DPP v Jabbour
[2023] VSCA 204
•4 September 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0033 |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| WILLIAM JABBOUR | Respondent |
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| JUDGES: | EMERTON P, BEACH and McLEISH JJA |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 22 August 2023 |
| DATE OF JUDGMENT: | 4 September 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 204 |
| JUDGMENT APPEALED FROM: | [2023] VCC 196 (Judge Allen) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – One charge of trafficking drug of dependence in large commercial quantity – One charge of trafficking – One charge of possession – Trafficking in large commercial quantity sentence 12 years – Total effective sentence 12 years and 6 months – Non-parole period 7 years – Standard sentence 16 years – Whether sentences and non-parole period manifestly inadequate – Two prior convictions for trafficking drug of dependence – Offending at or just below middle range of seriousness – Significant mitigating factors including positive prospects of rehabilitation – Sentences and non-parole period within range – Appeal dismissed.
Drugs, Poisons and Controlled Substances Act 1981, s 71; Sentencing Act 1991, ss 5, 5A, 5B, 6A, 6B, 6D, 6F, 11A, 89DI.
R v Pham (2015) 256 CLR 550; Bruce v The Queen [2022] VSCA 100; Al Janabe v The Queen [2021] VSCA 252; Quah v The Queen (2021) 290 A Crim R 136; [2021] VSCA 164; DPP v Kumas [2021] VSCA 215; Rahmani v The Queen [2021] VSCA 51, considered.
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| Counsel | |||
| Appellant: | Mr B Kissane KC with Mr L McAuliffe | ||
| Respondent: | Mr C Mandy SC with Mr G Chipkin | ||
Solicitors | |||
| Appellant: | A Hogan, Solicitor for Public Prosecutions | ||
| Respondent: | Melasecca Kelly & Zayler | ||
EMERTON P
BEACH JA
MCLEISH JA:
Introduction
On 24 November 2022 the respondent pleaded guilty to one count each of:
(a)trafficking a drug of dependence in a large commercial quantity (MDMA) contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’),
(b)trafficking in a drug of dependence (MDA, cocaine and methylamphetamine) contrary to s 71AC of the Act, and
(c)possession of a drug of dependence (ketamine and heroin) contrary to s 73 of the Act.
The respondent also pleaded guilty to two related summary offences of possessing a Schedule 4 Poison contrary to s 36B of the Act.
He was sentenced on 17 February 2023, 32 months after his initial arrest, to a total effective sentence of 12 years and 6 months’ imprisonment with a non-parole period of 7 years, as set out below.
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Trafficking in a drug of dependence — large commercial quantity (MDMA) Life imprisonment and/or 5000 penalty units 12 years’ imprisonment Base 2 Trafficking in a drug of dependence (MDA, cocaine and methylamphetamine) 15 years’ imprisonment 18 months’ imprisonment 6 months 3 Possession of a drug of dependence (ketamine and heroin) 5 years’ imprisonment (or 1 year if not for purposes of trafficking) 2 months’ imprisonment Concurrent Related Summary Offences - Possession of a Schedule 4 poison (Viagra) 10 penalty units Convicted and discharged - Possession of a Schedule 4 poison (lignocaine and benzocaine) 10 penalty units $500 Total Effective Sentence: 12 years and 6 months’ imprisonment Non-Parole Period: 7 years Pre-sentence Detention Declared: 88 days Section 6AAA Statement: 15 years’ imprisonment, with a non-parole period of 10 years Other Relevant Orders:
1. Sentenced as a serious drug offender in respect of charge 1, pursuant to s 89DI of the Sentencing Act 1991.[1]
2. Orders made for forfeiture and disposal.
[1]This notation is problematic: see below [72]–[74].
Circumstances of the offending
On 8 June 2020, the police intercepted a vehicle driven by the respondent. Having formed the suspicion that there may be drugs in the vehicle, they conducted a search. They found two pills in a zip lock bag, a large packet of unused plastic bags, $1,190 in cash and three mobile phones. The police arrested the respondent and later performed a personal search, as a result of which they found 200 MDMA pills in his pocket.
The police then executed a search warrant at the respondent’s residence, where he lived with his parents and partner. In the respondent’s bedroom, the police found $42,000 in cash and a large amount, and variety, of drugs of dependence.
An analysis by the Victoria Police Forensic Services Department revealed that the quantities of the substances found were as follows:
(a)7.151 kg of 3, 4-methylenedioxy-N-methylamphetamine (MDMA), also known as ecstasy, more than seven times the large commercial quantity (charge 1),
(b)171.3 grams of methylenedioxyamphetamine (MDA), also known as ecstasy, 233 grams of cocaine and 29 grams of methylamphetamine (charge 2),
(c)9.4 grams of ketamine and 1.2 grams of heroin (charge 3),
(d)in relation to the first summary offence, 1.3 grams of Viagra, and
(e)in relation to the second summary offence, 467.4 grams of lignocaine and benzocaine.
The appellant appeals on the ground of manifest inadequacy in respect of the individual sentence for charge 1, the total effective sentence and the non-parole period.
Sentencing remarks
Objective seriousness of the offending
The judge focused his sentencing remarks on the most serious offence of trafficking in a large commercial quantity (charge 1). He determined the objective seriousness of the offending to be ‘at or just below’ the middle range of offending for that offence.[2]
[2]DPP v Jabbour [2023] VCC 196 [17] (Judge Allen) (‘Sentencing Remarks’).
The judge referred to five matters in reaching this conclusion:
(a)The respondent was not ‘motivated by pure greed’.[3] His offending was motivated at least in part by his desire to feed his own addiction. This was exacerbated by the collapse of the respondent’s business following the COVID-19 pandemic. The judge distinguished more sophisticated drug trafficking by individuals in circumstances of relative wealth, who did not personally know the misery caused by drug trafficking.
(b)The quantity of drugs was ‘large’, being more than seven times the large commercial quantity. The judge noted that, given the quantity, the trafficking ‘could never be described as [a] minor or low range example of this type of offending’.[4] He referred to cases where offenders had been sentenced for trafficking in very large quantities, ranging from 14 times up to 170 times the large commercial quantity threshold.[5] Given this, the judge concluded that the quantity was not beyond the middle range of quantities in such cases.
(c)There was no objective evidence as to the nature of the respondent’s trafficking business, nor his specific role. The judge distinguished the offending from cases where an offender had been near the top of a hierarchy of a sophisticated trafficking business.[6]
(d)Given the amount of drugs, the judge concluded that he could infer there was ‘trafficking beyond a day, and probably well beyond a day’ but not ‘over any substantial or lengthy period’ as there was no evidence directed to the duration of the trafficking.[7]
(e)There was no evidence of any significant profits having been made by the respondent from the offending. The judge noted that the respondent was living at his parents’ home as he was unable to afford rent and had been driving his father’s second-hand vehicle.
Mitigating matters
[3]Ibid [16].
[4]Ibid.
[5]The judge specifically referred to: DPP v Natale [2022] VCC 1199 [125], where, in a rolled-up charge, an offender received 15 years’ imprisonment for trafficking 169 times the large commercial quantity threshold for MDMA and 32 times the large commercial quantity threshold for methylamphetamine; DPP v Larrain [2022] VCC 1405 [11], [47], where the offender received a total effective sentence of 16 years’ imprisonment, in circumstances that involved multiple counts of trafficking in a large commercial quantity, including over 28 times the threshold for methylamphetamine; and DPP v Assaad [2022] VCC 1422 [15], [78], where the offender received a total effective sentence of 10 years and 6 months’ imprisonment for trafficking 33 times the large commercial quantity threshold for methylamphetamine.
[6]Sentencing Remarks [16], citing Mustica v The Queen (2011) 31 VR 367.
[7]The judge contrasted this with DPP v Condo [2019] VSCA 181 [28] (Maxwell P, T Forrest and Weinberg JJA), where evidence established active and profitable trafficking over a period of four months.
The judge then canvassed matters in mitigation. He noted a number of reports and correspondence by Luke Armstrong, consultant psychologist. He also took account of the respondent’s background, including his difficult relationship with his parents, who worked long hours throughout his childhood after migrating to Australia from Lebanon.[8]
[8]Sentencing Remarks [21]–[24].
The judge gave weight to the respondent’s drug addiction, which was ‘enmeshed’ at a young age.[9] He described the respondent’s use of cannabis starting at age 15, and ecstasy and amphetamines from the age of 18, as well as the significant debt that accumulated, leading the respondent into drug trafficking.[10]
[9]R v McKee (2003) 138 A Crim R 88, 94 [21] (Vincent JA); [2003] VSCA 16.
[10]Sentencing Remarks [25]–[27].
The judge also referred to an incident in 2004, following the respondent’s suspended sentence in 2003, where the respondent’s co-offenders kidnapped him and falsely imprisoned him for approximately two days. As a result, the respondent developed post‑traumatic stress disorder (‘PTSD’), which re-emerged when he was detained in August 2020.[11]
[11]Ibid [28].
The judge referred positively to the respondent’s work history. He had operated his parents’ business successfully for some years after the sentencing in 2003 and later operated two of his own businesses. Despite this, he struggled with drug abuse and did not have financial stability. It was in these circumstances that he was arrested and sentenced in 2012.[12] By the time of his arrest in 2020, he had relapsed into serious drug abuse, exacerbated by difficulties faced in his business. At this time, he was using four to seven grams of cocaine daily, at a cost of $1,500–$2,000 per day.[13]
[12]Ibid [29]–[30].
[13]Ibid [16].
The judge also considered in detail the respondent’s remand, bail and rehabilitation since arrest. Following the respondent’s arrest in June 2020, he was released on strict bail conditions in August 2020. He was initially bailed to a residential drug rehabilitation facility, Refocus Alcohol and Drug Rehabilitation (‘Refocus’), and engaged in three months of residential treatment. He then completed an out-patient program, Motivating Affect Self-Control (‘MASC’), until April 2021, which involved regular urinalysis and random drug tests.[14]
[14]Ibid [34]–[35].
The most recent reports of Mr Armstrong noted that the respondent had features of narcissistic personality disorder, PTSD and stimulant and cannabis use disorders. The judge recorded that Mr Armstrong viewed the respondent’s prospects of rehabilitation as ‘very positive’, given that he had invested 28 months in recovery from his drug addiction between the arrest and the time of the report.[15]
[15]Ibid [36].
Mr Armstrong stated that these prospects of rehabilitation were supported by the respondent’s abstinence from drug use, gainful employment, good mental health at the time of the assessments, response to treatment, reconnection to significant relationships, severing of negative peer associations, support from positive immediate extended family and attachment to his partner and young child.[16]
[16]Ibid [37].
Mr Armstrong was of the opinion that the respondent demonstrated an ‘impressive’ level of insight into his trauma. He noted that imprisonment would be ‘arduous’ given the respondent’s history of mental health problems. In particular, he noted that PTSD may recur in response to reminders of earlier trauma and that the respondent was experiencing PTSD-related nightmares in anticipation of returning to prison.[17]
[17]Ibid [36].
The judge took into account the respondent’s completion of the residential treatment program at a rehabilitation facility, in accordance with Akoka.[18] He also noted that the first 28 days of that program involved complete lockdown due to COVID-19.
[18]Akoka v The Queen [2017] VSCA 214, in which the Court accepted that, for sentencing purposes, residency in a rehabilitation facility is a form of quasi-custody and should therefore be recognised as punitive, in addition to being rehabilitative: at [105] (Warren CJ, Kyrou and Redlich JJA).
The judge referred to character references from the respondent’s brother, brother-in-law, father in law and a friend. These references all asserted that the respondent was ‘transformed’ since being apprehended and that he displayed remorse and embarrassment in relation to his offending and was committed to his rehabilitation, and recorded that the referees intended to continue supporting him.[19]
Other factors
[19]Sentencing Remarks [39]–[42].
The judge also noted:
(a)the two ‘directly relevant and significant convictions for trafficking in a drug of dependence’ in 2003 and in 2012;[20]
(b)the standard sentencing provisions of the Sentencing Act 1991, which specify a standard sentence of 16 years for a charge of trafficking in a large commercial quantity;[21] and
(c)that the respondent was a serious drug offender and would be sentenced as such.[22]
Conclusions
[20]Ibid [2].
[21]Ibid [14]–[15].
[22]Ibid [13]. This was in error, but nothing turns on that for present purposes: see below [72]–[73].
The sentencing judge accepted that the respondent’s prospects of rehabilitation were positive. He also accepted that respondent was not ‘lured by greed’ to offend.[23] He identified a strong public interest in promoting the respondent’s rehabilitation, stating that the protection of the community depended upon ensuring that the respondent did not again relapse or become involved in drug trafficking. The judge noted the unusually successful drug rehabilitation that the respondent had undertaken between his arrest and sentence.[24]
[23]Sentencing Remarks [47].
[24]Ibid [49]–[50].
Addressing s 11A(4)(c) of the Sentencing Act, the judge stated that the minimum non‑parole period he was imposing was slightly less than 60 per cent. He considered that to be in the interests of justice, including to give the respondent the benefit of his strong commitment to rehabilitation, to further encourage that rehabilitation, and to support the respondent in rebuilding his life as a law-abiding member of the community.[25]
[25]Ibid [55].
Appellant’s submissions
The appellant submits that, having regard to a number of factors, the sentence on charge 1, the total effective sentence and the non-parole period were manifestly inadequate. Argument concentrated on the sentence of 12 years’ imprisonment imposed on charge 1.
Quantity of drugs trafficked
Senior counsel for the appellant emphasised the importance of the amount of drugs trafficked, with the respondent possessing more than seven times the large commercial quantity of MDMA. The appellant referred to Gregory (a pseudonym) v The Queen,[26] where the Court noted that, since the regime for trafficking offences is quantity-based, quantity is a highly relevant consideration in sentencing. Therefore, other things being equal, a greater quantity trafficked indicates a more serious offence.[27]
[26](2017) 268 A Crim R 1; [2017] VSCA 151 (‘Gregory’).
[27]Ibid 8 [24] (Maxwell P, Redlich and Beach JJA).
In Gregory, the Court accepted a submission by the Director of Public Prosecutions that the then current sentencing practices for trafficking in a commercial quantity had been inadequate. The Court noted that sentences were compressed at the upper end of seriousness and therefore sentencing practices did not reflect the inherent gravity of the offending, the impact on the community or the high maximum penalty (25 years’ imprisonment).[28]
[28]Ibid 5 [9].
The appellant cited subsequent cases in which longer sentences were given for trafficking in a large commercial quantity, involving lesser quantities of drugs than in this case.[29]
Circumstances of offending and mitigating factors
[29]See below [61]–[68] for a discussion of these cases.
The appellant submitted that, contrary to the sentencing judge’s finding, the offending in this case fell well above the middle of the range of objective seriousness. The mitigating factors relied upon by the sentencing judge could not have counterbalanced the objective gravity of the offence.
In addition to the large quantity of drugs, the appellant pointed to the nature, type and diversity of those drugs and the amount of cash seized. Senior counsel submitted that the extent of the trafficking revealed went well beyond what was necessary to sustain a drug habit. While there was a lack of evidence about ongoing drug trafficking prior to police involvement, it was said that this did not preclude consideration of the connection between possessing the significant amounts of drugs and cash.
The appellant submitted that the respondent’s drug addiction did not constitute a mitigating factor, although it may be relevant to his prospects of rehabilitation, specific deterrence and protection of the community.[30]
[30] Mourkakos v The Queen [2018] VSCA 26 [118] (Whelan, Santamaria and Kyrou JJA).
The appellant also submitted that specific deterrence should have loomed large because the respondent had been convicted of trafficking in a drug of dependence on two previous occasions, in 2003 and 2012. The appellant submitted that the respondent’s history showed that his prospects of rehabilitation could not be said to be positive, as the judge had found, based on a finding of rehabilitation for a period of only 32 months prior to the sentence. Given this, the appellant submitted that specific deterrence should have been given more emphasis.
The appellant noted the maximum penalty of life imprisonment for trafficking a large commercial quantity, and that the standard sentence of 16 years for an offence in the middle of the range of seriousness operates as a guidepost.[31]
[31]Sentencing Act 1991 ss 5A, 5B, 11A; Brown v The Queen (2019) 59 VR 462.
Moreover, the respondent was sentenced as a serious drug offender, meaning that protection of the community had to be the principal purpose for which the sentence was imposed.[32] That called for a focus on the respondent’s persistent recidivism, which in the present case involved a significant escalation in the scale of offending. The same circumstances were said to heighten the need for specific deterrence. We pause to note that the submission that the respondent fell to be sentenced as a serious offender was in error, as explained at [72]–[74] below.
[32]Sentencing Act 1991 ss 6A, 6B, 6D(a), 89DI.
Finally, the appellant submitted that the non-parole period was manifestly inadequate. Although the judge found that it was in the interests of justice to fix a period below the minimum of 60 per cent of the total effective sentence,[33] this was said to be outside the range given what was already an extremely low head sentence. In effect, even if the head sentence lay at the edge of the available range, the non-parole period crossed the line.
[33]Ibid s 11A.
Respondent’s submissions
Senior counsel for the respondent submitted that the plea sentence was well within the sentencing judge’s discretion. Given the indicators of offence seriousness, it was open to find that the offending was ‘at or just below the middle of the range’ of seriousness for offences of this kind for the purposes of the standard sentencing scheme.[34] The total effective sentence and non-parole period took into account all relevant matters, including the mitigating factors identified by the judge.
Manifest inadequacy
[34]Sentencing Remarks [15]–[18]; ibid s 5A(1)(b).
The respondent submitted that the ground of manifest inadequacy is stringent. To succeed, the appellant must persuade the Court that the sentence ‘was wholly outside the range of sentencing options available’.[35] It is not sufficient that the Court might have imposed a different sentence; instead, the inadequacy in the sentence must be ‘clear and egregious’.[36] The Court must be ‘driven to conclude that there must have been some misapplication of principle’.[37]
Quantity of drugs trafficked
[35]DPP v Karazisis (2010) 31 VR 634, 663 [127] (Ashley, Redlich and Weinberg JJA), citing Boaza v The Queen [1999] VSCA 126 [42] (Winneke P).
[36]DPP v Torun [2015] VSCA 15 [56], [62] (Whelan and Beach JJA, Ashley JA agreeing at [1]).
[37]Beck v The Queen [2021] VSCA 88 [50] (Maxwell P, T Forrest and Emerton JJA), citing R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ) (‘Pham’).
The respondent submitted that while the quantity of drugs trafficked was important, the sentencing judge was mindful of this, having observed that the MDMA was ‘seven times the large commercial quantity’ and therefore that the offending ‘could never be described as a minor or low range example’. The judge also had regard to the table of comparative cases tendered by the prosecutor at the plea hearing, which included cases decided after Gregory, where the offending involved very large quantities, but the offenders received sentences comparable to that imposed in this case.[38]
[38]See above [9(b)] n 5 and the cases cited therein.
The respondent submitted that the prosecutor on the plea prepared a comprehensive table of comparative cases and did not submit that the respondent’s sentence should fall at the very top of the range of those in the table, or outside that range.
Circumstances of offending and mitigating factors
The respondent submitted that the sentencing judge appropriately considered the motivation for the offending. It was never submitted, nor found, that the respondent’s drug habit was the only motivation for the offending. It was entirely open to the judge to find that the respondent was not motivated by ‘pure greed’ but partially by the need to feed his ‘chronic, serious drug addiction’, costing between $1,500 and $2,000 a day.[39] This finding was consistent with the prosecutor’s concession that the respondent was in the throes of a ‘raging drug habit’ at the time of offending and was in financial difficulty. It was also supported by the lack of evidence of any ‘enrichment or significant profits’ from the drug trafficking.[40]
[39]Sentencing Remarks [16].
[40]Ibid [18].
Further, the sentencing judge appropriately considered the nature of the trafficking, noting that there was no evidence as to the scope of the trafficking operation, its duration, its level of sophistication, nor the respondent’s role in it.
The respondent submitted that the circumstances of the trafficking differed from well‑organised and sophisticated operations often seen in large commercial quantity drug trafficking cases. The respondent was trafficking from his bedroom in his parents’ house. The photographs tendered on the plea showed the disorganised hovel of a serious drug addict.
Addressing the two past convictions for drug trafficking, senior counsel submitted that the respondent should not be punished again for that offending. While the past convictions were important in assessing specific deterrence and the respondent’s prospects of rehabilitation, they were taken into account by the judge. They were balanced in the sentencing exercise against the relevant mitigating factors, in particular the finding that the respondent had positive prospects of rehabilitation. While there was no reference to specific deterrence, the respondent submitted that it was clearly a matter raised for consideration before the sentencing judge. The respondent pointed to the plea transcript where the judge said, ‘[o]f course specific deterrence still has some role to play’. In relation to protection of the community, the respondent submitted that rehabilitation may often be of greater benefit to the community than a sentence with a larger retributive component.
Turning to mitigating factors, the respondent submitted that the sentencing judge appropriately considered the respondent’s personal circumstances, including his history of drug addiction and personal prospects of rehabilitation.
The respondent accepted that while drug addiction is not ordinarily considered to be a mitigating factor, this Court has recognised that when addiction becomes ‘enmeshed’ at a young age, it can have ‘serious corrosive effects that may continue to influence the conduct of the person well into adulthood’, which can moderate the moral culpability of the offender.[41] The sentencing judge was right to take the respondent’s drug addiction into account, given the evidence that he began experimenting with drugs in his mid-teens, and in the context of having emotional dysregulation problems which contributed to conflict with his family at the time. At the time of the offending, the addiction was chronically affecting the respondent’s life as he was consuming four to seven grams of cocaine a day. The respondent submitted that the prosecutor did not resist this argument at the plea hearing, with the prosecutor going so far as acknowledging that the respondent could be seen as a ‘victim of a drug offence’.
[41]McKee v The Queen [2003] VSCA 16 [13] (Buchanan JA), [21] (Vincent JA); Koumis v The Queen [2008] VSCA 84 [52]–[59] (Redlich and Kellam JJA and Osborn AJA).
Senior counsel pointed to the respondent’s impressive progress towards rehabilitation during the 32 months prior to sentence. In August 2020, the respondent was an enthusiastic participant in the Refocus program at the residential rehabilitation facility, taking on a leadership role. Afterwards, he undertook the MASC voluntary outpatient program, which involved weekly sessions and twice weekly urine screens, during which he only relapsed once, in December 2020. He has not relapsed since.
Senior counsel also pointed to the evidence of Mr Armstrong, who had assessed the respondent’s rehabilitation outcomes as very positive in November 2022 and January 2023, and noted that the prosecutor had not cross-examined Mr Armstrong or challenged this conclusion.
Separately, the respondent also pointed to the ‘significant discount’ warranted by the guilty plea, without which the judge would have imposed a sentence of 15 years’ imprisonment (with a non-parole period of 10 years), noting that this aligned with the ‘legislative guidepost’ standard sentence of 16 years applicable to charge 1.
More generally, senior counsel submitted this was the respondent’s first immediate term of imprisonment for a drug offence and physical incarceration for such a long period of time inevitably has a strong deterrent effect.
Consideration
The respondent was sentenced under the standard sentencing scheme, by which the sentencing judge was required to take the standard sentence of 16 years into account as one of the factors relevant to sentencing.[42] That period is the sentence for an offence of trafficking a large commercial quantity of a drug of dependence that, taking account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.[43]
[42]Sentencing Act 1991 s 5B(2)(a); Drugs, Poisons and Controlled Substances Act 1981 s 71(2).
[43]Sentencing Act 1991 s 5A(1)(b).
The judge undertook this assessment and concluded that the offending was, objectively, at or just below the middle of the range of seriousness.[44] The appellant does not submit that the judge’s approach involved specific error, but challenges the conclusion. As noted earlier, the judge identified the relevant factors for these purposes as being: the fact that the respondent was partially motivated to offend in order to feed his own drug addiction and the case was not one of pure greed; the ‘middle range’ quantity of drugs involved, when compared to other large commercial quantity cases; the absence of evidence as to the business of trafficking or of any sophisticated business; the fact that there was no evidence of any substantial or lengthy period of trafficking; and the absence of any evidence of significant profits or enrichment.[45]
[44]Sentencing Remarks [17].
[45]Ibid [16], [18].
The appellant submitted that the case involved offending well above the middle range of seriousness. Senior counsel pointed to the fact that the level of trafficking went well beyond what the respondent needed to sustain his drug habit. He relied also on the amount of cash found, the quantity and variety of drugs and the fact that some of the drugs were ready for distribution.
The appellant’s submissions went beyond the objective assessment of seriousness required by the standard sentencing scheme, and relied on the overall offending, also taking into account subjective factors. The appellant emphasised, in particular, the prior convictions of the respondent for drug trafficking and what it was submitted were the respondent’s less than positive prospects of rehabilitation, both of which were said to call for specific deterrence and to attract the need to protect the community.
Manifest inadequacy is a conclusion which does not depend on identifying any specific error of reasoning by the sentencing judge.[46] The only question is whether the Court is persuaded that the sentence was ‘wholly outside the range’ of sentencing options available to the judge.[47] It must be shown that something has gone ‘obviously, plainly or badly wrong’.[48] The Court must be ‘driven to conclude that there must have been some misapplication of principle’.[49]
[46]Dinsdale v The Queen (2000) 202 CLR 321, 325 [6] (Gleeson CJ and Hayne J).
[47]DPP v Karazisis (2010) 31 VR 634, 663 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at [1]).
[48]See, eg, Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), quoting Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[49]Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ).
In the present case, we are not driven to conclude that the sentencing judge was in error. In the absence of a ground alleging specific error, it is not necessary for us to resolve the question whether the offending was, objectively, at or just below the middle of the range of seriousness (as the judge found), or somewhere above the middle, as the appellant submitted. In light of the role of the standard sentence as a ‘guidepost’ sentence of 16 years’ imprisonment, this issue could not be decisive in any event. When the whole of the circumstances are taken into account and the instinctive synthesis is applied (as the standard sentencing scheme requires),[50] we consider that the sentence of 12 years on charge 1, while merciful, was not wholly outside the range.
[50]Sentencing Act 1991 s 5B(3).
It is significant, in our opinion, that there was unchallenged expert evidence before the sentencing judge that the respondent’s prospects of rehabilitation were ‘very positive’.[51] That conclusion, and the judge’s acceptance of it, went a long way to diminishing the need for specific deterrence. It was supported by the evidence of the respondent’s extensive personal efforts and drug treatment, over more than two and a half years, which reflected a sustained and thus far successful attempt to turn his life around. The respondent was able to point to a solid work history, future prospects in that regard and strong support from family members and others. Other important mitigating factors were the plea of guilty, albeit not made at the earliest stage, the Worboyes[52] discount for the enhanced utilitarian benefit of that plea in light of the backlog of cases arising from the COVID-19 pandemic, and the impact on the respondent’s liberty of residential drug treatment.[53]
[51]Sentencing Remarks [36]–[37].
[52]Worboyes v The Queen [2021] VSCA 169.
[53]Akoka v The Queen [2017] VSCA 214.
We do not doubt that this was serious offending, on no view at the lower level for this offence. A sterner view could have been taken of the fact that the respondent had two prior trafficking convictions, albeit not in the recent past. But when all relevant factors are taken into account, we are unable to conclude that the sentence of 12 years’ imprisonment was outside the available range.
We do not accept the appellant’s submission that the sentence fails to recognise the relativities inherent in the quantity-based trafficking regime.[54] We did not take the appellant to be submitting that the quantity of drugs concerned in a given case was required to bear any direct or even rough relationship to the sentence imposed in that case. Such an approach would fail to recognise that, while nearly always important, the quantity of drugs involved is only one of the factors that bears on sentencing. The judgments in Pham explained:
[T]o treat the weight of the narcotic as the chief factor in fixing sentence, without taking into account the many conflicting and contradictory elements which bear upon sentencing an offender, represents a departure from fundamental sentencing principle.[55]
and
It is well settled that the quantity of the drug is not the controlling factor when it comes to the assessment of the seriousness of an importation offence (or other drug offence). The quantity of the drug imported (or trafficked or possessed) will usually be relevant to assessment of the seriousness of the offence. In some cases it will be the most significant consideration in this regard and in other cases it may be of little moment.[56]
[54]Gregory v The Queen (2017) 268 A Crim R 1; [2017] VSCA 151.
[55]Pham (2015) 256 CLR 550, 562 [36] (French CJ, Keane and Nettle JJ).
[56]Ibid 564 [45] (Bell and Gageler JJ) (citations omitted).
More generally, current sentencing practices, as revealed by the sentences imposed in comparable cases, do not constitute the fixed boundaries within which sentences in a given case must be fitted. Rather, current sentencing practices are one of a number of factors that are required to be taken into account by a sentencing judge pursuant to s 5(2)(b) of the Sentencing Act.
In R v Kilic,[57] the High Court stated:
[E]xamination of cases of causing serious injury by fire may provide a relevant ‘yardstick’ by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but … the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a ‘broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle’.[58]
[57](2016) 259 CLR 256.
[58]Ibid 267 [22] (Bell, Gageler, Keane, Nettle and Gordon JJ) (citations omitted).
In Director of Public Prosecutions v Dalgliesh (a pseudonym),[59] Kiefel CJ, Bell and Keane JJ stated:
The balancing of the factors listed in s 5(2) of the Sentencing Act in order to arrive at a sentence that is just in all the circumstances is a matter of instinctive synthesis, as explained in Wong v The Queen by Gaudron, Gummow and Hayne JJ:
[T]he task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.
This statement was referred to, with evident approval, by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen.[60]
While the instinctive synthesis must be informed by each of the factors listed in s 5(2), the extent to which each factor bears upon the case is inevitably a matter for judgment. The process of instinctive synthesis thus allows a measure of discretion to the sentencing judge. The discretionary nature of the judgment required means that there is no single sentence that is just in all the circumstances.[61]
[59](2017) 262 CLR 428 (‘Dalgliesh’).
[60](2005) 228 CLR 357, 373–5 [37].
[61]Dalgliesh (2017) 262 CLR 428, 434 [5]–[7] (Kiefel CJ, Bell and Keane JJ) (citations omitted).
It is appropriate to concentrate on appellate decisions, at least in the first instance, for the purpose of identifying current sentencing practices.[62]
[62]R v Pham (2015) 256 CLR 550, 566 [50] (Bell and Gageler J); see also 560 [29] (French CJ, Keane and Nettle JJ).
It is necessary briefly to refer to the cases upon which the appellant relied for the purpose of demonstrating that the present case marked a departure from current sentencing practices for the offence of trafficking a large commercial quantity of a drug of dependence. For this purpose, as the parties recognised, the Court is confined to sentences imposed under the standard sentencing regime.[63]
[63]Sentencing Act 1991 s 5B(2)(b).
First, in Bruce v The Queen,[64] the offender was sentenced to a total effective sentence of 21 years and 6 months’ imprisonment on multiple drug and firearms charges, as well as a separate charge of arson. He received a sentence of 12 years’ imprisonment on a charge of trafficking a large commercial quantity of methylamphetamine, being 4.8 times the large commercial quantity. The offender abandoned a complaint of manifest excess in relation to that sentence, which the Court described as ‘modest in the circumstances’.[65] That offender was the sole principal of a drug trafficking business, and his sole motive was profit. The Court identified protection of the community as an especially important sentencing consideration in that case, the sentencing judge having regarded the offender’s prospects of rehabilitation as ‘poor’ to ‘guarded’[66] and describing him as a ‘menace to our community’.[67]
[64][2022] VSCA 100.
[65]Ibid [5] (Maxwell P and Kennedy JA).
[66]Ibid [60].
[67]Ibid [57].
The sentence in Bruce was the same as that imposed in this case. The quantities trafficked are broadly comparable (4.8 and 7.1 times the large commercial quantity, respectively), and if anything the different personal circumstances of the two offenders tells in favour of the current respondent.
In Al Janabe v The Queen,[68] a sentence of 10 years’ imprisonment was imposed on a charge of trafficking 12 times the large commercial quantity of methylamphetamine. In rejecting an argument that the sentence was manifestly excessive, the Court described it instead as ‘very lenient’.[69] The offender engaged in multiple individual instances of trafficking and had transported drugs interstate. Importantly, he had given assistance to authorities. The Court considered that the low sentence was explained by the weight the judge had given to the offender’s assistance to authorities.
[68]Al Janabe v The Queen [2021] VSCA 252 (‘Al Janabe’).
[69]Ibid [34] (Priest JA, Kennedy JA agreeing at [38]).
The Court in Al Janabe referred approvingly to Quah v The Queen,[70] in which a lesser quantity of drugs, being 3.8 times the large commercial quantity, was trafficked. A sentence of 15 years’ imprisonment was imposed. Like the present case, the offence was founded on possession of the drugs in question on a single day. The offender was also in possession of an unregistered firearm, ammunition and several prohibited weapons, together with just under $90,000 in cash and other accoutrements of drug trafficking in what the sentencing judge characterised as a ‘continuing commercial enterprise’.[71] The Court regarded the offending as ‘extremely serious’ and (unlike the present case) ‘driven by greed’.[72]
[70](2021) 290 A Crim R 136; [2021] VSCA 164 (‘Quah’), cited in ibid [33].
[71]Quah (2021) 290 A Crim R 136, 144 [24] (Maxwell P and Beach JA); [2021] VSCA 164.
[72]Ibid 152 [58].
Next, the appellant relied on Director of Public Prosecutions v Kumas,[73] in which a sentence of 6 years and 6 months’ imprisonment was imposed on a charge of trafficking 1.9 times the large commercial quantity. There were multiple trafficking transactions involving undercover operatives. This case also involved firearms. On a Director’s appeal, this Court described the offending as ‘very serious … by a person with a long and relevant criminal history’, and increased the sentence to 10 years.[74] The offender had been on parole when he committed the offences.
[73][2021] VSCA 215 (‘Kumas’).
[74]Ibid [4], [68] (Maxwell P, T Forrest and Walker JJA).
Finally, in Rahmani v The Queen,[75] a sentence of 9 years’ imprisonment was imposed on a charge of trafficking 1.5 times the large commercial quantity. This Court refused leave to appeal on the ground of manifest excess. It is important to note that this sentence was imposed after a trial. The offender was said to have excellent prospects of rehabilitation. The Court described the sentence as ‘very moderate’.[76]
[75][2021] VSCA 51.
[76]Ibid [5] (Maxwell P and Niall JA).
These cases do not suggest to us that the present sentence sits uncomfortably with current sentencing practices. We have already noted the degree of correspondence between this case and Bruce. The sentence in Al Janabe was lower and involved trafficking 12 times the large commercial quantity, as compared to 7.1 times in the present case. Accepting the Court’s description of that sentence as ‘very lenient’,[77] this does not suggest that the present case represents an outlier sentence. Nor are we persuaded that the comparatively stern sentence in Quah indicates that the present sentence is outside the available range. Both Kumas and, in particular, Rahmani, involved substantially lower sentences and quantities. In that regard, again, we do not detect from these cases a departure from current sentencing practices in the present case.
[77]Al Janabe [2021] VSCA 252 [34] (Priest JA, Kennedy JA agreeing at [38]).
We are cognisant of the maximum penalty of life imprisonment for trafficking a large commercial quantity of a drug of dependence, and the importance to be attached to general deterrence in sentencing for this offence.[78] For the reasons we have given, however, we are not persuaded that the sentence imposed in this case was outside the range properly available to the sentencing judge.
[78]Kumas [2021] VSCA 215 [4] (Maxwell P, T Forrest and Walker JJA); Quah (2021) 290 A Crim R 136, 151 [57] (Maxwell P and Beach JA); [2021] VSCA 164.
The non-parole period that the judge imposed was itself low, having regard to the head sentence and the prima facie minimum of 60 per cent of the head sentence for which the Sentencing Act provides.[79] It was submitted that the head sentence already made very generous allowance for the respondent’s rehabilitation and that the non-parole period, in effect, went too far. We disagree. It was consistent with the judge’s emphasis on rehabilitation that he should find that it was in the interests of justice to impose a comparatively short non-parole period, so as to allow for the possibility of an extended period of supervision of the respondent in the community. No specific error was alleged in this respect and we do not consider that the period, being only six months shorter than the prima facie minimum, was outside the range available to the judge.
[79]Sentencing Act 1991 s 11A(4)(c).
The appeal will therefore be dismissed.
Postscript — serious drug offender
The record of the orders of the County Court states: ‘Pursuant to s 89DI of the Sentencing Act 1991 (Vic), [the respondent] is sentenced as a serious drug offender in respect of Charge 1’. As pointed out in Dukic v The Queen[80] this formulation is infelicitous. Section 89DI requires the court, if a person is convicted of a serious drug offence, to make an order declaring the person to be a serious drug offender. A specific declaration to that effect should be made.[81]
[80][2021] VSCA 18 [25] (Ferguson CJ and Beach JA).
[81]See ibid [25], [26], [46].
The reference in the order to the respondent being ‘sentenced as a serious drug offender’ is in error. This form of order, which appears to have continued in use despite the Court’s observations in Dukic, confuses the declaration required under s 89DI with the application of the ‘serious offender’ provisions in pt 2A of the Sentencing Act.
Section 6F(1) provides that, when the court sentences a ‘serious offender’, the Court must cause to be entered in the records of the Court the fact that the offender was sentenced as a serious offender (in accordance with the provisions in pt 2A). That was not the case in this instance, because the respondent’s prior drug trafficking convictions were not ‘drug offences’ within the meaning of s 6B(1). As such, he was not a ‘serious drug offender’ within the meaning of the definition of that expression in s 6B(2) and therefore not a ‘serious offender’ under s 6B(3).[82]
[82]Much of the confusion is traceable to the fact that, although s 89DI requires the Court to declare an offender to be a ‘serious drug offender’, that expression has a different meaning under pt 2A which operates independently of the declaration.
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