DPP (Cth) v Afford
[2017] VSCA 201
•10 August 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0188
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| STEVEN AFFORD | Respondent |
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| JUDGES: | MAXWELL ACJ, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 June 2017 |
| DATE OF JUDGMENT: | 10 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 201 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Afford (Unreported, County Court of Victoria, Judge Gucciardo, 2 September 2015) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Importation of commercial quantity of heroin – Importation 1.61 times commercial quantity – Sentence of imprisonment of three years and two months, with non-parole period of two years – Whether manifestly inadequate – Intentional importation – Plea of not guilty – Respondent reckless as to whether substance was border controlled drug – Good prospects for rehabilitation – Sentence manifestly inadequate – Whether residual discretion should be exercised – Appeal allowed – Resentenced to imprisonment for 10 years, with non-parole period of seven years – Criminal Code 1995 (Cth) s 307.1.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
| For the Respondent | Mr T Kassimatis QC with Ms A Burchill | James Dowsley & Associates |
MAXWELL ACJ
BEACH JA:
On 2 July 2015, following a nine-day trial in the County Court, a jury found the respondent (‘SA’) guilty of one charge of importing a commercial quantity of a border controlled drug (heroin), contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth) (‘Code’). The maximum term of imprisonment for importing a commercial quantity of a border controlled drug is life imprisonment.
On 2 September 2015, following a plea hearing conducted on 18 August 2015, SA was sentenced to a term of imprisonment of three years and two months. A non-parole period of 24 months was fixed.[1]
[1]DPP (Cth) v Afford (Unreported, County Court of Victoria, Judge Gucciardo, 2 September 2015) (‘Reasons’).
SA sought leave to appeal against his conviction, and the Commonwealth Director of Public Prosecutions (‘the appellant’) appealed against the sentence imposed by the judge. On 4 March 2016, this Court, by majority,[2] granted SA’s application for leave to appeal, allowed the appeal, set aside SA’s conviction and sentence and entered a judgment and verdict of acquittal.[3] The Director’s appeal against sentence therefore lapsed.
[2]Priest and Beach JJA, Maxwell P dissenting.
[3]Afford v The Queen (2016) 308 FLR 1, 18–19 [93] (‘Afford’).
On 10 May 2017, the High Court allowed an appeal by the Director against this Court’s decision and ordered that SA’s appeal against conviction be dismissed.[4] The matter was then remitted by the High Court to this Court to determine the Director’s appeal against sentence.[5]
[4]Smith v The Queen (2017) 91 ALJR 621, 641 [72] (‘Smith’).
[5]Ibid.
The Director’s grounds of appeal against sentence are as follows:
1.The sentencing judge erred in characterising the fault element of recklessness as a factor mitigating the offending and reducing SA’s moral culpability for the offending.
2.The sentencing judge erred in relying primarily on Victorian sentencing practices when arriving at an appropriate sentence.
3.The sentence imposed on [SA] was manifestly inadequate.
In the Director’s notice of appeal, the ground of manifest inadequacy is particularised as follows:
In imposing sentence, the sentencing judge:
(a) failed to give sufficient weight to:
(i)the objective gravity of the offending including the maximum penalty prescribed for the offence, the role played by [SA] and his anticipated reward; and
(ii)the primacy of the principle of general deterrence and the need for punishment and denunciation; and
(iii)the need to promote national consistency in sentencing standards; and
(iv)[SA’s] plea of not guilty; and
(b)erred:
(v)in taking into account in mitigation the recklessness of [SA] in importing the drugs;
(vi)in taking into account primarily Victorian sentencing practices.
Circumstances of the offending
SA is a citizen of New Zealand, but was residing in Perth at the time of his arrest. At the beginning of 2014, he received an unsolicited email from a person describing himself as H E Dr Anwar Mohammed Qargash (‘Anwar’). Anwar claimed he was a Minister in the United Arab Emirates government. The ostensible purpose for the email was to engage SA to build a luxury hotel on their behalf in Australia. The project was said to be worth many millions of US dollars. SA’s reward in the building contract was to be a monthly retainer of $38,000 and 20 per cent of the dividends of the functioning hotel. After his arrest, SA told police he believed the building contract was worth half a billion US dollars.
Over the next few months, emails were exchanged which alluded to large amounts of funds being held in Australia by a security company. A Memorandum of Understanding was produced, purporting to be a partnership agreement between Anwar and SA. During this time, Anwar put SA in touch with one Hamza Badijo (‘Hamza’). Hamza was claimed to be Anwar’s legal representative in the United Kingdom. In addition to emails passing between SA and Anwar concerning the project, emails dealing with various details passed between Hamza and SA.
In mid-January 2014, SA received an email informing him that cash funds held in Australia for the project had been ‘defaced’. He was told that the money required cleaning by the security company, using what was described as ‘separation oil’. The ‘separation oil’ was to be provided to SA through an agent in India. SA was asked to travel to India to retrieve the separation oil, and to provide it to staff of the security firm in Adelaide. In late January, SA stated in an email that he had never heard of such a thing, and raised the prospect that tampering with currency was against the law. By the end of January, SA said he was ‘not convinced’ of the process, and was reluctant to act. He did, however, agree to travel to India.
Anwar and Hamza encouraged SA that his trust and co-operation would be rewarded. As there were difficulties in obtaining a visa for SA to travel to India, he did not go there. Instead, in early March 2014, Hamza told SA via email to travel to Manila to obtain the separation oil. Hamza also told SA to view buildings in Manila to aid in the construction of the proposed luxury hotel. SA expressed further suspicions, however, and told Hamza in an email that he hoped that what he was doing was ‘above board and not any drug process or any other illegal activity.’ SA was advised that when he was in Manila, a woman would bring him cash and goods.
On 8 March 2014, SA departed Australia for Manila. While in Manila, he photographed some of the hotel infrastructure of the city. SA later told police that he met a woman in Manila named ‘Jenna’, who gave him a suitcase, telling him that it contained bottles of oil ‘and some presents’.
SA arrived back in Australia at 11:00 am on Friday 14 March 2014. Upon his arrival at Melbourne International Airport, Tullamarine, officers of Australian Customs and Border Protection (‘Customs’) spoke to him and commenced a search of his luggage, consisting of a large grey soft-sided suitcase, a medium black soft-sided suitcase, a laptop bag and a camera bag. On his incoming passenger card, SA had declared that he was a builder, and that he was not bringing any goods into Australia.
A customs officer questioned SA and examined his bags. Before the examination of his bags commenced, SA told the customs officer that he had packed the bags himself. He said that the bags were his and that he was fully aware of their contents. When asked whether he was carrying anything for anyone else, SA said that he was. He then produced a jewellery box from his jacket pocket and said that it was a present for his wife. SA then said that he had been in the Philippines on a business trip to look at hotel infrastructure and to experience the customer service. When asked who paid for the trip, from a yellow folder SA produced a document entitled ‘Memorandum of Understanding (MOU), Partnership Agreement Deed between H E Dr Anwar Mohammed Qargash and [SA]’.
At about this time, in the course of an x-ray examination, a ‘possible concealment’ was detected in one of SA’s suitcases. SA was then cautioned and had his rights explained.
The suitcase was found to contain men’s, women’s and children’s clothing, and two olive oil bottles. Within the suitcase there was a grey laptop bag, in which an anomaly was also detected following an x-ray. Following a preliminary narcotics test of the contents of the suitcase, a positive result was returned for heroin.
Customs officers then contacted members of the Australian Federal Police (‘AFP’) for assistance. At approximately 3:40 pm, members of the AFP attended the Melbourne International Airport Customs arrival hall and seized SA’s baggage and contents. Police arrested SA at 4:10 pm, and he was taken to AFP headquarters for interview.
In a record of interview with police conducted on Friday 14 March 2014, SA gave an exculpatory account of his activities. He told police that he was a builder. He said that an investor named Anwar had offered him a ‘half a billion dollar building contract’. Anwar, he said, was referred to in the documents seized by Customs officials. SA said that Anwar first contacted him via an email ‘five months ago’. Anwar said he was ‘looking for a builder in Australia’, and SA replied that he was a builder. SA told police that Anwar said he was ‘legitimate’, and ‘he wrote a substantial contract’ for SA to sign. He also told police his email address, and said that he had retained all the emails on his computer as a record ‘just like any business records’. SA said that he went to Manila ‘to pick up a couple of bottles of [removable] oil’. He did this ‘to secure the half a billion dollar building investment’ in his company.
SA told police that, during negotiations, he said to the investor about the bottles of oil, ‘I hope these are not friggin’ drugs’, and he was advised, ‘No, they are not’. SA said that he realised it was a serious business contract when his airfare and accommodation were paid for. He said that ‘yesterday’ he met a woman in Manila named ‘Jenna’, who gave him a bag. When she handed him the bag she told him that it contained bottles of oil ‘and some presents’. She was there when SA caught a taxi to Manila airport to return home. SA told police that his ‘only focus’ was ‘the half a billion dollar contract’ that his company could ‘utilise to build’. He knew nothing about any heroin in the bag.
When SA was searched, he was found to have a number of documents in his possession. These included receipts from purchases in Manila, emails between SA and Hamza, emails between SA and Anwar, an exercise book maintained by SA, his diary and a business card in the name of Afford Property, with himself listed as CEO/Project Manager.
SA’s camera, which was seized by police, contained a large number of photographs he had taken of buildings in Manila. Subsequently, SA provided the password to his email account to the police. These emails revealed that he received the unsolicited approach from Anwar to which we have already referred, and that Anwar introduced Hamza to SA as Anwar’s lawyer in the UK, and otherwise disclosed the dealings between the parties as described above. It was no part of the prosecution case that the emails between SA and Anwar and Hamza, or any of the other documents in SA’s possession, were a contrivance or ruse on the part of SA.[6]
[6]Paragraphs [7]–[20] are based on paragraphs [95]–[111] of Afford (2016) 308 FLR 1.
Ground 1: recklessness as a mitigating factor
As noted earlier, the first ground of appeal contends that the judge erred:
in characterising the fault element of recklessness as a factor mitigating the offending and reducing [SA’s] moral culpability for the offending.
Before dealing with this ground, it is necessary to set out the provisions of s 307.1 of the Code, which identify the elements of the offence with which SA was charged.
That section provides as follows:
307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a) the person imports or exports a substance; and
(b)the substance is a border controlled drug or a border controlled plant; and
(c) the quantity imported or exported is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is recklessness.
(3) Absolute liability applies to paragraph (1)(c).
The prosecution therefore had to prove three elements, namely that:
·SA imported a substance;
·the substance was a border-controlled drug; and
·the quantity which he imported was a commercial quantity of the drug.
As to the first element (importing a substance), the fault element is intention.[7] It follows from the jury’s verdict that SA was proved to have intentionally imported a substance. As to the second element (the substance being a border-controlled drug), the fault element is recklessness.
[7]Code s 5.6(1).
Having regard to the definition of recklessness in s 5.4 of the Code, SA was proved to have been ‘reckless with respect to a circumstance’, namely, that the substance which he was intentionally importing was a border-controlled drug. Expressed in the language of the definition, the prosecution established beyond reasonable doubt that:
(a) SA was aware of a substantial risk that the substance he was importing was a border-controlled drug; and
(b) having regard to the circumstances known to him, it was unjustifiable for him to take the risk.
In his sentencing reasons, the judge said this:
The prosecution put to the jury a case essentially of recklessness. The verdict must imply a finding that you were aware of the substantial risk that the suitcase you brought in contained a border controlled drug and all the subjective facts known to you indicated that, but that you took the risk in an unjustifiable fashion objectively, even if you were hoping that the risk did not eventuate.
I accept that you had a genuinely held belief that the project would come to fruition to your benefit, because you were manipulated as a naïve and unsophisticated and gullible man to assume that substantial risk.
This recklessness is demonstrated and accepted by the verdict, even in the face of your previous good character, and is strengthened, in my view, by the suspicions which averted to the enterprise being in relation to illicit substances, which you expressed.[8]
[8]Reasons [15]–[17].
And further:
I accept that your deep faith defines your life and this devout approach had a significant impact in your decision making and thinking. Unfortunately on this occasion, such faith led you to a fundamental error of judgment, motivated by what can only be greed that is sadly disguised as a prospective divine favour or blessing.
I accept that as a naïve, uneducated man, you were vulnerable as a victim of a relatively sophisticated international internet scam and that you acted on a promise of a lucrative contract, at least which you thought was legitimate. I consider your moral culpability relatively low. Although it may be difficult to envisage that such naivety could co-exist with the objective reality and the suspicions you expressed yourself, I accept that ultimately you were reckless and aware of the risk, but you were blinded by what you genuinely believed and hoped would lead to a legitimate contract.
In this sense, as a dupe, you fall to be sentenced at the lower end, of the category of courier. In this sense also, your good character, given also your age, is relevant. In cases of true couriers, the impact of such a character is often moderated because a courier’s otherwise good character is an asset to the operation. However here a much more elaborate scheme was put in place, so as to make your good character secondary to the complexity of the proposed partnership. In this sense your good character is of some relevance.[9]
[9]Ibid [26]–[28].
His Honour was, of course, correct to characterise the Crown case as based on recklessness, but only in connection with the second element (the imported substance being a prohibited drug). Importation is an intentional offence, and SA had been convicted of having intentionally imported a substance. The Crown case, which the jury accepted, was that his intent could be inferred from all of the circumstances, including his persistent and unresolved suspicions that he might be carrying drugs and the inherent implausibility of the ‘separation oil’ story.
The High Court majority described the process of inferential reasoning as follows:
Where … a person is aware of a real or significant chance of the presence of an extraneous substance in an object which the person brings into Australia, and does nothing by way of inspection or declaration to avoid the risk of its presence, the circumstances of the case strongly suggest that the person’s state of mind is, in truth, that he or she is prepared to proceed with bringing the object into Australia even if the substance is in the object; and thus that the person means and intends to import the substance.[10]
[10]Smith (2017) 91 ALJR 621, 637 [59].
As already noted, SA’s recklessness with respect to the second element — the substance being a drug — meant that he was aware of ‘a substantial risk’ that it was a drug, and proceeded to take that risk in circumstances where it was unjustifiable to do so. Thus understood, proven recklessness as an element of this offence necessarily carries with it a significant degree of moral culpability. Moreover, as the sentencing judge noted, SA took that unjustifiable risk for reasons of pure greed.[11] He was, as the High Court noted, ‘obsessed with the idea of becoming wealthy’.[12] The attraction of a very lucrative building contract was such that SA decided to proceed with the importation of the suitcase despite his awareness of the ‘substantial risk’ that he was importing a prohibited drug.
[11]Reasons [26].
[12]Smith (2017) 91 ALJR 621, 629 [21].
Of course, awareness of a substantial risk that the imported substance is a drug is not the same as actual knowledge that it is. But that distinction was not one on which SA could rely in mitigation of penalty. So much was clearly established by the decision of this Court in Lau v The Queen.[13] In that case, the Court (Neave and Hansen JJA and Beach AJA) said:
The legislative scheme makes it clear that offenders who are reckless as to the nature of the substance imported, rather than having a specific intention to import a border controlled drug, are to be treated in the same way as offenders who do so intentionally. If it had been intended to treat reckless offenders differently from those who act intentionally, this would have been reflected in separate provisions imposing a lower maximum sentence on the former than the maximum sentence imposed on the latter.[14]
[13][2011] VSCA 324.
[14]Ibid [26].
In this case, as in Lau, there was a very high degree of recklessness. The circumstances were described by the High Court majority in these terms:
There was no dispute that, both before and after [being given the suitcase], Afford gave active, repeated consideration to the possibility that what he was collecting in Manila and bringing back to Australia contained prohibited drugs. Despite his protestations to the contrary, his emails with Anwar and Hamza were powerful evidence that ultimately he concluded that there was a
significant chance that what he was being asked to import was drugs. The absurdity of the account which he offered police reinforces the probability that he believed there to be a real or significant chance that what he was bringing back to Australia contained prohibited drugs. It is next to impossible to suppose that a rational human being could believe anything else.[15]
[15]Smith (2017) 91 ALJR 621, 640–1 [70].
As will appear, we have concluded that the sentence imposed was manifestly inadequate and that a substantially heavier sentence should be imposed. It would seem that his Honour’s sentencing decision was significantly influenced by his conclusion that SA’s moral culpability was low. For the reasons we have given, we respectfully disagree with that conclusion. In the circumstances, however, it is unnecessary to deal further with ground 1.
Ground 2: reliance on Victorian sentencing practices
In stating that he would primarily rely upon Victorian sentencing practices,[16] the judge applied this Court’s decision in Pham v The Queen.[17] However, two months after the judge imposed his sentence on SA, the High Court delivered judgment allowing the Commonwealth Director’s appeal in Pham.[18] The High Court in Pham held that it is erroneous to approach the sentencing task for a federal offence on the basis that an offender is entitled to assume that he or she will be sentenced in accordance with current sentencing practices in the state or territory where the offender is sentenced, to the exclusion of the sentencing practices of other states and territories.
[16]Reasons [33].
[17](2014) 244 A Crim R 252.
[18]R v Pham (2015) 256 CLR 550, 556 [19] (French CJ, Keane and Nettle JJ), 563 [41] (Bell and Gageler JJ) (‘Pham’).
It follows that, while the judge cannot be criticised for following this Court’s decision in Pham at the time of sentencing, in saying that he would rely primarily on Victorian sentencing practices, the judge’s sentencing discretion miscarried. In the circumstances of this case, however, it is not necessary to say anything further about ground 2.
Ground 3: manifest inadequacy
As this Court has said before, the offence of importing a commercial quantity of a border controlled drug is one of the utmost seriousness.[19] This is demonstrated by the fact that the offence carries a maximum penalty of life imprisonment and/or 7500 penalty units.[20]
[19]Nguyen v The Queen (2011) 31 VR 673, 676 [2].
[20]Section 4AA(1) of the Crimes Act 1914 (Cth) defined a penalty unit to mean ‘the amount of $180 (subject to indexation under subsection (3)’ later amended by the Crimes Amendment (Penalty Unit) Act 2017 (Cth).
In the present case, the amount of pure heroin imported by SA was 2.415 kilograms. This represented 1.61 times the minimum threshold for a commercial quantity for heroin (the commercial quantity for heroin being 1.5 kilograms).[21] The value of the heroin imported was between $2,371,600 and $3,985,410.
[21]See sch 4 of the Criminal Code Regulations 2002 (Cth).
As has been said many times, like the ground of manifest excess the ground of manifest inadequacy is a stringent one that is difficult to make good. Manifest inadequacy will not be established unless it can be shown that the sentence imposed was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[22]
[22]See DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (‘Karazisis’); DPP v Majok [2017] VSCA 135 [61] (‘Majok’); DPP (Cth) v Brown [2017] VSCA 162 [55] (‘Brown’).
SA fell to be sentenced as a courier, and was otherwise a man of good character who had good prospects of rehabilitation and was unlikely to reoffend. Viewed objectively, however, this was very serious offending, involving a significant degree of moral culpability. In our respectful opinion, the sentence of three years and two months’ imprisonment was wholly outside the range of sentencing options available to the judge.
Guidance as to the applicable sentencing range is provided by sentences that have been imposed for importing quantities at the upper end of marketable quantities of border controlled drugs. For example, in Lau,[23] this Court dismissed an appeal against a sentence of nine years’ imprisonment, with a non-parole period of six years, for importing 709.8 grams of pure methamphetamine. The offender’s role was one of a courier; he had no prior convictions; and had pleaded guilty at the earliest opportunity. In Pham v The Queen,[24] a sentence of eight years’ imprisonment with a non-parole period of six years was held to be within range for a courier who had pleaded guilty to importing less than half a commercial quantity of heroin.
[23][2011] VSCA 324.
[24][2016] VSCA 259.
We refer also to sentences imposed in respect of the importation of commercial quantities. For example, in Ng v The Queen,[25] the offender pleaded guilty to importing 2.445 kilograms of heroin (1.63 times the commercial quantity threshold). His appeal against a sentence of 11 years and three months’ imprisonment, with a non-parole period of seven years and three months, was dismissed. Similarly, in Webber v The Queen,[26] the offender pleaded guilty to importing just over a commercial quantity of cocaine. He was sentenced to 11 years’ imprisonment with a non-parole period of seven years. His appeal was dismissed. In both Ng and Webber, the offender’s role in the importation was somewhat greater than SA’s role here. On the other hand, in contrast to SA, both those offenders pleaded guilty.
[25][2010] NSWCCA 232 (‘Ng’).
[26][2014] NSWCCA 111 (‘Webber’).
In R v Agboti,[27] a courier pleaded guilty to importing 3.1 times the commercial quantity of methamphetamine. She was aged 23 and her only reward was the cost of the aeroplane ticket. The Queensland Court of Appeal accepted that her decision to participate reflected her ‘fragile state of mind, bordering on desperation’, and reduced the sentence from 11 years to nine years and six months’ imprisonment.[28] Finally, in R v Jain,[29] this Court held that a sentence of 10 years’ imprisonment was within range for a courier who pleaded guilty to importing just over a commercial quantity of heroin.
[27](2014) 246 A Crim R 72.
[28]Ibid [51].
[29][2004] VSCA 30.
Against that background, it can be seen that the sentence imposed in the present case was not one that was reasonably open to the judge to come to if proper weight had been given to all of the relevant circumstances.[30] Indeed, the sentence would have been manifestly inadequate had SA pleaded guilty. SA was, of course, entitled to plead not guilty. The consequence of such a plea, however, was that he was not entitled to the significant mitigatory benefits associated with a plea of guilty.
[30]See Karazisis (2010) 31 VR 634, 662–3 [127]. See further DPP v Thomas (2016) 315 FLR 31, 103 [240], 106–110 [254]–[270].
On the remitted hearing in this Court, the argument of the parties centred on the question of whether we should exercise the residual discretion to dismiss the Director’s appeal. Before turning to that question, it is necessary to say something more about SA’s current circumstances.
Respondent’s current circumstances
On 4 March 2016, pursuant to this Court’s order, SA was released from custody. In the period between his acquittal by this Court and his return to prison, SA did not come to the attention of any law enforcement agency.
On 23 May 2017, after surrendering himself to authorities, SA was gaoled for nine days, being the balance of the non-parole period, fixed by the sentencing judge, and which had not been served when he was acquitted by this Court and released from custody. During that period of nine days, SA’s brother-in-law (to whom he was very close) died suddenly.
On 1 June 2017, SA was released on parole. His visa was cancelled and he was taken by the Department of Immigration and Border Protection into immigration detention. SA remains in detention. It is likely that he will be deported following the conclusion of the present proceeding and the expiration of any further period of imprisonment ordered by this Court.
According to an affidavit sworn by SA’s solicitor, his conviction and ‘inevitable deportation’ has ‘entirely frustrated any prospect of his (and his wife’s) pursuit of a future in Australia; and will result in their separation from his daughter and family in Australia’.
In addition to these matters, SA asserted (and the Director did not dispute) that, during his time in prison, he worked productively; and his adoptive mother (to whom he was very close) died, and he was unable to attend her funeral.
Residual discretion: contentions of the parties
Relying upon the matters to which we have just referred, SA submitted that from the time of his arrest, his life has remained on hold and his fate undetermined.[31] Additionally, it was submitted that SA’s conduct between the time of sentencing and the present had ‘gone some way to vindicating’ the sentencing judge’s finding that his prospects of rehabilitation were good, and that he was not likely to reoffend.
[31]In making that submission, SA relied upon decisions about the issue of delay and the effect that delay has in causing matters to hang over an offender’s head, keeping an offender in a state of suspense. In particular, SA relied upon R v Cockerell (2001) 126 A Crim R 444, 447 [10]; R v Tiburcy (2006) 166 A Crim R 291; Arthars v The Queen (2013) 39 VR 613, 621–2 [25].
SA submitted that, in the present case, the practical effect of allowing the Director’s appeal would be to remove him from his current detention, reimprison him and have him serve additional gaol time, only to have him paroled again, placed in detention, and ultimately deported. It was submitted that, since the Court could state that the sentencing discretion miscarried, and state reasons for that conclusion, there was no practical utility in declining to exercise the residual discretion in his favour.
The Director, on the other hand, submitted that none of the matters relied upon by SA provided a basis for exercising the residual discretion in SA’s favour.
The exercise of the residual discretion
Notwithstanding the abolition of double jeopardy by s 289(2) of the Criminal Procedure Act 2009, the Court retains a residual discretion to dismiss a Director’s appeal, despite the demonstration of relevant error.[32] Further, the onus rests on the Director to persuade the Court that the discretion should not be exercised so as to lead to the dismissal of the appeal.[33] Factors that are capable of bearing on the exercise of the residual discretion despite the demonstration of error include delay;[34] the Court being asked to impose immediate custody where non-confinement was originally imposed;[35] or the sentence under appeal having been completed prior to the hearing of the appeal.[36]
[32]Karazisis (2010) 31 VR 634, 661 [119].
[33]DPP v Zhuang (2015) 250 A Crim R 282, 300 [49].
[34]DPP v Singh (1999) 106 A Crim R 321; R v Myers (Unreported, Victorian Court of Criminal Appeal, Phillips CJ, Crockett and Vincent JJ, 31 August 1993); R v Pont (2000) 121 A Crim R 302; Green v The Queen (2011) 244 CLR 462, 479–80 [43] (French CJ, Crennan and Keifel JJ) (‘Green’); Munda v Western Australia (2013) 249 CLR 600, 624 [72] (‘Munda’); DPP v Mwamba [2015] VSCA 338, [165] (‘Mwamba’).
[35]R v Soo (Unreported, Victorian Court of Appeal, Tadgell, Phillips and Kenny JJA, 30 October 1997); DPP v Waack (2001) 3 VR 194; DPP v Joseph [2001] VSCA 151; DPP v BW [2007] VSCA 171; DPP v Wilson (2000) 1 VR 481 (‘Wilson’); DPP v Fevaleaki (2006) 165 A Crim R 524, 530–1 [26] (‘Fevaleaki’); Mwamba [2015] VSCA 338 [165].
[36]R v Smallacombe (Unreported, Victorian Court of Criminal Appeal, Crockett, Hampel and Coldrey JJ, 28 October 1993); Wilson (2000) 1 VR 481; Fevaleaki (2006) 165 A Crim R 524, 530–1 [24]; DPP v Daniel [2008] VSCA 76 [48]; Munda (2013) 249 CLR 600, 624 [72]; Mwamba [2015] VSCA 338 [165].
It requires little imagination to appreciate the emotional impact on SA of the sequence of events: conviction in the County Court; subsequent acquittal by this Court and release from custody; the Director’s appeal to the High Court; the overturning of this Court’s decision; being taken back into custody; being released nine days later at the end of the non-parole period imposed by the judge; and then
being taken into immigration detention, with the probability of ultimately being deported.[37] But none of this alters the seriousness of SA’s offending, nor the manifest inadequacy of the sentence imposed by the judge.
[37]Cf R v Wei Tang (2009) 23 VR 332, 347 [71].
Notwithstanding all of the matters relied upon by SA, we are of the view that the present case is not an appropriate one in which to exercise the residual discretion. Even when coupled with the other matters relied upon, the delay and uncertainty do not justify an exercise of the residual discretion in SA’s favour. Moreover, exercising the residual discretion would result in SA receiving a significantly lower sentence than he could reasonably have expected had he pleaded guilty. In all of the circumstances, that would not be an appropriate result.
Resentencing SA
SA is a middle-aged family man, of previously good character. His prospects for rehabilitation are good. He has, however, committed a very serious offence, and he was convicted following a trial.
In all the circumstances, we would resentence SA to a term of imprisonment of 10 years, with a non-parole period of seven years.
PRIEST JA:
Either the respondent is extraordinarily manipulative and devious, or he is remarkably gullible and naïve. Having considered all of the evidence in the trial, I think the latter description is apt.
In the course of their reasons for judgment,[38] the practical result of which was to reinstate the respondent’s conviction, the plurality in the High Court said:[39]
… The absurdity of the account which [the respondent] offered police reinforces the probability that he believed there to be a real or significant chance that what he was bringing back to Australia contained prohibited drugs. It is next to impossible to suppose that a rational human being could believe anything else. And, although the test of intent is undoubtedly subjective, an objective assessment of the situation was plainly relevant to the jury’s assessment of [the respondent’s] subjective state of mind.
[38]Smith v The Queen; R v Afford (2017) 91 ALJR 621 (‘Smith’) (emphasis added).
[39]Ibid 641 [70] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
Notwithstanding the High Court’s observations, it is clear that the sentencing judge — who is very experienced in criminal law and who had the advantage of scrutinising the respondent throughout his trial — was impressed by the unusual circumstances of the respondent and his offending. The judge thought the respondent to be a naïve, unsophisticated and gullible man, who was the victim of an elaborate scam. Thus, in his reasons for sentence, the judge made the following observations:[40]
[40]DPP v Afford [2015] VCC 1231 (emphasis added).
For their part, the people who had set up this elaborate scam, kept encouraging and reassuring you that your trust and co-operation would be rewarded. …
…
You had said to the investor, you claimed, ‘I hope these are not friggin’ drugs’ and you were advised they were not. You believed the investor was legitimate and that the contract was a gift from God. …
…
There is little doubt that the correspondents duped you into believing that there was a building contract into which you were being asked to participate. Although, from an objective view, such a scam should be easily and readily seen for what it is, a swindle designed to entice naïve and susceptible people to travel and collect the substance and deliver it back into Australia.
I do accept that for all intents and purposes, you were conned into participating into [sic] this enterprise and you had a genuine belief that once you had completed this task, you would likely receive the go-ahead in relation to this contract. To your mind, a seemingly legitimate enterprise. …
You, I accept, are a deeply religious man and the so-called investors used this fact cleverly to impress upon you that this project was mandated divinely and sanctioned to achieve the financial success which you so fervently believed God would provide to you, as demonstrated by the entries in your diaries and in some of the exchanges.
…
I accept that you had a genuinely held belief that the project would come to fruition to your benefit, because you were manipulated as a naïve and unsophisticated and gullible man to assume that substantial risk.
This recklessness in demonstrated and accepted by the verdict, even in the face of your previous good character, and is strengthened, in my view, by your suspicions which adverted to the enterprise being in relation to illicit substances, which you expressed.
…
In a sense, you are a type of courier, except that by the nature of the scam practiced upon you, you were not to be rewarded for anything in connection with the substance actually imported, but with the concomitant building contract. Apart from your travel and accommodation, you had not been promised any other money, and it is clear from the material that you are at the lowest level of this drug enterprise. I accept that on the balance of probabilities.
The amount of the drug is at the low end of the commercial quantity scale and the prosecution moreover accepts that you have reasonable prospects of rehabilitation because of your circumstances, and accordingly, specific deterrence is unlikely to be a weighty factor and I agree with that proposition.
…
… In 1995 you separated from your wife for about six years and you suffered an emotional breakdown and were treated for depression. … During these years your religiosity, which was already strong, took control of your life. …
…
I accept that your deep faith defines your life and this devout approach had a significant impact in your decision making and thinking. Unfortunately on this occasion, such faith led you to a fundamental error of judgment, motivated by what can only be greed that is sadly disguised as a prospective divine favour or blessing.
I accept that as a naïve, uneducated man, you were vulnerable as a victim of a relatively sophisticated international internet scam and that you acted on a promise of a lucrative contract, at least which you thought was legitimate. I consider your moral culpability relatively low. Although it may be difficult to envisage that such naivety could co-exist with the objective reality and the suspicions you expressed yourself, I accept that ultimately you were reckless and aware of the risk, but you were blinded by what you genuinely believed and hoped would lead to a legitimate contract.
In this sense, as a dupe, you fall to be sentenced at the lower end, of the category of courier. In this sense also, your good character, given also your age, is relevant. In cases of true couriers, the impact of such a character is often moderated because a courier's otherwise good character is an asset to the operation. However here a much more elaborate scheme was put in place, so as to make your good character secondary to the complexity of the proposed partnership. In this sense you good character is of some relevance.
…
I am of the view that your prospects of rehabilitation are good and that you are not likely again to re-offend, and specific deterrence can be accordingly moderated in your case. …
Of course, this Court must approach the matter of the respondent’s sentence on the basis that the jury’s verdict was correct; and hence that, although he may have hoped that there were not drugs in the suitcase he was given, the respondent remained throughout of the mindset that there was a real or significant chance that there were.[41],[42] That said, I fully agree with the sentencing judge, who, apart from finding the respondent to be a dupe and the victim of an elaborate swindle, also found that:
[41]Smith, 641 [71].
[42]I note that the burden of the evidence was that the respondent’s suspicions attached to the so-called ‘separation oil’ within the items of luggage, not to the bags themselves (see ibid 628–9 [16]–[18]). There was no evidence that the respondent was aware of the existence of any substance concealed within the lining of the suitcase and the laptop bag (see ibid 628 [15], 629 [20]), let alone that he had any intention to import that substance. The preponderant evidence established that the respondent’s intention was to import the substance referred to as the ‘separation oil’ contained within the two bottles inside the suitcase. As it transpired, no illicit substance was located in the bottles of separation oil to which the respondent’s suspicions had earlier attached, the heroin being concealed within the lining of the bags (see ibid 629–30 [22]–[24]).
· first, the respondent was a ‘type of courier’ and was ‘at the lowest end of this drug enterprise’, and falls to be sentenced ‘at the lower end of the category of courier’;
· secondly, the ‘amount of the drug is at the low end of the commercial quantity scale’;
· thirdly, the respondent’s moral culpability is ‘relatively low’;
· fourthly, the respondent’s good character is ‘of some relevance’;
· fifthly, the respondent has good prospects of rehabilitation and is unlikely to re-offend; and
· sixthly, specific deterrence does not need to be afforded much weight in the exercise of the sentencing discretion.
On the plea, the prosecution submitted in writing that general deterrence ought to be the primary consideration in fixing sentence, although it was acknowledged that ‘specific deterrence is unlikely to be a weighty factor in the sentencing process’. It was accepted that the court would likely find that the respondent has ‘a reasonable prospect of rehabilitation’ given his age; family circumstances; ‘the circumstances of offending’; the lack of relevant prior convictions; and the absence of factors like drug or gambling addictions motivating the offending. The prosecution also submitted to the sentencing judge that ‘so far as possible’ there must be national consistency in sentencing for federal offenders;[43] and, to that end, relied on a table of comparative sentencing cases decided between June 2009 and December 2014.[44]
[43]Hili v The Queen (2010) 242 CLR 520, 538 [57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Nguyen v The Queen (2011) 31 VR 673, 681 [30] (Maxwell P); R v Pham (2015) 256 CLR 550, 556 [18] (French CJ, Keane and Nettle JJ).
[44]The table included sentences imposed by judges of the District Court of New South Wales, County Court of Victoria and the Supreme Court of Queensland, and cases from the New South Wales Court of Criminal Appeal and Victorian Court of Appeal.
Plainly, it is necessary for this Court (as it was for the sentencing judge) to gain some sense of the range of sentences properly open for an offence such as the respondent’s. It is unnecessary to reproduce the table of comparative sentencing cases provided by the prosecution or to analyse in detail the individual facts of the cases within it. In relation to couriers who pleaded guilty to the importation of a commercial quantity of heroin, however, the table seemed to reflect a wide range of head sentences for broadly similar offending, commencing with 14 years’ imprisonment at the higher extremity[45] and culminating with four years’ imprisonment at the lower extremity (that sentence reflecting a significant discount for assistance to authorities).[46] Head sentences hovering in a band between eight and ten years’ imprisonment were common, as were sentences that were slightly lower or marginally higher.
[45]Zhang v The Queen [2011] NSWCCA 233 (Whealy JA, Latham and Harrison JJ). (The applicant was also involved in the importation of methylamphetamine.)
[46]R v Hu (Tiffany) (Unreported, 10 November 2014, Judge Syme, District Court, NSW).
Furthermore, being mindful of the limitations inherent in relying on a small cohort of cases, some general guidance as to the appropriate range of sentences for offending like the respondent’s might be gleaned from cases involving the importation of a marketable quantity[47] of heroin. Hence in Pham,[48] the appellant, who had been recruited by others to do so, imported 577.1 grams of heroin from Vietnam, arriving in Melbourne by aircraft. He pleaded guilty before a judge of the County Court to one charge of importing a marketable quantity of a border controlled drug — the present respondent imported a commercial quantity — contrary to s 307.2(1) of the Criminal Code (Cth).[49] The appellant, aged 41 years, was a courier who had travelled to Vietnam so as to obtain the drugs which he subsequently imported. He was to be paid $10,000 for his services. His prior history included a conviction for low level street trafficking in heroin in 1996, for which he received a community based order. The judge imposed a sentence of eight years and six months’ imprisonment with a non-parole period of six years. This Court, on appeal, set aside the sentence and resentenced the applicant to six years’ imprisonment with a non-parole period of four years.[50]
[47]A marketable quantity of heroin is two grams. See Criminal Code Regulations 2002 (Cth), Schedule 4, item 95, column 3.
[48]Pham v The Queen [2016] VSCA 259 (Redlich, Beach and Kaye JJA) (‘Pham’).
[49]The maximum penalty is 25 years’ imprisonment.
[50]See Pham v The Queen (2014) 244 A Crim R 252.
By a grant of special leave, the Commonwealth Director of Public Prosecutions appealed to the High Court of Australia. The High Court allowed the appeal and remitted the matter for rehearing.[51] On the remitter, the Court examined comparable cases and the range of available sentences.[52] Ultimately dismissing the appeal, this Court observed that while ‘the sentence imposed was towards the upper end of the range of sentences available for this offending, we are not persuaded that the sentence imposed was wholly outside the range of sentencing options reasonably available to the sentencing judge as revealed by those comparable cases’.[53]
[51]R v Pham (2015) 256 CLR 550.
[52]Pham, [22]–[28].
[53]Ibid [28].
Other cases of couriers importing a marketable quantity include Harper[54] and Bui.[55] In Harper, a 27 year old Thai national imported 222.38 grams of heroin (126.5 grams pure) into Australia in packages in her vagina and rectum. The wholesale value of the drugs was between $80,000 and $113,000, and the retail value was between $210,000 and $420,000. After pleading guilty, the appellant was sentenced in the County Court to five years’ imprisonment, with a non-parole period of three years. On appeal, a sentence of four years’ imprisonment, with a non-parole period of two years and four months, was substituted. In Bui, the respondent imported 280.28 grams of heroin (197.3 grams pure) concealed within her body. Estimated values of the heroin were between $71,680 and $100,800 wholesale, and between $164,400 and $328,800 retail. The respondent — who had given an undertaking under s 21E of the Crimes Act 1914 (Cth) to assist the authorities — pleaded guilty in the County Court to the importation of a marketable quantity of heroin, and was sentenced to be imprisoned for three years, it being ordered that she be released forthwith upon giving a recognisance of $5000 to be of good behaviour for three years. This Court allowed an appeal by the Director and re-sentenced the respondent to four years’ imprisonment, with a non-parole period of two years. A subsequent appeal to the High Court failed.[56]
[54]Harper v The Queen [2011] VSCA 314 (Ashley and Weinberg JJA) (‘Harper’).
[55]DPP (Cth) v Bui (2011) 32 VR 149 (Nettle and Hansen JJA and Ross AJA) (‘Bui’).
[56]Bui v DPP (Cth) (2012) 244 CLR 638.
The sentence in Pham — imposed on a courier who pleaded guilty to importing a marketable quantity of heroin (albeit a courier with a prior conviction for a drug offence) — stands in stark relief to the sentence imposed on the present respondent. And although the sentences in Harper and Bui are closer to that imposed upon the respondent in this case, those sentences were mitigated by pleas of guilty — and, in Bui, an undertaking to assist authorities — and did not involve a commercial quantity of heroin.
At the risk of repetition, given the High Court’s decision on the respondent’s conviction, this Court must recognise that the jury’s verdict was correct and must sentence in accordance with that verdict. Any sentence imposed must therefore be in recognition that the respondent intended to import a substance; that he was reckless as to it being a border controlled drug;[57] and that the quantity of border controlled drug imported was a commercial quantity.[58] Further, the amount of pure heroin imported was 2.415 kilograms — a commercial quantity being 1.5 kilograms[59] — with an estimated value between $2,371,600 and $3,985,410.
[57]See s 307.1(2) of the Criminal Code (Cth).
[58]By s 307.1(3) of the Criminal Code (Cth), the fault element with respect to commercial quantity is absolute liability.
[59]See Criminal Code Regulations 2002 (Cth), Schedule 4, item 95, column 2.
Given that the respondent’s is a federal offence, in a search for consistency it is necessary to be cognisant of sentences imposed throughout the Commonwealth in similar cases.[60] As I have endeavoured to indicate, a review of broadly equivalent cases reveals that the sentence imposed on the respondent is out of step with the general trend of sentences imposed for offending like his. That review provides some guidance as to sentencing patterns for offending similar to the respondent’s, and suggests a range of sentences against which to examine the impugned sentence.[61] Of course, that does not mean that the range of sentences disclosed is necessarily the ‘correct’ range or is otherwise determinative of the upper and lower limits of proper sentencing discretion.[62] But the sentencing decisions of other courts (in particular, other intermediate appellate courts) in comparable cases are ‘yardsticks’ which may serve to illustrate — although not define — the possible range of sentences available.[63] Intervention by this Court is not warranted on the ground of manifest inadequacy, however, unless, having regard to all of the relevant sentencing factors — including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases — the Court ‘is driven to conclude that there must have been some misapplication of principle’.[64]
[60]R v Pham (2015) 256 CLR 550, 558 [24].
[61]Ibid 558 [26].
[62]Ibid 558 [27].
[63]Ibid 560 [29].
[64]Ibid 559 [28](7).
In my view, the conclusion is inescapable that the sentence imposed on the respondent is manifestly inadequate. I come to that view reluctantly, given that I consider the respondent to have been an excessively religious man who foolishly believed that he was to be the recipient of God’s largesse. He was susceptible to the blandishments of others who exploited his gullibility. Contrary to the view expressed by the other members of the Court[65] — with which I respectfully disagree — in my opinion his moral culpability is low.
[65]See above at [30], [33] and [39].
The fact remains, however, that the head sentence imposed on the respondent is a little over three years in length, in circumstances where he could not call in aid the ameliorating influence of a plea of guilty. That sentence stands in marked contrast to the kinds of sentence ordinarily imposed for importing a commercial quantity of heroin, an offence which carries a maximum sentence of life imprisonment. Indeed, as a matter of impression, the sentence imposed upon the respondent is somewhat lower than what might be expected in a case where a courier has pleaded guilty to importing a marketable quantity of heroin. Even making due allowance for the respondent’s personal circumstances and the circumstances of the offending — in particular, the respondent’s low moral culpability — it is impossible to reconcile the sentence imposed upon him with those passed in broadly comparable cases. Although it is not difficult to see how in the circumstances of this case the sentencing judge’s sympathies might have been aroused, the sentence is so inadequate as to demonstrate error in the application of sentencing principle. Ground 3 — the complaint of manifest inadequacy — is made out.
To so conclude, however, is not the end of the matter. The Court must consider whether to exercise the residual discretion that it possesses to dismiss a prosecution appeal despite error having been demonstrated.
The respondent’s counsel submitted in writing that there ‘can be few offenders who come before a sentencing Court a second time and are better candidates to have exercised in their favour the Court’s residual discretion not to intervene even, if satisfied that error has been made out’.[66] It was submitted that since his arrest in March 2014, the respondent has been ‘convicted twice, acquitted once, and gaoled and released (in total) four times’, and it ‘is now more than three years since his arrest and first incarceration (on remand)’. The respondent’s counsel submitted that his adoptive mother and brother-in-law died while he was serving his sentence, but he was unable to mourn them with his family. From the moment of his arrest, his and his family’s lives have ‘remained on hold’. He has not, however, ‘attracted the attention of the criminal law’ and has gone some way to vindicating the sentencing judge’s findings that his ‘prospects of rehabilitation are good’ and that he is ‘not likely again to re-offend’. Moreover, it is submitted that the respondent’s deportation is now ‘an inevitability’, in circumstances where he and his wife ‘had intended that Australia would be their new, and permanent, home’.
[66]Citing DPP v Karazisis (2010) 31 VR 634, 659 [109]–[110] (Ashley, Redlich and Weinberg JJA).
On the other hand, the appellant submitted that should this Court find the head sentence and non-parole period imposed to be manifestly inadequate, it ‘should not exercise its residual discretion and decline to interfere with the sentence below’. This is not a case, so the appellant argued, where the respondent has served the whole or a substantial portion of a community based sentence or where this Court is being asked immediately to imprison a person in circumstances where the original sentence involved ‘non-confinement’. The appellant submitted that, whilst the respondent has served the minimum term of the sentence of imprisonment originally ordered, if the appeal is allowed the respondent will not ‘be required to return to prison for only a short period of time’; since, should this Court be satisfied that error has been made out, the respondent ‘should be required to serve an additional period of imprisonment far in excess of the [two] year period already served’. It was submitted that the fact that the respondent has not reoffended since his release from custody, and that he and his family have been placed in a state of uncertainty, are not in any way unusual features in a case such as this. Moreover, it was contended that there is no evidence of the existence of any anxiety or distress afflicting the respondent as a result of the bringing of the appeal, nor is there evidence that any such psychological condition would be worsened should the respondent be returned to custody;[67] and ‘it is not possible to assert definitively … that his deportation will be inevitable upon release from any further term of imprisonment he may be required to serve’.[68]
[67]Citing Bui v DPP (Cth) (2012) 244 CLR 638.
[68]Citing Da Costa v The Queen (2016) 307 FLR 153, 164 [53].
Notwithstanding the cogency of the submissions of counsel for the respondent, in my view this is not a case in which it is appropriate to exercise the residual discretion.
In CMB,[69] French CJ and Gageler J discussed the application of the residual discretion:[70]
[69]CMB v A-G (NSW) (2015) 256 CLR 346.
[70]Ibid 358–60 [33]–[36].
Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as ‘residual’ ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in [a Crown appeal] to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust.[71] The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in [a Crown appeal] to demonstrate that the discretion should be exercised.
[71]Markarian v The Queen (2005) 228 CLR 357 at 371 [28]; Carroll v The Queen (2009) 83 ALJR 579 at 581 [7]; 254 ALR 379 at 381, citing House v The King (1936) 55 CLR 499 at 504-505; Bugmy v The Queen (2013) 249 CLR 571 at 597 [51].
Accordingly, as Heydon JA succinctly put it in R v Hernando:[72]
[72](2002) 136 A Crim R 451 at 458 [12].
‘if [the Court of Criminal Appeal] is to accede to the Crown’s desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge’s discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.’
The Court of Criminal Appeal, in this case and in R v Smith,[[73]] was wrong to depart from that statement of the law.
The second of the two hurdles to which Heydon JA referred in R v Hernando has a statutory foundation and a systemic significance. Before s 5D of the Criminal Appeal Act was amended to add reference to the DPP, Barwick CJ said in Griffıths v The Queen:[74]
‘On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.’
With the clarification that the reference to ‘matter of principle’ by Barwick CJ ‘must be understood as encompassing what is necessary to avoid … manifest inadequacy or inconsistency in sentencing standards’,[75] his Honour’s explanation of the nature of an appeal under s 5D has since been said to represent ‘general and authoritative guidance to the Courts of Criminal Appeal of this country’.[76] It expresses the ‘limiting purpose’ of an appeal under s 5D, and in so doing provides ‘a framework within which to assess the significance of factors relevant to the exercise of the discretion’.[77]
Having found the sentence pronounced by [the sentencing judge] to be manifestly inadequate, the critical error of the Court of Criminal Appeal in the present case was to treat the residual discretion thereby enlivened as a hurdle for CMB to surmount rather than as the second of the hurdles for the Attorney-General to surmount. Contrary to the submission of the Attorney-General in this Court, it cannot be concluded that the error was immaterial.
[73][R v Smith [2007] NSWCCA 100.]
[74](1977) 137 CLR 293 at 310.
[75]Everett v The Queen (1994) 181 CLR 295 at 300. See also Munda v Western Australia (2013) 249 CLR 600 at 623-624 [68]-[69].
[76]Malvaso v The Queen (1989) 168 CLR 227 at 234.
[77]Green v The Queen (2011) 244 CLR 462 at 477 [36]. See also Malvaso v The Queen (1989) 168 CLR 227 at 234–235.
To permit the respondent’s sentence to endure would be to permit a manifestly inadequate sentence to stand and to countenance an erosion of sentencing standards for the offence of importing a commercial quantity of heroin. In accepting the appellant’s submission that the residual discretion should not be exercised, and in rejecting the respondent’s submission that it should, I have not ignored the fact that there has been considerable delay in finalising the appeal — delay for which the respondent should not be blamed — or the fact that the respondent has completed the non-parole period imposed by the trial judge.[78] Those are weighty considerations. The respondent’s sentence is so inadequate, however, and so out of keeping with proper sentencing standards, that those considerations cannot outweigh the need for this Court’s intervention so as to promote — as a matter of principle — the maintenance of adequate and consistent national sentencing standards.
[78]See R v Smallacombe (Unreported, Victorian Court of Criminal Appeal, Crockett, Hampel and Coldrey JJ, 28 October 1993); DPP v Bourozikas [2009] VSCA 29, [32]; DPP (Cth) v Hizhnikov (2008) 192 A Crim R 69, 74–5 [28]–[30]; R v Martin [2005] VSCA 140, [37]–[38]; DPP v Anderson [2005] VSCA 68, [58]–[59]; DPP v Fevaleaki (2006) 165 A Crim R 524, 530 [24]; R v Best (1998) 100 A Crim R 127, 132; DPP v Wilson (2000) 1 VR 481, 487–8 [18]; DPP v Higgs (2010) 28 VR 101, 109–10 [37]; DPP v Karazisis (2010) 31 VR 634, 657–60 [99]–[115]. See also Fiori Rinaldi, ‘Dismissal of Crown Appeals Despite Inadequacy of Sentence’ (1983) 7 Crim LJ 306.
I respectfully differ from the other members of the Court, however, as to the sentence now to be imposed. Given the unusual circumstances of this case, and despite the absence of the mitigating effect of a plea of guilty, in my opinion it is appropriate to impose a markedly lenient sentence, very much towards the lowermost extremity of the available range. Such a course is justified by the respondent’s current circumstances — including, but not limited to, the very real prospect of deportation (and the effect that the contemplation of that prospect will have on his time in custody) — he now falling to be sentenced according to those circumstances.[79] Thus, I would impose a sentence of six years’ imprisonment. In light of the respondent’s good prospects of rehabilitation and other mitigating features, I would fix a non-parole period of three years.
[79]DPP v Karazisis (2010) 31 VR 634, 660 [114]; DPP vLeys (2012) 44 VR 1, 62 [178]. See also Kentwell v The Queen (2014) 252 CLR 601, 618 [43]; Betts v The Queen (2016) 258 CLR 420, 423 [2].
For the sake of completeness, I should indicate that I agree with the reasons of the majority of the Court with respect to ground 2. I would, however, reject the contention implicit in ground 1 that the sentencing judge’s finding that the respondent’s moral culpability was low was based substantially on the fact that the fault element as to circumstances was recklessness. With respect, when the sentencing judge’s reasons are considered in their full context, the judge’s finding that the respondent’s moral culpability was low was based primarily upon his assessment of the respondent as a ‘dupe’ and as a ‘naïve, uneducated man’ who was ‘vulnerable as a victim of a relatively sophisticated international internet scam’.
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