R v Langdon
[2004] VSCA 205
•16 November 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | |
| Nos. 245 of 2003 and 98 of 2004 | |
| v. | |
| DAVID MATHEW LANGDON | |
| - and - | |
| THE QUEEN | |
| Nos. 246 of 2003 and 99 of 2004 | |
| v. | |
| SUSAN LANGDON | |
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JUDGES: | BATT and EAMES, JJ.A., and GILLARD, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 October 2004 | |
DATE OF JUDGMENT: | 16 November 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 205 | Second Revision: 18 November 2004 |
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CRIMINAL LAW – Drug offences – Allegation of double jeopardy concerning prosecution and conviction – Test to apply – No plea in bar nor abuse of process of court.
SENTENCING – Alleged double jeopardy in punishment – Offences of trafficking and being in possession of a drug of dependence – Double punishment – Being punished twice for the same criminal acts – Effect of double punishment – In circumstances conviction and sentence quashed – Total sentence and non-parole period not excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant D.M. Langdon For the Appellant S. Langdon | Mr. T.E. Wraight Mr. M. J. Croucher | Michael Amad Michael Amad |
BATT, J.A.:
I agree with Gillard, A.J.A. In my opinion, the possession of the 7.3 grams of amphetamine was part of the trafficking, as the prima facie evidence of trafficking it constituted by virtue of s.73(2) of the Drugs, Poisons and Controlled Substances Act 1981 was not displaced. There was double punishment and, with the benefit of hindsight, it can be seen that the pleas of guilty to count 9 should not have been accepted. It may be that the quashing of the conviction and sentence on count 9 in each case re-opens the whole sentencing discretion (cf. s.569(1) of the Crimes Act 1958), but, despite the appellants’ arguments, I do not think that a different sentence should be passed on the other counts.
EAMES, J.A.:
I agree with the orders proposed by Gillard, AJ.A. and with his reasons.
GILLARD, A.J.A.:
On 18 August 2003, David Matthew Langdon and his wife, Susan Langdon, were arraigned before the County Court sitting at Wodonga.
Mr Langdon was charged with two counts of handling stolen goods; one count of trafficking in a drug of dependence, namely, amphetamine; one count of possession of substances for the purpose of trafficking in a drug of dependence; one count of theft and one count of possession of a drug of dependence, namely, amphetamine. He pleaded guilty to all counts.
Mrs Langdon was charged with one count of trafficking in a drug of dependence, namely, amphetamine; one count of possession of a substance for the purpose of trafficking in a drug of dependence; one count of handling stolen goods; and two counts of possession of a drug of dependence, namely, pseudoephedrine and amphetamine respectively. She also pleaded guilty to all counts.
The maximum penalties for handling stolen goods was 15 years, 15 years and $100,000 for trafficking, 10 years for possession of drug making substances and items, 10 years for stealing and five years and $40,000 for possessing a drug of dependence.
Mr Langdon admitted prior convictions between August 1988 and December 1995. One was for theft for which he was fined $50, five driving offences and possession of a dangerous drug for which he was fined $150.
Mrs Langdon admitted prior convictions between July 1987 and October 1999. Four were driving offences, one for supplying liquor to a child, seven charges of knowingly obtaining unemployment benefits whilst working and one charge of using a driver’s licence calculated to deceive.
On that day his Honour heard a plea in respect to both applicants and reserved his decision.
On 22 August 2003, his Honour passed sentence of imprisonment upon each of the applicants as follows:
David Langdon
Count 1 – handling stolen goods: six months,
two months cumulative;
Count 2 -
handling stolen goods:
six months,
two months cumulative;
Count 3 -
traffic amphetamine:
four years (base);
Count 4 - possess substances for purposes of trafficking: two years concurrent; Count 6 -
theft:
six months,
two months cumulative;
Count 9 -
possess amphetamines:
10 months concurrent.
This resulted in a total effective sentence of four years and six months imprisonment, and his Honour fixed a non‑parole period of three years and three months. As Mr Langdon had been in detention, his Honour made a declaration that 214 days’ pre-sentence detention be taken into account as clearly served.
Susan Langdon
Count 3 -
traffic amphetamine:
three years;
Count 5 - possess substance for purpose of trafficking: one year; Count 7 - handle stolen goods: three months; Count 8 - possess pseudoephedrine: six months; Count 9 - possess amphetamine: ten months.
Each sentence was concurrent by reason of s.16(1) of the Sentencing Act 1991, making a total effective sentence of three years’ imprisonment. His Honour fixed a non‑parole period of 20 months. His Honour made a declaration that 36 days’ pre‑sentence detention be taken into account as already served.
It is necessary to note that there was a co‑accused, namely, John Mark Zagrovic, who pleaded guilty to two counts of possession of a substance for trafficking in a drug of dependence. He was sentenced to a term of imprisonment of nine months on each count and the court directed that three months on Count 2 be served cumulatively with the sentence imposed on Count 1. This resulted in an effective term of 12 months’ imprisonment. His Honour ordered that Mr Zagrovic serve his term of imprisonment by way of an intensive correction order. It was clear that he played a lesser role in the activities than the two Langdons. An order was signed that day but on 28 November 2003 Mr Zagrovic was brought back to court, it was proven that he breached the order, it was cancelled and he was ordered to serve 332 days’ imprisonment.
On 4 September 2003, Mr and Mrs Langdon filed an application for leave to appeal against their sentences and on 12 March 2004, this Court granted both applicants leave to appeal against their sentences. On 21 May 2004, the Registrar of the Court of Appeal granted Mr and Mrs Langdon an extension of time for leave to appeal against their convictions. Mr Langdon alleged that the conviction and sentence on Count 4 was erroneous in that the facts relied upon were the facts relied upon to prove Count 3. He also alleged that the same argument applied in relation to Count 9, namely, that the facts to prove Count 9 were the facts relied upon to prove Count 3. These grounds raise issues of double jeopardy in respect to prosecution and conviction and also sentence. Mrs Langdon argues that the convictions and imposition of sentences in respect of Counts 5, 8 and/or 9 were erroneous because the facts relied upon were the facts that proved Count 3. On 4 August 2004, the Registrar granted the applicants leave to amend their grounds of appeal against sentence. Mr Langdon has relied upon 12 grounds of appeal against sentence and Mrs Langdon, ten.
On the plea, the Crown tendered two documents, namely, a business receipts book prepared by Mr and Mrs Langdon, and the diary of David Langdon. The defence tendered in evidence references regarding Mr and Mrs Langdon, reports relating to Mrs Langdon, and a statement of Mr Langdon and Mrs Langdon. Mr Langdon also gave evidence before his Honour in an effort to establish that their involvement in the manufacture and sale of amphetamines was minor and was at the direction of a Mr Pierpoint.
The facts concerning the commission of the offences can be briefly summarised.
On 9 March 2001 a burglary was committed at a residential property at Baranduda.
The property stolen comprised a Hewlett Packard computer system and printer valued at $2,300, jewellery valued at $3,200 and a Diner’s Club credit card in the name of “R.R. Herrin”.
The credit card was used to purchase a number of items on the Internet, namely, A Handbook of Chemistry and Physics, 81st edition, and the Merck Index: CDROM Windows Version 12.3 using the e‑mail address of “[email protected]”. The address for delivery was “Andrew Gibbs, 4/1 Railway Street, Wodonga”. At that time Mr and Mrs Langdon were residing at 1 Hugh Court, Wodonga. Investigations revealed that the e‑mail address was used via a telephone number and the subscriber for the number was Mrs Langdon. These facts constituted the first two counts involving Mr Langdon, being offences of handling stolen goods.
On 22 and 23 March 2001, Alpha Chemicals in Dee Why, New South Wales, received telephone enquiries purporting to come from a company called Electrons Pty Ltd of Wodonga and Alistair Moyle of Tallangatta in the State of Victoria concerning the possible purchase of 10 kilograms of sodium hypophosphite. The company received an order via facsimile from A.J. and C.E. Moyle requesting the supply of 10 kilograms of the chemical to be delivered to Mrs Langdon at 1 Hugh Court, Wodonga. The enquiry and order were referred to the police and the supplier was directed to proceed with the transaction. A postal order in the sum of $401.50 was received for payment and the chemical was forwarded with a delivery docket made out to Susan Langdon of 1 Hugh Court, Wodonga. Delivery was effected on 20 April 2001 and Mrs Langdon signed the delivery document.
On 7 August 2001 a search warrant was executed at 1 Hugh Court, Wodonga. In the dining room the police found the stolen printer (being Count 1), and the Merck Index CD located nearby (Count 2). Mr Langdon stated he had purchased the printer from a John Pierpoint for $50 and that Pierpoint had purchased the CD and left it behind. The police ascertained on Mr Langdon’s computer that the e‑mail name “speedieau” was used by Mr Langdon on a number of occasions.
Count 3 concerns the serious criminal conduct of trafficking in a drug of dependence, namely, amphetamine. The count was joint involving Mr and Mrs Langdon. This count carried a maximum sentence of 15 years and a fine of up to $100,000.
The police found a ledger-style notebook in which details of sales of amphetamines to persons locally and also to persons interstate were recorded. Both Mr and Mrs Langdon were responsible for recording the entries. Both denied trafficking in amphetamine and stated that a John Pierpoint conducted the sale of the drugs and that they were merely keeping records of his transactions. The police discovered e‑mail messages to a person in Tasmania which related to the transactions recorded in the notebook. Records of the Bank of Melbourne confirmed that between 3 April 2001 and 14 September 2001 a total of $32,350 was deposited into Susan Langdon’s savings account. The amounts deposited ranged from $280 to $5,000. The deposit slips reveal that the depositors used false identities. The deposits included sums deposited in branches in Tasmania and South Australia. At that time both Mr and Mrs Langdon were unemployed and were receiving Centrelink payments and a Family Allowance benefit. Investigation revealed that the sums deposited and the dates tallied with entries made in the ledger notebook and a diary kept by Mr Langdon. The entries in the notebook listed names, dates, sizes and amounts owing and paid for drug transactions. Mr and Mrs Langdon made entries recording the sales in the book. The records disclose total sales of approximately 335 grams of high grade amphetamines which were sold for a total of approximately $31,380.
Scientific testing of the amphetamines found disclosed an average purity of 30% and if the amphetamines sold by Mr and Mrs Langdon were of that level of purity, it was calculated that the total street value would be in the order of $100,620 to $301,860.
Mr and Mrs Langdon denied being engaged in the manufacture of amphetamines and nominated John Pierpoint as their supplier. It was the case put by the Crown that whilst not denying either the existence of Mr Pierpoint or his involvement in the criminal enterprise, Mr and Mrs Langdon were involved in the manufacture and sale and the Crown relied upon the evidence summarised in support of Counts 4, 5, 8 and 9.
The police also found quantities of a variety of chemicals which are ingredients for the manufacture of amphetamines, namely, hydrochloric acid, sulphuric acid, ammonium nitrate and acetone, along with receipts for specialised chemistry glassware, receipts for manufacturing amphetamines, other production documents and an order for the supply of 250 kilogram drum of hydrophosphorus acid on 27 July 2001. Recorded on Mr Langdon’s computer were receipts for the manufacture of amphetamines, Internet purchases of 1,800 pseudoephedrine tablets from overseas pharmaceutical companies, lists of local chemists for the purchase of pseudoephedrine products and records of engaging persons to attend at chemists to purchase pseudoephedrine products.
Further investigations revealed that Mr Langdon and Mr Zagrovic had purchased a 250 kilogram drum of hydrophosphorus acid on 27 July 2001 from Kendon Chemicals in Thornbury for approximately $5,090, paid in cash.
On that day Mr Langdon and Mr Zagrovic attended at the company’s premises. Mr Langdon, using his own name, told the office manager that he worked for Northwest Bay Seafood and that the chemical was used by the Tasmanian fishing industry for cleaning metal nets. Kendon Chemicals subsequently received an order by facsimile for the supply of a 250 kilogram drum of the acid to Northwest Bay Seafood of “1 Hugh Court, Wodonga”. That same day the drum was collected by Mr Langdon and Mr Zagrovic. The contents of the drum are worth approximately $250,000 on the black market if sold in bulk. It could also be sold in one kilogram quantities at $2,000 per kilogram, in which case the total contents could be sold for a total of $500,000. The contents of the drum were sufficient for the manufacture of approximately 140 kilograms of pure amphetamines with a street value amounting to millions of dollars. Mr Langdon admitted collecting the drum knowing it was to be used for the manufacture of amphetamines, but again stated he did it for John Pierpoint and received cash and drugs as payment. He further stated that the drum was collected from his front yard and had not been seen since. That evidence supports Count 4.
The police, when they searched the premises at Wodonga, found other items of computer equipment, parts and software and Mr Langdon gave varying accounts of where each item came from, stating that he had acquired them lawfully. He stated that in respect of a printer and some software, they belonged to his previous employer, Tony Horner, and that he had permission to keep them. Mr Horner denied that he had any right. He stated that almost all the computer equipment and software belonged to his company, Network Solutions. This was the evidence in relation to Count 6.
Also during the search, a Rowa DVD player was found in the loungeroom. Mrs Langdon stated she had purchased it for $100. She stated at the time she thought it may have been stolen but she purchased it anyway and she said it was worth about $250. This was the evidence in relation to Count 7 against Mrs Langdon.
The police also found a plastic container containing 28 grams of pseudoephedrine in Mrs Langdon’s bedroom. This is used as an ingredient for the manufacture of amphetamines. This was the evidence of Count 8 against Mrs Langdon.
In the spare bedroom at their home the police found a number of plastic bags containing amphetamines. The total content was 7.3 grams with a purity of 30%. Mrs Langdon told the police that the amphetamine was purchased for her own personal use. Mr Langdon stated he was using amphetamines. That was the evidence in support of Count 9.
Both Mr and Mrs Langdon pleaded guilty to the counts. By pleading guilty to the counts each admitted the elements of each of the counts. It is clear from the plea made on their behalf that they sought to distance themselves from the involvement in any major way in manufacturing and distribution and stated that they were manufacturing and supplying on behalf of Mr John Pierpoint. Evidence was given by Mr Langdon to support this. His Honour considered the evidence and came to the conclusion that both Mr and Mrs Langdon were deeply involved in the manufacture and sale. His Honour rejected Mr Lagndon’s version and said at p.100 of the transcript the following:
“My conclusion is that you were both involved in a medium sized but well organised and professionally run amphetamine production and sales operation from your home. Pierpoint may have been involved, in fact he probably was, perhaps others as well, but both of you were principals in the activity in which you were engaged.”
Application for leave to appeal against convictions
Mr and Mrs Langdon pleaded guilty to the counts on the presentment. Each now seeks to appeal against the convictions in relation to some of the counts based on the general proposition that each has been convicted and sentenced more than once in respect of the same criminal acts. That is, convictions being recorded and being punished twice, or more, for the commission of the same criminal acts. It was submitted on behalf of Mr Langdon that the facts which constituted the establishment of Counts 4 and 9 were “subsumed with the facts relied upon to prove Count 3”. It was submitted that Mr Langdon was effectively prosecuted three times on facts that are common to all three counts, resulting in triple punishment. It was put on behalf of Mrs Langdon that the facts which constituted the criminal activity in Count 9 were “subsumed by the elements of Count 3”. It was said that there was a miscarriage of justice because the judge accepted the plea and recorded the conviction on Count 9. It was argued that Counts 5 and 8 were an abuse of process because the factual matters were part and parcel of the one transaction.
Both Mr and Mrs Langdon have also raised similar arguments in relation to the sentence on the basis that they have been punished more than once for the commission of the same criminal acts.
For the purposes of the issue of double jeopardy, it is necessary to draw a distinction between the conviction of a person in respect to a number of similar counts and the imposition of custodial sentences in relation to those counts.
Double Prosecution and Conviction
The applicants’ counsel referred to s.51 of the Interpretation of Legislation Act 1984. It provides:
“51. (1) Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.”
Sub-section (2) defines the word “law”. It is noted that sub‑section (1) prohibits liability for punishment more than once for “the same act or omission”. The prohibition is concerned with “the same act or omission”. In my opinion, s.51 is concerned with punishment and does not bear on the question of the liability for prosecution. Whether or not a person can be prosecuted more than once for the same act or omission will depend upon the legislation, if there is any, but in the absence of any contrary intention in any legislation the sub-section does not prohibit a person being prosecuted under two or more laws for the same act or omission.
The issues raised by Mr and Mrs Langdon were discussed by the High Court in Pearce v. The Queen[1]. The principles were also discussed by the Full Court in R v. Weeding[2].
At the County Court hearing, Mr and Mrs Langdon pleaded guilty to all the counts presented against each of them, and neither, through their counsel, raised a plea in bar on the basis that the elements of some of the offences were the same or were included in the elements of another offence.
Mr and Mrs Langdon pleaded guilty. The court has the power to permit an appeal against a conviction after a plea of guilty but will only do so where there are exceptional circumstances. In R. v. Stewart[3], the Court said[4]:
“That the Court can entertain an appeal against a conviction upon a plea of guilty, is undoubted, but it is only in very exceptional circumstances that it can do so.”
See also observations of O’Bryan, A.J.A. in R v. L. El-Kotob[5].
If an error of law has occurred and as a result, convictions were recorded which should not have been recorded against Mr and Mrs Langdon, in my opinion that would constitute a miscarriage of justice, and would satisfy the description of exceptional circumstances. They should be given leave to appeal against their convictions despite their pleas of guilty.
In Pearce v. The Queen, the High Court discussed the questions of a plea in bar, abuse of process and double punishment. The facts are illuminating. Section 33 of the Crimes Act 1900 (NSW) provided that whosoever maliciously by any means wounded any person with intent to do grievous bodily harm should be liable to penal servitude for 25 years. Section 110 provided that whosoever broke and entered a dwelling house and whilst therein inflicted grievous bodily harm would be liable to penal servitude for 25 years. The accused, Mr Pearce, was charged with two counts, one under s.33 and one under s.110, arising out of a single incident in which he broke into the victim’s house and beat the victim, causing serious injuries. At his trial, Mr Pearce applied to the trial judge for a stay of proceedings on the basis that the indictment was oppressive or an abuse of process or both. It was submitted that he was placed in double jeopardy by reason of the two counts. The application was refused and after pleading guilty he was sentenced to 12 years on each count to be served concurrently.
The High Court considered the question first of all whether or not he could be convicted on two counts arising out of the one incident. It was held that a plea in bar was not available to him, nor was the prosecution an abuse of process. However, the Court went on to consider the question of double punishment and although the learned trial judge had sentenced Mr Pearce to concurrent terms of imprisonment, it was held that he had in fact been punished twice for the one criminal act, namely, inflicting grievous bodily harm on the victim.
In R. v. Weeding, the Full Court approached a similar question where there were a number of counts on a presentment and the prosecution went to verdict. The question was whether or not the trial judge should have accepted the jury’s verdict in relation to the second of counts which were based on the same set of facts. The Court considered the issue as if there had been separate indictments. The question was whether on the second indictment the accused man could have relied on a plea of autrefois convict. In the present matter although the applicants’ counsel did not raise a plea in bar at the plea, in my view it is appropriate to consider these attacks upon the convictions on the basis of whether a plea in bar would have succeeded. This is a separate question to that of sentence.
Underlying the submissions put by counsel in this court for Mr and Mrs Langdon is the proposition that no person subject to criminal charges should be subjected to double jeopardy. The expression double jeopardy has been used in the criminal law in a variety of ways. In Pearce v. The Queen, supra, McHugh, Hayne and Callinan, JJ. said this[6]:
“The expression ‘double jeopardy’ is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be ‘punished again for the same matter’. Further, ‘double jeopardy’ is an expression that is employed in relation to several different stages of the criminal justice process; prosecution, conviction and punishment.”
(Emphasis added.)
It was submitted that at common law a person cannot be convicted on two counts where the criminal acts are the same or substantially the same. This raises two questions for consideration and determination. The High Court said in Pearce v. The Queen:
“The question then is whether [the applicants] had a plea in bar or [were] entitled to a stay of proceedings.”[7]
It is clear from the decision in Pearce v. The Queen that a plea in bar is not available unless the elements of the two counts are identical or the elements of one are wholly included in another count. McHugh, Hayne and Callinan, JJ. stated the test [8]:
“Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.”
Accordingly, the first question is - are the elements in the particular counts identical or are the elements of one count wholly included in the other? It is necessary at this point to set out the counts which it is said are identical or in which the elements of one offence are wholly included in the other. Mr Wraight of counsel for Mr Langdon said that the conviction on Count 3 was the appropriate conviction and that the convictions recorded for Counts 4 and 9 represented a triple conviction for the one charge. Mr Croucher of counsel for Mrs Langdon submitted that the conviction on Count 3 was the appropriate one and that convictions in respect to Counts 5, 8 and 9 represented double jeopardy in the prosecution or an abuse of process. The presentment was as follows:
“3. David Matthew Langdon and Susan Langdon at Wodonga between the first day of March 2001 and the seventh day of August 2001 without being authorised by or licensed under the Drugs, Poisons and Controlled Substances Act 1981 or the regulations thereunder to do so trafficked in a drug of dependence namely amphetamine.”
(Contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981 (“the Act”) - 15 years maximum.)
“4. That David Matthew Langdon at Wodonga between 10 March 2001 and 7 August 2001 had in his possession substances namely hydrophosphorus acid, hydrochloric acid, sulphuric acid, phosphoric acid, acetone and equipment being glassware and documents with the intention of using the said substances and equipment for the purpose of trafficking in a drug of dependence, namely amphetamine.”
(Contrary to s.71A of the Act – 10 years maximum.)
“5. Susan Langdon at Wodonga between the twentieth day of April 2001 and the seventh day of August 2001 had in her possession a substance namely sodium hypophosphite with the intention of using the said substances for the purpose of trafficking in a drug of dependence, namely amphetamine.” (Contrary to s.71A of the Act – 10 years maximum.)
“8. Susan Langdon at Wodonga on the seventh day of August 2001 without being authorised or licensed under the Drugs, Poisons and Controlled Substances Act 1981 or the regulations thereunder to do so had in her possession a drug of dependence namely pseudoephedrine.”
(Contrary to s.73 of the Act – maximum five years and $40,000.)
“9. That David Matthew Langdon and Susan Langdon at Wodonga on the seventh day of August 2001 without being authorised or licensed under the Drugs, Poisons and Controlled Substances Act 1981, or the regulations thereunder to do so had in their possession a drug of dependence namely amphetamine.”
(Contrary to s.73 of the Act – maximum five years and $40,000.)
The submission put on behalf of both applicants was that the applicants had been properly convicted on Count 3 which is the serious offence of trafficking and that in respect to Mr Langdon, Counts 4 and 9 were in effect the same offences and accordingly he should not have been convicted on them and with respect to Mrs Langdon, Counts 5, 8 and 9 were the same or substantially the same offences as Count 3 and she had been wrongly convicted.
The question is, looking at the elements of each of the counts concerned, are they the same or are the elements of one count included in the other? As was pithily stated by the High Court in Pearce[9]:
“Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld.”
The observations apply here. In my opinion, the submissions put on behalf of the applicants fail because each of the offences required proof of an element which the others did not. None of the elements of one offence were wholly included in another.
Count 3 required the prosecution to prove that the applicants during the period and at the place alleged, trafficked in a drug of dependence, and that it was a drug of dependence, namely, amphetamine. It was unnecessary for the prosecution to prove that the Langdons were not authorised or licensed. See s.104 of the Act. Count 4 involved different elements. Count 4 required proof that Mr Langdon had in his possession certain substances and equipment and documents, and that he had the intention of using the substances and equipment for the purpose of trafficking in a drug of dependence. These elements are different from the elements necessary to prove Count 3.
Count 9 required proof that Mr Langdon, on 7 August 2001, had on a day in his possession a drug of dependence, the drug of dependence being amphetamine. Again, the elements of this offence are different to the elements in Counts 3 and 4. Further, the elements of the offence are not wholly included in either Count 3 or 4.
If a plea in bar had been raised on behalf of Mr Langdon it would have failed.
So far as Mrs Langdon is concerned, the Crown would have had to prove the elements in respect of Count 3 set out above. In respect to Count 5, it was necessary to prove that she had in her possession a substance, namely, sodium hypophosphite, and that she had the intention of using that substance for the purpose of trafficking in a drug of dependence, namely, amphetamine. The elements of this count are different from the elements in Count 3.
Count 8 required the prosecution to prove that Mrs Langdon had in her possession a drug of dependence, namely, pseudoephedrine. Again, the elements of Count 8 are different from the elements proving Counts 5 and 3. With respect to Count 9, the prosecution had to prove that Mrs Langdon had in her possession on a day a drug of dependence, namely, amphetamine. Again, the elements of Count 9 are different from those in Counts 8, 5 and 3. Whilst Counts 8 and 9 involve similar elements, the actual drug of dependence in each case was different. Further, none of the elements of the counts are wholly included in any other count.
In my opinion, if a plea in bar had been raised on her behalf it would not have been upheld.
But that is not the end of the matter. There is the second question: was the pleading of the various counts an abuse of the process? The High Court in Pearce stated that if a plea in bar failed, the court had an inherent power to prevent an abuse of its process. McHugh, Hayne and Callinan, JJ. said[10]:
“Confining the availability of the plea in bar in this way does not deny the existence of the inherent powers of a court to prevent abuse of its process. That there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process is illustrated by Rogers v. The Queen (1994) 181 C.L.R. 251.”
However, as their Honours stated[11] the short answer to the contention that there was an abuse of process in charging Mr Pearce with two counts arising out of the same set of facts was that the offences were different (and different in important respects) and
“The laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R. v. De Simoni would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused’s conduct that could have been charged separately.”
Their Honours concluded that the primary judge was correct in not granting a stay.
In my opinion, those observations apply here. There was no basis for granting a stay. There was no abuse of process because the offences are different not only in relation to the elements, but also in relation to the factual matters which constituted each offence. Pearce v. The Queen is an example of one incident resulting in two counts, whereas in the present case each count dealt separately with a different factual situation.
In my opinion, the grounds relied upon for leave to appeal against convictions are not made out.
I should say that the submissions of counsel, especially counsel on behalf of Mrs Langdon, sought to show that the factual matters, namely, the evidence in relation to Counts 4, 5, 8 and 9, were also led in support of and formed part of Count 3. In my opinion, that is the wrong approach. It is a question, as the High Court has stated, whether the elements of the offences charged are identical or the elements of one offence are wholly included in another count.
APPEALS AGAINST SENTENCES
Mr Langdon’s appeal against sentence
Mr Langdon’s notice of appeal, after amendment, contained 12 grounds. However, at the hearing he relied upon four main grounds. They were manifest excessiveness, that the learned judge applied the wrong maximum in respect of the maximum penalty on Count 9, that the principle against double punishment applied, and, finally, that the learned judge had failed to apply the principle of parity.
Mrs Langdon, in her notice of application, relied upon ten grounds, after amendment. She did not seek to argue grounds one and three to eight (inclusive). She argued first that there was double punishment; and secondly, that the learned judge applied the wrong maximum penalty concerning Count 9.
It is convenient to first deal with the appeal by Mr Langdon.
As Mr Langdon has raised the question of the sentence being manifestly excessive, it is appropriate to state briefly the principles concerning the sentencing exercise and an appeal against the sentence imposed.
The responsibility of inflicting punishment lies solely upon the judge. He or she must form his or her own view of the facts and determine the seriousness of the crime and how severely or how leniently he or she should deal with the prisoner. See R. v. Harris[12]. In reaching his conclusion as to facts, the judge must proceed on the basis that matters which are adverse to the prisoner’s interests and which are not admitted by the plea of guilty must be established beyond reasonable doubt. If there are circumstances in favour of the prisoner, it is enough if those circumstances are proven on the balance of probabilities. See R. v. Olbrich[13]. In relation to the sentencing process I repeat what four members this Court said in R. v. Storey[14]:
“Sentencing is not a mechanical process. It requires the exercise of a discretion. There is no single ‘right’ answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the ‘instinctive synthesis’ which takes account of the various purposes for which sentences are imposed: just punishment, deterrence, rehabilitation, denunciation, protection of the community - and which pays due regard to principles of totality, parity, parsimony and the like.”
(Emphasis added.)
The object of sentencing is to pass a sentence which is regarded by the court as the appropriate sentence. The court is bound to take into account the provisions of the Sentencing Act 1991. The weight to be attached to each factor, whether it be of gravity or mitigation, depends upon the particular circumstances of the case. In the end result the punishment must fit the crime. The sentence must be appropriate and proportionate to the gravity of the crime, considered in the light of the objective circumstances including all matters of mitigation and matters personal to the prisoner.
The end result is the exercise of a discretion. This means that there is room for difference of opinion as to what is the appropriate sentence in the circumstances. It is not a question of an appeal judge saying that he or she would have imposed a different sentence. It is a question of whether or not the learned trial judge erred in the exercise of his discretion in fixing the sentence. This brings me to the approach of the appeal court. It is dealing with an attack upon a discretionary judgment.
The principles were stated by Dixon, Evatt and McTiernan, JJ. in House v. The King[15].
“But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
(Emphasis added.)
House v. The King was a criminal case. In Cranssen v. The King[16], Dixon, Evatt and McTiernan, JJ. repeated what they said in House v. The King. This was also a criminal proceeding. See also Harris v The Queen[17]. More recently these well established principles were repeated by the High Court. See Dinsdale v. The Queen[18]. Kirby, J. had this to say[19]:
”As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court’s authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.”
Error must be demonstrated, either by specific reference to an identified error or by showing that the end result was so unreasonable in the circumstances, that the judge fixing the sentence failed to properly exercise his or her discretion.
In Australian Coal and Shale Employees’ Federation v The Commonwealth[20] Kitto, J. referred to “the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.” (Emphasis added.)
His Honour referred to House v. The King. Although the case was a civil one, in my view his Honour’s observations would apply to the exercise of a discretionary judgment in sentencing.
In my opinion, the first step in the consideration of the correctness of a discretionary judgment must be to determine whether there is any demonstrable error in what the trial judge did. In carrying out that exercise, the error may be found in what the judge said expressly or implied, or the result of the sentencing process suggests an error which can be identified. In the absence of demonstrable error, was the result so unreasonable or unjust that the appellate court can conclude that the trial judge failed to exercise his discretion in accordance with the law? Often the question is asked whether the sentence is manifestly excessive or manifestly inadequate. When the test is described in that way, it cannot be overlooked that the excessiveness or inadequacy must be manifest, that is, patently obvious when one considers the result, taking into account all relevant circumstances.
Consistency in sentencing is important, and must be borne in mind by the sentencing judge. However, it is indeed a rare case where the facts of the prisoner’s criminal activity and his personal matters are the same as or similar to the activities and personal factors of another prisoner. Sometimes there are examples where there are like circumstances such as importing drugs into Australia by a courier. Consistency in punishment is a reflection of what is a fundamental element in any rational and fair system of criminal justice. See Lowe v. The Queen per Mason, J. [21] The court must strive for consistency when dealing with like offenders. See R. v. Olbrich[22]. The fact is that it is rare to find two cases which are the same and accordingly reference to other cases is of little assistance in sentencing and the appellate process.
Although Mr Langdon’s first submission raises the question of manifest excessiveness, I think it is more appropriate to consider the grounds which purport to raise a demonstrable error.
Ground 9 is in these terms:
“In sentencing the appellant on Count 9, the sentencing judge erred:
(a)in failing to conclude that the drug was possessed for personal use; and
(b)in applying the wrong maximum penalty of five years instead of 12 months imprisonment.”
It was submitted that the learned judge mistakenly commenced with the proposition that the maximum penalty was five years. Counsel for the prosecution stated that was the maximum and there was no demur from defence counsel. It was submitted that the evidence should have led the learned judge to find on the balance of probabilities that the amphetamines were not possessed for the purpose of trafficking and therefore the lesser maximum penalty of 12 months should have been applied.
Section 73 contains a variety of different sentences. First of all, under s.73(1), where the court is satisfied on the balance of probabilities that the offence was committed in relation to cannabis or tetrahydrocannabinol it may impose a penalty of five penalty units. So far as s.73(1)(b) is concerned, where the court is satisfied on the balance of probabilities that the offence was not committed for the purpose of trafficking in the drug of dependence then the penalty is 30 penalty units or one year maximum or both. Section 73(1)(c) prescribes that in any other case the penalty is not more than 400 penalty units or five years maximum. It is said that the learned judge applied the maximum sentence stated in s.73(1)(c) whereas he should have applied the maximum in s.73(1)(b).
Mr Langdon was sentenced to a term of imprisonment of 10 months in respect to Count 9. This represented five‑sixths of the maximum penalty if his Honour was applying s.73(1)(b), but representing something less than one‑fifth of the maximum penalty if applying s.73(1)(c).
At no stage did defence counsel appearing for Mr and Mrs Langdon seek to argue or put any evidence before the court that the applicants’ possession of the amphetamine in question was not for trafficking. Section 73(1)(b) provides:
“(1) A person who without being authorised … has … in his possession a drug of dependence is guilty of an indictable offence and liable –
(a) …
(b)subject to paragraph (a) (which did not apply here), where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in that drug of dependence - to a penalty of not more than 30 penalty units or to level 8 imprisonment (1 year maximum) or to both that penalty and imprisonment; or … ”
It is noted that the court must be satisfied on the balance of probabilities that the possession was not related to trafficking. In my opinion, the issue must be raised by the defence. It was not raised by the defence in the present matter. Indeed, the issue was not raised, and was not the subject of any evidence or submission. It is now said that the learned judge should have concluded, even though the issue was never raised, that on the balance of probabilities the possession was not for trafficking.
There was abundant evidence that the applicants were trafficking in amphetamines. Indeed, they pleaded guilty to such an offence. It is correct that the amount in question in Count 9 was small, namely, 7.3 grams of amphetamines, and it is also correct that there was some evidence that Mr Langdon was a user and a regular user and that Mrs Langdon also used the drug. However, on that evidence the judge could not possibly have come to the conclusion that it was for their own use and not for trafficking. The applicants had pleaded guilty to trafficking. Mr Langdon gave evidence. There was no attempt at any stage to raise the issue that the amphetamines so found were not for use in trafficking.
In my opinion, the evidence did not lead to the conclusion that the amphetamines found in their possession were not for any purpose relating to trafficking.
It could not have been lost on counsel for the defence the difference under s.71 between the various penalties. However, no attempt was being made to raise the issue. In my opinion error has not been demonstrated that the judge in the circumstances applied the wrong maximum. The maximum penalty was stated, there was no demur and no attempt to prove that the amphetamines were not for use in trafficking.
This ground fails.
The next ground relied upon by Mr Langdon was that he was subject to double punishment. Grounds 10 and 11 are in these terms:
“10. The sentencing judge erred in imposing any sentence on Count 9 as the possession of amphetamines is totally subsumed by Count 3. Alternatively the sentencing judge failed to discount the sentences on Counts 3 and 9 as a result of the overlap.
11. The sentencing judge erred in imposing any sentence on Count 4 as the possession of the chemicals and other paraphernalia is totally subsumed by Count 3. Alternatively the sentencing judge failed to discount the sentences on Counts 3 and 4 as a result of the overlap.”
In R. v. Hoar[23] four judges of the High Court stated:
“There is a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act”[24].
It is a rule of law in this State by reason of s.51(1) of the Interpretation of Legislation Act 1984. In Pearce v. The Queen [25] McHugh, Hayne and Callinan, J. said:
“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts.”
(Emphases added.)
In Pearce the High Court held that there was a single act which was common to the two offences, namely, the infliction of grievous bodily harm on the victim, and concluded that since the trial judge had sentenced the appellant to identical terms of imprisonment on both counts he was doubly punished for one act. The facts in Pearce were clear. There was one act by the prisoner, namely, breaking into the house and inflicting the serious injuries. He was convicted of two separate offences. But it is clear that the same factual matters constituted the element of infliction of harm. The court accordingly concluded that he had been doubly punished for one act. Although the trial judge made the sentences concurrent, nevertheless the High Court was of the view that he had been doubly punished for the same criminal act.
McHugh, Hayne and Callinan, JJ. referred to what Sir John Barry said in a lecture delivered in 1969 called “The Courts and Criminal Punishments”[26]. Sir John, referring to the criminal law and in particular punishment, said:
“To achieve even a minimal degree of effectiveness, it [the criminal law] should avoid excessive subtleties and refinements. It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community’s generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which the judges discharge the function of imposing punishments upon persons convicted of crime.”
As their Honours observed: “That remains true. ‘Excessive subtleties and refinements’ must be avoided.”[27] Their Honours went on to say[28]:
“The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by ‘excessive subtleties and refinements’. It should be approached as a matter of common sense, not as a matter of semantics.”
(Emphases added.)
In my opinion, the various counts said to contain common factual matters were separate and distinct.
Count 3 is concerned with trafficking. It is a serious offence. It carries a maximum of 15 years’ imprisonment and $100,000 penalty. There was ample evidence to support the conclusion that both applicants were trafficking in amphetamines and deriving a substantial financial return. The gravamen of the offence was trafficking in amphetamines.
Count 9 is dealing with something different. The applicants were in possession of amphetamines. Count 3 is concerned with the activity of trafficking in this case selling. Count 9 was concerned with possession of the drug. It is not concerned with the reason for, or the purpose of, the possession. It may become relevant in the sentencing process concerning the maximum penalty. They are separate and distinct criminal acts. But in the circumstances of this case there was an overlap of factual matters. Mr Croucher made a telling point when he submitted that what was found were the left-overs of the stock trafficked by the Langdons. When pressed, the prosecutor, Mr McArdle, frankly conceded that if particulars of Count 3 had been given, the fact that the amphetamines were found in the Langdons’ possession would have been a matter relied upon to establish trafficking. The quantity was a trafficable quantity and the prosecution would have been entitled to rely upon the prima facie rule stated in s.73(2).
The issue of whether there has been double punishment is to be resolved by approaching the question as a matter of common sense. It is correct that one may traffick without ever having actual possession of the drug and equally, it is possible to have possession without trafficking. Each case must be determined in accordance with its own circumstances. In my view, there is a strong connection between the possession and the trafficking in the present case. Having in possession a trafficable quantity of amphetamines is part and parcel of the trafficking which in this case concerned manufacture and distribution by the same persons who had possession. The Langdons were in possession because they were both the manufacturers and the distributors. Possession was central to their enterprise. In the particular circumstances of this case it is my view that the act of possession was common to both the trafficking and possession counts and accordingly there has been double punishment for the criminal act common to both counts. In reaching that conclusion I am not critical of the learned trial judge who did not have the benefit of any argument concerning this particular issue. I will deal with the consequences of that conclusion after I have dealt with the other grounds and the grounds relied upon by Mrs Langdon.
Count 4 deals with possession of various chemical substances and equipment in order to traffick in the drug of dependence, namely, amphetamines. The possession is with the intention of using the items for the purpose of trafficking. This was the subject of a separate count. It is a separate criminal act. It is different to trafficking. It is having the necessary equipment, chemicals and know-how in order to prepare for the purpose of trafficking in a drug of dependence. In my opinion, Counts 3 and 4 are separate and distinct from each other and there is no question of overlap between them.
Parity
Ground 12 is in these terms:
“The individual sentence, the head sentence and the non‑parole period infringe the principle of parity.”
The principle of parity was described by Dawson and Gaudron, JJ. in Postiglione v. The Queen[29] as follows:
“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co‑offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in their being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v. The Queen, recognises that equal justice requires that, as between co‑offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.”
Dawson, J. in Lowe v. The Queen[30] emphasised the issue of different circumstances when he said –
“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for.”
It was submitted on behalf of Mr Langdon that the difference between the sentences imposed on Mr Langdon and Mrs Langdon demonstrated that the principle of parity had been breached. It was submitted that Mr Langdon had no relevant prior convictions whereas his wife had prior convictions for dishonesty. In relation to the principal count of trafficking, Mrs Langdon was sentenced to three years whilst Mr Langdon was sentenced to four years. Whilst his Honour was uncertain as to the parts played the Langdons, nevertheless he came to the view that Mr Langdon was more heavily implicated in the conduct than Mrs Langdon. It was submitted that such a finding did not justify an additional year for Mr Langdon on that count. I disagree. The judge was satisfied that Mr Langdon played the greater role. Further, Mr Langdon had attempted to blame another. His Honour rejected his version that the Langdons were merely bookkeepers and allowed storage of drug equipment at their home. In my view, there is no basis for saying that the parity principle was breached in relation to the sentence on Count 3.
It was also submitted that in sentencing Mr Langdon on the dishonesty counts, being 1, 2 and 6, the judge breached the parity rule when he imposed six months on each count, two months of which were to be cumulative, resulting in six months being added to the head sentence. In comparison when sentencing Mrs Langdon on a dishonesty count the learned judge sentenced her to three months and made the sentence wholly concurrent. It was said that there was no logical reason for the marked differences between the sentences. I beg to differ. Mrs Langdon was sentenced in respect to one count of dishonesty, namely, handling stolen goods, which was a DVD player with a value of somewhere around $250. On the other hand, the dishonesty counts of Mr Langdon involved dishonestly receiving a number of stolen goods, namely, the printer, and a credit card used to obtain a compact disc over the Internet, and handling stolen computer parts and accessories belonging to a former employer. The gravity of the dishonesty offences by Mr Langdon far outweighed the gravity of Mrs Langdon’s conduct and I have no doubt at all that his Honour was justified in adding an extra six months. The fact was there were more counts, the conduct was far more grave, and the sentences imposed by the judge were proportionate to the gravity of the crime. In my opinion, the attempted application of the parity principle fails in relation to the head sentences.
It was put that the parole periods also demonstrated a breach of the parity principle in that Mrs Langdon received a head sentence of three years with a non‑parole period of 20 months, being 55% of the head sentence, whereas Mr Langdon received a head sentence of four years and six months with a parole period of three years and three months, being 72% of the head sentence. It was submitted there was no reason given for this disparity and nothing put at the plea to suggest that one of the applicants had greater prospects of rehabilitation than the other. Of course in determining non-eligibility for parole period, the court takes into account not only the questions of rehabilitation but all other mitigatory matters in favour of a particular prisoner. As Gibbs, C.J. said in Lowe v. The Queen[31]:
“What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.”
The High Court said in Deakin v. The Queen[32]:
“The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.”
The courts have often said that factors which are taken into account on the head sentence are also relevant and to be weighed carefully in fixing the minimum period. As a general rule the factors that are favourable to the prisoner are given more weight; that is, mitigatory factors, absence of risk to the community upon release and rehabilitation. But the exercise is not primarily concerned with the prospects of rehabilitation. Clearly the interests of the community are important. See Bugmy v. R.[33].
It is clear that this very experienced trial judge carefully considered the minimum periods, and was of the view that the non-parole period for Mr Langdon should be three years and three months. In my view, the parity principle has not been infringed. His Honour carefully considered all matters. Included in these matters was the involvement of Mrs Langdon in the main offence, compared with Mr Langdon, and the fact that she had two young children. In my view, it has not been demonstrated that there has been any breach of that principle.
Manifestly Excessive
This brings me back to ground one which is expressed in these terms:
“1. The sentence was in all the circumstances manifestly excessive.”
Mr Wraight said that the learned sentencing judge must have given too much weight to aggravation and too little weight to mitigation. There is nothing in what the judge said or did which could lead to those conclusions. The observations are speculation. It must not be overlooked that in the absence of specific error, it is the result of the sentencing exercise which indicates error. This must be demonstrated and is usually a matter of impression or reaction when the facts are considered. Mr Wraight referred to the particular factors relied on the plea, namely, drug addiction, pleas of guilty, co-operation with authorities, rehabilitation and general and specific deterrence. It must not be overlooked that the maximum penalty in respect of Count 3 is 15 years. It is a very serious offence. Mr Langdon received less than one‑third the maximum in respect to Count 3. The trial judge was very aware of the effects that amphetamines have on persons who abuse them. As his Honour said, and I respectfully agree:
“As I have indicated, drug trafficking varies enormously. The level of criminality depends upon the particular drug involved, amongst other things. Here the drug involved was amphetamine. It is not the most addictive of the drugs that are commonly abused but an increasing concern in the community is the behaviour of users and their propensity for violence. For that reason it is commonly seen as being a pernicious drug quite likely to – and frequently blamed by people convicted of offences of violence for their conduct. It does have therefore significant social consequences.”
His Honour also referred to the gravity of this particular offence. Mr Wraight’s argument focuses on the head sentence.
In my opinion, a total sentence of four years and six months in all the circumstances was not manifestly excessive. The result does not bespeak error in the sentencing process.
Mrs Langdon’s appeal against sentence
Mrs Langdon’s appeal against sentence in ground one dealt with the question of double punishment. It was submitted that the sentence in respect of Counts 5, 8 and 9 involved factual matters which formed part and parcel of Count 3 and accordingly she was subjected to double punishment. For the reasons stated in Mr Langdon’s appeal I am of the opinion that there was double punishment in respect of Counts 3 and 9. Count 5 is different. There is no double punishment involving Count 5. It is a separate criminal act with a separate and distinct criminal activity.
The next grounds, being 2 and 9, relate to whether or not the wrong maximum penalty was applied in respect to Count 9. I have already discussed this ground in relation to Mr Langdon. The same reasoning applies. In my view, there is no basis for saying that the judge applied the wrong maximum penalty.
Conclusion concerning sentence
Mr and Mrs Langdon have succeeded in their appeals concerning the sentences on Count 9. The learned judge sentenced each to ten months imprisonment and the sentence was to be served concurrently with the other sentences. If the sentence is set aside, it will have no practical effect on the sentence. However, as error has been demonstrated, the question is whether or not the head sentence should stand?
In Pearce v. The Queen, supra, the High Court concluded that the two counts contained a single act which was common to both. Yet the trial judge had ordered the same sentence in respect to each count and ordered that they be served concurrently. The court remitted the matter to the Court of Criminal Appeal with a direction to reconsider the matter consistently with the reasons of the court. The effect of what the High Court said and did is that although there may be two counts which are similar, it is the commonality of particular factual elements which may lead to a conclusion of double punishment. However, there may be other elements of the criminal act which are not common and these must be the subject of punishment. It would therefore follow that the sentencing judge would have to fix the substantial sentence in respect to one count and then in fixing the sentence for the other count, impose a sentence in respect to the matters which are not common to the substantial offence. This may be a difficult exercise.
McHugh, Hayne and Callinan, JJ. said[34]:
“Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences.
Looking at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on these two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count.”
(Emphasis added).
Applying the principles to the present matter, the first question to determine is whether there are any remnants of criminal conduct in Count 9 which have not been taken into account in the sentence imposed on Count 3. Applying the common sense approach, in my view the traffickable quantity possessed was realistically the balance of the stock used for trafficking and accordingly there was nothing left in Count 9 to be the subject of any punishment. Count 9 concerns the offence of possession of a drug of dependence. The possession was part and parcel of the trafficking. Accordingly, in my view the proper approach in this case is to impose no sentence in respect to Count 9. To impose a sentence would be to contravene s.51 of the Interpretation of Legislation Act 1984. Given that there is no additional criminal act to punish it is my opinion that the only course open is to quash the conviction. See R. v. Sessions[35]. It follows that the sentence must also be quashed.
The next question, therefore, is whether this should have any effect upon the questions of cumulation and concurrency in respect to the sentences on the other counts. In my opinion, what the learned trial judge did in respect to each of the appellants was appropriate with respect to cumulation and concurrency and accordingly, although the conviction and sentence in respect to Count 9 is quashed the end result is the same. It follows that the orders for cumulation and concurrency made by the learned judge on the other counts of both applicants is appropriate. In my opinion, the non-parole period in each case is appropriate.
In my opinion, the following orders should be made –
(i)that the applications of David Langdon and Susan Langdon for leave to appeal against their convictions be allowed;
(ii)that the appeals be instituted and heard instanter and allowed in part, and the conviction in respect to Count 9 of each appellant and the sentence thereon be quashed;
(iii)otherwise the convictions be affirmed;
(iv)the appeals against sentence be dismissed;
(v)the forensic procedure and forfeiture orders be affirmed.
---
[1](1998) 194 C.L.R. 610.
[2][1959] V.R. 298.
[3][1960] V.R. 106.
[4]At p.108.
[5](2002) 4 V.R. 546 at 566.
[6]At p.614.
[7]At p.616.
[8]At p.618.
[9]At p.620 [28].
[10]At p.620 [29].
[11]At p.621 [31].
[12][1961] V.R. 236. per Lowe, J.
[13](1999) 199 C.L.R. 270.
[14][1998] 1 V.R. 359 at 366.
[15](1936) 55 C.L.R. 499 at p.504–5.
[16](1936) 55 C.L.R. 509 at 519.
[17](1954) 90 C.L.R. 652 at 655-6.
[18](2000) 202 C.L.R. 321 at 324-6 per Gleeson, C.J. and Hayne, J. and 339-341 per Kirby, J.
[19]At p.340 [59].
[20](1953) 94 C.L.R. 621 at 627.
[21](1984) 154 C.L.R. 606 at 610-1.
[22]Supra, at p.287.
[23](1981) 148 C.L.R. 32.
[24]At p.38.
[25]At p.623 [40].
[26]At p.622 [39].
[27]At p.623 [39].
[28]At p.623 [42].
[29](1997) 189 C.L.R. 295 at 301.
[30](1984) 154 C.L.R. 606 at 623.
[31](1984) 154 C.L.R. 606 at 610.
[32](1984) 58 A.L.J.R. 367.
[33](1990) 169 C.L.R. 525 at 530-32 and 536-38.
[34]At p.624 [46-48].
[35]
62
0
0