Rahmani v The Queen
[2021] VSCA 51
•12 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0105
| SHAHIN RAHMANI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 November 2020 |
| DATE OF JUDGMENT: | 12 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 51 |
| JUDGMENT APPEALED FROM: | [2019] VCC 306 (Judge Fox) |
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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – Drug trafficking – Large commercial quantity of methylamphetamine – Possessing handgun, unregistered firearms – Total effective sentence 10 years and 9 months – Non-parole period 7 years and 3 months – Whether sentence and non-parole period manifestly excessive – Legislative hierarchy of trafficking offences – High moral culpability – Motivated by profit – No remorse – Sentence within range –Whether judge expressed settled intention regarding non-parole period – Appeal dismissed – Drugs, Poisons and Controlled Substances Act 1981 s 71 – Gregory (a pseudonym) v The Queen [2017] VSCA 151; Wallace v The Queen (2012) 35 VR 520; [2012] VSCA 114.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC with Mr J O’Connor | Milides Lawyers |
| For the Respondent | Mr P Bourke SC | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA:
Summary
The applicant was found guilty after a trial on one charge of trafficking in a large commercial quantity (‘LCQ’) of methylamphetamine and one charge of possessing a general category handgun without a licence. On the trafficking charge, which carries a maximum penalty of life imprisonment, the applicant was sentenced to 9 years’ imprisonment. On the handgun charge, he was sentenced to 20 months’ imprisonment.
He pleaded guilty to four other charges respectively involving unregistered firearms, a precursor chemical and stolen goods. A total effective sentence of 2 years and 9 months’ imprisonment was imposed on those charges. Twelve months was ordered to be served cumulatively on the sentence imposed on the trafficking and handgun charges, producing a total effective sentence of 10 years and 9 months’ imprisonment. A non-parole period of 7 years and 3 months was fixed.
The applicant sought leave to appeal against three of the individual sentences, the total effective sentence and the non-parole period on the ground that they were manifestly excessive. The focus of the submission on that ground was on the sentence of 9 years’ imprisonment imposed on the trafficking charge. A separate ground contended that the sentencing judge, in imposing a non-parole period which represented 67 per cent of the head sentence, had failed to fulfil what was said to be her stated intention of imposing a shorter than usual non-parole period.
A single judge of this Court refused leave to appeal on the manifest excess ground, holding that it was not reasonably arguable. The judge did, however, grant leave on the ground relating to the non-parole period. That leave having been granted, the applicant elected to renew his application for leave on the manifest excess ground.
For reasons which follow, we have come to the same conclusion as the single judge on the manifest excess ground, namely, that the ground is not reasonably arguable and leave to appeal must therefore be refused. Having regard to the maximum penalty of life imprisonment, the applicant’s plea of not guilty and the importance of general deterrence, the sentence of 9 years’ imprisonment was very moderate. It is plain that considerable weight must have been given to the mitigating factors on which the applicant relied on the plea and in this Court.
As to the non-parole period, the authorities recognise the possibility that a sentencing judge may, in the course of exchanges with counsel on the plea, express a clear intention to impose an unusually short non-parole period. As will appear, that is not what occurred in the present case. Accordingly, the appeal on that ground will be dismissed.
Background circumstances
As already noted, the applicant was convicted by a jury of LCQ trafficking in methylamphetamine, and of possessing a handgun without a licence. He pleaded guilty to four other charges, the most serious of which was possessing a traffickable quantity of unregistered firearms. He was sentenced as set out in the table below.[1]
[1]DPP v Spirovski [2019] VCC 306 (‘Reasons’).
Charge
Offence
Plea
Maximum
Sentence
Cumulation
Indictment: C1610946.2 (‘trial indictment’)
1 Trafficking in a large commercial quantity of a drug of dependence Not guilty Life 9 years Base 4 Possess registered general category handgun without a licence Not guilty 4 years 1 year, 8 months 9 months Total effective sentence on trial indictment: 9 years, 9 months’ imprisonment Indictment: G12985784 (‘plea indictment’) 1 Possess traffickable quantity of unregistered firearms Guilty 10 years 2 years, 9 months Base 2 Possess precursor chemical Guilty 5 years 1 month – 3 Handle stolen goods Guilty 15 years 1 year – 4 Handle stolen goods Guilty 15 years 1 year – Total effective sentence on plea indictment: 2 years, 9 months’ imprisonment; 12 months to be served cumulatively upon the sentence imposed on trial indictment
Overall Total effective sentence: 10 years, 9 months’ imprisonment Non-parole period: 7 years, 3 months Pre-sentence detention declaration: 64 days 6AAA Statement on plea indictment: 4 years, 6 months Other relevant orders: Declared a serious drug offender due to conviction on charge 1 on trial indictment
The circumstances of the offending, and the applicant’s personal circumstances, were summarised in the leave reasons. We respectfully adopt the summary from his Honour’s consideration of leave to appeal, as follows.
On 26 October 2016, the applicant and his co-accused, George Spirovski, departed Melbourne for Sydney in a rented ute together with two sex workers. Little is known about what they did in Sydney. Inside the ute was a GPS unit belonging to Spirovski which recorded audio conversations.
One conversation, recorded on 29 October 2016 immediately before the group departed Sydney for Melbourne, involved discussion between the applicant and Spirovski about not trusting the sex workers. One of them said that it was better not to tell the sex workers, and that everyone should say ‘no comment’. Spirovski told the applicant that he could travel by aeroplane if he felt unsafe.
At about 5:15 am on 30 October 2016, police intercepted the ute near Wallan. Spirovski was the driver. The applicant was in the front passenger seat and the sex workers were in the back seat. A search of the vehicle located a bag containing 1.3314 kg of methylamphetamine, with a purity of 87 per cent, concealed under the carpet in the front passenger seat footwell (charge 1 on the trial indictment).[2] A loaded handgun was also located in the ute, concealed near the centre console on the passenger side (charge 4 on the trial indictment).[3]
[2]This charge was common to both offenders.
[3]Spirovski was charged with the offence of prohibited person in possession of the same firearm. His DNA was found on the firearm.
At the time of the offending, a large commercial quantity of methylamphetamine was 1 kg mixed weight or 750 grams pure. The pure weight in this case was 1.158 kg. It follows that the quantity trafficked represented 1.5 times a commercial quantity (1.5 LCQ) on the basis of the pure weight and 1.3 LCQ on the basis of the mixed weight.[4] The sentencing judge proceeded on the latter basis.
[4]In DPP (Cth)v KMD [2015] VSCA 255, [57] (Maxwell P, Beach and Weinberg JJA) the Court explained the rationale for expressing drug quantities as multiples or percentages of the applicable quantity threshold.
The judge was satisfied that: the applicant and Spirovski planned the trip to Sydney together to acquire the methylamphetamine, and they obtained it whilst they were in Sydney; the two men were in possession of the methylamphetamine for sale; they committed the trafficking offence for profit and were equally culpable; and they were in possession of the loaded handgun for personal protection, given the large quantity of the drug being carried.
On 30 October 2016, police executed a search warrant at a factory leased by the applicant in Springvale. They discovered four unregistered firearms (charge 1 on the plea indictment) as well as ammunition and firearms-related paraphernalia. Police also located 1.3 litres of a substance containing hypophosphorous acid, a prescribed precursor chemical (charge 2 on the plea indictment). Police also located a box trailer and generator at the factory (charges 3 and 4 on the plea indictment).
The applicant was 34 years of age at the time of sentence. He was born in Iran and arrived in Australia via Pakistan with his family when he was 12. He is married with three young children who, at the time of sentence, were aged eight, six and three. He does not have a criminal history and has the support of his family and friends.
In 2012, the applicant bought a tyre business with two partners. He worked long hours and commenced taking drugs, including methylamphetamine, to stay awake. After disputes arose with his partners, he ceased working at the tyre factory sometime in 2015. In early 2016, he leased a factory in Springvale in an attempt to start afresh. It was at this factory that the precursor chemical, unregistered firearms and stolen trailer and generator were found.
At the time of the offending the applicant was seeking admission to a residential rehabilitation facility to deal with his drug addiction. After he was arrested, he detoxified in prison and was bailed to attend a residential rehabilitation facility, where he stayed for three months.[5] He has attended Alcoholics Anonymous and Narcotics Anonymous. His sponsor at those organisations gave evidence on the plea that the applicant had remained clean and sober and had helped other young men with drug addiction.
[5]In accordance with Akoka v The Queen [2017] VSCA 214, the applicant was entitled to credit for the time he spent at the residential rehabilitation facility.
As noted earlier, the applicant sought leave to appeal against his sentence on two grounds, as follows:
1. The individual sentences on charges 1 and 4 on [the trial indictment] and charge 1 on [the plea indictment], the total effective sentence and non-parole period are manifestly excessive.
2. The non-parole period imposed manifestly failed to give effect to the sentencing judge’s intention to impose a shorter non-parole period than would have been appropriate but for the applicant’s excellent prospects of rehabilitation.
Ground 1: manifest excess
As already noted, the applicant’s submission under this ground was largely directed at the sentence of 9 years’ imprisonment on the LCQ trafficking charge. The oral submissions were directed, in particular, at the weight of drugs imported, the applicant’s moral culpability, his post-offence rehabilitation and the ‘real and onerous burden’ of being separated from his wife and young children while in custody.
To put the submissions in context, it is necessary to set out the relevant parts of the sentencing reasons as follows:
A large commercial quantity of methylamphetamine is 1 kilogram mixed weight. Here, the amount trafficked was just over 1.3 kilograms. In my view this quantity is at the lowest end of the scale of large commercial quantity trafficking. You were in possession for sale for [a] short period. The drug involved, being methylamphetamine or ice, is a particularly serious and harmful drug. I was not provided with any valuation evidence, but I am satisfied that a large commercial quantity of very pure ice has significant monetary value and the potential to cause considerable harm in the community.
Both of you engaged in this activity for profit. In relation to this offence, both of you ran a trial and were found guilty. You must of course not be punished for that, but there is no remorse and no acceptance of responsibility by either of you. There is no discount for a plea of guilty.
A large number of character references were tendered on behalf of you, Mr Rahmani, that speak of your remorse. While I am satisfied that you are remorseful for your own drug use and the damage it has caused to your family, I do not find you are remorseful in relation to Charge 1. Evidence was led on the trial and the plea that you had an ice habit at this time and were under severe financial pressure. It was submitted your drug addiction reduces your moral culpability, and general deterrence can be moderated given your drug addiction is causal of your offending.
I accept your drug addiction provides some explanation as to how you may have become involved in such a serious offence, but in my view, it does not reduce your moral culpability nor does it moderate general deterrence. This is not street-level trafficking, committed in desperation to support a habit. It is far more serious and motivated by a desire to make a profit. General deterrence is an important sentencing consideration and must be given due weight.
...
You have no prior convictions and have not been charged with any other offences since 30 October 2016. At the time of this offending you were addicted to drugs and seeking help to enter rehabilitation and cure your addiction. I accept that you were willing to go into rehabilitation prior to this offence. Indeed, it would seem you were willing to go to rehabilitation around 25 October 2016, at the same time you were also arranging to go to Sydney.
It is clear that you come from a loving and caring family, and a number of friends and family members provided character references and attended court in support of you. Those character references variously refer to you being sorry for everything you have caused and done, distraught by your actions, showing much remorse and regret, truly regretting your drug use, and apologising to your family. As I have already said, I accept that you are remorseful, apologetic and ashamed when it comes to your own drug use but I do not accept that you have any remorse when it comes to Charges 1 or 4 on the Trial Indictment. Those character references also speak glowingly of your character and your commitment as a family man.
...
I accept that you have turned your life around since you were arrested, and have successfully rid yourself of your addiction. Your rehabilitation has been impressive and extended to helping others. I accept that you have excellent prospects of rehabilitation, given your efforts to date and your lack of prior convictions.
You are a loving father, and being separated from your young children whilst they grow up will no doubt make your time in custody difficult. Your wife and your young children are struggling without you, and I have no doubt that being separated from them will be a real and onerous burden for you while in jail.
...
I have found this a complex sentencing exercise, given the number of charges, the combination of guilty and not guilty pleas, the different indictments, different charges, and there being two accused, which means parity has some role to play. The most serious charge is of course Charge 1 on the trial indictment.
On sentencing for that charge, the principles of general deterrence and denunciation assume substantial prominence. It is important that persons who contemplate embarking on large-scale drug trafficking, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment.
General deterrence and denunciation are also important sentencing considerations on the possession of firearms charges. Firearms are carefully controlled in this country and for good reason — they threaten the peace and good order of the community. You both had ammunition as well as unregistered firearms, and the handgun was loaded and being carried to protect your drug trafficking enterprise if needed.[6]
[6]Reasons [32]–[35], [49]–[50], [54]–[55], [62]–[64] (emphasis added).
Dealing first with moral culpability, senior counsel for the applicant confirmed that there was no challenge to the judge’s finding that the drug trafficking was for profit. Further, while counsel submitting that the ‘motivation’ for the trafficking was the applicant’s drug use, counsel did not challenge the judge’s finding that the applicant’s drug addiction did not affect either his moral culpability or the need for general deterrence. Her Honour’s findings in that regard were, with respect, plainly correct.
As can be seen from the above extracts, the judge made positive findings about the applicant’s ‘excellent’ prospects of rehabilitation. In the same way, her Honour appears to have fully accepted the applicant’s submission about the adverse impact on him of being separated from his family. What weight those matters were to be given in the sentencing decision was, of course, a matter for her Honour.
As to the objective gravity of the offence, 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.
At the time of this offence, the commercial quantity of methylamphetamine (in a mixture) was between 500 grams and one kilogram. The more serious offence of LCQ trafficking was committed when the quantity trafficked exceeded one kilogram. In the present case, as the judge noted, the quantity trafficked was 1.3 kilograms. It was thus clearly above the line dividing the two categories of trafficking albeit that, as the judge said, it was ‘at the lowest end’ of quantities for LCQ trafficking.
In Gregory (a pseudonym) v The Queen,[7] this Court was concerned with CQ trafficking in methylamphetamine. In that case, the offender had pleaded guilty and was sentenced to 8 years and 6 months’ imprisonment on that charge. The sentence was held to be within range. The Director had submitted 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.[8]
[7][2017] VSCA 151 (‘Gregory’).
[8]Ibid [4] (Maxwell P, Redlich and Beach JJA).
The Court upheld that submission, saying:
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.[9]
[9]Ibid [9].
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.[10]
[10]Ibid [97]–[99] (citations omitted).
In the present case, counsel for the Director relied specifically on what was said in Gregory about the need to maintain ‘appropriate relativities’ between the different categories of trafficking offences. This was described as the ‘knock on effect’ of Gregory for sentences for LCQ trafficking. That is, the need for an uplift in sentences for CQ trafficking — to which the maximum of 25 years applies — had the necessary corollary that there needed to be an uplift in sentences for LCQ trafficking, to which the maximum of life imprisonment applies.
The submission for the applicant was that nothing said in Gregory authorised the imposition of a manifestly excessive sentence. With respect, that submission is plainly correct. But the question for this Court is whether the sentence imposed on the applicant was outside the range reasonably open to the sentencing judge. As counsel for the Director submitted, the available range in the present case was necessarily informed by the conclusion in Gregory — that sentences for CQ trafficking needed to increase, and that this would have flow-on consequences for sentences for LCQ 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.
Once those parameters are properly understood, it can be seen that a sentence of 9 years’ imprisonment after a plea of not guilty was very moderate. The applicant was a principal in this trafficking enterprise; his moral culpability was high, given the judge’s finding that he was ‘motivated by a desire to make a profit’; he showed no remorse; and the objective gravity of the offence was unaffected by the fact that he was in possession of the drug for a short period.[11] Moreover, general deterrence is a very important consideration in sentencing for offences of this kind, for the reasons which her Honour gave.
[11]Stanley(a pseudonym) v The Queen [2017] VSCA 54, [47] (Redlich and Ferguson JJA and Beale AJA).
Reference was made to various other sentencing decisions concerning LCQ trafficking. As the respondent’s written case pointed out, however, only two of the decisions relied on concerned sentences imposed after a trial and only one of those post-dated Gregory. That was Arico v The Queen,[12] where a sentence of 9 years’ imprisonment for LCQ trafficking, after a plea of not guilty, was held to be manifestly excessive.
[12][2018] VSCA 135 (‘Arico’).
As counsel for the Director pointed out, the majority judgment in Arico emphasised that the form of trafficking in that case — offer for sale — was different from the types of trafficking ordinarily encountered.[13] Importantly, it was different from the present case, where the applicant was in actual possession of the 1.3 kilograms of methamphetamine. That distinction was expressly adverted to by the Court in Arico, by reference to the decision in Director of Public Prosecutions v Holder (a pseudonym).[14]
[13]Ibid [408]–[424] (Priest and Weinberg JJA) (citations omitted).
[14](2014) 41 VR 467; [2014] VSCA 61: see Arico [411]–[412].
As the High Court emphasised in Director of Public Prosecutions vDalgliesh(a pseudonym),[15] the sentencing judge was obliged to impose a just sentence taking into account all the relevant circumstances. As we have said, the very moderate sentence imposed on the applicant for this most serious offence can only be explained on the basis that the judge gave very considerable weight to the mitigating factors on which he relied.
[15](2017) 262 CLR 428; [2017] HCA 41.
The other individual sentences challenged under this ground related to the possession of firearms. As noted earlier, the sentence of 20 months (on a maximum of 4 years) was imposed for possession of a registered general category handgun without a licence. This gun was located in the vehicle in which the applicant and his co-offender carried the methylamphetamine. It was loaded and concealed. On the plea of not guilty, and given the purpose for which the applicant had possession of the gun, the sentence of 20 months was unremarkable.
Finally, the sentence of 2 years and 9 months’ imprisonment (on a maximum of 10 years) for possession of a trafficable quantity of unregistered firearms was well within range, in our view. Like the leave judge, we would respectfully endorse what the sentencing judge said about the threat to the peace and good order of the community which is presented by the availability of unregistered — and thus uncontrolled — firearms in the community. Her Honour rightly viewed general deterrence and denunciation as important sentencing considerations.
For these reasons, the manifest excess ground is not reasonably arguable and leave to appeal must be refused.
Ground 2: non-parole period
This Court has repeatedly been called upon to consider grounds contending that the non-parole period fixed by the sentencing judge failed to effectuate a statement of intention by the judge to impose a ‘shorter than usual non-parole period’. In 2012, in Wallace v The Queen,[16] the Court summarised the principles which would apply in the consideration of such ground:
[16](2012) 35 VR 520; [2012] VSCA 114 (‘Wallace’).
1.The non-parole period is the minimum term which justice requires be served.
2. There is no ‘usual’ non-parole period.
3.The question to be determined is whether, in all of the circumstances of the case and of the offender, it was reasonably open to the sentencing judge to fix the non-parole period which the judge fixed.
4.Exceptionally, the Court may be persuaded that the non-parole period manifestly failed to give effect to the sentencing judge’s stated intention, in which case error is established and the sentencing discretion re-opened.[17]
[17]Ibid [2] (Maxwell ACJ and Buchanan JA) (citations omitted).
In Dosen v The Queen,[18] the Court said:
The difficulties created by the notion of a ‘shorter than usual’ non‑parole period have been explored in a series of recent decisions in this Court. It has consistently been held that, subject to one exception, the question for consideration when a ground of this kind is raised is whether it was reasonably open to the sentencing judge, in the circumstances of the case, to fix the non‑parole period that he did. The exception is where the Court is persuaded that the non‑parole period manifestly failed to give effect to the judge’s stated intention, in which case sentencing error is established.[19]
[18][2012] VSCA 307 (‘Dosen’).
[19]Ibid [8] (Maxwell P and Redlich JA) (citations omitted).
More recently, in Tutchell v The Queen,[20] McLeish and Niall JJA cited the above passages from Wallace and Dosen and said:
It is plain from Wallace that the test to be applied in addressing the applicant’s contentions is whether the non-parole period manifestly failed to give effect to the sentencing judge’s stated intention. While the Court described the circumstances in which that test will be satisfied as ‘exceptional’, it did not posit a test of exceptional circumstances. The use of the word ‘exceptional’ showed only that the Court did not expect the test often to be satisfied.
…
The Court in Dosen held that it was reasonably open for the sentencing judge to fix a non-parole period which represented 67 per cent of the head sentence, in circumstances where it was assumed that the judge ‘intended to provide for a longer period on parole than he might otherwise have done’.
The cases make it plain that, in the application of the above test, each case depends upon its particular facts and no general rule can be articulated by which ‘usual’ or ‘normal’ ratios between non-parole periods and head sentences may be determinative. At the same time, such a ratio may help to inform an answer to the question whether the period fixed has manifestly failed to give effect to the judge’s stated intention.[21]
[20][2018] VSCA 269.
[21]Ibid [45], [47]-[48] (citations omitted).
In the present case, the ‘stated intention’ of the judge is said to be found in what her Honour said during the following exchange with senior counsel for the applicant (who did not appear on the appeal):
[COUNSEL]: [T]he submission I think which was put very briefly in … the written submissions, that in [the applicant’s] … case, you could consider a longer than normal disparity between the head sentence and non-parole period, having regard to … the evidence that you’ve heard about what’s happened in the rehabilitation process. So – – –
HER HONOUR: All right, I accept those submissions – – –
[COUNSEL]: Yes.
HER HONOUR: – – – without difficulty – – –
[COUNSEL]: Yes.
HER HONOUR: – – –… that when it comes to – – –
[COUNSEL]: No, that’s – – –
HER HONOUR: – – – all those matters.
…
[COUNSEL]: And then what you have is somebody without any priors, who almost immediately afterwards has done — and the — what we say, his moral responsibility is affected, drug affected by — affected, bad decisions by drugs, and then him making positive steps to do something about it, make him an ideal candidate for rehabilitation, therefore make him an ideal candidate for lesser impact of personal deterrence or specific deterrence, therefore a greater than normal period of disparity between the head sentence and the non-parole period. In a roundabout way, that’s where it’s all put.
HER HONOUR: I understand that, but as against that, he did not plead guilty to this – – –
[COUNSEL]: No.
HER HONOUR: He has not — I understand what you say about remorse as it relates to the matters to which he did plead guilty.
[COUNSEL]: Yes.
HER HONOUR: But I don’t accept in relation to the offence for which the jury has convicted him that there is any remorse, because … the trial was run on the basis that he either didn’t know about it and if he did, he didn’t know much – – –
[COUNSEL]: Yes.
HER HONOUR: – – – and if he did, he certainly wasn’t in possession of it, it wasn’t his, it belonged to someone else.
[COUNSEL]: Yes.
HER HONOUR: And that was clearly rejected by the jury’s verdict.
[COUNSEL]: It was. Yes.
The submission for the applicant was that the sentencing judge had clearly stated her intention when she responded to defence counsel’s submission by saying, ‘All right, I accept those submissions without difficulty’. This was said to be an unconditional acceptance of the submission that there should be ‘a longer than normal disparity’ between the head sentence and the non-parole period.
In our view, that is not an accurate characterisation of what occurred. First, as counsel for the Director pointed out, the submission which her Honour said she was accepting ‘without difficulty’ was a submission that she could consider a ‘longer than normal disparity’. Secondly, as a reading of the subsequent exchanges reveals, when defence counsel repeated the contention that there should be a ‘greater than normal period of disparity’ her Honour responded by saying: ‘I understand that, but as against that, he did not plead guilty to this … .’ Plainly, her Honour was here both conveying an understanding of what was being submitted and expressing a reservation about it.
Thirdly, the judge’s subsequent exchange with the prosecutor does not appear to be consistent with her Honour having arrived at, or stated, a settled intention with respect to the non-parole period. Evidently viewing the question as a live one, her Honour asked the prosecutor whether he wanted ‘to say anything in response to [counsel’s] submissions, as to what he described as a lengthier than usual non-parole period’. The prosecutor responded that the applicant’s positive prospects of rehabilitation were relevant to the fixing of the non-parole period but that it was otherwise a matter for the judge.
This case illustrates, yet again, the inherent difficulty which a ground of this kind confronts. Put simply, in a case where a judge has clearly and deliberately made a statement of intention with respect to the fixing of the non-parole period, it is improbable that the sentencing decision will ‘manifestly fail to give effect to that intention’, so as to bring the case within the ‘exception’ referred to in Dosen. The authorities recognise both the possibility and the unlikelihood of that occurring.
The appeal on this ground must be dismissed.
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