Mitchell v The Queen
[2016] VSCA 321
•16 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0157
| TOBY MITCHELL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, REDLICH and TATE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 October 2016 |
| DATE OF JUDGMENT: | 16 December 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 321 |
| JUDGMENT APPEALED FROM: | [2016] VCC 843 (Judge Hicks) |
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CRIMINAL LAW – Appeal – Sentence – Possession of drug of dependence (two charges: methylamphetamine and cocaine) – Combination sentence – Aggregate sentence 20 months’ imprisonment, combined with Community Correction Order for two years – Whether custodial component manifestly excessive – Substantial quantities of drugs – Specific deterrence – General deterrence – Physical and mental health difficulties – Sentence reasonably open – Leave to appeal refused – Drugs, Poisons and Controlled Substances Act 1981 s 73.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Grace QC | Theo Magazis & Associates |
| For the Respondent | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
TATE JA:
Summary
The applicant pleaded guilty to two charges of possessing a drug of dependence. The first charge concerned the possession of methylamphetamine, the second concerned the possession of cocaine. Each charge carried a maximum penalty of five years’ imprisonment. The applicant also pleaded guilty to two summary charges, of possessing a prohibited weapon and committing an indictable offence whilst on bail.
On the two possession charges, the sentencing judge imposed an aggregate sentence of 20 months’ imprisonment, together with a Community Correction Order (‘CCO’) for a period of two years. On the summary charges, the judge imposed fines of $400 and $3,000 respectively.
The applicant now seeks leave to appeal against the combination sentence imposed on the drugs charges. His essential complaint is that the custodial component of the combination sentence — 20 months’ imprisonment — is manifestly excessive. There are other proposed grounds of appeal, contending that the judge gave insufficient weight to mitigating factors, but on well-established principles these are to be treated as particulars of the ground of manifest excess, not as separate grounds of appeal.[1]
[1]DPP v Terrick (2009) 24 VR 457, 459–60 [5].
For reasons which follow, we would refuse leave to appeal. In our view, it was well open to the judge to impose the combination sentence which he did — including the custodial component — taking into account all relevant considerations.[2]
[2]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
The circumstances of the offence
The applicant and some of his associates were under surveillance from the Australian Federal Police (‘AFP’), as part of an investigation into the importation of 3,4-methylenedioxy-methamphetamine (‘MDMA’) into Australia. On 24 September 2015, the applicant was arrested by members of the AFP and interviewed in relation to his involvement with the importation of MDMA. Early the following morning, he accompanied police to his apartment, where police executed a search warrant.
Police also searched a white Range Rover vehicle which the applicant had been driving. In the foot-well area of the vehicle, police officers located a black plastic bag. It contained a number of snap-lock plastic bags, each containing a white crystalline substance. The applicant was questioned by police about the contents of the plastic bag but did not respond.
A forensic analysis of the contents of the snap-lock bags revealed: methylamphetamine (331.8 grams with a purity of 78.2 per cent, or 259.4 grams pure) and cocaine (168.2 grams with a purity of 75.8 per cent, or 127.4 grams pure).
Following the search, the applicant was conveyed to the AFP Melbourne office and questioned about his knowledge of the contents of the black plastic bag. He agreed that the police had executed a search warrant at his premises and that the Range Rover was a vehicle that he drove, but provided no comment answers to all other questions.
A latent fingerprint was located on the outside of the black plastic bag that matched the applicant’s right thumb fingerprint. Digital scales were found in the applicant’s apartment. Forensic analysis of powder located on the scales revealed traces of cocaine.
The submissions on the plea
On the plea, the defence relied on a written outline of submission, which commenced with the following paragraphs:
Mr Mitchell seeks a sentence involving two components
a. A moderate term of actual incarceration;
b.A Community Correction Order designed to manage an orderly transition back into the community, into paid employment at his tattoo business and into a lifestyle free of excess and bravado.
The offences do merit some actual incarceration. General deterrence and denunciation are central considerations for any drug possession not for personal use. Further, whilst Mr Mitchell’s drug convictions are not confronting, specific deterrence does play a part.
But the offending is somewhat palliated by the PTSD which afflicted him whilst offending. Further, Mr Mitchell has served over 8 months, most of it in lockdown conditions (22 hours in cell, and recently 20 hours daily in cell). In addition, he spent 7 months of ‘dead’ time on remand immediately preceding this offending, which is relevant to consider. He has done so in circumstances of unusual ill-health and of ongoing PTSD. In short, the argument is that he has done enough actual gaol-time.
A CCO will ensure that, unlike his last release, his next one is orderly and accountable. He has used his time in prison as well as possible, and it is in the community interest that he commence a respectable trajectory in the community as soon as possible.
In oral submissions, senior counsel for the applicant confirmed his client’s acceptance that ‘some term of actual custody was called for’ and that a combination sentence was sought. The applicant was, counsel submitted, ‘the sort of person who might realistically benefit from [a CCO] and might realistically be able to comply with it’.
The submission for the Crown was that a head sentence of greater than two years’ imprisonment was required. As a consequence, a combination sentence was not an available sentencing option.[3] The judge concluded that it was appropriate to have the applicant assessed for a CCO. He was subsequently assessed as being suitable.
[3]Sentencing Act 1991 s 44(1).
The seriousness of the offending
The judge concluded that the applicant had ‘committed serious crimes’. He continued as follows:
Principles of denunciation, general deterrence, specific deterrence all have their part to play in this sentencing exercise. You committed these offences whilst on bail, which would ordinarily be an aggravating feature. On … 7 September 2015 at Melbourne Magistrates’ Court you were released on bail in respect of an assault charge involving a cyclist. You committed the offences before me on 25 September 2015.
I raised with counsel as to whether committing these offences whilst on bail in the circumstances before me was an aggravating feature, considering the fact that you have been separately charged for that very offence, namely, committing an indicatable offence — possession of the drugs — whilst on bail. In my opinion this is a most unusual situation. [The prosecutor] indicated that committing an indictable offence whilst on bail has been a recently introduced offence. Questions of double punishment clearly arise. Both counsel submitted that it could still be looked upon as an aggravating feature for the purposes of this sentencing exercise, but the weight to be given to such aspect should be slight or low considering you have been separately charged for this offence.
Accepting that counsel’s joint submission [is] correct, I state the weight that I have given such matter in the circumstances before me is slight. Of course, that is not to say that the provisions of s 16 (3C) of the Sentencing Act 1991 would not apply. They do.
Significantly in this case it is important to note that the Crown case against you has been put on a very limited basis. Even though the quantity of methamphetamine you possessed was of a commercial quantity, you have not been charged by the authorities with possess methamphetamine in a commercial quantity.
The Crown have accepted your pleas of guilty on the basis that you knew you possessed both drugs of dependence but you were not aware of the quantity with respect to each drug. Accordingly, in the circumstances I asked the Crown prosecutor … if I should treat both charges equally even though the subject matter of Charge 1, methamphetamine, was of a greater quantity than Charge 2, cocaine. The Crown responded I should treat both charges equally in terms of their seriousness.[4]
[4]DPP v Mitchell [2016] VCC 843 [28]–[32] (‘Reasons’).
On appeal, the Crown’s submission emphasised the quantities of the two drugs found in the applicant’s possession. The quantity of pure methylamphetamine exceeded 250 grams, or two-and-a-half times a commercial quantity. And the quantity of pure cocaine exceeded 125 grams, or 50 per cent of a commercial quantity. Under a quantity-based sentencing regime, the quantity of drugs is a significant indicator of the seriousness of a drug offence.[5] That remains true in the present case, in our view, though its significance is somewhat reduced given the absence of any finding that the applicant was aware of the exact quantities in his possession.
[5]DPP (Cth) v KMD [2015] VSCA 255 [52].
The Crown also contended that the applicant was in possession of the drugs for a purpose related to trafficking. In answer to questions from the Court, however, counsel for the Director acknowledged that, although the Crown opening had identified the relevant factual matters, no submission had been made — and no finding sought — as to the applicant’s purpose.
On the plea, defence counsel conceded at the outset that the applicable maximum penalty for each possession charge was five years’ imprisonment. In other words, the defence would not be relying on s 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981. Under that provision, the maximum penalty for a possession offence is one year’s imprisonment if
the court is satisfied on the balance of probabilities that the offence was not committed … for any purpose relating to trafficking.
There are authorities in this Court indicating that, if the sentencing court is satisfied beyond reasonable doubt that a possession offence was committed for ‘a purpose relating to trafficking’, that fact may be treated as aggravating the seriousness of the offence.[6] As we have said, however, no such finding was sought on the plea and the sentence must be assessed accordingly.
[6]See, eg, R v Doble [2007] VSCA 47 [16]; Morgan v The Queen [2016] VSCA 143 [48].
We refer, finally, to what his Honour said about the aggravating feature that the applicant committed these offences while on bail. His Honour accepted the joint submission of counsel that, because the applicant had been charged with a separate summary offence of committing an indictable offence while on bail, the aggravating feature should be given only ‘slight’ weight, so as to avoid double punishment.[7] No occasion arises on this application to consider the correctness of that conclusion.
[7]Reasons [29].
The ‘dead time’
As noted earlier, the applicant relied on the fact that he had spent seven months of ‘dead’ time on remand immediately before this offending. The judge addressed the relevant circumstances, and their significance for the sentencing task, in the following terms:
Renzella Principles. On 10 January 2015 you were arrested on charges of extortion and assault. On 12 March 2015 you were refused bail by Justice King of the Supreme Court. On 25 July 2015 at the Melbourne Magistrates’ Court the extortion charges were withdrawn. On that date you were granted bail in respect of the one charge remaining, being of intentionally cause injury. On 12 August 2015 at the Melbourne Magistrates’ Court you were convicted and fined $1,000 in respect of the intentionally cause injury charge.
Accordingly, as you were fined only, the time that you had spent in custody, some 192 days awaiting sentence, was not claimed as at 12 August 2015.
Since 12 August 2015 some complexity has arisen.
That complexity has occurred due to the following circumstances: back on 24 October 2010 you committed the offence of affray. Due to a number of matters, including your injuries from both shootings, you were not sentenced on that matter until some four years later on 5 March 2014 by his Honour Judge Smallwood of this Court.
You were convicted and sentenced to four months’ imprisonment on that date wholly suspended for a period of 12 months. You breached that sentence on 10 January 2015 in respect of the intentionally cause injury charge for which you were fined $1,000. On 18 November 2015 breach proceedings were heard by his Honour Judge Smallwood and his Honour made no further order in respect of the charge. In doing so his Honour stated he took into account that exceptional circumstances were shown due to your unclaimed time spent in custody awaiting the previous matter that I’ve described and his Honour made no further order in respect of the breach.
Due to the circumstances of your breach you were required to show exceptional circumstances otherwise the sentence of four months’ imprisonment would have to be wholly restored by the sentencing Judge. I asked counsel how I should approach this matter in the circumstances. Counsel jointly submitted that the most his Honour could have taken into account was a period of four months, but also it would be an error to say that there is a specific number of days of the 192 days now open to be claimed. Accordingly, I state I have taken your unclaimed period in custody into account in a general way by way of mitigation of sentence pursuant to the principles in Renzella’s case.[8]
[8]Ibid [16]–[21].
In our respectful view, his Honour’s analysis was unimpeachable.[9] Counsel for the applicant did not seriously contend otherwise.
[9]R v Renzella (1997) 2 VR 88.
Physical and mental disabilities
The judge noted that in November 2011 the applicant had been a victim of an attempt on his life. He was shot six times in the back and hip and had to undergo life-saving surgery for his serious wounds. As a result of his injuries, he had lost a kidney, a portion of his liver and his gall bladder. The judge said that, for the purposes of the sentencing exercise, he accepted that the applicant had suffered ‘horrific injuries’ and that he required ongoing medical treatment to alleviate the pain.
There was before the court a report of Mr Ian McKinnon, forensic and consultant psychologist. The defence submission on the plea was that, on the basis of the expert evidence, the judge should be satisfied that principles 1, 5 and 6 as in R v Verdins[10] were applicable in this case. The judge set out his findings on these matters as follows:
Verdins’ principles. The Crown accept that on the evidence principles 5 and 6 have been established and apply. With respect to principle 5 in Verdins, I am satisfied that life for you in gaol is more onerous than it would be for a person of normal health. With respect to principle 6 in Verdins, I am satisfied that imprisonment for you will have a significant adverse [effect] on your mental health.
Principle 1 is far more problematic. [Senior counsel] on your behalf submitted Principle 1 applies. The Crown dispute this. [Senior counsel] conceded that there are difficulties in discharging his onus in this matter. Ordinarily Verdins has no application in respect of a mental condition postulated to have existed at the time of the offending unless the condition relied upon can be seen to be causally linked to the offending. [Senior counsel] conceded there was a paucity of evidence as to a causal link between your Post-traumatic stress disorder and the offence in question.
In my opinion the evidence before me does not support a causal link. The highest [senior counsel] put his case was on the basis that due to your Post-traumatic stress disorder your judgment was severely clouded. [Senior counsel] agreed, however, there was no specific evidence of a causal link of the offence in question. It was sensibly conceded by [senior counsel] that the evidence does not disclose how or why you chose to possess the bag in question that you knew contained narcotics and therefore the expert was unable to opine about a link between your Post-traumatic stress disorder and the particular decision to possess the drug.
Though your Post-traumatic stress disorder was severe in nature, and was said to impact your decision making and reasoning power, I can find no causative link to the offences in question. Whilst I accept you had Post-traumatic stress disorder at the relevant time and that it was [severe] and that it impacted upon your reasoning in a general way, the evidence does not disclose a specific [causal] link, nor does Mr McKinnon, the clinical psychologist, in his report or evidence to say otherwise. I note Mr McKinnon opined that you knew right from wrong in possessing the narcotic drugs. In all the circumstances I am not satisfied on the balance of probabilities that principle 1 of Verdins’ case has been established. I state to you, however, that I have taken into account principles 5 and 6 of Verdins’ case by way of mitigation of sentence.[11]
[10](2007) 16 VR 269 (‘Verdins’).
[11]Reasons [22]–[25].
Again, there is no challenge to any of these findings. The question for consideration, as noted earlier, is whether the sentence imposed was reasonably open to the judge if appropriate weight had been given to these findings.
Other mitigatory factors
The applicant also relies on his pleas of guilty and on the fact that, at the time of plea, he had spent 246 days in custody in lockdown. The judge accepted that this position was likely to continue ‘for the foreseeable future’.[12]
[12]Ibid [15].
As the applicant’s counsel acknowledged, the judge expressly stated in his reasons that:
(a) the pleas of guilty entitled the applicant to ‘a significant discount’;[13] and
(b) the circumstances of the applicant being in lockdown had been taken into account in mitigation of sentence.[14]
[13]Ibid [9].
[14]Ibid [15]
Once again, the question is whether the sentence imposed was reasonably open if appropriate weight were given to each of these matters.
Consideration
As this Court said in Boulton v The Queen, a sentence of imprisonment is ‘uniquely punitive’ because of the loss of liberty. [15] At the same time, the Court said, a CCO is ‘intrinsically punitive’ and has a punitive operation for every day it is in force.[16] The applicant’s submission was that, although a combination sentence was within range, the custodial component was manifestly excessive when combined with a two-year CCO.
[15](2014) 46 VR 308, 333 [104].
[16]Ibid 337 [124], 342 [150]–[151].
We disagree. This was serious offending, having regard to the quantities in the applicant’s possession. Both general and specific deterrence were relevant, as the applicant conceded on the plea. And it was necessary and appropriate that the sentence reflect the separate criminality involved in the separate possession charges. This is emphasised by the fact that the drugs in question had been divided up into separate snap-lock bags.[17]
[17]Cf Johnson v The Queen (2004) 78 ALJR 616, 625 [33]; Dang v The Queen (2014) 43 VR 29, 36–7 [43]–[46].
Each of the possession offences carried a maximum of five years’ imprisonment. It cannot be said, in our view, that an aggregate sentence of 20 months’ imprisonment for the two offences — combined with a two-year CCO — was outside the range for those offences.
The decision of the sentencing court as to the appropriate mix of components in a combination sentence is quintessentially discretionary. As the Court said recently in Melnikas v The Queen:
The fact that a CCO is now a sentencing option does not alter the latitude of the sentencing discretion. Specifically, because a judge might refuse to impose a CCO in a particular set of circumstances where another judge would do so, does not mean that the sentence falls outside the permissible range of sentencing options. Similarly, because a judge thinks that all of the sentencing purposes can be achieved by a term of imprisonment of two years together with a CCO of some length where another judge in the same circumstances might fix a much shorter term of imprisonment and a shorter CCO does not mean that the sentence is outside the permissible range.[18]
[18][2016] VSCA 112 [63].
In our view, the sentence imposed can be seen to have given appropriate weight to the mitigating factors on which the applicant could rely. A significantly heavier sentence would have been justified had the applicant not pleaded guilty and had he not been entitled to the discounts for his physical and mental impairments and for the restrictive nature of his incarceration. No error has been shown. Leave to appeal must be refused.
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