Lytras v The Queen
[2020] VSCA 150
•10 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0117
| CHRIS LYTRAS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 June 2020 |
| DATE OF JUDGMENT: | 10 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 150 |
| JUDGMENT APPEALED FROM: | DPP v Lytras (Unreported, County Court of Victoria, Judge Chettle, 6 September 2018) |
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CRIMINAL LAW — Appeal — Sentence — Trafficking in not less than a commercial quantity of methylamphetamine — Trafficking in cocaine and MDMA — Whether a total effective sentence of 12 years’ imprisonment with non-parole period of 8 years manifestly excessive — Plea in mitigation incompetently conducted by counsel — Appeal allowed — Resentenced to a total effective sentence of 9 years and 6 months’ imprisonment with non-parole period of 6 years — DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1; DPP v Condo [2019] VSCA 181 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Smallwood and Mr T Bourbon | Stephen Andrianakis & Associates |
| For the Respondent | Mr J Lewis | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
WEINBERG JA:
On 10 November 2017, the applicant pleaded guilty before a judge in the County Court to one charge of trafficking in not less than a commercial quantity of a drug of dependence,[1] methylamphetamine (charge 1), and two charges of trafficking in a drug of dependence,[2] respectively cocaine and MDMA (charges 2 and 3).
[1]Drugs, Poisons and Controlled Substances Act 1981, s 71AA. The maximum penalty is 25 years’ imprisonment.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71AC. The maximum penalty is 15 years’ imprisonment.
After a plea conducted before another judge on 17 August 2018,[3] the applicant was sentenced on 6 September 2018 to 12 years’ imprisonment, with a non-parole period of eight years, in accordance with the following table:
[3]The delay between 10 November 2017 and 17 August 2018 was in part attributable to a foreshadowed application by the applicant to change his plea. By 6 April 2018, the applicant had indicated that he would not proceed with that application.
Charge Offence Sentence Cumulation 1 Trafficking in not less than a commercial quantity of a drug of dependence (methylamphetamine) 10 years Base 2 Trafficking in a drug of dependence (cocaine) 4 years 1 year 3 Trafficking in a drug of dependence (MDMA) 4 years 1 year Total Effective Sentence 12 years’ imprisonment Non-Parole Period 8 years Pre-Sentence Detention 874 days 6AAA statement 15 years’ imprisonment with 11 years non-parole Other Orders Forensic sample
The applicant seeks leave to appeal against his sentence on two grounds, formulated as follows:
1. The individual sentences imposed, the orders for cumulation made, the resulting total effective sentence and the non‐parole period fixed were each manifestly excessive.
Particulars:
(a) The individual sentences imposed, in particular that imposed on charge 1, were manifestly too long.
(b) The sentence imposed on charge 3 was disproportionate to the overall criminality of the applicant’s offending. It failed to recognise that that offending was committed on a single date and that the purity of the MDMA was relatively low.
(c) The sentencing judge failed to give proper weight to mitigating circumstances personal to the applicant, in particular those set out in the letter authored by the applicant dated 15 May 2018.
2. The sentencing discretion miscarried as a consequence of the applicant’s representation at the plea hearing being incompetent, such that the applicant was materially and unfairly disadvantaged.
For the reasons that follow, we would grant leave to appeal and allow the appeal. We would resentence the applicant to a total effective sentence of nine years and six months’ imprisonment, with a non-parole period of six years, in the manner set out below.[4]
[4]See [65] below.
The offending
The charges against the applicant arose out of his drug trafficking activities whilst the licence nominee and manager of the Railway Hotel, Brunswick. Paul Polito was the bar manager of the hotel, which was licensed for late night trading, including a nightclub.
As part of a police investigation dubbed ‘Operation Thunderstruck’, Covert Operative 284 (‘CO 284’ or ‘Roger’), made a number of controlled purchases of illicit drugs from the applicant. During conversations with Roger, the applicant fulfilled drug orders using code such as ‘drinks’ or ‘dinner’ for methylamphetamine or cocaine.
Between 30 November 2015 and 24 February 2016, Roger purchased in total 224.1 grams of methylamphetamine[5] and 70.9 grams of cocaine[6] (28.1 grams of which was actually lignocaine and a small quantity of methylamphetamine) from the applicant at a total cost of $67,800.
[5]At the time of the applicant’s offending, a commercial quantity of methylamphetamine was 100 grams pure (it is now 50 grams), or 500 in a mixture (it is now 250 grams). See Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 3. And see Haddara v The Queen [2016] VSCA 168, [71]; DPP v Condo [2019] VSCA 181, [10].
[6]A commercial quantity of cocaine is 250 grams pure, or 500 grams in a mixture. See Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 3.
During the relevant period, CO 284 made eight controlled purchases from the applicant.
First, on 30 November 2015, CO 284 was introduced to the applicant at the hotel. He was taken upstairs to a room with two couches and a desk. On the desk there were scales, ‘deal bags’ and two small mirrors. CO 284 said he was looking to buy ‘half a bag’. The applicant said ‘how about two and a half’, referring to the sum of $2,500. CO 284 then handed over $2,500 and the applicant provided the drugs, being 14.1 grams of methylamphetamine with purity of 84 per cent.
Secondly, on 8 December 2015, CO 284 went to the hotel and was taken upstairs to the same room. The applicant told CO 284, ‘I’ve got everything you want’. CO 284 requested a ‘full’, meaning 28 grams of methylamphetamine. The applicant said it would cost $5,000 and measured out crystals. CO 284 then inquired about ‘coke’ (cocaine), and the applicant said, ‘yeah of course, I’ve got pure’. He offered ‘a gram of that one for three’, a reference to $300. CO 284 handed over a total of $5,300, and received 28.1 grams of methylamphetamine at 86 per cent purity, and one gram of cocaine at 62 per cent purity.
Thirdly, on 10 December 2015, CO 284 once more went to the hotel and met the applicant. CO 284 ordered a ‘full bag’ (28 grams) of cocaine, and said that he was looking for ‘a half of Cold’ (14 grams of methylamphetamine). The applicant supplied the drugs. CO 284 paid $8,000 for the cocaine, being 28 grams of substance at 53 per cent purity, and a further $2,500 for the methylamphetamine, being 14 grams of substance at 85 per cent purity.
Fourthly, on 22 December 2015, CO 284 went to the same room at the hotel and met the applicant, who was in possession of a plastic container containing various pills, powders and crystals. CO 284 asked for ‘one and one’, meaning an ounce of methylamphetamine and an ounce of cocaine. He paid the applicant $8,000 for the cocaine, being 27.9 grams of cocaine at 90 per cent purity, and $5,000 for methylamphetamine, being 27.9 grams of methylamphetamine at 86 per cent purity. The applicant told CO 284 that he used the plastic container to pack up at night and move the drugs out of the hotel. CO 284 also spoke to the applicant about purchasing four to five ounces of methylamphetamine and cocaine each week. The applicant indicated that this would not be a problem and they discussed an ordering code.
Fifthly, on 20 January 2016 CO 284 again went to the hotel and was invited upstairs by the applicant. On this occasion, there was another identified male present. The applicant measured and supplied the methylamphetamine for $5,000, but there was a delay with the supply of the cocaine. After making a telephone call, the applicant was able to supply the cocaine for the agreed price of $8,000. The applicant supplied 27.9 grams of methylamphetamine at 86 per cent purity, and 28.1 grams of cocaine containing lignocaine and a small quantity of methylamphetamine. CO 284 later contacted the applicant and complained about the poor quality of the cocaine.
Sixthly, on 25 January 2016, CO 284 went to the hotel and requested ‘two of shard’, being two ounces of methylamphetamine. CO 284 paid the applicant $10,000, and received 55.5 grams of methylamphetamine with an 82 per cent purity.
Seventhly, on 18 February 2016, CO 284 again went to the hotel. He paid the applicant $3,000 for 14 grams of cocaine and $5,000 for 28 grams of methylamphetamine, and received 14 grams of cocaine at 21 per cent purity, and 28.2 grams of methylamphetamine at 84 per cent purity.
Eighthly, on 24 February 2016 CO 284 again went to the hotel and met the applicant in the same room. He asked for ‘one of cold’, meaning an ounce of methylamphetamine. The applicant produced and weighed crystals, supplying 28.4 grams of methylamphetamine with a purity of 86 per cent. CO 284 paid him $5,000.
During the course of the investigation police established that the applicant kept a drug stash at Polito’s unit in Brunswick. In an intercepted telephone conversation between them on 24 March 2016, the applicant called Polito at his unit and requested him to open the ‘box’. The applicant gave Polito the lock code. On 26 March 2016, in a further two calls, the applicant asked Polito to bring ‘MSM’, ‘Rounds’ and ‘VWs’. ‘Rounds’ is a term used to describe ecstasy tablets, and ‘VW’ was a marking later found on ecstasy tablets. Police subsequently recovered a large metal box at Polito’s unit, marked ‘Geelong’.
On 15 April 2016, police executed a search warrant at the applicant’s unit in Elwood, and found 1.53 grams of cocaine. Police also searched Polito’s unit and found 514.3 grams of methylamphetamine;[7] 1.1 grams of cocaine;[8] and 493 grams of MDMA,[9] the purity of which was generally 18 or 19 per cent.[10] Most of the drugs were in the ‘Geelong’ box.
[7]See fn 5 above.
[8]See fn 6 above,
[9]A commercial quantity of MDMA (ecstasy) is 100 grams pure, or 500 grams in a mixture. See Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 3.
[10]Inside the Geelong box, there were ten separate quantities. The two major quantities were a bag of tablets weighing 231.9 grams, with a purity of 19 per cent; and another bag of tablets weighing 227.8 grams, with a purity of 18 per cent. The highest purity, 24 per cent and 23 per cent respectively, was in two separate quantities weighing 2.4 and 2.3 grams.
Charge 1 related to the total amount of 738.3 grams of methylamphetamine sold and possessed; charge 2 related to the total amount of 101.6 grams of cocaine sold or possessed; and charge 3 related to 493 grams of MDMA located in the Geelong box.
Operation Thunderstruck resulted in the arrest and charging of two other individuals, Polito and Eman Mousavi. Polito, who pleaded guilty to three charges of trafficking in a drug of dependence (methylamphetamine, cocaine and MDMA respectively), and who had given a sworn undertaking to give evidence against the applicant, was sentenced to a community correction order of three years’ duration, the conditions of which included a requirement that he perform 300 hours’ community work.[11] Mousavi, who was ‘both a vendor to and purchaser of drugs from [the applicant] in the course of [his] own business as a drug trafficker’,[12] and who pleaded guilty to trafficking in an aggregated commercial quantity of a drug of dependence (including MDMA, ketamine, LSD and cocaine) and dealing in the proceeds of crime, received a total effective sentence of three years and eight months’ imprisonment, with a non-parole period of two years and four months.
[11]DPP v Polito [2017] VCC 1622 (Judge Cotterell).
[12]DPP v Mousavi (Unreported, County Court of Victoria, 29 May 2017, Judge Lyon), [29].
The plea hearing
The plea conducted on the applicant’s behalf by his then counsel was, to put it mildly, not a shining example of the advocate’s art.
After pointing out that the applicant had supporters in court, and telling the judge that he had a number of references for the judge to look at, counsel for the applicant commenced his submissions by making the somewhat remarkable submission that he was instructed to seek ‘four with a two, and then with a cocktail of a CCO, which is based on Boulton’s case’. In other words, counsel was seeking a sentence of four years’ imprisonment, with a non-parole period of two years, to be combined with a community correction order (‘CCO’) of 18 months’ duration, the CCO being justified by Boulton.[13] When the judge pointed out, first, that he was limited to a sentence of 12 months’ imprisonment combined with a CCO; and, secondly, that the quantity of drugs was such that ‘you’re not within cooee of a cocktail’ (that is, a long way from a combined sentence of imprisonment and a CCO), counsel made the equally remarkable submission: ‘I accept that, Your Honour. I mean, I’m going on instructions’.
[13]Boulton v The Queen (2014) 46 VR 308.
Counsel competently presenting a plea in mitigation would not have suggested to the judge the length of any sentence of imprisonment deemed to be ‘within the range’,[14] and certainly would not have stated that a head sentence of four years’ imprisonment could be combined with a CCO.[15] Further, in a competently conducted plea counsel would not have suggested that it was possible to fix a non-parole period with a CCO.[16] Plainly, it was no answer to these shortcomings for counsel to offer the excuse that he was ‘going on instructions’. Counsel had a duty to be familiar with the applicable legislative provisions and sentencing principles, so as not only to be in a position adequately to assist the court, but so as to ensure that error was avoided. It was a breach of the duty that counsel owed to the court to advance sentencing submissions that plainly were wrong — based on clearly erroneous instructions — to the sentencing judge.
[14]Barbaro v The Queen (2014) 253 CLR 58.
[15]Sentencing Act 1991, s 44(1).
[16]Sentencing Act 1991, s 11(2A).
After that less than promising start, counsel tendered a bundle of character references (Exhibit 2), and a bundle of certificates showing the courses that the applicant had completed whilst in custody (Exhibit 3). Counsel told the judge that the applicant had been a ‘pioneer’ within the prison community, ‘to support prisoners in need’. Having informed the judge that the applicant had written out his life history in ‘very legible handwriting’, counsel tendered the document (Exhibit 4) — some 16 pages — and asked the judge to take it into chambers and read it with the references. Counsel made no attempt, however, to take the judge through the salient aspects of the applicant’s history, let alone highlight those matters revealed in the document that went in mitigation of penalty.
The judge then asked counsel a series of questions in an obvious effort to be apprised of the applicant’s antecedents, but got little information in response. When the judge then sought information from counsel about the applicant’s prior convictions, counsel said: ‘Well, his priors, yes, they speak for themselves, Your Honour’. Counsel then told the judge that businesses that the applicant ran with his partner had become ‘lost’, and, since the applicant had been in custody for two years, his life ‘was really in ruins’.
After then tendering a number of urine testing certificates, showing that the applicant had abstained from drugs in custody (Exhibit 6), counsel submitted that the applicant’s ‘prospects of rehabilitation are, at the moment, excellent’, and that he has ‘that ongoing family support, and together with the fact he wants to have a more meaningful relationship with those of his children that he’ll be able to be reunited with when he’s outside’. Counsel told the judge that the applicant wanted to be a drug counsellor when released.
Towards the end of counsel’s plea — such as it was — the judge remarked:
All I can tell you is, it’s clearly serious behaviour, and I haven’t yet determined the appropriate sentence. I’ve got to read all the material, and take into account the mitigating factors, of which there seem to be primarily two. One his plea, for what it’s worth, the utilitarian value. And secondly the steps he’s taken to further his rehabilitation in custody.
Counsel’s plea ended with the observation that the applicant also had family support.
The prosecutor submitted that ‘this is significant trafficking’ requiring ‘a significant gaol sentence’, so much being ‘the only option’.
The sentencing remarks
In his reasons for sentence, the judge noted that the applicant was, at that stage, aged 51, and had been aged 50 when he offended.
The applicant has a prior conviction for trafficking in a drug of dependence recorded in the County Court on 16 July 2012, for which he received a CCO of 12 months’ duration, with conditions relating to drug and mental health assessment and treatment.[17]
[17]See DPP v Lytras [2012] VCC 991 (Judge Wischusen). The applicant pleaded guilty to trafficking a drug of dependence, based on the possession of 446.7 grams of cannabis for sale. He also pleaded guilty to a summary charge of possessing a poison, benzylpiperazine, for sale.
Much of what the judge said when sentencing the applicant was drawn from the reasons of the judge who sentenced the applicant in 2012[18] (which is understandable given the failure of the applicant’s counsel on the plea to provide any meaningful information to the judge). In summary, the applicant’s circumstances included the following:
· he was born in New Zealand and moved to Australia as a teenager;
· he completed Year 11 and then completed an apprenticeship as a motor mechanic;
· following this, he worked in the hospitality industry;
· the applicant married at the age of 25 and has four children;
· his wife suffered from mental health issues and the marriage broke down in 2005;
· it was following the breakdown of the marriage and his business failures that the applicant started abusing alcohol and drugs.
[18]Ibid.
The judge noted that the applicant’s guilty plea was of significant utilitarian value and would be rewarded with a reduction in sentence. Further, the judge noted the amount of work that the applicant had undertaken whilst in custody, as evidenced by the certificates of completion tendered on the plea. The judge accepted that the applicant’s prospects of rehabilitation were ‘good’. He then said:
The references speak of your remorse for your offending. They also demonstrate you to have been a hard-working, generous and compassionate man. Nonetheless, it is clear that a substantial term of imprisonment must be imposed for your offending. You were an upper mid-level drug dealer participating in regular large drug transactions. You were selling substantial quantities of drugs and receiving large sums of money. You ran an ongoing business of drug trafficking.
Principles of general deterrence and denunciation must be the predominant sentencing factors in sentencing you. You also need to be specifically deterred, given you failed to learn from your previous drug trafficking experience and the community corrections order imposed … in 2012.
The Court of Appeal in this state has recently provided guidance to this court in sentencing commercial quantity drug traffickers in the case of [Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1].
Your trafficking in methylamphetamine was very close to the large commercial quantity threshold.[[19]] You were in charge of the principal of the trafficking business being conducted. You conducted that business for a substantial period of time.
As mentioned, you have a relevant prior conviction. In addition you trafficked in other drugs of dependence on a regular basis. Gregory makes it clear that these factors are significant in the determination of an appropriate sentence in your case.
Your offending, as I said, is extremely serious, and has a grave impact on the community. The maximum penalty prescribed by Parliament demonstrates the seriousness with which this offence is regarded. Clearly there must be some cumulation of sentence in respect of your trafficking in cocaine and MDMA, and I refer to … Gregory in that regard.
[19]At the time of the offending, a large commercial quantity of methylamphetamine was 750 grams, or 1.0 kilogram in a mixture. Currently, a large commercial quantity is 500 grams pure, or 750 grams in a mixture. See Drugs, Poisons and Controlled Substances Act 1981, Schedule 11, Part 3. Charge 1 related to 738.3 grams of methylamphetamine sold or possessed for sale. Of the 224 grams of methylamphetamine sold to CO 284, the purity varied between 82 and 86 per cent pure; and, with respect to the 514.3 grams located in the Geelong box, the major portion (469.8 grams) had a purity of only 11 per cent. Hence, the methylamphetamine in a mixture which was the subject of charge 1 was 261.7 grams short of the applicable large commercial quantity.
Ground 2: Incompetence of counsel
It is convenient to turn first to ground 2, which complains that ‘the sentencing discretion miscarried as a consequence of the applicant’s representation at the plea hearing being incompetent, such that the applicant was materially and unfairly disadvantaged’.
It cannot be gainsaid that aspects of the plea by the applicant’s counsel were incompetent. His failure to have a basic grasp of elementary facets of relevant sentencing law was inexcusable. This Court’s intervention — assuming leave to appeal is granted — is only warranted, however, if ‘there is an error in the sentence first imposed’ and ‘a different sentence should be imposed’.[20]
[20]Criminal Procedure Act 2009, s2 81.
In this Court, counsel for the applicant submitted that counsel who presented the plea did not address ‘what appeared to be a history of potentially serious mental health concerns’ set out in the applicant’s handwritten history. Further, despite this history, counsel on the plea accepted the sentencing judge’s summary that there were only two matters in mitigation, being the applicant’s ‘plea of guilty, for what it’s worth, the utilitarian value’; and prospects of rehabilitation, including the steps taken towards rehabilitation in custody, coupled with ongoing family support.
Counsel for the respondent submitted that appellate intervention is not justified. In written submissions it was contended that the applicant’s handwritten material comprehensively set out his personal history, including his abuse of drugs and alcohol. And though in oral submissions counsel for the respondent said that it ‘must be acknowledged that the conduct of the plea was unsatisfactory’, he nonetheless argued that nothing in the sentencing remarks suggests that counsel’s incompetence led to any error in the sentence imposed.
Recognising that there may be cases in which it might be concluded that the failure to put relevant material in mitigation before a sentencing court on a plea leads to there being ‘an error in the sentence first imposed’,[21] this case is not an appropriate vehicle in which to consider circumstances where the incompetent conduct of a plea by counsel might lead an appellate court to determine that there was an error in the sentence imposed as a result of that incompetence. Although in the exercise of his duties to his client, and to the court, counsel should have done a great deal more to present even a barely adequate plea, the judge had before him in written form some material going in mitigation of penalty, which, no doubt, he read and considered.
[21]See Tsiakis v The Queen [2015] NSWCCA 187, [41]–[45] and the cases there cited (albeit the case is concerned with different legislative criteria).
In those circumstances, we would not grant leave to appeal on the first ground. Obviously enough, however, this should not be taken as any form of acceptance, tacit or otherwise, on our part, of the manner in which this plea was conducted.
Ground 1: A manifestly excessive sentence
The applicant’s submissions
In support of the first ground, counsel for the applicant submitted that the applicant’s offending did not fall towards the upper end of the spectrum of seriousness. There was an absence of those features often going in aggravation (for example, the presence of firearms or the use of violence). Further, the amount trafficked, the purity of the drugs, the duration of the offending and the applicant’s role, did not place the applicant’s offending towards the upper end.
Notwithstanding the absence of aggravating features, however, the sentence imposed on charge 1, counsel submitted, ‘appears to be the highest individual sentence imposed for trafficking in a drug of dependence in a commercial quantity’. Counsel submitted that it was higher — in some cases, substantially higher — than sentences imposed for more serious examples of trafficking.[22]
[22]See [49]–[51] below.
The conclusion that the sentence on charge 1 was manifestly too long, counsel argued, is illuminated by a consideration of other cases. Counsel submitted that the sentence on charge 1 was more severe than sentences imposed in comparable cases;[23] higher than any other individual sentence imposed for the offence of trafficking in a drug of dependence in a commercial quantity considered by this Court (or indeed imposed at the County Court in recent years); and equal to or more severe than sentences recently imposed for the more serious offence of trafficking in a drug of dependence in a large commercial quantity.[24]
[23]Counsel cited Arnautovic v The Queen [2019] VSCA 31, Ellis v The Queen [2018] VSCA 221, Mourkakos v The Queen [2018] VSCA 26 and McKenzie v The Queen [2018] VSCA 34; and referred to sentences imposed in the County Court DPP v Schembri [2018] VCC 2269, DPP (Cth) v Dau [2017] VCC 399, DPP v Vo [2018] VCC 450 and, DPP v Wicks [2019] VCC 135.
[24]Counsel relied on McKenzie v The Queen [2018] VSCA 34, in which the applicant was sentenced to 10 years’ imprisonment on a charge of trafficking in a drug of dependence in not less than a large commercial quantity. The offending in that case involved a quantity of drugs (LSD) that was 19 times the large commercial quantity threshold. Counsel also relied on Djordjic v The Queen [2018] VSCA 227, in which the applicant was sentenced to nine years’ imprisonment for trafficking in a drug of dependence in not less than a large commercial quantity (1.5kilograms of cocaine).
As to the sentence on charge 3, counsel submitted that it was disproportionate to the applicant’s overall criminality, given that it was committed on a single date, and the purity of the mixture of MDMA was relatively low.
The respondent’s submissions
In oral submissions, counsel for the respondent accepted that the sentence imposed on charge 1 is the highest sentence ever imposed in this State for trafficking in not less than a commercial quantity of methylamphetamine. Counsel submitted, however, that it still was within the available range.
Albeit that he conceded that the sentence imposed on the applicant is ‘stern by comparison with sentences imposed in other cases’, the respondent’s counsel argued that the individual sentences imposed, the total effective sentence and non-parole period, were not manifestly excessive. The seriousness with which the offence of trafficking in a commercial quantity of a drug of dependence is to be regarded is reflected in the maximum penalty. In sentencing the applicant, the judge was required to have regard to the relevant maximum penalties, the principles of general and specific deterrence, and to denunciation and protection of the community. Proper application of these principles called for a significant term of imprisonment, notwithstanding the factors in mitigation.
Furthermore, so the respondent’s counsel argued, the sentencing judge properly had regard to Gregory,[25] in which this Court observed that current sentencing practices were inadequate, and that sentences for trafficking in a commercial quantity of methylamphetamine would need to increase substantially. This is particularly so where certain features are present, such as where the quantity involved approaches the large commercial quantity threshold, the offender was in charge of the trafficking business, the business was conducted for a substantial period and the offender had relevant prior convictions. Significantly, however, counsel for the respondent conceded in oral argument that the judge’s observation that the trafficking on charge 1 ‘was very close to the large commercial quantity threshold’ could not be sustained.[26] He also acknowledged that — notwithstanding that it is ‘one of the first things that competent counsel would have addressed’ — the applicant’s counsel on the plea had not made any submissions to the sentencing judge about the effect of Gregory, or about the weight to be given to it in light of the High Court’s subsequent pronouncements in Dalgliesh.[27]
[25]Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1 (‘Gregory’).
[26]See [33] and fn 19 above,
[27]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 454 [83] (‘Dalgliesh’).
Counsel for the respondent submitted that the offending was objectively very serious. The applicant was the principal of the trafficking business which he conducted over a period of four and a half months. During that time, there were eight occasions on which he sold methylamphetamine (totalling 224 grams at a purity between 82 and 86 per cent) to an undercover police operative for a substantial amount of money. The total quantity of methylamphetamine trafficked under charge 1 was substantial, 738.3 grams. Significantly, the applicant also had a relevant prior conviction for trafficking in 2012 (some three years before the present offending). Clearly specific deterrence was an important consideration. Importantly, however, counsel conceded that the offending in Condo[28] — the relevance of which will become apparent — was ‘worse’ than the applicant’s, and that Gregory involved significantly more serious offending than the instant case.
[28]DPP v Condo [2019] VSCA 181 (Maxwell P, T Forrest JA and Weinberg JA) (‘Condo’).
The respondent’s counsel submitted that it was entirely appropriate that the sentencing judge ordered a degree of cumulation on charges 2 and 3 to reflect the separate criminality. The sentence imposed on charge 3 was reflective of the considerable quantity of MDMA, 493 grams, trafficked by the applicant. That quantity was only just below the threshold for the commercial quantity applicable to MDMA. The fact that the court ordered a modest amount of cumulation reflects that the offending occurred on a single date and the low purity involved.
Consideration
Acknowledging at the outset, first, that every case must turn on its own facts (and thus the associated limitations in relying on sentences imposed in ‘comparable’ sentencing cases); secondly, that the applicant’s trafficking on charge 1 involved a substantial quantity of methylamphetamine;[29] and, thirdly, that we live in an era in which sentences for trafficking in commercial quantities of drugs of dependence are on the rise, we are nonetheless persuaded that the individual sentences on charges 1 and 3 are outside the range of those open to the sentencing judge in the sound exercise of discretion.
[29]See fn 19 above. At the relevant time, a large commercial quantity of methylamphetamine was one kilogram in a mixture. Charge 1 related to 738.3 grams in a mixture (that is, not quite three quarters of the applicable large commercial quantity).
In this Court, the applicant, as we have mentioned, relied on ‘comparable’ sentencing cases (so-called) to make good the proposition that the applicant’s sentence is manifestly excessive. Among recent ‘comparable’ cases, the facts in Condo — delivered by this Court after the written cases of the parties were filed[30] — bear some similarities to those of the present case. In Condo, the respondent initially received a sentence of five years and nine months’ imprisonment for trafficking in not less than a commercial quantity of methylamphetamine (as part of a total effective sentence of six years’ imprisonment, with a non-parole period of four years); and on appeal was resentenced to nine years and nine months’ imprisonment (as part of a total effective sentence of 10 years’ imprisonment, with a non-parole period of seven years).
[30]The applicant’s written case is dated 3 June 2019 and the respondent’s is dated 12 August 2019. Judgment in Condo, however, was delivered on 16 August 2019.
The similarities between Condo and the present case include the fact that the respondent in Condo was aged 53 years[31] — the present applicant being 50 at the time of offending — and had a drug related prior conviction — albeit much older and less serious than the applicant’s.[32] Like the present case, the principal charge in Condo was one of trafficking in a commercial quantity of methylamphetamine. And as in Condo, in the present case, the trafficking business was actively operated over about a four-month period.[33]
[31]Condo, [13].
[32]Ibid.
[33]Ibid [28].
There are, however, important points of factual distinction. Thus, it seems clear that Condo involved a much larger operation than the applicant’s. The respondent in that case was a senior member of a drug syndicate that was involved in the trafficking of methylamphetamine on a large scale throughout the Mildura and Red Cliffs area, whereas the applicant’s activities mainly were confined to the hotel. Moreover, although it is difficult to assess with precision from the bare reasons for judgment the extent of the respondent’s criminal activities in Condo, it appears — at least on the face of it — that they were considerably more extensive than the present applicant’s.[34] (As we have said, the respondent’s counsel conceded the offending was ‘worse’.) That is not to say that the applicant’s Giretti-type[35] business was insubstantial, but is to make clear it was not of the same magnitude as was the enterprise in Condo.
[34]Ibid [5]–[9].
[35]R v Giretti (1986) 24 A Crim R 112.
So far as the use to be made of comparable sentencing cases, it was observed in Zhuang:[36]
Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished.[37] Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. A general overview of sentences imposed for offences of a similar character may, however, play a part in informing the instinctive synthesis,[38] particularly insofar such an overview may provide a general guide to current sentencing practices.
The selection of a sentence involves the exercise of a judicial discretion which is informed by the nature of, and circumstances in which, the offence was committed; and by the character, antecedents and circumstances of the offender. …
[36]DPP v Zhuang (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[37]Director of Public Prosecutions (Vic) v Adajian [1999] VSCA 105 at [28] (Callaway JA).
[38]R v Giordano [1998] 1 VR 544 at 549 (Winneke P); cf Director of Public Prosecutions (Cth) v Edge [2012] VSCA 289 at [60] (Priest JA).
Similarly, Gageler and Gordon JJ observed in Dalgliesh:[39]
Sentences are not binding precedents,[40] but are merely ‘historical statements of what has happened in the past’.[41] As was said in Hili v The Queen, ‘[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits’[42] (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.
[39]Dalgliesh, 454 [83].
[40]Wong (2001) 207 CLR 584 at 605 [57].
[41]Hili (2010) 242 CLR 520 at 537 [54] quoting Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at 71 [304].
[42](2010) 242 CLR 520 at 537 [54]. See also Director of Public Prosecutions (Vic) v OJA (2007) 172 A Crim R 181 at 196 [31].
Among other things, it was made clear in Dalgliesh that current sentencing practices cannot be the determinative or controlling factor in the exercise of the sentencing discretion,[43] and that reasonable consistency in the application of relevant legal principles does not require adherence to a range of sentences that is demonstrably contrary to principle.[44] Importantly, the Court emphasised that the imposition of a just sentence in a particular case is an exercise of judicial discretion concerned to do justice in that case.[45] Thus, Gageler and Gordon JJ said that[46]
the sentencing exercise requires the sentencing judge to identify and balance all relevant factors — factors that may point in different, conflicting and contradictory directions — and to make a judgment as to the appropriate sentence in the circumstances of the case.[47] Sentencing an offender is not a mechanical or mathematical exercise. And it is a task done in accordance with applicable statutory provisions governing sentencing.[48]
[43]Dalgliesh, 444 [48], 450 [68] (Kiefel CJ, Bell and Keane JJ); 452 [79], 453–4 [82], 454 [84] (Gageler and Gordon JJ).
[44]Ibid 445 [50] (Kiefel CJ, Bell and Keane JJ).
[45]Ibid 444–5 [49] (Kiefel CJ, Bell and Keane JJ).
[46]Ibid 452 [79].
[47]Wong v The Queen (2001) 207 CLR 584 at 611 [75]; Markarian v The Queen (2005) 228 CLR 357 at 373-375 [37], 378 [51]; Muldrock v The Queen (2011) 244 CLR 120 at 131-132 [26].
[48]Markarian (2005) 228 CLR 357 at 371 [26]; Elias v The Queen (2013) 248 CLR 483 at 493 [25].
Gregory was decided prior to Dalgliesh. In light of the High Court’s exposition of principle in Dalgliesh, however, it must be concluded that, insofar as Gregory may have purported prospectively to identify the boundaries of current sentencing practices for trafficking in not less than a commercial quantity of methylamphetamine — a matter to which we will return — the prospective sentencing practices referred to could not be regarded as the determinative or controlling factor in the imposition of a just sentence.
In Condo, the Court endeavoured to harmonise Dalgliesh and Gregory, expressing the view that it was an error to think ‘that Dalgliesh and its focus on individual sentencing has somehow dissolved the impact of the uplift called for in Gregory’.[49] The Court said:[50]
For the avoidance of doubt, however, we should make it clear that there is no tension between what this Court has said in Gregory and Fernando[[51]] about the need for an uplift in current sentencing practices as they concern trafficking in [commercial quantities] of drugs of addiction, and the need for individualised sentencing as expressed in Dalgliesh and earlier decisions such as Elias v The Queen.[52] Section 5 of the Sentencing Act 1991 requires a sentencing judge to have regard to current sentencing practices along with other factors as part of any sentencing exercise. This reflects the need for predictability and consistency in sentencing. While the uplifted sentencing practice is not a ‘controlling factor’, it cannot be ignored. It remains a relevant factor in every sentencing exercise of this kind.
[49]Condo, [19].
[50]Ibid [20] (emphasis added).
[51]Fernando v The Queen (2017) 268 A Crim R 26.
[52](2013) 248 CLR 483, 494 [27].
Given these observations, whilst the prospectively ‘uplifted sentencing practice’ called for in Gregory must be acknowledged, and the rationale behind it given due weight, it is plain, in the light of Dalgliesh, that the applicant had to be sentenced according to all of the individual factors relevant to his particular case. These included the circumstances of the offence (embracing the aggravating and mitigating features) but also his personal circumstances. In the same way that current sentencing practices cannot constrain a sentencing court to impose an artificially inadequate sentence — ignoring the individual features of the case — the prospectively uplifted sentencing practice discussed in Gregory could not justify the imposition of a manifestly excessive sentence upon the applicant — ignoring the individual features relevant to the imposition of sentence in his case.
It must be remembered that Gregory principally involved a contention that a sentence of eight years and six months’ imprisonment on a charge of trafficking in not less than a commercial quantity of methylamphetamine was outside the range of sentences reasonably open and was therefore manifestly excessive. The applicant submitted in that case that the sentence was at or near the highest sentence ever imposed for this offence, and could not be justified having regard to current sentencing practice for the offence.[53] After a review of sentencing cases, the Court said:[54]
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 [large commercial quantity] trafficking will also need to increase, substantially, in order to maintain appropriate sentencing relativities.[55]
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.
[53]Gregory, 4 [3].
[54]Ibid 25 [102]–[103].
[55]See Stanley v The Queen (2017) 265 A Crim R 407.
The last observation in the passage immediately above was clearly obiter. In any event, the Court in Gregory must be understood to be saying no more than that a sentence in the range of 13 to 15 years would have been appropriate in the circumstances of that particular case — ‘given the seriousness of the offending’ — ‘had the sentencing court … not been constrained by the requirement of consistency’.[56]
[56]As we have mentioned, pursuant to s 6AAA of the Sentencing Act 1991 the judge stated that, but for the applicant’s pleas of guilty, he would have imposed a total effective sentence of 15 years’ imprisonment, with a non-parole period of 11 years.
It is thus unnecessary to consider what effect, if any, can properly be given to that particular statement, having regard to Dalgliesh. With absolute certainty, however, it can be said that Gregory establishes that, having regard to the particular facts of that case, the sentence of eight years and six months’ imprisonment for trafficking in not less than a commercial quantity of methylamphetamine was not manifestly excessive.[57]
[57]Gregory, 19 [80].
Gregory authoritatively spelled out a non-exhaustive range of features that might inform the exercise of the sentencing discretion for a charge of trafficking in not less than a commercial quantity of methylamphetamine.[58] The principles therein set out are, obviously, of paramount importance when considering the objective gravity of that particular offence. Importantly, central aggravating features of the offending in Gregory were violence and intimidation, features absent from the instant case. Presumably it is those central features, coupled with the very substantial size of the illegal operation, which would have justified a sentence of ‘double figures’. The Court said:[59]
... 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[[60]] and Hafner.[[61]]
[58]Ibid 24 [98].
[59]Ibid 17–18 [73]–[74].
[60]Bass v The Queen [2014] VSCA 350.
[61]Hafner v The Queen [2012] VSCA 190.
In our opinion, and with great respect, nothing in Gregory justifies the view that the sentence of 10 years’ imprisonment imposed in the present case on charge 1 was within the appropriate range for the applicant’s offending. As we have indicated, the scale of that offending was of a significantly lower order than that in Condo. It was also far removed from the very large and sophisticated offending in Gregory.[62] Moreover, as we have said, nothing akin to the serious aggravating features in Gregory was present in the applicant’s case.
[62]See Gregory, 5–6 [10]–[21].
As indicated, the judge found that the applicant’s guilty plea was ‘of significant utilitarian value’. He also found that the applicant’s expressed remorse was genuine. When these matters were taken into account, alongside the evidence of the steps the applicant had taken in custody to rehabilitate himself, his Honour accepted that his prospects of rehabilitation were ‘good’. This was so, notwithstanding his prior conviction for trafficking in cannabis.[63] Then one adds to the mix the applicant’s personal circumstances (including the financial ruin that has flowed as a direct result of his imprisonment), it seems plain to us that the applicant’s offending on charge 1, serious as it was, did not merit a sentence of the order imposed by the judge. Certainly, it did not merit the longest sentence ever imposed for this offence in this State. We consider that the sentence on charge 1 is outside the available range and must be set aside.
[63]As to the relevance of which, see R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA).
In our view, it is also plain that the sentence of four years’ imprisonment on charge 3 is outside the available range. It too must be set aside. The charged offence was limited to a single day; and, although the purity of the drug was at about ‘street level’, the amount of pure MDMA located in the Geelong box — in the vicinity of 100 grams — was relatively low.[64] Moreover, charge 3 was constituted by possession of MDMA for sale. Curiously, it attracted the same sentence as that imposed for charge 2, which involved not only possession of cocaine for sale, but at least five actual sales to CO 284 (the total quantity embraced by the charge being 101.6 grams of cocaine sold or possessed).
[64]See fn 10 above.
Conclusion
For these reasons, the first ground must succeed. We would grant leave to appeal; allow the appeal; and make orders resulting in the applicant being resentenced to a total effective sentence of nine years and six months’ imprisonment. In all of the circumstances, we would fix a non-parole period of six years.[65]
[65]During the hearing in this Court, we permitted counsel to tender a report by Mr Jeffrey Cummins, clinical and forensic psychologist, dated 1 June 2020 (Exhibit A), indicating that we would have regard to the contents of the report in the event that the appeal succeeded and we were called upon to impose sentence afresh. We make it clear that, in arriving at an appropriate sentence, we have taken the contents of the report — which fully sets out the applicant’s personal circumstances, including Mr Cummins’ opinion that the applicant developed a Major Depressive Disorder (and associated matters) — into account. It seems highly likely that had a report of this kind been prepared, and tendered on the plea, as ought to have been done, the judge would have given it appropriate weight, and not imposed the sentence that he did.
Our overall intention is reflected in the following table:
Charge Offence Sentence Cumulation 1 Trafficking in not less than a commercial quantity of a drug of dependence (methylamphetamine) 8 years Base 2 Trafficking in a drug of dependence (cocaine) 4 years 1 year 3 Trafficking in a drug of dependence (MDMA) 2 years 6 months 6 months Total Effective Sentence 9 years and 6 months’ imprisonment Non-Parole Period 6 years 6AAA statement 12 years’ imprisonment with 8 years non-parole
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