Director of Public Prosecutions v Loughnane

[2009] VSCA 214

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 736 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOBY LOUGHNANE

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JUDGES:	NETTLE, REDLICH JJA and LASRY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 September 2009
DATE OF JUDGMENT:	18 September 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 214
JUDGMENT APPEALED FROM:	R v Loughnane, Unreported 12 June 2008, County Court of Victoria (Judge Nicholson)

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CRIMINAL LAW – Sentence – Crown appeal – Trafficking in a commercial quantity of a drug of dependence – Sentence of three years’ and eight months with a non-parole period of eight months – Whether non-parole period manifestly inadequate – Whether judge placed undue emphasis on circumstances of respondent – Brevity of non-parole period not warranting appellate intervention – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Cooper	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC	Browne & Co

NETTLE JA:

1. This is an appeal by the Director of Public Prosecutions against a total effective sentence of three years and eight months with a non-parole period of eight months’ imprisonment imposed on the respondent on pleading guilty to one count of trafficking in a commercial quantity of a drug of dependence MDMA (Count 1); two counts of trafficking in a drug of dependence (methylamphetamine and cocaine) (Counts 2 and 3); one count of possessing a drug of dependence (anabolic steroids) (Count 4); and one count of dealing with a sum of $8,660 cash and being reckless as to whether it was the proceeds of crime (Count 5).

1. The judge sentenced the respondent on Count 1 to three years and six months' imprisonment; on Count 2, to 16 months' imprisonment of which one month was to be served cumulatively on the sentence imposed on Count 1; on Count 3 to 16 months' imprisonment of which one month was also to be served cumulatively on the sentence imposed on Count 1; on Count 4 to three months' imprisonment; and on Count 5 to a term of imprisonment of 12 months.  There is no complaint about any of the individual sentences of her Honour's orders for cumulation. 

1. The sole ground of appeal is that the judge erred in fixing a non-parole period of only eight months and thus, it is said, a minimum sentence which in all the circumstances was manifestly inadequate.

1. Counsel for the Director argued in support of the appeal that the judge had paid extravagant regard to claims that the respondent's offending was the result of deep-seated drug addiction stemming from personal and family misfortunes and unhappiness and that because of steps since taken towards overcoming his drug addiction and the support of family and a former girlfriend, he had good prospects of rehabilitation.

1. That may be so.  In my view the judge did err in fixing the non-parole period of only eight months.  Despite all of the mitigative considerations to which her Honour paid attention in her sentencing analysis, a non-parole period of only eight months is in my view inadequate to provide the sort of general deterrence and denunciation which should be at the forefront of sentencing considerations for drug trafficking offences. 

1. I acknowledge the force of the submissions advanced by counsel for the respondent that the judge was intent on setting a non-parole period which maximised what her Honour perceived to be the chances of the respondent's rehabilitation and which would not curtail or undermine the extent of rehabilitation which the respondent had achieved by the time of sentencing.  Nor does the Crown suggest that it was inappropriate for her Honour to give those considerations great weight.  It may be accepted, therefore, that the judge would have been justified in all the circumstances in imposing a shorter than usual non-parole period.  Nevertheless, I do not accept that a mere eight months’ in prison was within the range.

1. Counsel for the respondent argued in written submissions that it would have been open to the judge to impose a total effective sentence of three years' imprisonment and to suspend all but eight months of it and, if so, that the result would have been much the same. 

1. In my view that argument is not persuasive.  The total effective sentence of three years and eight months was lenient as it was.  A total effective sentence of only three years would have been questionable.  Additionally, I am far from persuaded that if it had been in order to impose a head sentence of only three years, it would have been appropriate to suspend any of it, still less all but eight months.

1. I am, however not disposed to intervene.  The brevity of the non-parole period is remarkable and exceptionable but in this case is hardly a point of principle which warrants appellant intervention.  The considerations to be applied in setting a non-parole period have been considered by this Court on numerous occasions[1] and are well established.  The only problem in this case, as I see it, is that the judge appears to have erred in their application.

[1]See, for example, R v Bolton v Baker [1998] 1 VR 692, 699 (Callaway JA); R Tran and Tran [2006] VSCA 222, [27]-[28] (Redlich JA); R v Bernath [1997] 1 VR 271, 278 (Callaway JA); R v VZ (1998) 7 VR 693, 697 [13]; R v Detenamo [2007] VSCA 160, [24]-[27] (Redlich JA).

1. It is also necessary to bear in mind the principle of double jeopardy which applies to Crown appeals against sentence and the restrictions which it would impose on any amount by which the non-parole period could be increased.  Even if the appeal were otherwise compelling, the amount by which the non-parole period might appropriately be increased would be so restricted that I should be inclined to refuse the appeal in the exercise of discretion. 

1. To that must be added that the applicant has now served the whole of the non-parole period of eight months and been at liberty on parole for some 14 months, which is itself a consideration militating against this Court's intervention.

1. Finally, as this Court has said so often before,[2] regrettably all too often to be ignored by the Crown – Crown appeals against sentence are regarded as having a ‘rare and exceptional’ character which calls for restraint.  There being very little of either quality evident in the institution of this appeal, in my view, it should be dismissed.

   [2]The effect of relevant decisions is essayed in Redlich JA’s judgment in DPP v Bright (2006) 163 A Crim R 538, 542 [10]; [2006] VSCA 147 [10].

REDLICH JA:

1. I agree with my brother Nettle JA that this appeal should be dismissed.

1. I would add that if it were relevant to so find, I also would have concluded that the non-parole period set was manifestly inadequate bearing in mind that there must be a punitive element within the composition of the non-parole period.  But as this Court has said in DPP v Bright,[3] something more than manifest inadequacy is required.  No such additional feature is present.  Coupled with the further considerations that the appellant has now been at liberty for some 14 months and recognising that an allowance would have to be made for double jeopardy, this case is not one in which the Court's intervention can be justified.

[3]Ibid.

LASRY AJA:

1. I also agree that the appeal should be dismissed.

NETTLE JA:

1. The order of the Court is that the appeal is dismissed.

1. A certificate pursuant to s 15(1)A of the Appeal Costs Act1998 is granted to the respondent.

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