DPP v Richardson

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0193

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
JAMES RICHARDSON	Respondent

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JUDGES:	EMERTON P, PRIEST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2023
DATE OF JUDGMENT:	12 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 241
JUDGMENT APPEALED FROM:	[2022] VCC 2060 (Judge Brookes)

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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Trafficking in large commercial quantity of drug of dependence – Where offender already serving sentence – Where offending breached parole – Where offender suffered stroke and had acquired brain injury – Total effective sentence 4 years – Non-parole period 3 years – Sentence to be served cumulatively upon sentence currently being served – Whether sentence manifestly inadequate – Whether too much weight given to R v Verdins factors – Whether judge erred in application of totality principle – Whether judge erred in application of principle of mercy – Appeal dismissed.

Criminal Procedure Act 2009, ss 207–9; Drugs, Poisons and Controlled Substances Act 1981, ss 71, 73; Crimes Act 1958, s 195; Bail Act 1977, s 30B; Corrections Act 1986, s 78A; Sentencing Act 1991, ss 5(2)(b), 6D, 16(3B).

Director of Public Prosecutions v Jabbour [2023] VSCA 204, Director of Public Prosecutions v Leach (2003) 139 A Crim R 64, R v Clarke [1996] 2 VR 520, R v Osenkowski (1982) 30 SASR 212, Director of Public Prosecutions v Bowen (2021) 65 VR 385, applied.

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Counsel
Appellant:	Mr B F Kissane KC with Mr L McAuliffe
Respondent:	Mr J Gullaci SC with Ms C Ives
Solicitors
Appellant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Victoria Legal Aid

EMERTON P
PRIEST JA
TAYLOR JA:

Introduction

On 26 October 2022, following a sentence indication given by the sentencing judge in the County Court of Victoria,[1] the respondent pleaded guilty to five drug charges, including a charge of attempting to traffick a large commercial quantity of 1,4‑Butanediol (‘1,4-BD’) contrary to s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’), and three related summary charges.
[1]See generally Criminal Procedure Act 2009, ss 207–9.
The quantity of 1,4-BD trafficked for the purposes of charge 1 was 100 kgs, which was five times the amount of a large commercial quantity, as defined.
On 21 November 2022, the respondent was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Attempt to traffick in a drug of dependence (1,4-BD) in a large commercial quantity, contrary to s 71(1) of the Drugs Act	Life and 5,000 penalty units	4 years’ imprisonment	Base
2	Possession of a drug of dependence (methylamphetamine), contrary to s 73(1) of the Drugs Act	1 year’s imprisonment and/or 30 penalty units, or 5 years’ imprisonment and/or 400 penalty units[2]	6 months’ imprisonment	N/A
3	Possession of a drug of dependence (1,4‑BD), contrary to s 73(1) of the Drugs Act	1 year’s imprisonment and/or 30 penalty units, or 5 years’ imprisonment and/or 400 penalty units	6 months’ imprisonment	N/A
4	Possession of a drug of dependence (buprenorphine), contrary to s 73(1) of the Drugs Act	1 year’s imprisonment and/or 30 penalty units, or 5 years’ imprisonment and/or 400 penalty units	6 months’ imprisonment	N/A
5	Possession of a drug of dependence (testosterone and nandralone), contrary to s 73(1) of the Drugs Act	1 year’s imprisonment and/or 30 penalty units, or 5 years’ imprisonment and/or 400 penalty units	3 months’ imprisonment	N/A
Related Summary Offences
8	Deal with property suspected to be proceeds of crime, contrary to s 195 of the Crimes Act 1958	2 years’ imprisonment	3 months’ imprisonment	N/A
10	Commit indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977	3 months’ imprisonment or 30 penalty units	1 month’s imprisonment	N/A
11	Breach parole, contrary to s 78A of the Corrections Act 1986	3 months’ imprisonment and/or 30 penalty units	3 months’ imprisonment	N/A
Total Effective Sentence:		4 years’ imprisonment
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		1 day
Section 6AAA Statement:		Total Effective Sentence 7 years’ imprisonment NPP 5 years
Other Relevant Orders: 1. This sentence be served cumulatively upon any other sentence being currently served. 2. Forfeiture and disposal orders.

[2]The maximum penalty for possessing a drug of dependence is 1 year and/or 30 penalty units if the court is satisfied, on the balance of probabilities, that the offence was not committed for any purpose related to trafficking in that drug of dependence. Otherwise, the penalty is 5 years’ imprisonment and/or 400 penalty units: Drugs Act s 73(1). In his Reasons, the sentencing judge did not make a finding on this point.

The Director appeals the sentencing orders on the following ground:
The individual sentence on charge 1, the orders for cumulation and the total effective sentence and non-parole period are manifestly inadequate.
The sentences imposed were consistent with the sentence indication.[3] The respondent submitted that, if the appeal were allowed, imposing a period of imprisonment of more than 4 years without permitting him to withdraw his guilty pleas would produce injustice.
[3]Section 209(1) of the Criminal Procedure Act 2009 provides: ‘If … the court gives a sentence indication under section 207; and … the accused pleads guilty to any charge to which the sentence indication relates at the first available opportunity … the court, when sentencing the accused for the offence, must not impose a more severe sentence than the sentence type or maximum total effective sentence indicated.’
However, this issue does not arise, because, for the reasons that follow, we would dismiss the appeal.

Circumstances of the offending

During the period from 22 May 2021 to 28 July 2021, the respondent ordered and paid for 100 kgs (or litres) of 1,4-BD to be sent from China to Australia.[4] For the purposes of ss 71(1) and 73(1) of the Drugs Act, 1,4-BD is a drug of dependence.[5] When 1,4-BD is ingested, it is rapidly absorbed and metabolised to form gamma hydroxybutyrate (‘GHB’).
[4]See DPP v Richardson [2022] VCC 2060, [1], [14]–[20] (‘Reasons’).
[5]See Drugs Act, s 4(1) (definition of ‘drug of dependence’), sch 11 pt 3.
A mixture of 1,4-BD and another substance weighing 20 kgs or more is a large commercial quantity of 1,4-BD.[6]
[6]See ibid s 70(1) (definition of ‘large commercial quantity’), sch 11 pt 3.
Police first learned of the respondent’s activities when they arrested him on 30 June 2021 for breaching a condition of his parole in relation to earlier offending. He was taken to Frankston Police Station, where his property was lodged. While the respondent was in the cells, his mobile phone continued receiving messages and phone calls. A protective custody officer picked up the respondent’s phone. He noticed that the phone was protected by a passcode, but tried the respondent’s date of birth and was able to access the contents of the phone. The phone contained images and conversations relating to the order and shipment of 100 kgs of 1,4-BD from Shanghai, China.
The police released the respondent later that day but retained his phone.
On 28 July 2021, police attended the Melbourne Container Examination Facility and executed a search warrant. They located and seized four 25 litre drums of 1,4-BD. They did not attempt a substituted delivery as they had the evidence of the respondent’s involvement in the importation that was on his mobile phone.[7]
[7]Reasons, [20].
On 30 August 2021, police executed a search warrant at the respondent’s residential address. During their search, they located bank cards that were not in the respondent’s name and a variety of other drugs. They arrested the respondent, who was on bail and on parole at the time.[8]
[8]Reasons, [21]–[22], [34].
Evidence about the shipment of 1,4-BD on the respondent’s phone was contained in messages between the respondent (calling himself ‘Michael Dugless’) and an unknown person. These communications included the following:
(a)On 2 June 2021, the unknown person sent the respondent photographs of four wooden boxes containing silver plastic bags and confirmed that he had packed 100 kgs of the goods.[9]
(b)On 11 June 2021, the unknown person advised the respondent that the shipment had sailed the day before and requested identification.[10]
(c)In response to the request for identification, the respondent forwarded photographs of a Victorian driver’s licence, a Medicare card and a Working with Children Check card in the name of another person. The respondent confirmed that he had created a company and logo. He explained that his previous company, Richardson Plastics, was legitimate and manufactured ABS plastics and polyurethane, but that the Australian Federal Police had intercepted him with 3.76 tons of 1,4-BD. He stated that the new company had no ties to him whatsoever; ‘even the email address was fabricated for this purpose’.
(d)On 15 June 2021, the respondent asked the person his opinion on whether it was wise to begin processing another order or to wait to see the outcome of this one. The respondent was advised to wait for the shipment to reach the address and he responded with, ‘Okay. No problem and if it is successful can we put through an order for 500 kilograms or a tonne next time, please.’[11]
(e)On 23 June 2021, the respondent was told that the ship was leaving Shanghai the following day. The respondent expressed surprise that the ship had not yet left China and concern that it had taken over three weeks to do so. He texted: ‘the only major problem is that in order for consistency and longevity of the product a month at most is already exuberant [sic]’.
[9]Reasons, [9].
[10]Reasons, [9].
[11]Reasons, [12].
Police also found the following material on the respondent’s phone:
(a)a screenshot provided by the unknown person showing the details of the ship carrying the shipment of 1,4-BD;
(b)photographs showing that the amount to be paid for the 1,4-BD was USD3,240 and the details of the bank account into which the money was to be paid;
(c)a screenshot of the respondent’s bank account confirming the transfer of AUD3,291.42 to the relevant bank account; and
(d)screenshots of Michael Dugless’ profile. The image depicts details of the alias identity with a recorded address of 9 Ireland Street, Ringwood, Victoria, and a mobile phone number that was utilised by the respondent and the Hong Kong company to which the bank account belonged.
Various messages to a number of contacts were also located on the respondent’s phone relating to the supply of 1,4-BD to other persons.[12]
[12]Reasons, [16].
Using the information found on the respondent’s phone, police were able to ascertain that the shipment was to be delivered to 9 Ireland Street. Warrants executed on the respondent’s bank account confirmed that on each of 22 and 23 May 2021, the respondent had made a payment of AUD3285.42 to the Hong Kong company. Thus, across the two days, the respondent paid approximately $6,500 to that entity.
The GPS tracking device worn by the respondent as a condition of his parole revealed that, on 10 July 2021, he was in the vicinity of 10 Ireland Street.[13]
[13]Reasons, [18].
When, on 30 August 2021, police executed a search warrant on the respondent’s residential address, they found the following:
(a)three small bottles of 1,4-BD;
(b)a Ziploc bag of methylamphetamine;
(c)1.4 grams of buprenorphine;
(d)three vials of steroids;
(e)a Commonwealth Bank card in the name of Robert Rune;
(f)a Visa debit card in the name of Minh Nguyen;
(g)an invoice from the company to which the respondent made payments on 22 and 23 May 2021.[14]
[14]Reasons, [21], [31].
Following his arrest, the respondent participated in a record of interview in which he stated:
(a)He had been living with his mother.
(b)He had had a stroke either at the end of 2020 or the start of 2021.
(c)He did not use any drugs.
(d)He had bad anxiety and felt like ‘absolute shit’. He had not left the house since the stroke. He very rarely interacted with people as it made him anxious. He had mental and physical damage from the stroke.
(e)A friend had stolen his laptop and had ‘gone berserk’ on his bank and phone accounts.[15]
[15]Reasons, [23].
(f)The phone seized by police on 30 June 2021 did not belong to him. He had purchased it in order to resell it, and had been in the process of wiping it. He had not been using that phone as a mobile phone. He had only had it for a couple of days or a week prior to its seizure by police. He did not use the phone to contact anyone or have conversations in relation to the purchase of 1,4-BD.
(g)When the messages and photographs of the containers were put to him —
It doesn’t look like my name on it. Can you tell me anything about it?[16]
[16]Reasons, [25].
(h)He had not sent the messages; a friend had been using his identity —
I can’t read and write properly any more. Have a look at my text messages. … I can’t read and write properly with dyslexia. That … whole thing is a load of crap straightaway because — look at the date on it. … And then look at the text messages and the … language that I’m speaking in. So … there’s a … pretty obvious fatal flaw there that I’m not the person talking in those messages.
(i)When told about the crates seized by police and asked if he could tell the police anything about them —
Where’s it going? Where’s the crate forwarder? Well, it’s not going to my house, is it? It’s not going to me so how can you assume it’s me it’s going to be — it’s going to be me?
(j)When asked what his intent was in relation to the 100 kgs of 1,4‑BD —
I haven’t made the order so I don’t know. I had no intents as far as that was concerned to me. So, again, I suggest you go to the house that it was delivered to or delivery to. Speak to the people there.
(k)When asked if he had any associates in Ringwood —
I haven’t left my house for the last eight months so I’ve apparently done all of this, what, from my bedroom?[17]
(l)With respect to the GPS tracking —
You know exactly where I’m at, where I’ve been at. Have a look, you’ve got the GPS — if … it’s on my tracking … that wouldn’t even provide a nail in the head.
(m)When asked if he could recall what he had purchased for $6,500 in May —
I dunno … it’s something I’ve bought or … I’m not sure. But my — my numbers are stuffed now. My — my short term memory — I can’t even remember, like, yesterday.
(n)He did not know what the bottles of liquid located in his room contained. They did not belong to him. However, a bottle of 1,4-BD located elsewhere could have been his for personal use.
[17]Reasons, [30].
The respondent did not comment when asked about the methylamphetamine.[18]
[18]Reasons, [32].

Respondent’s circumstances

The respondent’s personal circumstances, history of drug use, psychological state and cognitive impairments are described in detail in reports prepared by the neuropsychologist who assessed him for the purpose of the plea, Ms Laura Scott. Ms Scott interviewed the respondent and carried out a battery of psychological tests.
Ms Scott took a history from the respondent, which was corroborated in large part by his mother. She also had access to contemporaneous medical and other records, as well as the respondent’s criminal record, excerpts from the hand-up brief, and the prosecution opening for the sentence indication hearing.
Ms Scott prepared reports dated 21 June 2022 (‘first report’) and 21 October 2022 (‘second report’) that were tendered on the plea. The second report was prepared in order to clarify the relationship between the respondent’s offending and his mental state. It refers to and replicates the first report in large part, with several significant additions.

Personal history

The respondent was born in 1984 and was 35 years’ old at the time of the offending. He was one of six children. He described his childhood as stable, with no exposure to traumatic events. He reported having had a good upbringing (‘my parents gave me every opportunity … my choices lead me to where I am’). His parents separated when he was 15 years’ old.
As a young child, the respondent was diagnosed with obsessive-compulsive disorder. He underwent regular psychotherapy to treat the disorder until he was 18 years’ old. When he was 13 years’ old, he was diagnosed with ADHD. He also reported being diagnosed with bipolar disorder at that age, along with anxiety and depression, and told Ms Scott that he experienced suicidal thoughts and engaged in self-harming behaviours.
The respondent described himself as an average student academically. He completed school to Year 9 but was frequently inattentive in class. He went on to complete a diploma in Information Technologies at Holmesglen TAFE over three years. He then undertook a Diploma of Multimedia Design, which he completed in a further two years. He also completed a six-month certificate as a Microsoft Certified Systems Engineer.
The respondent worked as an IT professional from ages 17 to 26. He told Ms Scott that his drug use ultimately prevented him maintaining employment in his field.
The respondent used drugs extensively from early adolescence. He reported smoking cannabis daily from the age of 13, which continued until he started to suffer anxiety attacks at the age of 19. The respondent began to use amphetamine (speed) and GHB when he was 28. He reported overdosing on GHB on at least two occasions. He also began smoking ice, using it daily until he was incarcerated at the age of 30.
In September 2013, the respondent was involved in a serious motorcycle accident. He had been using GHB and methamphetamine. It is not clear if he lost consciousness. However, he reported losing 20 kgs in a short period of time after the accident and using drugs to cope with the incident.
The respondent reported being introduced to prescription opioids (buprenorphine) in custody. He was taking 4 mg per day before moving to prescribed methadone. He denied any illicit use of benzodiazepines or any other prescription opioids, but reported occasional use of ecstasy.
The respondent reported several losses of consciousness following assaults in custody.
In November 2020, while on parole, the respondent suffered a stroke, resulting in an acquired brain injury (‘ABI’). A brain CT scan found areas of cytotoxic oedema involving the left parietal and temporal lobes, with a separate area of low attenuation in the left frontal lobe. An MRI confirmed an acute dissection (internal tear) of the left internal carotid artery, causing more than 50 per cent stenosis (restriction of blood flow). This caused an acute infarction (stroke) of the left frontal, parietal and temporal lobes.

Criminal history

The respondent’s criminal history is extensive. His criminal record dates back to 2002, and includes numerous charges relating to drug offences, weapons offences, stalking (without conviction), reckless conduct endangering life, crimes of dishonesty, driving offences and breaching orders. The respondent has received various community based orders for treatment conditions. He has also participated in the Drug Court.
Relevantly, on 20 May 2014, the respondent was convicted of possessing methylamphetamine and sentenced to an 18 month community correction order. He was also sentenced to 60 days’ imprisonment (reckoned as time served) for each of possession of material for trafficking in a drug of dependence and trafficking methylamphetamine.

On 13 November 2014, the respondent was convicted and discharged for using methylamphetamine.
On 21 December 2016, the respondent was sentenced to 4 years and 8 months’ imprisonment for the following offences:
(a)trafficking a drug of dependence in a commercial quantity;
(b)attempting to possess a drug of dependence;
(c)dealing with property suspected to be proceeds of crime; and
(d)trafficking a drug of dependence.
On 15 August 2017, the respondent was sentenced to 31 months’ imprisonment for rioting (while in prison). It was ordered that 9 months be served concurrently with the sentence imposed on 21 December 2016. The new total effective sentence was 6 years and 6 months’ imprisonment with a new non-parole period of 4 years and 2 months, commencing on 21 December 2016 (we shall refer to this combined sentence as the ‘2016 sentence’).
The offending that is the subject of the present appeal occurred while the respondent was on parole for the 2016 sentence.[19]
[19]Reasons, [41].
On 26 March 2018, the respondent was sentenced to 1 month’s imprisonment for possessing 1,4-BD. The magistrate ordered that his sentence be served concurrently with the 2016 sentence.

Neuropsychological reports

Based on the battery of neuropsychological tests that she administered, Ms Scott found the respondent to have moderate to severe impairments in higher attentional abilities, and in aspects of language and memory function. He also has mild impairments in working memory, visual memory and visuospatial abstract reasoning.
Ms Scott opined that the respondent’s neuropsychological profile was consistent with an ABI from the stroke in November 2020. It was also possible that he had sustained a hypoxic brain injury due to previous GHB overdoses, leading to significant memory impairment. According to Ms Scott, impairments due to his ABI would have been present at the time of offending and were likely to have been more severe than at the time of reporting.
Ms Scott considered that the respondent’s cognitive impairments would not reduce his ability to understand the wrongfulness of an action. However, his capacity for inhibitory control, clear thinking, calm reasoning and self-control is likely to have been less robust at the time of offending.
Ms Scott also found the respondent’s mental health to have deteriorated significantly following the stroke:
There was a clear and consistent account in the record that despite having had anxiety with features of catastrophising prior to the stroke, Mr Richardson’s mental health was much worse after the stroke. His mother contacted the care team on 9.3.21 reporting significant concerns about her son’s mental health. She was advised to contact [the] local psychiatric triage service and organise an urgent review with the CATT team (emergency mental health assessment service). Mr Richardson was reviewed by a psychiatric nurse on 16.3.21 via telephone. He presented as ‘quite unwell’ with paranoia, persecutory themes of being electronically monitored (eg by Optus, TPG, Google and Microsoft), grandiosity and thought disorder. His language was circumstantial, tangential and pressured. He required constant redirection to the topic. He was reportedly waking 12 times overnight though food intake was appropriate with supervision from his family. He was described as presenting with fixated thoughts, extreme anxiety and stress as well as irrational thinking but no acute suicidality.
In response to the question about the relationship between the respondent’s psychological condition and the offending, Ms Scott said:
[The respondent] presents with a history of similar offending as well as reporting heavy drug use around the time of offending which are well known risk factors for offending. However, there is clear evidence of an ABI in the months prior to offending and an acute deterioration in mental state just prior to the alleged offending. Significant symptoms of both of these conditions continue to be evident now after a year of abstinence from drugs and were likely to have been more severe at the time of offending due to the expected progression of natural recovery post ABI. As such, it seems reasonable to conclude that [the respondent’s] symptoms of ABI and mental illness were likely significant additional contributors to his decision making and offending behaviour at that time.
Ms Scott observed that the respondent’s ‘severe impairment in mental flexibility (attentional switching)’ meant that he tended to become fixated on a given idea or view, and struggled to weigh up the alternatives. This seemed to be a significant element of his reasoning when deciding to become involved in the offending. Although his executive functions were within expected limits on testing, there was evidence of some difficulty with problem solving and mild impulsivity even in the highly structured context of the neuropsychological assessment. According to Ms Scott, the respondent would be expected to demonstrate more executive dysfunction in real world, high pressure situations. Moreover, it was clear from the medical records, written communication and observations of the police interview that the respondent’s thinking was much more ‘disorganised, tangential and impulsive’ around the time of offending. He would have had significant difficulty thinking through the potential consequences of his choices.
In addition, Ms Scott recorded that the respondent’s psychological state was apparently ‘quite vulnerable’ around the time of offending. He reported that he offended in the context of feeling lonely after the stroke and wanting to maintain interpersonal relationships. He was experiencing significant and disabling anxiety at this time. His parole officer indicated this had been present pre-stroke but it seemed worse afterward. In this context he may have been more vulnerable to influence than previously. Furthermore, his acute impairments in cognition may have reduced his capacity to independently evaluate any suggestions made by his peers.
Finally, Ms Scott opined that all of the respondent’s cognitive and behavioural impairments would have been exacerbated by the effects of acute intoxication around the time of offending.

Sentence

The respondent sought a sentence indication on a plea of guilty to charges 1 to 5.[20] On 14 September 2022, the judge indicated that, if the respondent pleaded guilty to those charges as well as the summary charges, the court would likely impose a maximum total effective sentence of 4 years’ imprisonment cumulative on the sentences currently being served (that is, the 2016 sentence).
[20]See above [3].
The plea hearing took place on 26 October 2022. The judge duly sentenced the respondent to a total effective sentence of 4 years’ imprisonment with a non-parole period of 3 years, cumulative upon the sentences the respondent was then serving (the 2016 sentence).
In his sentencing remarks, the judge canvassed the respondent’s personal history and Ms Scott’s reports in a great deal of detail.[21] In addition to the matters set out above, the judge noted the following:
Regarding your decision to become involved in the attempted trafficking you reported that you’ve been approached several times whilst in gaol and after you were approached by drug using acquaintances who wanted you, ‘To do what I had done before’. You had refused to become involved prior to the stroke; however, after the stroke you changed your mind. You formed a belief that you had, ‘A method to do it’, without being caught by the police. You were attracted by the prospect of earning large sums of money. You decided to show a friend how to do it. You believed that since the material was not being delivered to you and since you were not buying it you would not be ‘tied to it’.
Looking back, you expressed a disbelief and incredulity at your thoughts and actions. You were readily able to appreciate that your thinking had been distorted, ‘I just didn’t think’. You strongly regretted your decision to become involved in the trafficking attempt, saying it was the worst decision you ever made. Several times during the interview you referred to this choice stating, ‘I don’t know what I was thinking. Now I can see it for what it is. I look back and think what the hell was I thinking, especially since I’ve done so much gaol time in the past’.[22]
[21]See Reasons, [42]–[89].
[22]Reasons, [56]–[57].
Based on the evidence of Ms Scott, the judge concluded:
I accept the evidence of Ms Scott that the physical conditions subsisting at the time after the stroke concerning the ABI impairment, together with the mental illness as described, was a significant contributing factor in your decision to commit the offences from which you fall to be charged.
…
Obviously the ABI is clear evidence of a compromised ability to function intellectually …[23]
[23]Reasons, [92]–[93].
In sentencing the respondent, the judge found that Verdins applied to the sentencing exercise in the following ways:[24]
(a)The respondent’s total mental impairment reduced his moral culpability. His ability to exercise appropriate judgment, make calm and rational choices, and appreciate the wrongfulness of the offending conduct was impaired. The need for punishment and denunciation was reduced (limb 1). His Honour stated:
I find that your total mental impairment has reduced your moral culpability of the offending conduct. I find that your ability to exercise appropriate judgment was impaired and that it impaired your ability to make calm and rational choices and impaired your ability to appreciate the wrongfulness of the conduct. Punishment can, therefore, be mitigated, and the need for denunciation is reduced …[25]
(b)General deterrence should be moderated as a consideration based on the nature and severity of the symptoms exhibited and the effect of them on the respondent’s mental capacity, at the time of the offending (and currently) (limb 3).[26]
(c)Specific deterrence should also be moderated based on the nature and severity of the symptoms exhibited and the effect on his mental capacity at the time of the offending (limb 4).[27]
(d)If a term of imprisonment were imposed, the respondent would find it more onerous due to his diagnosed conditions (limb 5).[28]
[24]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[25]Reasons, [94].
[26]Reasons, [95].
[27]Reasons, [95].
[28]Reasons, [95]. The judge addressed the considerations arising from limb 5 as referrable to ‘limb 2’. This appears to have been a typographical error.
The judge took into account the respondent’s plea of guilty at an early stage, stating that the respondent would be given the ‘normal discount’ that applies for such a plea.[29] His Honour also took into account the utilitarian value of a guilty plea during the COVID‑19 pandemic that was identified in Worboyes v The Queen.[30] His Honour stated that although the sentencing judge need not quantify the extent of any discount, the judge had to ensure that the plea of guilty resulted in a ‘perceptible amelioration of sentence’, and that he had endeavoured to follow this dictum.[31]
[29]Reasons, [97].
[30](2021) 96 MVR 344; [2021] VSCA 169 (‘Worboyes’).
[31]Reasons, [98], quoting Worboyes (2021) 96 MVR 344, 357 [39] (Priest, Kaye and T Forrest JJA); [2021] VSCA 169.
The judge noted that Parliament had amended the Drugs Act to specify a ‘large commercial quantity’ for 1,4‑BD, and had thereby increased the maximum penalty for trafficking 20 kgs or more of 1,4-BD from 25 years’ imprisonment and 3,000 penalty units to life imprisonment and 5,000 penalty units.[32] His Honour also recorded that the principles of general deterrence and denunciation are highly relevant in drug trafficking matters,[33] as is the protection of the community, given the harm caused by the sale of illicit drugs.[34]
[32]Reasons, [99]–[101], citing Victoria, Parliamentary Debates, Legislative Assembly, 6 February 2019, 231–2 (Lisa Neville, Minister for Police).
[33]Reasons, [102], citing Dawid v DPP [2013] VSCA 64, [35] (Kaye AJA).
[34]Reasons, [103].
The judge acknowledged that the sentence on charge 1 would normally attract condign punishment, in line with many of the cases to which he had been referred. However, because of the respondent’s compromised physical and mental health, the principle of mercy ran hand in hand with the sentencing discretion.[35] The judge also observed that he was not bound by comparable cases, and that current sentencing practices were just one of the matters that he was bound to consider.[36]
[35]Reasons, [105]–[106], citing DPP v Leach (2003) 139 A Crim R 64, 74 [48] (Eames JA) (‘Leach’); [2003] VSCA 96; R v Jurisic (1998) 45 NSWLR 209, 221 (Spigelman CJ).
[36]Reasons, [104], citing DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 (‘Dalgliesh’).
The judge accepted the submission that he should give effect to the principle of totality having regard to the fact that since his arrest on 6 August 2015 for drug-related offences, the respondent had been incarcerated for a period of 5 years and 8 months, in addition to a period when he was on parole. His Honour’s best estimate was that on the head sentence of 6 years and 6 months, the earliest the respondent would be released from imprisonment as a consequence of the 2016 sentence was June 2023.[37] He sentenced the respondent on the basis that he would face the equivalent of a head sentence in the order of 10 and a half years. This meant that a total effective sentence of 4 years should be imposed, cumulative upon the existing sentence. His Honour set a non-parole period of 3 years.[38]
[37]Reasons, [107].
[38]Reasons, [108].

Is the sentence manifestly inadequate?

Director’s submissions

The Director submitted the sentence on charge 1, the orders for cumulation and the total effective sentence and non-parole period are manifestly inadequate having regard to the following factors:
(a)The quantity of drugs that the respondent attempted to traffick was significant, being five times a large commercial quantity.
(b)The offending was sophisticated. The respondent provided the supplier with the driver’s licence of another person and a fake address, utilised a fake company name and paid a total of $6,570.84 to the supplier prior to the drug being shipped. His role in the offending was towards the highest end, being the principal and sole offender, and he stood to gain from the offending.
(c)The respondent had previously been sentenced to 4 years’ imprisonment for trafficking 4 kgs (a commercial quantity) of 1,4-BD. Police intercepted him while he was on parole for this earlier offending.
(d)Trafficking in a drug of dependence in a large commercial quantity is a standard sentence offence. The standard sentence for an offence under s 71(1) is 16 years’ imprisonment. While the standard sentence scheme does not apply to the offence of attempting to traffick a drug of dependence in a large commercial quantity,[39] it nonetheless also attracts the maximum penalty of life imprisonment. Trafficking and attempting to traffick would therefore be expected to attract similar penalties.
[39]Citing Sentencing Act 1991, s 5A(2).
According to the Director, the judge erred by failing to consider Ms Scott’s reports in the light of the nature of the offending and the fact that the respondent was, despite Ms Scott’s conclusions about his cognitive abilities, still able to commit the offences. Further, the judge erred by ordering that the individual sentences imposed on the charges following charge 1 be served concurrently with the sentence on charge 1.
The Director argued that the objective gravity of the offending was high, and that the mitigating factors did not outweigh the very large quantity of drugs and cash involved in the offending.
In short, the Director contended that, though Verdins was relevant, the judge gave too much weight to Verdins factors. In particular, given the seriousness of the offending and the respondent’s drug use, the ABI diagnosis could only have slightly reduced the respondent’s moral culpability and only slightly tempered the need for a sentence which effected general and specific deterrence. The Director submitted that the judge did not properly consider the respondent’s substance abuse issues, his previous offending for trafficking a commercial quantity of a drug of dependence, and the sophistication of the index offending.
With respect to limb 5 of Verdins, the Director submitted that the judge erred in finding that by reason merely of a diagnosis, the respondent would find a term of imprisonment more onerous. There was no evidence that the respondent’s particular condition(s) would have that consequence.
The Director referred to a number of cases involving large commercial quantities that attracted much higher sentences than the 4 years imposed on the respondent:
(a) in Bruce v The Queen,[40] the offender received a sentence of 12 years for trafficking 4.8 times a large commercial quantity of methamphetamine;
(b) in Al Janabe v The Queen,[41] the offender received a sentence of 10 years for trafficking 12 times a large commercial quantity of methylamphetamine;
(c) in Director of Public Prosecutions v Kumas,[42] the offender was resentenced to 10 years for trafficking 1.92 times a large commercial quantity of methylamphetamine and cocaine;
(d) in Quah v The Queen,[43] the offender received a sentence of 15 years for trafficking 3.8 times a large commercial quantity of methylamphetamine; and
(e)in Rahmani v The Queen,[44] the offender received a sentence of 9 years for trafficking 1.5 times a large commercial quantity on the basis of pure weight and 1.3 times a large commercial quantity on the basis of mixed weight of methylamphetamine.
[40][2022] VSCA 100, [5] (Maxwell P and Kennedy JA).
[41][2021] VSCA 252, [2], [24] (Priest JA, Kennedy JA agreeing at [38]) (‘Al Janabe’).
[42][2021] VSCA 215 (‘Kumas’).
[43](2021) 290 A Crim R 136, 139 [4], 139–40 [9]–[10] (Maxwell P and Beach JA); [2021] VSCA 164 (‘Quah’).
[44][2021] VSCA 51.
The Director submitted that, having regard to the amendment of the Drugs Act in 2019, sentences for trafficking a large commercial quantity of 1,4-BD had to increase to ensure appropriate sentencing relativities. Drug offences cause significant harm to the community and its most vulnerable members. Parliament created the offence of trafficking a large commercial quantity of a drug of dependence, with a maximum penalty of life imprisonment, in order to send the clearest message of deterrence to those who engage in large-scale drug trafficking.[45] General deterrence was a significant sentencing consideration in this case, along with just punishment.
[45]Citing 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; Al Janabe [2021] VSCA 252, [33] (Priest JA).
Moreover, the Director submitted that, pursuant to s 6D of the Sentencing Act 1991 (‘Sentencing Act’), the respondent had to be sentenced on charge 1 as a serious drug offender.[46] Section 6D(a) of the Sentencing Act required the judge to have regard to the protection of the community as the principal purpose for which the sentence was imposed. Moreover, s 6E provides that every term of imprisonment has, unless otherwise directed by the court, to be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
[46]Although the judge’s order did not reflect this requirement.
Furthermore, the Director submitted, the judge misapplied the principle of totality. The ultimate sentence in this case did not fairly represent the total criminality involved in all the offences for which the respondent was incarcerated.

Finally, the Director submitted that the judge misapplied the principle of mercy. Mercy is not an ‘at-large’ principle that can be used to justify a manifestly inadequate sentence. Rather, it must be exercised ‘upon considerations which are supported by the evidence and which make an appeal not only to sympathy but also to well-balanced judgment’.[47] According to the Director, the evidence in this case did not support a merciful approach.

Respondent’s submissions

[47]Quoting R v Kane [1974] VR 759, 766 (Gowans J for the Court).

Counsel for the respondent conceded that where an offence carries a maximum penalty of life imprisonment, 4 years is a lenient sentence. However, in this case there were significant mitigating factors that the respondent could call in aid. These factors caused the sentence, when viewed objectively, to fall within the range, albeit at its lower end.
Counsel emphasised the utilitarian value of the respondent’s plea of guilty. He submitted that the value of the plea was particularly high in this case because of the way in which the evidence of the trafficking was obtained. According to counsel for the respondent, there was a real, triable issue about whether the evidence found on the respondent’s phone was obtained legally. The respondent could have mounted an argument with quite reasonable prospects of success that the evidence was obtained illegally, which would have raised the question as to whether it should be excluded. This argument could have ‘catastrophically’ affected the prosecution case. Secondly, there was the high utilitarian value of the plea based on Worboyes, that is, by helping to reduce backlogs in the court system during the COVID-19 pandemic. There was a significant saving of court time by virtue of the plea and the utilisation of the very system that was put in place to assist in reducing the backlogs and the delays in the court.
The respondent submitted that while the penalty for trafficking a large commercial quantity of 1,4-BD is the same as the penalty for attempting to traffick a large commercial quantity of 1,4-BD, Parliament had determined that the standard sentence should not apply for attempt, indicating that there should be some differentiation between sentences for attempt and sentences for completed offences. Moreover, in this case there was only one attempt: a single transaction was organised for the importation of the 1,4‑BD.
The respondent further submitted that the offending was not sophisticated. He accepted that there was a level of planning, persistence and repetition of behaviour, but submitted that these factors were not necessarily indicative of sophistication. No great intelligence is required to commit a drug trafficking offence: it simply requires some communication and the placement of an order.
According to the respondent, his use of a false name and documentation in the name of another person did not indicate sophisticated offending. There was a lot of evidence pointing to his involvement. While he may have attempted to disguise his identity, there were other behaviours that were bound to lead the police straight to him: he used his own bank account and his own phone; he openly discussed the proposed transaction; he attended the vicinity of the delivery address wearing a GPS bracelet while on parole. Even the fact that the custody officer was able to access his PIN code showed his lack of sophistication and the fact that his judgement was questionable, at best.
The respondent submitted that the fact that he succeeded in arranging for the drugs to be brought into the country is not a reason why Verdins considerations should not apply. Verdins applies where an offence is committed, but due to impairments suffered by the offender, the significance of certain considerations that would otherwise feature prominently in the sentencing exercise is reduced.
Addressing the fact that he was both on bail and on parole when he offended, the respondent submitted that the bail was in relation to the possession of a relatively small quantity of 1,4‑BD and that he had been on parole for 16 months by the time of that offending. The index offending occurred six months after he had the stroke. This meant that for the first 10 months that he was on parole, he generally complied with the parole conditions and continued to do so for a further six months post-stroke.
As to the assessment of the gravity of the offending, the respondent submitted that it was necessary to distinguish between 1,4-BD and other drugs on the basis that 1,4‑BD is a ‘low value’ drug. It does not offer a significant financial reward. This is relevant to an offender’s moral culpability, the gravity of the offending and the need for specific and general deterrence.
On the question of totality, the respondent submitted that the sentencing judge was very alive to the fact that he had received a head sentence of 6 years and 6 months for the earlier offending. Moreover, he had been on parole for 16 months when the index offending occurred. The judge was entitled to and did look at the aggregate criminality involved in all of the offending. His Honour determined that an overall sentence of 10 years and 6 months was appropriate considering the aggregate criminality involved in both the current offence and the original offence. This was especially necessary in circumstances where, under s 16(3B) of the Sentencing Act, no part of the sentence could be served concurrently.

Consideration

Manifest inadequacy is a conclusion which does not depend on identifying any specific error of reasoning by the sentencing judge.[48] The only question is whether the Court is persuaded that the sentence was ‘wholly outside the range’ of sentencing options available to the judge.[49] It must be shown that something has gone ‘obviously, plainly or badly wrong’.[50] The Court must be ‘driven to conclude that there must have been some misapplication of principle’.[51]
[48]Dinsdale v The Queen (2000) 202 CLR 321, 325 [6] (Gleeson CJ and Hayne J); [2002] HCA 54.
[49]DPP v Karazisis (2010) 31 VR 634, 663 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at [1]); [2010] VSCA 350, quoting R v Boaza [1999] VSCA 126, [42] (Winneke P).
[50]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); [2011] VSCA 157.
[51]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39 (‘Pham’).
We consider that, having regard to all of the factors informing the sentencing discretion in this case, the total effective sentence and non-parole period, while lenient, were not wholly outside the range of sentences available to the judge. It follows that the sentence on charge 1 and orders for total concurrency on the other charges were also open to the sentencing judge. The non-parole period, being 75 per cent of the head sentence, was well within range.
There are three considerations that we consider to have been particularly significant in sentencing the respondent in this case:
(a)his disordered mental state, reducing his moral culpability and the need for general and specific deterrence;
(b)the utility of his early plea of guilty, having regard to the way in which the evidence against him was obtained by the police and its benefit in helping to reduce court backlogs at the time; and
(c)the principle of totality, which required the judge, charged with imposing a sentence that had to be served cumulatively on an existing sentence, to reach a sentence that was just having regard to the overall criminality involved.
These considerations form part of a sentencing synthesis that must accord due weight to the gravity of the offending on charge 1, given that the quantity of drugs imported was five times the amount of a large commercial quantity and the offence carries a life sentence. Furthermore, although there is no standard sentence for attempting to traffick a large commercial quantity of a drug of dependence, the standard sentence of 16 years’ imprisonment for the completed offence underscores the seriousness of the offence of attempt.
Moreover, the legislature has made clear by the introduction of separate, higher penalties for the trafficking of ‘large commercial’ quantities of drugs of dependence that such offences should, in principle, attract higher penalties than for trafficking in smaller ‘commercial’ quantities.
However, in Director of Public Prosecutions v Jabbour, a Director’s appeal against sentence for trafficking a large commercial quantity of a drug of dependence (MDMA), in response to the submission that the relativities imposed by the quantity based trafficking regime had to be reflected in sentencing, this Court said:[52]
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.[53]
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.[54]
[52][2023] VSCA 204, 56 (Emerton P, Beach and McLeish JJA) (‘Jabbour’).
[53]Pham (2015) 256 CLR 550, 562 [36] (French CJ, Keane and Nettle JJ).
[54]Ibid 564 [45] (Bell and Gageler JJ).
Accordingly, the fact that the judge was here concerned with a large commercial quantity of a drug of dependence was not determinative. It was necessary to have regard to all relevant circumstances in carrying out the sentencing exercise.
Moreover, in regard to current sentencing practices, the Court in Jabbour said this:
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.[55]
[55]Jabbour [2023] VSCA 204, [57] (Emerton P, Beach and McLeish JJA). See also Dalgliesh (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.
We have reviewed the comparable cases relied on by the Director. There are a variety of factors in those cases that cause them to be of limited assistance: for example, the presence of firearms and very large sums of money. None of them attracted Verdins considerations of the particular kind relevant to this case.
In this case, the respondent’s brain injury was a significant factor in the sentencing exercise, especially when combined with his poor mental health.
There was solid evidence from Ms Scott that the respondent suffered from a brain injury that affected his judgement and meant that he would have had significant difficulty thinking through the consequences of his choices. Ms Scott opined that the respondent’s symptoms of ABI and mental illness were ‘likely significant additional contributors to his decision making and offending behaviour at [that] time’, that his ‘severe impairment in mental flexibility (attentional switching)’ meant that he tended to become fixated on an idea or view and he struggled to weigh up the alternatives, that ‘[h]e would have had significant difficulty thinking through the potential consequences of his choices’ and that ‘[h]is limited capacity to think through the potential risks of his actions would have increased the risk of offending’.
In addition to Ms Scott’s findings, the respondent’s mother stated that following his stroke it was ‘extremely difficult caring for him’ and that his anxiety and confusion were ‘extreme’. While he ‘gradually improved with speech and auto correct on devices’, his ‘memory loss, comprehension, organisational skills, learning new information and confusion remained with the impairment’. According to his mother, the respondent was ‘not the man he used to be’.
None of this evidence was challenged. The judge found that the respondent’s ability to exercise appropriate judgement was impaired, in that his brain injury affected his ability to make calm and rational choices and impaired his ability to appreciate the wrongfulness of his conduct. In these circumstances, it was well open to the judge to find that the respondent’s mental impairment reduced his moral culpability for the offending, and that general and specific deterrence had less of a role to play in sentencing than would otherwise have been the case.
In our view, these conclusions were not undermined by the alleged ‘sophistication’ of his offending. We do not consider the offending to have been sophisticated. To the contrary, although the respondent used a false identity to arrange for the drugs to be shipped to Melbourne, what was required in order to organise the shipping was rudimentary. Furthermore, the respondent’s disordered thinking and lack of judgement meant that he left a clear trail leading directly to himself.
There is thus no tension between the judge’s application of limbs 1, 3 and 4 of Verdins and the nature of the offending. It was open on the evidence for the judge to find that the respondent’s moral culpability for the offending was reduced, and to conclude that the respondent’s ABI and compromised mental health should have a significant effect on the length of his sentence.
As for limb 5 of Verdins, in submissions prepared for the sentence indication, the prosecutor conceded its application. In any event, there was evidence to support the judge’s finding that the respondent’s brain injury would make his time in prison more onerous than it would be for persons without such an injury. According to Ms Scott, the respondent’s remand in August 2021 meant that he did not have ‘the benefit of multidisciplinary rehabilitation during a sensitive period of brain recovery post-stroke’ which has ‘likely had a significant impact on his rate of recovery and the ultimate end point of his recovery trajectory’. It may be inferred that on an ongoing basis the respondent’s difficulties in reasoning and his poor judgement will make dealing with the complexities of prison life more difficult than for a prisoner without those disabilities.
Furthermore, we consider that it was open for the judge to exercise mercy on the facts before him. There are no metes or bounds on the exercise of mercy. This Court has observed that the exercise of mercy towards an offender forms an integral part of the sentencing discretion.[56] In R v Clarke,[57] Charles JA (with whom Winneke P and Hayne JA agreed) referred with approval to the observations of King CJ in R v Osenkowski[58] to the effect that the boundaries of a case in which the principle of mercy may apply are not fixed. This Court has also observed that sentencing judges have the ‘very important right’ to extend leniency to an offender in a case, ‘even if it is difficult to identify precisely what it is about the offender which leads to that conclusion’.[59]
[56]Leach (2003) 139 A Crim R 64, 74 [49] (Eames JA); [2003] VSCA 96.
[57][1996] 2 VR 520, 523 (Winneke P agreeing at 524, Hayne JA agreeing at 524) (‘Clarke’).
[58](1982) 30 SASR 212, 212–13 (King CJ) (‘Osenkowski’).
[59]Leach (2003) 139 A Crim R 64, 74 [49] (Eames JA); [2003] VSCA 96.
We also accept the respondent’s submission that his plea of guilty had real utilitarian value in the context in which it was made and that it justified a significant reduction in sentence. Not only did it avoid the need for a potentially lengthy trial, the respondent forfeited his right to pursue an argument available to him regarding the legality of the search of his mobile phone from which the primary evidence against him was obtained.
Finally, we do not consider that the judge erred in applying the principle of totality to impose a sentence that was shorter than would have been required had the offending stood on its own and, in lieu of imposing concurrent sentences (which he was not permitted to do), to shorten the head sentence.
The Director did not dispute that the existence of the 2016 sentence enlivened the principle of totality. Indeed, the Director referred to Director of Public Prosecutions v Bowen,[60] in which this Court considered the approach that a sentencing court should take when imposing a sentence for offending that breached the parole that an offender was undergoing at the time. In such a case, the Director correctly submitted, ‘the total period to be spent in custody’ under both the existing and the proposed sentence should ‘fairly represent’ the total criminality involved in all of the offences.[61] The sentencing judge must ask him or herself ‘whether the combined effect of the original sentence and the proposed breach [of parole] sentence is (dis)proportionate to the total criminality involved in the two sets of offences’.[62] Where necessary, the sentencing judge must ‘adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences’.[63]
[60](2021) 35 VR 385; [2021] VSCA 355 (‘Bowen’).
[61]Ibid 391 [26] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA).
[62]Ibid 396 [42] (Maxwell P, Priest, McLeish, T Forrest and Walker JJA).
[63]Postiglione v The Queen (1997) 189 CLR 295, 308 (McHugh J) (‘Postiglione’), citing R v Holder [1983] 3 NSWLR 245, 260 (Street CJ).
In this case, the judge considered the entire period of time the respondent had served and would serve in custody, and sought to ensure that the sentence imposed for the instant offending did not result in a period of incarceration that was disproportionate to the total criminality represented by both the instant offending and the original offences for which he was on parole. His Honour was permitted to impose a sentence lower than would ordinarily be imposed and which might ‘fail to reflect adequately the seriousness of the crime in respect of which it is imposed’,[64] given that s 16(3B) of the Sentencing Act precluded the imposition of concurrent sentences.
[64]Mill v The Queen (1988) 166 CLR 59, 67 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).

Conclusion

The ground of manifest inadequacy is not made out. The appeal must be dismissed.
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[2023] VSCA 241

12 October 2023