Mason (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0016

ALICIA MASON (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]This judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant so as to protect the safety of a person.

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JUDGES:	BEACH and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 March 2023
DATE OF JUDGMENT:	6 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 75
JUDGMENT APPEALED FROM:	DPP v [Mason] (County Court, 14 December 2022, Judge Wraight)

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CRIMINAL LAW – Leave to appeal – Sentence – Pursuant to Crimes Act 1914 (Cth) s 16AC judge specified applicant’s sentence would have been 29 years’ imprisonment had she not cooperated with law enforcement agencies – Whether s 16AC specification part of sentence and relevant to whether sentence manifestly excessive – Section 16AC specification not a starting point for sentence – Section 16AC specification not useful to contend sentence manifestly excessive – Not reasonably arguable head sentence and non-parole period manifestly excessive.

CRIMINAL LAW – Leave to appeal – Sentence – Judge did not specify under Crimes Act 1914 (Cth) s 16AC the non-parole period that would have been imposed had applicant not cooperated with law enforcement agencies – Whether failure to specify non-parole period that would have been imposed is a vitiating error – Section 16AC specification not a sentence or part of a sentence – Failure to make specification not an error in sentence – Leave to appeal granted – Appeal dismissed.

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Counsel
Applicant:		Mr DD Gurvich KC and Ms K Mildenhall
Respondent:		Mr B Ihle KC and Mr MN Keks
Solicitors
Applicant:	Bowler & Co
Respondent:	James Carter, Solicitor for Public Prosecutions (Cth)

BEACH JA
NIALL JA:

The applicant was sentenced by a judge of the County Court on her plea of guilty to a charge of importing a commercial quantity of a border controlled drug.[2] At the same time, the applicant was sentenced on a summary offence of breaching her bail conditions.
[2]Criminal Code Act 1995 (Cth) sch 1 s 307.1(1).
The importation was effected by concealing methylamphetamine and heroin in a shipment of household appliances. On any view, the quantity of drugs imported was enormous, comprising:
(a)around 1.2 tonnes of methylamphetamine;[3] and
(b)just under 30 kg of heroin.[4]
[3]With a purity of 80 per cent.
[4]With a purity of between 76 and 80 per cent.
It was agreed on the plea that this equated to almost 16 million individual doses of methylamphetamine and 1.5 million individual doses of heroin. Whether on a wholesale or street level basis the dollar value of the consignment was staggering. The combined value of the former being close to $200 million and the latter around $700 million.
The maximum penalty for the offence is life imprisonment.
The applicant was sentenced to 11 years’ imprisonment with a non-parole period of 7 years.[5]
[5]A sentence of 1 month was imposed on the summary charge which was ordered to be served concurrently.

The importation

The sentence proceeded on the basis of an agreed summary of prosecution opening. Pared to its essentials the importation, and the role of the applicant in it, had the following features.
The importation charge related to a single importation of a consignment of household items. However to place the offending in context, the prosecution referred to six earlier consignments in which the applicant was involved. It was not alleged that any of those earlier consignments contained drugs but they were said to reveal the method of importation of the drugs that was the subject of the charge and gave some colour to the applicant’s involvement in the process.
The applicant was charged with two co-offenders, AB and CD. AB had recruited the applicant into the scheme and in turn the applicant persuaded CD to become involved. The applicant worked in the transport logistics field including performing duties in the importation of goods and the completion of necessary paperwork. In relation to the seven consignments:
(a)The applicant used her existing (otherwise legitimate) business to communicate with the shipper, ECU;
(b)AB operated false email addresses and created false documents on behalf of the ostensible consignees;
(c)CD used his (otherwise legitimate) business to collect all but one of the consignments under bond and then delivered or diverted them to unauthorised destinations.
Following the earlier pattern, the seventh consignment (containing the concealed contraband) arrived in Melbourne in March 2019. It was shipped by Company A to Company B, a genuine business that had no involvement in the importation. The consignment was declared to contain six pallets, or 72 cartons with a gross weight of in excess of 2,000 kg.
Once the cargo had arrived, the applicant:
(a)engaged Cargoport to clear the consignment from customs control;
(b)provided false documents to Cargoport, including a fraudulent remittance advice and documents purporting to be from Company A, but which were actually sent by AB; and
(c)arranged for CD to pay Cargoport’s fee.
Meanwhile, Australian authorities had detected the drugs and prepared a controlled delivery. This delayed the release of the consignment. Fearing that it had been intercepted, the applicant and her co-offenders took steps to distance themselves from the consignment. For that purpose, the applicant told Cargoport and an undercover operative purporting to represent Tasman Logistics that she would not collect the cargo because Company B had not paid her fees, and created a false documentary trail.
The applicant and her co-offenders were arrested. The applicant participated in a record of interview with police. She largely gave a false account of her involvement, ultimately denying knowledge of the nature of the consignments, including the final consignment.
Subsequently, the applicant made two statements to police, admitting to the importation and implicating her co-offenders. She gave an undertaking to give evidence against her co-offenders.
The applicant was granted bail on conditions including a condition that she not communicate with her co-offenders. In breach of that condition, the applicant communicated by telephone with CD on 73 occasions, and through written correspondence on 15 occasions. Some of those communications concerned the charges and the fact that the applicant had given statements to police. This conduct formed the basis of the summary charge referred to above.

Reasons for sentence

The judge gave detailed and careful reasons for sentence.
The judge said that the amount of drugs imported was significant, with the potential of wreaking enormous harm on individuals, families and the wider community.[6] He said that the quantity of drugs was relevant to the seriousness of the offending,[7] especially where the offender is aware of the quantity involved.[8] On that topic, the judge accepted that the applicant did not know the exact quantity of drug imported but was well aware that the consignment contained a commercial quantity of drugs.[9]
[6]DPP v [Mason] (County Court, 14 December 2022, Judge Wraight), [46] (‘Reasons’).
[7]Citing R v Hai Van Nguyen (2010) 205 A Crim R 106; [2010] NSWCCA 238.
[8]Reasons, [49].
[9]Ibid [51].
The judge said that the applicant had played a pivotal role in the offending using her experience in the sea freight industry and that her role as an intermediary was essential.[10] The judge recognised, as the prosecution had conceded, that the applicant’s role was towards the lower end of the hierarchy involved in the importation and she was subordinate to AB.[11]
[10]Ibid [48].
[11]Ibid.
The judge found that the applicant engaged in the offending for profit but was unable to put a figure on the benefit she intended to earn, but whatever the amount it was ‘clearly disproportionately low when compared with the size of the importation’.[12]
[12]Ibid [53].
The judge concluded that the offending represented an extremely serious example of an inherently serious offence.[13]
[13]Ibid [55].
The judge then turned to the applicant’s personal circumstances. At the time of sentence the applicant was 40 years old with two teenage children. After a relatively unremarkable childhood, the applicant was the subject of sexual assault by a friend’s father when she was 12 years old. The abuse was not disclosed at the time. It caused significant emotional, interpersonal and behavioural issues which were later compounded when the applicant was inappropriately touched by a medical practitioner during a medical consultation.
The applicant succumbed to a period of heavy drug use in her late teens and endured emotional and physical abuse in a marriage that dissolved in 2012.
Despite the difficult period in her late teens the applicant obtained employment including employment in the freight forwarding industry.
The applicant has some significant health issues. In a report tendered on the plea, Dr Matthew Barth, a psychologist, expressed the opinion that the applicant has an adjustment disorder with mixed anxiety and depressed mood and a borderline personality disorder with maladaptive coping mechanisms. In part these conditions were attributed to the past history of sexual abuse. In terms of physical health the applicant has a complex medical history affecting her pelvis, uterus, kidney, bladder and bowel health resulting in persistent infections and the need to use a catheter.
Under the heading ‘sentencing considerations’ the judge identified a number of matters he had taken into account including the applicant’s plea of guilty, which the judge said carried significant weight increased by the impact of the pandemic. The judge accepted that the applicant had demonstrated ‘a degree of remorse’ however noted there was little evidence to reflect a genuine appreciation of the significant negative impact the importation of drugs has on the community.[14]
[14]Ibid [78].
The judge accepted that the combination of the applicant’s ongoing mental and physical health concerns would make custody somewhat more burdensome than would be the case of a person without those conditions.
Pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) (‘Crimes Act’), the judge took into account the impact on the applicant’s family including her two children who were then aged 13 and 16 years. The judge accepted a prosecution submission that the negative impact on the applicant’s children was an inevitable consequence of incarceration but he took that impact into account albeit to a limited degree. The judge also took into account the delay of three years between the detection of the offence and the plea.
Pursuant to s 16AC of the Crimes Act, the judge took into account that the applicant had given a sworn undertaking to cooperate in the future by giving evidence in the trials of the co-accused. The judge noted that this material had been assessed by the AFP to be of high-value, truthful and independently corroborated.[15] The judge also accepted the provision of the statements by the applicant had resulted in her being placed at great risk and as a result she had been classified as a protection prisoner, which required spending a significant period of time in solitary confinement.
[15]Ibid [83].
Having regard to the undertaking the judge said the applicant was entitled to a significant discount and referred to the relevant principles identified in R v Cartwright[16] and R v Su.[17]
[16](1989) 17 NSWLR 243.
[17][1997] 1 VR 1; (1995) 129 FLR 120.
The judge accepted the applicant’s prospects rehabilitation were very good and specific deterrence was given only limited weight. The judge accepted that general deterrence was the primary sentencing consideration.
The judge imposed the sentence referred to above and added the following matters:[18]
Pursuant to s 16AC(2) of the Crimes Act, I am required to specify the sentence that would have been imposed but for the reduction in sentence as a result of your co-operation. I am also required pursuant to s 6AAA of the Sentencing Act 1991 to indicate the sentence that would have been imposed but for your plea of guilty.
In Director of Public Prosecutions v Couper, in addressing the complexity of articulating the s 16AC declaration and the s 6AAA declaration, Tate JA stated that a sentencing judge should not only specify what sentence would have been imposed but for the undertaking to co-operate and for the plea of guilty, but also identify what specific reduction has been given with respect to each of those matters. Her Honour cited with approval the method adopted by Forrest J in The Queen v Chan, which I have also adopted in this matter.
The total sentence I would have imposed but for the s 16AC undertaking and your plea of guilty is 29 years imprisonment. I have deducted 7 years from the head sentence for your plea of guilty and a further 11 years for your s 16AC undertaking.
[18]Reasons, [94]–[96] (citations omitted).

The application to extend time

The applicant requires an extension of time within which to apply for leave to appeal. The respondent opposes an extension of time on the basis that extending time or granting leave to appeal would be futile as there is no reasonable prospect this Court will impose as less severe sentence or reduce the sentence first imposed. We are satisfied that it is in the interests of justice to grant the extension.

The grounds of appeal

If granted leave to appeal, the applicant would seek to advance the follow grounds of appeal:
Ground 1:The sentence imposed on charge 1, the total effective sentence, the non-parole period and the s 16AC Crimes Act 1914 sentence are manifestly excessive
Particulars
(a) The sentencing judge gave insufficient weight to:
i. The applicant’s cooperation: s 16AC Crimes Act 1914 (Cth).
ii. The limited role played by the applicant: s 16A(2)(a).
iii. The low level of reward: s 16A(2)(a).
iv. The applicant’s contrition: s 16A(2)(f).
v. The plea of guilty: s 16A(2)(g).
vi. The applicant’s cooperation with law enforcement agencies in the investigation: s 16A(2)(h).
vii. The circumstances of the applicant: s 16A(2)(m).
viii. The applicant’s prospects of rehabilitation: s 16A(2)(n).
ix.The probable effect of the sentence on the applicant’s family: s 16A(2)(p).
(b) The sentencing judge gave excessive weight to:
i. General deterrence: s 16A(2)(ja).
Ground 2: The learned sentencing judge erred by failing, in accordance with s 16AC(2)(b) Crimes Act 1914 (Cth), to specify the non-parole period that would have been fixed but for the reduction awarded due to the applicant’s undertaking to cooperate.

Ground 1

The applicant commences her submission on ground 1 by focusing on the imputed ‘head sentence’ of 29 years’ imprisonment that the judge had identified for the combined purposes of ss 16AC and 6AAA. She says that a head sentence of 29 years is ordinarily reserved for cases involving a highly significant role, serious prior criminal history, enormous reward or a combination of these ingredients, none of which were present in the case of the applicant.
The applicant says that, unlike a s 6AAA statement made under the Sentencing Act1991 (‘Sentencing Act’), a s 16AC declaration is not a ‘notional’ figure but forms part of the sentence. The applicant relies on the following observation of Tate JA in DPP v Couper[19] as supporting her submission:
Clearly, what is significant to an offender and provides guidance for future cases is the actual reduction from which the offender has benefited as a result of having given an undertaking to co-operate, and, separately, the actual reduction from which the offender has benefited as a result of having given a plea of guilty.[20]
[19](2013) 41 VR 128; [2013] VSCA 72 (‘Couper’).
[20]Ibid 155 [141].
In that context, she submits that had she been found guilty at trial she would likely have received a sentence in the order of 20 years’ imprisonment consistently with comparable cases. The applicant pointed to a number of cases which she contends are comparable: Tsang v DPP (Cth);[21] R v Elfar;[22] and R v Kassir.[23]
[21](2011) 35 VR 240; [2011] VSCA 336 (head sentence of 29 years).
[22][2017] QCA 170 (head sentence of 30 years).
[23][2020] NSWCCA 88 (head sentence of 10 years).
The applicant relies on a number of mitigating factors including cooperation with law enforcement agencies, future cooperation by means of a sworn undertaking to give evidence, the plea of guilty, contrition, favourable prospects of rehabilitation, the combination of her mental and physical health concerns and delay and the effect of any sentence of imprisonment on her family.
Importantly, the applicant expressly disavows any complaint against the ‘proportionate discounts’ given by the judge ‘by virtue of s 6AAA and s 16AC respectively’ but complains about the ‘starting point of 29 years’ and the ultimate sentence imposed.
The respondent submits that the applicant’s reliance on the s 16AC specification is misplaced. The respondent says that a s 16AC specification is no different in principle to a s 6AAA declaration which has been held to be not part of the sentence[24] and irrelevant to the question of whether or not a particular sentence is manifestly excessive.
[24]R v Burke (2009) 21 VR 471; [2009] VSCA 60 (‘Burke’).
The respondent submits that the sentence that was imposed (11 years with a non-parole period of 7 years) was well open to the judge having regard to the applicant’s cooperation, but also having regard to the quantity of drugs, and the judge’s findings concerning the applicant’s role and motive, and the matters relied on in mitigation.

Decision

The focus of the applicant’s argument is on the imputed head sentence of 29 years’ imprisonment. Section 16AC of the Crimes Act provides:
(1)This section applies if a court imposing a sentence, or making an order, for a federal offence:
(a) reduces the severity of the sentence or order; or
(b) reduces the non-parole period in relation to the sentence (if applicable);
because the offender has undertaken to cooperate with law enforcement agencies in proceedings (including confiscation proceedings) relating to any offence.
(2) The court must:
(a) state that the sentence, order or non-parole period is being reduced for that reason; and
(b) specify the sentence that would have been imposed, the order that would have been made or the non-parole period that would have been fixed but for that reduction.
In the event that a person does not comply, or fully comply, with her or her undertaking, ss 16AC(3) and (4) permit the Commonwealth Director of Public Prosecutions to appeal the sentence. Those provisions are in the following terms:
(3) The Director of Public Prosecutions may appeal against the inadequacy of the reduced sentence, reduced order or reduced non-parole period if:
(a) after the imposing of the sentence or the making of the order, the offender, without reasonable excuse, does not cooperate in accordance with the undertaking; and
(b) the Director of Public Prosecutions is of the opinion that appealing is in the interests of the administration of justice.
(4) The court hearing the appeal:
(a) …
(b) if it is satisfied that the person has failed in part to cooperate in accordance with the undertaking—may substitute:
(i) for the reduced sentence or reduced order such a sentence or order, not exceeding in severity the sentence or order that could be imposed or made under paragraph (a), as the court thinks appropriate; or
(ii) for the reduced non-parole period such a non-parole period, not exceeding the parole period that could be fixed under paragraph (a), as the court thinks appropriate.

The applicant’s argument fails at every level, primarily because it focuses on the wrong subject matter. The sentence imposed was 11 years, not 29 (or 22) years. It is that sentence that must be shown to be manifestly excessive. The argument proceeds on a misunderstanding of the role of s 16AC.
The s 16AC specification does not represent a starting point for the sentence. Nor does it introduce a form of two stage sentencing.[25] Under s 16A, the sentencing court must, where relevant, take into account, amongst other things, the extent to which a person has shown contrition,[26] whether the person has pleaded guilty,[27] and the degree to which the person has cooperated with law enforcement agencies.[28] Although these matters reflect different aspects of the public interest and may be more or less significant in a particular case, where they are applicable they must be balanced by the judge with all of the relevant circumstances in order to arrive at a just and proportionate sentence. In those cases where they apply they will serve to moderate the sentence, in the sense that they will favour a shorter rather than a longer term of imprisonment. For that reason, s 16AC refers to an undertaking to cooperate as reducing the severity of the sentence.
[25]Tak Fat Wong v The Queen (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ); [2001] HCA 64; Markarian v The Queen (2005) 228 CLR 357, 373–4 [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25 (‘Markarian’).
[26]Crimes Act, s 16A(2)(f).
[27]Ibid s 16A(2)(g).
[28]Ibid s 16A(2)(h).
Although the reduction in sentence that follows from an offender’s cooperation is sometimes described as a discount, such language does not, and should not be taken to, describe a mathematical process by which precise figures are subtracted from a given starting point arrived at before deductions are made. That is, the sentencing process does not start with a hypothetical sentence calculated without the benefit of such factors and from which an amount is deducted.
Although s 16AC does not import two stage sentencing, s 16AC does require the judge to specify the sentence or the non-parole period that ‘would have been fixed but for the cooperation’. There is no doubt that the purpose of the provision is threefold. In aid of transparency the specifications tell the offender the extent to which the cooperation has affected the sentence. Second, it serves a broader public interest in showing the benefit that may accrue to persons who cooperate. In doing so, it may encourage cooperation in other cases. Third, and this is made clear by ss 16AC(3) and (4), it provides an indication to the offender as to the consequences that may follow in the event the person does not carry through on their undertaking.
The transparency that s 16AC produces is not dissimilar to the approach taken in some cases under the common law. In R v Johnston[29] this Court allowed an appeal against a sentence that had been imposed on various counts including murder, kidnapping, false imprisonment and trafficking in large quantities of MDMA and methylamphetamine. The sentence imposed at first instance was 23 years with a non-parole period of 15 years. Nettle JA, with whom Buchanan and Ashley JJA agreed, allowed the appeal on the ground of manifest excess and resentenced the appellant to 16 years with a non-parole period of 11 years.
[29](2008) 186 A Crim R 345; [2008] VSCA 133 .
Nettle JA applied the following methodology. First, his Honour concluded that in the circumstances of that case, which included the prosecution’s concession, he would ‘set the discount at 50%.’[30] His Honour then turned to the sentences that would properly have been imposed in the absence of the informer discount and then halved them before dealing with the issue of totality and the non-parole period. His Honour expressly noted that each case was unique but that, in the circumstances of the case, a discount of less than 50 per cent would be an inadequate recognition of the quality of the information which the applicant had provided and the risks to which he had subjected himself by agreeing to do so, and would also tend to undermine public confidence in the sentencing process in relation to serious offences which arise out of organised drug trafficking activities on the scale involved.[31] Nettle JA recognised that this process did not sit entirely comfortably with instinctive synthesis but said that the law strongly favours transparency and that the case before him was one where ‘some indulgence in an arithmetical process will better serve these ends’.[32]
[30]Ibid 350 [20].
[31]Ibid 350–1 [21].
[32]Ibid 350 [20], quoting Markarian (2005) 228 CLR 357, 375 [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25.
In every case, either under common law or statute, in which a judge quantifies a discount for cooperation, the ground of manifest excess will not be made out by arguing that a different weighting should have been given or that the hypothetical alternative is too high. The question is whether the sentence imposed is manifestly excessive and attention must be directed to the outcome rather than the process of reasoning.[33]
[33]Ooi v The Queen [2018] VSCA 78, [48] (Tate, Beach and Niall JJA).
Thus, the s 16AC figure, which is hypothetical, does not represent a ‘head sentence’ nor does it convert the sentence imposed here to a sentence of 22 years (being the amount attributed by the judge for the applicant’s cooperation).[34] There is no occasion to ask whether the figure under s 16AC is manifestly excessive. Nor is it useful as a basis for contending that the sentence that was imposed is excessive.
[34]DPP (Cth) v Wang; Wang v The Queen [2019] VSCA 250, [80] (Beach, Niall and Ashley JJA) (‘Wang’).
The only question is whether the head sentence of 11 years’ imprisonment or the non-parole period of 7 years are manifestly excessive. It is important to recall that the ground of manifest excess is a hard ground to make good. It can only succeed by establishing that the sentence imposed was wholly outside the range reasonably open to the judge in the sound exercise of his discretion. We have no hesitation in answering those questions in the negative in this case.
It may be accepted that the cooperation and plea of guilty were very powerful matters in mitigation. There is a real public interest in having offenders cooperate with authorities including by an undertaking to give evidence against other offenders. The taking of such a step advances the administration of justice and carries real risks to the person giving the undertaking. As well, it is likely to make their incarceration substantially more burdensome given the steps that may be required to protect them from harm. For these reasons the impact that they may have on a sentence may be profound.
It is also plain that given the size of the importation, the degree of sophistication, the role played by the applicant, which the judge described as pivotal and essential, and that general deterrence is a cardinal aspect of sentencing for this kind of offending, a sentence of 11 years could only be justified by very powerful mitigation being given on account of the applicant’s cooperation. Having regard to the result, very great weight was obviously given to this factor. Balancing all of the factors, we are satisfied that the sentence actually imposed was well within range.
It is not reasonably arguable that the sentence imposed or non-parole period are manifestly excessive. Ground 1 is rejected.

Ground 2

The applicant submits that s 16AC(2)(b) required the sentencing judge to specify the non-parole period that would have been fixed but for the reduction owing to the applicant’s undertaking to cooperate with law enforcement agencies. She says that in breach of that requirement, the judge failed to specify the non-parole period.
The judge was required in the first place to impose a sentence having regard to the matters required to be taken into account under s 16A of the Crimes Act. Given that the sentence was greater than 3 years’ imprisonment, it was also necessary for the judge to impose a non-parole period under s 19AB. The non-parole period is the period of time that justice demands must be served in prison before the person is eligible for supervised release under parole. [35] Necessarily it is to be determined after, and must have regard to, the imposition of the head sentence.
[35]Power v The Queen (1974) 131 CLR 623, 629 (Berwick CJ, Menzies, Stephen and Mason JJ); [1974] HCA 26.
Where a person has cooperated with law enforcement authorities and given an undertaking of the kind contemplated by s 16AC, that matter must, by force of s 16A, be taken into account by the judge when imposing the sentence. In most cases the effect of doing so will be to reduce the sentence that, hypothetically, would have been imposed had there not been cooperation of that kind. Almost inevitably, where this occurs the non-parole period will be lower than would have been imposed had there not been cooperation. In other words, the cooperation will produce a consequence for both the head sentence and the non-parole period.
There may be cases, although if they exist they surely must be rare, where the cooperation has an effect on the sentence but not the non-parole period. It follows that usually the impact will be on both aspects of the sentence. On the other hand, there may be cases, again we think rare, where the judge reduces the non-parole period but the cooperation has no discernible impact on the head sentence.
Where a sentence has ‘been reduced’ by reason of cooperation, s 16AC requires the judge to specify what would have been the sentence or non-parole period in the event that there had been no cooperation.
In our view the better construction of s 16AC, and one embraced by both parties, is that if there has been an impact on both the head sentence and the non-parole period (which will be the usual case) the judge must specify how each element had been effected. That is the judge should specify what the head sentence would have been and what the non-parole period would have been.
This construction is fortified by s 16AC(4). Where there is a failure to honour the undertaking in whole or in part, an appeal may be brought and the appellate court may have to resentence. In doing so s 16AC(4) contemplates that the appellate court will or may reinstate the sentence that would have been imposed. At the least, these matters would inform the appellate court’s task should a ground of appeal succeed and resentencing be required.[36]
[36]Wang [2019] VSCA 250.
The judge did not adopt that course in this case. Rather, he specified what would have been the sentence without referring to the non-parole period. In doing so, he combined the two hypothetical scenarios contemplated by s 16AC and s 6AAA. It follows that the judge erred in the application of s 16AC. The question then becomes what is the consequence of that error?
Relying on the decision of the NSW Court of Criminal Appeal in Dagher v The Queen[37] the applicant submits that an error in the application of s 16AC is an error in the sentence that vitiates the sentence and reopens the sentencing discretion.[38]
[37][2017] NSWCCA 258 (‘Dagher’).
[38]Kentwell v The Queen (2014) 252 CLR 601, 615 [34] (French CJ, Hayne, Bell and Keane JJ); [2014] HCA 37.
In Dagher Adamson J, with whom Leeming JA and Johnson J agreed, held that a failure to comply with the requirement of s 16AC by not identifying what sentence would have been imposed but for the undertaking to co-operate with investigating authorities in the future was ‘an error of law which requires correction’.[39] It was accepted in that case that the error required the Court of Criminal Appeal to resentence the offender.
[39]Dagher [2017] NSWCCA 258, [8]
In order to resolve ground 2, it is necessary to refer to the functions and powers of this Court under the Criminal Procedure Act 2009 (‘CPA’) and explain how that Act applies to a Commonwealth offence.
The applicant was convicted of an offence under Commonwealth law. Part IB of the Crimes Act sets out the regime for the sentencing, imprisonment and release of federal offenders.
Section 68(1)(c) of the Judiciary Act1903 (Cth) (‘Judiciary Act’) provides that the laws of a State ‘respecting ... the procedure for ... trial and conviction on indictment [of persons charged with offences] ... shall, subject to [s 68], apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State ... by [s 68]’. The High Court has held that the powers conferred under sentencing laws fall within this description.[40] State laws with respect to criminal appeals are also made applicable by s 68.[41]
[40]Putland v The Queen (2004) 218 CLR 174, 178–9 [4] (Gleeson CJ), 188 [34] (Gummow and Heydon JJ); [2004] HCA 8; Atanackovic v The Queen (2015) 45 VR 179; [2015] VSCA 136.
[41]R v Gee (2003) 212 CLR 230; [2003] HCA 12.
The purpose of s 68 is to ‘assimilate criminal procedure, including remedies by way of appeal, in State and Federal offences’.[42] The State law is to be construed and applied in a way that renders the two systems, State and federal, harmonious.
[42]Williams v The King (No 2) (1934) 50 CLR 551, 558 (Rich J); [1934] HCA 19 (‘Williams’).
In Williams Dixon J, addressing the application of State appeal procedures, said:
But when this construction is given to the words of the provision, they necessarily extend to all remedies given by State law which fall within the description ‘appeals arising out of the trial or conviction on indictment or out of any proceedings connected therewith’. This accords with the general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice.[43]
[43]Ibid 560.
Accordingly, the CPA applies.
Under s 278 of the CPA a person sentenced for an offence may, with leave, appeal to this Court against the sentence imposed. Section 280 provides that this Court may refuse leave to appeal if there is no reasonable prospect that this Court would:
(a)impose a less severe sentence than the sentence first imposed; or
(b)reduce the total effective sentence despite there being an error in the sentence first imposed.
Section 280(3) provides that on refusing leave under s 280(1)(b) on the basis that there is no reasonable prospect of reducing the total effective sentence this Court may, if appropriate to do so:
(a)amend the sentence first imposed by substituting a less severe sentence; and
(b)make any other order that this Court considers ought be made.
Section 281 deals with appeals, in the event that leave is given. Section 281 provides that, on an appeal under s 278, this Court must allow the appeal if the appellant satisfies the Court that:
(a)there is an error in the sentence first imposed; and
(b)a different sentence should be imposed.
Two points may be noted. First, s 281 only applies where there has been a grant of leave to appeal. Second, in the event that error is found and the appellant satisfies the Court that a different sentence should be imposed this Court must resentence the person. On a resentence this Court, in the exercise of its own discretion, must arrive at the sentence that it considers should be imposed.
We turn then to consider whether the error that has been exposed in this case, namely the failure to specify a hypothetical non-parole period under s 16AC is an ‘error in the sentence’. If it is not, then this Court has no power to act and must, by force of s 280(2), dismiss the appeal.
The CPA defines ‘sentence’ to mean the recording of a conviction and an order made under various parts of the Sentencing Act including an order for imprisonment.[44] Of course, the sentence imposed on the applicant was made under pt IB of the Crimes Act and no order for imprisonment was made under the Sentencing Act.
[44]CPA, s 3.
Part IB of the Crimes Act contains references to sentences and orders made under that part. Section 16 of the Crimes Act defines a sentence in ss 16B to 19AZD to mean ‘a sentence of imprisonment’. Section 16A provides the matters that a sentencing court must take into account ‘in determining the sentence to be passed, or the order to be made’.
Section 16AC applies where the court imposes a sentence or makes an order for a federal offence. Section 16AC requires the Court to state the sentence that is being reduced and ‘specify the sentence that would have been imposed’ but for that reduction. It is plain as a matter of language, and context, that the hypothetical sentence that would have been imposed is not itself a sentence of imprisonment. Nor is it an order. It is a statement that records what would have happened had the facts been different.
In our view, the specification required under s 16AC is not a sentence within the meaning of the Crimes Act nor is it a sentence for the purposes of s 278 of the CPA. At the time it is pronounced it has no legal effect on the person. It follows that the failure to make the specification is not an error in the sentence. It is not tenable to contend that the failure to specify the hypothetical non-parole period materially affected the actual sentence imposed such that there was an error in that sentence.[45]
[45]Johns v The Queen [2020] VSCA 135, [78]–[89] (Ferguson CJ, McLeish and Niall JJA).
Further, the contrary construction, which would mean that in this case the failure to specify a hypothetical non-parole period is a vitiating error affecting the sentence, does not sit well with s 19AH of the Crimes Act which provides that a failure to specify the actual non-parole period does not invalidate a sentence and provides for a mechanism by which a non-parole period can later be set by applying to the sentencing court.
The construction we favour is harmonious with the CPA’s application to s 6AAA statements which, it has been held, do not form part of the sentence. In Burke this Court rejected an argument that a s 6AAA statement was manifestly excessive in plain terms:[46]
The submission is misconceived. The ‘notional’ sentence announced in accordance with s 6AAA is not part of the sentence imposed. No appeal lies in respect of the notional sentence. As s 567(d) of the Crimes Act 1958 (Vic) makes perfectly clear, the appeal court hears an appeal against ‘the sentence passed’. Accordingly, the contention in Ground 2 — that the ‘notional sentence’ would have been manifestly excessive — is unintelligible in this sphere of discourse. It cannot constitute a ground for appeal.
The ground of manifest excess falls to be considered in relation to —and only to — the sentence actually imposed. A complaint about the sentence discount or the notional sentence identified in the s 6AAA statement is a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.
[46]Burke (2009) 21 VR 471, 477 [30]–[31] (Maxwell ACJ, Redlich JA and Vickery AJA); [2009] VSCA 60.
We are conscious that in the event of non-compliance with an undertaking and an appeal by the Commonwealth Director under s 16AC(3), the appellate court will have regard to the specification made by the sentencing judge. However, that potential future significance does not alter the construction of the Crimes Act which we favour namely that the specification is not a sentence or part of a sentence.

The argument on ground 2 is arguable and derives some support from the decision in Dagher. It has not been the subject of any decision in this Court. However, Dagher can be distinguished. It was not decided under the CPA and it was agreed by the parties in that case that the Court should resentence.
In our view, leave to appeal should be granted but the appeal must be dismissed.
We would add three matters.
First, even if we were persuaded that the failure to specify the hypothetical non-parole period meant that there was an error in the sentence we would not, in the exercise of our own discretion impose a different sentence. We would not have imposed a lesser sentence.
Second, the order dismissing the appeal will leave s 16AC unfulfilled at least in relation to the non-parole period. In the course of argument the question was raised as to whether a failure to specify a non-parole period under s 16AC could be addressed by an order under s 280(3) which applies where leave to appeal is refused and gives powers to this Court to make any other order. In our view, assuming that it were otherwise available,[47] it would not be an appropriate exercise of discretion to refuse leave in order to attract that power in circumstances where the ground of appeal is arguable.
[47]Zakhour v The Queen [2022] VSCA 63, [79] (McLeish and Macaulay JJA).
How an appellate court might deal with the situation where a judge has failed to specify the hypothetical sentence or non-parole period need not be addressed. Nor do we need to consider whether it would be open to the sentencing judge to make a specification under s 16AC after the sentence had passed into record.
Third, the process of attempting to assimilate the s 6AAA statement and the s 16AC specification, which may have been encouraged by what was said in Couper, is unnecessary and only leads to confusion, further compounding the problems that are already apparent by the hypothetical processes that are contemplated. Assuming that s 6AAA applies to Commonwealth offences, including where the Crimes Act requires a particular form of specification, the two processes are better kept separate.
That requires the judge to assess what he or she would have done in the absence of the undertaking and make the appropriate specification.
Separately the judge should declare what would have been the case had there been no plea of guilty. The fact of the undertaking, which does not form a part of the s 6AAA declaration which is confined to the plea of guilty, will likely render the s 6AAA statement even more divorced from the actual facts of the case.
Conclusion
While leave to appeal will be granted, the appeal must be dismissed.
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[2023] VSCA 75

6 April 2023