DPP v Moustafa
[2018] VSCA 331
•7 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0200
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| KHALED MOUSTAFA | Respondent |
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| JUDGES: | BEACH, EMERTON and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 November 2018 |
| DATE OF JUDGMENT: | 7 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 331 |
| JUDGMENT APPEALED FROM: | DPP v Moustafa [2018] VCC 1389 (Judge Davis) |
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CRIMINAL LAW – Director’s appeal – Sentence – Respondent pleaded guilty to one charge of recklessly causing injury and four charges related to drug trafficking – Sentenced to total effective sentence of five years and three months’ imprisonment with non-parole period of two years and five months – Respondent played important role in large scale drug trafficking operation involving, inter alia, over eight tonnes of 1,4-Butanediol – Whether judge erred by subtracting three years and four months ‘dead time’ previously spent in custody on unrelated matters (for which he was acquitted) from total effective sentence – Whether individual sentences and total effective sentence manifestly inadequate – Appeal allowed – Respondent re-sentenced to total effective sentence of nine years’ imprisonment with non-parole period of six years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B F Kissane QC with Ms M J Brown | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr O P Holdenson QC with Ms B Franjic | Haines & Polites |
BEACH
EMERTON
WEINBERG JJA:
On 10 July 2018, the respondent, now aged 27, pleaded guilty in the County Court, at Melbourne, to one charge of causing injury recklessly, and four charges related to trafficking in drugs of dependence.
The charges against the respondent arose out of an investigation conducted by Victoria Police designated ‘Operation Merlin’. That investigation culminated in the arrest of a number of individuals, and the seizure of over 3,800 kilograms of 1,4-Butanediol (‘1,4-BD’)[1] on 14 June 2016, and a further five tonnes of the same substance in August 2016.[2]
[1]1,4-BD is a drug of dependence pursuant to the Drugs, Poisons and Controlled Substances Act 1981 sch 11. It is an industrial solvent, but also acts as a ready replacement and analogue for gamma hydroxybutyrate (known as ‘GHB’). It is not an offence to import 1,4-BD for industrial purposes. Unauthorised possession and trafficking for human consumption, however, is prohibited.
[2]A commercial quantity of 1,4 BD is two kilograms. At the time of the offending, there was no specified amount that constituted a large commercial quantity.
On 31 August 2018, the respondent was sentenced as follows:
Charge
Offence Maximum penalty Imprisonment imposed Cumulation 1 Recklessly causing injury
[s 18 Crimes Act 1958]5 years 2 months 1 month 2 Trafficking in a drug of dependence (commercial quantity) – 8 tonnes of 1,4-BD.
[s 71AA Drugs, Poisons and Controlled Substances Act 1981]25 years 4 years 2 years 3 Trafficking in a drug of dependence (large commercial quantity) – 39,012 ecstasy tablets.
[s 71(1) Drugs, Poisons and Controlled Substances Act 1981]Life 5 years Base 4 Trafficking in a drug of dependence (commercial quantity) – 640 grams of methylamphetamine.
[s 71AA Drugs, Poisons and Controlled Substances Act 1981]25 years 2 years 1 year 5 Trafficking in a drug of dependence (commercial quantity) – 9.51 kilograms of cannabis.
[s 71AC Drugs, Poisons and Controlled Substances Act 1981]15 years 1 year 6 months Calculated total effective sentence:
8 years and 7 months’ imprisonment
Stated total effective sentence:[3]
5 years and 3 months’ imprisonment
Non-parole period:
2 years and 5 months
S 6AAA declaration:
10 years and 11 months’ imprisonment with a non-parole period of 7 years and 7 months
Pre-sentence detention declared pursuant to s 18(1) of the Sentencing Act 1991
809 days
Other relevant orders:
Undertaking noted (pursuant to s5(2AB) of the Sentencing Act 1991).
Sentenced as a serious drug offender on charges 3 and 4 (pursuant to s6F of the Sentencing Act 1991).
[3]The significance of this designation will be discussed later in these reasons for judgment.
Pursuant to s 287 of the Criminal Procedure Act 2009, the Director now appeals against sentence on the following two grounds:
Ground 1 – The learned sentencing judge erred in deducting the period of three (3) years and four (4) months from the total effective sentence arrived at by the sentences imposed and the orders for cumulation.
Ground 2 – The sentences imposed on Charges 2, 3 and 4, and the orders for cumulation relating to Charges 2 and 4 are manifestly inadequate.
Background facts
Operation Merlin involved an investigation into the importation of vast quantities of 1,4-BD from China. It is alleged that one of the respondent’s co-accused, Mr Saer Obain, imported the substance through his company, SAA Cleaning Services Pty Ltd, which was registered as an importer of industrial chemicals with the Department of Health.
In mid-February 2016, the respondent arranged with an acquaintance, Mr John Iaonnou, who owned a flower shop on Lygon Street in Brunswick, to sublet a storage space that was located behind his shop. It was agreed that Mr Iaonnou would be paid $700 per week as rent for the facility.
By late May 2016, Mr Iaonnou had only received two $700 payments. Whenever asked by Mr Iaonnou for rent, the respondent refused to pay, and threatened him. On one occasion, the respondent attended the Lygon Street premises with another male. He struck Mr Iaonnou to the face, causing him to fall to the ground. He later received ten stiches to the back of his head (charge 1).
On 13 June 2016, Mr Iaonnou called police to report that the respondent, along with others, had forced a man into his storage facility. Police soon thereafter obtained a warrant and searched the Lygon Street premises. They located 56 kilograms of 1,4-BD (part of charge 2), 39,012 ecstasy pills (charge 3), 1.38 kilograms of methylamphetamine (charge 4)[4] and 9.51 kilograms of cannabis (charge 5).
[4]The methylamphetamine was secreted in various containers at the Lygon Street premises. It was agreed that the respondent was only to be charged in relation to approximately 640 grams of the total amount of methylamphetamine, which was the unsecreted portion.
The respondent and his co-accused were not at the facility when police arrived. Accordingly, they were not immediately arrested. Anticipating that the police would discover large quantities of 1,4-BD that were stored at two other locations leased by the respondent, Kennards and Public Self Storage, the respondent, Mr Obain and others attempted to relocate the remaining 1,4-BD. They commenced moving it to an address in Flemington.
In the early hours of 14 June 2016, the day after the Lygon Street premises had been raided, the respondent and a co-accused were intercepted after leaving the address at Flemington. Approximately 1160 kilograms of 1,4-BD was located in the van which the respondent was driving at the time of his arrest. A further 497 kilograms was located in the Public Self Storage facility, and 2026 kilograms at the Flemington address.
Police also located, in the van, eight green coloured pills, $200,200 in cash, equipment used for the manufacture of methylamphetamine, and a Victoria Police IOEV kit bag which had been stolen in March 2014. The respondent was not charged with any offences in relation to any of these items.
While in custody, the respondent made arrangements in a series of telephone calls with his partner and co-accused, Ms Daniela Acevedo. Between 27 June and 26 August 2016, he made more than 800 calls to Ms Acevedo, all of which were recorded by authorities. As a result of instructions given by the respondent during these calls, Ms Acevedo arranged to lease a storage space at National Storage, in Tullamarine.
On 25 August 2016, police located a further 5.126 tonnes of 1,4-BD at the storage facility in Tullamarine. The respondent’s fingerprints were found on barrels containing the substance.
In summary, the total amount of 1,4-BD which fell within the ambit of charge 2 consisted of:
·56 kilograms found at the Lygon Street premises;
·1160 kilograms found in the van;
·497 kilograms found in the Public Self Storage facility;
·2026 kilograms found at the Flemington address; and
·5126 kilograms found at the Tullamarine storage facility.
This makes a total of about 8865 kilograms of 1,4-BD that the respondent trafficked during the period in question.
Sentencing remarks
The sentencing judge accepted that the respondent’s role in the operation was to provide assistance to Mr Obain with respect to the storage and transportation of the 1,4-BD. He played no role in importing, distilling or selling the drugs. Her Honour described the respondent’s contribution to the offending as ‘limited, but very significant’.[5]
[5]DPP v Khaled Mustafa [2018] VCC 1389 [16] (‘Reasons’).
The judge noted that the quantity of drugs seized rendered the offending ‘a very serious example of drug trafficking’.[6] The 1,4-BD that was seized totalled 4400 times the commercial quantity of that drug. In addition, the ecstasy seized was 11 times the large commercial quantity specified for that particular drug.[7] The respondent’s moral culpability was therefore considered to be ‘high’.
[6]Ibid [17].
[7]A large commercial quantity of MDMA is 750 grams. Accordingly, 11 times that amount would be approximately 8.25 kilograms.
On the plea, the prosecution conceded that the respondent should receive a substantial discount in light of the assistance that he provided to police. The judge noted the ‘high’ value of this assistance in her sentencing remarks. Specifically, her Honour pointed out that he provided a statement to police detailing the involvement of his co-accused in the offending, and undertook to give evidence against three of them.
As was noted by the judge, the assistance that the respondent provided put his safety at risk. That would dictate where and how his sentence would be served and accordingly, should be viewed as mitigatory. Ultimately, her Honour concluded that his cooperation warranted ‘a very significant reduction in [his] sentence’.[8]
[8]Reasons [36].
In her sentencing remarks, the judge described the respondent’s plea as having have been of significant utilitarian value, and also considered it an important mitigating factor.
The judge noted that there ought to be some cumulation in the sentences imposed to reflect the different drugs of dependence that formed the basis of charges 2 to 5.
In her sentencing remarks, the judge briefly summarised the respondent’s personal circumstances. Specifically, her Honour noted that he was the youngest of 16 children, and had received little family support. He left school in 2008 to work as a labourer, and later worked buying, repairing and selling used motor vehicles. Ultimately, her Honour considered that the respondent was ‘a relatively young man with a reasonable work history’.[9]
[9]Reasons [38].
The judge referred to the fact that the respondent had previously been imprisoned for several years, having been charged with two counts of murder, of which he was ultimately acquitted. The judge said that by the time of his release, he had spent three years and four months[10] in custody, that being the period by which she ultimately reduced his total effective sentence.
[10]It was common ground, before this Court, that the figure that her Honour used was erroneous. In fact, the correct figure should have been approximately three years and one month.
We interpolate to say, in relation to that matter, that on 18 August 2011, the respondent was involved, with another man, in an incident where two other individuals were shot dead. He was remanded into custody on two charges of murder. He was ultimately acquitted on one of those charges, but convicted on the other of the lesser offence of defensive homicide. That conviction was later overturned by the Court of Appeal which, on 26 September 2014, substituted a verdict and judgement of acquittal.[11] Accordingly, on that date, the respondent was released from custody.
[11]Moustafa v The Queen (2014) 43 VR 418.
Returning to her Honour’s sentencing remarks, she concluded, citing Jojic v The Queen,[12] that the respondent was entitled to credit for the ‘entire period’ that he had been detained in relation to the unrelated charges arising out of the shooting of the two deceased. The judge purported to credit that period, albeit wrongly calculated, as ‘dead time’, which she took off the head sentence, and the non-parole period as well.[13]
[12][2017] VSCA 77 [44].
[13]Reasons [37].
The judge also considered the respondent’s criminal history. Of note, were two prior convictions, one for trafficking in cannabis in 2009, and one for trafficking in methylamphetamine in 2015. The latter offence was committed while he was in custody at Port Phillip Prison, at that time serving his sentence for defensive homicide.
In light of the respondent’s criminal history, her Honour noted that specific deterrence was to be given weight in sentencing the respondent. This was particularly so, given that some of the conduct that gave rise to charge 2 took place while he was in custody, just as had occurred in relation to the trafficking for which he was convicted in 2015.
Director’s submissions on appeal
Ground 1
As indicated above, ground 1 contends that the judge fell into error by deducting the entire period of three years and four months, as dead time, from the total effective sentence of eight years and seven months’ imprisonment that she had initially arrived at. That led to the total effective sentence of five years and three months’ imprisonment, with a non-parole period of two years and five months, which is the subject of this appeal by the Director.
During the course of the plea, the prosecutor had conceded that the dead time, arising out of the charges upon which the respondent had been acquitted, was relevant to the sentencing synthesis. The same concession was made before this Court. However, it was submitted that the judge had erred in treating the entire period (mistakenly calculated as three years and four months), as warranting the reduction of the sentence that her Honour afforded it.
More specifically, it was submitted in support of ground 1 that the judge ought only to have taken the dead time into account, in a ‘broad way’, and that this should have been done when formulating the sentence for each individual charge. It should not have been done by subtracting the dead time from the total effective sentence, as her Honour had done.
Implicit in the Director’s submission, was the contention that, had the matter proceeded correctly, the process would not have become simply ‘mathematical’, as it had. Rather, dead time would have been taken into account in the manner stipulated by this Court in R vRenzella,[14] in what was described as a broad, or general, way.
[14][1997] 2 VR 88 (‘Renzella’).
In addition, it was submitted that although there seemed to be some support in several decisions of this Court[15] for the proposition that the default position, in relation to dead time, was that there should be precise equivalence between the period in question, and the credit afforded to it, that was not an accurate reflection of the law. The cases which appeared to support that approach were all distinguishable from the situation with which her Honour was confronted. The authorities in question all dealt with time served ‘proximate and subsequent to’ the relevant offending. They were not cases with a two year disconnect between the unrelated offending, and the matters that were the subject of the sentencing process.
[15]Jojic v The Queen [2017] VSCA 77 adopting Kheir v The Queen [2012] VSCA 13; Osborne v The Queen; DPP v Osborne [2018] VSCA 160.
In oral submissions, senior counsel for the Director submitted that the judge’s error, in relation to dead time, arose from her having simply deducted the relevant period (whether it be three years and four months or three years and one month) from the total effective sentence, rather than treating it as part of the instinctive synthesis in relation to each individual sentence. Alternatively, it would have been open to the judge to have made allowance for dead time by reducing the orders for cumulation that she would otherwise have made.
It was accepted that there might be some cases where a ‘one for one’ deduction would be appropriate. Generally, these would be cases where the period in question was not all that long, perhaps months rather than years. Although the weight to be accorded to dead time was a matter for the exercise of discretion, there were some factors that had to be taken into account as part of that process. These included the circumstances giving rise to the dead time, and importantly the lapse in time between that dead time, and the commission of further offences.
It was wrong for her Honour to have taken into account the entire period of dead time in this case because it concerned serious offending that occurred after the respondent had been released from custody, and after the lapse of a lengthy period. It would be contrary to the public interest, and the interests of justice, for a person in his position to believe that he had a period of three years or so available as ‘credit in the bank’ to be set off against future offending.
Finally, it was submitted that, in any event, a total effective sentence is not, itself, a sentence of imprisonment.[16] It is merely the outcome of the synthesis of individual sentences, and orders for cumulation. As such, dead time should never be deducted from a total effective sentence.
Ground 2
[16]Ludeman v The Queen (2010) 13 VR 606.
This ground alleges that the individual sentences imposed on charges 2, 3 and 4, as well as the orders for cumulation relating to charges 2 and 4, were manifestly inadequate.
In support of this ground, senior counsel for the Director emphasised that the quantity of the drugs trafficked, in this case, greatly increased the seriousness of the offending. The Director’s written submissions noted that this case concerned the largest quantity of 1,4-BD ever known in this State.[17] Moreover, the Director highlighted the fact that there was no issue as to whether the respondent intended to traffick the drug in such an enormous quantity. It was accepted that he wilfully participated in the offending, with full knowledge of the massive scale of the operation.
[17]There was evidence before the judge that the total value of the 1,4-BD was between $11 and $20 million wholesale, and the street value was between $33 and $50 million.
Also in support of ground 2, the Director submitted that the judge placed too much weight, as a mitigating factor, on the assistance that the respondent had provided to police. Though it was accepted that he was entitled to a significant discount by reason of that assistance, it was submitted that the individual sentences imposed, as well at the total effective sentence, were wholly outside the range.
Finally, in her written submissions, the Director referred to a series of County Court cases that were said to demonstrate that the individual sentences imposed, and particularly those on charges 2 and 3, were manifestly inadequate.[18] More specifically, the Director referred to Ellis v The Queen,[19] noting that it resulted in a sentence of four years’ imprisonment on a charge of trafficking a mere 3.5 kilograms of 1,4-BD, as compared with the 8865 kilograms trafficked in this case.
[18]DPP v Webb [2015] VCC 171 (35.54 kilograms of 1,4-BD, sentence of four years and six months’ imprisonment); DPP v Bowden [2016] VCC 708 (18.5 kilograms of 1,4-BD, sentence of two years and six months’ imprisonment); DPP v Hassan [2015] VCC 1383 (14.8 kilograms of 1,4-BD and sentence of three years and six months’ imprisonment); DPP v Bugeja [2017] VCC 782 (12 kilograms of 1,4 BD and three year Community Correction Order); DPP v Vo [2018] VCC 450 (11.3 kilograms of 1,4-BD and sentence of three years and six months’ imprisonment); DPP v Rheinberger [2014] VCC 1152 (9.4 kilograms of 1,4-BD and sentence of four years and six months’ imprisonment); DPP v Khalil [2016] VCC 764 (6.8 kilograms of 1,4-BD and sentence of four years’ imprisonment); DPP v Donaldson [2016] VCC 1692 (two kilograms of 1,4-BD and sentence of five years’ imprisonment).
[19][2018] VSCA 221.
In oral submissions, senior counsel for the Director noted that the maximum sentence available on charge 2 was 25 years’ imprisonment. He conceded that the submission initially advanced on the plea that this case warranted the imposition of the maximum sentence, could not be sustained in the face of the plea of guilty. Nonetheless, he submitted that a sentence not all that far short of the maximum would have been within range for offending on this scale.
Senior counsel accepted that the respondent’s willingness to give evidence against his co-accused had been of significant value, and that to date, he had honoured his undertaking to do so.
As regards the respondent’s role in the commission of these offences, it was submitted that he occupied a responsible position within the criminal enterprise, and that his culpability was great. He was not to be viewed as someone at the ‘lower end of the hierarchy’.
It was further submitted that the objective gravity of this offending, at least in relation to charges 2 and 3, put it within the ‘worst case category’ by virtue of the quantity of drugs involved. The fact that the respondent made further storage arrangements whilst in custody also aggravated the offending.
It was acknowledged that the respondent was entitled to a significant discount for his cooperation, but this was qualified by the relatively late time at which the assistance was finally offered. An earlier offer of assistance might be indicative of contrition. That was not the case with this particular respondent. It was not conceded that the assistance offered in this case warranted a discount of 50 per cent, or anything like that figure.
In relation to charge 4, it was submitted that the sentence of two years’ imprisonment was itself manifestly inadequate, even though it related only to 640 grams of methylamphetamine. In that regard, senior counsel referred to the respondent’s prior convictions for trafficking. He also noted that in Gregory (Pseudonym) v The Queen,[20] an appellant had been sentenced to a term of eight years and six months’ imprisonment on a charge of trafficking in a commercial quantity of methylamphetamine, that being 226 grams. The appeal against sentence had been dismissed.
[20][2017] VSCA 151.
In the present case, the amount of methylamphetamine trafficked had been 640 grams, yet the respondent had been sentenced to a mere two years’ imprisonment on that charge. Senior counsel submitted that this was a clear indication that the sentence imposed on that charge was manifestly inadequate.
Respondent’s submissions on appeal
Ground 1
In written submissions filed on behalf of the respondent, it was conceded that the judge had erred in the way that she took into account the dead time in this case. However, it was submitted that the error had merely been one of form, and not of substance. In particular, it was submitted that her Honour did not err in the weight that she accorded to the dead time, treating it as warranting a reduction on a ‘one for one’ basis.
In that regard, reference was made in the written submissions to Warwick v The Queen[21] and Karpinski v The Queen,[22] both of which were said to justify the weight that her Honour had accorded to this factor. It was further submitted that the weight to be given to dead time was a matter for the sentencing judge, in her discretion. For that reason, the judge’s treatment of dead time should not be impugned unless House v The King[23] error could be demonstrated.
[21](2010) 201 A Crim R 580.
[22](2011) 32 VR 85 [71].
[23](1936) 55 CLR 499 (‘House v The King’).
The respondent supported the judge’s decision to give full weight to the dead time, by reference to Kheir v The Queen[24] and Jojic v The Queen.[25] It was noted that in Kheir, Buchanan JA had observed that:
In the absence of any circumstances which warranted a different result, I am of the opinion that the sentencing judge should have had regard to the entire period of detention.[26]
[24][2012] VSCA 13 (‘Kheir’).
[25][2017] VSCA 77 (‘Jojic’).
[26]Kheir [2012] VSCA 13 [17] (emphasis added). It should be noted that in Kheir, although the prisoner had previously served ten months on remand for an unrelated offence before being acquitted of it, the sentencing judge had given credit for only five months dead time. The Court of Appeal considered that in the particular circumstances, there was no reason not to credit the entire ten months.
In Jojic, the appellant, on his plea, sought to call in aid a period of 129 days on remand in relation to another matter for which he had been acquitted. The sentencing judge said he took ‘some account’ of that period, without specifying what that meant. On the appeal to this Court, Osborn JA observed:
The weight to be given to the dead time was of course a matter within his discretion. It did not create an entitlement to a discount. Nor did it fall to be considered as a simple mathematical exercise.[27]
[27]Jojic [2017] VSCA 77 [42] (citations omitted).
Nonetheless, his Honour (with whom Priest JA and Kidd AJA agreed), concluded that Jojic was one of those cases where the approach adopted in Kheir might be thought appropriate. In other words, he considered that full credit might legitimately be given for dead time in relation to time spent in custody for an unrelated offence which had resulted in an acquittal.
The respondent contended, in his written submissions, that neither Kheir nor Jojic should be distinguished merely because the dead time in those cases had been the result of offending that was proximate, in a temporal sense, to the offences for which the offenders in those cases fell to be sentenced. It was conceded that the respondent was not in that position, there having been a lapse of two years between the completion of the period in custody and the further offending. However, it was submitted that this made no difference.
In oral submissions, senior counsel for the respondent submitted that this was a unique case in the sense that there had never been a situation where the dead time in question had been of this magnitude. The closest case was that of Osborne, where a period of two years dead time, incurred ten years previously, had been given full credit in respect of later offending.
Also in oral argument, the respondent resiled from his concession that the judge erred in the way that she took into account dead time. The respondent submitted that, to the contrary, the judge was correct to perform an arithmetic calculation deducting the relevant dead time from a sentence first synthesized from all other relevant factors. It was submitted that sentencing in this way would ensure that all dead time was relevantly and properly taken into account, whereas merely synthesizing the dead time with all other relevant factors risked failing to take that matter fully into account. In support of this submission, the respondent relied upon appellate decisions that appeared to show precise amounts of dead time being deducted from sentences otherwise arrived at by intuitive syntheses.[28]
[28]See, eg, R v Solovastru [2005] VSCA 254 and Wheldon v The Queen (2011) 31 VR 297.
The present case was also said to be unique since the respondent had been in custody in relation to an offence that turned out not to have been capable, in law, of having been committed, namely aiding and abetting defensive homicide.
It was submitted that it had been reasonably open to the judge to take into account the entire period of dead time, and that no House v The King error could be demonstrated. It may have been preferable to have taken that period into account in a different way, as for example, by reducing the amount of cumulation with regard to the individual sentences imposed.[29] Nonetheless, the judge had acted appropriately by spelling out how she had taken dead time into account, so that it was clear from her sentencing remarks that she had not ignored the importance of giving weight to that factor.
[29]That was the course adopted in R v Solovastru [2005] VSCA 254.
Senior counsel accepted that there might be other ways in which dead time could be accommodated. For example, it could be taken into account in a ‘broad way’, as suggested in Renzella. At the end of the day, however, what informed the manner in which the discretion should be exercised was ‘the justice of the case’.
When questioned by the Court as to whether a person who had twenty years of dead time accumulated, having been wrongly convicted of murder, could call that entire period in aid in respect of subsequent serious offending, senior counsel sensibly disavowed any such contention. However, the example postulated was far removed from the present case, and it had been reasonably open to the judge to treat dead time as she had.
Finally, it was submitted that even if ground 1 were made good, the appeal should still be dismissed unless ground 2, complaining of manifest inadequacy, was established.
Ground 2
The written case filed on behalf of the respondent submitted that both the total effective sentence ultimately imposed, five years and three months, and the non-parole period of two years and five months, were within range. It was submitted that this was so having regard to the ‘unique and compelling constellation of mitigating factors’ that were present.
In that regard, it was noted that the respondent’s cooperation in offering to give evidence against his co-accused, had properly attracted a significant discount. The prosecutor on the plea had conceded that it should do so.
Reference was made to R v Johnston,[30] where Nettle JA observed that a discount of 50 per cent, or perhaps even as much as two thirds, might be warranted in a case involving a high degree of cooperation. The judge had fully appreciated the importance of the respondent’s assistance as a mitigating factor, particularly since he had put himself at serious risk by his willingness to cooperate.
[30](2008) 186 A Crim R 345.
As regards the level of the respondent’s criminality, it was submitted that while it was significant, it was also limited. It was said that he was not a principal in this enterprise, not having been involved in distilling or selling the drugs. While the quantities were ‘substantial’, that was but one factor to be considered in determining the objective gravity of the offending.
It was noted that the prosecutor below had initially submitted to the sentencing judge that, notwithstanding the plea of guilty, this was a case that called for the imposition of the maximum penalty, on charge 2, of 25 years’ imprisonment. On any view, that was a submission that was devoid of merit, given that the respondent had pleaded guilty to that charge, and was entitled to a discount on that basis alone. We interpolate to say that it is still unclear how the judge instead imposed a sentence of four years’ imprisonment with regard to the trafficking in the vast amount of 1,4-BD that formed the basis of charge 2.
Of course, the prosecutor ultimately resiled from the ill-conceived initial submission that the maximum sentence was appropriate for that charge. However, that occurred only after the respondent had decided, during the course of the plea, to assist the authorities by giving evidence against his co-offenders. Once again, we interpolate to say that even a 50 per cent discount, based on cooperation, cannot properly explain how the figure of four years was arrived at.
Unsurprisingly, in answer to ground 2, the respondent also relied upon an allowance being made for dead time.
With regard to the orders for cumulation, the respondent noted that although the prosecutor on the plea had submitted that some such cumulation was warranted, there was a concession that it might be ‘minor’. This was explained on the basis that the cumulation would only arise because there were separate substances involved in what was, in effect, a single enterprise of trafficking drugs. In fact, according to the respondent, the level of cumulation had been ‘considerable’ rather than ‘minor’. It represented 50 per cent of the sentences on charges 2 and 4 respectively.
Finally, in the written submissions, the respondent invoked the principle of totality. It was submitted that if one were to treat the discount for cooperation as being worth 50 per cent, the notional total effective sentence that her Honour imposed was one of 16 years and seven months imprisonment.[31] It was submitted that any such sentence would be far from manifestly inadequate.
[31]That figure seems to make no arithmetic sense, since twice the eight years and seven month total effective sentence notionally imposed, would be 17 years and two months.
In oral submissions before this Court, senior counsel for the respondent emphasised what he contended had been the limited role played by his client in this offending. The respondent had not imported the drugs, and had made no decisions regarding how it was to be distributed, or sold. There was no evidence that he actually received any payment for his involvement in trafficking the drugs.
It was submitted that his motive for becoming involved had been a desire to ‘drive fast cars’, a proposition that had not been challenged on the plea. When one combined his early plea of guilty, his cooperation and assistance in implicating a number of others, at great personal risk to himself, and gave full effect to dead time, it could not be said that the sentence of five years and three months, with a non-parole period of two years and five months, was wholly outside the range. Moreover, the individual sentences on charges 3 and 4 were said to be within range when regard was had to the discount for cooperation and assistance.
Finally, and as a last resort, it was submitted that this was a case for the exercise of the residual discretion to dismiss this appeal, even if the sentence were thought to be manifestly inadequate. In that regard, senior counsel noted that the respondent’s non-parole period has already expired (having regard to pre-sentence detention), and that the respondent had stood to gain nothing from his involvement in this criminal enterprise.
Conclusion
Ground 1
The problem of how to deal with dead time has troubled sentencing judges in this State for many years. It stems from the fact that the commencement date of a sentence of imprisonment cannot, under Victorian law, be back dated. Service of the sentence can, however, be treated as having commenced earlier than the date upon which it was imposed. That is through what has been described as the ‘device’[32] of allowing credit for pre-sentence custody.
[32]Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (2014, Lawbook Co. 3rd ed), 825.
The modern law on this subject dates back to R v Renzella.[33] There, this Court was faced with an appeal against conviction, and a cross-appeal by the Director of Public Prosecutions against sentence. The appeal against conviction succeeded. However, the Court went on to say something about the cross appeal against sentence.
[33][1997] 2 VR 88.
In a joint judgment (Winneke P, Charles and Callaway JJA), observed that s 18(1) of the Sentencing Act 1991, as it then stood, applied only where an offender had been sentenced to a term of imprisonment, and there was a period of time during which he or she had been held in custody in relation to proceedings for that offence, and for no other reason.[34] In other cases, the section was silent. A court was therefore not only empowered, but obliged as a matter of justice, to take into account the period of pre-sentence detention, unrelated to the offence specifically the subject of the sentence.
[34]This was the language of s 18 as it stood at the time.
In other words, Renzella recognised dead time of the kind specified as a relevant factor to be taken into account in reducing an otherwise appropriate
sentence. It did so pursuant to what it considered to be common law principle.[35]
[35]The Court sourced the common law principle that it identified at least as far back as 1971. See R v Judge Frederico; Ex parte Attorney-General [1971] VR 425.
Subsequently, s 18 was extensively amended. Irrespective of the problems associated with the construction of the section in its present form, it is clear that a sentencing judge can, in appropriate circumstances, invoke the Renzella discretion to take earlier custody into consideration when fixing an appropriate sentence.
The Renzella approach has not been universally welcomed. In R v Arts and Briggs,[36] Callaway JA observed that ‘time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody’. His Honour went on to say:
It has in our experience been the practice to assume that all periods of custody before sentence, other than custody wholly unrelated to the offences for which sentence is passed, will count against the period of the sentence to be served.[37]
[36][1998] 2 VR 261.
[37]Ibid 265 (emphasis in original) citing R v Governor of Brockhill Prison; Ex parte Evans [1997] QB 443, 462 (Lord Bingham CJ).
The principle recognised in Renzella stemmed from the recognition that time spent in custody on an unrelated charge could not be taken into account as pre-sentence detention under s 18. Nothing in that section, in either its original, or present form, has the effect of removing that common law principle. Accordingly, detention to which s 18 does not apply can still be taken into account by way of reduction in sentence. A judge may take into account the whole, or any part, of the period during which the offender was in custody. The question is, in what circumstances and to what degree?
In Karpinski v The Queen,[38] Tate JA (with whom Weinberg and Mandie JJA agreed) observed:
The line of authority following Renzella in Victoria does not appear to support the view expressed in Brockhill Prison that custody wholly unrelated to the offences for which sentence is passed will not count against the period of the sentence to be served. The authorities which focus upon the exercise of the Renzella discretion do not appear to treat as a relevant question the issue of whether the offences before the judge imposing the sentence are related to the offences for which a discount is sought. Although, as Maxwell P and Weinberg JA remarked in Warwick, the detention discounted in Renzella ‘did relate to the offences for which the offender was being sentenced’, the line of authority applying Renzella has taken as its starting point that the offending, the detention for which a discount is sought, is unrelated to the offending for which the offender is being sentenced. However, this is not to deny the force of the limitation recognised by Callaway JA on the exercise of the Renzella discretion, namely, that a period spent in detention on a charge for which an offender is ultimately acquitted, or in relation to which charges are withdrawn, cannot be regarded as credit in a bank to be called upon to reduce a sentence for unrelated offending. There is no entitlement to a discount.[39]
[38](2011) 32 VR 85.
[39]Ibid 100 [60] (citations omitted).
It is perhaps worth noting that in Karpinski, Weinberg JA cautioned regarding the operation of Renzella dead time in the following terms:
I have no difficulty with the notion of credit being given for ‘dead time’, as explained by this court in R v Renzella. That case concerned an appeal by the Director of Public Prosecutions against a sentence on a charge of conspiracy. The principal ground of appeal was that the trial judge had erred in reducing both the head sentence and the non-parole period (pursuant to s 18(1) of the Sentencing Act 1991) by the period which the accused had spent in detention in relation to an unrelated charge. The court in Renzella recognised a general discretion, at common law, that would enable the time that the respondent had spent in custody awaiting trial on both the charge of conspiracy, and on the unrelated charge, to count as pre-sentence detention, in a broad way, in relation to the charge of conspiracy.
The circumstances of Renzella were somewhat special, in that the form of the legislation then under consideration virtually compelled the solution that was there adopted.
Since Renzella, there has been a steady growth in reliance upon so-called ‘dead time’ as a mitigating factor. In my view, however, Renzella ‘dead time’ is often now invoked in circumstances where its application is difficult to justify, either as a matter of logic, or in principle.
In Warwick v R, the court noted that the circumstances of that case, and many others like it, were entirely different from those which obtained in Renzella. Now, in many cases, the period of detention which is sought to be brought to account concerns conduct that is not only unrelated to the matters for which the accused stands to be sentenced, but also involves time that has been wrongly served in the past, and sometimes even the distant past.
Any accused who has been wrongly imprisoned is, of course, the victim of a grave injustice. It does not follow, however, that it is society’s duty to ameliorate that injustice by giving the accused credit for the time spent in custody when he is sentenced at a later time for entirely unrelated offending.
Despite my misgivings as to the current state of the law on this subject, I agree that the weight of authority requires that the appellant receive some credit for at least part of the time that he spent in custody on the charge of attempted murder.[40]
[40]Ibid 86–7 [3]–[8] (citations omitted).
In Fox & Freiberg,[41] the learned author, Professor Freiberg, comments that any reduction for dead time should normally be applied to both the head sentence and the non-parole period.[42] He goes on to cite Warwick v The Queen[43] in support of the proposition that there is no logical necessity for one to mirror the other.
[41]Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (2014, Lawbook Co. 3rd ed), 825.
[42]Ibid.
[43](2010) 201 A Crim R 580.
Plainly, as has repeatedly been made clear, the period treated as relevant to dead time should not be approached ‘with mathematical precision’.[44] In Karpinski, it was noted that the more recent approach, has been to allow something less than the entire period of pre-sentence detention, and certainly it is not necessary to credit the whole of that period.[45]
[44]Kheir [2012] VSCA 13 [16]–[18].
[45]Karpinkski (2011) 32 VR 85 [73]. Cf Kheir [2012] VSCA 13 and Jojic [2017] VSCA 77.
The judge in the present case did not indicate why she considered that the whole of the period in custody, on the unrelated charges, should be taken into account in the way that she did.
Plainly, there are some circumstances where it would be quite wrong to give credit for the entire time spent in custody in respect of unrelated offending. As previously noted, an offender who had served a very long sentence, before ultimately being acquitted on appeal, would be entitled to almost free rein in terms of committing another serious offence if dead time were automatically treated as fully applicable.
Had we been tasked with dealing with the dead time invoked in this case, we would not have taken the whole of the period into account. The earlier matters with which the respondent had been charged, and in relation to which he had been incarcerated, were entirely unconnected to the drug charges that he faced in this case. More importantly, those earlier matters were substantially removed in time from the trafficking offences the subject of this appeal.
While it was appropriate to afford some recognition to that period as warranting some reduction in sentence, it was highly questionable whether the entire period should have been treated in that way. In part, it contributed to the imposition of a total effective sentence and a non-parole period that were manifestly inadequate.
Despite our misgivings about the weight which her Honour accorded to the dead time in this case, we are not persuaded that House v The King error has been demonstrated. The fact that we would not have given this factor the weight that her Honour clearly did is not sufficient to vitiate the exercise of her discretion. Ground 1 must be rejected.
Our view about this will only become relevant if we conclude (as we have) that one or more of the sentences imposed by the judge were manifestly inadequate and that the appeal should be allowed on ground 2 and the respondent resentenced.
Ground 2
With regard to ground 2, we are firmly of the view that the individual sentences on charges 2, 3 and 4, as well as the total effective sentence of five years and three months’ imprisonment, are manifestly inadequate. Moreover, in our view, the dead time in this case should now be taken into account in a ‘broad way’ as suggested in Renzella.
With regard to charge 2, this involved organised crime at a high level. It concerned trafficking in drugs with a street value of tens of millions of dollars.
The respondent had prior convictions for trafficking. He played a significant role in the storage and transportation of this vast quantity of drugs. His position within the organisation could not be described as other than important.
When one takes into account the assistance that he had offered in giving evidence against his co-accused, he was plainly entitled to a significant discount on sentence. However, irrespective of what that discount might have been, it would not take him anywhere near the four years’ imprisonment, on a 25 year maximum, that he received for his involvement in this offence.
In reality, the sentence on charge 2, even after allowance had been made for cooperation and assistance, dead time, and having regard to all relevant mitigating factors, had to be, at a minimum, close to double figures. We would impose a sentence of eight years’ imprisonment on that charge.
In our view, the sentence of five years’ imposed on charge 3 was also, itself, manifestly inadequate. It must be remembered that that charge involved some 11 times a large commercial quantity of the drug ecstasy, and carried a maximum of life imprisonment. We would impose a sentence of seven years’ imprisonment on that charge. Again, that figure takes into account cooperation, dead time, and all relevant mitigating factors.
In relation to charge 4, trafficking in 640 grams of methylamphetamine, a sentence of the order of four years’ imprisonment was required, even taking into account the plea of guilty, and the credit due for dead time.
With some ‘minor’ orders for cumulation, we would arrive at a total effective sentence of nine years’ imprisonment and fix a non-parole period of six years.
Finally, we should say that the appellant has persuaded us that there are no circumstances in this case which justify the exercise of the residual discretion. The respondent submitted that while he remains in custody, his non-parole period has expired. We do not regard this factor or any of the other circumstances of this case as being a basis for the exercise of the residual discretion. To the contrary, the manifestly inadequate sentence imposed by the judge for the respondent’s very serious offending require correcting by the allowing of this appeal and the resentencing of the respondent in the manner set out below.
Accordingly, we would allow the appeal and set aside each of the sentences imposed below. In lieu thereof, we would sentence the respondent as follows:
Charge
Offence Maximum penalty Imprisonment imposed Cumulation 1 Recklessly causing injury
[s 18 Crimes Act 1958]5 years 2 months Nil 2 Trafficking in a drug of dependence (commercial quantity) – 8 tonnes of 1,4-BD.
[s 71AA Drugs, Poisons and Controlled Substances Act 1981]25 years 8 years Base 3 Trafficking in a drug of dependence (large commercial quantity) – 39,012 ecstasy tablets.
[s 71(1) Drugs, Poisons and Controlled Substances Act 1981]Life 7 years 9 months 4 Trafficking in a drug of dependence (commercial quantity) – 640 grams of methylamphetamine.
[s 71AA Drugs, Poisons and Controlled Substances Act 1981]25 years 4 years 3 months 5 Trafficking in a drug of dependence (commercial quantity) – 9.51 kilograms of cannabis.
[s 71AC Drugs, Poisons and Controlled Substances Act 1981]15 years 1 year Nil Total effective sentence: 9 years’ imprisonment Non-parole period: 6 years S 6AAA declaration: 12 years a non-parole period of 8 years Other relevant orders:
Undertaking noted (pursuant to s5(2AB) of the Sentencing Act 1991).
Sentenced as a serious drug offender on charges 3 and 4 (pursuant to s6F of the Sentencing Act 1991).
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