Ovadia v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0053

DANIEL OVADIA	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2023
DATE OF JUDGMENT:	6 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 211
JUDGMENT APPEALED FROM:	[2016] VCC 969 (Judge McInerney)

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CRIMINAL LAW – Application for leave to appeal against sentence – Resentencing following breach of a community correction order – Original sentence of a community correction order for four years and payment of fine for charge of possession of drug of dependence for purpose of trafficking – Resentenced to 18 months’ imprisonment – Whether sentence manifestly excessive – Application for leave to appeal granted and appeal allowed – Applicant resentenced to 8 months’ imprisonment.

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Counsel
Applicant:		Dr G Boas
Respondent:		Ms KB Hamill
Solicitors
Applicant:	Lewenberg & Lewenberg
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

In July 2016, the applicant pleaded guilty to four charges of possession of a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981. The offending was alleged to have occurred in St Kilda on 1 June 2014. Following a plea presented on his behalf, the applicant was sentenced on charge 1 (possession of cocaine) to serve a community correction order (‘CCO’) for four years and he was fined $5,000. On each of the other three charges (possess cannabis, possess MDMA and possess methylamphetamine), he was ordered to serve a CCO for two years. There were conditions of each of the CCOs that the applicant: perform 200 hours of unpaid community work; undergo assessment and treatment for drug abuse or dependency as directed by the Regional Manager; and be under the supervision of a Community Corrections Officer.
On 8 March 2023, the applicant pleaded guilty to one charge of contravening the CCOs. After a plea presented on his behalf, he was re-sentenced as follows:

Charge on Indictment	Charge	Max Penalty	Sentence	Cumulation
1	Possess cocaine (for the purpose of trafficking)	5 years’ imprisonment	18 months’ imprisonment	Base sentence
2	Possess Methylamphetamine	1 year imprisonment	Nil
3	Possess MDMA (ecstasy)	1 year imprisonment	Nil
4	Possess cannabis	1 year imprisonment	Nil
Total Effective Sentence:		18 months’ imprisonment
Non-Parole Period:		12 months’ imprisonment
Pre-sentence Detention Declared:		17 days Renzella time
6AAA Declaration:		2 years and six months Non-parole period of 18 months
Other Relevant Orders: 1. Convicted and discharged on breach CCO

The applicant seeks leave to appeal against his sentence on one ground, namely:
1.The sentence is manifestly excessive considering:
a.the nature of the charges and maximum penalties at the time of offending;
b.the offending for which the Applicant was being re-sentenced occurred in 2014;
c.the 2016 sentence of a four year CCO was very substantially completed by the Applicant within the CCO period;
d.the Applicant had not offended for four years at the time of sentencing;
e.the mitigating factors presented on the plea, including the availability of principle 5 of Verdins; and
f.the availability of a suspended sentence for the offending for which the Applicant was being resentenced, had he been sentenced in the Magistrates’ Court for that offending.

Circumstances of offending

On the day of the offending, 1 June 2014, the applicant drove his motor vehicle to St Kilda. There, he solicited a sex worker for oral sex. While the applicant was in the sex worker’s unit, he appeared to lose consciousness. The sex worker summoned an ambulance, and when the ambulance arrived, the applicant was found to be unconscious. The police were summoned. On arrival, they obtained the applicant’s motor vehicle key, and opened the driver’s door. Inside the vehicle, they found, among other matters, six plastic bags containing white powder, a snap-lock bag containing five tablets, a snap-lock bag with a crystal substance, and a set of scales. The items that were located were analysed. The first item (that was the subject of charge 1) was found to contain 184.1 grams of cocaine. Three other items analysed (which were the subject of charges 2, 3 and 4) were found to contain small quantities of methylamphetamine, MDMA and cannabis L.
The applicant was arrested and interviewed. He told police that he used drugs, but he was not a drug trafficker. He claimed that, on the evening in question, he had used GBH for the first time. He said that on that evening, he had been bashed by a number of people, one of whom dropped a pouch. After they departed, he took possession of the pouch, which, it turned out, contained the quantity of cocaine.

The plea in 2016

At the time of the original plea, the applicant was 40 years of age. He was born in Israel, where he gained skills as an electrician. At the age of 18 years, he undertook compulsory national service in the Israel Defence Force. In that capacity he served during the ‘second intifada’, in which he experienced violent conflict involving gunfire.
The applicant migrated to Australia in 2005 and became an Australian citizen. After his arrival in Australia, his qualifications were recognised and he maintained employment as a licensed electrician, specialising in air conditioning installation. At the time of the offending, he had changed his occupation and operated his own furniture removal business. He had no previous convictions.
For the purposes of the original plea, the applicant was assessed by Dr Aaron Cunningham, a forensic psychologist, on 18 May 2016. Dr Cunningham was of the opinion that the applicant did not present with any mental illness. He had formed a drug dependence and had become increasingly reckless in that regard. Dr Cunningham considered that the applicant had several protective factors that may reduce his risk of reoffending, namely: he did not have any criminal convictions; he had remained abstinent from illicit substances since the offending; he was working as an electrician; and he was motivated to remain abstinent from drug use. Dr Cunningham was of the view that the applicant would benefit from a disposition that facilitated his rehabilitation.

The 2016 sentencing reasons

In his original reasons for sentence,[1] the judge concluded, pursuant to s 73(1)(c) of the Act, that the applicant’s possession of the cocaine (that was the subject of charge 1) was for the purposes of trafficking.[2] His honour accepted that the applicant was trafficking the substance in order to feed his drug addiction.[3] In determining that the applicant should be released on a CCO, the judge took into account that he had no previous convictions, he had remained abstinent from illicit substances since the offending, he was working in his own business, and he was motivated to remain abstinent. The judge also took into account the applicant’s plea of guilty, and the delay of two and one half years since the offending. The judge considered that, in light of the applicant’s age and his achievements in the community, he was an appropriate candidate for a CCO.
[1]DPP v Ovadia (County Court of Victoria, unreported, 8 July 2016) (‘the original reasons’).
[2]Ibid [2]-[14].
[3]Ibid [20].

Breaches of community corrections order

Subsequently, the applicant contravened the CCO by failing to comply with some of the conditions of it and by further offending (possess MDMA). That contravention was dealt with by the judge on 7 August 2018. The contravention was found proven, the applicant was convicted and fined, and the CCO was confirmed.
On 10 April 2019, the applicant came before the Moorabbin Magistrates’ Court on one charge of cultivating cannabis, one charge of possession of ecstasy and one charge of possession of cocaine. He was sentenced to a CCO to be served over a period of 8 months.
On 12 April 2022, the applicant was sentenced by the Moorabbin Magistrates’ Court to 3 months’ imprisonment on charges that included driving a motor vehicle while disqualified and refusing an oral fluid test. He appealed that sentence to the County Court. On 8 March 2023, the judge allowed the appeal and reduced the sentence to a term of 1 month’s imprisonment.
On 12 April 2022, the applicant was also dealt with for a breach of the CCO imposed by the Moorabbin Magistrates’ Court on 10 April 2019. The Magistrate imposed a $1000 fine with conviction and confirmed the 8 month CCO. That sentence was not the subject of an appeal.

The contravention of the CCO

In November 2022, the Director of Public Prosecutions commenced a proceeding against the applicant for contravention of the CCO. Specifically, it was alleged that the applicant had contravened the CCO in the following respects:
(a)he had committed further offences, namely, the offences that were before the Moorabbin Magistrates’ Court on 10 April 2019.;
(b)he had failed to attend supervision on three occasions;
(c)he had failed to undergo treatment and rehabilitation on one occasion;
(d)he had failed to attend unpaid community work on five occasions;
(e)he had left the State of Victoria without permission.
The applicant did successfully complete assessment and treatment for mental health as prescribed by the CCO, and he performed all of the 200 hours of unpaid community work that was the subject of the CCO. In addition, he paid the fine of $5,000.

The plea

For the purposes of the plea in the present matter, the applicant was interviewed by Mr Patrick Newton, a clinical forensic psychologist, in February 2023. Mr Newton noted that the applicant had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) as a child, and that that condition had not been treated. Mr Newton also noted that the applicant had suffered a significant emotional reaction to traumatic experiences while completing his national service in Israel, including being exposed to the death of his commanding officer at close quarters. The applicant had an extensive history of substance abuse, commencing at the age of 17 with the use of cannabis and psychedelic substances. He commenced using cocaine at the age of 23 years and, on average, consumed a few grams each week. Mr Newton formed the view that the applicant’s drug use had served to undermine his emotional stability, and that the strategies that he used to manage his anxiety symptoms had in fact exacerbated them.
Mr Newton diagnosed the applicant to have an adjustment disorder with mixed disturbance of emotions and conduct. He also diagnosed the applicant to have a substance use disorder of moderate to severe intensity with regard to cannabis and cocaine. He considered that the applicant had little awareness of the strategies for behavioural change, and that he had limited insight into his psychological condition.
In conclusion, Mr Newton considered that the applicant needed to undergo comprehensive drug-related treatment in a supervised context with regular monitoring of his compliance. In addition, the applicant should undergo assessment and treatment of his ADHD, and he should receive personal counselling to assist him to work through his experiences in the Israeli Defence Force and to develop skills to manage his anxiety without recourse to illicit drugs. Mr Newton also considered that the applicant’s untreated ADHD and anxiety symptoms would be more likely to render his time in custody more onerous than that of a prisoner who did not suffer from such conditions.
Based on that report, counsel for the applicant submitted that the fifth principle in Verdins v The Queen[4] applied, in that a custodial sentence would weigh more heavily on the applicant than it would on a person of normal health. In addition, counsel relied on the significant delay since the original offending. In particular, the CCO, for the breach of which the applicant stood to be sentenced, had been made in 2016 for offending dating back to 2014. Similarly, the offending, which brought the applicant before the Moorabbin Magistrates’ Court in April 2019, had occurred in October 2018, some four and a half years previously. In the meantime, the applicant had completed 200 hours of unpaid community work, paid the $5,000 fine, and complied with other conditions of the CCO. Further, counsel relied on the number of character references that were tendered on behalf of the applicant.
[4](2007) 16 VR 269.

The judge’s reasons for sentence on contravention of CCO

In his reasons for sentence,[5] the judge noted that the applicant had served 200 hours of unpaid community work, and that he had paid the fine. His Honour also considered that the fifth principle of Verdins applied. In addition, the judge noted that since the last offending, which brought the applicant before the Moorabbin Magistrates’ Court in April 2019, the applicant had not committed any further offences.
[5]Unreported, County Court of Victoria, 8 March 2023.
On the other hand, the judge noted that there had been a considerable history of offending by the applicant after he was originally sentenced to the CCO in 2016. Further, the applicant had continued to have significant drug issues, and he had not achieved a ‘complete realisation’ of his own problems. Taking those matters into account, the judge considered that it was appropriate that the applicant be sentenced to a term of imprisonment of 18 months, with a non-parole period of 12 months.

Submissions

Counsel for the applicant commenced by submitting that the offending, for which the applicant was to be sentenced, was ‘low level’ in nature. In particular, apart from the finding that the applicant’s possession of the cocaine was for the purposes of trafficking, there were no other features of aggravation. In addition, the offending, which was the subject of the sentence, took place in June 2014, almost nine years before the applicant was re-sentenced for that offence. During that period, the CCO had expired, and the applicant had substantially completed it. In particular, the applicant had performed all of the 200 hours of unpaid community work, and he also successfully satisfied the condition relating to mental health assessment and treatment. In that respect, counsel referred to s 83AS(2) of the Sentencing Act 1991, which requires a judge to take into account the extent to which the offender has complied with the original CCO.
Counsel further noted that the applicant had not committed any further offences since 2019, which reflected the applicant’s improved prospects of rehabilitation. In that respect, counsel referred to and relied on the number of character references which describe the applicant as being honest, trustworthy, hardworking, and generous to friends and other members of the community. In addition, there had been a delay of some four years after the commencement of the contravention proceedings in 2019.
Finally, counsel noted that, based on the findings by Mr Newton, the judge had correctly accepted that the evidence established that a custodial sentence would weigh more heavily on the applicant than it would for a person in normal health. In particular, the applicant suffers from anxiety and distress as a result of the intrusive recollection of his experiences in the Israeli Defence Force, and he has longstanding ADHD, which has not been treated.
Based on those matters, counsel for the applicant submitted that the sentence imposed by the judge was wholly outside the range of sentences available to his Honour.
In response, counsel for the respondent noted that, since the imposition of the CCO, the applicant had been involved in further offending in respect of which he had been sentenced by the County Court on 7 August 2018, and by the Moorabbin Magistrates’ Court on 10 April 2019. Further, although the applicant had completed the unpaid community work component of the CCO (with unacceptable absences), and he had also completed the mental health condition, all other conditions of the CCO had not been complied with. In particular, based on the contravention report:
(a)the applicant had presented as argumentative and belligerent towards his case manager, that he lacked insight into the connection between his substance abuse and his antisocial behaviour;
(b)the applicant did not cooperate with initial alcohol and drug assessment, and was found unsuitable for counselling due to reported abstinence for two years. After he was later referred for treatment in January 2018, he again denied drug use and was not ready for treatment. A further referral for treatment in 2019 produced the same outcome;
(c)the applicant had failed to attend the final three (of ten) sessions of a positive lifestyle program and did not attend a further one day program due to work commitments;
(d)the applicant left Australia in August 2019 without permission, and, from that time, he had disengaged with Corrections.
Counsel for the respondent further noted that, on the hearing of the plea, it was accepted on behalf of the applicant that his prospects of rehabilitation were guarded. The applicant demonstrated poor insight, and he had engaged in extensive non-compliance with the CCO.
Counsel further noted that the period of delay between the applicant’s contravention and the sentencing consisted, in part, of a period during which the applicant had absented himself overseas. Although the applicant had not been charged with further offending since March 2019, Mr Newton considered that the applicant had poor insight and that he had a moderate to severe substance use disorder.
Counsel for the respondent further noted that the applicant’s circumstances and prospects for rehabilitation had been relied on in the original plea in 2016. Those considerations had led the judge to impose the CCO in order to afford him an opportunity to reform. The applicant had failed to take advantage of that opportunity, and accordingly, it was submitted, it was appropriate that the judge impose a sentence of imprisonment.
In respect of the length of the term of imprisonment, counsel noted that the applicant had been in possession of more than sixty times the prescribed trafficable quantity of cocaine, with a street value of $54,000. Deal bags and scales were found with the drugs in the applicant’s vehicle. Counsel noted that the judge had accepted that, in view of the applicant’s psychological condition, the fifth principle of Verdins should apply in mitigation of sentence. However, it was submitted, that consideration should be given only moderate weight. In that respect, counsel again emphasised that the applicant had been given ample opportunity to address his drug-related problems, but that he had declined to do so. Accordingly, his prospects of rehabilitation were reduced. In those circumstances, it was submitted that the sentence of 18 months’ imprisonment was not manifestly excessive.

Analysis and conclusion

Section 83AS(1) of the Sentencing Act 1991 contains the powers of the Court on a finding of guilt for the contravention of a CCO.
Section 83AS(1)(c) provides that, in such a case, the Court may cancel the order (if it is still in force) and, whether or not it is still in force, deal with the offender for the offence with respect to which the CCO was made ‘… in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence’.
Section 83AS(2) provides that a court, in determining how to deal with an offender under sub-s (1), must take into account the extent to which the offender has complied with the CCO.
Thus, in the present case, the judge, having cancelled the CCO imposed on the applicant, was required to re-sentence the applicant in respect of the charges, which were the subject of the CCO, taking into account the extent to which the applicant had complied with the CCO.

The question in the present case is whether the sentence of 18 months’ imprisonment, imposed on the applicant, was manifestly excessive. In order to succeed on that ground, the applicant must demonstrate that the sentence was wholly outside the range of sentencing options available to the judge. In other words, it must be demonstrated that the sentence is so excessive as to bespeak error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in his Honour’s reasons for sentence.[6]
[6]Clarkson v The Queen (2011) 32 VR 361, 364 [89]; DPP v Macarthur [2019] VSCA 71, [58].
The starting point, for considering that question, involves an assessment of the nature and degree of the offending in question. The applicant came before the judge for re-sentencing on four charges. As his Honour noted, the first charge involved the possession of cocaine in a quantity that was approximately 60 times the traffickable amount of that substance. The street value of the substance found in the applicant’s possession was in excess of $50,000. In those circumstances, the applicant’s offending in respect of charge 1was a quite serious instance of that offence.
On the other hand, notwithstanding the quantity of the substance in the applicant’s possession, the judge accepted that his offending was for the purposes of funding his own drug addiction, and it was not otherwise for his self-enrichment. There was no evidence that the applicant was involved in a significant degree of trafficking the substance, other than his possession of scales and a number of bags, and the quantity of the drug itself.
As counsel for the respondent has correctly noted, the judge, in originally sentencing the applicant, imposed a CCO, on the basis of his then assessment that the applicant was motivated to remain abstinent from further drug use, and that, as a consequence of his apprehension on charge 1, he had ‘learned a very strong lesson’ and had not been engaging in any further consumption of drugs.[7] Subsequent to the imposition of the CCO, the applicant had, on two further occasions, been given the opportunity to address his drug addiction by being placed on CCOs by the courts, but he had failed to avail himself of the opportunity so provided by the court, and had continued to engage in the consumption of drugs of addiction. In those circumstances, it was appropriate for the judge to re-sentence the applicant on the basis that he was unlikely to comply with the conditions of any further CCO imposed on him, and, as such, his prospects of rehabilitation were limited.
[7]The original reasons [20].
As we have noted the offending, that was the subject of charge 1, involved a significant quantity of a drug of dependence. As a consequence of the conclusion, by the judge, that the offence was committed by the applicant for a purpose relating to the trafficking of that substance, it was necessary for the judge to give appropriate weight to the sentencing purposes of general deterrence and denunciation.[8] In view of the circumstances of the offending, and the applicant’s limited prospects of rehabilitation, it was, in our view, well open to the judge to conclude that the only appropriate sentence in respect of charge 1 was a term of imprisonment.
[8]Boulton v The Queen (2014) 46 VR 308, 335, [112]-[114]; [2014] VSCA 342 (‘Boulton’); Comensoli v The Queen [2020] VSCA 2, [27] (Maxwell P, Whelan JA).
The critical question, then, is whether the sentence of 18 months’ imprisonment imposed by the judge was manifestly excessive.
As discussed, there were serious aspects to the offence that was the subject of charge 1. On the other hand, the applicant, at the time of the offending, had no previous convictions. He came before the court as a person of good character. His subsequent offending, and the breaches by him of the CCO, are relevant, in particular, to an evaluation of his prospects of rehabilitation.[9] However, the applicant was not to be further sentenced for those breaches. Rather, the sentence to be imposed on him was in respect of the offending which he committed on 1 June 2014, and for which he originally stood for sentence in 2016.
[9]Luu v The Queen [2018] VSCA 92, [27]; Bieljuk v The Queen [2018] VSCA 99, [58]; Hamoud v The Queen [2018] VSCA 123, [38]-[39].
In that respect, it is relevant that the applicant’s offending was driven by his drug dependence. His addiction to such substances was, at least to a substantial degree, a product of his underlying psychological conditions, including his ADHD, and the anxiety and stress that he suffered as a consequence of his traumatic experiences during his years in military service in the Israeli Defence Force. As Mr Newton noted, the applicant, in effect, resorted to the use of drugs to ‘manage’ those psychological issues, but, paradoxically, in doing so, he in fact exacerbated them.
The applicant was able to rely on a number of important mitigating factors. As we have observed, he had no previous convictions. He has a background of hard work and enterprise, as reflected in the character references tendered on his behalf. Those character references attested to his generosity, his commitment to his business, and his loyalty to his friends. Further, it was necessary to take into account the fact that the applicant had complied with the two punitive conditions of the sentence imposed on him, namely, the performance of 200 hours’ unpaid work, and payment of the significant fine of $5,000. He had also complied with some of the other conditions prescribed for the CCO.
The offending, for which the applicant stood for sentencing in 2023, had been committed by him some nine years earlier. After the applicant was subsequently charged in relation to the breach of the CCO, there was a reasonably substantial period of delay before that charge was heard and disposed of before the judge. In the meantime, in the previous four years, the applicant had not been involved in any further offending. Finally, it was necessary to take into account the conclusion, by the judge, that, as a result of the applicant’s psychological conditions, a sentence of imprisonment would bear more heavily on him.
Taking those matters into account, and giving them appropriate weight, in our view, the term of 18 months’ imprisonment, imposed by the judge, was wholly outside the range of sentences available to the judge. The length of the sentence was such that it could only be inferred that the judge failed to give appropriate weight to the mitigating circumstances to which we have referred, or alternatively, his Honour gave excessive weight to the further offending, and breaches of the CCO, by the applicant since the imposition of the original sentence.
For those reasons, the proposed ground of appeal, relied on by the applicant, must succeed. Accordingly, the applicant must be granted leave to appeal, his appeal is allowed, and the sentence of 18 months’ imprisonment, imposed by the judge, is set aside.
In re-sentencing the applicant, for the reasons we have discussed, we consider it was appropriate for the judge to sentence the applicant to a term of imprisonment. In view of the nature and extent of the offending involved in charge 1, and notwithstanding the mitigating circumstances available to the applicant, it was appropriate for the judge to impose a term of imprisonment that would be of sufficient duration to act as both a general deterrent, and also to hopefully bring home to the applicant the necessity for him to address his drug addiction, and to refrain from further offending in that regard. On the other hand, as we have just discussed, the applicant has available to him a number of significant mitigating factors. Taking those matters into account, we consider that it is appropriate to re-sentence the applicant to a term of imprisonment of 8 months.
Accordingly, we propose to make the following orders:
(1)The application for leave to appeal will be granted.
(2)The appeal be allowed.
(3)The sentence imposed by the judge on 8 March 2023 be set aside. In lieu, the applicant be sentenced to a term of 8 months’ imprisonment.
The orders that we have just made will, of course, also record the period of imprisonment already served by the applicant as pre-sentence detention for the purposes of s 18(4) of the Sentencing Act 1991.

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[2023] VSCA 211

6 September 2023