Saab v The Queen
[2012] VSCA 165
•16 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0250
| DAVID SAAB | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN, WEINBERG and MANDIE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 19 July 2012 |
| DATE OF JUDGMENT | 16 August 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 165 |
| JUDGMENT APPEALED FROM | DPP v Hughes & Ors (Unreported, County Court of Victoria, Judge Gaynor, 13 September 2011) |
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CRIMINAL LAW — Appeal against sentence — Plea of guilty to one charge of importing a commercial quantity of a border controlled drug — 14.6 kilograms of cocaine imported — Sentence of 14 years’ imprisonment with a non-parole period of 10 years — Sentencing judge stated pursuant to s 6AAA of the Sentencing Act 1991 that but for the appellant’s plea of guilty a sentence of 15 years’ imprisonment with a non-parole period of 11 years would have been imposed — Whether sufficient discount given for plea of guilty coupled with remorse — Whether s 6AAA statement capable of revealing specific error — Whether different sentence should be imposed — Scerri v The Queen (2010) 206 A Crim R 1, Rizzo v The Queen [2011] VSCA 146 and Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82 considered.
CRIMINAL LAW — Appeal against sentence — Parity with sentences imposed on two co-offenders each of eight years with a non-parole period of five years — Co-offenders received discounts of approximately 12 per cent off notional head sentences stated pursuant to s 6AAA — No justifiable sense of grievance — Sentencing judge entitled to find that appellant played far more significant role than co-offenders — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr M J Croucher SC with Mr S Norton | Robert Stary Lawyers, Footscray |
| For the Crown | Mr D D Gurvich | Solicitor for the Director of Public Prosecutions (Cth) |
THE COURT:
The appellant, David Saab, pleaded guilty to one charge of importing a commercial quantity of a border controlled drug (cocaine), contrary to s 307.1(1) of the Commonwealth Criminal Code 1995 (Cth) (‘Criminal Code’). His two co-offenders, Darren Hughes and Robert Remeeus, each pleaded guilty to one charge of attempting to possess a commercial quantity of that drug, contrary to ss 307.5(1) and 11.1 of the Criminal Code. Each offence carries a maximum penalty of life imprisonment.
On 13 September 2011, the appellant was sentenced to a term of 14 years’ imprisonment with a non-parole period of ten years. His co-offenders were each sentenced to be imprisoned for eight years with a non-parole period of five years. The sentencing judge stated pursuant to s 6AAA of the Sentencing Act 1991 that but for the plea of guilty the appellant would have been sentenced to 15 years’ imprisonment with a non-parole period of 11 years. She stated, in relation to the co-offenders, that had they not pleaded guilty they would each have been sentenced to nine years’ imprisonment with a non-parole period of six years.
Harper JA granted the appellant leave to appeal against sentence on two grounds:
1.That the sentencing judge erred in failing to give a sufficient discount for the appellant’s plea of guilty; and
2.That the sentencing judge erred in imposing a sentence which infringes the principles of parity for co-offenders when regard is had to the sentences imposed upon the applicant’s co-offenders.
Background facts
This appeal arises out of the importation of 14.6 kilograms of cocaine by the three co-offenders. The drugs were mixed with white powder. The entire mixture weighed 21.075 kilograms. The drugs were contained in plastic-wrapped blocks which were hidden in the legs of a lifting device known as a ‘Beam Four Point Spreader’ (‘the spreader’). The spreader was sent by air from Canada and landed at Sydney Airport on 15 January 2011. The consignee was named as Robert Remeeus at an address in Highbury Road, Vermont South.
Australian Customs examined and x-rayed the spreader. Anomalies were detected and a quantity of white powder was located concealed within it. Presumptive testing indicated the presence of cocaine. The Australian Federal Police (‘AFP’) were then brought in and took possession of the spreader. The drugs within were removed and replaced with an inert substance. This was done to facilitate what is generally described as a ‘controlled delivery’.
In the course of their investigation, the AFP intercepted a number of telephone conversations and SMS messages passing between the appellant and his co-offenders. These intercepted conversations related, inter alia, to arrangements that were being made for a logistics company to have the spreader cleared through customs.
On 21 January 2011, one of the co-offenders, Hughes, hired a van to collect the spreader from the transport company which by then had conveyed it from Sydney to Melbourne. Further conversations were recorded, a number of which were in code. However, it was plainly open to infer that they concerned the retrieval of the drugs from the spreader.
On 24 January 2011, Hughes collected the spreader. He loaded it into a van which he then drove to his premises in Kew, after first travelling to Vermont South to speak with Remeeus. Remeeus then travelled separately to the Kew premises where he and Hughes dismantled the spreader whilst it was still located within the van. Hughes carried the substituted blocks into his home, where they were photographed. All this took place under police surveillance.
Later that day, the three co-offenders were arrested. The appellant was taken into custody at the Crown Metropol Hotel where, during a search of his room, AFP members seized some $9,900USD and $3,150AUD in cash. The appellant declined to comment when questioned in a formal record of interview.
The judge’s sentencing remarks
The case against the appellant was essentially that he was the Australian link to various persons overseas who had arranged for the cocaine to be imported into Australia. He had kept those persons informed throughout as to the movements of the spreader. He had also received instructions from them as to how precisely the device was to be dismantled so that the drugs could be removed.
The appellant had, throughout, supervised both Hughes and Remeeus in arranging for the collection of the spreader and the retrieval of the drugs. The plan was to supply the cocaine to various buyers, in either Sydney or Melbourne, to whom the drug had already been assigned by the Canadian supplier. On any view, the appellant was a major figure in a large scale and highly organised drug importation.
The sentencing judge referred to the fact that the appellant had entered a plea of guilty at his committal mention on 19 May 2011, and accepted that the plea had been entered at the earliest practicable opportunity. She noted that Hughes and Remeeus had both entered pleas of guilty at their committal mention, a week after the appellant had done so.
In dealing with the appellant’s personal circumstances, her Honour observed that he had been born in South Korea in February 1973. He was therefore aged 37 at the time he committed this offence. He had no prior convictions.
The appellant’s parents had separated when he was very young. Their relationship had been acrimonious. Accordingly, his childhood had been somewhat unsettled. So much so that at one stage, his father had kidnapped him before returning him to his mother’s care.
In 1977, when the appellant was aged about four, his mother emigrated to this country as a ‘mail-order bride’. He was left behind in South Korea in the care of his grandmother. He found himself being shunted around various members of his extended family.
Eventually, in about 1979 or 1980, the appellant joined his mother and her husband in Western Australia. However, that second marriage did not last. In 1982, she became involved with another man. That relationship also failed.
The sentencing judge found that the appellant had had a dysfunctional childhood, largely because his mother had lived a nomadic existence throughout that entire period. She accepted that he had been physically abused by his mother, and by her various partners. She noted that the appellant had been subjected to racial vilification on a number of occasions because they were the only Asians in the various small towns in which they resided.
The appellant left home and moved to Perth when he was aged 15. He completed the final years of his schooling in Perth, achieving the equivalent of VCE. He then began studying commerce at the University of Western Australia, but dropped out after a year. He next went to Port Hedland where he worked for about a year, then returned to Perth and enrolled at Curtin University. Unfortunately, he once again failed to complete his degree, on this occasion because he became heavily involved in playing backgammon semi-professionally.
In 1993, the appellant moved to Sydney. He commenced study at Sydney University. He did not complete that degree, and returned to Perth in 1995. In 1997, he developed an internet service company which traded successfully. In about 2000, his interest in that company was bought out. However, he became embroiled in contractual and employment related disputes with his former fellow directors. This resulted in litigation which ultimately left him bankrupt. For about two years thereafter he was unemployed.
The appellant then began to compete successfully in professional poker tournaments. In 2008, his winnings exceeded $550,000, most of which came from just two tournaments. Between 2005 and 2008, poker was his sole source of income.
The sentencing judge found that the appellant had suffered significant emotional disturbance over many years. In the early 1990s, he became so depressed that he seriously contemplated suicide. In the years after 2000, he again experienced significant depression. Mr Patrick Newton, a clinical psychologist, provided a report in which he concluded that, as a result of the appellant’s troubled early history, he suffered from a ‘pervasive personality dysfunction’. According to Mr Newton, this led to a lack of self esteem, and a need to present himself in a grandiose manner. The appellant’s own counsel referred to him on the plea as a ‘fantasist’, and equated him, in some respects, with being a ‘Walter Mitty’ character.
The sentencing judge accepted that the bulk of the imported cocaine had already been designated to particular purchasers. It followed that it was not available to be sold by the appellant to anyone else. Her Honour also accepted that the appellant’s motivation, in playing the role that he did in this importation, was to sell only one or two kilograms of the cocaine. Despite the enormous value of the consignment as a whole, the appellant personally stood to make only about $110,000.
A significant body of character evidence was led on the plea. That evidence suggested that the appellant had acquired, albeit belatedly, some degree of self-awareness. It also suggested that he was deeply ashamed of what he had done. Her Honour accepted that he was genuinely remorseful. She found that he had good prospects of rehabilitation. She was satisfied that he intended to use his time in prison productively, and that he hoped to complete the tertiary education that had so far eluded him.
The sentencing judge accepted that the appellant had a number of health issues. He suffered from gout. He also had a history of kidney stones. Some years earlier, his arm had been broken in several places and this continued to cause him pain. On occasion, when his brother came to visit him in prison, the appellant had been confined to a wheelchair.
The sentencing judge recognised that she had to balance these mitigating factors against the gravity of the offending. She said:
In sentencing you, I take into account your very plea of guilty, your lack of prior convictions and I accept you are remorseful for your actions. … I am satisfied that you do have good prospects of rehabilitation.
Against this however is the seriousness of your offending. The amount of cocaine sought to be imported is many times the commercial quantity. The seriousness of such offending and the factor to be taken into account was succinctly outlined by the Court of Appeal in the case of Nguyen [2011] VSCA 32 at paragraph 32 where propositions set out by the New South Wales Court of Appeal and the decision of Nguyen and Pham [2010] New South Wales Court of Criminal Appeal 238, were cited with approval by His Honour Maxwell P. In short compass, His Honour outlined 13 propositions relating to sentencing those who import drugs. At point 7, 8, 9, and 10, His Honour stated:
“The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case. The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment. Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served. The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence.”
Other propositions were that the size of an importation is a relevant factor and has increased significance when an offender is aware of the amount of drugs imported which it must be clearly said was so in your case. Most importantly the criminality of an offender must be assessed in relation to the role they have played to effect, the importation. His Honour stated:
“The [role] played by the offender is of great importance in assessing the objective criminality of the offence.”
It is clear that you were the principal organiser in Australia of this importation and were to derive the most benefit from it. Further, I am satisfied that you recruited your co-accused Mr Remeeus and Mr Hughes in this enterprise.
Having regard to the factors in Nguyen, your role in the offending, the amount of the drug involved together with other mitigatory factors I have outlined with reference to a number of other cases referred to me by both defence and prosecution, it is my view that the appropriate sentence is as follows … [1]
[1]Sentencing Remarks [21] – [26] (emphasis added).
Her Honour’s description of the appellant as the ‘principal organiser in Australia of this importation’ was plainly warranted. At the same time, however, it is necessary to bear in mind that he may not have been at the very apex of the organisation. His role was that of a major player, but perhaps one or two rungs below the actual architect of the scheme.
The sentencing judge next went on to discuss the involvement of the two co-offenders. In relation to their role in the offence, she said:
Both of you come from good backgrounds, have no prior convictions and ordinarily present a[s] dedicated and hard working young men, you Mr Remeeus in your capacity as a disability worker and you Mr Hughes as a conscientious and kindly man with a strong sense of responsibility who has always been employed. You both come from good supportive respectable families and I have little doubt that the tragic involvement by each of you in this importation represent[s] the only occasion upon which either of you will appear before a court. You each had personal problems rendering you vulnerable to activities in this regard and I regard each of your roles as very much subordinate to that of Mr Saab. Each of you pleaded guilty at an early stage and I am satisfied that each of you are truly remorseful for your offending. Each of you in my view have excellent prospects of rehabilitation.[2]
…
Nevertheless it is clear you must each serve a sentence of imprisonment, the principles of general deterrence and just punishment being of particular importance in sentencing for an offence of this kind. What you were both involved in was extraordinarily serious, you have both been the recipients of a tragic lesson in life if I can put it that way. You are young men who otherwise should never have been before this court as attested to by the universal amazement demonstrated in the raft of references I received in relation to each of you from persons who have known you and your families well together with your unblemished histories. I am satisfied the need for specific deterrence in the case of each of you is slight. [3]
[2]Ibid [65] (emphasis added).
[3]Ibid [69].
Clearly, her Honour was entitled to conclude that the appellant stood to gain a significantly greater benefit from the importation than either Hughes or Remeeus. She was also entitled to sentence the appellant on the basis that he had recruited them to this enterprise.
Ground 1: the discount for the plea of guilty
We turn then to consider ground 1. As previously indicated, this ground
contends that the sentencing judge failed to give a sufficient discount for the appellant’s early plea of guilty.
The sentencing judge considered that the appellant’s plea warranted a discount of one year on a notional head sentence of 15 years, and also one year on a notional non-parole period of 11 years. The discount from 15 to 14 years amounts to approximately 6.7 per cent. Counsel for the appellant pointed out that the plea of guilty had been entered at the earliest practicable opportunity and avoided the need for what would have been a lengthy and complex trial, at great cost to the community. The sentencing judge found that the plea was accompanied by genuine remorse. Counsel for the appellant referred to what Nettle JA said in R v Howard:[4]
In light of section 6AAA of the Sentencing Act and the social utility of encouraging offenders to enter an early plea of guilty, the discount allowed for an early and unconditional plea of guilty should ordinarily be substantial.[5]
Nettle JA also said:
For a judge to give too much or too little weight to a sentencing consideration is not necessarily sentencing error but where it is manifest, as it is here, that a sentencing judge has grossly undervalued the importance of the discount for pleading guilty, it may be viewed as sentencing error and the sentencing discretion re-opened.[6]
[4][2009] VSCA 281 (‘Howard’).
[5]Ibid [16].
[6]Ibid [15].
Counsel for the appellant submitted that the sentencing judge had grossly undervalued the plea. That was said to be obvious by reference to her Honour’s s 6AAA statement.
He further submitted that the weight given to the plea of guilty by the appellant could be seen to be plainly inadequate when one had regard to the discount, in percentage terms, that her Honour accorded to the pleas offered by the co-offenders. Hughes and Remeeus were each given a discount of one year off their notional head sentences of nine years, and also one year off their notional non-parole periods of six years. The actual length of the discount in each case, one year, was the same as that accorded to the appellant. In percentage terms, however, the discount was worth approximately 12 per cent so far as they were concerned, almost twice the value of the discount given to the appellant. The disparity was all the more obvious when one had regard to the fact that the appellant had pleaded guilty a week earlier than his co-offenders.
The respondent challenged the appellant’s submissions in support of ground 1 in two ways. First, it was said that the ground was incompetent because there was clear authority, in this Court, that the difference between the notional sentence and the actual sentence was not examinable for specific error. Secondly, it was said that even if that were not the case, there was nothing at all wrong with the head sentence or non-parole period, and the appeal should therefore be dismissed.
In R v Burke,[7] no attack had been mounted upon the length of the actual sentence imposed, but rather upon the notional sentence stated pursuant to that section which was said to be manifestly excessive. Not surprisingly, the Court observed:
The submission is misconceived. The ‘notional’ sentence announced in accordance with s 6AAA is not part of the sentence imposed. No appeal lies in respect of the notional sentence. As s 567(d) of the Crimes Act 1958 (Vic) makes perfectly clear, the appeal court hears an appeal against ‘the sentence passed’. Accordingly, the contention in Ground 2 – that the ‘notional sentence’ would have been manifestly excessive – is unintelligible in this sphere of discourse. It cannot constitute a ground for appeal.
The ground of manifest excess falls to be considered in relation to – and only to – the sentence actually imposed. A complaint about the sentence discount or the notional sentence identified in the s 6AAA statement is a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.[8]
[7][2009] VSCA 60 (‘Burke’).
[8]Ibid [30]–[31] (Maxwell ACJ, Redlich JA and Vickery AJA).
Scerri v The Queen,[9] like the present case, involved a complaint on behalf of an offender that he had been given an insufficient discount for a plea of guilty. In support of that submission, reliance was placed upon the s 6AAA notional sentence. The discount said to be inadequate in that case was 20 per cent.
[9](2010) 206 A Crim R 1 (‘Scerri’).
In Scerri, the Court said:
What matters for present purposes is that the ‘discount’ —that is, the difference between the notional sentence and the actual sentence — is not examinable for specific error.
[the Court then cited a portion of the passage from Burke set out above and continued]
…
In other words, a complaint about the discount for the plea of guilty can only ever be a particular of a ground contending that the sentence was manifestly excessive, that is, outside the range reasonably open to a sentencing judge in the circumstances of the case. What Buchanan JA said in R v Howard should not be taken to have suggested otherwise.[10]
[10]Ibid 6 (Maxwell P and Buchanan JA) (citations omitted).
The respondent submitted that Scerri makes it clear that a ground that complains of insufficient weight being given to a sentencing factor cannot be treated as a form of specific error, and is therefore incompetent. Such a complaint, so it was said, could only ever be a particular of manifest excess.
In Ciantar v The Queen,[11] Scerri was treated as having determined that a ground that complains of insufficient weight having been given to a plea of guilty, having regard to the s 6AAA statement, could not give rise to a finding of specific error. It was submitted that, in that regard, Scerri was at odds with this Court’s earlier decision in Howard, and that Scerri should not be followed. In a joint judgment, Nettle and Bongiorno JJA expressly left that question open.
[11][2010] VSCA 313.
In Rizzo v The Queen,[12] Neave JA said:
In my opinion, the Court should eschew reliance on mathematical comparisons between the percentage discounts given in different cases in order to determine whether there has been a sufficient discount for pleading guilty.
[her Honour then referred to Scerri and continued]
…
Such comparisons conflict with the instinctive synthesis approach to sentencing.
They are also contrary to the spirit (if not the letter) of decisions of this Court holding that, where it is alleged that insufficient weight was given to a guilty plea, the relevant question is ‘not so much whether the declared s 6AAA discount was adequate, as whether the sentence and non-parole period which were imposed were excessive’.[13]
[12][2011] VSCA 146 (‘Rizzo’).
[13]Ibid [33]-[34] (citations omitted).
In Orbit Drilling Pty Ltd v The Queen, both Burke and Scerri were approved. In a joint judgment (Maxwell P, Bongiorno JA and Kyrou AJA) it was said:
The submission regarding the s 6AAA discount may be disposed of shortly. Just as the stated discount for a plea of guilty is not examinable for specific error, so the attempt to rely on comparisons with discounts declared in other cases must necessarily fail – and for the same reason. As this Court has said on several occasions, an appeal court does not – cannot – assess the guilty plea discount in isolation. On the contrary, the task for the Court is to determine whether the sentence imposed was within the range reasonably open, appropriate weight having been given to all relevant sentencing considerations including the plea of guilty. Plainly enough, the view which another judge took, in other circumstances, about the significance of a particular plea of guilty cannot assist with that task.[14]
[14]Orbit Drilling Pty Ltd v The Queen [2012] VSCA 82, [67].
In Luntv The Queen,[15] Nettle JA, in apparent reliance upon Scerri, rejected a submission that a s 6AAA statement could be used to ground a finding of specific error. Nonetheless, it might be thought that his Honour qualified that rejection somewhat in the following passage:
In my view [that submission] … faces the difficulty, considered by Maxwell P and Buchanan JA in R v Scerri, that the discount allowed on a plea of guilty is not as such examinable for specific error. As their Honours held, although a declaration of discount may be indicative of underlying error, the right of appeal is a right of appeal against sentence. A s 6AAA declaration is not part of a sentence. It is a declaration dehors the sentence of another sentence which might have been imposed in the absence of a plea of guilty.[16]
[15][2011] VSCA 56 (‘Lunt’).
[16]Ibid [15] (citations omitted) (emphasis added).
Nettle JA’s reference to Scerri as allowing for a ‘declaration of discount’ to be ‘indicative of underlying error’ does not precisely reflect the language used in Scerri. What the Court in Scerri in fact said was that the s 6AAA figure could ‘only ever be’ used as a particular of manifest excess,[17] and not as the basis for any finding of specific error. Nettle JA’s summary of what Scerri had determined, as expressed in Lunt, seems to us to represent something of a modification of the approach taken in the earlier case.
[17](2010) 206 A Crim R 1, 6 (Maxwell P and Buchanan JA).
For completeness, it should be noted that in Cedicv The Queen,[18] Tate JA (with whom Buchanan and Ashley JJA agreed), when dealing with a ground contending that a s 6AAA statement amounting to a 16.7 per cent discount evidenced a failure to give sufficient weight to a guilty plea, said:
In an appropriate case, a discount for a plea of guilty may be so unreasonable that it itself constitutes specific error. However, in this case, the discount is not, on its face, erroneous.[19]
[18][2011] VSCA 258.
[19]Ibid [40].
In certain circumstances reduction of the weight given to a plea of guilty may betoken specific error. An example is Phillips v The Queen.[20] In that case the appellant had been sentenced, on a count of murder, to 23 years’ imprisonment with a non-parole period of 19 years. The sentencing judge stated, pursuant to s 6AAA, that but for the plea of guilty, the sentence would have been one of 26 years with a non-parole period of 23 years. The issue before the Court was whether the sentencing judge had committed a sentencing error when reducing the discount for the appellant’s plea of guilty because of the strength of the Crown case.
[20][2012] VSCA 140 (‘Phillips’). This was a decision of a five member bench of this Court.
In their joint judgment, Redlich JA and Curtain AJA (with whom Maxwell P agreed) said:
Accepting the finding by his Honour that the appellant’s conviction was inevitable, his Honour was not in our opinion entitled to reduce the discount to be allowed for the plea of guilty because of the strength of the Crown case. His Honour did not seek to draw any distinction between the objective and subjective criteria and it is therefore not possible to say whether his Honour regarded the strength of the Crown case as relevant to the objective or subjective criteria. His Honour was not, with respect, entitled to reduce the discount on either basis. The discount for the utilitarian benefit of the plea was not to be reduced and no contextual basis existed which could support a conclusion that the subjective criteria were present to only a limited degree. A finding that there was only limited remorse could not be supported on the evidence. In our view specific error has been established.[21]
[21]Ibid [87] (emphasis added).
In Phillips, the finding that specific error had been established was not, of course, based on the s 6AAA statement, but rather on the judge’s having determined that the weight to be accorded to the plea of guilty should be reduced because of the strength of the Crown case. That was clear from his Honour’s sentencing remarks where he said:
You have pleaded guilty, but the significance of that circumstance must be tempered by the fact that once mental impairment was excluded the case against you was overwhelming. I will nevertheless discount your sentence and the non-parole period.[22]
[22]Ibid [15].
In other words, Phillips determined that the judge’s decision to reduce the discount for the guilty plea in light of the overwhelming Crown case gave rise to specific error.[23]
[23]Ibid [87].
That is in contrast to the appellant’s contention in the present case where, as in Scerri and in Rizzo, the claim that the sentencing judge failed to give a sufficient discount for the plea of guilty is based solely upon the sentencing judge’s s 6AAA statement. In that sense, Phillips is not directly in conflict with either Scerri or Rizzo.
It appears that both Scerri and Rizzo approached the question whether a s 6AAA statement could be used to demonstrate specific error in the light of a broader principle that emerges from other decisions of this Court to the effect that a complaint about the weight given to a particular sentencing consideration could not constitute a ‘specific sentencing error’, but could only constitute a particular of manifest excess.
That broader principle, which originally found expression in DPP (Vic) v Terrick,[24] was recently reaffirmed by this Court in Gorladenchearau v The Queen.[25] Maxwell P, with whom Ashley JA and Ross AJA agreed, said:
Axiomatically, a complaint about the weight given to a particular sentencing consideration is not a ground of appeal. As this Court has explained in Director of Public Prosecutions (Vic) v Terrick and again in Scerriv The Queen, the bringing together of relevant considerations in a sentencing decision does not involve – could not involve – the attribution of quantitative significance to individual qualitative factors. The only way in which this Court can evaluate a complaint about the weight given to a particular consideration is as a particular of the manifest excess ground. Under that ground, the Court will examine the sentence actually imposed, and ask whether it was reasonably open to the judge to impose that sentence if appropriate weight were given to all relevant factors.[26]
[24](2009) 24 VR 457, 459-60 (Maxwell P, Redlich JA and Robson AJA) (‘Terrick’).
[25][2011] VSCA 432 (‘Gorladenchearau’).
[26]Ibid [34] (citations omitted).
That principle was again restated in Pesa v The Queen.[27] In that case, Maxwell ACJ and Hansen JA stated that there existed a substantial body of authority to support the approach taken in Terrick. Their Honours said:
[I]n the absence of [specific] error, it is simply not possible to say of a particular sentencing factor that the judge attributed too much or too little weight to it. The only question which the appeal court can address in these circumstances is whether the sentence has been shown to be outside the range reasonably open to the judge, taking into account all the relevant sentencing factors. That has long been the view of this Court.[28]
[27][2012] VSCA 109 (‘Pesa’).
[28]Ibid [11] (citations omitted).
The Court also said:
The position is, of course, different where complaint is made that the judge overlooked a relevant consideration or made a specific error in describing the facts or evaluating their significance.
We do not take that statement to endorse the view that ascribing too great or too little weight to a sentencing factor constitutes specific error. We assume that the error contemplated by the Court in ‘evaluating [the] significance’ of facts was an error of the type identified in Phillips or a decision not to accord any weight to a relevant factor.
In support of the proposition that ascribing too little or too great weight to a sentencing factor is not specific error, their Honours cited R v Giles.[29] In that case, Batt JA (with whom Phillips CJ and Chernov JA agreed), said that:
Grounds going only to the weight given to factors or sentencing purposes are difficult indeed to make out having regard to the discretionary character of a sentence, and ordinarily will fall to be treated as particulars of an allegation of manifest excessiveness…[30]
[29][1999] VSCA 208 (‘Giles’).
[30]Ibid [13] (emphasis added).
Giles does not appear to support the full breadth of the approach taken in Terrick and Gorladenchearau. Batt JA’s view that grounds alleging that insufficient weight has been given to a sentencing factor will ‘ordinarily’ constitute particulars of manifest excess cannot be equated with statements that such grounds can ‘only’[31] or ‘only ever be’[32] particulars of manifest excess.
[31]Gorladenchearau [2011] VSCA 432 [34].
[32]Scerri (2010) 206 A Crim R 1, 6 (Maxwell P and Buchanan JA).
In some earlier decisions of the Full Court and this Court, the view has been expressed that giving excessive weight or failing to give due weight to a sentencing factor may constitute appealable error. In R v Taylor, a case decided in 1957, the Full Court held that:
[The appellate court] will look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account… it will not interfere.[33]
[33][1958] VR 285, 289 (Lowe and Gavan Duffy JJ) (emphasis added).
Again, in R v Bernath, a 1997 decision of this Court, Callaway JA (with whom Winneke P and Brooking JA agreed), appeared to acknowledge the validity of standalone grounds which assert that an error had been made in assessing the weight to be given to an individual sentencing factor. His Honour said:
A ground of appeal may complain that a sentencing judge failed to give due weight or, alternatively, gave excessive weight to a relevant factor … Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error.[34]
[34][1997] 1 VR 271, 277 (emphasis added) (‘Bernath’).
In R v Feretzanis,[35] this Court considered a submission that insufficient weight had been given to the appellant’s undertaking to give evidence. Callaway JA accepted that submission[36] and stated:
Often a complaint about weight, as opposed to a complaint that a factor was not taken into account at all, is no more than a particular of manifest excess and cannot be upheld without also finding that the sentence was outside the range, but I do not think that this was such a case… It was sufficient that one could discern from the sentencing remarks … that his Honour’s attention had been deflected from the critical importance of the applicant’s undertaking and that one could see how that came about.[37]
[35][2003] VSCA 8.
[36]Ormiston JA also accepted that submission and observed that ‘the real question is whether the judge gave proper weight to the offer in all the circumstances of the case’: at [34].
[37]Ibid [45].
We think that the line of authority holding that a s 6AAA statement is generally not to be taken to exhibit error should be followed.
The principal obstacle to a determination that the notional sentence stated pursuant to s 6AAA can reveal specific error lies in the fact that sentences are the product of a process of instinctive synthesis. Judges do not fix sentences by adding to and subtracting from a starting point periods of time they attribute to particular sentencing factors.[38] In order to comply with s 6AAA, a sentencing judge is required to guess the part played by one of a number of conflicting and contradictory elements in a synthesis of all the elements and ascribe a number to that element. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
[38]See Wong v The Queen (2001) 207 CLR 584; Markarian v The Queen (2005) 228 CLR 357; Hili v The Queen (2010) 242 CLR 520.
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to
some features, distorts the already difficult balancing exercise which the judge must perform.[39]
It may be thought that there is more chance of an error in this artificial, contrived exercise than in the original synthesis.
[39](2001) 207 CLR 584, 612.
The notion that error may lie in placing too great or too little weight on a particular sentencing factor invites an analysis which we consider is irrelevant. A particular sentencing judge may have given what another judge may think is too little weight to a plea of guilty but perhaps may have given too much weight to a different mitigating factor. We think it profitless to criticise a sentencing judge’s guess as to the precise part played by one element if the result of the synthesis is a sentence which is within a range of appropriate sentences.
That is not to say that a s 6AAA statement can never reveal error. In a particular case, where an offender’s conduct in pleading guilty, the contrition the plea exhibits, and the utilitarian value of the plea all call for a substantial discount, the s 6AAA statement may reveal that the plea was effectively ignored, so that it may be concluded that the sentencing judge failed to have any regard to a relevant factor in exercising his discretion. The statement may amount to an expression in numerical terms of a view that, if put into words, would betoken specific error. Such a case will be rare.
Although it is arguable that the s 6AAA statement in this case was so extreme as to demonstrate error (although the error may lie in the s 6AAA statement rather than the sentence), we do not need to resolve the question for we think no different sentence should be passed. This was very serious offending involving, as it did, the importation of a very large quantity of cocaine. It merited severe punishment. The maximum penalty for this offence was life imprisonment. There is nothing at all untoward about a sentence of 14 years’ imprisonment for offending of this nature while taking into account the appellant’s personal circumstances, including the plea of guilty. The non-parole period, too, is appropriate.
Accordingly, ground 1 fails.
Ground 2: undue disparity
There is an obvious difference between the Crown’s position, on the plea, as regards the respective roles played by the appellant and his co-offenders, and the sentencing judge’s ultimate conclusion regarding that matter.
In the course of the plea, the Crown submitted, in effect, that there was little to choose between the appellant and the co-offenders, with the appellant obviously more culpable, but only marginally so. The sentencing judge, on the other hand, rejected that view. She considered the appellant to be far more culpable than either of the co-offenders. That is why they both received non-parole periods of only 50 per cent of that fixed for the appellant.
In our view, the sentencing judge was entitled to find that the appellant played a far more significant role in this enterprise than the co-offenders, and that his moral culpability was correspondingly far greater. In truth, the appellant instigated their involvement. He recruited them to the task. They acted, throughout, under his supervision and control.
In addition, the appellant was considerably older than either of the co-offenders. Plainly, they deferred to him. Her Honour characterised their role as ‘very much subordinate’ to his, and that seems a perfectly apt description. It must also be remembered that the appellant stood to gain more than $100,000 from his criminality, whereas the co-offenders stood to gain only a small fraction of that amount.
We are wholly unpersuaded that the disparity between the sentence imposed upon the appellant, and the sentences imposed upon his co-offenders, was manifestly excessive. If the appellant has a sense of grievance regarding that
disparity, it is not, in our view, one that is ‘justifiable’.[40] We do not think that the submission regarding undue disparity gains any greater credence merely because the percentage discount given for the plea of guilty in the appellant’s case is less than that afforded to the co-offenders. Accordingly, we would reject ground 2.
[40]Lowe v The Queen (1984) 154 CLR 606, 610 (Gibbs CJ); Postiglione v The Queen (1997) 189 CLR 295.
For these reasons, we would dismiss this appeal.
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