DPP v Bowen
[2021] VSCA 355
•17 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0059
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| BRADLEY BOWEN | Respondent |
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| JUDGES: | MAXWELL P, PRIEST, McLEISH, T FORREST and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 October 2021 |
| DATE OF JUDGMENT: | 17 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 355 |
| JUDGMENT APPEALED FROM: | [2021] VCC 516 (Judge Gaynor) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Trafficking in commercial quantity of drug of dependence – Category 2 offence – Total effective sentence 1 year’s imprisonment with 30 month CCO – Whether manifestly inadequate – Whether open to impose combination sentence – Legislative hurdle for non-custodial order not met – Sentence not authorised by law – Combination sentence otherwise appropriate – Need for reconsideration of stringency of hurdle – Appeal allowed – Resentenced to 3 years’ imprisonment with non-parole period of 18 months – Sentencing Act1991 ss 5(2H)(e), (2HC), (2HI).
CRIMINAL LAW – Appeal – Sentence – Sentencing principles – Totality – Where offender already serving sentence – Offending breached parole – Parole cancelled – Required to serve remainder of head sentence for prior offending – Whether judge erred in application of totality principle – Consideration of total period of custody required – No error – Postiglione v The Queen (1997) 189 CLR 295 applied – McCartney v The Queen (2012) 38 VR 1, Waugh v The Queen (2013) 38 VR 66 overruled – Sentencing Act 1991 s 16(3B).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce QC with Ms J Wang | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent | Mr T Kassimatis QC with Ms J Willard | Papa Hughes Lawyers |
MAXWELL P
PRIEST JA
McLEISH JA
T FORREST JA
WALKER JA:
Summary
This appeal by the Director of Public Prosecutions raises a point of general importance about the application of the principle of totality in a particular class of case. The cases in question are those where the offending before the sentencing court breached the parole which the offender was undergoing at the time, resulting in a cancellation of parole and a return to custody.
In order to explain the point at issue, we should first define some terms. This is best done by reference to the typical sequence of events in such a case, as follows:
(1)A person (A) commits offences for which he/she receives a head sentence with a non-parole period.
(2)Having served the non-parole period, A is released on parole.
(3)While on parole, A commits further offences, the commission of which constitutes a breach of parole.
(4)The Parole Board cancels A’s parole, as a result of which A is returned to custody to serve (some or all of) the balance of the sentence.
In what follows, we will refer to the first set of offences in this sequence as ‘the prior offending’ and the sentence imposed for those offences as ‘the original sentence’. The period between the end of the non-parole period and the expiry of the head sentence is referred to as ‘the parole period’. We will refer to the subsequent offending as ‘the breach offending’ and the sentence imposed for that offending as ‘the breach sentence’. We will use the term ‘the reclaimed period’ to refer to the period which the offender is required to serve under the original sentence by virtue of the cancellation of parole.[1]
[1]Corrections Act 1986 s 77B(2)(b).
The question which arises is as follows: when the court comes to impose sentence for the breach offending, does the principle of totality require the court to take into account the entire period which the offender has served (or will have served) under the original sentence, or just the reclaimed period?
The judge in the present case took into account the entire period of custody. As the Director points out, however, the decisions of this Court in McCartney v The Queen[2] and Waugh v The Queen[3] held that regard could only be had to the reclaimed period. The Director submits that the judge erred by not applying those decisions.
[2](2012) 38 VR 1; [2012] VSCA 268 (‘McCartney’).
[3](2013) 38 VR 66; [2013] VSCA 36 (‘Waugh’).
For reasons which follow, we have concluded that those decisions should no longer be followed. Considerations of both principle and practicality demonstrate that the approach adopted by the sentencing judge is correct, that is, to have regard to the entire period of custody served under the original sentence.
The principle of totality is, essentially, a principle of proportionality. Put another way, totality is a particular expression of the foundational sentencing principle that a sentence should be proportionate to the criminal conduct for which it is imposed.[4] In the ordinary case where sentence is to be imposed for multiple offences, the principle of totality requires the court to ask itself whether the proposed total effective sentence is proportionate to the aggregate criminality involved in all of the offending.[5]
[4]Boulton v The Queen (2014) 46 VR 308, 325 [64]; [2014] VSCA 342 (‘Boulton’).
[5]Azzopardi v The Queen (2011) 35 VR 43, 59 [57] (Redlich JA, Coghlan and Macaulay AJJA agreeing); [2011] VSCA 372 (‘Azzopardi’).
In a case like the present, where a breach of parole is involved, totality requires the sentencing judge to consider two sentences: the sentence to be imposed for the breach offending and the original sentence imposed for the prior offending. The court needs to satisfy itself that the combined effect of those two sentences will not be disproportionate to the aggregate criminality involved in the breach offending and the prior offending.
This appeal also raises a separate point about the legislative barrier to the imposition of a non-custodial order (including as part of a combination sentence) for certain classes of offence. The offence to which the respondent (‘BB’) pleaded guilty — trafficking in a commercial quantity of a drug of dependence — is a ‘category 2 offence’, to which the barrier applies.
The judge concluded — for cogent and detailed reasons, including totality — that a combination sentence of 12 months’ imprisonment and a 30 month community correction order (‘CCO’) would meet all of the applicable sentencing objectives. As the Director points out, however, that sentencing option was not available to the judge unless she was satisfied that there were ‘substantial and compelling circumstances that [were] exceptional and rare’, which justified a departure from the mandatory requirement of imprisonment.
That requirement is — no doubt quite deliberately — almost impossible to satisfy. BB’s circumstances did not nearly meet the requirement, and this Court must therefore resentence him. This case does, however, highlight how seriously this legislative barrier can work against the public interest.
For the reasons which her Honour gave, which are set out in full below, this was precisely the kind of case for which a combination sentence would have been suitable. The additional 12 months’ imprisonment would have provided sufficient punishment, while a CCO with conditions requiring treatment and judicial monitoring would have been the best way to advance BB’s prospects of rehabilitation and — hence — to reduce the risk of him reoffending.[6]
[6]See Boulton (2014) 46 VR 308; [2014] VSCA 342.
As this Court explained in Boulton,[7] a CCO with appropriately tailored conditions can advance the interests of the community in ways that a prison sentence cannot. Given the priority which governments quite properly attach to community safety, consideration should be given to lowering this legislative barrier, so that judges are better able to advance that objective.
[7]Ibid 328 [74]–[75] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
Factual background
In June 2019, BB was residing in premises in Melton with his mother and his wife and children. On 12 June 2019, police received information suggesting that a clandestine laboratory was in operation there. Police attended, intercepted BB in his vehicle outside the premises and arrested him.
While waiting for the Clandestine Laboratory Squad to arrive, BB told police, ‘What you are looking for is in the shed and on top of my wardrobe’. BB then told police that the chemicals in the shed were such that they should wear masks and rubber gloves; there were syringes and vials in the top of the wardrobe; there were precursors and acids in the shed; and there were two burners in the shed. BB also said that he wanted to go back to prison.
Having entered the shed using a key on BB’s keyring, police located a laboratory. They found large quantities of scientific glassware, and literature about the manufacture of methylamphetamine (charge 2). Substances were being heated on the electric stove inside the locked shed as part of the methylamphetamine manufacturing process.
Police obtained samples of methylamphetamine from the shed, and washings were subsequently recovered from other pieces of equipment. The total weight of chemicals containing methylamphetamine recovered from the shed and analysed was 3418.9 grams, of which 192.1 grams was pure methylamphetamine (charge 1). Police also located precursor chemicals: 222.8 grams of iodine; 131.3 grams of mercuric chloride; and 18845 grams of aluminium (charge 2).
When interviewed by police, BB admitted manufacturing methylamphetamine. He told police that, at the time of the search, he had left some of the substances heating on the burners inside the shed.
BB pleaded guilty to trafficking in not less than a commercial quantity of a drug of dependence, methylamphetamine;[8] possessing substances, materials, documents or equipment for trafficking a drug of dependence;[9] and possessing a drug of dependence;[10] and the related summary offence of breaching a prescribed condition of a parole order.[11]
[8]Drugs, Poisons and Controlled Substances Act 1981 s 71AA. The maximum sentence is 25 years’ imprisonment.
[9]Ibid s 71A. The maximum sentence is 10 years’ imprisonment.
[10]Drugs, Poisons and Controlled Substances Act 1981 s 73. The maximum sentence is 1 year’s imprisonment and/or 30 penalty units.
[11]Corrections Act 1986 s 78A. The maximum sentence is 3 months’ imprisonment and/or 30 penalty units.
There are three grounds of appeal. The first two grounds claim specific error, and the third asserts manifest inadequacy. They are formulated as follows:
1The learned sentencing judge erred in applying the principle of totality by taking into account the period that [BB] had served in custody for previous offending prior to the cancellation of his parole.
2The learned sentencing judge erred by imposing a sentence of imprisonment in addition to making a community correction order without considering the requirements of s 5(2H) of the Sentencing Act 1991 and in circumstances where s 5(2H) did not permit such an order to be made.
3The aggregate sentence of 12 months’ imprisonment with a community correction order for a period of 30 months imposed in respect of all the charges was manifestly inadequate.
Ground 1: breach of parole and totality
On 12 May 2014, BB had been convicted of armed robbery, false imprisonment and possession of a firearm, and sentenced to a total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years. He was released on parole on 29 November 2017, having served 4 years and 18 days of the sentence.
As a result of the present offending, BB’s parole was cancelled. At that point, he had been on parole for 18 months and 16 days. He was, however, required to serve the entire parole period of 2 years.[12] By the time the judge imposed sentence for the breach offending, BB had served 22 months of that period and — hence — almost the full 6 years of the original sentence.
[12]Corrections Act 1986 s 77B(2)(b).
As noted earlier, the Director submits that the judge should only have had regard to the reclaimed period, that is, the 2 years which BB was serving as a result of the cancellation of his parole. Instead, as appears from the following passages of her reasons for sentence, her Honour had regard to the entire period of 6 years served under the original sentence:
The question is why you engaged in this offending, which immediately resulted in your parole being cancelled. You have been in custody ever since your arrest and your parole was cancelled and your release date is now 16 May 2021. So you have served virtually six years’ imprisonment.
…
Therefore the issue of totality comes into my sentencing considerations. In other words I take into account you have now served six years. And in the circumstances I am concerned that any term of imprisonment I do impose upon you is going to lead to you being in gaol for a considerable period of time. And this is a matter that has weighed heavily upon me.
…
You completely put at risk everything you had achieved for no sensible reason beyond an obsession with these materials, which again as you frankly said to police might have resulted in you being able to produce ice and you might have sold it. And that has resulted in you being sent straight to gaol having to serve out the remainder of your non-parole period, putting you in a position where you have now served six years for this offending.
…
Despite the extremely persuasive and well put arguments by [the prosecutor] in this plea, I have decided after much thought that I am going to accede to your counsel’s request [for a combination sentence]. Largely there are two major factors underlying that decision. The first is that in ordering a combination disposition the incarceration element of it will be 12 months. That will be served additionally to the sentence you are currently undergoing and that will result in a total of seven years, which I regard as sufficient in terms of the offending for which you were originally sentenced and the offending you have now engaged in.
…
And the offending is very serious; however, as I have said, totality plays a large part in my decision to decide as I have and I am still of the view that even in the light of counsel’s very properly made, reasoned submissions the seven years that Mr Bowen will end up serving is sufficient in all the circumstances.[13]
[13]DPP v Bowen [2021] VCC 516, [41], [59], [70], [80], [181] (emphasis added) (‘Reasons’).
As noted earlier, this Court in McCartney[14] and Waugh[15] held that the court sentencing for the breach offences could take into account — for the purposes of totality — only the ‘reclaimed period’ of custody, that is, the time which the offender was required to serve under the original sentence following the cancellation of parole. In order to explain how those decisions were arrived at, it is necessary to trace the course of authority in this Court.
[14](2012) 38 VR 1; [2012] VSCA 268.
[15](2013) 38 VR 66; [2013] VSCA 36.
The starting point is the following statement of McHugh J in Postiglione v The Queen:[16]
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.
The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon:
When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.[17]
[16](1997) 189 CLR 295; [1997] HCA 26 (‘Postiglione’).
[17]Ibid 308 (emphasis added) (citations omitted).
As can be seen, the ‘extension’ of the totality principle here described applies to any case where the offender being sentenced is already serving a sentence. In such a case, totality requires that the total criminality involved in both sets of offences be compared with ‘the total period to be spent in custody’ under both the existing and the proposed sentence. That total period should ‘fairly represent’ the total criminality involved in all of the offences.
Postiglione thus formulated a test of ‘full proportionality’ for the case of an offender already serving a sentence. That is, the full period of custody under the two sentences (existing and proposed) should be proportionate to the total criminality involved in the two sets of offences.
Cases like the present attract the extended totality principle described in Postiglione, since at the time of sentence the offender is ‘already serving a sentence’, being the original sentence. What is unusual about these cases is that the service of that sentence is the direct result of the breach offending, for which the offender must now be sentenced.[18]
[18]Corrections Act 1986 s 76.
Since 2001, this Court has heard a succession of appeals against sentences imposed for breach offending, the (relevant) ground of appeal being that the sentence offends against the principle of totality. In all of the early decisions, the ‘full proportionality’ test was taken as the starting point.
In 2001, in R v Berkelaar,[19] Buchanan JA (with whom Callaway and Chernov JJA agreed) said:
In Postiglione v R McHugh J referred to a line of authority in the Court of Criminal Appeal in New South Wales in which it had been held that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender was being sentenced, but also in any offences for which the offender was currently serving a sentence. When a sentence was to be made cumulative with an existing custodial sentence, the judge was to take into account the existing sentence so that the total period to be spent in custody adequately and fairly represented the totality of criminality involved in all of the offences to which the total period was attributable.[20]
[19][2001] VSCA 143 (‘Berkelaar’).
[20]Ibid [22] (citations omitted).
In 2007, in R v Alashkar,[21] the Court’s analysis began with the following statement, again citing Postiglione:
In the circumstances before us the totality principle requires the Court to have regard to all sentences which the prisoner is now undergoing. The principle requires the Court to evaluate the overall criminality involved in all the offences for which the prisoner is undergoing sentence and to ensure that there is appropriate relativity between the totality of the criminality and the totality of the effective length of sentences imposed, including circumstances whereby the sentence currently being served derives from a breach of parole.[22]
[21](2007) 17 VR 65; [2007] VSCA 182 (‘Alashkar’).
[22]Ibid 74 [38] (Vincent, Redlich and Kellam JJA) (citations omitted).
When considering the effect of the cancellation of the appellant’s parole, however, the Court did not apply the ‘full proportionality’ test. Instead of considering the total period of custody to be served under the original sentence and the breach sentence, the Court focused on the reclaimed period, that is:
[T]he additional period of incarceration required to be served by reason of the cancellation of the parole order [being] 2 years, 2 months and 21 days.[23]
The question to be addressed, the Court said, was whether:
[T]aking into account the determination of the parole board, a sentence [for the breach offences] of 5 years’ imprisonment with a non-parole period of 3 years in all the circumstances, offends the principle of totality.
The consideration of that principle must take into account the obvious intention of s 16(3B) of the Sentencing Act 1991 that where an offender commits a crime whilst released into the community on parole, in the ordinary course of events he will be required to serve the balance of the sentence earlier imposed. In our view, taking that matter into account, together with all other relevant circumstances including the length of that sentence, the sentence imposed cannot be said to be an unjust or an inappropriate measure of the total criminality involved. The appeal should be dismissed.[24]
[23]Ibid 75 [39].
[24]Ibid 75 [39]–[40] (emphasis added).
The 2009 decision in R v Mangelen[25] was very similar. Having restated the ‘full proportionality’ test from Postiglione, the Court proceeded to decide the appeal by reference only to the reclaimed period. First, in explaining the ‘extended’ totality principle, Redlich JA (with whom Ashley JA agreed) said:
Historically the principle of totality had been applied in circumstances where an offender fell to be sentenced for multiple offences to ensure that the aggregation of the sentences was a just and appropriate measure of the offender’s criminality. The ambit of the principle was extended to apply where the offences upon which the offender must be sentenced overlap with or will be cumulative upon an existing custodial sentence. In both of these situations the principle requires the court to consider the total criminality involved in all of the offences for which the offender is to be sentenced and the offences for which the offender is currently serving a sentence. The court must evaluate the overall criminality involved in all of the offences so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be and which have been imposed. If the total sentence is an unjust or inappropriate measure of the total criminality involved the sentence which the offender is required to serve will be moderated so that the aggregate of sentences imposed by reason of cumulation is not greater than any sentence required to fulfil the totality principle. The principle is to be applied to both the fixing of the head sentence and the non-parole period.
The principle has also been considered applicable where the sentence currently being served derives from a breach of parole. The transposition of the principle to such circumstances is not without its difficulties. If the parole sentence has been enlivened as a direct consequence of the offences on which the offender falls to be sentenced, considerations of fairness and leniency to the prisoner, which in part inform the principle, may require a different emphasis. That may be particularly so with respect to the non-parole period.[26]
[25]R v Mangelen (2009) 23 VR 692; [2009] VSCA 63 (‘Mangelen’).
[26]Ibid 697 [28]–[29] (emphasis added) (citations omitted).
In the event, as we have said, both the argument and the analysis in Mangelen were confined to the reclaimed period of 22 months served under the original sentence. This period was referred to as ‘the parole sentence’. Thus, it was submitted that:
[A]s a consequence of the appellant’s liability to serve the parole sentence of 22 months together with the further sentence of 6 months [for separate offending], the total sentence which the appellant was required to serve infringed the totality principle so that the head sentence and non-parole period of the present sentences should be reduced.[27]
[27]Ibid 697 [27] (emphasis added).
In its reasons, the Court likewise formulated the totality question by reference to ‘the parole sentence’, as follows:
[A]n evaluation of the appropriate relativity of the totality of the criminality and the totality of the effective length of the sentences requires the court to consider the nature of the parole offences and the length of the parole sentence. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. The court must then consider whether the sentence imposed for the subsequent offending and which breached the parole, has produced an overall result out of proportion to the criminality represented by the two sets of offences.[28]
[28]Ibid 698 [31] (emphasis added) (citations omitted).
The Court’s conclusion — that the sentence imposed for the breach offences did not infringe the principle of totality — was also expressed by reference to ‘the parole sentence’. The concern was with the additional time in custody required to be served following the cancellation of parole. Redlich JA said:
I am not persuaded that when the parole sentence and further sentence are added to the head sentence, the period of imprisonment which the appellant may have to serve can be said to be an unjust or inappropriate measure of his total criminality so as to require a reduction in the head sentence of six years and four months. Cumulation of the sentence for the further offence and the parole sentence on the present sentence is not inappropriate. The total time that the appellant may have to serve in custody is not incommensurate with the gravity of the entirety of his criminal conduct. If one were to ask what would have been the likely effect if the appellant had been serving the sentence of six months followed by the parole period at the time that the present sentences were fixed, I consider that these sentences would have been entirely appropriate. The period of imprisonment is not one that could be said to be ‘a crushing sentence and not in keeping with his record and prospects.’[29]
[29]Ibid 701 [42] (emphasis added) (citations omitted).
As can now be seen, the basis of the decisions in Alashkar and Mangelen was a qualified form of proportionality. The Court asked itself whether the combined effect of the reclaimed period and the breach sentence was ‘commensurate with’ the total criminality involved in the two sets of offences. The focus on the reclaimed period is entirely understandable, as it represents additional time spent in custody as a direct result of the breach offending, that is, additional to the time to be served under the breach sentence. But, as we have explained, this ‘qualified proportionality’ test did not give effect to the extended totality principle as described in Postiglione.
In McCartney, the Court regarded itself as bound to follow the ‘qualified proportionality’ approach adopted in Alashkar and Mangelen. The relevant part of the reasons was as follows:
In R v Berkelaar, which was decided before this Court’s decision in R v Piacentino, Buchanan JA implicitly accepted the submission that, where an offender was sentenced for offences committed while on parole, the sentencing judge was required to take account of the whole of the period served by the offender for the earlier offences. Callaway and Chernov JJA concurred in the result in that case, but expressed no view on the question whether the whole of the period served, or only the additional period to be served as a consequence of the breach of parole, had to be taken into account in applying the totality principle.
In R v Alashkar and again in R v Mangelen, however, this Court had regard only to the additional parole sentence which the offender was required to serve. In the latter case, Redlich JA (Ashley JA concurring) said that:
An evaluation of the appropriate relativity of the totality of the criminality and the totality of the effective length of the sentences requires the court to consider the nature of the parole offences and the length of the parole sentence. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences. The court must then consider whether the sentence imposed for the subsequent offending and which breached the parole has produced an overall result out of proportion to the criminality represented by the two sets of offences. The court may intervene if the total sentence is an ‘unjust or inappropriate measure of the total criminality involved’. In such a case the new sentence which the appellant has been required to serve might be moderated so that the total of the sentences to be served does not offend the totality principle.[30]
[30]McCartney (2012) 38 VR 1 21–2 [98]–[99] (Maxwell P, Neave JA and Coghlan AJA); [2012] VSCA 268 (citations omitted).
The Court in McCartney concluded:
That being the approach we must follow, it is necessary to consider whether the total sentence in this case (including the parole sentence) was disproportionate to the totality of KM’s offending, appropriate weight being given to the fact that the offences for which KM fell to be sentenced occurred shortly after he was released on parole. Taking the parole sentence of two years and five months into account in this case means that KM may be required to serve a total of eight years and seven months’ imprisonment for the offences committed while he was on parole.[31]
[31]Ibid 22 [100] (emphasis added) (citations omitted).
That approach was followed in Waugh v The Queen,[32] where the Court (Maxwell P and Redlich JA) said:
The Court is thus required to evaluate the overall criminality involved in all of the offences for which the appellant is undergoing sentence, to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of sentences imposed, which includes the sentence being served as a consequence of his breach of parole. The sentencing judge must therefore combine the parole sentence with the base sentence, and such orders for cumulation as are contemplated, to see if the principle will be infringed. If it will be, the sentencing judge will either revisit individual sentences or the orders for cumulation to arrive at a sentence which does not infringe the principle.[33]
[32](2013) 38 VR 66; [2013] VSCA 36.
[33]Ibid 74 [27] (emphasis added) (citations omitted).
It is unnecessary for present purposes to decide whether the Court in Alashkar and Mangelen intended to confine the principle of totality in such cases to a test of ‘qualified proportionality’. It is sufficient to state that the principle is not so limited and that the ‘full proportionality’ test from Postiglione — as repeatedly endorsed by this Court — should be applied in all such cases.[34]
[34]It is unnecessary to address the special situation where an offender is sentenced for offending related to other past offending for which a sentence has already been served: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; Sayer v The Queen [2018] VSCA 177.
That is, the sentencing court must ask itself whether the combined effect of the original sentence and the proposed breach sentence is (dis)proportionate to the total criminality involved in the two sets of offences. Adopting this approach also removes the artificiality of comparing only part of the original sentence (the reclaimed period) with the full criminality involved in the prior offending.
It follows that we are in respectful agreement with the views expressed by Kaye AJA and Lasry AJA respectively in Koumis v The Queen.[35] Kaye AJA said:
[T]he court must take into account that the cancellation of the offender’s parole means that the offender is required to complete the balance of a custodial sentence to which he or she is already subject, in addition to serving the sentence which is to be imposed on the offender. In doing so, the court must consider the criminality involved in the prior offending, and the period already served in custody in respect of it. Those circumstances are all logically relevant to determining whether, in a particular case, there may need to be some moderation of the sentence which is to be imposed, in order to ensure that, in all the circumstances, it is ‘just and appropriate’.[36]
[35](2013) 44 VR 193; [2013] VSCA 47.
[36]Ibid 195 [9] (citations omitted).
Lasry AJA said:
Thus, in this case, in considering the appeal against the sentence imposed, bearing in mind that the Parole Board now require the applicant to serve the balance of his parole period, and in considering whether or not the total period to be now spent in custody breaches the principle of totality, in my opinion it is appropriate to examine the nature of the original offending and sentences imposed on him. That is because part of that original sentence has been activated due to his breach of parole. Such a consideration must inevitably include the fact that the applicant served the 4 years and 6 months’ non-parole period in the earlier offences because it is part of the total of the custodial sentences arising from all the offending the Court is considering.[37]
[37]Ibid 200 [27].
For these reasons, the decisions in McCartney and Waugh should no longer be followed. It follows, moreover, that the judge in the present case adopted the correct approach, and ground 1 fails.
We conclude by observing that the consideration of totality may not necessarily have much impact on the sentence to be imposed for the breach offence. The fact that the offence constituted a breach of parole is, of itself, an aggravating feature of the offending. The sentencing court must also have due regard to the legislative policy, contained in s 16(3B) of the Sentencing Act 1991, of deterring violations of parole.[38]
[38]Ibid 195 [9] (Kaye AJA).
That provision creates a presumption, rebuttable where ‘exceptional circumstances’ exist, that a term of imprisonment for an offence committed while on parole is to be served cumulatively on any period of imprisonment required to be served in custody on cancellation of that parole. At the same time, while having regard to that clear legislative policy, there must still be relativity between the totality of the criminality and the totality of the sentences.[39]
[39]R v Hunter (2006) 14 VR 336, 341–2 [30]–[31] (Maxwell P, Buchanan and Redlich JJA); [2006] VSCA 129; DPP v Johnson (2011) 35 VR 25, 41 [72]–[73] (Redlich JA); [2011] VSCA 288.
Ground 2: failure to apply s 5(2H) of the Sentencing Act 1991
As noted earlier, trafficking in a commercial quantity of a drug of dependence is a category 2 offence.[40] So far as relevant, ss 5(2H)(e), (2HC) and (2HI) of the Sentencing Act 1991 provide:
[40]See the definition of category 2 offence in s 3(1) of the Sentencing Act 1991.
(2H)In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
…
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
…
(2HC)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i)the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)an early guilty plea; or
(iii)prospects of rehabilitation; or
(iv)parity with other sentences.
(2I)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament’s intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
The practical effect of these provisions is that a CCO, or a CCO combined with a term of imprisonment of 1 year or less, was not available for BB’s offending unless he was able to establish ‘substantial and compelling circumstances’ that were ‘exceptional and rare’ and that justified making such an order.
The defence plea submission conceded the importance of general and specific deterrence and denunciation, but maintained that those factors ought to be moderated by reason of BB’s
unique vulnerabilities, complex family situation, early plea of guilty, cooperation with police, remorse, categorisation of offending and his efforts made towards rehabilitation whilst on parole.
On that basis, it was submitted, a combination sentence was appropriate since it was
capable of being both punitive and therapeutic, thereby providing a balance between all of the competing sentencing considerations unique to this matter.
The defence submission did not, however, address the question posed by
s 5(2H)(e), namely, whether there were ‘substantial and compelling circumstances that are exceptional or rare’. Unsurprisingly, the prosecution plea submission referred expressly to that requirement and contended that no such circumstances existed.
As already mentioned, the judge accepted the defence submission and decided to impose a combination sentence, of 12 months’ imprisonment and a 30 month CCO with conditions. Unfortunately, her Honour did not address the prosecution submission that, by virtue of s 5(2H)(e), that sentencing option was not available. In this Court, senior counsel for BB (who did not appear on the plea) properly acknowledged the difficulty created by the absence of any reference in the reasons to that provision or the barrier it erects.
Although there were — as discussed in the next section of these reasons — unusual features of this case, there was nothing about BB’s circumstances which would have come close to satisfying the extraordinarily stringent requirements of s 5(2H)(e). It follows that ground 2 succeeds. The sentence which her Honour imposed was not authorised by law, and must be set aside.
We will move to the question of resentencing after addressing the Director’s principal ground of appeal, namely, that the sentence was in any event manifestly inadequate.
Ground 3: manifest inadequacy
The circumstances giving rise to BB’s offence of commercial quantity trafficking were entirely atypical. That is, the offending had none of the features ordinarily associated with such trafficking. This is best understood by reference to the judge’s reasons.
In order to explain how BB came to be in possession of drug manufacturing equipment, her Honour described how he began using stimulants when he was about 16, starting with speed and then progressing to ice. Her Honour continued:
At first it was on a recreational basis when you went to nightclubs and then in the industry that you were involved in, drug use was rife and slowly, which is so often the case, your drug use increased to the point where you were using it more than you were prepared to tell anyone. Ice really became a problem for you when your marriage ran into severe difficulties in 2011 and your wife left you for a period of time.
It appears at that time you for about two years were engaged in daily ice use. During that time you apparently acquired the drug manufacturing implements that were discovered in the shed by police in 2019. You were trying to manufacture ice in those earlier days presumably both to feed your habit and also to bring in some money. This appears to have been a particularly difficult time, but your reaction to it also appears to have been extreme in that you did nothing constructive in that time.
You turned to ice use at a level you never had before to the point where you were trying to produce it yourself. You apparently were in extreme distress over the separation with your wife and your distance from your children. You turned to ice use to resolve the emotional difficulties that you were experiencing, your ice use escalated and you ended up committing a serious armed robbery where you attended an entertainment centre. You tied up staff, you threatened them with a gun and you stole money.
You were finally apprehended for this and in 2017 you were sentenced to six years’ imprisonment with a non-parole period of four years. In that time your relationship with your wife mended itself and you reconciled. For reasons which I will enlarge upon, gaol settled you down, it would seem, and you were eventually released on parole on 29 November 2017.[41]
[41]Reasons, [36]–[39].
Her Honour noted that, when he committed the breach offences, BB had been on parole for 18 months and had been doing ‘extremely well’. The reasons continued as follows:
The question is why you engaged in this offending, which immediately resulted in your parole being cancelled. You have been in custody ever since your arrest and your parole was cancelled and your release date is now
16 May 2021. So you have served virtually six years’ imprisonment.
Apparently when your house was lost in 2017 your wife and children moved in to live with your mother. Your mother packed up the paraphernalia and the chemicals that you had acquired in those self-destructive years between 2011 and 2013 and they were kept in a shed. You have told various psychologists and your counsel has also informed me, that for about that 18 month period where you doing very well on parole you avoided the shed because it caused you anxiety as a reminder of the trauma that you had experienced in those two years.
You then decided to go in and sort out the shed and immediately, it would seem, became somewhat obsessed with those items in two ways: firstly, you did not know how to dispose of them; and, secondly, you thought you might engage in seeing if that paraphernalia still worked and if you could possibly make ice. As you told police in your record of interview, your efforts could either have resulted in methylamphetamine or nothing.
Ultimately the findings of the forensic scientist Dr Neely on analysis were that whilst there was that amount of methylamphetamine in the substances that were taken from the shed none of it was useable methylamphetamine and that indeed without further equipment and further actions on your part it would not have been useable methylamphetamine. You conducted an extraordinarily honest record of interview in that you told police that if you had been able to manufacture ice you may well have sold it.
But as it stands now, there were no signs of enrichment. There is no evidence of you selling drugs that you had manufactured and the trafficking charge is based on the definition of trafficking in the Drugs, Poisons and Controlled Substances Act, that is by manufacturing those drugs.[42]
[42]Ibid [41]–[45].
As her Honour noted, neuropsychological testing revealed that BB demonstrated ‘traits of an autism spectrum disorder’. Her Honour then sought a further report from Forensicare, in order to determine whether this was so. That further testing confirmed that BB met the diagnostic criteria for autism spectrum disorder, although he was ‘low on the spectrum’.
Her Honour accepted that the autism spectrum disorder had had some part to play in the offending, and that BB’s moral culpability was therefore reduced. She quoted the following paragraph from the Forensicare report:
My clinical opinion is that Mr Bowen’s disrupted emotional development, lack of secure attachment and poor interpersonal skills have contributed to him engaging with antisocial peers as a means of achieving a sense of connection with others. It is now understood that some of Mr Bowen’s developmental difficulties, such as connecting with peers and expressing his emotions and needs in adaptive ways, were likely due to the neurodevelopmental delays he experienced as a result of his autism spectrum disorder. As a result of his deficits on these aspects of functioning, antisocial attitudes and maladaptive behaviours have been somewhat normalised for Mr Bowen and certainly maladaptive coping mechanisms such as alcohol and other drugs have become his default coping mechanisms in the context of his deficits in emotional coping skills. That is to say it is hypothesised that to some extent, because of his neurodevelopmental deficits, Mr Bowen has been influenced to utilise antisocial means to have his various needs met because he demonstrates deficits in his adaptive skills, required to have his needs met in a more prosocial manner.[43]
[43]Ibid [60].
Her Honour continued:
I accept to some extent you did become obsessed, and all three reports note this, you did become obsessed with the old drug paraphernalia that you found in the shed. But you went a bit further, you added to it and then decided that you were going to see if it worked. And indeed if it did work you were not quite sure what you were going to do with the drugs should you manufacture them.
That is an extraordinary way of thinking in someone who is on parole and doing very well on parole. The thought appears to have come out of nowhere, if I can put it that way. It just seems to have arisen in you and you have gone from studiously avoiding the shed for 18 months, because it caused you anxiety, to finally going in there and immediately getting obsessed about ‘Can I make ice’, even though you hate drugs and even though on all the evidence available you were not using any drugs.
You completely put at risk everything you had achieved for no sensible reason beyond an obsession with these materials, which again as you frankly said to police might have resulted in you being able to produce ice and you might have sold it. And that has resulted in you being sent straight to gaol having to serve out the remainder of your non-parole period, putting you in a position where you have now served six years for this offending.
Thankfully Dr Anderson does conclude that whilst she has not conducted a formal assessment of your risk of reoffending that, and this is at paragraph 8.4:
Based on the information gathered as part of these assessments, including identification of criminogenic risk factors [that being your tendency towards antisocial behaviour] and protective factors [that being your good work history and the support of a long-standing relationship with your wife and your children] it is considered that Mr Bowen presents with relatively reasonable prospects for rehabilitation.
She does go on to say that support services need to address your criminogenic needs. What that means is that you actually have go into and look at the fact that you have developed a sort of casual attitude towards undertaking criminal activities. That is a default position for you. And you absolutely have to understand and work on the difficulties that your ASD creates for you both into the risk of you getting into trouble again, criminal trouble again, and in terms of building relationships and maintaining a relationship with your wife and children.[44]
[44]Ibid [68]–[72].
There was no challenge to any of her Honour’s findings or analysis. The submission for the Director relied on the judge’s finding that the offending was ‘extremely serious’. Counsel drew attention, in particular, to the fact that the quantities of methylamphetamine found in the various mixed substances at the premises represented 2.55 times the commercial quantity of methylamphetamine.
Most instances of trafficking in a commercial quantity of a drug involve planning and preparation and a clear commercial motive. The present case had none of those features. This was, as the judge clearly described, impulsive offending, using equipment which had been locked away for many years and left untouched by BB until this sudden and inexplicable decision — at a late stage in his parole — to ‘see if it worked’. As the judge said, BB’s apparent obsession with the equipment provided some form of explanation for his self-destructive conduct.
The demands of individualised justice meant that the sentence to be imposed had to reflect all of these peculiarities of the offending. For the reasons the judge gave, this had to be viewed as a low end example of commercial quantity trafficking. BB’s moral culpability had equally to be viewed as low.
Totality was central to her Honour’s conclusion. She made clear that it was the fact of BB’s having to serve the full 6 years of the original sentence which led her to reject the prosecution’s submission that she should impose a head sentence with a non-parole period. Her Honour said:
[I]n the circumstances I am concerned that any term of imprisonment I do impose upon you is going to lead to you being in gaol for a considerable period of time. And this is a matter that has weighed heavily upon me.[45]
[45]Ibid [59].
Her Honour went on to explain why she considered a combination sentence to be appropriate. She said:
I am prepared to accept the reasons that were put forward for you engaging in this activity. I also accept that it was somewhat open-ended, that, whilst it might have been born of your obsession, you also were not quite clear about what you were going to do and it could have led to further criminal offending. I accept that as well. But I also accept that your autism spectrum disorder had some part to play in this inexplicable decision to behave as you did.
You were not in trouble with housing, you were not in trouble with finances. You were doing well and yet you engaged in an activity which completely destroyed, as I said, everything you did, and so I do accept that your hitherto undiagnosed autism spectrum disorder had a part in the decision-making that you engaged in and that to some extent limb 1 of Verdins is engaged.
Despite the extremely persuasive and well put arguments by [the prosecutor] in this plea, I have decided after much thought that I am going to accede to your counsel's request. Largely there are two major factors underlying that decision. The first is that in ordering a combination disposition the incarceration element of it will be 12 months. That will be served additionally to the sentence you are currently undergoing and that will result in a total of seven years, which I regard as sufficient in terms of the offending for which you were originally sentenced and the offending you have now engaged in.
It is somewhat ameliorated by the second prominent feature in the sentencing scenario that I am dealing with, and that is the diagnosis of your autism spectrum disorder and the fact that to some extent in my view this reduces the moral culpability in relation to your offending.[46]
[46]Ibid [78]–[81].
Her Honour noted that BB had been found suitable for placement on a CCO, notwithstanding that he had been assessed as being a high risk of reoffending. Her Honour said to BB that his future ‘could go one of two ways’: he could either complete the CCO successfully and never be in trouble again, or something unexpected could simply come up.[47]
[47]Ibid [85].
Her Honour went on:
And I am saying that because of what happened on the occasion of this offending. You were doing perfectly well and then all of a sudden you engaged in serious behaviour which appeared to simply come out of the blue, although I do accept the explanation for it. And it has been catastrophic for you. So it could just go one way or the other, but it does seem to me because of the totality issue that I should deal with you in the way that I have decided to.
I accept that I must give expression to, in particular, general deterrence; and to some extent specific deterrence is important. I am guardedly optimistic about your prospects of rehabilitation but do think that protection of community has some part to play simply because you are unpredictable,
Mr Bowen. It could go one way or the other. You have demonstrated long periods of totally responsible law-abiding living and I believe that you could do this again, but it depends on you.
The order is going to involve a number of appointments which you absolutely must attend to. It has been recommended that you be treated for drug use even though I know that is going to annoy you because you hate drugs and you do not use them. It may be that that drug treatment will not be particularly long, but you also need treatment for mental health difficulties. And by that I mean you need psychological help to understand your emotions, to understand your difficulty with emotions and to understand and put into practice strategies designed to help you not relapse into offending. That is going to take a bit of work because, as I have said, this is your default position.
I am also going to place you on a judicial monitoring. That means that every few months you are going to come back in front of me and I will be getting a report from Corrections about how you are doing, all right?[48]
[48]Ibid [87]–[90].
In our respectful view, her Honour’s approach to the sentencing task was exemplary. Having paid the closest attention to the unusual circumstances of both the offence and the offender, her Honour sought to fashion a sentence which would serve the purposes of both punishment and rehabilitation. The non-custodial component of the proposed sentence enabled her Honour to emphasise to BB the importance of him taking responsibility to ‘put into practice strategies designed to help [him] not relapse into offending’.[49] And the Court itself would make him accountable for his actions, through judicial monitoring.
[49]Boulton (2014) 46 VR 308, 335 [114] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA); [2014] VSCA 342.
As we said at the outset, this was a case for which a combination sentence was peculiarly appropriate. But for the legislative barrier, we would have held that it was well open to her Honour to impose the sentence which she did. It is greatly to be regretted that the legislature has seen fit to limit the sentencing discretion in this way.
It follows that we reject ground 3. The sentence was not manifestly inadequate.
Conclusion
As noted earlier, our conclusion on ground 2 means that the sentence which the judge imposed cannot stand. In circumstances where the sentence imposed by the sentencing judge was not manifestly inadequate, it is appropriate to seek to achieve an equivalent sentence. We will therefore impose an aggregate sentence of 3 years’ imprisonment, with a non-parole period of 18 months.
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