DPP (Cth) v Masange
[2017] VSCA 204
•30 August 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0124
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| KIZA MORDACAI MASANGE | Respondent |
S APCR 2016 0126
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| GILBERT KACHUNGA | Respondent |
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| JUDGES: | MAXWELL P, REDLICH JA and BEALE AJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 17 October 2016 | |
| DATE OF JUDGMENT: | 30 August 2017 | |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 204 | First Revision: 29 November 2017 (footnote 129 correction) |
| JUDGMENT APPEALED FROM: | DPP v Masange [2016] VCC 739 (Judge Bourke); DPP v Kachunga [2016] VCC 806 (Judge Bourke) | |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Import commercial quantity of border controlled drug – Rolled-up charge – Ten separate importations – 3.2 times commercial quantity – Total effective sentence seven years and six months’ imprisonment – Non-parole period four years – Whether manifestly inadequate – Plea of guilty – Significant role in criminal hierarchy – Considerable reward expected – Offending over period of months – Disadvantaged background – Rehabilitation – Comparable cases – Prosecutor’s duty to assist sentencing judge to avoid appealable error – Whether silence productive of error – Whether residual discretion should be exercised – Appeal allowed – Parity considerations – Respondent resentenced – Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; Director of Public Prosecutions (Cth) v Thomas (2016) 315 FLR 31 discussed – Criminal Code Act 1995 (Cth) s 307.1.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Possess commercial quantity of border controlled drug – 3.7 times commercial quantity – Attempt to possess marketable quantity of border controlled drug – 0.67 times commercial quantity – Total effective sentence five years’ imprisonment – Non-parole period two years and six months – Whether manifestly inadequate – Plea of guilty – Trusted operative – Modest reward expected – Disadvantaged background – Comparable cases – Respondent released on parole while appeal pending – In full-time employment, stable relationship – Whether residual discretion should be exercised – Appeal dismissed – Criminal Code Act 1995 (Cth) ss 307.6, 307.8.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
| For Respondent Masange | Mr J Gullaci | Stephen Andrianakis & Associates |
| For Respondent Kachunga | Mr D Gurvich QC with Mr P Smallwood | Paul Vale Criminal Law |
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MAXWELL P
REDLICH JA:
We have had the considerable advantage of reading in draft the reasons for judgment of Beale AJA. His Honour has set out the relevant circumstances of the offending and the personal circumstances of each offender. He has comprehensively reviewed the comparable cases to which we were referred and has concluded that the sentences imposed on both respondents were manifestly inadequate, that is, outside the range reasonably open to the judge in the circumstances of the case.[1]
[1]DPP v Karazisis (2010) 31 VR 634, 662–3 [127]–[128] (‘Karazisis’).
We respectfully agree with that conclusion, and with his Honour’s reasons for it. His Honour would, however, dismiss both appeals in the exercise of the residual discretion which the Court has on a Crown appeal.[2] In his Honour’s view, that discretion should be exercised
because of the inadequate assistance given by the Director to the primary judge in relation to current sentencing practices and the failure of the Director to take issue with critical and unambiguous defence submissions in that regard.[3]
[2]Ibid 657–60 [99]–[115].
[3]See below [75].
For reasons which follow, we respectfully disagree. It is true, as Beale AJA explains, that the prosecutor gave the sentencing judge little assistance in identifying ‘what sentences have been imposed in other (more or less) comparable cases’.[4] That failure is rightly to be deprecated. The task of sentencing judges is difficult enough without their having to sift — as the judge in the present case had to do — through detailed schedules in order to identify those cases which relevantly shed light on the sentencing task.
[4]Barbaro v The Queen (2014) 253 CLR 58, 74–5 [4] (‘Barbaro’).
Nor is this the first occasion on which this Court has been critical of the level of assistance provided to a sentencing court by counsel appearing for the Commonwealth Director.[5] Counsel appearing for the Director on these appeals properly conceded that sentencing for drug importation offences is an onerous task, particularly because of the need to ensure national consistency in sentencing, and that judges were therefore entitled to expect ‘a great deal of assistance’ from the Commonwealth.
[5]See Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, 684 [38]–[39] (‘Nguyen & Phommalysack’); DPP (Cth) v KMD (2015) 254 A Crim R 244, 247 [5], 260–2 [67]–[73] (‘KMD’) DPP (Cth) v Thomas (2016) 315 FLR 31, 90–1 [179]–[180] (‘Thomas & Wu’).
But it is a serious thing to decline to correct an inadequate sentence solely because of an omission on the part of the prosecutor on the plea.[6] In our view, that course would not be warranted unless the prosecutor’s omission were shown to have caused the error subsequently complained of by the Crown on the appeal.
[6]See Thomas & Wu (2016) 315 FLR 31.
In the Masange appeal, what is said to warrant the exercise of the residual discretion is the failure of the prosecutor to contest a submission by counsel for Masange that his offending ‘best approximated’ to the lowest of four categories identified by McClellan CJ at CL in Director of Public Prosecutions (Cth) vDe La Rosa.[7]As the authorities discussed below make clear, there is an important distinction to be drawn between a case where the prosecutor makes a specific submission or concession which is productive of error — as in Director of Public Prosecutions v Holder (a pseudonym)[8] — and a case like the present, where reliance is placed on the prosecutor’s silence.
[7](2010) 79 NSWLR 1 (‘De La Rosa’).
[8](2014) 41 VR 467 (‘Holder’).
Whether a prosecutor’s silence should be held to have led the sentencing court into error will, of course, depend on the circumstances. It will depend, in particular, on the subject-matter and context of the defence submission (or judicial comment) to which it is said the prosecutor should have responded. For reasons which follow, we do not consider that the prosecutor’s silence on this particular point amounted to an implied concession of any kind. The residual discretion is therefore not engaged.
Counsel for Mr Kachunga also submitted that, if we concluded that his sentence was manifestly inadequate, we should nevertheless dismiss the appeal in the exercise of the residual discretion. At the hearing of the appeal, counsel relied on the lack of assistance provided to the sentencing judge by the prosecutor but conceded they could not rely, as Mr Masange had done, on the prosecutor’s silence. Counsel drew attention to the fact that Mr Kachunga would be eligible for release on parole on 12 March 2017. They submitted that any increase in his sentence would defeat his expectation of imminent release and that this was relevant to the exercise of the discretion.
Had those been the only relevant discretionary matters in Mr Kachunga’s case, we would have declined to exercise the residual discretion and would have upheld the appeal against his sentence. In those circumstances, we would have taken the course identified by Beale AJA and resentenced him on charge 2 to four years’ imprisonment and on charge 3 to six years and six months’ imprisonment. We would have cumulated 12 months of the sentence on charge 2, making a total effective sentence of seven years and six months’ imprisonment. We would have imposed a non-parole period of four years and six months.
As will appear, however, we were informed shortly before judgment was to be delivered on 14 August 2017 that Mr Kachunga had been released on parole on 12 March 2017 and that his counsel wished to rely on his change of circumstances as an additional factor bearing on the residual discretion. As explained below, we have concluded that the residual discretion should be exercised and, accordingly, we decline to intervene to correct what is a manifestly inadequate sentence.
In the case of Mr Masange, we would allow the appeal against sentence. Had it not been for the parity consideration which arises because of dismissal of the appeal in relation to Mr Kachunga, we would have resentenced him as proposed by Beale AJA. That is, we would have resentenced him on charge 1 to 11 years’ imprisonment. On the other charges, we would have imposed the same sentences, and made the same orders for cumulation, as the sentencing judge did. That would have resulted in a total effective sentence of 11 years and six months’ imprisonment and we would have fixed a non-parole period of seven years.
For the reasons given, however, Mr Kachunga’s sentence will remain unchanged. The constraint of parity means that Mr Masange must now receive a lesser sentence than he would otherwise have received. We would therefore resentence him on charge 1 to nine years’ imprisonment. We would not alter the other sentences or the orders for cumulation made below. That produces a total effective sentence of nine years and six months’ imprisonment and we would fix a non-parole period of six years.
The residual discretion
In Karazisis, this Court described the range of different circumstances in which the residual discretion might be exercised. Relevantly for present purposes, Ashley, Redlich and Weinberg JJA said:
[T]he court might well exercise its residual discretion to dismiss a Crown appeal in circumstances where the prosecutor at first instance failed to discharge his or her responsibility to the court adequately. For example, the Crown will not ordinarily be permitted to put submissions on appeal that were not advanced below. Nor will the Crown ordinarily, on appeal, be permitted to resile from a concession made at first instance that a particular sentence would be within the range reasonably available to the sentencing judge. The right given to the Crown to appeal against sentence is not designed to permit it to raise, for the first time, matters that should have been ventilated at first instance.[9]
[9]Karazisis (2010) 31 VR 634, 660 [115] (citations omitted).
More recently, in CMB v Attorney General (NSW), the High Court majority said:
[T]he prosecutor is under a duty to assist the court to avoid appealable error. Where the sentencing judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate, the prosecutor discharges his or her duty to the court by so submitting. The failure to do so is a material consideration in the exercise by the Court of Criminal Appeal of the residual discretion. The weight of that consideration will depend upon all of the circumstances. A prosecution concession that a non-custodial sentence is an available disposition is a powerful consideration weighing against intervening to impose a sentence of imprisonment on appeal.[10]
[10](2015) 256 CLR 346, 369 [64] (Kiefel, Bell and Keane JJ) (emphasis added) (citations omitted) (‘CMB’).
This circumstance — the identification of ‘the form of proposed sentencing order’ — has featured prominently in cases involving the residual discretion, a number of which were cited in CMB. Thus, in R v Wilton,[11] the sentencing judge had imposed a sentence of imprisonment which he had then suspended for three years. On the Crown appeal, it was submitted that the sentence ought not to have been suspended. The prosecutor had said nothing on the plea against the suspension of the sentence. The Full Court held that this was no bar to the Crown appeal succeeding. The prosecutor ‘had little or no warning that suspension was contemplated’ and ‘could hardly have anticipated that the learned judge would resort to an unmentioned extraneous consideration as the basis for suspending the sentence.’[12]
[11](1981) 28 SASR 362 (‘Wilton’).
[12]Ibid 368.
King CJ approved the following statements from the judgment of the Full Court of the Federal Court in R v Tait:
It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown’s presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error.
…
The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal.
…
Although the existence of error is the common ground which entitles the appellate court to intervene in appeals by the Crown and by a defendant … there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error …[13]
[13](1979) 24 ALR 473, 476–7 (emphasis added) (citations omitted), cited in Wilton (1981) 28 SASR 362, 368.
In R v Jermyn,[14] the sentencing judge had released the offender on a four year good behaviour bond. The Crown appealed the sentence on the ground of manifest inadequacy. It was common ground on the appeal that the sentencing judge had expressed the view that a non-custodial disposition was appropriate and had asked the prosecutor if he had any objection to that course being followed. The prosecutor had said that he had no objection.
[14](1985) 2 NSWLR 194 (‘Jermyn’).
The New South Wales Court of Criminal Appeal concluded that the sentencing decision was ‘manifestly erroneous’[15] but, as a matter of discretion, declined to exercise its appellate authority to correct the inadequacy. It did so on the basis that the prosecutor had failed to assist the sentencing court to avoid appealable error. McHugh JA said:
Only in the rarest of cases, if at all, would a private litigant be allowed to appeal against the exercise of a discretionary judgment in respect of a ground which he had expressly conceded was open in the court below. No doubt the public interest in having proper sentences imposed upon offenders makes the case of the private appeal an imperfect analogy. But when the Attorney-General on behalf of the Crown asks the court to set aside a sentence on a ground which was conceded in the court below, I think that this Court in the exercise of its undoubted discretion should be slow to interfere.[16]
[15]Ibid 205.
[16]Ibid 204 (Street CJ and Lusher J agreeing).
In R v Allpass,[17] the New South Wales Court of Criminal Appeal again declined to intervene to correct a non-custodial sentence which it concluded was unduly lenient. The Court treated as a ‘significant discretionary factor’ the circumstance that, on the plea, the prosecutor had submitted to the judge that the course which he ultimately took would be appropriate.[18]
[17](1993) 72 A Crim R 561 (‘Allpass’).
[18]Ibid 566.
As can be seen, in the two instances where the residual discretion was exercised, the prosecutor had expressly conceded that the proposed form of sentencing order was appropriate. In the third case, by contrast, the prosecutor had been silent on the question of disposition and the Court held that, in the circumstances, this did not constitute a concession.
In Director of Public Prosecutions v Waack,[19] this Court declined to exercise the residual discretion notwithstanding an express concession by the prosecutor on the plea that a suspended sentence was ‘within range’. As Phillips JA explained, the circumstances in which the judge had elicited the concession were of critical importance:
In my opinion, the ‘concession’, such as it was, was dragged from the prosecutor. This was not a case in which prosecuting counsel submitted that a suspended sentence was appropriate: the judge pressed counsel and, even then, counsel was not prepared to say whether a suspended sentence was ‘an error of law or not’. But he went on to add that ‘to give him [the offender] an opportunity by suspending it’ was within the range. Whether counsel had in mind suspending the whole of the sentence is of course not clear although, not surprisingly, respondent’s counsel submitted to us that because the prosecutor added no qualification, he should be taken as having ‘acquiesced in’ the suspension of the whole sentence. But even were that so — and I do not accept that it was — the weight to be given that ‘acquiescence’ is a matter for the court and in all of the circumstances I would not regard it as so strong or so plain that it should now preclude the director’s submitting, on appeal, that the sentence of 18 months’ imprisonment, wholly suspended, was manifestly inadequate.[20]
[19](2001) 3 VR 194 (‘Waack’).
[20]Ibid 208 [34] (Batt and Chernov JJA agreeing) (emphasis added).
In Waack, Phillips JA considered Wilton, Jermyn and Allpass. He also discussed two earlier Victorian decisions, R v Economedes[21] and R v Morris,[22] in each of which the prosecutor had made no submission as to whether a non-custodial sentence was appropriate. In Economedes, the silence was treated as an implied concession; in Morris it was not. As Phillips JA explained, everything depended on the circumstances:
Economedes, another appeal by the Crown against a non-custodial sentence, was in treatment and result, not unlike Jermyn, although in this instance prosecuting counsel had in fact made no submission below about sentence. But counsel had expressly refrained from making any submission and, on appeal, he was treated as if he had thereby made a concession on behalf of the Crown. Crockett J, speaking for the Court of Criminal Appeal, described how the sentencing judge had specifically asked prosecuting counsel if he wished to make any submission to the effect that a non-custodial sentence was not a proper option, to which counsel had replied: ‘No, I don’t seek to make any submissions.’
…
Counsel’s expressly refraining from making any submission when invited to address on the appropriateness of a non-custodial sentence was apparently regarded by his Honour as sufficient to ‘found an inference that the Crown’s opinion was that a non-custodial sentence … was appropriate’ (to use his Honour’s words in the later case of R v Morris). Such an attitude was in marked contrast to the Crown’s position on appeal and, as in Jermyn, that departure was not permitted.
Economedes may be contrasted with Morris; for although this too was a Crown appeal against a non-custodial sentence where the prosecutor had made no submission on sentence below, in this instance his silence on the topic could not be seen as anything more than that. Again speaking for the court, Crockett J referred first to Jermyn, stating the substance of the decision and adding: ‘This court has in the past in unreported decisions adopted a like stance in similar circumstances.’ His Honour then went on to distinguish Jermyn. In that case, he said, ‘the judge sought the Crown’s assistance upon whether it would be erroneous to deal with the matter on a non-custodial basis and the Crown specifically informed the judge that it would not be erroneous’; whereas in Morris the prosecutor had simply ‘remained silent while the burden of the respondent’s plea in mitigation was that a non-custodial sentence should be treated by the judge as appropriate in all the circumstances’. The prosecutor’s silence was not regarded, said Crockett J, as otherwise than ‘in conformity with the discharge of his duties as prosecutor’; in particular his silence could not in the circumstances of that case ‘found an inference that the Crown’s opinion was that a non-custodial sentence alone was appropriate’. His Honour concluded: ‘Nothing in what was done could serve to denote Crown acceptance that a non-custodial sentence was a correct disposition.’ The contrast with Jermyn could not then have been more marked.[23]
[21](1990) 58 A Crim R 466 (‘Economedes’).
[22][1993] 2 VR 192 (‘Morris’).
[23]Ibid 202–3 [20]–[21] (citations omitted).
A very recent decision of this Court highlights the significance of a prosecutor’s failure to take issue with ‘the form of proposed sentencing order’. In Director of Public Prosecutions (Cth) v Haynes,[24] defence counsel on the plea had submitted — both in writing and orally — that a recognisance release order (‘RRO’) was appropriate. The prosecutor made no response to that submission. The Court held that this circumstance enlivened the residual discretion. The Court said:
The joint reasons of the High Court in Barbaro make clear that, although the prosecution should not express an ‘opinion’ as to the numerical terms of the appropriate sentencing range, it has a duty to assist the sentencing court to avoid appealable error and may do so in a variety of ways. That duty includes identifying ‘the kind of sentence disposition that is appropriate or inappropriate’. Thus, in both Malvaso v The Queen and Everett v The Queen, the Crown was precluded from challenging a suspended sentence on appeal given that the prosecution had not opposed it at the time of sentencing.
…
It was accepted by senior counsel for the Director in oral submissions that appeals mounted by the Director must be held to a high standard. Those standards apply to the discharge of the prosecutorial obligation on the plea and on an appeal. The prosecutor failed to submit that a RRO was not a disposition reasonably open to the sentencing judge. As such, the judge was entitled to assume that the prosecutor’s reference to an ‘immediate term’ of imprisonment indicated only that the Crown was opposed to the contention that the recognisance take effect forthwith, resulting in the respondent’s immediate release. No suggestion was made that a pre-release period under a RRO was inappropriate. As we have said, the duration of the pre-release period falls to be determined by the application of the same principles as are applied to a non-parole period. That further implies that the sentencing judge was entitled to assume that a pre-release period, very substantially less than the total effective sentence under the RRO, would have been within the Crown’s contemplation or, at the very least, that the Crown did not oppose such a disposition.[25]
[24][2017] VSCA 79 (‘Haynes’).
[25]Ibid [58], [61] (citations omitted).
The Court in Haynes also cited with approval the following statement of the majority in Matthews v The Queen:[26]
Nothing said in Barbaro detracts from the Crown’s obligation to make clear what type of sentencing disposition, whether imprisonment or otherwise, it contends is necessary or appropriate. It remains that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner. It has a duty to assist the sentencing judge to avoid appealable error … If it is submitted for an offender that he or she should receive a non-custodial disposition or a suspended term of imprisonment, the Crown should make clear whether it contends, and if so why, a disposition of the kind proposed would not be a proper exercise of sentencing discretion.[27]
[26](2014) 44 VR 280 (‘Matthews’).
[27]Ibid 292 [27] (Warren CJ, Nettle and Redlich JJA) (citations omitted), cited in Haynes [2017] VSCA 79 [59].
In other recent cases before this Court, the residual discretion was exercised because the sentencing court had been led into error by a submission advanced, or a concession expressly made, by a prosecutor. In Holder, the appeal concerned a sentence imposed for trafficking a large commercial quantity of a drug of dependence. The prosecutor had made two specific errors. First, in making a submission on parity, he failed to point out that the co-offender’s sentence was ‘extraordinarily low’ and hence could provide no meaningful guidance in the parity analysis. Secondly, the prosecutor expressly conceded that the offender’s culpability was reduced to the extent that the drugs he trafficked did not in fact reach the public. That concession was wrong in law.
The Court said:
Thus, if the sentence now under appeal was manifestly inadequate — that is, outside the range reasonably open in the circumstances of the case — its inadequacy is the product of the two matters exposed by the Director’s change of position on the appeal. The first is the prosecutor’s failure to open up for the judge’s consideration whether the very low sentence imposed on the co-offender should have had any real bearing on the sentencing of Mr Holder. The second is the prosecutor’s error concerning culpability.
This court has a well-established discretion to dismiss a Director’s appeal in circumstances such as these. This is a case which calls for the exercise of that discretion. Put simply, the already-difficult task confronting a sentencing judge becomes almost impossible if the judge is led into error by things said, or left unsaid, by the prosecutor on the plea, and then complaint is made by the Director on appeal about the resulting error in the sentence.[28]
[28]Holder (2014) 41 VR 467, 469 [7]–[8].
In Director of Public Prosecutions v Frewstal Pty Ltd,[29] the appeal concerned a sentence imposed on three offences under the Occupational Health and Safety Act 2004. The Court held that the residual discretion was engaged because the prosecution had not challenged, on the plea, the offender’s submission that it was appropriate to impose an aggregate sentence for the three offences. As Priest and Kaye JJA said:
That stance carried with it an implied concession by the prosecution that the three offences were founded on the same facts, or formed or were part of a series of offences of the same or a similar character.[30]
[29](2015) 47 VR 660 (‘Frewstal’).
[30]Ibid 685 [122].
Their Honours continued:
Further, the prosecution put before the judge a table of cases, which, although misconceived, seemed to illustrate that, on current sentencing practices, the highest penalty imposed was $475,000. As we have said, the very experienced prosecutor did not challenge the proposition put by the respondent’s counsel that the ‘upper range’ was around $400,000. Moreover, as we have said, the prosecutor had put that the offending was ‘mid to high level’.[31]
[31]Ibid 685 [123].
The Court’s conclusion was that any deficiency in the sentence was to be explained by the shortcomings in the presentation of the prosecution case on the plea.[32]
[32]Ibid 675 [73] (Maxwell P), 685 [124] (Priest and Kaye JJA).
The present case
The written submission for Masange on the plea included the following extract from the judgment of Maxwell P in Nguyen & Phommalysack.
[In De La Rosa, McClellan CJ at CL] reviewed a large number of sentencing decisions, which he grouped into the categories set out in the table below. It should be emphasised that this classification was intended to be descriptive of current sentencing practice and hence to promote consistency of sentencing in future. His Honour was not purporting to lay down quantitative sentencing guidelines. (The Court of Criminal Appeal subsequently made use of this categorisation in Nguyen & Pham.)
Import commercial quantity
Customs Act 1901 (Cth) s 233B and
Criminal Code Act 1995 (Cth) s 307.1Range of sentences imposed Head sentence Non-parole period Group 1 High quantity (tens or hundreds of kilograms); high value (tens of millions of dollars); large reward (hundreds of thousands of dollars) although finding of reward not required; not guilty plea in half of cases; no assistance; no remorse; mastermind, principal or part of organising committee; high degree of responsibility 25y to life 8y 6m–30y Group 2 High quantity; high value; guilty plea; principal, member of upper management or ‘essential’ role with moderate to very high level of responsibility; reward in tens of thousands of dollars although finding of reward not indicative 18–
24y 6m10–
16yGroup 3 Quantity generally below 7 kg; mid-range role; discount for assistance, cooperation; plea not indicative 8–
15y4–
11yGroup 4 No prior convictions; good antecedents; quantity not indicative; plea not indicative although discount provided for early plea; role not indicative although generally part of syndicate 6y 3m–
8y3–
4y 6mTo have current sentencing practice distilled in this accessible fashion is of the greatest assistance. It should certainly be conducive to consistency. I gratefully acknowledge McClellan CJ’s very considerable labour in reviewing more than 80 sentencing decisions, which enabled his Honour to produce this classification of sentencing decisions based on clusters of key features.[33]
[33](2011) 31 VR 673, 683–4 [36]–[37] (emphasis added) (citations omitted).
The written submission for Masange continued in these terms:
It is submitted that the offending in this case best approximates to the Group 4 category listed above.
The accused also refers to the schedule of cases submitted to the Court by the Crown.
There was no elaboration of either of these propositions, either in writing or orally.
On the plea, the prosecutor informed the judge that the only real dispute between the parties concerned the role played by Mr Masange. The Crown’s submission was that he had played ‘a significant role’ in the importation of the drugs and that he was ‘the head of his syndicate, which was a Congolese syndicate’. Further, the prosecutor submitted that Mr Masange was
in a responsible position. He seemed to be very high up the hierarchy. Nobody else has been identified as being higher than him.
Defence counsel immediately addressed the question of role, proceeding to give
a brief outline of the history [to] provide a much firmer foundation for a view about his role and why it is as to there being no other people the police have found higher than him.
Ultimately, defence counsel characterised his client’s role as that of an ‘intermediary’.
Defence counsel then referred to a decision of the County Court in the matter of Director of Public Prosecutions (Cth) v Wu[34] (which Beale AJA discusses at paragraph 116) before drawing the judge’s attention to the four categories in De La Rosa. Counsel continued:
[34][2016] VCC 141 (‘Wu’). The Director was subsequently successful in appealing the sentence in this matter on the ground of manifest inadequacy. See Thomas & Wu (2016) 315 FLR 31.
I’d say that this looks like a Group 4 offence, which tends to give a range of sentences there and it was endorsed by His Honour, the President of the Court of Appeal.
The following exchange then took place:
HIS HONOUR: To the extent that I impose current sentencing practices, I should look across the range of sentences.
DEFENCE COUNSEL: Of jurisdictions.
HIS HONOUR: Yes, and ---
DEFENCE COUNSEL: I accept that and what this table seems to do is exactly that. It says at the bottom above [93], ‘To have current sentencing practice distilled in this accessible fashion is of the greatest assistance. It should certainly be conducive to consistency’,[35] and His Honour thanks the Chief Justice of the New South Wales Supreme Court for this review. So in my submission this actually qualifies as a — the type of ranges that would cover the Commonwealth sentencing field, subject to what my learned friend says.
HIS HONOUR: Well, you’re often given a — you’re often given a table of cases by the Crown.
DEFENCE COUNSEL: Yes, and I think there’s one on — in the offing.
HIS HONOUR: I must admit I find them helpful.
DEFENCE COUNSEL: Yes. Well, that’s ---
PROSECUTOR: I can indicate, Your Honour, these are some tables.
HIS HONOUR: Yes, I can see you’ve got the spreadsheet there.
PROSECUTOR: Waving — waving the three pages about.
DEFENCE COUNSEL: But all that being said, I focus on Wu, Your Honour, because in my submission it’s a very recent case, it’s very similar offending, 3,194 grams, more than here, but we have the money transfer as well that Your Honour will have to deal with. Twenty-eight years old, similar age, similar type of involvement — opened accounts. I’ve called it unsophisticated to contrast it with the people involved at other levels.
[35]This was a quotation from Nguyen & Phommalysack (2011) 31 VR 673, 684 [37].
Several points should be made about this passage. First, as can be seen, defence counsel’s reference to De La Rosa consisted of the single statement that ‘this looks like a Group 4 offence’. Counsel did not develop that submission in any way. In particular, he made no attempt to explain to the judge what were said to be the relevant characteristics of a ‘Group 4 offence’ or to identify those features of his client’s case which would bring it within that category.
The lack of elaboration may well be explained by the terms in which McClellan CJ at CL defined ‘Group 4’. As can be seen from the table set out above, the language which McClellan CJ at CL used made Group 4 a category of wholly indeterminate reference. The phrases ‘quantity not indicative; plea not indicative …; role not indicative …’ meant that there was no intelligible basis on which a particular case could be said to ‘fall within’ that category. It was a category without identifying characteristics. As counsel appearing for Mr Masange on the appeal (who did not appear on the plea) properly conceded, considerations of role and quantity are critical to the determination of an appropriate sentence in a case such as this and, in relation to those issues, ‘Group 4’ in De La Rosa was incapable of meaningful application.
Secondly, and in any event, as counsel for the Director pointed out on the appeal, the reliance placed on De La Rosa for this purpose was misconceived. In the subsequent decision of R v Holland,[36] published after Nguyen & Phommalysack, McClellan CJ at CL had said:
Much of the argument in the appeal focused upon the ‘Categories of offence’ which I developed in the course of my reasons in Director of Public Prosecutions (Cth) v De La Rosa. Some of my remarks may have been misunderstood. When preparing my reasons in De La Rosa it became increasingly apparent that there were many significant decisions with respect to the sentence for individual offenders which had never been gathered together and analysed. The number is such that to merely list them without further classification was likely to be of modest assistance to practitioners and judges required to sentence future offenders. As I said in my reasons in De La Rosa, so as to assist others to readily access the information I grouped the decisions by reference to common characteristics, so far as they could be identified. However it would be wrong to sentence an offender by seeking out the ‘category’ into which they fit and imposing a sentence which is thought to be appropriate for an offence which happens to have the characteristics found in that category.[37]
[36](2011) 205 A Crim R 429 (‘Holland’).
[37]Ibid 431 [3] (emphasis added) (citations omitted).
In our opinion, given that De La Rosa was decided in 2010, it was incumbent on counsel before citing that decision to check whether it had been subsequently qualified. As it happens, the fact that such use of the De La Rosa ‘categories’ had been disapproved was flagged in the table of cases which the prosecutor provided to defence counsel and to the judge. That table included the 2015 decision of the New South Wales Court of Criminal Appeal in Bae v The Queen,[38] and the summary included this statement: ‘[t]he applicant’s reliance on De La Rosa and Holland criticised.’ A reading of Bae would have disclosed the disapproval to which I have referred.[39]
[38][2015] NSWCCA 133 (‘Bae’).
[39]Ibid [96]–[102].
Thirdly, it is notable that the judge did not ask counsel about the De La Rosa reference. Nor did he ask the prosecutor to respond to it. Instead, his Honour’s immediate response was to say that he ‘should look across the range of sentences’. He also informed the prosecutor that he found tables of cases helpful. Plainly enough, his Honour was signalling to both parties that he would be undertaking his own review of the sentencing material, as they would have expected him to do. It was common ground on the appeal that, whatever the state of the material provided to a sentencing judge, the judge has an independent obligation to review and analyse the material in order to determine what guidance it properly provides.
It follows, for the reasons we have given, that counsel’s reference to ‘Group 4’ did not call for any response from the prosecutor. It was a reference made without elaboration and, in any case, it was not capable of a meaningful response. On no view, in our respectful opinion, could the prosecutor’s silence be interpreted as a concession.
The contrast with the cases discussed earlier is striking. The proposition that a non-custodial order would be appropriate is self-explanatory, whether it is articulated by defence counsel or the sentencing judge. As has been shown, the failure of a prosecutor to respond to such a proposition may constitute a concession, depending on the circumstances. In the present case, the relevant contention was the very opposite of self-explanatory. It was effectively unintelligible. In those circumstances, no question of an implied concession by the prosecution could arise.
Prosecutor’s contrary position
In any event, the prosecutor’s submissions on the plea made clear that a sentence within the range of De La Rosa Group 4 was not appropriate in the case of Masange. The prosecutor consistently maintained, by the way she characterised Masange’s role and referred to relevant comparable cases, that his offending should attract a term of imprisonment beyond eight years — that being the upper limit of De La Rosa Group 4.
The prosecutor submitted that with respect to the ten importations over five months as particularised in charge 1, Masange had ‘conducted a business of importing methamphetamine in a commercial quantity through the post (in a commercial quantity), using false names and post office boxes’, and had ‘conducted money transfers overseas using false names.’ The written submission commenced with the contention that Masange’s role in the alleged criminal hierarchy was a critical consideration. It was submitted that Masange was the head of a Congolese syndicate involved in importing drugs into Australia. In oral argument the prosecutor repeated that Masange had played a ‘significant role in the importation of the drugs’, that he was ‘the head of his syndicate, which was a Congolese syndicate’, and that his role was ‘a significant one of considerable responsibility within the operation that was being conducted.’
The prosecutor unambiguously characterised Masange’s role so as to place him above De La Rosa Group 4. The facts relied upon by the prosecution as to the nature and extent of the importations, and the role played by Masange, made clear that his offending was of an order of seriousness well above that of an offender who might fall within De La Rosa Group 4. Viewed in the context of the prosecution case, and the submissions made, the absence of an explicit response to the De La Rosa Group 4 submission did not amount to an implied concession that he fell within that category.
The prosecutor submitted with respect to both respondents that ‘significant sentences’ were warranted given the more prominent role that general deterrence must play when sentencing for drug importation offences.[40] She submitted, with respect to Kachunga in particular, that a ‘substantial period of imprisonment’ was the ‘only appropriate sentence in the circumstances’.
[40]See, eg, R v Chen (2002) 130 A Crim R 300, 223; R v Stanbouli [2003] NSWCCA 355 [114]; R v Pang (1999) 105 A Crim R 474, 476.
The prosecutor referred to a number of cases that place the Crown position in its correct perspective. The first of these was the aforementioned case Wu.[41] Defence counsel had raised this case as a relevant comparator for the purposes of characterising Masange’s role. He noted that, in Wu, the offender had received a total effective sentence of six years and six months’ imprisonment (with a non-parole period of three years and six months) for the offence of importing 3.1 kilograms of pure methamphetamine.
[41][2016] VCC 141. The Director was subsequently successful in appealing the sentence in this matter on the ground of manifest inadequacy. See Thomas & Wu (2016) 315 FLR 31.
The prosecutor distinguished Wu as being less serious offending.[42] She emphasised the importance of the relative quantity of the imported drugs — 2.7 kilograms of methamphetamine and 20 grams of cocaine — and submitted that this was 3.5 times the commercial quantity. In response to an inquiry from the judge as to the ‘quantity important to the level of criminality’ the prosecutor referred to Harris v The Queen[43] in order to illustrate the relevance of the quantity of the drugs in assessing criminality. These submissions are inconsistent with the notion that she had impliedly accepted De La Rosa Group 4 which specifies, among other things, that ‘quantity not be indicative’.
[42]She submitted that Wu concerned a shorter period of offending and that during this time there were only two consignments of illegally imported drugs.
[43][2016] VSCA 30.
Further, the prosecutor’s written case submitted that the large amounts of cash found at Masange’s house indicated the extent to which he was motivated by financial gain, which heightened the objective seriousness of his offending.[44] This submission is also inconsistent with any suggestion that the Crown had impliedly accepted that Masange’s role was that of lowly ‘courier’ or ‘intermediary’ as is stipulated by De La Rosa Group 4.
Whether the lack of prosecutorial assistance to the judge should affect the exercise of the residual discretion
[44]$10,189 and $11,850 were found in Masange’s bedside table and wardrobe respectively.
The respondents submit that the schedules provided, and the submissions which accompanied them, did not provide the judge with the necessary assistance to which he was entitled. For this reason, it is submitted, this Court should exercise its residual discretion to dismiss the appeal.
This Court has stated — most recently in Thomas & Wu — that it is not sufficient in the context of federal drug offences for the Crown to simply hand up a schedule of cases. In that case Redlich, Santamaria and McLeish JJA considered the necessary content of schedules of cases handed to the sentencing judge and the kind of submission which should accompany them:
Something then should be said about the production of schedules or tables of cases on a plea, particularly by the prosecution. The joint judgment inBarbarostated that ‘[i]f a sentencing judge is properly informed about ... the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range. Conversely, if the judge is not sufficiently informed about such matters the judge will not have been assisted in carrying out the sentencing task in accordance with proper principle. In Matthews v The Queen, Warren CJ, Nettle and Redlich JJA confirmed that nothing said inBarbaro changed any pre-existing duty of the prosecutor to assist the court by the making of submissions as to comparable and relevantcases. Similarly in R v Ogden, the Queensland Court of Appeal said it was part of the prosecutor’s duty to assist the sentencing judge by supplying comparable sentencing decisions in order that the sentencing judge take them into account for guidance or as a ‘yardstick’ against which to examine the proposed sentence.
The identification of ‘like’ or comparablecases, and their importance to the instinctive synthesis, is clear enough, but if a table or schedule is to be employed to that end, it is essential that the content of the table or schedule offer considerably more than numerical information about those sentences in pastcases. The point being made by the joint judgment in Hili is that numerical equivalence has no utility when it says nothing about why sentences were fixed as they were. Quoting De La Rosa, which in turn cited Wong, the joint judgment further said that a table recording sentences imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal.
In addition to providing sufficient information about the features of each case to enable a judge to determine the degree to which it may be viewed as comparable, the prosecution must make plain the purpose for which each particular case is relied upon. Is it a comparable case or is its relevance that it is so different that the sentence there imposed would not lie within a sound exercise of the discretion in the present case? We shall return to the importance of parties distinguishing between those cases set out in a table that are said to be comparable and those which are not.
In Director of Public Prosecutions (Cth) v Phan, the Court of Appeal (and County Court below) had received a table which contained a number of inaccuracies. Ashley JA, with whom Tate and Santamaria JJA agreed, noted that tables should be in a readily accessible form. His Honour said:
counsel for the Crown initially seemed to suggest that it was for defence counsel or the judge to work out what criticism could be made of the schedule; something which could be done by reading the decisions. But I do not accept that this is so. The Commonwealth Crown ought be a model litigant. It is not satisfactory that a busy sentencing judge should be provided with a schedule which is inaccurate in part and unhelpful in part.
Comparable cases, presented in a tabulated form or schedule, can be of great assistance to judges, but only if they contain that necessary information. Their function is to provide a sound basis from which the judge may determine whether there is a relevant sentencing pattern to be discerned from the history of sentences available. Where, as in the present case, the table does not on its face illuminate the relevance of the cases listed, the table will be of limitedassistance. This is precisely what Maxwell P had in mind in Director of Public Prosecutions v Frewstal Pty Ltd when stating that information about comparablecasesmust be confined to cases which are properly described as relevant comparators (whether because they are materially the same or because they are instructively different), and sufficient information must be provided to enable the judge to make meaningful comparisons.
None of this is to suggest that the sentencing judge is confined to the material furnished by the parties in discharging the responsibility of striving for reasonable consistency when fixing a sentence. In order to achieve systematic fairness, a sentencing judge, with or without the assistance of the parties, must inform themselves as to any relevant history of sentencing patterns within which a sound exercise of the sentencing discretion may be made.[45]
[45]Thomas & Wu (2016) 315 FLR 31, 90–1 [178]–[183] (citations omitted).
In order to discharge its duty to assist the sentencing judge to avoid appealable error, the prosecution must speak to such a schedule and articulate the unifying principles revealed by the cases referred to. Here, the prosecutor provided the judge with the pre-prepared schedules and made clear their limitations, so that they were perfectly apparent to his Honour. The prosecutor did not have the benefit of this Court’s reasons in Thomas & Wu and did not seek to identify which of the cases were of particular relevance. But when, at the end of the Kachunga plea, she inquired whether his Honour wished him to further address any aspects of her submissions, the judge responded that he had already had ample opportunity to consider them and thanked the prosecutor for her assistance.
In Thomas & Wu, which drew upon the joint reasons of the High Court in Barbaro,[46] it was said that sentencing judges are not confined to the material furnished by the parties in discharging the responsibility of striving for reasonable consistency when fixing a sentence.
[46](2014) 253 CLR 58 (French CJ, Hayne, Kiefel and Bell JJ). See also Matthews (2014) 44 VR 280; R v Ogden [2014] QCA 89.
Thomas & Wu emphasised that, in order to achieve systematic fairness, ‘a sentencing judge, with or without the assistance of the parties, must inform themselves as to any relevant history of sentencing patterns within which a sound exercise of the sentencing discretion may be made.’[47] The joint reasons in Barbaro referred with approval to the reasons of Buchanan and Kellam JJA in R v MacNeil‑Brown[48] and affirmed that:
the synthesis of the ‘raw material’ which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.[49]
[47]Thomas & Wu (2016) 315 FLR 31, 105 [252].
[48](2008) 20 VR 677, 711 [130] (Buchannan JA); 716 [147] (Kellam JA).
[49]Barbaro (2014) 253 CLR 58, 74 [41] (French CJ, Hayne, Kiefel and Bell JJ).
The relevance to the residual discretion of a failure by the prosecution to fully provide the judge with necessary assistance was set out by this Court in Waack. Phillips JA (with whom Batt and Chernov JJA agreed) relevantly stated that:
on a Crown appeal against sentence it is ultimately a matter for the Court’s discretion what weight to accord to the position taken by the Crown at first instance, if different, and such weight will vary from case to case according to the facts. The degree of the departure must be a relevant consideration, as also the seriousness of the criminal conduct being punished and the magnitude of the sentencing error identified on the appeal — that is, the degree to which the appellant court thinks that the sentencing judge fell into error.[50]
[50](2001) 3 VR 194, 207 [31] (emphasis added). See also Allpass (1993) 72 A Crim R 561, 564–5.
The Director did not advance a different, or inconsistent, argument to that raised on her behalf at first instance. She did not depart from the prosecutor’s position on the plea. Leaving to one side the primary contention concerning the prosecutor’s silence as to De La Rosa Group 4, neither respondent submitted that any positive conduct of the prosecutor on the plea induced the judge to err, nor that the lack of assistance was such as to have led the judge into error in the way discussed in Holder. Senior counsel for Kachunga eschewed any suggestion that the failure of the prosecution to provide the judge with the assistance to which he was entitled misled the judge.
The release of Kachunga on parole
On 9 August 2017, the Court of Appeal Registry informed the parties to these appeals that judgment would be handed down on 14 August 2017. When the matters were called on, but before judgment was delivered, junior counsel representing Mr Kachunga stood to inform the Court that there was a matter which he wished to draw to our attention. He said that Mr Kachunga had been released on parole since the hearing of the appeal, and continued:
I thought it prudent to raise that with the Court before judgment is handed down. It may be relevant to the exercise of the residual discretion or otherwise the orders to be made.
In answer to a question from the Court, counsel confirmed that the change of circumstances was indeed relied on in relation to the residual discretion. We then announced that the delivery of judgment would have to be postponed. We directed that supplementary submissions be filed.
The parties were asked to explain the quite unsatisfactory circumstance of this Court not being informed of Mr Kachunga’s release on parole until moments before the delivery of judgment in the appeals. They were also invited to make submissions concerning the significance of his change of circumstances for the exercise of the residual discretion. We deal with these issues in turn.
Lack of notification to the Court
In her supplementary submission, counsel for the Director said that it was ordinarily the responsibility of the CDPP solicitor handling the sentencing of a federal prisoner to notify the Commonwealth Parole Office (‘CPO’) if and when the Director filed an appeal against sentence. That notification having been given, the CPO would in the ordinary course contact the relevant office of the CDPP to check on the progress and/or outcome of the appeal.
According to the submission
If the Commonwealth Parole Office was informed that an appeal would not be finalised before the expiry of the person’s non-parole period, it is likely that it would recommend to the Delegate of the Attorney-General responsible for making the decision to grant parole that he/she refuse to grant the prisoner parole until the outcome of the appeal was known. The Commonwealth Parole Office is unable to recall any recent case where there was an appeal that had not been finalised before the prisoner was eligible for release on parole.
In this case, a solicitor employed by the Director’s Melbourne Office informed the CPO in October 2016 that the Director had filed an appeal against Mr Kachunga’s sentence. Upon receiving this advice, however, the CPO mistakenly did not flag or record this in their records. As a result, a parole report prepared in December 2016 made no mention of the outstanding Director’s appeal against sentence. Further, when the CPO prepared a report on the grant of parole for consideration by the Attorney-General’s delegate, the communication from the CDPP was overlooked. As a result, the delegate was unaware of the pendency of the appeal when he considered Mr Kachunga’s parole on 9 February 2017.
Later that day the CPO sent a copy of the signed Parole Office Order to a duty officer at the CDPP, advising that Mr Kachunga would be released on parole on 12 March 2017. It is unclear whether the solicitor responsible for the sentence appeal received that notification. It is clear, however, that counsel who had appeared for the Director at the appeal hearing were not made aware of Mr Kachunga’s release on parole. As a result, that information was not provided to this Court. Counsel for the Director assured the Court that, as a result of this experience, new procedures had been put in place at the CDPP to ensure that such a notification would in future be drawn to her attention.
We were informed by counsel for Mr Kachunga that they became aware of his release on parole at or about the time it occurred. According to the supplementary submission, they and their instructing solicitor
had proposed to provide the Court with the most current, up-to-date, information about [his] circumstances upon receiving notification as to when the appeal was to be determined. That was so given that it was [his] circumstances existing at the date of the determination of the appeal that were relevant (if the Court concluded that there had been an error in the sentence first imposed) to whether a different sentence should be imposed and — if so — what alternative sentence was appropriate.
The submission cited DPP v Clunie in support.[51]
[51][2016] VSCA 216 [19], [23].
There is, of course, a fundamental distinction between matters affecting the threshold question of whether an appeal should be upheld or dismissed, and matters affecting any resentencing decision which may arise. In the event of a resentencing, the Court is obliged to consider the most up-to-date information and, depending on the course of the proceedings, there may not have been an opportunity to provide such information to the Court before the threshold question was determined.
But information relevant to the threshold question of the success or failure of an appeal — in this case, information relevant to the exercise of the residual discretion — must of necessity be provided to the Court before it reaches its decision on that question. As this case illustrates, providing such information at the point of the delivery of judgment is simply too late. As is evident from these reasons, we had already reached our decision on the question of the residual discretion, on the basis of the arguments advanced at the hearing, only to be given at the last minute new and important information bearing on that very question.
The significance of the change of circumstances
Mr Kachunga has now been at liberty for almost six months. Since his release on parole, he has attended all of his parole appointments, complied with all of the conditions of his parole and not committed or been charged with any further offences. Since May 2017, he has been in full-time employment. We were provided with a reference from his employer which confirms that he has not missed a working day since he commenced. The employer describes in glowing terms Mr Kachunga’s performance and attitude to work.
Mr Kachunga is in a settled relationship. His partner is in full-time employment. The couple had been trying to start a family before Mr Kachunga’s imprisonment but were unable to conceive naturally. They started IVF treatment in April 2017, after his release on parole, and his partner is now pregnant with their first child.
The submission advanced on Mr Kachunga’s behalf is that it would be a ‘crushing outcome’ for him to be sent back to prison, given that he has—
·made an ‘admirable transition’ back into the community;
·been in the community for almost six months; and
·taken significant steps towards his rehabilitation.
Reliance is placed on the following passage from the majority judgment in Green v The Queen,[52]
Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.
[52](2011) 244 CLR 462, 479–80 [43].
More recently, in R v Kong,[53] the South Australian Court of Criminal Appeal said:
There are circumstances which will produce an injustice if a Crown appeal is allowed, even in a case in which the sentence is erroneously lenient. Factors such as a defendant’s personal circumstances, the defendant’s progress towards rehabilitation, the harshness of sentencing a person to custody who has been free in the community and has taken significant steps to rebuild his life are just some of the factors which are relevant to … the exercise of a residual discretion to refuse a Crown appeal.
[53](2013) 115 SASR 425, 444–5 (citations omitted).
The Director’s submission is that, notwithstanding these personal factors, the residual discretion should not be exercised. Appellate intervention is necessary, it is said, to maintain public confidence in the administration of justice, and for the governance and guidance of sentencing courts. To allow a manifestly inadequate sentence to stand would ‘represent an erosion of sentencing standards for what are extremely serious offences’ and may diminish the effect of the guidance which the Court should give.
Conclusion
In our view, this is a proper case for the exercise of the residual discretion. To return Mr Kachunga to custody in these circumstances would work a serious injustice.
Properly understood, the exercise of the residual discretion in circumstances such as these is an exercise of mercy. For reasons given earlier, the application of ordinary sentencing principles — the requirements of just punishment and proportionality — would have necessitated a higher sentence than that which the judge imposed, full allowance being made for the plea of guilty and the mitigatory factors relied on. As a result of Mr Kachunga’s release on parole, however, and the delay in the determination of the appeals, different considerations must be brought to bear.
As this Court said in Markovic v The Queen:
There must always be a place in sentencing for the exercise of mercy ‘where a judge’s sympathies are reasonably excited by the circumstances of the case’. This is a proposition of long-standing and high authority, repeatedly affirmed in this Court.[54]
In Markovic, the Court also quoted the following passage from an article by Professor Richard Fox:
The true privilege of mercy is to be found in the residual discretion vested in each sentencer which allows a downward departure from the principle of proportionality outside the principles of mitigation. It can be utilised in exceptional circumstances to allow weight to be given to factors which are ordinarily not regarded as relevant mitigating considerations. It allows sentencers to give effect to significant, but as yet unaccepted, circumstances which, in their opinion, warrant leniency.[55]
[54]Markovic v The Queen (2010) 30 VR 589, 590 [1] (citations omitted) (‘Markovic’).
[55]Ibid 594 [14] (emphasis in original). See R Fox, ‘When Justice Sheds a Tear: The Place of Mercy in Sentencing’ (1995) 25 Monash University Law Review 1.
The requirements of justice must sometimes be tempered. Mercy ‘may alleviate suffering that is in some sense deserved’ or which a judge is otherwise entitled to impose.[56]
[56]J Tasioulas, ‘Mercy’ (2003) 103 Proceedings of the Aristotelian Society 101, 104.
BEALE AJA:
Overview
The Commonwealth Director of Public Prosecutions appeals against the sentences imposed on Kiza Masange and Gilbert Kachunga, who were said to be members of a Congolese drug syndicate. I accept the Director’s submissions that the sentences imposed on both men were manifestly inadequate but would dismiss both appeals in the exercise of the Court’s residual discretion.
In short, I would dismiss both appeals because of the inadequate assistance given by the Director to the primary judge in relation to current sentencing practices
and the failure of the Director to take issue with critical and unambiguous defence submissions in that regard. As explained in the reasons of Maxwell P and Redlich JA, Kachunga’s release on parole is an additional, significant consideration supporting the exercise of the residual discretion to dismiss the appeal against his sentence.
Masange
I will deal with Masange first. On 31 May 2016, Masange was sentenced by the primary judge as follows:
Charge No
Offence
Maximum
Sentence
Start date
1.
Import a commercial quantity of a border controlled drug [Criminal Code Act 1995 (Cth) s 307.1(1) (‘Code’) by virtue of s 311.4 of the Code]
Life imprisonment
7y
31 May 2016
2.
Deal with money reasonably suspected of being proceeds of crime worth less than $100,000 [s.400.9(1A) of the Code]
2y
10m
31 May 2016
3.
Make false statement in relation to an Australian travel document application [s.29(1) of the Australian Passports Act 2005 (Cth)]
10y
2y
30 November 2021
(6 month cumulation on charge 1)Summary Offence
Contravene bail condition contrary [s.30A of the Bail Act 1977]
3m
2m
31 May 2016
Total Effective Sentence:
7y and 6m
Non-Parole Period:
4y
Pre-Sentence Detention Declaration:
542 days
s 6AAA Statement:
11y with non-parole period of 8y
Other relevant orders:
Forfeiture order pursuant to s 48 of the Proceeds of Crime Act 2002 (Cth)
The Director appeals against the sentence imposed on Masange on the sole ground that ‘the head sentence imposed on charge 1 and the non-parole period imposed are manifestly inadequate.’
Circumstances of offending
Masange’s offending occurred over a period of five to six months from late 2013 to early 2014. He was 25 at the time of the offending.
In relation to charge 1 — a ‘rolled up’ charge of importing a commercial quantity of drugs — Masange organised addresses (including postal boxes) and fictitious addressees which facilitated the importation of methamphetamine and cocaine in 10 postal consignments between 21 December 2013 and 30 May 2014. Masange admitted that his role extended to attempting to collect the various consignments on behalf of others who were importing the drugs.
Nine of the consignments contained methamphetamine concealed in various items such as books, candles and handbags. These consignments originated in various countries including China, India, South Africa and Tanzania. The total amount of methamphetamine imported was 2,702.1 grams (mixed) of which there was 2,400 grams pure, that is, 3.2 times a commercial quantity (750 grams pure). The tenth consignment, which originated in Ecuador, contained 20.1 grams of pure cocaine.
The prosecution estimated that the value of the 2.7 kilograms of methamphetamine (mixed) was $540,000 to $594,000 wholesale and $2.025 million to $2.7 million retail. The prosecution estimated that the value of the 20.1 grams of cocaine was $7,035 retail if sold at 30 per cent purity.
In relation to charge 2 — dealing with money reasonably suspected of being proceeds of crime — Masange, using false ID, conducted five cash transactions between 2 October 2013 and 2 May 2014 to the value of $77,850.83. Two of those transactions involved him transferring moneys (in total, $6,874) to persons in China and Nigeria. The other three transactions involved him converting Australian dollars into Euros, Pounds Sterling and US dollars. It was not disputed by Masange at his plea hearing that all five of these transactions were connected to drug importation but how they were connected was not specified.
On 2 May 2014, when Masange’s home was searched, he was also found to be in possession of cash to the value of $22,030. Hence the total amount of money reasonably suspected of being proceeds of crime was $99,880.83.
In relation to charge 3 — making a false statement in relation to an Australian travel document — and the summary charge of contravening a condition of bail, Masange, through an agent, applied for a passport in a false name at a time when he was on bail for charges 1 and 2. By way of background, Masange was arrested in relation to charges 1 and 2 on 2 May 2014. He was released on bail on 2 July 2014. His bail was subject to several conditions, including that he not apply for any passport or travel document. Whilst still on bail, Masange arranged for his agent (identity unknown) to attend the Hoppers Crossing office of Australia Post on 28 January 2015 to apply for a new passport for Masange in the false name of ‘Joseph Bolay’. Masange’s agent was accompanied by a person purporting to be Ibrahim Tamba, who was the guarantor for the passport application under the name of Bolay.
The Australian passport application form in the name of Joseph Bolay contained Masange’s photograph. Included with the passport application were an Australian citizenship certificate and a Victorian proof of age card in the name of ‘Joseph Bolay’. Masange’s photograph was in the proof of age identification card for Bolay.
An alert was raised by the passport biometric data system which detected that there was already a person in the system who had a similar appearance to Masange.
Procedural history
On 6 November 2014, Masange was committed to stand trial in relation to the drug and proceeds of crime matters. The committal proceeded as a ‘straight hand up brief’.[57]
[57]Masange pleaded not guilty to all charges.
The case was eventually listed for trial on 23 November 2015.
On the 6 October 2015, an indictment was signed (‘the trial indictment’) which contained charges against both Masange and Kachunga. The two charges against Masange were importing a commercial quantity of border controlled drugs (methamphetamine and cocaine) (charge 1) and possessing a marketable quantity of a border controlled drug reasonably suspected of having been unlawfully imported (methamphetamine) (charge 4). There were four other charges on the trial indictment which related solely to Kachunga.
The particulars of charge 1 on the trial indictment, which was a rolled up charge, alleged thirteen importations of methamphetamine and four importations of cocaine by Masange between 9 December 2013 and 30 May 2014. Charge 4 on the trial indictment referred to possession of a marketable quantity of methamphetamine by Masange on 2 May 2014.[58]
[58] That being the day Masange’s home was searched by police.
On 23 November 2015, the day the trial was listed to commence, the case was in the reserve list, where it remained for several days.
On the 25 November 2015, it was relisted for 11 April 2016, though that date was subsequently altered to 12 April 2016.[59]
[59] On 8 April 2016, the trial date of 11 April 2016 was vacated and the matter was relisted for trial on 12 April 2016.
In late 2015 and early 2016, negotiations between the prosecution and defence continued.[60]
[60] DPP v Masange [2016] VCC 739 [16] (‘Masange Reasons’).
On 11 April 2016, the Director signed a plea indictment containing three charges (Masange’s plea indictment). Charge 1 on Masange’s plea indictment — importation of a commercial quantity of border controlled drugs — was a rolled up charge, alleging nine separate importations of methamphetamine and one importation of cocaine between 21 December 2013 and 30 May 2014. Charge 2 was the proceeds of crime charge and Charge 3 the passport charge.
On the 12 April 2016 — the date the trial was listed to commence — the Director filed over Masange’s plea indictment. Masange was arraigned and pleaded guilty to the three indictable charges. He also pleaded guilty to the summary charge of contravening a bail condition. I note that while Masange pleaded guilty at a late stage, the Director made significant concessions from the trial indictment to the plea indictment which no doubt played a part in his change of plea. The number of importations rolled up in charge 1 was reduced from 17 to 10 and the amount of drugs was reduced by almost two kilograms.[61] These developments go some way to explaining the significant discount which the primary judge gave Masange for his late plea.
[61] In respect of the methamphetamine, there was a reduction of some 1,817 grams and in respect of the cocaine, a reduction of 110.2 grams.
On 27 April 2016, the plea hearing took place. At this plea hearing the Director provided the primary judge with two schedules of cases, both concerning sentences for importing commercial quantities of drugs. Schedule 1 was headed ‘Schedule of Cases – appellate only, import commercial quantity of any drug, role as principal or non-specific’. Schedule 2 was headed ‘Schedule of Cases: appellate and non-appellate, import commercial quantity of any drug, multiple of 2.5 to 4 times, role as principal or non-specific’.
On 31 May 2016, Masange was sentenced.
Findings made by the primary judge
The primary judge found that Masange’s role included conducting money transfers to fund importations[62] and arranging postal box and other addresses[63] to which drugs were sent.
[62] It was not suggested that he funded the importations with his own money. Some financial transactions the subject of Charge 2 on Masange’s plea indictment involved the conversion of funds from one currency to another. How this facilitated drug importations was not spelt out. Whether Masange was simply ‘laundering’ funds by currency conversion is not clear.
[63] Using fictitious identities.
He found that Masange’s role was one of ‘high responsibility’[64] and was ‘important’,[65] even though he did not accept the Director’s allegation that Masange was the head of a Melbourne Congolese drug syndicate. He stated that Masange was ‘closely connected in a number of ways to those importation[s] and made substantial money transactions related to drug importation.’[66] He also stated that Masange was ‘significantly and seriously involved’[67] and ‘became so in expectation of and received substantial reward.’[68] He stated that Masange’s role was
[64] Masange Reasons [16].
[65] Ibid.
[66] Ibid.
[67] Ibid [25].
[68] Ibid [26]. But His Honour also noted that there was no evidence of enrichment.
critically connected to the importations and funding of importation of drug [sic] … your deprived background is relevant to how you became involved, but you were not an exploited minion. You became involved with an expectation of considerable reward. These importations … while not at the extreme end and not successfully moved on, amounted to activity on a considerable scale.[69]
He added:
This was considered, organised criminal activity over a considerable duration. The evil of drug importation and its likely consequent damage to the community must have been apparent to you.[70]
[69] Ibid [33].
[70] Ibid [30].
As regards the financial reward obtained by Masange for his role, the primary judge noted that on Masange’s own admission, he had received about $80,000.[71] He also noted that Masange said that from this money he had given $30,000 to his family in Africa and $30,000 to a charity in Africa.[72] The primary judge stated that there was no evidence of enrichment.[73]
[71] Ibid [24].
[72] Ibid.
[73] Ibid [25].
Other significant findings made by the primary judge were:
·Masange was remorseful;[74]
·Masange has suffered from post-traumatic stress disorder (‘PTSD’) for some time, associated with the trauma of his early life experience in the Congo and other African countries, including being sexual abused.[75] Masange will find prison more difficult because of his PTSD;[76] thus, the fifth principle of Verdins[77] was engaged. However, the primary judge was not satisfied that a sufficient causal connection existed between the PTSD and the offending to engage the first principle[78] of Verdins.[79]
·Masange’s prospects of rehabilitation were ‘high’.[80]
·Masange was 28 years old, had no prior convictions and was otherwise of good character. Since coming to Australia at the age of 18, Masange had worked hard, completing a plumbing apprenticeship and had purchased a mixed business, and had regularly engaged in volunteer work for his community. In relation to the voluminous plea material and references from the Congolese community adduced at the plea hearing, the primary judge said:
This evidence presents you as strongly connected to family, generous and highly supportive of your community and its young, and a man of talent and capacity.[81]
[74] Ibid [3]. His Honour also stated at [27] that Masange felt shame and isolation for what he had done.
[75] Perpetrated on him by an adult female who sheltered him and two of his siblings for several months in Tanzania when they fled the Democratic Republic of Congo.
[76] Masange Reasons [21]. His Honour also found at [31] that Masange’s concern for his family in Africa and his fear that he may not see his mother again because she was seriously ill would compound the difficulty.
[77] R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’): ‘The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.’
[78] Ibid: ‘The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective’.
[79] Masange Reasons [29].
[80] Ibid [40].
[81] Ibid [38].
Whether impugned sentence and non- parole period manifestly inadequate
The Director’s submissions
The Director submitted that Masange’s sentence on charge 1 (seven years’ imprisonment) and the non-parole period (four years’ imprisonment) were manifestly inadequate for several reasons. The maximum penalty for importing a commercial quantity is life imprisonment. Masange’s role in the importation was found to be an important one, involving ‘high responsibility.’ Masange derived substantial financial rewards from his offending. Charge 1 was a rolled up charge, involving 10 importations over approximately five months. The quantity of methamphetamine imported was more than three times a commercial quantity. Previous good character is not given as much weight in relation to offending of this nature. The plea of guilty was not entered until the day that the trial was listed to commence.
The Director also submitted that a large number of commercial quantity cases, which I will now summarise, indicate that Masange’s sentence and non-parole period constituted a serious departure from national sentencing standards.
In Agboti, the offender pleaded guilty at an early stage to importing a commercial quantity of methamphetamine and was sentenced, originally, to 11 years’ imprisonment with a non- parole period of five years and six months. The amount of methamphetamine was 3.1 times a commercial quantity. Agboti acted as a courier on one occasion. Her reward was the cost of a cheap international airplane ticket. She was 23 at the time of her offence and had no prior convictions. The Queensland Court of Appeal allowed her appeal, reducing her sentence to nine years and six months’ imprisonment with a minimum term of four years and six months.
In Bae, the offender pleaded guilty to four counts of aiding and abetting the importation of a commercial quantity of border controlled drugs (methamphetamine and cocaine) and one count of aiding and abetting the importation of a marketable quantity of heroin. On each of the commercial quantity counts, Bae was sentenced to 10 years’ imprisonment and on the marketable quantity count, five years’ imprisonment. The total effective sentence was 20 years’ imprisonment with a non-parole period of 12 years. The total amount of methamphetamine was 6.01 times a commercial quantity and the total amount of cocaine was 3.87 times a commercial quantity. The amount of heroin was 43 per cent of a commercial quantity. Bae played an important role in a drug syndicate, travelling from Canada to Australia where he organised the receipt, storage and distribution of the drugs which were imported in multiple consignments over a period of approximately five months. The primary judge said that ‘while there [was] no evidence of financial reward, the offender was clearly involved for considerable financial gain.’[82] Bae, who was in his early thirties at the time of the offending, had no prior convictions. Bae’s appeal against sentence was dismissed.
[82]Bae [2015] NSWCCA 133 [63].
In Banker v The Queen,[83] the offender pleaded not guilty but was convicted of importing a commercial quantity of methamphetamine and was sentenced to 12 years’ imprisonment with a non-parole period of eight years. The amount of methamphetamine was 5.5 times a commercial quantity. Banker acted as a courier on one occasion. What reward he was to receive for his role is not indicated in the judgment. Banker, who was 71 at the time of sentence, had no prior convictions. Banker’s application for leave to appeal against sentence was dismissed.
[83][2016] QCA 74.
DEFENCE COUNSEL: No.
HIS HONOUR: —of the commercial value wholesale —
DEFENCE COUNSEL: Wholesale and retail.
HIS HONOUR: … and retail.
DEFENCE COUNSEL: That’s true.
Even though both counsel and the primary judge referred to GBH, not GBL, it is likely that what I will call the Maxwell P principle informed the primary judge’s consideration of the GBL cases in schs 1 and 2. In any event, the disparity apparent in the schedules between the sentences imposed in GBL cases and the sentences imposed in the other drug cases was likely to impress on the primary judge that the GBL cases could not guide him in determining what was an appropriate sentence for Masange who had imported 3.2 times a commercial quantity of methamphetamine and, on his own admission, had received $80,000 for his involvement.
But having said that, the failure of the Director below to take issue with Masange’s submission based on De La Rosa is particularly troubling. Masange’s submission, which he said was supported by the Director’s own schedules, was pressed both in written and oral submissions and yet the Director was silent. There was nothing ambiguous about the submission: Masange was saying, in effect, that the range of sentences open to the primary judge on charge 1 was six years and three months through to eight years for the head sentence with a non-parole period of around three years to four years and six months. The sentence that the primary judge imposed — seven years with a non-parole period of four years — strongly suggests that the primary judge accepted that submission. In my view, it was reasonable for him to assume from the Director’s silence that the Director also accepted it.
The failure of the Director in this regard is not to be seen in isolation. It must be considered in the light of the Director’s failure to refer the primary judge to any of the comparators referred to by the Director on this appeal, save for Bae.
What of the fact that the primary judge was referred to Bae which sounds a cautionary note (or two) regarding the De La Rosa groupings? It was suggested that this referral redressed or ameliorated the Director’s failure to take issue at first instance with Masange’s submissions based on De La Rosa. Certainly, if the primary judge had read Bae, he would have picked up that some judges, including McLellan CJ at CL, downplay the assistance provided by the various groupings in De La Rosa. But it would still have been reasonable, in all the circumstances, for the primary judge to interpret the Director’s silence in the face of Masange’s written and oral submissions as indicating acceptance by the Director that it was appropriate to sentence Masange within the range of sentences associated with the group four cases.
In my view, there has been a change in the position taken by the Director. Before the primary judge, the Director implied by conduct that to impose a sentence within the group four range was open; on appeal, the Director has emphatically, and convincingly, submitted the opposite. It will be recalled that in Holder this Court said:
Put simply, the already-difficult task confronting a sentencing judge becomes almost impossible if the judge is led into error by things said, or left unsaid, by the prosecutor on the plea, and then complaint is made by the Director on appeal about the resulting error in the sentence.[135]
[135]Holder (2014) 41 VR 467, 469 [8].
As previously mentioned, in Waack, Phillips JA (with whom Batt and Chernov JJA agreed) said:
on a Crown appeal against sentence it is ultimately a matter for the Court’s discretion what weight to accord to the position taken by the Crown at first instance, if different, and such weight will vary from case to case according to the facts. The degree of the departure must be a relevant consideration, as also the seriousness of the criminal conduct being punished and the magnitude of the sentencing error identified on the appeal — that is, the degree to which the appellant court thinks that the sentencing judge fell into error.[136]
[136]Waack (2001) 3 VR 194, 207 [31] (emphasis added).
In this case, I take the view that the ‘degree of departure’ from the Director’s position at first instance is considerable. Even so, it might be thought that to dismiss the Director’s appeal in the exercise of the Court’s residual discretion is disproportionate having regard to the other considerations that should inform the exercise of the residual discretion: on the one hand, there is serious criminality and significant sentencing error, and, on the other, only prosecutorial negligence. But the residual discretion is very much about maintaining prosecution standards in the long term in the interests of the administration of justice. Such standards are of particular importance where the proceedings concern an offence carrying a maximum penalty of life imprisonment. To merely disapprove of the Director’s conduct at first instance whilst allowing this appeal would be ‘hollow’.[137] Recently, the High Court in CMB emphasised strongly that it is for the Crown ‘to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised’.[138] In my view, the Director in Masange’s case has not discharged that burden and consequently, her appeal must be dismissed.
[137] CMB (2015) 256 CLR 346, 360 [38] (French CJ and Gageler J).
[138] Emphasis added.
Kachunga
I turn now to Kachunga.
On 3 June 2016, Kachunga was sentenced by the primary judge as follows:
Charge No Offence Maximum Sentence Start date 1. Deal with money reasonably suspected of being proceeds of crime worth less than $100,000 [s 400.9(1A) of the Code] 2y 8m 3 June 2016 2. Attempt to possess a marketable quantity of a border controlled drug [s 11.1(1) and 307.6(1) of the Code] 25y 2y 3 June 2019
(6 month cumulation on charge 3)3. Possess a commercial quantity of a border controlled drug [s 307.8(1) of the Code] Life imprisonment 4y 6m 3 June 2016
(base sentence)4. Possess a marketable quantity of a border controlled drug [s 307.9(1) of the Code] 25y 12m 3 June 2016 Total Effective Sentence: 5y Non-Parole Period: 2y 6m Pre-Sentence Detention Declaration: 630 days s 6AAA Statement: 8y non-parole period 5y
The Director appeals against the sentence imposed on Kachunga on three grounds:
(a)The sentence imposed on charge 2 is manifestly inadequate as:
(i)the sentence does not adequately reflect the nature and circumstances of the offending, including the maximum penalty prescribed for the offence;
(ii)the sentence does not adequately reflect the principles of general deterrence, punishment and denunciation; and
(iii)the sentence does not adhere to the requirement for national consistency in sentencing standards for federal offences.
(b)The sentence imposed on charge 3 is manifestly inadequate as:
(i)the sentence does not adequately reflect the nature and circumstances of the offending, including the maximum penalty prescribed for the offence;
(ii)the sentence does not adequately reflect the principles of general deterrence, punishment and denunciation; and
(iii)the sentence does not adhere to the requirement for national consistency in sentencing standards for federal offences.
(c)The total effective sentence and the non-parole period imposed are manifestly inadequate:
(i)the individual sentences imposed on charges 2 and 3 are manifestly inadequate;
(ii)the sentencing judge failed to order proper accumulation on charges 2 and 3 reflective of separate offending;
(iii)the total effective sentence and non-parole period imposed demonstrate that too much weight was placed on the guilty plea;
(iv)the total effective sentence and non-parole period imposed do not adequately reflect the nature and circumstances of the overall offending, including the maximum penalties prescribed for the offences;
(v)the total effective sentence and the non-parole period imposed do not adequately reflect the principles of general deterrence, punishment and denunciation; and
(vi)the total effective sentence and non-parole period imposed do not adhere to the requirement for national consistency in sentencing standards for federal offences.
Circumstances of offending
Kachunga’s offending was spread over a period of approximately six months. However, charge 2 (attempted possession of a marketable quantity) and charge 3 (possession of a commercial quantity) both alleged offending on single dates. Kachunga turned 29 during the period of his offending.[139]
[139] Kachunga’s date of birth is 14 April 1985.
In relation to charge 1 — dealing with money reasonably suspected of being proceeds of crime — Kachunga conducted six money transactions using false names between October 2013 and February 2014, totalling $88,637. In three of these transactions, Kachunga transferred money to Peru and China in amounts ranging from $3,000 to $8,000. In the other three transactions, Kachunga exchanged Australian currency into European currency in amounts ranging from about $1,500 to $35,000. It was not in dispute that all of these transactions related to the importation of drugs but how they so related was not specified.[140]
[140] DPP v Kachunga [2016] VCC 806 [8] (‘Kachunga Reasons’).
In relation to charge 2 — attempted possession of a marketable quantity — Kachunga attended at an address in Caroline Springs on 29 April 2014 and asked the female occupant to collect, from a nearby post office, a parcel from China which contained approximately 504 grams of methamphetamine (that is, 67 per cent of a commercial quantity). The parcel was addressed to the Caroline Springs premises in the fictitious name of ‘John Smith McNamara.’ The female refused to collect the parcel.
In relation to charge 3 — possession of a commercial quantity of methamphetamine — Kachunga’s home was raided by police on 2 May 2014. He was found to be in possession of a total of 2,799.4 grams of pure methamphetamine in two suitcases. The quantity of methamphetamine was 3.73 times a commercial quantity. The prosecution estimated that the wholesale value of the methamphetamine was between $560,000 and $616,000 wholesale and between $2.1 million and $2.8 million retail.
In relation to charge 4 — possession of a marketable quantity of cocaine —Kachunga was also found to be in possession of 12.2 grams of pure cocaine (0.6 per cent of a commercial quantity of cocaine) on 2 May 2014. The prosecution estimated that the cocaine had a potential street value of approximately $14,000.
Procedural history
On 26 March 2015, after a contested committal, Kachunga was committed to stand trial.
As mentioned, Kachunga’s joint trial with Masange was set down for hearing in November 2015 but it was ultimately adjourned to April 2016. In November 2015, Kachunga indicated his intention to plead guilty to the proceeds of crime charge but confirmed his plea of not guilty to the other charges.[141]
[141] This was noted in the Director’s written submissions on the plea.
On 15 April 2016, a few days after the trial was listed to commence, Kachunga’s matter resolved. This followed a Basha hearing during which it became clear, for the first time apparently, that when police searched his home on 2 May 2014, Kachunga’s fingerprint had been located on a bag of methamphetamine found inside one of the two suitcases which contained, in total, 2.8 kilograms of methamphetamine. A plea indictment for Kachunga was filed over. Kachunga was arraigned on the plea indictment, pleaded guilty and was remanded in custody until the plea hearing.
It is noteworthy that charge 2 on Kachunga’s plea indictment alleged that he attempted to possess a marketable quantity of methamphetamine on 29 April 2014, not a commercial quantity as had previously been alleged in the trial indictment.
On 26 May 2016, Kachunga’s plea hearing took place. The Director provided the primary judge with a schedule headed ‘Schedule of Cases: Import/Attempt to possess/Possession, Commercial quantity of any drug, multiple of commercial quantity between 2.7 and 5.0, intermediate or courier role’ (sch 3). No schedule of cases was provided in relation to possessing or attempting to possess a marketable quantity of drugs, notwithstanding the terms of charge 2 on Kachunga’s plea indictment.
On 3 June 2016, Kachunga was sentenced.
Findings made by the primary judge
The primary judge found that Kachunga’s role also involved conducting money transfers and currency conversions in relation to the importation of drugs, as well as collecting and holding drugs. As to where Kachunga was situated in the syndicate, the primary judge said:
[Defence counsel] pointed to risk or exposure of, for example, holding the drugs in your home, suggestive of a low end status. Nevertheless you were entrusted with collection and custody of substantial and valuable parcels of drugs. You were trusted to make significant money transactions related to drug importation.
…
[Defence counsel] has put without challenge that you were at the low or bottom end of the so-called syndicate. Such propositions are difficult to assess. I accept the circumstances leading to and of your involvement. However, as I have suggested, what you did was important for those higher up and you were trusted to do what you did.[142]
[142] Kachunga Reasons [15], [18].
He noted that Kachunga had met Masange in a refugee camp and that ‘it was said that you have been influenced by him over the years’.[143] He accepted that Kachunga was struggling financially when he became involved in the offending in late 2013.[144]
[143] Ibid [13].
[144] Ibid [15].
His Honour noted that the Crown did not challenge the defence submissions that in offending Kachunga was acting on directions and received ‘modest remuneration’ which was not quantified. His Honour indicated he accepted ‘what has been said about your relationship with [Masange] and the development of your involvement in the offending. His was the more extensive and senior role. Your sentence should be [less] than his.’[145]
[145] Ibid [27].
His Honour made the following additional findings:
·Kachunga had ‘suffered an extremely disadvantaged and damaging early life’ whilst living in and then fleeing the Democratic Republic of Congo; [146]
·he had no prior convictions and was otherwise of good character;
·he had ‘good’ prospects of rehabilitation; and[147]
·he was on onerous bail conditions for a time and endured lock down conditions in custody for about two months as a result of the 2015 prison riots.[148]
[146] Ibid [12].
[147] Ibid [24].
[148] Ibid [16].
Whether impugned sentences and non-parole period manifestly inadequate
The Director’s submissions
The Director submitted that Kachunga’s sentence on charge 2 (two years’ imprisonment with six months cumulative), charge 3 (four years and six months’ imprisonment), the total effective sentence of five years’ imprisonment and the non–parole period of two years and six months’ imprisonment were all manifestly inadequate for several reasons. The applicable maximum penalties are 25 years’ imprisonment for attempting to possess a marketable quantity and life imprisonment for possession of a commercial quantity. The quantity of methamphetamine that Kachunga attempted to possess on 29 April 2014 (charge 2) was 67 per cent of a commercial quantity. The quantity of methamphetamine in relation to charge 3 was 3.7 times a commercial quantity. The total quantity of methamphetamine the subject of charges 2 and 3 was 4.4 times a commercial quantity. Kachunga played an important and trusted role. Not only was he entrusted to collect and hold valuable quantities of drugs, he was also trusted to make significant money transactions related to drug importations between 1 October 2013 and 28 February 2014 (charge 1). His motive was financial reward of an undisclosed amount. General deterrence is particularly important for such offending. Previous good character is not to be given as much weight as would usually be the case. The plea of guilty was not entered until a few days after the trial was listed to commence. Comparative cases for both marketable and commercial quantity offending indicate that the impugned sentences and non-parole period are manifestly inadequate.
In relation to her submission that the sentence on charge 2 was manifestly inadequate, the Director relied on the following marketable quantity cases and the schedules thereto: Harrington, Lau, OPQ and Pham. I have already summarised each of these case in dealing with Masange.[149]
[149]See [119]–[123] above.
The Director also relied on these marketable quantity cases, and several commercial quantity cases, for her submission that Kachunga’s sentence on charge 3, the total effective sentence and the non-parole period were manifestly inadequate. The commercial quantity cases on which she relied were the same as she relied on in respect of Masange with two additions, that is, Tiknius v The Queen[150] and H D Nguyen.
[150][2011] NSWCCA 215 (‘Tiknius’).
In Tiknius, the offender pleaded guilty to two charges. Charge 1 was aiding and abetting the importation of a commercial quantity of amphetamine. Charge 2 was possession of a marketable quantity of MDMA. He was originally sentenced to 10 years’ imprisonment on charge 1 and six years’ imprisonment on charge 2 (one year cumulative), making a total effective sentence of 11 years’ imprisonment with a non-parole period of six years and six months. The quantity of amphetamine was 2.71 times a commercial quantity. Tiknius, who had accumulated a drug debt in his home country Lithuania, agreed, under duress, to assist in the importation of drugs concealed in statues.[151] He travelled to Australia three times from Lithuania for this purpose. He was involved for approximately 12 months. He played a substantial intermediate role. He took receipt of the statues here, arranged for their storage, and in relation to the MDMA in the first statue, passed on some of its contents. He was in his late 20s and had no prior convictions. His appeal against sentence was upheld and he was resentenced to eight years’ imprisonment on charge 1 and five years’ imprisonment on charge 2 (one year cumulative), making a total effective sentence of nine years’ imprisonment with a non-parole period of five years.
[151] The primary judge found that Tiknius’s life and his girlfriend’s life were threatened.
In H D Nguyen, the offender Peter Tran and his co-offenders pleaded guilty to importing a commercial quantity of heroin. It will be recalled that I discussed H D Nguyen earlier when dealing with Masange. I note, too, that Kachunga relies on the sentence given to Aaron Tran. H D Nguyen was sentenced to nine years’ imprisonment with a non-parole period of five years and six months. Peter Tran was sentenced to seven years and six months’ imprisonment with a non-parole period of four years and six months. Aaron Tran was sentenced to four years and six months’ imprisonment to be released on recognizance after two years and nine months. The quantity of heroin was 4.16 times a commercial quantity. Nguyen engaged Peter Tran in order to distance himself from the importation. Peter Tran’s role was to liaise with and take directions from Nguyen, facilitate the clearance by customs of the consignment, take receipt of the consignment, transport it to Nguyen’s home and assist in the unpacking of the drugs. Aaron Tran’s role, which lasted only two days, was to assist his friend Peter Tran to move the consignment into Peter Tran’s garage, help him take the consignment to Nguyen’s and help Nguyen and Peter Tran unpack the crates. The primary judge found that Aaron Tran’s role was the least important and was not crucial to the success of the operation; he accepted that Aaron Tran did not become aware of the illegal contents of the crates till the crates were opened. The primary judge found that Aaron Tran became involved in the offending at a time when he was dependent on cocaine following the death of his father and the termination of a long standing relationship with his girlfriend. Nguyen said he was to receive a large amount of money for his role. Peter Tran said he was to receive $10,000. What Aaron Tran was to receive for his services is not indicated in the judgment. All three offenders were aged 20 at the time of the offending and had no prior convictions. The Director’s appeals against the sentences were dismissed.
Kachunga’s submissions
Kachunga submitted that the ground of manifest inadequacy is a difficult one to make good. The degree of cumulation (six months of the sentence on charge 2) was modest but justified by the principle of totality. It was submitted that this Court should not interfere in circumstances where an experienced criminal judge considered it timely to extend mercy to a youthful offender whose early life was marked by extreme trauma and deprivation.[152] Although the plea of guilty was entered after the trial was listed to commence, the plea indictment was significantly different to the trial indictment: charge 2 of the plea indictment alleged an attempt to possess a marketable quantity of drugs on 29 April 2014, not a commercial quantity as had been alleged on the trial indictment. The impugned sentences and non-parole period were commensurate with Kachunga’s role which was said to be at the low or bottom end of the so called syndicate. He was under the influence of Masange. The primary charge — charge 3 — alleged possession of a commercial quantity on a single day. The number of multiples of a commercial quantity was at the lower end for offences of this kind. The sentences imposed may have been lenient but they were still significant ones. The primary judge was mindful of the importance of general deterrence. But he was also appropriately mindful of Kachunga’s otherwise good character, despite the trauma and deprivation that marked his early life.
[152] See also Cobiac v Liddy (1969) 119 CLR 257, 269 [3] (Windeyer J).
As for comparators, Kachunga relied on Aaron Tran, as mentioned above.
Analysis
The primary charge, charge 3, carried a maximum penalty of life imprisonment. The quantity possessed by Kachunga (2.8 kilograms) was 3.7 times a commercial quantity of methamphetamine, a significant and valuable amount.
Although charge 3 alleged possession on a single day, Kachunga’s criminality in relation to charge 3 had to be assessed in the context of Kachunga’s ongoing role in the syndicate. This included the money transactions (totalling $88,637) between 1 October 2013 and 28 February 2014 in relation to the importing of drugs. It also included the attempt to possess 67 per cent of a commercial quantity of methamphetamine on 29 April 2014, that is, three days before he was found in possession of 2.8 kilograms of methamphetamine.
The primary judge found that he played a trusted role which ‘was important for those higher up’.[153] Contrary to the interpretation put on the primary judge’s sentencing remarks by Kachunga in this appeal, the primary judge did not accept Kachunga’s submission that he was ‘at the low or bottom end of the so called syndicate’. The primary judge’s response to that submission was ‘such propositions are difficult to assess’.[154] Given Kachunga’s ongoing role in the syndicate, the primary judge’s cautious response is understandable.
[153] Kachunga Reasons [18].
[154] Ibid.
It was submitted by Kachunga on appeal that his role ‘was not to be equated with a courier and certainly nothing above that‘. But, as the Acting Chief Justice pointed out during the appeal hearing ‘a courier is a mere instrument of transport from A to B. Someone who’s entrusted with quantities of this scale is someone who’s of more significance to the operation’. In my view, Kachunga’s role was above that of a courier and nothing that the primary judge said in his sentencing remarks is at odds with that view.
When one turns to the comparator relied on by Kachunga, significant points of distinction are readily apparent. Aaron Tran’s role was brief (no more than two days) and unimportant. He fell to be sentenced for one offence only. He was only 20 at the time of offending whereas Kachunga was in his late 20s. Aaron Tran pleaded early while Kachunga pleaded guilty several days after his trial was listed to commence.
The comparators relied on by the Director involving both commercial quantities (especially Thomas & Wu) and marketable quantities (especially Harrington and Merrill) provide strong support for the view that the impugned sentences, total effective sentence and non-parole period were manifestly inadequate.
Save for the residual discretion, I would re-sentence Kachunga on charge 2 to four years’ imprisonment (12 months cumulative) and on charge 3 to six years and six months’ imprisonment, making a total effective sentence of seven years and six months. I would impose a non-parole period of four years and six months.
Residual Discretion
The Director's submissions
In her written case, the Director submitted there ‘was no apparent reason why the residual discretion not to interfere should be exercised … there has been no conduct by the Crown contributing to error’.
The Director submitted that sch 3 which was provided to the primary judge at Kachunga’s plea hearing did not suffer from the same defects as the two schedules supplied in the course of Masange’s plea hearing: no GBL cases were contained in sch 3. There was no potential misleading of the primary judge; at most, there was just a failure to assist. This Court could send a clear message that the assistance given to the primary judge by the Director was inadequate without needing to dismiss the appeal in the exercise of the residual discretion.[155]
[155] See Green v The Queen (2011) 244 CLR 462, 477–8 [37].
Kachunga’s submissions
Kachunga submitted that the Director failed to give the primary judge any assistance ‘as to national consistency in sentencing standards for federal offences.’ The Director failed to make submissions to the primary judge regarding sch 3 and the cases referred to therein. In its written submissions to the primary judge, all the Director said was ‘[t]he Crown submits that these cases may provide some guidance as to sentencing for this type of offending, albeit that none of these cases involve notably similar circumstances.’ In oral submissions, when the primary judge questioned why the Director was providing him with a schedule of cases in respect of offenders who played an ‘intermediate or courier role‘, the Director merely acknowledged that neither role fitted Kachunga. Schedule 3 referred to commercial quantity cases only and many of the cases involved quantities of drugs which were ‘considerably more’ than Kachunga possessed. Schedule 3, it was submitted, was not relevant to charge 2 — attempting to possess a marketable quantity. No cases or schedules in relation to marketable quantity offences were provided by the Director to the primary judge. None of the cases relied upon by the Director on the appeal were brought to the primary judge’s attention by the Director other than Agboti, which was the last case referred to in sch 3.
By misleading the primary judge in relation to Masange — through the provision of schs 1 and 2 which contained GBL cases — the Director also indirectly misled the primary judge in relation to Kachunga since the Director’s case was that Kachunga and Masange were members of the same Congolese syndicate with Kachunga playing the lesser role: the primary judge indicated, without demur by the Director, that Kachunga would therefore receive the lesser sentence.
Analysis
That Kachunga’s sentence was affected by Masange’s sentence is apparent from the primary judge’s sentencing remarks:
Comparison with Masange was not expressly raised but was perhaps implicit in what was put in your behalf on the plea. Some of your activity was similar; however I accept what has been said about your relationship with him and the development of your involvement in the offending. His was the more extensive and senior role. Your sentence should be lesser than his.[156]
[156] Kachunga Reasons [27].
The Director’s failings in relation to Masange at first instance — in particular, the failure to take issue with Masange’s submission based on the fourth grouping in De La Rosa — had a ‘knock on effect’ in relation to Kachunga. When these failing are added to the lack of assistance given by the Director to the primary judge at Kachunga’s plea hearing — no analysis of the cases included in sch 3, no schedule of marketable quantity cases and no reference to the many cases relied on by the Director in this appeal save for Agboti — one cannot be satisfied that the Director has discharged her burden in relation to the residual discretion and consequently, her appeal must be dismissed.
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