Stevens v The Queen
[2020] VSCA 170
•24 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0050
| CARLEY STEVENS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | EMERTON and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 June 2020 |
| DATE OF JUDGMENT: | 24 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 170 |
| JUDGMENT APPEALED FROM: | [2020] VCC 117 (Judge Pullen) |
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to one charge of trafficking in a drug of dependence and one summary charge of dealing with property suspected of being the proceeds of crime – Aggregate sentence of imprisonment imposed with Community Correction Order – Whether a term of imprisonment open on summary charge – Term of imprisonment not open on summary charge – Aggregate sentence not open – Leave to appeal granted – Appeal allowed – Applicant re-sentenced – Fitzpatrick v The Queen [2016] VSCA 63, DPP v Frewstal Pty Ltd (2015) 47 VR 660 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann QC | Michael J Gleeson & Associates |
| For the Respondent | Mr N Hutton | Ms A Hogan, Solicitor for Public Prosecutions |
EMERTON JA:
WEINBERG JA:
The applicant pleaded guilty to one charge of trafficking in a drug of dependence, cannabis, and to a summary charge of dealing with property suspected of being the proceeds of crime. The property in question was a cash sum of $2,000. The trafficking offence was committed between 7 December 2016 and 3 March 2017, and the summary offence on 3 March 2017.
The charges arose from the applicant’s relationship with ‘AP’ who was charged with and stands to be tried for large scale cannabis cultivation and trafficking. AP was allegedly involved in a hydroponic set-up in a factory at Mordialloc and then allegedly trafficked the cannabis with the applicant. On 2 February 2017, police seized a total of 72 plants and 291.61 kilograms of loose drying cannabis from the Mordialloc factory.
The trafficking offence took place at premises that the applicant shared with AP in Bentleigh. The Bentleigh property was the applicant’s and AP’s residence through to March 2017. As a result of the seizure of the cannabis from the Mordialloc factory, on 3 March 2017, police searched the Bentleigh property while the applicant and AP were overseas. At the Bentleigh property police found evidence of a commercial operation in the trafficking of cannabis involving the use of the ‘dark web’ and Australia Post. Parts of the premises were used for cannabis storage and as packing and dispatch areas. The applicant (and, allegedly, AP) used a dark web homepage titled ‘RROSSDABOSS’, which revealed a history of transactions relating to cannabis sales.
Charge 1 was that between 7 December 2016 and 3 March 2017, the applicant sold cannabis. In total, 1.806 kilograms of cannabis was sold in that period for US$16,394.70. There was a further large amount of cannabis on the premises (15.69 kilograms) which represented potential sales of US$142,432.
In the bedroom on the upper level of the Bentleigh property, police located a spirax notebook and black diary containing suspected drug transaction entries. Two thousand dollars in cash was located in a backpack in the cupboard of the bedroom (summary charge 5).
The applicant and AP were arrested at the airport immediately upon their return to Australia on 8 March 2017 and charged the following day.
The applicant was initially charged with trafficking cannabis and possession of cannabis in relation to the Bentleigh property.[1] Those charges were to be heard and determined in the Magistrates’ Court, but were transferred to the ‘indictable stream’ (that is, to be heard and determined in the County Court of Victoria) on 5 May 2017. On 5 March 2018, additional and far more serious charges — trafficking and cultivating a large commercial quantity of cannabis and possessing items for that purpose — were laid against the applicant arising from the activities at the Mordialloc factory. On 17 September 2018, the applicant was committed to stand trial in the County Court. However, almost a year later, on 23 August 2019, the matter resolved with the applicant pleading guilty to the lesser charges of trafficking (Charge 1) and dealing in the proceeds of crime (summary charge 5).
[1]The applicant was also charged with attempt to possess a drug of dependence (not named) and possession of ecstasy, but these charges were ultimately not pursued.
The applicant was on bail throughout this time (a period of almost three years) and subject to strict bail conditions, including a curfew preventing her from leaving her mother’s house (where she was required to reside) between the hours of 11 pm[2] and 6 am unaccompanied by her mother or step-father.
[2]Initially, 10 pm.
However, during this period, the applicant was employed, and undertook a variety of rehabilitative measures, including treatment for longstanding mental health issues and drug addiction. The applicant had been a heavy user of methamphetamines from the age of 19 and had been in a series of destructive relationships with other drug users. She was 26 years old at the time of the plea hearing.
The applicant was sentenced on 14 February 2020 as follows:
Charges on
Indictment
H10663780Offence Maximum Sentence Cumulation Charge 1 Trafficking in a drug of dependence, namely cannabis, contrary to s 71AC(1) of the Drugs,
Poisons and Controlled
Substances Act 1981
15 years’ imprisonment Aggregate sentence of 9 months’ imprisonment, with 2 year community correction order —
Related summary
offence - charge 5
Dealing with property reasonably suspected of being the proceeds of crime, namely $2,000, contrary to s 195 of the Crimes Act 1958 2 years’ imprisonment Refer to charge
1
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Total effective sentence: Aggregate sentence of 9 months’ imprisonment, with a 2 year community correction order Non-parole period: N/A Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: 2 days 6AAA statement: 4 years’ imprisonment, with a non-parole period of 2 years and 6 months Other relevant orders: As part of the community correction order, assessment and treatment for drug abuse or dependency, mental health assessment and treatment Matters raised on the plea
On the plea, Senior Counsel for the applicant acknowledged the seriousness of the applicant’s offending, but urged the imposition of a Community Correction Order (‘CCO’) containing punitive as well as treatment conditions in lieu of a custodial sentence. He submitted that Boulton v The Queen[3] was authority for the proposition that very serious crime can be accommodated, where circumstances warrant, by a lengthy CCO with significant punitive aspects catering for deterrence in combination with rehabilitation. According to the applicant, this was a case where the punitive aspects of a CCO should be exhausted before moving to a sentence of imprisonment. The stage of last resort had not been reached.
[3](2014) 46 VR 308; [2014] VSCA 342 (‘Boulton’).
The applicant submitted that she played a limited role in the enterprise: she joined an enterprise that was already in operation. The prosecution conceded that she was not involved in the sourcing of the cannabis that came into the Bentleigh property for sale and distribution and that sales were made during her absence overseas.
The applicant raised a number of mitigating factors: her early pleas of guilty; her remorse; the absence of any prior convictions; her community involvement (evidenced by her participation as a volunteer in bushfire recovery programs as well as her participation in organised sporting activities); the extraordinary delay in the resolution of her matters and the fact that she had spent almost three years under curfew; the fact that custody will be more burdensome for her because of her mental health problems; her efforts at rehabilitation since her arrest and her excellent prospects of rehabilitation. As well as undergoing counselling and drug treatment, the applicant had taken on more demanding employment, reconnected with family and become involved in community activities and sport. She had achieved abstinence from drugs and was appropriately diagnosed and medicated for her mental health conditions.
It was further submitted that the applicant’s severe drug addiction prior to and at the time of offending should be recognised as a mitigatory factor. The applicant submitted that there was ample foundation to find that she was in the grip of drug addiction when making the choice to get involved in an enterprise that was already underway.
The applicant tendered seven references from family members, friends and colleagues attesting to the applicant’s underlying good character, remorse and efforts to rehabilitate.
The applicant also tendered and relied upon a range of clinical material: a lengthy report by Mr Patrick Newton, psychologist, dated 1 February 2020; a short letter/report from Dr Matthew Barth, psychologist, dated 3 February 2020; a letter from her general practitioner, Dr Emily McMullin, dated 17 January 2020; and clinical assessment notes prepared by her treating psychiatrist, Dr Julie Wehbe, dated 10 November 2016. These materials variously addressed the applicant’s long standing mental health issues, her drug addiction and steps to rehabilitate and her ongoing needs.
It is convenient to set out in short compass the contents of Mr Newton’s report, as it formed the basis for a number of the applicant’s submissions on the plea.
The applicant’s history, as recorded by Mr Newton, included a chaotic and abusive upbringing. The applicant described her father as a drunk, a heavy drug user, a gambler and a womaniser who was physically violent towards her and her mother. She reported suffering a number of significant physical and behavioural problems during her early years. She struggled to make friends and experienced feelings of loneliness and alienation. She completed her VCE in 2010 and studied nursing part-time from 2011 to 2015, deferring her studies on account of her ‘poor mental health’ and ‘troubles at home’. During her studies, she worked as a tabletop dancer and in social media roles with various companies. More recently, she had been involved in e-commerce roles with online retailers. The applicant had had three key relationships, the third of which was AP. Both earlier relationships were described by the applicant as involving drug use and as being chaotic and volatile.
Mr Newton recorded that from her teens, the applicant had manifested significant interpersonal difficulties and had developed an eating disorder as well as suffering serious medical problems. She was diagnosed with ‘anxiety and depression’ when she was 16 and had subsequently seen ‘about seven or eight’ different psychologists with limited benefit. She had also consulted a number of psychiatrists and had been prescribed antidepressants, which she had taken for several years but discontinued during her early 20s on account of the side effects that she experienced.
More recently, the applicant had consulted Dr Wehbe who had diagnosed her as suffering from attention deficit disorder and had prescribed dexamphetamine, which the applicant described as ‘life changing’.
As to substance use, Mr Newton recorded that the applicant had begun to use methamphetamine at the age of 19 because she enjoyed the ‘energy and mental clarity’ that the drug induced. These effects, together with the integration of drug use in her relationships, reinforced her drug use and led to her developing a significant addiction. The applicant reported to Mr Newton that she was soon using ‘ice’ on a daily basis and relied upon it to cope with everyday demands. She described a range of symptoms indicating that she had become dependent on the drug: escalation in compulsive use; withdrawal symptoms; drug use taking on a central role in her life; and persisting drug use despite severely adverse consequences.
The applicant reported to Mr Newton that she had ceased using drugs in 2017 and had participated in programs of Narcotics Anonymous as part of her efforts to maintain abstinence. Once she was prescribed dexamphetamine, she felt little need for illicit stimulants and had found it comparatively easy to remain abstinent.
Mr Newton opined that diagnostically the applicant’s drug use would have been sufficiently intense to meet DSM-5 criteria for methylamphetamine use disorder of moderate to severe intensity. Assuming that the applicant was indeed abstinent from all illicit drugs, this condition would be described as being in remission.
Mr Newton’s assessment was that the applicant showed some relatively mild depressive symptoms in the context of elevated anxiety. Her symptoms were not sufficiently severe in themselves to warrant the diagnosis of a mental disorder and he made no diagnosis of any mood disorder, anxiety disorder or adjustment disorder. Nonetheless, in the context of the applicant’s reported history of more severe mood disturbance, the symptoms described by the applicant raised concerns about the stability of her mental state and the adequacy of her coping resources more generally. Mr Newton opined:
In a custodial context, there would be some risk that [the applicant’s] mood could deteriorate. Accordingly, were the Court to consider such a disposition to be appropriate in this case, it would be important that [the applicant] was provided with appropriate treatment and support so that any deterioration in her mental health can be addressed expeditiously.
Mr Newton assessed the applicant as having suffered from a serious drug problem and stated that her occupational, social and interpersonal functioning had all been affected in a detrimental manner by her drug use. Ceasing to use drugs had underpinned a degree of stability in her life and provided a context in which she could engage positively with work and family relationships. Nonetheless, Mr Newton considered that the applicant remained ‘an emotionally vulnerable and interpersonally dependent young woman’, which elevated her risk for relapse into drug use. This would constitute an especially potent criminogenic risk factor in the applicant’s case.
Mr Newton reported that the applicant feels an abiding sense of uncertainty about her identity and is confused and unsure of her own views about major life issues. She is strongly dependent on the state of her intimate relationships for her self-esteem and has been vulnerable to abusive relationships in the past. To compensate for her feelings she has engaged in a range of ‘attention-seeking’ and ‘acting out’ behaviours in an effort to gain the approval of others, and thereby to bolster her poor self-esteem and to assuage her emotional distress. The euphoria induced by methylamphetamine masked her emotional distress and induced an illusion of power and invincibility which compensated for her underlying dependence on others, her insecurity and her poor self-esteem. Mr Newton opined:
The personality traits described above are dysfunctional and problematic. They underpin [the applicant’s] drug use and have also left her vulnerable to other behavioural disorders (including most notably her eating disorder) and anxiety. They have their origin in the instability of her early years which did not provide a secure and stable environment for her to develop her sense of self. These problems were exacerbated by her medical and other problems and ultimately entrenched by the abusive adult relationships in which she participated and her work in adult entertainment. As matters stand, these traits are not sufficiently severe to warrant the diagnosis of a personality disorder. Rather, they are noted as prominent traits of borderline and dependent personality disorders.
In concluding, Mr Newton stated that the applicant presented as a person with ongoing emotional and behavioural vulnerabilities and that, while she had reportedly made some positive progress in recent times, he was concerned that she was likely to remain at risk for treatment reversal for some time to come. Mr Newton considered that, were the applicant to be placed in a custodial setting, she would be vulnerable to experiencing further bouts of significant mood disturbance and these would most likely manifest themselves in the form of physical symptoms and behavioural problems. While the applicant had made some good recent progress in her efforts to address her problems, several treatment and rehabilitative goals remained extant. These included consolidation of her recovery from drug use, and continued participation in mental health care to address her emotional vulnerabilities and personality related challenges.
The letter from Dr McMullin was much shorter but referred to the applicant’s diagnoses of depression and ADHD, and to the connection between her addiction and the offending behaviour. Dr McMullin concluded:
Carley has responded really well to psychological and psychiatric support. She no longer uses illicit drugs and is in full time meaningful employment. She has supportive family around her and continues to review with health care practitioners. A period of imprisonment could seriously negatively impact Carley’s mental and physical wellbeing that she has worked so hard to regain.
In light of the mental health issues identified by Mr Newton and Dr McMullin, the applicant submitted that she was entitled to the benefit of the principles in R v Verdins[4], specifically principles 5-6.
[4](2007) 16 VR 269; [2007] VSCA 102.
The applicant submitted further that Mr Newton’s report provided the basis for establishing that her life circumstances made her particularly vulnerable to drug addiction and that her rampant addiction had affected the choices that she made, including the choice to participate in the offending at the Bentleigh property. In this context, her drug use was a mitigatory factor of the kind recognised by this Court in R v Lacey.[5]
[5](2007) 176 A Crim R 331; [2007] VSCA 196.
The applicant stressed the extraordinary delay in dealing with the charges against her, the fact that the prosecution caused the delay by laying the more serious charges before withdrawing them, and the very long period that she spent under curfew. The applicant stood to be rewarded for the efforts she had made towards rehabilitation during this period. It was also submitted that it was a ‘very rare circumstance’ that a person endured a curfew for that length of time, the curfew being ‘almost a form of home detention’.
After the plea hearing, the judge emailed the parties in order to convene a hearing to hear submissions on whether she could impose an aggregate sentence in respect of the two charges. The matter was mentioned on 14 February 2020. It was common ground, and accepted by the judge, that an aggregate sentence could only be imposed if the summary offence warranted a gaol term. The applicant submitted that ‘the proceeds charge’ (summary Charge 5) did not warrant a prison sentence.
Reasons for sentence
The judge recorded that the applicant had previously faced more serious charges involving activities at the Mordialloc factory and that, following a contested committal, discussions began regarding the appropriate charges.[6] She accepted that the applicant intended to plead guilty to the two remaining charges at an early stage and that the applicant’s pleas of guilty had utilitarian benefit.[7]
[6]DPP v Stevens [2020] VCC 117, [43] (‘Reasons’).
[7]Ibid [44]–[45].
The judge further recorded that the applicant had no prior court appearances and there was ‘nothing subsequent’. Moreover, since 2017, the applicant had had the two charges (and for some part of that period, more serious charges) hanging over her head.[8] The judge also recognised that between 8 March 2017 and the plea hearing, the applicant had made efforts relevant to her rehabilitation.[9]
[8]Ibid [47].
[9]Ibid [48], [50].
The judge recorded that the applicant had been employed since her offending and was employed at the time of her offending.[10] She had also returned to playing softball. The judge noted that a number of character references attesting to her otherwise good character were before the Court.[11]
[10]Ibid [104].
[11]Ibid [106], [107]-[115].
However, the judge considered the applicant’s rehabilitation prospects to be ‘guarded’, having regard to her ongoing relationship with AP. Were it not for the ongoing relationship with AP, the judge considered that the applicant’s prospects of rehabilitation would have been good.[12]
[12]Ibid [53].
The judge accepted that the applicant was remorseful and that custody would be more difficult for her because of her mental health difficulties.
Notwithstanding Mr Newton’s report, the judge considered that Verdins principles (1-6) were not enlivened. However she accepted, consistently with general sentencing principles, that in custody there would be some risk that the applicant’s mood could deteriorate.[13]
[13]Ibid [62].
The judge characterised the applicant’s offending as a ‘sophisticated’ commercial operation using the dark web and Australia Post.[14]
[14]Ibid [56].
The judge considered but rejected the submission that the applicant’s addiction to methamphetamine mitigated the gravity of her offending and that the drug use was an attempt to deal with a disadvantaged background, vulnerability, abusive relationships and past medical issues.[15] Counsel conceded addiction in mitigation of sentence was ‘rare’ but urged that it was applicable, citing R v Lacey.[16] The judge held that the necessary link referred to in Lacey between the addiction and the commission of the offences was not made out by Mr Newton’s report.[17] Her Honour referred to the fact that the applicant’s drug use commenced in a relationship with a drug user, not before, and that she told Mr Newton she enjoyed the energy and ‘mental clarity’ which the drug induced.[18] While Mr Newton described the applicant’s occupational, social and interpersonal functioning as being affected in a detrimental manner by drug use, he made no reference to a link to the offending. The judge distinguished the facts in Lacey, which involved a person of below average intellectual functioning, street level trafficking, the commencement of drug use as a young child and no evidence of enrichment.[19] She said:
In your case, your offending was not ‘street level’, nor were you a cannabis user at that time … . Also the value of the cannabis was substantial, not ‘street level’. Whilst there is no clear evidence of enrichment, you were obviously able to travel overseas as you were arrested at the airport on 8 March.
The material before me does not support the conclusion that your drug addiction was connected to your offending and being in mitigation of your sentence.[20]
[15]Ibid [81]–[82].
[16][2007] 176 A Crim R 331 (‘Lacey’).
[17]Reasons [82]–[84].
[18]Ibid [86]–[87].
[19]Ibid [88]–[90].
[20]Ibid [91]–[92].
The judge continued:
I also note your offending occurred whilst you were employed, i.e. able to ‛hold down’ a job and it involved, as I have said, sophisticated offending. You knew what you were doing was wrong, your IQ established by Mr Newton to be at the high end of average. That your moral reasoning had never been impaired, that you were always fully aware of the wrongfulness of your conduct and its likely consequences.[21]
[21]Ibid [93].
The judge recorded counsel’s urging that the applicant be assessed for a CCO, referring to Boulton and the importance of rehabilitation.[22] The judge stated that she was aware of Boulton and subsequent pronouncements of the Court of Appeal relevant to the imposition of such orders. She confirmed that a CCO has both punitive and rehabilitative aspects to it and that, in Boulton, the courts were encouraged to ‘re-examine the conventional wisdom about the types of offending which ordinarily attract a term of imprisonment’.[23] The judge said:
I do not however understand Boulton to remove the requirement that a sentencing judge must take into account all of s 5 Sentencing Act 1991, nor did I understand Boulton to mean that sentencing principles stated by the Court of Appeal and other courts relevant to your offending trafficking in a drug of dependence (cannabis) now amounted to nought. Nor did I understand Boulton to remove the instinctive synthesis when sentencing.
I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to any charge.
…
I do however note the importance of rehabilitation and the Community Correction Order will be directed to treatment/counselling.[24]
[22]Ibid [121].
[23]Ibid [122].
[24]Ibid [123], [124], [126].
The judge stated that she must also take into account the need for general deterrence, which was of considerable importance in such a case and she needed to take into account the need for specific deterrence and the protection of the community. Denunciation and the need to impose a just punishment were also relevant considerations.[25]
[25]Ibid [130]–[133].
The judge then said:
At a mention of this matter on 14 February 2020, I discussed with counsel whether an aggregate sentence could be imposed for the two charges before me. [Counsel for the applicant] also submitted I should consider whether a conviction should be recorded or not on a Community Correction Order. I have considered all those submissions and again the submissions of [counsel for the respondent].
…
In my opinion, however, the imposition of a Community Correction Order without a term of imprisonment would not adequately or appropriately address all relevant sentencing considerations in your case. Those considerations do not only refer to matters in mitigation of sentence but also to the seriousness of your offending as described in the Prosecution Opening and discussed during the course of your plea hearing.
In my opinion, the only appropriate disposition involves a term of imprisonment with a Community Correction Order.[26]
[26]Ibid [134]–[137].
Proposed grounds of appeal
The applicant seeks leave to appeal against her sentence on the following grounds:
(1)the judge erred in imposing an aggregate sentence of imprisonment upon her;
(2)the judge erred in failing to have regard to the fact that the applicant had been subject to strict conditions of bail which included an overnight curfew condition for almost three years;
(3)the judge erred in finding that there was no mitigatory value associated with the applicant’s drug addiction;
(4)the judge erred in her approach to the ‘last resort’ question that arose in the applicant’s case; and
(5) the sentence imposed is manifestly excessive.
Before this Court, the applicant sought leave to file and relied upon an affidavit of Damian John McNally made on 18 June 2020 reporting on the applicant’s treatment in custody. Mr McNally deposed that since 20 March 2020, as a result of measures taken to prevent the spread of the coronavirus, the applicant had been subjected to ongoing lock-downs, and had no personal visits of any kind from family members or friends, no access to personal property and, most importantly, no access to any programs, education courses or support services. In addition, due to a technical glitch attributed to the release of a fellow prisoner with a similar custody reference number, the applicant was prevented from using the telephone to speak with her family members and friends for a number of days. She has also been without her prescribed dextroamphetamine for more than six weeks. On 4 June 2020, the applicant commenced weekly counselling sessions with a psychologist as a result of concerns by her case manager about a deterioration in her mental health.
Ground 1
By Ground 1 the applicant challenges the lawfulness of the aggregate sentence of imprisonment that has been imposed. The applicant submits that no such sentence was open to be imposed in circumstances where summary Charge 5 (the proceeds charge) could not, reasonably, have attracted a period of imprisonment.
Section 9 of the Sentencing Act 1991 provides for an aggregate sentence of imprisonment to be imposed for two or more offences that are founded on the same facts or form or are part of a series of offences of the same character.
There was no dispute on the plea that the two offences committed by the applicant were founded on the same facts or were related offences. Nor was there any dispute that s 9 of the Sentencing Act proceeds on the basis that a sentence of imprisonment will be appropriate for each offence. However, the applicant submitted that it was not reasonably open for the judge to impose a sentence of imprisonment on the proceeds charge; the respondent submitted that it was.
Specifically, the applicant submitted that the mitigating factors in her case precluded the imposition of a term of imprisonment on the proceeds charge. The proceeds charge involved the relatively small amount of $2,000 and the maximum penalty was two years’ imprisonment. She submitted that in considering whether the stage of last resort had been reached in respect of this charge, all matters in mitigation had as much relevance as they did for the trafficking charge.
According to the respondent, however, the judge took each of the matters in mitigation into account in formulating her sentence and did not take any irrelevant matters into account. It was therefore reasonably open to the judge to impose a sentence of imprisonment for the proceeds offence.
We accept the applicant’s submission that it was not reasonably open to the judge to impose a sentence of imprisonment for the proceeds offence having regard to the relatively minor nature of the offending, the applicant’s plea of guilty and the fact that the applicant was a first-time offender. The other mitigating factors relied upon are also relevant, but it is unnecessary to rehearse them in this context. Had the applicant appeared in the Magistrates’ Court to plead to the proceeds charge, on its own, a term of imprisonment would, most certainly, not have been imposed. The only reason that a term of imprisonment was imposed in the County Court appears to have been the judge’s inclination to impose an aggregate sentence, which she considered to be appropriate. That decision involved error, in our view, because it reflected a failure to consider the proceeds charge specifically, and in the context of the applicant’s circumstances. In effect, the sentencing process was distorted by ‘squeezing’ the proceeds charge into a sentence that had been arrived at by reference to another, far more serious, offence. This offended the principles of proportionality and parsimony. The imposition of an aggregate sentence resulted in a sentence for the proceeds charge that was manifestly excessive.
In our view, therefore, the imposition of the aggregate sentence involved both specific error and manifest excess. The aggregate sentence imposed in respect of each of the charges must be set aside. It is not to the point to say that no different sentence should be imposed overall, because the sentence as structured cannot stand, having regard to the error that we have identified. The applicant must be resentenced on each of the charges separately.
We observe that an aggregate sentence will rarely, if ever, be appropriate where there are only two charges and one of them is much more serious than the other. In Fitzpatrick v The Queen,[27] this Court noted comments by Professor Freiberg to the effect that an aggregate sentence may not be appropriate
where an indictment contains only a small number of counts, or where the counts ‘vary significantly in their seriousness or the manner in which the offences were committed’.[28]
[27][2016] VSCA 63.
[28]Ibid [48] (Weinberg AP, Priest and Beach JJA).
In DPP v Frewstal Pty Ltd,[29] Maxwell P described the kind of case for which an aggregate sentence is appropriate as
one where the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences and then, by means of modest orders for cumulation, to arrive at a total effective sentence proportionate to the total criminality. The archetypical example is the case of multiple offences of burglary and theft, committed over a relatively short period, where an aggregate sentence is a ‘more flexible and pragmatic’ way of ‘reflecting all of the offender’s conduct’.[30]
[29](2015) 47 VR 660; [2015] VSCA 266.
[30]Ibid [44].
In this case, it is not artificial to impose individual sentences for the two charges. Indeed, it was inappropriate not to do so, given the marked disparity in the seriousness of the charges and the fact that one of them, on almost any view, was unlikely to attract a custodial sentence on its own.
Other grounds
In light of the need to resentence the applicant on each of the charges, it is unnecessary to consider the remaining proposed grounds of appeal. However, insofar as proposed grounds 2 and 3 assert, in substance, a failure to take into account relevant considerations, we explain in our reasons for sentence below if, and if so to what extent, those considerations are relevant.
Resentencing
The applicant stands to be resentenced on the charge of trafficking cannabis contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 and of the summary offence of dealing with property suspected to be the proceeds of crime contrary to s 195 of the Crimes Act 1958. The trafficking charge attracts a maximum sentence of 15 years’ imprisonment; the proceeds charge attracts a maximum sentence of two years’ imprisonment.
The gravity of the applicant’s offending on the trafficking charge is to be assessed on the basis that she was not involved in sourcing the cannabis and came to be involved in its distribution or sale only after the process had been established. Nonetheless, the operation was a sophisticated one and the sums of money that stood to be made were large. The applicant must have been well aware that she was involving herself in quite serious criminal activity. There is no doubt that the trafficking of cannabis over the relevant period was serious offending.
However, we take into account the significant mitigating circumstances raised by the applicant, including the utilitarian value of her plea of guilty, her evident remorse and the concerted and worthwhile efforts that she has made to deal with her drug addiction and generally to rehabilitate. Furthermore, delay is an important mitigating factor in this case, and not only insofar as it is relevant to rehabilitation. The delay in bringing this matter to resolution meant that the uncertainty of outcome hung over the applicant’s head for almost three years. For a significant part of that time, the applicant faced charges attracting a sentence of life imprisonment. Furthermore, the applicant was subject to strict bail conditions. It is highly unusual — and punishing — for a curfew to remain in place for a period of almost three years. As the applicant submitted, the curfew was not far from being a form of home detention. Compliance with the curfew over the very protracted period in question warrants recognition. What in normal circumstances is a standard bail condition attracting no special consideration in sentencing is, in the unusual circumstances of this case, a mitigating factor.
We also take into account that the applicant has suffered extra-curial punishment through the loss of her nursing career.
However, while the applicant’s difficult childhood and her struggles with poor self-esteem and mental illness are relevant considerations in sentencing, the applicant’s drug addiction at the time of offending is not.
The applicant submitted that Mr Newton’s report had laid the foundation to establish the link between her dysfunctional and damaging upbringing and her drug addiction and, in turn between her drug use and her offending. It was submitted that the poor choice that she made to join in the offending initiated by her co-offender or co-offenders has to be seen in the context of her severe drug addiction, which is therefore a mitigating factor.
The connection between drug addiction and crime is commonplace, as is the connection between childhood trauma and drug use. We see nothing in the particular circumstances of the applicant making hers one of the ‘relatively rare cases’ where drug addiction is a mitigating factor. Despite her addiction, the applicant was an intelligent young woman who well understood that she was engaging in relatively sophisticated criminal conduct. She did so in order to support a lifestyle rather than an addiction.
Having regard to her previous positive steps towards rehabilitation, her abstinence from drugs and her intention to resume living with her mother and engage in counselling for her mental health, we consider the applicant’s prospects of rehabilitation to be good, providing that she remains drug-free. However, that may in turn depend on the applicant not resuming association with her co-offenders and, in particular, with AP. The applicant has a history of intimate relationships revolving around drug use. We agree with the judge that the applicant’s ongoing relationship with AP is problematic and threatens her rehabilitation, as well as her ability to satisfy the conditions of a CCO.
In our view, in addition to time served, a CCO will adequately and appropriately address the sentencing considerations for the trafficking charge, in respect of which general and specific deterrence as well as community protection are important.
On charge 1, the applicant will be sentenced to a term of imprisonment of 128 days, representing time served, and a CCO for a period of two years. In addition to the core conditions, the CCO will contain conditions for supervision, drug counselling, mental health assessment and treatment, and a requirement to undertake 100 hours of community work. We will also impose a non-association condition preventing the applicant from associating with AP, in any way or by any means, for the duration of the CCO.
The imposition of the CCO will of course depend on the applicant consenting to its imposition and undertaking to abide by the conditions.
On summary charge 5, the applicant is sentenced to pay a fine in the sum of $500.
It is declared pursuant to s 6AAA of the Sentencing Act 1991 that but for the applicant’s pleas of guilty, the Court would have imposed a sentence of imprisonment of four years, with a non-parole period of two years and six months.
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