Director of Public Prosecutions (C'th) v Coory
[2011] VSCA 316
•26 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0033
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| MALICH COORY | Respondent |
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| JUDGES | REDLICH and HARPER JJA and ROBSON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 26 July 2011 |
| DATE OF JUDGMENT | 26 October 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 316 |
| JUDGMENT APPEALED FROM | DPP v Coory (Unreported, County Court of Victoria, Judge Patrick, 21 January 2011) |
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CRIMINAL LAW – Sentence – Importing a border controlled drug and possessing a border controlled drug (4-methylmethcathinone, known as ‘Miaow Miaow’) – Plea of guilty – Total effective sentence of 22 months’ imprisonment with immediate release on a recognisance release order – Drug not categorised within the quantity-based penalty regime under the Customs Act 1901 (Cth) and the Criminal Code (Cth) at the time of the offence – Irrelevant whether analogues of drugs listed in Schedule 11 to the Drugs, Poisons and Controlled Substances Act 1981 (Vic) fell within extended definition of drug of dependence in s 4 –Whether the sentencing judge ought to have imposed an immediate custodial sentence – Whether the sentencing judge erred in having regard to the harmfulness of the drug – Whether manifestly inadequate – Appeal dismissed.
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| Appearances: | Counsel | Solicitors |
| For the Director | Mr D J Lane | Office of Public Prosecutions (Cth) |
| For the Respondent | Mr A G Burns | MDG Lawyers Pty Ltd |
REDLICH JA:
I have had the advantage of reading in draft the reasons of Harper JA and agree that the appeal should be dismissed.
The Director under ground two alleged specific error by the sentencing judge in her conclusion that the drug, Methylmethcathinone (‘4-MMC’), an analogue of Methcathinone had not been established to be harmful. Her Honour had said during her sentencing remarks that it was not clear what harm the drug 4-MMC (also known as ‘miaow miaow’) causes. That doubt appeared to be engendered, at least in part by uncertainty as to whether an analogue of Methcathinone fell within the extended definition of ‘drug of dependence’ under s 4 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the ‘Victorian Act’).
It was not in issue that the respondent’s importation and possession of 4-MMC constituted importation and possession of a ‘border-controlled drug’ under s 314.4 of the Criminal Code Act 1995 (Cth).
Sub-section 314.4(1) of the Criminal Code Act sets out a table listing a number of border-controlled drugs in various quantities for the purposes of the Code, including ‘Methcathinone’. It was not in issue on the plea or appeal that Methylmethcathinone (4-MMC) is an analogue of Methcathinone.
Relevantly, sub-section 314.4(2) of the Code goes on to specify:
(2)A substance is also a border controlled drug if the substance (the drug analogue) is in relation to a border controlled drug listed in subsection (1) (or a stereoisomer, a structural isomer (with the same constituent groups) or an alkaloid of such a border controlled drug):
…
(d)a structural modification obtained by the addition of one or more of the following groups:
…
(ii)alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in the group, where the group is attached to oxygen (for example, an ester or an ether group), nitrogen, sulphur or carbon;
(f)otherwise a homologue, analogue, chemical derivative or substance substantially similar in chemical structure.
Accordingly the sentencing judge was satisfied that 4-MMC constituted a border-controlled drug under the Commonwealth Criminal Code by virtue of sub-paragraph 314.4(2)(d)(ii) and on the grounds that 4-MMC is an analogue of Methcathinone – being a substance listed in the table under sub-section 314.4(1).[1]
[1]Reasons for judgement [25].
The Victorian Act specifies Methcathinone as a drug of dependence by virtue of the section 4 and Schedule 11 and thus criminalises possession and trafficking in relation to that drug. That Act does not however expressly relate to ‘analogues’ of methcathinone or any other drug listed in schedule 11, for the purposes of the offences of possession or trafficking.[2] Her Honour noted that only Methcathinone and not 4-MMC was listed in Schedule 11 to the Act and considered it uncertain whether the analogue fell within the extended definition of ‘drug of dependence’ under s 4 of the Victorian Act.
[2]Some defined categories of substances include references to ‘analogues’ of defined substances under the statutory regime based on the Act. For example, possession of ‘prescribed precursor chemicals’ under section 71D of the Act is an offence, and for the purposes of defining that category of prescribed precursor chemicals the relevant Drugs, Poisons and Substances (Precursor Chemicals) Regulations 2007 lists the relevant substances in the Schedule to the Regulations. The category of ‘precursor chemicals’ is also defined in the Regulations and includes reference to ‘analogues’ of the structure of chemicals falling within the category of precursor chemicals. However, since section 71D of the Act only relates to possession of the category of prescribed precursor chemicals, it follows that the reference to ‘analogues’ of the chemicals within the category of precursor chemicals in the Regulations does not affect the scope of the operation of section 71D of the Act.
It is not clear whether an analogue is a ‘a form of the drug’ within the meaning of the Victorian Act. The doubt surrounding the status of 4-MMC as a drug of dependence under the Victorian Act, should be removed by an appropriate amendment to the legislation. One solution would be to adopt the Commonwealth’s regime which expressly treats analogues of prescribed drugs as the same as those prescribed drugs.
Unfortunately her Honour’s attention was diverted to the irrelevant question whether it was illegal to possess or traffick the drug under Victorian law. As importing and possessing the drug was illegal under the Code, it was immaterial whether it was illegal to possess or traffick it in Victoria. Her Honour was referred to R v Pidoto and ODea[3] and Adams v R[4] and should thus have concluded that its harmful consequences were to be presumed. As the Director has in my opinion made out the contention under ground 1 that the release of the applicant for the entirety of the term of imprisonment of 22 months resulted in a manifestly inadequate sentence, I therefore find it unnecessary to resolve the question whether her Honour in sentencing the respondent did so on the basis that the harmfulness of the drug had not been established.
[3](2006) 14 VR 269.
[4](2008) 234 CLR 143.
In the course of argument the Director identified a number of errors which it was submitted contributed to the erroneous decision not to require the respondent to serve an immediate period of imprisonment.
Firstly, it was submitted that because her Honour was not satisfied that it was an offence to possess or traffick that particular form of the drug in this State, her Honour concluded that the fact that the respondent had imported and possessed the drug for a commercial purpose, namely to traffick it for profit in Victoria, could not constitute an aggravating circumstance. This was an error. The offence was to be viewed as more serious because the drugs were not solely for the respondent’s personal use but were to be sold for profit. Secondly, her Honour reasoned that if, contrary to her view, it was an offence to possess or sell them under State law, then the respondent’s commercial purpose could not be taken into account because those offences could be prosecuted by way of separate charges. That was also an error. It is well settled that circumstances of aggravation which constitute a discrete offence may be taken into account so long as the offence is one that is not more serious than the offence charged.[5] Thirdly, the Director submitted that her Honour had erred in concluding that the respondent did not clearly recognise that the importation or possession of the drugs was illegal and that therefore his moral culpability was reduced. I accept the submission that such a conclusion was not open as the circumstantial evidence of the lengths to which the respondent went to conceal his activity pointed strongly to his recognition that what he was doing was illegal.
[5]R v De Simoni (1981) 147 CLR 383.
I agree with Harper JA that this was a serious offence which required the respondent to serve an immediate period of imprisonment. Whether this Court should now impose an immediate period of custody must be assessed on the basis that the respondent was aware that it was illegal to import and possess the drug, that it was harmful, and that his commercial purpose aggravated the offences. Allowing each of these matters, I nonetheless agree with Harper JA that we should, in the exercise of our residual discretion, discussed in DPP vKarazesis,[6] decline to now require the respondent to serve an immediate period of imprisonment.
[6][2010] VSCA 350.
I am mindful that the reluctance of this Court, discussed in DPP v Buhagiar and Heathcote,[7] to require a respondent to be immediately imprisoned where he has been at liberty since sentence was imposed, rested in part on the principle of double jeopardy. As double jeopardy has been abolished, the circumstance in which we should decline to intervene may have to be more compelling, but I consider this is such a case.
[7](1998) 4 VR 540.
The respondent was 19 at the time of sentence. Her Honour was understandably moved by his good character, his youth and his excellent prospects for rehabilitation. As the sentencing judge observed, youth detention was an available option had the sentencing judge determined that imprisonment was necessary. Youth detention is no longer an option. To now require a youthful offender of previous good character who has been at liberty and has taken significant steps towards rehabilitation to now be placed in an adult prison, is not a course that would serve to benefit the community or the respondent. Given these considerations
I would decline to intervene and impose a different sentence. I agree with Harper JA that the appeal should be dismissed.
HARPER JA:
4-methylmethcathinone, more commonly referred to as ‘4-MMC’ or by one of its several street names, is a designer drug which first appeared in France in 2007. It is an analogue of a border controlled drug (methcathinone), and both its importation and possession are therefore prohibited under, respectively, s 307.3(1) and s 307.10(1) of the Criminal CodeAct 1995 (Cth). The effect induced by consumption of the drug is similar to that induced by MDMA (otherwise known as ecstasy) and with drugs which are amphetamine-related.
As a newcomer to the Australian drug scene and as an analogue of methcathinone, 4-MMC had not, in June 2009, come directly under the umbrella of the Drugs Poisons and Controlled Substances Act (Vic). One consequence was that the respondent could plead – with a plausibility which satisfied the sentencing judge – that, as at June 2009, he had chosen to deal with 4-MMC because its status (either legal or illegal) had not, as he thought, been determined. He thought that Victorian legislation might not have caught up with it and so, while suspecting that its use in this State might be illegal, hoped that it was not. He was prepared to take his chances.
Whatever the position in Victorian law, the respondent’s dealing with 4-MMC was in breach of the laws of the Commonwealth. It was not until April this year, however, that the Criminal Code Regulations 2002 (Cth) were amended to bring 4-MMC within the quantity-based penalty regime adopted by the Customs Act 1901 (Cth) and the Criminal Code (Cth) by specifying the trafficable, marketable and commercial quantities of 4-MMC. The trafficable quantity was then fixed at 2.0 grams; the marketable quantity at 250.0 grams; and the commercial quantity at 0.75 kilograms. But, as at June 2009, the authorities were unable to call these provisions in aid. They were restricted to charging importers of the drug with importing an
unspecified quantity of it, the maximum penalty for which was 10 years’ imprisonment or a fine not exceeding $220,000. They were likewise restricted to charging those who possessed this drug, when it was reasonably suspected of having been imported, with possessing an unspecified quantity. The maximum penalty for this offence was two years’ imprisonment or a fine not exceeding $44,000.
On 12 June 2009, Customs officers intercepted a package imported from China and addressed to the respondent. It was later found to contain 997.5 grams of 4-MMC with a purity of 75.5 per cent. The package therefore had a net weight of 753.1 grams.
A search of the respondent’s residence, where he lived with his parents, was undertaken by the police on 21 July 2009. They then found a further 1572.02 grams (net weight) of 4-MMC in his bedroom, together with $5450 in cash. At the same time, the respondent’s computer revealed that he dealt in the drug, although – because the legislative regime had not by then been relevantly amended – he has not been charged with trafficking.
On 14 December 2010, the respondent pleaded guilty to two offences involving 4-MMC. The first was that, on or about 13 June 2009, he imported a ‘border controlled drug’. The second was that, on 21 July that year, he possessed this drug, it being reasonably suspected of having been imported.
On the first charge, the respondent was on 21 January 2011 sentenced to imprisonment for 20 months; and on the second to six months’ gaol, two months of which were ordered to be served cumulatively with the sentence on the first. The sentencing judge further ordered, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that the respondent be released upon entering into a recognisance release order and upon being required to be of good behaviour for 22 months.
I interpose the observation that her Honour was mistaken in specifying, in her sentencing remarks, that the maximum fine for the first charge was $275,000. No point is made by either side about this, and in the event it is not relevant to this application.
The Director of Public Prosecutions for the Commonwealth takes no issue with the head sentences, or the degree of cumulation. The sole issue in this appeal concerns the recognisance release. The Director contends that her Honour ought to have imposed an immediate custodial sentence on each count, and that her failure to do so reveals such a grave error as to warrant appellate intervention.
There are two grounds of appeal. The first is that the order releasing the respondent was manifestly inadequate. The second is that, in making the order that the respondent be released forthwith, the sentencing judge erred in having regard to the harmfulness of the drug in question.
The Director provided particulars of the grounds of appeal. By these, he contends that, in determining the sentence to be imposed on each of the two counts, her Honour failed to give sufficient weight to a number of factors: general and specific deterrence; the need for adequate punishment; the nature, circumstances and gravity of the offending; the maximum penalties; the role of the respondent; and consistency in sentencing. The judge also (so the Director contends) gave undue weight to ‘factors in mitigation’.
The second ground is one which alleges specific error. If made good, the sentencing discretion will be reopened; and it will be for this Court to resentence the respondent. I accordingly turn first to this ground.
The argument in its favour is based in part upon references in her Honour’s reasons for sentence to the similarity, in some respects, of 4-MMC to other designer stimulants. Her Honour also referred to its use as an alternative for amphetamine related drugs and MDMA (or ‘ecstasy’). Then the judge said:
In terms of the harm your offending caused or could have caused, [it] is unclear what harm the drug 4-MMC causes. Fortunately, the authorities detected you and your offending was stopped. Due to the vigilance of customs officials, this clearly stopped further amounts of these drugs getting into the community. The custom’s vigilance, of course, comes at the expense and inconvenience of the Australian community as a whole.
The appellant submits that error is revealed by the references to other designer stimulants, to the use of 4-MMC as an alternative for both amphetamines and ecstasy, and to the harm caused by 4-MMC. I agree with these submissions. The Director points, correctly, to authorities which establish that, in sentencing for drug offences, it is impermissible to apply ‘a judicially constructed harm-based gradation of penalties’.[8] I depart from him, however, when he goes on to submit that the sentencing judge drew an inference favourable to the respondent from the absence of any specific evidence of harm caused by 4-MMC.
[8]Adams v R (2008) 234 CLR 143; R v Pidoto and ODea (2006) 14 VR 269.
The appellant submits that the drawing of such an inference is evidenced by her Honour’s observation in her reasons for sentence that it was not clear what harm the drug caused or could cause. So far as I can see, however, there is (apart from the impugned passage) nothing in those reasons for sentence to suggests that she took into account as a mitigating factor any notion that the relative harm suffered by consumers of 4-MMC, and the general public which must share the cost of its use, was less than for other illicit drugs. Indeed, during the course of argument on the plea, her Honour made it quite clear that she was aware that, in her words, ‘an illicit drug is an illicit drug, it doesn’t matter whether it is heroin or marijuana.’
Very shortly after the judge made that reference, the prosecutor, perhaps out of an abundance of caution, cited R v Pidoto and O’Dea[9] and Adams v The Queen.[10] The former is authority for the proposition that, when a person is being sentenced for the offence of trafficking in a drug of dependence, ‘[w]hat the legislation precludes … is the sentencing court bringing to bear any view, about the general tendency of the drug in question to cause harm, whether to users of it or to the community at large.’[11] Consistently with this, the High Court in Adams held[12] that the application of a judicially constructed harm-based gradation of penalties was incompatible with Parliament’s ‘own judgment as to an appropriate penal response to involvement in the trade in illicit drugs.’
[9](2006) 14 VR 269.
[10](2008) 234 CLR 143.
[11](2006) 14 VR 269, [43] (Maxwell P, Buchanan, Vincent and Eames JJA).
[12](2008) 234 CLR 143, [10] (Gleeson CJ, Hayne, Crennan and Kiefel JJ).
Her Honour’s attention was, accordingly, specifically drawn to these authorities. There is every reason to believe that the judge was aware of them in any event.
In my respectful opinion, her Honour’s reference in her sentencing reasons to the harm the respondent’s ‘offending caused or could have caused’ and the ‘harm the drug 4-MMC causes’, was an unnecessary and unfortunate reference to an irrelevant topic. But that perhaps does an injustice to her Honour. There is nothing explicit in the judge’s reasons for sentence to suggest that, in determining the sentence she thought appropriate, her Honour took the relative harmfulness of the drug (about which, as she said, she was in any event unclear) into account; and the only words which might give rise to that implication are those already quoted. As against the drawing of the implication is the clear evidence that her Honour was aware of the importance of avoiding a judicially constructed, harm-based, gradation of penalties.
In my opinion, the second ground of appeal is not made out.
The contention that the sentence was manifestly inadequate has more substance. The need to deter the kind of socially destructive activity in which the respondent engaged is clear. It is true that, in April this year, the Sentencing Advisory Council of Victoria published a research paper entitled Does Imprisonment Deter? A Review of the Evidence. It concluded that the fear of punishment is responsible for a minor reduction in the incidence of crime. The small size of the reduction is explicable because those who might be minded to engage in criminal activity are unlikely to think with sufficient rationality to appropriately weigh the adverse consequences of being caught and punished against the more immediate benefits of the crime. Even those with neither a mental disability nor a drug-induced incapacity to think with clarity are susceptible to the making of irrational decisions which take no or no sufficient account of consequences. The courts might therefore think it appropriate to give less weight to deterrence than heretofore.
Even accepting, for present purposes, the accuracy of these findings, dealers in drugs and those who might be tempted to become such dealers are often in a relevantly different category to other criminals. It may be reasonably supposed that many are intelligent and rational enough to make the choice between drug-related profits and the consequences of exposure to severe punishment. Moreover, ‘[t]he difficulty of detecting [drug] importation offences, and the great consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.’[13] Whatever its merits or demerits as a deterrent in other cases, the threat of imprisonment must as the authorities presently stand be taken to be a deterrent to which the courts must have particular regard in determining appropriate sentences for those who, like the respondent, import border controlled drugs.
[13]Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32, [34.7].
In this case, the sentencing judge gave ‘some weight’ to general deterrence in the sentence she imposed. She added:
People who think that they might engage in the importation of any substance, which is illegal or which they suspect might be illegal, need to think very carefully about the risks if they are caught. These risks ought to include the real prospect of a gaol sentence.
The appellant submits that this is not sufficient. General deterrence ought, he contended, to have been a primary sentencing consideration. The quantity of drugs involved, coupled with the commercial as well as personal use which followed their importation, compelled that conclusion. This is so even bearing in mind that the respondent is young, and has no prior convictions. And as a primary sentencing consideration, deterrence necessitated a sentence of immediate custody.
The Director also relied on the proposition that, even if one accepted that the respondent held his asserted belief about the legal status of 4-MMC, that fact deserved little, if any, weight. I agree. If the respondent did not know, he certainly suspected that his importation of, and subsequent dealings with, 4-MMC was illegal. In any event, not only is ignorance of the law no excuse, but the objective gravity of the respondent’s offending must be viewed against the consideration that the respondent knew or ought to have known that 4-MMC was relevantly indistinguishable from illicit drugs, and that commercial dealings in drugs of any kind for other than medicinal purposes (and, where appropriate, only as prescribed) have pernicious social consequences. He was nevertheless prepared to put these considerations aside for personal gain.
It is also relevant that, as the appellant submitted, the respondent gave no evidence about his belief in the legality of his activities – or, indeed, at all. His assertions on this topic were therefore untested.
The respondent argued in reply that the suspension of his imprisonment did not take the sentence outside the appropriate range, still less enable the appellant to pass the test laid down in DPP v Bright.[14] He relies on his youth, his lack of prior convictions, his mental state (he suffers from depression) and his early pleas of guilty. He also assisted the police with their investigations.
[14](2006) 163 A Crim R 538.
A number of cases from the Supreme Court of the Northern Territory were brought to the Court’s attention.[15] One of these, The Queen v Messel, is the decision on appeal from another of them – The Queen v SLM. In that case, a 29 year old offender played a small but important part in a much larger operation, although – as the Court of Criminal Appeal found – his ‘total criminal conduct over a significant period was very serious.’[16] At the same time, ‘[t]here were significant factors of mitigation’. Put together as elements of the process of instinctive synthesis, however, the gravity of the offending and the circumstances of mitigation did not, in the opinion of the Court of Criminal Appeal, warrant ‘an aggregate sentence of imprisonment for 18 months, suspended after service of 28 days, imposed for three drug offences.’[17] That sentence was indeed, in the opinion of the Court of Criminal Appeal, manifestly inadequate.
[15]The Queen v Carter and Sullivan, (Unreported, 21 August 2009); The Queen v Zamolo, (Unreported 8 October 2010); The Queen v SLM, (Unreported, 8 May 2010); The Queen v Messel [2010] NTCCA12.
[16][2010] NTCCA12, [17] (Martin CJ, Riley and Blokland JJ).
[17]Ibid [1].
The offender had assisted in the production of about 2.7 kilograms of 4-MMC. But his reward was relatively small, he had no prior convictions, he pleaded guilty, his actions were out of character, he was remorseful and he had good prospects of rehabilitation. Moreover, he voluntarily disclosed information not otherwise available to the police. This resulted in his being charged with, and pleading guilty to, an offence which would not have been detected without the information which the offender himself provided. He also gave evidence against his co-offender, which significantly assisted the co-offender’s prosecution.
It was in these circumstances that the Court of Criminal Appeal was required to apply the principles governing Crown appeals against sentence. What the Court said about this topic is of particular relevance to the present case, given that (a) if the appeal were to succeed the respondent would be required to serve a period of immediate imprisonment where now he is subject to a recognisance release order; (b) his rehabilitation, which was continuing at the time of the original sentence, ‘would be significantly adversely affected.’ I set out below the relevant portion of the judgment:
Importantly, in a case such as the one under consideration which contains powerful factors of mitigation, and factors of mitigation which include the public policy of encouraging cooperation with law enforcement authority, even if the Court of Appeal is satisfied that the sentence is manifestly inadequate to the point of demonstrating error in point of principle, the appeal by the Crown does not necessarily succeed. Before setting aside the sentence and re-sentencing, the Court must be satisfied that the case under consideration is one of the ‘rare and exceptional’ cases in which a Crown Appeal should be allowed. It is not uncommon for the Court of Appeal to determine that a sentence is manifestly inadequate, but for the reasons borne out of powerful factors of mitigation, the sentence will be allowed to stand with an indication that the sentence was too low and should not be followed
in the future.
There is a further factor of importance in a case of the respondent. Sentence was imposed on 6 May 2010 and the period of imprisonment was back-dated to 28 April 2010 to reflect time spent in custody. The respondent was released in late May 2010 and has got on with his life between release and the hearing of this appeal. As counsel for the respondent submitted, the evidence supports the view that the respondent is being rehabilitated and the possibility of future offending is low.
In these circumstances the principle of double jeopardy is of particular importance. Having served the penalty which the sentencing judge considered appropriate, the respondent now faces the prospect of both an increase in the penalty and having to interrupt his life and rehabilitation by re-entering prison.
Double jeopardy is no longer a factor to be taken into account by Victorian Courts. What is significant in this case, however, is the fact that not only was the offending grave, but also that at the time of sentence the respondent had, in her Honour’s words, ‘been assessed as suitable for a Youth Justice Centre Order’. That option is no longer available.
In my opinion, her Honour’s failure to sentence the respondent to a period of immediate detention had the result that the sentence could properly be described as manifestly inadequate. Over a period of months, the respondent engaged in pernicious dealings with an illicit drug. Although there are mitigating factors, particularly his youthfulness, these were not such as to warrant his release upon a recognisance release order. But it is now too late to rectify that error. He is no longer eligible for youth detention, and so any period of incarceration would be spent in an adult prison. That outcome would do him an injustice, and adversely affect his rehabilitation. In someone of the respondent’s age, the personal cost might be great; but the harm to the community might be even greater.
In his judgment Redlich JA pointed to the desirability of removing the doubt surrounding the status of 4-MMC as a drug of dependence under the Victorian Act by an appropriate amendment to the Drugs, Poisons and Controlled Substances Act 1981. I share his Honour’s view.
For the reasons expressed above, the appeal should be dismissed.
ROBSON AJA:
The Director of Public Prosecutions for the Commonwealth appeals against the sentence imposed on the respondent on two grounds. First, the director contends that the order made by the learned sentencing judge that the respondent be released forthwith is manifestly inadequate in that it falls outside the sentencing range reasonably open to the sentencing judge in the circumstances. Secondly, the director contends that the learned trial judge erred in having regard to the harmfulness of the substance the subject of the indictment in making the order that the respondent be released forthwith.
I have had the advantage of reading in draft the reasons of Harper JA. I agree that the appeal should be dismissed. I agree with Harper JA that the director has not made out the second ground for the reasons Harper JA gives.
I refer to paragraph 8 of the judgment of Redlich JA and agree with his suggestion of an appropriate amendment to the legislation.
As to the ground of manifest inadequacy, I am not satisfied that the sentence was manifestly inadequate. I gratefully adopt the description of the relevant circumstances of the offence and of the respondent given in the reasons of Harper JA.
A sentencing judge exercises a discretion when deciding upon and imposing a sentence.[18] The principles relating to the review of a judge exercising a discretion in sentencing were laid down in House v The King.[19] In their joint judgment Dixon, Evatt and McTiernan JJ said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[18]House v The King (1936) 55 CLR 499, 504 (Dixon, Evatt and McTiernan JJ); Verdins; Buckley; Vo (2007) 16 VR 269, [25]; The Queen vMacNeil-Brown [2008] VSCA 190; Hudson v The Queen [2010] VSCA 389, [27].
[19](1936) 55 CLR 499.
In Carroll v R,[20] the High Court of Australia confirmed that a Crown’s appeal against sentence on the grounds of manifest inadequacy is an appeal within the last category in House v The King. The Court said that such a ground does not involve an allegation of specific error. They said (after quoting the last category of case identified in House v The King):[21]
The Director’s allegation in his notice of appeal to the Court of Criminal Appeal, that the sentence passed was ‘manifestly inadequate’, was an allegation of this kind of error. It was not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal. But as indicated at the outset, no case of specific error was alleged; the sole ground of appeal was manifest inadequacy of sentence.
[20](2009) 254 ALR 379, 381 (Gummow, Hayne, Crennan, Kieffel and Bell JJ).
[21]Ibid.
An allegation that a judge exercising a discretion gave too much or too little weight to a material consideration ordinarily may not, by itself, constitute an allegation of specific error. In TheQueen v Giles[22] Batt JA, when dealing with an appeal against sentence, said:[23]
Grounds going only to the weight given to factors or sentencing purposes are difficult indeed to make out having regard to the discretionary character of a sentence, and ordinarily will fall to be treated as particulars of an allegation of manifest excessiveness or, as relevant, manifest inadequacy.
[22][1999] VSCA 208.
[23]Ibid [13].
This Court in TheQueenvMacNeil-Brown,[24] held that the application of the principle in House v The King to the submission on a Director’s appeal that a sentence is manifestly inadequate is a submission that the sentence imposed falls outside the range reasonably open to the sentencing judge in the exercise of the sentencing discretion. I quote from a portion of the Court’s explanation of the meaning of ‘sentencing range’ as follows:[25]
[24][2008] VSCA 190 (Maxwell P, Vincent and Redlich JJA).
[25]Ibid [6]–[11].
The meaning of ‘sentencing range’
[6]The sentencing decision is a discretionary judgment. The sentencing court is required to weigh up a range of relevant matters in reaching a judgment as to the most appropriate sentence in the circumstances of the case.
…
[7]Appeals against sentence accordingly attract the principles which govern, and limit, appellate intervention in discretionary decisions, as laid down in House v The King. The concept of ‘range’ emerged in the case law on discretionary appeals.
…
[8]There is, likewise, an ‘ambit of reasonable disagreement’ in the exercise of the sentencing discretion. It is a fundamental precept of sentencing law that there is no single correct sentence in a particular case, ‘no particular opinion being uniquely right’ and that there will be ‘differences of opinion which, within a given range, are legitimate and reasonable.’
…
[9]The contention on appeal that a sentence is ‘manifestly excessive’ (or, in a Crown appeal, ‘manifestly inadequate’) is almost always supported by the proposition that the sentence is ‘outside the range’.
…
… in The Queen v Boaza, Winneke P said that before an appellate court could interfere with a sentence on the ground that it was manifestly excessive, the Court:
would need to be persuaded that the sentence imposed by [the] judge was wholly outside the range of sentencing options available to him.
In The Queen v McCormack, the Full Court (Young CJ, Kaye and McGarvie JJ) upheld a submission that a sentence was manifestly excessive, because it was outside ‘the range of sentences which should be regarded as properly available to a sentencing judge in a case such as this.’
[10]Several propositions can now be stated which lie at the heart of sentencing law and policy, as follows:
(1)The decision as to the sentence to be imposed on a particular person for a particular offence is an individual expression of opinion or judgment. As the High Court said in Lowndes v The Queen, the discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
(2)Reasonable minds can differ on the appropriate sentence for a particular case. As Batt JA said in The Queen v Monardo, there is ‘a range of sentences open to a sentencing judge in the exercise of a sound discretionary judgment.’
(3) ‘The range’ means the limits within which reasonable minds can differ on the appropriate sentence for a particular case.
(4) It is an error of law to impose a sentence which is outside the range applicable to the particular case.
[11] Against this background, the concept of a submission on sentencing range can be readily understood. It means a submission to the effect that the sentencing discretion will be lawfully exercised in the case at hand – that is, there will be no appealable sentencing error – if the sentence imposed falls within the range identified in the submission.[26]
[26]Citations omitted.
Thus, the issue for determination is whether this Court is persuaded by the Director that the sentence imposed by the trial judge on the respondent of 22 months’ imprisonment to be released forthwith upon entering into a recognisance of $500 on condition that he be of good behaviour for a period of 22 months imposed was upon the facts and circumstances of this case wholly outside the range of sentencing options available to the trial judge.
The order for release was made under s 20(1)(b) of the Crimes Act 1914 (Cth) that provides:
Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit: sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).
No relevant statutory qualifications are placed on the power of the court to order such a release. The respondent was 20 years of age at the time of sentencing with no prior convictions or findings of guilt. The respondent was found by her Honour to have very good prospects of rehabilitation. The trial judge found that imprisonment would be likely to adversely impact on the respondent’s rehabilitation. Her Honour found that it was clearly in the community’s interests that a young person, such as the respondent, be given the opportunity to continue his rehabilitation and to make a positive contribution to society.
To find that her Honour erred in the exercise of her discretion this court must be satisfied that the sentence was wholly outside the range of sentencing options available to her Honour, in other words, that the option of applying s 20(1)(b) of the Crimes Act 1914 was at law unavailable to her on the facts and circumstances of the case before her Honour.
We were referred to several cases involving the importation of MMDA into the Northern Territory.[27] Significantly, in R v Carter and Sullivan, the two offenders had over some six months imported eight packages of MMDA for personal use. They were each sentenced to two years and three months, after pleading guilty. The trial judge suspended the sentences. In the other cases referred to an immediate custodial sentence was found to be warranted. In R v Messel the Court of Criminal Appeal did not, on re-sentencing, impose a custodial sentence where one was otherwise warranted because of the double jeopardy principle that is no longer relevant in Victoria.
[27]R v Carter and Sullivan (Unreported, Supreme Court of the Northern Territory, Martin CJ, 21 August 2009); R v SLM (Unreported, Supreme Court of the Northern Territory, Kelly J, 6 May 2010); R v Zamolo (Unreported, Supreme Court of Northern Territory, Mildren J, 8 October 2010); R v Messel {2010] NTCCA 12.
This Court has held that comparable sentences are only a guide as to the ‘range.’ In Hudson v The Queen the Court said:[28]
[27] 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.
[28] 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 52 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.
[29] ‘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.[29]
[28][2010] VSCA 389, [27]–[29] (Ashley, Redlich and Harper JJA).
[29]Citations omitted.
Be that as it may, the authorities referred to us do include a case where the sentence for MMD importation did not include immediate detention.
I am not persuaded that the trial judge’s order that the respondent be released rather than sentenced to a period of immediate detention was wholly outside the range of sentencing options available to her. The importation of illicit drugs is a very serious offence that would normally warrant a sentence that involved immediate detention. On the other hand, the facts and circumstance relating to the offence and the personal circumstances of the respondent, in my opinion, did not shut out the possible application of the conditional release of the respondent under the Crimes Act 1914.
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