Director of Public Prosecutions v Gonzalez
[2011] VSCA 175
•15 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2010 0402 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| JOHN MANUEL GONZALEZ | Respondent |
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JUDGES: | NEAVE, REDLICH and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 April 2011 | |
DATE OF JUDGMENT: | 15 June 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 175 | |
JUDGMENT APPEALED FROM: | R v Gonzalez (Unreported, County Court of Victoria, Judge Hampel, 22 October 2010) | |
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CRIMINAL LAW – Sentence – Crown appeal – Trafficking in a large commercial quantity of a drug of dependence (pseudoephedrine) (count 1) – Other drug offences (counts 2 to 14) – Guilty plea – 4 years’ imprisonment on count 1 – Total effective sentence of 5 years and 3 months’ imprisonment with non-parole period of 3 years and 6 months – Crown challenge only to sentence on count 1, total effective sentence and non-parole period – Sentence manifestly inadequate – Re-sentenced to 6 years and 6 months’ imprisonment on count 1, with same orders for cumulation – Total effective sentence of 7 years and 9 months’ imprisonment with non-parole period of 5 years and 3 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr P F Tehan QC with Mr P J Hannebery | Patrick W Dwyer |
NEAVE JA:
I have had the advantage of reading in draft form the judgment of Hansen JA and agree, for the reasons he gives, that the appeal should be allowed and that the respondent be re-sentenced as he proposes.
REDLICH JA:
I agree with Hansen JA.
HANSEN JA:
The Director of Public Prosecutions appeals against the alleged manifest inadequacy of a sentence of four years’ imprisonment imposed on the respondent, John Manuel Gonzalez, in the County Court on 22 October 2010 in respect of one count of trafficking in a large commercial quantity of a drug of dependence (pseudoephedrine), after the respondent pleaded guilty to that count and 13 other drug offences on the same presentment. That inadequacy is also said to have produced a manifest inadequacy in the total effective sentence (five years and three months’ imprisonment) and non-parole period (three years and six months). The Director does not appeal against the adequacy of the sentences imposed on the other 13 counts, nor the orders for cumulation.
The respondent came into possession of the various drugs in the course of his employment with Stericorp, a company whose business was the authorised disposal of pharmaceutical waste. He took the drugs, without permission, and stored them at his home where they were found by the police on 18 December 2007; he was arrested and charged that day. As the sentencing judge recorded, the police found ‘a vast quantity of pseudoephedrine in cold and flu tablets … and varying but lesser quantities of other drugs of dependence … and precursor chemicals used in the manufacture of amphetamines’. The police also found notebooks containing information relating to the manufacture of amphetamines, empty blister packs which
had contained pseudoephedrine or other drugs of the nature found, and some records indicative of or suggesting trafficking activity, seemingly recording sales of quantities of drugs. The judge noted that all 14 counts were put on the basis that the possession was for the purpose of trafficking.
In summary there was:
· One count of trafficking in a large commercial quantity of pseudoephedrine (count 1);
· Three counts of trafficking in a drug of dependence (counts 2, 4 and 5);
· Six counts of possession of a drug of dependence (counts 3, 6-9 and 14);
· Four counts of possession of a prescribed precursor chemical (counts 10-13).
The various counts and the sentences imposed are summarised in the following table:
Count
Maximum Penalty
Sentence
Cumulation
1
Traffick drug of dependence – large commercial quantity – Pseudoephedrine
Life
4 years
Base
2
Trafficking in a drug of dependence – Methylamphetamine
15 years
1 year
6 months
3
Possession of a drug of dependence – Methadone
5 years
3 months
None
4
Trafficking in a drug of dependence – Morphine
15 years
1 year
None
5
Trafficking in a drug of dependence – Diazepam
15 years
1 year
None
6
Possession of a drug of dependence – Oxazepam
5 years
6 months
3 months
7
Possession of a drug of dependence – Alprazolam
5 years
3 months
None
8
Possession of a drug of dependence – Lorazepam
5 years
3 months
None
9
Possession of a drug of dependence – Flunitrazepam
5 years
3 months
None
10
Possession of a prescribed precursor chemical – Iodine
5 years
1 year
6 months
11
Possession of a prescribed precursor chemical – Phosphorous
5 years
1 year
None
12
Possession of a prescribed precursor chemical – Acetic Anhydride
5 years
1 year
None
13
Possession of a prescribed precursor chemical – Benzyl Chloride
5 years
1 year
None
14
Possession of a drug of dependence – Methorphan
5 years
1 year
None
These orders produced a total effective sentence of five years and three months’ imprisonment and the judge fixed a non-parole period of three years and six months. Pursuant to s 6AAA of the Sentencing Act 1991 the judge declared that but for the plea of guilty the sentence on count 1 would have been five years, with increased sentences on the other counts,[1] with a total effective sentence of seven years and a non-parole period of five years.
[1]Not necessary to set out here.
The judge explained that while in imposing the individual sentences she had regard to the criminality involved in each offence, she had regard to ‘considerations of totality, looking at this as an overall episode’. That was to ensure that the total sentence reflected the overall pattern of behaviour and was not disproportionate by reason of the number of charges. Accordingly, there was some cumulation but substantial concurrency.
More particularly, the offences involved:
Count 1 – 17.4 kilograms of pseudoephedrine was found. This was 23 times the large commercial quantity threshold of 750 grams. 17.4 kilograms would yield 7.8 to 13 kilograms of methylamphetamine or 685,414 doses worth $1 each.
Count 2 – 7 grams of methylamphetamine was found, the traffickable quantity being 3 grams.
Count 3 – 60.7 grams of methadone was found, being less than the traffickable quantity.
Count 4 – 22.8 grams of morphine was found, being over 11 times the traffickable quantity of 2 grams.
Count 5 – 12.13 grams of diazepam was found, being in the order of six times the traffickable quantity of 2 grams.
Count 6 – 15.49 grams of oxazepam was found, just above the traffickable quantity.
Count 7 – 0.56 of a gram of alprazolam was found, being less than a traffickable quantity.
Counts 8 and 9 – in each case 0.1 of a gram was found, being less than a traffickable quantity.
Count 10 – 8.7 kilograms of iodine was found, far greater than the prescribed quantity of 25 grams.
Count 11 – 636.6 grams of phosphorous was found, again far greater than the prescribed quantity of 10 grams.
Count 12 – 3 litres of acetic anhydride was found, vastly in excess of the prescribed quantity of 100 ml.
Count 13 – 870 ml of benzyl chloride was found, far more than the prescribed quantity of 50 ml.
Count 14 – 600 grams of methorphan was found, far more than the traffickable quantity of 2 grams.
The Director contended that the inadequacy of the sentence on count 1 is apparent when regard is had to the seriousness of the offence (the maximum punishment for which is life imprisonment) and the dominant importance of general deterrence, denunciation and punishment, as to all of which he contended the judge gave insufficient weight. Further, the judge gave excessive weight to mitigating circumstances including the plea of guilty and the loss of the respondent’s half-share in the family home by reason of an automatic forfeiture order.
The respondent submitted that the sentence on count 1 was open and, even if that were not so, or there was inadequacy in the total effective sentence or the non-parole period, the Court should exercise its discretion not to intervene.
Turning to the respondent’s personal circumstances, he was born in Tenerife in the Canary Islands in November 1971. In 1982, when he was 11, the family (his parents and three younger siblings) migrated to Australia and lived in Melbourne. The respondent duly completed his schooling, passing year 12, following which he undertook one-and-a-half years of a three year Diploma in Mechanical Drafting. Since then he has been engaged in constant employment (in different jobs), with the exception of the time when he was on remand for the present charges (181 days), and the period since being sentenced. His employment with Stericorp commenced in May 2005 and ended with his arrest on 18 December 2007. The respondent married in 1996 and has two young children now aged nine and seven. He has the ongoing support of his family.
The judge referred to the respondent’s personal circumstances in detail, but it is not necessary to restate all the matters she referred to. I merely note the following matters referred to by the judge. The respondent was involved in competitive bodybuilding over a long period which led to his abuse of steroids and amphetamines. Also, the respondent’s training partner took his own life, which led to a period of distress. The judge accepted that the drug abuse and the partner’s suicide clouded the respondent’s judgment and made it easier to rationalise what he was doing, nevertheless as his counsel on the plea accepted, and the judge found, no Verdins issue arose. The judge referred to the respondent’s period on remand (the first time he had been incarcerated) as a ‘sobering experience’ which had and would continue to have a powerful deterrent effect on him. Further, the judge accepted that the respondent’s understanding and acceptance of responsibility for the consequences of his offending on his family ‘means that there is no need to impose as part of my sentence an added component to deter you specifically. The consequences of this have clearly done that and will continue to do it as you serve the sentence that you must’. In making these remarks, the judge was referring, among other things, to the fact that the respondent would lose his half-interest in the family home under an automatic forfeiture order, and that his wife would have to establish her case for an exclusion order. Further, there was the fact that the respondent’s imprisonment left his wife to raise the children alone in difficult financial circumstances. Finally, the judge found that the respondent had very good rehabilitation prospects. In this regard, she was impressed by his attempts to look after his family while the charges were pending by securing employment after he was released on bail, and his apparent acknowledgment of the futility of steroids and amphetamines.
The Director’s submissions
Counsel’s overriding submission was that the sentencing discretion miscarried because the judge failed to properly assess the objective gravity of the offending, which should have been the first step in the process. Having thus undervalued the seriousness of the offending, the judge allowed the mitigating factors to dominate the sentencing exercise to such an extent as to produce a manifestly inadequate sentence.
In developing this submission, counsel emphasised that the quantity of pseudoephedrine the subject of count 1 was 23 times the large commercial quantity threshold. While accepting that quantity was not the only sentencing consideration -indeed it should not be permitted to ‘swamp’ other sentencing considerations – counsel submitted that quantity must be a significant determining factor in assessing the objective seriousness of the offending. Here, the quantity of pseudoephedrine was huge and called for significant weight to be given to denunciation and just punishment.
Another matter going to the seriousness of the offending was the maximum penalty of life imprisonment. Again, counsel submitted that while that factor was not decisive, it was highly relevant and should have been given greater weight.
A further matter relevant to the gravity of the offending was the fact that the respondent committed a breach of trust by taking the drugs and chemicals from his employer whose very responsibility it was to destroy those drugs and chemicals to keep them out of circulation. In other words, the potential effect of the respondent’s conduct was to put back into circulation drugs that otherwise would have been kept out of circulation, as compared to a drug trafficker who keeps in circulation drugs that are already in circulation. Counsel also submitted that the respondent stored this huge quantity of drugs in a most unsafe manner.
As to the mitigating factors, counsel accepted that there were many, but submitted that even giving full weight to all of them, the sentence arrived at was manifestly inadequate. He emphasised that the judge made no finding of remorse. Indeed, given the respondent’s no-comment police interview, contested committal, and very late guilty plea, there was no evidence of remorse. And while the respondent’s prior convictions were not serious, their significance was that he did not fall to be sentenced as a man approaching forty who had otherwise led a blameless life. Further, while the respondent’s loss of his half-share in the family home under an automatic forfeiture order was additional punishment relevant to the sentencing discretion, it could not justify the leniency extended.
Counsel submitted that an appropriate range was a total effective sentence between nine to 11 years (maximum) and seven to nine years (minimum).
The respondent’s submissions
Counsel submitted that the sentencing range proposed by the Director on the plea was a bald statement with no justification. Rather, while the sentence of four years on count 1 was at the bottom of the range, it was nevertheless within range given the following unusual features of the case.
First, although the respondent had possession of the drugs for sale, there was no evidence of any actual sales. Thus, the offending was less serious than cases where an offender has an established drug trafficking business and there is evidence of actual sales.
Secondly, the judge was very impressed by the plea material, on the basis of which she properly found that:
(a)the offending was out of character, having regard to his relative lack of prior convictions, his maturity evidenced by his good employment record and his taking responsibility for his family;
(b)the offending occurred in the context of clouded judgment arising from work stress, drug abuse, and personal distress caused by the suicide of his friend and his mother’s cancer;
(c)the respondent had very good rehabilitation prospects;
(d)the significant consequences of offending on his family - which included the forfeiture of his half-interest in the house and the adjustment disorder stemming from the enormity of the realisation that he is going to spend significant time in jail - meant that the judge practically ignored specific deterrence. The Director did not complain about that aspect.
(e)there was a delay of three years between arrest and sentence, and although that was largely attributable to the late guilty plea, the respondent nevertheless had the matter hanging over him for that time.
Thirdly, although the weight of pseudoephedrine on count 1 was in excess of other cases, quantity was but one factor to be taken into account and it would be wrong to be overawed by the quantity; see Wong v R.[2]
[2](2001) 207 CLR 584.
As to the significance of the respondent’s obtaining the drugs and chemicals through a breach of trust committed against his employer, counsel relied on R v De Simoni[3] in submitting that this matter could not be relied on as an aggravating feature given that the matter could have been charged as a separate offence of theft.
[3](1981) 147 CLR 383, 389.
As to the exercise of the Court’s discretion not to intervene if it were concluded that the sentence was manifestly inadequate, counsel relied on three matters relevant to the exercise of the discretion. First, was the delay referred to above. Secondly, there was the respondent’s rehabilitation which played an important role in the judge’s selection of an appropriate sentence, and in particular the non-parole period. As his rehabilitation continues in custody, the Court should not intervene and increase the sentence as it could adversely affect that rehabilitation. Thirdly, having regard to considerations of totality, because the respondent was sentenced on multiple counts the judge may have adjusted (downwards) the sentence on count 1 to avoid an excessive total effective sentence.
Conclusion
In sentencing the respondent, the starting point was to consider the objective seriousness of the offending. As Redlich JA said in Bright:[4]
Crown appeals inevitably excite an examination of whether there is reasonable proportionality between the sentence and the gravity of the crime. The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations, and in particular subjective factors, may be given undue weight in arriving at the sentence, rendering it unlikely that the sentence will be commensurate with the seriousness of the crime.
[4](2006) 163 A Crim R 538, [11] (footnotes omitted).
In considering the objective gravity of the offending, there is no need to repeat the facts, however it should be emphasised that the respondent took a huge quantity of drugs and precursor chemicals from his employer whose duty it was to destroy them, and stored the substances at his family home for the purpose of trafficking. The absence of evidence of financial betterment and only limited evidence as to sales does not detract from the fact that the respondent’s offending was very serious. In this regard, I reject the submission that the seriousness of the offending was diminished by the possession being ‘merely for the purpose of sale’ without any evidence of actual sales. As the Director correctly stated, apart from the quantity based offence categories in the Act, there are not different grades of trafficking according to the evidence as to the extent of sales. The respondent’s counsel could not point to any authority to support his argument. And when pressed as to the intellectual basis for the alleged distinction, counsel merely asserted that where there is evidence of a continuous criminal enterprise whereby somebody profits from selling drugs which get into the community and cause harm, the offending must be more serious. I disagree. The guilty plea in the present case was made on the basis that the respondent possessed the drugs for the purpose of trafficking. The mere fact that further sales were prevented by the police seizing the drugs and chemicals does not detract from the proposition that the respondent’s actions had the potential to cause harm on a large scale, and he was to be sentenced as such.
As to the relevance of the fact that the respondent took the drugs and chemicals from his employer in breach of trust, the first thing to note is that, as the judge noted, the respondent’s counsel on the plea acknowledged that the matter was relevant for sentencing purposes, and in particular went to the weight to be given to general deterrence. In my view, that concession was correct and appropriate. In effect, counsel’s submission on the appeal sought to second guess trial counsel’s concession. In any event, it is not to the point that the respondent might also have been (but was not) charged with theft. As Nettle JA stated in R v Nobile:[5]
… it is not a universal rule that a judge when sentencing for an offence specifically preferred in a presentment may never have regard to relevant actions of the prisoner that strictly speaking constituted a separate uncharged offence. The rule as expressed in R v De Simoni[6] is that the judge may not take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
In the present case, the relevant circumstances of aggravation might have been charged as theft, being a less serious offence. Hence, De Simoni did not assist the respondent. Of course, it did not automatically follow that the breach of trust be treated as an aggravating factor. As Nobile makes clear, ‘it is a matter of fairness and degree whether [the alleged circumstances of aggravation] may properly be taken into account as part of the circumstances surrounding the offence charged counts’.[7] In the present case, counsel’s concession on the plea provides the strongest indication that he regarded it as appropriate (and not unfair) to take the matter into account. Further, I consider that the fact that the respondent’s breach of trust of his employer had the potential to put into circulation large quantities of drugs and chemicals that otherwise would have been destroyed, was a relevant matter to consider in assessing the overall circumstances of the offending and in particular how those circumstances related to the need to impose a sentence that properly reflected considerations of general deterrence.
[5][2006] VSCA 211, [8].
[6](1981) 147 CLR 383, 389.
[7][2006] VSCA 211, [8].
As to the relevance of maximum penalty, the respondent’s counsel referred to Markarian v The Queen[8] where McHugh J referred to discretionary sentencing not being capable of mathematical precision and, to that end, quoted[9] a passage from Geddes[10] where Jordan CJ said:[11]
In the nature of things there is no precise measure, except in the few cases in which the law prescribes one penalty and one penalty only. In all others, the judge must, of necessity, be guided by the facts proved in evidence in the particular case. The maximum penalty may, in some cases, afford some slight assistance, as providing some guide to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none.
…
It is obviously a class of problem in solving which it is easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, and in which the only golden rule is that there is no golden rule.
[8](2005) 228 CLR 357.
[9]Ibid 383-384.
[10](1936) 36 SR (NSW) 554.
[11]Ibid 555-556.
Counsel submitted that the above stood for the proposition that the maximum penalty was of little importance in the present case.
I disagree. In Markarian, the majority said:[12]
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:
“A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century … or because it has more recently been set at a high catch-all level … At other times the maximum may be highly relevant and sometimes may create real difficulties … A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].”
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
[12](2005) 228 CLR 357, 372 (Gleeson CJ, Gummow, Hayne & Callinan JJ).
Further, s 5(2)(a) of the Sentencing Act 1991 requires the court to have regard to the maximum penalty when imposing sentence.
As to the relevance of the weight of the drugs in question, it is plain that weight is but one of many sentencing considerations and weight should not be permitted to swamp other relevant sentencing considerations. Nevertheless, weight is a highly relevant factor. And in the present case, the enormous quantity of pseudoephedrine was highly relevant to denunciation, punishment and general deterrence.
Turning then to the judge’s assessment of the offending, in my view her Honour significantly undervalued the seriousness of the offending. It is true that early in her sentencing remarks (at paragraph 5), she specifically referred to the weight of drug on count 1 being 23 times over the relevant threshold, and that the maximum penalty for the offence was life imprisonment, yet without a clear denunciation of the criminality involved. Then followed nearly forty paragraphs dealing mainly with the respondent’s personal circumstances and mitigating factors. It is only towards the end of the sentencing remarks (at paragraph 44), that the judge returned to the seriousness of the offending. She stated that the offences were ‘very serious offences’ and that ‘punishment, denunciation and general deterrence clearly loom very large’, and then mentioned the prevalence of illicit drugs and that ‘the consequences for people and those affected by those who abuse illicit drugs are well known’, and made further remarks about general deterrence. The judge then turned to deal with considerations of totality, before imposing the sentences stated above. In my view, despite her reference to punishment, denunciation and general deterrence looming large, the sentence imposed failed to give proper weight to those factors. Indeed, the overall impression of the sentencing remarks is that the judge gave such inadequate weight to the seriousness of the offending that the various mitigating factors were allowed to dominate the sentencing process. The result was that the sentence on count 1 (and consequently the total effective sentence and non-parole period) were manifestly inadequate in that they failed to properly reflect the respondent’s criminality. In short, it was not reasonably open to the sentencing judge to impose the sentence on count 1, the total effective sentence and the non-parole period she imposed, giving proper weight to all the relevant circumstances of the offending and of the offender. In that sense, there was an error and a different sentence should be imposed.
In reaching that conclusion, I do not overlook the reference made to sentencing statistics, however in my view the statistics were particularly unhelpful in this case. Counsel for the Director used the sentencing snapshot to demonstrate that between 2004-2005 and 2007-2008, the average length of imprisonment for a single count of trafficking in a large commercial quantity of a drug of dependence ranged between six years and eight years and one month. He contrasted that with the present sentence of four years when the quantity involved was vastly in excess of the average. In response, counsel for the respondent referred to sentencing snapshot No 102 of June 2010 to demonstrate that in numerous cases sentences of less than five years were imposed. That is all very well but, as counsel for the Director acknowledged, the snapshot is a blunt instrument which says very little about the appropriateness of the instant sentence. Similarly, the cases referred to by counsel for the respondent as comparators were unhelpful, as their circumstances were insufficiently similar to permit any meaningful comparison.
Having concluded that the sentence imposed on count 1, the total effective sentence and the non-parole period were manifestly inadequate, it remains to consider whether this Court should exercise its discretion not to intervene.
In my view, none of the matters relied on by the respondent favour an exercise of the Court’s discretion not to intervene. Further, although the abolition of double jeopardy does not remove the Court’s ability to have regard to evidence of the respondent’s subjective anxiety and stress when considering whether to exercise the residual discretion,[13] there was no suggestion that the respondent’s anxiety and stress amounted to exceptional circumstances as understood in Markovic.[14] Further, the present case is not one where the respondent is at large and only now falls to be imprisoned. Rather, it is a question of the extent to which an existing sentence of imprisonment should be increased.
[13]DPP (Cth) v Bui [2011] VSCA 61, [82]-[87].
[14][2010] VSCA 105.
I would re-sentence the respondent on count 1 to a term of six years and six months’ imprisonment. I would make the same orders for cumulation and concurrency, thus producing a total effective sentence of seven years and nine months’ imprisonment. I would fix a non-parole period of five years and three months. Pursuant to s 6AAA of the Sentencing Act 1991, I note that but for his plea of guilty, I would have sentenced the respondent to eight years’ imprisonment on count 1, producing a total effective sentence of nine years and three months’ imprisonment, with a non-parole period of six years and six months. As to all other counts, if it be necessary to do so I would make the same s 6AAA declarations as the judge below.
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