DPP v Leach
[2003] VSCA 96
•6 August 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.87 of 2003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| KATHRYN ANN LEACH |
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JUDGES: | BATT, VINCENT AND EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 July 2003 | |
DATE OF JUDGMENT: | 6 August 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 96 | |
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Criminal law - Sentence – Crown appeal – Trafficking in commercial quantity of methyl-amphetamine – Possession of drugs of dependence – Sentence of nine months’ imprisonment on trafficking count, and two months’ on possession count – Total effective sentence of ten months’ imprisonment ordered to be served by Intensive Correction Order - Whether sentence manifestly inadequate or disclosed error in principle – Applicant a courier who carried the drugs between States for dealer – Whether judge justified in giving greater weight to rehabilitation than to deterrence - Discretion of court not to intervene notwithstanding that sentence manifestly inadequate – Drugs, Poisons and Controlled Substances Act 1981, ss.71, 73 – Crimes Act 1958, s.567A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. P.A. Coghlan Q.C., D.P.P. with Mr. R. Elston | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr. P.G. Priest Q.C. with Mr. M. Croucher | Haines and Polites |
BATT, J.A.:
The facts relating to the offending the subject of this appeal and those relating to the offender, the respondent to the appeal, are set out in the reasons for judgment of Eames, J.A., which I have had the benefit of reading. I agree with his Honour’s conclusion that the sentence imposed on count 1 and the order that it, together with the one month’s imprisonment cumulated from count 2, be served by way of intensive correction order was manifestly inadequate; but I cannot, with respect, concur in his Honour’s further conclusion that in the exercise of its discretion this Court should, nevertheless, dismiss the appeal.
In my opinion, the sentence imposed, as I have identified it, was so disproportionate to the seriousness of the crime the subject of count 1 as to shock the public conscience and it would be most unfortunate if a proper exercise of the Court’s reserve discretion required it to dismiss the appeal. The only ground on which such an exercise of discretion might arguably be based is that relied on by Eames, J.A., namely, that, when required or proper discounts or allowances are made from the sentence which this Court would pass if sentencing at first instance, the resultant sentence would not be sufficiently different from that imposed to warrant allowing the appeal and re-sentencing the respondent.
In order to test whether that is so in this case it is necessary to form a view as to the sentence that should have been passed in the first instance on count 1. In my view, without being specific, it is a sentence in the vicinity of 3 to 4 years’ imprisonment, probably without any fine. I say this because the very serious nature of this offence of trafficking in methylamphetamine in a commercial quantity, objectively considered, required general deterrence and denunciation by the court of the respondent’s conduct to prevail over the rehabilitation of the respondent as the principal purposes to be effectuated by the sentence. As Charles, J.A. said in R. v. Howden[1], there is little distinction to be drawn between those who traffic in methylamphetamine and those who deal in heroin. Amphetamine, as his Honour went on to say, is a very deleterious substance. Parliament’s view of the seriousness of the offence is shown by the maximum penalty it has fixed. In this case, the applicant engaged in the trafficking with her eyes open as to the seriousness of the offence and the seriousness of the consequences, if she were to be discovered. She required a high price for her participation (although its precise quantification is not known). She knowingly played for high stakes. The quantity of the drug trafficked in was almost twice that defined as the minimum for a commercial quantity of this drug. The respondent acted as a courier; she was not the principal or ring-leader but couriers are very important, if not in many instances essential, to the conduct of the illicit drug trade. It seems that in this case the respondent fulfilled an important role.
[1](1999) 108 A.Crim.R. 240 at para.[20].
As to allowances, I agree that an allowance by way of reduction in the term of imprisonment to be imposed by this Court must be made for the so-called double jeopardy element associated with a Director’s appeal. I agree, too, that the term of imprisonment to be imposed should reflect the fact that a person who has already been released into the community is being required to serve a term of imprisonment[2]. Similarly I agree that an allowance should be made, though not in precise terms, for the fact that four months of the sentence imposed below, which is deemed to be a sentence of imprisonment[3], has been served. But, in my opinion, the chronology in this case does not reveal any delay and certainly none to go in reduction of sentence.
[2]R. v. Wright (1994) 74 A.Crim.R. 152 at 160.
[3]Sentencing Act 1991, s.19(5).
Even when allowance is made for the factors which I accept, one would arrive at a sentence that would not be less than a term of imprisonment for a term of 18 months with an appropriate non-parole period. In my view, such a sentence would be significantly different from that imposed below. Since I am in the minority in this appeal it is unnecessary for me to specify with precision the sentence which I would have imposed on re-sentencing the respondent.
For the foregoing reasons I would allow the appeal.
VINCENT, J.A.:
The background to this appeal has been set out in the judgment of Eames, J.A. and need not be further addressed. Nor do I consider that there is any necessity for further reference to be made to the principles upon which this Court operates in the consideration of such matters. They are by now well recognized and can be found in the authorities mentioned by his Honour.
The conduct in which the respondent engaged was extremely serious, She is an intelligent person, aged 27 years at the time and well aware of the significance and criminality of what she was doing. In this context, in his sentencing remarks, his Honour noted:
"While there was no explicit agreement as to your payment for acting as a courier, you expected to receive drugs and money and you told Mr Joblin that you were simply working for others for what you had determined to be an appropriate reward. He went on to say in his report:
'By this I refer to her awareness of the seriousness of the charges and in being so aware determined that for her to participate in the offences the reward would have to be large. She reported that at the time of the offences she had ceased working. She wanted to continue to enjoy the nightclub environment, although not as a stripper, and various parties. She reported that she continued to use amphetamines and cocaine which enabled her to have a good time on these social occasions.'"[4]
[4]T28-29.
This Court has, on a number of occasions, emphasized its concern with the destructive effects of drugs in our society and the importance of general deterrence as a sentencing consideration. The imposition of a sentence of imprisonment and involving immediate incarceration would, I consider, in all but rare circumstances be required for the commission of the offence of trafficking in a commercial quantity of drugs whether in the role of courier or some other capacity.
The sentencing judge was clearly aware of the significance of these considerations. At one point in his remarks he stated:
"Drugs are a cancer in our society and those seeking to deal in drugs need to be aware of the consequences for themselves and for others. A court when engaging in sentencing for drug offences must necessarily bear in mind the principle of deterrence."[5]
Nevertheless, his Honour came to the conclusion that considerable leniency should be extended to the respondent.
[5]T29.
Although his reasoning does not emerge clearly from his sentencing remarks, I consider that it is highly likely that his Honour adopted the assessment of the situation made by Mr Joblin, a forensic psychologist, in his report relevant portions of which read:
"The problems she had when her father left when she was young and then her mother tragically dying when Ms Leach was only 13 impacted strongly on her. She then went to live with her father but had a dysfunctional relationship with her stepmother. At the age of 16 because of pressure in that home she had to leave. In spite of numerous relationships since, Ms Leach has been basically on her own. She gravitated to the nightclub environment and made a living through stripping. At that point she became involved in drug use and the drug environment that permeates the nightclub environment in this city. A drug habit developed, particularly involving amphetamine and cocaine. It seems that that continued.
Ms Leach reported that this history and her drug use was the basis for the offences for which she is before this Court. She indicated that she simply needed to pay for her use and did not wish to return to her employment as a stripper and thus, she sought to answer her financial problems through these offences.
The present situation seems to be one of some stability although she reported that she is packing her belongings and storing them until her travels through the criminal justice system have been completed. It is apparent from this act alone that she is aware of the seriousness of her situation. She regrets her actions and acknowledged that she took a risk in participating. The context, however, in which that risk was taken in my opinion is extremely important as that is the only explanation for the offending as this lady is simply not a psychopathic personality."
The respondent could be reasonably perceived as a troubled young woman who, forced to fend for herself from the age of 16 years, drifted into an unfortunate lifestyle involving drug taking over a lengthy period.
There are strong indications in the material that she by no means regarded her situation as satisfactory and it seems that she was experiencing significant personal difficulties in the period leading up to the offending. In the previous June, she attended a doctor suffering from weight loss and what he described as "the classical signs of depression". There is certainly no inconsistency between that finding and the fact that the respondent was immersing herself in what could be described as a surreal environment at around that time. Medication was prescribed for her which, perhaps not surprisingly, she did not take, as her mother, who had also suffered from depression, died as a consequence of an overdose of such medication. The sentencing judge also took into account the respondent's early plea of guilty and the endeavours that she had made following the commission of the offences to stabilize her life. In consequence, this experienced judge extended considerable mercy to her.
As these comments indicate, I am not persuaded that he was wrong in so doing, or that the sentence imposed on count 1 was so inadequate that, despite the force of these mitigatory factors and the considerations to which Eames, J.A. has adverted which would mitigate any sentence substituted by this Court intervention is required.
As King, C.J. stated[6]:
"There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."
[6]The Queen v. Osenkowski (1981) 30 S.A.S.R. 212 at 212-3.
I would dismiss this appeal.
EAMES, J.A.:
This is an appeal against sentence by the Director of Public Prosecutions brought under s.567A of the Crimes Act 1958 with respect to sentences imposed on the respondent on 18 December 2002 by a judge of the County Court.
The respondent pleaded guilty to three counts. Count 1 was trafficking in a commercial quantity of a drug of dependence, namely methyl-amphetamine, contrary to s.71(a) of the Drugs, Poisons and Controlled Substances Act 1981 (“the Act”) an offence which carried a maximum penalty of 25 years imprisonment and a fine of $250,000.
Count 2 was possession of drugs of dependence, being methyl-amphetamine, Ecstasy, and Ketamine, contrary to s.73(c) or (b) of the Act, which carried maximum penalties, on the one hand, of five years imprisonment and/or a fine of $40,000 or, on the other hand, one year imprisonment and/or a fine of $3000. The appropriate penalty range depended on whether the judge was satisfied on the balance of probabilities that possession was not for a purpose related to trafficking. In this case the judge was so satisfied, so the lesser maximum penalties applied.
Count 3 was possession of cannabis pursuant to s.73(a) which carried a maximum fine of $500.
The respondent had prior convictions recorded on 2 July 2001, for possession and using cannabis, for which she had been fined a total of $200.
On Count 1 the respondent was convicted and sentenced to 9 months' imprisonment, together with a fine of $1500, on Count 2 she was sentenced to two months' imprisonment and on Count 3 fined $250. One month of the sentence on Count 2 was made cumulative on the sentence on Count 1. The total effective sentence of 10 months was ordered to be served by way of an intensive correction order under s.19 of the Sentencing Act 1991.
There is no appeal with respect to count 3. As to count 1, the Director appeals on the ground that the sentence is manifestly inadequate. As to both counts 1 and 2 the Director contends that the judge fell into sentencing error in that in imposing a sentence of 10 months’ imprisonment and ordering that it be served by way of an Intensive Correction Order the judge failed to reflect the gravity of the offences, failed to give appropriate weight to the principle of general deterrence, and gave undue weight to factors going to mitigation.
The apprehension of the respondent arose out of a joint investigation of Victorian Police and the New South Wales Crime Commission which targetted a Sydney man as a major drug dealer who was said to have been purchasing large quantities of Pseudoephedrine weekly in Melbourne. The respondent came under observation as a suspected courier and on 29 November 2001 she was seen to arrive at Sydney airport and travel to the home of the target where her words and actions were monitored by surveillance devices. She was seen to collect a parcel in a travel bag and the respondent was subsequently followed during a train journey to Melbourne the same day and on arriving on 30 November 2001 was apprehended and found to have in the travel bag about one gram of cannabis but also 882.6 grams of white powder, being methyl-amphetamine of a purity of 50%. The pure total of 441 grams is well in excess of the limit of 250 grams for a commercial quantity under Schedule 11 of the Act.
On later searching the respondent's home the police found a range of drugs, being 29 tablets and drugs in powder form, comprising the drugs ecstasy, methyl-amphetamine and Ketamine.
The respondent gave evidence before the judge and he accepted that the drugs found at her home were for personal use. In addition to her evidence two character witnesses gave evidence asserting their belief that she would not re-offend. A number of written character references were also tendered.
A report from forensic psychologist Mr Ian Joblin did not disclose any psychiatric explanation for the offending but provided a useful history.
The respondent was a single woman aged 28 at time of sentencing. Her parents separated when she was young and she lived with her mother at Phillip Island until her mother's death in 1987, when the respondent was 13. Her mother was 37 years of age. The circumstances of her mother’s death were traumatic, as described in Mr Joblin’s report. Her mother had become ill due to an overdose of anti-depressant medication and the respondent arranged an ambulance to take her mother to Cowes Hospital but before she could be transported by helicopter to Dandenong hospital the mother died.
Thereafter the respondent lived with her father in Tasmania and his partner who was only 9 years older than the respondent and with whom the respondent did not enjoy good relations. She was forced to leave home at 16. The respondent completed Year 12 education and worked thereafter in the hospitality industry, first as a waitress then, from the age of 18, as a striptease artist. Her first significant drug use commenced at that time, but she had become a user of cannabis at age 14. She used cocaine and amphetamines when she was working in nightclubs as a striptease artist.
At age 24 she completed a TAFE course in New South Wales and gained a diploma in hospitality and management but then returned to the club scene in Melbourne. She was using drugs, including ecstasy, in what her then counsel called “the party scene”. She came into contact with people in the illicit drug trade and was offered work as a courier for payment of a sum of money not yet determined, so it was said, and for the supply of drugs for personal use. At this time she had decided not to return to work as a striptease artist. Although it was submitted to the judge that one motive for her criminal conduct was “misplaced loyalty” to those who asked her to act as courier the judge took a different view, based on the opinions stated by Mr Joblin that she entered into this offence fully aware of its seriousness and did so in order to fund her “good time” lifestyle. She told Mr Joblin that she was only willing to become involved so long as the reward would be large.
In submissions to the learned sentencing judge the prosecutor accepted that the respondent's role was that of a courier. The prosecutor submitted that an immediate custodial sentence was appropriate. Counsel for the respondent, although apparently conceding that a sentence of imprisonment was appropriate on count 1, contended that it was a proper case for such sentence to be wholly suspended. After hearing submissions his Honour announced that his thought at that stage was that he would impose an Intensive Correction Order and he adjourned the case in order that a pre-sentence report could be obtained as to her appropriateness for such an order. Counsel for the respondent had not submitted to the judge that an Intensive Correction Order was an appropriate disposition for the case. The prosecutor was not invited to make any submission as to the appropriateness of an Intensive Correction Order, but he did not resile from his earlier submission that immediate imprisonment was appropriate.
In his sentencing remarks the judge said that the respondent’s motives for offending revealed “a selfish and hedonistic attitude to the abuse of drugs and absolutely no consideration for the damage that such drugs, where you were acting as a courier, may cause to the general community, even younger people". His Honour said that it was an offence that called for deterrence, and that opportunists such as the respondent needed to be deterred.
His Honour concluded, however, that as a result of being arrested the respondent now appreciated the seriousness of her offences.
The Director of Public Prosecutions directed most of his submissions to Count 1. Mr Coghlan that this was a case which called for immediate and actual imprisonment and an Intensive Correction Order was an entirely inadequate order notwithstanding the fact that such a sentence is deemed to be a sentence of imprisonment[7].
[7]s.19(5).
Mr Coghlan pointed to the fact that this was an offence which carried a maximum penalty equal to that for trafficking heroin in a commercial quantity; that it was an offence in which the respondent’s participation was at the wholesale end of the illegal drug trade; that the quantity of the drug was almost twice that for a deemed commercial quantity; that the offence was committed with complete awareness of the seriousness of the offence, indeed, that it was such awareness which led her to condition her involvement on there being a sufficiently large reward to justify that risk. In those circumstances the failure to impose an immediate sentence of imprisonment was so manifestly inadequate, he submitted, as to invite public outrage. The sentence failed to give appropriate weight to factors of judicial denunciation and general deterrence, he submitted.
The law relating to Director’s appeals is well established and demonstrates that the approach to a Director’s appeal by the Court of Appeal should be circumspect. Such an appeal should only be brought in the “rare and exceptional case”[8] and the court should not intervene unless a very clear case of error has been made out[9].
[8]Everett v. The Queen (1994) 181 C.L.R. 295, at 299; R. v. Clarke [1996] 2 V.R. 520, at 522.
[9]Dinsdale v. The Queen (2000) 202 C.L.R. 321, at 341 [62], per Kirby, J.
Save for an appellate court correcting clearly demonstrated error, the task of sentencing falls on the sentencing judge. Opinions on an appropriate sentence will often differ as between judges. Sentencing is not a science and full weight must be given to the advantage which a sentencing judge has over judges in an appellate court, who have not had the same opportunity to observe the accused and any witnesses and who have probably not had as much time as the sentencing judge to fully consider the sentencing options and the appropriate penalty for the particular case: see Dinsdale v. The Queen[10]. An appellate court may not intervene merely because its members thought the sentence inadequate and that its members would have reached a difference conclusion as to the appropriate sentence: see Lowndes v. The Queen[11]. The appellate court may only intervene where material error of law or fact has been demonstrated in the approach to sentencing adopted by the judge.
[10]At 342 [65], per Kirby, J.
[11](1999) 195 C.L.R. 665, at 671-672.
In some cases no specific error of fact or law might be identified and yet the sentence itself might reveal such manifest inadequacy or inconsistency with proper sentencing standards as to constitute error in principle: see R. v. Clarke[12].
[12][1996] 2 V.R. 520, at 522, per Charles, J.A.
In R. v. Clarke[13] Charles, J.A. summarised the relevant principles which applied to Director’s appeals and identified a range of situations in which intervention of an appellate court may be required. His Honour said this, at 522:
“Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett at 300); (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffiths at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett at 306)."
[13][1996] 2 V.R. 520.
It is by reference to those statements of principle that the sentences here fall for consideration.
The judge told the respondent that she had come very close to going to gaol. In choosing the sentence he did the learned judged highlighted the following matters:
(1)The plea of guilty at the first reasonable opportunity, which reflected remorse;
(2) The limited prior convictions.
(3) The network of friends who would support her.
Additionally, his Honour referred to “the circumstances of the offending and the evidence placed before the court on your behalf”. It was not clear to me what it was about the circumstances of the offending to which His Honour was referring, but presumably it was that her role was as a courier rather than a person more significantly involved in the drug trade.
It is very clear from his remarks during argument and on sentencing that the judge gave considerable weight to the factor of rehabilitation. Mr Coghlan submitted that he gave far too much weight to that consideration and not enough to general deterrence, the importance of the latter factor in cases of major drug trafficking offences having been repeatedly emphasised by the appeal courts: see R. v. Berisha[14]. Mr Coghlan submitted that the inappropriateness of an Intensive Correction Order is apparent from the fact that it may be imposed for a maximum of only 12 months imprisonment[15], the appropriate sentence of imprisonment in this case, he submitted, being substantially greater than 12 months, in the order of some years. Although contending that even the maximum sentence of 12 months would have been entirely inappropriate, Mr Coghlan submitted that the inappropriateness of the sentence is exacerbated by the fact that the judge imposed only 9 months imprisonment on count 1. These factors combined, he submitted, to illustrate that the sentencing approach adopted went totally awry.
[14][1999] VSCA 112.
[15]s.19(1).
In R. v. Clarke Charles, J.A.. (with whom Winneke, P. and Hayne, J.A. agreed) noted the appropriateness of the observations of King, C.J. in R. v. Osenkowski[16], to the effect that Director’s appeals should not be permitted to unduly circumscribe the sentencing discretion of trial judges and in particular, quoting the words of King, C.J., there always remained a place for the exercise of mercy and leniency “when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform”.
[16](1982) 30 SASR 212, at 212-3.
Mr Priest accepted that if this sentence was to be justified it could only be by reference to the consideration mentioned by King, C.J. that it might be explained He submitted that the judge’s decision to place so much weight on rehabilitation did not manifest error, as his Honour obviously saw the respondent as being at a turning point in her life. The report of Mr Joblin disclosed that she had a psychological addiction to drugs dating from her first involvement in the club scene and had a drug habit with respect to amphetamines and cocaine, which seemed to be continuing even at the time of sentencing. In imposing an Intensive Correction order the judge made very clear to the respondent that she would have regular urine analysis and that a positive finding of drug use would constitute a breach of the order with possible imprisonment to follow. That factor was clearly significant to the judge who, so it seems plain, regarded it as essential that the respondent face up to the fact that her party days of drug use were at an end.
Whilst the material before the judge might have suggested that the respondent was a rather shallow and self-centred person interested only in her own good times and uninterested in the well being of others, including the victims of drugs, there was another side to the respondent which did emerge on the material. An insight into a more responsible aspect to her character emerged in both Mr Joblin’s report and in at least one of the character statements. In that material, for example, reference was made to the fact that when her closest friend was seriously injured in a road traffic accident in Greece, the respondent flew to her bedside and nursed her until her friend died from her injuries. Other statements by character witnesses confirmed that the respondent had a genuine caring side to her character. Material before the court also reflected the fact that the respondent was exhibiting genuine remorse for her conduct. All of that material had to be evaluated by the sentencing judge and his Honour obviously decided that the respondent was a person deserving of a chance, and that rehabilitation should take precedence over deterrence.
Was the order on Count 1 then so manifestly inadequate, or did his Honour’s emphasis on rehabilitation so unbalance the sentencing process as to require the intervention of this Court? The conclusion that a sentence is manifestly inadequate does not admit of much amplification[17], but in addressing the question a number of factors need to be kept in mind.
[17]Dinsdale, at 325 [6].
In my view, the fact that Director’s appeals are now quite common should not detract from the continuing application of the principle that it is only in very clear and rare cases of manifest inadequacy or error that a Director’s appeal should be allowed. It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community.
Thus, I acknowledge the very important right of a sentencing judge to extend leniency in a case which seems to him or her to be appropriate, and to do so even if it is difficult to identify precisely what it is about the offender which leads to that conclusion. Notwithstanding that consideration, it seems to me to be undeniable that the sentence imposed on Count 1 is manifestly inadequate and fails to reflect appropriate sentencing standards. The sentence of nine months imprisonment is itself manifestly inadequate, but furthermore, the order that the sentence be served by way of an Intensive Correction Order was entirely inappropriate, and would have been so even if the maximum sentence on such an order of 12 months imprisonment had been ordered on Count 1.
Having reached that conclusion, however, the court retains a discretion, in an appropriate case on a Director’s appeal, to decline to interfere with a sentence even though the Director has demonstrated that the sentence was so flawed as to justify overturning: see R. v. Clarke[18]; D.P.P. v. Singh[19]. Mr Priest submitted that if we concluded that the sentence was so flawed in this case then, notwithstanding that conclusion, we should decline to interfere with it. As to that question counsel identified a number of relevant considerations.
[18]At 522.
[19](1999) 106 A.Crim.R. 321.
In my view it would be inappropriate to intervene to impose a sentence, and would amount to mere tinkering, unless the sentence of imprisonment which was to be substituted was significantly greater than the sentence of nine months which had been imposed below (ten months when one has regard to the order of cumulation as to count 2). I am not persuaded that that would be so in this case.
In this case any proposed sentence of imprisonment would have to be significantly discounted by this court before a final period of imprisonment was fixed upon. In the first place, the sentence which this court proposed would need to be significantly reduced because of the “double jeopardy” element associated with a Director’s appeal. A quite distinct, and additional, reduction would need to be made for the fact that the double jeopardy aspect of this case carried the particular feature that what was to occur involved the imposition of an immediate custodial sentence, on a person who had been at large for a considerable time in accordance with the order made below, and who had re-ordered her life on the basis that she would not be imprisoned as she had anticipated in the court below[20].
[20]See D.P.P. v. Best (1998) 100 A.Crim.R. 127, at 132-133.
An additional discounting factor related to the respondent’s performance under the Intensive Correction Order. This raised a problem which had been anticipated by Batt, J.A. in Wilson[21].
[21]D.P.P. v. Wilson [2000] VSCA 112 at [23]-[24].
A reduction in the sentence imposed would need to be made to take into account the fact that the respondent had actually undergone punishment in accordance with the terms of the Intensive Correction Order. In this case the Intensive Correction Order which was to apply for ten months was made on 18 December 2002. The core conditions of that order were set out in the sentencing remarks of the judge and they include the requirements that the respondent receive visits from a community correction officer at least twice per week, that she perform 12 hours community work per week of which at least eight hours be unpaid, that she undergo such counselling and treatment including drug rehabilitation treatment as directed.
The Director served notice of appeal on the respondent on 9 January 2003. It was common ground that the service of the notice of appeal created uncertainty among those who were responsible for supervising the respondent’s performance of the ICO. It was not known whether the notice of appeal stayed the operation of the ICO. In the event, the respondent continued to perform her obligations under the ICO until four months had elapsed from the time of its commencement. The cessation or suspension of the ICO program was decided by those supervising the respondent, not by her. Mr Coghlan conceded that performance to date under the ICO had to be taken into account. He submitted that such period was four months, not the seven months which had passed since the order was imposed. He did not dispute the proposition, however, that we should regard the sentence of imprisonment which had been imposed as being ten months (to the sentence of nine months on Count 1 a further one month on Count 2 was added in cumulation), and not four months. Mr Coghlan submitted that when re-sentencing the appropriate approach which we should adopt would be to make an allowance for the fact that four months had been served under the ICO, but he submitted that such allowance did not have to be precisely calculated. As I understood it, Mr Priest did not challenge the contention that such an approach was appropriate but he submitted that such allowance should not be limited to the four months during which the ICO was formally operative.
In my view, it would be appropriate when making allowance for the fact that the sentence imposed below had been served, in part, to treat the period served as being four months, but to have regard also to the fact that the respondent had held herself ready to perform more service as required by her supervisors.
The next factor which had to be taken into account is the factor of delay. In Singh the respondent, at the time of the appeal, had completed eight months of a sentence of three years imprisonment which had been wholly suspended for three years. There had also been significant delay between the date of the offences and the imposition of the sentence. The Court held[22] that delay, when combined with factors personal to the respondent made it just for the court to proceed by dismissing the appeal, notwithstanding the conclusion reached that the sentence was manifestly inadequate. The delay in the present case is not so substantial, but would have to be taken into account in re-sentencing.
[22]At 328-330, per Phillips, J.A.
Finally, when re-sentencing, the court would have to take into account factors personal to the respondent, and as is clear from the matters earlier discussed, there were a number of mitigatory factors in the respondent’s antecedents. Among other factors, she had commenced employment and had continuing work available to her as a personal assistant in a carpet cleaning business.
When all of those discounting factors are taken into account, the likely sentence which the court would impose on re-sentencing would not be significantly different (and certainly not so far as a non-parole period was concerned) to the sentence of ten months which was imposed on counts 1 and 2. That conclusion, in my opinion, demonstrates that in the exercise of its discretion the court should not intervene in the circumstances of this case.
Notwithstanding the fact that this was a very serious case and that the sentence imposed was manifestly inadequate - in that the respondent ought to have been sentenced to a significant period of immediate imprisonment when she appeared below - the court, in the exercise of its discretion, should dismiss the appeal.
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