Nipoe v The Queen
[2020] VSCA 137
•29 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0057
| SEHWHY NIPOE | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2018 0257 | |
| SAM TEAH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, NIALL and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 February 2020 |
| DATE OF JUDGMENT: | 29 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 137 |
| JUDGMENT APPEALED FROM: | DPP v Nipoe [2018] VCC 1854 (Judge Hogan) DPP v Teah [2018] VCC 153 (Judge Cohen) |
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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – Parity – Attempt to possess border controlled drug (2 charges: charge 1 – marketable quantity, charge 2 – commercial quantity) – Sentenced to 8 years on charge 1, 9 years on charge 2 – Total effective sentence 15 years, non-parole period 11 years – Whether manifestly excessive – Whether sentence on charge 2 insufficiently differentiated applicant from co-offender – Whether sentence on charge 1 impermissibly took into account s 6AAA declaration in relation to co-offender – Error conceded – Whether different sentence should be imposed – Leave granted – Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Parity – Attempt to possess marketable quantity of border controlled drug – Plea of guilty - Sentenced to 6 years and 6 months’ imprisonment, non-parole period of 3 years and 10 months – Co-offender pleaded not guilty – Sentenced to 8 years’ imprisonment – Whether insufficient differentiation in sentence – Serious offending – Late plea of guilty – No greater differential required – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Nipoe | Ms G F Connelly | Ann Valos Criminal Law |
| For the Applicant Teah | Mr P J Smallwood | Giorgianni & Liang Lawyers |
| For the Respondent | Ms K Breckweg | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA
EMERTON JA:
Introduction
These two applications for leave to appeal against sentence are interrelated. The sentences flowed from convictions arising from two drug importations. The first importation involved both applicants (Sam Teah and Sehwhy Nipoe), along with a third man, Wilson Dahn (Teah’s nephew); the second importation involved Nipoe along with two co-offenders, Augustus Robinson and Raheem Kromah.
On 23 February 2018, Teah was sentenced by Judge Cohen to a term of imprisonment of 6 years and 6 months on a plea of guilty to a single charge of attempting to possess a marketable quantity of a border controlled drug, methamphetamine. A non-parole period of 3 years and 10 months was set.
On 8 November 2018, Nipoe was sentenced by Judge Hogan for two charges of attempting to possess a border controlled drug, methamphetamine. Charge 1 (attempting to possess a marketable quantity) concerned the importation in which Teah was also involved. Nipoe pleaded not guilty and was sentenced to 8 years’ imprisonment on that charge.
Teah complains that, when compared to the sentence imposed on Nipoe for the same offending, his sentence of 6 years and 6 months breaches the principle of parity. On 20 March 2019, a judge of this Court refused Teah leave to appeal. He has elected to have the matter reheard by an enlarged Bench.[1]
[1]Criminal Procedure Act2009 s 315(2) (‘CPA’).
Charge 2 against Nipoe concerned the second importation, which involved the co-accused, Robinson and Kromah.[2] Nipoe pleaded guilty to a charge of attempting to possess a commercial quantity of methamphetamine. He was sentenced by Judge Hogan to 9 years’ imprisonment. The co-accused were both sentenced by Judge Dean on 21 December 2017.
[2]A fourth accused, David Singbeh, was acquitted.
Nipoe contends that Judge Hogan erred in relation to the sentence imposed: (a) on charge 1, by impermissibly having regard to the s 6AAA statement given by Judge Cohen in relation to Teah; (b) on charge 2, by offending the principle of parity having regard to the sentence imposed by Judge Dean on Robinson; and (c) because, when the sentences on charge 1 and charge 2 are combined,[3] the total effective sentence and non-parole period are manifestly excessive.
[3]The judge in effect made 2 years of the sentence in respect of charge 2 concurrent with the sentence on charge 1.
Because Nipoe’s application for leave to appeal relates to both charges, one of which is unrelated to Teah, we will consider his application first.
Nipoe application
Nipoe was sentenced as follows:
Charge
Offence
Maximum Penalty
Sentence
Cumulation/Concurrency
1 Attempt to possess a marketable quantity of an unlawfully imported border controlled drug
(ss 11.1(1) and 307.6(1) Criminal Code (Cth))25 years 8 years 6 years 2 Attempt to possess a commercial quantity of an unlawfully imported border controlled drug
(ss 11.1(1) and 307.5(1) Criminal Code (Cth))[4]Life imprisonment 9 years Base Total Effective Sentence: 15 years’ imprisonment. Non-Parole Period: 11 years’ imprisonment. Pre-sentence detention declared: 1030 days. 6AAA Statement: Not relevant for charge 1 as the applicant pleaded not guilty to the charge. Charge 2: 10 years’ imprisonment, non-parole period of 7.5 years. [4]The sentence in respect of charge 2 is not relevant to the application of Teah because it relates to separate offending entirely unconnected to Teah.
As noted earlier, there were some significant differences between the two charges, which it is convenient to record immediately:
(a) Nipoe pleaded not guilty to charge 1, but pleaded guilty to charge 2; and
(b) charge 1 related to a marketable quantity of methamphetamine (maximum penalty of 25 years’ imprisonment), whereas charge 2 concerned a commercial quantity of methamphetamine (maximum penalty of life imprisonment).
The first indictment
Charge 1 relates to a suitcase which was sent from Hong Kong to an address in Tasmania, addressed to Paul Sambo. The suitcase contained 55 purses, 20 of which contained methamphetamine. The drugs had a gross weight of 681.7 g, a pure weight of 544.6 g and a wholesale value of between $70,000 and $77,000. The pure quantity represented approximately 73 per cent of a commercial quantity of methamphetamine.
Following the arrival of the suitcase in Australia, Teah (using the pseudonym Paul Sambo) had a number of discussions with persons at the freight company TNT over the telephone. Teah arranged for the suitcase to be redirected to an address in Werribee and an unsuccessful delivery attempt took place on 18 August 2015.
On 19 August 2015, authorities uncovered and seized the drugs. A controlled delivery was arranged. On 20 August 2015, Teah received a call from TNT regarding a redirection fee. That day, Teah sent a text message to Nipoe’s phone stating: ‘Pls call ur boy don .. to call me asap .. we need to pay .. for the post .. just got a call from them.’ In the days leading up to 21 August 2015, there was evidence of significant telephone contact between Nipoe, Dahn and Teah.
On the morning of 21 August 2015, the suitcase was delivered to Werribee. Dahn accepted delivery of the package and delivered it to Nipoe’s home in Truganina, placing it in the garage. Shortly afterwards, police conducted a search of the premises and located the suitcase. By the time that Nipoe arrived with Teah, Dahn had been arrested.
The second indictment
On 16 November 2015, a consignment of eight boxes, each containing a horse statue, arrived in Australia from China. The consignment was addressed to Ismail Muhaidat at an address in Broadmeadows. On examination, the consignment contained 10.941 kg of a crystalline substance, from which 8.634 kg of pure methamphetamine was recovered. This represented approximately 11.5 times the commercial quantity of methamphetamine.
On 23 November 2015, Robinson and Nipoe went to a Bank of Queensland Branch in Werribee and paid just under $5,000 in freight charges relating to the consignment.
A controlled delivery of the consignment occurred on 1 December 2015. The consignment was collected in a courier van driven by Singbeh, an associate of Nipoe, who was recruited that day for the purpose. Robinson instructed Singbeh to drive the van to various locations, stop for a time and then drive to another location. Nipoe and Kromah followed the van in order to determine whether it was under surveillance. The car was intercepted and Nipoe and Kromah were arrested.
Personal circumstances of Nipoe
The judge recorded Nipoe’s traumatic and disadvantaged background before coming to Australia at 17 years of age in April 2005. The judge noted that he was born in Liberia. His mother died in childbirth and he was cared for by his stepmother, who treated him very differently from her own biological children. He has no memory of his father. At three years of age, Nipoe and his family fled to Ivory Coast. At 11 years of age, he fled from that country in an atmosphere of fear and violence, arriving in a refugee camp in Guinea where he spent a number of years in circumstances of privation. He lost his older brother who had been an important influence in his life.
The judge noted that Nipoe completed TAFE studies to year 12, and commenced employment in unskilled work before commencing a spray-painting apprenticeship, which he did not complete. His work history was sporadic and he had not worked since late 2014.
Early in the course of the plea hearing, Nipoe tendered a report dated 31 May 2018 by Ms Alison Mynard, a clinical psychologist. The report referred, in the medical history obtained from Nipoe, to a motor vehicle accident requiring a week of hospitalisation and resulting in a potential brain injury that required further investigation. Subsequently, medical records showed that Nipoe attended hospital for minor injuries from a motor vehicle accident and was discharged that day. In light of the discrepancy between the history given to the psychologist and the medical records, Nipoe disavowed the report and withdrew the tender. The judge said that she did not regard Nipoe as a reliable historian, as it appeared that he had exaggerated the extent of the injuries he sustained in the accident.[5]
[5]DPP v Nipoe [2018] VCC 1854, [62] (‘Nipoe Reasons’).
Before this Court, Nipoe sought to rely on the report of Ms Mynard. No objection was taken by the respondent to this course. In the circumstances, we propose to have regard to the report although we share the judge’s reservations about the reliability of Nipoe’s account.
Nipoe submits that (apart from the material in relation to the car accident) the report contains an accurate history of his life before arriving in Australia, which was accepted by the judge. He also relies on Ms Mynard’s opinion that his exposure to war at an early age, his flight from conflict and losing his brother had traumatised him. In the author’s opinion, Nipoe was suffering from PTSD, anxiety and depression at the time of the offending. She concluded that these underlying issues might trigger risky behaviours, cloud judgment and reasoning and make any incarceration more onerous than it would be for someone without those conditions.
The judge’s reason for sentence
In relation to charge 1, the judge was satisfied beyond reasonable doubt that Nipoe and Teah ‘were equally involved with the arrangement to take possession of the illegally imported methamphetamine’ and that Dahn had a ‘lesser role’ of accepting delivery of the suitcase and transporting it to Nipoe’s garage.[6] Teah’s role was to liaise with the freight company to ensure delivery of the suitcase.[7]
[6]Ibid [18].
[7]Ibid [16].
In relation to charge 2, the judge treated Nipoe as playing a lesser role than Robinson but a greater role than Kromah. In comparing Nipoe’s role with that of Kromah, the judge noted that Nipoe had attended a bank with Robinson one week before the offence, at which time Robinson paid almost $5,000 in freight charges. An analysis of telephone records showed a significant number of calls between Nipoe and Robinson during the critical time on the day of the offending. Nipoe had a prior association with Singbeh and the judge concluded that he was responsible for the recruitment of Singbeh as a driver. Nipoe was, so the judge found, the conduit for Robinson’s directions to Kromah for the purposes of conducting counter surveillance.[8]
[8]Ibid [42].
The judge did not find evidence of remorse or that Nipoe had taken responsibility for his offending. His plea of guilty in relation to charge 2 was, however, taken into account for its utilitarian value.
The judge accepted that Nipoe’s history of trauma had had an enduring and adverse psychological effect on him. The judge was not prepared to find that his difficult background had any causal connection with the offending, noting that she could only presume that the offences ‘were committed for greed.’[9]
[9]Ibid [60].
The judge recorded that the principal sentencing consideration was general deterrence, although there was some need for specific deterrence having regard to the fact that Nipoe was on bail at the time he committed the second offence.[10]
[10]Ibid [84]–[85].
Proposed grounds of appeal
There are three proposed grounds of appeal. They may be paraphrased as follows:
(c) the sentencing discretion miscarried on account of the judge treating the s 6AAA statement in respect of the co-accused Teah as relevant to parity;
(d) the sentence offends the principle of parity when compared to the sentence imposed on the co-offender Robinson on charge 2; and
(e) the total effective sentence and non-parole period are manifestly excessive.
Charge 1: reference to s 6AAA statement
As noted, Teah was sentenced by Judge Cohen in relation to charge 1 to a total effective sentence of 6 years and 6 months with a non-parole period of 3 years and 10 months. In the s 6AAA statement, her Honour declared that she would have imposed a sentence of 8 years and 8 months with a non-parole period of 5 years and 6 months had Teah not pleaded guilty.[11]
[11]DPP v Teah [2018] VCC 153, [76]–[77] (‘Teah Reasons’).
When sentencing Nipoe, Judge Hogan referred to the sentence imposed on Teah in these terms:
On 23 February 2018, Mr Teah was sentenced, after having entered a plea of guilty on 28 August 2017, the date upon which the trial of Mr Teah and yourself was listed to begin. Although Mr Teah’s plea of guilty was a late plea, he still received a reduction in sentence for it. He was convicted and sentenced to six and a half years’ imprisonment with a non-parole period of three years and ten months. A declaration pursuant to s 6AAA of the Sentencing Act (Victoria) was made to the effect that, had it not been for his plea of guilty, the sentence imposed would have been eight years and eight months’ imprisonment with a non-parole period of five years and six months. The principle of parity, requires that like offending should attract a like sentence. Thus, the section 6AAA declaration, in Mr Teah’s case is a relevant consideration in determining the sentence to be imposed upon you, subject to any mitigating factors personal to you.[12]
[12]Nipoe Reasons [20].
Nipoe submits, and the respondent accepts, that this passage reveals error. We agree. In Perri v The Queen, Coghlan JA, with whom Priest and Kyrou JJA agreed, said that a s 6AAA declaration is not a relevant consideration for the fixing of a sentence relating to a co-accused; taking it into account in that way is an error of principle and would be sufficient to vitiate the sentence.[13] That concise statement of principle governs this ground.
[13][2016] VSCA 89, [14]–[15].
We are satisfied that the judge impermissibly had regard to the s 6AAA statement. That is reflected both in the reasons and in the result. In the s 6AAA statement, Judge Cohen said that she would have imposed a sentence of 8 years and 8 months had Teah not pleaded guilty. Nipoe, who stood trial, was sentenced to 8 years’ imprisonment.
Notwithstanding the error, the respondent submits that no lesser sentence should be imposed on charge 1. We shall return to that question after addressing the remaining grounds.
Charge 2: parity with respect to Robinson
On 21 December 2017, Robinson was sentenced by Judge Dean to 11 years’ imprisonment. Nipoe, who was sentenced to 9 years’ imprisonment in respect of the same offence, contends that the proper application of the principle of parity required a greater sentencing differential between them. The basis for this argument is that Robinson played a more significant role in the offending, had other serious offending taken into account under s 16BA of the Crimes Act1914 (Cth) (‘Crimes Act’), and had two prior convictions for dishonesty and aggravated burglary.
It is appropriate to briefly expand on some of those matters. As to role, Robinson was described by the judge who sentenced him as having been engaged at a ‘senior and trusted level’, with a ‘managerial’ role in the receipt of the imported drugs.[14] On the other hand, Nipoe, although found to have played a higher role than the third offender, Kromah, nevertheless played a substantially lesser role than Robinson.
[14]CDPP v Kromah [2017] VCC 2014, [19].
Robinson also asked the judge to take into account other offending, for which he had not been convicted, as permitted by s 16BA of the Crimes Act. Section 16BA applies where a person is convicted of a federal offence and authorises the judge, with the consent of the prosecutor, to take into account other offences for which the convicted person admits his or her guilt. The operation of the provision was explained by this Court when applying Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002.[15] In that case, Spigelman CJ, with whom the rest of the Court agreed, said:
although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.[16]
[15](2002) 56 NSWLR 146; [2002] NSWCCA 518.
[16]Ibid 159 [42]; applied in DPP (Cth) v KMD [2015] VSCA 255, [84] (Maxwell P, Weinberg and Beach JJA).
The offence which Judge Dean took into account for this purpose was a charge of attempting to possess a commercial quantity of an unlawful border controlled drug. The value of those drugs was about one quarter of the value of the drug the subject of charge 2. The judge said that he had regard to that offence in his assessment of the prospects of rehabilitation and the significance of specific deterrence.
There were a number of features which favoured neither Nipoe nor Robinson. Nipoe was on bail during the offending; Robinson was serving a Community Correction Order. While Robinson tendered psychological evidence, Nipoe had similar evidence of a traumatic background with enduring adverse effects. The evidence disclosed that Robinson had developed an alcohol abuse disorder and drug abuse. In neither case was the judge able to make a positive finding as to prospects of rehabilitation.
Principles on parity
Consistency in the application of the law is a fundamental aspect of the rule of law.[17] In a very different context, but in terms that are relevant to discretions generally, Brennan J said that: ‘[i]nconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.’[18] The High Court has observed that:
Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’.[19]
[17]Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; 473 [28]; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ) (‘Green’).
[18]Drake v Minister for Immigration and Ethnic Affairs [No 2] (1979) 2 ALD 634, 639; [1979] AATA 179 (Brennan J).
[19]Green (2011) 244 CLR 462, 473 [28]; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ) (citations omitted). See also Lowe v The Queen (1984) 154 CLR 606, 610; [1984] HCA 46 (Mason J).
Appealable error may be inferred from disparity that is not explained in the reasons for sentence, and the disparity itself may provide a basis for appellate intervention.[20] However, any assessment of an argument based on parity requires this Court to have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders and to recognise that:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.[21]
[20]Green (2011) 244 CLR 462, 475 [32]; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ).
[21]Wong v The Queen (2001) 207 CLR 584, 608 [65]; [2001] HCA 64 (Gaudron, Gummow and Hayne JJ) (emphasis in original), cited in Green (2011) 244 CLR 462, 473 [28]; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ).
The real issue is whether it was reasonably open to the sentencing judge to differentiate, or fail to differentiate, between the co-offenders, having regard to the ‘qualitative and discretionary judgements required’ to arrive at the sentence imposed.[22] It is necessarily a comparative exercise but the process of sentencing is not a mechanical exercise in which the relevant factors must be given a fixed weight, and rarely will two offenders stand in exactly the same position when they fall to be sentenced. As Vincent JA, with whom Brooking and Phillips JJA agreed, said in R v Djukic:
Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigatory factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them.[23]
[22]Green (2011) 244 CLR 462, 475 [32]; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ); McCloskey-Sharp v The Queen [2015] VSCA 87, [17].
[23][2001] VSCA 226, [25].
Application of the principles
Applying those principles here, we are not persuaded that the absence of any greater differentiation between the sentences imposed on Nipoe and Robinson implies that the judge made some legal or factual error in her assessment. Nor are we persuaded that the circumstances compelled a greater degree of differentiation in sentence between the two offenders.
The sentencing differential certainly needed to reflect the greater role performed by Robinson and the other offence that was taken into account under s 16BA. But there was otherwise little difference between them for sentencing purposes. And the sentence imposed on Nipoe had to take account of the fact that he played what the judge characterised as a ‘significant role’ in the offence.[24] There was close contact between him and Robinson, including in undertaking preparatory steps.
[24]Nipoe Reasons [80].
This was very serious offending, involving as it did 11.5 times the commercial quantity of methamphetamine. In the circumstances, the sentence of 9 years imposed on Robinson must be regarded as lenient. The judge was obliged to impose a sentence on Nipoe which was commensurate with the objective gravity of his offending, while appropriately recognising the relevant differences between him and Robinson. Given that the course of the plea resulted in a dearth of evidence to explain the offending or put it in context, we are not persuaded that any greater degree of differentiation was required.
This ground is not made out.
Manifest excess
By this ground, which requires him to establish that the sentence was wholly outside the permissible range, Nipoe contends that the total effective sentence and the non-parole period are manifestly excessive. He submits that the two offences attracted a total effective sentence which is comparable to those imposed for dealings involving vastly greater amounts of border controlled drugs, over longer periods of time, in more senior and trusted roles and, in some cases, with pleas of not guilty.
The respondent submits that the total effective sentence and the non-parole period are well within the permitted range. She points to the following factors:
(f) Nipoe was to be sentenced in relation to two discrete attempts to import border controlled drugs into Australia. Although the method employed was similar, the importations involved different carriers and were separated in time by almost four months. The second offence occurred while Nipoe was on bail for the earlier offence.
(g) On charge 1, Nipoe was found guilty following a trial, and he performed a significant role in the importation, which concerned 544.6 g of pure methamphetamine, representing approximately 73 per cent of a commercial quantity.
(h) On charge 2, the plea was not made at the earliest opportunity, the offence was committed whilst Nipoe was on bail and it involved 11.5 times the applicable commercial quantity. The maximum penalty for the offence was life imprisonment.
(i) The judge was unable to find any significant evidence of remorse on the part of Nipoe, although her Honour recognised the utilitarian value of the guilty plea. The judge assumed, and it was well open to her to do so, that the offending was committed for financial gain motivated by greed.
Analysis
These offences are regarded by the legislature as exceptionally serious ones. As already noted, charge 2 concerned 11.5 times the commercial quantity and attracted a maximum penalty of life imprisonment. Charge 1 had a maximum penalty of 25 years’ imprisonment. The legislative judgment, reflected in these maximum sentences, is that possession of more than the stipulated quantity of border controlled drugs is an extremely grave crime. The seriousness of the crime lies in the damage that the misuse of drugs inflicts on members of the community both directly and indirectly. Sentencing courts are required to have regard to the maximum potential penalty as a signpost as to the seriousness of the offence.
In sentencing for offences of this kind, general deterrence assumes prominence: it is necessary to deter those who might be tempted by the enormous rewards flowing from the illicit trade in illegal drugs. Deterrence is also important to discourage those who might perceive that offending of this kind is difficult to detect and who take the risk in order to realise large financial gains. Giving paramount consideration to general deterrence and denunciation may legitimately result in less weight being given to factors personal to the offender. Those matters in mitigation should never fall from sight, but they must be balanced against the serious nature of the offence.
The respondent submits that the individual sentences are very lenient and reflect a degree of compression in aid of totality and that this explains the high degree of cumulation. For reasons explained below in addressing the application brought by Teah, we cannot accept that analysis. We do not detect in the reasons for sentence any intention to unduly shorten the terms imposed on the individual charges. That said, the individual sentences are very lenient. That is especially so in relation to charge 2, the sentence for which was only one year longer than that imposed on charge 1, yet the quantity of drugs was very substantially greater and the offending was committed while Nipoe was on bail. The individual sentences were far from manifestly excessive.
Although the method of importation in both cases was relatively straightforward, involving the transmission of the drugs through the post, it plainly involved planning and investment. The deployment of counter-surveillance techniques further demonstrates that this was a considered and organised undertaking. It was a very significant factor that Nipoe committed the second offence, involving a much greater quantity of drugs, while he was on bail for the first offence. The judge was unable to make any finding as to rehabilitation. The separate criminality involved in each offence meant that a high degree of cumulation was called for.
An examination of sentences imposed in other cases which, having regard to the quantity of drugs involved, may be considered comparable, suggests that the individual sentences are lenient and that the total effective sentence is consonant with current sentencing practice.[25] We are unable to accept the submission that a total effective term of imprisonment of 15 years for the overall level of criminality involved is out of step with sentencing practices for this type of offending across the Commonwealth.
[25]See, eg, Nguyen v The Queen (2011) 31 VR 673; [2011] VSCA 32; Lau v The Queen [2011] VSCA 324; DPP (Cth) v Masange [2017] VSCA 204; Cuthbertson v The Queen [2019] VSCA 104.
It is not necessary to repeat the survey found in the reasons for judgment of the Court in Director of Public Prosecutions (Cth) v Thomas[26] to reinforce the conclusion that the total effective sentence is within range.
[26](2016) 53 VR 546; [2016] VSCA 237. See also OPQ v The Queen [2012] VSCA 115.
It follows that this ground is not made out.
Disposition
For these reasons, we would uphold only the first ground, which concerns the sentence on charge 1. Success on that ground does not reopen the discretion with respect to charge 2.[27]
[27]Ludeman v The Queen (2010) 31 VR 606; [2010] VSCA 333.
The question which then arises is whether any different sentence should be imposed on charge 1. We are not persuaded that it should. Charge 1 was a very serious instance of the marketable quantity offence, involving as it did almost three quarters of a commercial quantity of methamphetamine. As this Court has said repeatedly, other things being equal, the greater the quantity imported (or possessed) the more serious the offence.[28] Further, Nipoe pleaded not guilty and had little to call in aid by way of mitigation. In those circumstances, we would grant leave to appeal on the first ground, but dismiss the appeal.
[28]DPP (Cth) v KMD [2015] VSCA 255, [4], [52] (Maxwell P, Weinberg and Beach JJA); Gregory (a pseudonym) v The Queen [2017] VSCA 151, [24] (Maxwell P, Redlich and Beach JJA); DPP (Cth) v Brown [2017] VSCA 162, [61] (Maxwell P, Santamaria JA and Beale AJA).
On 13 May 2020, after judgment was reserved in this matter, without leave, Nipoe filed an affidavit referring to the more onerous conditions in prison as a result of COVID-19. We are not persuaded to give leave to rely on that evidence but even if we were it would not result in any different sentence on the appeal.
Teah application
As noted earlier, Teah pleaded guilty and was sentenced to a term of imprisonment of 6 years and 6 months with a non-parole period of 3 years and 10 months. He contends that there was insufficient differentiation between his sentence and the sentence of 8 years imposed on Nipoe for the same offence.
It is necessary to refer briefly to some aspects of the plea made on behalf of Teah. His plea of guilty was entered at a relevantly late stage but had utilitarian value. The judge accepted that his plea evidenced an acceptance of responsibility for his actions, acknowledgement of wrongdoing and was reflective of some remorse.[29]
[29]Teah Reasons [35]–[36].
When compared with Nipoe, Teah was said to have better prospects of rehabilitation and was able to rely on excellent work prospects. He also had the support of a long-term partner and support from within his community. It was said that he was motivated to rehabilitate in the interests of his five-year-old son.[30]
[30]Ibid [45], [53]–[54].
Notwithstanding significant disadvantage in Liberia and an unstable and difficult adolescence, Teah completed year 12 and a three-year TAFE course in chemical engineering. He had become a fully qualified and skilled welder and had excellent character references from his former employer.
Parity
As Nipoe was sentenced approximately nine months after Teah, parity between them was not an issue which fell to be considered by the judge sentencing Teah. It is nevertheless established that a sentencing disparity may arise for consideration due to a subsequent sentence imposed on a co-offender.[31] The respondent accepted that this was so.
[31]See, eg, Postiglione v The Queen (1997) 189 CLR 295, 305 (Dawson and Gaudron JJ) and 342-343 (Kirby J); [1997] HCA 26; Teng v The Queen (2009) 22 VR 706; [2009] VSCA 148; Ngaa v The Queen [No 2] [2015] VSCA 336, [5]–[7] (Whelan, Beach and Kaye JJA).
Teah submits that when proper regard is paid to the differences between himself and Nipoe, there must be a greater difference between the sentences imposed, which can only be achieved by reducing the sentence imposed on him. Teah notes that he pleaded guilty and played a lesser or at least comparable role in the offending. Although Nipoe had no prior convictions, Teah’s past offending was described as ‘not extensive’ and ‘of an entirely different nature’ to the offending in question.[32] They both had severely disadvantaged backgrounds, but Teah had a better work history and superior prospects of rehabilitation.
[32]Teah Reasons [47].
The respondent submits that the 18 month difference in sentence adequately reflects the differences between the two offenders. Although Teah was entitled to a discount for his plea, it was largely utilitarian in nature because it was a late one and the judge was not satisfied that it reflected true remorse. The role played by each co-offender in the commission of the offence was relatively similar.
The respondent also submits that a comparison that is confined to the sentence imposed on Nipoe in respect of charge 1 fails to take into account that Judge Hogan was required to take into account the principle of totality in order to avoid a ‘crushing’ sentence and that this may have resulted in some compression in the individual sentences imposed on Nipoe. Support for that submission was said to lie in the inordinately lenient individual sentences imposed by the judge on the two charges.
In that respect, we note what was said by Weinberg JA in refusing leave to appeal:
In my view, the respondent’s submission that the principle of totality provides the explanation for what might otherwise seem to have been insufficient disparity between the 8 year sentence given to Nipoe, and the 6 year and 6 months’ sentence given to the applicant. It is true, as counsel for the applicant submitted, that there was nothing in the sentencing remarks of the judge who sentenced Nipoe to indicate that her Honour had specifically reduced the sentence imposed on the first charge of which he was convicted, by reason of totality. Nonetheless, it makes perfect sense that her Honour would have done so, and I conclude that she did.[33]
[33]Teah v The Queen (Unreported, Supreme Court of Victoria Court of Appeal, Weinberg JA, 20 March 2019).
The orthodox approach in dealing with multiple charges requires the judge to impose the appropriate sentence on each charge, having regard to the gravity of the offence and the particular circumstances of the offender, and then deal with questions of totality through orders for concurrency or cumulation.[34] In Johnson v The Queen, the High Court described this approach as ‘orthodox, but not necessarily immutable’.[35] In other words, in a given case, departure from the orthodox approach is not necessarily evidence of error.
[34]Mill v The Queen (1988) 166 CLR 59, 63; [1988] HCA 70. See also DPP (Cth) v KMD [2015] VSCA 255 [96]; DPP v Drake [2019] VSCA 293, [25] n 20.
[35][2004] HCA 15, [26] (Gummow, Callinan and Heydon JJ).
With respect to Weinberg JA, we consider it unlikely that Judge Hogan compressed the individual sentences by reference to principles of totality. There is nothing in the sentencing reasons to suggest that her Honour approached sentencing in that unorthodox way. As noted above, the sentence imposed on Nipoe on charge 1 was erroneously influenced by the s 6AAA statement given in relation to Teah, and other factors relating to charge 1, rather than by any overall assessment of the level of criminality revealed by the combination of the two charges.
In our view, there is no basis for appellate intervention on the parity ground. As we have already said, this was a very serious instance of the marketable quantity offence, given the quantity involved. The sentence imposed on Teah had to reflect the objective seriousness of the offending and, because of the need for general deterrence, personal factors were of less significance. The key difference between Teah and Nipoe for sentencing purposes was the former’s plea of guilty. Given that it was a late plea and was found not to reflect true remorse, that difference is adequately reflected in the 18 month sentencing differential. Leave to appeal must therefore be refused.
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