Kwag v The King
[2024] VSCA 279
•22 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0132 |
| SEONG KWAG | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | MACAULAY and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 September 2024 |
| DATE OF JUDGMENT: | 22 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 279 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1067 (Judge Tinney) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant convicted of offences including trafficking large commercial quantity of methylamphetamine, trafficking commercial quantity of cocaine – Total effective sentence 16 years, non-parole period 10 years – Base sentence 13 years for large commercial quantity offence – Sentence 9 years 6 months, 2 years cumulation for commercial quantity offence – Whether sentences for trafficking offences, total effective sentence, non-parole period manifestly excessive – Standard sentence 16 years for large commercial quantity offence – Applicant played vital and trusted role within serious high-level criminal enterprise – Personal circumstances taken into account in mitigation – Regard to current sentencing practice – General deterrence prominent – Sentence within permissible range – Leave to appeal refused.
Drugs, Poisons and Controlled Substances Act 1981, ss 71(1), 71AA(1); Sentencing Act 1991, ss 5A, 5(2)(b).
Hili v The Queen (2010) 242 CLR 520; AB v The Queen (1999) 198 CLR 111; Lieu v The Queen (2016) 263 A Crim R 173; Dao v The Queen [2014] VSCA 93; DPP v Larrain [2022] VCC 1405, considered.
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| Counsel | |||
| Applicant: | Mr P Morrissey SC | ||
| Respondent: | Mr JCJ McWilliams | ||
Solicitors | |||
| Applicant: | Ann Valos Criminal Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
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MACAULAY JA
KAYE JA:
Introduction
On 6 September 2021, firefighters attended an apartment rented by the applicant in Melbourne. They were responding to a fire alarm, the source of which was an activated sprinkler head inside the applicant’s apartment. Upon their arrival, the firefighters observed a large amount of water coming out of the apartment. After several knocks went unanswered, the applicant — soaking wet — eventually answered the door and the firefighters entered. After investigating the cause of the sprinklers being activated and observing indicia of a drug laboratory in use, the firefighters alerted police who attended and later arrested the applicant.
On 15 July 2022, the applicant pleaded guilty to four indictable offences and two related summary offences, as set out below. Following a plea hearing in the County Court, Judge Tinney sentenced the applicant on 23 June 2023 as follows:[1]
[1]DPP v Kwag [2023] VCC 1067 (Judge Tinney) (‘Reasons’).
Charge Offence Maximum Sentence Cumulation 1 Trafficking in a Drug of Dependence – Large Commercial Quantity[2] Life imprisonment 13 years Base 2 Trafficking in a Drug of Dependence – Commercial Quantity[3] 25 years 9 years and 6 months 2 years 3 Knowingly deal with proceeds of crime[4] 20 years 3 years and 6 months 1 year 4 Retention of stolen goods[5] 15 years 3 months Nil Related Summary Offences 6 Possess a prohibited weapon without exemption or approval[6] 2 years or 240 penalty units $300 fine N/A 8 Store an unauthorised explosive without approval[7] 100 penalty units $300 fine N/A Total Effective Sentence: 16 years’ imprisonment Non-Parole Period: 10 years Section 6AAA Statement: 21 years’ imprisonment with a non‑parole period of 15 years Other relevant orders: Forfeiture and disposal order
655 days reckoned as pre-sentence detention[2]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 71(1).
[3]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 71AA(1).
[4]Contrary to Crimes Act 1958, s 194(1).
[5]Contrary to Crimes Act 1958, s 88.
[6]Contrary to Control of Weapons Act 1990, s 5AA.
[7]Contrary to Dangerous Goods Act 1985, s 54(5).
The applicant seeks leave to appeal his sentence on two proposed grounds:
(1)The sentence imposed was manifestly excessive, as to:
(a)the individual sentences on each of charges 1 and 2;
(b)the total effective sentence of 16 years; and
(c)the non-parole period.
(2)His Honour erred by over-accumulating the sentences on charges 2 and 3 on charge 1 and on each other.
For the reasons that follow, we would refuse leave to appeal.
Factual background
The discovery of the applicant’s offending may be spelt out in a little more detail.
Once inside the apartment on 6 September 2021, the firefighters noticed that there was no fire or smoke inside. They shut off the sprinkler. The applicant told them that a cigarette had set off the sprinkler head, and then — when informed that that was not possible — that he had ‘knocked it with furniture’. The firefighters dammed up the front entry to the apartment, including with a towel provided by the applicant. The towel had blood on it, which the applicant said was from his hand.
While inside, the firefighters noticed that the oven was switched on, and observed various items throughout the apartment including several SIM cards, and snap‑lock bags containing white powdered substances. A clear, crystalline substance was identified around the rim of the toilet, which was running continuously and appeared to be stuck in the flush position. The same substance was caked onto the toilet brush. In the corner of the bedroom were large drums of acetone. When asked what the acetone was for, the applicant — who appeared flustered and agitated, and had shadowed the firefighters throughout the apartment — said ‘it’s not what you think’.
Police attended, and the applicant — after telling police that he had triggered the sprinkler by smoking a bong — was arrested on an outstanding warrant for unrelated offending. The applicant had sustained a burn to his shoulder but would not explain how, and he was taken to hospital. Later that evening he was conveyed to a police station, where he gave a no comment interview.
In the meantime, members of the Victoria Police Clandestine Laboratory squad conducted an initial search of the apartment. They observed various materials commonly associated with the manufacture of drugs of dependence, as well as a large amount of cash. A search warrant was obtained and the apartment secured overnight.
The following day, a more extensive police search of the apartment uncovered items including:
(a)various chemicals and chemical equipment;
(b)snap-lock bags containing powdered substances;
(c)bottles and containers holding various unknown liquids and solids;
(d)approximately $895,000 in cash (charge 3);
(e)handwritten notes of chemical processes;
(f)receipts from Bunnings;
(g)two phones and a large number of SIM cards;
(h)three stolen passports and other identity documents in the name of individuals other than the applicant (charge 4);
(i)a black extendable baton (summary charge 6);
(j)five Powergel Magnum 365 sticks (summary charge 8); and
(k)a detonator and detonator cords.
Forensic examination of the substances found in the apartment revealed 2,668 g of pure methylamphetamine contained in various mixtures weighing over 7.7 kg (charge 1), and cocaine with a mixed weight of 939 g (235 g by pure weight) (charge 2). Under the Drugs, Poisons and Controlled Substances Act 1981, the large commercial quantity threshold for methylamphetamine is 500 g pure or 750 g mixed, and the commercial quantity threshold for cocaine is 250 g pure or 500 g mixed.[8]
[8]Drugs, Poisons and Controlled Substances Act 1981, Schedule 11.
The applicant was charged and remanded in custody, and was later refused bail. He pleaded guilty to the charged offences in July 2022 and a plea hearing was held in June 2023, following which Judge Tinney imposed the sentence the subject of this application for leave to appeal.
Reasons for sentence
The judge rehearsed the circumstances of the offending, as summarised above. He then identified matters raised by the applicant and the prosecution concerning the nature of the offending and the applicant’s role in it. Before turning to specific issues, the judge observed that there was ‘very little, if any, contest as between the parties’ as to the matters that should be taken into account.[9]
The offending
[9]Reasons, [26].
The judge noted that, on the plea, counsel for the applicant had conceded, correctly, that the totality of the applicant’s offending involved ‘very serious offending’.[10] The judge was unable to determine with certainty the applicant’s role in respect of the drug enterprise. Although not satisfied beyond reasonable doubt that the applicant was the, or a, principal, the judge observed that the applicant was in the apartment in possession of ‘hundreds and hundreds of thousands of dollars in cash’ and a substantial quantity of drugs. Even if ‘only’ responsible for storing those items, the judge considered that on any view the applicant was ‘highly trusted’ and played a ‘vital’ role.[11] The judge was not satisfied that the applicant was performing his role merely to satisfy his own drug use, nor did he consider that financing debts played any large role in his activity. For that reason there was no reduced culpability on account of the applicant’s role — the judge concluded, ‘unmistakably you were in this for very substantial financial gain’.[12]
[10]Ibid [54].
[11]Ibid [56], [63].
[12]Ibid [59].
The judge also observed that the applicant was a relatively intelligent man and he must have known the seriousness of the crimes in which he was involved.[13] The fact that he was living in seemingly modest circumstances with no suggestion of an extravagant lifestyle carried little weight, in the judge’s view, given the scale of the enterprise found within the apartment.[14]
[13]Ibid [62]–[63].
[14]Ibid [64].
When considering the relative gravity of the offences for trafficking drugs (charges 1 and 2), the judge said that, whilst the quantity of drug is undoubtedly important, he would not allow quantity alone to swamp other considerations. As to quantity, he noted that the applicant was in possession of five times the large commercial quantity by pure weight of methylamphetamine and 1.88 times the commercial quantity by mixed weight of cocaine. Plainly, the judge considered, these were not ‘relatively mild examples of the offence’, as had been submitted.[15]
[15]Ibid [66].
In summary, the judge concluded that the applicant ‘played a vital and trusted role in what [he] knew to be a serious high‑level criminal enterprise’, that his ‘culpability [was] high’ and that the trafficking constituted by charges 1 and 2 was ‘very serious offending’.[16]
Offender’s circumstances
[16]Ibid [72], [74]–[75].
The judge gave an abbreviated summary of the applicant’s life. The applicant was born in South Korea on 17 February 1986 and came to Australia with his parents at the age of 14. He is now an Australian citizen. He grew up in a family with a father who abused alcohol and was sometimes violent. Transitioning to school was difficult because the applicant did not speak English. At secondary school he was bullied and began abusing alcohol. He barely passed VCE, and then obtained employment — first as a waiter, then in telecommunications sales and accounts and management.
He was married and had a daughter but his relationship began deteriorating by 2009, and his wife left him in 2013. Again he abused alcohol and also drugs. His contact with his daughter dropped off. For a limited time he worked in construction with his father.
His only criminal history relates to some offending in 2019 for which he was fined without a conviction, and which is of little relevance to the current proceeding.
The judge was of the view that the applicant did not have an ‘ideal’ background, but that it was not so poor that the principles of Bugmy v The Queen[17] or DPP v Herrmann[18] were engaged. Even so, the judge said that he would take the applicant’s personal background into account. In view of that history, the judge concluded that the only thing ‘explaining [the applicant’s] offending is the lure of significant enough financial reward’.[19] Most remarkable, in the judge’s view, was the applicant’s spectacular descent into serious crime at the age of 37, having no relevant prior criminal history.
[17](2013) 249 CLR 571; [2013] HCA 37.
[18](2021) 290 A Crim R 110; [2021] VSCA 160.
[19]Reasons, [37].
A psychologist, Luke Armstrong, interviewed the applicant in October 2021 and administered a number of psychometric tests. Mr Armstrong provided a report dated 6 October 2021 which was tendered on the plea. In addition, the judge had a letter from psychologist Tracey Allen dated 28 November 2022, confirming that the applicant had completed three rounds of the Motivating Affect Self Control (MASC) program at the Metropolitan Remand Centre. In summary, the judge accepted that he could take those reports into account to make judgments as to the applicant’s future prospects of rehabilitation. Specifically, the judge noted and accepted the prosecution concession, made in written submissions, that the applicant had good prospects of rehabilitation in the light of:
(a)the remorse demonstrated by [the applicant] through his letter to the Court, his engagement with Mr Armstrong and Ms Allen and his plea of guilty;
(b)the family support available to [the applicant], and his desire to strengthen his relationship with his daughter moving forward;
(c)[the applicant’s] successful completion of three rounds of the Motivating Affect Self Control program (MASC program), and dedication to implementing these strategies in the future; and
(d)The views of Mr Armstrong and Ms Allen in relation to [the applicant’s] rehabilitative steps taken in custody and his ability to implement strategies learned during the MASC.
Although favouring rehabilitation prospects, the judge said that these matters did not reduce the applicant’s culpability for his offending, as was accepted by the applicant’s counsel.
Next, the judge considered the applicant’s guilty plea. Although it was not made ‘at the very earliest opportunity’, the judge said that he would treat it as an early plea, take it into account in the applicant’s favour and pass a lesser sentence because of it.[20] The judge specifically referred to the decision of Worboyes v The Queen,[21] acknowledging the heightened benefit of the applicant’s plea amidst the global COVID-19 pandemic.[22] The judge made some observations about the matter of remorse. Noting that a guilty plea is not always indicative of remorse, the judge considered the combined effect of the applicant’s guilty plea, letter of apology to the Court, expression of remorse conveyed to Mr Armstrong and efforts toward rehabilitation in custody. In total, the judge said he was prepared to find that there was some remorse in this case, which he would take into account in mitigation.
[20]Ibid [41].
[21][2021] VSCA 169 (‘Worboyes’).
[22]Reasons, [42].
As for prospects of rehabilitation, the judge weighed, on the one hand, the applicant’s age, limited criminal history, positive efforts in custody, plea of guilty and some level of actual remorse, and, on the other, the serious and obviously calculated nature of the crimes and the applicant’s long-term issues with drugs and alcohol. Taken together, the judge accepted the applicant’s submissions that his future prospects were good.
Finally, the judge considered the impact of COVID‑19 on the applicant as a prisoner. He said that he was prepared to accept that the virus and measures undertaken in response to it had increased the applicant’s burden on remand, because he had been in custody since September 2021. Looking forward from the sentencing date in June 2023, the judge considered that it was not unreasonable to expect that prisoners may yet have some minor issues thrown up by COVID‑19 in the short term. In this way, the judge took into account the increased burden imposed by the response to COVID‑19 both past and future.
Sentence
The judge considered that all the sentencing purposes set out in s 5(1) of the Sentencing Act 1991 were engaged — that is, just punishment, deterrence (general and specific), denunciation, rehabilitation and community protection. Of those, the judge particularly emphasised general deterrence, elaborating on the harmful impact of drugs of dependence in the community. He took account of the large maximum penalties that Parliament has prescribed for trafficking large commercial quantities (life imprisonment) and commercial quantities (25 years’ imprisonment) of drugs of dependence.
Turning to current sentencing practices, the judge noted that the standard sentence scheme applied to charge 1 and that only past sentences imposed under that scheme could be taken into account. The judge referenced the Sentencing Advisory Council publications with respect to trafficking in drugs in a large commercial and commercial quantity. He took note of this Court’s statement in Gregory v The Queen,[23] to the effect that, as at 2017, sentences imposed for trafficking commercial quantities of drugs had been inadequate and that, where named aggravating features were present, sentences for that offence could be expected ‘well into double figures’.[24] The judge referred to several decisions since Gregory, and to submissions put on behalf of the applicant that compared the applicant’s position with those of offenders sentenced in earlier cases. The judge said that he was more assisted by statements of principle made in those other cases than by any dissection of the characteristics of the offender or the offence in individual cases for comparative purposes.
[23](2017) 268 A Crim R 1; [2017] VSCA 151 (‘Gregory’).
[24]Ibid [98] (Maxwell P, Redlich and Beach JJA).
With regards to the operation of the standard sentencing scheme applicable to charge 1,[25] the judge concluded that, viewed objectively, the applicant’s offending fell ‘at least at the mid-range’ of offence seriousness. Noting that the standard sentence for trafficking a large commercial quantity of drugs is 16 years’ imprisonment, the judge outlined the applicable principles, namely that while he should take the standard sentence into account, that figure was not ‘a starting point’ but just a ‘legislative guidepost’. He also noted that the fixing of a non-parole period for standard sentence offences was governed by s 11A(4) of the Sentencing Act 1991.
[25]Sentencing Act 1991, s 5A; Drugs, Poisons and Controlled Substances Act 1981, s 71(2).
Finally, the judge was cognisant of the principle of totality, noting that the effect of the sentences he imposed must be just and appropriate and commensurate with the applicant’s overall criminality.
In the light of these matters, the judge imposed the sentences and fixed the non-parole period set out above.
Were the sentences for charges 1 and 2, the total effective sentence and the non‑parole period manifestly excessive?
Applicant’s submissions
Despite the applicant seeking leave to appeal on two proposed grounds (identified above), in oral argument the applicant acknowledged that the error alleged in proposed ground 2 (of over‑accumulation) would, in substance, be revealed if the applicant succeeded in persuading the Court that the total effective sentence was manifestly excessive. For that reason, the applicant confined his argument to proposed ground 1.
The applicant acknowledged that, on the plea, there was no real controversy about the essential facts relating to the offences, the applicant’s role, his personal circumstances, and mitigating factors. In substance, the applicant’s argument was that, although the judge’s reasons were thorough and comprehensive, when proper regard is given to all the matters accepted by the judge in mitigation, the relative gravity of the offence and the applicant’s role in the drug trafficking hierarchy, the outcome in terms of years of imprisonment on charges 1 and 2, the total effective sentence and the non‑parole period, is wholly outside of the range that could properly be imposed.
In relation to his personal circumstances, the applicant emphasised his difficult family background, that he had worked, married and started a family, and that he had no relevant prior convictions. He had responded well to incarceration, which was largely undertaken during the COVID‑19 pandemic, had pleaded guilty to the charges against him and had developed remorse. The judge found that he had good prospects of rehabilitation.
Turning to the objective gravity of the offending, the applicant submitted that the proper characterisation of his offending under charge 1 was that it was in the ‘low to medium’ range. The quantity of drugs was ‘comparatively low’ and the drugs were not in a condition ‘ready to sell’. Although the enterprise had some sophistication, the applicant’s role did not. It was single-date, possession-for-sale trafficking. Such trafficking, on a single day, in the quantities alleged, should have been characterised more favourably, the applicant submitted. Moreover, with a proper understanding of the applicant’s role in the drug trafficking enterprise and because of the interrelationship between the charges, a lower sentence was appropriate on charge 2 and an ‘unusually high level of concurrency’ was warranted in respect to charges 2 and 3.
Focusing in more detail on his role in the drug trafficking enterprise, the applicant emphasised the judge’s finding that he was not a ‘principal’,[26] unlike cases such as Dao v The Queen.[27] The applicant did not contest the judge’s finding that he had played a ‘vital’ and ‘trusted’ role in a ‘serious high‑level criminal enterprise’. Nevertheless, those findings, he submitted, did not preclude a characterisation that it was a ‘risk-taking role’ of the kind seen in the case of DPP v Larrain,[28] a role that justified a substantially lesser sentence. On the evidence, the applicant submitted, the only uncertainty the judge expressed concerned, first, the applicant’s assertion that he had only limited claim to the money found at the unit and, second, the ‘precise’ role he played in the trafficking. The proper characterisation of his role, the applicant submitted, was that of a ‘trusted storeman’.
[26]Reasons, [72].
[27][2014] VSCA 93 (‘Dao’); see also R v Olbrich (1999) 199 CLR 270, [19]–[20] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); [1999] HCA 54.
[28][2022] VCC 1405.
The applicant made submissions about the sentences imposed in a number of comparator cases, from which he urged the Court to find that his sentence was outside of the permissible range.[29]
[29]In particular, the applicant concentrated on the sentences imposed in the County Court in the cases set out in the table at [56] below.
In conclusion, the applicant submitted that when his personal circumstances were combined with the gravity of the offending (including his role in it), the total effective sentence of 16 years, after a plea of guilty, was wholly outside the range.
Respondent’s submissions
The respondent argued that the applicant’s offending was, and was found by the judge to be, ‘very serious offending’ that was ‘at least at the mid‑range looked at purely objectively’.[30] The submission by the applicant that the gravity was relatively low or comparatively low could not be reconciled with the evidence of the amounts of drug that were found or with the specific findings of the judge.
[30]Referring to Reasons, [54], [146].
The respondent emphasised that the applicant did not take issue with any of the judge’s findings and made no contention of specific error. It followed, the respondent submitted, that the applicant’s case turned on how much weight should be given to each of the factors relevant to the exercise of the sentencing discretion.
Concentrating first on the nature of the offending and the level of criminality involved, the respondent highlighted, in the broad, the following features:
(a)many kilograms of drugs were found, being multiples of the large commercial quantity threshold, along with nearly $900,000 in cash — hence, this was high‑level offending;
(b)the applicant played a vital and trusted role in what he knew was a serious high‑level criminal enterprise;
(c)the applicant did so because of the financial rewards he could expect to receive and, although he had drug use problems in 2013 and again in 2019, drug use was not so much of an issue in 2021 — he was not engaged in ‘wretched street level trafficking’.
In sum, the respondent submitted that the judge was correct to conclude that this was at least a mid-level example of the drug offences for which the applicant was charged.
In relation to both the applicant’s role in the offending and his personal circumstances, the respondent submitted that the findings the judge made were as generous as they could have been. The respondent denied that the judge found that the applicant played some less significant role; rather, the judge merely found a negative, namely that the applicant was not a principal.
The respondent also put forward a number of cases for comparison purposes.[31] The respondent argued that an examination of all the other cases, taking into account differences and similarities in the offending and personal circumstances of the offender, reveals that the outcome in this case sits comfortably within the range of outcomes imposed.
[31]See the cases listed at [56] as determined or upheld in the Court of Appeal.
When asked about the significance of the pandemic and the Worboyes allowance, the respondent submitted that every case has its positives and negatives, and that some of the other cases were pre‑pandemic and some post‑pandemic. Because no two cases are truly the same, the fact of the pandemic might ‘provoke thought, but it is not determinative’.
Analysis and conclusion
The ground of manifest excess will only succeed if it can be shown that the sentence was wholly outside the range of sentencing options available to the sentencing judge — or, as expressed by Hayne J in AB v The Queen, that it is ‘too heavy’ and ‘lies outside the permissible range of dispositions’.[32] That is, the applicant must show that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This has been described as a stringent requirement, difficult to satisfy.[33]
[32](1999) 198 CLR 111, 160 [130] (Hayne J); [1999] HCA 46.
[33]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
Parliament indicated its view of the seriousness of the trafficking offences by setting a maximum penalty of life imprisonment for large commercial quantity trafficking and 25 years’ imprisonment for commercial quantity trafficking.
As acknowledged on the plea and in the judge’s reasons, the offence of trafficking a large commercial quantity of drugs of dependence is a standard sentence offence, as described in s 5A of the Sentencing Act 1991. The standard sentence for that offence is 16 years’ imprisonment.[34] Sixteen years is to be viewed as the sentence for an offence in the ‘middle of the range of seriousness’ when taking into account only the nature of the offending and not any matters personal to the offender.[35] Where a standard sentence is prescribed, it is one of the matters to which the Court must have regard when sentencing an offender.[36]
[34]Drugs Poisons and Controlled Substances Act 1981, s 71(2).
[35]Sentencing Act1991, ss 5A(1)(b), (3).
[36]Ibid s 5(2)(ab).
The principal matters argued before us concerned the issues of the applicant’s ‘role’, the collection of mitigatory factors, and the sentences imposed in comparable cases.
Role
The judge chose not to try and identify the nature of the applicant’s criminality, as a measure of the seriousness of his offending, by reference to any specific finding as to the applicant’s hierarchical position within the drug trafficking enterprise in which he participated. It is not essential in the sentencing process to determine the position of the offender in a drug enterprise hierarchy, although where it can be discerned it may be important.[37] As the judge explained, he was unable to determine precisely what position the applicant occupied or role he played.
[37]Dao [2014] VSCA 93, [39]–[40] (Redlich JA).
Nonetheless, this did not mean that the evidence was bereft of any indicia about the role the applicant played. From the evidence, the judge was prepared to find, in the applicant’s favour, that the applicant was not a principal. That is, he was not satisfied that the applicant participated in trafficking the drugs on his own account. Nevertheless, the judge observed that the applicant was left alone in the apartment with hundreds of thousands of dollars and very substantial quantities of drugs of dependence, albeit not in any immediately saleable form. In addition, some of the money was the applicant’s money. The judge found that, whatever his precise role was, the applicant was participating to make ‘very substantial financial gain’.
From this and other evidence the judge was able to conclude that the applicant played a ‘vital’ and ‘trusted’ role within a serious criminal enterprise. The judge did not, however, adopt descriptions such as that of ‘trusted storeman’ or a ‘risk-taker’. These characterisations appear to be drawn from DPP v Larrain,[38] in which the judge accepted the descriptors of a ‘risk taking role of a hands-on handler’ and a ‘risk bearer’ as accurately characterising the role played by the offender in that case. These are not precise or well-defined terms. They have no fixed or technical meaning. Apparently the judge in Larrain considered them to be useful labels to describe the offender’s participation in the context of the facts in that case. As deployed in argument in this case, the applicant used them to characterise a person who is used by others higher up in a hierarchy to take on the risk of detection or apprehension by allowing their house, car or storage facility to be used in the enterprise. They might also be trusted to handle the drugs and money.[39]
[38][2022] VCC 1405, [15] (Judge Maidment) (‘Larrain’).
[39]Ibid.
Although it may be correct, as the applicant submitted, that the finding that the applicant was not a principal did not preclude a characterisation of his role as a ‘risk taker’ or ‘trusted storeman’, nor does the finding that he was not a principal only leave open the characterisations which the applicant urged us to adopt. In the end, the debate about an appropriate label is a distraction. The judge could not determine the applicant’s role. He could only say what the applicant was not, and beyond that, make observations about the importance of his role (whatever it actually was) and the apparent levels of trust he enjoyed within the enterprise. We prefer to proceed upon the characterisations which the judge did adopt, none of which are challenged as being incorrect or unavailable to him. Hence, we proceed on the basis that the applicant played a vital and trusted role within a serious high-level criminal enterprise.
Personal factors in mitigation
The applicant’s personal circumstances, to be taken into account in his favour, have been summarised above (at [18]-[26]), along with the key submissions which the applicant made about them (at [34]). The question is whether, after taking those matters into account in combination with all other considerations, the outcome in terms of the lengths of the sentences on the individual charges, the total effective sentence and the non-parole period cannot be explained by the proper exercise of the sentencing discretion.
Current sentencing practice
Courts are required to take account of current sentencing practices for the offence for which an offender is to be sentenced.[40] It is not suggested that the judge failed to do so. He specifically referred to the cases put to him as revealing current sentencing practices for trafficking in commercial and large commercial quantities of drugs. Many of the same cases, and more, were also the subject of submissions to this Court. We were assisted with tables of cases with short digests of the relevant sentences and some key features of each case.
[40]Sentencing Act 1991, s 5(2)(b).
Without descending into the detail of the specific features of each case, it is useful to set out the lengths of sentence given in those cases, in descending order, both in this Court and in the County Court (where not the subject of appeal). The sentences depicted are only for the offence of trafficking a large commercial quantity (even if imposed in combination with other sentences), and only since the advent of the standard sentencing scheme:
Case LCQ charge sentence/s Court of Appeal Quah v The Queen (2021) 290 A Crim R 136[41] (15 June 2021)
15y Do v The King [2023] VSCA 254 (24 October 2023)
13y; 10y Bruce v The Queen [2022] VSCA 100 (26 May 2022)
12y DPP v Jabbour [2023] VSCA 204 (4 September 2023)
12y Dukic v The Queen [2021] VSCA 18 (11 February 2021)
11y Dimovski v The Queen [2022] VSCA 6 (28 January 2022)
11y DPP v Kumas [2021] VSCA 215 (6 August 2021)
10y
Al Janabe v The Queen [2021] VSCA 252 (9 September 2021)
10y DPP v Goldsmid; DPP v Moreau [2023] VSCA 124 (24 May 2023)
Goldsmid:7y, Moreau: 6y
County Court DPP v Larrain [2022] VCC 1405 (14 August 2022) 15y, 13y 6m, 13y (x2), 12y DPP v Natale [2022] VCC 1199 (27 July 2022) 15y DPP v Yuksek [2022] VCC 683 (19 May 2022) 12y DPP v Assaad [2022] VCC 1422 (26 August 2022) 10y 6m [41][2021] VSCA 164.
Since the hearing of this matter, the Sentencing Advisory Council (‘SAC’) published, on 1 October 2024, its ‘Sentencing Snapshot 292 – Sentencing Trends for Trafficking in a Large Commercial Quantity of Drugs’. That document describes sentencing outcomes in the County and Supreme Courts of Victoria for the five financial years 2018–19 to 2022–23. In the last three of those five years, all the captured offences for trafficking large commercial quantities were dealt with as standard sentence offences. Imprisonment lengths across the five years ranged from 4 years, to 15 years and 4 months; the median over the five years was 9 years and 3 months; and the average sentences for the last three financial years were within a month above or below 10 years. The total effective sentence in cases where trafficking in a large commercial quantity was the principal offence ranged from 4 years to 22 years, with the median total effective sentence being 10 years and 8 months.
Comparing an applicant’s offending behaviour with other examples of the same or similar offences ‘may assist by revealing a possible range or pattern of previous sentences’ in order to pursue consistency in sentencing.[42] However, this process is directed not toward achieving consistency in the simplistic sense of ‘mathematical or numerical equivalence of sentences’,[43] but rather, consistency in the application of relevant legal principles.[44] Past sentences stand as a ‘yardstick against which to examine a proposed sentence’.[45] Further, the measures of manifest excess and manifest inadequacy are not ‘capped and collared’ by the highest and lowest sentences hitherto imposed.[46]
[42]Lieu v The Queen (2016) 263 A Crim R 173, 186 [46] (Beach and Kaye JJA); [2016] VSCA 277.
[43]Ibid.
[44]Ibid; Hili v The Queen (2010) 242 CLR 520; 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 45 (‘Hili’).
[45]Hili (2010) 242 CLR 520; 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[46]DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 445 [51] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41, quoting DPP v OJA (2007) 172 A Crim R 181, 196 [30] (Nettle JA, Ashley JA agreeing at 206 [71], Redlich JA agreeing at 206 [72]); [2007] VSCA 129.
Both the table of cases set out above and the SAC statistics demonstrate that a wide spread of sentences have been imposed for this particular offence, although significant sentences of 10 years’ imprisonment or more are often imposed. Analysis of individual cases reveals, as is expected, that the variation is explained by a significant range of variables in the nature and gravity of offending and the personal circumstances of the offender, each, or any combination, of which may be present or not present in any given case. Nevertheless, we take them into account as revealing a possible pattern of sentences to assist our evaluation of the sentence imposed in this case.
Conclusion
Looked at individually, we are not persuaded that the sentences for charges 1 and 2 are outside of the permissible range of dispositions for sentences of their type.
We agree with the judge’s assessment that the offence of trafficking in a large commercial quantity of a drug fell in the mid-range of offending for offences of that type. The applicant’s submission that a lesser measure should be adopted must be rejected, not least because no error was alleged in the judge’s assessment. Bearing in mind the standard sentence of 16 years, the maximum penalty of life imprisonment, the applicant’s plea of guilty, the combination of other factors that he advanced (and the judge accepted) in mitigation, and current sentencing practices, it is not possible in our opinion to conclude that a sentence of 13 years’ imprisonment is outside the permissible range of dispositions on charge 1.
We are of the same view in relation to charge 2, trafficking in a commercial quantity of a drug of dependence, which carries a maximum penalty of 25 years’ imprisonment. Even accepting that there was an interrelationship between the offending that was the subject of each of charges 1 and 2, clearly, each concerns the trafficking of a different drug of dependence in a quantity that is independently significant due to its specific category. Nor are we persuaded that a ‘proper understanding’ of the applicant’s role in the drug trafficking enterprise should, along with other considerations, have led to a different sentence on charge 2. In any event, the question is not whether a lesser sentence might have been imposed, but whether 9 years and 6 months’ imprisonment was beyond the available range. It was not.
Next, we are not persuaded that the total effective sentence produced by accumulating 2 years and 1 year respectively for the sentences on charges 2 and 3, on the 13 year sentence for charge 1, is manifestly excessive. The applicant did not suggest that there should have been no accumulation. For reasons already explained, trafficking cocaine in a commercial quantity reflected separate criminality that deserved discernible reflection in the overall sentence structure. Possession of the very substantial sum of cash found at the premises — apart from colouring the applicant’s role in the trafficking offences — also constituted separate and serious offending. Neither amount of accumulation was excessive.
In this case — as the judge explained, and the applicant acknowledged — general deterrence loomed large in the sentencing synthesis. Many times this Court, and others, have emphasised the need to impose sentences that will, as a practical reality, discourage those who consider engaging in the trafficking of drugs of dependence.[47] Because the financial rewards can be so high, so also the level of deterrence needs to be sufficiently severe to offset the lure of such rewards.
[47]Dawid v The Queen [2013] VSCA 64, [35] (Kaye AJA); DPP (Cth) v KMD (2015) 254 A Crim R 244, 254–5 [37]–[41] (Maxwell P, Weinberg and Beach JJA); [2015] VSCA 255; Lieu v The Queen (2016) 263 A Crim R 173, 185–6 [43] (Beach and Kaye JJA); [2016] VSCA 277; Kim v The Queen [2019] VSCA 149, [31] (Kaye and T Forrest JJA); DPP v Kumas [2021] VSCA 215, [4], [49] (Maxwell P, T Forrest and Walker JJA).
Finally, a non-parole period of just above 60 per cent of the total effective sentence is orthodox. It does not imply any error in the sound exercise of the sentencing discretion.
For these reasons, we are not persuaded that the individual sentences on charges 1 and 2, the total effective sentence or the non-parole period are manifestly excessive. That disposes of proposed ground 1. As acknowledged by the applicant, this conclusion must also dispose of proposed ground 2.
The application for leave to appeal against sentence must be refused.
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