Nguyen v The Queen
[2016] VSCA 198
•11 August 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0199 | |
| NAM SON NGUYEN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, TATE and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 9 March 2016 |
| DATE OF JUDGMENT: | 11 August 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 198 |
| JUDGMENT APPEALED FROM: | DPP v Nguyen (Unreported, County Court of Victoria, Judge Carmody, 23 September 2015) |
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CRIMINAL LAW – Appeal – Sentence – Cultivation of commercial quantity of narcotic plant (cannabis) – Theft of electricity – Trafficking in drug of dependence – Total effective sentence 3y 6m, sentence 2y 6m on charge of cultivation of commercial quantity of cannabis – Whether manifestly excessive – Evidence indicating offender’s role akin to that of principal – No attempt by offender to contest characterisation of role – Current sentencing practice for comparable offending – Need for consistency in sentencing crop sitters and principals – Sentence not outside range – Appeal dismissed – Drugs, Poisons & Controlled Substances Act 1981 s 72A.
CRIMINAL LAW – Mitigating factors – Risk of deportation – Illegal resident – Expired visa at time of sentence – Difficulty drawing comparison to cases involving offender with existing visa – No error in not taking risk of deportation into account – Guden v The Queen (2010) 28 VR 288; Da Costa Junior v The Queen (2016) 74 MVR 489; Konamala v The Queen [2016] VSCA 48; Schneider v The Queen [2016] VSCA 76, discussed – Migration Act 1958 (Cth) ss 41, 501, 501CA.
SENTENCING – Principles – Current sentencing practice (‘CSP’) – Consistency in sentencing – Jurisdiction of appellate court to correct CSP – Not limited to where determinative of appeal – Not limited to Crown appeal – Role of CSP in providing yardstick for range of sentences – Fairness as a matter of judicial discretion in not re-sentencing prisoner according to proposed increase in sentences – CSP for cultivation of commercial quantity of narcotic plant – Sentences in upper category of seriousness unduly low – Compressed range of sentences for mid-range offending – Current sentencing inadequate – Need for higher sentences for mid-range offending – Hogarth v The Queen (2012) 37 VR 658; Ashdown v The Queen (2011) 37 VR 341; Harrison v The Queen (2015) 74 MVR 58; Winch v The Queen (2010) 27 VR 658; DPP v Werry (2012) 37 VR 524; Poyner v The Queen (1986) 66 ALR 264; R v Pidoto (2006) 14 VR 269, Nguyen v The Queen [2010] VSCA 127, discussed.
CONSTITUTIONAL LAW – ‘Matter’ as federal requirement for jurisdiction – Limitation of ‘matter’ not applicable to State courts – DPP v Werry (2012) 37 VR 524, discussed – Australian Constitution.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Doyle | Revill & Papa Lawyers |
| For the Crown | Mr B F Kissane QC, with Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
| For the Intervenors (Law Institute of Victoria and Criminal Bar Association) | Mr D D Gurvich SC, with Ms V Morkos | Law Institute of Victoria |
REDLICH JA:
On 4 September 2015 the appellant pleaded guilty to one charge of cultivating a commercial quantity of a narcotic plant, two charges of theft of electricity and one charge of trafficking in a drug of dependence. Following a plea hearing on 23 September 2015, the appellant was sentenced as follows:[1]
[1]DPP v Nguyen (Unreported, County Court of Victoria, Judge Carmody, 23 September 2015) (‘Reasons’).
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Cultivate commercial quantity of narcotic plant [Drugs, Poisons & Controlled Substances Act 1981 s 72A] | 25 years’ imprisonment [Drugs, Poisons & Controlled Substances Act 1981 s 72A] | 2 years and 6 months’ imprisonment | Base |
| 2 | Theft [Crimes Act 1958 s 74] | 10 years’ imprisonment [Crimes Act 1958 s 74] | 6 months’ imprisonment | 3 months |
| 3 | Theft | 10 years’ imprisonment | 6 months’ imprisonment | 3 months |
| 4 | Traffick in a drug of dependence [Drugs, Poisons & Controlled Substances Act 1981 s 71AC] | 15 years’ imprisonment [Drugs, Poisons & Controlled Substances Act 1981 s 71AC] | 1 year’s imprisonment | 6 months |
| Total Effective Sentence: | 3 years and 6 months’ imprisonment | |||
| Non-Parole Period: | 2 years and 6 months | |||
| Pre-sentence Detention Declared: | 195 days | |||
| 6AAA Statement: | 5 years’ imprisonment with a non-parole period of 4 years | |||
| Other orders: Compensation Order ($11,395.45 to Energy Australia) on Charge 2. Compensation Order ($5,419.10 to AGL Retail Energy) on Charge 3. Forfeiture Order pursuant to s 32(1) of the Confiscation Act 1997. Disposal Order pursuant to s 77(1) of the Confiscation Act 1997. 2 x Compensation Orders pursuant to s 86 of the Sentencing Act 1991. Forensic Sample Order pursuant to s 464ZF(2) of the Crimes Act 1958. | ||||
Grounds of appeal
In his application for leave to appeal against sentence, the appellant relied upon two grounds of appeal. On 18 January 2016, Maxwell P granted leave to appeal solely on the first ground.[2] That ground is as follows:
[2]Ground 2 of the proposed grounds of appeal was to the effect that fresh evidence of events that have occurred since the sentence was imposed demonstrate the true significance of events in existence at the time of sentence. The appellant has not elected to renew this ground.
1.The sentence imposed on charge 1, orders for cumulation on charges 2, 3 and 4, total effective sentence and non-parole period is manifestly excessive in view of:
a. The appellant’s personal circumstances:
i. First time offender;
ii. Relative youth at 28 years of age at the time of the offending;
iii. Early plea of guilty;
iv.Impact of incarceration on mental ill health including during a two month period of 23 hour ‘lock down’ whilst on remand;
v. Prospects for rehabilitation; and
vi. Deportation.
b. The objective seriousness of the offending:
i.Role confined to knowledge of growth method and provision of instruction;
ii.No evidence of quantum of financial betterment to be expected.
c. Orders for cumulation on charges 2, 3 and 4 were excessive and offended principles of totality because those offences were substantially related to the offending at charge 1.
Prior to the hearing of the appeal, the appellant sought leave to add a second ground of appeal. I would grant that leave. Under proposed ground 2, the appellant submits that the sentencing judge erred in failing to take into account in mitigation the burden on him of his likely deportation at the conclusion of his term of imprisonment.
Summary of conclusions
My conclusions can be summarised as follows:
i.The appellant relied upon his role as being of a lesser order than a principal within the criminal enterprise and various mitigating factors personal to him, to support his ground that the sentence was manifestly excessive. The appellant placed particular reliance upon current sentencing practice (‘CSP’), submitting that the sentence imposed was not in conformity with existing sentencing standards as reflected in a number of cited cases and the Sentencing Advisory Council’s (‘SAC’) Major Drug Offences Report (‘Drug Offences Report’).[3] The seriousness of the appellant’s conduct placed him in the mid category for this offence.
ii.CSP plays an important role in ensuring that there is reasonable consistency in the sentencing process, that like cases are treated in a like manner, different cases are treated differently and sentencing principles are applied in a consistent manner. CSP does not mark the outer boundaries of the sentencing discretion, but it does provide a yardstick against which the impugned sentence could be measured. None of the matters upon which the appellant relies supported the conclusion that the sentence did not bear an appropriate relativity to CSP. The appellant failed to demonstrate that the sentence was beyond the range of sentences reasonably open to the learned judge under the existing sentencing standards.
iii.As to ground 2, I entertain serious reservations as to whether, by analogy, one can invoke the reasoning from Guden v The Queen,[4] Konamala v The Queen,[5] Da Costa Jnr v The Queen[6] and Schneider v The Queen,[7] as to the mitigatory relevance of the appellant’s prospect of deportation. In each of those cases the offender at the time of sentencing had an existing visa to reside in Australia. The circumstances of those offenders appears qualitatively different from the appellant who is not lawfully resident in Australia, because his or her visa has expired. It is however, unnecessary to finally resolve that question. I would grant leave to appeal on the second ground, but I am neither persuaded that his Honour made an error in dealing with the appellant’s risk of deportation or that that it should have resulted in a different sentence.
iv.In response to the appellant’s contention that the sentencing judge was constrained by prevailing sentencing standards to impose an even lower sentence than that fixed by the sentencing judge, the Director of Public Prosecutions (the ‘Director’) submitted that CSP for the mid category of seriousness of cultivating a commercial quantity of cannabis required correction as it was too narrow and too low. In my opinion, it is clear that there is a need to correct CSP, though not necessarily for all of the reasons the Director initially advanced. The argument on the substantive appeal showed that like cases for the mid category of seriousness of the offence of cultivation of a commercial quantity of narcotic plant are not dealt with in a like manner, the objective seriousness of the offence has not been adequately reflected in CSP, and there is a lack of consistency in the application of sentencing principles. Tate and Whelan JJA, whose reasons I have had the benefit of reading in draft, have reached the same conclusion. I regard the present appeal as an appropriate occasion to provide a warning that, in the future, sentencing courts should, by increments, increase the sentences to be imposed for such offending in the mid category of seriousness.
v.For the reasons that follow I would dismiss the appeal.
[3]Sentencing Advisory Council, ‘Major Drug Offences: Current Sentencing Practices’ (Report, Sentencing Advisory Council, March 2015).
[4](2010) 28 VR 288 (‘Guden’).
[5][2016] VSCA 48 (‘Konamala’).
[6](2016) 74 MVR 489 (‘Da Costa’).
[7][2016] VSCA 76 (‘Schneider’).
Circumstances of the offending
At the time of offending, the appellant was 28 years old. He was raised in Vietnam and arrived in Australia in May 2011 under a family-sponsored visitor visa. The appellant’s mother and two sisters live in Australia. He overstayed that visa, and, since 14 May 2011, has been an illegal immigrant in Australia.[8] He married his wife, an Australian citizen, in 2014.
[8]Reasons [6].
Between 1 October 2014 and 12 March 2015, the appellant, along with a number of other associates, engaged in the cultivation of a commercial quantity of narcotic plant across two properties and organised hydroponic equipment for the cultivation of narcotic plant at a third property. The appellant was living in a house in Maidstone (‘the Maidstone house’) and his mother owned a house in Ardeer (‘the Ardeer house’). There was a further house in Tarneit (‘the Tarneit house’), about which the appellant had discussions with his associates and was seen visiting in January 2015.
The appellant and his associates were the subjects of an extensive investigation between 20 October 2014 and 12 March 2015 by the Australian Crime Commission, involving the monitoring of over 11,550 phone conversations and surveillance. The phone conversations concerned the cultivation of cannabis, including growing techniques; when to water plants; when to provide nutrients and chemical to the plants; methods on how to identify a bug infestation on the plants; and how to dry the narcotic plant leaves when harvested. On 12 March 2015, police executed search warrants on the Maidstone, Ardeer and Tarneit houses.
Charge 1
The search of the Ardeer house revealed that three rooms had been modified for the purposes of narcotic plant cultivation, including false walls concealing the hydroponic set up in each room. Plasterboard and black plastic covered the windows in these rooms. A reticulated watering system was set up to water and feed the narcotic plant plants. High powered lighting and chemicals were used to assist the growth of the plants. One hundred and eleven plants in various stages of growth were located at the Ardeer house, weighing 17.5168 kilograms in total. A van registered to the appellant was also seen in the driveway of the Ardeer house on three occasions in the month prior to the search.
The search of the Tarneit house uncovered a hydroponic set up for the cultivation of narcotic plants in five rooms. High powered lighting was suspended from the ceiling. There was a reticulated watering system, and modifications to internal walls had been made. One hundred and thirty plants in various stages of growth weighing a total of 21.42 kilograms were seized.
Two hundred and forty-one narcotic plant plants were seized in total from the Ardeer house and the Tarneit house, weighing a combined total of 38.9368 kilograms. This amounted to approximately 2.5 times by the number of plants, or 1.5 times by the weight of the plants, the threshold for a commercial quantity.[9] Although the quantity of plants in each house was sufficient to found a charge of cultivation of a commercial quantity of cannabis, charge 1 on the indictment was laid on the basis of the quantity of the plants cumulatively cultivated at the Ardeer and Tarneit houses.
[9]Part 2 of sch 11 to the Drugs, Poisons and Controlled Substances Act 1981 stipulates that a commercial quantity of narcotic plant is 25 kilograms or 100 plants.
This constituted charge 1.
Charge 2
Equipment for the purpose of theft of electricity was located at the Ardeer house, including one electrical bypass; 34 light globes; 35 light shrouds; 36 electrical transformers; and two power boards. $11,395.45 worth of electricity was stolen using the electrical bypass between 1 October 2014 and 12 March 2015. This constituted charge 2.
Charge 3
During the search of the Tarneit house, the police found one electrical bypass; 67 light globes; two power boards; 81 electrical transformers; and 25 light shrouds. The electrical bypass at the Tarneit house was used to steal $5,419.10 worth of electricity between 13 February 2015 and 12 March 2015. This constituted charge 3.
Charge 4
At the Maidstone house, the police located hydroponic equipment including 213 light shrouds; eight electrical transformers; 143 light globes; five power boards; and five tubs of assorted light fittings. Also located at the Maidstone house was 320.7 grams of narcotic plant (cannabis) in the appellant’s possession for the purposes of sale. This constituted charge 4.
It is convenient to first address ground 2 as the appellant did on the appeal.
Ground 2
Appellant’s submissions
The appellant submits that the sentencing judge was wrong not to take into account the burden on him of the risk of his deportation at the conclusion of his term of imprisonment.
The appellant overstayed his family-sponsored visitor visa after its expiry on 14 May 2011. He has been an illegal immigrant in Australia since that time. Having married an Australian citizen on 1 July 2014, the appellant hoped to remain in Australia under a partner visa and had thus far been unsuccessful in obtaining a partner visa. Legal advice from an immigration lawyer was provided to the appellant that, should he be sentenced to a term of imprisonment for more than 12 months, his partner visa application may be refused on character grounds. The advice also records that a previous application lodged on the appellant’s behalf was rejected on account of the charges he faced. That advice was tendered on the plea, and the sentencing judge noted the contents of that letter.[10]
[10]Reasons [24].
In his sentencing remarks, the judge noted the appellant’s status as an illegal immigrant. He said: [11]
[Defence counsel] submitted that any sentence higher than 12 months' imprisonment would result in your deportation to Vietnam. That matter is an administratively [sic] factor outside my control, and whilst noting the potential impact deportation will have on you and your family, it is not a factor in your favour. You have offended whilst being an illegal immigrant. The principles of general and specific deterrence combined with denunciation of your conduct must result in a term of imprisonment for you.
[11]Ibid [41].
The appellant relies upon these remarks as disclosing error. He submits that his position is analogous with the circumstances considered in Guden,[12] that serving a sentence while under the expectation of deportation following completion of the sentence increases the burden of imprisonment that would otherwise be felt by an offender.
[12](2010) 28 VR 288.
In Guden, the Court considered the relevance of the prospect of an offender’s deportation as a sentencing consideration:[13]
In our view, authority does not require, and there is no sentencing principle which would justify, a conclusion that the prospect of an offender’s deportation is an irrelevant consideration in the sentencing process. As a matter of principle, the converse must be true. Like so many other factors personal to an offender which conventionally fall for consideration, the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release.
It follows that, subject always to the state of the evidence before the sentencing court, the prospect of deportation of the offender is a proper matter for consideration in determining an appropriate sentence. The Queensland Court of Appeal pointed out in Simard that this is not a sentencing consideration which can be called in aid by an offender who has Australian citizenship. But, with respect, this is simply an illustration of the infinite variety of personal circumstances which fall for consideration.
As the Crown properly conceded on this appeal, the fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, we respectfully agree with the view expressed by the NSW Court of Criminal Appeal in Kwon that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the court there did, this may well be viewed as a serious ‘punishing consequence’ of the offending.
[13]Ibid 294–5 [25]–[27] (citations omitted).
The Court went on to say:[14]
Of course, as this Court made clear in Griffiths, the sentencing court cannot be asked to speculate. If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed – as in Griffiths – as ‘a completely speculative possibility’.
What Nettle JA said in R v Tabone, in relation to the comparable question of the risk of confiscation of property following a conviction, applies with equal force here. That is, in the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation. Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship.
[14]Ibid 295 [27]–[28] (citations omitted).
The Director submits that the reasoning in Guden should not be applied as there is a qualitative material difference between an offender who does not possess a visa and has no prospect of getting one, and one who enjoys legal residence in Australia and faces the risk of deportation. He also submits that no submission was made on the plea that the appellant’s burden of imprisonment would be made harder due to his potential deportation and that in any event the judge implicitly took that fact into account in his reasons. Finally he submits the factor was not a mitigating factor of particular significance.
I do not consider from the broad tenor of the judge’s remarks that the judge took into account any burden that might be caused by the risk of deportation. That it was not considered is rendered the more likely because it was not the focus of attention on the plea.
It is therefore necessary to consider whether the prospect of deportation should have been taken into account as a mitigating factor. I turn first to the relevant provisions of the Migration Act 1958 (Cth) (‘the Act’) under which the appellant’s potential claim to lawful residence in Australia might arise. The appellant originally arrived in Australia under a family sponsored visitor visa, namely, Visa Subclass 679. Clause 679.611 under sch 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’), as was in force at the relevant time, stated that a ‘family sponsored visitor visa’, was subject to condition 8503 of sch 8 of the Regulations. Condition 8503 provides that the holder of the relevant visa will not after entering Australia, be entitled to the grant of a substantive visa, other than a protection visa.
Section 41 of the Act gives the relevant Minister a discretion to waive the ‘no further stay’ condition:
41 Conditions on visas
(1)The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
…
(2A)The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
The Minister’s discretion to waive that condition constitutes the first prerequisite to the grant of a partner visa.
The appellant argues that the Act generally discloses a policy inimical to the grant of a visa in his circumstances. Although not strictly applicable to the appellant as he does not yet have a visa, s 501(3A) of the Act, amended in 2014,[15] provides in mandatory terms that the Minister must cancel a visa granted to a person if certain conditions are satisfied:
[15] Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth).
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if ‘the person has a substantial criminal record (as defined by subsection (7))’. Section 501(7) relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; ...
On the face of it, even if a partner visa were to be, or had been granted, on the basis of s 501(3A) and s 501(6)(a) of the Act, the appellant’s expectation of being deported following a term of imprisonment exceeding 12 months, appears to be well founded. Section 501CA, however, confers upon the Minister a discretion to revoke any decision made under s 501(3A) to cancel a visa. Section 501CA relevantly provides:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
...
The Minister thus retains a broad discretion to revoke the original decision to cancel a visa if, despite the person failing the character test, ‘there is another reason why the original decision should be revoked’. It would likely follow that the onus of proving that the Minister should so exercise his discretion to revoke the cancellation of an existing visa should be borne by the person whose visa was cancelled.
Furthermore, a person whose visa has been cancelled is entitled to seek a merits review of a decision not to revoke the cancellation. Section 500(1)(ba) of the Act provides:
Applications may be made to the Administrative Appeals Tribunal for review of ... decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
This Court has recently considered the effect of the changes made to the Act and the migration regime since Guden. In Konamala,[16] after referring to one of the passages set out above in Guden,[17] the Court said:[18]
Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner’s personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.
In Guden it was recognised that — subject always to the state of the evidence before the sentencing judge — the prospect of deportation is a proper matter for consideration in determining an appropriate sentence. Despite the changes to the Act, that must remain so. Without evidence bearing on the issue, although it may be said with some confidence that the visa of an offender in the applicant’s position will be cancelled, it cannot be assumed that the Minister will not revoke the original decision to do so.
[16][2016] VSCA 48.
[17]See above at [20].
[18]Konamala [2016] VSCA 48 [34]–[35].
In Da Costa[19] this Court compared the position before the 2014 amendments to the Act with the current position:[20]
Now, as previously, the offender knows that he is at real risk of deportation because of his conviction of the criminal offence. Now, as previously, he must live with the uncertainty surrounding what will be a discretionary decision by the Minister. Previously, the relevant discretion related to cancellation of the visa. Now, the discretion relates to revocation of the cancellation decision. (The Minister being bound by statute to cancel the visa, no occasion arises at that point for any consideration of the circumstances of the individual.)
It is neither necessary nor appropriate for the Court to investigate whether, in practice, the process will be different. We assume that, under the former provisions, when the Minister was considering whether to cancel a visa, submissions were made on behalf of the offender that no such decision should be made. It must be assumed that, in the future, an application for revocation as a cancellation (assuming the provisions do not change again in the meantime) will be supported by the very same considerations as would hitherto have supported a submission that no cancellation decision should be made.
[19][2016] VSCA 49.
[20]Ibid [42]–[43].
The Court concluded in Da Costa that, while the applicant was correct to argue that the changes to the Act constituted fresh evidence, it was not persuaded that a different sentence should be passed. Critical to that determination was the consideration that it was ‘a matter of speculation as to what the responsible Minister may or may not do when an application for revocation is made following the automatic cancellation decision.’[21] The same outcome resulted in the recent decision of Schneider.[22]
[21]Ibid [53].
[22][2016] VSCA 76.
The appellant, at the time of sentencing, resided illegally in Australia, having overstayed his visa since May 2011, and his initial application for a partner visa had been unsuccessful. In Guden, Konamala, Da Costa and Schneider, the offender at the time of sentencing had an existing visa to reside in Australia. The appellant here did not. I entertain serious reservations as to whether, by analogy, one can invoke the reasoning from those cases. The nature of the expectation an offender may enjoy of remaining in Australia where the offender resides in Australia legally under a visa at the time of sentencing, but whose visa is liable to be cancelled and who lives with the uncertainty of not knowing whether an application for the revocation of the decision to cancel the visa will succeed, does appear qualitatively different from that of an offender who is not lawfully resident in Australia, because his or her visa has expired. In the former circumstance, the cancellation of an existing visa could be said to be attended by a sense of real loss of the prospect of settling in Australia which the offender had previously secured. In the latter circumstance, the offender has not lost an existing right, but only the possibility of securing a visa. What may be said is that the offender’s prospect of settling in Australia has been diminished.
I find it unnecessary however to determine whether that qualitative difference between the appellant and an offender legally residing in Australia disentitles the appellant to call in aid in mitigation that prison will be more burdensome because of the risk of deportation. It is entirely speculative whether the Minister may grant a waiver of the ‘no further stay’ condition so as to enable the appellant to pursue an application for a partner visa. Even if the appellant’s risk of deportation was a relevant mitigatory factor, it was not of an order that leads me to conclude that a different sentence should be imposed.
I would grant leave to appeal on this ground, but the ground cannot be upheld.
Ground 1
Under ground 1, the appellant first submits that the sentencing judge gave inadequate weight to one or more of a number of specified matters, resulting in a manifestly excessive sentence.
Personal factors not given sufficient weight
The appellant first contends that the sentencing judge failed to give sufficient weight to particular personal mitigatory circumstances of the appellant. The mitigating features relied upon by the appellant included his difficult personal background, in particular his separation from his mother and sisters following their departure to Australia when he was 15 years old, his early plea of guilty, the absence of any prior convictions, and his relative youth. He argues that his prospects of rehabilitation were strong given his general good character, completion of high school education and engagement in full-time work in the hospitality industry until 2010 before his arrival in Australia. He notes further that, as a condition of his immigration visa, he was unable to work in Australia.
The sentence judge, in his sentencing remarks delivered on the same day as the plea, referred to matters personal to the appellant. He made explicit reference to the appellant’s age, guilty plea, the acceptance of personal responsibility for the offending, that he was willing to facilitate the course of justice, his mental health, and his visa status. The judge took into account in mitigation that the appellant had committed the offences at the relatively young age of 28,[23] and had no previous convictions.[24] The judge referred to the appellant’s early history in Vietnam, in particular the separation of his parents when he was 15 years’ old due to the presence of considerable family violence.[25] He noted that the appellant continued to receive the support of his wife, mother and sisters. He also took account of the reference by the appellant’s sister indicating the appellant’s remorse and how helpful he had been to her family.[26]
[23]Reasons [23], [41].
[24]Ibid [41].
[25]Ibid [23].
[26]Ibid [25].
Notwithstanding that the judge addressed each of these matters raised on the plea, the appellant argues that the absence of specific reference to his prospects of rehabilitation in the sentencing remarks, reinforces the proposition that they were not given adequate weight. As to such a complaint, this Court has often had cause to observe that the absence of reference to a specific matter in sentencing reasons does not of itself establish that it has been overlooked or that its absence necessarily bespeaks error. There is no obligation upon the judge to refer to every matter taken into account in the instinctive synthesis of material factors undertaken in sentencing.[27] Nothing said by his Honour suggests that he was not alive to the appellant’s prospects for rehabilitation. Moreover, the absence of reference to the appellant’s prospects of rehabilitation in his sentencing remarks, is readily explained by the fact that his counsel on the plea, said only as to rehabilitation that the appellant’s previous good character leads to ‘consideration of [is] his prospects for rehabilitation and risk of reoffending and the burden of incarceration’. Nothing else was said on this issue. Given the focus of attention on the plea by the appellant’s counsel was as to the high risk of deportation and the sort of sentence that might avoid that risk, it is not surprising that rehabilitation was not the subject of greater attention.
[27]See, eg, R v Le Van Huu [1999] VSCA 40 [30] (Phillips CJ): ‘Of course, a judge is not obliged to specifically advert to every matter he has considered in composing a sentence’; DPP v Gebremeskel [2005] VSCA 171 [17]; R v Piacentino (2007) 15 VR 501, 511 [47]; R v Koumis (2008) 18 VR 434, 440 [64]; Dowe v The Queen [2012] VSCA 39 [32]; Jackson v The Queen [2013] VSCA 14 [10].
Unusual burden of imprisonment
The appellant further argues that a mitigatory feature of special significance which was given less prominence than it deserved was the unusual burden of imprisonment borne by him. In support of this submission the appellant relies upon his major depression and anxiety, diagnosed in the psychological assessment undertaken by Dr Watson-Munroe (‘Watson-Munroe report’). Consistently with the position taken on the plea, the appellant does not rely upon his diagnosis of depression as a sentencing consideration enlivening the principles in R v Verdins.[28] He submits that his anxiety is exacerbated by the prospect of deportation from Australia after he serves his term of imprisonment. He also relies upon the impact of the riots at the Metropolitan Remand Centre (‘MRC’), following which he spent a period of two months in 23 hour ‘lock down’ involving his confinement to a cell. It is submitted that, while he serves his time of imprisonment, the appellant is unlikely to receive the kind of treatment he requires given the limited resources available and his lack of proficiency in English. Additionally, he points to his isolation in custody given his limited grasp of English and the difficulty he faces in supporting his wife, who suffers from bipolar disorder, while in custody. It was submitted during the hearing that, if the Court was inclined to re-sentence the appellant, the recent diagnosis of the appellant’s mother with cancer and the need to care for her was an additional factor in mitigation to be taken into account. Save for the last of these matters, all of these considerations were raised on the plea.
[28](2009) 16 VR 296 (‘Verdins’).
The judge stated in his sentencing remarks that he took into account the Watson-Munroe report tendered on behalf of the appellant in which the psychologist had opined that the appellant was suffering from major depression with features of anxiety disorder. The report also stated that the appellant’s symptoms were compounded by his being in custody, that the rigors of his confinement had been exacerbated by the MRC riots, his extended confinement in his cell and the prospect of likely deportation to Vietnam. Each of these matters was emphasised by the appellant’s counsel on the day that sentence was imposed. In circumstances where defence counsel eschewed any submission that the appellant’s mental illness caused or contributed to the offending and thereby enlivened the principles in Verdins, it was not necessary that the judge say any more than that he had taken into account the appellant’s psychological state in the context raised by the psychologist.
I am not persuaded that the sentencing remarks or the sentence imposed demonstrate that his Honour failed to give sufficient weight to any of these aspects of the appellant’s personal circumstances.
Reliance upon CSP on plea
The second primary argument raised by the appellant is that the sentence was beyond the range permitted by CSP which constrained the judge to impose a lower sentence. The issue of CSP had been explored at some length on the plea. The parties had made submissions on the basis of the SAC’s Sentencing Snapshot 165, dated August 2014, for the offence of commercial cultivation (‘SAC snapshot’).[29] The prosecution submitted that, while the Sentencing Snapshot was of less utility than it might otherwise have been, as it predated this Court’s guideline judgement in Boultonv The Queen[30] regarding the imposition of a Community Corrections Order as an alternative to custodial punishment, it indicated that terms of imprisonment for this offence extended from five months to six years. Attention was drawn to the median term of imprisonment of two years and three months’ imprisonment, and the most common term of imprisonment being two to three years’ imprisonment.[31] On the basis of the use of two properties in the offending, plants in various stages of growth and the presence of a number of co-offenders, the prosecution submitted that the appellant’s offending was ‘mid-range’. Defence counsel submitted that the appellant’s offending fell short of mid-range offending on the basis that the commercial quantity involved in his case was only 1.5 times the threshold for a commercial quantity, by the weight of the plants.
[29]Sentencing Advisory Council, ‘Sentencing Trends for Cultivation of Commercial Quantity of Narcotic Plants in the Higher Courts of Victoria 2008-09 to 2012-13’ (Sentencing Snapshot No 165, Sentencing Advisory Council, August 2014).
[30](2014) 46 VR 308 (‘Boulton’).
[31]Sentencing Advisory Council, above n 29, 5.
The judge’s sentencing remarks reflect careful consideration of the relevant aggravating and mitigating features of the case. As to the aggravating factors present in the factual matrix, the judge placed considerable emphasis on the gravity of the offending and the appellant’s culpability for it. He referred to authority which emphasised that the maximum penalty for the offence of 25 years’ imprisonment reflected the relative seriousness of the offence of cultivation of a commercial quantity of cannabis.[32] He set out a list of factors which elevated the seriousness of the appellant’s offending above the lowest category of offending:
[32]Nguyen v The Queen (2010) 208 A Crim R 464; DPP v Duong [2006] VSCA 78; Doan v The Queen [2010] VSCA 250.
The seriousness of your offending or in this particular offending is
(a) the planning involved,
(b) the period of time engaged with is approximately six months,
(c)the fact that there are two separate grow houses involved in your offending,
(d)the leftover equipment, if I can use that term, the equipment for this type of activity which was found at your own home in the garage,
(e)the commercial quantity is either two and half times by the number of plants, or 1.5 times by the weight of the plants, and
(f)the diversion of power and the set-up generally of the houses indicates a level of sophistication.[33]
[33]Reasons [39].
He also stated that he had taken into account CSP.[34] He determined that general deterrence and denunciation were to be given significant weight in offences of this nature. That finding contributed to his conclusion that the ‘objective seriousness of [the appellant’s] offending disqualifies a community corrections order as an appropriate penalty, either on its own or in combination with a term of imprisonment’.[35]
[34]Ibid [29]–[30].
[35]Ibid [28].
On appeal, the appellant pressed the submission that his total effective sentence, and secondly his individual sentence on charge 1, were inconsistent with CSP by reference to the three cases mentioned in Maxwell P’s reasons for granting leave to appeal, namely, Latif v The Queen,[36] McGrath v The Queen[37] and Barton v The Queen.[38] Each of those cases involved greater quantities of narcotic plant but lower sentences were imposed. He now place particular reliance upon the SAC’s Drug Offences Report, in particular for the offence of cultivating narcotics, examining current sentencing practice from 2008-09 to 2012-13,[39] which took into account multiple charges faced by an offender convicted of commercial cultivation. In the 403 cases in which sentences were imposed on a charge of cultivation of a commercial quantity of a narcotic plant in the Drug Offences report,[40] the median term of imprisonment was two years and three months, for sentences where cultivating a commercial quantity of narcotic plants was the principal charge.[41] The appellant submits that the sentence imposed upon him was disproportionate to the objective seriousness of the offending as reflected by the current sentencing practice so disclosed. While conceding that his role was that of an ‘organiser’, as described by the judge on the plea, the appellant maintains that his offending was ‘towards the lower end’ of the spectrum.
[36]Latif v The Queen [2013] VSCA 51 (‘Latif’).
[37][2015] VSCA 176 (‘McGrath’).
[38][2013] VSCA 360 (‘Barton’).
[39]Sentencing Advisory Council, above n 3.
[40]Ibid 1.
[41]Ibid 5.
It is necessary to determine a primary question which was much in issue as to the role of the appellant in the cultivation. That will inform the question as to the category of seriousness of the appellant’s conduct and in turn will identify the relevant CSP that must be considered.
The role of the appellant; the category of the appellant’s offending
On the plea, the appellant’s counsel admitted that the appellant was in possession of the two crops, was cultivating them, and was to benefit financially from their ultimate sale. Thus on the appeal the Director contended that all of the admitted facts indicated that the appellant played a role comparable to that of a principal. The appellant contended that he could only be described as an ‘organiser,’ but not a principal.
Appellate courts will seek to identify the applicable range by characterising the objective seriousness of the offence as falling within the low, mid or the high range of seriousness of the offence. Hayne J described this range as the ‘permissible range of disposition’ in AB v The Queen.[42] In Nash v The Queen,[43] and again in Vernon Board v The Queen,[44] this Court cited the passage from Anderson v The Queen,[45] as to the importance of current sentencing practices in the identification of the sentencing range applicable to the case at hand and which reaffirmed and endorsed the statement by Redlich JA in Ashdown v The Queen[46] that:[47]
… it is [current sentencing practice], as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge
[42](1999) 198 CLR 111, 160 [130].
[43](2013) 40 VR 134, 135 [1].
[44] [2013] VSCA 190 [24].
[45][2013] VSCA 138 [22].
[46](2011) 37 VR 341 (‘Ashdown’).
[47]Ibid 401 [174].
It was also said in Ashdown that there may also be a further narrowing of the range by asking whether the offence falls towards the lowest end, the middle or the upper end of that applicable range. Such focus upon the relevant range of sentences, or in times gone by, to the ‘tariff’ or ‘going rate’, provides guidance as to an indicative range for the category of seriousness of the subject offence and implies that the range is not unlimited.[48]
[48]Ibid.
Although it was not in issue on the appeal that the judge was correct to place the appellant’s offending above the lowest category, the appellant asserted that he should have been placed toward the low end of the mid category of seriousness of this offence. The appellant submits that while the cultivation can properly be described as a sophisticated operation, involving two premises for cultivation and a third house storing the cultivated product and additional equipment, the appellant was not to be treated as though he was a principal in the offending.
The appellant submits that the prosecution evidence as to the nature of his role was extremely limited. He submits that it was not established that he attended the Tarneit house on more than one occasion and the Ardeer house on three occasions. The prosecution, he asserts, offered no evidence as to his involvement in setting up the Ardeer or Tarneit houses for the purpose of cultivation or in growing the crop beyond instructions he had provided for its propagation in phone conversations. While it was acknowledged on the plea and accepted on appeal that the appellant was motivated by financial gain from the ultimate sale of the crop, he argues that there was no evidence of the quantum of financial betterment he could have expected from the offending. Further, in oral submissions, counsel for the appellant submits that it was not open on the evidence to hold the appellant responsible for the financial investment required to secure the equipment and material necessary for cultivation or for the equipment found in his possession in his home. The appellant also submits that there was no evidence as to his responsibility for setting up the electrical bypass on charges 2 and 3.
The Director submits the detailed list of factors relied upon by the judge demonstrated the gravity of the offence. He argues that the judge was correct to apply those factors to the appellant and to accord considerable significance to the number of plants on each property and the number of properties involved. The appellant having pleaded guilty to the charges and having admitted on the appeal that the facts enabled his role to be characterised as an organiser, the Director submits that the absence of additional evidence, to which the appellant draws attention did not alter the admitted character of his offending. The Director drew upon the lesser sentence imposed on a co-offender who pleaded guilty to a single charge of cultivation of a commercial quantity of cannabis. An Quoc Chu was described as a crop sitter, was 55 years old, without prior convictions and also lacked the status of an Australian resident. He was sentenced to twelve months’ imprisonment. The Director contends that the nature of his offending did not place it at the lower end of the scale of seriousness of the mid category of this offence, but well within the mid-range of seriousness of this offence.
Whether an offender should be characterised as a principal or as discharging functions similar thereto is ultimately to be assessed on a case by case basis. It will not always be the case that a criminal enterprise will have a hierarchical structure or that the role played by each participant will be clearly delineated. Even where it is, the particular role may not possess all of the same characteristics as other principals within the enterprise.
The agreed facts tendered on the plea established the appellant’s intimate connection with two of the three premises involved in the offending, the appellant resided in the Maidstone house and his mother owned the Ardeer house.[49] There was no evidence that the appellant received instructions to perform the acts he had undertaken in furtherance of the criminal enterprise; rather, the evidence, namely, the considerable number of phone calls between the appellant and the other offenders, pointed strongly to the cultivation of narcotic plants being undertaken, at least in large part, under the appellant’s tutelage. The monitored phone conversations disclosed the general nature of his offending conduct. In those conversations, the appellant gave highly technical and critical advice as to the propagation of the crop, essential to the commission of the offences. I have earlier referred to their general content.
[49]Although these facts were not available to the sentencing judge, the Court was informed by the appellant’s solicitor after the hearing had concluded that on 27 October 2015 at the County Court an Unexplained Wealth Restraining Order in relation, inter alia, to the Ardeer house had been granted and the appellant's mother has made an application for exclusion of her interest in this property. The proceedings are ongoing.
The scale of the operations was considerable. Sophisticated hydroponic equipment was used in the two premises and elaborate steps of concealment were taken. The theft of electricity amounted to the considerable sum of $16,814.55. Only the appellant was charged with the theft of electricity. By his plea of guilty to theft of the electricity over the entire period for both properties, he indicated his acceptance of responsibility for an integral aspect of the operations from the commencement of cultivation and throughout its entire duration.
The appellant’s Maidstone house contained sophisticated equipment, including a large number of light shrouds; electrical transformers; light globes; power boards; and assorted light fittings, being equipment of the sort that that been used in the two houses converted for hydroponic cultivation. This equipment gave further support to the inference that his role in the operations was a prominent one in the enterprise of cultivation. If he did not own or have any financial interest in the property found in his possession, no such assertion was ever made during the plea. The Mercedes van, registered to the appellant, was seen in the driveway of the Ardeer house on three occasions in the month prior to the search.
On the plea the appellant’s counsel made much of the fact that there was no evidence that he set up the electrical bypass systems, that there was no evidence of what his financial benefit from the crops would be, described by his counsel as ‘betterment,’ and no evidence of his specific role in the hierarchy. But unlike most pleas, no assertions from the Bar table,[50] or evidence was forthcoming that sought to qualify or explain the inference which the prosecutor submitted was to be drawn from the admitted facts, namely that the appellant played a leadership role and was an organiser. The appellant was either unwilling to provide instructions to his counsel or have them revealed, which would have disclosed the nature of his relationship with others (if there were any) that he implied by his submission on the plea had an interest in or may have benefitted from the crop. He refrained from explaining the extent of his prospective financial betterment, his role in the theft of the electricity, or the reason for his possession of the large amount of hydroponic equipment found in his home.
[50]Vozlic v The Queen [2013] VSCA 113 [22] (‘Vozlic’).
On the appeal, counsel who now appears for the appellant, maintained the position that the absence of such evidence meant that the inferences to be drawn from the admitted facts were limited. In particular it is submitted that it could not be said that the appellant’s role was akin to that of a principal and that a distinction between an organiser and a principal was required. I do not accept either of these contentions.
It was not for the Crown to undertake some general burden of proving all facts relevant to sentence.[51] Where an offender wishes to limit the extent of the inferences to be drawn from established facts or to rely upon further facts in mitigation to qualify the conclusions that would otherwise be drawn from the admitted facts, the practical burden of proof falls upon the offender as the party seeking to rely on that fact.[52] That is to say it is for the offender to prove matters favourable to him or her where a contested issue arises.[53] As I have said, that burden is often discharged by assertion made from the Bar table during the plea if the sentencing judge is prepared to act upon such submissions.[54] If the judge intimates that he or she is not prepared to do so, the offender must adduce evidence of that fact.
[51]R v Storey [1998] 1 VR 359, 367 (‘Storey’).
[52]R v Olbrich (1999) 199 CLR 270, 281 [25] (‘Olbrich’).
[53]Storey [1998] 1 VR 359, 367.
[54]Vozlic [2013] VSCA 113 [22]
The admitted facts demonstrated that the appellant was an organiser with a financial interest in the crop and was to be regarded as equivalent to a principal. It was for the appellant to at least assert facts if he wished to contest that characterisation.[55] He made no attempt to do so.
[55]R v Olbrich (1999) 199 CLR 270, 281 [25].
The aggravating features which the judge took into account well supported the finding that the gravity of the offending was high and fell well within the mid-range of seriousness. More than a thousand of the intercepted telephone calls concerning cultivation of cannabis did not relate to either premises the subject of the charges, thus demonstrating that the appellant’s charged offending could not be regarded as isolated conduct. Although the sentencing judge did not say that he found the appellant to have played a leading role, or one akin to a principal, the evidence which the judge summarised, dictated that conclusion. As counsel who appeared on the appeal submitted, the sentence that was imposed was consistent with a finding that the appellant played a leading role and was culpable as a principal. In my opinion the sentencing judge was well entitled to approach the issue in that way. The CSP that was relevant was that applicable to a principal involved in cultivation of a commercial quantity of a narcotic plant.[56]
[56]R v Piercey [1971] VR 647, 649; R v Disney (1985) 38 SASR 418, 424; R v Spathis [2001] NSWCCA 476; R v Ngo (No 3) (2001) 125 A Crim R 495.
Approach to the comparable cases and current sentencing practice
Before turning to the competing contentions as to what is demonstrated by the cases cited and the Drug Offences Report, it is necessary to say something as to the important function which current sentencing practice and comparable cases play in advancing the underlying value of equality under the law and the search for unifying principles in the task of sentencing.
The joint reasons of French CJ, Crennan and Kiefel JJ emphasised in Green v The Queen[57] that the notion of ‘equal justice’ embodies the norm expressed in the term ‘equality before the law’ and has been called ‘the starting point of all other liberties.’[58] They quoted with approval the passage from the joint reasons in Wong v The Queen[59] that ‘equal justice requires identity of outcome in cases that are relevantly identical’ and ‘requires different outcomes in cases that are different in some relevant respect.’[60]
[57](2011) 244 CLR 462.
[58]Ibid 472–3 [28].
[59](2001) 207 CLR 584 (‘Wong’).
[60]Ibid 608 [65] (emphasis in original).
Gleeson CJ stated in Wong that the administration of criminal justice functions as a system which is intended to be fair, and systematic fairness necessitates reasonable consistency. Gleeson CJ said:[61]
All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
[61]Ibid 591 [6] (emphasis added).
The plurality in Hili v The Queen,[62] approved this statement, saying that the search for that consistency requires that sentencing judges must have regard to what has been done in comparable cases.[63] The statement of Gleeson CJ in Wong was again repeated with approval in the joint reasons in Elias v The Queen.[64]
[62](2010) 242 CLR 520 (‘Hili).
[63]Ibid 535 [47]–[49].
[64](2013) 248 CLR 483.
In R v Pham,[65] comparable cases were stated to serve a twofold purpose. The first, that such decisions may ‘provide guidance as to the identification and application of relevant sentencing principles’.[66] The second, to decide whether they yield ‘discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence’.[67] These purposes advance the requirement of reasonable consistency. They advance the underlying value of equality under the law and the search for unifying principles.[68]By the requirement that a discretionary decision must be made in conformity with well settled principles, the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.[69]
[65](2015) 325 ALR 400 (‘Pham’).
[66]Ibid 405 [26].
[67]Ibid.
[68]Ashdown (2011) 37 VR 341, 400 [174], citing Hudson v The Queen (2010) 30 VR 610, 617 [28]–[29].
[69]Norbis v Norbis (1986) 161 CLR 513, 519–20 (Mason and Deane JJ).
In Ashdown[70] I referred to the requirement in s5(2)(b) of the Sentencing Act that the sentencing court must have regard to current sentencing practice.[71] The term is to be understood as a particular, though not exclusive, reference, to the kinds of sentences that are imposed for that offence in comparable cases.[72] The Sentencing Advisory Council has defined it ’as those sentences imposed over a recent period of time on “like” cases.’[73]
[70](2011) 37 VR 341.
[71]Ibid 400 [174].
[72]Ibid.
[73]Ibid.
The need for the judge to be provided with what has been done in other (more or less) comparable cases was stressed in the joint reasons in Barbaro v The Queen.[74] In Hili, the plurality referred to Director of Public Prosecutions (Cth) v De La Rosa[75] and the use of information about sentences that have been passed in other cases, that history of sentencing establishing a range of sentences that have in fact been imposed. The importance of the sentencing patterns disclosed by that history were recognised by the plurality in Hili to be of considerable significance, in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.[76] As the plurality state in Hili, Barbaro and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed. Past sentences provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.[77]
[74](2014) 253 CLR 58 (‘Barbaro’).
[75][2010] NSWCCA 194, 388–9 [303]–[305].
[76]Hili (2010) 242 CLR 520, 537 [54].
[77]Ibid; Pham (2015) 325 ALR 400, 406–7 [29].
Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v The Queen[78] Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with 'relevant comparators'.[79]
[78][2014] VSCA 93.
[79]Ibid [26].
Cases are likely to be comparable where the objective seriousness of the offender’s conduct is similar to that of the subject offence. As I said at [51], appellate courts, including the High Court, may seek to identify the applicable range by characterising the objective seriousness of the offence as falling within the low, mid or the high range of seriousness of the offence.[80]
[80]Muldrock v The Queen (2011) 281 ALCR 652, 661 [29]; MacNeill Brown v The Queen[2008] VSCA 190; Trajkavski v The Queen(2011) 32 VR 587; R v Davies(2006) 164 A Crim R 353; R v EH[2008] QCA 67; X Y v The Queen[2007] NSWCCA 72; Mills v State of Western Australia[2007] WASCA 118.
None of this is to say that the range of sentences so disclosed is necessarily the correct range, or otherwise determinative of the upper and lower limits of sentencing discretion. As the plurality stated in both Hili and Barbaro, the history of sentences in other cases from which a range may be drawn does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits.[81] The past does not fix the boundaries within which future judges must, or even ought, to sentence. As this Court has so often repeated,[82] CSP does not create a ceiling or floor beyond which a judge may not go. A judge may conclude that the gravity of the offending is deserving of a sentence higher or lower than any previously imposed for an offence of that category of seriousness.
[81]Hili (2010) 242 CLR 520, 537 [54]; Barbaro (2014) 253 CLR 58, 74 [41].
[82]See for example R v Macintosh [2005] VSCA 106 [10]; DPP v OJA (2007) 172 A Crim R 181, 195–197 [29]–[33]; DPP v Dalgleish [2016] VSCA 148 [118]; Harrison v The Queen (2015) 74 MVR 58, 87 [140].
Comparable and distinguishable cases
The cases which were the subject of specific submissions on the leave application and which were further addressed on appeal may now be considered in the light of the appellant’s role in the cultivation. Both parties were able to draw upon cases which supported their submissions, thus demonstrating that the sentencing standards for mid range offending are quite inconsistent. Some of the cases considered involved conduct which fell outside the relevant category of seriousness for the subject offence but they nevertheless provided assistance in identifying indicative outer limits of the appropriate sentencing range. Neither party suggested that there was some feature of the case that required the judge to fix a sentence that fell outside existing sentencing standards
The first case was McGrath.[83] The offender was sentenced on one charge of cultivation of a commercial quantity of cannabis, one charge of theft of electricity and one charge of possession of drugs. The total effective sentence was two years and eight months’ imprisonment, with a non-parole period of 16 months. On the individual charge of commercial cultivation, a sentence of two years and six months’ imprisonment was imposed. The prisoner had pleaded guilty to cultivating 8.5 times the threshold for a commercial quantity, namely 211.96 kilograms (175 plants). The offending was undertaken alongside at least four co-accused. Three separate properties were involved, a factory, a Williamstown premise and the prisoner’s residential home. He was described as the principal for the crop grown at his own home. He was found to have played a significant role for the second property and a limited role for the third property. He was paid $6000 in his role for the cultivation of the crop. The operations involved sophisticated hydroponic equipment. The period of offending was seven and a half months. The mitigating factors bearing upon McGrath’s case were his relative youth, his prospects of rehabilitation and his lowered moral culpability for the offending as he suffered from a serious drug addiction and was in a precarious financial situation at the time of the offending.
[83][2015] VSCA 176.
In Latif,[84] the offender Azmi was sentenced on one charge of cultivation of a commercial quantity of narcotic plant to two years and four months’ imprisonment, with a non-parole period of 15 months. He pleaded guilty to cultivating 1.61 times the threshold for a commercial quantity, namely 161 plants.[85] One property was involved, and sophisticated hydroponic equipment and an electrical bypass were used. The offending was undertaken alongside two co-accused. Azmi was found to have played a lesser role than his two co-offenders, the latter being described as the principals of the operation. He was said to have rented the factory and paid for shipping containers. There was evidence that not only had he been seen to attend the premises on a number of occasions, but that he had also been seen tending to the plants by placing nutrients into the watering system. The period of offending in Azmi’s case was 19 days. There were compelling mitigating factors obtained in Azmi’s case. These included the existence of a dysthymic depressive illness attracting the principles in Verdins, his previous good character and his relative youth, being 27 years old at the time of the offending. He also was found to have good prospects of rehabilitation and enjoy family support.
[84][2013] VSCA 51.
[85]While the plants weighed a total of 130 kilograms, it was found not to be possible to quantify or predict the yield weights of the cannabis.
In Barton,[86] the offender was sentenced on one charge of cultivation of a commercial quantity of narcotic plant to two years’ imprisonment, with a non-parole period of nine months. He pleaded guilty to cultivating 5.3 times the threshold for a commercial quantity, namely 132 kilograms (160 plants).[87] The offending was undertaken individually. One property was involved. The period of offending was some five months. The mitigating factors were his entrenched and significant addiction to cannabis, it being accepted that the crop was grown partially for his own use. Barton was also found to have suffered from long-standing depression. He had no relevant prior convictions, exhibited remorse and had good prospects of rehabilitation.
[86][2013] VSCA 360.
[87]The yield in Barton’s case was said to be only 19.5 to 22 kilograms.
By contrast, in Bui v The Queen,[88] the offender was sentenced to a total effective sentence of five years’ imprisonment, with a non-parole period of three years. On the individual charge of cultivation of a commercial quantity of cannabis, he received a term of four years and six months’ imprisonment. He pleaded guilty to cultivating two times the threshold for a commercial quantity, namely 56.54 kilograms (94 plants). The appellant was a principal, the offence took place over a period of three months, he had a history of prior very similar offending, and there were no significant mitigating factors. The offending was undertaken individually, with financial gain being the sole motivation. One property was involved, with sophisticated hydroponic equipment used on the premises. The period of cultivation of the crop was two months. Bui had arrived in Australia as a refugee 20 years ago and, at the time of the offending, was 65 years’ old. He also had relevant prior convictions, having been sentenced to a suspended sentence of twelve months’ imprisonment and a Community Corrections Order of twelve months’ duration for trafficking narcotic plant in circumstances very similar to the present offending where three rooms in a house had been converted to cultivation.
[88][2015] VSCA 313 (‘Bui’).
In Nguyen v The Queen,[89] the offender was sentenced on the charge of cultivation of a commercial quantity of narcotic plant to a term of three years’ imprisonment, with a non-parole period of two years. He pleaded guilty to cultivating approximately two times the threshold for a commercial quantity, namely the yield weight of 47.3 kilograms.[90] The offending was undertaken in a group, with the accused being described as the principal cultivator. The crop was grown on one property, with extensive and sophisticated hydroponic equipment and an electrical bypass on the premises as well as on a second property set up for the purpose of commercial cultivation. The period of the offender’s involvement in cultivation was three months. Strong evidence in favour of mitigation was found, the offender suffering from post-traumatic stress disorder and major depression. He had no prior convictions, had exhibited remorse and had good prospects of rehabilitation. The table of cases annexed to this case showed that only one sentence greater than the sentence imposed in Bui had ever been imposed.
[89](2010) 208 A Crim R 464.
[90]There was some dispute as to whether the relevant quantity was the total weight of the plants or the yield weight. The Court proceeded on the latter basis, although it said that its conclusion was unaffected by this.
The respondent relied upon the 2013 decision of Nguyen v The Queen.[91] The offender in that case cultivated a commercial quantity of narcotic plants in large numbers over three locations. In all, well over 1,000 plants were discovered. The offender had no prior convictions. He was 60 years of age at the time of sentence and had come to Australia as a refugee from Vietnam. After a trial he had been found guilty of four charges of cultivating a narcotic plant in a commercial quantity, one charge of trafficking in a narcotic plant and four charges of theft of electricity. The County Court judge imposed a total effective sentence of six years and nine months’ imprisonment with a non-parole period of four years nine months. On each of four charges of cultivation of a commercial quantity of narcotic plants the appellant was sentenced to five years’ imprisonment. He was sentenced to a term of one year nine months’ imprisonment on each of the four charges of theft. This Court found that the sentences imposed were not manifestly excessive.
[91][2013] VSCA 63.
It was observed in Bui that since 2007, sentences imposed for the offence of cultivating a commercial quantity of narcotic plants where the offender was a principal range from 15 months (where the offender received a discount for agreeing to give evidence against a co-offender) to six years nine months.[92] Sentences both higher and lower than that imposed on the appellant for commercial quantities comparable or higher to that for which the appellant was charged, namely, two and half times by the number of plants, or one and a half times by the weight of the plants, could be identified.
[92]Bui [2015] VSCA 313 [29].
Drug Offences Report examining sentences from 2008–09 to 2012–13
The limitations upon the proper use of statistics and sentences passed in other cases are well known. They can and should provide guidance and stand as a yardstick against which to examine a particular sentence, but they are not to be regarded as some sort of ‘benchmark’. Bearing in mind this limitation, the respondent argued that as the sentencing statistics in the Drug Offences Report were compiled on the basis of the total effective sentence imposed in each case, their application to the present case, in which the total effective sentence included the sentences imposed for theft of electricity and trafficking, was limited. Further, it was said that the appellant was treated appropriately for the severity of his offending, reflected by the fact that the median term of imprisonment imposed in the second cluster of 202 cases (‘Cluster 2’)[93] was higher than the sentence imposed on the appellant. The imposition of a sentence of two years and six months’ imprisonment on the charge of commercial cultivation upon the appellant was said to be consistent with the sentences imposed for mid-range offending.
[93]Sentencing Advisory Council, above n 3, 27 [4.45]. See [84] below.
It was recognised by both parties that the Drug Offences Report contains two relevant clusters of cases involving commercial cultivation.[94] In the first cluster of 201 cases (‘Cluster 1’), all of the offenders were crop-sitters or played an ancillary role. They were typically involved in a short period of offending and were relatively youthful offenders with less likelihood of previous criminality. The median term of imprisonment for Cluster 1 cases was two years.[95] In Cluster 2 cases, 77 per cent of offenders played a principal or proprietary role. There was typically a longer duration of offending, involving offenders older than 35 years of age and with a criminal history. The median term of imprisonment for Cluster 2 cases was three years.[96] The appellant submitted that, having regard to the qualitative nature of the offender and the offending reflected by each cluster, his personal circumstances and his role was more akin to Cluster 1 cases. The total effective sentence he should have received, it was submitted, should have fallen toward the lower end of the spectrum, either in Cluster 1 or in the bottom range of Cluster 2. For reasons I have already given this submission cannot be sustained.
[94]Ibid 24 [4.34] and 25 [4.36].
[95]Ibid 27 [4.45].
[96]Ibid.
Cluster 1 and Cluster 2 in the Drug Offences Report rely upon total effective sentences for offending which included the primary offence of cultivation of a commercial quantity of cannabis.[97] The total effective sentences are likely to also include a charge of theft of electricity but it is unlikely that a sentence for trafficking (on which the appellant was also sentenced) will also be found within most of those total effective sentences. Had the appellant not received an additional sentence for trafficking, the appellant’s total effective sentence would have been three years’ imprisonment, the median term of imprisonment for Cluster 2 cases. As the appellant’s role is properly to be characterised as mid-range offending involving participation akin to that of a principal, the Cluster 2 cases show that the sentence imposed on the appellant, fell within CSP.
[97]Ibid 26 [4.40].
It is plain enough that CSP as exposed by this analysis does not show that a sentence of two years and six months’ imprisonment on charge 1 was beyond a sound exercise of the sentencing discretion. The sentence imposed does bear an appropriate relativity to the existing range of sentences that have been imposed for this category of seriousness of the offence. For mid-range offending, the Drug Offences Report is an indicator that a total effective sentence of three years and six months’ imprisonment which includes a sentence of two years and six months’ imprisonment on charge 1 was reasonably open.
Cumulation of part of the sentences for theft of electricity and trafficking
The appellant also submitted that as charges 1, 2 and 3 arose from conduct on the same two properties, the judge’s orders for cumulation of three months’ imprisonment on each of charges 2 and 3, was also excessive. During oral submissions, the appellant conceded that the product of each houses involved a commercial quantity and, as such, the principle of totality would not necessarily be offended by some cumulation in respect of charges 2 and 3.
The submission that the orders for cumulation were excessive cannot be sustained. The offence of commercial cultivation of a narcotic plant and the offence of theft of electricity are commonly found to arise from the same set of facts and orders for cumulation on the charges of theft of electricity are not unusual.[98] What is less common is the combination of sentences for those offences with a sentence for the offence of trafficking.
[98]See, eg, Bui [2015] VSCA 313; Nguyen v The Queen [2013] VSCA 63.
I would adopt as apposite to the present case, the observations made in Nguyen v The Queen[99] by Kaye AJA (as his Honour then was), with whom Redlich and Whelan JJA agreed,[100] as to the significance of orders of cumulation of terms of imprisonment for theft of electricity upon a sentence of cultivating a narcotic plant in a commercial quantity The thefts were sophisticated, and premeditated. They were for the purposes of undertaking an enterprise, the motive for which was greed. The thefts increased the profitability of the illicit enterprise and were also designed to conceal the enterprise from detection. The principles of denunciation and general deterrence were therefore of significance.
[99][2013] VSCA 63.
[100]Ibid [23]–[24].
In respect of charge 4, the appellant submits that 6 months cumulation of that sentence was excessive in light of his absence of prior convictions and because his conduct arose against the background of charge 1. I reject that submission. The appellant’s engagement in trafficking indicated more expansive involvement than cultivation alone. It was a discrete offence. As such, the appellant’s trafficking in addition to the other offences with which he was charged served to emphasise that general deterrence and denunciation loomed large in the sentencing synthesis. The orders of three months cumulation of each of the sentences of electricity and six months’ cumulation on the trafficking charge was well within a sound exercise of the sentencing discretion and did not offend the principle of totality. Those orders did not result in a total effective sentence that was excessive.
The contention that the non-parole period was excessive is also without substance. Although there is no usual ratio between the head sentence and the non-parole period, sentencing practice shows that ratios ‘between 60 and 66% and up to 75% of the head sentence are not regarded as uncommon’.[101] Sentencing practice provides a guide for the sentencing judge as to what ratio may be appropriate.[102] It bears noting that the non-parole period imposed in the instant case was approximately 72 per cent of the total effective sentence. That ratio is far from unusual.
[101]Romero v The Queen (2011) 32 VR 486, 493 [25].
[102]Kumova v The Queen (2012) 37 VR 538, 541 [11] (Nettle JA), 546 [30] (Redlich and Osborn JJA).
In Ashdown Maxwell P emphasised that the Court has a responsibility to ‘ensure that, in the exercise of the sentencing discretion, sentencing judges are “maintaining adequate standards of punishment” within those parameters’[324] set by the legislature.
[324]Ashdown (2011) 37 VR 341, 356 [41]. In particular Maxwell P relied upon several unanimous judgments of this Court including OJA (2007) 172 A Crim R 181 (see [221] above), R v AB [No 2] (2008) 18 VR 391 (see [223] above), DPP v CPD (2009) 22 VR 533, DPP v DDJ (2009) 22 VR 444.
Ashley JA in Ashdown relevantly agreed with the multiple criteria identified by Redlich JA.[325] However, Ashley JA went on to say that he could not agree with Redlich JA that ‘this court is empowered to pass upon that subject [the adequacy or otherwise of CSP for a particular offence] where the issue is not alive between the parties … the issue must be one calling for resolution in the course of the court disposing of the rights of the parties to the appeal’.[326]
[325]Ashdown (2011) 37 VR 341, 399 [169]. He indicated expressly that he agreed with what Redlich JA said at [180]. See [222]–[223] above.
[326]Ibid.
An alternative reading of Werry
As Whelan JA has noted,[327] the judgment in Werry reflects, at least to some extent, the concerns expressed by Ashley JA in Ashdown. The Court in Werry may have interpreted Ashley JA’s remarks in Ashdown as supporting the view that the jurisdiction of this Court to consider the adequacy of CSP was dependent upon the requirement that there be a ‘matter’, in the constitutional sense. For the reasons I have given, I consider that requirement to be wrong.
[327]See below [257].
I agree with Whelan JA[328] that what may have been intended by Ashley JA in Ashdown is that the issue of the adequacy of CSP must, in a general sense, be a live issue between the parties on the appeal and one that the Court is required to address in that context. It is not necessary that an answer to that question in itself be determinative of the disposition of the appeal. In my view, in the context of Director’s appeals, the inadequacy of CSP is perhaps best seen in the context of reinforcing an otherwise viable allegation that the particular sentence imposed was manifestly inadequate.[329] It is for this reason that one would expect to see an allegation with respect to the inadequacy of CSP as one of many particulars of the ground of manifest inadequacy and not, as in Werry, a stand-alone separate ground.[330]
[328]See below [250].
[329]With respect to prisoner’s appeals, see [157]–[158] above.
[330]As noted at n 193 above the allegation that CSP is inadequate for rape appeared as both a particular to the ground of manifest inadequacy and as a separate stand-alone ground of appeal.
I consider that it is open to interpret the reasoning of the Court in Werry, not as reflecting the constitutional strictures of the meaning of ‘matter’ but rather as endorsing the proposition that, on a Director’s appeal, the question of the adequacy of CSP is properly raised where it is a live issue on the appeal in the sense that it reinforces, as a supporting particular, a ground of manifest inadequacy of the particular sentence imposed. On this alternative reading of Werry, the question of
the adequacy of CSP is properly raised within the confines of the proceeding being an ‘appeal against sentence’ within the meaning of s 287 of the Criminal Procedure Act for this Court to determine pursuant to s 289 of that Act.
WHELAN JA:
I have read in draft the reasons of Redlich JA. I agree for the reasons given by Redlich JA that the appeal should be dismissed. I also agree that there is a need to correct current sentencing practice for the offence of cultivation of a commercial quantity of a narcotic plant, and that this is an appropriate occasion to provide a warning that, in the future, sentencing courts should, by increments, increase the sentences to be imposed for such offending in the middle category of seriousness. This will inevitably also affect the sentences in the high category of seriousness. I wish to give my own reason for reaching these conclusions concerning current sentencing practice.
The problem with current sentencing practice as revealed in this appeal
Over six years ago this Court made observations to the effect that current sentencing practice for this offence was difficult to reconcile with the statutory maximum penalty and with the quantity based regime for drug offences, the significance of which had been explained by this Court in Pidoto.[331] Those observations were made by the President, with whom Buchanan JA agreed, in Nguyen v The Queen (‘Nguyen 2010’).[332] Somewhat similar observations were made by Redlich JA and I more recently in Bui.[333]
[331](2006) 14 VR 269.
[332](2010) 208 A Crim R 464.
[333][2015] VSCA 313.
In Pidoto, this Court held that, given the quantity based scheme of the legislation, there was no place in sentencing for a consideration of the relative harmfulness of particular drugs. This conclusion ought to have had particular
significance for cannabis offences because sentencing judges prior to Pidoto had proceeded at times on the erroneous assumption or preconception that for the purposes of sentencing cannabis could be treated as inherently less harmful than other drugs and that cannabis offences were less serious as a consequence. In Pidoto this approach was held to be erroneous.[334]
[334]Pidoto (2006) 14 VR 269, 279 [45]–[46], 283 [63]–[65]. This did not mean, of course, that a sentencing judge could not act on evidence of the harm caused by particular conduct: 278 [43].
When the President granted this appellant leave to appeal, he did so on the basis that manifest excess was arguable only because the appellant was able to point to sentences which were similar or lower than that imposed on him involving much greater quantities of narcotic plants. The President referred to Latif,[335] McGrath,[336] and Barton.[337]
[335][2013] VSCA 51.
[336][2015] VSCA 176.
[337][2013] VSCA 360.
In due course, on the appeal, the appellant particularly relied upon McGrath.
In addition to Latif, McGrath and Barton, in the course of the appeal particular reference was made to three other judgments of this Court concerning sentences for this offence, being Nguyen 2010, Bui and another case named Nguyen v The Queen[338] (‘Nguyen 2013’). Redlich JA has set out the facts of those cases and I will not repeat that description.
[338][2013] VSCA 63.
A consideration of those six Court of Appeal judgments reveals that the sentences for the specific offence on an offender who did not obtain a discount for a guilty plea (Nguyen 2013) and an offender with a prior conviction for very similar offending (Bui) were five years’ imprisonment (Nguyen 2013) and four years six months (Bui). The other sentences are all within a band of between two years and three years six months’ imprisonment. The offenders in Nguyen 2010 and McGrath were principals.[339] They received sentences of three years and two years six months’ imprisonment respectively. The offender in Barton was a person acting alone and partly for his own use, and one offender in Latif (Azmi) was a person I would describe as a ‘functionary’. They received sentences of two years (Barton) and two years four months’ (Azmi in Latif) imprisonment respectively. The difference in sentence between them and the two principals is narrow. A consideration of the comparable mitigating factors in the six cases does not seem to explain the close correlation in the sentences.
[339]The offender in Nguyen 2010 was clearly a principal. The offender in McGrath was not expressly characterised as a principal. He was involved in cultivation at three locations. One was at his own house in Spotswood. A hydroponic set-up with an electrical bypass was found there, with eight seedlings and two bags of cannabis. He admitted that this was his second crop at that location. The second location was at a factory in Williamstown which was leased by the offender and which police gained entry to using a key he had provided. The third location was two adjoining factories in Laverton with a sophisticated hydroponic system. The offender was said to have been paid $6,000 for his assistance in the Laverton enterprise. Across the three locations police seized a total of 175 plants. The sentencing judge characterised the offender’s role as ‘limited’ with respect to the Laverton property, ‘significant’ with respect to Williamstown, and described Spotswood as ‘of [his] own creation’.
The appellant also relied upon the report of the Sentencing Advisory Council published in March 2015 entitled ‘Major Drug Offences: Current Sentencing Practices’ (‘the Drug Offences Report’).[340]
[340]Above n 3.
The Drug Offences Report identifies two relevant ‘clusters’ of cases of commercial cultivation over the period 2008–9 to 2012–13. In the first cluster of 201 cases (‘Cluster 1’) most of the offenders ‘had a house-sitter role or an ancillary role’. For want of a better word, I refer to offenders of that type as ‘functionaries’. They were typically involved for a short period of time, were more likely to be youthful offenders, and were less likely to have prior convictions. The median term of imprisonment for Cluster 1 cases was two years. In the second cluster of 202 cases (‘Cluster 2’) the great majority of offenders had played what the report refers to as a ‘principal/proprietor role’. Typically, the period of offending was longer, the offenders were likely to be older, and the offenders were likely to have a criminal history. The median term of imprisonment for Cluster 2 cases was three years.
The respective medians for each of the two clusters in the Drug Offences Report seem low given the maximum penalty for the offence of 25 years. The difference between the cluster of cases where the great majority of principals are to be found and the cluster where the great majority of functionaries are to be found is narrow.
The six Court of Appeal cases and the Drug Offences Report raise an obvious concern both as to the level of sentences being imposed on principals and the differentiation between principals and functionaries.
The respondent Director in a separate written submission filed in the appeal on the issue of current sentencing practice addressed a number of sentences imposed in the County Court[341] to make good the proposition that ‘crop sitters’ have received sentences above the sentence imposed on the principal in McGrath, and equal to the median of the Cluster 2 sentences in the Drug Offences Report.[342] The Director’s submission also identified the highest sentences imposed for the offence in each year from 2012 to 2015. The highest sentence in 2012 was the sentence which was the subject of Nguyen 2013. The individual sentence on the relevant count was five years. The highest sentence in 2013 was a County Court sentence where a sentence of five years two months’ imprisonment was imposed.[343] The highest in 2014 was again a County Court sentence[344] where a sentence of five years three months’ imprisonment was imposed, and the highest sentence in 2015 was a County Court sentence[345] where a sentence of five years three months’ imprisonment was again imposed.
[341]DPP v Nguyen (Unreported, County Court of Victoria, Judge Ryan, 1 May 2014); DPP v Nguyen (Unreported, County Court of Victoria, Judge Wilmoth, 4 February 2015); DPP v Do (Unreported, County Court of Victoria, Judge Wilmoth, 27 May 2015); DPP v Viel (Unreported, County Court of Victoria, Judge Meredith, 23 October 2015); DPP v Patience [2013] VCC 688; DPP v Walker [2014] VCC 1304; DPP v Pham [2015] VCC 442.
[342]The three year sentence imposed in DPP v Nguyen (Unreported, County Court of Victoria, Judge Ryan, 1 May 2014) was cited as an example.
[343]DPP v Patience [2013] VCC 688. The Director’s submission incorrectly states the sentence was five years three months imprisonment.
[344]DPP v Walker [2014] VCC 1304.
[345]DPP v Pham [2015] VCC 442.
The Director appended to the written submission on current sentencing practice three tables. Table A set out abbreviated details of 31 sentences which had been the subject of judgments in this Court ordered by quantity. Table B set out the same sentences ordered by length of sentence. Table C set out abbreviated details of seven sentences for the offence of cultivation of a large commercial quantity of a narcotic plant. The range of sentences in Table C was from six years to eight years six months (ignoring a sentence of two years on an offender who had been a ‘crop sitter’ for one day). Table B revealed upper sentences of five years and the presence of a range of offenders (principals and functionaries) in the range of two years to three years’ imprisonment.
The Director’s argument, as finally articulated in oral submissions, was that the sentences for mid-range offending, of which this was an instance, had become compressed into a narrow band between two and a half and three years’ imprisonment. It was submitted that sentences of ‘around the five year mark’ for offending in the upper range had had the effect of ‘squashing down’ the sentences for mid-range offending. The sentences in the upper range were themselves at that level, so it was submitted, because sentences imposed for offending involving large commercial quantities were around the eight year mark. It was submitted that a correction by this Court of current sentencing practice in relation to mid-range offending would inevitably have some effect on high range offending but that the Director was not making submissions directed towards offending other than offending of the mid-level character which had occurred in this case. It was submitted that the inappropriate ‘compression’ of sentences for mid-ranging offending had led to the fact that such sentences overlap with sentences for offenders in a lower category, those whom senior counsel for the Director described as ‘crop sitters’. In that context it was submitted that there had been consistent error in the manner in which mid-range offences had been treated and that the objective seriousness of mid-category offending had not been correctly addressed.
The Law Institute of Victoria and the Criminal Bar Association in their written submission emphasised the shortcomings of statistical analyses of sentences, citing in that regard Wong[346] and Pham.[347] The focus of their oral submission was on that issue and the issue of whether this was an appropriate occasion for the Court to express a view as to the adequacy of current sentencing practice.
[346](2001) 207 CLR 584, 608 [66].
[347](2015) 325 ALR 400, 403 [15].
As the Law Institute of Victoria and the Criminal Bar Association submitted, analysis of sentences on a statistical basis or by reference to tables with abbreviated details has significant limitations. But in this appeal the tables and the statistics merely confirmed and fortified the conclusion emerging from a consideration of the particular cases to which I have referred. That is that the range of sentences being imposed for offences of mid-category seriousness is both too low and too narrow. Current sentencing practice does not reflect the objective seriousness of mid-category offending and reveals persistent error in the sentencing of mid-category offenders. The absence of clear differentiation between principals and functionaries is one consequence of these shortcomings.
Is this appeal an appropriate occasion to provide a warning that sentences should be increased in the future?
In Ashdown this Court addressed in some detail the circumstances in which it was appropriate for an appellate court to express a view about the adequacy of current sentencing practices.[348] Whilst the three judges who constituted that Court were all agreed that in that particular case it was not appropriate to express such a view, their reasons were different.
[348](2011) 37 VR 341.
Maxwell P considered that a function of the Court of Appeal is to ensure that, in the exercise of sentencing discretion, sentencing judges maintain adequate standards of punishment within the parameters fixed by maximum penalties, as determined by Parliament.[349] If it is apparent that current sentencing practices do not adequately reflect the guidance provided by the maximum then it is both appropriate and necessary for the court to say so, for the guidance of sentencing courts.[350]
[349]Ibid 356 [41].
[350]Ibid 352 [32].
Redlich JA disagreed with the President in relation to the significance of the maximum penalty in this context, concluding that a gap between current sentencing practice and the maximum penalty had never by itself been identified as a basis in law upon which to express an opinion as to the adequacy of current sentencing practice.[351] The gap between current sentencing practice and the maximum penalty was, in Redlich JA’s view, a relevant consideration, but some other factor must be present which brings the case within the principles that govern appellate intervention.[352] As to those principles Redlich JA emphasised the Court of Appeal’s overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing for a particular offence or category of offence.[353] He set out the following list, which was not exhaustive, of circumstances in which appellate courts, had, and should continue to, express a view as to the adequacy of current sentencing practice:[354]
[351]Ibid 406 [190].
[352]Ibid 406–7 [192].
[353]Ibid 413 [215].
[354]Ibid 403 [180], 404 [184] (citations omitted).
(1)Where there has been an increase in the statutory maximum penalty and [current sentencing practice] has failed to reflect that increase.
(2)Where there is evidence that an offence has become more prevalent.
(3)Where community expectations have altered.
(4)Where there has been increased community disquiet over the offence.
(5)Where there has emerged a better understanding of the consequences for the victim of the offending conduct.
(6) Where there has been a persistent error in the manner in which a category of offenders has been treated.
(7)Where the objective seriousness of particular conduct has been wrongly categorised or a particular type of sentencing disposition is not ordinarily appropriate.
Redlich JA expressed the view that the court’s ability to provide guidance on the adequacy of current sentencing practice is not confined to those occasions where it would be determinative of the appeal,[355] and that the Crown is not precluded from raising for the first time on either an offender’s appeal or a Crown appeal the issue of whether current sentencing practice is adequate.[356]
[355]Ibid 407 [193], 408 [198]–[199].
[356]Ibid 412–13 [213].
Ashley JA expanded on the concerns expressed by Redlich JA as to reliance on maximum penalties in this context.[357] As to the circumstances in which the court might properly express a view as to the adequacy of current sentencing practice, Ashley JA agreed with Redlich JA’s non-exhaustive list.[358] Ashley JA, however, expressed strong views in relation to the circumstances in which it would be proper to entertain a review on appeal of current sentencing practice directed towards a statement of general import that that practice was inadequate. Ashley JA was concerned to emphasise that the court should not address issues for a purpose other than ‘disposing of the controversy before the court’.[359] The question must be a ‘live issue between the parties’.[360] Whilst Ashley JA recognised that an appellate court for the purpose of deciding a controversy before it could state a principle of more general application,[361] the court had no jurisdiction, in Ashley JA’s view, to enter into an examination of current sentencing practice in circumstances where the issues on the appeal had in fact already been decided, an error which Ashley JA considered had been made by this Court in Winch.[362] Ashley JA expressed the view that the Crown should not be permitted to address current sentencing practice in this way if the issue was being raised for the first time on appeal.[363]
[357]Ibid 382–93 [151](19)–(30).
[358]Ibid 399 [169].
[359]Ibid 374–6 [151](9).
[360]Ibid 376–7 [151](10).
[361]Ibid 377 [151](12).
[362]Ashdown (2011) 37 VR 341, 379–81 [151](15)-(16).
[363]Ibid 379–81 [151](16).
What Ashley JA said in Ashdown could be interpreted as suggesting that the court should not address current sentencing practice in this context unless it is determinative of the appeal. I do not interpret what he said in that way. He was concerned to emphasise that the matter must be a live issue between the parties on the appeal and must be an issue that the court is required to address in that context. Given this Court’s strong reluctance to impose a sentence on an offender by reference to a different standard to that which applied when he pleaded guilty, a requirement that current sentencing practice cannot be addressed in this way unless it is determinative of the appeal would, as a practical matter, mean that the issue could rarely, if ever, be addressed at all. It seems to me clear from Ashley JA’s reasons that he was not suggesting that that was the position.[364]
[364]Ibid 399 [168].
Before turning to the relevant decisions of this Court since Ashdown, reference should be made to two prior decisions, being R v AB (No 2)[365] (‘AB (No 2)’) and Winch.
[365](2008) 18 VR 391.
In AB (No 2) this Court held that a trial judge who had imposed a sentence for manslaughter greater than that indicated by current sentencing practice had been entitled, and indeed bound, to do so because current sentencing practice had not responded to an increase in the maximum penalty for the offence. Whilst the width of the relevant guidance to be obtained from AB (No 2) is controversial,[366] otherwise that decision is uncontroversial.
[366]See Ashdown (2011) 37 VR 341, 351–2 [30]–[32] (Maxwell P) cf 387–93 [151](26)–(30) (Ashley JA).
In Winch observations of general import in relation to a particular category of the offence of recklessly causing serious injury were made by Maxwell P and Redlich JA. Ashley JA dealt with the appeal without addressing that issue.[367]
[367]Winch (2010) 27 VR 658, 670 [60], 671–2 [68]–[69].
Turning then to relevant decisions of this Court since Ashdown, the first is Werry.[368]
[368](2012) 37 VR 524.
In Werry the Director appealed a rape sentence. The Director did not press for the sentence to be increased but instead approached the appeal as a ‘vehicle’ in order to invite the court to address the adequacy of current sentencing practices for rape.[369] In a judgment of five judges this Court disapproved of the Director’s approach in emphatic terms. This was not a case where the Director was seeking to raise current sentencing practice for the first time on appeal. The DPP had in fact adopted the kind of approach which had been foreshadowed by Ashley JA in Ashdown in submitting on the plea that current sentencing practice for rape was inadequate. On the appeal, the Director did not seek an increased sentence, notwithstanding the submission which had been made on the plea. The fact that the Director did not seek the imposition of a ‘different’ sentence was seen as fatal to the adoption of the approach for which he was contending. The court said:[370]
There is either a good case to be made for significantly increasing a sentence imposed at first instance upon a particular offender, or there is not. In a broader sense (and by analogy with basic constitutional principle), the jurisdiction of this court is engaged only when there is a ‘matter’ before it that is properly capable of giving rise to the exercise of judicial power. An appeal against sentence should not be brought essentially as an excuse to have this court determine matters of an abstract nature, important though they may be. It must be clear, before the jurisdiction of this court is invoked, that nothing in the nature of an advisory opinion is being sought, but rather a resolution of a dispute between the actual parties to the case.
Nothing set out above in any way casts doubt upon the proposition that this court is perfectly entitled, in an appropriate case, to express its views as to the adequacy of current sentences for this, or any other offence. It is the role of this court to lay down principles for the governance and guidance of courts having the duty of sentencing convicted offenders. However, that task must be approached with caution and performed with great care. We emphasise that it should be carried out only where it is appropriate to do so.
[369]Ibid 526 [7].
[370]Ibid 536–7 [62]–[63].
The Court endorsed in a footnote what had been said by Redlich JA in Ashdown where he had set out his non-exhaustive list.[371]
[371]Ibid 537 n 28. The footnote is not precisely correct. I do not read Maxwell P in Ashdown as having expressly agreed with Redlich JA on the passages cited and Ashley JA agreed on paragraphs 180 and 184 not 181 to 183 as well. Maxwell P was a member of the Court in Werry. In substance, what Redlich JA said at 180 to 184 can be treated as having been generally adopted.
In my view the judgment of the five member bench in Werry reflects, at least to some extent, the concerns expressed by Ashley JA in Ashdown. The issue must arise in the context of a ‘matter’ which is before the court on the appeal in the sense that an appeal cannot be used as an ‘excuse’ or as a ‘vehicle’ to determine issues which are in fact extraneous to the dispute before the court.
The next relevant decision is Hogarth.[372] This was another case where the Director had given notice of an intention to contest current sentencing practice.[373] Like AB (No 2), this was a case where it was said that there had been a failure to properly respond to an increase in the maximum penalty. The offence in issue in Hogarth was a particular form of aggravated burglary. Hogarth was an offender’s appeal. The Director did not contend that any elevated sentencing standard should be imposed on the appellant. In Hogarth the court, constituted by the President, Neave JA and Coghlan AJA (as he then was) said:[374]
It is now well established that it is a proper function of this court, in an appropriate case, to express an opinion about the adequacy of current sentencing practices for a particular offence and, when current sentencing practices are found to be inadequate, to indicate that they should be uplifted. In Ashdown, Redlich JA identified a number of circumstances in which intermediate courts of appeal had decided that it was both necessary and appropriate to do so. One such circumstance is where the objective seriousness of particular conduct has been wrongly categorised.
A key indicator of the objective seriousness of an offence is the maximum penalty fixed by Parliament. As Maxwell P pointed out in Ashdown, this court in a series of unanimous decisions has recognised the scope which exists for conflict between the guidance afforded to sentencing judges by the maximum penalty for an offence and the guidance afforded by current sentencing practice for that offence. A sentencing judge is, of course, obliged to take both considerations into account in determining an appropriate sentence.
[372](2012) 37 VR 658.
[373]It seems that a ‘global’ challenge was foreshadowed and then withdrawn but the Court nevertheless held it was appropriate to address the issue: Hogarth (2012) 37 VR 658, 660 [6].
[374]Hogarth (2012) 37 VR 658, 671 [48]–[49] (citations omitted).
A little later the court said:[375]
As this Court has said previously, where there is a conflict between the guidance afforded by the maximum penalty and that afforded by current sentencing practices, it is the maximum which must prevail.
Amongst the cases cited in support of that proposition was AB (No 2).
[375]Ibid 674 [61] (citations omitted).
In CJA[376] the Court observed in passing when dealing with a Director’s appeal against sentence on incest charges that there may be a serious question about whether current sentencing practices for that offence were adequate. The Court, constituted by the Chief Justice, Neave and Redlich JJA, observed that if there had been ‘an increased prevalence of the offence, changed community expectations, or a more informed understanding of the impact of the offence upon victims’, a review of current sentencing practice would be warranted ‘subject to what was said in Werry’.[377]
[376][2013] VSCA 18.
[377]Ibid [36].
The capacity of sentencing judges to entertain arguments as to the adequacy of current sentencing practice was dealt with by this Court in Anderson.[378]The Court, constituted by Redlich, Weinberg and Harper JJA, said:[379]
Implicit in the requirement of a principled basis for declaring current sentencing practices inadequate is the recognition that idiosyncratic views have no place in the sentencing process. After all, current sentencing practices are the reflection of the product of the sentencing discretion in numerous cases by numerous judges. As counsel for the respondent acknowledged on the hearing of the appeal, a sentencing judge must take current sentencing practices into account to the full extent that the law requires. Unless the case can be brought within a recognisable ground for departing from current sentencing practices, a sentencing judge is not at liberty to disregard such practices or qualify the degree to which they should be given effect. Current sentencing practices for a category of the offence must guide the range of sentences available for that category of the offence.
[378][2013] VSCA 138.
[379]Ibid [24].
It seems to me that any attempt to argue the adequacy of current sentencing practice before a sentencing judge, as Ashley JA had proposed in Ashdown, would encounter significant obstacles given what was said in Anderson, except in the specific circumstances dealt with in AB (No 2).
The last case to which reference might be made is Harrison.[380] In that case this Court, constituted by Maxwell P, Redlich and Tate JJA, considered an offender’s appeal on sentence after a conviction for negligently causing serious injury. The offence had occurred whilst driving a motor vehicle. The Court referred to this category of offence as ‘NCSI by driving’. The Court was invited to express a view as to current sentencing practice in relation to this category of offence and it did so. In relation to the circumstances in which an appellate court could properly express a view about the adequacy of current sentencing practice, the Court said:[381]
In an appropriate case, an intermediate appellate court may express an opinion about the adequacy of [current sentencing practice] for a particular offence and, if it is found to be inadequate, may indicate that in the future sentences should be increased. In this way, inadequacies in sentencing can be addressed within the judicial process itself. The system is self-correcting, as it should be.
[380][2015] VSCA 349.
[381]Ibid [89] (citations omitted).
The Court then quoted Redlich JA’s non-exhaustive list from Ashdown and continued:[382]
If the Crown is able to bring itself within one of those categories, the Court may then pass comment on the adequacy of [current sentencing practice] in order to ‘ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing for a particular offence or category of that offence’. In both Winch and Hogarth, the Court concluded that [current sentencing practice] was inadequate in respect of a category of the relevant offence. As noted earlier, the Director invites the Court to take a similar course in the present case.
[382]Ibid [91] (citations omitted).
Harrison was another case where there had been increases in the maximum penalty, the last of which was an increase from 5 years’ imprisonment to 10 years’ imprisonment. After referring to statistical material and tables of sentences produced to the Court, the Court observed:[383]
This material demonstrates very clearly that, despite the increase in the maximum to 10 years, sentences for NCSI by driving — including for cases in the upper range of seriousness — have remained clustered at and under an upper limit of four years’ imprisonment. This is a surprising state of affairs.
[383]Ibid [105].
The court went on to hold that current sentencing for NCSI by driving did not reflect the increased maximum penalty for the offence.[384] Later, after referring to the ‘mechanisms’ by which sentencing courts may resolve tension between current sentencing practice and an increased maximum penalty, the Court said:[385]
But, as was explained in Ashdown, it will be necessary for this Court to provide guidance to sentencing courts where inadequate sentencing practice has become so established that sentencing courts are reluctant to depart from that practice. As Redlich JA concluded in Ashdown:
[T]he expression of such an opinion is part of the court’s overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing for a particular offence or category of that offence.
[384]Ibid [113].
[385]Ibid [135] (citations omitted).
Before turning to the application of these principles to this appeal, it is useful to recall the role that maximum penalties ought to play in the sentencing process.
In Markarian v The Queen Gleeson CJ, Gummow, Hayne and Callinan JJ observed:[386]
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. …
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
[386](2005) 228 CLR 357, 372 [30]–[31].
These observations were not new. In Mallinder v The Queen Vincent J had said:[387]
[I]n circumstances where a maximum penalty is fixed by statute, and accordingly the relative seriousness with which proscribed behaviour may be viewed by the courts has been determined by the legislature, the sentence which is imposed in any given case must bear some relationship to the seriousness with which the class of offences is to be viewed generally, and to the relative seriousness of the actual conduct engaged in by the offender within the context of the kinds of behaviour encompassed by that class.
[387](1986) 23 A Crim R 179, 186.
For the purposes of this appeal, the authorities to which I have referred seem to me to give rise to the following position:
(1)Redlich JA’s non-exhaustive list in Ashdown has been generally accepted. Amongst the circumstances in which an intermediate appellate court can, and should, express a view as to the adequacy of current sentencing practice are where there has been persistent error in the manner in which a category of offender has been treated and where the objective seriousness of particular conduct has been wrongly characterised.
(2)The question of the adequacy of current sentencing practice can be raised for the first time on appeal. Generally, it would not be appropriate to raise such an issue before a sentencing judge. An increase in the maximum which had not been reflected in current sentencing practice would be one circumstance where a sentencing judge could address the adequacy of current sentencing practice. But otherwise sentencing judges should take current sentencing practice as it is into account.
(3)An elevated sentencing standard would not normally be imposed upon an offender who had pleaded guilty and so, in that context, the issue does not need to be determinative of the appeal.
(4)The issue of the adequacy of current sentencing practice must be a ‘live’ issue between the parties. The appeal cannot be used as a ‘vehicle’ or as an ‘excuse’ to ventilate the issue.
(6)The court should be cautious and careful before entertaining an argument concerning the adequacy of current sentencing practice.
(7)A failure of current sentencing practice to reflect an increase in the maximum penalty is a proper basis for an intermediate appellate court to find that current sentencing practice is inadequate. Otherwise, disconformity between the maximum penalty and current sentencing practice, alone and without more, would not be an appropriate basis for a conclusion to be reached that current sentencing practice was inadequate. Such a disconformity may, however, be indicative of the existence of persistent error or of a failure to properly characterise the objective seriousness of particular conduct given the role that the maximum penalty ought to play as a ‘yardstick’ in sentencing dispositions.
In this case current sentencing practice was a ‘live’ issue between the parties. It was the reason leave to appeal was granted. It was necessary to address current sentencing practice in detail in order to decide the issue between the parties on the appeal.
The inquiry which it was necessary to undertake for the purpose of deciding the issues between the parties to this appeal revealed that current sentencing practice was inadequate. The sentence which was the subject of the appeal was itself a manifestation of the inadequacy of the current sentencing practice. In the circumstances it was appropriate for this Court to reach that conclusion and to express it in the terms set out in the judgment of Redlich JA.
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