Morgan v The Queen
[2016] VSCA 143
•20 June 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0057
| BRENTON MORGAN | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | WEINBERG, PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 June 2016 |
| DATE OF JUDGMENT: | 20 June 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 143 |
| JUDGMENT APPEALED FROM: | DPP v Morgan [2015] VCC 1873 (Judge Hogan) |
---
CRIMINAL LAW – Application for leave to appeal against sentence – Drugs, Poisons and Controlled Substances Act 1981 s 73(1) imposes onus on accused to satisfy the court on the balance of probabilities that possession of a drug of dependence was not for any purpose relating to trafficking in that drug – Sentencing judge did not deny applicant procedural fairness by not warning him that the judge might find that he had not discharged the onus.
CRIMINAL LAW – Application for leave to appeal against sentence – Applicant sentenced to a total effective sentence of 40 months with a non-parole period of 20 months for 9 charges on indictment and 7 transferred summary charges – Charges on indictment included 2 charges of trafficking in a drug of dependence, 4 charges of possessing a drug of dependence, 1 charge of possessing a tablet press and 2 firearms offences – Whether individual sentences, orders for cumulation and total effective sentence manifestly excessive – Application for leave to appeal refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G M E Morgan | Paul Vale Criminal Lawyers |
| For the Respondent | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
PRIEST JA
KYROU JA:
Introduction and summary
On 13 November 2015, the applicant (now aged 25) pleaded guilty to the charges set out in the table below. Following a plea on the same date, he was sentenced on 16 December 2015 as follows:
Charge No
Offence
Maximum
Sentence
Cumulation
Charges on Indictment E12168638
1 Possess unregistered handgun [Firearms Act1996 (‘FA’) s 7B(1)] 600 penalty units (‘PU’) or 7 yrs (first offence) 7 mths 2 mths 2 Possess unregistered category A longarm [FA s 6A(1)] 120 PU or 2 yrs (first offence) 3 mths 1 mth 3 Traffick in a drug of dependence (MDMA) [Drugs, Poisons and Controlled Substances Act1981 (‘DPCSA’) s 71AC] 15 yrs 2 yrs Base 4 Possess a drug of dependence (Methandienone) [DPCSA s 73] 400 PU and/or 5 yrs [DPCSA s 73(1)(c)] 6 mths 1 mth 5 Possess a drug of dependence (Testosterone) [DPCSA s 73] 400 PU and/or 5 yrs [DPCSA s 73(1)(c)] 3 mths 1 mth 6 Possess a drug of dependence (Methandriol) [DPCSA s 73] 400 PU and/or 5 yrs [DPCSA s 73(1)(c)] 2 mths 1 mth 7 Possess a drug of dependence (Methiopropamine)
[DPCSA s 73]30 PU and/or 1 yr [DPCSA s 73(1)(b)] 5 mths 2 mths 8 Traffick in a drug of dependence (Methylamphetamine)
[DPCSA s 71AC]15 yrs 9 mths 3 mths 9 Possess a tablet press
[DPCSA s 71C]600 PU and/or 5 yrs 8 mths 2 mths Transferred summary charges
15 Possess a sch 4 poison (Acepromazine) [DPCSA s 36B(2)] 10 PU $200 18 Possess a sch 4 poison (Tamoxifen) [DPCSA s 36B(2)] 10 PU $200 19 Possess a sch 4 poison (Minocycline) [DPCSA s 36B(2)] 10 PU $200 27 Deal with property suspected of being proceeds of crime [CrimesAct 1958 (‘CA’) s 195] 2 yrs 2 mths 1 mth 28 Possess cartridge ammunition [FA s 124(1)] 40 PU $300 29 Deal with property suspected of being proceeds of crime
[CA s 195]2 yrs 6 mths 1 mth 30 Deal with property suspected of being proceeds of crime
[CA s 195]2 yrs 6 mths 1 mth Total Effective Sentence: 3 yrs and 4 mths (40 mths) Non-Parole Period: 1 yr and 8 mths (20 mths) Pre-sentence detention declared 353 days Section 6AAA statement: 5 yrs and 6 mths with a non-parole period of 3 yrs
The applicant relies on two proposed grounds of appeal. The first ground is that the judge denied him procedural fairness by sentencing him in relation to Charges 4, 5 and 6 on a basis that carried a higher maximum penalty in circumstances where the prosecutor had not submitted that the applicant should be sentenced on that basis and the judge did not give any prior notice to the applicant of her intention to sentence him on that basis. The second ground is that the sentences on Charges 3, 29 and 30, the orders for cumulation made in respect of Charges 4–9 and 27, 29 and 30, the total effective sentence, and the non-parole period, are manifestly excessive.
For reasons that follow, we have concluded that leave to appeal should be refused.
Circumstances of the offending and post offence conduct
On 1 July 2014, the police attended a property in Langwarrin following reports of suspicious activity. They found the applicant and another person with a motorbike on the back of a trailer attached to a car in the driveway. The motorbike had been removed from the garage of the house while no one was at home (Summary Charge 29 — Deal with property suspected of being proceeds of crime).
The police searched the applicant’s jacket and found a small bag containing crystals. The crystals weighed 0.6 grams and were 90 per cent pure Methylamphetamine (part of Charge 8 — Traffick in a drug of dependence). Also located in the jacket was $981.50 cash (Summary Charge 27 — Deal with property suspected of being proceeds of crime).
The applicant was arrested and the car in the driveway was searched. The following items were found in the car:
(a) A sawn-off rifle (Charge 1 — Possess general category unregistered handgun).
(b) A Winchester rifle (Charge 2 — Non-prohibited person possessing an unregistered category A longarm).
(c) 847 white tablets of MDMA (ecstasy), purity of 20 per cent and weight of 249.8 grams (Charge 3 — Traffick in a drug of dependence).
(d) A glass bottle of Acepromazine (a veterinary anaesthetic) (Summary Charge 15 — Possess a sch 4 poison).
(e) A packet containing 7 Tamoxifen tablets (an estrogen receptor antagonist, used by men to stop breast enlargement that may be caused by the use of steroids) (Summary Charge 18 — Possess a sch 4 poison).
(f) 7 yellow tablets and 144 blue tablets containing Methandienone (a steroid), weight of 19.3 grams (Charge 4 — Possess a drug of dependence).
(g) 5 vials of liquid Testosterone (a steroid), weight of 38.9 grams (Charge 5 — Possess a drug of dependence).
(h) 2 vials of liquid Methandriol (a steroid), weight of 19 grams (Charge 6 — Possess a drug of dependence).
(i) A vacuum sealed bag containing Methiopropamine, an analogue of Methylamphetamine, in brownish powder form, purity of 12 per cent and weight of 679.7 grams (part of Charge 7 — Possess a drug of dependence).
Later that day, the police executed a search warrant at the house in which the applicant was living with his girlfriend, Paula Broadhurst. The following items were found in the kitchen:
(a) 1.6 grams of Methiopropamine in brown powder form, 12 per cent purity (part of Charge 7 — Possess a drug of dependence).
(b) 533.8 grams of Methiopropamine in yellow/brown powder form, 3.5 per cent purity (part of Charge 7 — Possess a drug of dependence).
(c) 2.9 grams of Methylamphetamine in white crystal form, 2.7 grams of which had 0.7 per cent purity and 0.2 grams of which had 2 per cent purity (part of Charge 8 — Traffick in a drug of dependence).
(d) A tablet press for use in making powders into tablets (Charge 9 — Possess a tablet press).
(e) 28 orange tablets of Minocycline (an antibiotic) (Summary Charge 19 — Possess a sch 4 poison).
(f) 32 rounds of .22LR ammunition (Summary Charge 28 — Possess cartridge ammunition).
The police also located a notebook in the premises which referred to names, money and weights, alleged to be notes of drug transactions.
The police also executed a search warrant at a factory in Seaford which was leased by the applicant. They found a motor boat which had previously been stolen (Summary Charge 30 — Deal with property suspected of being proceeds of crime).
The applicant was interviewed following his arrest. He stated that, although the car was registered in Ms Broadhurst’s name, it was owned by him. He said that it was common for him to carry about $900 in cash given his job as a plasterer. He denied any knowledge of the drugs in the car and said that he did not know how long the firearms had been in the car. He stated that the 533.8 grams of powder located at the house (which contained Methiopropamine) would be a mixture of protein powder and food dye. When he was asked about the steroids, he replied, ‘Do I look like I take fucking steroids?’
Following his arrest on 1 July 2014, the applicant was remanded in custody until he was granted bail on 16 September 2014. On 16 December 2014, while he was on bail, he committed further offences relating to the possession of weapons, ammunition and drugs. His bail was revoked. On 27 July 2015, the applicant was convicted of the new offences at the Frankston Magistrates’ Court and sentenced to an aggregate term of 4 months’ imprisonment. Following an appeal to the County Court, on 30 November 2015 (that is, after the plea hearing for the offences with which this Court is dealing but prior to sentence) he was resentenced to an aggregate fine of $500 and 90 days’ imprisonment, with 90 days’ pre-sentence detention being declared as served.[1]
[1]This bore upon the pre-sentence detention available to be declared for the offences with which this Court is dealing and also upon questions of totality: DPP v Morgan [2015] VCC 1873 [17] (‘Reasons’).
The applicant had been committed to stand trial following a half day committal. The matter resolved to a plea on what would have been the first day of the trial.
Applicant’s personal circumstances
The applicant completed Year 10 at Rosebud High School and then completed a four year apprenticeship as a plasterer. He worked for Shane Kennedy for about seven years until approximately March 2014. Mr Kennedy provided a reference in which he described the applicant as trustworthy and said that he would welcome the applicant back at any time.
The applicant then worked for High Profile Plastering. That company’s project manager provided a reference which stated that the applicant showed good awareness and workmanship as a team leader and that he would be welcome back as a full time employee.
The applicant began using Methylamphetamine when he was approximately 20 years old in order to deal with emotional distress caused by the breakup of a long term relationship.
He commenced a relationship with Ms Broadhurst in early 2013 and moved from Rye to Frankston where he shared a house with her.
On 9 June 2011, the applicant was ordered to undertake a community based order for 9 months after he was found guilty, without conviction, on a charge of recklessly causing injury.
The applicant was 23 ½ years of age at the time of his arrest.
Plea hearing
The prosecutor read the summary of the prosecution opening into the transcript and it became Exhibit A on the plea. In the opening, Charges 4, 5 and 6 were described as ‘Possess Drug of Dependence’, followed, in each case, by the name of the relevant drug, without any statement as to the purpose for which the applicant had possession of the drugs. On the final page of the opening, under the heading ‘Maximum Penalties’, the following was stated in relation to the possession charges:
Possess Drug of Dependence — where the court is satisfied on the balance of probabilities that it was not possessed for the purposes of trafficking then 30 penalty units and level 8 (1 year) imprisonment s 73(1)(b) if not satisfied of that then 400 penalty units and/or level 6 imprisonment s 73(1)(c).
The statutory provisions to which the prosecutor referred are paras (b) and (c) of s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’) which provide as follows:
73 Possession of a drug of dependence
(1)A person who without being authorized by or licensed under this Act or the regulations … to do so has or attempts to have in his possession a drug of dependence is guilty of an indictable offence and liable—
…
(b)… where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in that drug of dependence—to a penalty of not more than 30 penalty units or to level 8 imprisonment (1 year maximum) or to both that penalty and imprisonment; or
(c)in any other case—to a penalty of not more than 400 penalty units or to level 6 imprisonment (5 years maximum) or to both that penalty and imprisonment.
During the course of the plea, there was some discussion on the issue of the purpose for which the applicant had possession of some drugs. However, there was no direct discussion as to the purpose for which he had possession of the drugs the subject of Charges 4, 5 and 6.
Following the prosecution opening, the judge had the following discussion with the prosecutor:
HER HONOUR: Thank you. Just in relation to the charges of possessing a drug of dependence, does the Crown have a submission on whether the court should be satisfied one way or another?
PROSECUTOR: In terms of the — well, all of them, that they’re not — the poisons were not for [a] trafficking purpose. In terms of the methiopropamine, which is the largest quantity of the possessions, there’s no evidence that that was being trafficked like the methylamphetamine.
HER HONOUR: Sorry, which charge is that please?
PROSECUTOR: Seven. It’s … Charge 7. You’ll see that there was a quantity found in the kitchen which was the 500-odd grams, with a purity of 3.5 per cent. It appears that it was being added to a protein powder to use as a stimulant, for him working out, in preference to being contained in any of the amphetamine that was being sold. So it’s been isolated on that basis.
HER HONOUR: So that’s the only one that you make a submission on in relation to that? …
PROSECUTOR: And also in terms of the summary matters where there’s been the poison, there’s no suggestion that any of those had been trafficked.[2]
[2]Transcript of Proceedings, DPP v Morgan (County Court of Victoria, 15-00485, Judge Hogan, 13 November 2015) 7–8.
Defence counsel told the judge that the applicant accepted that he had trafficked ecstasy and said that the applicant had done so to support his ice habit. When defence counsel gave an explanation from the Bar table about the applicant’s possession of the two firearms, the judge informed counsel that, in order to be satisfied on the balance of probabilities, she would need evidence and that she would not accept statements from the Bar table.[3]
[3]Transcript of Proceedings, DPP v Morgan (County Court of Victoria, 15-00485, Judge Hogan, 13 November 2015) 12, 18–19.
In relation to Charge 7, defence counsel made submissions as to the applicant’s use of Methiopropamine mixed with protein powder and flavouring, and in relation to his use of steroids and other substances to counteract the physical side effects of steroid use:
COUNSEL: [M]y client too is charged with possession of synthetic drugs in relation to this methiopropamine. Your Honour, as the prosecutor helpfully indicated, there was some evidence from the analyst in relation to a portion of that amount relied upon, the 533.8 grams which [were] found …
HER HONOUR: Sorry, which charge is this?
COUNSEL: This is Charge 7, the possession of methamphetamine and this deals exclusively, Your Honour, with the possession of the substance that contained methiopropamine which is an analogue [of] methamphetamine. The plea was accepted on the basis of possession for a non-trafficking purpose because there was a plastic container on the bench in the kitchen that contained a quantity of powder that was yellow in colour, it contained sucrose and other items that were consistent with body-building powders, so to speak, and my client instructs that it was yellow because he added banana flavouring to it. He was drinking it.
He had purchased it under the counter and that’s why there’s a plea of guilty, Your Honour, because he knew that it was [a] drug of dependence, there’s no requirement at law for him to know which one and he pleads guilty on the basis that he knew it wasn’t something … he was permitted to have but that he used it for his own personal use which clearly, Your Honour, involved, at that time at least, extensive use of performance enhancing substances or, so they’re called.
In retrospect, my client acknowledges that they contributed to an overall physical situation where he was — well, he wasn’t eating, he was exercising but spending an awful lot of time fuelling himself with protein powders rather [than] healthy normal food. He was extremely anxious about the weight-loss that he suffered as a result of his ice use and it really was for vanity purposes that he commenced using the steroids …
Your Honour might understand that in a community of people who might be using these substances, things get passed around, people try different things but in each and every case it’s not suggested that those substances were for the purposes of any form of trafficking and indeed, some of those substances are designed to counter the effects of steroid use such as, for example, the Tamoxifen which is to ensure that one doesn’t grow breasts when on these steroids and the — one of the substances found in the kitchen was an item — one of the poisons, the Schedule 4 poisons, was an item used to manage acne which results from steroid use.[4]
[4]Transcript of Proceedings, DPP v Morgan (County Court of Victoria, 15-00485, Judge Hogan, 13 November 2015) 20–21.
Defence counsel tendered references from the applicant’s former employers, Ms Broadhurst, Ms Broadhurst’s mother (Morgen Brown), the applicant’s mother and various friends and relatives.
In her reference, Ms Broadhurst stated that she was aware from the applicant’s behaviour that ‘he was probably using lots of different drugs, including amphetamine and steroids and it was clear that he had become addicted, making any excuse he could for daily usage.’
In her reference, Ms Brown said that she had known the applicant since 2003. She said that, during his teenage years, the applicant mixed with the wrong peer group, was a heavy drinker and engaged in risk taking behaviours such as the use of drugs including amphetamines and marijuana. Ms Brown also said that the applicant’s risk taking behaviour continued after he became a qualified plasterer.
Evidence was tendered that, while the applicant has been in custody, he has undertaken a variety of courses in workplace safety, gas metal arc welding, espresso coffee making and hygienic practices for food safety. He has undertaken alcohol and drug treatment programs and peer educator training, and has remained drug-free. He has worked in the metal workshop while on remand and has been trusted to talk to new prisoners about drug and alcohol rehabilitation.
The prosecutor submitted that terms of imprisonment ought be imposed and stated that it was a matter for the judge whether a sentencing disposition of imprisonment coupled with a community correction order (‘CCO’) fell within ‘the range’.[5]
[5]Transcript of Proceedings, DPP v Morgan (County Court of Victoria, 15-00485, Judge Hogan, 13 November 2015) 48–9.
Defence counsel submitted that the applicant ought receive a term of imprisonment coupled with CCO. Defence counsel also noted that ‘it is of significance that the Crown [doesn’t] say that [a CCO] in combination with gaol is … out of the range. And that’s a matter for Your Honour.’[6]
[6]Transcript of Proceedings, DPP v Morgan (County Court of Victoria, 15-00485, Judge Hogan, 13 November 2015) 50.
The judge arranged for the applicant to be assessed for a CCO. He was assessed as being suitable for a CCO, with a medium risk of re-offending.
Between the plea hearing on 13 November 2015 and the applicant’s sentencing on 16 December 2015, emails were exchanged between the judge’s associate and counsel in which the judge sought clarification of a number of issues. None of the emails dealt with the purpose for which the applicant was in possession of the drugs which were the subject of Charges 4, 5 and 6. However, there was some discussion regarding the purpose of possession of the drug which was the subject of Charge 7. In response to an email to the parties from the judge’s associate, the prosecutor confirmed that, with respect to all quantities of Methiopropamine, the Crown could not disprove that it was for the purpose of mixing with protein powders as a supplement and that that is why the charge was possession rather than trafficking.
Sentencing remarks
In relation to Charge 7, the judge held that possession of Methiopropamine with a total weight of 1.213 kilograms was towards the higher end of seriousness. She accepted on the balance of probabilities that the applicant’s possession was not for any purpose relating to trafficking.[7] However, in relation to Charges 4, 5 and 6, the judge decided that the applicant should be sentenced on the basis that she was not satisfied that his possession of the relevant drugs was not for any purpose relating to trafficking. The judge’s reasons for this conclusion were as follows:
These drugs were not at your home and no evidence was put before the court about what would constitute therapeutic personal dosages of any of them. I have already commented on the reservations I have in accepting Paula Broadhurst’s statement about your usage of them. That leaves simply an assertion from the Bar Table that you used steroids and testosterone, but in your Record of Interview you remarked to police with some incredulity ‘Do I look like a person who uses steroids?’ In the circumstances, I find there is insufficient evidence to satisfy me on the balance of probabilities that the possession of the drugs on Charges 4, 5 and 6 was solely for personal use and not for any purpose relating to trafficking. Thus, the maximum penalty for each of these offences is 400 penalty units or five years’ imprisonment.[8]
[7]Reasons [32]. In fact, the total weight was 1.215 kilograms.
[8]Reasons [33] (emphasis in original).
The judge accepted that the applicant’s pleas of guilty had utilitarian value and that they entitled him to a tangible discount. However, she did not accept that the pleas demonstrated remorse.[9]
[9]Reasons [16], [27].
The judge said that, although it appeared that the applicant had been a drug user, there was no evidence that would enable her to be satisfied on the balance of probabilities that he had a habit of using half to one gram of ice daily.[10] The judge also rejected defence counsel’s submission that the applicant trafficked ecstasy (Charge 3) solely to support his own habit. She described Charge 3 as ‘quite a serious example of a trafficking simpliciter charge.’[11]
[10]Reasons [22].
[11]Reasons [29].
The judge held that the notebook of drug transactions, the tablet press, the possession of firearms and ammunition and the rental of the factory all painted a picture of criminal activity involving some degree of thought, albeit that there was no evidence that the activity had yielded any detectable unusual enrichment.[12] She said that the picture of the applicant’s offending was not one of ‘a pathetic long term drug addict engaging in low level street dealing to support a habit.’[13]
[12]Reasons [31].
[13]Reasons [36].
The judge held that the predominant sentencing considerations were denunciation of the applicant’s conduct, general deterrence and just punishment, and that specific deterrence did not require as much emphasis.[14] She held that the gravity of his offending could not be reflected in a term of imprisonment of less than two years and thus a combined sentence of imprisonment and a CCO was not available.[15]
[14]Reasons [28], [35], [37].
[15]Reasons [35].
The judge noted that the applicant had a number of ‘protective factors’ in his favour, namely, his work capacity, the support of Ms Broadhurst and his family as well as Ms Broadhurst’s family, which made his prospects of rehabilitation ‘more optimistic than many others who come before the courts for this type of offending.’ However, the judge noted that, notwithstanding that the applicant had the benefit of these protective factors at the time of his offending, he still offended. She concluded that, as the applicant was relatively young, it was appropriate to give him the opportunity of maximising his prospects of rehabilitation by fixing a shorter than usual non-parole period.[16]
[16]Reasons [37].
Grounds of appeal
The applicant’s proposed grounds of appeal are as follows:
Ground 1: The sentencing judge erred by:
(a)departing from, and going beyond, the facts as opened by the prosecutor and agreed between the parties with respect to Counts 4, 5 and 6 on the Indictment, as to the purpose for which the Applicant possessed the drugs (trafficking), and applying the maximum penalty of 6 years imprisonment;[17]
(b)failing to provide, in respect of this departure, an opportunity for counsel for the applicant to address, or make submissions on, the findings the judge intended to make and in so doing denied the applicant procedural fairness.
Ground 2: In all the circumstances:
(a)the individual sentences imposed on charge 3, and summary charges 29 and 30;
(b)the orders for cumulation made with respect to charges 4, 5, 6, 7, 8 and 9 and transferred summary charges 27, 29 and 30; and
(c)the total effective sentence imposed and non-parole period fixed;
are manifestly excessive.
[17]In fact, the maximum penalty is 5 years’ imprisonment.
Ground 1: Procedural fairness
The applicant submitted that the judge erred in drawing a distinction between Charge 7 and Charges 4–6 in relation to the purpose for which the relevant drugs were in his possession because the prosecution opening did not draw any such distinction and the prosecutor’s position was that all of the relevant drugs were not possessed for any purpose relating to trafficking. The applicant also submitted that, as he had accepted the facts alleged in the prosecution opening, it was the agreed position of the parties that the relevant drugs were not in his possession for any purpose relating to trafficking. The applicant relied on the prosecutor’s statement ‘well, all of them’ at [23] above in support of the above submissions.
According to the applicant, as the parties had conducted the plea on the basis that his possession of the drugs the subject of Charges 4–7 was not for any purpose relating to trafficking, the judge denied him procedural fairness by sentencing him on a different basis without giving him prior notice of her proposal to do so and an opportunity to make submissions on that proposal.
The applicant argued that, as he was sentenced in respect of Charges 4–6 on the basis that the maximum penalty was 400 penalty units or 5 years’ imprisonment (or both) rather than 30 penalty units or 1 year’s imprisonment (or both), the sentencing discretion miscarried. This was said to be because the application of the higher maximum penalty adversely affected the judge’s synthesis and he was deprived of the opportunity of concurrency or lower cumulation for those offences.
The applicant also said that the trial judge should not have relied on the applicant’s comment in the record of interview: ‘Do I look like I take fucking steroids?’, in circumstances where the trial judge had remarked earlier in her Reasons that to say that the applicant was ‘unhelpful’ during the interview ‘is an understatement’ and because defence counsel did not rely on the record of interview.
The Crown submitted that the prosecution opening set out the alternate maximum penalties under paras (b) and (c) of s 73(1) of the DPCSA in relation to Charges 4–7. According to the Crown, while the prosecution conceded that the applicant’s possession of the drug the subject of Charge 7 was not for any purpose relating to trafficking, and the applicant made submissions in relation to that drug, neither the prosecution nor the applicant made any submissions in relation to the purpose of his possession of the drugs the subject of Charges 4–6. It followed, so it was said, that there was no evidence of any agreement between the parties that the applicant should be treated as not having those drugs in his possession for any purpose relating to trafficking.
In our opinion, Ground 1 cannot succeed.
Section 73(1) of the DPCSA establishes an offence of possession of a drug of dependence. It does not create an offence of trafficking in a drug of dependence: for present purposes, s 71AC establishes that offence.[18] An accused charged with an offence under s 73(1) cannot be sentenced for trafficking in a drug of dependence, as the charge is not one of trafficking and an offender cannot be sentenced for an offence with which he or she was not charged.[19]
[18]Other provisions of the DPCSA also establish offences of trafficking in a drug of dependence.
[19]R v Wyllie [1989] VR 21, 31–33; R v Doble [2007] VSCA 47 [16]–[17].
The scheme of s 73(1)(b) and (c) of the DPCSA is that, once the prosecution proves beyond reasonable doubt that an accused has in his or her possession a drug of dependence, the maximum penalty is that set out in s 73(1)(c) unless the court is satisfied on the balance of probabilities that the possession of the drug was not for any purpose relating to trafficking in that drug. Where the court is so satisfied, the lower maximum penalty in s 73(1)(b) applies. Section 73(1)(b) imposes an onus on the accused in that, if there is insufficient evidence to satisfy the court on the balance of probabilities that the possession was not for any purpose relating to trafficking, the higher maximum penalty in s 73(1)(c) will be applied.[20]
[20]R v Doble [2007] VSCA 47 [20], [51]; Hafner v The Queen (2011) 218 A Crim R 139, 142 [13].
It should be noted that a finding by the court that it is not satisfied on the balance of probabilities that the accused’s possession was not for any purpose relating to trafficking does not mean that the accused can be sentenced on the basis of possession for the purpose of trafficking, as that would be tantamount to sentencing the accused for a trafficking offence. That is because the definition of ‘traffick’ in s 70(1) of the DPCSA includes ‘have in possession for sale’. However, where the court finds beyond reasonable doubt (rather than on the balance of probabilities) that the accused’s possession of a drug of dependence was for a purpose relating to trafficking in it, that purpose may be treated as an aggravating circumstance unless the purpose amounted to trafficking.[21]
[21]R v Wyllie [1989] VR 21, 28–9, 31–3; R v Doble [2007] VSCA 47 [16]; R v Barbaro (2007) 17 VR 550, 559 [29].
It follows from the above principles that, in the absence of agreement between the parties or a concession by the prosecutor, s 73(1)(b) and (c) of the DPCSA imposed an onus on the applicant to satisfy the judge that his possession of the drugs the subject of Charges 4–6 was not for any purpose relating to trafficking in those drugs. The applicant did not adduce any evidence of the purpose of his possession of those drugs and there was nothing in the prosecution opening or any of the submissions made by the parties that could support the existence of an agreement that the applicant’s possession was not for any purpose relating to trafficking.
The statements in the prosecution opening were sufficient to satisfy the Court that the applicant had committed the offence set out in s 73(1) of the DPCSA, namely, the possession of a drug of dependence. The prosecutor did not need to allege the purpose of the possession to establish the commission of the offence, as the purpose is relevant only to penalty under paras (b) and (c) of s 73(1).
The risk that an accused may be sentenced on the basis of the higher maximum penalty in s 73(1)(c) of the DPCSA if there is insufficient evidence to satisfy the court on the balance of probabilities that his or her possession of the relevant drug was not for any purpose relating to trafficking is readily apparent from a reading of that section. As the risk necessarily inheres in the scheme of s 73(1), there was no obligation on the judge to warn the applicant of the risk.[22] Accordingly, the judge did not deny the applicant procedural fairness.
[22]Re Refugee Review Tribunal; ex parte AALA (2000) 204 CLR 82, 121–2 [101]–[102]; Ross v The Queen [2015] VSCA 302 [25].
In any event, albeit in the context of the firearms offences, the judge warned defence counsel that she would not accept statements from the Bar table as a substitute for evidence where the judge had to be satisfied of a matter on the balance of probabilities. Despite this warning, defence counsel did not adduce any evidence to the effect that the applicant’s possession of the drugs the subject of Charges 4–6 was not for any purpose relating to trafficking. Further, defence counsel never explicitly submitted that the applicant’s possession of those drugs was not for any purpose relating to trafficking. In these circumstances it should have been obvious to defence counsel that the judge would find that s 73(1)(b) of the DPCSA did not apply and that s 73(1)(c) applied.
We reject the applicant’s submission that the prosecutor’s statement ‘well, all of them’ at [23] above is evidence of an agreement by the prosecutor that all of the possession charges were subject to the maximum penalty in s 73(1)(b) of the DPCSA. That is because, when the judge asked the prosecutor to clarify this statement, he made it clear that he was only referring to Charge 7.
The judge was entitled to rely on the applicant’s statement ‘Do I look like I take fucking steroids?’ in the record of interview on the question of whether there was any evidence that his possession of the steroids was for personal use. In the absence of any evidence at all about the purpose of the applicant’s possession of the steroids, this statement was relevant to the question of whether the applicant had discharged the onus imposed on him by s 73(1)(b) of the DPCSA. This is so whether or not defence counsel relied on the record of interview. The fact that the judge characterised the applicant’s responses during the record of interview as unhelpful did not mean that she was obliged to ignore everything that was said at the interview.
Ground 2: Manifest excess
The applicant submitted that the total effective sentence of 40 months was manifestly excessive because it failed to give sufficient weight to his: lack of relevant prior history; relatively young age; good work history; family and community support; excellent progress while on remand; and very good prospects of rehabilitation. According to the applicant, the individual sentences for Charges 3, 29 and 30, the orders for cumulation in respect of Charges 4–9 and 27, 29 and 30 and the total effective sentence were in excess of what was required to reflect the overall criminality of his offending and failed to take account of the fact that all the offences took place as part of the same course of conduct.
The applicant relied on the fact that he had been assessed as suitable for a CCO, with a medium risk of re-offending.
The Crown submitted that Charge 3 was a serious offence because it involved 249.8 grams of ecstasy in circumstances where a trafficable quantity is 3 grams and a commercial quantity of ecstasy when mixed with another substance is 500 grams. The Crown contended that the sentence of 2 years for Charge 3 was well within the range of sentencing options available to the judge, given the quantity of the drug involved and the serious nature of the applicant’s drug trade, as evidenced by the presence of firearms in the car, the ammunition, the note book which detailed drug transactions, the tablet press, and the inexplicable rental of the factory. The Crown also contended that the individual sentences for Charges 28 and 29 were appropriate in the light of the applicable maximum penalty and the substantial nature of the items of property (a motorcycle and a boat) that were the subject of those charges.
According to the Crown, some cumulation was required between the charges due to the multiple and different offences committed by the applicant, and the orders for cumulation made by the judge were very modest.
The Crown submitted that the total effective sentence accurately reflected the applicant’s overall criminality and gave appropriate weight to: the multitude of offences to which the applicant pleaded guilty; the degree of thought involved in the offending; the inescapable conclusion that the firearms were possessed in pursuance of criminal activity;[23] and the applicant’s limited remorse for the offending. The Crown contended that the judge had correctly found that the applicant’s prospects of rehabilitation were optimistic rather than excellent because he had committed relevant offences while on bail and also because the ‘protective factors’ upon which the applicant relied — such as his employment and family and community support — had not previously safeguarded him from offending.
[23]The Crown relied upon Berichon v The Queen (2013) 40 VR 490, 496 [26].
Ground 2 must be rejected.
The applicant pleaded guilty to nine indictable offences and seven summary offences which represented a diverse range of drug-related offences, including possession of unregistered firearms and ammunition, possession of drugs of dependence, trafficking in drugs of dependence, and dealing with property suspected of being the proceeds of crime. The judge was correct to describe the applicant’s criminal activities as involving some degree of thought and to reject any suggestion that the applicant was ‘a pathetic long term drug addict engaging in low level street dealing to support a habit.’[24] The possession of the note book, the tablet press, the firearms and the lease of the factory supported the judge’s characterisation of the applicant’s offending.
[24]See [37] above.
The trafficking offences (Charges 3 and 8) were very serious offences, as reflected in the maximum penalty of 15 years’ imprisonment. In the light of the circumstances relating to these offences, including the quantities of the drugs involved, individual sentences of 2 years for Charge 3 and 9 months for Charge 8 with cumulation of 3 months, was well within the range of sentences reasonably open to the judge. The same applies to the individual sentences of 6 months for Charges 29 and 30, which involved dealing with a motor bike and a boat which were suspected of being the proceeds of crime.
All of the orders for cumulation were modest having regard to the separate offending involved with each of the charges. We reject the applicant’s submission that all the offences took place as part of the same course of conduct.
The total effective sentence was generous having regard to the diversity and scale of the applicant’s drug-related criminal activity. The non-parole period was also very lenient.
The fact that the applicant was assessed as suitable for a CCO says nothing about whether the custodial sentence imposed by the judge was manifestly excessive. A positive assessment in relation to a CCO does not give rise to a presumption that the accused should be placed on a CCO.[25]
[25]Gul v The Queen [2016] VSCA 82 [50].
Conclusion
For the above reasons, the application for leave to appeal will be refused.
4
8
0