Quah v The Queen
[2021] VSCA 164
•15 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0161
| CAIN QUAH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 March 2021 |
| DATE OF JUDGMENT: | 15 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 164 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1158 (Judge Hampel) |
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CRIMINAL LAW – Appeal – Sentence – Standard sentence scheme – Large commercial quantity of methylamphetamine – Trafficking by possession for sale – Possessing unregistered firearm – Trafficking sentence 15 years – Total effective sentence 16 years and 5 months – Non-parole period 10 years – Plea of guilty – Relevance of standard sentence – Whether manifestly excessive – Quantitative hierarchy of trafficking offences – Legislative intent – Quantity trafficked almost four times large commercial quantity – Possession as part of commercial enterprise – Trafficking for profit – Sentence within range – New evidence – Deportation not being contested – Leave to appeal refused – Drugs, Poisons and Controlled Substances Act 1981 s 71 – Sentencing Act 1991 ss 5(2), 5A, 5B – Gregory (a pseudonym) v The Queen [2017] VSCA 151, Brown v The Queen (2019) 59 VR 462.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC | Stary Norton Halphen |
| For the Respondent | Mr C B Boyce QC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
BEACH JA:
Summary
The applicant pleaded guilty to a series of drug and firearms charges, the most serious of which was a charge of trafficking in a large commercial quantity (‘LCQ’) of methylamphetamine. The maximum penalty for that offence is life imprisonment.
On the trafficking charge, the applicant was sentenced to 15 years’ imprisonment. The other sentences ranged between 7 days’ and 18 months’ imprisonment. With limited cumulation, the total effective sentence was 16 years and 5 months’ imprisonment. A non-parole period of 10 years was fixed.
The applicant seeks leave to appeal against the sentence on a number of grounds. Some of the grounds concern the sentencing judge’s application of the ‘standard sentence’ provisions, which were applicable because LCQ trafficking is a ‘standard sentence offence’. (The standard sentence for the offence is 16 years’ imprisonment.[1]) Other grounds contend that insufficient weight was given to certain mitigating factors, in particular the applicant’s pleas of guilty. Those grounds fall to be considered with the remaining grounds, which contend that the sentence was manifestly excessive.
[1]Drugs, Poisons and Controlled Substances Act 1981 s 71(2).
For reasons which follow, we would refuse leave to appeal. Although the sentencing decision was made before this Court in Brown v The Queen[2] clarified how the standard sentence provisions are to be applied, there was no material error in her Honour’s approach. As to manifest excess, the sentence of 15 years’ imprisonment for LCQ trafficking was within range. The amount trafficked represented almost four times the LCQ for methylamphetamine and, as the respondent submitted, the sentence of 15 years is consistent with what this Court said in Gregory (a pseudonym) v The Queen,[3] about the need for increased sentences for upper level offences of commercial quantity (‘CQ’) trafficking and for a consequent increase in sentences for LCQ trafficking.
[2](2019) 59 VR 462; [2019] VSCA 286 (‘Brown’).
[3][2017] VSCA 151 (‘Gregory’).
Factual background
On 2 January 2019, police executed a search warrant at the apartment where the applicant lived with his partner. They found just under $90,000 cash, just under three kilograms of high purity methylamphetamine, scales, a large number of empty deal bags and small quantities of cocaine, MDMA, 1,4-Butanediol and heroin.
They also found an unregistered firearm (with its serial number defaced), ammunition and a number of prohibited weapons. The prohibited weapons were: two butterfly knives, a pair of knuckle dusters, an extendable baton and a kubotan. The latter was described as ‘a pen-shaped weapon used for close contact pressure point or hammer fist strikes’.[4]
[4]DPP v Quah [2019] VCC 1158, [1] (‘Reasons’).
The applicant was arrested and interviewed. He admitted that the drugs, cash and weapons were his but denied trafficking in any of the drugs. He asserted that he was a money-lender, lending money to friends, and that he had been given the methylamphetamine by a borrower who had been unable to repay a $30,000 loan. He asserted that the methylamphetamine was of poor quality and low purity and that he had been unable to get rid of it.
As the judge said in her reasons, these assertions were ‘patently false’.[5] The methylamphetamine — which was found in three separate bags weighing just under a kilo each — was of high level purity, ranging from 77 per cent to 89 per cent pure. By his plea of guilty, the applicant acknowledged that he had the drug in his possession for the purpose of trafficking.
[5]Ibid [3].
On the plea hearing, the threshold for a large commercial quantity of methylamphetamine was accepted to be 750 grams.[6] The amount in the applicant’s possession represented 3.8 times this threshold. In addition to the trafficking charge, there were separate charges of possession of small quantities of cocaine, MDMA, 1,4-Butanediol and heroin respectively. The most serious of the firearms charges was possession of an unregistered general category handgun.
[6]This must have been on the basis that the drug was treated as being in a mixture, rather than pure. For offending prior to 1 November 2017, the LCQ threshold was 750 g pure and 1.0 kg in a mixture. By the time of this offending, however, the LCQ threshold had been lowered to 500 g (pure) and 750 g (mixture). The change came into effect in November 2017.
The full list of the charges, and the sentences imposed, is as set out in the table below:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Trafficking in a large commercial quantity (Methylamphetamine)
Life
15 years
Base sentence
2
Possession of a drug of dependence (Cocaine)
12 months
7 days
Concurrent
3
Possession of a drug of dependence (3,4-Methylenedioxyamphetamine)
12 months
7 days
Concurrent
4
Possession of a drug of dependence (1,4-Butanediol)
12 months
7 days
Concurrent
5
Possession of a drug of dependence (Diacetylmorphine)
12 months
7 days
Concurrent
6
Possession of an unregistered firearm
7 years
18 months
12 months
7
Failure, as an unlicensed person, to store a firearm in a secure manner
4 years
6 months
1 month
8
Failure, as an unlicensed person, to store ammunition in a secure manner
4 years
3 months
Concurrent
Related summary offences
9
Possess prohibited weapon
(2 butterfly knives)2 years
1 month
1 month
10
Possess prohibited weapon (knuckle dusters)
2 years
1 month
1 month
12
Possess prohibited weapon (extendable baton)
2 years
1 month
1 month
13
Possess prohibited weapon
(a kubotan)2 years
1 month
1 month
19
Deal with property suspected of being proceeds of crime
2 years
6 months
Concurrent
Total Effective Sentence:
16 years and 5 months’ imprisonment
Non-Parole Period:
10 years’ imprisonment
Pre-Sentence Detention Declared:
205 days
Section 6AAA Statement:
22 years’ imprisonment with a non-parole period of 16 years’ imprisonment
Ancillary orders:
Forfeiture and disposal orders; sentenced as a serious drug offender pursuant to s 6F of the Sentencing Act 1991
Ground 1: ‘serious drug offender’
At the conclusion of her sentencing reasons, the judge declared that the applicant was ‘sentenced as a serious offender’. Her Honour directed that that declaration be entered in the records of the court. The Record of Orders contains the following statement:
Pursuant to s 6F of the Sentencing Act 1991, offender is sentenced as a serious drug offender in respect of charge 1.
The respondent concedes that the reference to s 6F was not correct. As the applicant had not previously been convicted of a ‘drug offence’ within the meaning of s 6B(1) of the Sentencing Act 1991 (‘Sentencing Act’), that provision did not apply.
The respondent draws attention, however, to s 89DI of the Sentencing Act, which provides as follows:
(1)On the conviction of a person by a court for a serious drug offence, the court must make an order declaring the person to be a serious drug offender.
(2)In this section—
‘serious drug offence’ has the same meaning as in section 3(1) of the Confiscation Act 1997.
According to s 3(1) of the Confiscation Act 1997, the offence to which the applicant pleaded guilty — LCQ trafficking — qualifies as a ‘serious drug offence’. Her Honour was, therefore, obliged to make an order declaring the applicant to be a ‘serious drug offender’.
Importantly, as the respondent’s written case pointed out, the prosecutor made a submission to the judge in exactly those terms, both in writing and orally. It is perfectly plain, therefore, that the judge’s reference to s 6F was an inadvertent error.
As counsel for the applicant conceded, there was no reference on the plea, or in the sentencing reasons, to the ‘protection of the community’ requirement imposed by s 6D(a), and nothing else which might have suggested that her Honour was proceeding on the basis that pt 2A had application.[7] The only reasonable explanation for the statement at the conclusion of the reasons, and the corresponding note in the Record of Orders, is that her Honour was intending to make the declaration required by s 89DI(1).
[7]See and contrast Dukic v The Queen [2021] VSCA 18, [13] (Ferguson CJ and Beach JA).
Ground 1 must therefore be rejected.
Grounds 3 and 4: standard sentence
As noted earlier, LCQ trafficking is a ‘standard sentence offence’. The standard sentence is 16 years’ imprisonment.[8] The judge was therefore required, in sentencing the applicant on the LCQ trafficking charge, to proceed in accordance with the provisions of the standard sentence scheme.
[8]Drugs, Poisons and Controlled Substances Act 1981 s 71(2).
The relevant provisions are as follows:
5A Standard sentence scheme
(1)If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then—
(a)the offence is a standard sentence offence; and
(b)the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
(2)…
(3)For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined—
(a)without reference to matters personal to a particular offender or class of offenders; and
(b)wholly by reference to the nature of the offending.
5B Sentencing for a standard sentence offence
(1)This section applies in relation to sentencing an offender for a standard sentence offence unless—
(a)the offender was under the age of 18 at the time of the commission of the offence; or
(b)the offence is heard and determined summarily.
(2)In sentencing an offender for a standard sentence offence, a court—
(a)must take the standard sentence into account as one of the factors relevant to sentencing; and
(b)despite section 5(2)(b), must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.
(3)Subsection (2)—
(a)does not limit the matters that a court is otherwise required or permitted to take into account in determining the appropriate sentence for a standard sentence offence; and
(b)is not intended to affect the approach to sentencing known as instinctive synthesis.
(4)A court that sentences an offender for a standard sentence offence must at the time of doing so state the reasons for—
(a)imposing that sentence; and
(b)any non-parole period fixed in accordance with section 11 as part of that sentence if that period is shorter than the period specified in section 11A(4)(a), (b) or (c), as the case requires.
(5)As part of its reasons under subsection (4), a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.[9]
[9]Sentencing Act ss 5A, 5B (emphasis added).
The starting point of the sentencing methodology is s 5B(2)(a), which obliges the court to ‘take the standard sentence into account as one of the factors relevant to sentencing’. By way of reinforcing that requirement, s 5(2) of the Sentencing Act was amended to add ‘the standard sentence’ as a matter to which the sentencing court must have regard when imposing sentence.[10]
[10]See Sentencing Act s 5(2)(ab).
As this Court said in Brown,[11] sub-s 5B(3) expresses the legislature’s clear intention that the obligation to take the standard sentence into account should not otherwise affect the exercise of the sentencing discretion. The Court said:
The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:
·is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
·does not affect the established ‘instinctive synthesis’ approach to sentencing;
·does not require or permit ‘two-stage sentencing’; and
·does not otherwise affect the matters which the court may, or must, take into account in sentencing.[12]
[11](2019) 59 VR 462; [2019] VSCA 286.
[12]Ibid [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
In her reasons, the sentencing judge explained her approach to the standard sentence provisions, in terms which were entirely consistent with what was subsequently said in Brown. Her Honour said:
Both the maximum sentence prescribed for Charge 1, namely life imprisonment and the standard sentence, namely the sentence that takes into account only the objective factors affecting the relative seriousness of the offence of large commercial quantity trafficking in the middle range of seriousness are properly to be regarded as legislative guideposts in the sentencing process. I note that, by the amending act, and as reflected too in the explanatory memorandum, the instinctive synthesis approach to sentencing which is part of the common law in this state is specifically preserved.
It follows that the standard sentence does not assume a dominant role in determination of the sentence imposed for that charge. The standard sentence prescribed by Parliament for the offence is simply one of the relevant sentencing factors to which the court must have regard, along with the other sentencing factors identified and which are required to be taken into account under s 5(2) of the Sentencing Act.
That is, in addition to the maximum penalty prescribed and the standard sentence, current sentencing practices, the nature and gravity of the offence, your culpability and degree of responsibility for the offence, whether the offence was motivated by hatred for or prejudice against a group of people, having characteristics belonging to or believed to be belonging to the victim, the impact of the offence on any victim, the personal circumstances of any victim, any injury, loss or damage resulting directly from the offence, whether you pleaded guilty and the stage of the proceedings at which you did, your previous character, the presence of any aggravating or mitigating factors and any other relevant circumstances.[13]
[13]Reasons [15]–[17].
There was, however, one respect in which her Honour’s approach did not accord with what was later said in Brown. Reflecting the then current understanding of the provisions, her Honour assessed the relative seriousness of the applicant’s offence as compared to the hypothetical ‘mid-range’ offence.[14] Submissions had been directed to that question by both parties, in reliance on the first instance decision in Director of Public Prosecutions v Brown.[15]
[14]Ibid [54].
[15][2018] VSC 742.
Her Honour said:
I accept the prosecution submission that this is mid-range offending. The quantity of methylamphetamine, 3.8 times the threshold for a large commercial quantity, the number and location of the weapons, the amount of cash and the presence of scales and deal bags all point to this being a continuing commercial enterprise.
You acknowledged as much to Mr Armstrong, the psychologist. And although again I acknowledge that I must sentence you for trafficking by reason of your possession of that quantity on the day of the execution of the warrant, there is nothing to suggest that you were involved in a one-off single day transaction. Indeed, this has every appearance, consistently with what you told Mr Armstrong, and as it appeared to me was ultimately acknowledged in the course of the plea, that you were engaged in amphetamine trafficking, not just to pay for your own cocaine use, but for profit. You apparently wanted to demonstrate that you could be a financial success.[16]
And further:
I have already noted that I consider the offending, looked at objectively, falls in the mid-range of offending, having regard to the objective circumstances. Notwithstanding the presence of the firearm and the other weapons, the large amount of cash, the scales and the deal bags and the sheer quantity of methylamphetamine found, I also accept [defence counsel’s] submissions that there are often, in cases that otherwise are characterised as mid-range offending, other and more serious aggravating features. Therefore, whilst at one level, it can be said to be objectively mid-range, it can also be said to be at the low-end of mid-range.
I have ultimately come to the conclusion that the appropriate sentence to fix, applying all of the sentencing factors, including consideration of the standard sentence, and as a matter of intuitive synthesis, that the just and appropriate sentence for charge 1 falls a little below the standard sentence for an offence of objective and mid-range seriousness.
Having said that, I want to make it clear I am not engaging in a two-tier process, but rather that I appreciate, when sentencing for a standard sentencing offence, one factor I must have regard to is the prescribed standard sentence, and that I must express my reasoning for fixing on the sentence which I determine is appropriate.[17]
[16]Reasons [31]–[32] (emphasis added).
[17]Ibid [54]–[56] (emphasis added).
Ground 3 contends that the judge fell into error in concluding that ‘looked at objectively’ the applicant’s trafficking offence fell ‘at the low-end of mid-range’. According to the submission, it was not reasonably open to the judge to arrive at that assessment, given that the offence was limited to possession of the drug on a single day and involved no sales or offers to sell or negotiations for sale. As a result, it was said, the offending did not place any drugs in the hands of purchasers or consumers.
As noted earlier, the sentencing decision was made some months before the decision of this Court in Brown. The Court there held that the standard sentence provisions neither required nor permitted the sentencing judge to compare the seriousness of the subject offence with the hypothetical ‘middle of the range’ offence:
In our opinion, the standard sentence provisions do not have any bearing on the judge’s obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of ‘objective factors’. Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence ‘in the middle of the range of seriousness’.
…
Judges sentencing for standard sentence offences should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability. The obligations imposed by s 5B(2)(a) (to take the standard sentence into account) and by s 5(2)(ab) (to have regard to the standard sentence) are indistinguishable from the obligation imposed by s 5(2)(a) to have regard to the maximum sentence. They are all ‘legislative guideposts’.
…
Just as judges have always had in mind a notion of ‘the worst possible case’, so they must now have in mind a notion of an offence ‘in the middle of the range of seriousness’. At the same time, the utility of such a comparison is lessened in the case of the standard sentence. There are two reasons for this. The first is the narrowness of the definition of ‘objective factors’ which, as McCallum J pointed out in McLaren, is ‘ignorant of’ a range of matters which the judge will need to take into account in assessing the nature and gravity of the subject offending. The second is the inevitable imprecision of the notion of a hypothesised mid-range offence. As Basten JA said in Carlton v The Queen:
As a practical matter, it must be accepted that the middle of a range of seriousness is not a precise point, nor is there any paradigm by which it can be identified. This follows almost inevitably from the scope and variety of circumstances which can be relevant to considering seriousness.[18]
[18]Brown (2019) 59 VR 462, 465 [7], 479-80 [55], [57]; [2019] VSCA 286 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (citations omitted).
It follows that it was not necessary — indeed, it was impermissible — for her Honour to make the comparative assessment. That is not, however, the point to which ground 3 is directed. Rather, the applicant contends that the assessment itself was erroneous.
In the circumstances, this ground may be disposed of quickly. Within the artificial constraints of the ‘objective factors only’ formulation in s 5A(1)(b), it was well open to her Honour to conclude that the applicant’s trafficking offence was ‘at the low end of mid-range’, for the reasons which she gave. As senior counsel for the Director pointed out, this Court in Stanley (a pseudonym) v The Queen dealt with single day possession of almost 2.5 times LCQ of methylamphetamine, and assessed the objective seriousness of the offending as falling ‘in the mid-range’.[19] That was not a standard sentence case but the comparison is nevertheless instructive.
[19][2017] VSCA 54, [47] (Beale AJA).
Ground 4, on the other hand, assumes that her Honour’s comparative assessment was correct. The complaint here is that her Honour:
having first determined that the applicant’s offending was both objectively of mid-range seriousness and ‘at the low-end of mid-range’, erred in the exercise of her discretion by then, in the light of the mitigating factors accepted by [her Honour], imposing an individual sentence of 15 years’ imprisonment.
This ground implicitly asserts that the judge engaged in two-stage sentencing, with the ‘objective factors’ comparison being the first step and the standard sentence of 16 years the starting point. As senior counsel for the applicant confirmed in argument, the complaint involved the following steps: (a) if the offending was ‘at the low end of mid-range’, the sentence of 15 years could be seen as bearing an appropriate relationship to the standard sentence of 16 years, having regard only to ‘objective factors’; (b) in order to give proper weight to the mitigating factors, however, the sentence then had to be reduced to well below 15 years.
As we have indicated, this contention only arises because the judge took the unnecessary step of making an ‘objective factors’ comparison of the applicant’s offence to the hypothetical mid-range offence. But, even if that step had been permissible, the argument fails for precisely the reason which the judge herself gave. That is, the standard sentence was ‘simply one of the relevant sentencing factors to which the court must have regard’. As her Honour correctly noted, the ‘instinctive synthesis’ method had been expressly preserved and, with it, the prohibition on two-stage sentencing.
Thus understood, ground 4 merges into the manifest excess grounds. It is simply a different way of submitting that, if proper weight had been given to the mitigating factors, a sentence of 15 years’ imprisonment could not reasonably have been arrived at.
Grounds 2 and 5–7: manifest excess
Ground 2 complains that the judge failed
to accord any, or any sufficient, weight to the applicant’s pleas of guilty, the time at which those pleas of guilty were indicated and the circumstances in which the applicant pleaded guilty.
There is no substance in the contention that her Honour gave no weight at all to the pleas of guilty. They were plainly taken into account. As counsel for the applicant accepted, her Honour made repeated references in the sentencing reasons to the fact of the applicant having pleaded guilty and specifically identified that fact — by reference to s 5(2) of the Sentencing Act — as a relevant sentencing consideration.[20] Moreover, defence counsel submitted — and the prosecutor accepted — that the pleas were entered at the ‘first reasonable opportunity’.
[20]Reasons [17].
On the other hand, the question of whether ‘sufficient weight’ was given to the significance of the guilty pleas can only be determined by examining the sentence ultimately imposed, in the light of all relevant factors.[21] As is well established, the s 6AAA statement cannot assist with that enquiry.[22] The respondent’s submission to the contrary must be rejected.
[21]R v Burke (2009) 21 VR 471, 477 [30]–[31]; [2009] VSCA 60 (Maxwell ACJ, Redlich JA and Vickery AJA).
[22]Ibid.
Grounds 5–7 contend, respectively, that the sentence of 15 years’ imprisonment on the LCQ trafficking charge, the total effective sentence and the non-parole period are manifestly excessive. Both the written case and the oral submissions concentrated almost entirely on the sentence of 15 years’ imprisonment for LCQ trafficking.
Assessing offence gravity
As noted earlier, the principal argument was that the judge overstated the objective gravity of the offending. It was submitted that the applicant’s offence was simply one of possession (for trafficking), and only on a single day. He had not actually sold any drug, nor negotiated any sales.
We reject that argument. There was no overstatement. What the judge described as the ‘sheer quantity’ of the drug in the applicant’s possession made this a very serious offence indeed. As this Court said recently in Rahmani v The Queen:
As to the objective gravity of the offence [of LCQ trafficking], the maximum penalty of life imprisonment sends a message to the community, and to sentencing courts, that this is an offence of the utmost seriousness. As is well recognised, the sentencing regime for drug trafficking offences is quantity-based. The maximum of life imprisonment for LCQ trafficking is to be compared with the maximum of 25 years’ imprisonment for commercial quantity (CQ) trafficking.
…
It is the Parliament which sets the parameters within which the sentencing discretion is exercised. In the case of LCQ trafficking, the sentencing court is guided by two related parameters: the maximum penalty of life imprisonment and the place of this offence in the legislative hierarchy of trafficking offences differentiated by quantity. As we have said, the quantity trafficked in the present case took it into the highest quantitative category, which marks out the most serious drug trafficking offence under Victorian law.[23]
[23][2021] VSCA 51, [23], [30] (Maxwell P and Niall JA) (‘Rahmani’).
The same is true of the present case. The quantity which the applicant trafficked took his offence ‘into the highest quantitative category’. And, since the quantity was almost four times the threshold for LCQ, the offence was well into that category.
Moreover, this was not a case of mere possession, as was properly acknowledged by defence counsel on the plea. On the contrary, her Honour found that an assessment of the objective seriousness of the trafficking necessitated taking into account the finding in the applicant’s apartment of the gun, the ammunition and the other weapons. Further, her Honour found that the quantity of methylamphetamine — being 3.8 times the LCQ threshold — together with the number and location of the weapons, the amount of cash and the presence of scales and deal bags, all pointed to this being ‘a continuing commercial enterprise’.[24]
[24]Reasons [31].
There was no challenge to any of those findings on this application. On the plea, defence counsel properly conceded that these were the ‘accoutrements’ of drug trafficking. For her Honour to draw those inferences about the character and purpose of the applicant’s possession of the drug was wholly consistent with the analysis by the High Court in R v Falzon,[25] to which the prosecutor had correctly drawn attention on the plea.
[25](2018) 264 CLR 361, 377 [40]–[42]; [2018] HCA 29 (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
Further, the judge found that the applicant was engaged in trafficking for profit. He ‘apparently wanted to demonstrate that [he] could be a financial success’.[26] It follows, as the respondent submitted, that his moral culpability was high. His possession for trafficking showed that he was prepared to deal in very large quantities of drugs of addiction for his own selfish benefit.
[26]Reasons [32].
As her Honour correctly said:
Large commercial quantity trafficking, for profit, is a pernicious and insidious offence. It causes misery, misery that you saw by reason of your partner's habit, to countless people. And as you now appreciate, not just to the people who are addicts or users, but to their families, their friends and to the broader sections of the community who also are adversely affected by people who, because of addiction, commit terrible offences either to feed their addiction or because of the influence of drugs on them. People who think that they can lend themselves to this trade for profit, or to enjoy the trappings of financial success must face stern punishment to deter them and to deter others like-minded.[27]
[27]Ibid [49].
We reject the applicant’s submission that his offending was somehow less serious than other trafficking because there was no evidence of any sale or distribution of the drug. As the respondent’s written case correctly pointed out, there is a long line of authority in this Court holding that the potential harm of a drug held in possession for sale is viewed as seriously as the actual harm caused by distribution.[28] Put another way, trafficking by possession for sale is no less serious an offence than trafficking by sale, although actual sales may be relevant depending on the circumstances of the case.[29]
[28]See DPP v Holder (2014) 41 VR 467, 472–3 [25]; [2014] VSCA 61 (Maxwell P, Neave and Redlich JJA). Also, Chandler v The Queen [2010] VSCA 338, [25] (Maxwell P and Weinberg JA); Mokbel v The Queen [2011] VSCA 34, [37]–[43] (Neave JA).
[29]See Taumoefolau v The Queen [2015] VSCA 221, [33]–[36] (Hansen, Whelan and Beach JJA).
The correctness of those authorities has never been questioned. As explained recently in Rahmani, that line of authority is unaffected by the decision in Arico v The Queen,[30] on which the applicant relied. As the Court in Arico noted, the trafficking in that case did not involve possession of drugs.[31]
[30][2018] VSCA 135 (‘Arico’).
[31]Ibid [408]–[424].
There is a further point to be made about the offence of possession for sale. Possession is, by definition, a state of affairs. It is not an activity, unlike trafficking by supply or sale. Possession continues unless and until it is given up. It follows, in our view, that the contention advanced on the plea and again in this Court — that the applicant ‘was only in possession on a single day’ — is of little significance to the assessment of offence seriousness.
What matters for that assessment is not the duration — short or long — of the offender’s possession, but its character. As already noted, the applicant’s possession of the drug was characterised as being associated with ‘a continuing commercial enterprise’. By contrast, the fact that an offender’s trafficking by sale was confined to a single day might warrant that offence being viewed as less serious than an offence involving sales made over a period of time.
The ‘knock on effect’ of Gregory (a pseudonym) v The Queen
In Rahmani, this Court upheld a submission by the Director that what was said by this Court in Gregory, about sentencing for CQ trafficking, had a ‘knock on effect’ for sentencing for LCQ trafficking in methylamphetamine. The same submission was made by the respondent in the present case, although it was expressed differently, as follows:
It is submitted that (notwithstanding the additional consideration of the applicable standard sentence) the sentence of 15 years’ imprisonment imposed on Charge 1 meets the concerns expressed by this Court in Gregory (a pseudonym) v The Queen, as to the state of inadequacy of current sentencing practices for the upper category of commercial quantity trafficking. In Gregory the Court provided general guidance that sentences ‘well into double figures’ would be well within range for the upper category of commercial quantity trafficking and that, in order to maintain appropriate sentencing relativities, sentences for large commercial quantity trafficking would likewise be expected to increase.
In Gregory, the Court upheld the Director’s submission that sentences for CQ trafficking had been
unduly compressed at the ‘top’ end of the range and require recalibration to reflect the inherent gravity of the offending conduct, the impact of the offence upon addicts and the wider community in general, and the high maximum penalty prescribed for the offence.[32]
The Court went on:
As the Director submits, sentencing practice must change. There needs to be an appropriate relativity between the sentencing standards for each category of seriousness of an offence and in the case of trafficking offences, which have an ascending order of seriousness depending on quantity, an appropriate relativity must be maintained between sentencing standards for each quantity-based offence.[33]
[32]Gregory [2017] VSCA 151, [4] (Maxwell P, Redlich and Beach JJA).
[33]Ibid [97].
The Court in Gregory concluded as follows:
As with any other category of offending, there is wide variation in the seriousness of CQ trafficking offences, and in the culpability of the trafficker(s). Likewise, there is great variation in the role played by the offender, ranging from a controlling role to the role of courier or driver. And, of course, there is room for very significant variations in quantity between the bottom and the top of the applicable quantity range. For the reasons given earlier, variations in quantity will ordinarily bear significantly on the assessment of the relative seriousness of the offence.
It would therefore be expected — and Parliament must be taken to have intended — that there would be a spread of sentences across the statistical range. In particular, sentences well into double figures would have been expected for CQ trafficking offences where one or more of the following features was present:
·the quantity involved approached the LCQ threshold;
·the offender was in charge of the trafficking business;
·the business was conducted for a substantial period;
·the offender pleaded not guilty; and/or
·the offender had relevant prior convictions.
As we have seen, there is no such spread of sentences for CQ trafficking. On the contrary, sentences for this offence over the past decade are ‘clustered’ under 10 years’ imprisonment. This reflects, as the Director submits, a ‘persistent error’ in the manner in which serious instances of this offence have been treated. It demonstrates, moreover, that the objective seriousness of this offending has been wrongly categorised.[34]
[34]Ibid [97]–[99] (citations omitted).
In the present case, as in Rahmani, the Director relied on what was said in Gregory about the need to maintain ‘appropriate relativities’ between the different categories of trafficking offences. According to the submission, the need for an uplift in sentences for upper end CQ trafficking (to which the maximum of 25 years applies) meant that sentences for LCQ trafficking (to which the maximum of life imprisonment applies) would ‘likewise be expected to increase’.
At the hearing, senior counsel for the Director simply relied on the content of the written case as it related to the manifest excess grounds, and did not further develop the Gregory submission. Senior counsel for the applicant advanced no submission on the point.
In our view, the Director’s Gregory submission is plainly correct. Although the point was not raised on this application, there is no tension between what was said in Gregory about the need for sentencing practices to change and what the High Court said subsequently in Director of Public Prosecutions v Dalgliesh (a pseudonym)[35] about the importance of individualised sentencing.[36] What was said in Gregory necessarily informs the identification of the sentencing range within which the sentencing court fashions an individualised sentence.[37]
[35]262 CLR 428; [2017] HCA 41 (‘Dalgleish’).
[36]DPP v Condo [2019] VSCA 181, [20] (Maxwell, T Forrest and Weinberg JJA).
[37]Rahmani [2021] VSCA 51, [29]; Gayed v the Queen [2021] VSCA 141, [27]–[29] (Priest and T Forrest JJA).
The quantity-based hierarchy of trafficking offences — and associated maximum penalties — has been deliberately constructed to reflect Parliament’s view of the ascending order of offence seriousness. What the then Attorney-General told Parliament in 2001, when introducing the legislation which created the offence of LCQ trafficking, bears setting out at some length:
New offences
The history of the development of the offences of drug trafficking and cultivation of narcotic plants reflects the increasing importance that the community and successive governments have attached to punishing those involved in the drug trade. Initially, drug trafficking and cultivation offences applied regardless of the quantity of drugs involved.
However, in 1983 new penalties were introduced which distinguished between those who trafficked a commercial quantity of drugs and those who trafficked in a lesser amount. In 1997, higher penalties were introduced for trafficking less than a commercial quantity of drugs to a child.
However, it has become apparent that the current regime for drug trafficking and cultivation offences is inadequate. Because of the changing nature of the drug trade, new offences are required to provide higher penalties for larger quantities of drugs and to close loopholes that exist for those who trade in a range of drugs.
…
Life imprisonment
The new offence of trafficking in a large commercial quantity will attack the Mr Bigs of the drug trade, who operate at the top of the manufacturing and distribution hierarchy and who make large profits from trafficking in drugs. It is not directed at drug addicts who peddle drugs in order to obtain money to feed their own drug addiction.
At present the longest sentence of imprisonment that can be imposed for drug trafficking in Victoria is 25 years. This penalty applies to trafficking in any drug above a set amount. In the case of heroin it is 250 grams. Cases have arisen in Victoria of trafficking in several kilograms of heroin. The maximum that can be imposed for such cases is 25 years imprisonment.
Large-scale commercial trafficking is defined in this bill as any amount more than 750 grams of pure heroin, cocaine or amphetamines. Quantities have also been set for a range of other drugs, including cannabis, according to the commercial value of the drug.
In addition to imprisonment, the maximum fine for this new offence is $500 000. This is double the maximum fine applicable to the existing offence of trafficking in a commercial quantity.
Similar maximum penalties have been set for cultivating a large commercial quantity of cannabis plants.
The new maximum penalty of life imprisonment reflects the community's abhorrence of large-scale drug trafficking and cultivation and will warn potential offenders of the price they could pay for engaging in this illicit trade.[38]
[38]Victoria, Hansard, Legislative Assembly, 16 August 2001, 28-9 (Rob Hulls, Attorney-General) (emphasis added).
The need to maintain ‘appropriate relativities’ between sentences for CQ trafficking and those for LCQ trafficking is simply a reflection of the principle of equal justice, as explained by the High Court in Green v The Queen.[39] That is, sentencing should reflect relevant differences between offenders and offences:
‘Equal justice’ embodies the norm expressed in the term ‘equality before the law’. It is an aspect of the rule of law. It was characterised by Kelsen as ‘the principle of legality, of lawfulness, which is immanent in every legal order.’ It has been called ‘the starting point of all other liberties.’ It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
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.[40]
[39](2011) 244 CLR 462, 472–3 [27]; [2011] HCA 49 (‘Green’).
[40]Ibid 472–3 [28] (French CJ, Crennan and Kiefel JJ) (emphasis in original) (citations omitted).
Other things being equal, an offence of LCQ trafficking is more serious than an offence of CQ trafficking, because it falls into the highest quantitative category and carries the highest maximum. Other things being equal, an offence of LCQ trafficking which involves — as the applicant’s offence did — a quantity representing multiples of the LCQ threshold is more serious than an offence of CQ trafficking which involves a quantity representing multiples of the CQ threshold.
This differential in offence gravity needs to be reflected in sentencing for LCQ trafficking, if Parliament’s clear intention is to be effectuated. As was stated in the second reading speech, the new maximum of life imprisonment was intended to send the clearest message to would-be traffickers — and to sentencing courts — about how sternly large-scale drug trafficking was to be punished.[41]
[41]Arico [2018] VSCA 135, [317] (Maxwell ACJ).
Given what was said in Gregory — that the legislature must be taken to have intended sentences ‘well into double figures’ for upper end CQ trafficking — the sentence of 15 years in the present case is unremarkable. This was extremely serious offending, driven by greed. As the judge found, there was nothing in the applicant’s personal circumstances which mitigated the objective seriousness of the offending. Nor was there any basis for moderating his moral culpability. As her Honour noted, he had a ‘background of privilege, opportunity and intelligence’.
Relevantly to the manifest excess grounds, the sentence of 15 years can be seen to reflect the giving of appropriate weight to the matters relied on in mitigation, including the pleas of guilty. It follows that the total effective sentence (16 years and 5 months) was also within range. The non-parole period (10 years) was only 61 per cent of the head sentence and can be seen to reflect the giving of particular weight to the applicant’s prospects of rehabilitation.
We deal finally with one mitigating factor on which particular reliance was placed. It concerned the applicant’s remorse and his development of insight into the harm caused by his own drug trafficking. The point is best understood by reference to the sentencing reasons, where her Honour said:
You have been in custody since your arrest and remand on 2 January this year. I am told that you have not only been drug-free, but you have also come to appreciate the impact of your drug-trafficking on so many of your fellow prisoners. You have seen prisoners who are substance-impaired, something I note you had already seen with your partner whilst you were at liberty. You report you have now seen the cycle of offending and other antisocial behaviours that have led so many people who were, as you now understand them to be, the victims of people like you who traffic for profit, and who find themselves serving prison sentences for offences related directly to their amphetamine use or for offences committed in order to feed their habit.
I accept that you are now expressing an understanding of the impact of methylamphetamine abuse on a large cross-section of the community, many of whom find themselves ultimately in prison. You apparently now acknowledge that your role in trafficking helped create this misery and cycle of offending for so many other people. It is obviously a great pity, given the two occasions when you removed yourself to Singapore and became drug-free and your exposure to the devastation that amphetamine addiction apparently wrought on your partner, that you were nonetheless able, whilst at liberty, to rationalise your behaviour in making a business of profiteering from trafficking in this drug of misery.[42]
[42]Reasons [44]–[45].
Counsel for the applicant submitted that, notwithstanding those remarks, her Honour had not stated — expressly or by implication — that she was ‘giving an added element of leniency by reason of the applicant’s remorse’. This was said to show that insufficient weight had been given to his remorse.
We reject that submission. There is, of course, no obligation on a sentencing judge to identify individual ‘elements of leniency’. Indeed, to do so would conflict with the task of instinctive synthesis. The proper exercise of the sentencing discretion requires only that the judge take all relevant considerations into account. On this particular matter, the sentencing reasons speak for themselves.
For these reasons, the manifest excess grounds — 2, 4, 5, 6 and 7 — must be rejected.
Additional ground: prospect of deportation
On the plea, in response to an enquiry by the sentencing judge, defence counsel stated that the applicant was an Australian citizen and, as a result, would not be deported at the conclusion of his sentence. Shortly before the present application came on for hearing, however, the applicant’s legal advisers ascertained that the true position was different. That is, the applicant was not an Australian citizen, having renounced his citizenship in 2015, and would therefore be liable to deportation at the conclusion of his sentence.
Senior counsel for the applicant informed the Court that conviction on the trafficking charge would lead to the automatic cancellation of the applicant’s permanent residency visa and, further, that the applicant did not intend to seek a revocation of that cancellation. The submission for the applicant was that the burden of his custodial sentence is now greater than the sentencing judge had understood it would be, as he faces the prospect of being separated from his mother and his two adult sisters, all of whom are permanent residents.
A decision not to challenge a visa cancellation is quite unusual. Most offenders faced with deportation consequent upon conviction and sentence are anxious to do whatever is possible to avert that prospect, typically because they have established a life in Australia which they do not wish to give up. The anxiety is especially acute when the offender has raised a family in this country. In the usual case, it is the uncertainty about whether deportation will be averted — and the fear that it will not — which is viewed by sentencing judges as making incarceration more burdensome.[43]
[43]Guden v The Queen (2010) 28 VR 288; [2010] VSCA 196; Konamala v The Queen [2016] VSCA 48; Schneider v The Queen [2016] VSCA 76; DPP v Macarthur [2019] VSCA 71.
Here, the applicant has elected to accept his deportation. No explanation was advanced for that decision but — as his counsel accepted — it must be understood against the background of the applicant’s having twice moved back to Singapore, where he was born, and having done so on his own initiative.
On each occasion, the judge was told, the applicant had stayed in Singapore for two years, before returning to Australia. The first time he went back, in 2010-11, he undertook national service. The second time, when he was in his mid-20s, he went ‘in pursuit of entrepreneurial and financial success’. That was apparently the time when he renounced his Australian citizenship. During each stay in Singapore, the applicant had managed to remain drug-free, only to relapse on returning to Australia.
Counsel for the Director had no objection to the Court receiving the information about deportation as new evidence.[44] The question then is whether the interests of justice require a reduction of the sentence. We are not persuaded that they do.
[44]R v Nguyen [2006] VSCA 184.
The decision not to challenge the visa cancellation is consistent with what the applicant’s history reveals. That is, he has chosen to spend two lengthy periods in Singapore and at least the second of those — given its purpose — was seemingly undertaken with a view to staying permanently. Self-evidently, the prospect of being separated from his mother and siblings did not stand in the way of either of those moves. Moreover, as the expert evidence confirmed, the years spent in Singapore were the brightest periods of the applicant’s adult life, as he was drug-free and able to demonstrate his high intelligence and capability.
In those most unusual circumstances, the prospect of deportation is a matter of relatively little significance to the sentencing. Ground 8 must therefore be rejected.
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