Jarrod Vincent v The Queen

[2016] VSCA 211

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0080

JARROD VINCENT	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 September 2016
DATE OF ORDERS:	2 September 2016
DATE OF REASONS:	7 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 211
JUDGMENT APPEALED FROM:	DPP v Vincent (Unreported, County Court of Victoria. Judge Gucciardo, 17 March 2016)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant pleaded guilty to trafficking small quantities of methylamphetamine – Sentencing judge erred in several respects in course of sentencing – Crown concession properly made – Applicant resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B Nibbs	Valos Black & Associates
For the Crown	Ms D Piekusis	Mr J Cain, solicitor for Public Prosecutions

WEINBERG JA
HANSEN JA:

1. On 11 December 2015, the applicant, now aged 35, pleaded guilty in the County Court to trafficking methylamphetamine, possessing a drug of dependence, handling stolen goods and, as a prohibited person, being in possessing of a firearm.  He also pleaded guilty to two summary charges, one of possessing a prohibited weapon, and one of possessing cartridge ammunition without a licence.  He was sentenced in accordance with the following table:

Charges on Indictment C1409819.D	Offence	Maximum	Sentence	Cumulation
1.	Trafficking drug of dependence [s 71AC Drugs, Poisons and Controlled Substances Act 1981]	15 years imprisonment	4 years’ imprisonment	Base Sentence
2.	Possess drug of dependence [s  73 Drugs, Poisons or Controlled Substances Act 1981]	Trafficking purpose excluded: 30 penalty units maximum or 1 year imprisonment Trafficking penalty units purpose not excluded: 400 penalty units maximum or 5 years imprisonment	2 months’ imprisonment	Nil
3.	Handle Stolen Goods [s 88(1) Crimes Act 1958]	15 years imprisonment	9 months’ imprisonment	2 months
4.	Prohibited person possess firearm [s 5(1) Firearms Act 1996]	1200 penalty units or 10 years imprisonment	9 months’ imprisonment	1 month
Related Summary Charge 5020	Possess Prohibited Weapon without Exemption/ Approval [s 5AA Control of Weapons Act 1990]	240 penalty units or 2 years imprisonment	1 month imprisonment	Nil
Related Summary Charge 5021	Possess Cartridge Ammunition without licence [s 124(1) Firearms Act 1996]	40 penalty units	1 month imprisonment	Nil
TotalEffectiveSentence:		But for the undertaking to assist the total effective sentence is 4 years and 3 months’ imprisonment. Pursuant to s. 5(2AB) of the Sentencing Act 1991 the court considered the undertaking and reduced the total effective sentence to 24 months and a Community Corrections Order for 2 years with 100 hours unpaid community work, supervision and treatment and rehabilitation conditions.
Non-ParolePeriod:		N/A
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		125 days
6AAAdeclaration:		5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months

1. The sentence imposed on charge 1 is recorded in the table above as having been four years’ imprisonment. The total effective sentence is recorded as having been four years and three months’ imprisonment. The sentencing judge made it clear that, having regard to s 5(2AB) of the Sentencing Act 1991, he considered it appropriate to reduce the total effective sentence to one of 24 months’ imprisonment, which he then combined with a Community Correction Order (‘CCO’) of two years’ duration with 100 hours unpaid community work. 

1. His Honour pronounced sentence in what the Crown acknowledged was an irregular manner.  He said:

On the charge of trafficking in a drug of dependence, you are convicted and sentenced to four years’ imprisonment; on possession of a drug of dependence, you are convicted and sentenced to two months’ imprisonment; on handling stolen goods, you are convicted and sentenced to nine months’ imprisonment; on the possession of a firearm, you are convicted and sentenced to nine months’ imprisonment; on the possession of a prohibited weapon, you are convicted and sentenced to one month imprisonment; and on the possession of ammunition without a licence, you are convicted and sentenced to one month.

I order that two months on the handling count and one month on the possession of firearms count be cumulative on the trafficking charge.  That makes a total of four years and three months. 

After taking into account your co-operation, I impose a term of 24 months of imprisonment to be followed by a community corrections order for two years with conditions outlined in the report.  You will then perform 100 hours of community work and be supervised. 

I note that but for your plea upon this matter, I would have sentenced you to five and a half years with a non-parole period of three and a half years.[1]

[1]DPP v Vincent (Unreported, County Court of Victoria, Judge Gucciardo, 17 March 2016), [61]–[64].

1. The Record of Orders in the County Court is in the following terms:

RECORDS OF ORDERS MADE IN THE CRIMINAL JURISDICTION

COUNTY COURT OF VICTORIA

CASE ID:CR-15-01746

EVENT:For Sentence

DATE:17 March 2016

ACCUSED:JARROD VINCENT

AGE:35

DATE OF BIRTH:  20/11/1980

MNI:850906246

INDICTMENT NUMBER:C1409819.D

CHARGE 1 TRAFFICK METHYLAMPHETAMINE

CHARGE 2 POSSESS METHYLAMPHETAMINE

CHARGE 3 HANDLE/RECEIVE/DISPOSE OF STOLEN GOODS

CHARGE 4 PROHIBITED PERSON POSSESS FIREARAM

SUMMARY CHARGES

SUMMARY CHARGE 5020 POSS PROH WEAPON W/0 EXEMPTION/APPROVAL

SUMMARY CHARGE 5021 POSS CARTRIDGE AMMUNITION W/0 LIC/PERMIT

Charge(/s)  1
Convicted and sentenced  to 4 year/s imprisonment.

Charge(/s)  2
Convicted and sentenced to 2 month/s imprisonment.

Charge(/s) 3
Convicted and sentenced to 9 month/s imprisonment.

Charge(/s) 4
Convicted and sentenced to 9 month/s imprisonment.

Summary Charge(/s) 5020
Convicted and sentenced to 1 month/s imprisonment.

Summary Charge(/s) 5021
Convicted and sentenced to 1 month/s imprisonment.

Direct  that 2 month/s of the sentence imposed on charge(/s) 3, 1 month/s of the sentence imposed on charge(/s) 4 be served cumulatively upon each other and upon the sentence imposed upon charge(/s) 1.

But for the undertaking to assist the total effective sentence that would have been imposed is 4 years, three months imprisonment. Pursuant to s.5(2AB) of the Sentencing Act 1991 the Court considered the undertaking and reduced the total effective sentence to 24 months.

Further declare the period that the prisoner has been in custody in respect of these offences namely 125 days, be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.

Charge(/s)  1, 2, 3, 4
Summary Charge(/s) 5020  5021
Convicted, and ordered to serve a Community Corrections Order for a period of 2 Year/s
Order commences upon completion of imprisonment/detention term and ends 2 Year/s from that date.

You must attend at WANGARATTA COMMUNITY CORRECTIONAL SERVICES within 2 clear working days upon completion of imprisonment/detention term.

In addition to the mandatory terms:

Unpaid Community Work
You must perform 100 hours of unpaid community work over a period of 2 Year/s as directed by the Regional Manager.

Supervision
You must be under the supervision of a Community Corrections Officer  for a period of 2 Year/s.

Treatment and Rehabilitation
You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
You must undergo any  mental health assessment and treatment that may include psychological, neuropsychological, psychiatric  or treatment in a hospital or residential facility as directed by the Regional Manager.

You must participate in programs and/or courses that address factors relating to your offending behaviour as directed by the Regional Manager.

Charge(/s)  1, 2, 3, 4
Summary Charge(/s) 5020, 5021
With consent  order that the property referred to in the Schedule be forfeited to the Minister. Schedule:
See items listed in schedule attached to the order form

Order that the property referred to in the Schedule be placed in the custody of the Chief Commissioner of Police and be held until 28 days from this date or the conclusion of any appeal proceedings and then to be destroyed. Schedule:
See items listed in schedules attached to the two order forms

Charge(/s) 1,2,3, 4
Summary Charge(/s) 5020,5021
Order made pursuant to section 464ZF Crimes Act 1958 JARROD VINCENT undergo a forensic procedure for the taking of an intimate sample.

Pursuant to s.5(2AB) of the Sentencing Act 1991, direct that the prisoner’s undertaking be noted in the courts’ records and that the prisoner will, after sentencing, assist law enforcement authorities in the investigation or prosecution of an offence and this was taken into account in imposing this sentence

SENTENCE DISCOUNT:

Pursuant to S 6AAA of the Sentencing Act 1991,
the following is entered on the records of the Court: 
the total effective sentence that would have been
imposed but for the plea of guilty would have
been 5 years, 6 month/s imprisonment, with a
non-parole period of 3 years, 6 months.

1. The applicant sought leave to appeal against that sentence upon two grounds.  These were:

1.        The Learned Sentencing Judge erred in:

(a)sentencing the Applicant to a period of four years 3 months’ imprisonment and a Community Correction Order;

and/or

(b)       failing to fix a non-parole period.

2.The sentence imposed on the uplifted summary charge of Possession of Ammunition without a licence is invalid. 

1. On 2 September 2016, the Court, having heard argument in support of these grounds, granted leave to appeal, treated the appeal as having been heard instanter, set aside the sentence imposed below, and in lieu thereof sentenced the applicant an aggregate term of two years’ imprisonment, with a non-parole period of 18 months.  In relation to the uplifted charge of possession of ammunition without a licence, the Court set aside the term of one month’s imprisonment imposed below, and substituted a fine of 5 penalty units. 

1. We said that we would publish our reasons in due course.  These are those reasons. 

Background facts

1. The applicant was involved in the sale of relatively small quantities of methylamphetamine in the Wangaratta region between July and September 2014.  The charges to which he pleaded guilty all arose from what was termed ‘Operation Juliet’, a major police investigation involving drug trafficking in that area. 

1. The applicant received illicit drugs from two women, Jessica Fogarty and Jessica Short, who were the major players in a significant drug trafficking enterprise.  He communicated on a regular basis with Fogarty, and sold drugs on her behalf.  His premises were used by the organisation as a safe house, and he not only trafficked in drugs, but also, to some degree, assisted with the preparation of the drugs being sold. 

1. After he was arrested, the applicant offered to provide assistance to the police, and undertook to give evidence regarding the involvement of others.  The Crown acknowledged that this evidence would have been valuable in the prosecution of some co-offenders.  However, as it happened, they pleaded guilty in any event.

1. It was on the basis of this offer of assistance that the applicant received the substantial discount that he did.  It should be noted that he had a significant prior criminal history, including previous convictions involving drugs, and that he had previously been accorded some leniency by being placed on a CCO.  He had contravened that order, and been imprisoned because of further drug offences.

Ground 1

1. It is accepted that the sentencing judge made several significant errors in the course of sentencing the applicant.  The Crown very fairly conceded that these errors were material, and that the applicant would have to be resentenced by this Court.

1. Put simply, the errors were as follows:

· his Honour was wrong to impose a sentence of four years’ imprisonment on the charge of trafficking, intending all the while to reduce that sentence, in effect by at least half, pursuant to s 5(2AB) of the Sentencing Act.  Accordingly, the total effective sentence of four years and three months’ imprisonment, that his Honour pronounced, and that was recorded, was irregular, and of itself did not reflect his Honour’s actual intention.

· assuming that the sentencing judge’s intention had been to impose an aggregate sentence of two years’ imprisonment, he failed to comply with the requirements of s 9(3) of the Sentencing Act in that regard.  That section requires a judge, who is proposing to impose an aggregate sentence to announce in open court, in language likely to be readily understood by the offender the decision to impose an aggregate sentence and the reasons for doing so, and the effect of the proposed aggregate sentence. The sentencing judge did neither.

· even if his Honour had followed the procedures mandated by s 9(3) when he imposed an aggregate sentence of two years, he ought not, in the circumstances, to have combined that sentence with a CCO. Section 11(1) of the Sentencing Act provides that any term of imprisonment of two years or more must include a non-parole period which is at least six months less than the total effective sentence, unless one or other of the conditions specified in that provision are met. There was nothing in the applicant’s background, or the nature of the offences committed, that would justify not fixing a non-parole period.  Plainly, it would make little sense to fix a non-parole period, and to order as well a CCO.[2]  Both dispositions are intended, when linked to an actual custodial term, to serve similar purposes, release under supervision in the case of parole, and compliance with conditions in the case of a CCO.[3] 

[2]R v Deng-Mabior [2015] VSCA 179.

[3]Because of the operation of s 11(1), and the consequent inability to combine a sentence of two years’ imprisonment with a CCO, there has been a tendency, in some quarters, to impose a sentence of imprisonment totalling just short of two years, and to combine a CCO with that term of imprisonment. As noted above, that practice has been criticised by this Court, as has the related practice of not declaring pre-sentence detention so as to enable CCOs to be combined with terms of imprisonment that effectively exceed two years, but appear not to do so.

Ground 2

1. The Crown conceded that the sentence of 1 month’s imprisonment imposed on the summary charge of possessing ammunition without a licence was invalid since the maximum penalty for that offence was a fine of 40 penalty units. 

Reasons for disposition

1. As a result of the combination of errors made by the sentencing judge, it became necessary for this Court to resentence the applicant.

1. The applicant’s counsel submitted that the appropriate disposition would be an aggregate sentence of two years’ imprisonment, giving effect to the sentencing judge’s view that this would be an appropriate sentence, but without the CCO that his Honour had purported to attach to it.

1. Counsel for the respondent submitted that this Court should impose an aggregate sentence of just below two years, so that a CCO could, legitimately, be combined with that term of imprisonment.

1. The respondent’s submissions invited this Court to approach the task of sentencing in the very manner that it has criticised on several occasions.  The criticisms came in response to a number of ‘artificially constructed’[4] 23 month sentences that were being imposed after the introduction of the amendments to the Sentencing Act raising the period of imprisonment that could be combined with a CCO from three months to two years.  Not surprisingly, we declined to accede to the respondent’s submission.

   [4]When we say ‘artificially constructed’, we mean only that orders for cumulation and concurrency are tailored to produce a sentence of 23 months' imprisonment or thereabouts, rather than sentencing first, in the orthodox fashion, and possibly adjusting in the light of the fact that a CCO will be combined with imprisonment resulting in an additional measure of punishment.

1. Although the applicant might be said to have been treated leniently, we considered it appropriate to impose the same aggregate sentence of two years as the judge below had plainly contemplated.  That required us to fix a non-parole period of 18 months.  At one point, counsel for the applicant sought to persuade us that a lesser non-parole period might be warranted.  However, sensibly, he almost immediately resiled from that position.

1. We should add only this. It is the responsibility of counsel for both sides to ensure that a sentencing judge, hearing a plea, is properly apprised of the maximum penalty for each offence for which the prisoner is to be sentenced, and also to maintain a close watch upon technical aspects of the sentence so that it is not invalidly imposed.  The errors made in this case could, and should, have been avoided.  All that was required was some attention on the part of counsel below to the relevant provisions of the Sentencing Act governing this matter.

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