Glen McKinnell v The Queen

[2014] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0186

GLEN McKINNELL	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 February 2014
DATE OF JUDGMENT	21 March 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 39
JUDGMENT APPEALED FROM	DPP v McKinnell (Unreported, County Court of Victoria, Judge Smallwood, 24 May 2013)

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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of trafficking a large commercial quantity of methylamphetamine – Applicant sentenced to nine years, nine months imprisonment with a non-parole period of six years and three months – Co-offender sentenced to a total of three years and two months imprisonment with a non-parole period of one year and nine months – Significant assistance to law enforcement agencies – Parity principle – No justified sense of grievance – Application refused – No point of principle.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr T Kassimatis	Theo Magazis & Associates
For the Respondent	Mr B F Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

1. For the reasons given by Bongiorno JA, I would also refuse leave to appeal.

BONGIORNO JA:

1. The applicant and a co-offender, James Chance, each pleaded guilty to one charge of trafficking in a large commercial quantity of methylamphetamine contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981.  This offence carries a maximum sentence of life imprisonment.  For his part the applicant received a sentence of nine years, nine months imprisonment.  He also pleaded guilty to a charge of handling stolen goods for which he received six months imprisonment with total concurrency.  The sentencing judge fixed a non-parole period of six years and three months imprisonment.

1. The applicant’s co-offender received a sentence of three years’ imprisonment on the major trafficking charge and a number of shorter sentences of imprisonment on other less serious trafficking and possession of drugs charges as well as a firearms offence and a proceeds of crime offence.  His actual sentences were in accordance with the following table:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Trafficking in a Drug of Dependence namely Methylamphetamine — Large Commercial Quantity [S 71 Drugs, Poisons and Controlled Substances Act (D,P & CSA) 1981]	Life imprisonment [S 71 D, P & CSA 1981]	3 years’ imprisonment	Base
2.	Traffick Drug of Dependence [S 71AC D, P & CSA 1981]	15 years’ imprisonment [S 71AC D,P & CSA 1981]	3 months’ imprisonment	1 month

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
3.	Traffick Drug of Dependence [S 71AC D, P & CSA 1981]	15 years’ imprisonment [S 71AC D, P & CSA 1981]	3 months’ imprisonment	Nil
4.	Cultivate Narcotic Plant [S 72B D, P & CSA 1981]	15 years’ imprisonment [S 72B (b) D, P & CSA 1981]	3 months’ imprisonment	1 month
5.	Possess Unregistered Long Arm	7 days’ imprisonment	Nil
6.	Possession of a Drug of Dependence [S 73(1) D, P & CSA 1981]	5 years’ imprisonment and/or 400 penalty units [S 73(1) D, P & CSA 1981]	7 days’ imprisonment	Nil
7.	Possession of a Drug of Dependence [S 73(1) D, P & CSA 1981]	5 years’ imprisonment and/or 400 penalty units [S 73(1) D, P & CSA 1981]	7 days’ imprisonment	Nil
8.	Knowingly Deal with Proceeds of Crime	3 months’ imprisonment	Nil
Total Effective Sentence:		3 years and 2 months’ imprisonment
Non-Parole Period:		1 year and 9 months’ imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		203 days

1. The applicant now seeks leave to appeal his sentence on the trafficking charge on the ground that there is a manifestly excessive difference between his sentence and that of his co-offender on the same charge such as to engender a justified sense of grievance.  Both offenders were sentenced by the same judge, but on different days, about five months apart.

1. In sentencing the applicant’s co-offender the sentencing judge referred to a number of matters which were not applicable in the applicant’s case, namely his co‑offender’s youth, his complete lack of prior convictions, his ‘confessional’ record of interview and, most significantly his undertaking to give evidence against a number of other co-offenders at a risk to his own safety and possibly that of members of his family.  It was accepted before the sentencing judge that James would serve the whole of his sentence in ‘protection’ by reason of his having extended assistance to prosecution authorities in respect of other offenders.  The sentencing judge said:

You gave an undertaking to give evidence against a number of co-accused and I direct that be entered in the records of the court.  Your counsel described those co-accused as ‘serious players’ and I have no doubt that that is true.  The Crown agree that your evidence that will be given against those other people is very significant.  It is not the only evidence against them, but the Crown indicate, as I said, that it is significant and under the circumstances it is confirmatory of your high degree of remorse.

You will have to spend the sentence in protection, and I take that into account.  The reason I take that into account is because being in protection you will not be in a position to do all the courses or any activities that prisoners in mainstream are able to do.  You will be in custody as undoubtedly, even the one who has asked for a sentencing indication I suspect, with other people who may well wish you harm (sic).  You have a fear that you are at risk and that your family is at risk.  That risk may very well be well founded.  Not only will that risk continue during the course of your sentence but obviously with your family so obviously living in Lakes Entrance, as they do, the risk must continue after your release.  It is difficult to quantify just how long that will go on.

The consequence of that to you is that you will undergo a sentence believing that your family is at risk.  Leaving aside potential risk to yourself that is a very ugly way in which to have to undergo a sentence.  It will be much harder for you in gaol because of all those matters.  I make it very clear that when dealing with trafficking of this order it is crucial that people be encouraged to give evidence against others.  The only way that this sort of criminal activity, I suspect, can be eradicated is if people involved in it are prepared to give up, as the expression goes, others.  There must be a discount which is significant and demonstrably significant.[1]

[1]R v James, Reasons for Sentence, 21 December 2012, [24]–[26].

1. His Honour concluded his sentencing remarks as follows:

What I simply say to you is this; when I take into account your assistance, the circumstances in which that means that you will have to serve your sentence added with the remorse and the plea of guilty which have been given, I would have imposed a sentence of in the order of ten years.  That is on a 25‑year-old with no prior convictions.  I think that makes it very clear how seriously the matter is to be regarded…[2]

[2]R v James, Reasons for Sentence, 21 December 2012, [29].

1. It is clear that when he came to sentence the applicant, the sentencing judge was acutely conscious of the parity question.  He recognised that, although he had sentenced a number of others involved in the same or related activity arising from the same circumstances, the only one in respect of whom parity would appear to be an issue was James.  He referred to the question in [8], [19] and [20] of his sentencing remarks when sentencing the applicant.  He noted that the applicant’s counsel accepted that the applicant’s role was ‘slightly above that of James’ and then dealt with the parity question as follows:

Mr James, for this particular offence of large commercial quantity, was sentenced to a period of imprisonment of three years.  He also pleaded guilty to other offences involving drugs, and so he received in total three years and two months with one year and nine months minimum.  The suggestion was made at one stage that I was to regard you as a serious drug offender.  I was not asked to do that in respect of Mr James.  I looked at the legislation and I do not propose to do so.  It would make no difference to the sentence that I intend to impose.  Life certainly gives a judge plenty of scope.

The differences between you and Mr James are, that he was significantly younger, he had no prior convictions at all, that he had given very significant assistance to the Crown and the prosecution or potential prosecution of others, and that he was going to do his entire sentence in protection.  You will not be in protection, and you do not get the benefit of the very significant discount given for cooperation or an undertaking in respect of cooperation as to others.  As I say, I will annex the Crown opening to my sentencing remarks with the notation, if I can put it that way, that your counsel has disagreed with significant portions of it, and I have endeavoured to take that into account in my overall assessment of the situation.

I then look to matters personal to you as to what sort of sentence has to be imposed here.  The Crown had a range of 10 to 12 on top with an eight to 10 on the bottom.  Where you have got a prior for it, you are 34, you are doing it over a period of a year in very significant quantities, that seems to me to be around about the ballpark that we are dealing with.  I then have to endeavour to look at Mr James in comparison with your situation.[3]

[3]Reasons, [20]–[22].

1. As the majority pointed out in Lowe v R,[4] mere disparity between sentences imposed on co-offenders is not of itself a ground for the intervention of an appellate court.  To be appellable the disparity between sentences on co-offenders must be unjustifiable.  It must be excessive and manifestly so.  But that is not this case.  The reasons for the apparent disparity between the sentences imposed by the sentencing judge on the applicant and James are explained in his sentencing remarks.  Even if they were not, the factual basis and circumstances upon which each of those sentences was imposed were markedly different.  As already pointed out there were a number of factors which distinguished the conduct for which James was sentenced from that upon which the applicant was sentenced.  The most significant, but not the only distinction, was James’ cooperation with prosecuting authorities.

   [4](1984) 154 CLR 606.

1. There is no legislative or authoritative judicial authority which prescribes the discount which should be applied to a sentence where an offender pleads guilty and undertakes to assist police and the Crown in the prosecution of co-offenders.  In R v Johnston,[5] Nettle JA said:

… There is also a further difficulty that, in the absence of legislative prescription or authoritative appellate pronouncement, there is no necessarily correct amount of the informer discount in a given case.  While there are decisions which suggest a discount of 50%, or perhaps even as much as two thirds, it is inevitable that circumstances will differ between cases.  For example, in some cases the quality of information which an informer is able to provide to authorities may be of such limited utility that any discount would be thought of as excessive.  In others, it could be that the information which the informer is able to provide is so valuable, and the risks to which he may expose himself by informing are so great, that a discount of 50% would not be enough.  Other relevant considerations include the nature and gravity of the crime, the offender’s moral culpability, prevalence and the need for deterrence of the crime in question, and whether it is perceived that there is a need to encourage offenders to inform against other offenders concerning crimes of that kind. 

[5](2008) 186 A Crim R 345, [18] (footnotes omitted).

1. In that case Nettle JA considered that a discount of 50% should be extended to the prisoner as the Crown had conceded that he was ‘entitled to the maximum discount on sentence which proper sentencing practice is able to afford him’.

1. In the instant case the sentencing judge did not descend to percentages but, it is clear, on the passages quoted above that those against whom James was prepared to testify were ‘serious players’ and that the Crown agreed that his evidence was ‘very significant’.  His Honour said that the discount for this aspect alone must be ‘significant and demonstrably significant’; such discount to be applied to a nominal sentence of ‘in the order of 10 years’ — slightly higher than that imposed upon the applicant.

1. When account is taken of the other significant differences between the applicant and James (age, lack of prior convictions etc.) as well as the ‘informer’s discount’ a sentence of three years, two months with a non-parole period of one year, nine months is well within the ambit of a reasonable sentencing discretion, as is the sentence imposed upon the applicant.

1. I would refuse leave to appeal.

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