Thomas Foley v The Queen
[2019] VSCA 99
•6 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0170
| THOMAS FOLEY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 May 2019 |
| DATE OF JUDGMENT: | 6 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 99 |
| SENTENCE APPEALED FROM: | DPP v Foley (Unreported, County Court of Victoria, Judge Wischusen, 27 July 2018) |
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CRIMINAL LAW – Sentence – Appeal – Application for leave to appeal against sentence – Attempting to possess a commercial quantity of border controlled drug – Sentenced to 7 years and six months’ imprisonment with a non-parole period of five years – Whether sentencing discretion miscarried as consequence of prospect of deportation – Whether manifestly excessive – No error – Sentence not manifestly excessive – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Smallwood | Melasecca Kelly & Zayler |
| For the Respondent | Ms K Breckweg | Commonwealth Director of Public Prosecutions |
PRIEST JA:
Thomas Foley, the applicant, aged 36 years,[1] pleaded guilty in the County Court on 18 July 2018 to a charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, 3,4–Methylenedioxy-methamphetamine (‘MDMA’).[2]
[1]His date of birth is 27 May 1982.
[2]Criminal Code Act 1995 (Cth), ss 11.1, 307.5(1). The maximum penalty is imprisonment for life or 7,500 penalty units (or both). By virtue of s 11.1, a person who attempts to commit an offence is punishable as if the offence attempted had been committed.
On 27 July 2018, the judge sentenced the applicant to be imprisoned for seven years and six months, and fixed a non-parole period of five years.[3]
[3]A declaration of 302 days pre-sentence detention was made. Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s plea of guilty, he would have imposed a sentence of 11 years’ imprisonment with a non-parole period of eight years.
By a Notice dated 21 August 2018, the applicant sought leave to appeal against the sentence on two proposed grounds, formulated as follows:
1. In all the circumstances, the Applicant’s head sentence and non-parole period are manifestly excessive.
A: The sentencing discretion has miscarried as a consequence of the fact, and implications, of the Applicant’s inevitable deportation upon completion of his sentence.[4]
[4]The applicant was given leave to rely on ground A by Ashley JA at the hearing of the application for leave to appeal on 7 November 2018. Leave was also granted to file an amended affidavit written by the applicant’s partner, Anne Jane Davidson Lloyd.
Ashley JA refused leave to appeal on both grounds on 21 November 2018.
Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to have the application for leave determined by this Court.
For the reasons that follow, I too would refuse leave to appeal.
Background
When determining the application for leave to appeal then before him, Ashley JA approached the resolution of the application on the basis that he was entitled to rely on an affidavit by the applicant’s partner, Anne Jane Davidson Lloyd, dated 8 November 2018,[5] in which she deposed as follows:[6]
[5]At one point the affidavit was said to have been affirmed, and at another it was said to have been sworn. Nothing, however, turns on this.
[6]Headings and exhibit reference omitted.
I am the partner of Thomas Foley (“the Applicant”).
I have been in a relationship with the Applicant for 13 years.
The Applicant and I were both born in the United Kingdom and are British citizens.
During the Applicant’s period at the Melbourne Remand Centre, I visited him twice weekly.
Following his being sentenced in July 2018, he was moved to Loddon Prison in Castlemaine, it has meant that I can now only see him (for the most part) once fortnightly. This is very hard on both of us.
We speak on the phone daily. I am the only personal contact to whom the Applicant speaks regularly. He speaks occasionally to his parents back in the United Kingdom, but the expense of intentional [sic] calls means that those calls are brief and infrequent.
The Applicant’s parents came to Australia to visit him in April 2018. Their stay here was brief. Occasionally, and infrequently, I will facilitate one of the friends the Applicant has made since his arrival in Australia to visit him.
The Applicant has no family in Australia.
I am essentially the Applicant’s link with his family and friends. Only I enjoy regular contact with him.
On 29th June 2018 the Applicant’s and my applications (made on 13th October 2016) for residency were refused.
We have, by application filed on 9th July 2018, instituted review proceedings of the decision.
Whilst awaiting the outcome of the review process, I remain on a bridging Visa.
I am advised and believe that, as a result of the Applicant’s offending and predicament, it is very likely that our applications for review will be unsuccessful. If my application for review fails, I will have to leave the country within 30 days of the decision.
In the event that I am forced to leave Australia, the Applicant will be left isolated in custody. He will have no visitors and will enjoy only brief, infrequent international calls with me and his parents.
The Applicant’s offending will have resulted in our separation and ruined any prospect of our pursuing a life in Australia. He suffers as a result. He knows well that he is to blame for the likely loss of our opportunity to settle and build a life here. He dreads my (almost certain) departure, back to the United Kingdom and is consumed by the thought that he will likely have to serve a significant portion of his incarceration in my absence without my immediate support.
I am also advised and believe that, at the completion of his non-parole period, the Applicant will almost certainly serve in a custodial setting a term greater than that minimum term. He will in all likelihood will be taken from prison to a detention centre until his deportation. I have been advised, and believe, that the deportation procedure can take up to six months.
Both the applicant and Ms Lloyd are British nationals. They migrated to Australia in 2011 on a (now abolished) ‘457 visa’ (a Temporary Work (Skilled) (Subclass 457)) visa, and resided in Fitzroy. Until the visa’s expiration, the applicant worked full-time for four years with a marketing company. He and Ms Lloyd were refused permanent residency, however, having missed the deadline for lodging their applications. Thus, at the time of the applicant’s offending they were on bridging visas, so that the applicant was prevented from working. Whilst awaiting a review of the decision refusing their permanent residency, they lived off their savings and experienced financial stress.
The applicant’s offending occurred in September 2017. In his reasons for sentence, the judge described the offending in the following way:
On 1 and 6 September, the Australian Border Force detected MDMA concealed in the base of table lamps which had originated in Germany. Each of the two packages were addressed to a Mr John Hunt at Suite 130, 1A/400 King William Street, Adelaide. The gross amount of the MDMA in the two lamps was just over a kilogram.
Suite 130 is part of a facility at the Adelaide address which is a commercial form of post office box. It is run by a company called ‘Mail Boxes Etc.’ (MBE). The boxes, which MBE calls ‘suites’, are available for rent. When items addressed to suite holders arrive, they are placed in the addressee’s suite and the holder of the suite is then notified to come and collect them.
Suite 130 had been rented on 26 June 2017, when an application in the name of Tony Burns-Howell of an Adelaide address with accompanying mobile phone number and email address was sent by email to MBE. It was accompanied by credit card details for payment of the six month lease of the suite in the same name. The application was handwritten, but only the scanned copy was sent to MBE. The application included a photograph of Burns-Howell’s UK passport. The application form also nominated John Hunt as authorised to access the facility.
On 8 September 2017, police delivered the first consignment to Suite 130.
It was not collected. On 11 September 2017, the second consignment was also delivered to Suite 130. The delivery to MBE of the two consignments automatically generated emails to the email address which had accompanied the application for lease of the suite. That email address replied, explaining that the recipient was not currently in Adelaide but would pick up the packages in a few weeks. The email also sought a quote in respect of forwarding the packages to Melbourne.
On 18 September 2017, MBE provided a quote, and on 21 September the provided email address agreed to pay that price by credit card and asked that the packages be forwarded to an Arden Street address in North Melbourne, Victoria. MBE and the police arranged for the packages to be delivered to that address.
On 27 September 2017, [the applicant], purporting to be John Hunt, contacted TNT, the transport company that had been engaged by MBE to deliver the parcels to Melbourne, asking that TNT redirect the parcels to a place where they could be picked up. TNT redirected the parcels to Letterman’s Newsagency in Macaulay Road, North Melbourne, which operates a collection site for TNT’s customers.
Next day, on 28 September 2017, [the applicant] attended at the newsagency.
[The applicant] produced a licence bearing the name John Hunt and collected the two consignments. [The applicant] placed them in a car and drove away.
Soon after, while stuck in traffic in Parkville, police approached [the applicant’s] vehicle and arrested [him]. On arrest, [the applicant was] found with an ID bearing the name John Hunt with [his] photograph on it. [The applicant] made a ‘no comment’ record of interview. That day, a search warrant was executed at [the applicant’s] home and the police found, amongst other items, three mobile phones, nine SIM cards, $4,950 in cash in various locations and passports in [his] name and that of [his] girlfriend. No analysis of the accounts, email addresses or websites linked to the phones, SIM cards or laptop was relied upon in relation to the factual dispute that was raised upon the plea.
On the plea, the precise role of the applicant in the offending was a matter of dispute. The judge determined the factual dispute as follows:
Returning now to the matter which was in dispute. It was the prosecution case that I should infer that it was [the applicant], using the alias Tony Burns-Howell, who completed the handwritten application for Suite 130 in Adelaide in late June, and that it was [the applicant] communicating by email from the Burns-Howell Gmail address after that date that was notified of the packages’ arrival. As to this, it was common ground that the standard of proof was beyond reasonable doubt.
...
After reviewing the depositions and the submissions made on this matter, I am not satisfied beyond reasonable doubt that it was [the applicant] who conducted the various communications under the alias Tony Burns-Howell. I am not persuaded that the only reasonable inference to be drawn from the qualified support of the handwriting opinion, the geographical location of the credit card purchase and the use of the name John Hunt that it was [the applicant] who filled in the forms and conducted those communications. In my view, other reasonable explanations are not excluded.
It is, for example, common for there to be, in drug importation arrangements, other persons involved both here and overseas who arrange the importation and make arrangements for its collection, and who typically are nowhere to be seen when the collection is actually made.
...
As mentioned, no analysis of the email, internet and call history of the electronic devices recovered in the investigation was relied upon in support of the Crown’s submission. The matters referred to did not exclude the reasonable possibility that others were involved in setting up the suite and in communicating with MBE. It was not suggested that I should make my own assessment of similarity between the handwriting examples.
Despite that finding, it was nevertheless not in dispute that it was [the applicant] using the name John Hunt who contacted TNT to redirect the packages from Arden Street to the newsagency and that it was [the applicant] using the same name who collected them. Whilst I am not satisfied of the matters in dispute, by [the applicant’s] plea, [the applicant] admitted that, on 28 September 2017, [he] attempted to possess unlawfully imported MDMA in not less than a commercial quantity.
As to what steps [the applicant] took before that time in relation to the importation, as to whether others were involved and at what level, and as to what steps [he] had intended to take had it been successful, there is simply no evidence.
As the judge mentioned, on 1 September 2017 Australian Border Force (‘ABF’) officers detected a concealed foil packet containing a brown crystalline substance in the base of a table lamp during the x-ray examination of a consignment addressed to a Mr John Hunt at Suite 130 of an address on King William Street, Adelaide. On 6 September 2017, the ABF noticed similar anomalies in a second table lamp, also containing a brown crystalline substance in the base, and also addressed to Mr John Hunt at Suite 130. Subsequent analysis revealed the first consignment contained 498.9 grams of MDMA at 82 per cent purity, and the second consignment contained 502 grams of MDMA at 81 per cent purity. Thus the total gross amount in the two lamps was approximately 1.01 kilograms of MDMA, the total pure amount being 815.7 grams.
Plea and sentence
In submissions on the plea, the applicant’s counsel acknowledged that a term of imprisonment to be served immediately was the only available sentencing option, and announced that he would not be contending that an appropriate sentence would be less than three years. Counsel submitted, however, that the offending fell to be sentenced at the lower end of the scale[7] given the applicant’s good prospects for rehabilitation, lack of prior criminal record, good work history, contribution to the community, and continued support enjoyed from his family and friends. The applicant’s counsel also submitted that a longer than usual parole period should be considered to allow for the applicant’s rehabilitation under supervision. Counsel also said that he ‘was informed that [the applicant] will be deported upon the grant of parole’.
[7]Counsel relied on DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, 49–51 [207]–[215], 53 [224].
The prosecutor submitted that the judge could at least be satisfied that the applicant was motivated by profit, and that he was sufficiently trusted and involved so as to be able to contact the courier company in order to divert the drop off and then collect the consignment on his own.
In his reasons for sentence, the judge said that he had taken into account ‘all the matters raised on [the applicant’s] behalf in the course of the plea in mitigation of penalty’. He concluded that the applicant’s prospects of rehabilitation were ‘reasonably good’. Specifically, the judge also adverted to the applicant’s:
· early plea of guilty, which had utilitarian value and was evidence of remorse;
· otherwise good character, lack of prior convictions and ‘glowing character references’ from his partner, family, friends and business associates;
· background, being the son of hardworking parents living in a working class suburb;
· work and academic history, including his attainment of a degree in mathematics and logistics;
· history of substance abuse, including the occasional use of cannabis and party drugs at social occasions, and hallucinogens at music festivals;
· continued relationship with Ms Lloyd, whose character reference detailed his profound regret, difficulty with the prison environment and of her determination to support and assist with his rehabilitation upon release;
· assessment by a psychologist, who had discerned the presence of symptoms of anxiety and depression; and
· active participation in prison courses and his returning of a clear urine screen.
The judge also observed that
against all the matters to be taken into account in mitigation of penalty must be balanced the fact that this is a very serious offence as the maximum penalty fixed by parliament of life imprisonment shows. The damage the importation of drugs causes to our community, particular its young, is notorious. There is no evidence which explains your role in this matter beyond it being agreed that you diverted the delivery and from there collected it, thus performing an important role in the attempt to possess the imported MDMA. You committed this offence as an educated man of mature years, and profit is the only motive that suggests itself.
Submissions in this Court
With respect to ground A, counsel for the applicant in this Court submitted that the sentencing judge was made aware of the circumstances surrounding the applicant’s arrival in Australia with his partner. The applicant intended to migrate and make a permanent home in this country, but that opportunity was lost once the applicant was sentenced. Counsel submitted that the applicant’s likely deportation should have been, but was not, synthesised by the judge (properly or at all). An offender’s deportation may be relevant in at least two ways at the time of sentence: first, it may be relevant to the hardship of an offender’s incarceration; and, secondly, a sentencing judge should be alive to the additionally punitive nature of a sentence and to its destroying an offender’s opportunity and intention to make Australia his or her home.[8] The sentencing judge, counsel submitted, did not weigh in the applicant’s favour either implication, so that the sentencing discretion miscarried.
[8]Counsel cited Allouch v The Queen [2018] VSCA 244; Guden v The Queen (2010) 28 VR 288; and Da Costa v The Queen (2016) 307 FLR 153.
Finally, it was submitted — although, as formulated, ground A may not have been apt to capture these submissions — that the contents of Ms Lloyd’s affidavit are relevant to an appreciation of the true significance of facts which were in existence at the time of sentence. Ms Lloyd is the applicant’s only close personal contact in this country (visits from friends and other connections having fallen away), and remains the go-between for the applicant and his family in the UK. Should — as appears likely — Ms Lloyd be deported, the applicant will become further isolated, so that the burden of imprisonment will weigh more heavily upon him.
The respondent’s counsel submitted that it is clear from his sentencing remarks that the judge was aware of, and took into account as a relevant sentencing consideration, the fact that the applicant was a non-citizen who (he was told) would inevitably be deported upon release from custody. His Honour, counsel submitted, stated that he had been informed on the plea that the applicant would be ‘deported upon the grant of parole’, and remarked that the offending occurred at a time when the applicant was under financial stress as his visa status prohibited him from undertaking employment, since he had missed the deadline for lodging an application for permanent residency. Although the judge failed to refer specifically in his sentencing remarks to the effects on the applicant of the prospect of deportation, these were never articulated during the plea. All that was said was that the applicant would be deported. Notwithstanding that this is so, it is difficult to conceive that a very experienced sentencing judge would not have been aware of the broad mitigating effects of a prospect of deportation on an offender, particularly where, as here, it was raised as a mitigating factor, and not given weight to the fact. The respondent’s counsel submitted that the possible consequences of deportation are well known and the applicant’s intention to remain permanently in Australia would have been evident given his desire to obtain permanent residency.
As to ground 1, in contending that the sentence is manifestly excessive, counsel for the applicant submitted that the applicant had much going in mitigation. Having set out the relevant mitigating factors, counsel submitted that they entitled the applicant to greater leniency than was extended.
Counsel for the respondent submitted that the sentence was of ‘a severity appropriate in all the circumstances of the offence’.[9] The judge gave adequate weight to mitigating factors, and appropriately balanced these with the relevant sentencing principles for this offending. Counsel also drew the Court’s attention to a number of ‘comparative appellate sentences’ which, she submitted, helped ‘inform the range’.[10]
[9]See s 16A(1) of the Crimes Act 1914 (Cth).
[10]Counsel referred to Webber v The Queen [2014] NSWCCA 111; Lam v The Queen [2015] NSWCCA 143; DPP (Cth) v Gow [2015] NSWCCA 208; Hoang v The Queen [2018] VSCA 86; Rosales (a Pseudonym) v The Queen [2018] VSCA 130; DPP (Cth) v Masange and Kachunga [2017] VSCA 204; Ng v The Queen [2010] NSWCCA 232; R v Pham [2016] VSCA 259; DPP (Cth) v Merrill (a Pseudonym) [2015] VSCA 52; and Lau v The Queen [2011] VSCA 324.
The risk of deportation: ground A
As part of his plea, counsel for the applicant submitted:
Self-evidently [the applicant is] in a foreign country and in gaol in a foreign country and will be deported on his ultimate release on parole.
And also:
In those circumstances in my respectful submission a head sentence substantially lower than that contemplated as appropriate in … Kachunga[[11]] is appropriate on this prisoner and a significant disparity … because of the circumstances of being imprisoned, and I accept that being imprisoned in a foreign country it does not have weight in the context of the head sentence to be imposed, but it’s still a relevant matter Your Honour can take into account in the appropriate disparity between the head sentence and the minimum term being before eligible for parole.
[11]DPP (Cth) v Masange and Kachunga [2017] VSCA 204, [214].
It is plain that the judge took these submissions into account. Thus, in his reasons for sentence the judge said:
It was submitted on your behalf that a longer than usual non-parole [sic.] period should be considered to allow for your rehabilitation under supervision and I was informed that you will be deported upon the grant of parole.
In my view, counsel having mentioned the likelihood of deportation, and the judge having noted that the applicant ‘will be deported’, it is unlikely that the judge failed to take the well-known consequences of the prospect of deportation into account. Hence, I do not regard ground A as formulated to be reasonably arguable.
Under cover of ground 1 counsel was, as I have said, permitted to submit that, should Ms Lloyd be deported, the applicant will become further isolated, so that the burden of imprisonment will weigh more heavily upon him. It must be recognised, however, that, so far as, first, the prospect of deportation; secondly, the applicant’s service of his sentence in a ‘foreign’ country; and, thirdly, the fact that he soon may not be able to receive visits from Ms Lloyd; are all concerned, it is significant that the applicant will neither be imprisoned in an environment with an entirely alien culture and language — which may make the burden of imprisonment more onerous for other non-Australian nationals serving a sentence in this country — nor be liable upon completion of his sentence to be deported to a dangerous, hostile or unknown country.
Furthermore, I should add that, even had I considered ground A to be reasonably arguable, I would still have refused leave to appeal. In my view, there is no reasonable prospect that the Court would impose a less severe sentence than the sentence first imposed.
Manifestly excess: ground 1
Ground 1 is not reasonably arguable.
The contention that, when all relevant features — including the circumstances of the offence and the matters going in mitigation — are intuitively synthesised, the sentence imposed in this case is altogether outside the range of sentences open in the proper exercise of discretion, is untenable. As has been said many times, manifest excess is a conclusion which does not depend on the attribution of specific error. When all relevant factors are fed into the mix, either the sentence is plainly excessive or it is not.
True it is that the applicant was able to rely on a number of significant mitigating features. But the fact remains that he played an important role in the attempted possession of a commercial quantity of a border controlled drug, in circumstances where his principal motivation was profit. As far as I can see, there was not much that could be said to reduce his moral culpability, but there was a deal to be said about the need for general deterrence.[12] And insofar as there is anything to be gained by an examination of roughly comparable sentences passed in ‘comparative’ sentencing cases (so-called), reference to the cited cases strengthens my firm impression that the sentence imposed on the applicant is well within the appropriate range.
[12]See R v Nguyen (2010) 205 A Crim R 106, 126–8 [70]–[72]; Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, 681–3 [33]–[34]; Hoang v The Queen [2018] VSCA 86, [35], [40].
Conclusion
Neither ground is reasonably arguable.
Leave to appeal against sentence must therefore be refused.
EMERTON JA:
I agree.
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