DPP v Goldsmid
[2023] VSCA 124
•24 May 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0123 |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| JACOB GOLDSMID | Respondent |
| S EAPCR 2022 0124 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| YOHANN MOREAU | Respondent |
| S EAPCR 2022 0146 | |
| JACOB GOLDSMID | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH, KYROU and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 May 2023 |
| DATE OF JUDGMENT: | 24 May 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 124 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1286 (Judge Wilmoth) |
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CRIMINAL LAW – Sentence – Crown Appeals – Trafficking in a large commercial quantity of drug of dependence (charge 1) – Co-accused – Sentenced to 7 years and 6 years respectively on charge 1 – Total effective sentence 9 years and 8 years respectively – Sentences on charge 1 manifestly inadequate – Residual discretion exercised – Appeals dismissed.
CRIMINAL LAW – Conviction – Purported related summary charge – Indictable offence triable summarily – Charge transferred to County Court by Magistrates’ Court – No committal hearing – No direct indictment – Charge not properly before County Court – Crown concession conviction a nullity – Leave to appeal granted – Appeal allowed – Conviction quashed.
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In proceedings S EAPCR 2022 0123 and S EAPCR 2022 0124
| Counsel | |||
| Appellant: | Ms EH Ruddle KC with Mr L McAuliffe | ||
| Respondent (Goldsmid) | Mr R Nathwani with Ms F Fox | ||
| Respondent (Moreau) | Mr PJM Baume | ||
Solicitors | |||
| Appellant | Ms A Hogan, Solicitor for Public Prosecutions | ||
| Respondent (Goldsmid) | Armstrong Legal | ||
| Respondent (Moreau) | Condello Lawyers | ||
In proceeding S EAPCR 2022 0146
| Counsel | |||
| Applicant | Mr R Nathwani with Ms F Fox | ||
| Respondent | Ms EH Ruddle KC with Mr L McAuliffe | ||
| Solicitors | |||
| Applicant | Armstrong Legal | ||
| Respondent | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
KYROU JA
T FORREST JA:
Introduction and summary
There are three proceedings before this Court. In proceedings S EAPCR 2022 0123 and S EAPCR 2022 0124, the Director of Public Prosecutions appeals against sentences imposed on Jacob Goldsmid and Yohann Moreau by a judge of the County Court. In proceeding S EACPR 2022 0146, Goldsmid applies for leave to appeal against one of the convictions entered in the County Court. As discussed at [100] below, the application for leave to appeal against conviction was not contested. Accordingly, for convenience, we will first deal with the Director’s appeal, and will refer to Goldsmid and Moreau collectively as the ‘respondents’ throughout these reasons.
On 24 May 2022, Goldsmid pleaded guilty to the charges set out in the table below and, on 9 August 2022, he was sentenced by a judge of the County Court as follows:[1]
[1]DPP v Goldsmid [2022] VCC 1286 (‘Sentencing remarks’).
Charge on Indictment
Offence
Maximum Penalty
Sentence
Cumulation
1
Trafficking in a drug of dependence – Large commercial quantity (Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’), s 71)
Life
7 years
Base
2
Trafficking in a drug of dependence (DPCSA, s 71AC(1))
15 years
2 years
1 year
3
Trafficking in a drug of dependence
15 years
2 years
1 year
Related Summary Offences
5
Deal with property suspected of being proceeds of crime (Crimes Act 1958, s 195)
2 years
6 months
Nil
6
Deal with property suspected of being proceeds of crime
2 years
6 months
Nil
11
Deal with property knowing that it is the proceeds of crime and intend to conceal that it is proceeds of crime (Crimes Act, s 194 (1))
20 years
6 months
Nil
Total Effective Sentence: 9 years Non-Parole Period: 4 years, 6 months Section 6AAA Statement: Total Effective Sentence 12 years
Non Parole-Period 9 years
On 24 May 2022, Moreau pleaded guilty to the charges set out in the table below and, on 9 August 2022, he was sentenced by the same judge as follows:
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Trafficking in a drug of dependence – Large commercial quantity Life 6 years Base 2 Trafficking in a drug of dependence 15 years 2 years 1 year 3 Trafficking in a drug of dependence 15 years 2 years 1 year 4 Possession of false documents (Crimes Act, s 83A(5)) 10 years 1 year Nil Related Summary Offences
5 Deal with property suspected of being proceeds of crime 2 years 6 months Nil Total Effective Sentence: 8 years Non-Parole Period: 4 years Section 6AAA Statement: Total Effective Sentence 11 years
Non Parole-Period 8 years
The Director has appealed against the respondents’ sentences on the basis that, for each of them, the individual sentences on charge 1, the total effective sentence and the non-parole period are manifestly inadequate.
For the reasons that follow, the Director’s appeals will be dismissed.
Circumstances of the offending
The respondents’ offending occurred between 15 December 2019 and 21 July 2020 when they were engaged together in the business of dealing in drugs of dependence, primarily ketamine, cocaine and MDMA.
Goldsmid first came to the attention of police when, in the evening of 15 December 2019, he dropped three backpacks outside an address in St Kilda East. Early in the morning of 16 December 2019, he dropped a mobile phone and wallet in the same area. A few hours later, he was seen by police while in a drug or alcohol affected state, unable to state his name, in the possession of no items and only wearing a pair of pants. Police arranged for him to be transported to the Alfred Hospital by ambulance.
At approximately 5:25 am on 16 December 2019, a member of the public located the mobile phone and wallet that Goldsmid had dropped and took them to the St Kilda Police Station. At around 7:00 am, a second member of the public notified police about the three backpacks that Goldsmid had dropped. Police attended and seized the backpacks.
Upon searching the backpacks and wallet, police located:
(a)approximately 240 grams of cocaine;
(b)approximately 336 grams of ketamine;
(c)approximately 1,104.9 grams of MDMA;
(d)approximately 125.7 grams of amphetamine (charge 2 — trafficking in a drug of dependence — both respondents);
(e)approximately 6,966 miligrams of LSD (charge 3 — trafficking in a drug of dependence — both respondents);
(f)scales, ziplock bags, elastic bands and envelopes;
(g)a second iPhone;
(h)$16,877.35 in cash (summary charge 5 — dealing with property suspected of being proceeds of crime — both respondents); and
(i)five notebooks.
The police informant was able to access and examine both mobile phones. They contained various messages relating to trafficking in drugs of dependence, and the addresses of properties which were rented or were to be rented.
Four of the notebooks contained references to: bond and rent amounts; rules for customers, rules for the operation of a ‘shop’; and a ledger recording the sale of ketamine, cocaine, MDMA and speed on various dates. The entries appeared to have been made in two different handwriting styles.
On 3 April 2020, police covert operatives met with Goldsmid at a St Kilda East address, where Goldsmid said that he was in the business of selling drugs, agreed to sell drugs to the covert operatives at a later date, and gave details of his Wickr[2] account to the covert operatives. That day, police surveillance also observed the respondents move houses with a removalist truck to a St Kilda address.
[2]A messaging app.
On 11 April 2020, the covert operatives arranged to purchase cocaine from Goldsmid, having contacted him via Wickr. They purchased 3 grams of white powder, which, after analysis, was found to contain 2.6 grams of cocaine.
On 24 April 2020, a warrant to intercept Goldsmid’s mobile phone number was issued under the Telecommunications (Interception and Access) Act 1979. Police intercepted communications between Goldsmid, Moreau and other people relating to drug trafficking. There were also communications referring to addresses in St Kilda and Balaclava. In further communications, Goldsmid referred to burying cash in the backyard of his parents’ house, and his plans to use it to purchase a vehicle and then selling the vehicle in a few years to ‘clean the cash’.
On 19 May 2020, Goldsmid was observed travelling to a Balaclava address where he met a number of people and engaged in drug trafficking.
On 4 June 2020, police executed a warrant authorised under s 81 of the DPCSA at the Balaclava address. Neither of the respondents was present. Police obtained the following items:
(a)approximately 50 boxes of diazepam tablets, each containing 50 tablets;
(b)approximately 14 bottles of alprazolam, each containing 50 tablets;
(c)a ziplock bag containing cocaine;
(d)a ziplock bag containing approximately 200 grams of ketamine;
(e)a quantity of red tablets;
(f)a quantity of green vegetable matter;
(g)two ziplock bags containing a quantity of white powder;
(h)a ziplock bag containing a brown rock substance; and
(i)an exercise book, containing handwritten notes.
On 21 July 2020, police executed search warrants at the St Kilda address and arrested the respondents. During the search, police located and seized, amongst other things, the following items:
(a)for Moreau: a notebook containing references to drug trafficking in French, three driver’s licences which bore an image of Moreau but contained the names of other people (charge 4 — possession of false documents — Moreau).
(b)for Goldsmid: another phone, around 20 grams of cocaine and keys to a 2013 Nissan Navara motor vehicle.
(c)from the living room of the St Kilda house, police seized a notebook recording details and ledgers of apparent drug trafficking.
Police searched the Nissan vehicle and located $7,000 in cash (part of summary charge 6 — dealing with property suspected of being proceeds of crime — Goldsmid) and an iPad, which were both seized. The motor vehicle was also seized (summary charge 11 — knowingly dealing with proceeds of crime — Goldsmid).
On the same day, police executed search warrants at Goldsmid’s parents’ house where they located $10,000 in cash under a chest of drawers (part of summary charge 6 — dealing with property suspected of being proceeds of crime — Goldsmid).
The respondents were interviewed, charged and remanded in custody.
In his record of interview, Goldsmid admitted to operating a drug trafficking business with Moreau for a period of approximately 12 months. He admitted to dealing in quantities of ketamine, cocaine and MDMA. He admitted that a mobile phone he shared with Moreau was referred to as the ‘shop phone’ and was used by them to traffick drugs. Goldsmid admitted that he owned the drugs within the three backpacks, and the mobile phones and four notebooks that were located. Goldsmid also drew a map for police showing where he had buried cash which were the profits of their drug trafficking.
Goldsmid confirmed that the exercise book taken from the living room of the St Kilda house contained a drug ledger depicting dates, types and quantities of drugs sold, as well as the profit earned on such sales (‘Drug Ledger’). The Drug Ledger recorded sales in the period between 24 March 2020 and 1 June 2020.
Moreau also made full admissions when interviewed by police. He stated that he was aware that Goldsmid had lost three backpacks in December 2019 and confirmed that they were co-owned by him. He also confirmed that the Drug Ledger contained entries he had made of drugs trafficked and profit earned.
Both respondents provided hand writing samples which were used by police to determine which entries in the Drug Ledger were made by each respondent.
The entries in the Drug Ledger formed part of the basis of charge 1 for each respondent. The entries for Goldsmid revealed that he had trafficked in:
(a)1.8 kilograms of ketamine;
(b)1.47 kilograms of MDMA; and
(c)999.6 grams of cocaine.
The entries in the Drug Ledger for Moreau revealed that he had trafficked in:
(a)1.96 kilograms of ketamine;
(b)1.37 kilograms of MDMA; and
(c)989.3 grams of cocaine.
The plea was conducted on the basis that each respondent had knowledge only of the transactions he had personally conducted.
The offending the subject of charge 1 also included the amounts seized during the execution of the various search warrants and the amounts contained in the dropped backpacks. In total, Goldsmid pleaded guilty to trafficking the following quantities of drugs:
(a)2.14 kilograms of ketamine;
(b)2.6 kilograms of MDMA; and
(c)1.289 kilograms of cocaine.
Moreau pleaded guilty to trafficking the following quantities of drugs:
(a)2.29 kilograms of ketamine;
(b)2.57 kilograms of MDMA; and
(c)1.28 kilograms of cocaine.
For each of ketamine, MDMA and cocaine, the threshold for a ‘large commercial quantity’ was 1 kilogram.[3]
[3]DPCSA, sch 11.
Respondents’ personal circumstances
Goldsmid
Goldsmid was 22 years old at the time of the offending and 24 at the time of sentence. He had an unremarkable upbringing with a supportive family. He left school after Year 11. Since leaving school, he had sporadic employment, including at his father’s landscaping business and had obtained some income from playing video games.
After leaving school, Goldsmid turned to drug use at around the age of 18 and soon became a regular user of cocaine, MDMA, ketamine, Xanax and GHB. He left home at around the age of 19, as his parents did not approve of his social circle. His contact with his family decreased in his early twenties as he sought to hide his drug use from his parents.
Goldsmid has no prior criminal history. His family remains supportive of him.
Moreau
Moreau was 26 years old at the time of the offending and 28 at the time of sentence. He was born in Brittany, where he grew up and went to school. He is a French citizen who was in Australia on a student visa at the time of his arrest.
Moreau’s father drank heavily, suffered from bipolar disorder and physically abused him until he went to boarding school at the age of 14 or 15. Moreau’s mother developed breast cancer when he was 13 or 14. As a result, he became very close with his older sister, to whom he remains close.
Moreau was expelled from school due to non-attendance. He attended university to study language but left after one year. He first arrived in Australia in 2016, on a working holiday visa. Prior to his arrest, he was enrolled in a business and management course in the Melbourne CBD. He acknowledged that he enrolled in this course mainly to obtain a student visa to stay in Australia.
Moreau had a long history of using illicit substances. He first used cannabis at the age of 15 and used large amounts regularly from the age of 16 until he was arrested. He described cocaine as his main substance of choice, and prior to his arrest he was using around five grams a day. He had also used amphetamines, GHB, ketamine, diazepam, alprazolam and methylamphetamine.
Moreau does not have a criminal history, either in Australia or France.
Plea hearing
In relation to both respondents, the prosecutor accepted that the level of cooperation with police was ‘incredible’ and ‘unusual’, and that the level of detail provided by the respondents ‘filled up a lot of the gaps’ for the police. The prosecutor submitted that this was not the sort of case where, but for the admissions, the respondents would not have come to police attention.[4] The prosecutor conceded that given the level of cooperation ‘there was room for some Doran discount there’.
[4]Referring to R v Doran [2005] VSCA 271 (‘Doran’).
The prosecutor submitted that the trafficking occurred for a not insignificant period of time and was an organised operation of ‘some sophistication’. The prosecutor accepted that the level of sophistication was ‘perhaps lacking in what might be called – the risks [the respondents] took of getting caught’. However he contended that this did not derogate from the seriousness of the offences. The prosecutor argued that the major factor was the quantity being trafficked, which in this case was ‘a large commercial quantity times six in each case’.
Goldsmid
At the plea hearing, Goldsmid’s defence counsel tendered a report dated 17 May 2022 prepared by a psychologist, Dr Matthew Barth. Also tendered were a letter of remorse from Goldsmid, six character references from each of Goldsmid’s parents, three family friends and a former teacher.
Goldsmid told Dr Barth that he experienced a degree of anxiety and low self-esteem during his teenage years. However, Dr Barth reported that Goldsmid stated that he had never felt the need to consult a mental health professional and had never experienced suicidal ideation or attempted self-harm.
Dr Barth stated that Goldsmid presented with symptoms of mild emotional distress but such symptoms were not sufficient to warrant a diagnosis of a mental disorder. Dr Barth opined that Goldsmid’s substance abuse issues would have met the requirement of a severe stimulant use disorder, but that it would be in remission in the controlled prison environment. Dr Barth stated that: ‘Goldsmid was able to show a developing insight into his addiction and an appreciation for the destructive impacts of substance abuse on his life. However … his understanding of relapse prevention strategies is very underdeveloped and his coping skills remain simplistic.’
Goldsmid’s letter of remorse described his remorse for his actions and how, since his arrest, he had made sure he completed multiple drug and lifestyle related programs to deter him from offending again.
The character references generally described Goldsmid as coming from a strong, loving and respected family and expressed optimism that he would reform himself and become a law abiding citizen.
Counsel submitted that Goldsmid should receive the benefit of a significant discount on sentence in line with the principles identified in R v Doran,[5] as he had effectively confessed to everything. Goldsmid otherwise relied upon his youth, prior good character, remorse, prospects of rehabilitation, early guilty plea and delay between arrest and sentence, as matters in mitigation.
Moreau
[5][2005] VSCA 271.
At the plea hearing, Moreau’s defence counsel tendered a report dated 22 May 2022 prepared by a clinical psychologist, Dr Michael Davis. Also tendered were a letter of remorse written by Moreau, historical medical records for Moreau and his father and a letter from Moreau’s older sister, Elodie, who is a school teacher in La Jarrie, France.
The historical medical reports recorded that Moreau was admitted to a mental health unit in 2010 as he was feeling anxious, having difficulty sleeping and using cannabis as a form of self-medication.
Dr Davis described Moreau as having a pattern of behaviour consistent with a diagnosis of borderline personality disorder. Dr Davis stated that Moreau ‘is likely to be quite emotionally unstable, manifesting fairly rapid and extreme mood swings and, in particular, probably experiences episodes of poorly controlled anger … he is also quite impulsive and prone to behaviours likely to be self-harmful or self-destructive, such as those involving spending, sex and/or substance abuse; he may also be at increased risk for self-mutilation or suicidal behaviour.’
Dr Davis opined that Moreau’s lengthy history of misusing a range of substances would have previously met the formal criteria for stimulant use disorder, cannabis use disorder and likely several other substance use disorders. However, the fact that he had not used any of these substances while he was in custody indicated that they would all be considered to be in sustained remission, in a controlled environment.
Dr Davis noted that Moreau was a diagnostically complex individual but that, in Dr Davis’ opinion, Moreau was currently experiencing depressed mood that was at the magnitude of a major depressive episode. Dr Davis opined that Moreau met the formal criteria of ‘Persistent Depressive Disorder (dysthymia, with intermittent major depressive episodes, with current episode, with anxious distress)’.
Dr Davis stated that he did not think that Moreau had ever had bipolar disorder, but that, in his opinion, Moreau’s ‘poor sense of identity, recurrent suicidal ideation, impulsivity, emotional instability, chronic feelings of emptiness, and transient stress-related paranoia meet formal criteria for Borderline Personality Disorder.’ Dr Davis further considered that Moreau’s diagnosed difficulties would have been exacerbated by his substance use, and that his use of cocaine, ketamine and GHB would only have served to accentuate Moreau’s impulsivity and recklessness.
Dr Davis opined that Moreau was ‘very regretful of [his] offending’ and viewed his ‘offending with some embarrassment’, but noted that ‘there is not a great deal of remorse per se’. Dr Davis’ considered that Moreau had considerably fewer risk factors than that of the average inmate, and posed a moderate risk for general criminal recidivism comparable to the average offender.
The letter from Elodie Moreau described Moreau as having been affected by their father’s bipolar disorder and frequent drunkenness as well as parental conflict. Elodie believed that, when he was a teenager, Moreau did not have the support he needed to deal with his anxiety due to the fact that they had young twin siblings, their father’s bipolar disorder and their mother being diagnosed with breast cancer in 2007.
Moreau’s letter acknowledged the severity of his crimes, expressed his feelings of shame about his actions, and described a willingness to get the help that he needs in the form of counselling or anything else suggested to him.
Sentencing remarks
The judge summarised the factual circumstances in terms similar to [6]–[30] above. Her Honour observed that the maximum penalty for charge 1 reflected the very serious nature of this offending as well as the quantity of drugs trafficked by each of the respondents — about six times the threshold for a large commercial quantity. The judge correctly observed that ‘[q]uantity is a central feature of the offending for sentencing purposes’.[6]
[6]Sentencing remarks, [24].
Her Honour accepted that, despite the quantities, ‘it was relatively unsophisticated drug trafficking, as demonstrated by the debacle of Goldsmid dropping the backpacks and phone in the street’ while ‘he was very drug affected and behaving erratically, drawing attention to himself’. The judge noted that Goldsmid’s wallet, which was found nearby in the street, contained his identification details and his phone was registered in his name. Notwithstanding these findings, the judge qualified them by stating that this was an extensive profit-making enterprise with coordinated use of record keeping.
Other factors said by her Honour to be relevant to the objective gravity of the offending were:
•The offending was of relatively short duration.
•The profits were relatively modest.
•The respondents were using drugs themselves, and thus reducing profits. This was described by her Honour as ‘compounded by a cycle of debt for the purchase of drugs which committed them further’.[7]
[7]Sentencing remarks, [26].
These matters were said to be relevant to the application of the standard sentencing regime as it concerned charge 1, and her Honour noted that the standard sentence for this offence was 16 years’ imprisonment.
Weighing these factors, the judge concluded that the objective gravity of both sets of offending was ‘only just below the midrange, taking into account the very large quantity, but also the relatively unsophisticated enterprise and the limited duration compared with other cases.’[8]
[8]Sentencing remarks, [29].
In relation to parity between the respondents, the judge found that the main difference between them was that Moreau suffered from severe mental health problems whereas Goldsmid was immature and vulnerable. [9] In relation to both respondents, the judge also took into account the delay between their arrest and sentence.[10]
Goldsmid
[9]Sentencing remarks, [66].
[10]Sentencing remarks, [46], [64].
The judge found that Goldsmid’s prospects of rehabilitation were reasonable, taking into account his youth, family support, abstinence from drugs, remorse and professed intention not to offend again.[11]
[11]Sentencing remarks, [59].
The judge stated that Goldsmid was entitled to a reduction of sentence given that, during the entire time he had spent in custody, there were restrictions due to the COVID-19 pandemic. The judge recognised that the important sentencing principles were punishment, specific deterrence, general deterrence and rehabilitation.[12]
Moreau
[12]Sentencing remarks, [65].
The judge found that Moreau’s unstable personality and ongoing severe chronic depression reduced his criminal culpability and meant that he was not to be regarded as a wholly suitable vehicle for general deterrence.[13] She took into account that Moreau was likely to find time in prison more difficult than others who did not suffer from the same conditions as him.[14] She considered that Moreau would experience hardship in custody as a result of the pandemic, his isolation from his family and his feelings of being an outsider in Australia.[15]
[13]Sentencing remarks, [41].
[14]Sentencing remarks, [46].
[15]Sentencing remarks, [45].
The judge determined that Moreau had good prospects of rehabilitation as a result of the fact that he had taken responsibility for his offending, demonstrated remorse and gained some insight into why he offended.[16]
[16]Sentencing remarks, [44].
This appeal
The Director’s appeals raise the following issues:
(a)Are the sentences manifestly inadequate?
(b)If the sentences are manifestly inadequate, should the Court nevertheless dismiss the Director’s appeals in the exercise of its residual discretion?
(c)If the sentences are manifestly inadequate and the residual discretion is not exercised, how should the respondents be resentenced?
Are the sentences manifestly inadequate?
The sentencing regime prescribed by Parliament for drug trafficking offences is quantity based.[17] Accordingly, the quantity of the drugs trafficked is a highly relevant consideration, but not the only one.[18]
[17]Gregory v The Queen (2017) 268 A Crim R 1, 7 [23]; [2017] VSCA 151 (‘Gregory’).
[18]Gregory (2017) 268 A Crim R 1, 8 [24]; [2017] VSCA 151.
The intention of Parliament in introducing the offence of trafficking in a large commercial quantity of a drug of dependence, with a maximum sentence of life imprisonment, was to send the clearest message to would-be traffickers — and to sentencing courts — about how sternly large-scale drug trafficking was to be punished.[19]
[19]Quah v The Queen (2021) 290 A Crim R 136, 150-1 [54]–[57]; [2021] VSCA 164 (‘Quah’).
Under s 289(1)(a) of the Criminal Procedure Act (‘CPA’), in order to succeed in an appeal of this nature, the Director must establish that ‘there is error in the sentence first imposed’. In the absence of an identifiable error this demonstration turns upon an inferred error of the type identified in House v The King:[20]
[The] judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[21]
[20](1936) 55 CLR 499 (‘House’).
[21]House (1936) 55 CLR 499, 504–5.
In Director of Public Prosecutions v Karazisis,[22] an appeal brought by the Director under s 289(1)(a) of the CPA, this Court observed that a ground of appeal alleging manifest sentencing inadequacy required stringent analysis:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown 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 the relevant circumstances of the offending and of the offender.
The court will be astute to enforce the stringency of this test.[23]
[22](2010) 31 VR 634 (‘Karazisis’).
[23]Karazisis (2010) 31 VR 634, 662–3 [127]–[128] (citations omitted).
In sentencing an offender for trafficking a large commercial quantity of a drug of dependence, the prior good character of a convicted person ordinarily is to be given less weight than for other offences.[24]
Parties’ submissions on manifest inadequacy
Director’s submissions
[24]Dao v The Queen (2014) 240 A Crim R 574, 580 [9]; [2014] VSCA 93.
The Director took issue with the judge’s characterisation of the trafficking enterprise as unsophisticated. The Director contended that whilst there were some unsophisticated aspects of the enterprise, other aspects such as the use of Airbnb properties for drug storage, the existence of drug notebooks and ledgers as well as plans for laundering profits bespoke of some level of sophistication. There is some tension between this submission and the prosecutor’s concession to the sentencing judge that the ‘level of sophistication was perhaps lacking’.[25] The Director further stated that ‘[d]rug offences cause significant harm to the community and its most vulnerable members’.
[25]See [40] above.
The Director submitted that considerations of youth and rehabilitation cannot be allowed to engulf other critical sentencing considerations which, it was said, were community protection, denunciation and general deterrence. The Director relied upon Gregory and contended that, given the objective gravity of the offending, the sentences could not be justified. The Director contended that, notwithstanding the unusually powerful mitigating factors present for both Goldsmid and Moreau, the quantity and variety of drugs trafficked as well as the duration over which they were trafficked called for significantly higher sentences.
The Director’s submissions concerning the level of sophistication and objective gravity were identical for both respondents. The Director submitted, in relation to Moreau, that the judge placed significant weight on Moreau’s mental disorders and overemphasised their importance in the sentencing process.
The Director contended that the more serious the offence, the greater the weight should be given to community protection, despite any reduction in moral culpability because of a mental impairment.[26] The Director argued that the judge appeared to have found for Moreau that the first, third, fifth and sixth limbs of R v Verdins[27] were enlivened, at least to some degree. According to the Director, the evidence tendered on the plea did not support the application of any of the limbs of Verdins, although this aspect was not pressed in oral argument and was not the subject of a separate ground of appeal. It was said by the Director that ‘considerations such as [Moreau’s] mental health diagnoses and rehabilitation cannot be allowed to engulf other critical sentencing considerations, such as the need to impose a punishment that reflected the objective gravity of the offence, community protection, denunciation and general deterrence.’
Goldsmid’s submissions
[26]The Director relied upon R v Imadonmwonyi [2008] VSCA 135.
[27](2007) 16 VR 269, 276 [32] (‘Verdins’).
Goldsmid accepted that the quantity of drugs trafficked was significant and that, on initial consideration, the sentence appeared to be lenient. However, Goldsmid submitted that there was ample explanation for such a result, and it could not be said that such leniency took the sentence wholly outside the range of available sentences.
Goldsmid drew attention to his youth, early plea of guilty, which was made while there was still a backlog of trials as a result of the COVID-19 pandemic, and the fact that he faced particular difficulties as a first-time offender in custody at the height of the pandemic.[28] He contended that the judge was justified in affording him a discount for the admissions he made to police when interviewed, as they provided assistance to police and demonstrated his remorse for his offending.
[28]Goldsmid relied upon Re Broes [2020] VSC 128.
Goldsmid noted that the Director had not advanced a submission that the judge’s finding that the gravity of the offending was just below the midrange was not open or otherwise attended with error.
In written submissions, Goldsmid referred us to four cases, three from this Court and one from the County Court, which it was submitted were comparable.[29] In the three cases in this Court, the offenders received sentences of between 10 and 15 years on a charge of trafficking in a large commercial quantity of a drug of dependence. Goldsmid submitted that the moral culpability of each of the offenders in the comparable cases was higher than his. All four cases involved guilty pleas.
[29]The cases were DPP v Kumas [2021] VSCA 215 (‘Kumas’); Quah (2021) 290 A Crim R 136; [2021] VSCA 164; Al Janabe v the Queen [2021] VSCA 252 (‘Al Janabe’) and DPP v Dong [2020] VCC 298 (‘Dong’).
In Kumas, the offender was originally sentenced to 6 years and 6 months’ imprisonment on one charge of trafficking in a large commercial quantity of a drug of dependence, which this Court increased to 10 years. The ‘drug of dependence’ was a mix of methylamphetamine (1.37 kilograms) and cocaine (84.3 grams). The combined weight of the drugs represented 1.92 times the large commercial quantity threshold. The offender had a long criminal history, was on parole at the time of the offending and was also charged with firearms offences.[30] The sentencing judge found that the offender’s prospects of rehabilitation were ‘guarded’.[31] The offender was able to call in aid a number of mitigating factors, including a history of homelessness and mental illness.[32] Goldsmid submitted that the offending and moral culpability of the offender in Kumas were more significant than in his case.
[30]Kumas [2021] VSCA 215, [4], [6].
[31]Kumas [2021] VSCA 215, [66].
[32]Kumas [2021] VSCA 215, [18], [33].
In Quah, this Court held that a sentence of 15 years’ imprisonment on a charge of trafficking in a large commercial quantity was not manifestly excessive. The amount trafficked was 3.8 times the threshold for a large commercial quantity of methylamphetamine,[33] and the offender’s moral culpability was high.[34] A search of Quah’s apartment revealed, in addition to the methylamphetamine, just under $90,000 in cash, scales, empty deal bags, a number of prohibited weapons and ammunition.[35] This Court found that the sentence of 15 years could be seen to reflect the giving of appropriate weight to the matters relied upon in mitigation including the pleas of guilty.[36] Goldsmid contended that the offending in Quah, which was found to be ‘at the low end of mid-range’,[37] was more serious than the offending in this case.
[33]Quah (2021) 290 A Crim R 136; [2021] VSCA 164.
[34]Quah (2021) 290 A Crim R 136, 147 [42]; [2021] VSCA 164.
[35]Quah (2021) 290 A Crim R 136, 139 [5]–[6]; [2021] VSCA 164.
[36]Quah (2021) 290 A Crim R 136, 152 [59]; [2021] VSCA 164.
[37]Quah (2021) 290 A Crim R 136, 144 [25]; [2021] VSCA 164.
In Al Janabe, a sentence of 10 years’ imprisonment for trafficking in a large commercial quantity of a drug of dependence was held to be not manifestly excessive, and was described as ‘very lenient’.[38] The offender in that case trafficked an amount that was more than 12 times the prescribed large commercial quantity for methylamphetamine.[39] He had a prior criminal history, was on bail at the time of the offending and was charged with related summary offences for possession of weapons. Goldsmid argued that this offending was considerably more serious and the moral culpability more significant than the offending in his case.
[38]Al Janabe [2021] VSCA 252, [34].
[39]Al Janabe [2021] VSCA 252, [24].
In Dong, the County Court imposed a sentence of nine years for one charge of trafficking in a drug of dependence, heroin, in a large commercial quantity. Dong was part of a larger criminal drug trafficking enterprise. It seems that he trafficked in over two kilograms of that drug. Large sums of cash were also found at premises associated with him. According to Goldsmid, while acknowledging that current sentencing practices are more appropriately set by this Court than the County Court, Dong was relevant as there are limited cases whereby an offender has fallen to be sentenced under the standard sentence regime. It was said that the fact that Dong was sentenced to 9 years’ imprisonment on a charge of trafficking in a large commercial quantity of heroin, prior to the COVID-19 pandemic, illustrates part of the range within which Goldsmid fell to be sentenced.
In oral submissions, counsel for Goldsmid largely rehearsed his written submissions. He submitted that the sentence on charge 1, while lenient, was not wholly outside the range available to the judge in the reasonable exercise of her discretion, nor was the total effective sentence. He contended that the following factors combined to moderate the appropriate sentence on this charge:
•The early plea of guilty, which was entered during the COVID-19 pandemic, thus enhancing its utilitarian value.
•The genuine remorse and contrition which can be inferred from, among other things, his quite extraordinary cooperation with authorities in making admissions at the time of his arrest, as well as demonstrating to police where drugs and cash had been secreted and providing a map for police to enable them to retrieve buried cash.
•The relative lack of sophistication of the offending including the manner in which he managed to lose the entire drug stock in trade of the enterprise on a suburban street.
•His youth.
•His prospects for rehabilitation.
In summary, counsel for Goldsmid contended that, even if the sentence on charge 1 were considered manifestly inadequate (which was not conceded), the total effective sentence of 9 years’ imprisonment captured adequately the overall criminality and thus this Court ought not interfere with the sentence imposed by the judge either by dismissing the ground of appeal, or exercising the residual discretion available to this Court to dismiss the appeal despite manifest inadequacy being established.
Moreau
Moreau, like Goldsmid, accepted that the sentence imposed was somewhat lenient but contended that it was not wholly outside the range of sentences available to the judge. Moreau submitted that Dr Davis’ report provided a basis upon which the judge could conclude that he would find prison more difficult than a person in ordinary health.
Moreau argued that his youth, lack of prior convictions, early plea entered during the currency of the pandemic, remorse, cooperation with police, good prospects of rehabilitation, exposure to family violence as a teenager, and the prospect of deportation upon release combined to provide a powerful case in mitigation of what was undoubtedly serious offending. Moreau adopted Goldsmid’s submissions, where relevant, including regarding the objective gravity of the offending.
Decision on manifest inadequacy
The head sentences on charge 1 of 7 years’ imprisonment for Goldsmid and 6 years for Moreau are, we consider, manifestly inadequate. They are wholly below the ranges of sentences that were available to the judge in the reasonable exercise of her sentencing discretion. The respondents were, it seems, the sole members of this criminal enterprise and stood to derive significant profit over the course of its activity. The quantities alone that were trafficked by both respondents over four or five months meant that: their activities were highly criminal; their respective moral culpabilities were high (although in Moreau’s case perhaps moderated slightly by his underlying mental impairments); and deterrence, particularly general deterrence, needed emphasis in the sentencing calculus.
We are unable to discern such emphasis in the sentences imposed on charge 1. Whilst there was a considerable amount of material mustered in mitigation for both respondents, our strong impression is that the judge failed to give sufficient weight to the objective gravity of the offending or the need for deterrence, particularly general deterrence. We consider that the sentences on charge 1, given the amounts trafficked, are also out of step with current sentencing practices, albeit most examples of offending on this scale occurred before the introduction of the standard sentencing regime.
These conclusions, however, are not determinative of this appeal. This Court retains a residual discretion to decline to intervene.
Should the Court exercise its residual discretion?
In Karazisis, the majority of this Court set out the three conceptual stages of inquiry that traditionally arose in a Director’s appeal.
First, the court considered the nature of the sentencing error in order to determine whether it satisfied the common law requirements … and did not unduly circumscribe the sentencing discretion. Secondly, even if the error met those requirements, the court would consider whether, for reasons of principle or because of discretionary considerations, it should decline to intervene because it did not consider that a different sentence should be imposed. For example, the court would exercise what it regarded as an overriding, or residual, discretion not to intervene where it did not consider that there was a sufficient difference between the sentence imposed at first instance, and any sentence it regarded as appropriate. Thirdly, if the court did intervene, because it was a Crown appeal the court would impose a lesser sentence than it would otherwise have imposed, which was generally toward the lower end of the appropriate range.[40]
[40](2010) 31 VR 634, 648 [50] (citations omitted).
This Court’s residual discretion to refuse to intervene even if sentencing error has been demonstrated is exercisable at the second stage of its inquiry on a Crown appeal against sentence. This residual discretion to dismiss a Crown appeal has survived the abolition of double jeopardy as a resentencing consideration, but that abolition means that the discretion can only be exercised on the basis of considerations other than double jeopardy.[41] The burden lies upon the Crown to show that the residual discretion should not be exercised.[42]
[41]Karazisis (2010) 31 VR 634, 648–9 [52]–[53], 657–8 [100], 658 [103], 661 [119].
[42]Cumberland v The Queen (2020) 379 ALR 503, 511 [33]; [2020] HCA 21.
It has been said that the residual discretion is ‘perhaps of uncertain width’ and that ‘[i]t is impossible to lay down any exhaustive statement of its scope, or to be unduly prescriptive as to how it should be exercised in any given case’.[43]
[43]Karazisis (2010) 31 VR 634, 657 [100].
Recently in Lombardo, this Court stated that the factors that inform the exercise of the residual discretion include whether:
(a)the offender given a non-custodial sentence has complied with its terms for a significant period;
(b)the offender given a ‘lenient disposition’ has made productive use of that disposition, including by finding ‘employment and stability in their personal life’;
(c)the offending falls short of ‘criminality of the highest order’;
(d)there has been a delay between the imposition of sentence and the Crown appeal; and
(e)the sentence first imposed is of a type which enhances the prospects of the offender’s rehabilitation, particularly where the offender is young.[44]
[44](2022) 102 MVR 19; 44 [108]; [2022] VSCA 204 (citations omitted).
In written submissions, the Director did not address the residual discretion. In oral submissions, the Director advanced arguments to the effect that there was ‘no work for the residual discretion to do in this case’ unless the Court was of the view that the total effective sentence was adequate.
Both respondents submitted that they were not suitable vehicles for a point of principle because of their youth. Obviously, this was a weightier submission for Goldsmid (22 at the time of offending) than Moreau (26 at the time of offending), however Moreau could rely on his accepted mental illness to endeavour to establish the same point. Both respondents relied on the prosecutor’s concessions on the plea that while there was ‘some sophistication’ to the offending, it was ‘perhaps lacking’, and that their cooperation with police was ‘incredible’ and ‘unusual’.
Both respondents (Moreau adopting Goldsmid’s submissions) relied on the principle of totality. It was contended that, even if the sentences on charge 1 were manifestly inadequate, when the total effective sentences were considered, along with the myriad of mitigating factors arising in the custodial setting during the COVID-19 pandemic, and given the timing of the pleas, either the total effective sentence in each case was not manifestly inadequate or, if they were, both were sufficiently close to the range of sentences reasonably available to the judge as to attract the residual discretion.
We have determined to exercise the residual discretion in favour of the respondents, and thus to dismiss this appeal notwithstanding our view that both sentences on charge 1 are manifestly inadequate. Our reasons for adopting this course are as follows:
(a)In our view, it was well open to the prosecutor to characterise the enterprise as displaying only ‘some sophistication’ but that it was ‘perhaps lacking’. On this appeal, in written submissions the Director contended this enterprise was ‘relatively sophisticated’. We think that that somewhat overstates the position. It is correct that both respondents kept records of transactions and a ledger of sorts and that they moved between Airbnb units to avoid detection. However, in other respects sophistication is not a word that springs readily to mind. Sophisticated drug dealers do not use mobile phones that are not password protected to record transactions. Sophisticated drug dealers do not often provide ‘incredible’ and ‘unusual’ cooperation. Sophisticated drug dealers do not wander, naked from the waist up and drug affected, in suburban streets carrying and then dropping their entire stock in trade. This ‘debacle’ was well summarised by her Honour:
Despite this large scale, it was relatively unsophisticated drug trafficking, as demonstrated by the debacle of Goldsmid dropping the backpacks and phone in the street. At the time, he was very drug affected and behaving erratically, drawing attention to himself. The wallet found in the street contained his identification details and the phone was registered in his name. The phone from one of the bags contained incriminating material and neither of the phones were protected, allowing easy analysis.[45]
(b)Both respondents were still relatively young, with no prior criminal histories. The sentences imposed were of a type designed to enhance the prospects of their respective rehabilitation. The minimum terms imposed illustrate this design with some clarity.
(c)The offending, the judge found, sat just below the mid-range of the sorts of offending that constitute this very serious offence.
(d)Importantly, charges 2 and 3 for both offences resulted in cumulation of a total of two years upon the base sentence, charge 1. Thus Goldsmid’s total effective sentence was 9 years’ imprisonment and Moreau’s 8 years. Charge 2 in both cases involved 128.7 grams of amphetamines found in Goldsmid’s backpack on 16 December 2019. Charge 3 involved less than 7 grams of LSD also found in one of the backpacks on 16 December. Both of these substances were found at the same time and place as the ketamine, cocaine and MDMA that formed part of charge 1. It is not our function to inquire as to why charges 2 and 3 were the subject of individual treatment on the indictment when they could have been aggregated with the other drugs into charge 1. The effect of treating them separately on the indictment is, however, to move the ultimate total effective sentence substantially closer to a sentence that properly reflects the overall criminality of each respondent given their subjective circumstances. We doubt that the ultimate total effective sentence is within range, but it is much closer than charge 1 considered alone.
[45]Sentencing remarks, [25].
In the exercise of our residual discretion the appeal will be dismissed.
Goldsmid’s conviction appeal
In her written case for an appeal against the sentence imposed upon Goldsmid, the Director provided a ‘note’ regarding the conviction on summary charge 11. That note stated that summary charge 11 was not properly before the County Court and therefore any orders relevant to summary charge 11 must be considered a nullity. The Director submitted that no further order should be made on summary charge 11.
Charge 11 was for the offence knowingly dealing with property which is the proceeds of crime.[46] It is an indictable offence which is triable summarily.[47] Charge 11 appears to have been transferred from the Magistrates’ Court to the County Court for hearing and determination as a related summary offence.[48]
[46]Contrary to s 194(1) of the Crimes Act.
[47]CPA s 28; Item 4.20(a) of sch 2 to the CPA applies because the property stolen was a motor vehicle.
[48]CPA ss 145, 242.
However, while summary offences may be transferred from the Magistrates’ Court to the County Court for summary determination, it is not permissible to transfer indictable offences which can be tried summarily for such determination. An indictable offence can only be brought before the County Court by the accused being committed by the Magistrates’ Court to stand trial in the County Court, or by the Director filing a direct indictment. Goldsmid was not committed to stand trial on charge 11 in the County Court and no direct indictment was filed.
As the Director properly pointed out in written submissions on the sentence appeal, and as acknowledged in a written submission on the conviction appeal, charge 11 was not properly before the County Court, and therefore the conviction imposed was a nullity. An accused person can only be convicted and sentenced on a charge which is validly before the Court. We will make orders granting leave to appeal against Goldsmid’s conviction, allowing the appeal and quashing the conviction on charge 11. We are grateful to the Director for bringing this to the Court’s attention.
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