Johnson v The King

[2022] VSCA 228

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0094

TERRY JAMES JOHNSON	Applicant
v
The KING	Respondent

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JUDGES:	PRIEST AP and NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2022
DATE OF JUDGMENT:	20 October 2022
medium neutral citation:	[2022] VSCA 228
JUDGMENT APPEALED FROM:	DPP v Johnson [2022] VCC 932 (Judge Tinney)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in methylamphetamine and other offences – Total effective sentence of two years and six months’ imprisonment with non-parole period of 16 months –  Whether judge mischaracterised scale of the trafficking – Whether sentence manifestly excessive – Leave to appeal refused.

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Counsel
Applicant:		Ms M Greener
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Slade & Parsons
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
niall ja:

Introduction

1. At approximately 6.45 pm on 19 June 2021, Sergeant Matthew Wilson was performing solo patrol duties in the Melbourne CBD when he noticed two Suzuki motorbikes parked on the footpath outside 7 Katherine Place. He saw the applicant and another man, Jordan Robinson, approach the motorcycles (which appeared to have fraudulent registration plates affixed). Sergeant Wilson searched the applicant pursuant to s 82 of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs Act’).  Ultimately, the applicant was found in possession of 114.6 grams of ice (methylamphetamine) — 94 grams pure — a small quantity of ecstasy and $690 cash.  Approximately 111.9 grams of the ice was in a large ziploc bag; 1.8 grams and 1.9 grams of ice respectively in two smaller ziploc bags; and .3 grams of ecstasy in another ziploc bag.  He also had a bag containing a number of empty ziploc bags.

2. On 9 June 2022, the applicant pleaded guilty to trafficking and possession of a drug of dependence (ice and ecstasy respectively), and to a number of related summary charges.  Following a plea, the judge sentenced the applicant to two years and six months’ imprisonment, with a non-parole period of 16 months, together with an aggregate fine of $1500, in accordance with the following table:

Charge	Offence	Sentence	Cumulation
Indictment
1	Possessing a drug of dependence (ecstasy)[1]	$300 fine	N/A
2	Trafficking a drug of dependence (ecstasy)[2]	2 years and 6 months	Base
Related summary offences
3	Dealing with property suspected to be proceeds of crime[3]	2 months	—
4	Fraudulently use registration plates[4]	Aggregate $1500 fine	N/A
5	Using an unregistered vehicle[5]
7	Driving without ‘P’ plate[6]
8	Using a vehicle displaying a representation of a registration plate[7]

[1]Drugs Act, s 73. In the circumstances, the maximum penalty was one year imprisonment.

[2]Drugs Act, s 71AC. The maximum penalty is 15 years’ imprisonment.

[3]Crimes Act 1958, s 195. The maximum penalty is two years’ imprisonment.

[4]Road Safety Act 1986, s 72. The maximum penalty is two months’ imprisonment.

[5]Road Safety Act 1986, s 7(1)(a). In the circumstances, the maximum penalty is 50 penalty units.

[6]Road Safety (Drivers) Regulations 2019, r 56(1)(a). The maximum penalty is three penalty units.

[7]Road Safety (Vehicles) Interim Regulations 2020, r 242(1). The maximum penalty is 10 penalty units.

Total effective sentence:	2 years and 6 months’ imprisonment
Non-parole period:	16 months
Pre-sentence detention	66 days
Section 6AAA declaration:	4 years 6 months’ imprisonment with 3 years non-parole
Other orders:	Forfeiture (cash) and disposal (drugs)

1. The applicant seeks leave to appeal against his sentence on two grounds as follows:

   1    The learned sentencing judge erred in mischaracterising the scale of the offending.

   2    The individual sentences and non-parole period are manifestly excessive in light of the applicant’s guilty pleas and substantial rehabilitation achieved.

2. For the reasons that follow, we would refuse leave to appeal.

Ground 1:  Did the judge mischaracterise the scale of the offending?

1. Under cover of the first ground, the applicant’s counsel submitted in writing that the judge ‘erred in characterising the offending as serious offending’.

2. So far as the seriousness of the offence of trafficking was concerned, the judge observed in his sentencing remarks that:

   This is a quantitative based regime.  It follows that the quantity will always be a relatively important matter, but by no means the only or even the most important factor.  It is plainly serious conduct to traffick in drugs at this level.

3. Counsel for the applicant submitted that the judge placed undue weight on the quantity of methylamphetamine in assessing the seriousness of the offending, and gave inadequate consideration to relevant factors (including that the offending was limited to a single date with no identified transactions having occurred).  Furthermore, counsel submitted, notwithstanding the quantity of ice found on the applicant, the plea resolved on the basis of trafficking simpliciter, reflecting the prosecution’s acceptance, counsel argued, that a portion of the methylamphetamine was for personal use only.  Counsel also submitted that the sentencing judge impermissibly used evidence of the applicant’s financial transactions over the previous month ‘to infer that the offending was of a scale that could not be said to be street level offending’.

4. We do not accept these submissions.

5. The charge of trafficking in a drug of dependence was put on the basis of possession for sale.[8] In this case, the applicant was found in possession of 94 grams of pure methylamphetamine. The commercial quantity of methylamphetamine is 50 grams pure,[9] and the trafficable quantity is three grams (in a mixture).[10]  All other things being equal, the greater the quantity trafficked the more serious the offence.[11]  Thus, even if one accepts — as was put to the judge by the applicant’s counsel — that some of the ice in the applicant’s possession was intended for personal use, the quantity that he possessed for sale remains significant.

   [8]See the definition of ‘traffick’ in s 70 of the Drugs Act.

   [9]Drugs Act, Schedule 11, Part 3, column 2.

   [10]Drugs Act, Schedule 11, Part 3, column 3.

   [11]See Wong v The Queen (2001) 207 CLR 584, 609 [67]–[69]; R v Pidoto (2006) 14 VR 269, 278 [41]; DPP (Cth) v KMD (2015) 254 A Crim R 244, 257 [52]; Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1, 8 [24]. See also Lytras v The Queen [2020] VSCA 150, [59]–[63].

6. On instructions, counsel for the applicant on the plea told the judge that the applicant had an arrangement whereby he would sell a gram of ice for $200.  Counsel said that of that $200, the applicant ‘instructs he would give $100 back to the person who provided him with the drugs’, and he ‘would get about $50 and the balance would be consumed as product’ by the applicant.  Hence, on the applicant’s own figures, the quantity of ice in the applicant’s possession for sale — nearly 115 grams in a mixture — had a retail value of almost $23,000.  The applicant’s offending was, therefore, relatively serious.

7. Further, examination of the applicant’s bank account revealed that, throughout the month of June 2021, the sum of $19,785.00 was deposited into the account from several unknown persons.  Moreover, the applicant transferred approximately $14,680.00 from the account to several unknown persons.  He also withdrew a total amount of $2,950 cash at ATMs and spent approximately $2,050 on in-store purchases.

8. As we have indicated, we consider that there is no substance in the submission advanced by the applicant’s counsel that the judge used evidence of the applicant’s financial transactions to infer that the offending was of a scale that could not be said to be street level offending.  Rather, so it seems to us, the judge rejected the notion that the applicant trafficked illicit drugs as a result of financial need and so as to fund his habit (albeit he accepted that the applicant’s drug use played some role).  The judge said:[12]

   The fact is though that the existence of the cash on the day of arrest and the banking transaction records, disclose the fact of those funds either being in your possession or passing through your bank account.  That tends to debunk the suggestion as to financial need and the motivation for trafficking being to fund your own habit (see the Court of Appeal decision of Ververis).[13] 

   I reject the submission made as to this trafficking arising out of any personal need to fund your own use of drugs.  Your use of drugs might have had a role to play, but you were not acting out of the need to fund personal use.  I am satisfied beyond reasonable doubt that you were acting in the way that you did for profit and sizeable enough profit at that given the quantity of ice which you possessed on the day.  I cannot quantify what you expected to receive by way of profit.  I am prepared to find that you might have used some of the drug yourself, but that that was not the real motivation here.

   [12]Emphasis in original.

   [13]R v Ververis [2010] VSCA 7.

9. Given the movement of funds into and out of the applicant’s account — including the funds he apparently used and otherwise had at his disposal — we consider that the findings set out immediately above were open to the judge.

10. Leave to appeal should be refused on the first ground.

Ground 2:  is the sentence manifestly excessive?

1. Ground 2, which contends that the sentence imposed on the applicant is manifestly excessive, cannot be upheld. 

2. Traversing a well-trodden path, in Leimonitis[14] it was said that

   manifest excess is a conclusion which does not depend upon the attribution of identified specific error.  Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[15] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust.  The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[16]  A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[17]  But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence.  Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[18]

   [14]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).

   [15]R v Kenny (Unreported, 2 October 1978, Vic, CCA);  Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]-[52].

   [16]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).

   [17]Ibid.

   [18]        Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].

3. On the plea, the applicant’s counsel sought a lengthy community correction order (‘CCO’) with treatment and community work conditions.  The prosecution accepted that it would be open to impose a combination sentence given that the court had at its disposal an additional 12 months’ imprisonment beyond the period of pre-sentence detention already served.  As to that, the prosecution accepted that the applicant had done well on bail, but argued that supervision would be important.

4. The applicant, aged 32 years,[19] has an extensive criminal history commencing in 2009.  His prior offending includes dishonesty, reckless endangerment, assault, firearms, proceeds of crime, driving and drug possession offences (although none for trafficking).  He has been sentenced to youth training, community based and community correction orders, and to imprisonment.  Indeed, on 28 April 2015, the applicant was sentenced to an aggregate sentence of two years’ imprisonment for reckless conduct endangering life, using a firearm when a prohibited person and other offences. 

   [19]His date of birth is 16 January 1991.

5. Of course, the applicant cannot be sentenced again for his prior offences.  But as was made clear in O’Brien,[20] although no principle of sentencing requires that more severe sanctions be imposed upon those who persist in criminal behaviour, an adverse criminal record may nevertheless have an impact on the sentencing process in a number of ways: as an indicator of the offender’s moral culpability; his or her prospects of rehabilitation; his or her dangerous propensity (and the community’s need for protection); and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.

   [20]R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA). See also Leishman v The Queen (2019) 90 MVR 421 , 427–9 [19]–[21] (Ferguson CJ, Whelan and Priest JJA); Victorsen v The Queen (2020) 94 MVR 91 , 100–101 [33]–[34] (Priest JA, Niall JA agreeing).

6. The applicant grew up mainly in Geelong.  His parents separated when he was about seven.  At times he ran away from his mother to live with his father (a violent alcoholic) because home life with his mother was beset with difficulties.  He had disrupted schooling as a result, leaving school in Year 9 because he struggled academically.  Although the applicant turned early to drug use he has worked in a range of unskilled labouring and factory jobs.  He had a serious motorbike accident in 2020 which set him back significantly.  Whilst on bail for the instant offending, however, he established a positive relationship with his eight-year-old son.

7. Counsel for the applicant in this Court submitted that the sentence imposed could be seen to be manifestly excessive when regard is had to:

   ·    the applicant’s remorse;

   ·    his lack of prior convictions for similar offending;

   ·    the applicant’s early plea which facilitated the course of justice at a time when the court’s operations were disrupted by the coronavirus pandemic, no perceptible amelioration of sentence being detectable;

   ·    his prospects of rehabilitation;

   ·    the character references tendered on his behalf;

   ·    the applicant’s demonstrated compliance with CISP (‘Court Integrated Services Program’) bail, previous drug treatment order (2012) and community based dispositions (2009, 2018 and 2019); and

   ·    the ‘detriment’ of imprisonment.

8. In his sentencing remarks, the judge observed that he was not bound by the prosecution’s (or applicant’s counsel’s) submissions on sentence.  The judge noted that the applicant pleaded guilty at the earliest opportunity, the plea being of extra weight for the reasons set out in Worboyes.[21]  There was also some evidence of remorse in this matter, although it was ‘hard not to be a bit guarded’ about the applicant’s prospects of rehabilitation, since the applicant’s future prospects will, to a large degree, be conditional upon abstaining from drug use.  As to that, the applicant’s progress on bail and his letter written to the court indicated that the applicant could change the trajectory of his life.  The judge also took into account the increased burden imposed in prisons in response to the COVID-19 pandemic.[22]  Ultimately, the judge determined that neither a ‘standalone’ CCO, nor a combination sentence involving imprisonment and a CCO, ‘would achieve the various purposes of sentencing’.

   [21]Worboyes v The Queen (2021) 96 MVR 344.

   [22]See ibid.

9. Although, in the circumstances of this case, the sentence imposed appears to be stern, we are not persuaded that it is wholly outside the range of sentences open in the sound exercise of discretion.  That being so, appellate intervention is not warranted.

10. This Court has emphasised on many occasions that general deterrence is an important sentencing consideration in cases of drug trafficking.  Those who seek the apparent financial rewards associated with drug trafficking must know that they will be punished appropriately if detected.  It is also important that a sentencing court take into account the prevalence of the offence of trafficking in methylamphetamine when assessing the weight to be given to general deterrence.[23]

    [23]Haddara v The Queen [2016] VSCA 168, [69] (Redlich, Priest and Beach JJA).

11. Leave to appeal should be refused on ground 2.

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