Sharbell v The Queen
[2018] VSCA 324
•6 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0267
| EDMOND SHARBELL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 November 2018 |
| DATE OF JUDGMENT: | 6 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 324 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1918 (Judge Dyer) |
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CRIMINAL LAW – Appeal – Sentence – Attempt – Impossibility – Attempt to traffick commercial quantity of 1,4-butanediol – Firearms offences – Driving whilst disqualified, dealing with property suspected of being proceeds of crime – Sentence of 5 years and 3 months’ imprisonment – Whether culpability reduced because product unsaleable – Whether judge took into account plea of guilty – Whether judge took into account likely effect of incarceration on applicant’s psychological state – Whether sentence manifestly excessive – Changed sentencing practice for trafficking commercial quantity – Gregory (a pseudonym) v The Queen [2017] VSCA 151 applied – Application refused.
NATURAL JUSTICE – Procedural fairness – Defence counsel submitted non-custodial penalty appropriate – Judge imposed custodial penalty – Whether judge obliged to warn of risk of custodial penalty – No denial of procedural fairness.
EVIDENCE – Expert evidence – Evidence of mental functioning – Report from forensic psychologist – Late filing of report – Plea submissions focused on physical injuries – No development of Verdins submission – No sentencing error – Importance of compliance with Practice Note – Practice Note No 1 of 2017, Sentencing Hearings: Expert Reports on Mental Functioning of Offender.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Anthony Isaacs |
| For the Respondent | Mr J Lewis | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
NIALL JA:
Summary
The applicant pleaded guilty to the attempted trafficking of three times the commercial quantity of a drug of dependence. He was sentenced to four years’ imprisonment on that charge. He was also sentenced for firearms offences and for dealing with property suspected of being the proceeds of crime.
The applicant now seeks leave to appeal against sentence on two principal grounds. The first is that the judge failed to take into account the likely effect of incarceration on his psychological state. The second is that the sentence on the trafficking charge was manifestly excessive.
For reasons which follow, we would refuse leave to appeal. As will appear, the principal health issue relied on by defence counsel on the plea concerned the applicant’s ongoing pain resulting from injuries sustained in an accident, and the associated need for physiotherapy. At the last minute, a report from a forensic psychologist was relied on, but defence counsel made only the barest of references to it in his submissions.
As this Court has emphasised, where expert evidence is to be relied on in support of a submission that one or more of the sentencing principles identified in Verdins[1] is engaged, it is the responsibility of defence counsel on the plea to be specific about the evidence relied on and to identify the way(s) in which it is said to make those sentencing principles relevant. This Court will not entertain on appeal arguments which could have been, but were not, put on the plea.
[1]Verdins v The Queen (2007) 16 VR 269 (‘Verdins’).
As to manifest excess, such a submission is even more difficult than usual in this case because of this Court’s 2017 decision in Gregory (a pseudonym) v The Queen[2] in relation to sentences for trafficking in a commercial quantity of a drug (‘CQ trafficking’). The Court there concluded that current sentencing for CQ trafficking was inadequate, with sentences for offending across the full range of seriousness compressed under ten years’ imprisonment, notwithstanding the maximum penalty of 25 years’ imprisonment. The Court called for an increase in sentences for the upper category of offences of CQ trafficking, with consequential change in other categories.[3] Anyone who pleads guilty to CQ trafficking following Gregory should be aware that past sentences for the offence will provide little guidance as to the future.
[2]Gregory (a pseudonym) v The Queen [2017] VSCA 151 (‘Gregory’).
[3]Ibid [96]–[103].
Background circumstances
On 9 June 2017, the applicant pleaded guilty in the County Court to one charge of attempting to traffick in a commercial quantity of a drug of dependence; two charges of non-prohibited person possessing a handgun without a licence; one charge of driving whilst disqualified; and one charge of dealing with property suspected of being proceeds of crime. Following plea hearings on 9 June, 7 July,
23 October and 24 November 2017, the applicant was sentenced on 1 December 2017 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation
1 Attempt to traffick in a drug of dependence (1,4-butanediol) in a quantity of not less than the commercial quantity[4] 25 years’ imprisonment 4 years Base 2 Non-prohibited person possess a handgun without a licence[5] 4 years’ imprisonment or 240 penalty units 12 months 6 months 3 Non-prohibited person possess a handgun without a licence[6] 4 years’ imprisonment or 240 penalty units 12 months 6 months Related Summary Charges 12
Drive whilst disqualified[7] 2 years’ imprisonment or 240 penalty units 1 month Nil 15
Deal with property suspected of being the proceeds of crime[8] 2 years’ imprisonment 6 months 3 months Total Effective Sentence: 5 years and 3 months’ imprisonment Non-Parole Period: 3 years and 9 months’ imprisonment Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 13 days 6AAA Statement: But for the plea of guilty, a total effective sentence of 7 years and 3 months’ imprisonment with a non-parole period of 5 years would have been imposed. Other relevant orders:
· All licences cancelled and disqualified from any such licence or permit for 12 months from 1 December 2017
· Forfeiture order
· Disposal order
[4]Drugs, Poisons and Controlled Substances Act 1981 s 71AA.
[5]Firearms Act 1996 s 7(1).
[6]Ibid.
[7]Road Safety Act 1986 s 30(1).
[8]Crimes Act 1958 s 195.
The circumstances of the offending were as follows. Pasquale Audino was the owner of a house at 19 Debanne Court, Narre Warren. He had been living with a ‘boarder’ who caused him a deal of trouble. Eventually the boarder moved out.
In the months leading up to 25 June 2014, Mr Audino moved out of the house. He asked the applicant to look after the house, and to fix it up and clean it in order that the house could be sold. The applicant put a lock on the front door.
At approximately 1:30pm on 25 June 2014, police attended at the house.
Mr Audino had given the police permission to enter. When they arrived, there was no one home. They conducted a preliminary search, which led to the Clandestine Laboratory Squad being contacted.
While the police were at the house, the applicant arrived, driving a car. His licence was suspended at the time (related summary charge 12 — drive while disqualified).
The police carried out a search of the house and located the following items:
·a metal kettle containing liquid weighing 7.9 grams, which contained 1,4-butanediol;
·a metal dish containing liquid weighing 1.2 grams, which contained 1,4-butanediol;
·a drinking glass containing 17.2 grams of liquid, which contained 1,4-butanediol;
·
a wok containing 1.8 grams of liquid, which contained
1,4-butanediol;
·
a glass containing 9.2 grams of liquid, which contained
1,4-butanediol;
·
a five-litre plastic container inside the fridge with just over
3.8 kilograms of liquid in it, which contained 1,4-butanediol; and
·
a metal container on top of a heating element. The container had 2.22 kilograms of liquid inside of it, which included
1,4-butanediol.
Over two kilograms of liquid containing the drug were found inside the fridge, and over two kilograms of liquid containing the drug were found in a container set atop a heater.
The applicant participated in a record of interview with police, during which he said that:
·he was looking after the house;
·he had gained access to the house about a month before;
·as far as he knew, only he and Mr Audino had keys to the house;
·he had found a white barrel with a red lid on it behind the shed; and
·the barrel contained liquid, which he estimated would be about 20 litres.
When asked by the police what he had done with that liquid, the applicant said that at first he did nothing. Then someone told him that they could ‘clean it’. He said that he believed the liquid was ‘juice’ and that he was aware the liquid was ‘similar’ to the drug known as GHB.
He said to the police, ‘I took it out of the barrel and into the kitchen. I tried to clean it but it’s not working’. When asked where in the kitchen it was, he said, ‘It’s in the fridge … and on the top bench of the kitchen.’
When asked how many litres were in the container in the fridge, the applicant said ‘I’ve got no idea … three, four’. When asked why there was liquid in the pot in the kitchen, the applicant said he was heating it up to ‘clean’ it. When asked why he wanted to clean it, the applicant said, ‘Just curiosity, like, you know, to see if it’s — if it was gunna work or if it’s not gunna.’
The police said, ‘So you … tried to clean it to sell it’ and the applicant replied, ‘No, I’m just trying to clean it … I’m just curious to see what’s … it like to be clean.’ The police asked the applicant who had told him about ‘cleaning’ the liquid. The applicant said, ‘Some guy. I think is called Afghan’. He went on to say that he showed the barrel of ‘juice’ to Afghan.
The applicant stated that he had ‘tried’ juice in the past and it made him feel drowsy. He had seen small bottles of it which cost about $40. When asked again why he ‘cleaned’ the liquid, the applicant said, ‘Not to sell. I just first … want to clean it and … decide to sell it or not sell it because I have never sold any drugs in my life’.
Police later returned to the topic of why he ‘cleaned’ the liquid, and asked the applicant what he intended to do with GHB if he was able to clean it. The applicant replied, ‘Then I gunna give it to him and he can maybe sell it.’ When asked who he was going to give it to, the applicant said, ‘To that Afghan guy’. The applicant went on to say that he did not have a phone contact for the Afghan, and had no idea where he ‘hung out’.
The applicant was charged with trafficking a commercial quantity of a drug of dependence called 1,4-butanediol. On 25 June 2014, the applicant had in his possession 6.1 kilograms of a substance containing 1,4-butanediol. That was more than three times the quantity specified as a commercial quantity of the drug (when part of a mixture).[9]
[9]Drugs, Poisons and Controlled Substances Act 1981 s 70, sch 11 pt 3.
The charge was put on the basis that the applicant attempted to traffick in a commercial quantity of 1,4-butanediol, in that he prepared 6.1 kilograms of
1,4-butanediol for sale. It was accepted, however, that his method of preparation could not have achieved his intended purpose, in that it would not have resulted in a saleable product.
When the police searched the house, they also located a .22 rifle and a single-barrelled shotgun in the oven of the kitchen. The .22 found in the oven was the barrel of the firearm, not fitted to the stock. The barrel of the firearm had been shortened to such an extent that it met the definition of a handgun. (Charge 2).
The single-barrelled shotgun in the oven had been shortened. Both the barrel and the stock had been cut back so that it fell within the definition of a ‘handgun’. (Charge 3). The applicant was not licensed to possess either firearm.
When the police interviewed the applicant, they asked him what would be inside the house. He said that there would be two shotguns inside. The applicant said that one firearm would be a 12-gauge. When asked where those firearms would be located, he said, ‘They were in the oven’. When asked who put them in the oven, the applicant said, ‘I did’.
Three stolen motorcycles and numerous stolen bank and identification cards were also located at the property. The first motorcycle was a Suzuki motorbike, stolen from a communal garage area at Glen Waverley on 4 November 2013. The second motorcycle was a red Triumph motorbike, stolen from the Melbourne CBD on 5 May 2014. The third was a Suzuki GSXR750 motorbike, stolen from the Melbourne CBD on 5 May 2014.
During his record of interview, the applicant told the police that the motorcycles had been dropped to the house by his friend ‘Stan’ for the applicant to mind for a few days. The applicant said that he had asked Stan if the motorcycles were stolen, and that Stan had replied, ‘They haven’t been reported stolen yet’.
When police initially apprehended the applicant driving towards the scene in his car, they conducted a search of his car and located an assortment of stolen bank and identity cards. When interviewed by the police, the applicant said that he had found the cards inside the house and that he was going to hand them over to the police or burn them.
Ground 1: the pleas of guilty
The first ground of appeal contends that the judge failed to take into account the applicant’s pleas of guilty. On the plea, the prosecutor informed the judge that there had been a lengthy delay in resolving a legal dispute between the parties about the principal charge. According to counsel for the applicant (who did not appear on the plea), the dispute related to the question whether, on a charge of commercial quantity trafficking, it was necessary for the prosecution to prove intention with respect to the quantity. That point having been long since settled, it is difficult to understand why this should have delayed proceedings.[10]
[10]See R v Nguyen; Re DPP Reference (No 1 of 2004) (2005) 12 VR 299.
Relevantly for present purposes, the judge said that the circumstances called for a ‘broad brush approach’ to the sentencing discount for pleading guilty. Counsel for the applicant submitted that, despite the delay in resolution, the plea of guilty was ‘still a significant matter’. The plea was
indicative of acceptance of responsibility for the offending and in terms of some remorse, is perhaps indicative of that also.
The complaint which underpins this ground is that his Honour made no reference in his reasons to the pleas of guilty as bearing relevantly on the sentencing discretion. Counsel for the applicant accepted, however, that in view of the debate on the plea, it could not seriously be contended that his Honour had failed to take the pleas into account in sentencing. So much was apparent from his Honour’s declaration under s 6AAA of the Sentencing Act 1991. Counsel accepted that the real issue was that raised by the manifest excess ground (ground 3 — below), namely, whether it was reasonably open to the judge to impose the sentence which he did if proper weight had been given to the pleas of guilty.
Before leaving this ground, we wish to emphasise the importance of there being a clear reference in sentencing reasons to the fact of a plea of guilty and to its significance in the particular exercise of the sentencing discretion. A plea of guilty is always a significant sentencing consideration but, as discussed by this Court in Phillips v The Queen,[11] the weight to be attached to it will vary according to whether — in addition to its utilitarian value — the sentencing court accepts that the plea is indicative of remorse.[12] That submission having been made in this case, the applicant was entitled to know whether it had been accepted.
[11](2012) 37 VR 594.
[12]Ibid 606–7 [43]–[45], 614 [68]–[69].
Ground 2: impairment of mental functioning
Under this ground, the applicant contends that the judge failed to take into account that
the mental state of the applicant was likely to deteriorate in custody, in that he is likely to be a suicide risk for the entirety of his time in custody, thus engaging limb 6 of the principles stated in R v Verdins.[13]
[13]Verdins (2007) 16 VR 269, 276 [32].
This ground relies on an opinion expressed by Ms Pamela Matthews, a forensic psychologist, whose report was tendered on the plea. As will appear, however, the engagement of Ms Matthews, and the defence reliance on her report, appear to have been something of an afterthought. The real focus of the defence submissions, throughout the successive plea hearings, was on the applicant’s leg and back pain (attributable to serious injuries sustained in a motor vehicle collision in March 2017) and his ongoing need for physiotherapy as a result.
When the matter came on for hearing before the sentencing judge on 7 July 2017, defence counsel foreshadowed an application for adjournment. This was said to be necessary because of three separate medical reports relied on to verify
Mr Sharbell’s pain symptoms and the associated need for physiotherapy during any period of incarceration. The defence had also requested, but had not received, documents from Justice Health. Defence counsel accepted that the prosecution would need time to consider the medical material. By consent, the plea hearing was adjourned to 23 October 2017. There was no indication from defence counsel, however, that expert evidence was to be obtained with respect to the applicant’s mental functioning.
On the adjourned date, defence counsel referred the judge to the various medical reports, and to the response from Justice Health in relation to the availability of physiotherapy in custody. Part of that response stated:
Physiotherapy is part of the primary health care services provided in Victorian prisons. However, the frequency (hours provided) of such services varies from prison to prison.
In response to a question from the judge, defence counsel confirmed that he was here relying on a non-psychiatric condition. His contention was that the applicant had physical problems, as a result of which a custodial sentence was ‘going to be more difficult for him … than an able-bodied person’.
The report of the psychologist
Counsel then tendered the report of Ms Matthews, which expressed the following opinions:
Mr Sharbell suffers from Post-Traumatic Stress Disorder associated with his capture, and torture by Hezbollah in his youth. He reports these symptoms had settled during his time in Australia but he has experienced an unabated flare up of symptoms since his incarceration on remand.
Mr Sharbell meets the DSM-5 diagnostic criterion for Post-Traumatic Stress Disorder in that he has directly experienced capture and torture; he suffers recurrent distressing dreams of this experience, disconnection from his surroundings and intense physical and psychological distress in response to these intrusive dreams. He attempts to avoid thoughts and feelings associated with the experience and found it difficult to talk of his experience. He reports some memory loss of aspects of his experience, and that he is currently experiencing negative feelings such as horror and fear in response to his experience. Further Mr Sharbell reports reduced interest in social contact with family and friends, irritability, sleep disturbance and suicidality, as well as evidencing in interview some problems with concentration.
It is the writer’s view that Mr Sharbell is likely to experience any time in custody as more psychologically difficult than most other prisoners, particularly given his symptoms are triggered by the similarities of the prison environment to his being held captive by Hezbollah. In custody treatment, if available, in the writer's view will do little to abate his symptomatology, when the trigger to his symptoms are ever present. He is likely to be a significant suicide risk for the entirety of any time he may spend in custody; the writer advises if this is a disposition imposed by the Court that the relevant authorities are notified of his risk and mental health needs.
Further Mr Sharbell sustained significant orthopaedic injuries this year from which he is still recovering. The writer notes the correspondence of the Department of Justice and Regulation; however should Mr Sharbell not be able to access the physical rehabilitative care he continues to require, his physical recovery and final outcomes could very well be seriously compromised, and such as situation is also likely to impact quite negatively on his mental state. Further his physical state is likely to leave him physically vulnerable in a mainstream environment.[14]
[14]Emphasis added.
In his submissions to the judge, defence counsel made no mention of the suicide risk. Indeed, the submission with respect to the Verdins considerations was extremely brief. The full extent of counsel’s submission on that subject was as follows:
The submission is that the material does engage Verdins principles … five and six, that is not that this was operative at the time of any offending or … but in terms of if he was to be [in] a custodial setting that a sentence is going to weigh more heavily and six, that there's a serious risk of having a [significant] adverse effect on his mental health. And [Ms Matthews] indeed notes the potential for that to be exacerbated in terms of the provision of or lack of provision of physiotherapy services because that will quite obviously weigh on his mental state and one can readily see that would exacerbate the situation in terms of that custodial situation. So on that — in those material, your Honour, we make the submission that the Verdins principles are engaged and of course relevant to the sentencing process.
As can be seen, counsel merely recited propositions 5 and 6 from Verdins. He made no reference to any of the material in the Matthews report with respect to post-traumatic stress disorder or the risk of suicide. He referred only to the likely effect on the applicant of the lack of physiotherapy services.
The lack of detail in the Verdins submission is consistent with the written outline of plea submissions filed by defence counsel at the October hearing. The outline was dated 6 July 2017 and had evidently been prepared for the original plea hearing. The only reference to mental health was in these terms:
He suffers from ongoing anxiety and depressive symptoms. These have been evident to his general practitioner.
Remarkably, no amended or supplementary submission had been prepared on the basis of the Matthews report.
It fell to the judge to draw attention to what Ms Matthews had said about the suicide risk. The following exchange took place:
HIS HONOUR: I note what Ms Matthews said, that if there is further custodial time that the court should inform the authorities that he's potentially at risk and what his mental health needs are, apart from his physical needs.
DEFENCE COUNSEL: That's quite correct, your Honour. It would make eminent sense. If Mr Sharbell is to receive a sentence it makes eminent sense that not just her report be provided to the authorities, but the other material as well.
HIS HONOUR: The other material, yes.
DEFENCE COUNSEL: So that they have a proper starting point to fulfil their statutory obligations, so no issue as to that, your Honour.
In his reasons, the judge said:
I have also considered the report from Ms Pamela Matthews, forensic psychologist, which was tendered in evidence as part of your plea. Her conclusion is that you are likely to experience a more difficult time when incarcerated than most other prisoners, given the diagnosis she makes of post-traumatic stress disorder and her opinion that any term of imprisonment is likely to trigger past memories of your time being held captive by the Hezbollah terrorists in Lebanon. This is clearly a matter which would need to be brought to the attention of the relevant authorities during any period of incarceration.[15]
[15]DPP v Sharbell [2017] VCC 1918 [16] (‘Reasons’).
There was no sentencing error, in our view. As can be seen, his Honour here made reference to the likelihood that, because of the applicant’s psychiatric disorder, he was likely to find custody more burdensome than a person without that condition. That was clearly a reference to Verdins 5. Although there was no direct reference to the Verdins 6 question — whether his condition would be exacerbated by imprisonment — his Honour’s reference to the ‘triggering’ of past memories, and the need to alert the authorities,[16] was clearly based on what Ms Matthews had said on that issue.
[16]Ibid [16].
As we have explained, counsel made only the barest of references to the relevant Verdins principles and said nothing at all about how, according to the expert evidence, incarceration might result in a deterioration of the applicant’s condition. The principles in Verdins are very well known and this Court has said repeatedly that it is for defence counsel on the plea to spell out, for the assistance of the judge, precisely how it is said that the expert evidence should persuade the judge to view one or other of those considerations as applicable. Counsel will not be permitted to advance new or different arguments on appeal.[17]
[17]See, eg, Carroll v The Queen [2011] VSCA 150 [29] and the cases there cited.
As we have pointed out, it was the judge, rather than defence counsel, who drew attention to the suicide risk. Moreover, his Honour was astute to raise with counsel Ms Matthews’ specific recommendation that this risk should be drawn to the attention of the correctional authorities. Counsel simply concurred. As noted, his Honour then specifically mentioned this matter in his reasons.
There is a more general point to be made. It is simply not satisfactory for an expert report of this kind to be produced at the last minute. The time limits are clearly set out in the 2017 Practice Note, adopted by the County Court and the Supreme Court, entitled Sentencing Hearings: Expert Reports on Mental Functioning of Offenders.[18]
[18]County Court of Victoria, Practice Note No 1 of 2017 — Sentencing Hearings: Expert Reports on Mental Functioning of Offenders, July 2017.
If such a report is to be relied on, it must be filed and served not later than
14 days before the date fixed for the plea hearing.[19] Given that the defence had more than three months between the initial hearing in July and the adjourned date in October, there should have been no difficulty in ensuring that the Matthews report was provided on time, rather than (as occurred) only days before the adjourned hearing.
[19]Ibid 6 [8.1]–[8.2].
As this Court said recently,[20] the purpose of the Practice Note is to ensure that sentencing judges receive maximum assistance from expert witnesses in dealing with issues of this kind. It is the responsibility of defence practitioners (counsel and solicitors alike), and of forensic experts themselves, to ensure that there is compliance with the requirements of the Practice Note, both as to the content of reports and as to the time for filing.
[20]Muaremov v The Queen [2018] VSCA 298 [7], [27].
Ground 3: procedural fairness
One of the summary charges to which the applicant pleaded guilty was that of driving whilst disqualified. As appears from the sentencing table set out earlier, the maximum penalty for a second or subsequent offence of driving without a licence is two years’ imprisonment or 240 penalty units. The applicant was sentenced to one month’s imprisonment.
The complaint under this ground is that the applicant should have been put on notice by the judge that he was at risk of a custodial penalty. The necessity for such notice was said to have arisen because of the exchanges between the judge and counsel during the plea hearing.
As the prosecutor explained to the judge, the driving charge related to the applicant’s arrival at the house in Narre Warren. The judge noted in discussion with defence counsel that there was no aggravating factor such as interference to other traffic. This was, however, the second occasion on which the applicant had been convicted of driving while disqualified. The previous offence was in 2003.
After counsel had described the circumstances, and acknowledged the prior conviction, the following exchange took place:
DEFENCE COUNSEL: Ultimately, your Honour, I was going to be submitting that a reasonably small monetary penalty would be sufficient penalty for that matter.
HIS HONOUR: All right.
Shortly afterwards, counsel made a similar submission in relation to the other summary offence, and his Honour responded in identical terms.
The submission for the applicant in this Court was that, because the judge said nothing to indicate that he might not accept the submission that a financial penalty would suffice, counsel was not alerted to that possibility. According to the written case, the result was a denial of procedural fairness, in that the applicant
was denied the opportunity to produce sentencing statistics for the current sentencing practices in the Magistrates’ Court for penalties applicable for second time offenders. He was denied the opportunity to found submissions that imprisonment was too severe a penalty to be imposed in the circumstances.
Reliance was also placed on a later exchange between the judge and the prosecutor, when his Honour described the trafficking and firearms charges as ‘quite significant offences’. His Honour then referred to the charge of dealing with the proceeds of crime as being of ‘lesser seriousness’. His Honour continued:
HIS HONOUR: And they're being dealt with as summary offences as is the drive whilst disqualified which is there but I don't make any other comment in relation to that. I don't think that's a matter that would be particularly concerning to the community.
PROSECUTOR: Yes, your Honour.
HIS HONOUR: So it seems to me it's appropriate to consider these matters by way of the principles of totality in sentencing.[21]
[21]Emphasis added.
There is nothing in this ground, in our view. It is well established that procedural fairness does not require a decision-maker to expose his/her thinking in the course of a hearing.[22] The position might be different in a case where the decision-maker gave some affirmative indication in the hearing that a particular submission would be accepted and then, without warning, proceeded to reject it.
[22]Va v The Queen (2011) 37 VR 452, 458 [24].
In the present case, however, the judge’s response was entirely neutral. The phrase ‘All right’ could not have been taken to mean that the submission as to disposition was accepted. It was simply a way of the judge conveying to counsel that he understood what was being submitted, and inviting him to move to the next point.
This ground also fails.
Ground 4: manifest excess
The applicant contends that the individual sentences and the total effective sentence are manifestly excessive. In other words, he argues that it was not reasonably open to the judge to impose those sentences if proper weight had been given to the matters relied on in mitigation.[23]
[23]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
In oral argument, chief emphasis was placed on the ‘amateurish’ nature of the attempt to traffick, and the impossibility of success. As on the plea, those features were said to make this an unusual case and one in which the offender’s moral culpability should be assessed as low.
The judge took these submissions into account, as appears from his reasons:
Your offending in relation to Charge 1 is unusual in that you had no realistic prospect of ever being successful in your attempt to traffick the particular drug of dependence, namely 1,4-butanediol. Your offending in relation to this charge could fairly be described as amateurish and it lacks the usual hallmark for such offending of a very significant financial benefit potentially flowing to you. Nevertheless, the quantity of the substance was found to be in excess of three times the minimum amount necessary to satisfy the definition of a commercial quantity.
…
In relation to the additional matters which are set out in the Sentencing Guidelines under the provisions of the Sentencing Act 1991 I am satisfied that your moral culpability is less than would ordinarily be anticipated from this type of offending. I believe that there is less a need than would ordinarily be the case to provide great weight to specific deterrence, again taking into account your absence of a relevant criminal history and your conduct since late 2014 which suggests good prospects for rehabilitation.[24]
[24]Reasons [5], [18].
In our view, however, the lack of sophistication, and the impossibility of success, were not matters of great significance given the seriousness of the offending. As to the lack of sophistication, clandestine laboratories of this kind quite often utilise kitchen utensils, as this applicant did, and adopt unsophisticated ‘cooking’ procedures.
Moreover, as counsel for the respondent correctly pointed out, there were indications that the applicant was not in truth ‘an innocent abroad’. There were guns on hand, which the applicant had agreed to clean to make them operational once more. His counsel conceded on the plea that, as a result, he was ‘complicit’ in any future use of the guns. And then there were the stolen motorbikes and other stolen property. The explanations advanced on behalf of the applicant for the presence of these items were vague and unconvincing.
As to the impossibility of success, the applicant was of course charged with attempted trafficking. What matters for this purpose is criminal intent, which the applicant admitted by his plea.[25] As this Court said in Taumoefolau v The Queen:
The harm (actual and potential), or in the words of Weinberg JA in Trajkovski the ‘deleterious effects’, of particular conduct is a potentially relevant matter depending upon the circumstances of each individual case. The sentencing judge is entitled to gauge the criminality of the conduct by its potential consequences and by the intentions of the offender notwithstanding what he or she was in fact able to achieve. This is made clear in Spaull. The fact that the conduct of the offender may be such as to render it unlikely, or even impossible, that he or she will achieve the objective is unlikely to mitigate an assessment of the criminality, and it will commonly have very little weight, as was said in Zandi and the cases it cited. In any particular case, actual harm, both its presence and its absence, can be taken into account, as this Court said in Haidari.[26]
[25]See Nelson (a pseudonym) v DPP (Cth) (2014) 44 VR 461, 462 [3]; Zandi v The Queen [2015] VSCA 24 [17]–[18].
[26](2015) 253 A Crim R 508, 519 [36] (emphasis added) (citations omitted).
As to offence seriousness, the sentencing regime for drug trafficking offences is quantity-based. Counsel for the applicant conceded in this Court — properly, in our view — that other things being equal, the larger the quantity trafficked, the more serious the offence.[27] In this case, the applicant had, and was attempting to traffick, 6 kilograms of a mixture containing the prohibited drug, which was three times the amount necessary to establish a commercial quantity.
[27]DPP (Cth) v KMD (2015) 254 A Crim R 244, 257 [52]; Gregory [2017] VSCA 151 [24].
As noted earlier, this Court said in Gregory[28] that higher sentences were required for CQ trafficking. The Court said that it was
quite remarkable that an offence with a maximum penalty of 25 years’ imprisonment has only once over the past decade attracted a sentence of nine years’ imprisonment.[29]
The Court said that current sentencing
for CQ trafficking in the upper category of the offence is plainly inadequate. As the Court has said after reaching similar conclusions in relation to sentencing for other offences, sentencing courts should no longer regard themselves as constrained by existing sentencing practice for offences in that category.[30]
[28]Gregory [2017] VSCA 151.
[29]Ibid [96].
[30]Ibid [100].
Since that decision was handed down, the High Court has confirmed that inadequate sentencing practices cannot be maintained.[31] The only expectation that an offender can have at sentence ‘is of the imposition of a just sentence according to law.’[32] It follows that anyone pleading guilty to a CQ trafficking offence must realise that past sentences provide very little guidance to future sentencing in this area.
[31]DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37, 48 [53], 50 [63].
[32]Ibid 51 [65].
To the extent that reliance is placed on what are said to be comparable cases, counsel must identify them and spell out what makes them relevantly comparable or instructively different.[33] In the present case, therefore, it was of little assistance to the judge for the prosecutor to provide a table of 2016 County Court sentences for this offence.
[33]DPP v Frewstal Pty Ltd (2015) 47 VR 660, 671 [49].
Recently, in Ellis v The Queen,[34] this Court reviewed sentences for CQ trafficking of 1,4-butanediol. The sentences ranged from two-and-a-half to five years’ imprisonment.[35] It is not reasonably arguable that the present sentence was outside the range available in the circumstances of the case.
[34][2018] VSCA 221.
[35]Ibid [29].
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