Elliot v The King
[2024] VSCA 58
•8 April 2024
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2023 0207
| MITCHELL ELLIOT | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | BOYCE JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 8 April 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 58 |
| JUDGMENT APPEALED FROM: | DPP v Elliott (County Court of Victoria, Judge |
| Hassan, 20 October 2023) |
---
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A
SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
CRIMINAL LAW – Application for leave to appeal – Sentence – Contravention of Community Correction Order – Trafficking in a drug of dependence – Whether sentencing judge erred by mistaking maximum penalty – Aggregate sentence – Whether sentence manifestly excessive –
Application for leave refused.
Sentencing Act 1991, s 16(3C).
R v Beary (2004) 11 VR 151; DPP v Aydin and Kirsch [2005] VSCA 86; Nelis v The King
[2023] VSCA 128; Leimonitis v The Queen [2018] VSCA 198 discussed.
---
Counsel for written submissions
| Applicant: | Ms J Ball |
| Respondent: | Mr G Buchhorn |
| Solicitors | |
| Applicant: | Tony Hannebery Lawyers |
Respondent: BOYCE JA: | Solicitor for the Office of Public Prosecutions |
Introduction
1 The applicant pleaded guilty on 4 October 2022 before Judge Lauritsen in the County
Court to two charges of trafficking in a drug of dependence[1] — charge 1 (cocaine) and charge 3 (1,4-Butenadiol); four charges of possession of a drug of dependence[2] —
[1]
[2]
charge 2 (alprazolam), charge 4 (ketamine), charge 5 (testosterone) and charge 7
(MDMA); and one charge of handling stolen goods[3] — charge 6. The applicant also
[3]
pleaded guilty to related summary offences: dealing with property suspected of being
proceeds of crime[4] — summary charge 12 (cash); possession of a prohibited weapon[5] — summary charge 13 (a flick knife); and commit indictable offence whilst on bail[6] —
[4]
[5]
[6]
summary charge 23 (trafficking in a drug of dependence).
2 After a plea hearing, the applicant was sentenced on 13 October 2022 by Judge
Lauritsen. On charge 1 he was sentenced to 243 days’ imprisonment. Additionally, on
charge 1, and on the remaining indictable and summary charges, the applicant was
convicted and placed on a three year Community Correction Order (‘CCO’) with
conditions requiring him to perform 100 hours of unpaid community work; undergo assessment and treatment (including testing) for drug abuse or dependency; undergo mental health assessment and treatment; and be supervised, monitored and managed as directed.
3 Approximately a year later, on 16 October 2023, the applicant was charged with having contravened the CCO imposed by Judge Lauritsen. The contravention proceeding was heard before Judge Hassan on 20 October 2023. After a plea, Judge Hassan, on 20 October 2023, sentenced the applicant for the offence of having contravened the Judge Lauritsen CCO and re-sentenced the applicant on the offences originally dealt with by Judge Lauritsen.
4 Judge Hassan sentenced the applicant to imprisonment for one month on the contravention offence. On charges 1 to 7, which concerned the original offending dealt with by Judge Lauritsen, Judge Hassan sentenced the applicant to an aggregate sentence
of two years and six months’ imprisonment. On each of the related summary charges
(charges 12, 13 and 23), the applicant was sentenced to imprisonment for one month. Judge Hassan ordered that the sentences on the related summary charges and the sentence imposed for the contravention offence run concurrently with the aggregate sentence imposed on charges 1 to 7. This produced a total effective sentence of two
years and six months’ imprisonment. The applicant was directed to serve a non-parole
period of 18 months. Pre-sentence detention of 243 days was declared.
5 The applicant seeks leave to appeal against the sentences imposed by Judge Hassan. There are two proposed grounds of appeal.
(1) The sentencing discretion miscarried as a result of the learned sentencing judge’s original understanding of the applicable maximum penalty to the trafficking
charges.
(2) The total effective sentence and non-parole period are each manifestly excessive. 6 For the reasons that follow, I consider that leave to appeal should be refused.
The original offending
7 It is necessary, in order to determine this application, that there be some understanding of the offending originally dealt with by Judge Lauritsen. Some description of the matters taken into account by Judge Lauritsen, so as to justify the imposition of a CCO, must also be made.
8 The applicant had booked an apartment in the Melbourne CBD from 1 June to 23 June 2021. Towards the end of that period (on 18 June 2021, to be precise) police executed a warrant and entered the apartment. Police found the applicant and two others in the kitchen of the apartment.
9 In the dining room there were drugs on the table and the floor. There were 259.3 grams of cocaine, of which 208.7 grams were of 18 per cent purity, and 50.6 grams of 51 per cent purity. These facts gave rise to charge 1. As Judge Lauritsen later observed:
This amount was well above the threshold for a trafficable quantity and halfway to the threshold of a commercial quantity.[7]
[7]
10 On the dining room floor were located five bottles of Xanax tablets and about 80 loose Xanax tablets in small boxes. These facts related to charge 2.
11 A bottle of liquid was found. The liquid was 1,4 Butanediol. 1,4 Butanediol was described by the judge as ‘a common substitute for GHB’.[8] The liquid weighed
[8]
178.7 grams. The trafficable quantity was 50 grams. These facts grounded charge 3.
12 On the dining room floor was a Ziploc bag containing one gram of ketamine (charge 4).
13 On the kitchen table there was a 250 millilitre vial of testosterone. Five similar vials, all containing testosterone, were found in the refrigerator (charge 5).
In the applicant’s bedroom police found two bank cards, and an identification card, in
the names of persons other than the applicant (charge 6).
15 Near the dining room table, in a satchel, were 87 tablets in two bags. The weight of the tablets was 18.1 grams. The tablets contained MDMA (charge 7).
16 Police found a total of $8,912.85 in notes and coins near the dining table (related summary charge 12), and on the kitchen bench a flick knife (related summary charge 13). On the day the warrant was executed, the applicant was on bail (related summary charge 23).
Judge Lauritsen’s Reasons
17 At the time of Judge Lauritsen’s sentence, the applicant had no prior criminal history.
Nevertheless, the applicant had been placed on a two-year CCO on 3 May 2022 for drug
trafficking offences. It appeared, at the time of Judge Lauritsen’s sentence, that the
applicant was performing very well on this CCO.
18 The applicant was 36 years old when he was sentenced by Judge Lauritsen. He had completed Year 12 as well as some years of tertiary study. He had a history of employment, but his employment had been curtailed due to a serious heart condition. The applicant, it appeared, at 33, had suffered the first of what would later become a number of heart attacks. According to a general practitioner, the applicant had
‘significant heart issues’ and suffered from ‘coronary heart disease’ and ‘cardiac
failure/impairment’. The applicant had had a stent inserted. It appeared that the state of
the applicant’s heart was poor.19 The applicant had been in a number of relationships. He had a history of drug taking, commencing with cannabis at age 18 and then graduating, via cocaine, to methamphetamine, amphetamine and GHB. He had also taken Xanax and steroids.
20 Psychological evidence placed before Judge Lauritsen located the cause of the
applicant’s ‘downward spiral’ as arising out of the end of the applicant’s football career
when he was a teenager, combined with the breakdown of the applicant’s marriage at
the age of 22. The applicant had psychological disorders. They related to depression, anxiety, stress and drug-taking. The applicant had attended some counselling sessions for his drug addiction.
21 The applicant was also diagnosed as suffering from Attention Deficit Hyperactivity Disorder. Expert psychological evidence described the applicant as being at the threshold of understanding how his psychological condition might relate to his abuse of drugs.
22 Importantly, Judge Lauritsen observed in respect of the applicant’s rehabilitation:
I must say your prospects of rehabilitation are excellent provided you continue receiving professional help. Your efforts during 2022 give me considerable confidence that you will do so. I dare say your first-time experience of imprisonment, in a time of significant restrictions, has helped you address your problems.[9]
[9]
Judge Lauritsen noted that the applicant’s offending had all occurred on the same day.
The amount of cocaine ‘was well above the threshold for a trafficable quantity and halfway to the threshold of a commercial quantity’.[10] The applicant’s moral
[10]
responsibility was assessed as ‘high’.[11] The applicant’s guilty pleas were ‘made at the
[11]
earliest reasonable opportunity’[12] and attracted the additional utilitarian benefit bought about by the COVID–19 pandemic’s effect on court lists described in Worboyes v R.[13] Judge Lauritsen noted that the applicant’s offending occurred in breach of bail. Thus,
[12]
[13]
the presumption of concurrency was reversed insofar as any individual terms of
imprisonment to be imposed were concerned.[14][14]
24 As set out above, Judge Lauritsen ultimately had the applicant assessed for a CCO, noting that the applicant was already subject to such an order. Before ultimately passing sentence, Judge Lauritsen observed that the CCO assessor had concluded that the
applicant had a ‘mild mental health problem’. A condition referable to this problem was
attached by Judge Lauritsen to the CCO.
The plea before Judge Hassan
25 As indicated above, a little over a year after Judge Lauritsen had imposed sentence upon the applicant, the applicant was charged with having contravened the CCO that Judge Lauritsen had imposed. The contravention particularised was that the applicant had failed to comply with a direction; had failed to perform unpaid community work; had failed to undergo treatment and rehabilitation as required; and had failed to be supervised, monitored and managed as directed.
26 The applicant pleaded guilty to the contravention offence and the matter was heard before Judge Hassan. Having found the applicant guilty of the contravention offence,
Judge Hassan was required — in addition to sentencing the applicant for the contravention offence — to adopt one of the options set out in section 83AS of the
Sentencing Act. The option chosen by her Honour was, as set out in section 83AS(1)(c), to cancel the Judge Lauritsen CCO and deal with the applicant for the offending originally punished by Judge Lauritsen. In re-sentencing the applicant, Judge Hassan was required, pursuant to section 83AS(2) of the Sentencing Act, to take into account the extent to which the applicant had complied with the CCO imposed by Judge Lauritsen.
Judge Hassan was provided with a ‘contravention package’. This ‘package’ included a
report outlining the applicant’s performance, or lack thereof, on the Judge Lauritsen
CCO as well as various notices and documents that related to a pending matter that the
applicant faced in the Magistrates’ Court. It appeared that on 14 July 2023 the applicant
was arrested on new drug-related charges and remanded in custody. A plea had been
fixed in respect of these new matters in the Magistrates’ Court for 24 October 2023. There were, also, contravention proceedings listed on that day in the Magistrates’ Court
in respect of the two-year CCO that had earlier been imposed on 3 May 2022.
28 The report found in the contravention package detailed that the applicant had almost entirely failed to satisfy the conditions of the Judge Lauritsen CCO. Without demur
from the applicant’s counsel on the plea, Judge Hassan described matters thus: ‘It seems
to me [the applicant] has done absolutely nothing to comply with the Corrections order
when it was imposed in October … [e]ssentially, he turned up and reported in the two
days required and thereafter did absolutely nothing.’
The applicant’s counsel submitted that after the Judge Lauritsen CCO had been imposed
the applicant ‘got reinvolved with negative peers in the Melbourne area’. It was such
‘reinvolvement’ that accounted for the new offending pending in the Magistrates’
Court. It was put that the applicant was seeking a ‘drug treatment order’ in respect of
the new matters and that the applicant would be eligible for such an order so long as he
was not the subject of a CCO. Thus the applicant sought, before Judge Hassan, a ‘time served disposition in relation to the matters for resentencing’. As to the penalty for the
contravention offence, the applicant submitted that ‘another short, sharp prison sentence
given his lack of priors’ would be appropriate.30 Judge Hassan took the applicant’s counsel to Judge Lauritsen’s Reasons and enquired, given the gravity of the applicant’s original offending, why the applicant should effectively be given a ‘more merciful and lesser sentence’ than was imposed at first instance. The applicant submitted that his original offending was to ‘feed his own addiction’ and that this offending was limited to ‘one day’. The judge countered,
nevertheless, by describing the ‘negligible compliance’ that the applicant had shown on
the CCO imposed by Judge Lauritsen.
31 The applicant ultimately submitted that the offences dealt with by Judge Lauritsen, which had attracted a CCO alone, could now be dealt with by imposition of concurrent
terms of imprisonment. It was submitted that such terms of imprisonment ‘will be a very significant mark on [the applicant’s] record’ given that hitherto the applicant had
no prior history and had never before served a term of imprisonment. Ultimately, the
applicant’s case before Judge Hassan was that the applicant’s prospects of rehabilitation — and the community’s interests more generally — were best served by the applicant
being made eligible for a drug and alcohol treatment order that was in prospect at the
Magistrates’ Court on 24 October 2023.
32 The respondent submitted that the Judge Lauritsen CCO ought be cancelled and the applicant re-sentenced for his original offending.
Judge Hassan’s reasons for sentence
33 In sentencing the applicant, Judge Hassan set out in broad outline the applicant’s
original offending as it had been described by Judge Lauritsen. Her Honour made reference to the levels above the trafficking threshold at which the applicant offended
in respect of charges 1 and 3. As to the applicant’s compliance on the Judge Lauritsen
CCO, her Honour observed as follows:
Turning to the compliance report, in accordance with Judge Lauritsen’s order,
you attended within two working days at the Wodonga Community Corrections on 17/10, satisfying the initial requirement. Thereafter you effectively did nothing on the corrections order. Your compliance was described by your
5 BOYCE JA
counsel … as negligible, really it was non-existent and you have gone on to
commit further offences which are presently before the Magistrates’ Court …
So this is a breach by a total failure to comply.[15]
[15]
The judge took into account the applicant’s progress on the Judge Lauritsen CCO,
holding that ‘there has been absolutely none’.[16] Then, insofar as the applicant’s
[16]
proposed ground 1 is concerned, the following important exchange occurred between
Judge Hassan and defence counsel:In the circumstances I am going to cancel the order and you are convicted and sentenced on the breach to one month imprisonment. On the original offending given the seriousness of your offending, you faced trafficking charges, the cocaine traffic charges was a 25 year maximum penalty.
[Defence counsel] That is for a commercial quantity, Your Honour.
[Her Honour] Trafficking, I did not say, it was a 25 year maximum penalty, 25.
[Defence counsel] It is a maximum for a commercial quantity where I believe
it is 15 years for just…
[Her Honour] Fifteen, it is not going to make much difference. Fifteen years, let me just go through the other maximum, yes trafficking was 15 years, possession, five years, handling stolen goods 15 years, dealing with property
suspected of being the proceeds of crime two years, prohibited weapon…
financial penalty or two years, committing an offence on bail, 30 penalty units
or three months’ imprisonment.[17]
[17]
35 The judge said that she concurred with Judge Lauritsen that the original offending was ‘extremely serious’ and ‘clearly warranted a term of imprisonment’.[18] The judge noted
[18]
that the applicant’s moral culpability was ‘high’ albeit that he was to be dealt with as a
‘person with no prior convictions at the time’.[19][19]
36 The judge then sentenced the applicant as indicated above. The sentence imposed was an aggregate sentence. By operation of section 9(2) of the Sentencing Act, the term of the aggregate sentence could not exceed the total effective period of imprisonment that could have been imposed in respect of the offences if the judge had imposed a separate sentence in respect of each offence.
Submissions
37 Under cover of ground 1 the applicant submitted that this Court could not be satisfied
that the sentencing judge’s erroneous reference to the maximum penalty of 25 years’
imprisonment for the offence of trafficking ‘would not have materially affected the sentence imposed’. It was submitted that the judge ‘would have undertaken the
instinctive synthesis exercise with reference to a significantly higher maximum penalty [such that] the sentence that was imposed was initially reached according to the wrong
legislative guideposts’. Thus, so it was submitted, the sentencing discretion was vitiated
overall and a different sentence should be imposed.
38 The respondent submitted that any error concerning the maximum penalty for trafficking had not vitiated the sentencing discretion. First, it was submitted that it was
far from clear that the judge had not simply ‘misspoken’ and thus had not in fact erred.
Secondly, even if the judge had initially erred, it was apparent that the error was corrected and the sentencing discretion was then appropriately exercised by reference to the correct applicable maximum. Thirdly, the small percentage of the correct maximum penalty represented by what was in the end an aggregate term of imprisonment meant that it was far from clear that any error committed by the judge
could have been material to the sentencing discretion’s exercise even if it remained
uncorrected. Lastly, even if the error was material, it was submitted that the applicant
had failed to show why a different sentence should be imposed.39 Under ground 2, the applicant submitted that the total effective sentence and non-parole period are manifestly excessive. The applicant contended that the judge had placed undue weight on the quantity of the drugs trafficked, particularly with regard to charge 1, and had given inadequate consideration to, or had failed to consider, the fact that the offending was committed on one day. It was put that the applicant had trafficked to
support his own addiction; that the applicant’s operation was neither organised nor
sophisticated; and that he had no prior convictions.
It was submitted that the judge’s observation that any difference in maximum penalty
for trafficking was ‘not going to make much difference’ meant that the judge had paid insufficient regard to the legislature’s intent in establishing a ‘quantity-based hierarchy’ of trafficking offences. It was submitted that the judge’s error meant that she had overlooked the need to maintain ‘appropriate relativities’ in accordance with the
principle of equal justice.
41 It was submitted that it was wrong to characterise the instant offending as ‘extremely serious’. The judge had, as well, failed to refer to certain other matters in mitigation
such as the fact that the applicant’s guilty pleas had been entered at the ‘earliest reasonable opportunity’; that a Worboyes utilitarian benefit applied; that the applicant
had a significant drug addiction; and that the applicant suffered from coronary heart
disease and had mental health diagnoses. In the applicant’s written case it was submitted
on the applicant’s behalf that:Although he was before the learned sentencing judge for total non-compliance with his CCO, he had previously demonstrated excellent compliance with bail
and with the CCO imposed by the Magistrates’ Court. He relapsed following a
return to the Melbourne area shortly after the sentence was originally imposed. The applicant sought to avail himself of the support of the [Drug and Alcohol Treatment Court].
42 The respondent submitted that the sentence was well within range. The trafficking on charge 1, for instance, constituted a large percentage of the amount leading towards the commercial threshold. The cocaine was also of a relatively high purity. The
7 BOYCE JA
circumstances of the applicant’s offending meant that, albeit committed on a single date,
the offending was unlikely to be isolated. The offending must have been motivated, at
least to some degree, by profit. The offending was also committed in breach of bail.
Consideration
Ground 1
43 The basal principle that applies if a sentencing judge mistakes the applicable maximum penalty is that such a mistake does re-open the sentencing discretion unless the appellate court is satisfied that the error could not have materially affected the sentence.[20] When
considering this issue it is of assistance to recall how — generally speaking — a
sentencing judge is to take the maximum penalty into account in the exercise of the instinctive synthesis. Callaway JA, after referring to the principle concerning error in the maximum penalty stated above, made some more general observations in DPP v Aydin and Kirsch[21] concerning how the maximum penalty is to be taken into account. His Honour remarked:
Nevertheless, in some cases, the maximum is of less utility than might otherwise be the case. The provisions of the Crimes Act which prescribe a maximum
custodial penalty of 25 years’ imprisonment certainly show that Parliament
regards the worst classes of those offences as very serious indeed, but it is wrong to assume that there is an arithmetical progression from zero to 25 or that such a high maximum is of more than general assistance in determining the actual sentence to be imposed for an offence that is nowhere near the upper end of the scale. There are too many other relevant factors, including the circumstances of the instant offence and matters personal to the offender. Even more
fundamentally, the worst classes for which a penalty of 25 years’ imprisonment
is prescribed are, by their very nature, far from removed from the circumstances
with which the judge is then concerned.[22][20]
[21]
[22]
44 Then, in a passage replete with helpful nautical metaphor, Callaway JA observed:
It is sometimes said that a judge, in obedience to s.5(2)(a), ‘steers by the maximum’. It is a helpful metaphor, but two things should be said of it. One is
that there is a difference between steering by the maximum and aiming at the maximum. The penalty prescribed for the worst class of case is like a lighthouse or a beacon. The ship is not sailed towards it, but rather it is used as a navigational aid. The other is that steering by the maximum may decrease the sentence that might otherwise be imposed as well as increase it, as in Nash v Whitford. I should add that the metaphor is sometimes used in a different way. Where a mistake as to the maximum penalty was immaterial, the Court says that the judge did not steer by the maximum.[23]
[23]
45 In the present case — assuming that the sentencing judge was labouring under a
misapprehension concerning the correct maximum penalty applicable to the offence of
trafficking in a drug of dependence[24] — it is apparent that the judge had the error pointed
out to her prior to the imposition of sentence. It is apparent also, it seems to me, that her Honour purported to correct the error prior to sentence actually being imposed.[24]
46 In Nelis v The King[25] a sentencing judge wrongly thought — as late as at the commencement of the delivery of the reasons for sentence — that the ‘standard sentencing’ scheme[26] applied to a sentence that he was about to impose. The judge, in
Nelis, had his error pointed out to him while the reasons for sentence were being delivered. The judge corrected the error prior to sentence being imposed. The judge said
that the error ‘will make no difference’. Notwithstanding the judge’s correction of the
error, this Court still concluded that the exercise of the sentencing discretion had been vitiated.[27][25]
[26]
[27]
47 But one can readily understand why, in Nelis, this Court decided in the way that it did.
The ‘standard sentence’ wrongly thought applicable in Nelis was 13 years’ imprisonment. The sentence ultimately imposed was 11 years’ imprisonment. Nelis was
a manslaughter case. Such close proximity in length between 13 and 11 years could leave the observer unpersuaded that the error could have had no material effect.
Moreover, the judge’s remark that the error ‘will make no difference’ leaves room for
doubt concerning whether the judge could possibly have sought to re-exercise the
sentencing discretion free of the pre-existing material error.48 In this case — assuming the judge was at least initially in error — when the error was pointed out, the judge remarked: ‘Fifteen, it is not going to make much difference’. The
judge, it seems, then engaged in a process of confirming the correct maximum penalty for trafficking, as well as the maximum penalties for all the other charges. A fair reading
of her Honour’s remarks leaves the strong impression that once she was made of aware
of her earlier erroneous statement, the judge set about recalibrating matters by reference
to the correct maximum. Her Honour’s reference to ‘it is not going to make much
difference’ seems consistent with such an analysis.49 Where, unlike in Nelis, there was such a large gap between the maximum penalty for trafficking (whether erroneously or correctly conceived) and the sentence ultimately
imposed, it is difficult to conclude that Judge Hassan either ‘steered’ by the incorrect maximum in the first place, or that if she did, she was unable — once the error was pointed out — to approach the matter correctly, that is, free of any pre-existing error. It
does seem to me not to be beyond the wit of a judge in a case like the present to reassess
matters correctly, even if ‘on-the-run’. And, in any case, the sentence ultimately
imposed was an aggregate sentence where it might be thought that an individual maximum term is likely to take on less significance than if sentence was imposed on a separate charge.
50 In the end, and for the reasons that appear above, I do not consider that it is reasonably
arguable that Judge Hassan’s reference to 25 years’ imprisonment as the maximum
penalty for trafficking could materially have affected the sentence that was ultimately
imposed. Leave to appeal on this ground is refused.Ground 2
51 When considering a ground of manifest excess it is profitable to bear in mind what this Court had to say in Leimonitis v The Queen:[28]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument, since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long. A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate. But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside
the range of those open in the sound exercise of discretion.[29]
[28]
[29]
52 The applicant, in his written case, makes reference to various matters that it is said Judge Hassan either overlooked or failed to weight correctly in the intuitive synthesis. But the
task for this Court is — under the head of the present ground — to instinctively
synthesise all relevant matters and determine whether it is reasonably arguable that the sentence ultimately imposed stands wholly outside the range of sentences that were reasonably open to be imposed.
53 Insofar as Judge Hassan is criticised by the applicant for not making express mention of various matters, it cannot be overlooked that her Honour was not, for instance, furnished with up-to-date expert psychological or medical material pertaining to the
applicant. Judge Hassan did have Judge Lauritsen’s Reasons[30] and it is apparent that her Honour had regard to those reasons. But Judge Lauritsen’s Reasons were, of course,
a year old by the time that Judge Hassan came to impose sentence. It was not submitted
on the applicant’s behalf that the applicant was not receiving adequate care in custody
for his various ailments, in particular, his heart condition. In fact no submissions
pertaining to the applicant’s health were made to Judge Hassan on the plea. It might be
thought understandable, in those circumstances, that her Honour did not refer — in express terms — to those parts of Judge Lauritsen’s Reasons dealing with the applicant’s physical and mental health. I do not consider that Judge Hassan can be taken
to have overlooked what was described in Judge Lauritsen’s Reasons when it came to matters concerning the applicant’s health.[30]
54 Nor do I consider that Judge Hassan overlooked the applicant’s drug addiction. Her Honour did not ignore that the applicant’s offending occurred on a ‘single day’. It
cannot be concluded, in my view, that her Honour overlooked the relatively
unsophisticated nature of the applicant’s offending, if such lack of sophistication is to
be measured by reference to percentages of drug purity. Her Honour specifically took into account the fact that the applicant had no prior convictions. To the extent that her Honour may initially have mistaken the applicable maximum for trafficking, I have already concluded that any such error did not constitute material error.
55 I cannot find anything erroneous in the following observation made by her Honour:
I concur with the sentiments of Judge Lauritsen that this was extremely serious offending which clearly warranted a term of imprisonment. You were on bail at the time, your moral culpability was high.[31]
[31]
56 Whilst it is not apparent that Judge Lauritsen had used the term ‘extremely serious’ to describe the applicant’s offending, his Honour did describe the charges faced by the
applicant as ‘such serious charges’[32] and, as was apparent, Judge Lauritsen did think
that the applicant’s offending warranted a term of imprisonment. Any difference
between ‘such serious’ and ‘extremely serious’ strikes me as immaterial in all the
circumstances. In any event I consider that it is not erroneous to describe the applicant’s offending, particularly in respect of charge 1, as ‘extremely serious’.[32]
57 Nor can it be said that her Honour must have ignored the prospect of a drug and alcohol
treatment order that was apparently a possible disposition in prospect in the Magistrates’
Court. Such prospect was central to the plea delivered and, as is apparent, Judge Hassan delivered sentence very soon after the plea. I do not think it conceivable that her Honour could have overlooked this matter.
58 However well the applicant had done on the May 2022 CCO imposed in the
Magistrates’ Court, as well as on the earlier conditions of bail, the fact remained that
applicant had performed poorly on the October 2022 Judge Lauritsen CCO and had re-
offended in July 2023.59 Although the applicant criticises Judge Hassan for failing expressly to mention that the pleas of guilty were early and were apt to attract a Worboyes utilitarian discount, it must
be registered that — as with the issue concerning the applicant’s state of physical and mental health — nothing was said about these particular matters on the applicant’s
behalf on the plea. I do not take Judge Hassan to have overlooked them. These matters
were dealt with in Judge Lauritsen’s Reasons, and it is apparent that Judge Hassan had
read those reasons.
60 Judge Hassan properly took into account the extent of the applicant’s compliance on
the Judge Lauritsen CCO.
61 In the end, by ‘instinctively synthesising all relevant factors in order to determine whether [this Court] considers the impugned sentence to be just and appropriate’[33] and,
in considering whether this Court considers the sentence imposed by Judge Hassan to
be ‘wholly outside the range … open in the sound exercise of discretion’,[34] I am not
persuaded that it is reasonably arguable that the sentence imposed upon the applicant is manifestly excessive.[33]
[34]
62 The applicant committed at least one instance of serious trafficking, albeit he pleaded guilty to two trafficking charges. The amount of drug the subject of charge 1 was substantial, comprising some 50 per cent of the commercial quantity threshold. The
applicable maximum for trafficking is 15 years’ imprisonment. The applicant
committed this offending in breach of bail. In those circumstances, Judge Lauritsen, in my view, afforded the applicant about as much leniency as was possible in the circumstances.
63 Albeit that the applicant was thought to have been a good candidate for a drug and
alcohol treatment order in the Magistrates’ Court, the fact was that the applicant had
almost totally failed to avail himself of the rehabilitative leniency that Judge Lauritsen had placed on offer. There was a dearth of up-to-date medical and psychological material placed before Judge Hassan. As already stated, there was no suggestion that the applicant was not receiving appropriate care in custody.
64 In all the circumstances, but particularly in light of the seriousness of the applicant’s
offending in respect of charge 1, I am unable to conclude that it is reasonably arguable
that the aggregate sentence of two years and six months’ imprisonment with a non-
parole period of 18 months imposed by Judge Hassan is manifestly excessive.
65 Leave to appeal must therefore be refused on this ground.
Conclusion
66 The order of the Court is that the application for leave to appeal against sentence must be refused.
---
Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.
Contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
Contrary to s 88 of the Crimes Act 1958.
Contrary to s 195 of the Crimes Act 1958.
Contrary to s 5AA of the Control of Weapons Act 1990.
Contrary to s 30B of the Bail Act 1977.
1 BOYCE JA
DPP v Elliot [2022] VCC 2326, [41] (‘Judge Lauritsen’s Reasons’).
Ibid [7].
2 BOYCE JA
Judge Lauritsen’s Reasons [37].
3 BOYCE JA
Ibid [41].
Ibid [44].
Ibid [45].
(2021) 96 MVR 344 (‘Worboyes’).
Sentencing Act 1991, s 16(3C) (‘Sentencing Act’).
4 BOYCE JA
DPP v Elliott (County Court of Victoria, Judge Hassan, 20 October 2023 [14]–[15]) (‘Judge Hassan’s
Reasons’).
Ibid [15].
Ibid [16]–[20].
Ibid [21].
Ibid.
6 BOYCE JA
R v Beary (2004) 11 VR 151, 159 [21] (Callaway JA; Buchanan JA agreeing at 163 [39]).
[2005] VSCA 86.
Ibid [11] (Buchanan JA agreeing at [24]; Eames JA agreeing at [25]).
Ibid [12] (Buchanan JA agreeing at [24]; Eames JA agreeing at [25]) (citations omitted).
8 BOYCE JA
And had not simply misspoken as submitted by the respondent.
[2023] VSCA 128 (‘Nelis’).
Sentencing Act, ss 5A and 5B.
Nelis [2023] VSCA 128, [26] (Priest AP, Niall and Taylor JJA).
9 BOYCE JA
[2018] VSCA 198 (‘Leimonitis’).
Ibid [32] (Priest JA, Weinberg JA agreeing at [38]).
They formed part of the contravention package.
10 BOYCE JA
Judge Hassan’s Reasons, [21].
Judge Lauritsen’s Reasons, [17].
Leimonitis [2018] VSCA 198, [32].
11 BOYCE JA
Ibid.
12 BOYCE JA
0
5
0