Tiong v The Queen
[2016] VSCA 257
•25 October 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0128
| CHIONG TECK TIONG | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and CAVANOUGH AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 September 2016 |
| DATE OF JUDGMENT: | 25 October 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 257 |
| JUDGMENT APPEALED FROM: | [2016] VCC 833 (Judge Cannon) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking in drug of dependence (2), dealing with proceeds of crime – Possession for sale – Quantities of two drugs found in offender’s possession – Whether sentences on lesser charges (18 months, 4 months) manifestly excessive – Whether cumulation manifestly excessive – Quantity trafficked – Offender’s role – Possession of second drug represented additional criminality – Current sentencing practice – Median sentence of no assistance – Sentences reasonably open – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms N Kaddeche | Turnbull Lawyers |
| For the Respondent | Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P:
I have had the advantage of reading in draft the reasons for judgment of Cavanough AJA. I would make the orders which his Honour proposes, for the reasons which he gives.
His Honour’s reasons include substantial portions of the reasons of the sentencing judge. As is apparent from those extracts, the judge’s reasoning was careful and cogent, and paid proper attention both to the general sentencing considerations and to the particular circumstances of this offence and this offender. Unsurprisingly, no specific error is alleged. In such circumstances, it will always be difficult to show that it was not reasonably open to the judge to come to the conclusion which she did.[1]
[1]R v Stuttard [2006] VSCA 112 [26].
Finally, Cavanough AJA has noted the prosecutor’s reliance on the median sentence for this offence, as revealed by the relevant Sentencing Snapshot produced by the Sentencing Advisory Council.[2] For the reasons given by this Court in Director of Public Prosecutions v Walters (a pseudonym),[3] however, reference to the median sentence for an offence cannot assist a sentencing judge in determining the appropriate sentence in the case at hand.
[2]See [17] below.
[3][2015] VSCA 303.
The median sentence for an offence is ‘an accidental or contingent statistic’.[4] It is simply the statistical end-product of the series of sentences for the particular period covered by the Snapshot. Importantly, the median is not a measure of offence seriousness. As the Court said, it is ‘a misconception to view the median sentence as representing the sentence which would be imposed for an offence of “mid-range seriousness”’.[5]
[4]Ibid [30].
[5]Ibid [31].
CAVANOUGH AJA:
On 16 June 2016, following pleas of guilty, the applicant was convicted in the County Court of three offences, and was sentenced as follows:
Charge on Indictment
Offence Maximum Sentence Cumulation 1 Trafficking in a drug of dependence – methylamphetamine (Drugs Poisons and Controlled Substances Act 1981 s 71AC) 15 years 30 months’ imprisonment Base 2 Trafficking in a drug of dependence – cocaine (Drugs Poisons and Controlled Substances Act 1981 s 71AC) 15 years 18 months’ imprisonment 5 months 3 Dealing with property suspected of being proceeds of crime (Crimes Act 1958 s 195) 2 years 4 months’ imprisonment 1 month Total Effective Sentence: 3 years imprisonment Non-Parole Period: 2 years Pre-sentence Detention Declared: 508 days 6AAA Statement: 5 years’ imprisonment with a non-parole period of 3 years and 6 months’ Other orders: Forfeiture order.
Disposal order.
The applicant seeks leave to appeal against the sentences imposed on charges 2 and 3, but not against the (base) sentence imposed on charge 1. Although he makes no separate challenge to the total effective sentence or to the length of the non-parole period, he seeks, in effect, a consequential reduction of both, on the basis of his challenge to the sentences on charges 2 and 3. He submits that the sentences on those charges should be set aside; that he should be re-sentenced on those charges; that new sentences, wholly concurrent with the sentence on charge 1, should be imposed; and that a lesser non-parole period should be fixed accordingly.
Specific sentencing error is not alleged. The sole ground relied upon, in relation to each of the two charges in question, is that the sentence was manifestly excessive.
Circumstances of the offence
On the plea hearing, the Crown tendered a document entitled Summary of Prosecution Opening outlining the basis upon which the charges were brought and other relevant circumstances. The applicant accepted the Summary as providing an appropriate factual basis for sentencing.
Having regard to the Summary and to the further course of the plea hearing, the learned County Court judge, in her sentencing remarks, gave the following description of the circumstances of the offence, being a description with which the applicant does not quibble on this application for leave to appeal:
At about 1.20 pm on Friday 23 January 2015, you and a friend, Thanh Do, attended at the Punt Hill Apartments, 7 Yarra Street, South Yarra (the Apartments). You stayed overnight and Thanh Do went to his home.
The next day at about 10.30 am you and Thanh Do checked out of the Apartments.
While you were checking out, the apartment manager went to the apartment which you had occupied to check its condition. He noticed a strong smell of ammonia or disinfectant coming from the room and that there was a pot on the stove with a sieve on top of the pot. He believed that the room had been used to manufacture amphetamines and contacted the Prahran Police Station.
Police arrived shortly afterwards and searched Thanh Do’s vehicle which was parked immediately outside the apartments.
You were asked whether any items in the car belonged to you and you pointed out a bag containing clothing and said that nothing else belonged to you.
One item – a ‘book’, which was really a ‘lock box’, was seized by police for further investigation and you were allowed to leave the scene.
The lock box, which was disguised by a book cover, was taken to the Monash Criminal Investigation Unit where it was unlocked and the contents examined. Inside the lock box were found the following items:
(a) paperwork which was identified as belonging to you;
(b) 1x Glad snap lock plastic bag containing white crystals;
(c) 4x medium zip lock plastic bags containing white crystals;
(d)1x small zip lock bag containing 10 small zip lock bags each containing white powder; and
(e) $6,285 cash in assorted denominations.
I was shown photos of these items which were tendered in evidence at the plea hearing.
At about 11.20 am on Sunday 25 January 2015, police arrested you outside the Apartments and they searched you. Police found $8000 cash in the front left pocket of your shorts. They then had a conversation with you. You said that you had borrowed the money from a friend of your mother’s.
The money was seized.
You were arrested and taken to the Oakleigh Police Station for interview. During the interview, you denied owning the lock box or its contents.
Forensic analysis revealed that five of the plastic bags seized contained a total of 386.6 grams of 90 per cent pure methyl-amphetamine (347 grams).
The smaller plastic bags within the larger bag were found to contain a combined total of 10.1 grams of 20 per cent pure cocaine.
Therefore, each of the substances were in excess of a traffickable quantity, which is at least 3 grams for each substance. Your possession of the drugs in these amounts is regarded by the law as prima facie evidence of trafficking.
The prosecution relied upon the trafficking provisions and quantity provisions as well as the way in which each of the drugs (methylamphetamine and cocaine) were packaged as proof of the allegations that you were trafficking each drug of dependence. By your pleas of guilty to each of the charges on the indictment, you accept that you were trafficking in these drugs.
By your plea of guilty to the summary charge, Charge 3, you also admit to being in possession of property suspected to be proceeds of crime, which is a rolled up charge taking in the two substantial sums of cash found on two different days — the first amount being in the lock box with the drugs and the list of names with phone numbers et cetera. Therefore, the money found by police on 25 January was not a loan from a friend of your mother’s as you told police.
You were remanded in custody on 25 January 2015. Pre-sentence detention, as at the date of the plea hearing on 8 June, was 500 days.
Mr Tiong, your offending is serious, especially Charge 1 where the quantity involved is at the higher end for traffickable quantity. Indeed, you were in possession of a commercial quantity of methamphetamine as I understand it. However, the prosecution do not allege that you had the necessary state of mind to found the more serious charge and I sentence you on the basis of trafficking simpliciter. The point to be made is that the quantity in your possession, insofar as Charge 1 is concerned, was most significant, placing your offending at the higher end of seriousness insofar as quantity is concerned. However, I also sentence you on the basis of trafficking on one date which is what the Prosecution alleges in relation to Charges 1 and 2.
Your Counsel said that the money found was your payment for your role as a courier in respect of the offending. I have some difficulty with this, in circumstances where the first wad of cash was found in the lock box with the drugs and list of names, while the second wad of cash was found in your pocket several days later.
I am unable to determine precisely what your role was in this trafficking enterprise in all of the circumstances but, whatever it was, it was undoubtedly an important one in the distribution of the drugs found in your possession.[6]
[6]DPP v Tiong [2016] VCC 833 (‘Reasons’) [4]–[23].
The applicant’s personal circumstances
In the County Court, counsel then appearing on behalf of the present applicant handed up a defence outline of plea submissions dated 3 June 2016; a written character reference for the applicant from his brother who lives in Malaysia; a bundle of certificates from the Kangan Institute showing that the applicant had completed certain courses in kitchen operations and cleaning operations whilst in custody; a certificate of attendance at a Prison Legal Education & Assistance Court Readiness Program; a certificate of completion of a ‘Release Related Harm Reduction Program’; a certificate of completion of a six hour AOD & Ice Effects Program; a bundle of ‘Notification to Prisoner of Assay Result’ forms showing that the applicant had on each occasion tested negative in relation to a range of drugs, including amphetamines and cocaine; and an undated letter to the County Court Judge from the applicant (which was prepared with the assistance of another prison inmate, but signed by the applicant).
The applicant adduced no other evidence on the plea. In particular, the applicant himself did not give evidence, notwithstanding that her Honour gave his counsel a warning that she was not necessarily prepared to act on certain assertions that had been made on behalf of the applicant from the bar table (see below).
The learned County Court judge made the following observations relating to the applicant’s personal circumstances. (Again, the applicant has not challenged the accuracy of any aspect of what her Honour said in this regard):
I was told that you were addicted to ice at the time that you engaged in this offending, that you had drug and gambling debts, as you were also addicted to gambling. No evidence was placed before me in support of these assertions. Apparently, you have been able to give up drugs whilst in custody without assistance. I gave your Counsel an opportunity to provide some documentation in respect of this aspect — in the nature of notes taken by custody officers or medical officers who have observed your withdrawal from drugs. After taking instructions from you, your Counsel did not take advantage of this offer. I make no adverse inference in this regard. However in the end, I sentence you on the basis that, if you were addicted to drugs at the relevant time, you were able to function sufficiently to be in possession of drugs that you were apparently addicted to and to handle large sums of money. In any event, drug and gambling addictions do not lessen your moral culpability — it’s just that your moral culpability may be seen as even higher if you were offending for sheer profit.
…
I was told that you came to Australia in order to study hospitality in circumstances where you had worked for a number of years at your parents’ noodle shop in Malaysia. However, I was told that you fell in with a bad group in the context of your marriage having failed, shortly after you arrived here, and due to feeling lonely here. Your peers introduced you to drugs and you apparently became addicted to methylamphetamine, using this daily. I understand that you were working long hours at a butchers’ business and found that the drug helped you to stay awake. You also developed a serious gambling problem and accrued debts for gambling and drugs, apparently turning to trafficking in order to repay debts and fund your drug addiction.
Mr Tiong, you had the privilege of coming to Australia to study. Many others do not enjoy such a privilege but are treated as criminals, locked in detention for doing nothing more than trying to find refuge and a better life here. Within a number of months you were no longer studying and then you turned to this offending. I must say that this appears to be a familiar pattern with a number of drug offenders nowadays-coming in from overseas, abandoning studies and committing drug offences. However, I do not sentence you on the basis that you came here in order to commit these offences.
Your Counsel submitted that your time has been and will be harsher because you face the inevitable prospect of deportation when you complete your gaol term. He said that you had planned to build a life in Australia. As I said in discussion at the plea hearing, your expectations of remaining here were somewhat unrealistic when you chose to drop out of your studies within months of commencing them. Also, you are looking forward to returning to your young child who you have missed. In the end, I make very limited allowance for such hardship.
I allow for hardship that you suffer in gaol because you are isolated from family and friends and no longer have any contact with your child in Malaysia. While you chose to leave your child some years ago, you apparently had some Skype contact with her before your incarceration. You have some command of English but I accept that your skills in this regard are somewhat limited which will add to the hardship that you suffer compared to other prisoners. I also factor in that this is your first time in gaol and that you have been subjected to harsh lockdown conditions whilst you have been on remand.
Also in your favour I take into account your plea of guilty and the stage at which it was made. You ran a contested committal hearing which is your right, however the discount you receive will not be as great as if you had entered your plea of guilty at an earlier stage. I still allow for a fairly significant discount in the sentence you would otherwise receive as you have saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of running a trial. The stance that you took as at that time — that is, as at the time of the committal hearing, is not consistent with remorse. However, I accept that you have since developed a level of remorse and insight in respect of your offending which is evident from your letter to me.
I take into account your background: You were brought up in Malaysia. In your letter to me you said that you were raised in a loving family. You went to school until you were 15, then entered the workforce in order to help your family in their noodle shop business. Your parents are still fully supportive of you and you have a close relationship with them.
You came to Australia in 2012 to undertake a hospitality course but, as I was told, you abandoned your studies a number of months after you started.
You were married but you divorced in 2014 after you discovered your wife was having an affair, shortly after you left Malaysia. You have one child from your marriage who is still in Malaysia.
You have no prior convictions and your deportation is inevitable once you are released from gaol, although this might mean that you spend time in a detention centre before finally leaving. I cannot speculate as to how long you might be detained before leaving Australia. You have not used drugs since being incarcerated, and you supplied drug screens to show this. You have undertaken a number of courses whilst in gaol. I have read a letter from your brother, who attests to your otherwise good character. In view of these matters, I assess your prospects of rehabilitation as good and I only need to give minimal weight to specific deterrence and protection of the community.[7]
[7]Ibid [24], [26]–[34].
The applicant’s submissions
In his written case in support of his application for leave to appeal, the applicant submitted that, whilst any instance of trafficking in a drug of dependence is conceded to be a serious offence, offending of the type alleged in charge 2, by reference to the quantity of the drugs trafficked, is routinely dealt with in the Magistrates’ Court; and that it was only by virtue of charge 1, and the larger quantity of drugs referable to that charge, that the offending covered by charge 2 had been dealt with in the County Court. He submitted that in cases where an offender has no prior criminal history and can rely on a sentencing discount for a plea of guilty and is being dealt with for offending of the type alleged in charge 2, dispositions consisting of the imposition of a financial penalty or a Community Correction Order (‘CCO’) would be common in the Magistrates’ Court. What was imposed for charge 2, he submitted, was a sentence ‘approaching the jurisdictional limit of sentences that could be imposed for a single charge in the Magistrates’ Court’.
Similarly, the offending the subject of charge 3 would, he submitted, routinely be dealt with in the Magistrates’ Court and dispositions below that of immediate imprisonment would routinely be imposed in the applicant’s circumstances.
The applicant’s written case continued:
The Applicant was able to call in aid the following matters in mitigation:
(a) the utilitarian benefits of his plea of guilty;[8]
(b) Current sentencing practices;[9]
(c) previous good character and absence of criminal history;
(d)the onerous conditions in custody at the Metropolitan Remand Centre following the prison riot; and
(e)his isolation in custody given the absence of any family in Australia and language barriers.
In these circumstances, the sentence of 18 months’ imprisonment for charge 2 and 4 months’ imprisonment for charge 3 were outside the range of sentences that could be justly imposed for the offending when regard is had to sentencing practice. That is, those sentences were manifestly excessive and should be set aside.
[8]Phillips v The Queen (2012) 37 VR 594.
[9]Sentencing Act 1991 s 5(2)(b).
During the oral hearing before this Court, the applicant’s counsel clarified that the applicant was not suggesting that a CCO would have been appropriate in this particular case (having regard to all of the circumstances, including the fact that the applicant was facing deportation to Malaysia).
The applicant’s counsel noted that, during the hearing in the County Court, neither side had referred to any specific prior cases as comparable cases. In the County Court, the prosecutor when asked about ‘current sentencing practices’ handed up to the Judge a ‘Sentencing Snapshot’ relating to non-commercial trafficking. The prosecutor informed the judge that the median sentence for non-commercial trafficking was ‘a head sentence of two years and nine months with a minimum non-parole period of one year and six months.’ (On the assumption that the Snapshot being relied on was that published in August 2014,[10] the median sentence — as the principal sentence for this offence — was actually two years and six months. But nothing turns on this.)
[10]Sentencing Advisory Council, Sentencing Snapshot No 161: Trafficking in a non-commercial quantity of drugs (August 2014). The more recent Snapshot for this offence was not published until June 2016.
Counsel for the applicant briefly addressed three prior decisions of this Court to which reference had been made in the respondent’s written case, namely McNaughton v The Queen,[11] Pollard v The Queen[12] and Dordevic v The Queen.[13] In McNaughton, a sentence of 18 months’ imprisonment had been imposed for trafficking in cocaine where the quantity of cocaine was not clear. In Pollard, a sentence of 2 years’ imprisonment had been imposed for trafficking in 44 grams of cocaine. In Dordevic, a sentence of 15 months’ imprisonment had been imposed for trafficking in an amount of 5.5 grams of cocaine. The respondent had submitted in its written case that these three cases demonstrated that 18 months’ imprisonment on charge 2 was not outside current sentencing practices and was within the range open to the County Court Judge. In response to this, counsel for the applicant noted that the respondent itself had said in its written case that comparable cases can only be relied on as a general guide. [14]
[11][2014] VSCA 174 (‘McNaughton’).
[12][2015] VSCA 138 (‘Pollard’).
[13][2016] VSCA 166 (‘Dordevic’).
[14]Hudson v The Queen (2010) 30 VR 610, 617 [29]–[32]; see also Quarrell v The Queen [2011] VSCA 125; Short v The Queen [2016] VSCA 210 [59].
Counsel for the applicant accepted that, ultimately, the main point on which she relied was the proposition that charges 2 and 3 were of a kind that would routinely be dealt with in the Magistrates’ Court where, according to the submission, a person like the applicant (in short, a first offender who pleaded guilty) could generally expect to be dealt with in a considerably more lenient way.
In her reply to the respondent’s oral submissions, counsel for the applicant made two further points. First, she noted that the County Court Judge had not been able to determine the specific role which the applicant had played in the drug trafficking. Second, counsel asserted that, in the present case, there was nothing to rebut the presumption of concurrency which flowed from s 16(1) of the Sentencing Act 1991.
Consideration
In admirably concise submissions, counsel for the applicant has said everything that could be said in support of this application for leave to appeal. I would grant leave but dismiss the appeal.
Specific error not being suggested, the only issue raised by this application is whether the sentences arrived at by Judge Cannon on charges 2 and 3 were reasonably open to her.[15]
[15]R v Pham (2015) 90 ALJR 13, 24 [56]; McPhee v The Queen [2014] VSCA 156 [11].
In my view, the sentences imposed on charges 2 and 3 were reasonably open to her Honour.
It is true that, if charges 2 and 3 had stood alone, they might have been prosecuted in the Magistrates’ Court and the sentences imposed might have been lower.
A similar argument was advanced in Pollard[16] in relation to a sentence of three years’ imprisonment imposed in the County Court for an offence of trafficking 5.2 grams of methylamphetamine. This Court was persuaded to reduce that sentence to a sentence of six months’ imprisonment. However, the principal reason given by this Court was that the sentence was anomalous in comparison with another sentence which had been imposed on Mr Pollard. In particular, the sentence of three years’ imprisonment for trafficking a quantity of only 5.2 grams of methylamphetamine contrasted starkly with a sentence of exactly the same length imposed on him for trafficking 444.5 grams of methylamphetamine.[17] Moreover, in Pollard, this Court noted, without apparent concern, a submission made by the Crown to the effect that ‘there are instances in which courts have imposed sentences of three years for trafficking small quantities of methylamphetamine’.[18]
[16][2015] VSCA 138 [9].
[17]Ibid [19]–[22].
[18]Ibid [14].
In the present case, as in Pollard, the offending the subject of the sentences in question was more serious because it did not stand alone. The offending the subject of charges 2 and 3 arose out of a larger factual matrix, from which charge 1 also arose. This (among other things) distinguishes the present case from El Achkar v The Queen,[19] to which reference was also made during argument. In El Achkar, there were only two charges against the accused, and each charge would routinely have been heard in the Magistrates’ Court. This Court referred to that circumstance in the course of accepting Mr El Achkar’s submission, and the Crown’s concession, that the sentence imposed on Mr El Achkar in the County Court had been manifestly excessive. [20]
[19][2016] VSCA 209 (‘El Achkar’).
[20]Ibid [13].
By contrast, in the present case, the conduct the subject of charges 2 and 3 was inextricably tied up with the conduct the subject of charge 1. Viewed as a whole, Mr Tiong’s conduct was so serious that it could not appropriately have been dealt with in the Magistrates’ Court.
Even if charges 2 and 3 had been brought in the Magistrates’ Court, the statutory maximum penalties would have remained 15 years’ imprisonment and two years’ imprisonment respectively, notwithstanding that the Magistrates’ Court would not have been able to impose a sentence greater than two years’ imprisonment on either charge.[21]
[21]Hansford v His Honour Judge Neesham [1995] 2 VR 233.
Although under the quantity-based statutory sentencing regimes presently in force in Australia, it is not appropriate for a court to distinguish between particular drugs of dependence in terms of the extent of the harm caused by their trafficking and use,[22] it remains true that trafficking in any drug of dependence, even if not on a grand scale, is to be regarded as a serious crime that causes great harm, as the courts have explained repeatedly over many years.[23]
[22]See R v Pidoto (2006) 14 VR 269; Adams v The Queen (2008) 234 CLR 143; R v Pham (2015) 90 ALJR 13, 21 [36] (French CJ, Keane and Nettle JJ); Haddara v The Queen [2016] VSCA 168 [44]–[60].
[23]Moran v The Queen (1987) 31 A Crim R 248, 254; R v Kalache (2000) 111 A Crim R 152, 201 [192]; see also R v Williams [2005] VSCA 274 [26]; R v Tabone (2006) 167 A Crim R 18, 24 [22]; Simpson v The Queen [2006] NSWCCA 117 [16]; R v NE [2015] ACTSC 352 [55]–[56]; DPP v Apostolopoulos [2016] VSCA 201 [31], [40]; DPP v Nguyen [2016] VCC 197 [13]–[16].
The County Court judge was not satisfied that Mr Tiong was a mere courier. Her Honour was unable to determine precisely Mr Tiong’s role, but, in an unchallenged finding, her Honour said that Mr Tiong’s role ‘was undoubtedly an important one in the distribution of the drugs found in [his] possession’.[24] Her Honour was entitled to give this circumstance significant weight, notwithstanding, so far as charge 2 was concerned, the relatively small amount of cocaine involved.[25]
[24]Reasons [23].
[25]R v Pham (2015) 90 ALJR 13, 20–1 [35]–[37].
The applicant’s counsel did not seek to support the applicant’s claim of manifest excess by reference to any comparable cases. By contrast, the Crown was able to point to the sentences which had been imposed in the above-mentioned cases of McNaughton, Pollard and Dordevic.
The applicant does not suggest that the County Court judge omitted to take into account any of the five factors personal to him which are set out above, nor any other relevant factors. The weight to be given to relevant factors in the process of instinctive synthesis was a matter for the County Court judge. I am not of the view that I would have given more weight than her Honour did to any of the factors which favoured the applicant. Even if I had been of such a view, that circumstance, alone, would not have established that her Honour’s weighting of the same factors was wrong.[26] Nor, in all the circumstances, do I regard the individual sentence of 18 months on charge 2 or the individual sentence of 4 months on charge 3 as being heavy, much less as being very heavy. Again, even if I had thought the sentences very heavy, manifest excess would not, without more, have been established. In R v Pham, Bell and Gageler JJ said:[27]
The exercise of the discretion that the law reposed in Judge Tinney did not yield a single correct sentence.[28] It is only if the sentence is found to be ‘unreasonable or plainly unjust’ that the challenge of manifest excess succeeds.[29] Manifest excess is a conclusion, relevantly in the context of sentencing for this offence, that the sentence is manifestly too long.[30] To observe that a sentence is ‘very heavy’ when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencer’s discretion.
Likewise, in McPhee v The Queen Redlich and Priest JJA said:[31]
Every single human situation is unique, and the sentencing judge’s instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences. … In order for an argument of manifest excess to be successful, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[32]
[26]R v Pham (2015) 90 ALJR 13, 24 [56].
[27](2015) 90 ALJR 13, 24 [56] (citations in original).
[28]Pearce v The Queen (1998) 194 CLR 610, 624 [46]; Markarian v The Queen (2005) 228 CLR 357, 371 [27].
[29]House v The Queen (1936) 55 CLR 499, 505.
[30]Dinsdale v The Queen (2000) 202 CLR 321, 325 [6].
[31][2014] VSCA 156 [8] (citations in original).
[32]Hanks v The Queen [2011] VSCA 7 [22].
In my view, the individual sentences on charges 2 and 3 are unexceptionable. What remains, then, is the question whether the orders for cumulation made in relation to charges 2 and 3 rendered the sentences on one or other or both of those charges manifestly excessive. In my view, they did not.
Counsel for the applicant fairly acknowledged that there was some tension between her submission that consideration should be given to what sentences might have been imposed in the Magistrates’ Court on charges 2 and 3 had those charges stood alone and, on the other hand, her submission that no cumulation on charges 2 and 3 was warranted because of their close connection with the subject matter of charge 1. Counsel accepted that, in a sense, she was trying to have it both ways.
Further, counsel very fairly accepted that the substantial sum of cash involved in charge 3 related to sales of drugs other than the drugs the subject of charges 1 and 2; and that, therefore, some cumulation, at least, was warranted in relation to charge 3. The cumulation ordered was only one month. In my view, nothing further needs to be said in relation to the appeal insofar as it relates to charge 3.
I turn now to the order for cumulation of five months in relation to charge 2.
Although the subject matter of charge 2 was related to the subject matter of charge 1, it represented significant additional criminality. Charge 2 related to cocaine, as distinct from methylamphetamine. The cocaine was packaged separately and differently. Almost certainly, it was destined, at least in part, for customers different from, and additional to, Mr Tiong’s methylamphetamine customers. The situation is comparable with that which obtained in McNaughton, where Priest JA was dealing with an accused who had been in possession, for sale, of six different types of drugs. Referring to a particular charge which related to the possession of ecstasy, Priest JA said:
Its possession for sale, given that it was a distinctive drug in the appellant’s cornucopia, deserved separate recognition in the sentencing process. [33]
[33][2014] VSCA 174 [61].
The Drugs, Poisons and Controlled Substances Act 1981 refers expressly to each of cocaine and methylamphetamine as distinct drugs, and it distinguishes between them in terms of traffickable quantities and commercial quantities. For sentencing purposes, trafficking in cocaine is to be regarded as being as serious as trafficking in any other scheduled drug of dependence, including methylamphetamine.[34]
[34]R v Pidoto (2006) 14 VR 269; Adams v The Queen (2008) 234 CLR 143; R v Pham (2015) 90 ALJR 13, 21 [36]; Haddara v The Queen [2016] VSCA 168 [44]–[60].
The quantity of cocaine involved in the present case may not have been great, but it was additional to the large quantity of methylamphetamine being trafficked by Mr Tiong. The cocaine was being trafficked in the same elaborate, disguised fashion.
It is implicit in the sentences imposed by her Honour that she considered that there was good reason to depart from the presumption of concurrency in relation to charge 2. Again, this was a matter committed (by s 16 of the Sentencing Act 1991) to the discretion of the sentencing judge.[35] The applicant, rightly, made no submission that the effect of the cumulation ordered by her Honour in respect of charge 2 offended the principle of totality.[36] The amount of cumulation on charge 2 (5 months) was plainly open to her Honour having regard to the additional criminality involved.
[35]See R v Lanteri [2006] VSC 225 [99].
[36]Cf R v Nguyen (Unreported, Supreme Court of Victoria Court of Criminal Appeal, Crockett, Southwell and Teague JJ, 24 October 1991); Postiglione v The Queen (1997) 189 CLR 295, 307–8; R v Hennen [2004] VSCA 42 [31]; R v Lanteri [2006] VSC 225 [98]–[102]; Peters v The Queen [2013] VSCA 222 [7]; Jomaa v The Queen [2014] VSCA 103 [45]–[52].
For these reasons, I would grant leave to appeal but dismiss the appeal.
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