DPP v Fatho
[2019] VSCA 311
•19 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0150
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| AYSAR FATHO | Respondent |
S APCR 2019 0149
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| JAMES VAN | Respondent |
S APCR 2019 0151
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| NGOC HUYNH | Respondent |
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| JUDGES: | MAXWELL P, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 October 2019 |
| DATE OF JUDGMENT: | 19 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 311 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1062 (Judge Cohen) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Trafficking commercial quantity of drug (1,4 Butanediol) – Burglary – First respondent was principal of syndicate – Quantity trafficked was 700 times commercial quantity – Burglary committed to obtain supply of drug – Trafficking sentence 4 years and 6 months’ imprisonment – Burglary sentence 12 months – Whether manifestly inadequate – Scale and persistence of trafficking activity – Lower reward compared to other drugs – Offending while on bail – Specific deterrence – Changed sentencing practice for trafficking commercial quantity – Parity with co-offenders – No basis for exercise of residual discretion – Appeal allowed – Respondent resentenced to 8 years for trafficking, 3 years for burglary – Gregory v The Queen [2017] VSCA 151 applied, DPP (Cth) v Maxwell [2013] VSCA 50 considered.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Conspiracy to traffick commercial quantity of drug (1,4 Butanediol) – Second respondent was active member of acquiring syndicate – Quantity to be acquired was 250 times commercial quantity – Sentence 2 years and 6 months’ imprisonment – Lower reward compared to other drugs – Whether manifestly inadequate – Scale of proposed trafficking – Serious prior convictions – Offending while on bail – Specific deterrence – Changed sentencing practice for trafficking commercial quantity – Parity with co-offenders – No basis for exercise of residual discretion – Appeal allowed – Respondent sentenced to 5 years’ imprisonment – Gregory v The Queen [2017] VSCA 151 applied.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Conspiracy to traffick commercial quantity of drug (1,4 Butanediol) – Third respondent was active member of acquiring syndicate – Quantity to be acquired was 250 times commercial quantity – Sentence 139 days’ imprisonment with 3 year community correction order subject to treatment conditions – Whether manifestly inadequate – Position of third respondent materially different from second respondent – No prior convictions, no offending on bail – Exceptional progress in rehabilitation – Open to judge to impose non-custodial order – Punitive and rehabilitative purposes served simultaneously – Treatment conditions address causes of offending – Public interest in rehabilitation – Sentence not manifestly inadequate – Appeal dismissed – Boulton v The Queen (2014) 46 VR 308 followed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B F Kissane QC with Ms E Ruddle | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent (Fatho) | Mr D A Dann QC with Mr M P McGrath | Giorgianni & Liang Lawyers |
| For the Respondent (Van) | Mr O P Holdenson QC | Melasecca Kelly & Zayler |
| For the Respondent (Huynh) | Mr P F Tehan QC with Ms C A Boston | Melasecca Kelly & Zayler |
MAXWELL P
PRIEST JA
BEACH JA:
Introduction
In April and May 2018, six men were arrested and charged with drug trafficking offences. Those charges concerned trafficking — and conspiracy to traffick — in a drug called 1,4 Butanediol (‘BD’). BD is a precursor drug for another drug of dependence, gamma–hydroxybutyrate (‘GHB’). The most serious charges concerned trafficking in quantities of BD which represented hundreds of times the commercial quantity (‘CQ’) of the drug.
Following pleas of guilty, all six were sentenced by the same County Court judge in July and August this year. The Director of Public Prosecutions appealed against the sentences imposed in four of the six cases; the other two sentences were not challenged. Three of the Director’s appeals were heard together. The fourth is yet to be heard.
At the conclusion of the hearing of the appeals, the Court made orders dismissing the appeal against the sentence imposed on the third respondent (‘Huynh’). We reserved our decisions on the appeals against the sentences imposed on the first respondent (‘Fatho’) and the second respondent (‘Van’) respectively. For reasons which follow, we would allow both of those appeals and resentence those respondents. These reasons will also explain why we dismissed the third appeal.
Factual background
The charges arose from events which took place between January and April 2018. During that period, Fatho was the principal of a drug trafficking syndicate which was attempting to source BD and supply it to another drug syndicate, of which Van and Huyhn were members. Their syndicate was referred to as the ‘Chinese’.
Between January and February 2018, Fatho negotiated with Van for the sale of BD to the Chinese syndicate. Van placed orders for 200, and then 400, litres. Initially, Fatho’s suppliers failed to deliver. Finally, on 20 March 2018, he successfully sourced 600 litres of what was said to be BD from a co-offender, Verrina, which he on sold to the Chinese syndicate.
Van subsequently complained to Fatho that what he had supplied was of poor quality and that his customers were complaining. Fatho said that the poor quality product could be returned and exchanged for another batch. Fatho offered to sell the bad product on Van’s behalf, but Van declined and insisted on the return of the $40,000 he had paid. He told Fatho that he had made only $5,000 from sales of the bad product.
Between 7 and 9 April 2018, Fatho supplied to Huynh a quantity of purportedly better quality BD, also sourced from Verrina. Once again, Huynh’s customers were dissatisfied with the quality. Fatho subsequently told Huynh that he had a new supply of BD. Between 11 and 17 April, he sold 300 litres to Huynh for the Chinese syndicate.
Between 18 and 28 April 2018, Fatho negotiated with Van and Huynh to exchange the poor quality product originally supplied for better quality. It was arranged that the exchange would take place on 28 April 2018, when the Chinese syndicate was to be supplied with 525 kilograms of BD.
A week before the date fixed for the exchange, there was a burglary at a storage yard used by Fatho. A quantity of BD belonging to Fatho was stolen. Several days later, Fatho broke into a chemical plant and stole eight 200 litre barrels of BD. He had obtained the assistance of someone working for the chemical company in order to commit that burglary.
The stolen product was kept at Fatho’s storage yard. Shortly before the exchange with the Chinese syndicate was to take place, police entered the premises. Fatho and his co-offenders were in the process of loading a van with barrels of BD. Police located numerous containers and barrels which, on analysis, revealed a total of 1,402 kilograms of substance containing BD.
They also located two stolen vehicles and a stolen trailer, and a sawn-off shotgun with two spent cartridges. In a search of Fatho’s residence nearby, police located a quantity of cannabis, a quantity of Xanax and a quantity of methylamphetamine with associated trafficking equipment. They also found two unregistered firearms.
Fatho pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity (‘CQ trafficking’). He also pleaded guilty to a series of other charges relating to the burglary, the stolen vehicles, the firearms and the drugs found at his home.
On the CQ trafficking charge, Fatho was sentenced on the basis of the 1,402 kilograms of seized BD. This represented 700 times the CQ threshold as it was at the time (2 kg). At $775 per litre (the price which Fatho had discussed with Van), this quantity of BD had a notional sale value of around $1 million. At the time of the offending, there was no large commercial quantity applicable to BD. On that charge, Fatho was sentenced to four years and six months’ imprisonment.
Van faced two trafficking charges. The first was a charge of trafficking simpliciter, which related to the transaction on 20 March 2018 when Fatho supplied him with the 600 litres which he had obtained from Verrina. The second was a charge of conspiracy to traffick in a commercial quantity, which related to Van’s participation in the negotiations for the exchange of 525 kilograms of BD on 28 April 2018. He pleaded guilty to both charges. He was sentenced to 15 months’ imprisonment on the first and 30 months’ imprisonment on the second. The two sentences were wholly concurrent.
The charges against Huynh were different again. He faced two charges of trafficking simpliciter and one charge of conspiracy to traffick in a commercial quantity. The charges related, respectively, to the following conduct:
(a) the supply, between 7 and 9 April, of purportedly better quality BD (trafficking simpliciter);
(b) the purchase from Fatho between 11 and 17 April, of 300 litres of the ‘new supply’ (trafficking simpliciter); and
(c) participation in the negotiations for the 28 April exchange (conspiracy to traffick in a commercial quantity).
Huynh pleaded guilty to all three charges. On each of the first two charges, he was sentenced to a 3 year community correction order; on the third, to a community correction order combined with 139 days’ imprisonment. The conditions attached to the CCO included 300 hours of unpaid community work, a treatment condition and a judicial monitoring condition.
The focus of the Director’s submissions in these appeals was on the respective sentences imposed on the respondents for the BD trafficking. There were, however, three other co-offenders sentenced by the same judge. Those sentences, only one of which has been challenged, are relevant to considerations of parity. It is necessary, therefore, to summarise each of those sentencing decisions.
Verrina pleaded guilty to trafficking simpliciter. The charge related to his offering to sell defective product to Fatho in the period 20 March to 28 April. The judge accepted that Verrina did not intend to sell any drug of dependence and that his offending was more akin to a case of dishonesty than of drug trafficking.[1] Nevertheless, her Honour found, what Verrina was offering to sell could have caused harm if ingested.[2] She noted, moreover, that he had a prior conviction for cultivating a CQ of cannabis, for which he had been sentenced to 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 6 months.[3]
[1]DPP v Fatho [2019] VCC 1260, [18] (‘Reasons’).
[2]Ibid [19].
[3]Ibid [39].
Her Honour sentenced Verrina to 9 months’ imprisonment together with an 18 month CCO. The Director has filed a notice of appeal against that sentence, but the appeal has not yet been heard.
Andy Fatho was the younger brother of Aysar Fatho. He was aged 19 when arrested. He was sentenced on the basis of his involvement on a single date, 28 April, when he took part in the loading of the barrels of BD at his brother’s storage yard. He was charged with CQ trafficking, on the basis of the 525 kilos in the barrels.
The judge accepted that he was the youngest person involved, and that he had taken part at his brother’s request.[4] She found that his role was ‘quite limited’ and that his borderline intelligence reduced his culpability.[5] Further, her Honour was satisfied that he had a ‘psycho-social immaturity’ which resulted in a ‘substantially diminished ability to regulate [his] behaviour’.[6] Her Honour accepted that he was suffering from severe depression as a result of his first experience of adult custody, and that principles 5 and 6 in Verdins were engaged.[7] She sentenced him to 19 months’ imprisonment, together with an 18 month community correction order.
[4]DPP v Fatho [2019] VCC 1358.
[5]Ibid [76]–[77].
[6]Ibid [111]–[120], citing Sentencing Act 1991 s 5(2H).
[7]Ibid [84], [100].
John Mansoor’s involvement was, likewise, confined to his participation in the loading of the barrels on 28 April. Once again, the judge accepted that this was a ‘quite limited’ role.[8] Mansoor had no prior criminal history and her Honour said that she had moderated the sentence on the basis that his ‘unusually difficult’ background had made him more vulnerable to drug addiction.[9] She sentenced him to 3 years’ imprisonment, with a non-parole period of 16 months.
[8]Reasons [112].
[9]Ibid [138].
The sentencing of Fatho
The full table of sentences imposed on Fatho is as follows:
Charge
Offence
Maximum Sentence Cumulation 1
Trafficking in a drug of dependence — commercial quantity[10] 25 years
54 months Base Sentence
2 Burglary[11] 10 years 12 months 6 months 3 Prohibited person possess a firearm[12] 10 years 2 years as part of an aggregate sentence 6 months
4 Prohibited person possess a firearm 10 years 2 years as part of an aggregate sentence 5 Prohibited person possess a firearm 10 years 2 years as part of an aggregate sentence 6 Trafficking in a drug of dependence[13] 15 years 18 months 4 months 7 Possession of a drug of dependence[14] 5 years or 1 year if possessed for a purpose other than trafficking 3 months as part of an aggregate sentence Nil
8 Possession of a drug of dependence 5 years or 1 year if possessed for a purpose other than trafficking 3 months as part of an aggregate sentence Summary Charges: 12
Dealing with property reasonably suspected of being the proceeds of crime[15] 2 years 9 months 5 months
18 Committing an indictable offence whilst on bail[16] 3 months 3 months Nil Total Effective Sentence:
6 years and 3 months
Non-Parole Period:
4 years
Pre-sentence detention declaration:
439 days
Section 6AAA statement:
8 years and 6 months with a non-parole period of 6 years
Other relevant orders:
Disposal and Forfeiture Orders
[10]Contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981.
[11]Contrary to s 76(1) of the Crimes Act 1958.
[12]Contrary to s 51(1) of the Firearms Act 1996.
[13]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
[14]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.
[15]Contrary to s 195 of the Crimes Act 1958.
[16]Contrary to s 30B of the Bail Act 1977.
In relation to the BD trafficking, the judge was satisfied that it had been initiated by Fatho and, overall, had been under his control:
You sought out a supply of the drug for the purpose of making profit from its distribution, in various ways, some of it to be sold to another syndicate or group of drug traffickers, for them to distribute to the ultimate users.
You clearly did this for profit, and although you were duped by Mr Verrina, …, you pursued attempts through him, until they proved unlikely to succeed, to obtain replacement or information that would enable the product to be made into what you wanted it to be. You then carried out a burglary to obtain genuine product in order to use it for further trafficking purposes.
…
This disregard for the consequences of using such chemicals as a drug of dependence is very clear and … even though you did not achieve what you were aiming to achieve, your purpose was objectively very serious.[17]
[17]Reasons [50]–[52].
Her Honour accepted that, although the aim of the trafficking was profit, Fatho’s ultimate purpose was to gain enough money to support his own drug use. Her Honour said:
I accept that motivation of supporting your own drug use is less objectively serious in itself than pure greed, or self-aggrandisement. But offending to support your own drug habit cannot be an excuse for engaging in what was objectively, very serious offending.[18]
As to the Xanax and cannabis, her Honour was satisfied that Fatho possessed them for personal use and not for the purpose of trafficking. The charge of trafficking in methylamphetamine was, however, ‘more serious’:
The amount was significant, although not as much as a commercial quantity, and the accoutrements for trafficking, such as the scales and the presence of cutting agent, was an indication that it was not solely for personal use.[19]
[18]Ibid [54].
[19]Ibid [58].
As to the burglary, her Honour concluded that it ‘was not spontaneous or random and must have been planned’. Objectively viewed, her Honour said, it was ‘quite a serious instance of burglary’, given that it was motivated by Fatho’s desire to obtain a large quantity of BD for trafficking.[20] In relation to the firearms, her Honour noted that Fatho was a prohibited person because of his prior convictions. She noted that the firearm containing spent cartridges was in a vehicle which he had taken to his storage premises. Her Honour said:
The presence of these firearms at your premises, and therefore within your possession, is an objectively serious prospect, although there is no evidence of you actually using them at any stage for any purpose.[21]
[20]Ibid [55].
[21]Ibid [56].
Her Honour concluded that Fatho was entitled to ‘some considerable leniency’ on account of his pleas of guilty. She viewed them as reasonably early pleas and said that, given the extensive number of charges, their factual basis and the period of time over which the offending occurred, the pleas had ‘very considerable utilitarian value’, as well as reflecting his acknowledgment of responsibility and his remorse.[22]
[22]Ibid [63]–[64].
Her Honour noted that his criminal history covered a variety of types of offending:
[S]ome are clearly related to your own use of drugs, although they include trafficking cannabis, and others of those offences are of dishonesty, with one of violence. Others relate to driving offences. Overall, these do you no credit, but I accept that they are consistent with a person who had dropped out of school early, was mixing in bad company and using drugs.[23]
[23]Ibid [75].
Her Honour further noted that Fatho was on bail when he embarked on his drug trafficking activities. She observed that previous community correction orders had not been sufficient to deter him from further offending, nor to resolve the underlying causes of that offending, in particular his drug abuse. For that reason, her Honour said, specific deterrence was a relevant sentencing factor.[24]
[24]Ibid [76]–[78].
Her Honour took into account that, at the time of the offending, Fatho was still ‘relatively young’, at 23 years of age. Although this was ‘far from’ being his first offending, her Honour said she did not disregard his potential for rehabilitation:
although with your history and in your circumstances and in light of the seriousness of your role in the offending, rehabilitation will not be the dominant or even one of several important sentencing factors. I have not, however, disregarded it entirely.[25]
[25]Ibid [79].
Her Honour accepted that, having been in custody for more than a year, Fatho had been drug-free for almost the entire period.[26] She also accepted that he had come to think differently about his life and his responsibilities:
Separation from a young family is salutary punishment, but it seems to me that if you were as deeply engaged as it has been described in taking a cocktail of different illegal drugs, and in gambling, owing significant money, your participation in family events, especially concerning your own very young children, probably posed risks to them, of which you were not thinking at the time. It is to be hoped that you will not revert to that way of life again, but only time, and a lot of effort by you to turn your life around, will tell.[27]
[26]Ibid [82].
[27]Ibid [96].
The sentencing of Van
The full table of sentences imposed on Van is as follows:
Charge Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence[28] 15 years 15 months Nil 2 Conspiracy to traffick in a commercial quantity of a drug of dependence[29] 25 years 30 months Base Summary charges 2 Committing an indictable offence whilst on bail[30] 3 months 2 months [Nil] Total Effective Sentence:
30 months
Non-Parole Period:
18 months
Pre-sentence detention declared under s 18(1):
111 days
Section 6AAA statement:
TES 4 years 8 months NPP 3 years 8 months
Other relevant orders:
Disposal Order
[28]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
[29]Contrary to s 79(1) and s 71AA of the Drugs, Poisons and Controlled Substances Act 1981.
[30]Contrary to s 30B of the Bail Act 1977.
Her Honour noted that there was no evidence to enable any conclusion to be drawn as to the positions of Van or Huynh in the Chinese syndicate. She was satisfied, however, that their roles were ‘not wholly subordinate’.[31] Her Honour treated them as having been ‘of the same relative seniority’.[32]
[31]Reasons [381].
[32]Ibid [382].
Her Honour found that Van’s involvement was driven by a desire to earn money to support his own drug habit. This did not mitigate the offending but placed it in context and showed that its seriousness was ‘not aggravated by the motive being purely for personal greed’.[33] Her Honour accepted that he had pleaded guilty at a ‘reasonably early opportunity’. He was entitled to ‘some leniency’ because of the utilitarian value of the plea and because it reflected that he had taken responsibility for his offending.[34]
[33]Ibid [383].
[34]Ibid [385].
Her Honour noted that Van’s criminal history commenced in 2012 before the Children’s Court. He was subsequently before an adult court on charges including possession of drugs, recklessly causing injury and attempting to obtain financial advantage by deception. For those offences he was placed on a community correction order, which he contravened by committing further drug-related offences. In 2016, he was sentenced for trafficking methylamphetamine and possession of firearms and ammunition, for which he served 200 days’ imprisonment followed by another community correction order.[35]
[35]Ibid [401]–[403].
Her Honour said:
I accept that an ongoing drug habit, together with mental health instability, was most likely connected with this offending, but it would appear that the shock of some months imprisonment in 2016, and the rehabilitative and therapeutic aspects of Community Correction Orders, had not been sufficient to remove you from use of drugs or criminally connected behaviour. In light of this prior history, specific deterrence must be a factor in your sentencing – that is, to get the message through to you by stern punishment to try to deter you from further offending.[36]
[36]Ibid [404].
Van was arrested in March 2018 in respect of an alleged affray. He was on bail for that offence when he participated in the BD trafficking. Her Honour said:
It would seem that the offending for which I am sentencing you followed almost immediately after that grant of bail, and continued over the following five weeks or so. Whether or not you had refrained from drug use during that time, it is clear that you did not refrain from criminal offending which, moreover, was of a nature that facilitated and enabled drug use by others.[37]
[37]Ibid [408].
Her Honour took into account in his favour that:
·he had a supportive and responsible family and partner, and that his absence from the family unit was weighing on him;
·aged 25, he was ‘still young enough that [his] rehabilitation should be a relevant sentencing factor’; and
·he had shown ‘genuine application’ to his drug rehabilitation.[38]
[38]Ibid [421]–[422].
As to parity between Van and Huynh, her Honour assessed their role and culpability as equivalent. What put Van at a disadvantage, her Honour said, was his criminal history and the fact that he was on bail at the time of this offending. She noted that his counsel had not asked her to consider a community correction order in combination with further imprisonment.[39]
[39]Ibid [424]–[426].
Her Honour said:
The most important sentencing purpose for offending of this nature must be general deterrence, and the community's denunciation of offending in the nature of drug trafficking. As I have said, I also take into account specific deterrence as needed in this case, and also have taken account, but to a lesser degree, the value of assisting your rehabilitation. In all of the circumstances, I am satisfied that no other sentence than further imprisonment would be adequate to meet sentencing requirements in your case. For the combination of reasons I have already described, I intend to set a head sentence and non-parole period to try to encourage your continued motivation to reform your life, and to avoid making similar mistakes in the future.[40]
[40]Ibid [430].
The sentencing of Huynh
The full table of sentences imposed on Huynh is as follows:
Charge Offence Maximum Sentence 1 Trafficking in a drug of dependence[41] 15 years 3 year CCO 2 Trafficking in a drug of dependence[42] 15 years 3 year CCO 3 Conspiracy to traffick in a commercial quantity of a drug of dependence[43] 25 years 139 days prison and 3 year CCO Summary charges 16 Dealing with property suspected of being proceeds of crime[44] 2 years 8 month CCO 17 Possess cartridge ammunition without licence or permit[45] 40 penalty units Convicted and discharged Total Effective Sentence: 139 days, 3 year CCO CCO conditions: 300 hours unpaid community work (permits 120 hours contributed by treatment and rehabilitation); Supervision; Assessment and treatment conditions (including assessment and treatment at a residential facility); Judicial monitoring Pre-sentence detention declared under s 18(1): 139 days Section 6AAA statement: TES 4 years 6 months, NPP 3 years Other relevant orders:
Forfeiture Order, Disposal Order, Forensic Sample Order. [41]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
[42]Ibid.
[43]Contrary to ss 71AA and 79(1) of the Drugs, Poisons and Controlled Substances Act 1981.
[44]Contrary to s 195 of the Crimes Act 1958.
[45]Contrary to s 124(1) of the Firearms Act 1996.
Her Honour noted that — like Van — Huynh was not said to have been the instigator of the trafficking arrangements, nor was it suggested that he stood to share in substantial profits from it.[46] Rather, her Honour found, his motivation was ‘to gain money to support [his] drug use’.[47] She noted that he was, at the time, ‘a heavy and addicted drug user.’[48] Nevertheless, her Honour said:
[A]ny role along the path of distribution is of significance in furtherance of other people's overall plans for distribution of illegal drugs, and means that even confined roles are part of what is very serious offending.[49]
[46]Reasons [197].
[47]Ibid [200].
[48]Ibid.
[49]Ibid [197].
Noting his negotiations with Fatho for the drug supply between 7 and 9 April, her Honour said:
These conversations reflect not only that you had some business acumen, but also that your role was not so subordinate that you were not exercising any personal input or initiative in these conversations. You clearly had knowledge of the purpose of the arrangements, and were willing to act in furtherance of the overall plans of your associates for the trafficking of this drug.[50]
[50]Ibid [199].
Her Honour accepted that Huynh’s pleas of guilty reflected his acceptance of responsibility for his conduct and that they were ‘a sign of remorse or guilt’. There was other evidence which confirmed that he was remorseful.[51]
[51]Ibid [205].
Following his arrest on 16 May 2018, Huynh spent 139 days in custody. A psychologist assessed him as being ‘very depressed’ during this first experience of imprisonment. He was then granted bail to enable him to enter a residential rehabilitation program. Her Honour continued:
It is what you have done since being released on bail which is the central focus of the plea submissions on your behalf, as you have used the time since being granted bail to seriously address your drug addiction, which was the underlying cause of your offending, and have shown very considerable success in doing so. In the course of drug rehabilitation, you have also undergone psychological counselling as to the other underlying issues that have shaped your life, and have made strong progress in that regard also, gaining insight into the causes and how to alleviate or address them.[52]
[52]Ibid [219].
Her Honour took into account his time in intensive residential rehabilitation, ‘not only for its very considerable benefits’ for him but because it had been ‘an extended period of time during which [he had] lived in a confined and supervised environment’.[53] Although this did not count formally as pre-sentence detention, her Honour said she had moderated his sentence to take into account that he had now spent ‘over nine months living under considerable constraints on [his] everyday activities and subject to disciplines and supervision.’[54]
[53]Ibid [231].
[54]Ibid, citing Akoka v The Queen [2017] VSCA 214.
Importantly, Huynh had no prior convictions. Her Honour said:
You come before this court with no prior convictions, and that is to your credit. As you too were apparently obtaining and using illegal drugs for several years, you cannot claim to have led a totally law abiding life, nor that the offending that brings you before this court was a sudden lapse by you. Nevertheless, your lack of prior criminal history is relevant to your prospects of rehabilitation, especially combined with the very significant steps you have taken to address the drug use which led to your offending. As this is the first occasion when you are being sentenced by a court, it is your first opportunity to show that you can reform and establish yourself in a responsible future, and the steps you have been taking in the meantime signal a very serious attempt to do that.[55]
[55]Ibid [232].
Her Honour did not regard specific deterrence as a consideration of great weight. Her Honour said:
It is my impression that you have learnt a very salutary lesson and have very real and genuine insight into how you came to this offending and why it should not occur again.
At your age, you are still to be regarded as youthful, and, as such, your rehabilitation is a significant sentencing factor, as it is in the community’s interest that you proceed to reform and build a responsible life for yourself.[56]
[56]Ibid [236]–[237].
Her Honour addressed the issue of rehabilitation at some length:
I am also satisfied that the time and expense that has been invested in you doing that program over the last nine months would be put at risk of being either lost, or seriously diminished, if your rehabilitation were interrupted by returning you to prison at this stage. You have not only progressed well and acquired insight into many factors that led to your drug use and, from that, your offending, and strategies to recognise triggers and avoid them in future, but you have also addressed personal issues of low self-esteem, family issues, and how to approach your own future more positively. I am satisfied that that progress is likely to be diminished if you were returned to prison at this stage. I also take into account that you have confidence in your current treating counsellors – a trust that took time to develop – and that you have established positive and supportive friendships amongst peers in your program, and re-established relationships with family and friends.
I am satisfied on the balance of probabilities that were those current relationships and interactions all interrupted by your being returned to prison, there is a real risk that you will again find yourself associating with people with strong criminal connections, and be separated long term if not from family then from most of the other present positive peers, and return to the company you meet in prison.
Ultimately, although I recognise that the trafficking offences you committed would usually call for a longer term of imprisonment, I have decided not to interrupt your current rehabilitation, but to impose a quite lengthy Community Correction Order from here on, recognising the 4½ months you spent on remand. You will be required to perform unpaid community work and to undergo supervision and treatment conditions, which can be arranged to continue through your current therapists if thought suitable by community corrections assessors.[57]
[57]Ibid [242]–[244].
Sentencing for CQ trafficking
As the sentencing judge correctly noted, two distinct lines of authority in this Court were relevant to her task of sentencing for the trafficking offences. The first concerned the trend of lower sentences being imposed for dealings in drugs such as BD and GBL,[58] which are precursors to the drug GHB, than for dealings in equivalent quantities of other drugs such as heroin and cocaine. The second was that, since the decision in Gregory (a pseudonym) v The Queen,[59] sentencing practice for CQ trafficking in a drug of dependence had changed.[60]
[58]Gamma-butyrolactone.
[59][2017] VSCA 151 (‘Gregory’).
[60]Reasons [15]–[16].
As to the first of these, the Court in Director of Public Prosecutions (Cth) v Maxwell[61] dismissed a Director’s appeal against a sentence of 4 years’ imprisonment, with a non-parole period of 2 years, for importing a commercial quantity of GBL. The Court said that, while there was no scope for a judge to differentiate between drugs on the basis of perceived differences in harmfulness,[62] the financial reward anticipated by the offender was relevant to sentencing.[63] The lower sentences imposed on importers of GBL could be seen to be ‘reasonably justified by the enormous reward differential’ compared to importations of other drugs.[64]
[61][2013] VSCA 50 (‘Maxwell’).
[62]Ibid [27].
[63]Ibid [33]–[36].
[64]Ibid [33].
The Court said:
In addition to the weight of the drugs imported (or trafficked), the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. Other things being equal, an importation which is undertaken because it will bring — or is expected to bring — a large financial reward to the offender will be more serious than one where the expected reward is small or non‑existent. The underlying proposition is that the greater the (anticipated) reward of criminal conduct such as this, which inflicts such harm on the community, the higher the offender’s moral culpability.[65]
[65]Ibid [21].
In Ellis v The Queen,[66] the Court (Whelan and Beach JJA) refused leave to appeal against a sentence of 4 years’ imprisonment imposed for trafficking in 3.5 kilograms of BD. The offender was on bail and subject to a community correction order when the trafficking occurred. In arguing that the sentence was manifestly excessive, the offender relied on what was said to be the low profitability of BD. In refusing leave, the Court noted that the applicant had a serious prior conviction, for which she had served imprisonment, and that there was an ‘obvious and significant’ need for specific deterrence.[67]
[66][2018] VSCA 221.
[67]Ibid [28].
In Gregory, the Court (Maxwell P, Redlich and Beach JJA) dismissed an appeal against a sentence of 8 years and 6 months imposed for CQ trafficking in methylamphetamine. Relevantly for present purposes, the Court noted that sentences for CQ trafficking were ‘clustered’ under 10 years’ imprisonment.[68] This reflected, the Court said, a ‘persistent error’ in the manner in which serious instances of this offence had been treated.[69] Its objective seriousness had been wrongly categorised. The Court continued:
For these reasons, in our view, CSP for CQ trafficking in the upper category of the offence is plainly inadequate. As the Court has said after reaching similar conclusions in relation to sentencing for other offences, sentencing courts should no longer regard themselves as constrained by existing sentencing practice for offences in that category.[70]
[68]Gregory [2017] VSCA 151, [99].
[69]Ibid.
[70]Ibid [100].
These two lines of authority fell to be considered together in Sharbell v The Queen.[71] In that case, the offender had pleaded guilty to the attempted trafficking of three times the commercial quantity of BD. He was sentenced to 4 years’ imprisonment on that charge. Noting the statement in Gregory that higher sentences were required for CQ trafficking, the Court said:
Since that decision was handed down, the High Court has confirmed that inadequate sentencing practices cannot be maintained.[72] The only expectation that an offender can have at sentence ‘is of the imposition of a just sentence according to law.’[73] It follows that anyone pleading guilty to a CQ trafficking offence must realise that past sentences provide very little guidance to future sentencing in this area.[74]
By references to the sentences considered in Ellis, the Court rejected as not reasonably arguable the contention that the sentence of 4 years’ imprisonment was outside the range available.
[71][2018] VSCA 324 (‘Sharbell’).
[72]DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37, 48 [53], 50 [63].
[73]Ibid 51 [65].
[74]Sharbell [2018] VSCA 324, [65].
More recently, in Director of Public Prosecutions v Condo,[75] the Court upheld a Director’s appeal against a sentence of 5 years and 9 months’ imprisonment following a plea of guilty to CQ trafficking in methylamphetamine. Allowing the appeal and resentencing the offender to 9 years and 9 months’ imprisonment on the trafficking charge, the Court said:
For the avoidance of doubt, however, we should make it clear that there is no tension between what this Court has said in Gregory and Fernando about the need for an uplift in current sentencing practices as they concern trafficking in CQs of drugs of addiction, and the need for individualised sentencing as expressed in Dalgliesh and earlier decisions such as Elias v The Queen. Section 5 of the Sentencing Act 1991 requires a sentencing judge to have regard to current sentencing practices along with other factors as part of any sentencing exercise. This reflects the need for predictability and consistency in sentencing. While the uplifted sentencing practice is not a ‘controlling factor’, it cannot be ignored. It remains a relevant factor in every sentencing exercise of this kind.[76]
[75][2019] VSCA 181.
[76]Ibid [20] (citations omitted).
The submissions
On these appeals, the Chief Crown Prosecutor submitted that the sentences imposed on the trafficking charges reflected the types of sentences imposed for trafficking in BD in the pre-Gregory era. Acknowledging that her Honour had expressly referred to Gregory, the submission nevertheless contended that the sentence of 4 years and 6 months’ imprisonment imposed on Fatho
is not reflective of the application of these principles and indeed seems mired in outdated sentencing practices for this offence.
A substantially higher sentence was called for, it was said, given that:
·Fatho was the principal of the syndicate;
·his trafficking involved 700 times the commercial quantity of BD;
·he engaged in sustained and persistent trafficking activity over a period of months; and
·he was on bail throughout that period, which aggravated the seriousness of the offending.
The Chief Crown Prosecutor acknowledged the ‘dampening effect’ of the Maxwell line of authority but pointed out that this was a very different case. In Maxwell, the quantity trafficked was ‘at the bottom end of the quantitative scale’[77] and the street value of the drug was only about $17,000. Here, the quantity was at the highest end of the scale and the street value was around $1 million.
[77]Maxwell [2013] VSCA 50, [20].
Further, the Director submitted, the judge had mischaracterised Fatho’s burglary offence. The sentence of 12 months’ imprisonment was not reflective of the ‘very serious criminality’ involved in what was obviously a planned burglary, involving as it did the assistance of an insider. Given that Fatho had a relevant prior criminal history, specific deterrence was an important sentencing consideration.
In relation to Van, it was submitted that the sentencing ‘uplift’ called for in Gregory was applicable to sentencing for the offence of conspiracy to traffick in a CQ of BD
because of the common features relevant to the assessment of the objective gravity for both offences, and in particular the common sentencing objective of punishing those who seek to profit from the proliferation of illicit drugs in the community.
The identical submission was made in relation to Huynh.
The submission for Fatho was that the judge had properly had regard to the relevant sentencing principles, to the applicable maximum penalties and to the authorities referred to above, and that the sentence imposed — although ‘very lenient’ — should be seen as within range. In relation to the trafficking, it was said, the statements in Gregory should have
a degree of qualified application in a case involving a youthful offender or in cases involving a drug where the finding as to the large profit to be gained cannot be made.
The submission for Van was that the sentences imposed on him could not be viewed as ‘wholly outside a sound exercise of the sentencing discretion’, having regard to the objective circumstances of the offending and to the mitigating factors on which he could rely. It was further pointed out that, given the prosecutor’s express concession on the plea that there should be total concurrency between the two individual sentences, the total effective sentence could not be viewed as outside the range.
In relation to the trafficking charge, it was pointed out that the substance actually handed over on 20 March 2018 was not, and did not contain, a drug of dependence. As to the conspiracy charge, it was submitted that its objective gravity was less than it would have been if the exchange of the drug had taken place. This was so given that, in the event, there was no distribution of the drug into the community and, therefore, no resultant harm to the community.
As to mitigation, senior counsel for Van submitted that the judge had properly taken into account the restrictions imposed on Van and his liberty during the three months he had spent in intensive residential rehabilitation, and the further three months in a ‘step down program’. Further, it was said, Van had made ‘genuine and considerable’ attempts to overcome his drug addiction and to rehabilitate himself.
The submission for Huynh was that, as described by this Court in Boulton v The Queen,[78] the conditions imposed on him by and under the CCO ‘were onerous indeed and constituted significant intrusions into [his] freedoms’. At the same time, it was submitted, the conditions requiring assessment and treatment for drug and alcohol abuse, and for any mental health condition, were properly directed at minimising his risk of reoffending. Importantly, the judge had noted that Huynh’s strong progress in rehabilitation was likely to be diminished if he was returned to prison.
[78](2014) 46 VR 308, 331 [90]–[93] (‘Boulton’).
According to the written case:
In calibrating the punishment as she did, the learned sentencing judge engaged in a peculiarly discretionary exercise. She combined imprisonment, and those conditions necessary to both rehabilitate and punish the Respondent. As a five-member bench of this Court pointed out in Boulton v The Queen, that type of ‘quintessentially discretionary’ decision-making is particularly difficult to impugn on a sentence appeal.
Particular emphasis was placed, in the alternative, on the residual discretion. Should the Court conclude that the sentences were manifestly inadequate, it was submitted, there were powerful reasons why the Court should — in the exercise of its residual discretion — decline to interfere with the sentences imposed. They were identified as follows:
·Huynh had been in the community for more than 12 months, since being granted bail on 1 October 2018, and had not reoffended;
·following the imposition of sentence, he had continued transitional residential treatment, and had completed the program in August 2019 after 10.5 months of treatment; and
·he had continued to progress his rehabilitation, undergoing an outpatient program and attending fortnightly counselling with his counsellor.
Consideration
For the ground of manifest inadequacy to succeed, it is not enough that the appellate court forms a different view about what the sentence(s) should have been. It is necessary to show that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all of the relevant circumstances of the offending and of the offender.[79] In our view, for reasons which follow, that stringent requirement is satisfied in relation to the sentences imposed on Fatho and Van, and there is no basis for the exercise of the residual discretion.
[79]DPP v Karazisis (2010) 31 VR 634, 662 [127] (‘Karazisis’).
As is now well understood, the sentencing regime for drug trafficking is quantity-based. The quantity trafficked can never be the determining factor but it will always be of importance. Other things being equal, the greater the quantity trafficked, the more serious the trafficking offence.[80]
[80]See, eg, DPP v KMD [2015] VSCA 255.
The trafficking in which the three respondents participated involved enormous quantities of BD. As noted earlier, the charge to which Fatho pleaded guilty was of trafficking in 700 times the CQ, with an estimated street value of $1 million. In our opinion, his role as principal of the syndicate, and the sheer scale and persistence of his trafficking activity, called for a substantially higher sentence.
Our conclusion in that regard is reinforced by the line of authority referred to earlier, beginning with Gregory. In addition, Fatho committed these offences while on bail, which made specific deterrence and community protection particularly important sentencing considerations. We would impose a sentence of 8 years’ imprisonment on the trafficking charge.
The sentence imposed on Fatho for the burglary is also manifestly inadequate, in our opinion. This was a well-planned burglary, its purpose being the theft of very substantial quantities of BD. The sentence of 12 months simply did not reflect its objective gravity. We would impose a sentence of 3 years’ imprisonment on that charge, of which we would direct that 1 year be served cumulatively on the head sentence. The other sentencing orders remaining unchanged, the total effective sentence will be 10 years and 3 months’ imprisonment. We would fix a non-parole period of 7 years and 6 months
Van was not a principal but, on the judge’s findings, he was an active participant in the Chinese syndicate. In view of his serious prior convictions, the scale of the trafficking (in his case, 260 times CQ) and the fact that he offended while on bail, the sentence of 30 months on charge 2 (which was also the total effective sentence) was manifestly inadequate. We would resentence Van to 5 years’ imprisonment on charge 2. The sentence on charge 1 being fully concurrent, the total effective sentence will also be 5 years’ imprisonment. We would fix a non-parole period of 3 years.
The position of Huynh was materially different. His participation in the conspiracy to traffick was not to be viewed differently from Van’s but his personal circumstances were quite different. First, he had no prior convictions; secondly, he had not offended while on bail; and thirdly, he had already made remarkable progress in his rehabilitation. It was open to her Honour, in our respectful opinion, to impose a sentence which would — in the manner explained in Boulton — achieve the sentencing purposes of punishment and rehabilitation simultaneously.
As the Court there explained, the advantage of a non-custodial sentence is that it demands of the individual that he ‘take personal responsibility for self-management and self-control’.[81] In circumstances such as these, a CCO both enables and requires the offender to receive appropriate treatment for the conditions which were causative of the offending.[82] Her Honour was rightly concerned to maintain, rather than interrupt, Huynh’s strong progress towards rehabilitation, as that will minimise his risk of re-offending and thus advance the public interest in community protection.[83] It was for those reasons that we dismissed the Director’s appeal against Huynh’s sentence.
[81]Boulton v The Queen (2014) 46 VR 308, 335 [114].
[82]Ibid 327–8 [73]–[74].
[83]Ibid 338 [130].
The residual discretion
Counsel for Fatho and Van both submitted that any increase in their client’s sentence would be likely to create an ‘unjustifiable disparity’ with one or other of the co-offender sentences.[84] Counsel for Fatho submitted that the Court should be slow to disturb the sentencing relativities arrived at by the sentencing judge. The submission for Van drew particular attention to the sentences imposed on Huynh, Mansoor and Andy Fatho respectively.
[84]Green v The Queen (2011) 244 CLR 462, 477 [37] (‘Green’); see also Karazisis (2010) 31 VR 634, 659 [109].
In arriving at the new sentences for Fatho and Van, we have had regard to the sentences imposed on each of the co-offenders. We are satisfied that the resulting sentencing differentials reflect the material differences between the various co-offenders — as to their offending and their personal circumstances — to which reference has been made.
Senior counsel for Van advanced two further submissions regarding the residual discretion. First, it was said, if the Court concluded that the sentence was manifestly inadequate, the purposes of the Director’s appeal could be sufficiently served by stating that conclusion, without the need for the sentence itself to be increased. Counsel relied on the following statement from the New South Wales Court of Criminal Appeal in R v Borkowski,[85] which was quoted with approval by the High Court majority in Green:[86]
[T]he purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong.[87]
[85][2009] NSWCCA 102 (‘Borkowski’).
[86](2011) 244 CLR 462, 477–8 [37] (French CJ, Crennan and Kiefel JJ).
[87]Borkowski [2009] NSWCCA 102, [70] (Howie J).
A similar submission was advanced, and rejected, in Director of Public Prosecutions (Cth) v Aqbal Omar.[88] In that case, the Court (Maxwell P, T Forrest and Weinberg JJA) said:
Absent a special circumstance of the kind which engages the residual discretion, there is no principled basis for declining to resentence once a sentence has been found to be manifestly inadequate. It would, indeed, be contrary to the fundamental principle of equality before the law for the Court in a case like the present to refrain from resentencing, unless the same course were to be taken in all other like cases.
[88][2019] VSCA 188.
Finally, senior counsel submitted that — if Van’s sentence was found to be manifestly inadequate — the sentencing error was attributable to the prosecutor having given insufficient assistance to the sentencing judge in explaining the objective gravity of the offending. Having reviewed the plea transcript, we are satisfied that there was no deficiency in the prosecutor’s submissions.
Resentencing
For these reasons, we would allow the Director’s appeals against the sentences of Fatho and Van respectively. We would resentence them as set out above.
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