O'Loughlin v The Queen
[2017] VSCA 325
•6 November 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0174
| JACK O’LOUGHLIN |
| v |
| THE QUEEN |
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| JUDGES: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 6 November 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 325 |
| JUDGMENT APPEALED FROM: | DPP v O’Loughlin (Unreported, County Court of Victoria, Judge Ryan, 29 June 2017) |
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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CRIMINAL LAW – Application for leave to appeal against sentence – Applicant sentenced to a total effective sentence of 7 years’ imprisonment with a non-parole period of 5 years – Charges over two indictments including use of false identification information and related offences, trafficking and possession of drugs of dependence (various substances), handling stolen goods, knowingly dealing with proceeds of crime, possession of prohibited weapon and possession of explosives without licence – Offences committed whilst on bail and whilst undergoing Community Correction Order – Whether reasonably arguable that orders for cumulation manifestly excessive – Principle of totality – Cumulation within range – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| On the papers |
WEINBERG JA:
This is an application for leave to appeal against sentence, heard by a single judge, pursuant to s 315 of the Criminal Procedure Act 2009.
On 16 June 2017, at the County Court at Melbourne, the applicant pleaded guilty to a series of offences contained in two separate indictments, as well as a number of summary offences related to each indictment. On 29 June 2017 the applicant was sentenced to a total effective term of 7 years’ imprisonment with a non-parole period of 5 years, and a fine totalling $3,500. He contends that this sentence is manifestly excessive.
The procedural history and background facts are somewhat complicated. However, the offences in respect of which the applicant was sentenced, the individual sentences imposed, the total effective sentence and the non-parole period may be summarised as follows:
Charge on
Indictment
F13479314
Offence Maximum Sentence Cumulation 1 Use false identification information to commit an indictable offence
[s 192B(1) Crimes Act 1958]
5 years’ imprisonment
6 months’ imprisonment 1 month 2 Use false identification information to commit an indictable offence
[s 192B(1) Crimes Act 1958]
5 years’ imprisonment
6 months’ imprisonment 1 month 3 Use false identification information to commit an indictable offence
[s 192B(1) Crimes Act 1958]
5 years’ imprisonment
6 months’ imprisonment 1 month 4 Use false identification information to commit an indictable offence
[s 192B(1) Crimes Act 1958]
5 years’ imprisonment
6 months’ imprisonment 1 month
Charge on
Indictment
F13479314
Offence Maximum Sentence Cumulation 5 Use false identification information to commit an indictable offence
[s 192B(1) Crimes Act 1958]
5 years’ imprisonment
6 months’ imprisonment 1 month 6 Use false identification information to commit an indictable offence
[s 192B(1) Crimes Act 1958]
5 years’ imprisonment 3 months’ imprisonment
1 month 7 Prohibited person possess firearm
[s 5(1) Firearms Act 1996]
10 years’ imprisonment or 1200 penalty units
18 months’ imprisonment 4 months 8 Traffick drug of dependence (methylamphetamine) [s 71AC Drugs, Poisons and Controlled Substances Act 1981] 15 years’ imprisonment
18 months’ imprisonment 4 months 9 Knowingly deal with the proceeds of crime
[s 194(2) Crimes Act 1958]
15 years’ imprisonment
12 months’ imprisonment 3 months 10 Traffick drug of dependence (MDMA) [s 71AC Drugs, Poisons and Controlled Substances Act 1981] 15 years’ imprisonment 2 years’ imprisonment Base sentence 11 Possess drug of dependence (various substances)
[s 73(1)(B) Drugs, Poisons and Controlled Substances Act 1981]
1 year imprisonment or 30 penalty units[1]
3 months’ imprisonment 1 month 12 Handle stolen goods
[s 88 Crimes Act 1958]
15 years’ imprisonment 18 months’ imprisonment 3 months 13 Possess equipment capable of making identification documentation with intent to commit an indictable offence
[s 192D(1) Crimes Act 1958]
3 years’ imprisonment
6 months’ imprisonment 1 month [1]The judge was satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking in a drug of dependence and so the lesser maximum penalty applied. See s 73(1)(b) Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Charge on
Indictment
F13479314
Offence Maximum Sentence Cumulation 14 Possess false identification information with intent to commit an indictable offence
[s 192C(1) Crimes Act 1958]
3 years’ imprisonment
6 months’ imprisonment 1 month 15 Traffick drug of dependence (alprazolam) [s 71AC Drugs, Poisons and Controlled Substances Act 1981] 15 years’ imprisonment 18 months’ imprisonment 4 months 16 Traffick drug of dependence (cocaine) [s 71AC Drugs, Poisons and Controlled Substances Act 1981] 15 years’ imprisonment 18 months’ imprisonment 4 months 17 Traffick drug of dependence (LSD) [s 71AC Drugs, Poisons and Controlled Substances Act 1981] 15 years’ imprisonment 18 months’ imprisonment 4 months 18 Possess drug of dependence (various substances) [s 73(1)(B) Drugs, Poisons and Controlled Substances Act 1981] 1 year imprisonment or 30 penalty units[2] 3 months’ imprisonment 1 month Summary offences related to F13479314 Offence Maximum Sentence Cumulation 7 Possess prohibited weapon
[s 5AA Control of Weapons Act 1990]2 years’ imprisonment or 240 penalty units
1 month imprisonment 8 Possess prohibited weapon [s 5AA Control of Weapons Act 1990] 2 years’ imprisonment or 240 penalty units $250 fine 10 State false name to police
[s 456AA(3)(b) Crimes Act 1958]5 penalty units
1 month imprisonment[3] Summary offences related to F13479314 Offence Maximum Sentence Cumulation 11 Commit indictable offence whilst on bail
[s 30B Bail Act 1977]3 months’ imprisonment or 30 penalty units 1 month imprisonment 20 Possess explosives without license
[s 21(2) Dangerous Goods Act 1985]100 penalty units
with a minimum of 5 penalty units
[ss 45(2) and 39(2) Dangerous Goods Act 1985]$2,000 fine 29 Possess cartridge ammunition
[s 124 Firearms Act 1996]40 penalty units
$500 fine 73 Possess schedule 4 poison
[s 36B(2) Drugs, Poisons and Controlled Substances Act 1981]10 penalty units
$250 fine 87 Possess Victoria Police identification without authorisation
[s 255 Victoria Police Act 2013]1 year imprisonment or 120 penalty units
1 month imprisonment Charge on
Indictment
G13257732
Offence Maximum Sentence Cumulation 1 Traffick drug of dependence (methylamphetamine) [s 71AC Drugs, Poisons and Controlled Substances Act 1981] 15 years’ imprisonment 18 months’ imprisonment 5 months 2 Traffick drug of dependence (1,4-Butanediol) [s 71AC Drugs, Poisons and Controlled Substances Act 1981] 15 years’ imprisonment 18 months’ imprisonment Base sentence 3 Traffick drug of dependence (diazepam) [s 71AC Drugs, Poisons and Controlled Substances Act 1981] 15 years’ imprisonment 18 months’ imprisonment 5 months [2]Ibid.
[3]The judge was in error in imposing this sentence given the maximum penalty of 5 penalty units. That error will be corrected, as seen later in these reasons for judgment.
Charge on
Indictment
G13257732
Offence Maximum Sentence Cumulation 4 Traffick drug of dependence (MDMA) [s 71AC Drugs, Poisons and Controlled Substances Act 1981] 15 years’ imprisonment 18 months’ imprisonment 5 months 5 Traffick drug of dependence (alprazolam) [s 71AC Drugs, Poisons and Controlled Substances Act 1981] 15 years’ imprisonment 18 months’ imprisonment 5 months 6 Possess false documents
[s 83A(5) Crimes Act 1958]10 years’ imprisonment
6 months’ imprisonment 1 month 7 Possess drug of dependence (testosterone)
[s 73(1)(B) Drugs, Poisons and Controlled Substances Act 1981]Either:
1 year imprisonment or 30 penalty units
Or:
5 years’ imprisonment or 400 penalty units[4]
3 months’ imprisonment 1 month 8 Possess article for making a false document
[s 83A(5A) Crimes Act 1958]10 years’ imprisonment
6 months’ imprisonment 1 month 9 Possess drug of dependence (cannabis)
[s 73 Drugs, Poisons and Controlled Substances Act 1981]Either:
5 penalty units
Or:
5 years’ imprisonment or 400 penalty units[5]3 months’ imprisonment 1 month 10 Possess drug of dependence (drostanolone)
[s 73 Drugs, Poisons and Controlled Substances Act 1981]Either:
1 year imprisonment or 30 penalty units
Or:
5 years’ imprisonment or 400 penalty units[6]3 months’ imprisonment 1 month 11 Handle stolen goods [s 88 Crimes Act 1958] 15 years’ imprisonment 18 months’ imprisonment 5 months [4]Above n 1.
[5]Ibid.
[6]Ibid.
Summary offences related to G13257732 Offence Maximum Sentence Cumulation 9 Possess cartridge ammunition
[s 124 Firearms Act 1996]40 penalty units $500 Nil 10 Possess prohibited weapon [s 5AA Control of Weapons Act 1990] 2 years’ imprisonment or 240 penalty units 3 months’ imprisonment Nil 11 Possess prohibited weapon [s 5AA Control of Weapons Act 1990] 2 years’ imprisonment or 240 penalty units 1 month imprisonment Nil 14 Possess property reasonably suspected of being the proceeds of crime
[s 195 Crimes Act 1958]2 years’ imprisonment
3 months’ imprisonment Nil 22 Possess prohibited weapon [s 5AA Control of Weapons Act 1990] 2 years’ imprisonment or 240 penalty units 3 months’ imprisonment Nil 32 Commit indictable offence whilst on bail [s 30B Bail Act 1977] 3 months’ imprisonment or 30 penalty units 3 months’ imprisonment Nil Total Effective Sentence 5 years’ imprisonment and $3,000 fine on indictment F13479314.
4 years’ imprisonment and $500 fine on indictment G13257732.
Two years of the sentence imposed on indictment G13257732 to be served cumulatively upon the sentence for indictment F13479314.
Therefore, a total effective sentence of 7 years’ imprisonment and a $3,500 fine.
Non-Parole Period: 5 years’ imprisonment (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 488 days 6AAA Statement: 10 years’ imprisonment with a non-parole period of 7 years Other relevant orders: Forfeiture and destruction of seized property and a stay on the fines until 29 June 2018. Brief summary of offending
The first indictment, F13479314, concerns offences committed between 26 June 2015 and the applicant’s arrest on 12 October 2015. The applicant used false identification information in the name of ‘Oliver Kennedy’ to open accounts with Telstra, and two banks. He then used documents associated with these accounts to lease, in the name of Oliver Kennedy, an apartment on City Road, South Bank (where he was living at the time of his arrest), as well as a storage unit in Port Melbourne.
On the day of his arrest, police searched the apartment and storage unit. They found a variety of drugs and other illicit substances, an amount of $46,535 in cash (being the proceeds of crime), various weapons and explosives, a stolen Range Rover, equipment capable of making false identification documents, plastic explosives and detonators, and a Victoria Police identification badge. When arrested, the applicant initially told police that he was Oliver Kennedy. He was remanded in custody in relation to these charges.
On 14 July 2016, the applicant was released on bail. It was a condition of bail that he live with his girlfriend and her parents.
The second indictment, G13257732, concerns offences that were all committed on 28 November 2016, while the applicant was on bail. By this stage, he was living in an apartment in South Bank. Police searched the apartment and found a variety of drugs, false identification documents and equipment capable of making such documents. They also found stolen identification documents, a weapon and ammunition, an amount of $975 in cash, and other property reasonably suspected of being the proceeds of crime. He was again arrested.
Proposed ground of appeal
The applicant seeks to rely upon the following ground of appeal:
Ground 1 – The sentence is manifestly excessive, in that –
The orders for cumulation on charges 1, 3, 4, 5 and 11 upon the sentence imposed on charge 2 of indictment G13257732 are excessive; and
The order for cumulation of the total effective sentence imposed on indictment G13257732 upon the total effective sentence imposed on indictment F13479314 is excessive.
Applicant’s submissions
The applicant pleaded guilty at the earliest opportunity. At his plea hearing, he admitted 23 prior convictions from four separate court appearances. His convictions included an assault and various drug offences. He had consistently breached community based dispositions that he had received in the past.
The applicant is 28 years of age. He had had a dysfunctional childhood and upbringing. Nonetheless, he had managed to complete Year 11 at school, and studied part way through Year 12. His life had been blighted by the use of drugs from about the age of 16 or 17, mainly amphetamines and methamphetamine. He had resorted to selling drugs to fund his own habit.
In sentencing the applicant, the judge described his offending as serious. He was characterised as a poly-drug trafficker. All of the offences that were the subject of both indictments were committed whilst the applicant was on bail.
The sentencing judge recognised that specific and general deterrence should play the dominant role in sentencing. He found the applicant’s prospects of rehabilitation to be ‘guarded’, and entirely dependent upon abstinence from drugs. He also found that the plea of guilty provided some evidence of remorse.
Not surprisingly, there is no complaint made in relation to any individual sentence imposed, save for the one months’ imprisonment imposed for summary change 10, the offence of stating a false name to a police officer.
The gist of the applicant’s complaint relates to the orders made below for cumulation. He contends (a) that the order that five months of the sentences on charges 1, 3, 4, 5 and 11 of the second indictment be cumulated upon the sentence imposed on charge 2 of that indictment is excessive and (b) so too, is the order that two years of the sentence imposed on the second indictment be cumulative upon the sentence imposed on the first indictment. That is so notwithstanding the prima facie rule in favour of cumulation, contained within s 16(1A)(e) of the Sentencing Act 1991.
With regard to the complaint regarding these orders for cumulation, the applicant invokes the principle of totality.
The applicant’s written submission in support of this contention is succinct, no doubt in recognition of the fact that a claim of manifest excess does not lend itself to much argument. It is simply asserted that the overlap in criminality was substantial, the offences on each indictment being based on the concurrent possession of illicit items at the same location.
Respondent’s submissions
The respondent answers the applicant’s submissions by first noting that manifest excess is a stringent ground, and difficult to make good. It must be shown that something has gone obviously or plainly wrong in the exercise of the sentencing discretion. The sentence must be wholly outside the range of sentencing options available to the judge. It is not simply a question of whether some other sentence could have been imposed.[7]
[7]See e.g. The Queen v Abbott (2007) 170 A Crim R 306, [13]–[15]; Ayol v The Queen [2014] VSCA 151, [30] citing Clarkson v the Queen (2011) 32 VR 361, [89]; McPhee v The Queen [2014] VSCA 156, [9]–[11].
The respondent then submits that the individual sentences imposed are all clearly within the permissible range. The grounds of appeal essentially concern totality. They must therefore be considered against the background of what undoubtedly was serious offending.
First, the nature of the offending was itself very serious. It involved inter alia, being a prohibited person in possession of several firearms (including one shortened and another with identification numbers removed), knowingly dealing with proceeds of crime (a significant amount of cash) and numerous charges of drug trafficking and possession. The applicant also used false identification information to commit various frauds and possessed sophisticated identity crime equipment. The offending was planned. In total, he pleaded guilty to 43 offences across two indictments which represented two discrete episodes of offending.
Secondly, the seriousness of the offending was aggravated by the following matters. The respondent was on bail, for drug trafficking and other drug offences, when he committed the offending the subject of the first indictment. He was arrested and remained in custody for nine months until bailed. Whilst on bail, he committed the offences the subject of the second indictment. That offending was very similar to that which was the subject of the first indictment.
Furthermore, at the time he committed these offences, the applicant was subject to a Community Correction Order (‘CCO’). That order had been imposed only about two months earlier for, inter alia, drug trafficking and offending whilst on bail.
In addition, the applicant’s criminal history included a conviction for drug trafficking and a failure to comply with an Intensive Correction Order imposed in relation to that offence.
The respondent submitted that all offending across both indictments had occurred whilst the applicant was on bail. It therefore attracted the application of s 16(1A)(e) and (3C) of the Sentencing Act 1991 and the presumption of cumulation.
Despite the applicant’s reference to the offences having been committed ‘concurrently’, he did not complain of ‘double punishment’. Nor, it was submitted, could any such complaint be legitimately made.
As regards the submission that there had been excessive cumulation, the respondent referred to R v Hogan,[8] where the Court of Appeal stated:
The discretion to order cumulation between counts is a very broad one. It should not be unnecessarily circumscribed. Reasonable minds will differ as to whether cumulation should be ordered and if so in what amount.[9]
[8][2008] VSCA 279.
[9]Ibid [29].
The respondent also referred to McNaughton v The Queen,[10] where different drugs were found in the appellant’s possession upon his arrest. He faced trafficking charges, based on possession for sale, for each of those drugs. In rejecting the appellant’s argument that the degree of cumulation ordered in relation to two of those charges was excessive, Priest JA (with whom Hansen JA agreed), stated in reference to one of the charges, that ‘its possession for sale, given that it was a distinctive drug in the appellant’s cornucopia, deserved separate recognition in the sentencing process’.[11] His Honour further said that in giving such separate recognition the judge was required to pay due regard to the overall offending and ensure that the principle of totality was not infringed. He held that the judge had achieved that objective by making appropriate orders for cumulation.[12]
[10][2014] VSCA 174.
[11]Ibid [61].
[12]Ibid [20]–[24], [60]–[61].
Conclusion
In my view, this application for leave to appeal must be dismissed. Regarding the second indictment, charges 1, 3, 4 and 5 each concern trafficking in a different drug. The methylamphetamine, MDMA and alprazolam were each found spread out in separate quantities in various locations around the applicant’s apartment. In some cases, different drugs were found at the same location, while in others they were not. Some had different packaging. It could reasonably be inferred that they were destined for different customers. Thus, the offending giving rise to each of these charges reflected significant additional criminality, and warranted some measure of cumulation.
Further, the charges relating to the use of false identification involved a number of different victims. They also represented distinct offending, quite separate from the drug trafficking charges. Those charges warranted some measure of cumulation.
The sentencing judge took into account all relevant mitigating factors, including the applicant’s age, his dysfunctional upbringing, his mental health issues and his early plea of guilty. Despite these mitigating factors, his Honour found the offending was serious, as it plainly was.
Regarding the complaint that the two years of the sentence imposed on the second indictment should not have been cumulated upon the five year sentence imposed in relation to the first indictment, the observations of the Court of Appeal in Nicholson v The Queen[13] are directly in point:
It is trite, but important to bear in mind that the principle of totality does not require that, in every case in which an offender is sentenced on more than one indictment, there be some degree of concurrency between the total effective sentences imposed in respect of each indictment. Rather…the principle does no more than direct that a judge ensure that the total effective sentence imposed on the offender is just and appropriate, in order to serve the relevant purposes of sentencing, including specific deterrence, general deterrence, denunciation, protection of the community and rehabilitation.[14]
[13][2017] VSCA 238.
[14]Ibid [54].
In my view, the two year cumulation ordered between the sentences imposed on the two indictments was entirely reasonable, having regard to the facts of the particular case.
I should add that, having regard to the applicant’s previous criminal history, specific deterrence was a particularly important factor in arriving at the overall total effective sentence.
Looked at as a whole, the total effective sentence of seven years’ imprisonment, with a non-parole period of five years was well within the range available to the sentencing judge. There is no reasonable prospect that the Court of Appeal would reduce the total effective sentence if leave to appeal were granted.
With regard to summary charge 10, related to the first indictment, that of giving a false name to police, it is common ground that the judge below made an error by imposing a sentence of one months’ imprisonment. The maximum penalty for that offence is 5 penalty units.
That error must be corrected. Pursuant to s 280(1)(b) of the Criminal Procedure Act 2009, this Court may refuse an application for leave to appeal if ‘there is no reasonable prospect that the Court of Appeal would reduce the total sentence despite there being an error in the sentence first imposed’. As indicated, it is my view that there is no reasonable prospect of any reduction in the total effective sentence, even if leave to appeal were granted, particularly in order to cure the problem associated with an invalid sentence having been passed on the summary charge.
Pursuant to s 280(3)(b), upon refusing an application for leave to appeal against sentence under sub-s (1)(b), this Court may make any order that it considers ought be made. Section 315 confers upon a single judge hearing an application for leave to appeal against sentence, the powers of the Court of Appeal. Accordingly, the sentence for summary charge 10, related to the first indictment, must be set aside. In lieu thereof, the applicant will be convicted and discharged in relation to that offence. Otherwise, the application for leave to appeal must be refused.
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