Sergi v DPP (Cth)
[2015] VSCA 181
•21 July 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0112 | |
| ANTONIO SERGI | Appellant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) | First Respondent |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS (VICTORIA) | Second Respondent |
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JUDGES: | MAXWELL P, REDLICH and BEACH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 June 2015 | |
DATE OF JUDGMENT: | 21 July 2015 | |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 181 | |
JUDGMENT APPEALED FROM: | DPP v Sergi (Unreported, County Court of Victoria, Judge Montgomery, 13 May 2014) | |
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CRIMINAL LAW – Appeal – Sentence – Trafficking in a commercial quantity of a controlled drug contrary to s 302.2(1) of the Criminal Code (Cth) – Sentenced to 9 years' imprisonment with non-parole period of 7 years – Trafficking in a drug of dependence (large commercial quantity) contrary to s 71 of the Drugs Poisons and Controlled Substances Act 1981 (Vic) – Sentenced to 7 years' imprisonment with non-parole period of 5 years – State sentence ordered to commence 5 years after commencement of Commonwealth sentence – Total effective sentence of 12 years with appellant required to serve 10 years before being eligible for parole – Whether sentence manifestly excessive – Whether non-parole period of Commonwealth sentence manifestly excessive – Whether order for cumulation manifestly excessive – Delay – Delay during period where appellant changed plea to not guilty – Consequences of delay – State offence committed while on bail for Commonwealth offence – Totality – Sentence not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D D Gurvich | Emma Turnball Lawyers |
| For the First Respondent | Mr L K Crowley | Director of Public Prosecutions (Cth) |
| For the Second Respondent | Mr B F Kissane QC | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
BEACH JA:
On 29 April 2014, the appellant, who had previously pleaded guilty to one charge of trafficking a commercial quantity of a controlled drug (MDMA), contrary to s 302.2(1) of the Criminal Code Act 1995 (Cth), was arraigned and pleaded guilty to one charge of possessing a drug of dependence (MDMA) contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 and one charge of trafficking in a drug of dependence (MDMA) in a quantity not less than the large commercial quantity applicable to that drug, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981. In addition, the applicant consented to the uplifting of, and pleaded guilty to, two summary charges, namely possessing cartridge ammunition while not being the holder of a licence under the Firearms Act 1996 and driving a motor vehicle while his authorisation to do so was suspended.
Following a plea hearing in relation to all charges, the appellant was sentenced on 13 May 2014 as follows:
Commonwealth indictment
Count No
Count
Statutory Maximum
Sentence
Cumulation
1 Trafficking in a commercial quantity of a controlled drug (MDMA)
[Criminal Code 1995 (Cth) s 302.2(1)]Life imprisonment and/or 7500 penalty units 9 years’ imprisonment Commences 13 May 2014 Total effective sentence 9 years’ imprisonment Non-parole period 7 years
State indictment
Count No
Count
Statutory Maximum
Sentence
Cumulation
1 Possession of a drug of dependence (MDMA)
[Drugs Poisons and Controlled Substance Act 1981 s 73]5 years’ imprisonment and/or 400 penalty units 3 months’ imprisonment All state sentences to commence at the expiration of five years from the commencement of the Commonwealth sentence 2 Trafficking in a drug of dependence (large commercial quantity) (MDMA)
[Drugs Poisons and Controlled Substance Act 1981 s 71]Life imprisonment and/or 5000 penalty units 7 years’ imprisonment See Charge 1 above Uplifted summary offence Possess cartridge ammunition without licence/permit [Firearms Act 1996 s 124(1)] 40 penalty units $100 fine Uplifted summary offence Drive whilst authorisation suspended
[Road Safety Act 1986 s 30(1)]30 penalty units and/or 4 months’ imprisonment 1 month’s imprisonment See Charge 1 above Total effective sentence 7 years’ imprisonment Non-parole period 5 years
When sentencing for both State and Commonwealth offences, separate sentences must be imposed.[1] The judge imposed separate non-parole periods in respect of the Commonwealth and State offences, because s 19AJ of the Crimes Act 1914 (Cth) prevents a court from imposing a single non-parole period for both Commonwealth and State terms of imprisonment. The overall total effective sentence imposed on the appellant was thus 12 years’ imprisonment. Further, the non-parole periods ordered by the judge will result in the appellant being required to serve a total of at least 10 years before being eligible for parole.[2]
[1]Fasciale v The Queen (2010) 30 VR 643, 647 [27].
[2]The record of orders signed by the judge sets out the different sentences and non-parole periods ordered by the judge on each indictment. Additionally, the record contains the statement that ‘an overall total effective sentence imposed this day … is 12 years with a minimum of 10 years imprisonment’. This statement appears to have been made so as to put beyond doubt the effect of the two sentences imposed by the judge. No party suggested that, in making this statement, there was some contravention of s 19AJ of the Crimes Act 1914 (Cth). We agree.
On 5 November 2014, the appellant was given leave to appeal against his sentence on the following ground:
The non-parole period imposed on the Commonwealth sentence and the order for cumulation as between the Commonwealth and State sentence was manifestly excessive.
Particulars
a) The non-parole period imposed on the Commonwealth sentence was manifestly excessive taking into account the following matters:
· The non-parole period imposed on the Commonwealth sentence requires the applicant to serve 77.7% of the head sentence imposed on the Commonwealth charge;
· The appellant’s criminal history, at the time of the Commonwealth offence, was limited to one prior matter from 1995, which is of little relevance;
· The appellant pleaded guilty;
· Delay;
· The appellant had prospects for rehabilitation.
b) The order for cumulation, as between the Commonwealth and State sentence, was manifestly excessive having regard to the following:
· The particulars relied on above;
· The failure to give adequate weight to the principle of totality; and
· The total effective period the appellant is required to serve, before being eligible for parole, represents 83.3% of the total head sentence.
Circumstances of the offending
Commonwealth offences
Between 10 February 2008 and 14 June 2008, the appellant engaged in various acts of commercial drug trafficking in MDMA. At the relevant time, the prescribed commercial quantity for MDMA was 500 grams. During the relevant period, the appellant was criminally involved with a syndicate of persons engaged in commercial drug trafficking, including Pasquale Barbaro, Saverio Zirilli and Rob Karam. Throughout the period of his offending, the appellant’s trafficking activities involved:
(a) possession for the purpose of sale of MDMA in tablet and powder form;
(b) transportation of MDMA tablets for the purpose of sale by himself and others;
(c) preparation of MDMA powder residue with the intention of its sale by himself and others;
(d) selling MDMA in tablet and powder form; and
(e) receiving, possessing, secreting and delivering to drug suppliers, substantial sums of cash being the proceeds of the drug activities engaged in by himself and Karam.
On behalf of Karam, between 10 and 12 February 2008, the appellant personally took delivery of 80,000 MDMA tablets that were supplied by Barbaro. The appellant took possession of these tablets knowing that either he or Karam or others intended to on-sell them. A large number of these tablets were subsequently sold through the appellant selling a quantity in Melbourne, and other associates selling quantities in Melbourne, and also to a buyer in Western Australia.
The total quantity of MDMA trafficked by the appellant throughout the period of his offending was not able to be determined accurately. However, at the very least, the appellant received and possessed 129,000 MDMA tablets (the 80,000 tablets received on behalf of Karam, 9,000 re-pressed tablets manufactured from collected waste, and 40,000 tablets on the appellant’s own behalf on occasions between 9 May and 15 June 2008).
The tablet waste that was a source of re-pressed tablets amounted to several kilograms of broken tablets and powder. The total amount of pure MDMA trafficked by the appellant between 9 May and 15 June 2008 was estimated to be 4.2 kilograms (that is, more than eight times the prescribed commercial quantity, for this part of the period alone). In respect of this trafficking, the appellant was paid sums totalling at least $267,500. The appellant was arrested on 15 June 2008. On arrest, he was found to be in possession of:
(f) 88 tablets of MDMA;
(g) a notebook with various drug supply and debt calculations and records relating to customers and repayments;
(h) four mobile telephones; and
(i) more than $11,000 in cash.
The appellant was remanded in custody. He was later released on bail on 22 July 2008.
State offences
The State charges arose out of a police operation, carried out between December 2012 and June 2013, investigating the drug activities of QT and his associates. Investigations established that QT and others were involved in the manufacturing and trafficking of MDMA tablets. QT supplied tablets to the appellant to traffic to others. Between 24 May 2013 and 13 June 2013, the appellant trafficked MDMA in a quantity not less than the large commercial quantity (1 kilogram) applicable to that drug pursuant to the provisions of the Drugs, Poisons and Controlled Substances Act 1981.
This offence, as with the other State offences, was committed while the appellant was on bail in respect of the Commonwealth charge. As a result (and as conceded by the appellant) at least part of any sentence of imprisonment for the State offences had to be served cumulatively on a sentence of imprisonment for the Commonwealth offence.[3]
[3]See Sentencing Act 1991 ss 16(3C), 16(4) and 17(1). See further, R v O’Brien (1991) 57 A Crim R 80, 96; and Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Law Book Co, 3rd ed, 2014) [13.140]. See also, Carroll v The Queen [2011] VSCA 150, [48] (Maxwell P, with whom Buchanan JA agreed).
The summary offences were committed on 5 February 2013. The appellant was intercepted by police while driving. At the time, the appellant’s licence was suspended. Police searched the appellant and found cartridge ammunition for which the appellant had no authorisation under the Firearms Act 1996. Additionally, police found a bag containing .1 gram of powder. The powder contained MDMA.
The appellant’s background
At the time of sentencing, the appellant was 40 years of age. Up until the age of 21, the appellant was a young man with no prior convictions. In March 1995, the appellant was convicted of theft and obtaining property by deception.
There was then a period of no offending for a number of years until July 2008, when the appellant was convicted of trafficking MDMA, possessing cannabis and dealing with property suspected of being the proceeds of crime. The appellant was sentenced to 37 days’ imprisonment and a community based order for 12 months. In April 2009, the appellant was convicted of failing to comply with the community based order that had been imposed in July 2008. In December 2009, the appellant was convicted of possessing material for trafficking in a drug of dependence and possessing ammunition without a licence.
On the plea before the judge, the appellant’s counsel submitted that the appellant had ‘some prospects of rehabilitation’. The appellant had in the past demonstrated a capacity to obtain employment. It was submitted that, as a 40 year old, the appellant was still able to work and had the support of his family.
The judge’s reasons
In sentencing the appellant, the judge said that he could only look at the appellant’s prior criminal history by reference to what it was at the time each offence was committed, so that the criminal history in respect of the Commonwealth indictment was significantly more limited than with respect to the State indictment.
The judge analysed the appellant’s offending in some detail before concluding that, having considered all the available sentencing options, a custodial sentence was appropriate.
As to general deterrence, the judge said:
General deterrence, that is I have to impose a sentence that will deter others from committing this type of offending, is obviously a paramount sentence in consideration here. Trafficking, and the use of these drugs, is endemic in the community and if one reads the newspapers daily, it is quite obviously becoming a major health risk. You entered the commonwealth trafficking for profit and somehow became involved in the state matter through a debt you owed to … another drug trafficker.[4]
[4]DPP v Sergi (Unreported, County Court of Victoria, Judge Montgomery, 13 May 2014) (‘Reasons’) [19].
The judge expressed incredulity that the appellant engaged in the State offences while on bail for the Commonwealth charge. As to specific deterrence, the judge said:
Specific deterrence, that is I have to try and convince you not to re-offend, is clearly an important sentencing consideration here. As I have remarked twice already, your offending whilst on bail was incomprehensible and reprehensible.[5]
[5]Ibid [23].
Next, the judge dealt with the appellant’s pleas of guilty. There was no dispute that the appellant pleaded guilty to the State offences at the earliest opportunity. So far as the Commonwealth offence is concerned, the appellant originally pleaded guilty on 7 March 2011 at committal. However, in December 2011, the appellant changed his plea to not guilty. Subsequently, in December 2013, the appellant again changed his mind and pleaded guilty to the Commonwealth offence. In respect of the appellant’s pleas of guilty, the judge said:
Your pleas of guilty are an important sentencing consideration here. Apart from the hiccup, as mentioned, when you changed your plea in respect of the Commonwealth matters, your pleas were entered at the first reasonable opportunity. In respect of that charge, that is in respect of the Commonwealth charge, it is not uncommon when an accused is facing serious charges for whatever reason, to rethink what plea to enter.
However, given the circumstances of the change of plea, I do not consider it has diminished, to any significant degree, the effect of your plea of guilty. The pleas mean that the court and the community have been saved the expense of two lengthy drug trials and thus have a significant utilitarian benefit. They were also an acceptance of responsibility by you for your offending. The pleas of guilty have played a significant role in my decision not to totally cumulate as I am required to do under the relevant section of the State Sentencing Act.[6]
[6]Ibid [24]–[25].
As to the issue of delay in respect of the Commonwealth offence, the judge said:
In relation to the issue of delay, I refer to the comments of Her Honour King J in the case of Barbaro v Zirilli [2012] VSC 47 at [80] and I generally adopt Her Honour's comments insofar as they apply to the offences in this case. I agree with the conclusion she came to in Barbaro, that the delay there as here, although a relevant factor and mitigatory to some degree, is not of great significant in mitigation of the appropriate penalty.[7]
[7]Ibid [26].
As to cumulation and totality, the judge stated that s 16(3C) of the Sentencing Act 1991 applied — the appellant having committed the State offences while on bail for the Commonwealth offence. The judge then said:
In considering the issue of partial or total cumulation, as I am required to do so, the principles of totality and proportionality and your plea of guilty have convinced me to order partial cumulation. You are now aged 40. Even though I have ordered partial cumulation, the sentence I am about to impose is a substantial one. Your offending is serious, however those principles have convinced me not to make the sentence totally cumulative.[8]
[8]Ibid [27].
Finally, with respect to rehabilitation, the judge said:
As I remarked during the course of the plea, I find it almost impossible to come to any positive view about your rehabilitation. What state of mind you will be in at the end of your prison sentence would only be guess work on my part. I can only look at the fact of your reoffending whilst on bail, especially after being spoken to by police, as indicative of your general attitude to drug offending. Hopefully at the end of the custodial term you will be of an age when you decide that this type of behaviour is no longer productive.[9]
[9]Ibid [28].
The appellant’s submissions
The appellant relies upon five matters in support of his contention that the non-parole period imposed on the Commonwealth sentence and the order for cumulation between the Commonwealth sentence and the State sentence was manifestly excessive. First, complaint is made that the non-parole period imposed on the Commonwealth sentence was 77.7 per cent of the head sentence. Reliance is then placed upon the proposition that this Court has noted that in cases with a head sentence under 10 years, the ratio between the head sentence and the non-parole period is commonly between 60 and 75 per cent.[10] However, in Kumova v The Queen,[11] Redlich and Osborn JJA said with respect to non-parole periods:
Like the head sentence, determination of the non-parole period involves the application of well settled principles and practices to the circumstances of the case. All factors are taken into account, first in determining the head sentence and then in fixing the non-parole period. The factors may be differently weighted at each stage of the exercise because there are different purposes behind each function. In fixing the proportion of the head sentence to be given to the minimum sentence there are sentencing principles in operation which, together with the individual circumstances of the case will determine the proportion which the non-parole period must bear to the head sentence. First, like the head sentence, the non-parole period must also reflect the objective gravity of the offence so that the non-parole period should constitute the minimum period of imprisonment that justice requires the prisoner to serve. Secondly, punishment is mitigated in favour of the prisoner’s rehabilitation. The benefit of the minimum term is for the purpose of the offender’s rehabilitation. Thirdly, in fixing the minimum term, the interests of the community, which imprisonment is designed to serve, must be taken into account. Those principles which inform the question of the length of the minimum period have been identified by the High Court in Power v The Queen, Deakin v The Queen, and Bugmy v The Queen. Whilst different types of offending may raise different issues these underlying principles which are to be applied in every case in fixing non-parole periods, have resulted in a usual or common range of minimum sentences, expressed as a proportion of the head sentence. Whilst there is in law no correct ratio, in the majority of cases the proportion is between 60 per cent and 75 per cent, but both longer and shorter periods are found. For higher head sentences the ratio will often be higher for the reasons Redlich JA explained in Romero v R.[12]
[10]Solomano v The Queen [2013] VSCA 320, [17].
[11][2012] VSCA 212 (‘Kumova’).
[12]Ibid [27] (citations omitted).
Secondly, so far as the non-parole period imposed on the Commonwealth sentence is concerned, the appellant notes that when the Commonwealth offence was committed, he was 34 years of age and had one prior court appearance from 1995, relating to a charge of theft and a charge of obtaining property by deception. The appellant submits that this court appearance was of little (if any) relevance to the matters before the sentencing judge. Additionally, the appellant submits that the court appearances in 2008 and 2009, while being prior matters for the State offences, could only be taken into account for the Commonwealth offence in assessing the appellant’s remorse and prospects for rehabilitation.
Thirdly, the appellant relied upon his pleas of guilty — submitting that despite subsequently changing his plea for a period of time in relation to the Commonwealth offence, there was no contested committal or trial in relation to that matter (or indeed the State offences as well). The appellant, it was submitted, was entitled to receive a ‘real discount for pleading guilty’.
Fourthly, the appellant relied upon the delay between his arrest in relation to the Commonwealth charge in June 2008 and the ultimate listing of his trial in April 2014. The Commonwealth matter was, it was submitted, hanging over the appellant’s head for several years.
Fifthly, the appellant relied upon the fact that he had (and has) prospects for rehabilitation, which prospects were demonstrated by the appellant’s pleas of guilty; his age; and his demonstrated ability to remain trouble-free for prolonged periods.
No issue is taken by the appellant with the sentence imposed on the State offences, namely a head sentence of seven years with a non-parole period of five years. Further, it was conceded during the plea that part of the State sentences had to be served cumulatively on the Commonwealth sentence. Additionally, in his written case, the appellant accepted that the result of these concessions is that, even if the appeal is successful, there would still only be a two year differential between the overall head sentence and the non-parole period. Although, in argument, counsel for the appellant submitted that if error was shown in respect of the non-parole period for the Commonwealth offence then the sentencing discretion would be re-opened in respect of, amongst other things, the State non-parole period.
In his written case, and in oral submissions, the appellant made complaint that the total effective sentence of 12 years with a non-parole period of 10 years is manifestly excessive ‘taking into account the principle of totality’. The sentence will require the appellant to serve 83.33 per cent of the head sentence before being eligible for parole. The appellant submitted that ‘standing back and looking at the overall situation … required the imposition of a lesser head sentence and non-parole period’.
The appellant conceded that, the State offences having been committed when he was on bail for the Commonwealth offence, there was a presumption of cumulation unless the Court otherwise directed.[13] He submitted, however, that the period of cumulation should have been moderated further by the judge to adequately reflect the principle of totality.
[13]Sentencing Act 1991 s 16(3C).
In oral argument, counsel for the appellant submitted that the judge made a specific error when dealing with the issue of delay. It was submitted that the judge’s reliance upon the observations of King J in DPP (Cth) vBarbaro[14] disclosed specific error. In Barbaro, King J said:
There has been a delay in these matters being finalised. It is not a matter of real relevance as to the cause of the delay but I will note that offences of this type, with this level of international money laundering and organised crime, are difficult to detect and even more difficult to prosecute due to the volume of evidence that is collected. It must be sorted and determined as to what charges arise from the morass of material collected. Despite that, the court must still take into account that it has been some time since you were arrested, being August of 2008, and accordingly acknowledge that this offence has been hanging over your head for some considerable period of time. Whilst it is a relevant factor, and it mitigates to a degree I do not consider it to be of great significance in mitigation of the appropriate penalty.[15]
[14]DPP (Cth) v Barbaro [2012] VSC 47 (‘Barbaro’) [80].
[15]Ibid.
It was submitted by the appellant that just because a crime might be difficult to detect or difficult to prosecute does not mean that, in a case where there is delay, an accused is not entitled to the full mitigatory benefit of such delay.
The respondents’ submissions
Both the Commonwealth Director of Public Prosecutions and the Victorian Director of Public Prosecutions made submissions in response to the appellant’s submissions. First, it was submitted that there was no ‘assumed starting point ratio or proportion between the non-parole period and a head sentence’ for the appellant’s offending. All relevant circumstances must be taken into account when setting both the head sentence and the minimum term. The non-parole period is the minimum period of imprisonment deemed by a sentencing judge to be appropriate to be served by an offender having regard to all the circumstances of the particular case. Reference was made by the Commonwealth Director to the High Court’s decisions in Power v The Queen,[16] Deakin v The Queen,[17] Bugmy v The Queen,[18] and Hili v The Queen.[19]
[16](1974) 131 CLR 623.
[17](1984) 11 A Crim R 88.
[18](1990) 169 CLR 525.
[19](2010) 242 CLR 520.
Secondly, it was submitted that the appellant must satisfy this Court that the minimum term of seven years was erroneous as falling wholly outside the range of sentences that could legitimately have been imposed. It was submitted that no such error has been established by the appellant.
Thirdly, it was noted that the State offences were committed when the appellant was on bail for the Commonwealth offence, and that by reason of ss 16(1A)(e) and 16(3C) of the Sentencing Act 1991, such sentences must be served cumulatively unless the Court otherwise orders.
Fourthly, it was contended that each of the matters relied upon by the appellant were appropriately considered by the judge in the sentences that he imposed.
Fifthly, it was submitted that in the context of two serious offences (charge 1 on the Commonwealth indictment and charge 2 on the State indictment), and the attitude of the appellant to drug offending, a cumulation of three years was ‘clearly just and appropriate’.[20]
[20]Second respondent’s response to appellant’s written case [4.11].
In response to the appellant’s submission that there was specific error in the judge’s treatment of the issue of delay, counsel for the Commonwealth Director referred this Court to its decision in Zhou v The Queen.[21] In Zhou, the Court said:
At one level it might be contended (as it was by the applicant) that a delay of four to five years should ordinarily be characterised as ‘extraordinary and inordinate’. In any event, in this case, the applicant contends that, in failing to find that the overall period of delay found by the judge was extraordinary and inordinate, the judge erred. If this had been a straightforward case not involving the mass of documentation and complexity to which we have referred, then it might well be thought that a delay of four to five years, which was not attributable to the applicant, should be regarded as extraordinary and inordinate. However, that is not this case.[22]
[21][2014] VSCA 123 (‘Zhou’) (Nettle and Beach JJA and Almond AJA).
[22]Ibid [16].
Counsel submitted that there was no error in a judge considering the issue of delay by reference to the complexity of the case, at least during periods when an accused was pleading not guilty.
Analysis
In our view, this appeal should be dismissed. There is no substance in the appellant’s complaint of specific error, nor can it be said that the sentence imposed was manifestly excessive.
We will deal first with the appellant’s submission of specific error in the judge’s treatment of the issue of delay It is trite to say that whether there is delay, and what the consequences of any such delay might be, is a matter that needs to be analysed and considered within the setting that the justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness.
First, as to rehabilitation, if the offender can establish there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continuation of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Here, however, such mitigatory effect as the lapse of time between 2008 and 2014 might have produced was, to a very significant extent, diminished, if not extinguished, by the appellant’s further offending while on bail for the Commonwealth offence. This was not a case where the appellant could combine a period of delay with evidence of rehabilitation to justify any substantial mitigation in sentence. The appellant in his supplementary submission conceded that this was so.
Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.
The appellant contends that the significance of delay lies in its effects rather than its causes. We reject that contention. The appellant relies upon Merrett,[23] — where the accused exercised his right to contest the charges. As explained in Arthars,[24] however, Merrett is not authority for so broad a proposition.[25] The reasons for the delay and, in particular, the degree to which the accused had control over the length of that delay will determine the extent to which fairness to the offender may mitigate the sentence. Contrary to the appellant’s submission, Nettle JA in Day v The Queen[26] expressed a similar view, citing the observations of Chernov JA in R vCockerell,[27] to which Maxwell P referred with express approval in Merrett,[28] and each of R v Miceli,[29] R v Todd,[30] R v Schwabegger,[31] R v MHW[32] and Blanco v The Queen,[33] to which Chernov JA referred with express approval in Cockerell. All of these cases were concerned with delay which it was said could not be attributed to the offender. As Nettle JA observed in Day:
As a matter of principle ..., given that one of the significant informing considerations in allowing a discount for delay is that the offender has had the prospect of punishment hanging over his head for an inordinate period, and has to that extent already been punished, it would be both illogical and contrary to ordinary notions of justice and fairness if a sentencing judge were precluded from taking into account the extent to which the offender has stood by declining to do whatever he or she could do to bring the matter to fruition.[34]
[23](2007) 14 VR 392.
[24](2013) 39 VR 613.
[25]Cf Barbaro [2012] VSC 47, [80] (King J).
[26][2011] VSCA 243 (‘Day’).
[27]R v Cockerell (2001) 126 A Crim R 444 (‘Cockerell’).
[28](2007) 14 VR 392.
[29][1998] 4 VR 588.
[30][1982] 2 NSWLR 517.
[31][1998] 4 VR 649.
[32][2001] VSCA 196.
[33](1999) 106 A Crim R 303.
[34][2011] VSCA 243, [18].
In Arthars the Court observed:
In Merrett, the delay in question was caused in part by an inexplicable tardiness on the part of Victoria Police in bringing charges, combined with the applicants’ decision to contest those charges. There was no last-minute decision to plead guilty in the face of a very strong prosecution case, as there was here. Maxwell P’s remarks occurred in the context of discussion as to whether the fact that the prosecution delay was unexplained was of relevance when assessing the degree to which it ought to be taken into account for sentencing purposes. In such a context, it is the effect of any delay on the accused which ought to be considered, rather than whether the delay is explicable. Any delay caused merely by the exercise of the right to contest criminal charges and have the matter proceed to trial will never be regarded as the ‘fault’ of the accused for these purposes.
When considering whether a delay requires the element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay. The observation in Merrett is not to be understood as suggesting otherwise. Delay which is caused by prosecutorial process or the administration of the courts will carry more weight as a mitigating factor than any delay which is attributable to the actions of the offender. In Cockerell, Chernov JA (Winneke P and Buchanan JA agreeing) noted that delay which ‘cannot be attributed to the offender’ will constitute a powerful mitigating factor in sentencing; in R v Tiburcy, Maxwell P (Warren CJ and Buchanan JA concurring) referred to delay which was not ‘solely or even partly the fault of the accused’; and in R v Whyte, Winneke P (Bongiorno and O’Bryan AJJA agreeing) refused to disturb the finding of the judge below that delay, where ‘self-inflicted’ by the applicant, will carry little weight as a mitigating factor.
Every case is different and the factors seen properly to affect the exercise of the sentencing discretion will vary according to circumstance. As Ormiston JA remarked in Nikodjevic: ‘one should therefore be cautious about asserting that there is a right to some automatic discount in every case of asserted delay’. As such, an accused who pleads guilty, co-operates fully with prosecutorial authorities, and is still subject to an inordinate delay between the laying of charges and sentence for reasons beyond their control, will be entitled to have that delay taken into account as a ‘powerful mitigating factor to be given due recognition in the sentencing disposition’. Where an accused absconds from bail or otherwise avoids being brought to justice, or causes delay by refusing to provide any assistance to prosecutorial authorities, the significance of delay as a mitigating factor will be significantly reduced, despite having entered a plea of guilty, even to the point of giving less credit for rehabilitation established during that period.
The conduct of the applicant falls into the latter category. The anxiety and stress brought about entirely by the applicant’s own refusal to co-operate with the prosecution until he reached the very door of the court and pleaded guilty need not be taken into account in sentencing. It was accepted at the hearing that the applicant had made no attempt to have his trial listed in Melbourne so as to avoid the long delay that would eventuate if it was to be heard in Ballarat.
…
Any consideration of the anxiety caused to an accused in such circumstances would ordinarily be minimal. In Jackson v The Queen, decided with reference to Merrett, this Court refused to find that the judge below had erred in failing to give significant consideration to delay as a mitigating factor, where that delay was caused by the accused only entering a plea on the first day of the trial. In R v Mouhamed, Hayne JA (Phillips CJ and Southwell AJA agreeing) refused to take into account delay for the purposes of mitigation where the applicant’s decision to withdraw his plea of guilty, and then reassert it, led to a nine-month delay.
We reject the submission that the judge below failed to adequately consider the unfairness arising from delay as a mitigating factor in formulating the sentence. Her Honour, as we have said, gave proper consideration to the delay to the extent that it bore upon rehabilitation. Her Honour correctly placed no weight on the delay, inasmuch as it was caused by the applicant’s own intransigence. This court should not encourage a state of affairs in which a defendant delays sentence by asserting an intention to stand trial in the face of an overwhelming prosecution case, and then at the door of the court pleads guilty and relies upon considerations of unfairness arising from the delay as relevant to mitigation of their sentence.[35]
[35]Ibid [27]-[32] (citations omitted).
The appellant claimed in his supplementary submission that fairness warranted a significant discount in the sentence as the delay was not attributable to him. We do not agree. The sentencing judge was entitled to have regard to the fact that the appellant was part of a large and sophisticated criminal syndicate that required the allocation of large investigative resources over a protracted period. It would inevitably take time to collect all of the evidence in relation to such a criminal enterprise and the judge was entitled to take into account that the appellant did little to assist the investigators.
The appellant was charged with the Commonwealth offences in 2008 and was granted bail. He did not offer a plea of guilty until his committal in 2011. Later in the same year, he changed his plea to not guilty. In 2013, some two years later, he changed his plea to guilty. Shortly thereafter he was charged with the State offences, which he had committed while on bail. Thus for the majority of the period between the laying of the charges and his sentence, the appellant had either provided no indication of his willingness to accept the charges or had pleaded not guilty, thus requiring the continued investigation of complex matters and the compilation of voluminous evidence. Accordingly, such delay as could not be attributed to the appellant afforded little basis for mitigation on the ground of fairness. Delay was not a circumstance that called for a lesser sentence than that imposed.[36]
[36]See Merrett (2007) 14 VR 392, 400 [35]–[36] (Maxwell P, with whom Chernov JA and Habersberger AJA agreed); Arthars (2013) 39 VR 613, 620–622 [25]–[29] (Redlich and Coghlan JJA and T Forrest AJA). See also Mill v The Queen (1988) 166 CLR 59; R v Miceli [1998] 4 VR 588, 591 (Tadgell JA, with whom Winneke P and Charles JA agreed).
We turn now to the issue of manifest excess.
The objective seriousness of the offending that constituted the Commonwealth charge well justified the head sentence of nine years imposed by the judge. This is so notwithstanding the various mitigatory factors to which the appellant can point, and to which the judge had regard. Indeed, a higher head sentence than nine years would also have been in range in the present case.[37]
[37]See, eg, the sentences imposed in Trandy v The Queen [2009] VSCA 321.
While the non-parole period in respect of the Commonwealth offence as a proportion of the head sentence is high (particularly having regard to the appellant’s limited criminal history prior to 2008), we cannot say it is wholly outside the range of sentencing options that were open to the judge. The task of an appellate court in a case such as this was described by Lowe and Gavan Duffy JJ in R v Taylor:[38]
It will not proceed by considering at once what the individual members of the bench consider an appropriate punishment. On the contrary it 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, or unless the sentence is obviously — not merely arguably — too severe or too lenient, it will not interfere.[39]
[38][1958] VR 285.
[39]Ibid 289.
It is true that there was delay in this case between 2008 and 2014 in relation to the Commonwealth offence. However, as we have said, some of that delay related to the appellant changing his plea. When one looks at the objective seriousness of the appellant’s offending in relation to the Commonwealth offence, it cannot be said that requiring him to serve a minimum of seven years in prison is wholly outside the range of sentencing options that were open to the judge.[40]
[40]See, eg, the sentences imposed in Trandy v The Queen [2009] VSCA 321.
The appellant does not contest the appropriateness of the head sentence and non-parole period fixed in respect of the State offences. Having regard to the objective seriousness of that offending, and the fact that that offending occurred while the appellant was on bail for the Commonwealth offence, that concession was, in our view, correctly made.[41] The appellant’s complaint concerns the lack of concurrency ordered between the State sentence and the Commonwealth sentence. It was submitted by the appellant that proportionality and totality mandated a greater period of concurrency between the two sentences. We disagree.
[41]See, eg, the sentence imposed in Ibrahim v The Queen [2013] VSCA 227 (8 years’ imprisonment on a charge of trafficking a large commercial quantity of methylamphetamine (1.3241 kg, of low purity), committed while the appellant was on bail, resulting in a total effective sentence of 11 years’ imprisonment with a non-parole period of 8 years.
Again, while it might have been open to the sentencing judge to impose greater concurrency between the Commonwealth and State sentences, when one examines all of the offending and the entirety of the appellant’s circumstances, it cannot be said that the sentences and orders were not open to the sentencing judge. In our view, the judge has moderated the sentence he imposed by reference to totality as he said he did in his reasons for sentence.[42] We can see no error in the judge requiring the appellant to serve an additional three years in respect of the State offences.
[42]Reasons [27].
The fact that the sentences imposed have produced a total non-parole period that is, as a proportion of the total effective sentence, somewhat higher than one usually sees is not a basis for concluding that error has been established. While we might have imposed sentences that would have resulted in a total non-parole period that was, as a proportion of the total effective sentence, lower than that imposed by the judge, that is (as we have already said) not the test. Further, for the sake of completeness, we should say that such sentence as we might have imposed may have dealt with the issue of the proportion between the non-parole period and the head sentence in a way that was not to the appellant’s advantage.
Conclusion
The appeal must be dismissed.
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