to his family and not by a desire to profit, but rather to satisfy his indebtedness to PG, could be used to significantly mitigate his culpability. The appellant had known PG for a considerable period of time and he knew that PG made a living from importing drugs. It would have come as no surprise to the appellant when PG approached him to take advantage of him as he did.
The judge summarised the principles applicable to sentencing for drug importation offences to be that general deterrence is to be given chief weight on sentence and stern punishment will be warranted in almost every case; involvement at any level must attract a significant sentence, otherwise the interests of deterrence are not served; and factors personal to the offender are therefore to be given less weight than might otherwise be the case. Accordingly, a large measure of deterrence had to attach to the sentence imposed on the appellant and there was a need to denounce his conduct and protect the community from such conduct.
The judge described the appellant’s personal history and circumstances, and reviewed the character references that had been put before him. His Honour observed that after his arrest, the appellant remained in custody from 20 October until 10 November 2017, when he successfully applied for bail. The appellant applied for bail, the judge accepted, for the purpose of making arrangements to take care of his partner and son and to train someone to take over from him at work. On 2 February 2018, the appellant himself sought the revocation of his bail. The judge recorded that the appellant’s time in custody had not been easy, that threats had been made against him, that he had served much of the time since the revocation of his bail in ‘highly protective custody’ and that he would serve his sentence in more onerous and strict conditions than those in the mainstream prison population.
The judge then set out in summary form the six factors in mitigation advanced in defence counsel’s written submission, including that the plea of guilty was entered at the earliest opportunity, had utilitarian value, and should be used as part of the evidence of remorse, acceptance of responsibility and willingness to facilitate the course of justice.
However, the judge did not state which, if any, of the six factors he accepted as mitigating. Instead, his Honour recorded the fact that the Crown had made submissions about the objective seriousness of the offending and that both parties had made submissions about relevant ‘comparative cases’. His Honour then said:
In the end, it is necessary to look at the individual circumstances of your case to form my own view as to the objective seriousness of your offending and to take into account your personal circumstances (to the extent that they may have a bearing) in this case and it is necessary to have regard to the burden imposed by your mental health issues on your imprisonment and also to the conditions in which you will serve your time in custody. As I have already said, I pay some regard to your concern for your family causing some burden on you.[2]
[2]DPP v Cuthbertson (County Court of Victoria, Lyon J, 1 June 2018) 40.
The judge recorded that the Crown had made concessions concerning the application of the fifth principle in Verdins, the fact that the appellant cooperated with AFP officers in the investigation of the offence and as to the onerous conditions in which the appellant would have to serve his sentence. He also recorded the Crown submissions, first, that while duress was capable of having some mitigating effect, its influence on the appellant’s circumstances was limited by the fact that the appellant was knowingly involved with a person he knew to be unsavoury and, secondly, that the Court should be guarded about the appellant’s prospects for rehabilitation.
There is only one paragraph in which the judge gave express consideration to any of the six mitigating factors advanced on behalf of the appellant. His Honour gave reasons why he considered the appellant’s prospects of rehabilitation to be reasonable, providing the appellant adequately addressed his substance abuse problem and gambling issues.
Following the finding on the appellant’s prospects of rehabilitation, the judge proceeded to sentence the appellant without further explaining how he had assessed and balanced the various sentencing considerations raised by the parties.
First ground: The sentencing judge erred in failing to give any, or proper weight, to the appellant’s plea of guilty
The appellant submits that while the sentencing judge referred to the fact that he pleaded guilty and to the submission made on his behalf as to the significance of his guilty plea, nowhere in the reasons for sentence is there reference to the fact of the appellant’s early plea of guilty, to its significance as a mitigating factor in the appellant’s case or to the weight that it was accorded. This, in circumstances where the appellant relied on his early plea of guilty not only as having utilitarian value, but also as an expression of remorse.
The appellant submits that the effective ‘non-treatment’ of his early guilty plea by the sentencing judge gives rise to a strong inference that little, if any, weight was given to this important mitigating factor in sentencing and that the failure to give it any or appropriate weight is reflected in the sentence imposed upon him. As a result, so it is submitted, the sentencing discretion has miscarried and should be re-opened, with proper weight given to the appellant’s full admissions, early plea of guilty and patent remorse.
The Crown submits that there is no basis for the appellant’s assertion of error on this ground. The sentencing judge referred to the plea of guilty in his reasons for sentence when he recited defence counsel’s submission that, ‘the plea of guilty entered at the earliest opportunity has a utilitarian value, but should also be used as part of the evidence of remorse, acceptance of responsibility and a willingness to facilitate the course of justice’.
According to the Crown, there is nothing to indicate that the sentencing judge, being an experienced judge, did not accept the defence submission as to the existence of the plea and the consequences flowing from it. This is fortified by the fact that the judge referred elsewhere in the reasons for sentence to the appellant’s expressions of remorse and his cooperation with authorities in making comprehensive, and early, admissions. As to the submission that no reference was made to the weight that was accorded to the appellant’s plea, the Crown submits that the same matters point to significant weight being given to the plea.
Furthermore, so it was submitted, the sentence ultimately imposed compels the conclusion that the judge had proper regard to the plea when the sentence is viewed against comparable sentences imposed for similar offending following a plea of guilty. If it was assumed that no sentencing discount had been given and a discount of, say, 25 or 30 per cent were to be given on the sentence of 8 years and 3 months, the sentence imposed would fall below ‘the range’.
In his reasons for sentence, the sentencing judge did not expressly state that he took the appellant’s early plea of guilty into account, let alone what weight he gave it in the instinctive synthesis. Nor did his Honour say whether he treated it as an indication of remorse. Although the sentencing judge reproduced (in full) the written submission concerning the plea as a mitigating factor, he did not specifically say whether he accepted the submission or, indeed, whether he acted upon it. In contrast, the judge made express reference to the burden of imprisonment on the appellant as an isolated prisoner and accepted the submission that imprisonment would be more difficult for the appellant because of his mental health issues and his concern for his family. He also considered and made a finding on the appellant’s prospects of rehabilitation.
The existence of a plea of guilty and its timing is plainly an important sentencing consideration. For the purposes of sentencing federal offenders, s 16A(2)(g) of the Crimes Act 1914 (Cth) provides that the court must take into account the fact that the offender has pleaded guilty.[3] Likewise, s 5(2)(e) of the Sentencing Act 1991 (Vic), provides that in sentencing an offender a court must have regard to ‘whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so’.
[3]As to the application of s 16A(2)(g) in the context of the present discussion, see Director of Public Prosecutions (Cth) v Thomas (2016) 315 FLR 31, 41 [12]–[13]. See also R v Berry [2007] VSCA 60 [18].
In Gillick,[4] Buchanan JA made it clear that a sentencing judge should state the manner in which he or she has taken a plea of guilty into account. His Honour said:
… Section 5(2) of the Sentencing Act 1991 (Vic) provides that in sentencing an offender a court must have regard to whether the offender pleaded guilty and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so. In the present case the plea was made at the earliest opportunity and the appellant had indicated even earlier his readiness to plead guilty. Counsel for the appellant submitted that the plea required a discount and the failure of the judge to state that he was taking the plea of guilty into account constituted an error.
I acknowledge the importance of a sentencing judge expressing the fact that a plea of guilty has reduced the sentence which would otherwise have been imposed, for the failure to do so dilutes the utility of the discount. Every judge sentencing an offender who has pleaded guilty should state that he or she has taken the plea into account and also the manner in which and the reasons for which the plea has been taken into account. The failure of the judge in this case to deal expressly with the plea is regrettable.
In a case in which a sentencing judge does not state that he or she has made allowance for a plea of guilty, it may be more readily inferred that they have not done so. I am not, however, persuaded that failure to state that a guilty plea has been taken into account necessarily and in every case is an error that vitiates a sentence. [Counsel for the applicant] asked us to go so far. I decline the invitation. In every case it will be necessary to determine whether an appropriate discount has been given. If the judge has not said that they have done so, it may nonetheless be inferred in an appropriate case.[5]
[4]R v Gillick (2001) 125 A Crim R 395, 397–8 [12]–[14] (‘Gillick’).
[5]See R v Brooks [2000] VSCA 188; R v Roy (2001) 119 A Crim 147.
Charles JA expressed the view that it was ‘highly desirable, particularly where the plea of guilty is entered early, evidences genuine remorse or for any other reason carries special significance in sentencing, that the judge should at least record in sentencing remarks that the plea has been taken into account’;[6] and Chernov JA said that he wished to associate himself with the remarks that ‘where the applicant has pleaded guilty, it is desirable that the sentencing judge state in the sentencing remarks the extent to which the plea of guilty has been taken into account in the sentencing disposition’.[7]
[6]Gillick (2001) 125 A Crim R 395, 399–400 [24].
[7]Ibid 400 [27].
In this case, the sentencing judge was required to take into account the plea of guilty and to make an allowance for it in sentencing the appellant. It was desirable for the judge to state that he had taken the guilty plea into account and to what extent he had done so. However, there is no hard and fast rule that a sentencing judge must state expressly that he or she has made an allowance for a plea of guilty. In the absence of such a statement, it is a question of whether it can be inferred that such an allowance was made.
It is tempting to draw the inference that an allowance was made for the guilty plea where the sentencing judge is experienced and well knows the requirement to take the plea and its timing into account in the instinctive synthesis. It might be argued that ‘it goes without saying’ that the highly experienced judge in this case made such an allowance and that he did not need to spell it out given that it was so obvious a factor in the sentencing. Indeed, the transcript of the plea hearing reveals that neither defence counsel nor counsel for the Crown regarded it as necessary to make oral submissions about this requirement. The only mention of the plea (and its consequences) appears in the written submission as one of the six factors pleaded in mitigation.
There can be little doubt that the sentencing judge was well aware that the appellant was entitled to a significant sentencing discount for his early plea. It is unlikely that his Honour simply overlooked this factor. However, whether it can be inferred that an allowance was made for the plea must be determined having regard to the reasons for sentence and the sentence itself.
The length of sentences for the importation of border controlled drugs will vary markedly depending on the quantity of the drug involved, the involvement of the offender in the importation, the reward reaped by the offender, whether he or she gave assistance to the authorities and the particular circumstances of the person to be sentenced, as well as whether he or she pleaded guilty and the timing of the plea.[8] Having regard to his plea (made at the earliest opportunity), his full co-operation with the authorities, his evident remorse and his unusual and peculiarly difficult personal history, the sentence of 8 years and 3 months imposed on the appellant is high, but not so high as to suggest that no allowance was made for his early plea. On the other hand, if it is assumed that the sentence contains no allowance for the plea and a hypothetical discount of, say, two years is given for the plea, the sentence becomes a comparatively low one having regard to the maximum penalty for the offence, the quantity of cocaine and the nature of the appellant’s involvement in its importation, as well as the jurisprudence referred to by the sentencing judge concerning sentences for the importation of illegal drugs. In light of the sentencing judge’s comment that legal principle required a stern sentence to be imposed on the appellant, the length of the sentence is, in my view, an indication that an allowance for the appellant’s plea was indeed made.
[8]See De La Rosa (2010) 79 NSWLR 1, 71 [305]; OPQ v The Queen [2012] VSCA 115 [40].
Moreover, for the reasons that follow, the reasons for sentence, viewed in the context of the way in which submissions were made on the plea, also permit an inference to be drawn that an allowance was made for the plea.
As discussed, the existence and consequences of the appellant’s early plea of guilty is mentioned in the judge’s recitation of the six factors in mitigation set out in defence counsel’s written submission. The plea is the first factor recited. The second and third factors are closely related to the plea of guilty: the appellant’s cooperation with authorities; and his expressions of remorse. There are further (albeit scant) references to these factors in the reasons for sentence as follows:
(a) in the first paragraph it is recorded that the appellant pleaded guilty to the three offences with which he was charged;
(b) in paragraph 11, in relation to the police interview on the day of the appellant’s arrest, it is recorded that, ‘[y]ou made comprehensive admissions to your knowing participation in the importation. In the lengthy record of interview, you told police how you became involved in the importation’;
(c) in paragraph 24, in relation to character references, it is recorded that ‘[s]everal of the references speak of your remorse at this offending’;
(d) in paragraphs 33, 34 and 35, the first three of the six mitigating factors in counsel’s written submission are summarised, namely: ‘the plea of guilty entered at the earliest opportunity has a utilitarian value, but should also be used as part of the evidence of remorse, acceptance of responsibility and a willingness to facilitate the course of justice’; ‘…cooperation with the authorities at the time of arrest and at the time of the interview’; and ‘…various expressions of remorse’.
(e) finally, in paragraph 41, the Crown’s concession that the appellant cooperated with AFP officers in the investigation of the offences is recorded.
It will be observed that the matters in (a) – (e) above are matters that are simply recorded by the sentencing judge. Nowhere in the reasons for sentence do they receive any consideration.
Not all of the six mitigating factors in defence counsel’s written submission escaped consideration by the sentencing judge: the appellant’s prospects of rehabilitation received discrete consideration, along with the burden of the appellant’s mental health issues on his imprisonment and the conditions in which he would serve his time in custody.
A number of matters were recorded by the sentencing judge as having been conceded by the Crown, and therefore implicitly recognised as relevant to the exercise of his sentencing discretion. However, the sentencing judge did not record a concession by the Crown concerning the plea or the appellant’s expressions of remorse, presumably because no such concessions were made. These factors were plainly relevant and important. The fact that the Crown did not consider it necessary to ‘concede’ that an allowance should be made for the plea, and that defence counsel did not consider that it warranted attention in his oral submissions, points to the parties and the judge treating its importance as a given that required no special attention. Seen in this context, the judge’s failure to mention the plea and its consequences as something he took into account in the sentencing synthesis does not support an implication that no allowance was made for it. To the contrary.
This Court should not read the sentencing judge’s reasons for sentence with an overly zealous eye for error in circumstances where what is now challenged is his Honour’s failure to expressly mention a factor that was so obviously a part of the sentencing synthesis that the parties themselves barely alluded to it. The reasons for sentence were prepared within a short time frame and, insofar as they contained analysis, it was limited to the areas of contention between the parties. In oral submissions, defence counsel focussed on the aspects of the appellant’s life and conduct that transcended the ordinary, on the hardship factors affecting his imprisonment and on the issues in contention raised by the Crown. His written submission placed the plea first among the mitigating factors that had to be taken into account by the sentencing judge and, while the Crown made no express concession as to its relevance to the sentencing synthesis, the sentencing judge was well entitled to assume that the Crown conceded its relevance.
In the circumstances, I accept that the judge’s recitation of the first mitigating factor in defence counsel’s written submission amounted to an acceptance that an allowance should be made for it in the sentence, as well as for the remorse that it reflected, and I infer that an allowance was made for these matters. The sentencing judge should have said as much, and he should also have said what weight he gave to the plea, it being an early plea and worthy of a significant discount. However, these omissions do not give rise to vitiating legal error, as it can and should be inferred that an allowance was made for the plea in the sentence.
Insofar as the appellant makes complaint about the weight that must have been given to the plea, this is to be treated as a particular of the complaint of manifest excess.[9] That ground is considered below.
[9]OPQ v The Queen [2012] VSCA 115 [33]-[34].
The first ground of appeal is not made out.
Second ground: manifest excess
The appellant relies on the presence of the following circumstances to establish that the sentence of 8 years and 3 months for the importation of the cocaine is manifestly excessive:
(m) the plea of guilty at the earliest possible opportunity;
(n) genuine remorse;
(o) full and frank admissions to police;
(p) willingness to assist authorities at great risk to himself and others;
(q) significant non-exculpatory duress;
(r) positive character references;
(s) excellent employment history and a good work ethic;
(t) psychological ill-health since 2010 following a hit and run accident;
(u) unchallenged expert evidence that the appellant suffered from post-traumatic stress disorder, depression and an adjustment disorder;
(v) acceptance that imprisonment would be more burdensome because of the appellant’s mental health issues;
(w) imprisonment would be more burdensome because of the uncertainty that the applicant’s partner and son would be able to remain in Australia;
(x) serious and continual threats to the appellant’s safety since his remand in custody; and
(y) the appellant’s subsequent placement in ‘highly protective custody’ and the likelihood that he will spend the remainder of his sentence in ‘lockdown’ conditions and will experience an ‘extra burden of imprisonment as an isolated prisoner’.
The appellant submits that given these significant matters in mitigation and the objective circumstances of the offence, the sentence imposed is manifestly excessive. He refers, in particular, to the fact that his offending was committed under significant pressure from the principal offender, thereby reducing his moral culpability, to his extensive admissions and to the threats to his safety and wellbeing, which make the conditions of his confinement very harsh.
The ground of manifest excess will only succeed where it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[10]
[10]DPP v Macarthur [2019] VSCA 71 [58].
The maximum sentence for charge 1 was 25 years imprisonment, reflecting the seriousness of the offending. The appellant pleaded guilty to the importation into Australia of 837.9 grams of pure cocaine, which represented 419 times the marketable quantity and 41 per cent of the commercial quantity of cocaine. The distribution of the controlled substance depended on the appellant playing his role. The offending involved a degree of planning, occurring over a period of two weeks from 6 to 20 October 2017. While there was a level of duress involved, the appellant created the conditions for the duress by forming a relationship with and becoming indebted to a person he knew to be a violent criminal.
The principles relevant to sentencing for drug offences contrary to the Criminal Code (Cth) emphasise the importance of general deterrence.[11] Involvement at any level may attract a significant sentence[12] and individual circumstances may carry less weight than they would otherwise do.[13]
[11]DPP (Cth) v Thomas [2016] VSCA 237 [193].
[12]Ibid [192].
[13]Ibid [193].
Nonetheless, the sentencing judge had regard to the appellant’s personal history, describing his family life as a child as ‘dysfunctional and abusive’ and his adolescence as ‘extraordinarily abusive’. The judge also had regard to the tragic events in the appellant’s life in 2010 and 2011 that led to the development of post-traumatic stress disorder and depression, conditions which continue to require treatment and make his experience of prison particularly difficult. The judge acknowledged the difficulties that the appellant was experiencing and would continue to experience in gaol as a result of threats made against him.
The sentencing judge was referred to DPP (Cth) v Masange; DPP (Cth) v Kachunga[14] and some of the cases cited therein for guidance. In this Court, counsel for the appellant drew the Court’s attention to DPP (Cth) v Merrill[15] and OPQ v R[16] as relevantly comparable cases. In both of those appeals against sentence—one (OPQ) involving a ground of manifest excess, the other (Merrill) a ground of manifest inadequacy—the sentences upheld and imposed respectively were considerably lower than the sentence imposed on the appellant. In OPQ, the Court dismissed an appeal against a sentence for attempted possession of a marketable quantity of a border controlled drug of six years with a three and a half year non-parole period. In Merrill, the offender, who was convicted of trafficking a marketable quantity of methamphetamine, was resentenced to a term of imprisonment of six years, with a non-parole period of four years.
[14][2017] VSCA 204.
[15][2015] VSCA 52.
[16][2012] VSCA 115.
However, these are just two of many cases. The Court in OPQ, when considering the manifest excess ground, had regard to Nguyen v The Queen[17] and Lau v the Queen,[18] both of which examined other appellate decisions on sentencing for the importation of drugs. The Court in OPQ attached as a schedule to its judgment a table of sentences in comparable cases that shows sentences of eight years plus to be not uncommon for offending involving larger quantities of drugs.[19] A similar exercise was carried out by Beale AJA in DPP (Cth) v Masange; DPP (Cth) v Kachunga,[20] again showing that sentences of more than eight years for the type of offending here in question are not uncommon, including in cases where there was limited involvement by the offender, an early plea of guilty and significant mitigating factors of a personal kind.[21]
[17](2011) 207 A Crim R 380.
[18][2011] VSCA 324.
[19][2012] VSCA 115, Schedule 1.
[20][2017] VSCA 204.
[21]Ibid [29]. See for example R v Pham [2016] VSCA 259.
The sentence imposed on the appellant is at the higher end of sentences for this type of offending, as both OPQ and Merrill show. However, it was not wholly outside the range of sentencing options available to the judge. It was a matter for the sentencing judge to assess the appellant’s moral culpability and to balance the need for general deterrence against the mitigating factors advanced by the appellant.
The ground of manifest excess must therefore be rejected.
Disposition
Neither ground for which leave to appeal was granted has been made out. The appeal is dismissed.
5
10
0