Rajeev Singh v The Queen
[2022] VSCA 93
•20 May 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0215
| RAJEEV SINGH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | T FORREST and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 May 2022 |
| DATE OF JUDGMENT: | 20 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 93 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1066 (Judge Georgiou) |
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CRIMINAL LAW – Appeal – Sentence – Extension of time – Drug trafficking, firearms and other offences – Applicant sentenced to 9 years and 9 months’ imprisonment with 6 years’ non-parole period – Whether sentence of 12 months’ imprisonment with 4 months’ cumulation for failure to comply with order to provide information manifestly excessive – Sentence not manifestly excessive – Parity – Three relevant co-offenders – Whether sentence infringed parity principle – No error – No justifiable sense of grievance – Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms CA Boston | Galbally Parker Barristers & Solicitors |
| For the Respondent | Mr B Kissane QC | Ms A Hogan, Solicitor for Public Prosecutions |
T FORREST JA
KENNEDY JA:
On 20 February 2020, the applicant pleaded guilty in the County Court to 10 indictable charges on two indictments, as well as three related summary offences.
Indictment C1811815.1 contained one charge of trafficking in a drug of dependence, methylamphetamine, two charges of trafficking in a commercial quantity of a drug of dependence, methylamphetamine, and one charge of failing to comply with an order to provide information (‘drugs indictment’). Indictment J10995116.1 contained five charges of being a prohibited person in possession of a firearm, and one charge of handling stolen goods (‘firearms indictment’).
The applicant was sentenced on 17 July 2020 as follows:
| Charge | Offence | Legislation | Maximum | Sentence | Cumulation | |
| Indictment 1 (C1811815.1) (‘drugs indictment’) | ||||||
| 1 | Trafficking in a drug of dependence | s 71AC(1) Drugs, Poisons and Controlled Substances Act 1981 | 15 years | 3 years and 6 months | 9 months | |
| 2 | Trafficking in a drug of dependence – commercial quantity | s 71AA Drugs, Poisons and Controlled Substances Act 1981 | 25 years | 5 years | Base | |
| 3 | Trafficking in a drug of dependence – commercial quantity | s 71AA Drugs, Poisons and Controlled Substances Act 1981 | 25 years | 5 years | 18 months | |
| 4 | Failing to comply with order to provide information | s 465AA(9) Crimes Act 1958 | 5 years | 12 months | 4 months | |
| Total effective sentence on Indictment 1 | 7 years and 7 months’ imprisonment | |||||
| Indictment 2 (J10995116.1) (‘firearms indictment’) | ||||||
| 1 | Prohibited person possess firearm | s 5(1) Firearms Act 1996 | 10 years | 18 months | 5 months | |
| 2 | Prohibited person possess firearm | s 5(1) Firearms Act 1996 | 10 years | 16 months | 4 months | |
| 3 | Prohibited person possess firearm | s 5(1) Firearms Act 1996 | 10 years | 2 years | Base | |
| 4 | Prohibited person possess firearm | s 5(1) Firearms Act 1996 | 10 years | 16 months | 4 months | |
| 5 | Prohibited person possess firearm | s 5(1) Firearms Act 1996 | 10 years | 20 months | 6 months | |
| 6 | Handling stolen goods | s 88 Crimes Act 1958 | 15 years | 3 months | 1 month | |
| Total effective sentence on Indictment 2 | 3 years and 8 months’ imprisonment, of which 2 years and 2 months is cumulative on the sentence imposed on Indictment C1811815.1 | |||||
| Related Summary Offences | ||||||
| 14 | Possess cartridge ammunition without a license/permit | s 124(1) Firearms Act 1996 | 40 penalty units | $1000 aggregate fine | - | |
| 36 | Possess cartridge ammunition without a license/permit | s 124(1) Firearms Act 1996 | 40 penalty units | |||
| 19 | Commit indictable offence whilst on bail | s 30B Bail Act 1977 | 3 months or 30 penalty units | 1 month | - | |
| Total effective sentence | 9 years and 9 months’ imprisonment | |||||
| Non-parole period | 6 years | |||||
| Pre-sentence detention | 714 days | |||||
| 6AAA statement | 12 years and 9 months’ imprisonment with a non-parole period of 8 years | |||||
| Other relevant orders 1. Sentenced as a serious drug offender in respect of charge 3 on indictment C1811815.1, pursuant to s 6F of the Sentencing Act 1991 2. Forfeiture and disposal orders | ||||||
The applicant now seeks leave to appeal against sentence on the following proposed grounds:
Ground 1: The sentence imposed on Charge 4 of the drugs indictment is manifestly excessive, in light of the five-year maximum penalty, the applicant’s guilty plea, his lack of prior convictions for this offence, the circumstances of the offending, and other factors in mitigation.
Ground 2: The sentences imposed upon the applicant, when compared with those imposed upon his co-accused, give rise to a justifiable sense of grievance on the part of the applicant.
The applicant also sought an extension of time in which to make his application (which was just over two months out of time).
Consistent with the general approach of the parties, we consider that the determination of the application for an extension of time should depend on the prospects of success of the application for leave to appeal. Given that, for the reasons identified below, we consider those prospects to be low, it would be futile to grant the extension sought, and the application for an extension of time will be refused.
Circumstances of the offending
The judge provided a careful, comprehensive, summary of the circumstances of the applicant’s offending,[1] which was not challenged by the applicant, and will not be reproduced. A brief overview suffices for present purposes.
[1]DPP v Singh [2020] VCC 1066, [21]–[81] (‘Reasons’).
In relation to the drugs indictment:
·In eight separate transactions between 10 October 2017 and 30 March 2018, the applicant sold a total of 311.6 grams of a mixed substance containing methylamphetamine. Each sale was made to a covert police operative who used the name ‘Sammy’. The purity of the methylamphetamine sold varied between 79 per cent and 86 per cent (charge 1 – trafficking in a drug of dependence);[2]
·On 12 April 2018, the applicant sold 277.3 grams of a mixed substance containing methylamphetamine at a purity of 78 per cent to an undercover police operative who used the name ‘Zac’ (charge 2 – trafficking in a commercial quantity of a drug of dependence);[3]
·On 14 April 2008, the applicant made an offer to sell 500 grams of methylamphetamine to ‘Zac’ (charge 3 – trafficking in a commercial quantity of a drug of dependence).[4]
[2]Ibid [2] and [6].
[3]Ibid [3] and [7].
[4]Ibid [4] and [8].
Police had obtained a Magistrates’ Court order requiring the applicant to provide access to electronic devices. The applicant was informed of this order, and that failure to comply with the order was an indictable offence punishable by imprisonment. However, he refused to provided that access. The judge recorded that he ‘maintained’ his refusal, stating: ‘Well, I’ll get charged for it’ (charge 4 – failure to comply with order to provide information).[5]
[5]Ibid [5] and [78].
In relation to the firearms indictment, between 26 October 2017 and 12 April 2018, the applicant sold the following illegal firearms to two Victoria Police members acting in covert roles:
·a sawn-off 12-gauge ‘over and under’ shotgun to ‘Sammy’ for $4,000 cash on 26 October 2017 (charge 1 – prohibited person possess firearm);[6]
·a 30-06 calibre bolt action Sauer centre-fire rifle to ‘Sammy’ for $1,700 cash on 20 December 2017 (charge 2 – prohibited person possess firearm);[7]
·a 9mm Luger calibre submachine gun to ‘Sammy’ for $24,500 cash on 28 December 2017 (charge 3 – prohibited person possess firearm);[8]
·a 12-gauge double-barrel shotgun to ‘Sammy’ for $2,400 cash on 28 December 2017 (charge 4 – prohibited person possess firearm);[9] and
·a .32 automatic calibre handgun to ‘Zac’ for $16,000 cash on 12 April 2018 (charge 5 – prohibited person possess firearm).[10]
[6]Ibid [10] and [32].
[7]Ibid [11].
[8]Ibid [12].
[9]Ibid [13].
[10]Ibid [14].
The applicant did not have any relevant licences or authorities under the Firearms Act 1996 and associated regulations to handle, possess or sell firearms. The applicant was a prohibited person under the Firearms Act 1996 throughout the period of offending as he was subject to Community Correction Orders (‘CCOs’).[11]
[11]Ibid [16].
On 17 April 2018, during a search at the applicant’s premises, police located a stolen registration plate affixed to a motorcycle (charge 6 – handling stolen goods).[12]
[12]Ibid [15] and [79].
Criminal record
On 27 February 2017 the applicant was placed on a 12-month CCO with conditions in respect of a number of charges, including trafficking in methylamphetamine, possession of methylamphetamine, possession of a prohibited weapon, and several other firearms offences. On 19 December 2017 he was charged with contravening the February order, with the result that the original order was varied. He was also placed on a CCO in respect of other charges, including possession and trafficking drugs.
As observed by the judge, one of the offences the subject of this application was committed on the very day he was placed on the second CCO.[13] In committing each of the offences the applicant was in breach of bail, as well as in breach of the CCOs.[14]
[13]Ibid [84] and [157].
[14]Ibid [157].
Applicant’s personal circumstances
The applicant was 27 at the time of the offending, and was born in Fiji. He immigrated to Australia when he was 10, with his family. His family are good, responsible members of the community who have supported him. The applicant completed his VCE and commenced an apprenticeship as an electrician. He later worked as a courier driver before purchasing his own trucks, and working in excavation and construction.[15]
[15]Ibid [86]–[87].
In 2015 the applicant commenced a relationship with a woman named Naomi, who was a user of methylamphetamine. He also started using the drug in 2016 (which continued during this offending). A series of unfortunate events followed. On 28 January 2016 he was shot in the abdomen (apparently in the context of a drugs purchase). Several months after, Naomi’s former boyfriend assaulted him with a baseball bat and his arm was broken. Finally, in August 2016 his best friend died from an overdose. He ultimately lost his licence and his trucks.[16]
[16]Ibid [88]–[91].
A clinical psychologist diagnosed the applicant as suffering from post-traumatic stress disorder and stimulant use disorder (in remission whilst in custody).[17] However, it was not suggested that these conditions mitigated his moral culpability, and there was no reliance placed on the principles in R v Verdins.[18]
[17]Ibid [94].
[18]Ibid [125]; R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
Reasons for sentence
After describing the circumstances of the offending, the applicant’s criminal record, and personal circumstances, the judge turned to relevant sentencing considerations.
The judge observed that the applicant had been on remand for 714 days, that this was the applicant’s first time in custody, that his time in custody had been difficult, particularly in light of restrictions due to the COVID-19 pandemic, and that such restrictions had added to the burden of imprisonment and caused additional stress to the applicant and his family.[19]
[19]Reasons, [121].
The judge considered that the applicant’s offending in respect of each of the drug trafficking and firearms offences were ‘serious instances of serious offences’.[20] He also considered that his moral culpability was high, and that his prior convictions for drug trafficking increased the level of his moral culpability.[21] Although police involvement provided the opportunity to offend, the applicant was more than a ready and willing participant, and was motivated by the rewards in drugs and money.[22] The offending was pre-meditated and planned, and the applicant took steps to avoid detection (such as holding onto guns and drugs for as short a period as possible).[23] The offending also occurred over a significant period of time (from 10 October 2017 to 17 April 2018).[24] However, the judge gave some weight in mitigation to the fact that the drugs and guns did not find their way into the wider community.[25]
[20]Ibid [123].
[21]Ibid [125].
[22]Ibid [130].
[23]Ibid [131].
[24]Ibid [132].
[25]Ibid [133].
In respect of charge 1, the applicant trafficked in excess of 103 times the trafficable quantity (of 3 grams) over a period of some five and a half months. The judge considered this to be a serious instance of trafficking.[26] However, based on quantity alone, charge 2 was at the lower end of the spectrum of severity.[27] Charge 3 (relating to an offer to sell 500 grams) represented a ‘significant escalation’ in the level of drugs the applicant was prepared to traffick, and approached a large commercial quantity.[28] However, the judge took into account the fact that it involved an offer, and the drugs would not have been disseminated into the community.[29]
[26]Ibid [135].
[27]Ibid [137].
[28]Ibid [142].
[29]Ibid [143].
The judge also considered that trafficking in methylamphetamine was regarded as a particularly serious offence because of its prevalence.[30] He highlighted the devastation and misery traffickers cause.[31]
[30]Ibid [144], citing Fernando v The Queen (2017) 268 A Crim R 26, 43 [73] (Tate JA); [2017] VSCA 208.
[31]Reasons, [145].
In relation to the firearm offences, the judge considered that the offending was for a specific criminal purpose, namely, to broker sales for financial reward. This meant it fell within a category of cases where more severe sentences are usually in order.[32] The fact that the applicant possessed the firearms for a short period did not mitigate his offending (as this was by design to reduce the risk of being caught). It was also consistent with the fact that the applicant operated as a broker.[33] However, the judge accepted that there was no evidence that the firearms were to be used for any particular criminal purpose or, if they were, that the applicant was aware of that purpose.[34] The firearms the subject of charges 3 and 5 were particularly serious instances of the commission of inherently serious offences (charge 3 related to a submachine gun, and charge 5 to the .32 automatic handgun).[35]
[32]Ibid [148].
[33]Ibid [149].
[34]Ibid [150].
[35]Ibid [152].
As indicated already, the judge highlighted that, in committing each of the offences, the applicant was in breach of bail and in breach of CCOs, which he considered aggravated the seriousness of the offending. Thus, the applicant engaged in offending on the very day he appeared at court, breaching orders that had been imposed only ‘hours earlier’. The breaches showed a ‘blatant disregard’ for court orders, although the judge expressly noted that the applicant was not to be punished ‘here’ for breaching the orders (and that he had been punished separately for breach of the CCO, and was to be sentenced separately for committing an offence whilst on bail). However, the applicant’s offending demonstrated a low regard for the law which was relevant to the need to protect the community, specific deterrence, and prospects of rehabilitation.[36]
[36]Ibid [157]–[159].
The applicant was a ‘serious drug offender’ when sentenced on charge 2 of the drugs indictment such that, pursuant to s 6D of the Sentencing Act 1991, the judge needed to regard the protection of the community as the principal purpose for which the sentence was to be imposed. However, he did not propose to impose a sentence longer than that which was proportionate (given this was not suggested by the prosecution). He also noted that s 6E[37] did not displace the totality principles which would have a part to play in this case.[38]
[37]Section 6E of the Sentencing Act 1991 reads as follows:
Sentences to be served cumulatively
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
[38]Reasons, [163]–[164].
The judge considered that denunciation, general deterrence, and specific deterrence were primary considerations in determining the appropriate sentence.[39] Given the seriousness of the offending, rehabilitation, whilst important, needed to yield to the other sentencing factors.[40]
[39]Ibid [165].
[40]Ibid [168].
In terms of rehabilitation, the judge referred to the previous opportunities given to the applicant which were not used to his advantage. He had regard to the fact that his criminal offending had only commenced in recent years, and that the applicant was making good use of his time in custody. However, he ultimately concluded: ‘I am unable to agree that your prospects are good at this time’.[41]
[41]Ibid [170]–[171].
The judge sentenced on the basis that the applicant had entered his plea at a relatively early time which entitled the applicant ‘to a real measure of leniency’.[42] However, he had difficulty accepting that the applicant was remorseful, or that he took full responsibility for his conduct, and considered that any remorse expressed by the applicant was ‘belated’.[43]
[42]Ibid [173]–[174].
[43]Ibid [175]–[176].
While there were allowances for rehabilitation, the non-parole period needed to adequately reflect the gravity of the offending, and the sentencing purposes in the Sentencing Act 1991. While noting the requirement to consider sentencing practice, the judge also considered that such practice provided a general yardstick and the applicant was to be sentenced according to the features of his case.[44]
[44]Ibid [177]–[178].
The applicant’s co-offenders
A number of other persons were co-offenders in respect of some of the offences committed by the applicant. The applicant does not make any complaint of disparity between his sentence and that of a Ms Kehl.[45] However, he does make complaints about parity in respect of sentences given to Jacob Bentley, Adam Tadros, and Sean King. It is therefore necessary to outline the circumstances surrounding the sentences given to each of these men.[46]
Jacob Bentley
[45]A co-offender in relation to transaction 7 of charge 1 on the drugs indictment; Ibid [101].
[46]Appendix A sets out details of the relevant charges and sentences.
Jacob Bentley was sentenced by Judge Johns on 21 April 2020.[47] He pleaded guilty to three indictable offences and four summary charges, including one charge of trafficking in a commercial quantity (charge 1), being the identical offence to charge 2 on the applicant’s drugs indictment.
[47]DPP v Bentley [2020] VCC 474.
Mr Bentley was sentenced on the basis that he sourced the methylamphetamine for the applicant to satisfy a regular client. The prosecution’s case was that Mr Bentley was complicit with the applicant in his commercial transaction.[48] The judge described him as a ‘middle-man’.[49] His criminal record included a number of trafficking matters, and he had previously been imprisoned for similar offending (for 210 days).[50] Mr Bentley was a similar age to the applicant (aged 26 at the time of offending), but came from a troubled background. He had a history of undiagnosed attention deficit hyperactivity disorder (‘ADHD’), and was depressed and highly stressed leading up to his offending.[51] The judge found that there was ‘some remorse’, but was ‘guarded’ as to his prospects of rehabilitation.[52] He found that his plea was a ‘significant matter in mitigation,’ even though it was not made at the earliest opportunity (noting that these matters needed time to resolve[53]).
[48]Ibid [7].
[49]Ibid [26].
[50]After being sentenced on charge 1 he was a serious drug offender within the meaning of the Sentencing Act 1991; Ibid [30].
[51] Ibid [31].
[52]Ibid [31] and [33].
[53]Ibid [34].
Mr Bentley was sentenced to five years’ imprisonment as a base sentence, being identical to the sentence received by the applicant. He was also sentenced to 12 months in respect of a charge of failure to comply with an order to provide information (the same charge as charge 4 on the applicant’s drugs indictment).
The judge hearing the applicant’s plea was invited to, and did, consider a submission that the applicant’s criminal record was not as extensive as Mr Bentley’s, and that Mr Bentley was also higher in the drug trafficking hierarchy. After noting Mr Bentley’s recent offending and ADHD diagnosis, he said:
I do not consider the roles played by each of you and Bentley to be materially different. I accept that for this particular charge Bentley was closer to the source of supply than you were. I accept also that his criminal history is more serious than yours, however it was you who had developed the relationship with Sammy and Zac, not Bentley, and it was you who was seeking to satisfy your client's request for methylamphetamine. You played an important role in facilitating the movement of the drug to Zac and you did so for reward.
Despite the differences between you and Bentley in conduct and criminal history I do not consider that they are of such significance as to justify a different sentence to that imposed on Bentley. You both operated as ‘middle-men’ in the supply of methylamphetamine which, based on what you told the operatives, was sourced from Yuki. You have previously obtained drugs directly from Yuki.[54]
Sean King
[54]Reasons, [140]–[141].
Sean King was sentenced by Judge Cahill on 7 February 2020.[55] Mr King pleaded guilty to seven indictable offences, and six summary charges. Relevantly, Mr King was sentenced on one charge of unlawfully disposing of a category E handgun contrary to s 96(4) of the Firearms Act1996 (charge 1), and one charge of disposing of a general category handgun contrary to s 96(2A) of that Act (charge 3). Those guns were the subject of charges 3 and 5 of the applicant’s firearms indictment.
[55]DPP v King (County Court of Victoria, Judge Cahill, 7 February 2020) (‘King’).
Mr King was alleged to have been complicit in the sale of the firearms by the applicant. However, he had only one prior finding of guilt resulting in a fine without conviction. He had also been diagnosed with an adjustment disorder with depressed mood and severe substance abuse disorder. In the light of a period of enforced remission and engagement with drug treatment in prison, the judge considered that his prospects of rehabilitation were favourable, and also found that his remorse was ‘genuine and profound’.[56] He was sentenced to 9 months’ imprisonment on charge 1, and 18 months’ imprisonment on charge 3.[57]
[56]Ibid [52].
[57]Ibid [57].
The judge hearing the applicant’s plea was not provided with the sentencing reasons in relation to Mr King. He did not know the basis for Mr King’s sentence, and therefore did not have sufficient information to apply the parity principle.[58]
Adam Tadros
[58]Reasons, [154].
Adam Tadros pleaded guilty in the Magistrates’ Court on 4 June 2019, on a single charge of being a prohibited person in possession of a firearm. This firearm was the same firearm as that which was the subject of charge 2 on the applicant’s firearms indictment.
The summary of evidence in relation to Mr Tadros (which was not available to the judge) refers to the covert operative attending the applicant’s address, and that the purpose of this meeting was for the operative to purchase a firearm ‘from’ the applicant. It further records that the applicant had this firearm ‘stored’ at another address. The summary then details how the applicant and the covert operative subsequently attended at the other address where Mr Tadros gave the firearm to the applicant by retrieving it from his horse-float (which was parked in the front yard of the premises). Whilst at this address the operative handed the applicant $1700 in cash for the firearm.
The applicant sought to suggest that Mr Tadros supplied the gun. However, the available materials suggest that Mr Tadros was sentenced on the basis of a single date possession of a gun that was in fact owned by the applicant. In oral submissions, applicant’s counsel ultimately accepted that it was possible to read the summary tendered in the Tadros matter in this way (ie, that Mr Tadros was merely storing the applicant’s gun for him). Indeed, it is difficult to read the summary in any other way.
Although Mr Tadros did have prior convictions, including for firearm offences, the date of the most recent firearm conviction was in early 2016. There were also other matters put in mitigation at his plea, including that he was a father to three very young children, and needed assistance with his ADHD. He was also the subject of a positive report from Corrections.
In the result, the Magistrate sentenced Mr Tadros to a CCO of 12 months’ duration.
At the plea hearing, parity with Mr Tadros was not pressed before the judge.[59]
[59]Ibid [154].
Proposed ground of appeal 1
Submissions
The applicant submitted that the 12-month sentence imposed on charge 4 was manifestly excessive, having regard to a number of matters, including:
(a) the five-year maximum penalty;
(b) the early guilty plea;
(c) the lack of prior convictions for this offence;
(d) that the applicant was not present in court when the order was made;
(e) that the request was not repeated;
(f) that the information was sought to implicate the applicant, rather than for safety reasons (eg, to rescue a person and/or in the context of child pornography offences); and
(g) that police already had the correspondence of the covert operatives.
The applicant also relied on the other general matters put in mitigation.
The respondent generally described the sentence as ‘unremarkable’, and highlighted that the sentence was identical to the sentence imposed on each of Jacob Bentley and Amy Kehl in respect of the same offence.
Analysis
There is no merit in this ground. We accept the respondent’s submission that the sentence imposed was unremarkable.
The evident purpose of s 465AA(9) of the Crimes Act1958 is to ensure that court orders are complied with to facilitate the administration of justice. There is no requirement that a person’s safety be at immediate risk. In any event, the order in this instance was obtained in the context of a serious drug and firearms investigation where relevant information might be critical to protect the community. Despite this, the sentence imposed was much less than the maximum sentence (of 5 years’ imprisonment), and equivalent to that imposed in relation to two of the co-accused (both Mr Bentley and Ms Kehl).
The applicant may also not have been present when the relevant order was made, but he was informed about it, and he was also informed that a failure to comply with it was an indictable offence. It was pointless for the police to repeatedly invite the applicant to comply in circumstances where his response was: ‘Well, I’ll get charged for it’.
While there was no prior history in relation to this offence, the applicant’s general criminal history was clearly relevant to specific deterrence, as well as prospects of rehabilitation. As highlighted by the judge, the applicant had already shown a ‘blatant disregard’ for court orders (in the way he had breached the CCO).
The judge’s comprehensive reasons also dealt with relevant matters in mitigation. Thus, although he expressly acknowledged the early plea, he also found that any remorse was belated, and that he could not find that the applicant’s prospects of rehabilitation were good. Subject to principles of double punishment (which the judge also acknowledged), he was entitled to take into account that the sentence was to be imposed in circumstances where a substantial term of imprisonment was already warranted.
Having regard to all of the circumstances, then, it cannot be said that the sentence of 12 months, with 4 months’ cumulation, was wholly outside the range.
Proposed ground of appeal 2
Submissions
The applicant submitted that, taking into account the respective criminality, antecedents, personal circumstances, and mitigating factors applicable to the applicant and his co-offenders, the sentences imposed were such as to give rise to a justifiable sense of grievance, or in other words, to give the appearance that justice has not been done.[60]
[60]Citing Lowe v The Queen (1984) 154 CLR 606, 610 (Gibbs CJ).
In relation to Mr Bentley, the applicant submitted that he supplied the methylamphetamine the subject of charge 2 to the applicant, and was sentenced on the basis that he was aware the drugs were being on-sold. The applicant repeated the submission made to the sentencing judge that Mr Bentley was higher up the drug hierarchy than the applicant. He also submitted that Mr Bentley had a more extensive criminal record.
In oral submissions, counsel highlighted that Mr Bentley had previously been sentenced to imprisonment and generally had a more serious criminal history; that the applicant’s plea was earlier; and that no comment was made to the effect that the applicant’s prospects of rehabilitation were only ‘guarded’ (as was made in relation to Mr Bentley).[61]
[61]An earlier suggestion that Mr Bentley was sentenced as a serious drug offender on the relevant charge was ultimately withdrawn.
In relation to Mr King, the applicant submitted that the prosecution’s case was that Mr King supplied the applicant with the two firearms the subject of charges 3 and 5. Although Mr King had a limited criminal history, he had been found guilty of an offence of possessing a firearm just two months before supplying the second gun to the applicant. In oral submissions, counsel emphasised that Mr King supplied the relevant guns, was a prohibited person, and was on bail. Insofar as the applicant had breached a CCO, he was also punished separately in relation to this offence.
In relation to Mr Tadros, the applicant submitted that defence counsel’s concession on the plea (that the principle of parity did not apply because he was sentenced in the Magistrates’ Court) was wrong. In oral submissions, counsel also emphasised that there was inadequate information on which to make the concession. In the circumstances, the erroneous concession should not be a barrier to the success of this part of proposed ground 2.
The applicant submitted that the disparity with Mr Tadros’s sentence was not justifiable, given that, on the applicant’s plea, it was alleged that Mr Tadros had supplied the gun to the applicant, and even on Mr Tadros’s plea, it was alleged that they had acted together in supplying the gun to the covert operative. Mr Tadros also had a much more extensive criminal record than the applicant.
The respondent submitted that there were important relevant differences between the applicant and his co-offenders, leaving little work for the parity principle.
Analysis
In Ngaa v The Queen[62] this Court said:
The principles relating to parity of sentencing are well established and do not need detailed examination for the purposes of determining the appeal. An appellate court may interfere with a sentence, on the basis of disparity, where there is such a ‘manifest’ disparity between the sentences imposed on the appellant and on a co-offender, taking into account any differences between the involvement of the offenders in the particular offence, and their personal circumstances, as to give rise to a justifiable sense of grievance on the part of the appellant and of an objective bystander.[63]
[62][2015] VSCA 336.
[63]Ibid [7].
In circumstances where an appellate court has the benefit of consideration by the sentencing judge (as here in the case of Mr Bentley), the remarks of Maxwell P in Hilder v The Queen[64] are also apposite:
Where a judge has carefully considered all of the relevant sentencing considerations applicable to the respective co-offenders, a ground of parity will rarely succeed. In those circumstances, it will be necessary for an appellant to show that, despite the sentencing task having been carefully and conscientiously carried out, nevertheless, the conclusion as to differentiation is so obviously wrong that the Court is constrained to conclude that the sentencing discretion miscarried as a matter of law.[65]
[64][2011] VSCA 192.
[65]Ibid [39].
The fact that Mr Bentley might have been marginally closer to the source of the drugs did not mean that he had a higher role in the enterprise. Rather, in circumstances where the ultimate supplier appeared to be a woman called ‘Yuki’, there was no error in concluding that both operated as ‘middle-men’. The judge also correctly observed that it was the applicant who had developed the relationship with the operatives, and thereby played an important role in facilitating the movement of the drug for reward.
Insofar as the other factors were concerned, the judge accepted that the applicant’s criminal record was not as extensive as that of Mr Bentley. However, there were other matters which mitigated Mr Bentley’s sentence, including the diagnosis of ADHD and depression, and that he came from a troubled background. The conclusions as to rehabilitation and remorse were otherwise not relevantly distinguishable, while both were given leniency by reason of their pleas.
Overall, then, the judge’s conclusion (that the differences were not of such significance as to justify a different sentence) was well open. There is no justifiable sense of grievance.
In terms of Mr King, although he may have been complicit in the supply of the guns the subject of charges 3 and 5 of the applicant’s indictment, the applicant’s complaints ignore the fact that Mr King was sentenced for entirely different charges. Two matters were particularly significant. First, the applicant’s charges were predicated on the offender already being a prohibited person. Secondly, the maximum penalty in respect of charge 5 was 10 years’ imprisonment, which was double that which was applicable to the relevant charge which related to Mr King (of 5 years’ imprisonment). Despite this, the relevant differential in the sentence imposed was only 2 months.
Mr King’s personal circumstances were also different. Regardless of timing, he only had one single prior finding of guilt, resulting in a fine without conviction. He had been diagnosed with an adjustment disorder with depressed mood and severe substance abuse disorder. The judge also found that his remorse was ‘genuine and profound,’ and that his prospects of rehabilitation were favourable. Although both men appear to have breached bail, the applicant’s offending also contravened a CCO, and, as we have observed, occurred within hours of the order being imposed. The applicant was punished separately for this breach, but the judge correctly identified that this was relevant to considerations of specific deterrence and rehabilitation.
The very different objective and subjective factors therefore give rise to no justifiable sense of grievance on the part of the applicant or an objective bystander.
Finally, even if the applicant is permitted to abandon the concession made in respect of Mr Tadros, no justifiable sense of grievance arises. First, as highlighted already, Mr Tadros appears to have been sentenced on the basis that he merely stored the gun for the applicant. Secondly, although Mr Tadros did have an extensive criminal history, there were important matters in mitigation, including that he was father to three very young children, and that he needed assistance with a late ADHD diagnosis. Thirdly, Mr Tadros was sentenced for a single stand-alone offence, as compared with the applicant, who was sentenced in the context of other very serious offending. There can be no suggestion that a CCO was open in the applicant’s case (nor was it sought).
Conclusion
In light of the poor prospects of success, we would refuse the application for an extension of time.
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APPENDIX A
| Charge | Offence | Maximum | Applicant’s sentence | Co-Accused | Co-accused’s offence | Maximum | Co-accused’s sentence |
| Indictment 1 (C1811815.1) (‘drugs indictment’) | |||||||
| 2 | Trafficking in a drug of dependence – commercial quantity (s 71AA Drugs, Poisons and Controlled Substances Act 1981) | 25 years | 5 years | Jacob Bentley | Trafficking in a drug of dependence – commercial quantity (s 71AA Drugs, Poisons and Controlled Substances Act 1981) | 25 years | 5 years (Judge Johns, 21.4.20) |
| Indictment 2 (J10995116.1) (‘firearms indictment’) | |||||||
| 2 | Prohibited person possess firearm (s 5(1) Firearms Act 1996) | 10 years | 16 months | Adam Tadros | Prohibited person possess firearm (s 5(1) Firearms Act 1996) | 10 years | 12 month CCO (Magistrates’ Court, 4.6.19) |
| 3 | Prohibited person possess firearm (s 5(1) Firearms Act 1996) | 10 years | 2 years | Sean King | Unlawful disposal of a category E handgun (s 96(4) Firearms Act 1996) | 10 years | 9 months (Judge Cahill, 7.2.20) |
| 5 | Prohibited person possess firearm (s 5(1) Firearms Act 1996) | 10 years | 20 months | Sean King | Unlawful disposal of a general category handgun (s 96(2A) Firearms Act 1996) | 5 years | 18 months (Judge Cahill, 7.2.20) |
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