DPP (Cth) v Merrill
[2015] VSCA 52
•1 April 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0275 | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| EVAN MERRILL[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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JUDGES: | MAXWELL P, WEINBERG and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 March 2015 | |
DATE OF JUDGMENT: | 1 April 2015 | |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 52 | |
JUDGMENT APPEALED FROM: | DPP v [Merrill] (Unreported, County Court of Victoria, Judge Cotterell, 19 November 2014) | |
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CRIMINAL LAW – Sentence – Crown appeal – Trafficking a marketable quantity of a controlled drug (methamphetamine) – Whether sentence of 42 months’ imprisonment with release on recognisance after serving 14 months manifestly inadequate – Sentence manifestly inadequate – Respondent re-sentenced to 6 years’ imprisonment with non-parole period of 4 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Gurvich | Commonwealth Director of Public Prosecutions |
| For the Respondent | Mr A D Trood | Emma Turnbull Lawyers Pty Ltd |
MAXWELL P
WEINBERG JA
BEACH JA:
Introduction
On 15 October 2014, the respondent pleaded guilty in the County Court to one charge of trafficking a marketable quantity of a controlled drug, namely methamphetamine, contrary to s 302.3(1) of the Criminal Code Act 1995 (Cth) (‘Code’). On 19 November 2014, the respondent was sentenced as follows:
Charge on Indictment Offence Maximum Sentence 1 Trafficking a
marketable quantity of a controlled drug [Code s 302.3(1)]25 years and/or $5,000 penalty units 42 months. The respondent was ordered to be released after serving 14 months upon the respondent giving security by recognisance of $5,000 to comply with the condition imposed that the respondent be of good behaviour for a period of 30 months pursuant to s 20(1)(b) of the Crimes Act1914 (Cth) Pre-sentence Detention Declared: 251 days 6AAA Statement: 54 months with a non-parole period of 34 months
The Commonwealth Director of Public Prosecutions has appealed against the respondent’s sentence on the following grounds:
1.The learned sentencing judge erred in finding on the balance of probabilities that the respondent was subject to duress. As a corollary of this finding, the sentencing judge erred in finding that the respondent did not offend for profit.
2.The learned sentencing judge erred by failing to assess properly the impact of any duress finding on the objective gravity of the respondent’s offence and his moral culpability.
3.The learned sentencing judge erred in taking into account as mitigation that the respondent’s separation from his family would make prison more burdensome.
4.The sentence imposed on the respondent in respect of the charge is manifestly inadequate.
The offending
The respondent travelled to Australia from Malaysia on 1 March 2014 and entered into a rental agreement for a short-term accommodation premises in Reservoir (‘the Reservoir address’). He returned to Malaysia on 2 March 2014.
On 12 March the respondent returned to Australia and gave the Reservoir address as his intended address on his incoming passenger card.
A baggage examination was conducted, during which the respondent told customs officers that he was travelling on business and was employed by his father-in-law. The respondent told customs officers that his previous trip (1–2 March) had been cut short due to his wife’s (who he initially claimed was his travel companion) mother falling ill. However, he then said that he had lied about travelling with his wife and that his companion had in fact been a person by the name of KK. The respondent told customs officers that he had also booked alternative accommodation — a hotel room in Preston (‘the Preston address’).
During the examination by customs on 12 March, the respondent returned a positive test for methamphetamine. He was referred to the Australian Federal Police (‘AFP’) and was transferred to the Royal Melbourne Hospital where a CT scan was taken. The scan was negative. The respondent was then released.
At 6:00pm on 12 March, the respondent purchased a screwdriver set and a handyman tool set and checked into the Preston address. On 12 March at 4:15pm FedEx delivered four consignments to a KK at the Reservoir address. Each package had a gross weight in excess of 20 kilograms.
On 13 March 2014, the respondent was placed under surveillance. At about 10:55pm, the AFP executed a search warrant at the Preston address. As a result of the search, a plastic container of crystal methamphetamine was discovered. Subsequently, police took possession of a further plastic container of crystal methamphetamine. Other empty plastic containers with traces of a white crystalline substance were also found. Another package associated with the respondent was discovered on the ground floor of the Preston address. This package contained two small amounts of crystal methamphetamine.
The respondent was arrested at 11:25pm. A search of the Reservoir address was conducted in the early hours of 14 March 2014 and a number of relevant items were found, although only traces of methamphetamine were discovered.
Analysis of the drugs found determined them to contain 878.8 grams net, or 688.8 grams pure methamphetamine. The potential value of the methamphetamine imported was estimated at somewhere between $356,500 and $403,000 if sold wholesale,[2] although the street value was said to be somewhere in excess of $800,000.
[2]Depending upon whether it was sold at $11,500 per ounce at current purity, or $13,000 per ounce at current purity.
The plea hearing
At the commencement of the plea hearing, Detective Sergeant Feltham gave evidence. He gave evidence that, in a private conversation that he had with the respondent shortly after his arrest inside the hotel room, the respondent told him that he had received threats of harm against him and his family should the drugs not arrive or should police become involved. Mr Feltham made handwritten notes of this conversation but did not audio record it. Mr Feltham agreed that he wrote in his notes that the respondent stated to him that he ‘didn’t want others to know’ and that the respondent had explained that the drug boss XW had arranged with the respondent to attend at the hotel.
Mr Feltham gave evidence that he was of the view that, while he could not conclude that XW was the person presenting the threat, this was the only real conclusion that could be made. Mr Feltham agreed that in a statement he had made on 6 October 2014 about the handwritten notes he made at the time of the respondent’s arrest, he did not include any detail of the threats that the respondent said he had received.
Mr Feltham asked the respondent for further details about the threats he had said he received. However, the respondent only provided him with limited information to substantiate the threat.
The respondent did not give evidence and, apart from the tendering of various documents, no other evidence was called on the plea.
The judge’s reasons
The judge commenced her reasons for sentence[3] by setting out the relevant facts of the respondent’s offending. The judge then said:
This is very serious offending and it is regarded as such by the parliament of this country which has seen fit to impose a maximum penalty of 25 years’ imprisonment for cases such as yours. I note that the value of the drugs that were imported and although there is no evidence that you were to receive anything for your participation in what is obviously an organised enterprise involving an international organisation. On the contrary, it was raised in your defence that when you became involved in this enterprise you were acting under duress. It was also submitted that threats had been made against your wife and child who remain in Malaysia.[4]
[3]DPP v [Merrill] (Unreported, County Court of Victoria, Judge Cotterell, 19 November 2014) (‘Reasons’).
[4]Reasons [16].
Next, the judge turned to the respondent’s personal circumstances. At the time of sentencing, the respondent was aged 31 years. At the time he was apprehended, he was a resident of Malaysia, where he lived with his wife and daughter. The respondent had no prior convictions and, as the judge described it, he had ‘an excellent employment record’.[5] In dealing with the respondent’s background, the judge made reference to various documents tendered on the plea, including a letter of apology to the Court written by the respondent.
[5]Ibid [17].
As to the issue of threats, the judge said:
As I indicated, submissions have also been made on your behalf in relation to you being subjected to threats and that duress was the only motivation for this alleged offending. The threats were allegedly made against you and your family, as I mentioned earlier, and that the information you gave about that was during a private conversation which you had, at your request, with the informant, Federal Agent Feltham. In that conversation you informed him of the threats that had been made against you and your family if the drugs did not arrive and were collected in Australia and if there were police involved. You told Federal Agent Feltham that the threats were made by a person named XW and, as I mentioned previously, you provided the name of that person and a telephone number, although they did not succeed in tracing that person.
You had asked to have a private discussion with Federal Agent Feltham because you were afraid of anyone else finding that you were providing information.
You had also provided information at the time you were intercepted. That was indicating the sample left in the downstairs toilet at the motel and that the person who contacted you by phone while you were speaking to the police you thought may have been the purchaser who was to collect that sample.
Federal Agent Feltham gave evidence about the private conversation during your plea hearing as it had not been included in any other documentation. During your record of interview you referred to this conversation and indicated your fear that if you had taken the opportunity to contact your embassy, which was an option offered to you, others may learn about you speaking to the police.
So submissions were made on the facts in relation to the unusual behaviour you exhibited in that even knowing from the time you arrived in Australia that you were under suspicion you went through the accepting of the consignment of the importation and with removing it to another address and dismantling and organising matters in relation to the material that had been imported.
Counsel on your behalf made a submission that the defence was required to show that on the balance of probabilities you were subjected to threats and he relied on those facts I just mentioned, the continuing with the consignment despite being under suspicion, your private conversation and you recording what occurred in the hospital in order to be able prove that it was not your fault that you had come to the attention of the Federal Police; also, of course, because you had undergone the scan, you had been released and you continued to make arrangements to accept the consignment.
During that conversation with Federal Agent Feltham it was submitted that you told him that the purpose of your original visit to Australia was to check that the address was okay for the purposes up at office. However, Federal Agent Feltham gave evidence in this court that you said you had added the words ‘to accept a consignment’. This additional information does not appear in Federal Agent Feltham’s notes. There was extensive cross-examination in relation as to whether those words were said or not and the submission made by your counsel was that I would have to be satisfied beyond reasonable doubt that you did in fact go on to say that it was to accept a consignment and with what had before I do not beyond reasonable doubt [sic] that those words were used in that private conversation.
So given the behaviour that you exhibited which [I] have referred to already, together with what has been put on your behalf, and the indications that you made in your record of interview of your fear of anyone finding out that you were talking to police I have found on the balance of probabilities that you were subject to some form of threat or duress because otherwise your behaviour would not make any sense.[6]
[6]Ibid [23]–[30].
In sentencing the respondent, the judge took into account her finding that there had been some form of threat or duress. Her Honour also took into account the various matters put in mitigation on the plea.[7] The judge then said:
I have taken into account all the other factors referred to in s 16A of the Commonwealth Crimes Act to which I am required to have regard in sentencing you and in addition to those matters I have taken into account the principle of general deterrence, that is, that others who would come to this country and facilitate the importation and supply of drugs into the market which operates in this community to the enormous detriment of the health and wellbeing of its members and the criminal activity sparked by the supply and trafficking of such drugs, including serious violent crime, will, if detected, result in very serious consequences for those who participate.
Having weighed all those matters I have concluded that a term of imprisonment is the only appropriate sentence, given the seriousness of the offending and in considering the duration of your sentence, I note that I must impose a sentence which is of a severity appropriate in all your particular circumstances.[8]
[7]Ibid [31].
[8]Ibid [32]–[33].
Grounds 1 and 2: duress
In grounds 1 and 2, the appellant makes three complaints: first, that the judge erred in finding on the balance of probabilities that the respondent was subject to some form of threat or duress;[9] secondly, that the judge erred in finding that the respondent did not offend for profit; and thirdly, that the judge erred by failing to assess properly the impact of any duress on the objective gravity of the respondent’s offence and his moral culpability.
[9]As to the potentially mitigating factor of duress that falls short of providing a defence to a charge, see Tiknius v The Queen (2011) 221 A Crim R 365, 374 [32], 375–6 [41]–[45].
The prosecutor before the judge[10] was content to let the plea proceed on the basis that the informant’s evidence of what he was told by the respondent as to threats or duress was evidence that the judge was entitled to act upon as proof of the truth of what the respondent told the informant. No complaint was made on the hearing of this appeal that such evidence as was given, on the issue of threats and duress, was not (as one might have expected) given by the respondent.
[10]Not counsel who appeared for the appellant on this appeal.
However, the appellant contends that the evidence given was so lacking in detail that it should not have been taken into account in any relevant way by the judge. Specifically, the appellant contends that without more detail as to the precise terms of the threat(s) and the time or times of when (and circumstances in which) the respondent was threatened, one cannot determine what if any operative effect such threat or threats had on the respondent. For example, it might be one thing if there was a threat which operated in some way on the respondent’s mind before he agreed to engage in any criminal conduct. It might be another, if a threat was only made at some point after the respondent had agreed to commit an offence — but at a time when the respondent might have expressed some reluctance.
All of that said, having regard to the way in which the plea was conducted, we see no error in the judge concluding that because of the respondent’s unusual behaviour after he was apprehended upon his return into Australia, there was likely (to use the judge’s words) ‘some form of threat or duress’. The problem is in determining what form of threat or duress, and what if any relevance it had to the respondent’s commission of the offence. However, and in any event, while the judge obviously took the existence of a threat or duress into account in her sentencing synthesis, we do not read the judge’s reasons as having given the matter any great or substantial weight. The question, so far as this issue is concerned, seems to us to fall more properly under the heading of whether the sentence imposed was in fact manifestly inadequate. In the absence of manifest inadequacy, we do not see the appellant’s complaints under grounds 1 and 2 as forming a basis for allowing the appeal and increasing the respondent’s sentence.
Finally, we see nothing in the appellant’s complaint that the judge, ‘as a corollary’ of her finding on duress, found that the respondent did not offend for profit. Her Honour made no such finding. Her Honour merely noted that there was no evidence that the respondent was to receive anything for his participation in the trafficking of the methamphetamine.[11] In this, the judge was plainly correct.
[11]Reasons [16].
Ground 3: separation from family resulting in imprisonment being more burdensome
Whether the judge was right to take into account the respondent’s isolation that he would endure while he was serving a term of imprisonment in Australia[12] depended upon a finding of whether a threat or duress operated to bring the respondent to Australia to commit the offence. If the respondent came to Australia to commit the offence, and some threat or duress was made after that time, then, consistently with authority,[13] the fact that imprisonment in Australia might be more burdensome to the respondent by reason of his isolation is not a matter that should be taken into account. If, on the other hand, a threat or duress played a part in the respondent coming to Australia to commit the offence, then the fact of prison being more burdensome might be taken into account as a mitigating factor.[14]
[12]Ibid [31].
[13]See for example, DPP (Cth) v Peng [2014] VSCA 128, [27]–[29] (Nettle and Redlich JJA, with whom Priest JA agreed).
[14]Cf DPP (Cth) v Estrada [2015] VSCA 22, [38] (Priest and Beach JJA and King AJA).
It is possible that the judge took into account the more burdensome nature of the respondent’s incarceration by reason of his isolation because she did not think that he came to Australia entirely of his own free will (before any threat or duress) to commit his offence. While the judge’s reasons do not contain an express conclusion to that effect, it is possible that that was the judge’s thought process. If that was the judge’s thought process, we are unable to conclude that it involved any relevant error — albeit that the evidence upon which such a conclusion might be based was thin.
Ground 4: manifest inadequacy
In reality, this appeal falls to be determined by reference to whether it can be said that the sentence imposed by the judge was manifestly inadequate. As has been said many times before, questions of manifest inadequacy do not permit of much argument.
The maximum term of imprisonment for trafficking a marketable quantity of a controlled drug is 25 years. A marketable quantity of methamphetamine is between 250 grams and 750 grams. The quantity in the present case was 688.8 grams (pure), in excess of 90 per cent of the upper end of the marketable quantity range.
Notwithstanding the significant mitigating factors advanced on behalf of the respondent on the plea hearing, and to which reference was made by the judge in her reasons,[15] in our view the sentence imposed was wholly outside the range of available sentencing options and manifestly inadequate. While comparable cases can only be a guide, reference to those cases, and the sentences referred to in them, imposed for the offences of possessing, attempting to possess and trafficking marketable quantities of controlled drugs, show that a sentence of 42 months’ imprisonment, with release on recognisance after 14 months, is not in the range for offending of this kind, involving, as it did, an amount at the upper end of the marketable quantity range.[16]
[15]See in particular, Reasons [8]–[11], [17]–[31] and [34].
[16]See generally OPQ v The Queen [2012] VSCA 115 (sentence of six years, with a non-parole period of three and a half years) and the table of cases referred to in the schedule to that judgment (including the sentence in Lau v The Queen [2011] VSCA 324, where a sentence of nine years’ imprisonment, with a non-parole period of six years, for a courier who pleaded guilty to the importation of a marketable quantity of methamphetamine (709.8g), was held not to be manifestly excessive). See also Pham v The Queen [2014] VSCA 204 (where this Court allowed an appeal against sentence, in a case involving an importation of an amount that represented only 38.4 per cent of the upper end of the marketable quantity range, and reduced a term of imprisonment, of eight years and six months, with a non-parole period of six years, to six years, with a non-parole period of four years).
Conclusion
The appeal must be allowed. Taking into account the objective seriousness of the respondent’s offending, but having regard to the significant mitigating factors to which reference has already been made, we propose to re-sentence the respondent to a term of imprisonment of six years, with a non-parole period of four years.
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