Gregory (a pseudonym) v The Queen
[2017] VSCA 151
•23 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0254
| BRIAN GREGORY (A PSEUDONYM)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Appellant and of certain other persons.
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| JUDGES: | MAXWELL P, REDLICH and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 November 2016 |
| DATE OF JUDGMENT: | 23 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 151 |
| JUDGMENT APPEALED FROM: | DPP v [Gregory] (Unreported, County Court of Victoria, Judge Bourke, 13 October 2015) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking in commercial quantity of methamphetamine – Sentence 8y 6m – Whether manifestly excessive – Plea of guilty – Offender operated trafficking syndicate for profit – Business conducted over eight months – Quantity trafficked approached threshold for large commercial quantity – Violent enforcement methods – Whether trafficking offence aggravated by operational violence – Whether double punishment on separate offences of violence – Post-traumatic stress disorder – Delay – Sentence within range – Use of comparable cases – Appeal dismissed – Drugs, Poisons and Controlled Substances Act 1981 s 71AA.
CRIMINAL LAW – Sentencing – Trafficking in drug of dependence – Trafficking in commercial quantity (CQ) – Current sentencing practice – Whether sentencing practice reflects objective seriousness of offending – Quantity-based sentencing regime – Whether sentencing for upper range of CQ trafficking offences adequate – Sentences clustered under 10y – Need for sentencing practice to change – Exercise of discretion not to visit offender with uplift of current sentencing practice – Nam Son Nguyen v The Queen (2016) 311 FLR 289 considered – Drugs, Poisons and Controlled Substances Act 1981 s 71AA – Ashdown v The Queen (2011) 37 VR 341 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Dann QC | Tricarico & Marcevski Lawyers |
| For the Respondent | Mr B Kissane QC | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
BEACH JA:
Summary
For a period of eight months in 2013, the appellant (‘BG’) ran a drug trafficking business in regional Victoria. The drugs — principally methylamphetamine (‘ice’) — were brought to regional Victoria by van from New South Wales. BG supplied the drugs to a network of dealers who on-sold them. He used intimidation, fear and violence to enforce payment of the debts which the dealers incurred.
The appellant ultimately pleaded guilty to four trafficking charges, four charges involving violence and one charge each of theft and blackmail. Of the 10 charges, the most serious was that of trafficking in a commercial quantity of methylamphetamine between 17 May 2013 and 21 January 2014 (‘the CQ trafficking charge’). On that charge, BG was sentenced to eight years and six months’ imprisonment. As appears from the sentencing table below,[2] the total effective sentence was nine years and five months’ imprisonment. A non-parole period of six years’ imprisonment was fixed.
[2]See [22] below.
BG was granted leave to appeal on the ground that the sentence imposed was manifestly excessive. On the leave application, and again on the hearing of the appeal, the contention for BG was that the sentence on the CQ trafficking charge was ‘at or near the highest sentence ever imposed for this offence’.[3] According to the submission, that sentence could not be justified having regard to current sentencing practice (‘CSP’) for the offence.
[3]Gregory (a pseudonym) v The Queen (Unreported, Victorian Court of Appeal, Maxwell P, 27 May 2016) [2].
Before the hearing of the appeal, the Director filed a supplementary submission contending that sentencing practices for CQ trafficking had been
unduly compressed at the ‘top’ end of the range and require recalibration to reflect the inherent gravity of the offending conduct, the impact of the offence upon addicts and the wider community in general, and the high maximum penalty prescribed for the offence.
As will appear, it has been necessary to examine CSP for CQ trafficking in dealing with BG’s submission that the sentence of eight years and six months’ imprisonment on the CQ trafficking charge was outside the range reasonably open and was therefore manifestly excessive. As is customary, both parties provided the Court with what they said were comparable cases, to enable an assessment of whether the impugned sentence infringed upon the principle of ‘equal justice’ that ‘like cases be treated alike’.[4] We shall return to the importance of the comparable cases in the context of this appeal.
[4]Barbaro v The Queen (2014) 253 CLR 58 (‘Barbaro’). See also DPP v Thomas (2016) 315 FLR 31.
For reasons which follow, we have concluded that the sentence of eight and a half years’ imprisonment on the CQ trafficking was within range, taking into account the analysis of current sentencing. This offending was at the upper end of seriousness for this offence, given the very large quantity involved, the sophistication of BG’s trafficking network and his dominant role. We are not persuaded that the fundamental consideration of sentencing consistency (to which CSP is relevant) obliged the judge to impose a lower sentence on the CQ trafficking charge.
Related questions arose in the course of argument concerning whether the judge had erroneously increased the sentence on the CQ trafficking charge:
(a) by treating as an aggravating feature of that offending the violence with which BG enforced the debts owed by his dealers; and/or
(b) by treating the sentence for the CQ trafficking as referable also to the other, lesser, charges of trafficking (in cocaine, steroid agents and MDMA), in respect of which no cumulation was ordered.
For reasons which follow, we have concluded that there was no such sentencing error. The judge was entitled to treat the operational violence as a relevant feature of the trafficking business and as aggravating the seriousness of the offending. Senior counsel for BG conceded, both on the plea and in this Court, that this was so. At the same time, as will appear, the judge was astute to avoid double punishment for the individual offences involving violence.
Further, we would uphold the Director’s submission that current sentencing for CQ trafficking is ‘unduly compressed’ for offences at the upper end of seriousness, and does not reflect the inherent gravity of the offending, the impact on the community or the high maximum penalty. As the Director submits, sentencing practice must change. There needs to be an appropriate relativity between the sentencing standards for each category of seriousness of an offence and in the case of trafficking offences, which have an ascending order of seriousness depending on quantity, an appropriate relativity must be maintained between sentencing standards for each quantity-based offence.
Circumstances of the offending
In 2013, a regional Criminal Investigation Unit commenced an investigation into the drug trafficking in methylamphetamine. A number of offenders (including BG) were charged arising out of this investigation.
BG was a member of the Australian Army between 1998 and 2004. He then worked intermittently as a private security contractor in Iraq and Afghanistan, until his return to Australia in about 2008.
In March 2013, BG moved to regional Victoria. This move coincided with the him being commissioned to operate a drug trafficking network in the area. BG formed an association with a co-offender (‘T’), and working together they took control of the drug trafficking business. The drugs were distributed by a network of dealers who purchased drugs from BG (mainly ‘ice’ with smaller markets of cocaine and ecstasy) and on-sold them.
In May 2013, BG organised for the purchase of a van from New South Wales for drug runs. He had the vehicle registered in another person’s name. The van was fitted with hidden compartments to conceal cash, firearms and drugs for trips between Victoria and New South Wales.
Over the following months, BG established a sophisticated network of dealers, who were responsible for trafficking drugs in the regional area under his control. He managed the money and made the arrangements with the leaders of the trafficking syndicate in New South Wales.
BG used a variety of drivers for the New South Wales–Victoria drug runs. In a period of one month, the van had been driven 7,000 kilometres. Some drivers were paid while others were forced to drive the van as a way of paying off their drug debts to BG.
BG allowed his dealers some credit, but enforced drug debts through intimidation, fear and violence. BG and T regularly inflated sums of money owed by the syndicate’s dealers and buyers. As a result, dealers who were in debt to BG were pressured by way of payment plans, or assaulted by BG and his associates, as a means of debt recovery. On a particular occasion, BG and his associates met with a dealer who owed a significant drug debt. BG hit this dealer in the face, causing him to fall to the ground. BG and his associates punched and kicked the dealer a number of times while he was on the ground. This occurred in full view of families and children who witnessed the assault at a busy café. This constituted charge 5 of affray.
Charges 6, 7 and 8 (intentionally causing injury) involved assaults on various dealers as pressure for payment of drug debts. Charge 10 (blackmail) occurred within a similar context of debt recovery. Another dealer had fallen into debt, by failing to manage money owed by his purchasers. This dealer tried to hide his car from BG at a family member’s home. He was threatened with serious injury (on instruction from BG) if he did not leave the vehicle at BG’s home. This car was eventually seized by police from a shed at BG’s premises, when he was arrested in January 2014.
In early December 2013, one of the lesser dealers, who owed a significant debt to BG’s business, drove the van to New South Wales. The was van crashed on the return journey and abandoned. At some point, BG ordered the seizure of this dealer’s motor vehicle as payment for crashing the van. This relates to charge 9 of theft.
On 14 December 2013, this dealer conducted another drug run to New South Wales in a different vehicle with a more senior member in the business. Police intercepted this vehicle on its return. Drugs located behind the door skin of the passenger side door were 282.4 grams of methylamphetamine (80 per cent purity) and 131.8 grams of cocaine (70 per cent purity).[5] (The threshold for commercial quantity of methlyamphetamine is 100 grams, and for cocaine is 250 grams.)[6] Thirty vials of steroids were also located in secret compartments of the vehicle. Evidence of the regular journeys to New South Wales, and other aspects of the drug distribution, show that the total quantity trafficked by BG over the eight month period was much more, though the prosecution cannot establish a precise figure.
[5]The quantities seized equated to 226 grams of pure methylamphetamine and 92.26 grams of pure cocaine.
[6]Drugs, Poisons and Controlled Substances Act1981 sch 11, pt 3 (‘DPCS Act’).
BG pleaded guilty to the CQ trafficking charge (charge 1).[7] The 226 grams of pure methylamphetamine located in the vehicle alone had an estimated street value of $282,000. Charge 2 related to trafficking simpliciter in cocaine, and charge 3 related to trafficking simpliciter of the steroid agents. The street value of the cocaine was estimated at approximately $60,000 and of the steroids at $1,000. Charge 3 was laid on the basis that the van was used to traffick steroids from May 2013, albeit in an indeterminate amount, and the prosecution accepted that the steroids found were for BG’s personal use.
[7]See [2] above.
Charge 4 arises from the trafficking in MDMA (‘ecstasy’), where the prosecution allege BG purchased 5,000 ecstasy tablets. Evidence was given that ecstasy was a lesser focus of BG’s drug distribution operations, due to its higher cost.
BG was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence in commercial quantity (methylamphetamine)
[DPCS Act s 71AA]25y
[DPCS Act s 71AA]8y, 6m Base 2 Trafficking in a drug of dependence (cocaine) [DPCS Act s 71AC] 15y
[DPCS Act s 71AC]3y Nil 3 Trafficking in a drug of dependence (anabolic steroidal agents) [DPCS Act s 71AC] 15y
[DPCS Act s 71AC]12m Nil 4 Trafficking in a drug of dependence (MDMA) [DPCS Act s 71AC] 15y
[DPCS Act s 71AC]2m Nil 5 Affray [common law] 5y
[CA s 320]8m 2m 6 Intentionally causing injury
[Crimes Act 1958 s 18 (‘CA’)]10y [CA s 18] 10m 2m 7 Intentionally causing injury 10y 10m 2m 8 Intentionally causing injury 10y 10m 2m 9 Theft [CA s 74(1)] 10y
[CA s 74(1)]2m 1m 10 Blackmail [CA s 87(1)] 15y [CA s 87(3)] 6m 2m Total Effective Sentence: 9y, 5m Non-Parole Period: 6y 6AAA Statement: 14y, with a non-parole period of 11y Offence seriousness – the quantity trafficked
As this Court has pointed out repeatedly, the sentencing regime for trafficking offences is quantity-based.[8] That is, the legislature has fixed the maximum penalties by reference to specified quantitative thresholds — commercial quantity (‘CQ’) and large commercial quantity (‘LCQ’) — with the applicable quantities for each drug of dependence specified separately.[9] Thus, CQ trafficking of methylamphetamine is 100 grams (pure) and 500 grams (mixed).[10] Trafficking a quantity below that threshold attracts a maximum penalty of 15 years’ imprisonment.[11] Trafficking a quantity equal to or above that threshold attracts a maximum penalty of 25 years’ imprisonment.[12] The threshold for LCQ trafficking of methylamphetamine is 750 grams.[13] Trafficking a quantity equal to or above that threshold attracts a maximum penalty of life imprisonment.[14]
[8]See R v Pidoto and O’Dea (2006) 14 VR 269, 272–3 [11]–[15].
[9]DPCS Act sch 11, pt 3.
[10]Ibid.
[11]Ibid s 71AC(1).
[12]Ibid s 71AA.
[13]Ibid sch 11, pt 3.
[14]Ibid s 71(1)(a).
It follows, as the Crown submitted on the appeal, that quantity is a highly relevant consideration in sentencing for trafficking offences. Counsel for BG accepted this was so. Other things being equal, the greater the quantity trafficked the more serious the offence.[15] There are, of course, other important indicators of offence seriousness — in particular, the offender’s role in the trafficking, the duration of the offending and the motivation for the offender’s involvement.
[15]DPP (Cth) v KMD [2015] VSCA 255 [52].
As to the quantity the subject of the CQ trafficking charge in the present case, the judge said:
The 226 grams of pure methylamphetamine seized by police … comfortably surpasses the commercial quantity threshold. Evidence of the van’s regular journeys to [New South Wales] and other aspects of the distribution to the [regional] area make clear that the total quantity trafficked over the relevant eight months was much more. A precise figure is not possible.[16]
On the plea, the judge described the quantity trafficked as ‘getting close’ to the LCQ threshold. The prosecutor agreed.
[16]DPP v [Gregory] (Unreported, County Court of Victory, Judge Bourke, 13 October 2015) [18] (‘Reasons’).
On the appeal, senior counsel for BG conceded that his Honour was entitled to sentence on the basis that the amount trafficked was (at least) 500 grams. This represents five times the CQ threshold (five times CQ) or two-thirds of the LCQ threshold (two-thirds of LCQ).[17] Quite properly, senior counsel conceded that this was a very serious instance of drug trafficking.
[17]See [23] above.
As will appear, one of the comparisons on which BG relies is with the decision of this Court in Director of Public Prosecutions v Bass (a pseudonym).[18] In that case, the offender was convicted after a trial of trafficking in a quantity of methylamphetamine just below the LCQ threshold. He was sentenced at first instance to 10 years’ imprisonment on that charge. On appeal, specific error was established and this Court, while declining to hold that the original sentence was manifestly excessive, resentenced him to eight years’ imprisonment.[19]
[18][2014] VSCA 350 (‘Bass’).
[19]Ibid [232], [234].
Offence seriousness — accompanying violence
The judge described BG’s offending as ‘very serious’.[20] He said:
The drug trafficking enterprise you operated was prolonged over eight months. It was on a large scale, organised and enforced by violence and intimidation. Drugs such as these are seen as greatly damaging to our community, and often its vulnerable. The individual offences before me such as assault and blackmail also evidence the brutal authority with which the business was run. … The serious adverse features of the business and associated offences alone speak of high criminality.[21]
[20]Reasons [41].
[21]Ibid.
Examination of the plea transcript reveals that the judge initially put to the prosecutor that the seriousness of the trafficking was aggravated by the ‘particularly unattractive methods’ of enforcement which BG used. But, his Honour added, ‘he can’t be punished twice’. The judge then said to the prosecutor that it seemed ‘the sensible way of doing it’, to treat the violence as an aggravating feature of the trafficking ‘because this was a serious and malevolent drug business, badly affecting a community and even those unfortunates who were within it’. When the judge then suggested that this approach might require full concurrency of the sentences for the offences of violence, the prosecutor responded that there ought to be partial cumulation for those offences.
Senior counsel then appearing for BG (who did not appear on the appeal) expressly conceded that ‘the methods used’ in enforcement constituted an aggravating feature of the trafficking offences. Indeed, as Redlich JA pointed out in argument, the plea submission appears to have been directed at persuading the judge to take the operational violence into account in fixing the sentences imposed on the trafficking charges, and then to order relatively little cumulation of the sentences imposed on the individual charges of violence.
That submission appears to have achieved its objective. As can be seen from the sentencing table, there was very modest cumulation of the sentences on the violence charges.[22] The sentences on charges 5 to 8 totalled three years and two months’ imprisonment, but the cumulation totalled only eight months.
[22]See [22] above.
At the hearing of the appeal, Redlich JA asked senior counsel for BG whether the violence employed by BG in running the trafficking business was properly to be regarded as an aggravating feature of the trafficking. In response, counsel accepted that the violence was part of the relevant character of the offending ‘in a broad way’, but submitted that the judge had erroneously taken into account for this purpose the violence the subject of the separate charges. This was said to be impermissible double punishment. Counsel then sought leave to rely on an additional ground of appeal, contending that the judge erred
in imposing the sentence for the charge of trafficking in a commercial quantity — by increasing the sentence to be imposed on that charge by reference to criminality arising from other charges on the indictment.
For his part, senior counsel for the Crown submitted that the violent methods of enforcement used by BG in the conduct of his trafficking business were a relevant sentencing factor. In any case, he submitted, there was no indication that the sentence on the CQ trafficking charge had been increased to take account of any of the violence associated with the specific incidents the subject of charges 5 to 8. Instead, it was submitted, the judge had merely referred to those offences as ‘evidence [of] the brutal authority’ associated with the business. Attention was drawn to the judge’s express statement that he was aware of the need to avoid double punishment:
In setting the individual sentences and making orders for cumulation across the range of charges, I have been cautious to guard against double punishment. Many if not all of the other offences, for example, the assaults and blackmail, contain features of the main drug enterprise. Appropriate individual sentences and some partial cumulation is necessary but that should be moderate.[23]
[23]Reasons [67].
Offence seriousness — the separate trafficking charges
Charge 2 was a charge of trafficking simpliciter in cocaine. The quantity seized approached 30 per cent of CQ. His Honour said:
To some extent [the quantity] also exemplifies the trade in cocaine; but which, it has been conceded, was a less successful business to a smaller market.[24]
[24]Ibid [19].
As can be seen from the sentencing table, the judge imposed a sentence of three years’ imprisonment on that charge and no cumulation was ordered.[25] The judge imposed a sentence of 12 months for trafficking anabolic steroidal agents and two months for trafficking ecstasy. Again, no cumulation was ordered. The position for the Crown on the appeal was that, because of the separate criminality involved in the trafficking simpliciter charges, some cumulation was required.
[25]See [22] above.
Once again, reference to the plea transcript is illuminating. The sentencing judge was invited to adopt an approach which, it was said, Chief Judge Rozenes had taken in sentencing T, who was BG’s ‘right-hand man’. Like BG, T had pleaded guilty to a range of charges arising from the conduct of the drug business: trafficking; violence; blackmail; and theft. Relevantly, he had pleaded guilty to one charge of CQ trafficking (ice) and one charge of trafficking simpliciter (ecstasy). He was sentenced to three years’ imprisonment on the first trafficking charge and seven months’ imprisonment on the second. The sentence on the second trafficking charge was made fully concurrent.
On the plea in the present matter, the prosecutor (who had also appeared on the plea in T’s matter) told the sentencing judge that the Chief Judge
essentially took the view in relation to the drugs that it was really the running of the business, the business being trafficking of drugs, such that the nature of the drugs didn’t really matter that much and I think for all but one imposed concurrent sentences …
The judge responded as follows:
At first blush, I am a little troubled by that because … upon which charge do you attribute the aggravation [referable to the violence] if it not being just a drug business, but it being a drug business in relation to four or five different sorts of drugs?
Subsequently, however, the judge said to defence counsel:
The Chief Judge ordered concurrency or effectively ordered concurrency across the range of the drug charges and some cumulation on the other charges … Look, if I can see my way clear to do that, I think I should approach it the same way.
Defence counsel replied:
And that’s what we’re urging your Honour to do.
As noted earlier, T was sentenced on only two trafficking charges, and the sentence on the lesser charge was made fully concurrent. But the Chief Judge’s reasons do not provide any explanation of the decision to order full concurrency. On the plea, his Honour had raised the possibility of an aggregate sentence, but on the quite different basis that ‘the between dates trafficking embraces all of the bits and pieces that are necessary to run that business’. Plainly enough, this was a point about the operational violence, as the sentencing reasons confirmed:
In many ways the rest of the charges, perhaps with the exception of charge 11, are inexorably entwined with the business of serious drug trafficking — physical violence, threats of violence, intimidation, possession of weapons and other forms of dishonesty. Whilst the threat of violence was most intimidating and frankly somewhat sickening, it is the case that no serious injury occurred in the present matters. That is not to say that the aggravated burglary, charge 8 and the three injury charges, 1, 5 and 10 were not serious. They are as was the charge of affray. Each of them were accompanied by high levels of menace and intimidation.[26]
[26]DPP v [T] [2014] VCC 2884R [48] (‘T Reasons’).
In response to questions from this Court, senior counsel for the Director conceded that, if the judge in the present case had treated the lesser trafficking charges as aggravating the principal charge, and for that reason had ordered total concurrency of the sentences on the lesser charges, that would have been a sentencing error. Counsel maintained, however, that this Court should not be satisfied that there had been any such error.
Parity
Although there was no separate parity ground, counsel for BG submitted that the sentence imposed on T was a relevant consideration for this Court to take into account in assessing BG’s sentence. As noted earlier, the sentence imposed on T on the CQ trafficking charge was three years’ imprisonment.
The judge at first instance accepted — correctly — that the imposition of a just sentence required that he have ‘some reference’ to the sentence imposed on T.[27] He also noted that T had a more extensive criminal record than BG.[28] His Honour considered, however, that the most important factor bearing on parity was that T had undertaken to give evidence against BG.[29]
[27]Reasons [53].
[28]Ibid [50].
[29]Ibid [51].
With respect, his Honour was plainly correct. On the plea in T’s case, the prosecutor had conceded that the assistance he had provided was ‘of a very high value’ and that he should receive ‘the maximum possible discount’. The prosecutor likewise concurred in defence counsel’s characterisation of T as having ‘put his life on the line’ by co-operating with the prosecution. In his reasons, the Chief Judge said that he was satisfied that the assistance given by T was ‘of the very highest order’ and that a ‘very substantial sentencing discount’ was called for.[30]
[30]T Reasons [62].
When regard is also had to the difference in roles between BG and T, the sentencing differential between them is entirely explicable.[31] To the extent that the manifest excess argument depends on parity, we would reject it.
[31]See Truong v The Queen [2017] VSCA 105.
Factors relied on in mitigation
On the plea, and again on the appeal, BG relied on his plea of guilty as warranting a substantial sentencing discount. The judge accepted that the guilty plea had ‘avoided a trial of some length and cost and, it was conceded, considerable difficulty.’[32] The judge was satisfied that BG was remorseful.[33] Reliance was also placed on the fact that his criminal history was assessed by the judge as ‘a relatively minor one’.[34]
[32]Reasons [3].
[33]Ibid [44].
[34]Ibid [40].
The principal mitigating factor relied on was the post-traumatic stress disorder from which BG suffered as a result of his military service. The judge concluded, however, that the condition had limited significance for the assessment of moral culpability and the importance of deterrence. The judge was not persuaded that ‘the necessary connection’ had been shown between the condition and the offending. His Honour said: ‘Your decision to offend and your participation was organised, on its face considered, and long-term.’[35]
[35]Ibid [46].
Nevertheless, his Honour found, the illness had ‘played a role’ in the offending. His Honour continued:
I accept that imprisonment will be more difficult because of your illness. I also see your mental health condition to be an important part of the personal context for your sentence. You suffer the illness of post-traumatic stress disorder and its associated features in a serious way. It has been long-term and has developed in the course of your military service for this country. I accept the evidence that you were an exemplary soldier.[36]
[36]Ibid.
The judge was also satisfied that BG was ‘capable of rehabilitation’.[37] The judge noted that he was supported by family, had good work skills and had shown himself to be ‘a disciplined, resilient man’, in his public and his private military service.[38]
[37]Ibid [47].
[38]Ibid.
Finally, his Honour referred to the delay in the proceeding ‘now approaching two years’. His Honour described it as ‘a significant period’, during which BG had experienced ‘the stresses of remand and awaiting [his] fate’.[39]
[39]Ibid [48].
Current sentencing practices for CQ trafficking
As noted earlier, the principal submission for BG was that the sentence of eight years and six months’ imprisonment on the CQ trafficking charge was outside the range reasonably open, when regard was had to the sentences imposed in other cases. It was common ground that regard should be had for this purpose to what are conventionally referred to as ‘comparable cases’.[40] These will usually be cases involving offending in the same category of seriousness. The particular circumstances of the offence, and of the offender, will determine whether such cases are, in fact, relevantly comparable or instructively different.[41] If there be truly like cases to the present case, they will attract the requirement of equality of treatment unless there are current circumstances which justify a departure from the sentencing standards reflected in those cases.
[40]See R v Pham (2015) 256 CLR 550, 557–8 [24].
[41]DPP vFrewstal Pty Ltd (2015) 47 VR 660, 671 [49].
In Nam Son Nguyen v The Queen, Redlich JA (with whom Whelan and Tate JJA agreed) explained how reference to comparable cases assists in ensuring sentencing consistency:
The need for the judge to be provided with what has been done in other (more or less) comparable cases was stressed in the joint reasons in Barbaro v The Queen. In Hili, the plurality referred to Director of Public Prosecutions (Cth) v De La Rosa and the use of information about sentences that have been passed in other cases, that history of sentencing establishing a range of sentences that have in fact been imposed. The importance of the sentencing patterns disclosed by that history were recognised by the plurality in Hili to be of considerable significance, in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. As the plurality state in Hili, Barbaro and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed. Past sentences provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.
Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. 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 the most closely comparable cases. Thus for example, in Dao v The Queen Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with ‘relevant comparators’.[42]
[42](2016) 311 FLR 289, 312 [71]–[72] (citations omitted) (’Nguyen’).
On the appeal, as on the leave application, counsel for BG relied on the very helpful ‘Overview’ of sentences for CQ trafficking published by the Judicial College of Victoria as part of the Sentencing Manual.[43] The Overview presents in tabular form decisions of this Court since 2006 on appeals against sentences imposed for CQ trafficking. The cases are listed by reference to the head sentence imposed for the trafficking offence.
[43]Judicial College of Victoria, Victorian Sentencing Manual (at 30 May 2016) 33 Drug Offences, ‘Recent cases – VSCA overview – Trafficking in commercial quantity sentences’ [33.13.3.1]. For other sentence overviews, see Judicial College of Victoria, Victorian Sentencing Manual (‘JCV Sentencing Manual’).
With the exception of Bass (discussed below), none of the decisions in the table involved a sentence greater than nine years’ imprisonment.[44] There is one sentence of nine years, two of eight years, four of seven and one of six and a half. All other sentences are of six years or below. BG’s submission is that his sentence of eight and a half years is the longest ever imposed for CQ trafficking on an offender who pleaded guilty. We turn to examine the decisions referred to in submissions.
[44]Counsel noted that the nine year sentence imposed in Sergi v DPP (Cth) [2015] VSCA 181 was to be disregarded as it was referable to a Commonwealth offence with a greater maximum penalty and therefore not comparable on a State charge of CQ trafficking.
In R v McCulloch,[45] the offender was convicted after a trial of two counts of trafficking in a commercial quantity — one of tetrahydrocannabinol and the other of methylamphetamine. He received a sentence of nine years’ imprisonment on each count, with partial cumulation resulting in a total effective sentence of 14 years’ imprisonment. BG pointed to two key distinguishing features of that case. Unlike BG, the offender had run a heavily contested trial, and he had a prior conviction for trafficking in a drug of dependence, for which he had received a sentence of 11 years’ imprisonment.
[45][2009] VSCA 34 (‘McCulloch’).
Both were, however, principals in their respective trafficking operations and had engaged in sustained trafficking conduct for profit. There was also a significant difference in the quantities trafficked. As noted earlier, BG’s trafficking involved at least five times CQ or two-thirds of LCQ, whereas McCulloch involved 2.5 times CQ in relation to tetrahydrocannabinol and 1.16 times CQ in relation to methylamphetime (at the lowest end of the CQ scale). It should also be noted that the offending in McCulloch did not involve violence.
In Bass the offender was convicted after trial of trafficking a commercial quantity of methylamphetamine. At first instance, he was sentenced to 10 years’ imprisonment with a non-parole period of six years and eight months’ imprisonment. As here, the quantity involved approached the upper end of the CQ threshold. On appeal, this Court found specific error as the trial judge had sentenced the offender on the basis that it was LCQ trafficking, not CQ trafficking. Error having been established, the sentencing discretion was reopened and the Court had to resentence. For that purpose, the Court was bound to take into account evidence of the offender’s rehabilitation since sentence was imposed.[46] A sentence of eight years’ imprisonment was imposed.
[46]Kentwell v The Queen (2014) 252 CLR 601.
After a review of comparable cases, the Court noted:
What these cases seem to indicate is that the sentence of 10 years imposed upon the appellant for trafficking in a commercial quantity of methylamphetamine is, on any view, close to the very top of the range for offending of this nature by an offender with no significant prior convictions. That is not to say that a sentence of that order should necessarily be viewed as excessive. It does, however, provide a cautionary note, in light of mitigating factors that have emerged since the sentence was imposed, as to what an appropriate resentence should be.[47]
Importantly the Court added the following:
In our opinion, the sentence of 10 years’ imprisonment imposed on charge 1, though at the very high end of the range for offending of that nature, was within range. Had it not been for the specific error previously identified, in sentencing the appellant on a factual basis that was not properly open, we would not have interfered with that sentence.[48]
[47]Bass [2014] VSCA 350 [217] (emphasis added).
[48]Ibid [232].
Like BG, the offender in Bass was a principal of the operation and his ‘participation in trafficking methylamphetamine was calculated, systematic and extensive’.[49] Again like BG, his offending was considered to be ‘a most serious instance of the offence in question’.[50] Notwithstanding these similarities, counsel for BG points to his plea of guilty, and the fact that Bass offended while on bail, as important distinguishing features.
[49]Ibid [183].
[50]Ibid [182].
The Crown submitted that the case of Bass came closest to being comparable with the matter at hand. In each case, the offender had no relevant prior convictions, had engaged in the offending conduct over a period of time and was to be sentenced on the basis of trafficking at the upper end of CQ (or close to LCQ). It was acknowledged that the matter of Bass involved a trial and that BG ought to receive benefit from his plea of guilty. But, given the view expressed in Bass that the original sentence of 10 years was within range, a sentence of eight years, six months for offending of a similar scale in similar circumstances (albeit on a guilty plea) was not outside the range.
In Hafner v The Queen,[51] the offender had pleaded guilty to a number of offences, including CQ trafficking (amphetamine) for which he received a sentence of seven years. Rejecting his contention that the sentence was manifestly excessive, this Court noted that the offender had played ‘a leading role’ in the commission of the trafficking offence, operated ‘a substantial business’, and had an extensive criminal history.[52] The amount trafficked was 600 grams of amphetamine. At the relevant time that represented a little over two times CQ.[53]
[51][2012] VSCA 190 (‘Hafner’).
[52]Ibid [24].
[53]The thresholds under DSPC Act sch 11, pt 3 relating to amphetamine were subsequently varied by Drugs, Poisons and Controlled Substances Amendment Act 2012 s 6.
In Skubevski v The Queen,[54] the offender pleaded guilty to a number of drug offences. They included LCQ trafficking (MDMA) and CQ trafficking (methylamphetamine). The sentence on the LCQ charge was eight years; on the CQ charge, five years. As the Crown pointed out, the offender had prior convictions for trafficking and possession of drugs and, in the circumstances, the sentence for CQ trafficking was remarkably lenient. (The same can equally be said of the sentence for LCQ trafficking.)
[54][2010] VSCA 91 (‘Skubevski’).
We should also refer to the first instance decision in Dalton v The Queen,[55] which the prosecutor drew to the judge’s attention on the plea. In that case there were five offenders, each of whom pleaded guilty to at least one count of CQ trafficking (methylamphetamine). The offenders were involved in a large drug syndicate which was managed and closely controlled by one of them (‘A’). The syndicate supplied ice, amphetamine and ecstasy to regional towns and areas. The operation was described as ‘pervasive and sophisticated’. The syndicate was ‘effected by strict rules, threat and violence within the group, upon those outside and on the periphery’.
[55]DPP v Dalton [2014] VCC 1048 (‘Dalton’).
A was sentenced as ‘the main player and controller of the enterprise’.[56] The judge found that he had run the business in an ‘absolute and autocratic way’. He was aged 32 and had a prior criminal history for offences of violence and drug-related offences, including trafficking, which the judge described as ‘clearly relevant’.[57] It was accepted that A was using drugs heavily and was dependent on them at the time of the relevant offending.[58] On each of two counts of CQ trafficking, he received a sentence of eight years.
[56]Ibid [122].
[57]Ibid [128], [132].
[58]Ibid [136]–[137].
For completeness, we would refer to two further decisions of this Court. In Short v The Queen,[59] the offender had pleaded guilty to trafficking simpliciter (methylamphetamine). She was found to have been ‘at the apex, or very close to it’ of a sophisticated and professional trafficking business which she conducted over a period of 18 months.[60] The judge found that the offender was aware of the risks involved but had pursued the financial rewards ‘with single-minded determination, method and intent’.[61]
[59][2016] VSCA 210 (‘Short’).
[60]Ibid [27].
[61]Ibid.
The judge imposed a sentence of eight years’ imprisonment. On appeal, the Crown conceded that the sentence was ‘very high’ for trafficking simpliciter. The Court noted that, on the basis of information from the JCV Sentencing Manual, the sentence was ‘one of the highest recorded [for that offence] which invited close scrutiny’.[62] The Court accepted that a stern sentence was warranted, but concluded that the sentence of eight years was manifestly excessive having regard to the offender’s ‘relative youth, sad history … [and] reasonable prospects of rehabilitation and family support, together with the early plea’.[63] A sentence of six years and six months’ imprisonment was substituted.
[62]Ibid [53].
[63]Ibid [61].
We note in passing that there is only a two year difference between the sentence imposed in Short for trafficking simpliciter (on a maximum of 15 years) and the sentence imposed on BG for CQ trafficking (maximum 25 years) in a case where the quantity approached the LCQ threshold. We return to this point in addressing the issue of ‘clustering’ of sentences.
The same feature is again starkly exposed by Stanley (a pseudonym) v The Queen.[64] In that case, the offender pleaded guilty to one charge of LCQ trafficking (methylamphetamine) and was sentenced to eight years’ imprisonment. (The maximum penalty for that offence is life imprisonment). He was found to have been ‘an active and trusted participant in the drug activities, although not the principal’.[65] The quantity involved was two and a half times LCQ.[66] On appeal, the offender contended that the sentence was manifestly excessive. He drew attention in particular to a sentence of nine years’ imprisonment imposed on an offender who had pleaded not guilty and was convicted of LCQ trafficking in a quantity almost five times LCQ.[67] The Court dismissed his appeal.
[64][2017] VSCA 54 (‘Stanley’).
[65]Ibid [12].
[66]Ibid [8].
[67]Dagher v The Queen [2011] VSCA 119.
When those two decisions are compared with BG’s sentence, a remarkable picture emerges. Although the offending involved is spread across the three quantitative ranges — with their dramatically different maximum penalties — the sentences are all within a two-year band.
Plea Quantity Sentence Maximum Stanley G 2.5 times LCQ 8y Life BG G 5 times CQ 8y, 6m 25y Short G Trafficking simpliciter 6y, 6m 15y
Of course, such a comparison leaves out of account a range of relevant factors but, plainly enough, there is a serious question about the lack of appropriate sentencing relativities across the range of offence seriousness.
The history of sentences in other cases from which a range may be drawn does not establish that the range is the correct range, or that the upper or lower limits of the range are the correct upper and lower limits.[68] The point was made in Nguyen in these terms:
The past does not fix the boundaries within which future judges must, or even ought, to sentence. As this Court has so often repeated, CSP does not create a ceiling or floor beyond which a judge may not go. A judge may conclude that the gravity of the offending is deserving of a sentence higher or lower than any previously imposed for an offence of that category of seriousness.[69]
[68]Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58.
[69]Nguyen (2016) 311 FLR 289, 313 [74].
Consideration
As explained earlier, consideration of the manifest excess ground necessitates consideration of what is now covered by proposed ground 2, namely, whether the sentence imposed on the charge of CQ trafficking involved impermissible double punishment. That is, did the judge take into account in fixing that sentence aspects of the violence the subject of the individual charges of violent offending?
As noted earlier, BG was represented by different senior counsel on the plea and in this Court. On both occasions, counsel conceded that it was proper for the judge to take into account the operational violence, being part of the agreed facts, as a circumstance which aggravated the seriousness of the trafficking offence. On the plea, this was part of a carefully structured submission. On the appeal, as we have pointed out, the complaint was confined to that of double punishment.
In our view, the concession was properly made. Drug trafficking which depends for its operational effectiveness on violence and intimidation is, by virtue of that circumstance, more serious than equivalent trafficking which does not. In a case like the present, the offender is engaged in drug trafficking for profit. The trafficking activity comprises transactions of sale and purchase. If the purchaser does not pay, the trafficking business suffers. The fact that the offender uses violence in order to ‘complete’ the transactions — with a view to maximising his profit, and prolonging the success of the trafficking operation — makes him relatively more culpable than someone who does not use such brutal methods. On this view, the violence was intrinsic to the criminal activity.
It follows, in our view, that the judge was correct to treat the operational violence as warranting a heavier sentence on the trafficking charge than would otherwise have been called for. This is, in our view, an important distinguishing feature between the present case and both Bass and Hafner.
As to double punishment, we would grant leave to add the additional ground but would refuse leave to appeal on that ground.[70] Put simply, there is nothing about the sentence on the CQ trafficking charge, nor about the individual sentences on charges 5 to 8, which suggests double punishment. Of course, where (as here) a judge makes express reference to the need to avoid double punishment,[71] this Court would be slow to conclude that the error had nevertheless been committed.
[70]See [32] above.
[71]Reasons [67].
In his reasons, the judge said of the individual sentences that ‘[a]ppropriate individual sentences and some partial cumulation is necessary but that should be moderate. The principle of totality should be met’.[72] It is instructive to consider what his Honour said about the individual offences:
Charge 5 is the offence of affray. In pursuance of the style of debt collection I have described as a feature of the business, on 24 November 2013 there was arranged a meeting at a … café with you, [T], other members of the business and a man named [E]. [E] dealt for the business in the [regional] area. After a time you punched him to the face. On the ground he was kicked and punched by you and [T]. It was daytime on a Sunday. Families, including children, witnessed the event.
Charge 6 is intentionally causing injury to [E]. A few days later there was a further meeting with [E] at a … house. You smashed the windscreen of his car, dragged him out and again assaulted him. [E] paid his debt and continued to work for you.
Charge 7 is intentionally causing injury to one [B]. He was another dealer. In late November 2013 you met him in a … car park. Others were there. You punched him to the face and gave him 30 days to pay a now inflated figure. [B] suffered a chipped tooth and bruising to his face. Threat and harassment of [B] continued. It appears that eventually he borrowed money and paid the debt.
Charge 8 is intentionally causing injury to [C]. I have earlier explained the circumstance of his debt and what was therefore required of him. On the night of 1 December, a few days prior to his first [New South Wales] trip, you and others met [C] outside [a hotel]. You and [T] assaulted him. This included that you punched him to the face, damaging his teeth and lip. He left for [New South Wales] in the … van on 3 December.
Charge 9 is theft of [C]’s motor vehicle as compensation for the damage to the van which occurred on that return trip.
Charge 10 is the offence of blackmail. [D] sold methylamphetamine for the business. He fell into debt to you failing to efficiently manage monies owed by his purchasers. [D] was placed on a ‘payment plan’. He too states that the debt became inflated. It was decided to take [D]’s car as payment. [D] tried to hide the car, placing it at his sister’s home. Ultimately [T] threatened serious injury if he, [D], did not take the vehicle to your home. [D] complied. The car was seized from your premises on 21 January 2014.[73]
[72]Ibid [67].
[73]Ibid [22]–[27].
As appears from the sentencing table, the sentences imposed for these offences were very moderate.[74] It would have been open to his Honour, in our view, to impose significantly heavier sentences on each of these charges, as the violence the subject of these charges was to be assessed separately from the general violence which formed part of his drug trafficking business. What matters, however, is that neither the sentence on the CQ trafficking charge nor the sentences on the individual charges of violence suggest double punishment.
[74]See [22] above.
We would also reject the contention, advanced for the first time in oral argument, that the judge improperly inflated the CQ trafficking sentence by taking into account the criminality involved in the trafficking simpliciter charges. The explanation for the leniency of the sentence of three years’ imprisonment imposed on charge 2, 12 months’ imprisonment imposed on charge 3 and two months’ imprisonment imposed on charge 4 does not lie in any impermissible ‘transfer’ of the criminality from those charges to charge 1. Rather, we infer, his Honour acted upon the submission of the appellant’s counsel that the sentence on those charges should be made wholly concurrent with the sentence on charge 1, on the basis that the other drugs were trafficked as part of the business, in a smaller quantity, and did not represent much additional criminality.
In our respectful view, his Honour was unduly lenient in taking that view of the lesser trafficking charges. As the Court explained in Mitchell v The Queen,[75] separate acts of trafficking — or possession — of different drugs must be treated as involving separate criminality, the seriousness of which much be assessed separately for each drug. In the present case, as is apparent, this leniency worked entirely in BG’s favour.
[75]Mitchell v The Queen [2016] VSCA 321 [27].
Conclusion
In our view, the guidance provided by the sentencing decisions referred to does not justify, let alone require, the conclusion that the sentence of eight years, six months’ imprisonment was outside the range. This was very serious offending, involving trafficking in a very large quantity of ice over a very substantial period. As with all offenders of this kind, BG pursued financial reward with apparently callous indifference to the harm which drugs of dependence cause to those who are dependent on them, and to the wider community. What is more, he clearly regarded the rewards potentially available as justifying taking the risk of very severe punishment.
Having regard to CSP for offences of CQ trafficking, this sentence must be regarded as stern. But we are not persuaded that it was outside the range reasonably available. The appeal must therefore be dismissed.
The adequacy of current sentencing practices
As noted earlier, the Director filed a supplementary submission addressing CSP for the offence of CQ trafficking.[76] In that submission, the Director argues that it is
quite remarkable for an offence of this nature that a sentence of 10 years’ imprisonment can be viewed as a ‘statistical outlier’. That it is remarkable is by virtue of the high maximum penalty, the inherent gravity of the offending in question, the disturbing prevalence of the offence in the community, the deleterious impact upon the community and the application of general deterrence as the predominant sentencing purpose in serious examples of the offence.
[76]See [4] above.
The Director cites the following statement of Kaye JA in Dawid v Director of Public Prosecutions:[77]
The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs, that attracts people, such as the applicant, to engage in the type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs.
[77][2013] VSCA 64 [35].
According to the Director, the decisions on sentencing for CQ trafficking demonstrate that:
an artificial compression has occurred in respect of serious cases (or, in other words, an ‘artificial ceiling’ of about 10 years has been imposed). Thus, recalibration should occur particularly in light of legitimate community expectations that serious drug traffickers (particularly those who engage in the business of selling drugs for untaxable profit) are severely punished.
The Director relies on the judgment of Redlich JA in Ashdown v The Queen,[78] in which his Honour identified a number of possible bases for the Court to review CSP for an offence. In the present case, the Director’s submission that CSP be ‘recalibrated’ invokes each of the following categories from Ashdown, namely that:
·there has been increased community disquiet over trafficking offences;
·there has been a persistent error in the manner in which a category of offenders has been treated; and
·the objective seriousness of this kind of offending conduct has been wrongly categorised.
[78](2011) 37 VR 341, 403 [180] (‘Ashdown’).
In Nguyen,[79] the Director made a very similar submission with respect to CSP for cultivation of a commercial quantity of a narcotic plant. Relying on a number of Ashdown categories, the Director successfully submitted that, for offending of mid-range seriousness, CSP for that offence was too low, had been ‘compressed’ by sentences fixed in the upper category and should be uplifted.
[79](2016) 311 FLR 289.
A comparable submission advanced by the Director was also upheld by this Court, in Harrison v The Queen.[80] Once again, the submission invoked the authority of Ashdown in contending that this Court should examine current sentencing for the relevant offence — negligently causing serious injury (by driving) — and should conclude that sentences needed to be increased. The Court upheld that submission, concluding that CSP for the upper category of that offence was ‘plainly inadequate’.[81] The Court said:
[C]urrent practice fails to reflect the objective seriousness of this category of NCSI by driving. The sentences imposed in the comparable cases are not commensurate with the objective gravity of the offences, as informed by the degree of negligence involved and the consequences for victims. The instant cases the subject of appeal are exemplars of this inadequacy.[82]
[80](2015) 49 VR 619 (‘Harrison’).
[81]Ibid 650 [137].
[82]Ibid 650 [139].
A similar submission was advanced, and upheld, in Director of Public Prosecutions v Dalgliesh.[83] The Court there accepted the Director’s contention — again based on Ashdown — that sentences for offences of incest of mid-range seriousness were
disproportionately low when considered against the yardstick of the maximum penalty of 25 years’ imprisonment, having regard to the objective gravity of the offending and the high moral culpability of the offender.[84]
[83][2016] VSCA 148.
[84]Ibid [7].
Submissions of this kind by the Director, as to the inadequacy of current sentencing for serious offences, are advanced in discharge of his responsibility to ensure that appropriate sentencing standards are maintained, and that the sentences which are imposed are proportionate to the objective gravity of the offence and reflect the correct application of sentencing principles.[85] In the present appeal, senior counsel for the Director informed the Court that the Director ‘certainly embraced the opportunity to make the argument in these cases’.
[85]See Hogarth v The Queen (2012) 37 VR 658, 668 [38].
As Ashdown emphasises, however, specific circumstances must exist before there can be a departure from existing sentencing standards. By this judicial method, the law promotes consistency in decision-making and diminishes the risk of arbitrary and capricious adjudication. Implicit in the requirement of a principled basis for declaring current sentencing practices inadequate is the recognition that idiosyncratic views have no place in the sentencing process.[86]
[86]Anderson v The Queen (2013) 230 A Crim R 38, 46 [24].
The position of the appellant
In each of the cases in which the Director has sought a general uplift in CSP for a category of an offence, the question has arisen whether, if the Court concluded that CSP should be uplifted, that consequence should be visited upon the offender. On the leave application in the present appeal, counsel for the Director submitted that the two questions should be approached separately. The ground of manifest excess should be determined by reference to current sentencing practices, and then ‘the second issue would be the broader issue, which has happened in many cases previously’.
That was the basis on which the appeal was conducted. BG’s appeal ground of manifest excess was argued by reference to the sentencing range reasonably open at the time of sentencing. The question of whether sentencing should change in the future was addressed separately.
With the Director’s concurrence, that is the approach which has been adopted in each of the cases where the Director has made, and the Court has upheld, a submission that current sentencing for a particular offence, or category of offending, was inadequate. We would emphasise, however, that it is a matter for the Court’s discretion whether or not to increase the offender’s sentence solely because it is concluded that CSP should be increased. There is no binding principle that an appellate court cannot increase a sentence if it is concluded that CSP should be uplifted. The exercise of discretion has usually turned on notions of fairness.
The discretion to increase a sentence for that reason was carefully considered by Redlich JA (with whom Whelan and Tate JJA) agreed in Nguyen:
This appeal was conducted on the basis that, the respondent having pleaded guilty, the adequacy of the appellant’s sentence should be assessed in accordance with CSP. If he fell to be resentenced, he should be sentenced in accordance with prevailing sentencing practice. While fairness to the prisoner will ordinarily dictate that course, it does not have to always be so. The joint reasons of the High Court in Poyner state that the approach of giving of a warning before increasing a sentencing standard is ‘not a binding principle.’ Hence it was observed in Ashdown, that giving a warning that a sentencing standard would in the future be uplifted was ‘not necessarily a prerequisite for increasing the prevailing standard of sentence before increasing the range of penalties’. A prisoner’s plea of guilty does not bar consideration of the adequacy of existing practice and the application of a corrected standard to the appeal then under consideration.
Doyle CJ in R v D did not consider it necessary for the court to always give a warning before increasing the range of penalties for a particular type of offending. In addition to Poyner v The Queen, Doyle CJ cited the reasons of King CJ in Yardley v Betts and other authority for that position. He then said:
Nevertheless, as the cases cited recognise, warnings do have a part to play in the sentencing process. I consider it appropriate that the heavier penalty should be imposed in cases in which a conviction is recorded hereafter or a plea of guilty is entered hereafter. Although the heavier range of penalties could be applied in the present case, I consider that as a matter of fairness the present case should be dealt with by reference to the standard reflected in the previously decided cases to which I have already referred.
The Court in Hampton v The Queen took issue with the statement by Howie J in McIvor that the applicant was entitled to be sentenced in accordance with the actual range of sentences being imposed rather than by the range that the Court might think is appropriate. Hulme J, with whom Beazley JA (as she then was) and Latham JA agreed, said:
Such an approach is adopted when a court has to sentence for an offence decades or so old and sentencing standards have changed in the interim. However to adopt it as a general proposition would be to emasculate the role of this Court in ensuring that sentencing levels are appropriate and, if too low, are adjusted upwards. Among the most obvious examples of this are the decisions of this Court in R v Henry and R v Jurisic and although both of those cases were decided by 5 judge benches, such a Court has no more power than does the Court when constituted by 3 judges. Furthermore, it is difficult to reconcile Howie J’s remarks with the observations of 5 members of the High Court in Poyner v R.
The reference by Hulme J to the observation in Poyner appears to be a reference to the statement that ’there is no binding principle’ that a warning must be given. Hence in Ashdown, it was said that the Crown will not ‘usually seek to justify the sentence imposed’ by inviting the Court to apply a higher standard of sentence than the existing standard. The absence of a binding principle requiring a court to give warning before increasing a prevailing standard of sentences for particular crimes has been confirmed or applied on numerous occasions.
Considerations of fairness that may arise on either a prisoner’s or Crown appeal will usually explain why an intermediate court of appeal chooses not to visit a prisoner with the proposed increase in the standard of sentence. That is however a matter of discretion, not binding principle. Statements of this Court that fairness dictated in a particular case that a prisoner who had pleaded guilty should not be visited with an uplifted sentencing standard reflects merely the unchallenged assumption upon which the Courts will ordinarily be invited to and do proceed. None of those cases involved consideration of the issue which in such a way as to be binding on future courts.
Courts, moved by considerations of fairness, generally determine the appeal by reference to the existing sentencing practice rather than a standard that the Court considers should in the future apply. But an appellate Court does not approach an appeal on the basis that the prisoner cannot be sentenced on the basis of a corrected sentencing standard. For example in Director of Public Prosecutions v Faure, a Crown appeal was allowed in this Court on the ground that the sentence was wholly disproportionate to the gravity of the offence and was manifestly inadequate. The prisoner had pleaded guilty. He submitted that any change in sentencing standards should be introduced gradually and in the future. In rejecting that submission the Court said that any inconsistency between the new sentence the Court was to impose and existing practice, since the maximum penalty had been increased, was to be explained on the basis that the Court distinguished those decisions since the maximum had been increased.
The possibility that existing sentencing standards may be corrected has the potential to affect the outcome of the appeal. It would be antithetical to an appellate court’s overarching duties, were the court to be denied jurisdiction to correct an existing sentencing practice because the offender assumed that the impugned sentence would necessarily be assessed according to existing sentencing practice. The fact that a prisoner has pleaded guilty does not deprive an appellate court of jurisdiction to impose a sentence in accordance with the sentencing standard that the court thinks appropriate rather than the existing sentencing practice. On a prisoner’s appeal based upon a ground of manifest excess, even though the sentence imposed manifestly exceeded CSP, the application of a corrected sentencing standard may result in the appeal failing or in the sentence being reduced but by an amount less than would have been required had CSP applied. On a prisoner’s appeal, if for any reason the court is considering imposing a more severe sentence than the sentence first imposed, the court must give the appellant a warning that the appellant faces that possibility.[87]
[87]Nguyen (2016) 311 FLR 289, 322–4 [110]–[116].
The exercise of the Court’s discretion in the present case not to visit BG with any uplift of sentencing standards is also be informed by the norm of equality before the law embodying as it does the concept of ‘equal justice.’ That requires, so far as the law permits, that like cases should be treated alike. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
Equal justice requires identity of outcome in cases that are relevantly identical.[88]
[88](2001) 207 CLR 584, 608 [65] (emphasis in original).
An exemplar of the application of the norm of equal justice is to be found where the principle of parity is invoked so as to justify a sentence which is properly viewed as manifestly inadequate or excessively lenient.[89]
[89]Green v The Queen (2011) 244 CLR 462, 475–6 [33], 478–9 [40]–[42].
Conclusion
In our view, the Director’s CSP submission must be upheld. As has been shown, consideration of the first ground of appeal has necessitated an examination of current sentencing practice for this offence. The review of sentencing decisions speaks for itself. It is, as the Director submits, quite remarkable that an offence with a maximum penalty of 25 years’ imprisonment has only once over the past decade attracted a sentence of nine years’ imprisonment.[90] This is especially so given that, according to Sentencing Advisory Council research covering the period 2008–09 to 2012–13, 40 per cent of charges of CQ trafficking involved trafficking in 1.8 times the threshold quantity or higher.[91]
[90]As explained above, the 10-year sentence in Bass was reduced on appeal. See Sentencing Advisory Council, Sentencing Snapshot No 162: Trafficking in a commercial quantity of drugs (August 2014) 5; Sentencing Advisory Council, Sentencing Snapshot No 130: Trafficking in a commercial quantity of drugs (August 2012) 4.
[91]Sentencing Advisory Council, Major Drug Offences: Current Sentencing Practices (2015) 30 [5.5].
As with any other category of offending, there is wide variation in the seriousness of CQ trafficking offences, and in the culpability of the trafficker(s). Likewise, there is great variation in the role played by the offender, ranging from a controlling role to the role of courier or driver. And, of course, there is room for very significant variations in quantity between the bottom and the top of the applicable quantity range. For the reasons given earlier, variations in quantity will ordinarily bear significantly on the assessment of the relative seriousness of the offence.[92]
[92]See [23]–[24] above.
It would therefore be expected — and Parliament must be taken to have intended — that there would be a spread of sentences across the statistical range.[93] In particular, sentences well into double figures would have been expected for CQ trafficking offences where one or more of the following features was present:
·the quantity involved approached the LCQ threshold;
·the offender was in charge of the trafficking business;
·the business was conducted for a substantial period;
·the offender pleaded not guilty; and/or
·the offender had relevant prior convictions.
[93]Hogarth (2012) 37 VR 658, 674 [60].
As we have seen, there is no such spread of sentences for CQ trafficking. On the contrary, sentences for this offence over the past decade are ‘clustered’ under 10 years’ imprisonment. This reflects, as the Director submits, a ‘persistent error’ in the manner in which serious instances of this offence have been treated. It demonstrates, moreover, that the objective seriousness of this offending has been wrongly categorised.
For these reasons, in our view, CSP for CQ trafficking in the upper category of the offence is plainly inadequate. As the Court has said after reaching similar conclusions in relation to sentencing for other offences, sentencing courts should no longer regard themselves as constrained by existing sentencing practice for offences in that category.
In Nguyen, in stating that CSP should be uplifted, the Court said:
Consistency in the application of the correct legal principles in sentencing, ‘fundamental to the administration of criminal justice’, means as the High Court said in Hili v The Queen — ‘the treatment of like cases alike, and different cases differently’. Sentences imposed upon offenders who fall within the mid category of seriousness do not reflect consistency in the applications of principle. There has been inadequate emphasis given to general and specific deterrence and denunciation. Consequently the standards set do not adequately reflect the objective seriousness of the offending or the offender’s moral culpability for engaging in such criminal conduct for profit that is so harmful to the community.[94]
[94]Nguyen (2016) 311 FLR 289, 332 [150] (citations omitted).
Such considerations are also apposite to CSP for CQ trafficking offences. The sentences imposed in the cases we have reviewed should not be regarded as setting any limit on the sentence that may be imposed in such a case. In particular, sentencing courts should not treat 10 years as a ceiling for this offence. Sentences for LCQ trafficking will also need to increase, substantially, in order to maintain appropriate sentencing relativities.[95]
[95]See Stanley [2017] VSCA 54.
By way of general guidance, had the sentencing court in the present case not been constrained by the requirement of consistency, we consider that a sentence of 13–15 years would have been well within range, given the seriousness of the offending.
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