Fernando v The Queen
[2017] VSCA 208
•18 August 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0214
| MARK FERNANDO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY, REDLICH and TATE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 June 2017 |
| DATE OF JUDGMENT: | 18 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 208 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1495R (Judge Hogan) |
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CRIMINAL LAW – Appeal – Sentence – Traffick in commercial quantity of drug of dependence – Offending occurred whilst applicant on community correction order for previous similar offending – Plea of not guilty – Total effective sentence seven years and eight months’ imprisonment – Non-parole period three years and ten months – Whether manifestly excessive – Comparable cases – Judge erred in sentencing on basis that there had been an uplift in sentencing standards for traffick in commercial quantity of drug of dependence – Error disclosed – Appeal allowed – Applicant resentenced.
CRIMINAL LAW – Sentencing – Principles – Predictability and consistency – Current sentencing practice for traffick in commercial quantity of drug of dependence – Relevance of recent uplift in sentencing standards for Court of Appeal when resentencing – Gregory (a Pseudonym) v The Queen [2017] VSCA 151; Haddara v The Queen [2016] VSCA 168 discussed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Lee | Tait Lawyers |
| For the Crown | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
ASHLEY JA:
I have had the advantage of reading the reasons for judgment of Redlich JA in draft. I agree with his Honour that the applicant made good his attack upon the sentence imposed on charge 1. It not being in contest that the sentence passed on charge 2 was manifestly excessive, and no complaint being made about the sentences imposed on charges 5 and 6, it follows that the applicant should be re-sentenced on charges 1 and 2, and orders made for cumulation which will impact upon the total effective sentence and non-parole period. I agree with the orders for re-sentencing which Redlich JA proposes.
So far as charge 1 is concerned, I wish to explain in my own words why I have concluded that the applicant’s attack upon sentence was made good, and why the sentence proposed by Redlich JA is appropriate. I do so without repeating the circumstances of the matter, set out fully by Redlich JA.
In sentencing the applicant, all relevant sentencing considerations which pertained to the offending, the offender, and the impact of the offending upon drug users and the wider community, had to be weighed in the balance.
Current sentencing practice was one sentencing consideration, significant because of the concern of the law to achieve principled consistency in sentencing. But this significance did not mean that current sentencing practice became, in effect, the determinative consideration.
In the case of a quantity-based offence, it was necessary to keep in mind the quantity of drugs trafficked when considering the gravity of the offending and the utility of what may be said to be ‘comparable cases’. That was very relevant to charge 1. The maximum quantity of methylamphetamine falling within the offence of trafficking simpliciter is less than 100 grams pure. The quantity embraced by trafficking in not less than a commercial quantity of the drug ranges between 100 and less than 750 grams pure. Trafficking in not less than a large commercial quantity is constituted by trafficking in an amount of and above 750 grams pure. The three offences have greatly different maximum penalties — 15 years’ imprisonment for trafficking simpliciter, 25 years’ imprisonment for trafficking in not less than a commercial quantity, and life imprisonment for trafficking in a large commercial quantity.
It is unarguably the case that, focusing upon quantity, the offending constituted by charge 1 was at the very bottom end of the offence of trafficking in not less than a commercial quantity of methylamphetamine. Moreover, the applicant’s offending, except that he had some prior convictions, did not involve circumstances which make trafficking more serious. In that connection, the period of the offending, the role of the offender, and any resort to violence or intimidation are relevant. Emphasising that the quantity trafficked by the applicant was far from the only circumstance relevant in the sentencing synthesis, imposition, in the entirety of the circumstances, of a sentence which was demonstrably high in the range of sentencing for the particular offence was discordant. It appears that the explanation lies in what the parties agreed in this Court was the judge’s misunderstanding of what had been said in Haddara v The Queen.[1] So it was that specific error was conceded.[2] But, with or without that explanation, the sentence imposed on charge 1 was impermissibly high.
[1][2016] VSCA 168 (‘Haddara’).
[2]Relevant to ground 2.
So to conclude leads on to the question whether a different sentence should be imposed. Focusing upon all relevant circumstances, including sentencing practice current at the time of imposition of sentence, the answer to that question was certainly yes. But before the fate of the appeal was decided, this Court stated in Gregory (a Pseudonym) v The Queen[3] — although it was unnecessary to so decide in order to resolve that appeal[4] — that current sentencing practice for trafficking not less than a commercial quantity of methylamphetamine was inadequate, particularly in the upper category of seriousness of the offence. What the Court envisaged was a greater ‘spread’ of sentences for the particular offence, commensurate with the gravity of the offending. Sentencing practice for offending such as that committed by the applicant did not squarely fall for consideration.
[3][2017] VSCA 151 (‘Gregory’).
[4]The Court applying the approach of Redlich JA (together with Maxwell P, in the majority) in Ashdown v The Queen (2011) 37 VR 341.
The conventional position is, when this Court allows an appeal and re-sentences an offender, that the sentence dates from its imposition by this Court. That is why pre-sentence detention is declared up to the date of imposition.
In my opinion, where an offender has gone to trial, there is no reason not to bring to account a relevant change in sentencing practice which has occurred between the date when sentence was passed at trial and the date when this Court considers an application for leave to appeal against sentence. Such a change is one circumstance, but by no means the only circumstance, which can bear upon the question whether the applicant has shown that a different sentence should be passed; and can bear upon the question what different sentence should be imposed. How this circumstance is weighted in consideration of those questions is no mechanical thing. Subject to the impact of some recent legislation, sentencing does not run on rails.
Redlich JA has concluded that application of Gregory will mean that there ‘will be modest increases in the sentences in the lowest category’ of the offence now under consideration.[5] His Honour has also concluded, however, that in the entirety of the circumstances, the applicant has shown that a different sentence should be passed, albeit a sentence affected to some extent by the application of Gregory.
[5]See [62] below.
It is not altogether clear to me that Gregory means that there ‘will be modest increases in the sentences in the lowest category’, for which reason I have some doubt that Gregory has brought about a change in sentencing practice which is relevant to this case. But whether the matter is approached on the basis that Gregory has something relevant to say, or the converse, the applicant has satisfied me that a different sentence should be imposed.
Redlich JA states that the sentence which he proposes on charge 1 has been affected to some extent by adjusting for the Gregory factor.[6] Any such adjustment must, I think, have been minor. In my view, whether re-sentencing is approached on the basis that Gregory has some small impact, or on the basis that it does not, the sentence proposed by his Honour reflects an appropriate synthesis of all the circumstances of the matter. In the sentencing synthesis, I do not profess an ability to differentiate between the outcome flowing from consideration of the entire circumstances of the matter by including or not including a minor Gregory factor.
[6]See [62] below.
REDLICH JA:
Following a trial in the County Court, the applicant was found guilty by a jury of one charge of trafficking in a commercial quantity of methylamphetamine (‘ice’) and three charges of trafficking in a drug of dependence, and was sentenced on 4 October 2016 as follows:[7]
[7]DPP v Fernando [2016] VCC 1495R (‘Reasons’).
Charge Offence Maximum penalty Sentence Cumulation 1 Traffick in a commercial quantity of a drug of dependence (methylamphetamine) [s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’)] 25 years’ imprisonment 6 years and 6 months’ imprisonment Base 2 Traffick in a drug of dependence (ketamine) [s 71AC of the Act] 15 years’ imprisonment 3 years and 6 months’ imprisonment 9 months 5 Traffick in a drug of dependence (cocaine) 15 years’ imprisonment 1 year and 6 months’ imprisonment 3 months 6 Traffick in a drug of dependence (heroin) 15 years’ imprisonment 1 year’s imprisonment 2 months Total effective sentence: 7 years and 8 months’ imprisonment Non-parole period: 3 years and 10 months Pre-sentence detention: 64 days 6AAA statement: N/A Other orders: Pursuant to s 78(1) of the Confiscation Act 1997, a disposal order was made in relation to the items and drugs of dependence listed in the Schedule to the order.
The applicant initially sought leave to appeal on the following ground:
The sentences, the orders for cumulation, the consequential total effective sentence, and the non-parole period are manifestly excessive.
During the course of the oral hearing he was given leave to add a second ground of appeal:
The learned sentencing judge erred in sentencing on Charge 1 by taking into account as a factor in the sentencing discretion that the Court of Appeal had indicated that current sentencing practices for trafficking, particularly in a commercial quantity, have inadequately reflected the seriousness of this crime.
For the reasons that follow, I would grant leave to appeal, allow the appeal, and resentence the applicant to a total effective sentence of five years and six months’ imprisonment with a non-parole period of three years.
Circumstances of the offending
On 7 October 2014, police executed a search warrant at a residence in Narre Warren South, as part of a targeted police investigation. The applicant, who was not a suspect in the investigation, was seen exiting the rear of the house at the time of the search. He was stopped by police and was escorted back to the house.
During the search, a black Nikon camera bag was found in the house, which contained 107.6 grams of methylamphetamine, 21.5 grams of ketamine, 10.6 grams of cocaine and 6.6 grams of heroin. The methylamphetamine was found to be of a commercial quantity (as it was over 100 grams).[8] The remaining drugs were deemed to be of traffickable quantities (as they were over 3 grams).[9]
[8]The Act s 70 (definition of ‘commercial quantity’), Sch 11 Pt 3 column 2.
[9]The Act s 70 (definition of ‘traffickable quantity’), Sch 11 Pt 3 column 3.
The jury was asked to infer that the applicant had possession of the drugs in the black camera bag from a number of pieces of evidence. The bag was in the drawer of a coffee table relatively close to where the applicant had exited the house. The applicant’s DNA matched with DNA extracted from two small zip-lock bags in the camera bag. The target of the search warrant was excluded as a match for the other DNA extracted from the zip-lock bags. The camera bag also contained an ASIC certificate for a company with the same principal place of business as the applicant’s residence.
When arrested, the applicant stated that he had nothing to do with any of the allegations, after which he gave a ‘no comment’ interview. He continued to deny that the drugs belonged to him at trial.
In delivering a verdict of guilty against the applicant, the jury was satisfied beyond reasonable doubt that the drugs were in the possession of the applicant, and that he possessed those drugs for the purpose of sale.[10]
[10]Reasons [13].
The judge’s reasons
After describing the offending behaviour, the judge turned to the applicant’s personal circumstances, which included the following prior convictions:
(i) a 12 month good behaviour bond without conviction for a charge of possessing heroin in 2000;
(ii) trafficking in methylamphetamine; possessing and using methylamphetamine; cultivating a narcotic plant, cannabis; possessing and using cannabis; and possessing a controlled weapon without excuse in 2006 for which he received a wholly suspended term of three months’ imprisonment and a community-based order of 12 months;
(iii) a conviction for possessing cannabis in 2012 for which he received a 12-month community correction order;
(iv) convictions for using cannabis, methylamphetamine and GHB, retaining stolen goods, dealing with property suspected to be the proceeds of crime, unlicensed driving and trafficking in methylamphetamine in 2013 for which he received a 12-month community correction order; and
(v) breach of the 2013 community correction order resulting in it being extended until 24 April 2015.[11]
[11]Ibid [11].
The judge considered it an aggravating feature that the offending for which she was sentencing occurred while the applicant was on a community correction order (‘CCO’). Her Honour noted that no breach proceedings had been brought as the conviction for the present offences did not occur until after the expiry of the CCO.[12]
[12]Ibid.
Her Honour referred to the need to give weight to denunciation, general deterrence, just punishment and protection of the community in light of the ‘seriousness of the crimes’ and ‘pernicious influence’ of illicit drugs in the community.[13] She also gave some weight to specific deterrence given his prior offending.[14]
[13]Ibid [12].
[14]Ibid.
The judge stated that the quantity of drugs on charge 1 was only 7.6 grams over the commercial quantity threshold and that the offences were all in relation to trafficking on one day. However, she emphasised that ‘the vice of this offence is that, were it not for police intervention, all of the drugs the subject of the charges may well have found their way onto the streets to feed the habit of those abusing illicit drugs.’[15] She considered this enough to find that he ‘played a part in the illegal movement of drugs’ although it was ‘not possible to further clarify the nature and extent’ of his involvement.[16] The judge noted that, given his previous convictions for trafficking offences, he should have been aware of the consequences of his crimes. The judge further stated that:
There can be no doubt that the only appropriate sentence is one of imprisonment, and, in recent times, the Court of Appeal has indicated that current sentencing practices for trafficking, particularly in a commercial quantity, have inadequately reflected the seriousness of this crime.[17]
[15]Ibid [13].
[16]Ibid.
[17]Ibid.
On the appeal, it was submitted that her Honour’s observation was made in error and that she may have misconstrued some remarks or mistakenly relied upon a Court of Appeal decision that was not concerned with the relevant offence.[18]
[18]See [42]–[49] below.
The applicant’s history of drug use, with some periods of abstinence, was set out in the judge’s sentencing remarks. Her Honour looked favourably on the periods between 2001–2006 and 2006–2012 during which time the applicant had not been charged with any offences and had been gainfully employed. His participation in rehabilitation programs since being arrested for the offending in question was also deemed as ‘impressive’. At the time of sentencing, the applicant had been drug-free for almost two years, which the judge considered to be a ‘considerable achievement for one who has been a drug user for over two decades’.[19]
[19]Reasons [17].
The judge considered that the applicant’s time on remand had been ‘very frightening and stressful’ due to ‘unwelcome and threatening sexual advances’.[20] She accepted that he was more likely to be adversely impacted by incarceration than other offenders due to his assessment as suffering from anxiety.[21]
[20]Ibid [18].
[21]Ibid.
The judge referred to the applicant’s close connection to his family and the support of his mother, brother and daughter. She accepted that he was anxious about his 13 year-old daughter’s welfare, and the health of his mother, who suffers from Parkinson’s Disease.[22]
[22]Ibid [19].
The psychologist’s report submitted on the applicant’s behalf also indicated some cognitive impairment, possibly from past head injuries, which manifested as ‘a low processing speed index related to poor concentration and attention’.[23] The judge accepted that this would add to his difficulty in coping with prison life.
[23]Ibid [20].
In sentencing the applicant, the judge concluded that a substantial term of imprisonment was required, which would ‘send a message to others who might be inclined to traffick in illicit drugs … so that those others will be deterred and left in no doubt that such conduct is denounced by the Court in order to protect the public’.[24] She considered that some order of cumulation was appropriate to arrive at a just sentence that reflected the gravity of his offending. However, she considered his prospects of rehabilitation as reasonable, despite his plea of not guilty. Her Honour stated that:
Your prospects of rehabilitation are supported by your concerted effort to rid yourself of your drug abuse since this offending, your ongoing family support, and the fact that there are significant periods in the past where you have shown that you are capable of applying yourself to work. These factors cause me to conclude that I should reduce the non-parole period which would usually apply.[25]
[24]Ibid [21].
[25]Ibid.
The judge imposed a non-parole period representing 50 percent of the total effective sentence.
Ground 1
The respondent conceded in its written case that the sentence of three years and six months’ imprisonment on charge 2 for trafficking ketamine was manifestly excessive. The applicant thus confined his oral submissions to the contention that the sentence on charge 1 of trafficking a commercial quantity of methylamphetamine was manifestly excessive. No complaint of manifest excess was made with respect to charges 5 and 6 (trafficking cocaine and heroin).
The applicant referred the Court to various Sentencing Advisory Council statistics for the offence of trafficking a commercial quantity of a drug of dependence. The median length of imprisonment imposed on offenders sentenced for that offence between 2010–11 and 2014–15 was four years. The statistics demonstrate that the range of sentences over that period in the higher courts was between four months and eight years.[26] Such material is, as this Court has said on numerous occasions, of limited assistance. Apart from the obvious limitation that they provide no information about any relevant circumstances that led to the imposition of the sentences, most of them would have been instances where the offender had received a substantial discount for pleading guilty.
[26]Sentencing Advisory Council, ‘SACStat Higher Courts: Trafficking in a Commercial Quantity of a Drug of Dependence’ (2016).
The applicant placed particular reliance on four cases, Gavanas v The Queen, Trikilis v The Queen, Dang v The Queen and Mileto v The Queen in seeking to demonstrate that the sentence imposed was manifestly excessive.[27]
[27]Gavanas v The Queen [2013] VSCA 178 (‘Gavanas’); Trikilis v The Queen [2011] VSCA 340 (‘Trikilis’); Dang v The Queen [2014] VSCA 49 (‘Dang’); Mileto v The Queen [2014] VSCA 161 (‘Mileto’).
Gavanas received a total effective sentence of 10 years’ imprisonment with a non-parole period of seven years after he and his co-offender, Khodr, were found guilty of one charge of possessing substances and equipment with the intention of using them for the purposes of trafficking a drug of dependence and one charge of trafficking (by manufacture) a commercial quantity of methylamphetamine. On the charge of trafficking a commercial quantity of methylamphetamine, Gavanas received a sentence of six years’ imprisonment. His total effective sentence was reduced on appeal, although the sentence on the charge of trafficking a commercial quantity of methylamphetamine was not. Khodr received a total effective sentence of six years and eight months’ imprisonment with a non-parole period of four years, which was reduced to five years and six months’ imprisonment with a non-parole period of three years and six months on appeal. He received a term of 4 years’ imprisonment on the charge of trafficking in a commercial quantity of methylamphetamine which also remained unchanged. The applicant contends that the offending in Gavanas was objectively more grave than his offending.
The remaining three cases relied on by the applicant involved pleas of guilty. In Trikilis, the offender pleaded guilty to one charge of trafficking in a large commercial quantity of MDMA, methylamphetamine and cocaine, one charge of trafficking an anabolic and androgenic steroidal agent, and one charge of possession of cannabis. The Court of Appeal found that the steroid trafficking only marginally extended the offender’s overall offending and reduced the sentence and cumulation on the charge. He received a sentence of seven years’ imprisonment on the large commercial trafficking charge, one year on the steroid trafficking charge and a fine of $100 for possessing cannabis. He received a total effective sentence of seven years and three months’ imprisonment with a non-parole period of five years and six months. The court stated that, without the guilty plea, they would have imposed a total effective sentence of nine years’ imprisonment.[28]
[28]Trikilis [2011] VSCA 340 [11].
In Dang, the offender had pleaded guilty to two charges of trafficking a drug of dependence over a two month period (heroin and methylamphetamine) on one indictment and one charge of trafficking a commercial quantity of methylamphetamine on a separate indictment. The first indictment involved a variety of activities concerned with operating a safe house for the receipt and sale of drugs. The second indictment involved two bags of 90 percent pure methylamphetamine, each weighing nearly 1 kilogram, which were found in the offender’s vehicle when he was intercepted driving drugs from Sydney to Melbourne. The sentencing discretion was reopened on appeal as the charges violated the principle of double punishment. The offender was resentenced to four years on the charge of trafficking methylamphetamine, three years on the charge of trafficking heroin, and four years on the charge of trafficking a commercial quantity of methylamphetamine, with a total effective sentence after orders for cumulation of six years and six months’ imprisonment and a non-parole period of four years. The Court stated that if the offender had not pleaded guilty it would have imposed a total effective sentence of eight years and six months’ imprisonment with a non-parole period of six years.[29]
[29]Dang [2014] VSCA 49 [101].
Lastly, in Mileto, the offender pleaded guilty to one charge of trafficking a commercial quantity of methylamphetamine in relation to multiple activities that led to the manufacture and sale of over 1 kilogram of methylamphetamine. At first instance, he was sentenced to five years’ imprisonment with a non-parole period of two years and six months. Priest JA characterised that sentence as ‘lenient’, but considered it necessary to reduce the sentence to four years and six months’ imprisonment with a non-parole period of two years and three months due to significant mitigating factors, large forfeiture and the offender’s experience of imprisonment.[30]
[30]Mileto [2014] VSCA 161 [29].
Each of these cases involved conduct that may be viewed as objectively more grave than that of the applicant. Yet the applicant’s antecedents (including the aggravating circumstance that he was on a CCO) were more serious than those of most of the offenders in those cases.
During the course of the appeal hearing the respondent acknowledged that this was ‘lower end gravity offending’ only fractionally over the threshold. It was emphasised, however, that the applicant had pleaded not guilty and had prior convictions for this offence. The respondent pointed to the aggravating circumstance that the applicant was on a CCO for similar offending at the time of this offending. That factor bore upon both the need for specific deterrence and the prospects for rehabilitation.
Having conceded that the sentence on charge 2 (trafficking in ketamine) was manifestly excessive, the respondent submitted in its written materials that the cases cited by the applicant showed that the sentence imposed on charge 1 was within, but at the top, of the range for that category of offending. The respondent further submitted that the sentences on the remaining two trafficking charges were ‘stern’ but appropriately reflective of the applicant’s prior convictions and lack of guilty plea.
Ground 2
It is convenient at this point to turn to ground 2. During the course of the plea the sentencing judge said that the Court of Appeal had recently indicated that ‘there should be an uplift in current sentencing practice for this type of offence’, an observation with which neither party took issue. Her Honour repeated this view in her sentencing remarks, stating that the Court of Appeal had in recent times ‘indicated that current sentencing practices for trafficking, particularly in a commercial quantity, have inadequately reflected the seriousness of this crime’.[31]
[31]Reasons [13].
During the course of oral argument on the appeal, attention was drawn to the fact that this Court had not expressed such a view about current sentencing practices for trafficking in a commercial quantity. The applicant then sought, and was granted leave, to add ground 2. Counsel for the respondent, with her customary fairness, immediately acknowledged that her Honour had in this respect fallen into error. Although the respondent did not seek to alter its submission that the sentence on charge 1 was within range, it was submitted that the specific error described above must have had an effect on the sentence imposed. It was conceded that this Court would therefore be ‘at large’ to resentence the applicant on charges 1. The respondent eschewed any suggestion that no less severe sentence should be passed.
The respondent further submitted at the hearing of the appeal that the Court should take into account what had been said by this Court in Haddara v The Queen,[32] namely that ‘[m]ethylamphetamine is a scourge on society’, and that the ‘[p]revalence of the offence of trafficking in methylamphetamine is … a matter proper for a sentencing court to take into account when assessing the weight to be given to general deterrence’.[33] In making these observations, the Court of Appeal had reviewed evidence of the increased prevalence of trafficking in methylamphetamine in non-commercial quantities, commercial quantities and large commercial quantities.[34] The Court concluded that ‘sentencing courts may, to a relatively modest extent, adjust the sentencing standards for trafficking in ice to deal with its increased prevalence’.[35]
[32][2016] VSCA 168 [49].
[33]Ibid [69].
[34]Ibid [61]–[66].
[35]Ibid [71].
It was implicit in the respondent’s submission that, even if the sentencing judge had been alluding to the observations made in Haddara when referring to the recent statements of the Court of Appeal, her Honour was in error as Haddara did not go so far as to say that current sentencing practices for trafficking in a commercial quantity do not adequately reflect the seriousness of the crime. It was also submitted that her Honour may have been referring to Nguyen v The Queen[36] but this was concerned with the offence of cultivating a narcotic plant, not trafficking a drug of dependence.
[36](2016) 311 FLR 289 (‘Nguyen’).
Ultimately, the respondent submitted that the sentence imposed on charge 1 was ‘at the upper reaches [of the range]’ and, in light of the specific error made by the judge, exceeded what would have been appropriate, so that a ‘somewhat lower sentence’ was ‘probably called for’.
Some eight days after the oral hearing of the appeal, this Court published its reasons for judgment in the matter of Gregory.[37] The Court concluded, after a review of cases dealing with trafficking in a commercial quantity, that current sentencing practice for trafficking in a commercial quantity was ‘plainly inadequate’ and needed to be uplifted. Gregory had appealed, amongst other things, against a sentence of eight years and six months’ imprisonment on a charge of trafficking in a commercial quantity of methylamphetamine which, it was submitted, was ‘at or near the highest sentence ever imposed for this offence’.[38] The agreed facts in Gregory showed that he had been commissioned to operate a drug trafficking network in regional Victoria and worked with a co-offender to supply a network of dealers with a variety of drugs. There was evidence of regular drug distribution resulting in the trafficking of large but imprecise quantities of drugs over an eight month period. The commercial quantity trafficked to which Gregory pleaded guilty was 226 grams of pure methylamphetamine located during a police interception of one of his dealers. The trafficking was accompanied by acts of violence and intimidation, which aggravated the seriousness of the offending.
[37][2017] VSCA 151.
[38]Ibid [3].
The Court held that the sentence on the charge of trafficking in a commercial quantity of a drug of dependence was within range and that considerations of sentencing consistency did not require a lesser sentence on the charge.[39] The Court also upheld a submission by the Director of Public Prosecutions that current sentencing practice for trafficking in a commercial quantity of a drug of dependence was ‘“unduly compressed” for offences at the upper end of seriousness and did not reflect the inherent gravity of the offending, the impact on the community or the high maximum penalty’.[40] Relevantly for present purposes, the Court emphasised that there needs to be an appropriate relativity between the sentencing standards for each category of seriousness of the offence, and, in the case of trafficking offences which have an ascending order of seriousness depending on quantity, an appropriate relativity between sentencing standards for each quantity-based offence.[41]
[39]Ibid [6].
[40]Ibid [9].
[41]Ibid.
At the time of the oral hearing of the present appeal, the Court’s judgment in Gregory had been reserved, but in anticipation of its imminent publication, the parties were given leave to file supplementary submissions as to whether anything said in Gregory ought to apply to the present case, and, if it did, what the consequences should be for the resentencing exercise. The Court also indicated that it would be assisted by what the parties might wish to say about any of the cases dealt with in Gregory but not referred to in the present appeal.
Current sentencing practices
It is desirable to say something as to the general significance of an uplift in current sentencing practice before turning to its implications for the subject sentence. A sentencing judge must have regard to the factors set out in s 5 of the Sentencing Act 1991. The judge instinctively synthesises those factors. A value judgment is then made as to an appropriate sentence. Among the factors that must be considered is the requirement imposed by s 5(2)(b) that the court have regard to current sentencing practices. The obligation to consider current sentencing practices serves the rule of law’s objective of predictability and consistency in sentencing. The fundamental principle of equality before the law or equality of justice—that like cases be treated in a like manner requiring identity of outcomes, and that relevant differences require different outcomes[42]—underpins the rule of law and the administration of justice.[43] As Mason J put it, in Lowe v The Queen, consistency in criminal punishment is ‘a fundamental element in any rational and fair system of criminal justice’, whereas inconsistency is ‘regarded as a badge of unfairness and unequal treatment under the law’ and is ‘calculated to lead to an erosion of public confidence in the integrity of the administration of justice.’[44]
[42]Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ) (‘Wong’); Green v The Queen (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Kiefel JJ); Hili v The Queen (2010) 242 CLR 520, 535 [49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[43]Markarian v The Queen (2006) 228 CLR 357, 390 [84] (McHugh J).
[44](1984) 154 CLR 606, 610–11.
The need for predictability and consistency is not opposed to instinctive synthesis or individualised justice even though it confines the ambit of the discretion. As McHugh J observed in Markarian v The Queen:
judicial instinct does not operate in a vacuum of random selection. On the contrary, instinctive synthesis involves the exercise of a discretion controlled by judicial practice, appellate review, legislative indicators and public opinion. Statute, legal principle and community values all confine the scope in which instinct may operate.[45]
[45](2006) 228 CLR 357, 390 [84].
The guidance provided by current sentencing practice is intended to ‘reduce the incidence of unnecessary and inappropriate inconsistency’.[46] The relevant current sentencing practice is usually found in a range or pattern of a sufficient number of cases for the relevant category of offending which are said to be comparable because they contain common features with the subject sentence. Those cases are the product of the accumulated wisdom and experience of sentencing judges. Reasonable consistency is achieved when the impugned sentence is in step with relevant comparators.[47]
[46]Wong (2001) 207 CLR 584, 591 [6] (Gleeson CJ).
[47]Dao v The Queen [2014] VSCA 93 [26] (Nettle JA).
The range provides considerable latitude to accommodate the vicissitudes of different cases and the differing value judgments of individual judges. The range does not fix the boundaries within which the discretion must be exercised. Leaving to one side the possibility that the range may not be the correct range, the identified range, by definition, cannot be determinative that a particular sentence is the correct one, but it does provide important guidance in selecting an appropriate sentence.
The range assumes a particular importance in determining whether a sentence falls beyond a reasonable exercise of the sentencing discretion. There will always be an area of uncertainty as one approaches the extremes of the range. In R v Young, that area was described by Kourakis CJ as ‘the penumbra between the core of sentences which can be properly be imposed, and those outlying sentences which cannot properly be imposed consistently with sentencing principle’.[48] However, as Gleeson CJ emphasised in Wong, in the context of the discretion there are limits ‘beyond which inconsistency itself constitutes a form of injustice.’[49] Thus, manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in those comparable cases.[50]
[48](2016) 126 SASR 41, 54 [36].
[49](2001) 207 CLR 584, 591 [6].
[50]Nguyen (2016) 311 FLR 289, 312 [72].
For these reasons, once there has been an alteration to sentencing practice for an offence, the continued attainment of predictability and consistency requires that alteration be taken into account. The impugned sentence must be assessed in that light if, at the time of sentence, the alteration was relevant to the sentencing practice applicable to the charged offence. A relevant change in the standard may also be applied by this Court when re-sentencing.
The applicant submitted that the change to the standard was not relevant as the offending to which the applicant pleaded guilty in Gregory was objectively more serious than the offending for which the present applicant was found guilty. He submitted that the uplift of current sentencing practices in Gregory had no effect on his submission that the impugned sentence was manifestly excessive and did not preclude a reduction in sentence for offending of a less serious nature. He submitted that Gregory would result in sentences being raised in the upper category of seriousness and would moderately increase sentences in the middle category but its effect would be negligible for the lowest category of seriousness.
In the respondent’s supplementary submission, it was acknowledged that Gregory was focused upon current sentencing practice for commercial trafficking in the upper category of seriousness, and that the applicant’s offending did not fall within that category. Nevertheless, the respondent submitted that as a consequence of uplifting sentences for the upper range, a corresponding widening of the appropriate range for mid- and low-category offending was required. It submitted that this would enable future sentences to be more reflective of the serious nature of this type of offending at all levels and would avoid future compression of the ranges. Whilst recognising that it had previously submitted that some reduction in the sentence was appropriate, the respondent now submitted that as a consequence of Gregory, no different sentence, or a sentence ‘near to’ that which had been imposed at first instance, would be appropriate.
Conclusion
Specific error having been made out, this Court must resentence the applicant, unless no less severe sentence should be imposed. It was not in issue that the applicant’s offending should be categorised as in the lowest category of seriousness given the scant evidence of trafficking, the small quantity of drugs found to be in his possession, and his having been sentenced on the basis of offending on one specific day. A consideration of the sentences imposed in cases (including those discussed in Gregory) involving charges of trafficking in a commercial quantity of a drug of dependence, in particular methylamphetamine, demonstrates that those cases mostly involved objectively graver, ongoing offending in commercial operations, or else higher quantities of illicit drugs (and sometimes both).[51]
[51]Judicial College of Victoria, ’33.13.3.1 – VSCA Overview – Trafficking in Commercial Quantity Sentences’, Victorian Sentencing Manual (Judicial College of Victoria, 2017). See, eg, Mustica v The Queen [2011] VSCA 79; R v Strawhorn [2008] VSCA 101; Hafner v The Queen [2012] VSCA 190. See also Gregory [2017] VSCA 151 [52]–[67].
That said there were factors present that elevated the seriousness of the applicant’s criminality. The applicant’s lack of a guilty plea, absence of remorse, prior convictions, together with the fact that he reoffended whilst serving a CCO for similar offending, militated towards a longer sentence for low category offending. In addition, because of the prevalence of the offence of trafficking in a commercial quantity of methylamphetamine, Haddara provides guidance as to the need to increase sentences for such offending.
While the sentencing judge was obliged to take guidance from this Court’s conclusions in Haddara, her Honour was mistaken in thinking that there had been a statement from this Court that the sentencing standard for the offence of trafficking in a commercial quantity was inadequate. As events transpired, subsequent to her Honour’s sentence, this Court did state in Gregory that there should be an uplift in sentencing practice for the upper category of the offence. The respondent contends that Gregory also affects sentencing practice for the lower categories of seriousness of the offence and so affects any resentencing of the applicant.
Gregory requires that sentences for offending in the upper category of seriousness, and the upper range of the mid category of seriousness, should be decompressed by increasing sentences in the upper category. It also stipulates that an appropriate relativity must be maintained between sentences for each category of seriousness of the offence. This knock-on effect from an uplift to sentencing standards with respect to a particular category of seriousness was discussed in Nguyen[52] and in Harrison v The Queen.[53]
[52](2016) 311 FLR 289, 332–3 [147]–[152] (Redlich JA, Tate and Whelan JJA agreeing).
[53](2015) 49 VR 619, 650 [137]–[140].
The respondent’s submission as to how Gregory affects sentencing practice generally for this offence cannot be accepted without substantial qualification. The necessary relativity between categories of seriousness referred to in Gregory will not be maintained if an increase in sentencing practice is uniform across each category of the offence. That is to say, a recalibration of sentencing practices for the offence of trafficking in a commercial quantity of a drug of dependence must continue to allow for some low- and mid-category offending to receive sentences at the very bottom of the relevant range, as well as requiring incremental changes to sentence lengths. Accordingly, sentences imposed for trafficking in a commercial quantity of a drug of dependence in the upper category will be most affected by the uplift, whereas there will be greater flexibility in the range for the middle and lower categories of seriousness. In other words, the uplift will have an increasingly diminished effect as one moves from the upper to the middle and lower categories of seriousness. In this way the ‘spread of sentences across the statistical range’ and ‘identifiable relativity between offence seriousness’ contemplated in Gregory will be achieved.[54] It will result in modest increases in the sentences in the lowest category.
[54][2017] VSCA 151 [98].
As this Court observed in Nguyen,[55] and repeated in Gregory,[56] where error has been established, and the offender falls to be resentenced, it is a matter of discretion as to whether the sentence imposed should be affected if an intermediate appellate court also concludes that existing sentencing standards are inadequate. Where the offender has pleaded guilty, but falls to be resentenced, considerations of fairness have generally led to the Court declining, as a matter of discretion, to visit the offender with any uplift in sentencing practice. There is, however, no binding principle that the offender’s sentence should not be so affected. In the present case, the applicant was convicted following a trial, which means—as the respondent submits—that there is no reason residing in fairness to the applicant why he should not be visited with any consequence which flows from uplifted sentencing practices.
[55](2016) 311 FLR 289, 332–4 [110]–[116] (Redlich JA, Tate and Whelan JJA agreeing).
[56][2017] VSCA 151 [93]–[94].
The specific error made by her Honour has proved to be a material one. Any necessary alteration in sentencing standards from the combined effect of Haddara and Gregory does not lead to the conclusion (advanced by the respondent) that, in resentencing the applicant, a sentence no less severe or very near that imposed upon him at first instance would be appropriate.
As I said in Nguyen, even where a prisoner establishes specific error or manifest excess in an appeal against sentence:
the application of a corrected sentencing standard may result in the appeal failing or being reduced but by an amount less than would have been required had current sentencing practice applied.[57]
[57](2016) 311 FLR 289, 334 [116] (emphasis added).
The applicant’s supplementary submission stated that, despite his plea of not guilty, he is remorseful for his actions. In that regard I would not depart from the view formed by the sentencing judge. The applicant also referred to the various courses that he had completed since he has been incarcerated. He submitted that his father had opened a mobile food restaurant in anticipation of his early release and, tragically, that his only child had very recently died.
Taking these and the other matters referred to by the sentencing judge into account, I would resentence the applicant to a less severe sentence than that imposed on charge 1, but reduce his sentence by an amount less than that required by the previous sentencing standard. I would re-sentence the applicant to four years and nine months’ imprisonment on charge 1 (trafficking in a commercial quantity of a drug of dependence).
It is not in issue that the applicant must be resentenced to a lesser sentence on charge 2. I would impose a sentence of one year and nine months’ imprisonment on that charge and order that four months of that sentence be cumulated on the sentence on charge 1. As they have not been challenged, I would confirm the sentences of one year and six months’ imprisonment on charge 5 and one year’s imprisonment on charge 6, and the orders of cumulation of three months and two months respectively. This results in a total effective sentence of five years and six months’ imprisonment. I would fix a non-parole period of three years.
TATE JA:
I have had the advantage of reading in draft the reasons of Ashley JA and those of Redlich JA. I gratefully adopt Redlich JA’s statement of the circumstances of the offending and the outline of the sentencing judge’s reasons.
The Crown conceded, appropriately in my view, that the sentence on charge 2, trafficking in a drug of dependence (ketamine), contrary to s 71AC of the Act, is manifestly excessive. The judge imposed a sentence of imprisonment of three years and six months, with nine months’ cumulation on the base sentence. The Crown accepted that the sentence on charge 2 was beyond the range appropriate for the offender given his personal circumstances and the quantity of the drug found on him, 21.5 grams, which was about seven times the traffickable quantity threshold for ketamine (three grams) but well below the commercial quantity threshold of 500 grams.
The Crown further conceded error in respect of the sentence on charge 1, trafficking in a commercial quantity of a drug of dependence (methylamphetamine) contrary to s 71AA of the Act. The error occurred in the sentencing judge’s observation when she said:
[I]n recent times, the Court of Appeal has indicated that current sentencing practices for trafficking, particularly in a commercial quantity, have inadequately reflected the seriousness of this crime.[58]
[58]Reasons [13].
Out of fairness the Crown accepted that it is likely that the judge may have mistakenly formed the view that the recent decision of this Court, Nguyen,[59] applied to trafficking in a commercial quantity and so to the present matter. However, Nguyen was concerned with the offence of cultivation of a drug of dependence in not less than a commercial quantity, and not trafficking in a commercial quantity. The Crown accepted that while the judge did not specifically state that she increased the sentence in response to Nguyen, it is reasonably arguable that she did so.
[59](2016) 311 FLR 289.
It was also not in dispute that it is possible that her Honour, in the observation extracted above, may have been referring to Haddara,[60] in which this Court accepted that in cases of trafficking methylamphetamine there should be a greater focus on general deterrence than when another drug is trafficked:
The prevalence of trafficking in ice is so great, the Director submitted, that general deterrence must be given even more focus in the case of that drug than in others. To afford general deterrence greater prominence in cases of trafficking in ice than in cases involving the trafficking of other drugs, the Director submitted, does not offend the principles in Pidoto. It was submitted that Pidoto rests on the foundation that by determining a ‘quantity-based’ relativity between different drugs, the legislature excluded the possibility of a ‘harm-based gradation’. Nothing in that reasoning, however, requires a sentencing judge to exclude from consideration other relevant aspects of an offence unrelated to the harmful characteristics of the drug. For that reason, so the Director submitted, given that the available evidence demonstrates that trafficking in ice is prevalent, it is permissible for a sentencing judge to apply the ‘ordinary approach’ to prevalence, and give additional weight to general deterrence and denunciation.
In our view, the Director’s submissions as to how trafficking in ice ought now be approached should be accepted ... in Pham, French CJ, Keane and Nettle JJ recognised that although the court in Adams rejected any idea of a judicially constructed assessment of the relative harmfulness of the different kinds of narcotic substances, nothing said in Adams displaced the holding in Wong that to 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, represented a departure from fundamental sentencing principle.[61]
[60][2016] VSCA 168.
[61]Ibid [66]–[67] (citations omitted).
The Crown submitted that, nevertheless, although the sentence imposed on charge 1 is at the upper level of the range available in a sound exercise of the sentencing discretion, it does not exceed it and that, ultimately, in light of Gregory,[62] no different sentence should be passed in the re-exercise of the sentencing discretion which falls to this Court. In the alternative it was submitted that a sentence near to but not exceeding the present sentence on charge 1 is justifiable.
[62][2017] VSCA 151.
It is clear that the applicant’s offending does not fall in the upper category of gravity for charge 1. This is apparent from multiple factors relevant to the offending including the circumstance that the quantity in possession for sale by the applicant was just over the threshold amount, the applicant being charged with possession of 107.6 grams of methylamphetamine for sale when the threshold is 100 grams. There was also a paucity of information about the details of the offending, given that the charges were laid on the basis of observations of the applicant exiting a sliding door of the house in respect of which a search warrant was being executed and heading towards the back fence. The search ultimately led to charges being laid against the applicant and a co-offender, the owner of the house who, when interviewed, said no one lived there with him. It was not alleged that the applicant was the principal of an organised trafficking enterprise. Indeed, the sentencing judge remarked:
Save to say that you played a part in the illegal movement of drugs, it is not possible to further clarify the nature and extent of your role.[63]
[63]Reasons [13].
Nor is it alleged that the duration of the offending extended beyond the day of the execution of the warrant, 7 October 2014, the ‘offending on all charges occur[ing] on the same date’.[64]
[64]Ibid [21].
Moreover, it is noteworthy that Mr Bernard Healey, clinical psychologist, recorded in his report, upon which the applicant relied, that the applicant is ‘most distressed over his current situation, with the stark realisation of just where associations on the drug scene have led him’. For the purpose of the re-exercise of the sentencing discretion, the applicant requested that the Court be informed that despite his plea of not guilty, he is now remorseful for his actions and that since incarceration he has completed a ‘Changing on the Inside’ course together with a 44 hour semi-intensive drug rehabilitation course. The Court was informed that this is the first time the applicant has been imprisoned and that since the hearing of the application for leave to appeal the applicant’s only child, a daughter, died, on 21 June 2017, at the age of 13. Mr Healey’s report made mention of the applicant’s concern for his daughter who had encountered significant adjustment problems.
It is also noteworthy that the judge considered the applicant to have reasonable prospects of rehabilitation, given his concerted efforts to rid himself of his drug abuse since this offending, his ongoing family support, and the significant periods in the past when he has shown that he is capable of applying himself to work. It was on this basis that her Honour considered that she would reduce the non-parole period which would usually apply.[65] The successful attempts the applicant has made to extricate himself from drug use were also referred to in Mr Healey’s report.
[65]Ibid [21].
In these circumstances, I consider that the applicant ought be sentenced to a lesser sentence than that which was imposed with respect to charges 1 and 2. In particular I agree with Redlich JA that the applicant ought be sentenced on charge 1 to four years and nine months’ imprisonment and that this should stand as the base sentence. I also agree that on charge 2 the applicant should be sentenced to 21 months’ imprisonment with four months cumulation. The sentences on charge 5 of one year and six months’ imprisonment for trafficking in a drug of dependence (cocaine) contrary to s 71AC of the Act, and one year’s imprisonment on charge 6 for trafficking in a drug of dependence (heroin) contrary to s 71AC of the Act, with respective cumulation of three months and two months respectively, have not been impugned and should remain undisturbed. This results in a total effective sentence of five years and six months’ imprisonment.
I also agree with Redlich JA that the non-parole period should be fixed at three years. While this does not quite reflect the less than usual non-parole period ratio chosen by the sentencing judge, it is also important to ensure that the re-sentencing exercise adequately reflects the denunciation of the total criminality involved.
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