McGrath v The Queen
[2015] VSCA 176
•26 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0209
| SEAN ROBERT McGRATH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, REDLICH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 April 2015 |
| DATE OF JUDGMENT: | 26 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 176 |
| JUDGMENT APPEALED FROM: | DPP v McGrath (Unreported, County Court, Judge Gamble, 10 September 2014) |
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CRIMINAL LAW – Appeal – Sentence – Cultivate commercial quantity of cannabis (8.5 CQ) – Sentence 2 years and 6 months – Whether manifestly excessive – Whether judge erred in failing to consider community correction order (CCO) – Principle of parsimony – Sentence imposed before publication of CCO guideline judgment in Boulton v The Queen [2014] VSCA 342 – Whether judge failed to apply correct principles – No error – Sentence within range – Leave to appeal refused – Sentencing Act 1991 s 5(3), 5(4), 5(4C), pt 3A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC with Mr K E McDonald | Croxford Partners |
| For the Crown | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
KYROU JA:
Summary
In December 2014, the Court published its guideline judgment in Boulton v The Queen.[1] The Director of Public Prosecutions (amongst others) had submitted that the community correction order (‘CCO’) was being under-utilised as a sentencing option and that guidance was required to ensure that the CCO fulfilled its potential.
[1][2014] VSCA 342 (‘Boulton’).
The Court sought to assist sentencing courts by highlighting the scope afforded by the CCO to achieve the sentencing purposes of punishment, deterrence, community protection and rehabilitation, and to do so in cases which might previously have attracted a sentence of imprisonment. The Court said:
The CCO is a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. The CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation.[2]
[2]Ibid [2].
The guideline judgment did not, of course, change the law. The CCO has been available since January 2012 and, as these reasons will show, was being used by sentencing judges well before the decision in Boulton was handed down. And the principle of parsimony continues to operate as it always has. A custodial sentence may only be imposed if the judge has concluded that the relevant sentencing purposes cannot be served by a non-custodial order (including a CCO with conditions).
The present applicant contended that, because the sentencing judge had not been guided by the Court’s reasoning in Boulton, the decision to impose a custodial sentence was infected by specific error. That reasoning, it was said, would have demonstrated that this case was ‘CCO territory’.
For reasons which follow, that contention must be rejected. The judge was well aware of the CCO as an option, and correctly applied the principle of parsimony in concluding that the seriousness of the applicant’s offending was such that a substantial custodial term was required. As the applicant had pleaded guilty to cultivating 8.5 times the commercial quantity of cannabis (85 per cent of a large commercial quantity), that conclusion was well open. Leave to appeal must therefore be refused.
Background
The applicant pleaded guilty in the County Court to one charge of cultivating a commercial quantity of a narcotic plant (cannabis), one charge of theft, one charge of possessing a drug of dependence (cocaine) and one charge of possessing a prohibited weapon. He was sentenced as follows:
Charge on Indictment Offence and short particulars Maximum Sentence Cumulation 1 Cultivate a commercial amount of a narcotic plant (cannabis) 25y 2y 6m Base 2 Theft 10y 6m 2m 3 Possess drug of dependence
(cocaine)1y or 120 penalty units $250 fine Uplifted summary charge Possess a prohibited weapon 2y or 240 penalty units $500 fine Total Effective Sentence: 32m Non-Parole Period: 16m Pre-sentence Detention Declared: 7 days 6AAA Statement: 3y 6m with a NPP of 2y Other orders:
$6000 pecuniary penalty order pursuant to s 60 of the Confiscation Act 1997
Disposal order pursuant to s 77(1) of the Confiscation Act 1997
The applicant seeks leave to appeal against his sentence on the following grounds, namely, that the sentencing judge:
(a) failed to give sufficient consideration to the appropriateness of a less severe form of sentence, or the principle of parsimony (ground 3);
(b) gave no or insufficient weight to the principles of youth, rehabilitation, and moral culpability (ground 4);
(c) made a factual finding which was not reasonably open, namely that the applicant’s offending was for a longer period than that of his co-offender, Oakford (ground 5);
(d) erred in the exercise of his discretion in determining (by implication) that the seriousness of the offending precluded the imposition of a CCO (ground 6);
(e) erred in the exercise of his discretion in failing to determine that, notwithstanding the seriousness of the offending, it was open in all the circumstances of the case to impose a CCO (ground 7);
(f) erred in the exercise of his discretion by misapprehending the circumstances in which it is open to impose a CCO (ground 8); and
(g) imposed a sentence which is, in all the circumstances of the case, manifestly excessive (ground 9).[3]
[3]The applicant abandoned grounds 1 and 2 and parts of ground 5.
Circumstances of the offending
The circumstances of the offending were described by the trial judge[4] and outlined in the prosecution opening which was tendered on the plea. In brief, charge 1 was a rolled-up charge relating to the cultivation of cannabis at three separate properties: two adjoining factories in Laverton, a factory in Williamstown North and the applicant’s home in Spotswood. The total offending period was approximately seven and a half months, between 12 August 2012 and 28 March 2013. The latter was the date upon which police officers executed a search warrant at each of the locations.
[4]DPP v McGrath (Unreported, County Court, Judge Gamble, 10 September 2014) [4]–[21] (‘Reasons’).
The Laverton location involved two adjoining factories with a number of designated grow rooms. The cannabis crop was grown by way of a sophisticated hydroponic watering and feed system, and included the use of bypassed electricity, lighting, cooling and exhaust equipment. The Laverton location was used for the entirety of the offending period. A total of 131 cannabis plants, with a combined weight of 198.3 kilograms, were seized from the Laverton location. On 28 March 2013, the applicant’s co-offender, Ronald Oakford, was found inside the property and arrested. The applicant was arrested after police officers observed him driving past the Laverton premises. The other co-offender, Shane Day, was also arrested after being observed driving towards the premises.
The applicant then accompanied police when they executed a search warrant at his home in Spotswood. Inside the property, the police found two bags of cannabis, totalling 485.4 grams, a hydroponic set-up and an electrical bypass. The applicant told police that he was growing cannabis in the garage. There, police found six cannabis seedlings. The applicant admitted that this was the second crop he had been involved with at the Spotswood address. Two further seedlings were discovered in a pot in the backyard. The total weight of the eight growing plants was 26.4 grams. The total weight of the cannabis found at the Spotswood address was 511.9 grams. The period of cultivation at the Spotswood address was 1 January 2013 to 28 March 2013. Charge 2 constituted the use of the electrical bypass at the Spotswood address. Police also discovered a zip lock bag containing 0.3 grams of cocaine in the Spotswood address. This constituted charge 3.
Later that day, police searched a factory leased by the applicant in Williamstown North. The police obtained a search warrant for that address in reliance on what the applicant had told them, and gained entry with a key provided by the applicant. The premises contained a makeshift grow building with three rooms, two of which were being used to grow cannabis. A total of 36 cannabis plants weighting 13.15 kilograms were located at the address. The period of cultivation at the Williamstown North premises was 1 December 2012 to 28 March 2013. A third co-offender, Reed Paterson, was inside the property and was arrested.
In total, across the three locations the police seized cannabis amounting to 211.96 kilograms by weight and 175 plants by number. A commercial quantity of cannabis is 25 kilograms or 100 plants. A large commercial quantity is 250 kilograms or 1000 plants.[5]
[5]Drugs, Poisons and Controlled Substances Act 1981 sch 11, pt 2.
Charge 4 related to the discovery by police of an ‘asp’ extendable baton in the applicant’s car on the day of his arrest.
The sentencing judge summarised the applicant’s statements to police as follows:
When you were later interviewed by police, you told them that you had been working at the Laverton premises on an ad hoc basis for a couple of months, for which you were paid about $200 per day. Whilst you were not aware of the electrical by-pass being used there, or of the precise number of plants being grown, you admitted to being aware of each area within the factories and that the rooms were full of cannabis plants. You also admitted to growing cannabis and setting up a hydroponics system at your house and which you claimed was done in order to have a supply of cannabis for your own use. You also claimed to have purchased the dried cannabis found at your home for your own personal use. As for the Williamstown North address, you told the police that you had keys to those premises which you shared with Mr Paterson after having discussed the situation with Mr Oakford. You said that you had an informal lease agreement and used the factory as a work and storage area. You further stated that you knew Mr Paterson and had let him use the property. You falsely claimed not to have had any knowledge about the fact that a cannabis crop was being grown there.[6]
[6]Reasons [20].
The applicant was paid a total of $6,000 for his assistance in the Laverton enterprise. The sentencing judge made a pecuniary penalty order in that amount.
The applicant’s sentence
In his comprehensive sentencing remarks, the sentencing judge set out the applicant’s history and personal circumstances. The judge then emphasised the seriousness of the offence of commercial cultivation, observing:
In the case of Doan v The Queen, the Court of Appeal had occasion to re-state and emphasise a number of important principles that apply when sentencing for commercial cultivation. It is the type of offence that the community, and through them, the Parliament, treats very seriously. General deterrence must be at the forefront of sentencing considerations and an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.[7]
[7]Reasons [53] (citations omitted).
In respect of the applicant’s offending, the judge noted defence counsel’s acknowledgement that it was ‘serious’,[8] related to a ‘significant period’ and involved a ‘very significant’ quantity of cannabis.[9] The judge found that the applicant’s role was limited in respect of the Laverton property, but that he had played a significant role at the Williamstown North property and that the enterprise at the applicant’s home in Spotswood was ‘of [his] own creation’.[10] The judge noted that the total weight of the cannabis was approximately eight and a half times the threshold weight for a commercial quantity (8.5 CQ) and approximately 85 per cent of the threshold weight for a large commercial quantity (.85 LCQ).[11] The judge accepted that the applicant was in a precarious financial situation at the time of the offending and that he had a serious drug habit.
[8]Ibid [54].
[9]Ibid [55].
[10]Ibid [55].
[11]See DPP v Holder [2014] VSCA 61, [10].
In mitigation, the judge noted that the applicant was co-operative and made some significant admissions, that he pleaded guilty after a period of negotiation and had remorse, that he was relatively young with an inconsequential criminal record, that he had a good employment history and was well supported, and that he had ‘done much to address the problems in [his] life’.[12] The judge considered parity in respect of the co-offenders Oakford and Paterson and concluded that the differences between them were sufficient to justify different sentences.
[12]Reasons [69].
In sentencing the applicant, the sentencing judge referred to the ‘considerable significance’ of general deterrence and denunciation in respect of the offence of commercial cultivation. The judge found that specific deterrence had limited, though not insignificant, weight. The judge found that the applicant had very good prospects of rehabilitation.
Importantly for present purposes, his Honour referred to defence counsel’s submission that, in the particular circumstances of the case, a wholly suspended sentence was appropriate. He also referred to defence counsel’s acknowledgement that ‘immediate sentences of imprisonment are often warranted and frequently imposed for offences of commercial cultivation.’[13] The judge rejected the submission that he should impose a suspended term of imprisonment. Whereas counsel for the co-offender Day, sought a CCO or a suspended sentence, no submission was made by the applicant’s counsel that a CCO should be imposed. Accordingly, his Honour made no reference to that option in his sentencing remarks concerning the applicant.
[13]Ibid [83].
The co-offenders’ sentences
Shane Day pleaded guilty to one charge of commercial cultivation in relation to the Laverton premises. He was sentenced on the same day as the applicant to 15 months’ imprisonment with a non-parole period of eight months.
Ronald Oakford pleaded guilty to one charge of commercial cultivation and one charge of theft (electricity) in relation to the Laverton premises. He was sentenced to a total effective sentence of two years and two months’ imprisonment, wholly suspended.
Reed Paterson pleaded guilty to one charge of commercial cultivation in relation to the Williamstown North and Laverton locations. He was sentenced to two years and four months’ imprisonment, wholly suspended.
Grounds 3, 4 and 6–9
It is convenient to consider these grounds together. They contend in substance that the judge erred in sentencing the applicant to a term of imprisonment and should instead have imposed a CCO. The applicant argues that the sentencing judge failed to have regard to the principle of parsimony and that a CCO would have achieved the relevant purposes of sentencing.
In oral submissions, these contentions were reduced to two broad arguments. The first was that it had been open to the sentencing judge to impose a sentence less severe than imprisonment, namely a CCO, and that accordingly the sentence was manifestly excessive. Secondly, it was said that there was specific error as the sentencing judge, not having had the benefit of the guideline judgment of this Court in Boulton,[14] did not employ the reasoning process stipulated in that decision.
[14][2014] VSCA 342.
Counsel for the applicant commenced by emphasising the personal features of the applicant that were said to render a term of imprisonment unnecessary. He pointed in particular to the applicant’s youth, his severe drug use at the time of offending and his subsequent efforts to rehabilitate himself. In the hearing, counsel referred in particular to two progress reports and one final report in relation to the Court Integrated Services Program (‘CISP’) undertaken by the applicant while on bail.
As part of the CISP the applicant undertook a number of drug and alcohol counselling sessions and demonstrated a motivation to address his substance abuse issues. Counsel also referred to reports by Dr Paul Grech, a consultant clinical psychologist, and Mr Patrick Newton, a forensic and clinical psychologist. These reports were said to demonstrate the applicant’s remorse and his desire to remain free of drugs. The CISP reports and those from the psychologists were described in some detail by the sentencing judge.[15]
[15]Reasons [33]–[40].
Turning to the decision in Boulton, the applicant argued that it was authority for the proposition that sentencing courts must ‘re-examine the conventional wisdom about the types of offending which ordinarily attract a term of imprisonment’.[16] The applicant points to what he described as the test posited by the Court to determine whether the imposition of a CCO is appropriate:
Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?[17]
[16]Boulton [2014] VSCA 342, [103].
[17]Ibid [121]. We note that this passage of the Court’s reasons immediately followed a discussion of s 5(4C) of the Act, which as discussed later in these reasons was not in force at the time that the applicant was sentenced.
The applicant says that his circumstances and his offending did not require the conclusion that imprisonment was the only option and, further, that by failing to ask this question the judge erred in his approach to the sentencing task. For the reasons that follow, we do not accept the applicant’s submissions.
As the Court said in Boulton, the availability of CCOs as a sentencing disposition ‘dramatically changes the sentencing landscape’[18] and ‘calls for a re-consideration of traditional conceptions of imprisonment as the only appropriate punishment for serious offences’.[19] But nothing said in Boulton altered the principle of parsimony, which has always been a fundamental sentencing principle under the Sentencing Act 1991 (‘the Act’). The question as formulated in Boulton (above) is just one way of giving expression to that principle.
[18]Boulton [2014] VSCA 342, [113].
[19]Ibid [5].
A sentencing judge has always been obliged to impose the least severe sentence necessary to achieve the purposes of sentencing. That obligation is enshrined in s 5(3) and (4) of the Act, which oblige the court not to impose a sentence of confinement unless it considers that ‘the purpose or purposes for which the sentence is imposed’ cannot be achieved by a sentence that does not involve confinement. Those provisions — which are of long standing — were recently supplemented by s 5(4C), which requires a court not to impose a sentence of confinement unless it considers that the relevant sentencing purposes cannot be achieved by a CCO with conditions attached.
The judge’s obligation is, as it has always been, to give adequate consideration to whether a sentencing option other than a substantial immediate custodial term of imprisonment will be appropriate. The option of a CCO must be amongst the alternative dispositions to be considered. In Boulton, the Court pointed out that in an appropriate case a CCO can achieve all of the purposes of sentencing, and can do so in cases which might previously have been thought to require a sentence of imprisonment.
On the plea the argument on behalf of the applicant was directed at a wholly suspended sentence, whereas the argument on behalf of his co-offender Day was directed at a CCO. The applicant’s co-offenders, Oakford and Paterson, had received wholly suspended sentences. Counsel for the applicant submitted as follows:
[DEFENCE COUNSEL]: [o]ne further thing that I note, towards the rear, Your Honour, that a suspended sentence is open as a matter of law to the courts for [offences] such - - -
HIS HONOUR: That's because the offending occurred prior to - - -
[DEFENCE COUNSEL]: 1 September 2013, but of course it's a matter for Your Honour as to whether that's appropriate to be either wholly or partly imposed in the - - -
HIS HONOUR: This type of offending is obviously considered to be intrinsically serious as reflected by the very high maximum and this is a relatively serious example, I think, isn't it, [defence counsel]?
[DEFENCE COUNSEL]: Yes, Your Honour, particularly the Laverton matter - - -
HIS HONOUR: Yes.
[DEFENCE COUNSEL]: - - - given the significance.
As noted earlier, counsel for the applicant did not ask the judge to consider the imposition of a CCO. His Honour nevertheless addressed the possibility of a non-custodial sentence and was clearly cognisant of the need to comply with the principle of parsimony:
HIS HONOUR: I think if it is ultimately my view and I'll give it further thought, I want to go over all these materials and the submissions from counsel again, I'll be sentencing on a later date. But if it is ultimately the situation that your client must serve some time in custody then I'll ensure that it is a minimum that is required.
It is apparent from the judge’s sentencing remarks that he gave careful consideration to the possibility of imposing a sentence other than immediate imprisonment. He was obliged to do so in order to address the applicant’s submission that a wholly or partially suspended sentence was open. Ultimately, his Honour concluded that the seriousness of the offending required the imposition of a substantial term of imprisonment. Even though the sentencing remarks were directed to the possibility of a suspended sentence, rather than a CCO, it could not be said that the judge was unaware of that sentencing option.
Where — as here — a sentencing judge can be seen to have determined that nothing less than an immediate custodial sentence is necessary to achieve the relevant sentencing purposes, a failure to recite other possible sentencing dispositions, or to explain why they have been rejected, will not constitute sentencing error. Even if s 5(4C) had been in force, it would not have been necessary for the judge to state explicitly that he had considered and excluded the option of a CCO.
His Honour was well aware of the CCO regime, having adverted to it in the context of the co-offender Day, who was dealt with at the same time. His Honour referred to the submission made by counsel for Day — acknowledged to be a ‘bold’ submission — that he be placed upon a CCO or, in the alternative, that any term of imprisonment be wholly suspended.[20] The judge rejected that submission and, as described above, imposed a sentence of 15 months’ imprisonment.
[20]Reasons [84].
Pre-Boulton sentencing decisions
The next submission was that the judge, not having had the ‘benefit of guidance later provided by this Court in Boulton’, misapprehended the potential for CCOs to replace imprisonment for offences of this type. In support of this proposition, the applicant referred to five decisions of this Court, handed down subsequent to Boulton, that were said to demonstrate the need for appellate intervention to correct a sentencing judge’s failure to consider the imposition of CCO. In each of these cases — like the present — sentence had been imposed before judgment was handed down in Boulton, and this Court allowed an appeal against a sentence of imprisonment and instead imposed a CCO.
These cases were said to compel the conclusion that error is made out where a judge has not had the benefit of the reasoning in Boulton. In order to explain why that contention is unsound, it is necessary to briefly refer to each of the cases.
In Sherritt v The Queen,[21] the applicant had committed a number of sexual offences against his half-sister between approximately 1988 and 1993, when the applicant was 14 to 17 years old and the victim was five to nine years old. The applicant pleaded guilty and was sentenced to four months’ imprisonment, with a CCO of two years’ duration to commence upon completion of the imprisonment. The Court held that the sentence was manifestly excessive, allowed the appeal and re-sentenced the applicant to a CCO of two years’ duration.
[21][2015] VSCA 1 (Maxwell P and Priest JA) (‘Sherritt’).
Maxwell P highlighted the ‘exceptional circumstances’ of the case: the age of the applicant at the time of the offences; the fact that 20 years had elapsed without any further offending; the trial judge’s findings that both specific deterrence and the need to protect the community were irrelevant sentencing considerations; and the limited role of general deterrence where the offender is a child.[22] After reviewing the Court’s reasons in Boulton, Maxwell P said:
In my respectful opinion, in the light of the Court’s analysis in Boulton and the features to which I have referred, it was not open to the sentencing judge to conclude that the applicable purposes of punishment could only be served by a term of imprisonment. On the contrary, in my opinion, this was just the kind of case where no more severe sanction than a CCO was required, or could be justified, in order to satisfy those purposes.[23]
[22]Ibid [42].
[23]Ibid [48].
In McAleer v The Queen,[24] the applicant pleaded guilty to aiding and abetting trafficking in a drug of dependence (methylamphetamine) and possession of an unregistered general category handgun. The total effective sentence was two years’ imprisonment with a 10 month non-parole period. The Court allowed the appeal and re-sentenced the applicant to a CCO of two years’ duration.
[24][2015] VSCA 4 (Priest and Beach JJA) (‘McAleer’).
The Court held that, in view of the applicant’s youth, prospects of rehabilitation and other mitigating circumstances, the offending did not warrant a sentence of imprisonment immediately to be served.[25] The prosecutor had not pressed for an immediate term of imprisonment. After a review of Boulton, the Court said:
In our opinion, there is no ‘feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option’. Rather, in our view the present is a case where the peculiar features of the offending, and of the appellant, support the conclusion that a CCO was eminently appropriate. We regard the sentence of imprisonment imposed as manifestly excessive. It should be quashed. Consistently with Boulton, the proper exercise of discretion dictated that the appellant should have been sentenced to a CCO of a duration of two years on both charges. That is the course we now propose.[26]
[25]Ibid [22].
[26]Ibid [25].
In Marocchini v The Queen,[27] the appellant pleaded guilty to two charges of criminal damage, one charge of reckless conduct placing another person in danger of serious injury, one charge of recklessly causing serious injury, one charge of making a threat to kill, one charge of assaulting police and related summary offences. The entire offending spanned a period of one hour. He was sentenced to three years and three months’ imprisonment with a non-parole period of two years. The appellant had installed a tracking device on his wife’s car, followed his wife to a car park where he suspected her to be pursuing an affair with another man and drove his car at speed into his wife’s car, injuring his wife and placing the other man in danger of serious injury. Shortly afterwards, while attempting to pick up his daughters from a soccer ground, he was arrested after a struggle with police officers.
[27][2015] VSCA 29 (Ashley and Beach JJA) (‘Marocchini’).
The applicant was a man of unblemished character. He was 45 years old, married with four children and, until the offending, a hardworking and productive member of the community. His wife, who was the principal victim, gave evidence on his behalf on the plea. She mistakenly said during her evidence that he had provided no financial assistance to the family after being released on bail. On appeal she deposed by affidavit to the fact that she had misunderstood the question on the plea and described the not insignificant support the applicant had provided whilst on bail.
Significantly for present purposes, the Crown conceded during the appeal that the sentence imposed was manifestly excessive. The Court allowed the appeal, resentencing the appellant to a term of imprisonment of four months and a CCO of three years’ duration. The Court found that, notwithstanding that the offending was serious, the combination sentence was sufficient to achieve the purposes of sentencing.
In Cole v The Queen,[28] the appellant was found guilty after a trial of three charges of indecent acts with a child under 16. He was sentenced to a total effective sentence of one year and eight months’ imprisonment, with a non-parole period of 12 months. The appellant had touched his step-daughter, then aged 12, several times; two charges relating to touching on her breast and one charge related to touching ‘towards her inner mid-thigh’.[29] There had been a five year delay between the complaints to police and finalisation of the charges, and the appellant’s rehabilitation had been ongoing, having formed a new family and had a child with a new partner.
[28][2015] VSCA 44 (Ashley and Priest JJA) (‘Cole’).
[29]Ibid [7].
The Court allowed the appeal and resentenced the appellant to a CCO of two years’ duration, finding the offending to be short-lived and not at the high end of the offending. The Court took into account the delay, which was said to be ‘a powerful mitigating feature’,[30] and the appellant’s continuing rehabilitation. The Court said:
In our view, general deterrence, specific deterrence, denunciation and just punishment may all sufficiently be reflected in the imposition of a CCO. More to the point, when imposing sentence, the judge should have recognised that this is so by himself imposing a CCO rather than a term of imprisonment. At the risk of repetition, the sentence imposed was manifestly excessive. It must be set aside, and this Court must resentence the appellant. In so doing, we would, as we have said, impose a CCO.[31]
[30]Ibid [19].
[31]Ibid [22].
In Alam v The Queen,[32] the applicant pleaded guilty to one charge of making a false Commonwealth document and one charge of falsely representing himself to be a Commonwealth official. The applicant was a participant in a scheme to induce victims to make applications for visas to persons (himself included) purporting to be representatives of the Department of Immigration and Citizenship. The applicant was sentenced to two years’ imprisonment, to be released after 10 months’ imprisonment.
[32][2015] VSCA 48 (Priest and Beach JJA) (‘Alam’).
The Court of Appeal noted that the offending was limited in scope — relating to only five false documents and seven telephone calls — and found that the applicant was otherwise of good character, had cooperated with the police and was unlikely to reoffend. The Court allowed the appeal, resentencing the applicant to 12 months’ imprisonment, to be released after four months, with a CCO of three years’ duration. The Court said:
Counsel had sought a community correction order (‘CCO’) from the sentencing judge. It is probable that the approach taken by the sentencing judge in this case would have been different had she had the benefit of the guidance later provided by this Court in Boulton, which makes plain that sentencing courts need to rethink the conventional wisdom about whether prison is really the only option. Boulton emphasised the grave disadvantages of imprisonment, and the unique advantages of a CCO, in permitting significant punishment to be imposed whilst at the same time advancing an offender’s rehabilitation in a way that imprisonment cannot.
Taking into account the dictates of general deterrence and the other factors bearing on sentence, and having regard to the totality of the applicant’s offending, in our opinion the proper exercise of the sentencing discretion dictated the imposition of a significantly shorter period of imprisonment actually to be served, coupled with a substantial period of supervision while undertaking community work.[33]
[33]Ibid [20]–[21] (citation omitted).
Nothing said by the Court in any of these decisions suggests that a pre-Boulton sentence is automatically flawed by reason of the fact that the sentencing judge ‘did not have the benefit’ of the judgment in Boulton. On the contrary, they are simply orthodox examples of the appeal court concluding that, in the circumstances of the case, it was not open to the sentencing judge to conclude that nothing less than a custodial sentence would suffice.
Moreover, each of these cases is distinguishable on the facts from the present case. Each involved less serious offending, and each offender could call upon powerful mitigating factors. Sherritt[34] concerned decades-old offences, committed when the offender was 14 to 17 years old. The offender in McAleer[35] was an aider and abettor, who had performed menial tasks for the principal. Marocchini[36] concerned offending that occurred on one day by an offender of otherwise good character. In Cole,[37] the offending was at the low end of the spectrum and there had been significant delay. The offending in Alam was considered by the Court to be limited.
[34][2015] VSCA 1.
[35][2015] VSCA 4.
[36][2015] VSCA 29.
[37][2015] VSCA 44.
Plainly enough, the availability of the option of a CCO does not mean that the imposition of a custodial sentence is presumptively erroneous. This point was made very clearly in the recent case of Hutchinson v The Queen,[38] where Priest JA (with the concurrence of Ashley JA) said:
Acknowledging that a CCO might be appropriate ‘even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment’, it should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, ‘to punish the offender to an extent and in a manner which is just in all of the circumstances’. There will be cases — indeed, many cases — where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just. At the risk of again traversing well-trodden ground, it is axiomatic that in every case the sentence imposed must depend on its own facts, including the circumstances of the offending and the offender, and the circumstances of aggravation and mitigation.
Although … the Court in Boulton observed that a sentencing judge in a given case may find that, having regard to the gravity of the offending and the personal circumstances of the offender, a CCO is capable of satisfying the requirements of proportionality, parsimony, just punishment and rehabilitation, nothing in Boulton constrains a judge to impose a CCO where such a sentence would not be sufficient to reflect the objective seriousness of the offence and the circumstances of the offender.[39]
[38][2015] VSCA 115.
[39][2015] VSCA 115, [17]–[18] (citations omitted); see also Atanackovic v The Queen [2015] VSCA 136, [159]–[160] (citations omitted).
In the same way, in our view, it was well open to the sentencing judge in the present case, to conclude that the seriousness of the offending was such that it was necessary to impose a sentence of imprisonment. His Honour referred to the decision of this Court in Doan v The Queen,[40] in which Nettle JA (Harper JA agreeing) said:
[T]here should be no doubt that in cases involving cultivation of a narcotic plant in not less than a commercial quantity, general deterrence is at the forefront of sentencing considerations. Consequently, as the judge rightly observed, in cases of this kind there is less room to give weight to considerations of such as youth and antecedents that would otherwise be the case. In the result the judge also correctly found in a case of this kind an immediate term of imprisonment should ordinarily be regarded as virtually unavoidable.[41]
[40][2010] VSCA 250 (‘Doan’).
[41]Ibid [17] (emphasis added).
The applicant’s offending was properly characterised as serious. The maximum penalty for cultivating a commercial quantity of cannabis is 25 years’ imprisonment. As already noted, the quantity the subject of this cultivation charge is 8.5 times the specified commercial quantity. Defence counsel conceded on the plea that the Laverton enterprise was a relatively serious example of this type of offence and that the applicant’s role at the Williamstown premises was important.
The applicant argues that the sentencing judge gave insufficient weight to the mitigating factors outlined above, in particular, his youth, his prospects of rehabilitation and his moral culpability. We do not accept that submission. The judge gave a thorough account of the applicant’s personal circumstances and the mitigating factors which he could call in aid. It could not be said that it was not open to the judge to impose the sentence that he did. As Nettle JA noted in Doan, the need for general deterrence in respect of this type of offending is high. The seriousness of the offending was sufficient to justify the sentence imposed.
As this Court said in Boulton,[42] though a CCO does have a punitive and deterrent effect, it is less than that of imprisonment:
As we have explained, a CCO is intrinsically punitive and is capable — depending on the length of the order and the nature and extent of the conditions imposed — of being highly punitive. It follows that, as a matter of principle, a CCO can operate to deter others. But, unlike a prison term, a CCO is not self-evidently punitive.
It will be a particular challenge, therefore, to communicate adequately to the public how and why a CCO operates punitively. In the most obvious respect, as we have said, the CCO is less punitive than prison. There is no incarceration. In other important respects, however, the CCO is a very significant punishment.[43]
[42][2014] VSCA 342.
[43]Ibid [124]–[125].
Earlier we highlighted Nettle JA’s conclusion in Doan[44] that, for an offence of commercial cultivation, an immediate term of imprisonment is ordinarily ‘virtually unavoidable’. As the Court indicated in Boulton, however, that would not preclude the imposition of a combination sentence (a term of imprisonment plus a CCO). Since the amendment to s 44(1) of the Act, a CCO can be combined with a sentence of up to two years’ imprisonment.[45] (At the time the applicant was sentenced, s 44 allowed only for a term of imprisonment of up to three months in conjunction with a CCO.)
[44][2010] VSCA 250.
[45]Boulton [2014] VSCA 342, [136].
It is not to be assumed that a judge who sentenced before the decision in Boulton failed to appreciate that the CCO regime had added an important new dimension to the sentencing landscape. Nor should it be thought that a judge sentencing pre-Boulton would have overlooked the possibility of imposing a CCO for crimes which might ordinarily have attracted substantial terms of imprisonment.
The point is well illustrated by the recent decision in Director of Public Prosecutions v Maxfield.[46] There, the sentencing judge imposed a CCO for a serious instance of intentionally causing serious injury. The decision was made well before the decision in Boulton was handed down. This Court said that the judge’s reasoning showed ‘a lively appreciation’ of its potential benefits in an unusual case[47] and that his Honour had anticipated much of what was said subsequently in Boulton.[48] The Court endorsed the judge’s view that the combination of the intellectual disability and an operative mental illness (PTSD) required that Ms Maxfield’s case be treated differently from that of a person who, without those disabilities, had committed the same offence and would have attracted a ‘medium term of imprisonment’.[49] Director of Public Prosecution v Kemp[50] likewise illustrates that, in the pre-Boulton period, judges were well aware of the option of combining a CCO with a term of imprisonment.
[46][2015] VSCA 95.
[47]Ibid [34].
[48]Ibid [35].
[49]Ibid [46].
[50][2015] VSCA 108.
Second, the reasons in Boulton were of an entirely general character. Nothing said there obliges — or could be read as obliging — a sentencing judge to reach a particular conclusion. As the Court was at pains to point out in Boulton, a guideline judgment does not fetter, or control, the individual judge’s exercise of discretion in any way.[51]
[51]Boulton [2014] VSCA 342, [27].
Sentencing is, of course, discretionary. Reasonable minds may differ as to whether a CCO is appropriate in a particular case. Specific error apart, appellate intervention will not be warranted unless it can be shown that the only conclusion reasonably open was that a CCO should be imposed.
In the present case, the decision to impose a term of immediate imprisonment of significant duration was well within a sound exercise of the sentencing discretion. Nothing said in Boulton compelled any different conclusion.
Ground 5
Under ground 5, the applicant submits that the sentence was infected with factual error. In his sentencing remarks, the judge found that the applicant’s offending spanned seven and a half months, from August 2012 to March 2013.[52] His Honour stated (albeit in remarks directed to Day, rather than the applicant) that the period of his co-offender Oakford’s involvement was four months.[53] The applicant points to the prosecution opening, in which it was said that Oakford had employed the applicant. This apparent inconsistency, it was said, constituted an error in the sentence.
[52]Reasons [5].
[53]Ibid [62].
We may quickly dispose of this submission. Oakford pleaded guilty to charges covering a period between December 2012 and March 2013 (approximately four months). The applicant pleaded guilty to charges covering a period of seven and a half months. As the Crown submitted, the applicant fell to be sentenced for the period of offending which he admitted by his guilty plea. In his remarks, the judge did not place any weight on the disparity between the periods of offending of Oakford and the applicant. Indeed, the judge considered that the differences in the nature of the offending and personal circumstances of Oakford and the applicant to be of such a nature and extent that parity considerations did not arise.[54] Even if there had been error, it was immaterial. This ground is devoid of merit.
[54]Reasons [74].
We would refuse leave to appeal.
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