Donnes v The Queen
[2022] VSCA 132
•6 July 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0165 |
| CHRISTOPHER DONNES | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | WALKER JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 May 2022 |
| DATE OF JUDGMENT: | 6 July 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 132 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1662 (Judge Dean) |
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to trafficking and possessing various drugs – Total effective sentence of 5 years’ imprisonment – Majority of charges arose from warrants executed on same day across two properties – Whether totality infringed – Whether manifestly excessive – Judge plainly aware of totality – Extensive criminal history – Sentence comfortably within range – No error identified – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr J O’Connor | ||
| Respondent: | Ms DI Piekusis QC | ||
Solicitors | |||
| Applicant: | Balmer & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
WALKER JA:
On 15 October 2021 the applicant pleaded guilty to three charges of trafficking in a drug of dependence, four charges of possessing a drug of dependence, one charge of knowingly possessing counterfeit money, and related summary offences of dealing with property reasonably suspected of being the proceeds of crime, knowingly possessing identification information of another person, and unauthorised possession of a Schedule 4 poison. He was sentenced as follows:
Charge
Offence Maximum Sentence Cumulation 1
Traffick in a drug of dependence[1] (Heroin) 15 years’ imprisonment and/or fine of 1800 penalty units 30 months’ imprisonment 6 months 2
Traffick in a drug of dependence (1,4-Butanediol) 15 years’ imprisonment and/or fine of 1800 penalty units 24 months’ imprisonment 6 months 3
Traffick in a drug of dependence (Methylamphetamine) 15 years’ imprisonment and/or fine of
1800 penalty units39 months’ imprisonment Base 4
Possess a drug of dependence[2] (Cocaine) 5 years’ imprisonment and/or fine of 600 penalty units 6 months’ imprisonment 3 months 5
Possess a drug of dependence (MDMA) 5 years’ imprisonment and/or fine of 600 penalty units 6 months’ imprisonment 3 months 6
Possess a drug of dependence (Cannabis) 5 years’ imprisonment and/or fine of 600 penalty units 1 month imprisonment Nil 7
Possess a drug of dependence[3] 5 years’ imprisonment and/or fine of 600 penalty units 3 months’ imprisonment 1 month 8
Knowingly possess counterfeit money[4] 10 years’ imprisonment and/or fine of 600 penalty units Fine in the sum of $500.00 Nil Related Summary Offences 19 Deal with property suspected of being proceeds of crime[5] 2 years’ imprisonment and/or fine of 250 penalty units 3 months’ imprisonment 1 month 34 Knowingly possess identification information (that is not identification information that relates to the person)[6] 3 years’ imprisonment and/or fine of 360 penalty units 1 month imprisonment 1 month 36 Unauthorised possession of a Schedule 4 poison[7] Fine of 10 penalty units Fine in the sum of $500.00 Nil Total Effective Sentence: 5 years’ imprisonment Non-Parole Period: 3 years 6 months’ imprisonment Section 6AAA Statement: 7 years’ imprisonment with a non-parole period of 5 years’ imprisonment Other relevant orders: Forfeiture and disposal orders pursuant to ss 34(1) and 78(1) of the Confiscation Act 1997, respectively. [1]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’).
[2]Contrary to s 73(1) of the DPCSA.
[3]The drugs of dependence the subject of this charge were Lorazepam (‘Ativan’), Diazepam (‘Valium’), Oxycodone (‘Endone’), Amphetamine (‘Dexamphetamine’), and Alprazolam (‘Xanax’).
[4]Contrary to s 9(1)(a) of the Crimes (Currency) Act 1981 (Cth).
[5]Contrary to s 195 of the Crimes Act 1958.
[6]Contrary to s 192C of the Crimes Act 1958.
[7]Contrary to s 36B(2) of the DPCSA. The poisons the subject of this charge were Pregabalin (‘Lyrica’), Paracetamol/Codeine (‘Comfarol Forte’), Clonazepam and Amitriptyline.
The applicant seeks leave to appeal against his sentence on two grounds:
Ground 1: The learned sentencing judge erred in failing to properly apply the principle of totality, in that His Honour did not review the total effective sentence, after having made orders for cumulation, and consider whether the total effective sentence was ‘just and appropriate’.
Ground 2: The individual sentences, orders for cumulation, total effective sentence, and non-parole period, are each manifestly excessive.
For the reasons that follow, I would refuse leave to appeal.
Factual background
Before the sentencing judge the prosecution tendered a summary of prosecution opening, which was an agreed summary of the relevant facts. The conduct the subject of the charges was identified from several distinct instances of police investigation:
(a)First, on 2 October 2020, the applicant sold 7 grams of heroin, for $3,500, to a drug trafficker who was in the company of a covert police officer at the time. Prior to the transaction, the trafficker told the covert officer that he had been buying heroin from the applicant for the past year. He told the covert officer that the applicant lived around the corner, and had a storage unit in Thomastown where he kept the bulk of the drugs. When the applicant arrived, he handed the trafficker two yellow envelopes. The trafficker then handed one of the envelopes to the covert officer. It contained a bag of white powder. The covert officer weighed the bag at 7.8 grams. Subsequent forensic analysis found that the bag contained 7.1 grams of heroin, at 10 per cent purity.
(b)Following that sale, police conducted surveillance of the applicant. On 5 October 2020, they observed him attending at a storage facility in Thomastown. They obtained attendance logs and CCTV footage showing the applicant attending the storage facility on a near daily basis from May to October 2020, sometimes multiple times on a given day. He was usually alone. The rental agreement showed that he had rented the unit since April 2020.
(c)On the morning of 13 October 2020, police executed search warrants at an address in Bundoora, where the applicant lived with his partner. They recovered a substantial quantity of drugs of dependence, cash, and other items, including records kept by the applicant in the course of his business as a drug trafficker.
(d)Later on the morning of 13 October 2020, police executed a search warrant on the Thomastown storage unit rented by the applicant. In the unit they found quantities of drugs of dependence, cash and other items used by the applicant in the course of his business as a drug trafficker.
(e)Following execution of the warrants, the applicant was interviewed by the investigators. He denied the offending. However, an analysis of his mobile telephone revealed numerous text messages sent and received by him in relation to drug trafficking.
The charges to which the applicant pleaded guilty were as follows:
(a)Charge 1 was a rolled-up charge of trafficking, concerning a total of 64.4 grams of heroin mixture. The total was comprised of the 7.1 grams sold by the applicant to the trafficker in the presence of the covert officer and 57.3 grams which was located in the Thomastown storage unit.
(b)Charge 2 was a rolled-up charge of trafficking, concerning the applicant’s possession for the purpose of sale of 1799.2 grams of 1,4-Butanediol, comprising amounts found at the Bundoora property and the Thomastown storage unit on 13 October 2020.
(c)Charge 3 was a rolled-up charge of trafficking, concerning the applicant’s possession for the purpose of sale of 118.5 grams of methylamphetamine mixture (94 grams of pure methylamphetamine) at the Bundoora property and the Thomastown storage unit on 13 October 2020.
Although charge 3 was trafficking simpliciter, such that the applicant was not to be sentenced for trafficking a commercial quantity, the amount trafficked was almost double the relevant commercial quantity threshold for pure methylamphetamine, and slightly less than half of the commercial quantity threshold for methylamphetamine mixture.
(d)Charge 4 was one of possession, concerning a total of 2.0 grams of cocaine mixture, being approximately 1.4 grams of pure cocaine, at the Thomastown storage unit on 13 October 2020.
(e)Charge 5 was one of possession, concerning a total of 2.5 grams of MDMA mixture of 45 per cent purity, being approximately 1.1 grams of pure MDMA, at the Thomastown storage unit on 13 October 2020.
(f)Charge 6 was one of possession, concerning an unspecified amount of dried cannabis, at the Bundoora property on 13 October 2020. There was no evidence of the weight of cannabis, however the Crown accepted that it was well under 50 grams, which is a ‘small quantity’ as defined in Schedule 11 of the DPCSA.
(g)Charge 7 was a rolled-up charge of possession, concerning the applicant’s possession at the Bundoora property and the Thomastown storage unit on 13 October 2020 of five different drugs of dependence.
(h)Charge 8 concerned the applicant’s possession of two counterfeit notes found at the Bundoora property on 13 October 2020.
(i)Related summary offence 19 concerned the applicant’s possession of $21,030 in cash, which there were reasonable grounds to suspect were the proceeds from the applicant’s drug trafficking business.
(j)Related summary offence 34 concerned the applicant’s possession of electronic documents containing a doctor’s name, address and signature stamps.
(k)Related summary offence 36 was a rolled-up charge concerning the applicant’s possession of various Schedule 4 poisons.
The sentencing judge’s reasons
The sentencing judge commenced by observing that the applicant had pleaded guilty to the charges. His Honour stated that the plea was an early plea and that it had facilitated the administration of justice during the COVID-19 pandemic. His Honour also accepted that the plea was evidence of some remorse for the applicant’s offending, and described it as a ‘high value plea of guilty’, which he took into account in mitigation of sentence.[8]
[8]DPP v Donnes [2021] VCC 1662, [3] (‘Reasons’).
The judge then stated that the applicant had admitted an extensive criminal history, dating back to 2008, for a range of offences including trafficking amphetamine, possession of a range of drugs of dependence, dishonesty offences, weapons offences, and serious traffic offences. His Honour observed that when the applicant had been subjected to community-based sentencing dispositions, intended to support his rehabilitation, he had repeatedly breached those orders and continued to re-offend.[9]
[9]Reasons, [4].
Following a description of the present offending, the judge observed that it was plain from the contents of the prosecution opening that, at the time of the applicant’s arrest, he was engaged in the business of trafficking in a range of illegal drugs of dependence for profit.[10] His Honour further observed that the facts revealed that the applicant had been in the business of drug trafficking for some months. Nonetheless, he was to be sentenced on the basis of the specific facts relied upon in support of the charges.[11] His Honour said as follows:
It has been repeatedly stated by the courts that persons engaged in this illegal activity must expect the imposition of a substantial term of imprisonment upon conviction. Whilst it appears that you were a drug user at the relevant time, this was not trafficking to support that dependency. You were engaged in this destructive business for financial reward and this sentence must be calculated to protect our community from persons such as you who are prepared to traffic these substances for profit.
General deterrence is a prominent sentencing consideration in cases such as this. And as you have prior convictions for trafficking in a drug of dependence and possession of a drug of dependence, you must also be deterred from reoffending yourself.
Illegal drugs of dependence cause incalculable damage to individuals and to our community; you must also be punished for your role in that damage. Whilst your crimes were not sophisticated, in my opinion this does not moderate the seriousness of your offending to any significant degree. I am satisfied on the basis of the agreed facts before the court and, in particular, by your sale of 7 grams of heroin to the drug trafficker (or to the police introduced to you by the drug trafficker) for the sum of $3,500, that your offending is in the middle range of seriousness for offending of this nature.[12]
[10]Reasons, [22].
[11]Reasons, [23].
[12]Reasons, [24]–[26] (emphasis added).
The judge then turned to the applicant’s persons circumstances. Relevantly for present purposes, his Honour observed that:
(a)the applicant had developed polysubstance abuse disorder in his early teens, and, with the exception of a period of abstinence of two years during his 20s, this disorder had been a significant health issue for the applicant;[13]
(b)the applicant’s criminal history was linked to his history of drug addiction, but the applicant’s offending was not primarily driven by that disorder; it was on a scale considerably in excess of trafficking to support an addiction;[14] and
(c)the applicant was in receipt of methadone to address his drug addiction and had undertaken courses while in custody, to assist him to obtain stable employment upon release. Nonetheless, the sentencing judge concluded that the applicant’s prospects of rehabilitation were ‘to be approached with a degree of caution’.[15]
[13]Reasons, [30].
[14]Reasons, [31].
[15]Reasons, [32]–[33].
The judge observed that the applicant had been in custody during the COVID-19 pandemic and accepted that this had increased the hardship of imprisonment for the applicant.
Finally, the judge stated that he had had regard to a number of decisions of this Court in relation to sentences imposed in cases involving trafficking simpliciter.
The judge then set out the individual sentences, followed by directions on cumulation.
Ground 1: failure to properly apply the principle of totality
In summary, ground 1 is that the sentencing judge erred by failing to properly apply the principle of totality, by not reviewing the total effective sentence after he had made orders for cumulation, and considering at that point whether the total effective sentence was just and appropriate.
The applicant’s submissions on ground 1
As developed in the applicant’s written submissions, this ground centred on the proposition that the offences for which the applicant was sentenced arose ‘largely’ from the search warrants executed on the same day at different properties. The charges were put on a rolled up basis, in some cases representing total weights of substances found at the two properties. Thus, he submitted, the offending ‘primarily arose from the same “transaction” of trafficking — that being two search warrants, which arose from the discovery of the applicant in his sale of heroin to the covert operative’. The consequence was that the total criminality of the offending was required to be viewed in light of the discovery of the drugs on the same day, in locations occupied by the applicant on that day.
The applicant submitted that s 16(1) of the Sentencing Act 1991 provides for a presumption of concurrency where an offender falls to be sentenced for a number of charges. He submitted that a factor relevant to the sentencing judge’s discretion to depart from the presumption of concurrency, is ‘whether multiple counts arise from substantially the same act, circumstances or series of occurrences’.[16] He relied upon the following statement of Wells J in Dicker v Ashton:
… unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated and that simply represent facets of one course of conduct.[17]
[16]Relying on R v Brown (1982) 5 A Crim R 404, 407 (Forster CJ).
[17](1974) 65 LSJS 150, 151 (‘Dicker’).
He also relied on the decision of this Court in R v O’Rourke that there may be circumstances where ‘the acts giving rise to discrete convictions are so closely related and interdependent that it can reasonably be said of them that they arise out of the one transaction and do call for concurrency’.[18]
[18][1997] 1 VR 246, 253 (‘O’Rourke’).
As noted, the applicant submitted that his offending ‘largely arose out of circumstances that were closely related and interdependent — that is, the drugs were found on the same day, across two locations of the applicant’. While he accepted that the sale to the trafficker was a distinct transaction, he submitted that it was not ‘wholly outside the criminal involvement related to the storage [unit] and home’.
The applicant further submitted that the sentencing judge had made no reference to the principle of totality, either in his reasons, or in his statement of the orders for cumulation. He submitted that, in making the significant orders for cumulation across the trafficking and possession charges, the judge had erred in his application of the principle of totality.
The respondent’s submissions on ground 1
The respondent submitted that there is no basis to conclude that the sentencing judge fell into error by failing to have regard to the principle of totality. The respondent observed that counsel for both parties on the plea had submitted that the Court was required to have regard to the principle of totality when considering what orders for cumulation and concurrency should be made in relation to each of the offences. The sentencing judge clearly understood those submissions and agreed.
Further, the respondent submitted, there was no requirement for the sentencing judge to refer expressly to the principle of totality in his sentencing remarks: he ‘was not required to state the obvious’.[19] The respondent submitted that it is clear from the orders made that the judge gave consideration to the principle of totality in fixing orders for cumulation for some offences (charges 1, 2, 4, 5, 7, 19 and 34), but allowing complete concurrency for other offences (charges 6, 8 and 36).
Consideration of ground 1
[19]Quoting Ta v Thompson [2012] VSC 446, [29] (Whelan J).
In oral argument the applicant submitted that grounds 1 and 2 had in large measure ‘coalesced into’ a single issue, concerning the application of the principle of totality. He also accepted that he could not properly contend that the sentencing judge had entirely failed to have regard to the principle of totality. Ultimately, however, he did not abandon ground 1, rather he simply relied on his written submissions, with the caveat that he did not make a submission that the sentencing judge failed at all to have regard to the principle of totality. Rather, as the applicant acknowledged, his case was that the sentence imposed was excessive having regard to the totality of the criminality involved and the value of the applicant’s plea of guilty. In so far as the applicant alleged error in the application of the principle of totality, the argument was one that went to the weight the sentencing judge gave to the principle, as a particular of ground 2.
The applicant’s concession that he could not properly contend that the sentencing judge had entirely failed to have regard to the principle of totality was appropriately made. It is thus unnecessary to deal with that part of the applicant’s written case that relied upon the sentencing judge’s failure to refer expressly to the principle of totality, in so far as that part of the written case suggested that the sentencing judge had failed to have regard at all to the principle of totality.
However, for completeness I observe that the judge was plainly aware of the principle of totality. First, it was referred to in the course of the plea. Secondly, his Honour ascribed different periods of cumulation for different charges, and in some cases no periods of cumulation, which suggests that he was utilising cumulation and concurrency to achieve a sentence that, in his opinion, complied with the principle of totality. The judge was not required to refer expressly to the principle of totality in his reasons. For the same reasons, I do not accept that the judge failed to apply the principle correctly because he did not expressly state that, after considering cumulation, he had reviewed the total effective sentence. I regard that part of the analysis as implicit in his Honour’s reasons. While it might have been preferable for his Honour to articulate expressly his reasoning in relation to each of the steps required of a sentencing judge (as set out by Kyrou AJA in Director of Public Prosecutions v Marino[20]), his Honour’s failure to do so in the present case does not bespeak error.
[20][2011] VSCA 133, [51] (Buchanan and Nettle JJA agreeing at [1]–[2]).
For these reasons, ground 1 has no prospects of success. I will assess the remainder of the applicant’s contentions as aspects of ground 2, which concerns manifest excess.
Ground 2: manifest excess
Ground 2 alleges that the individual sentences, the orders for cumulation and the total effective sentence were manifestly excessive. The applicant provided particulars of this ground, as follows:
a) The learned trial judge failed to give sufficient weight to the principle of totality;
b) The learned trial judge failed to give sufficient weight to the principle espoused in Worboyes v The Queen[21];
c) The sentences and orders for cumulation and manifestly too long [sic]
The applicant’s submissions on ground 2
[21][2021] VSCA 169 (‘Worboyes’).
In his submissions on totality in the context of ground 2, the applicant conceded that ‘some degree of cumulation was necessary’. However, he contended that orders for cumulation of 21 months, leading to a total effective sentence of 5 years’ imprisonment, ‘resulted in a sentence which offended the principle of totality and resulted in a manifestly excessive sentence’. He also submitted that the orders for cumulation in relation to charges 4 and 5 were particularly notable, being 50 per cent of the sentences imposed for those charges.
In support of this aspect of his case, he submitted that the objective gravity of the offending was limited, in that it was not highly sophisticated. The applicant rented the storage facility in his own name, and used his partner’s mother’s car to attend the covert operative transaction. The offending involved premises occupied by the applicant, ‘where a number of drugs and related items were found in an unorganised, and rather ad hoc and chaotic style’. There was no allegation that the applicant was involved in any organised crime, or more sophisticated drug syndicates.
The applicant also submitted that the principle of totality was particularly important in his case due to the overlap between the offences (as discussed in his submissions on ground 1, which he also relied upon for ground 2). He also submitted that the severity of a sentence increases in an exponential rather than linear way as it increases in length and that the imposition of a crushing sentence is to be avoided where possible.
In relation to the increased utilitarian value of a plea of guilty during the COVID-19 pandemic, as recognised in Worboyes, the applicant accepted that the sentencing judge referred to the applicant’s plea as being of ‘high value’. But he submitted that, when the total effective sentence is considered, including by reference to cumulation, totality and current sentencing practices, it is apparent that in fact the judge had not applied a ‘more pronounced amelioration of sentence’ than would have occurred prior to the pandemic. He also pointed to the s 6AAA declaration, of 7 years, and submitted that a total effective sentence of 5 years ‘does not appear to represent any more significant discount than might otherwise be imposed’. Thus, he submitted, he was not ‘left with a sense of palpable amelioration’ that he ought to have, based on the approach of this Court in Worboyes.[22]
[22]Worboyes [2021] VSCA 169, [35] (Priest, Kaye and T Forrest JJA).
The applicant accepted that the judge had had regard to a number of decisions of the Court of Appeal that had been relied upon by counsel during the plea.[23] However, he submitted that, when the sentences imposed in those earlier cases are considered, and noting that those sentences were imposed following a guilty plea not entered during the time of the COVID-19 pandemic, the sentencing judge had failed to give the applicant’s guilty plea in the time of COVID-19 sufficient weight. In oral argument, in response to the additional cases relied upon by the respondent in this Court,[24] the applicant submitted that those cases can be distinguished.
[23]Tran v The Queen [2017] VSCA 314 (‘Tran’); Tiong v The Queen [2016] VSCA 257 (‘Tiong’); and the sentences imposed for drug offences in Latina v the Queen [2015] VSCA 102 (‘Latina’).
[24]Gioffre v The Queen [2020] VSCA 177 (‘Gioffre’); Lytras v The Queen [2020] VSCA 150 (‘Lytras’).
Finally, the applicant contended that the non-parole period was also excessive, although no specific submissions were directed to that issue; rather, it appeared to depend upon a conclusion that the total effective sentence was excessive.
The respondent’s submissions on ground 2
The respondent submitted that, having regard to the diversity and scale of the applicant’s drug-related criminal activity, and his significant criminal history, it was well open to the sentencing judge to impose the sentences he did.
The respondent pointed out that the applicant fell to be sentenced for trafficking in significant amounts of three different drugs of dependence. In relation to charge 3, the base sentence, the quantity involved was nearly twice the commercial threshold for methylamphetamine. Charge 2 involved almost 90 per cent of the commercial quantity threshold for 1,4-Butanediol. And charge 1 involved approximately a quarter of the commercial quantity threshold for a mixture containing heroin.
Further, the respondent submitted, the applicant’s trafficking was not simply to support his own drug habit. Rather, he engaged in substantial trafficking of a variety of drugs for profit.
The respondent also pointed to the applicant’s criminal history, which included a conviction for trafficking in amphetamine, for which he was sentenced to a 12-month community-based order. He was later twice sentenced for breaching that order. The applicant also had a significant history of other drug and dishonesty offences, and had been subject to multiple community-based dispositions with conditions designed to treat his underlying drug dependence and enhance his prospects of rehabilitation.
The respondent submitted that, in light of these matters, substantial periods of imprisonment were required to be imposed on the trafficking charges in order to meet all of the sentencing purposes.
In so far as Worboyes was concerned, the respondent pointed to the fact that the sentencing judge had given weight to the utility of the applicant’s plea during the pandemic, because he had expressly said as much. The respondent submitted that Worboyes neither required nor permitted the judge to consider what would have been an appropriate sentence for a plea of guilty entered prior to the COVID-19 pandemic, and then make an additional reduction in sentence. Such a process would be an impermissible departure from the instinctive synthesis approach to sentencing.
In so far as the applicant relied on sentencing practice prior to Worboyes, the respondent submitted that the fact that some of the individual sentences imposed on the applicant are the same or greater than the sentences imposed in other cases for pleas of guilty entered prior to the pandemic, sheds no light on the appropriateness of the sentences imposed here.
Further, the respondent submitted that none of the cases relied on by the applicant demonstrate that the individual sentences imposed on the trafficking charges were outside the available range. The respondent urged caution when comparing the sentences in Tran, Tiong and Latina, because different thresholds for the relevant commercial quantity applied to those cases. Further, none of those cases were truly comparable to the applicant’s offending, because they did not involve trafficking in three different drugs of dependence. In addition, the sentence imposed in Latina was significantly influenced by application of what is described as the ‘Doran discount’[25] (for the making of admissions that lead to the laying of additional or more serious charges). In addition, those cases did not represent the full range of sentences imposed for trafficking simpliciter; terms of 4 years have been imposed (and upheld on appeal) for such offences, even where the offender pleaded guilty.[26]
[25]See R v Doran [2005] VSCA 271.
[26]See, eg, Gioffre [2020] VSCA 177; Lytras [2020] VSCA 150.
The respondent submitted that the sentences imposed for the other drug and dishonesty offences were ‘entirely unremarkable’, particularly given that the applicant had a significant relevant criminal history.
As for the orders for cumulation, the respondent submitted that they sat comfortably with what Gageler, Nettle and Gordon JJ said in Nguyen v The Queen concerning the broad discretion in relation to moderation and accumulation of individual sentences to achieve a total effective sentence which accurately reflects the totality of criminality.[27]
[27](2016) 256 CLR 656, 677 [64]; [2016] HCA 17 (‘Nguyen’).
In the present case, the respondent submitted, the total effective sentence was required to reflect the separate harm that would be caused by trafficking in the three different types of drugs to the community, and the applicant’s moral culpability in trafficking a diverse range of drugs to reach a broader market of users. In addition, the possession of numerous other drugs, suspected proceeds of crime, counterfeit money, and identification information of a doctor for the purpose of committing an indictable offence, each added to the overall criminality, which had to be reflected in the total effective sentence. In all the circumstances, a total effective sentence of 5 years’ imprisonment and a non-parole period of 3 years 6 months for this offending was open to the sentencing judge.
Consideration of ground 2
In considering a ground of appeal based on manifest excess it is important always to bear firmly in mind that, in order to succeed on such an application, it is necessary for an applicant to establish that the sentence imposed by the judge was wholly outside the range available in the sound exercise of the sentencing discretion.[28] It is not sufficient that this Court might have imposed different individual sentences, made different orders for cumulation or imposed a different total effective sentence. As Callaway JA observed in R v McCorriston, sentencing judges should be allowed great latitude in tailoring an appropriate total effective sentence, although they must, of course, fix the total effective sentence by reference to the principle of totality.[29]
[28]Clarkson v The Queen(2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’); DPP v Karazisis(2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.
[29][2000] VSCA 200, [13].
Further, this Court has repeatedly emphasised that manifest excess is a difficult ground to establish. It must be shown that something has gone ‘obviously, plainly and badly wrong in the exercise of the sentencing discretion’. The sentence must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.[30] And, as Callaway JA observed in R v Izzard, ‘[a] moderate sentence may, of course, be lengthy. Moderation takes its content from the circumstances and each individual sentence should still be appropriate for the relevant count’.[31]
[30]DPP v Macarthur [2019] VSCA 71, [57]–[59] (Ferguson CJ, Kaye and Weinberg JJA); Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA); Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA, Redlich JA agreeing at [26]).
[31](2003) 7 VR 480, 485 [22] (Winneke P agreeing at 481 [1], Vincent JA agreeing at 486 [24]); [2003] VSCA 152.
Finally, in so far as the applicant emphasises the role of cumulation in his submissions, it is important make some observations about how this Court is to assess orders for cumulation. In Nguyen, the plurality recognised that the exercise of achieving an appropriate total effective sentence ‘involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case’.[32]
[32](2016) 256 CLR 656, 677 [64] (Gageler, Nettle and Gordon JJ); [2016] HCA 17. See also Landale (a pseudonym) v The Queen [2022] VSCA 121, [78] (Kyrou, T Forrest and Walker JJA).
Importantly in the context of the applicant’s arguments in the present case, this Court in Pasinis v The Queen said that:
The question of whether the order for cumulation was appropriate cannot be determined simply by looking at the proportion of the individual sentence that must be served. While the proportion of 60 per cent may appear high, it must be remembered that there are no minimum or maximum proportions. The duty of the sentencing judge is to impose an appropriate total effective sentence. That duty can be discharged in a variety of ways. One way is to moderate the individual sentences. Another — and preferable — way is to moderate the orders for cumulation.[33]
[33][2014] VSCA 97, [50] (Neave JA and Kyrou AJA) (citations omitted) (‘Pasinis’). See also DPP v Grabovac[1998] 1 VR 664, 677, 680–1 (Ormiston JA, Winneke P agreeing at 665, Hedigan AJA agreeing at 690).
That is, cumulation and concurrency play an important role in assisting a sentencing judge to impose appropriate sentences for multiple offences involving distinct criminality, yet still achieve a total effective sentence that is consistent with the principle of totality. It is thus difficult to assess orders for cumulation in isolation from the totality of the offending and the total effective sentence imposed. Counsel for the applicant accepted as much in oral argument, and emphasised that his submission was that the total effective sentence is manifestly excessive.
In my opinion the ground of manifest excess has no prospects of success. I do not consider the individual sentences on the trafficking and possession charges to be so far outside the range of a reasonable discretionary judgment as to bespeak error. Nor do I consider that the orders for cumulation, and the resulting total effective sentence, were outside the range open to the trial judge in the reasonable exercise of discretion.
The sentencing judge’s reasoning
The sentencing judge’s reasoning was clear and paid proper attention both to the general sentencing considerations and to the particular circumstances of this offending and this offender.
In relation to the offending, the sentencing judge held that it was in the ‘middle range of seriousness’.[34] No challenge was made to that conclusion on the appeal. His Honour reached that conclusion having regard to the number and quantities of drugs involved, the harm that is caused by such offending and the fact that the applicant was engaged in the business of trafficking for financial reward. His Honour also had regard to the fact that the matters with which the applicant was charged ‘were not one-off transactions or events’, and that the facts revealed that the applicant ‘had been in the business of drug trafficking for some months’.[35] The applicant accepted that that statement did not reveal specific error and was supported by the summary of prosecution opening. In that context, the judge had proper regard to the need for general deterrence.
[34]Reasons, [26].
[35]Reasons, [23].
In relation to the applicant’s particular circumstances, the judge referred to the applicant’s extensive criminal history, including trafficking amphetamine, possession of a range of drugs of dependence, dishonesty offences, weapons offences, and serious traffic offences. The judge also observed that community-based sentencing dispositions had been imposed for that offending, but that those orders were repeatedly breached.[36] The applicant submitted, in oral argument, that the prior trafficking conviction dated to 2008. So much may be accepted. But the applicant had an extended and more recent history of other criminal offending, including for possession of a variety of drugs of dependence. In light of that history, the judge did not err in placing emphasis on specific deterrence. And, in my opinion, the judge was correct — if not somewhat generous — in his conclusion that the applicant’s prospects of rehabilitation were ‘to be approached with a degree of caution’.[37] Again, that conclusion was not challenged on the appeal.
[36]Reasons, [4].
[37]Reasons, [33].
The judge also had regard to various mitigatory factors, including:
(a)the applicant’s plea of guilty during the pandemic, which, as observed above, his Honour described as a ‘high value’ plea;[38]
(b)the greater hardship of imprisonment during the pandemic;[39]
(c)the applicant’s steps towards rehabilitation while incarcerated[40] (subject to the note of caution referred to above); and
(d)the applicant’s history of polysubstance abuse disorder; although his Honour observed that the offending in issue was not primarily driven by that disorder — its scale exceeded trafficking to support the applicant’s addiction.[41]
[38]Reasons, [3].
[39]Reasons, [34].
[40]Reasons, [32]
[41]Reasons, [31].
His Honour also had regard to the comparable cases to which his attention was drawn.
The weight to be given to a guilty plea in the pandemic
In Worboyes this Court recognised that a plea of guilty during the COVID-19 pandemic had an increased utilitarian value.[42] As already noted, the trial judge had regard to that matter. I accept the respondent’s submission that Worboyes did not require the judge to determine what would have been an appropriate discount for a plea of guilty entered prior to the COVID-19 pandemic, and then make an additional reduction in sentence. That would involve an impermissible departure from the instinctive synthesis approach to sentencing. I also accept the respondent’s submission that error in the application of Worboyes is not demonstrated by pointing to sentences imposed for trafficking simpliciter in pre-pandemic cases that were the same as, or less than, the individual sentences imposed on the applicant for the trafficking charges. Further, it is not appropriate to utilise the s 6AAA statement to discern error in the sentencing judge’s approach to the appropriate discount for the plea of guilty. This Court has emphasised on a number of occasions that the s 6AAA statement is not part of the sentence actually imposed, is ‘notional and artificial’, and is of limited assistance in an appeal against sentence.[43]
Current sentencing practices and the ‘range’ open to the sentencing judge
[42]Worboyes [2021] VSCA 169, [35] (Priest, Kaye and T Forrest JJA).
[43]See, eg, Saab v The Queen [2012] VSCA 165, [59]–[62] (Buchanan, Weinberg and Mandie JJA); Staples v The Queen [2021] VSCA 307, [86] (Maxwell P, Kaye and Emerton JJA); Dunford v The Queen [2021] VSCA 304, [40]–[42] (Beach JA); Duale v The Queen [2022] VSCA 80, [34] (Kennedy JA).
In so far as comparable cases were relied upon to demonstrate that the individual sentences imposed were outside the range available in the reasonable exercise of discretion, it is important to emphasise that comparable cases are not precedents and care must be exercised in how they are used to assess the appropriateness of a sentence in a given case. While comparable cases may assist to reveal a possible pattern or range of previous sentences, an examination of comparable cases does not have the consequence that a range or pattern of sentences, as revealed by the cases, is necessarily correct, or that the upper or lower limits of those sentences are immutable.[44] Further, as the respondent pointed out, the cases to which his Honour’s attention was drawn did not involve an exhaustive survey of sentences for trafficking simpliciter. There are other cases in which more severe sentences have been imposed for that offence, including Gioffre and Lytras.
[44]See, eg, DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ), 453 [82] (Gageler and Gordon JJ); [2017] HCA 41; Djordjic v The Queen [2018] VSCA 227, [74] (Beach and Kaye JJA); Sutic v The Queen[2018] VSCA 246, [97] (Kyrou and Kaye JJA).
I also accept the respondent’s submission that the cases on which the applicant relies have significant differences from the applicant’s offending, meaning that they do not necessarily provide appropriate comparators. And, while the applicant pointed to features of Gioffre and Lytras that differed from his case, ultimately those cases make a short, but important point: the current sentencing practice in relation to sentences for trafficking simpliciter reveals a sentencing range that exceeds the applicant’s base sentence of 39 months, and includes cases in which sentences of 4 years’ imprisonment were imposed for such a charge, in the context of a plea of guilty (albeit prior to the pandemic). I accept that, as the applicant submitted, in Gioffre both the role of the offender and his criminal background were more serious than the applicant’s role and criminal background. I also accept that in Lytras more transactions occurred, thus involving a greater degree of criminality. But those matters do not compel a conclusion that the appellant’s individual sentences were manifestly excessive. Rather, the comparable cases reveal that the sentence imposed by the judge was comfortably within the existing range of sentences that have been imposed in the past for this offence in comparable (but of course not identical) circumstances.
Returning to the sentences imposed by the sentencing judge, in my view none of the individual sentences could be said to be outside the range available in the reasonable exercise of discretion. In so concluding I bear in mind the applicant’s personal circumstances described above, and the maximum penalty for each offence, which is an indication of the seriousness with which Parliament views this kind of offending.
The trafficking simpliciter charges attracted a maximum penalty of 15 years’ imprisonment. In that context, a sentence of 3 years and 3 months for charge 3, being the base sentence, for trafficking of a large amount of methylamphetamine,[45] in the context of the applicant’s drug trafficking business, was not outside the range open to the sentencing judge. Nor were the sentences for the other trafficking offences — 2 years and 6 months for charge 1, involving heroin, and 2 years for charge 2, involving 1,4-Butanediol — outside the range open to the sentencing judge.
[45]Around twice the commercial quantity of pure methylamphetamine, although around half the commercial quantity for mixed methylamphetamine.
The possession charges attracted a maximum penalty of 5 years’ imprisonment. In that context, the sentences of 6 months for charge 4 (possession of cocaine) and charge 5 (possession of MDMA) were not outside the range open to the sentencing judge, even though the quantities were relatively small.[46] Nor were the sentences of 1 month for charge 6 (possession of cannabis) or 3 months for charge 7 (possession of multiple drugs of dependence) outside the range open to the sentencing judge.
[46]The quantities were only marginally under the traffickable quantities.
The charge of possession of counterfeit money attracted a maximum penalty of 10 years’ imprisonment. In that context, a fine of $500 appears lenient.
As for the summary offences, the sentences for that offending were, as the respondent submitted, unremarkable.
The orders for cumulation
While the applicant is correct that s 16 of the Sentencing Act provides for a presumption of concurrency, that section commits the question of concurrency and cumulation to the discretion of the sentencing judge.[47] The exercise of that discretion will only be impugned where the judge commits an error of the kind identified in House v The King.[48]
[47]Tiong [2016] VSCA 257, [40] (Cavanough AJA, Maxwell P agreeing at [1]).
[48](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
In my view it is implicit in the sentences imposed by the sentencing judge that he considered that there was good reason to depart from the presumption of concurrency in relation to charges 1, 2, 4, 5, 7, 19 and 34.[49]
[49]Tiong [2016] VSCA 257, [40] (Cavanough AJA, Maxwell P agreeing at [1]).
I also reject the submission that each charge of trafficking and possession arose out of circumstances that were ‘so closely related and interdependent’ that they arose out of the one transaction’, such that the judge was not justified in imposing any significant cumulation.
(a)First, as the applicant accepted, the trafficking the subject of charge 1 included both the heroin sold to the trafficker and the heroin found at the Thomastown storage locker. Those were plainly distinct transactions; and the sale was also distinct from the other trafficking and possession charges involving the Bundoora property.
(b)Secondly, as the applicant also accepted, the trafficking and possession charges involved different kinds of drugs, and thus distinct criminality. Priest JA and Kidd AJA observed in Nguyen v The Queen that:
the fact that … there were different drugs trafficked deserved separate recognition in the sentencing process. In giving such separate recognition the judge was required to pay due regard to the overall offending to reflect the commonality of offending, and to ensure that the principle of totality was not infringed. This could be achieved by making appropriate orders for cumulation.[50]
(c)Thirdly, I do not accept that, simply because many of the drugs relevant to the trafficking and possession charges were located by police on the same day renders them part of a single transaction. That is so even though those charges were for trafficking and possession only on that day. It remains the case that there were two premises, and many different kinds of drugs, involved in the offending.
(d)Fourthly, I do not accept that the possession and trafficking charges in relation to the drugs found at the storage locker, on the one hand, and the drugs found at the Bundoora property, on the other hand, can properly be said to be so closely connected as to be part of a single transaction. They were connected by the date of the execution of the search warrants, the applicant’s occupation of the two different premises, and by his business as a drug dealer. But those connections are not sufficient to render the trafficking and possession part of a single transaction or course of conduct.
[50][2019] VSCA 184, [62] (citations omitted). See also McNaughton v The Queen [2014] VSCA 174, [61] (Priest JA, Hansen JA agreeing at [1]).
That conclusion is supported by the decision in Morgan v The Queen, on which the respondent relied, where this Court rejected an argument that multiple offences, detected by police on the same day by the execution of search warrants at different properties, were part of the same course of conduct for the purposes of the application of the totality principle.[51] The applicant submitted that Morgan did not lay down any statement of principle, and I accept that submission.[52] But, for the reasons given above, I consider that the conduct the subject of the charges in issue in the present case was not such as to require the sentencing judge to treat it as all arising from a single transaction.
[51][2016] VSCA 143, [63] (Weinberg, Priest and Kyrou JJA) (‘Morgan’).
[52]I note for completeness that I do not need to decide whether, as the applicant submitted, the conclusion in Morgan was inconsistent with the conclusion in an earlier case of the same name, Morgan v The Queen (2013) 40 VR 32; [2013] VSCA 33, which concerned the application of the ‘Mill principle’ concerning the operation of the principle of totality when an offender is sentenced in one State for offending ‘closely related in time and character’ to offences committed in another State and for which the offender has already been sentenced (see Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70).
Given all these matters, the distinct trafficking and possession charges did not, in my opinion, require the strict application of the principle identified in Dicker and O’Rourke, in so far as those cases concerned circumstances where complete concurrency was required. Indeed, as already noted, the applicant accepted, in oral argument, that some cumulation was appropriate.
That is not to say, of course, that the principle of totality had no application to the sentence to be imposed for the multiple offences with which the applicant was charged. Plainly it did, and it was necessary for the judge, when sentencing the applicant, to take account of and give appropriate weight to that principle. But in my view his Honour did so.
Turning to the orders for cumulation made by the sentencing judge, in my view none of those orders were so great as to require the conclusion that they were not open to the judge in the reasonable exercise of his discretion.
(a)On the trafficking charges (charges 1 and 2), cumulation of 6 months was ordered. That was 20 per cent of the sentence on charge 1 and 25 per cent of the sentence on charge 2. Given the seriousness of the offending, and the distinct criminality involved in each charge, those orders were open to the judge.
(b)Likewise, cumulation of 3 months for two of the possession charges (charges 4 and 5) was open to the judge in the reasonable exercise of his discretion. Although 3 months constituted 50 per cent of each of those sentences, there is no minimum or maximum percentage for cumulation, as noted in Pasinis (in which an order for 60 per cent cumulation was upheld).
(c)On charge 6 his Honour imposed no cumulation; and on charge 7 only 1 month — both moderate decisions.
(d)The orders for cumulation on the summary offences were likewise moderate.
The final question is whether the total cumulation of 21 months, and the consequent total effective sentence of 5 years’ imprisonment, were so excessive as to not have been open to the sentencing judge in the reasonable exercise of his discretion. I do not consider that they were. While that cumulation, and that total effective sentence, might be described as stern, they were in my opinion open to the judge, bearing in mind the number of offences, the seriousness of the offending and the limited mitigatory factors the applicant was able to call in aid.
The non-parole period
As noted above, by ground 2 the applicant submitted that the non-parole period was manifestly excessive; however, he made no specific submissions about why that was so, and I understood this aspect of ground 2 to depend upon the contention that the total effective sentence was manifestly excessive, a contention that I have rejected.
For completeness, I record that I do not regard the non-parole period of 3 years and 6 months as manifestly excessive. It is 70 per cent of the total effective sentence, which is comfortably within the range open to the sentencing judge.
Conclusion on ground 2
In my opinion the individual sentences, orders for cumulation and total effective sentence were open to the trial judge in the reasonable exercise of his discretion and were not manifestly excessive. Ground 2 thus has no prospects of success.
Conclusion
For the above reasons, I would refuse leave to appeal.
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