Djordjic v The Queen
[2018] VSCA 227
•6 September 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0246
| VLADIMIR DJORDJIC | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 August 2018 |
| DATE OF JUDGMENT: | 6 September 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 227 |
| JUDGMENT APPEALED FROM: | DPP v Djordjic (Unreported, 30 October 2017, County Court of Victoria, Judge Campton) |
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CRIMINAL LAW – Sentence – Guilty plea – Two charges of trafficking large commercial quantity of drug of dependence – Charge of knowingly dealing with proceeds of crime – Whether judge erred in treating charge of trafficking two substances as rolled-up charge – Cumulation of sentences – Applicant a serious offender under s 6E of Sentencing Act 1991 – Form of sentence – Sentence of 15 years’ imprisonment trafficking charge involving 4.2 kgs of substances – Total effective sentence 19 years 6 months – Whether manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | Dribbin & Brown |
| For the Respondent | Mr C B Boyce SC | Mr John Cain, Solicitor for Director of Public Prosecutions |
WHELAN JA:
I have read in draft the reasons of Beach and Kaye JJA, with which I agree. I understood the argument being advanced in support of proposed ground 2 differently to the way the argument was understood by Beach and Kaye JJA. The difference may be a matter of form rather than substance, but I find it necessary to articulate the way I understood the argument and the reasons why I have not accepted it. I also wish to make some additional observations on proposed grounds 3 and 4. These reasons assume knowledge of the reasons of Beach and Kaye JJA.
Proposed ground 2
The fundamental proposition of the applicant in relation to proposed ground 2, as I understood it, was that the proper construction of s 6E of the Sentencing Act 1991 leads to the conclusion that a sentence to which it applies cannot be the base sentence. This is because s 6E provides that a sentence to which it applies must be served cumulatively ‘on’ any other uncompleted sentence. The submission was that this was what this Court had held in Barbat v The Queen.[1] As I understood it, the applicant also submitted that in this particular case that conclusion meant that the base sentence had to be the sentence imposed on charge 1. It was said that this was because in SJ v The Queen[2] this Court had held that, in circumstances where provisions such as s 6E applied, offenders should be sentenced in accordance with the chronological order of the charges on the indictment.
[1][2014] VSCA 202 (‘Barbat’).
[2][2012] VSCA 237 ― I am unpersuaded that the applicant’s interpretation of this judgment is necessarily correct, but it is unnecessary to decide that in this application.
Beach and Kaye JJA have set out the factual circumstances addressed by the Court in Barbat. The conclusions of the two judges who constituted the Court in Barbat were expressed diffidently, and they emphasised that the matter ought to be addressed by a bench of three. Nevertheless, as the applicant submitted, it does seem to me that the Court in Barbat proceeded on the basis that a sentence to which s 6E applied could not be the base sentence. The Court reached that conclusion on the construction of s 6E. It led the Court in that case to re-sentence in such a way that the longest sentence on the most serious charge (a sentence of one year 10 months’ imprisonment on charge 3) to which s 6E applied, was cumulated upon a base sentence of four months’ imprisonment on an earlier charge (charge 2).
The construction of s 6E adopted in Barbat, and advanced by the applicant here, is certainly open. A sentence which is itself the base sentence would not usually be said to have been cumulated ‘on’ any other sentence. However, in my view, that is not the only construction open. This is because, in my opinion, the issue will only arise where the court has not ‘otherwise directed’. If the court otherwise directs, in my opinion, s 6E does not apply, as Beach and Kaye JJA have concluded.[3] Thus, the issue only arises where the sentence to which s 6E applies is to be cumulated in total. If the sentence to which s 6E applies is made the base sentence and the other uncompleted sentence or sentences are wholly cumulated then, in my view, it does not strain the language of the section to say that the sentence to which s 6E applies (which is the base sentence) has been cumulated ‘on’ the other sentence or sentences. Given that that is an interpretation which is open, in my view it is the one that should be adopted because otherwise s 6E would, in the circumstances postulated, require a departure from the well-founded general principle that the longest sentence on the most serious charge should be the base. I do not accept that that could be the legislative intention. It is anomalous to reach a position where the longest sentence on the worst charge is not the base sentence, and is cumulated on a much shorter sentence, as occurred in Barbat.
[3]The legislative policy must still be taken into account, of course, as Beach and Kaye JJA have explained.
For these reasons I do not accept the construction of s 6E advanced by the applicant in support of proposed ground 2. In this particular case the issue is not determinative of the application in any event because, as Beach and Kaye JJA have explained, this is a case where the sentencing judge had ‘otherwise directed’ so that s 6E did not apply.
Proposed grounds 3 and 4
The sentence on charge 3 is stern, as is the total effective sentence. For the reasons given by Beach and Kaye JJA I do not consider that they are manifestly excessive. In reaching that conclusion, in addition to the matters they have set out, I would add the following matters.
I am conscious of the importance of avoiding double punishment, but the sentence imposed on charge 3 and the total effective sentence do have to be assessed by reference to the role which the applicant played in the drug trafficking organisation of which he was a part. It was conceded that he had a ‘high-level executive’ role. It is important, in my view, to give meaning to that description by reference to the overall circumstances of the offending. I refer in this respect to his cocaine transactions with Gallin, on six occasions over several months; to the large commercial quantities of both cocaine and methylamphetamine found at his residential unit in Caulfield North; to the $2,784,490 in cash secreted in a storage cavity at that residential unit; to the $959,650 in cash secreted in the storage unit of his vehicle; and to his possession of a working black semi-automatic pistol with its serial number erased, and a quantity of ammunition, together with other prohibited weapons.
Further, the applicant does not come before the Court as a person otherwise of good character. Whilst he does not have prior convictions for drug offences, he was before the Courts repeatedly between 2004 and 2012.
Finally, it seems to me that what this Court said in Gregory v The Queen[4] is particularly significant. The offender in Gregory pleaded guilty to four charges of trafficking, the most serious one being trafficking in a commercial quantity of methylamphetamine, and other offences. On the charge of trafficking in a commercial quantity of methylamphetamine, he was sentenced to 8 years 6 months’ imprisonment, which was the base sentence. The total effective sentence in that case
was 9 years 5 months’ imprisonment. The maximum penalty for trafficking in a commercial quantity of methylamphetamine was 25 years’ imprisonment. The Court in Gregory, by way of general guidance, said that current sentencing practice was inadequate and that sentences for trafficking in both a commercial quantity and a large commercial quantity would need to increase substantially (as referred to by Beach and Kaye JJA). The Court then said that had the Court in that case not been constrained by current sentencing practice a sentence of 13–15 years would have been well within range.[5] The range so postulated concerned a total effective sentence for offences where the most serious offence was trafficking in a commercial quantity, a less serious offence than the trafficking offences committed by the applicant with a lower maximum penalty. The positions are not, of course, directly comparable, but what was said in Gregory fortifies my view that the total effective sentence here is not manifestly excessive.
[4][2017] VSCA 151 (‘Gregory’).
[5]Ibid [103].
Conclusion
For the reasons given by Beach and Kaye JJA, and for the additional reasons I have set out, I agree with their conclusions and with the dispositions they propose.
BEACH JA
KAYE JA:
The applicant pleaded guilty, before a judge of the County Court, to two charges of trafficking in a drug of dependence in a large commercial quantity, one charge of possessing an unregistered general category handgun, one charge of knowingly dealing with the proceeds of crime with intent to conceal, and one charge of possession of prohibited weapons.
Following his plea, the judge imposed a total effective sentence of 19 years and 6 months’ imprisonment, with a non-parole period of 14 years and 6 months.
That sentence was constituted as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation | |
| 1. | Trafficking in a drug of dependence – large commercial quantity [s 71(1) Drugs Poisons and Controlled Substances Act 1981] | Level 1 imprisonment (life) and 5000 penalty units [s 71(1) Drugs Poisons and Controlled Substances Act 1981] | 9 years | 3 years | |
| 2. | Possession of an unregistered category handgun [s 7B(1) Firearms Act1996] | 600 penalty units or 7 years imprisonment [s 7B(1) Firearms Act1996] | 2 years | 6 months | |
| 3. | Trafficking in a drug of dependence – large commercial quantity [s 71(1) Drugs Poisons and Controlled Substances Act 1981] | Level 1 imprisonment (life) and 5000 penalty units [s 71(1) Drugs Poisons and Controlled Substances Act 1981] | 15 years | Base | |
| 4. | Knowingly deal with proceeds of crime with intent to conceal [s 194(1) Crimes Act 1958] | Level 3 imprisonment (20 years) [s 194(1) Crimes Act 1958] | 6 years | 1 year | |
| Summary Charge | |||||
| 8. | Possess prohibited weapon without exemption/approval [s 5AA Control of Weapons Act1990] | 240 penalty units or imprisonment for 2 years. [s 5AA Control of Weapons Act1990] | 6 months | Nil | |
| Total Effective Sentence: | 19 years 6 months | ||||
| Non-Parole Period: | 14 years 6 months | ||||
| (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: | 376 days | ||||
| 6AAA Statement: The learned sentencing judge stated that the sentence she would have imposed if the Applicant had been convicted of this offence after a trial would have been 24 years imprisonment, with the Applicant becoming eligible for parole after serving 19 years of that sentence. | |||||
| Other relevant orders: Pursuant to s 6B of the Sentencing Act1991, sentenced on charge 3 as a serious drug offender. Forfeiture Order pursuant to s 151(1) of the Firearms Act1996, Disposal Order pursuant to s 77(1) of the Confiscations Act 1997 Forensic sample order pursuant to s 464ZFB(1) of the Crimes Act 1958 | |||||
The applicant seeks leave to appeal against sentence on the following four grounds:
1.The learned sentencing judge erred in the exercise of her discretion in imposing sentence on Charge 3 on the basis that it was a ‘rolled-up charge of trafficking’.
2.The learned sentencing judge erred in the exercise of her discretion by treating the individual sentence of imprisonment imposed on Charge 3 as the base sentence upon which (partial) orders for cumulation of sentences on the other charges were then made in circumstances where s 6E of the Sentencing Act 1991 (Vic) was applicable.
3.The individual sentence of imprisonment imposed by the learned sentencing judge on Charge 3, namely, 15 years imprisonment, is, in all the circumstances of the case, manifestly excessive.
4.The Total Effective Sentence imposed by the learned sentencing judge, namely, 19 years 6 months imprisonment, is, in all the circumstances of the case, manifestly excessive.
The circumstances of the offending
The first charge alleged trafficking in a drug of dependence, namely cocaine, in a large commercial quantity between 25 August 2015 and 1 November 2015.
During that period, the applicant was the supplier of cocaine to a drug trafficking syndicate that was operated by one Julian Gallin and others. The syndicate was conducted from a unit in Tennyson Street, St Kilda, where police had installed an optical device and a listening device.
Between 25 August and 1 November 2015, the applicant made six visits to the unit to deliver cocaine to the syndicate, and to collect payments for cocaine that he had previously delivered. Each of the visits was captured on the surveillance devices. The applicant was recorded having conversations with Gallin about supplying him with cocaine, the quantity of previous and future supplies of cocaine, the price structure of supplying one-half and whole kilograms, the drug trafficking business, and methods of physically hiding quantities of cash by various means, including in motor vehicles. On one occasion, the applicant was detected by surveillance handing Gallin a packet containing cocaine mixed with other substances, and on another occasion he was detected receiving money from Gallin for the supply of cocaine. In addition, he was also filmed retrieving a blue freezer bag from the boot of his vehicle, taking it to the unit, placing it on the table, and removing from it a package which contained one kilogram of cocaine mixed with another substance.
The quantity of cocaine, supplied by the applicant to Gallin between 25 August and 1 November 2015, was 1.5 kilograms, mixed with another substance. Gallin paid the applicant a total sum of $365,000 for the cocaine. The recorded conversations between the applicant and Gallin demonstrated that the price for the substance was $240,000 per kilogram, and $125,000 for a half kilogram. The relevant provisions of the Drugs Poisons and Controlled Substances Act 1981 (‘the DPCS Act’) provide that the threshold for a large commercial quantity of cocaine is 1.0 kilogram.
Charge 3 on the indictment alleged trafficking in drugs of dependence, namely methylamphetamine and cocaine, in a large commercial quantity. In October 2016, police installed an optical device at a residential unit that was then leased by the applicant in Caulfield North. On several occasions in that month, the applicant was captured by the optical device putting on latex gloves, and then handling plastic bags containing cocaine, and envelopes containing quantities of cash. On 19 October 2016, police executed a search warrant on the premises. During that search they located 1.94 kilograms of cocaine mixed with another substance, and 2 kilograms of methylamphetamine mixed with another substance. Subsequently, on 22 November 2016, the owner of the unit, while removing furniture, discovered fourteen bags at the premises. They were found to contain cocaine mixed with another substance with a total weight of 389 grams.
Analysis of the drugs, found at the Caulfield North unit, established that the total weight of the cocaine seized was 2.3 kilograms, of which 1.396 kilograms had a purity of 92 percent or higher. The total weight of the methylamphetamine found at the Caulfield North unit amounted to 1.981 kilograms, with a purity of 82 percent. The DPCS Act provides that the threshold for a large commercial quantity applicable to cocaine mixed with another substance is 1.0 kilograms, and that a large commercial quantity applicable to methylamphetamine mixed with another substance is 1.0 kilograms. In pleading guilty to charge 3, the applicant pleaded guilty to trafficking cocaine and methylamphetamine in a large commercial quantity.
Charge 4 alleged that the applicant knowingly dealt with the proceeds of crime, with the intention to conceal that it was the proceeds of crime. The charge related to cash that was found at the Caulfield North premises, which amounted to $2,784,490. Most of the cash had been hidden in a storage cavity in the floor under the bed in the bedroom of the premises. The cash was bundled in $100 note blocks and $50 note blocks. The $100 notes were bundled together as three wads of $20,000 each, making blocks of $60,000. The $50 notes were bundled together as three wads of $10,000 each, making blocks of $30,000. In addition, subsequently, on 9 December 2016, the police found a further quantity of money in a Toyota Hiace van that was parked in a storage unit in Ringwood leased by the applicant under a false name. When police executed a search warrant at the unit, the vehicle was found to have a hidden hydraulic storage compartment in the floor. Upon searching the compartment, police found $959,650 in $100 notes that were bundled in the same manner as the $100 notes that had been found at the Caulfield North unit.
Charge 2 on the indictment, which alleged possession of an unregistered general category handgun, related to a black semi-automatic pistol in working order, with its serial number erased, together with numerous rounds of 9 mm ammunition, that was located in the hidden storage compartment in the vehicle. The summary charge, of possessing prohibited weapons, concerned knuckleduster tasers that were also located in the same storage compartment and in another vehicle.
Previous convictions
The applicant had come before the Magistrates’ Court between 2004 and 2012 on seven separate occasions, for offences including theft, obtaining property by deception, recklessly causing injury, intentionally damaging property and, on one occasion, dealing with property suspected to be the proceeds of crime. In 2008, he was fined, without conviction, on one charge of possession of a controlled weapon without excuse. The sentencing disposition, in each case, indicates that the applicant’s offending was not particularly serious. The applicant has no previous convictions for offences relating to drugs.
The plea
The applicant was born on 7 April 1984 in Dandenong. He grew up in a close and supportive family with his parents, brother and sister. In 1998, when he was 14 years of age, he was diagnosed with Hodgkin’s Lymphoma, which was successfully treated in the ensuing two years by a course of chemotherapy. Having successfully completed his secondary education, in 2002, he commenced a Bachelor of Arts degree with Victoria University, which he subsequently completed when he transferred to Monash University. The applicant then commenced a law degree at Victoria University, which he completed in 2010 after transferring to Monash University. He then commenced practical legal training at the College of Law.
While he was at university, the applicant took up boxing as a sport. He commenced boxing competitively in 2003. In the following seven years, he won two Victorian and two Australian bronze VAVL titles. He was hoping to be selected for the 2012 Olympics, but his hopes were dashed by a shoulder injury that he sustained in 2011, which resulted in the end of his boxing career. During that period, the applicant had worked at PPG Industries for a short period in 2006. Between 2002 and 2010, the applicant also worked part-time on a casual basis at General Motors Holden.
In about 2010, was at that time that the applicant began using illicit substances. Initially, he used MDMA, cocaine and ecstasy on a social basis. However, at that time, a number of events occurred in his life, as a result of which he resorted to using drugs on a particularly heavy basis.
After the applicant commenced his practical legal training at the College of Law, he undertook some work experience with a firm of solicitors. As a result of his previous convictions, he was not retained by that firm after the completion of the period of his work experience. At about the same time, the applicant’s long-standing relationship with his girlfriend terminated when she commenced a new relationship while she was travelling overseas. The stresses on the applicant were further compounded when his mother, who had previously suffered from a psychiatric disorder, experienced a relapse of her schizophrenic illness.
In December 2011, the applicant consulted Ms Alison Mynard, a clinical psychologist, in relation to criminal charges that were then pending against him. Ms Mynard noted that the applicant presented with symptoms of anxiety and depression due to the break-up of his relationship with his girlfriend, and due to his mother’s health issues which were acute at that time. Ms Mynard treated the applicant with cognitive behavioural therapy, psycho-education, and interpersonal therapy.
It was in that context that the applicant indulged in the heavy consumption of illicit drugs, and in particular cocaine. At one stage, he would spend $2,000 per day on cocaine, consuming between 3 and 7 grams of that substance each day. He also abused steroids and a variety of prescription sleep medication and painkillers.
On the plea, counsel for the applicant accepted there was no suggestion that there should be a mitigation of the applicant’s sentence by reason of any of the factors discussed in R v Verdins.[6] Rather, counsel submitted that the applicant was ill-equipped to deal with the combination of stresses that impacted on him in about 2010, with the result that he had resorted to using drugs, which in turn led to him involving himself in large-scale drug trafficking. It was also put that since the applicant had been in custody, he had remained free of the consumption of drugs, he had been a model prisoner, and he had undertaken a number of courses that were available to him while he was on remand.
[6](2007) 16 VR 269.
The applicant also relied on a report of Ms Pamela Matthews, a forensic psychologist, who examined him in September 2017 in prison. Ms Matthews considered that the combination of psychological stressors, to which the applicant was subjected in the period from 2010 to 2012, had resulted in a crushing psychological injury to his self-esteem. She was of the opinion it was most likely that the applicant had suffered an adjustment disorder with mixed mood (depression and anxiety), together with a disturbance of behaviour resulting from his use of drugs. Unsurprisingly, she also considered that the applicant had a stimulant use disorder. Ms Matthews was of the view that the situational stresses, to which he had been subjected, had precipitated anxiety and depression, which had caused the applicant to resort to drug use as a form of self-medication.
In the course of the applicant’s plea, a number of character references were tendered on his behalf. In addition, the applicant prepared a document in which he set out, in quite specific terms, the understanding that he had developed, during his term of imprisonment, of the deleterious nature of drugs, and his remorse for being involved in the trafficking in them.
The judge’s reasons for sentence
In her reasons for sentence, the judge described charge 3 as a ‘rolled-up’ charge. Her Honour noted that the total amount of drugs involved in the charge was more than four times the large commercial quantity. The judge also noted that the applicant was part of a well organised and highly professional drug trafficking business. While the applicant did not manufacture or import the drugs, he was at a high level in the hierarchy of the business. The applicant received very large amounts of money in payment for the drugs that he trafficked, and he went to considerable trouble to conceal the money in secret compartments in a vehicle and in his home.
The judge further noted that drugs cause great harm to our community. Her Honour referred to the recent decision of this Court in Gregory v The Queen,[7] in which the Court held that the current sentencing practices for the offence of trafficking a commercial quantity of drugs, at the ‘higher end’, were inadequate and should be incrementally increased.
[7][2017] VSCA 151 at [100] (‘Gregory’).
The judge then referred to the relevant mitigating circumstances, including his plea of guilty, the remorse that he expressed for his wrongdoing, his impressive work and study history, and the fact that he had no previous convictions for matters involving drugs. Her Honour also acknowledged that the applicant had made significant progress in his rehabilitation while in custody, that he no longer used drugs, and that his rehabilitation prospects were positive. The judge took into account the character references that were provided on his behalf. Her Honour noted that as a result of being convicted and sentenced to a term of imprisonment on charge 1, the applicant was to be considered a serious drug offender, and thus a serious offender. However, she did not consider that it was necessary to impose a sentence longer than that which was proportional to the gravity of the offence, in order to protect the community from the applicant.
Grounds of appeal ― analysis and conclusion
Ground 1: Whether the judge sentenced the applicant on charge 3 on the basis of a rolled-up charge of trafficking
In support of ground 1, senior counsel for the applicant noted that, in imposing sentence on charge 3, the judge, on three separate occasions, described that charge as a ‘rolled-up charge’. In R v Beary,[8] a ‘rolled-up charge’ was defined as a charge that alleges two or more offences. Charge 3 alleged an offence against s 71(1) of the DPCS Act, which is concerned with ‘trafficking … in a quantity of a drug of dependence or of two or more drugs of a dependence that is not less than the large commercial quantity applicable to that drug of dependence or those drugs of dependence …’. In other words, the statutory offence alleged in charge 3, and to which the applicant pleaded guilty, comprised the trafficking of separate quantities of two or more drugs of dependence, which together alleged one single offence, rather than two offences. Thus, it was submitted, by describing charge 3 as a ‘rolled-up charge’, the judge imposed a sentence on that charge on the incorrect basis that the applicant had committed two offences, in circumstances in which he had only committed one offence.
[8](2004) 11 VR 151, 156–7 [11]–[14] (Callaway JA).
In response, senior counsel for the respondent noted that the prosecutor, and senior counsel who appeared for the applicant at the plea, had each referred to charge 3 as a ‘rolled-up charge’. In that context, it was submitted, in referring to that charge as a ‘rolled-up charge’, the judge was describing it as one charge comprising the trafficking of more than one drug of dependence. In particular, the judge noted that charge 3 referred to a total aggregate quantity of ‘over four times the large commercial quantity’, which plainly demonstrated that, notwithstanding that her Honour used the term ‘rolled-up charge’, she was well aware that the applicant was to be sentenced for one single offence of trafficking that involved two distinct drugs of dependence.
The correct denotation of the term ‘rolled-up charge’ was discussed by Charles JA in R v Jones.[9] In that case, the appellant pleaded guilty to a presentment that included 24 counts of burglary, and other charges. It also included a ’rolled-up’ count of theft which related to each of the burglaries. On appeal, it was submitted that where an offender is to be sentenced in respect of an offence that is representative of a number of offences, the sentencing judge is not entitled to impose a sentence in respect of those other offences. Rather, it was submitted, the judge may take them into account in determining whether the offence, for which the offender was being sentenced, is an isolated offence. Counsel submitted that the sentencing discretion must be exercised in the same way in a case in which a sentencing judge imposes a sentence on a ‘rolled-up count’. In rejecting that submission, Charles JA (with whom Phillips JA and Bongiorno AJA agreed) stated:
I do not accept the submission that in sentencing on a rolled-up count the discretion is to be exercised in the same way as when a judge is sentencing on a representative count. It is of course correct that when sentencing on a representative count the judge is not entitled to impose sentence in respect of other crimes. But in my view, a rolled-up count is entirely different from a representative count. In Mr Silbert’s written submissions for the Crown, it was submitted, I think correctly, that rolled-up counts are a collection of offences bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. Mr Silbert argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner.[10]
[9][2004] VSCA 68 (‘Jones’).
[10]Ibid [13]. See also R v Beary, 156–7 [12]–[14] (Callaway JA); FAJ v The Queen [2011] VSCA 137 [17]–[19] (Harper JA); Wong v The Queen [2013] VSCA 52 [28] (Priest JA).
In the present case, it is clear that in describing charge 3 as a ‘rolled-up charge’, the judge did not utilise that term in the manner in which it was defined by Charles JA in Jones. Rather, her Honour did no more than adopt, as a shorthand description of charge 3, a phrase that had been utilised by counsel for the prosecution and for the defence. Importantly, it is clear, from her Honour’s reasons, that the sentence imposed in respect of charge 3 was by way of punishment for no more than one offence.
The amended written prosecution plea opening in the case commenced by describing the charges, to which the applicant had pleaded guilty, including ‘one rolled-up charge’ of trafficking in drugs of dependence (methylamphetamine and cocaine) in large commercial quantities on 19 October 2016 (charge 3). The prosecutor read the amended opening, in that form, to the judge. Relevantly, in his submissions in mitigation of penalty, senior counsel for the applicant used the same description when referring to charge 3. He stated:
Now, we understand, your Honour, that he’s also pleaded as part of the rolled-up charge 3 to trafficking in methylamphetamine … .
It is in that context that the judge resorted to the same description of charge 3 in her reasons for sentence. However, it is quite plain that the judge fully understood that charge 3 only alleged one charge, and no more. In considering the gravity of the offending alleged in charge 3, her Honour stated:
In this case, you trafficked in very large quantities of two different drugs. The quantity of cocaine involved in charge 1 was 1.5 kilos of cocaine mixed with another substance. The large commercial quantity applicable to cocaine is one kilo. The quantity of drugs involved in the rolled-up charge was 2.3 kilos cocaine and two kilos of methamphetamine mixed with another substance. The large commercial quantity applicable to methamphetamine is one kilo. This means that with charge 3, in total you had over four times the large commercial quantity.
Thus, in that part of her reasons, the judge made it plain that she sentenced the applicant on the basis that he had committed one offence, namely, trafficking quantities of cocaine and methamphetamine that, in total, exceeded four times the amount prescribed by the DPCS Act as constituting a large commercial quantity. There is nothing in her Honour’s reasons that otherwise indicates that she sentenced the applicant on the basis of not one, but two, offences that were ‘bundled together’ in charge 3.
For those reasons, we would not grant leave to appeal in respect of ground 1.
Ground 2: The orders for cumulation
Ground 2 concerns the treatment by the judge of the sentence imposed on charge 3 as the base sentence, in making orders for cumulation of the sentences imposed on the other charges. It is submitted on behalf of the applicant that the judge erred in that respect, because, by virtue of s 6E of the Sentencing Act 1991, the judge was obliged to treat the sentence imposed on charge 1, and not the sentence imposed on charge 3, as the base sentence, for the purposes of making such orders for cumulation.
In support of that proposition, counsel advanced the following argument. Both charge 1 and charge 3 alleged the commission of an offence contrary to s 71(1) of the DPCS Act. The offence, created by that provision, is a ‘drug offence’ within the meaning of s 6B(1) of the Sentencing Act. Accordingly, the effect of ss 6B(2) and (3) and s 6E of the Sentencing Act is that the applicant, having been sentenced to a term of 9 years’ imprisonment on charge 1, fell to be sentenced as a ‘serious drug offender’ when the judge imposed sentence on him on charge 3. Section 6E of the Sentencing Act provides for the prima facie cumulation of a term of imprisonment imposed upon a ‘serious offender’ for a ‘relevant offence’ upon any uncompleted sentence or sentences. The only sentence, imposed on the applicant as a ‘serious offender’, for a ‘relevant offence’, was the sentence imposed on charge 3. Accordingly, the judge erred in treating the sentence imposed on charge 3 as the base sentence, because the base sentence should have been designated as the sentence imposed on charge 1.
In support of those submissions, counsel for the applicant referred to the observation by Osborn JA in S J v The Queen[11] that the proper approach to the serious sexual offender provisions is to deal with the offences, charged on the indictment, in chronological order of offending.[12] The applicant also relied on Barbat v The Queen,[13] in which this court, comprising two members, expressed the view that the base sentence should be the sentence by virtue of which the offender was deemed to be a serious offender.
[11][2012] VSCA 237.
[12]Ibid [67].
[13][2014] VSCA 202 (‘Barbat’).
In response, counsel for the respondent noted that, by designating the longest sentence as the base sentence, the judge acted in accordance with orthodox and usual sentencing practice. Counsel submitted that s 6E does not relevantly alter or invalidate that practice. The sentence, that is designated as a ‘base sentence’, is no more than a point of reference for other orders of cumulation or concurrency. The requirement, in s 6E, that a term of imprisonment imposed on a serious offender for a ‘relevant offence’ be served cumulatively ‘on’ any uncompleted sentence, does not, it was submitted, imply that any particular sentence must constitute the base sentence. Thus, it was submitted, the structure of the sentence imposed by the judge was correct. Counsel further observed that the Court, in Barbat, qualified its view, as to the effect of s 6E of the Sentencing Act, by noting that it was necessary that a court of three judges provide definitive guidance on the correct construction of s 6E.
Further, counsel for the respondent, submitted that, in any event, the argument advanced on behalf of the applicant is, by its nature, a structural argument. Accordingly, if in fact the judge erred in her designation of charge 3 as the base sentence, it did not vitiate the sentencing discretion. Accordingly, no different sentence should be imposed and leave to appeal should be refused.
It is usual, and accepted, sentencing practice that, in a case involving more than one charge, the judge designates the sentence imposed on the most serious charge as the ‘base sentence’, for the purposes of making orders for cumulation of the sentences imposed on the other charges.[14] That practice recognises that ordinarily an offender should serve the entire term of the sentence imposed for the most serious offence so that the requirements of totality are accommodated by making appropriate orders for concurrency in respect of the sentences imposed for the less serious offences.[15] The question, which arises, is whether s 16(1A), and the provisions contained in Part 2A of the Sentencing Act, have altered the applicable practice in the manner contended for on behalf of the applicant.
[14]R v MDB [2003] VSCA 181, [14] (Batt JA); R v Nikodjevic [2004] VSCA 222, [39] (Ormiston JA); Barbat [46] (Ashley JA); DPP v Grabovac [1998] 1 VR 664, 689 (Ormiston JA).
[15]R v MDB [2003] VSCA 181, [14] (Batt JA).
Section 16(1) and s 16(1A)(c) of the Sentencing Act provide:
(1)Subject to subsection (1A), every term of imprisonment imposed on a person by a Court must, unless otherwise directed by the Court, be served concurrently with any uncompleted sentence or sentences of imprisonment or detention in a youth justice centre or youth residential centre imposed on that person, whether before or at the same time as that term.
(1A) Subsection (1) does not apply to a term of imprisonment imposed ―
…
(c)on a serious offender within the meaning of Part 2A for a relevant offence within the meaning of that part.
Part 2A of the Sentencing Act contains s 6A to 6F, which are concerned with the sentences to be imposed on ‘serious offenders’. As already noted, the offences in charge 1 and charge 3, that allege commission of an offence contrary to s 71(1) of the DPCS Act, are each a ‘drug offence’ within the meaning of s 6B(1) of the Sentencing Act. Section 6B(2) provides that a ‘serious drug offender’ means an offender who has been convicted of a drug offence for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre. Consequently, having been sentenced to a term of 9 years’ imprisonment on charge 1, the applicant was, for the purposes of pt 2A of the Sentencing Act, a ‘serious drug offender’.
Section 6E of the Sentencing Act provides:
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
Section 6B(3) of the Sentencing Act defines ‘relevant offence’, in relation to a serious offender, to mean (inter alia) a ‘drug offence in the case of a serious drug offender’. Accordingly, as a consequence of the sentence imposed on charge 1, the applicant was to be sentenced as a ‘serious offender’ under s 6E, so that, unless the court otherwise directed, the term of imprisonment imposed on him in respect of charge 3 must be served cumulatively on the sentence imposed on him on charge 1.
The effect of those provisions has been considered in a number of decisions of this Court. In particular, s 16(1) and s 16(1A) have been construed as containing statutory presumptions or prima facie rules.[16] Section 16(1A), in combination with provisions such as s 6E of the Sentencing Act, is understood to override the general principle of concurrency contained in s 16(1).[17] As a consequence, in a case to which s 6E applies, the presumption of cumulation specified by it applies. Accordingly, unless a Court otherwise orders, s 6E has the effect that the sentence imposed in respect of the ‘relevant offence’ must be served cumulatively on any uncompleted sentence, by virtue of which the offender has been deemed to be a ‘serious offender’. However, where, under s 6E, the Court ‘otherwise directs’, the presumption, as to cumulation of sentences, that is contained in that section, is displaced. In such cases, in determining the appropriate orders for concurrency or cumulation, the sentencing judge must take into account the statutory intention that is inherent in a provision such as s 6E.[18]
[16]R v Mantini [1998] 3 VR 340, 346‑7 (Callaway JA); R v Rekhviashvili [2010] VSCA 3, [39]; DPP v CJA [2013] VSCA 18, [38].
[17]R v Hennen [2004] VSCA 42, [29].
[18]R v Mourad [2008] VSCA 4, [15] (Redlich JA).
Those principles were discussed by this Court in R v Hennen.[19] In that case, the Court was concerned with the effect s 16(1A)(e) and (3C) of the Sentencing Act. Those provisions stipulate that s 16(1) does not apply to a term of imprisonment imposed on any person for an offence that is committed while the person was released on bail in relation to another offence; and that every term of imprisonment imposed on such a person must, ‘unless otherwise directed by the Court’, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on the offender. Bongiorno AJA (with whom Winneke P and Coldrey AJA agreed) stated:
Sections 16(1A)(e) and (3C) of the Sentencing Act 1991 override the general principle of concurrency set out in s 16(1) of that Act in cases where offences are committed whilst a prisoner is on bail. But those provisions displace a presumption, they do not direct that a judge take any particular course in a particular case. They draw the sentencing judge’s attention to the Parliamentary intention expressed by them. That is to say that consideration must be given to the question as to whether the discretion to order some concurrency in such a case ought be exercised or whether the appropriate objects of sentencing can only be achieved by permitting total cumulation to occur by operation of the statute. In the absence of an order for concurrency, cumulation will occur in the circumstances prescribed by s 16(3C).[20]
[19][2004] VSCA 42.
It is clear, from the foregoing discussion, that provisions of the Sentencing Act, such as s 6E, are directed to matters of substance, and not of structure, in respect of sentences to be imposed on persons who are serious offenders. The policy, that underlies such a provision, is that ordinarily serious offenders should serve their sentences for multiple offences cumulatively and not concurrently.[21] In that way, and to that extent, such provisions modify the sentencing principles of totality.[22] However, in a case to which s 6E applies, and in which the Court ‘otherwise directs’, the presumption, that the sentences be served cumulatively, is displaced. Neither s 6E, nor any other provision of the Sentencing Act, contains a requirement ― express or implied ― that, in such a case, the base sentence must be the sentence that is imposed for the offence by virtue of which the particular offender has been deemed to be a serious offender. Nor, in a case in which the presumption is so displaced, is there any reason why the usual and well-founded practice of sentencing should not apply, so that the sentence imposed on the most serious charge should constitute the ‘base sentence’ for the purposes of making appropriate orders for concurrency and cumulation.
[21]R v Mantini [1998] 3 VR 340, 345.
[22]R H McL v The Queen (2000) 203 CLR 452, 476–477 [76] (McHugh, Gummow and Hayne JJ).
That construction of s 6E clearly accords with its plain language. Section 6E requires that, unless a Court otherwise directs, every term of imprisonment imposed by a Court on a serious offender for a ‘relevant offence’ must be served cumulatively on any other sentences of imprisonment imposed on that offender. However, where a Court ‘otherwise directs’, that prescription by s 6E ceases to operate. In such a case, the court is to apply the ordinary principles and methodology of sentencing, including accommodating the requirements of totality or cumulation, save that, in making such provision for concurrency and cumulation, the sentencing judge is required to take into account and give effect to the underlying statutory policy expressed by s 6E.
In the present case, by designating the sentence imposed on charge 3 as the base sentence, and by making orders for partial cumulation on it of the sentences on the other charges, the judge has clearly, albeit implicitly, ‘otherwise directed,’ for the purposes of s 6E . Accordingly, the presumption, specified by that section, was displaced, and the principles, that we have discussed above, applied to the formulation of the sentences.
That conclusion is also consistent with the approach of the Court in S J v The Queen,[23] which was referred to by counsel for the applicant. In that case, the applicant was sentenced on 21 charges of indecent acts with a child under 16, eleven charges of sexual penetration of a child under 16, together with two charges of possessing child pornography, one charge each of procuring a minor for child pornography, and other offences. The charges of indecent act with, and sexual penetration of, a child under the age of 16, comprised charges 1 to 34 on the indictment. They were charged in chronological order. Charges 11, 13 and 14 were each charges of sexual penetration of a child CG, who, at the time of those offences, was under the age of 10 years. Accordingly, they were the most serious charges on the indictment. As a result of being sentenced to terms of imprisonment in respect of the first two charges on the indictment, the appellant fell to be sentenced as a serious sex offender in respect of charges 3 to 34 (in addition to other charges on the indictment). For reasons that do not concern this application, the respondent, in S J, conceded that sentencing error had been made by the primary judge. It is significant that, in re-sentencing the appellant, the Court treated charge 11 (relating to the victim CG) as the base sentence, and made orders for cumulation and concurrency by reference to the sentence imposed on that charge.[24] In that way, the Court structured its sentence in a manner that is directly inconsistent with the proposition on which counsel for the applicant relies in support of Ground 2.
[23][2012] VSCA 237.
[24]Ibid [95]–[99] (Osborn JA).
It was in that context that Osborn JA, in a passage relied on by the applicant in this case, stated:
The sentencing judge plainly regarded the sexual offences against CG as comprising the most serious offending of which the appellant was guilty. I agree, but by dealing first with three offences of sexual penetration committed when CG was under 10 it appears that his Honour treated the appellant as a serious sexual offender only with respect to the third of such offences. The proper approach, in my view, is to give effect to the serious sexual offender provisions by dealing with the offences in order of conviction. In the present case, that order reflects the chronological order of the offending and, in turn, the apparent purpose of the serious sexual offender provisions with respect to repeat offending.[25]
[25]Ibid [67].
In that passage, it is clear that his Honour was not reflecting on the sentence that is to be selected as the base sentence. Rather, his Honour was observing that, in determining the sentences in respect of which an offender is to be regarded as a serious sexual offender, the proper approach was to deal with the offences on the indictment in order of conviction. As is evident from the foregoing, in applying that approach, Osborn JA (with whom Redlich JA and Nettle JA both agreed) adopted the usual sentencing practice of selecting the sentence for the most serious offence on the indictment as the base sentence for the purposes of orders for cumulation and concurrency.
For those reasons, we do not consider that the judge erred in treating the individual sentence of imprisonment imposed on the most serious charge, charge 3, as the base sentence upon which partial orders for cumulation for sentences on the other charges were made.
We acknowledge that that conclusion is contrary to the views expressed by this court, comprising two members, in Barbat. In that case, the appellant was charged with three counts of indecent assault, and one summary offence of dangerous driving, each of which arose out of the same incident. The most serious offence was that contained in charge 3. The sentencing judge imposed sentences on each of the charges, and the summary offence, and made each of those sentences cumulative on each other. The appeal was allowed in respect of the sentences imposed on charges 1 and 2, on the grounds that they were manifestly excessive. The court then discussed the question whether, in light of the operation of s 6E, it was permissible for the judge (and this Court) to treat the sentence on charge 3 as the base sentence, and to cumulate all or any part of other individual sentences on it. Their Honours considered that, as a matter of construction, the general rule, that the base sentence be the longer sentence imposed in the one proceeding, is displaced by the words of s 6E.[26] However, their Honours formed that view without the benefit of argument on the point. They noted that the issue is one on which a court of three judges should provide definitive guidance, and that the view, that they had come to, was qualified to that extent.[27]
[26]Barbat, [49].
[27]Ibid [51], [72].
In the present case, we have had the opportunity to hear full argument in relation to the issue considered by the Court in Barbat. For the reasons that we have set out above, we have reached a conclusion contrary to that expressed, in a qualified form, in Barbat. Accordingly, while we would grant leave to appeal on ground 2, we would not uphold that ground of appeal.
Grounds 3 and 4: Whether the sentence on charge 3, and total effective sentence are manifestly excessive
In support of grounds 3 and 4, counsel for the applicant noted that the judge accepted a number of mitigating factors, including that the applicant had pleaded guilty at the first reasonable opportunity, which was of substantial utilitarian value. In addition, the applicant had expressed remorse, he had no previous convictions for drug offences, he no longer used drugs, and he had made significant rehabilitative gains while in custody. As a consequence, his prospects for rehabilitation were positive. Taking those matters into account, counsel submitted that the sentence imposed on charge 3, and the total effective sentence, were wholly outside the range of sentences available in the circumstances of the case. Counsel referred to the table of comparable cases that had been placed before the judge, and in addition he relied on a number of recent sentences, considered by the Court of Appeal, as establishing the current sentencing practices that were relevant to the determination of the applicant’s sentence. Those cases included Nguyen v The Queen,[28] Mueller v The Queen,[29] Pham v The Queen,[30] Hoang v The Queen,[31] and Nguyen v The Queen.[32] It was submitted that, by reference to the sentences imposed on each of those cases, the sentence imposed by the judge in respect of charge 3, and the total effective sentence, are each manifestly excessive.
[28][2016] VSCA 253.
[29][2017] VSCA 132.
[30][2018] VSCA 200.
[31][2018] VSCA 86.
[32][2017] VSCA 262.
In response, counsel for the respondent submitted that the sentences imposed by the judge are not manifestly excessive. In particular, the offending was of the utmost seriousness. Charge 1 and charge 3 each involved quantities of drugs that far exceeded the minimum threshold necessary to establish a large commercial quantity. On the plea, the applicant was described by his counsel as a ‘high level executive’ in a substantial and lucrative drug trafficking business. It is clear, it was submitted, that the applicant was very much in control of the organisation, and his significant role justified the imposition of a stern punishment. There were no mitigating circumstances attaching to his offending, and it was not suggested that the applicant’s involvement in it had been due to any psychiatric or psychological disorder justifying the application of the principles set out in R v Verdins.[33]
[33](2007) 16 VR 269.
Counsel for the respondent further submitted that most of the sentences that were contained in the table of cases put before the judge pre-dated the decision of this Court in Gregory, in which this Court stated that sentences for trafficking a large commercial quantity of drugs need to increase substantially. Consequently, sentences that had been imposed before the decision in Gregory in June 2017 are of limited relevance in determining the current sentencing practices applicable to the case of the applicant. Accordingly, it was submitted, the applicant had failed to demonstrate that the sentence imposed on charge 3, and the total effective sentence, were manifestly excessive.
In order to establish the grounds of appeal relied on, that the sentence on charge 3 and the total effective sentence were each manifestly excessive, the applicant must establish that the sentences were wholly outside the range of sentencing options available to the sentencing judge.[34] The sentences, that are the subject of the application, must be demonstrated to be so excessive as to bespeak error by the judge in the exercise of the sentencing discretion, notwithstanding that no specific error can be identified in the reasons for sentence given by the judge.[35]
[34]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[35]House v The King (1936) 55 CLR 499, 505; R v Tait (1979) 24 ALR 473, 476 (Brennan, Deane and Gallop JJ).
The maximum sentence prescribed for trafficking a large commercial quantity of a drug of dependence is life imprisonment. That maximum reflects the inherent gravity of such offending. In light of the large profits that may be derived by those who engage in trafficking such quantities of drugs, it is recognised and accepted that the principles of general deterrence must be given particular emphasis. In Nguyen v The Queen,[36] Priest JA and Coghlan JA quoted with approval the following passage from Dawid v DPP:
The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs, that attracts people, such as the applicant, to engage in the type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs.[37]
[36][2017] VSCA 262, [36].
[37][2013] VSCA 64, [35].
The quantity of drugs, that were the subject of charge 3, amounted to more than four times the amount necessary to constitute a large commercial quantity of the substances in question. In Gregory,[38] the Court noted that the sentencing regime for trafficking offences is essentially ‘quantity based’. Thus, in R v Tsolacos[39] Winneke P (with whom Callaway JA and Crockett AJA agreed) stated:
… For the purposes of identifying the gravity of the offence and thus of ascertaining the appropriate sentence, the legislation places emphasis on quantities of drugs trafficked and not on values … .[40]
[38]Gregory, [23].
[39](1995) 81 A Crim R 434.
[40]Ibid, 436.
In addition, the drugs, that were the subject of both charge 1 and charge 3, were each of a high purity.[41] As already noted, the judge concluded that, the drug trafficking enterprises, that were the subject of charge 1 and charge 3, were both well organised and highly professional, and the applicant occupied a high level position in the hierarchy of each enterprise. The judge was fully justified in concluding that, objectively, the culpability of the applicant for each offence, but in particular the offending in charge 3, was most substantial.
[41]See Trajkovski v The Queen [2011] VSCA 170, [124]–[127] (Weinberg JA).
The judge was fully cognisant of each of the mitigating factors relied on by the applicant’s counsel, and which have been referred to by counsel in this application. However, as counsel accepted, the matters pertaining to the applicant’s background did not in any way mitigate the objective gravity of his offending. In particular, it was accepted that the stressors, which coalesced in the applicant’s life in 2010, and which had a detrimental effect on him, did not in any way palliate the gravity of his offending. At most, they explain why the applicant became involved in the milieu of heavy drug consumption and trafficking. However, they can provide no proper explanation, let alone mitigation, for the involvement of the applicant in the large commercial business that was the subject of charge 3, or in the substantial business that was the subject of charge 1.
In support of ground 3 and ground 4, counsel for the applicant relied quite substantially on the proposition that the sentences imposed on the applicant were so significantly out of step with current sentencing practices as to demonstrate that they were each manifestly excessive. The parties had put before the sentencing judge two tables of cases, containing the sentences imposed both in cases that came before this Court, and in cases before the County Court, involving trafficking of large commercial quantities of prohibited substances. However, each of the cases, contained in those tables, were decided before the decision of this Court in Gregory. In that case, the Court, having conducted a comprehensive review of current sentencing practices for the offence of trafficking a commercial quantity of a prohibited substance, concluded that sentencing practices in respect of offences involving quantities approaching the threshold for a large commercial quantity were plainly inadequate, and should not be regarded as setting a limit on the sentence imposed in any such case. In reaching that conclusion, the Court further observed that, as a consequence, sentences for trafficking a large commercial quantity will also need to increase ‘substantially’ in order to maintain appropriate sentencing relativities.[42]
[42]Gregory [102].
The more recent sentencing decisions of this court, that were relied on by counsel for the applicant, are of more relevance, since, with one exception, they were considered in decisions of this Court after the delivery of judgment in Gregory. However, before turning to those cases, it is important to keep in mind the relevance of sentences imposed in other comparable cases.
Ordinarily, comparable cases are relevant to reveal the appropriate sentencing range for the offence that is under consideration, and thus to promote consistency of sentences. However, the courts have emphasised that the consistency, that is sought to be achieved, is not some mathematical equivalence of sentences, but, rather, consistency in the application of relevant legal principles. For that reason, so called ‘comparable cases’ are not precedents. Indeed, in the context of sentencing, no two cases can be alike, as the factors that are relevant to the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly. While, reviewed as a whole, comparable cases may assist to reveal a possible pattern or range of previous sentences, it has been emphasised that such an examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by the cases, is necessarily correct, or that the upper or lower limits of those sentences are correct and immutable.[43] Further, and importantly, as the High Court has recently emphasised in DPP v Dalgleish,[44] while s 5(2)(b) of the Sentencing Act provides that current sentencing practices are relevant to the determination of a sentence in each case, nevertheless that factor is but one of a number of matters that must be taken into account in determining the appropriate sentence to be imposed in the particular case.[45]
[43]Hili v The Queen (2010) 242 CLR 520, 535–537 [48]–[54]; Hudson v The Queen (2010) 30 VR 610, 617–8 [28]–[33]; Nam Son Nguyen v The Queen (2016) 311 FLR 289, 313 [74]; Mueller v The Queen [2017] VSCA 132, [27] (Redlich, Weinberg and McLeish JJA).
[44][2017] HCA 41.
[45]Ibid [5]–[9] (Kiefel CJ, Bell and Keane JJ), [82] (Gageler and Gordon JJ).
Bearing those principles in mind, we turn, then, to some of the more recent cases referred to by counsel.
The first decision was that of Nguyen v The Queen,[46] in 2016, which was decided before Gregory. In that case the applicant was found guilty by the jury of trafficking a drug of dependence that was not less than a large commercial quantity of a drug of dependence, comprising 4.813 kilograms of a mixture of heroin and another substance. On that charge he was sentenced to 12 years’ imprisonment. The only ground of appeal relied on, in relation to sentence, concerned the finding by the judge as to the quantity of drugs that was the subject of the charge, and on which the applicant had been convicted.
[46][2016] VSCA 253.
In Mueller v The Queen,[47] the applicant pleaded not guilty. He was convicted of trafficking a quantity of ephedrine that was 27 times the prescribed limit for a large commercial quantity, and sentenced to 15 years imprisonment on that charge. The applicant was sentenced on the basis that he was not one of the principals in the drug trafficking syndicate, but that he was close to those principals.[48] The Court refused leave to appeal the sentence, on the basis that it was not reasonably arguable that the sentence imposed on him was manifestly excessive.[49]
[47][2017] VSCA 132.
[48]Ibid [24].
[49]Ibid [29].
The third case relied on by counsel was the 2017 decision of this Court in Nguyen v The Queen.[50] In that case the applicant was found guilty on his trial of trafficking a large commercial quantity comprising 4.8 times the limit prescribed for heroin. He was sentenced to 11 years’ imprisonment. The applicant occupied a position in the middle level of the hierarchy of an organised criminal enterprise.[51] In their joint judgment, Priest JA and Coghlan JA stated that ‘… we are far from satisfied that the sentence imposed was outside the appropriate range’.[52]
[50][2017] VSCA 262.
[51]Ibid [45].
[52]Ibid [39].
In Hoang v The Queen,[53] the applicant, having pleaded guilty, was sentenced to 8 years’ imprisonment for trafficking a quantity of cocaine that was five times the limit for a large commercial quantity. His role was described as higher than that of a ‘mule’, but he was subject to direction from superiors in Vietnam as to how and in what terms the substance was to be sold.[54] The applicant was 20 years of age at the time of offending, and 22 years at the time of sentence, and thus was entitled to some discount on his sentence on the basis of his youth.
[53][2018] VSCA 86.
[54]Ibid [39].
In McKenzie v The Queen,[55] the applicant pleaded guilty to a number of charges, including a charge of trafficking a large commercial quantity of lysergic acid diethylamide (‘LSD’) that was 19 times the prescribed limit. He was sentenced to 10 years’ imprisonment on that charge. The applicant suffered from both physical and mental ill health, including a major depressive disorder, emphysema, asthma and tuberculosis. The sentencing judge had accepted that his incarceration would be more difficult because of those conditions. On appeal, the applicant did not press an argument in relation to his sentence on the charge of trafficking a large commercial quantity. Rather, his application (which was successful) related to the sentences imposed on other charges of trafficking lesser amounts of substance.
[55][2018] VSCA 34.
Finally, in Pham v The Queen,[56] the applicant was sentenced to 15 years’ imprisonment on a charge of attempt to traffick a large commercial quantity of cocaine that was some 250 times the limit prescribed for a large commercial quantity. Pham was not a principal in the drug trafficking operation, but, rather, was described as a ‘trusted intermediary’ in it.[57] In refusing leave to appeal, Priest JA and Beach JA stated that ‘… the applicant’s complaint that the sentence was manifestly excessive is totally devoid of merit’.[58]
[56][2018] VSCA 200.
[57]Ibid, [11], [13].
[58]Ibid [21].
The foregoing brief review of recent sentencing decisions does reveal that the sentence, imposed on the applicant, in respect of charge 3, is high by comparison with the sentences in those cases. However, there were relevant differences between each of those cases and the circumstances in the present case. Taking them into account, we are not persuaded that the sentence imposed on the applicant, on charge 3, is sufficiently out of step with any range, revealed by an examination of those cases, as to lead to the conclusion that the sentence was totally outside the range of sentencing options available to the judge.
In that respect, the principles, that we have discussed earlier, are of importance. The offence of trafficking a large commercial quantity of a drug of dependence is, of itself, a most serious offence. In this case, the offending, that was charged in count 3, was particularly serious, in terms of the amount of drugs involved, the nature of the operation in which the applicant was engaged, and his role in that operation. There were no personal circumstances relied on that mitigated the gravity of that offending. Taking into account the importance of the principles of general deterrence and denunciation, we do not consider that the sentence, imposed in respect of charge 3, was manifestly excessive. Rather, while the sentence was stern, it reflected, appropriately, the seriousness of the offending that the applicant had engaged in, and, as such fulfilled the requirement that sentences imposed for such offending be sufficient to constitute a clear and unambiguous message by the courts that those, who wish to reap large profits from the egregious trade of drug trafficking, must, if detected, expect to lose their liberty for a long period of time.
Further, and for the same reasons, we do not consider that the total effective sentence imposed on the applicant, of 19 years and 6 months’ imprisonment, was manifestly excessive. The applicant has not taken issue with the sentences imposed on him on charge 1 and charge 4. The offending in respect of each of those two charges was most serious. The offending in charge 1 concerned a quantity of cocaine that was 1.5 times the minimum limit prescribed for a large commercial quantity of that substance. The applicant was involved at a high level in the operation that was involved in trafficking that substance. The amount of cash, that was the subject of charge 4, was very large. It must be remembered that the applicant pleaded guilty to that charge on the basis that he knowingly dealt with that amount, which was the proceeds of crime, with the intention to conceal that it was the proceeds of crime. That offence, of itself, is most serious, and the applicant’s offending in the instant case was of particular gravity. The orders for cumulation, both in respect of charge 1 and charge 4, were each moderate.
Taking the applicant’s offending as a whole, involving, as we stated, two separate charges of trafficking, in different places and at different times, a drug of dependence in a large commercial quantity, and knowingly dealing with a considerable sum of money being the proceeds of crime, it could not be maintained that the total effective sentence imposed on the applicant was manifestly excessive. For those reasons, we would grant leave to appeal on grounds 3 and 4, but in each instance, dismiss the appeal.
Conclusions
For the foregoing reasons, we would refuse leave to appeal on ground 1, we would grant leave to appeal on grounds 2, 3 and 4, but would dismiss the appeal on each ground.
In the course of the application, it was drawn to our attention that the County Court record of the orders made by the judge is incorrect. In her reasons for sentence, the judge, correctly, noted that the period of pre-sentence detention, to the date of sentence, was 376 days. However, the record of orders made in the Court has noted the period of pre-sentence detention to be 372 days. Accordingly, pursuant to s 104A(5A) of the Sentencing Act, it is directed that the record of orders be amended so as to record that the pre-sentence detention served by the applicant to the time of sentence was 376 days, and not 372 days.
- - -
[20]Ibid [29]. See also R v Sebborn [2008] VSCA 200, [27] (Vincent and Weinberg JJA, Robson AJA).
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