Pasquale Barbaro v The Queen
[2021] VSCA 61
•16 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0167
| PASQUALE BARBARO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | KAYE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 March 2021 |
| DATE OF JUDGMENT: | 16 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 61 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1176 (Judge McInerney) |
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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 – Sentence – Applicant pleaded guilty to trafficking in a commercial quantity of a drug of dependence (MDMA), trafficking in a drug of dependence (cannabis), trafficking in a drug of dependence (methylamphetamine), possessing a registered general category handgun without a licence, and related summary charges – Total effective sentence 7 years and 10 months’ imprisonment with non-parole period of 5 years – Error by judge as to applicability of provisions of Sentencing Act 1991 – Error by judge as to size of commercial quantity of Cannabis L – Whether errors materially affected exercise of sentencing discretion – Whether judge failed to take into account time in drug rehabilitation as additional punishment – Whether judge failed to take mitigating circumstances into account – Whether sentence manifestly excessive – Leave to appeal granted – Sentencing Act 1991 ss 5(2H), 5(2HC), Akoka v The Queen [2017] VSCA 214 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C A Boston | Sarah Tricarico Lawyers |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA:
The applicant pleaded guilty, in the County Court of Victoria, to one charge of trafficking in a drug of dependence in a commercial quantity (MDMA), one charge of trafficking in a drug of dependence (cannabis), a second charge of trafficking in a drug of dependence (methylamphetamine) and one charge of possessing a registered general category handgun without a licence. He also pleaded guilty to related summary charges of possess an unregistered Category A longarm, one charge of being an unlicensed person store ammunition in an insecure manner, and one charge of possession of property reasonably suspected of being the proceeds of crime.
After a plea made on his behalf, the applicant was sentenced to a total effective sentence of 7 years and 10 months’ imprisonment, with a non-parole period of 5 years. That sentence was constituted as follows:
Charges
Offence
Maximum
Sentence
Cumulation
1
Trafficking in a drug of dependence (commercial quantity) — MDMA[1]
25 years’ imprisonment
7 years’ imprisonment
Base
2
Trafficking in a drug of dependence — Cannabis L[2]
15 years’ imprisonment
2 years’ imprisonment
6 months
3
Trafficking in a drug of dependence — Methylamphetamine
15 years’ imprisonment
19 months’ imprisonment
3 months
4
Possessing a registered general category handgun without a licence[3]
4 years’ imprisonment
1 year imprisonment
1 month
Summary Charge 4
Non-prohibited person possess a Category A Longarm without a licence[4]
2 years’ imprisonment
2 months’ imprisonment
Nil
Summary Charge 5
Unlicensed person store ammunition in an insecure manner[5]
40 penalty units
Convicted and fined $1,652.20
Nil
Summary Charge 6
Deal with property suspected of being proceeds of crime[6]
2 years’ imprisonment
3 months’ imprisonment
Nil
Total Effective Sentence
7 years and 10 months’ imprisonment
Non-parole period
5 years’ imprisonment
Pre-sentence detention, s 18(1) Sentencing Act 1991
16 days
Section 6AAA statement
11 years and 3 months’ imprisonment with a non-parole period of 6 years and 8 months
[1]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 71AA(1).
[2]Contrary to Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1).
[3]Contrary to Firearms Act 1996, s 7(1).
[4]Contrary to Firearms Act 1996, s 6(1).
[5]Contrary to Firearms Act 1996, s 129A.
[6]Contrary to Crimes Act 1958, s 195.
In the notice of application for leave to appeal, the applicant originally sought to rely on four grounds. On the hearing of the application, I granted the applicant leave to rely on an additional fifth ground. The grounds upon which the applicant seeks leave to appeal against sentence are therefore as follows:
Ground 1:
The learned sentencing judge erred in fettering his discretion due to an erroneous belief:
(i)that section 5(2H) of the Sentencing Act 1991 required that the relevant circumstances be ‘rare and exceptional’; and
(ii)that section 5(2HC) applied to the sentencing task.
Ground 2:
The learned sentencing judge erred in failing to take into account, as additional punishment, the three months the applicant spent in residential drug rehabilitation whilst on bail.
Ground 3:
The learned sentencing judge erred in failing to mitigate the applicant’s sentence on account of his drug addiction, which commenced in childhood in the context of a chronically dysfunctional home environment, parentification, extremely low to borderline intellectual ability, and borderline personality disorder.
Ground 4:
The individual sentences, orders for cumulation, total effective sentence and non-parole period are manifestly excessive in light of the applicant’s early guilty pleas, genuine remorse, rehabilitation and increased burden of imprisonment, together with other factors in mitigation.
Ground 5:
The learned sentencing judge erred in sentencing the applicant on charge 2 on the basis that a commercial quantity of cannabis is one kilogram as opposed to 25 kilograms.
Circumstances of offending
In May 2017, investigators of the Drug Task Force of the Victoria Police, commenced an investigation into drug trafficking in the western suburbs of Melbourne. The investigation focused on trafficking conducted by the father of the applicant, Michael Barbaro, and two other men. It was later identified that the applicant was also involved in the drug trafficking. In April 2018, police investigators began monitoring a listening device that was located in the garage of the applicant’s father’s residence in Sydenham (the ‘Sydenham premises’). It became apparent that the applicant regularly spent time at those premises, where he participated in conversations regarding drugs, drug trafficking and firearms.
On 13 June 2018, police executed search warrants at the residences of the suspects. In the course of the execution of those search warrants, the applicant was arrested at the Sydenham premises, and was taken to his house in Taylors Hill where a search warrant was executed.
In the course of the search of the Taylors Hill residence, the following items were located:
a.925.5 grams of MDMA (Charge 1: Traffick in a Drug of Dependence – Commercial Quantity)
b.186 grams of Cannabis (Charge 2: Traffick in a Drug of Dependence)
c.1,002.2 grams of Methylamphetamine (Charge 3: Traffick in a Drug of Dependence)
d.A pistol (Charge 4: Possessing a Registered General Category Handgun Without a Licence)
e.A Crossman 1077 .177 calibre air rifle (Related Summary Charge 4: Non-Prohibited Person Possess Unregistered Longarm Without a Licence)
f.Quantities of ammunition (Related Summary Charge 5: Unlicensed Person Possess Ammunition)
g.Several items of jewellery (Related Summary Charge 6: Deal With Property Suspected of Being Proceeds of Crime)
h.Two mobile phones.
The total weight of the mixed quantity of MDMA that was located at the premises was 925.5 grams. On analysis, it was 23 per cent pure, so that it comprised 212.82 grams of a pure quantity. Under the relevant provisions of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’), a commercial quantity of MDMA is specified as being over 500 grams mixed or 100 grams pure. A large commercial quantity of a mixed substance containing MDMA is one kilogram (1,000 grams).
The methylamphetamine (which was the subject of charge 3) was contained inside a cereal box that was taped up and located inside a wall cavity in the garage of the premises. The mixed quantity of methylamphetamine weighed 1,002.2 grams and was of 84 per cent purity. A large commercial quantity of methylamphetamine is one kilogram (1,000 grams) of mixed substance containing the drug; a commercial quantity of methylamphetamine is 500 grams of mixed substance containing methamphetamine. The prosecution alleged that the applicant was storing the package, containing the methylamphetamine, at his house for his father, and that he knew that it contained a quantity of the drug of dependence, but he did not know the precise quantity of it.
In the course of the search, the police located other indicia of drug trafficking, including firearms, ammunition, jewellery and multiple mobile telephones. The pistol (that was the subject of charge 4) was located in the kitchen cupboard by the microwave. It was loaded. Ammunition for the pistol was located in a bag on the floor of the kitchen.
Following the execution of the search warrant, the applicant was taken to the police station for interview. He gave a ‘no comment’ answer to the allegations put to him.
Following the applicant’s arrest on 13 June 2018, he was remanded in custody. Three days later, on 15 June 2018, he was bailed to the Raimond Hader Clinic (‘the Hader Clinic’), where he remained for treatment for drug addiction for a period of three months. The first committal mention was heard on 10 April 2018. At that mention, the applicant’s matter was listed for a committal hearing, and the three other accused persons’ matters were adjourned to 21 May 2019. Subsequently, on that date, the applicant’s committal proceeding was listed for 9 October for a hearing over a period of three days. On 11 October 2019, the applicant pleaded guilty to the charges on the indictment and the three related summary charges that were transferred to the County Court.
Previous convictions
The applicant had a number of previous convictions for road traffic offences, which the judge noted were essentially of no relevance. He had no other previous convictions.
The plea
The plea, that was submitted on behalf of the applicant, focused substantially on his dysfunctional childhood, which, in the context of the applicant’s limited intellectual functioning, had led the applicant to become heavily addicted to illicit substances, and on the steps taken by the applicant to reform, commencing with the period of treatment that he received in the Hader Clinic.
The applicant was born in October 1989. At the time of the offending, he was twenty-eight years of age. He had a limited education due to his intellectual capacity. His home life was quite chaotic. He was raised in an atmosphere of parental disharmony in which he regularly intervened to stand between his mother and father in the course of their arguments. The applicant’s father was a heavy user of drugs, and his mother absented herself from the family for extended periods of time.
After leaving school, the applicant engaged in some employment as a concreter. However, he became heavily addicted to illicit substances. At the age of twelve years, he commenced smoking cannabis. When he was seventeen years of age, he began to use amphetamines and methylamphetamine. At about that time, he left home and lived in transient accommodation, at one stage consuming methylamphetamine daily for a period of six months.
As mentioned, shortly after his arrest, the applicant was released on bail, on the condition that he attend treatment at the Hader Clinic. He attended that clinic, on an inpatient basis, for a period of ninety days. On the plea, evidence was given by Mr Jackson Oppy, the general manager of the clinic. He stated that the clinic provided a combination of group and individual therapies. During the three months that the applicant spent in the program, he engaged very well with it. His urine drug screens returned negative. Mr Oppy stated that the treatment provided during that period was quite intensive, commencing at 7:00 am and lasting until 11:00 pm.
After the applicant completed three months at the Hader Clinic, he was then released on bail to reside with his mother. He commenced treatment with a drug counsellor, Ms Amanda Brown, of Lamberti & Associates, on 16 September 2018 and continued until the date of his sentence on 3 August 2020. Ms Brown stated that during that period, the applicant was committed to the treatment, and that he had insight into the risk of remission into further drug abuse. The applicant regularly attended his appointments, and his supervised urine drug screening produced negative results. In addition, the applicant continued to attend Narcotics Anonymous meetings twice each week. After the onset of the COVID-19 pandemic, those meetings were conducted by videolink.
In her report, Ms Brown noted that, during the previous two years, the applicant had made remarkable changes to his life. In particular, he had worked as a cement renderer to support his young family and he had spent every spare moment he could with his children.
On a personal basis, the applicant had commenced a relationship with his partner, at the age of twenty years. They had three children. In addition, his partner had a daughter from a previous relationship whom the applicant treated as his own. At the time of sentence, the applicant’s partner was some eight months’ pregnant.
The applicant underwent a psychological assessment by Mr Luke Armstrong, a consultant psychologist, for the purposes of the plea. Essentially, Mr Armstrong expressed two conclusions that were of relevance to the plea. First, Mr Armstrong noted that due to the frequent disputes between the applicant’s parents, the applicant had been forced to step between them and mediate. Mr Armstrong regarded the applicant’s behaviour as consistent with a process called ‘parentification’. In evidence on the plea, Mr Armstrong explained that when a child is exposed to an environment in which their parents cease to function as predictable and safe attachment figures, the child implicitly takes on the role of parent. In circumstances in which the applicant was exposed to chronic levels of dysfunction in the household, it had a serious effect on his later development. As part of that process, the applicant had developed a close attachment to his father, who was a drug addict, and who was incapable of being a reliable father figure. Mr Armstrong considered that those circumstances, combined with the applicant’s limited intellectual capacity, had led him to self-medicate first with cannabis and later with amphetamine and methylamphetamine. Mr Armstrong diagnosed the applicant to have a Borderline Personality Disorder which was magnified by his low intellectual function. Mr Armstrong also diagnosed the applicant to suffer anxiety and depression.
The second related finding by Mr Armstrong was that the applicant had an extremely low to borderline intellectual functioning. His verbal reasoning abilities were in the borderline range and were above only those of three per cent of his peers. His perceptual reasoning was in an extremely low range and above those of only two per cent of his peers. His ability to sustain attention, concentrate and exert mental control was in the borderline range; the applicant performed better than only approximately six per cent of his peers in this area. In short, Mr Armstrong considered that the applicant’s overall abilities were somewhere between the extremely low to borderline range of intellectual functioning.
Finally, on the plea, the applicant tendered a report of his general practitioner, Dr Walter Di Bartolo. In that report, Dr Di Bartolo stated that the applicant suffers from severe asthma, primarily characterised by status asthmaticus, which is a severe condition, in which bronchospastic or asthma attacks continuously follow one another without interruption. Dr Di Bartolo expressed the view that, in the context of the current global outbreak of the coronavirus, a person affected with that form of asthma would be at a high risk of becoming very ill if they become infected by the COVID-19 virus.
Provisions of Sentencing Act 1991 applicable to charge 1
Before turning to the judge’s reasons for sentence, it is convenient, first, to set out, in brief, the relevant provisions of the Sentencing Act 1991 that are applicable to ground 1.
The Sentencing (Community Correction Order) and Other Acts Amendment Act2016 (‘the Amendment Act’) came into operation on 2 October 2017. Section 4 of that Act inserted s 5(2H) into the Sentencing Act. That provision required that a judge, in sentencing a person for a ‘Category 2’ offence, must impose a term of imprisonment (not being one combined with a community correction order (CCO)) unless one of the exceptions, prescribed by that section, applied. One such exception, prescribed by s 5(2H)(e) was where the judge was satisfied that there were ‘substantial and compelling circumstances that justify not making’ such an order. Section 3 of the Amendment Act defined ‘Category 2 offence’ to include an offence against s 71AA of the Act (that is, trafficking in a commercial quantity of a drug of dependence).
Subsequently, on 28 October 2018, s 76 of the Justice Legislation Miscellaneous Amendment Act 2018 (‘the 2018 amendment’) introduced s 5(2HC) into the Sentencing Act. The 2018 amendment made two relevant amendments. First, it added the words ‘that are exceptional and rare’ to s 5(2H)(e), so that that provision required the imposition of a term of imprisonment unless there were substantial and compelling circumstances ‘that are exceptional and rare’. Secondly, the 2018 amendment introduced s 5(2HC), which provided that, in determining whether there were substantial and compelling circumstances that are exceptional and rare, the Court was to give less weight to the personal circumstances of the offender than to other matters, such as the nature and gravity of the offence, and the Court was not to have regard at all to the offender’s prospects of rehabilitation, previous good character or early guilty plea.
As the applicant’s offending occurred on 13 June 2018, the provisions that were thus included in the Sentencing Act, by reason of the 2018 amendment, did not apply to the sentencing of the applicant.
Reasons for sentence
In his reasons for sentence,[7] the judge, having outlined the circumstances of the offending, noted that in the absence of an applicable exception, s 5(2H) of the Sentencing Act mandated the imposition of an immediate gaol term. The judge noted that counsel for the applicant relied on the exception specified in s 5(2H)(e) of that Act. In particular, counsel had relied on the steps taken by the applicant towards rehabilitation, his asthmatic condition, the applicant’s compliance with original bail conditions imposed on him, the fact that the applicant had no relevant previous convictions, and the applicant’s exceptional family circumstances.[8] Having considered those factors, the judge concluded that ‘… the high hurdle, as referred to in Farmer,[9] has not [been] surmounted.’[10]
[7]DPP v Barbaro [2020] VCC 1176 (‘Reasons’).
[8]Ibid [17]
[9][2020] VSCA 140, [51].
[10]Reasons [22].
I interpolate that Farmer v The Queen[11] was concerned with the provisions of s 5(2H)(e) of the Sentencing Act as amended by the 2018 legislation, so as to require, in that case, the establishment of ‘substantial and compelling circumstances that are exceptional and rare’.
[11][2020] VSCA 140.
Accordingly, the judge concluded that an immediate term of imprisonment must be imposed on the applicant.[12]
[12]Reasons [23].
The judge then turned to consider the mitigating factors relied on by the applicant. He took into account the following factors:
·the applicant’s guilty plea, which the judge accepted was made at the earliest possible time, and which had utilitarian value;
·the steps taken by the applicant towards his rehabilitation;
·the applicant had no previous convictions;
·the applicant had demonstrated genuine remorse;
·the delay of two years between the applicant’s arrest and sentence, during which the applicant had taken appropriate steps in rehabilitation;
·the effect of the applicant’s ‘parentification’ which had led to his addiction, together with his undiagnosed longstanding issues of anxiety and depression at the time of the offending;
·the evidence that the applicant would need treatment for anxiety and depression while in gaol;
·the applicant’s family would suffer stress as a result of the applicant’s imprisonment, and as a consequence he would find a term of imprisonment more burdensome;
·the increased risk to the applicant’s health as a result of the COVID-19 pandemic while he is in prison, which risk is enhanced by his severe asthmatic condition;
·the applicant would need treatment for his asthma.[13]
[13]Ibid [26]–[38].
Ground 1
On the plea, the prosecutor, defence counsel and the judge all proceeded on the incorrect understanding that the amendment to s 5(2H)(e), introduced by the 2018 amendment, applied to sentencing the applicant. Thus, it was (incorrectly) assumed that in order that the exception, provided in s 5(2H)(e) of the Sentencing Act to the mandatory imposition of a prison sentence, applied, the applicant was required to establish, not only the existence of substantial and compelling circumstances, but also that such circumstances were exceptional and rare. In addition, it was incorrectly understood that by reason of the 2018 amendment, in determining whether substantial and compelling circumstances that were exceptional and rare existed, the Court was to give less weight to the personal circumstances of the applicant than to matters such as the nature and seriousness of the offence, and that the Court was not to have regard at all to the applicant’s prospects of rehabilitation, previous good character or early guilty plea.
It is common ground on this application that, in proceeding on that basis, the sentencing judge fell into error. On behalf of the applicant, it was submitted that that error vitiated the exercise by the judge of the sentencing discretion. In response, counsel for the respondent submitted that the error made by the sentencing judge could not have materially affected the sentence imposed on the applicant, and in particular, it could not have affected the decision whether the exception, provided in s 5(2H)(e) to the mandatory imposition of a gaol term, applied to the applicant’s case.
On this application, the question is whether it is reasonably arguable that the error by the sentencing judge could have materially affected the decision of the sentencing judge that the exception, provided in s 5(2H)(e), did not apply to the applicant’s sentence.[14] That question is resolved by considering whether it is reasonably arguable that, if the sentencing judge had correctly construed the requirements of s 5(2H)(e), he might have imposed a non-custodial sentence on the applicant, or a sentence of no more than 12 months’ imprisonment combined with a CCO. The resolution of that issue does not require the Court to assess, as a matter of fact, whether the error actually influenced the determination of the sentence by the judge. Rather, the Court assesses the capacity of that error to have such an effect.[15]
[14]R v Beary (2004) 11 VR 151, 159 [21]; [2004] VSCA 229 (Callaway JA); Gillespie (a pseudonym) v The Queen [2018] VSCA 151, [53] (Whelan and McLeish JJA); Johns v The Queen [2020] VSCA 135, [83]–[86] (Ferguson CJ, McLeish and Niall JJA) (‘Johns’).
[15]Newman (a pseudonym) v The Queen [2019] NSWCCA 157, [12] (Basten JA); Johns [2020] VSCA 135, [84] (Ferguson CJ, McLeish and Niall JJA).
Counsel for the applicant submitted that it is reasonably arguable that it was open to the sentencing judge to sentence the applicant to a combination sentence of one year imprisonment together with a lengthy period in which he was subject to a CCO. In that respect, counsel emphasised the significant steps that the applicant had taken towards his rehabilitation. Having completed the intensive three month period as an inpatient at the Hader Clinic, he had undergone treatment with Ms Brown, the drug counsellor, and he had also participated in meetings with Narcotics Anonymous. During the period of two years before his sentencing, the applicant had lived a productive and law abiding life in which he had taken significant steps towards his rehabilitation. In those circumstances, it was submitted that it was in the interests of society that the applicant be subject to a sentence which would enable him to be supervised for a period of time in the community and be subjected to other constraints imposed under a CCO. Counsel emphasised that the Court, in Boulton v The Queen[16] had explained the punitive aspects of a sentence involving a CCO. Accordingly, it was submitted that in the circumstances of this case it is reasonably arguable that it was open to the judge to impose a combination sentence comprising one year’s imprisonment together with a five year CCO.
[16](2014) 46 VR 308; [2014] VSCA 342.
In response, counsel for the respondent relied on a number of authorities, including Kim v The Queen,[17] in which the Court has emphasised the importance of general deterrence as the primary sentencing consideration in cases involving trafficking of illicit substances on the scale undertaken by the applicant. Counsel noted that the applicant pleaded guilty to three charges of trafficking, one of which was a charge of trafficking a commercial quantity of drugs. In those circumstances, it was submitted that it is not reasonably arguable that it would be open to the judge to have imposed a sentence that combined one year’s imprisonment with a CCO.
[17][2019] VSCA 149.
Notwithstanding the forceful submissions made on behalf of the applicant, I have significant reservations that it is reasonably arguable that it would have been open to the judge, in the circumstances of the case, to have imposed the combined sentence contended for on behalf of the applicant. Accordingly, I have a substantial doubt as to whether the error, identified in ground 1, could have materially affected the decision of the sentencing judge. Nevertheless, in light of the conclusions that I have reached under grounds 3 and 4, I consider, in the circumstances, that it is preferable that I refer the question of leave, under ground 1, for determination by the Court of Appeal comprising two or more judges of Appeal under r 2.07(2)(b) of Chapter 6 of the Supreme Court (Criminal Procedure) Rules 2017.
Ground 2
In support of ground 2, counsel for the applicant referred to the evidence of Mr Oppy, the general manager of the Hader Clinic, concerning the stringent conditions to which the applicant had been subjected while an inpatient at the clinic. Counsel submitted that, consistent with the principles stated in Akoka v The Queen,[18] the judge was obliged to take into account, as a mitigating factor, the time spent by the applicant in the Hader Clinic as a form of additional punishment, or quasi pre-sentence detention, to which the applicant had been subjected. Counsel contended that while in the present case the judge referred to the submissions made by defence counsel concerning the application of the principles stated in Akoka, nevertheless his Honour only took into account the applicant’s residential drug rehabilitation insofar as it had relevance to his prospects of rehabilitation. It was therefore submitted that the judge erred in failing also to take into account that the applicant had undergone a form of additional punishment, or quasi pre-sentence detention, while an inpatient at the Hader Clinic.
[18][2017] VSCA 214 (‘Akoka’).
In response, counsel for the respondent submitted that, properly construed, the judge did accept and take into account the submission that was advanced on behalf of the applicant on the plea concerning the applicability of the principle enunciated in Akoka. Counsel noted that this Court has, on a number of occasions, emphasised that the sentencing judge’s reasons for sentence should not be read with an eye that is overly zealous to detect error in the sentencing synthesis.
The sentencing principle, with which ground 2 is concerned, is uncontroversial. In Akoka, the Court, having considered the effect of a number of New South Wales authorities, considered that, in an appropriate case, the punitive nature of time, spent by an offender as a resident of a rehabilitation facility, should be taken into account as a mitigating circumstance, on the basis that the offender has in effect already undergone some form of pre-sentence restriction on his or her liberty.[19]
[19]Ibid [96]–[101] (Warren CJ, Kyrou and Redlich JJA).
In the present case, I do not consider that it is reasonably arguable that the judge failed to take into account the stringent nature of the circumstances which the applicant underwent during his period of rehabilitation at the Hader Clinic. In his sentencing reasons, the judge acknowledged the submissions advanced on behalf of the applicant that, after he was bailed to the Hader Clinic, he had spent some three months as an in-house resident of that clinic, which Mr Oppy described as ‘worse than prison’ in terms of its rigour.[20] The judge further acknowledged the submission, advanced on behalf of the applicant, concerning the application of the principle stated in Akoka to the period of three months spent by the applicant at the Hader Clinic, ‘… especially when such is a clinic of this type and has the restrictions detailed’.[21]
[20]Reasons [17(a)(i)].
[21]Ibid [17(c)].
Pausing there, the judge clearly acknowledged, without demur, the submissions that were advanced on behalf of the applicant in that respect. In the sentencing remarks that followed, the judge did not in any way detract from, or say anything inconsistent with, the thrust of those submissions. Subsequently, in referring to the relevant mitigating circumstances, he noted the ‘excellent steps’ taken by the applicant as to his rehabilitation.[22] While the judge did not, specifically, again refer to the Akoka point, nevertheless, in the context of the sentencing reasons, I do not consider it can be reasonably argued that the judge either overlooked or ignored the point that had been made on behalf of the applicant in that respect.
[22]Ibid [27].
Accordingly, I do not grant leave to appeal on ground 2.
Ground 3
Under ground 3, counsel submitted that the judge erred in concluding that the applicant’s drug addiction, the effect of the process of ‘parentification’, and his undiagnosed issues of anxiety and depression, were explanatory of the applicant’s offending, but were not mitigating factors in the circumstances of the case.[23]
[23]Ibid [34].
In support of that submission, counsel relied on the evidence that the applicant’s drug addiction had developed in the context of the dysfunctional home environment in which he had been raised as a child, and the evidence of the psychologist, Mr Armstrong, that the applicant’s offending was related to his drug addiction. Counsel also pointed to the evidence as to the applicant’s Borderline Personality Disorder, and his extremely low to borderline intellect. It was submitted that the judge erred in considering that while those factors might have explained the applicant’s offending, they did not mitigate his moral culpability for it.
In response, counsel for the respondent submitted that, while in an appropriate case an offender’s drug addiction may constitute a mitigating circumstance, the weight to be attributed to such a factor is significantly diminished, if not nullified, in cases involving drug trafficking operations which are ‘above street level’.[24] In the present case, the offending included trafficking of three types of illegal drugs, and, in particular, it included the trafficking of a commercial quantity of MDMA. Further, the applicant’s role in the drug trafficking enterprise was significant. Accordingly, it was submitted, the judge did not err in considering that the applicant’s drug use, while providing a context to the offending, did not mitigate it.
[24]R v Bernath [1997] 1 VR 271, 276 (Callaway JA).
The evidence of Mr Armstrong was that the applicant’s drug addiction had developed as a result of the applicant resorting to the use of substances as a form of self-medication in response to the circumstances of his difficult home environment. Mr Armstrong noted that the applicant had reported that, from the age of seventeen years, he began to use amphetamine and methylamphetamine because he ‘could not handle his parents’ fighting’. The judge accepted that the process of ‘parentification’, which had developed in the dysfunctional environment in which the applicant was raised, had led to his addiction, and also to his undiagnosed longstanding issues of anxiety and depression. Further, by accepting that those circumstances were both an explanation of, and background to, the applicant’s offending, the judge was also satisfied that the applicant’s drug addiction, and his psychological issues, had a relevant causal connection with the offending.
In those circumstances, and particularly in view of the evidence of the applicant’s low intellectual capacity, and his diagnosed Borderline Personality Disorder, I consider that it is reasonably arguable that the judge did err in sentencing the applicant on the basis that those circumstances did not mitigate the applicant’s moral culpability for his offending.
Accordingly, I grant the applicant leave to appeal on ground 3.
Ground 4
In support of ground 4, counsel for the applicant noted that the offending, that was alleged in the charges to which the applicant pleaded guilty, was limited to one day. There was no evidence that any drugs were transacted on that day, or otherwise. Rather, the trafficking charges were made out on the basis that the applicant was in possession of drugs for sale. By way of mitigating circumstances, counsel relied on the applicant’s guilty plea, his remorse, the fact that he had no relevant criminal history, the delay in finalising the matter, and the significant steps that the applicant had taken to rehabilitate. Counsel also relied on the increased burden of prison, as a result of the applicant’s mental health, his family hardship, and the effects of the COVID-19 pandemic.
In response, counsel for the respondent observed that the applicant had committed a number of serious criminal offences. He had a controlling role in the trafficking of large quantities of three types of drugs. He possessed firearms and ammunition, and other paraphernalia, connected to his drug trafficking enterprise. Counsel submitted that the courts have made it clear that those, who choose to engage in trafficking of large quantities of drugs, will, upon apprehension, be sentenced to long prison terms, in order to vindicate the sentencing purposes of general deterrence and denunciation. Accordingly, it was submitted that it is not reasonably arguable that the sentence imposed on the applicant was wholly outside the range available to the judge.
I have some reservations as to whether, in the circumstances, it is reasonably arguable that the sentence imposed on the applicant was manifestly excessive. However, the applicant was able to rely on a number of mitigating factors which were of some substance. The issues raised by ground 4 are, in some respects, connected with those which are to be considered under ground 3. With some hesitation, I am persuaded that leave to appeal should be granted on ground 4.
Ground 5
Ground 5 is directed to the judge’s characterisation of the second charge, which was a charge of trafficking in Cannabis L. His Honour stated:
Again the circumstances of such trafficking is by being in possession for sale. The amount was 186.6 grams. It is to be pointed out that the next level for commercial quantity begins at 1 kilogram. Again, the seriousness of this offence is demonstrated by the fact that pursuant to s 71AC(1), the maximum sentence is 15 years.[25]
[25]Reasons [4].
It is common ground that the judge erred in stating that the threshold for a commercial quantity of Cannabis L was one kilogram. The correct threshold, for that substance, was 25 kilograms.
Counsel for the applicant submitted that, as sentencing for drug trafficking is significantly quantum based, the error by the judge was a material error affecting the sentence imposed on charge 2. Counsel pointed out that, in fact, the quantity seized at the applicant’s premises constituted 0.7 percent of a commercial quantity of the substance. In those circumstances, it was submitted that it is reasonably arguable that the error by the judge was material to the imposition by him of two years’ imprisonment on charge 2, and to the judge’s direction that six months of that sentence be served cumulatively on the sentence imposed on charge 1.
In response, counsel for the respondent submitted that it is not reasonably arguable that the error by the judge was material to the sentence imposed by his Honour. In short, counsel submitted that the reference by the judge to the incorrect threshold was only by way of background to his Honour’s correct reference in that passage, to the maximum sentence for the offence.
It is well established that sentencing for drug trafficking is, to a material extent, quantity based. In those circumstances, I consider that it is reasonably arguable that the error made by the judge, in respect of the commercial quantity threshold for Cannabis L, could have materially affected his Honour’s decision as to the sentence imposed on charge 2. Accordingly, I grant leave to the applicant on ground 5.
Summary of conclusions
For the foregoing reasons, I grant the applicant leave to appeal on grounds 3, 4 and 5, and I refer to a bench consisting of two or more members of the Court of Appeal the application for grant of leave to appeal under ground 1. I refuse leave on ground 2.
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