Rodgerson v The Queen [No 2]
[2022] VSCA 154
•5 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0115 |
| PAUL DAVID RODGERSON | Appellant |
| v | |
| THE QUEEN [NO 2] | Respondent |
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| JUDGES: | EMERTON P, KYROU and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 July 2022 |
| DATE OF JUDGMENT: | 5 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 154 |
| JUDGMENT APPEALED FROM: | [2021] VCC 155 (Judge Tinney) |
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CRIMINAL LAW – Appeal – Sentence – Possess substance, equipment or instructions for commercial manufacture of controlled drugs – Business of trafficking marketable quantity of controlled drug – Possess controlled drug – Fail to comply with order under Crimes Act 1914 (Cth) s 3LA(2) – Total effective sentence 6 years, 5 months’ imprisonment, non‑parole period 3 years, 8 months – Whether judge erred in not taking into account family hardship as a mitigating circumstance – Whether exceptional circumstances required under s 16A(2)(p) of Crimes Act – Appeal dismissed – Markovic v The Queen (2010) 30 VR 589, Totaan v The Queen (2022) 400 ALR 578, Mohamed v The Queen [2022] VSCA 136 considered.
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| Counsel | |||
| Appellant: | Mr PJ Smallwood with Mr T Bourbon | ||
| Respondent: | Ms K Breckweg with Mr N Modrzewski | ||
Solicitors | |||
| Appellant: | Stephen Andrianakis & Associates | ||
| Respondent: | Mr S Bruckard, Solicitor for Public Prosecutions (Cth) | ||
EMERTON P
KYROU JA
T FORREST JA:
Introduction and summary
On 9 October 2020, the appellant pleaded guilty to one charge of possessing a substance, equipment or instructions for the commercial manufacture of controlled drugs,[1] one charge of conducting a business of trafficking a marketable quantity of a controlled drug,[2] one charge of possessing a controlled drug,[3] and one charge of failing to comply with an order under s 3LA(2) of the Crimes Act 1914 (Cth).[4]
[1]Criminal Code (Cth), s 308.4(1). The maximum penalty is 7 years’ imprisonment.
[2]Criminal Code, ss 302.3(1) and 311.2. The maximum penalty is 25 years’ imprisonment.
[3]Criminal Code, s 308.1(1). The maximum penalty is 2 years’ imprisonment.
[4]Crimes Act, s 3LA(5). The maximum penalty is 2 years’ imprisonment.
On 18 February 2021, a County Court judge sentenced the appellant to a total effective sentence of 6 years and 5 months’ imprisonment and fixed a non-parole period of 3 years and 8 months.[5] The individual sentences for each charge and the orders for cumulation made by the judge are set out at [63] below.
[5]DPP v Rodgerson [2021] VCC 155 (‘Sentencing remarks’).
The appellant sought leave to appeal against his sentence on three grounds, namely, that the judge erred in assessing the gravity of the offending, parity and manifest excess.[6] Shortly prior to the hearing of the application for leave to appeal, the appellant sought leave to add the following new ground:
The probable effect that any sentence or order under consideration would have on any of the [appellant’s] family or dependants, which was a relevant sentencing consideration pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth), was not taken into account.
[6]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
Section 16A of the Crimes Act relevantly provides as follows:
16AMatters to which court to have regard when passing sentence etc.—federal offences
(1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
…
(2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(p)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
Leave to add the additional ground was sought as a result of the publication of the decision of the New South Wales Court of Criminal Appeal in Totaan v The Queen[7] on 11 April 2022. In that decision, a five-member bench of that Court concluded that previous cases that held that s 16A(2)(p) of the Crimes Act requires that hardship to a family member or a dependant may only be taken into account where the circumstances of hardship satisfied the epithet ‘exceptional’ are plainly wrong and should not be followed.
[7](2022) 400 ALR 578; [2022] NSWCCA 75 (‘Totaan’). See [66]–[68] below.
In the present case, the Crown conceded that leave should be granted to the appellant to add the new ground and that leave to appeal should be granted in respect of it due to the desirability of national uniformity in sentencing for Commonwealth offences.
On 6 May 2022, Kyrou JA refused the appellant’s application for leave to appeal on his three initial grounds of appeal and granted him leave to appeal in respect of the new ground.[8]
[8]Rodgerson v The Queen [2022] VSCA 82.
This decision deals only with the new ground. Parts of this decision are adapted from Kyrou JA’s leave to appeal decision and thus this decision needs to be read in the light of that decision.
For the reasons that follow, the appeal will be dismissed.
Circumstances of the offending
During the period of two and a half years leading up to May 2016, the appellant and his co-offender, Robert Olczyk, began offering MDMA tablets or capsules for sale. They did so using the name ‘Flying Kangaroo’ on the dark net marketplace platform ‘Silk Road 2’ (until that platform was closed down by United States authorities in November 2014), and by encrypted communications with already established buyers on the ‘Wickr’ application under the name ‘FKanga’.
From 22 July 2015, the appellant leased a factory at Keys Road, Moorabbin.
In early May 2016, Flying Kangaroo announced on the ‘Dream Market’ and ‘AlphaBay’ dark net marketplaces that it was relaunching and advertised MDMA capsules for sale. From 5 June 2016, instead of selling capsules, Flying Kangaroo sold distinctive MDMA tablets which were blue, circular, bevel-edged and impressed with the Qantas flying kangaroo logo. These tablets were advertised and sold by Flying Kangaroo on the dark net and by ‘NVSD’ via Wickr until the date of the appellant’s arrest on 23 November 2016. ‘NVSD’ is an acronym for the names of the appellant’s two dogs separated by the abbreviation of versus (‘vs’). A search of the appellant’s mobile phone revealed a photograph of three of the distinctive tablets taken at 1:03 pm on 16 May 2016. Charge 1 (possess substance, equipment or instructions for commercial manufacture of controlled drugs) relates to the 27-week period from the date of this photograph until the appellant’s arrest.
The appellant planned to manufacture MDMA with a constituent MDA precursor which was also to be manufactured. This planning involved instructions to manufacture, photography of the attempts to manufacture, the purchase of new ingredient substances, the purchase of new equipment and the receipt of instructions as to how to repair defective equipment and photography of such defective equipment. The appellant had major online input in relation to the ordering process and the after-sales liaison with Chinese suppliers when problems arose. Photographs still stored (and also sometimes provably deleted) from his mobile phone in combination with still-stored chat dialogues confirmed his direct overseas involvement.
Orders for MDMA placed through Flying Kangaroo were conveyed by the appellant to Olczyk who then packed and posted the orders.
According to the written prosecution summary, which the appellant accepted was factually accurate, Olczyk was the ‘hands on, head up’ contributor: collecting equipment, pressing pills, processing orders and posting packages. The appellant’s role was ‘more superior, cerebral, secretive and secure’. The appellant was very adept at concealing his identity. He exerted ‘considerable influence and commanding control vis à vis … Olczyk’. A number of messages sent between them during the period from 2014 until the date of their arrest confirm ‘the deprecating and demanding demeanour’ of the appellant towards Olczyk. The messages from Olczyk ‘only very rarely manifested any resistance or resentment towards such treatment’.
Between 6 June 2016 and 16 June 2016, 18 orders for a total of 330 of the blue Flying Kangaroo tablets were placed. Those orders comprised 14 orders for 10 tablets, two orders for 20 tablets, one order for 50 tablets and one order for 100 tablets. On 17 June 2016, Federal Agent Phelps first placed an order for some of the tablets.
Using three covert online personas, Phelps dealt with the operator of the Flying Kangaroo AlphaBay dark net marketplace site. Using the name ‘RedBandit’, she also later dealt with Flying Kangaroo (using the name ‘NVSD’) on the Wickr messaging application. The appellant was the operator of both the Flying Kangaroo AlphaBay site and the NVSD Wickr username.
Wickr messages exchanged between NVSD and Phelps in November 2016 confirmed that a ‘new batch’ of red tablets to be named ‘FK 2.0’ was then imminent.
Charge 2 (business of trafficking a marketable quantity of a controlled drug) relates to the 23-week period from the date of Phelps’ first order on 17 June 2016 until the appellant’s arrest on 23 November 2016. A marketable quantity of MDMA is not less than 100 g of pure MDMA. Under charge 2, the appellant trafficked at least a marketable quantity of MDMA. The prosecution was not able to more precisely quantify the MDMA. Charge 2 is based upon the following evidence:
(a)Purchase and receipt of nine orders by Phelps, plus an additional gratuitous supply in response to a complaint, comprising a total of 305 blue tablets. All tablets were sent by Australia Post Express Post mail to one of three Sydney addresses. The letters were collected, deconstructed and their contents analysed. The total net weight of pure MDMA was 21.6 g. Toolmark examination confirmed that the tablets were either produced by a pill press located at the factory, or were consistent with production by that pill press. Fingerprint analysis revealed Olczyk’s fingerprints upon one of the 10 envelopes.
(b)MDMA tablets supplied to one or two other customers, seized at Moorabbin Mail Centre on 9 September 2016. A total of 22 tablets were seized from two envelopes addressed to Western Australian addresses. These tablets contained 1.8 g of pure MDMA.
(c)Business records of AlphaBay seized by the FBI. These records show that, between 17 June 2016 and 22 November 2016, 116 orders were placed by 72 different buyers on AlphaBay for a total of 3,130 Flying Kangaroo MDMA tablets. The total noted Bitcoin amount payable in respect of those orders during the offence period was USD 31,190.83. This does not include the Wickr sales.
(d)The listing of sales of blue tablets as shown on the AlphaBay website. Screen images captured by Phelps commencing in early June 2016 show that, between 5 June 2016 and 23 November 2016, 118 sales of 2,170 tablets had been listed (70 orders for 10 tablets, 31 orders for 20 tablets and 17 orders for 50 tablets). There were also seven feedback reports from different AlphaBay buyers in relation to sales of 100 tablets per buyer (and thus 700 tablets). Adding those 700 tablets, at least 2,870 tablets were sold on AlphaBay. This does not include the Wickr sales.
(e)Documents seized from Olczyk’s residence show the names of very recent recipients of listed quantities of tablets. In addition to Phelps’ most recent purchases for ‘Smith’, there are seven names in relation to a total of 190 dispatched tablets (Albion [20], Bellicano [20], Brown [10], Gahnu [20 + 20], Guerin [50], Tan [10] and Welsh [20 + 20]).
(f)Messages sent by the operator of the Flying Kangaroo AlphaBay website to the online personality of Phelps in September 2016, which state that Flying Kangaroo dispatched ‘a shitload’ of orders and that, in a standard production run, ‘I make 1 kg at a time’.
(g)200 blue Flying Kangaroo tablets containing 27.4 g of pure MDMA seized from Olczyk’s residence. This verifies stock in hand then available for immediate packaging and dispatch as at 23 November 2016.
(h)Olczyk’s possession of $15,000 cash in combination with documentation seized from his residence on which he wrote ‘FK owes me 15’ and ‘FK owes 15’. A typed file located on the Lenovo laptop computer seized from the appellant’s residence, beneath a heading ‘FK’, deducts $15,000 from an amount of $25,400 and then deducts listed disbursements to ‘Robbie’ and ‘Paul’ leaving a balance of $7,600 which is split equally between ‘Paul’ and ‘Ogorki’ (a Polish nickname for Olczyk).
The appellant and Olczyk were arrested on 23 November 2016. Police searched their residences and the factory. The appellant’s fingerprints were located on some funnels, flasks and documents relating to MDMA manufacturing found at Olczyk’s residence. Consistent with the appellant’s acute aversion to risk, the police search of his residence failed to reveal the ‘mother lode’ of manufacturing paraphernalia, powder and product that was located at both the factory and Olczyk’s residence.
Police seized from the factory a small safe containing a substance (329.8 g of pure MDMA). They seized from Olczyk’s residence the 200 blue Flying Kangaroo tablets (27.4 g of pure MDMA) to which we have already referred, and a quantity of brown crystalline material (5.4 g of pure MDMA). The amount of pure MDMA seized from Olczyk’s residence was 32.8 g.
Seven tablets containing MDMA were located at the appellant’s residence: six blue tablets (which were not impressed with a flying kangaroo) in a plastic zip‑locked bag inside an ‘Eclipse Chewy Mints’ tin, and one red tablet with an impressed flying kangaroo in a clip seal bag. A sample blue tablet contained 25.3 per cent pure MDMA and the red tablet contained 24.1 per cent pure MDMA plus caffeine. The extrapolated pure weight of MDMA within the seven tablets was 0.3 g (charge 3 — possess a controlled drug). The six blue tablets had been pressed in one of the two presses located at the factory, whereas the red tablet had not.
At the time of the search, police were in possession of an order under s 3LA(2) of the Crimes Act, which required the appellant to assist police to access his computer and mobile phone. He refused to comply with a formal request to provide the password, or otherwise provide access, to his phone (charge 4 — fail to comply with an order under s 3LA(2)). Police were otherwise able to obtain access to his phone several months later, although never the Wickr application.
The items the subject of charge 1 were listed in Annexure A to the written prosecution opening (‘Annexure A’). Those items include:
(a)the six blue tablets seized from the appellant’s residence;
(b)a packing slip for three Teflon magnetic stirrer bars in an envelope addressed to the appellant at his work address, seized from his vehicle;
(c)photographs of blue tablets, a crystalline substance and equipment for manufacturing MDMA stored on the appellant’s seized phone and computer;
(d)instructions for manufacturing MDMA stored on the appellant’s computer;
(e)invoices stored on the appellant’s computer for the purchase of supplies for manufacturing MDMA;
(f)Skype chat records stored on the appellant’s phone and computer relating to the purchase of supplies for manufacturing MDMA, and relating to defective equipment;
(g)equipment and supplies for manufacturing MDMA seized from Olczyk’s residence and the factory, such as:
(i)funnels, flasks, retort stands, digital scales and magnetic stirrers;
(ii)numerous containers of helional, methanol, chlorine, xylene, bleach, hydrochloric acid and acetone;
(iii)a plastic bag of blue food dye;
(iv)two pill presses which had substantial amounts of blue powder residue on them;
(v)the 200 blue Flying Kangaroo tablets (27.4 g) and the quantity of brown crystalline material (5.4 g) seized from Olczyk’s residence (item 77);[9] and
(vi)the substance in the small safe seized from the factory (329.8 g) (item 80).[10]
[9]See [21] above.
[10]See [21] above.
The pure MDMA referred to in (v) and (vi) above totalled 362.6 g.
Appellant’s personal circumstances
The appellant was aged 37 at the time of the offending and 42 at the time of sentencing.
The appellant is the eldest of three children born in Australia to English immigrants. He has always been close to his mother but, for much of his childhood, he feared his father, who was a strict disciplinarian. He lived with his grandmother from the age of 15. In recent years, he has reconciled with his father and enjoys a close relationship with his brother and sister.
Although there were behavioural issues during the appellant’s secondary schooling, he completed his VCE. He twice commenced tertiary computing courses, but did not complete them. He later completed certification with Microsoft as a system engineer.
The appellant has been consistently employed since he was 15 years old. In his early 20s, he was self-employed as an IT contractor/consultant, building and setting up computers and installing software. He was later employed in various IT support roles. He operated a number of successful small businesses, before starting a building company with his brother in 2007 or 2008. The appellant initially worked ‘on the tools’ and then settled into a client management and accounts role once the company became successful.
The appellant was in a relationship with Ayla O’Hehir from 2010 to 2015, including one year of marriage. They share one son, Michael (who is usually referred to as ‘Mikey’), aged 7. Prior to his incarceration, the appellant was Michael’s primary carer.
The appellant experienced significant behavioural problems as a young person, and bouts of elevated anxiety from his late teens. He has participated in various episodes of counselling and medical treatment since secondary school. During this time, he has been prescribed several antidepressants, which he was continuing to take while on bail.
The appellant drinks alcohol only sparingly and does not use illicit drugs. He has no prior criminal convictions.
Plea hearing
At the plea hearing, the appellant tendered a child assessment report by Andrea O’Byrne dated 11 January 2021. To assist with preparation of her report, Ms O’Byrne interviewed Michael, the appellant and the appellant’s sister, Nicole Trionfi, but mutually convenient times for a meeting with Ms O’Hehir could not be arranged prior to the due date for the report. Ms O’Byrne also gave oral evidence.
In her report, Ms O’Byrne stated that there was an informal co-parenting arrangement in place between the appellant and Ms O’Hehir and that the appellant was Michael’s primary carer. Ms O’Byrne reported that, although the appellant described Ms O’Hehir as a warm, maternal mother, he also indicated that she is unreliable and Michael ‘experiences a somewhat chaotic life with no routine or structure’ when he is with her. Ms O’Byrne noted that Ms O’Hehir lives with her parents and that Michael spends time with his grandparents when his mother is at work or is sick.
In her report, Ms O’Byrne stated that Michael has developed some concerning behaviours whereby he becomes emotionally overwhelmed with angry outbursts, including physical aggression. She reported that the appellant provides emotional containment and boundaries to assist Michael when he is overwhelmed. She noted that, when the appellant was on remand, he was in his mother’s care.
In her report, Ms O’Byrne stated the following under the heading ‘The likely impact of imprisonment … on Michael’:
Mikey will be significantly impacted if his father is incarcerated. Changing the primary care arrangements will result in a big upheaval. [The appellant] helps Mikey to manage his anxiety and worries and thereby enjoy family and school life. [The appellant] can [soothe] and settle Mikey when he becomes distressed. He provides some level of routine to ensure [Mikey’s] basic needs are met and tries to support Ms O’Hehir by being readily available to respond to Mikey when her plans have changed or there [are] last minute requests around Mikey’s caregiving.
The assessment interviews with Mikey, his father and aunt all indicated that Ms O’Hehir is a loving, warm mother who has a good relationship with her son. Mikey clearly loves and enjoys spending time with his mother and grandparents. Mikey’s relationship with his mother along with his extended family will provide a crucial protective factor to mitigate some of the impact of his father’s absence if he is incarcerated. However, without Ms O’Hehir’s input into the assessment process, it is not known what her thoughts and intentions are in relation to the arrangements for Mikey if his father is incarcerated.
It is also unclear how Ms O’Hehir will manage as a sole parent, particularly in relation to managing Mikey’s emotional and behavioural issues and maintaining his day to day. Mikey expressed concerns about his mother being frequently sick, often late, inconsistently available and sometimes having difficulty managing his ‘meltdowns’ which results in his father’s intervention.
At the plea hearing, Ms Trionfi gave evidence in addition to providing a character reference. In her evidence, she described the standard of parental care provided by the appellant in very positive terms and was critical of the standard provided by Ms O’Hehir.
Defence counsel submitted that Michael would suffer exceptional hardship if the appellant was incarcerated for the following reasons:
(a)Michael is suffering from anxiety and is worried about a separation from his father. A separation from his father would inevitably cause trauma to him, as he would be losing his primary carer.
(b)Michael would lead a chaotic lifestyle if he resided for an extended period with his mother, and his emotional, educational and developmental needs would suffer significantly, particularly as he is at an important developmental age.
(c)Michael’s mother is ill equipped to properly care for him in the long‑term.
(d)Michael is reliant upon his father for emotional support, even when not in his company, as well as financial support.
In oral submissions, defence counsel acknowledged that Michael’s extended family would do their best to support him. However, counsel contended that the appellant’s imprisonment would nonetheless adversely affect Michael on a practical level due to his developmental age.
Defence counsel submitted that, even if there were not exceptional circumstances, the effect upon the appellant of Michael’s hardship may be taken into consideration under s 16A(2)(j), (m) and (n) of the Crimes Act in relation to the deterrent effect that any sentence may have upon the appellant; his character, antecedents, age, means and physical or mental condition; and his prospect of rehabilitation. Counsel also argued that imprisonment would be more burdensome for the appellant because of his concerns about Michael’s care.
The appellant relied upon a letter from a lawyer for his parents and sister dated 12 February 2021. That letter stated that Michael’s paternal family had not had any contact with him since the appellant was remanded in custody on 28 January 2021. It further stated that Ms O’Hehir had not responded to their numerous attempts to arrange access to him and that they hold ‘grave and well-founded concerns for Mikey’s welfare’.
The appellant also relied upon a psychological report dated 21 December 2020 by Patrick Newton, and an addendum to that report dated 17 January 2021. Mr Newton also gave evidence at the plea hearing.
Mr Newton primarily diagnosed the appellant with a moderate narcissistic personality disorder with antisocial features. He also diagnosed the appellant with a mild mixed anxiety disorder with features of generalised anxiety disorder and obsessive-compulsive disorder.
Mr Newton concluded that there was a clear nexus between the appellant’s personality disorder and his offending conduct but that no clear nexus could be discerned between his anxiety disorder and his offending conduct. He opined that, due to the appellant’s pre-existing anxiety-related disorder, he would be likely to experience a resurgence of anxiety‑related symptoms during the early stages of any time in custody which the Court might impose upon him, which would be considerably greater than is typically the case. Mr Newton further opined that the appellant’s personality vulnerabilities are likely to make it more difficult for him to interact with other prisoners, such that his time in custody would be rendered somewhat more onerous than is typical on account of his pre-existing psychological conditions.
Mr Newton reported that the appellant expressed a strong bond to Michael and distress at the effects of having been separated from Michael during his time on remand for the current offending. Mr Newton said that the appellant noted that his major concern at present was the prospect of a further period of separation from Michael.
Mr Newton stated that the appellant acknowledged his offending in general terms and described his role as providing ‘back office support’ for Olczyk. He noted that the appellant’s expressions of remorse focused upon the impacts of his conduct for Michael and his family more broadly. He reported that the appellant downplayed the broader societal impact of being involved in drug trafficking as well as the potential consequences for those who purchased the drugs.
In cross-examination, Mr Newton stated that the appellant was evasive when they discussed his offending. Mr Newton stated that the appellant rationalised his offending as less serious than it was, and that he did not accept that the appellant’s rationalisation was truthful.
Sentencing remarks
The judge described the appellant’s offending as ‘unmistakably serious criminal conduct’ which was neither isolated nor a ‘youthful frolic’.[11] He said that it was ‘a highly organised and sophisticated criminal business’, which involved ‘multiple separate transactions’.[12] He added that the offending was calculated, with many levels of secrecy and dedicated steps taken to avoid discovery, identification and prosecution.
[11]Sentencing remarks, [117].
[12]Sentencing remarks, [14].
The judge stated that the offending the subject of charge 1 was a serious crime owing to its duration and the number and nature of the items particularised in Annexure A.
The judge stated that the MDMA the subject of charge 2 fell above the marketable quantity of 100 g and below the commercial quantity of 500 g. He said that he did not speculate as to the precise quantity, concluding that it was simply no less than 100 g.
The judge found that the possession of seven MDMA tablets the subject of charge 3 was ‘of no real consequence at all’.[13]
[13]Sentencing remarks, [128].
The judge held that charge 4 was a ‘serious enough crime’ because the appellant deliberately obstructed investigators in an attempt to protect himself.[14]
[14]Sentencing remarks, [129], [141].
The judge accepted that the appellant’s guilty plea should be treated as given at an early stage. He stated that there were very significant utilitarian benefits as a result of the guilty plea, including the fact that the matter settled in the midst of the COVID-19 pandemic.
The judge remarked that, although a guilty plea is usually indicative of some remorse, he was not satisfied in this case that the appellant displayed any genuine remorse for his offending. That was said to be because, whilst the appellant was sorry for placing his family and building company in the position that he had, the false and self‑serving statements he made to Mr Newton downplayed his role in the offending.
The judge acknowledged that there had been a significant delay between the appellant’s arrest on 23 November 2016 and the sentence delivered on 18 February 2021. He said that many of the steps — including a mutual assistance request involving the FBI — were unavoidable and outside the appellant’s control. He accepted that it would have been stressful for the appellant to have had the matter hanging over his head and that the appellant had conducted himself appropriately during the lengthy period. He concluded that the delay was a sizeable mitigatory factor.
The judge found that some modest weight was to be given to the fifth and sixth limbs in R v Verdins[15] due to the appellant’s anxiety condition. He did not accept that the first, third or fourth limbs were enlivened. That was said be because, in the light of the appellant’s untruthful account of his offending given to Mr Newton, it was simply ‘guesswork’ to attribute some nexus between the appellant’s personality disorder and his offending.[16]
[15](2007) 16 VR 269, 276 [32] (‘Verdins’).
[16]Sentencing remarks, [96].
The judge stated that, in order for any hardship to Michael resulting from the appellant’s incarceration to qualify as a mitigating sentencing consideration, it had to be ‘exceptional’.[17] The judge found that the appellant’s imprisonment would not cause exceptional hardship to Michael. He stated that the evidence relating to Michael was one-sided and he was not impressed by Ms Trionfi’s evidence — which contained an aspect of advocacy — or the letter from the lawyer for the appellant’s parents and sister. He remarked that Michael never described life with his mother as being chaotic.
[17]Sentencing remarks, [64]–[82].
Relevantly, the judge said the following about the hardship Michael would suffer as a result of the appellant’s incarceration:
The prosecution in no way challenged the fact that [the appellant has] been in a very strong, close and loving relationship with [his] son. It seems apparent that [the appellant has] been providing the lion’s share of care for him. [The appellant has] also been providing financial support. [The appellant is] worried as to how he will fare in [the appellant’s] absence. That is all perfectly understandable. ‘Blind Freddy’ would know that the alterations in arrangements will have an impact on Mikey. …
…
Mikey has had some meltdowns … It would seem that even when Mikey is staying with his mother, [the appellant has] been called in either in person or on the phone to handle that sort of thing. Obviously in a custodial setting that could not happen. He has had some anxiety about [the appellant] attending the police station. … He missed [the appellant] when [he was] on remand. … There will be adjustments to be made by [the appellant’s] ex-wife in the need to be a fulltime or primary carer. She will not have the sort of flexibility that perhaps was bred by [the appellant] being on deck and having a level of flexibility [himself]. I do not doubt that she will rise to the challenge to be the primary carer of Mikey. … Of course there will be the initial upheaval and it will not be easy for anyone actually, but there is the protection offered by the boy’s mother and the family with whom she lives. …
…
I do not doubt for one moment that Mikey will be affected by [the appellant’s] absence. Of course he will. [The appellant is] his father and [he is] now in prison. [The appellant has] been the primary carer. [The appellant loves] him. He loves [the appellant] and no doubt, he was used to how he was living. There has been stability. But I believe he will move fulltime to his mother’s and she will provide a loving home and understand the importance that comes with being the primary carer. I am confident she will do what needs to be done to advance the interest of [the appellant’s] son. She will not have the freedoms that have arisen in a shared parenting arrangement, so she will need to make some adjustments in her life. I believe she will. … Mikey also has loving extended families on both sides, who will pitch in as he makes this adjustment. …
…
I do not accept that his emotional, educational and mental needs will suffer significantly, such as to give rise to [exceptional circumstances].[18]
[18]Sentencing remarks [67], [69], [76], [79].
The judge accepted that the burden of imprisonment upon the appellant would be increased by the separation from Michael. He also accepted that the pandemic would increase the burden of imprisonment upon the appellant.
The judge found that the appellant’s motivation for the offending was financial reward. He did not accept that the appellant gave his profits away by way of child support.
The judge concluded that the appellant’s prospects of rehabilitation were ‘quite reasonable’.[19] However, he added that ‘[t]here is at least some risk of re‑offence’.[20]
[19]Sentencing remarks, [117].
[20]Sentencing remarks, [117].
The judge found that general deterrence was of real importance given the highly organised, highly sophisticated, serious offending. He said that he must also give some weight to denunciation, just and proportional punishment, specific deterrence and community protection.
On 18 February 2021, the judge sentenced the appellant as follows:
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Possess substance, equipment or instructions for commercial manufacture of controlled drugs 7 years 3 years 1 year, 3 months 2 Business of trafficking a marketable quantity of a controlled drug 25 years 5 years Base 3 Possess a controlled drug 2 years $750 fine — 4 Fail to comply with an order under Crimes Act, s 3LA(2) 2 years 6 months 2 months Total Effective Sentence: 6 years and 5 months Non-Parole Period: 3 years and 8 months Section 6AAA Statement: Total Effective Sentence 9 years, 5 months
Non Parole-Period 6 years, 8 months
Legal principles relating to family hardship
In Markovic v The Queen,[21] a five-member bench of this Court considered family hardship in the context of two offenders, one of whom had pleaded guilty to State and Commonwealth offences and the other had pleaded guilty to Commonwealth offences. The Court held that, at common law, unless the circumstances are shown to be exceptional, the hardship that is likely to be caused by an offender’s imprisonment to members of his or her immediate family, or other dependents, is to be disregarded as a sentencing consideration.[22] The Court said as follows in relation to the application of the ‘exceptional circumstances’ test to sentences for Commonwealth offences:
There is … a uniform national position in relation to sentencing for Commonwealth offences. The requirement in s 16A(2)(p) of the Crimes Act … — that the court consider ‘the probable effect’ of the sentence on family and dependants — has been construed as being subject to the exceptional circumstances test.[23]
[21](2010) 30 VR 589 (‘Markovic’).
[22]Markovic (2010) 30 VR 589, 591 [2]–[3], 593 [11].
[23]Markovic (2010) 30 VR 589, 593 [11], citing R v Carmody (1998) 100 A Crim R 41, 45; R v Togias (2001) 127 A Crim R 23, 25–6 and the cases there cited.
In Markovic, the Court found that the effect upon an offender of hardship caused to family members by his or her imprisonment was a separate matter which could be properly taken into account as a mitigating factor. For example, an offender’s anguish at not being able to care for a family member could make his or her experience of imprisonment more burdensome or could materially affect the assessment of the need for specific deterrence or of his or her prospects of rehabilitation. The Court held that the effect of family hardship on the offender was not subject to the exceptional circumstances limitation.[24]
[24]Markovic (2010) 30 VR 589, 595 [20].
As we have already stated, in Totaan, a five-member bench of the New South Wales Court of Criminal Appeal determined that decisions holding that a court imposing a sentence for a Commonwealth offence may only have regard to hardship to a family member or a dependant where the circumstances of hardship satisfied the epithet ‘exceptional’ are plainly wrong and should not be followed.[25]
[25](2022) 400 ALR 578, 596 [77], 600 [92]–[93], 611 [148]–[151]; [2022] NSWCCA 75.
Bell CJ (with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed) analysed in detail the authorities which applied the exceptional circumstances test to s 16A(2)(p) of the Crimes Act.[26] He stated that this Court in Markovic ‘usefully explained’ the position at common law.[27] However, he determined that previous decisions were incorrectly premised on the understanding that s 16A(2)(p) did not intend to alter the common law position, for two reasons.[28] First, s 16A was introduced to implement a recommendation from the Australian Law Reform Commission;[29] what was to become s 16A(2)(p) was controversial because it did not contain a reference to exceptional hardship and therefore represented a departure from the common law.[30] Secondly, the explanatory memorandum to the amending legislation stated as follows with respect to s 16A(2):
The subsection in part gives statutory recognition to matters already taken into account by courts when sentencing … but it also highlights certain matters including … the probable effect of the sentence on the offender’s family or dependants. The matters to be taken into account are not set out in a hierarchy of importance or significance.[31]
[26]Totaan (2022) 400 ALR 578, 587–95 [40]–[71]; [2022] NSWCCA 75.
[27]Totaan (2022) 400 ALR 578, 598 [83]; [2022] NSWCCA 75.
[28]Totaan (2022) 400 ALR 578, 589 [48]–[49], 598–9 [84]–[85]; [2022] NSWCCA 75.
[29]Australian Law Reform Commission, Sentencing (Report No 44, 1988) 92 [172].
[30]Totaan (2022) 400 ALR 578, 589 [48]; [2022] NSWCCA 75.
[31]Explanatory Memorandum, Crimes Legislation Amendment Bill (No 2) 1989 (Cth) 7, quoted in Totaan (2022) 400 ALR 578, 589 [49]; [2022] NSWCCA 75.
Bell CJ found that there was no textual support for the requirement that exceptional circumstances be shown before hardship to family members or dependants may be taken into account, or given any specified weight, either in the language and structure of s 16A itself or in the Crimes Act more generally.[32] He concluded that the requirement for ‘exceptional circumstances’ or ‘exceptional hardship’ to be shown under s 16A(2)(p) imposed an unlegislated, judicially-created constraint on the sentencing discretion and should be removed.[33] Accordingly, hardship may be taken into account for the purposes of s 16A(2)(p) as part of the instinctive synthesis, even if the hardship may be no different to that which would normally be expected.[34]
[32]Totaan (2022) 400 ALR 578, 597 [78]; [2022] NSWCCA 75.
[33]Totaan (2022) 400 ALR 578, 600 [91]–[93]; [2022] NSWCCA 75.
[34]Totaan (2022) 400 ALR 578, 600 [92]; [2022] NSWCCA 75.
This Court is obliged to follow Totaan unless it is convinced that it is ‘plainly wrong’.[35]
[35]Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151–2 [135].
The question whether Totaan should be followed in Victoria was briefly considered by this Court in Mohamed v The Queen.[36] In that case, the applicant was sentenced separately for two terrorism offences and sought leave to appeal against the order for cumulation on the ground that it infringed the principle of totality. After the hearing of the application, and following the publication of Totaan, he sought leave to add a second ground of appeal which contended that the sentencing judge erred in sentencing him on the basis that family hardship could not be taken into account absent the demonstration of exceptional circumstances.
[36][2022] VSCA 136 (‘Mohamed’).
In Mohamed, both parties submitted that this Court should follow Totaan. The Court accepted that, in the light of Totaan, it should revisit the question of family hardship under the Crimes Act. However, it stated that Totaan did not require reconsideration of the correctness of the common law principles relating to family hardship as set out in Markovic. In relation to family hardship under the Crimes Act, the Court said the following:
[A]s correctly submitted by the Commonwealth Director, this Court’s consideration will be governed by the principle of uniform interpretation laid down by the High Court in Australian Securities Commission v Marlborough Gold Mines Ltd, as follows:
[U]niformity of decision in the interpretation of uniform national legislation … is a sufficiently important consideration to require that an intermediate appellate court … should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.
Significantly, the Commonwealth Director accepts that this Court should follow Totaan. Her submission is that:
[T]here is nothing in the interpretation of s 16A(2)(p) by the court in Totaan that would convince the Victorian Court of Appeal that the decision is ‘plainly wrong’. There is nothing in the text of s 16A(2)(p) that requires family hardship to be exceptional before being taken into account. As held in Totaan, s 16A(2)(p) should be applied according to its terms.
It follows, the Director concedes, that the sentencing judge was (unwittingly) in error in that he failed to take into account a relevant consideration, namely, the ‘hardship that the Applicant’s family would experience following [his] imprisonment’. The Director further accepts that, in resentencing, ‘some, albeit minimal weight’ should be given to the probable hardship his family will experience.
We are content to act on those concessions. As already indicated, we had separately concluded — for reasons of totality — that this appeal must succeed and that the applicant must be resentenced. Since on a resentencing the Court must take into account up to date information about the offender, we had invited the applicant to file such additional material as he wished to rely on, bearing on the question of family hardship.[37]
[37]Mohamed [2022] VSCA 136, [90]–[93].
The Court stated that family hardship was ‘an issue of minor significance’ in that case.[38] Nevertheless, in arriving at its resentencing decision, the Court took into account all the matters pleaded before the Court in relation to the implications for the applicant’s family of his incarceration.
[38]Mohamed [2022] VSCA 136, [94].
In the present case, the parties agreed that this Court should follow the approach adopted in Mohamed and treat Totaan as correctly setting out how sentencing courts should apply family hardship in the context of Commonwealth offences which are governed by s 16A(2)(p) of the Crimes Act. We are content to proceed on that basis.
As all of the offences in the present case are Commonwealth offences, there is no need for us to consider the common law position as set out in Markovic.
Factual basis for determination of appeal
For the purposes of the appeal, the appellant relied upon the evidence on the plea and three additional items of evidence.
The first item was an affidavit affirmed by the appellant on 25 July 2022. In that affidavit, he relevantly stated that: for about the first nine months since he was remanded in custody in January 2021, he did not have any contact with Michael; since October 2021, he has usually spoken to Michael by telephone twice every week; he has not received any personal visits from anyone since he has been in custody; and the 40 emergency management days that he was granted in 2021 due to COVID-19 lockdowns were cancelled upon the passage of certain legislation applicable to prisoners serving sentences for Commonwealth offences.
The second item comprised two certificates from Open Universities Australia showing that the appellant has been enrolled in courses of study in the 2021 and 2022 academic years and a printout of a tertiary preparations program from the University of Southern Queensland, in which he was enrolled.
The third item was a letter dated 4 July 2022 from Dorfen Health Services setting out the therapeutic counselling sessions the appellant has undertaken while in prison.
The appellant conceded that, as he has not adduced any new evidence in relation to the impact upon Michael of his incarceration, this Court cannot speculate that the impact is now more or less severe than it was at the time of the plea.
The appellant also conceded that, as he has not challenged any of the judge’s factual findings in relation to the nature and extent of the hardship that Michael will suffer as a result of his incarceration, he is bound by those findings.
Parties’ submissions
Section 281(1) of the Criminal Procedure Act 2009 (‘CPA’) provides that this Court must allow an appeal against sentence if the appellant satisfies the Court that, first, ‘there is an error in the sentence first imposed’ and, secondly, that ‘a different sentence should be imposed’. Section 281(2) provides that, if both requirements of s 281(1) are not satisfied, the Court must dismiss the appeal.
It was common ground before us that, in the light of Totaan, the first requirement of s 281(1) of the CPA was satisfied in the present case. That was because the judge disregarded family hardship as a sentencing consideration on the erroneous basis that it could only be taken into account if it was ‘exceptional’. Of course, the judge acted on the basis of the then prevailing interpretation of s 16A(2)(p) of the Crimes Act.
The appellant submitted that a different sentence should be imposed upon him because: the judge had found that Michael would suffer hardship; that hardship had to be taken into account under s 16A(2)(p) of the Crimes Act; and the weight to be given to that hardship by this Court upon resentence was sufficient to require a lesser sentence. In response to questions from the Bench, counsel for the appellant did not accept that, in the context of the serious offending in the present case, the sentence imposed by the judge was such that, when due weight is given to family hardship and all other applicable sentencing considerations, no different sentence should be imposed. Counsel submitted that the sentences imposed upon the appellant were stern and that the gravity of the offending had to be considered in the context of the other sentencing considerations upon which the appellant relied. They were said to include, in particular, the appellant’s pleas of guilty, delay, the absence of prior offending, the hardship upon him arising from his separation from Michael, Verdins principles 5 and 6 and the effects of the COVID-19 pandemic.
In its written case, the Crown conceded that both of the requirements of s 281(1) of the CPA are satisfied and therefore the Court should allow the appeal and resentence the appellant. The written case contended that, upon resentence, the weight to be given to Michael’s probable hardship should be minimal because, whilst the appellant was Michael’s primary caregiver and provided financial support to him, the following protective factors are available to him:
(a)he will not be left without close family support, as he will reside full-time with his mother and he has a loving extended family on both sides to help him adjust;
(b)there is no evidence that he will be required to change schools and therefore he will be able to maintain his friendship group;
(c)he will be able to have telephone and virtual visits with the appellant;
(d)there is no evidence such as psychological reports to suggest his emotional, educational and mental needs would suffer significantly; and
(e)there are no other extenuating factors, such as ill health, present.
In response to questions from the Bench, counsel for the Crown initially accepted the proposition that, in the context of the serious offending in the present case, the sentence imposed by the judge was such that, when due weight is given to family hardship and all other applicable sentencing considerations, no different sentence should be imposed. However, counsel then stated that she hesitated to advocate this course because the construction of s 16A(2)(p) of the Crimes Act adopted in Totaan is very recent and there has not been sufficient guidance at the intermediate appellate court level as to the weight to be given to family hardship. Counsel said that, in these circumstances, the Crown’s position remained as set out in its written case.
Decision
In our opinion, although there is an error in the sentence imposed by the judge due to the inadvertent misapplication of s 16A(2)(p) of the Crimes Act, the appeal should be dismissed because we are not satisfied that a different sentence should be imposed.
We have considered for ourselves the applicable sentencing considerations.
The offending the subject of charges 1 and 2 was very serious and the appellant’s moral culpability in relation to them was high. The offending was sophisticated, planned, extended over a period of many months, committed for financial gain and ceased only upon the arrest of the appellant and Olczyk. It involved detailed knowledge of the operation of dark net marketplaces, encrypted communications and Bitcoin for the purpose of undertaking clandestine criminality.
General deterrence and protection of the community are prominent sentencing considerations in drug cases of this type. Specific deterrence was also relevant here because the appellant had insufficient insight into the gravity of his offending, lacked true remorse and there was some risk of reoffending.
We accept that the appellant’s guilty pleas had significant utilitarian benefit and warranted sizeable moderation in sentence. Other important mitigating factors warranting considerable weight were the appellant’s reasonable prospects of rehabilitation, delay, Verdins principles 5 and 6 and the effects of the COVID‑19 pandemic upon the appellant. The hardship suffered by Michael as a result of the appellant’s incarceration and the hardship the appellant suffered as a result of being separated from Michael also warranted some weight in the exercise of the sentencing discretion. The absence of a prior criminal history and the support provided by the appellant’s family were also relevant to the exercise of that discretion.
In relation to how much weight should be given to the hardship suffered by Michael, we agree with the judge’s assessment that the evidence on the plea did not establish that Michael’s emotional, educational and mental needs would suffer significantly as a result of the appellant’s incarceration. In the absence of any new evidence regarding Michael’s present circumstances, it is not possible for us to depart from that assessment. On the basis of the judge’s factual findings and having regard to the five matters relied upon by the Crown in its submissions summarised at [84] above, we are of the view that the weight to be given to Michael’s hardship is, at best, very modest.
In addition to the above sentencing considerations, we have taken into account the maximum penalty for each offence[39] and the principle of totality as part of the intuitive synthesis. We have concluded that the total effective sentence should be at least 6 years and 5 months’ imprisonment and that the non‑parole period should be at least 3 years and 8 months. It follows that we do not accept the appellant’s submission — or the Crown’s concession — that a sentence that is less than the sentence imposed by the judge is warranted. A lesser sentence would not be of a severity appropriate in all the circumstances of this case.[40]
[39]See [63] above.
[40]See Crimes Act, s 16A(1).
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