DPP v Holder
[2014] VSCA 61
•8 April 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0305 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| DAVID HOLDER (A PSEUDONYM) | Respondent |
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JUDGES: | MAXWELL P, NEAVE and REDLICH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 July 2013 | |
DATE OF JUDGMENT: | 8 April 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 61 | |
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CRIMINAL LAW – Appeal – Sentence – Director’s appeal – Trafficking large commercial quantity (‘LCQ’) of drug of dependence – Quantity trafficked exceeded 20 multiples of LCQ threshold – Sentenced to 8 years and 6 months’ imprisonment, non-parole period of 5 years and 9 months – Parity – Whether low co-offender sentences relevant – Director’s change of position on appeal – Whether culpability affected by non-distribution of drugs – Erroneous concession by prosecutor that culpability reduced – Sentencing error (if any) induced by conduct of prosecution – Residual discretion exercised – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr R Van de Wiel QC with Mr T Kassimatis | Valos Black & Associates |
MAXWELL P
NEAVE JA
REDLICH JA:
Summary
This appeal against sentence by the Director of Public Prosecutions highlights several important issues in the sentencing process, as follows:
(a) the prosecutor’s duty to assist the sentencing judge to avoid sentencing error;
(b) the implications for a Director’s appeal of –
(i) a failure by the prosecutor to provide the necessary assistance at the sentencing hearing; and/or
(ii) a material change of position by the Crown between the sentencing hearing and the appeal; and
(c) the application of the parity principle to the sentencing of an offender (offender A) where the person’s co-offender (offender B) has already been given a very low sentence.
The respondent, Mr Holder, trafficked a quantity of ecstasy which exceeded 20 multiples of the large commercial quantity (‘LCQ’) threshold. The maximum for trafficking a large commercial quantity of a drug of dependence is life imprisonment. Mr Holder was sentenced to only eight years and six months’ imprisonment, with a non-parole period of five years and nine months. On any view, that was a low sentence, well below what would ordinarily have been expected for such a large quantity.
The sentencing judge had, however, previously sentenced Mr Holder’s co-offender, Bruce Hicks, to three years and six months’ imprisonment, with a non-parole period of 12 months, for trafficking a quantity of ecstasy which represented 18.68 multiples of the LCQ threshold. That was a very low sentence indeed. But it was not appealed by the Director.
When the judge came to sentence Mr Holder, he was therefore bound by the principle of parity to take the Hicks sentence into account in fixing the appropriate sentence. The weight to be attached to the Hicks sentence for that purpose was a matter for his Honour to determine.
It would have been open to the prosecutor to submit to his Honour that the Hicks sentence was so low that it should be treated as carrying little or no weight for parity purposes.[1] But that submission was not made. The prosecutor instead confined himself to the conventional parity analysis, drawing attention to relevant similarities and differences between the co-offenders. The ‘little or no weight’ submission was made for the first time on the Director’s appeal. It was said that the Hicks sentence was ‘extraordinarily low’, and hence could provide no meaningful guidance in the parity analysis.
[1]See [29] below.
Moreover, as counsel for the Director conceded on the appeal, the prosecutor had led the judge into error in a different respect, by conceding that Mr Holder’s culpability was reduced to the extent that the drugs he trafficked did not in fact reach the public. That concession was wrong in law. Trafficking is no less serious when drugs are possessed for sale than when they are actually sold or distributed. As the Director’s counsel submitted, that error probably contributed to the imposition of such a low sentence on Mr Holder.
Thus, if the sentence now under appeal was manifestly inadequate — that is, outside the range reasonably open in the circumstances of the case — its inadequacy is the product of the two matters exposed by the Director’s change of position on the appeal. The first is the prosecutor’s failure to open up for the judge’s consideration whether the very low sentence imposed on the co-offender should have had any real bearing on the sentencing of Mr Holder. The second is the prosecutor’s error concerning culpability.
This Court has a well-established discretion to dismiss a Director’s appeal in circumstances such as these. This is a case which calls for the exercise of that discretion. Put simply, the already-difficult task confronting a sentencing judge becomes almost impossible if the judge is led into error by things said, or left unsaid, by the prosecutor on the plea, and then complaint is made by the Director on appeal about the resulting error in the sentence.
Plainly enough, this is an unsatisfactory outcome. Because the Director did not appeal the Hicks sentence, this Court has had no opportunity to assess whether it was an adequate sentence in the relevant circumstances. Nor, for the reasons we have given, is it necessary or appropriate for us to express a concluded view about the (in)adequacy of the Holder sentence. As we have said, both were very low indeed. The dismissal of the appeal should not be taken as endorsing either sentence as an appropriate sentence in the circumstances.
There is one final point. Other things being equal, the greater the quantity of drugs trafficked (or imported), the more serious the offence.[2] Counsel for Mr Holder readily conceded that this was so. For the purpose of ascertaining the relative seriousness of one trafficking (or importation) offence as against another,[3] it will ordinarily be of assistance to convert the weight of the drug into multiples of LCQ (or CQ, if the offence relates to a commercial quantity). Whenever relative seriousness is in issue in this way, prosecutors and defence counsel should present their plea submissions accordingly.
[2]See Nguyen v The Queen (2011) 31 VR 673, 676 [2], 681-3 [34].
[3]Ibid 700-1 (‘Table A’).
The offending
Mr Holder pleaded guilty to one charge of trafficking in a large commercial quantity of a drug of dependence (3,4-methylenedioxy-N-methylamphetamine, or MDMA) contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the ‘Act’). He also pleaded guilty to a summary charge of dealing in the proceeds of crime.
He was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Trafficking in a drug of dependence (MDMA) in a large commercial quantity[4] | Life imprisonment and 5000 penalty units | 8y 6m | Base |
| Summary offence | Deal with property suspected of being proceeds of crime[5] | 2y | 1y | – |
| Total Effective Sentence: | 8y 6m | |||
| Non-Parole Period: | 5y 9m | |||
| 6AAA Statement: | Total effective sentence 10y 6m Non-parole period 7y 6m | |||
[4]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71.
[5]Crimes Act 1958 (Vic) s 195.
Mr Holder was arrested following a police operation. For two months prior to his arrest, Mr Holder held what the sentencing judge described as a ‘relatively highly placed’ position within a diffuse commercial drug-trafficking scheme, liaising between mid-level drug suppliers and those who were obtaining the drugs directly from the drug manufacturers.
Mr Holder trafficked over 114,000 pills containing MDMA (ecstasy), with a total weight exceeding 20 kilograms. The applicable threshold for a ‘large commercial quantity’ of MDMA is one kilogram.[6] For ease of reference and comparison, we will refer to Mr Holder’s offence as having involved (more than) 20 LCQ.
[6]Drugs, Poisons and Controlled Substances Act 1981 (Vic) sch 11 pt 3.
Other participants in the drug-trafficking scheme were also charged. The sentencing judge had regard to sentences which he had earlier imposed on five such individuals — Stephen Wooten, George Cole, Bruce Hicks, Jared Glass and Paul Kemp. Their respective offences and sentences were as follows:
·Wooten trafficked 13.72 LCQ of methamphetamine, and was sentenced to 10 years’ imprisonment with a non-parole period of seven years and six months. His appeal against that sentence was dismissed;
·Cole trafficked 4.5 LCQ of MDMA, and was sentenced to five years and six months’ imprisonment with a non-parole period of three years;
·Hicks trafficked 18.68 LCQ of MDMA, and was sentenced to three years and six months’ imprisonment, with a non-parole period of 12 months;
·Glass trafficked 4.48 LCQ of methamphetamine, and was sentenced to three years and six months’ imprisonment, with a non-parole period of 16 months; and
·Kemp trafficked 4.76 LCQ of amphetamines, and was sentenced to four years’ imprisonment, with a non-parole period of two years.
The hearing at first instance
According to the Crown opening provided to the sentencing judge, the ecstasy trafficking in which Mr Holder engaged took place over two months. After the ecstasy tablets were obtained from the manufacturers by one Kyle Eaton, Mr Holder in turn dealt with purchasers of the tablets who were wholesale distributors — Cole, Briggs and Hicks. Briggs and Hicks then sold the product to their retail customers.
The recordings of intercepted telephone conversations established what were identified as 14 separate ‘incidents’ during the two-month period. Mr Holder’s trafficking comprised the following discrete acts:
·supply (nine occasions);
·offer to supply (two occasions);
·agree to sell (one occasion); and
·possess for sale (0.67 kg).
The two largest transactions were the last two before Mr Holder was arrested. In one transaction, Eaton and Mr Holder supplied Hicks with 25,000 ecstasy pills. On the same day, Eaton and Mr Holder offered to supply Hicks with a further 50,000 pills. The later supply was to take place a few days later but did not eventuate.
The Crown’s submission was that Mr Holder was on the same level as Eaton. The prosecutor submitted that Mr Holder’s position was ‘significantly high upstream’ in the trafficking organisation, certainly above Hicks whom he characterised as ‘a mid-level distributor’.
The defence submission was that Mr Holder was indeed higher up the ‘ladder’ than people like Cole, but was below those like Eaton who had a direct connection with the drug manufacturers and a network of drug dealing. Defence counsel characterised his client as ‘a go-between’, between the manufacturer level and the mid-level suppliers, who ‘clearly arranges or participates in setting up supplies’.
Lesser criminality where drugs not distributed?
Defence counsel submitted that the seriousness of the offending was tempered by the fact that the quantity of pills actually supplied was ‘somewhat less than 50,000’. The criminality of the conduct was lower, it was submitted, in respect of the pills which had only been offered for supply, since there was no ‘actual harm done’ by the provision of drugs to ultimate consumers. In relation to that part of the trafficking, where there was no ‘passing of harmful substances to people’, Mr Holder’s (lesser) criminality was said to reside in the fact that he had ‘engaged in the trade’.
Surprisingly, the prosecutor agreed, accepting that
on a mitigatory basis … there can be some weight given to mitigation because of the lack of harm done because something wasn’t actually supplied. … [T]hat should not overwhelm other sentencing principles of condign punishment and general deterrence also should weigh heavily …
Likewise in his reply submission, the prosecutor said:
[W]hat we have is 20 kilograms which is 20 times the [LCQ] threshold all up. I do accept from [defence counsel’s] submission that the harm to the community can be tempered somewhat because things didn’t enter the community, but it should not be tempered so much that it completely overwhelms these other sentencing principles.
His Honour accepted that this was a matter to be taken into account. In his sentencing reasons, the judge said:
On any view, the quantity of drugs involved in your trafficking was very substantial. I accept only a proportion, approximately a third of the pills involved, were actually sold, a substantial number of which were for sale and there is nothing to suggest that those pills made their way to the public. I further accept that, at least in respect of the pills found in your possession at the time of arrest, they contained no ecstasy and that it is likely there were quality problems with some of the pills sold.
…
Drug trafficking is a trafficking in human misery. While you were not the person selling the drugs directly to the public, nor the manufacturer, you were a high level supplier. Your responsibility for the provision of over 40,000 pills into the community and the misery that caused, was substantial. In respect of the remaining number of pills, it was your intention to procure a sale and within the definition set forth in the legislation, that is deemed trafficking.[7]
[7]Reasons [36], [38].
The prosecutor’s concession — that the trafficking was less serious in respect of unsupplied pills than in respect of those which were actually supplied — was wrong in law. The judge was likewise in error in treating the fact of non-supply as relevant to the assessment of the seriousness of the offending. Quite properly, counsel for the Director conceded on the appeal that this was so. Indeed, the Director’s written case went so far as to suggest that this error might provide ‘a partial explanation for the low sentence’.
As the Director correctly submitted, trafficking is no less serious merely because some of the drugs trafficked are not in fact distributed to ultimate consumers. The legislative scheme which establishes the offence of trafficking does not distinguish between acts of trafficking on this basis. The potential harm of an unsold or unsupplied drug of dependence is viewed as seriously as the actual harm caused by the sale and distribution of the drug. That is why possession for sale is a species of trafficking. In short, the seriousness of the trafficking is unaffected by the fact that the drugs do not reach the public.[8]
[8]See, eg, Chandler v The Queen [2010] VSCA 338, [25]; Mokbel v The Queen (2011) 211 A Crim R 37, 45–47 [37]–[43].
Moreover, senior counsel for the Director conceded — again, quite properly — that the judge’s error was induced by the erroneous concession of the prosecutor. As indicated earlier, we regard that as a matter of considerable significance for the ultimate disposition of this appeal.
Parity
As noted earlier, the sentencing judge expressly had regard to the sentences imposed on other individuals involved ‘in the same drug operation’. On the appeal, the Director submitted that the only true ‘co-offenders’ for the purposes of considering the sentence imposed on Mr Holder were Hicks and Cole. In each of those two cases, it was submitted, the sentence imposed was ‘extraordinarily low’, such that it could effectively be disregarded for parity purposes.
Once again, the position taken by the Director on this appeal was materially different from the position taken by the prosecutor on the hearing before the sentencing judge. On the plea, the prosecutor’s very brief submission on parity took the conventional approach of pointing out what was said to be the material difference between Mr Holder and his co-offenders. He said:
as to the parity question of others in this operation, the location of this man is significantly above most of the persons in the table and on a parity question many of them are perhaps not relevant at all.
This was a perfectly proper submission. The principle of parity requires that the sentencing relativities between co-offenders take into account the relevant similarities and differences between them.[9]
[9]Cf R v Djukic [2001] VSCA 226, [25].
The prosecutor might also have made, but did not make, the submission that the sentences earlier imposed on Hicks and Cole were ‘extraordinarily low’. That is a submission of a different kind. It puts to one side the relevant similarities and differences between the co-offenders and contends that the particular co-offender sentence is so low as to reduce substantially, if not entirely negate, the constraining effect which — for reasons of parity — the sentence would otherwise have. It will be a matter for the sentencing judge whether, and to what extent, such a submission is accepted.[10]
[10]Green v The Queen (2011) 244 CLR 462, 476–7 [33] (‘Green’); Farrugia v The Queen (2011) 32 VR 140, [31]. Cf Scerri v The Queen (2010) 206 A Crim R 1, 10–11 [45]–[47]. As to the position on a Crown appeal, see Green (2011) 244 CLR 462, 477–8 [37].
It would, of course, have been a difficult submission for the prosecutor to make in this case. After all, it was the same sentencing judge who had imposed the other sentences. And the Director had taken no steps to appeal either sentence on the ground of manifest inadequacy. The judge would have been entitled, in our view, to object that he could not be expected effectively to disregard a sentence which he had viewed as appropriate in the circumstances of the other cases.
However that may be, it is quite clear that the Director cannot make such a submission for the first time in this Court, it not having been put to the sentencing judge. This view reflects long-established principles regarding the prosecutor’s obligation to assist the Court, to which we now turn.
The prosecutor’s duty to assist the sentencing judge
As the majority of this Court pointed out in R v MacNeil-Brown,[11] one of the duties of a Crown prosecutor is to assist the Court, both at trial and on sentencing. As the judgment noted, the then Director of Public Prosecutions, who appeared on those appeals, readily conceded that this was so.
[11](2008) 20 VR 677.
The Court cited decisions of the Full Court of the Federal Court[12] and the Full Court of the Supreme Court,[13] holding that if the prosecution fails to do what is expected of it at the sentencing hearing, with the result that the judge falls into error, the Crown cannot expect on its appeal against sentence to have that error corrected by an appellate court.
[12]R v Tait (1979) 24 ALR 473.
[13]R v Marshall [1981] VR 725; R v Casey & Wells (1986) 20 A Crim R 191.
The High Court, by majority, has now held in Barbaro v The Queen[14] that the prosecutor’s duty to assist does not extend to making submissions on sentencing range. Nothing said by the Court in that case casts any doubt, however, on the existence of the prosecutor’s obligation to assist, or on the implications for a Crown appeal of a failure to provide the assistance necessary to prevent appealable error. On the contrary, the duty to assist was reaffirmed.[15]
[14](2014) 305 ALR 323.
[15]Ibid 331 [39]–[40].
In Director of Public Prosecutions v Waack,[16] Phillips JA (with whom Batt and Chernov JJA agreed) said:
The better view appears to be that on a Crown appeal against sentence it is ultimately a matter for the Court’s discretion what weight to accord to the position taken by the Crown at first instance, if different, and such weight will vary from case to case according to the facts. The degree of the departure must be a relevant consideration, as also the seriousness of the criminal conduct being punished and the magnitude of the sentencing error identified on the appeal — that is, the degree to which the appellant court thinks that the sentencing judge fell into error.
[16](2001) 3 VR 194, 207 [31].
In R v Ioannou,[17] Redlich JA (with whom Chernov and Vincent JJA agreed) adopted, and applied, the oft-quoted statement of King CJ in R v Wilton,[18] that it would only be in exceptional circumstances that the prosecution should be allowed to raise on appeal a contention which was contrary to the position adopted by the prosecution before the sentencing court.[19]
[17](2007) 17 VR 563, 569–70 [23].
[18](1981) 28 SASR 362.
[19]See also R v Jermyn (1985) 2 NSWLR 194, 204–5.
As the majority explained in Director of Public Prosecutions v Karazisis,[20] the Court has a residual discretion to dismiss a Crown appeal notwithstanding being satisfied that there is error in the first sentence imposed. Ashley, Weinberg and Redlich JJA said:
Parity can also operate as a constraint upon a Crown appeal against sentence. It sometimes happens that the Crown elects to appeal against the sentence imposed upon one offender, but not another. In the same way as want of parity can require a court to moderate a sentence that it would otherwise consider appropriate, it may act as a limiting factor when the Crown challenges the adequacy of just one of a number of sentences. In such circumstances, a sentence which is regarded as inadequate might still be permitted to stand.[21]
[20](2010) 31 VR 634 (‘Karazisis’).
[21]Karazisis (2010) 31 VR 634, 659 [109]; see also Green (2011) 244 CLR 462, 477–8 [37].
Later in their reasons, their Honours said:
Finally, as the Crown readily conceded in this proceeding, the court might well exercise its residual discretion to dismiss a Crown appeal in circumstances where the prosecutor at first instance failed to discharge his or her responsibility to the court adequately. For example, the Crown will not ordinarily be permitted to put submissions on appeal that were not advanced below. Nor will the Crown ordinarily, on appeal, be permitted to resile from a concession made at first instance that a particular sentence would be within the range reasonably available to the sentencing judge. The right given to the Crown to appeal against sentence is not designed to permit it to raise, for the first time, matters that should have been ventilated at first instance.[22]
[22]Ibid 660 [115] (citations omitted).
As these reasons demonstrate, any inadequacy in the sentence is to be explained both by what the prosecutor said, and by what was left unsaid, on the plea. As a matter of discretion, therefore, the appeal must be dismissed.
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