Chong v the Queen [2019] VSCA 216

Trafficking in a drug of dependence (methylamphetamine)

[s 71AC(1) Drugs, Poisons and Controlled Substances Act 1981 ('DPCSA')]

Burglary [s 76(1) Crimes Act 1958]

Theft [s 74(1) Crimes Act]

Possession of equipment and substances for the purpose of trafficking drug of dependence

Trafficking in a drug of dependence - commercial quantity (ephedrine) [s 71AA(1) DPCSA]

Possess prohibited weapon without exemption/approval [s 5AA Control of Weapons Act 1990]

Total effective sentence: 10 years' imprisonment

6AAA Statement: 15 years' imprisonment with non-parole period of 10 years

2 The applicant has sought leave to appeal on the sole ground that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

3 For the reasons that follow, the application for leave to appeal will be refused.

4 During the period from 30 May 2017 until 23 November 2017, the applicant carried on a drug dealing business, in which he manufactured and sold methylamphetamine for profit.

5 The applicant initially resided between a number of addresses including a leased house in Bulleen, his brother's house in Bundoora and his parents' house in Doncaster East. On 22 July 2017, he arranged for an associate to lease a residential property in Ringwood North in the associate's name. The associate did not move into that property, rather the applicant used it to manufacture methylamphetamine.

6 The applicant imported from China and purchased from Bunnings materials used to assist in the manufacture of methylamphetamine. He sourced the precursor chemicals hypophosphorous acid and iodine, as well as ephedrine from unknown sources.

7 The applicant used two mobile phones to carry on his drug trafficking business during the offending period. The phone service with the number ending in 257 was registered in his name, while the one with the number ending in 094 was registered under the fictitious name of Andy Tang.

8 On 29 May 2017, police obtained a warrant to intercept the phone service with the number ending in 257. On 30 August 2017, police obtained a warrant to intercept both of the applicant's mobile phone services.

9 The intercepts revealed that the applicant arranged to meet with customers to sell methylamphetamine on a regular basis. Some sales involved small quantities for $50 or $100 while others involved full ounces (28 g) of methylamphetamine.

10 The exact amount of methylamphetamine trafficked during the offending period is unknown. However, the applicant was identified as arranging to sell three full ounces of methylamphetamine during this period, which is towards the upper middle range of trafficking simpliciter.

11 The applicant had a number of associates who assisted him in his drug trafficking and manufacturing business. Intercepted phone calls revealed that the associates discussed purchasing drugs from the applicant. The associates were also seen attending the Ringwood North property and one of the associates purchased items required for the manufacturing process for the applicant.

12 The conduct set out at [4]-[11] above constitutes charge 1 (trafficking in a drug of dependence).

13 In the early hours of 23 September 2017, the applicant entered an unoccupied residence in Ringwood East with the intention of stealing items within the house (charge 2, burglary). The applicant took various stamp collection albums from the house (charge 3, theft).

14 On 23 November 2017, police executed a search warrant at the Ringwood North property. The applicant was observed attempting to exit the house from a rear bedroom and was arrested. Cash totalling $1,441 was found in his pockets.

15 Equipment, prescribed substances and non-prescribed chemicals and substances were located in the house. The applicant possessed these items for the purpose of trafficking in a drug of dependence (charge 4, possession of equipment and substances for the purpose of trafficking in a drug of dependence).

16 The majority of items used to manufacture drugs were packed up and located within a bedroom. Black plastic sheeting was on the floor of the bedroom, the windows were blocked and an extraction fan and a charcoal filter system were in operation.

17 A total of 0.90 g of methylamphetamine was located in a plastic bag and a plastic container.

18 A number of items were seized from the house which contained methylamphetamine, including plastic buckets, a range hood, a glass bottle, a flask, an esky, an electric fan, scales, a metal bowl and metal apparatus.

19 A total of 785.80 g of ephedrine was located in a plastic bag inside a wardrobe in a bedroom (charge 5, trafficking in a commercial quantity of a drug of dependence). Notwithstanding that the amount of ephedrine located exceeded the threshold for a large commercial quantity (750 g), the prosecution proceeded with the lesser charge based on a commercial quantity (the threshold for which is 100 g) on the basis that the applicant did not have the requisite intention in respect of the large commercial quantity.

20 Police also located 2,056.40 g of a substance which contained hypophosphorous acid and 2,996 g of a substance that contained iodine.

21 Methylamphetamine can be manufactured from ephedrine in conjunction with hypophosphorous acid and iodine. The quantity of methylamphetamine that can be produced from 785.80 g of ephedrine is approximately 589 g.

22 A sword and an asp baton were also located in the house (summary charge 8, possessing a prohibited weapon without exemption).

23 On 23 November 2017, the applicant was interviewed by police. He told them that his mobile phone number ended in 257 but otherwise exercised his right to silence.

24 On 3 August 2018, on the morning of the contested committal hearing, the applicant pleaded guilty.

25 The applicant was 32 years old at the time of the offending and 33 at the time of sentencing.

26 The applicant was born in Melbourne to parents of Malaysian decent. He has an older brother and two younger half-brothers. His father died when he was one year old and he was raised by his mother and step-father. Up until the age of 10 the applicant believed that his step-father was his biological father. He learned that his step-father was not his biological father through overhearing a conversation between his mother and aunt.

27 The applicant's step-father was an alcoholic and was violent towards him and his older brother. His step-father forced the applicant to leave the family home when he was 22 years old. The applicant currently maintains a civil relationship with his step-father, for the benefit of his mother. He has the support of his mother, step-father and siblings.

28 The applicant was educated to Year 11. He then worked at a takeaway shop for six months and then at a restaurant for 12 months. Following this, he worked sporadically, including most recently as a handyman. He was not employed at the time of his arrest.

29 The applicant commenced drinking alcohol when he was 15 and began smoking cannabis at age 18. He commenced using methylamphetamine at 20 and used that drug habitually up until he was arrested for the present offending.

30 The applicant suffers from narcolepsy and in the past used drugs as a means of dealing with this condition. He also suffers from depression, anxiety, insomnia, asthma, anaphylaxis and chronic dermatitis for which he was prescribed medication.

31 The applicant had one long-term relationship with a woman. That relationship was characterised by drug abuse and ended when she was sentenced to prison for drug related offending.

32 The applicant was assessed by a psychologist, Gina Cidoni, who stated in her report that he had told her that he was remorseful for his offending, accepted that he has a drug problem and wished to remain abstinent.

33 While in custody, the applicant has undertaken a number of courses in order to address his drug problem. He has also developed skills, in particular welding. He works in the metal fabrication unit and makes cattle crushes, trailers and repairs various pieces of metal work in the prison. The applicant has achieved the status of 'essential prison worker'.

34 The applicant has a substantial criminal history which commenced in 2007. His prior offences include drug trafficking, drug use and possession, aggravated burglary, burglary, weapons offences, theft, dealing with proceeds of crime, handling stolen goods, driving offences, failure to answer bail and contravention of a community correction order ('CCO') and a community based order. His most recent prior offending was in July 2013.

35 The applicant has been convicted of drug trafficking on four prior occasions, most recently in August 2012. On that occasion he was sentenced to a CCO, which included treatment and rehabilitation conditions. He breached the CCO in July 2013.

36 The judge described the applicant's offending as 'most serious' and stated that his conduct must be 'firmly denounced'.[2] She found that the applicant had played 'the leading role in a rather sophisticated drug manufacturing business over a period of nearly 6 months'.[3] She stated that the clandestine laboratory set up by the applicant in a suburban house exposed those nearby to great danger due to the immensely volatile nature of such laboratories.

37 The judge accepted that the applicant's sale of methylamphetamine that he manufactured was 'toward the upper middle range of offending for trafficking simpliciter'.[4]

38 The judge regarded the trafficking in a commercial quantity of ephedrine as a serious example of that offence. She sentenced the applicant on the basis that he was in possession of the ephedrine for sale - rather than for the purpose of converting it into methylamphetamine - and that the offence was committed on one day only. However, she took into account that he was in possession of an 'immense quantity of ephedrine for sale' in the context that he 'was also manufacturing methylamphetamine, and apparently used ephedrine as one of the ingredients'.[5]

39 The judge described the applicant's role as 'a principal one' and noted that, although his drug operation was not a 'one-man band', it was 'not a large hierarchy.'[6]

40 The judge assessed the applicant's moral culpability as 'high'.[7] She said that it would have been even higher if he had not been addicted to methylamphetamine at the time of his offending. She stated that his addiction was not to such a high degree that he was not able to set up and maintain the fairly sophisticated drug manufacturing and selling operation. She considered that whilst his motivation was partly to feed his own drug addiction, he was 'substantially motivated by greed'.[8]

41 The judge took into account the applicant's criminal history and considered his prior convictions for drug trafficking to be most concerning. She stated that the applicant had 'been given the opportunity to rehabilitate on a number of occasions' by being placed on CCOs and receiving suspended sentences, but he often breached those dispositions.[9] She also took into account the fact that there was a 'fairly substantial' break of nearly four years between the applicant's most recent prior offending and the current offending.[10] However, she considered that the current offending appeared to be an escalation in his criminal conduct.

42 The judge allowed for a 'significant discount' in sentence on account of the applicant's guilty plea, as he had saved witnesses the time and trouble of giving evidence and saved the community the time and expense of contested proceedings.[11]

43 The judge considered that notwithstanding his expressions of remorse, the applicant had committed drug related offences repeatedly and, despite being drug affected at the time, the current offending was deliberate in nature. However, she gave 'some weight' to the applicant's expressions of remorse and insight.[12]

44 The judge assessed the applicant's prospects of rehabilitation as 'fair'.[13]

45 The judge placed moderate weight on specific deterrence and protection of the community, and gave strong weight to general deterrence.[14] She also had regard to the principles of totality and current sentencing practices.

46 The applicant focused primarily on charges 1 and 5 and relied on three matters in support of the manifest excess ground, namely sentencing statistics, the judge's assessment of the objective seriousness of the offending and the notional sentence she announced in accordance with s 6AAA of the Sentencing Act 1991.

47 The applicant submitted that where a sentence is obviously inconsistent with other recent sentences, it calls for scrutiny.

48 The applicant relied on Sentencing Snapshots published by the Sentencing Advisory Council for the offences of trafficking in a non-commercial quantity of drugs and trafficking in a commercial quantity of drugs for the period 2012-13 to 2016-17.[15] The first Snapshot shows that, in that period, 336 offenders were sentenced for a principal offence of trafficking in a non-commercial quantity of drugs and only seven of them were sentenced to 5 or more years' imprisonment. The median sentence was 2 years' imprisonment. The second Snapshot shows that, in that period, 173 offenders were sentenced for a principal offence of trafficking in a commercial quantity of drugs and only two of them were sentenced to 8 or more years' imprisonment. The median sentence was 4 years' imprisonment.

49 Based on these Snapshots, the applicant submitted that the sentences imposed on him in relation to charges 1 and 5 are well above the median for each of the offences and stood above almost all other sentences imposed for those offences in the relevant period.

50 One of the two cases in which a sentence of 8 years or more was imposed for trafficking in a commercial quantity of drugs in the relevant period was Gregory v The Queen.[16] According to the applicant, the circumstances of the present case are distinguishable from that case. Gregory is discussed below.

51 The applicant submitted that the judge erred in her assessment of the objective gravity of the offending on the basis that her finding - that the offence of trafficking methylamphetamine was toward the upper middle range of trafficking simpliciter - did not justify the sentence. Whilst he accepted that this finding was open, he contended that a sentence of 5 years' imprisonment should be reserved for offending that is considered to be at the upper end of the range or the most serious examples of that offending.

52 As to the charge of trafficking a commercial quantity of ephedrine, the applicant submitted that as he was charged on the basis that he trafficked in a commercial quantity of ephedrine on a single day, he should not have been sentenced to a term of imprisonment which is so inconsistent with the majority of sentences recently imposed for that offence.

53 The applicant submitted that the judge's s 6AAA statement that but for the plea of guilty she would have imposed a sentence of 15 years' imprisonment with a non-parole period of 10 years, supports the contention that the judge erred in her assessment of the objective seriousness of the offending. He argued that, if he had been found guilty by a jury, he could not have been lawfully sentenced to a total effective sentence of 15 years' imprisonment with a non-parole period of 10 years. According to him, this demonstrated that the judge gave too much weight to the objective seriousness of the offending.

54 The Crown submitted that the applicant's reliance on sentencing statistics and past sentences is problematic for a number of reasons, including that past sentences do not fix boundaries within which judges must sentence and that current sentencing practices are one factor among many in the determination of an appropriate sentence.

55 The Crown submitted that the judge did not mischaracterise the objective seriousness of the applicant's offending. It argued that taking into account the circumstances of the offending and the applicant's criminal history, including his prior convictions for drug trafficking, the sentence imposed on charge 1 was open to the judge.

56 The Crown argued that the applicant's contention that a sentence of 5 years' imprisonment for trafficking in a drug of dependence should be reserved for the most serious examples of that offence should be rejected as it pays insufficient regard to the maximum penalty.

57 In relation to charge 5, the Crown contended that the sentencing regime for trafficking offences is quantity based and the quantity of ephedrine trafficked by the applicant was at the very top end of a commercial quantity. Therefore, so it was said, notwithstanding the fact that the charge related to possession for a single day, the objective seriousness must be viewed as being very high.

58 As to the sentences for the remaining charges, the Crown submitted that they were within the sentencing range or were unremarkable.

59 According to the Crown, the total effective sentence imposed by the judge was also within the sentencing range and the non-parole period was unremarkable.

60 The Crown contended that the applicant's use of the judge's s 6AAA statement as a basis for arguing that she mischaracterised the seriousness of the offending is problematic. It argued that the notional sentence identified in the s 6AAA statement is one sentencing consideration and the question for this Court to consider is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.[17]

61 In my opinion, the manifest excess ground is not reasonably arguable.

62 The sentencing statistics upon which the applicant relied do not provide any information about the circumstances of the offending or of the offenders in the cases covered by the statistics. Accordingly, they have not assisted me in assessing whether the sentences imposed in relation to charges 1 and 5 are manifestly excessive.

63 This Court has frequently observed that bare sentencing statistics are of limited value in seeking to impugn the exercise of the sentencing discretion in a particular case.[18] Furthermore, current sentencing practices is one of a number of sentencing considerations but is not a controlling consideration.[19]

64 In Director of Public Prosecutions v Dalgliesh,[20] the High Court stated that a sentencing judge has a duty to impose a sentence that is just in all the circumstances of the offender's case and no sentence in a previous case can prevent the judge from discharging that duty.[21] So-called comparable cases do not set a mandatory benchmark or binding precedent as to the sentence that is reasonably open in a subsequent case.[22] A sentence is not manifestly excessive simply because it is similar to a sentence in another case that involved more serious offending or, conversely, higher than a sentence imposed in another case that involved similar offending.[23] However, that is not to say that current sentencing practices cannot assist in an assessment of whether a sentence in a particular case is manifestly excessive and thus not just and appropriate.[24]

65 The case of Gregory,[25] to which the applicant referred, does not assist him. In that case, the offender pleaded guilty to a charge of trafficking in a commercial quantity of methylamphetamine and was sentenced to 8 years and 6 months' imprisonment. The quantity of the drug trafficked was at least 500 g[26] and the period of the offending was eight months. The offender, who suffered post-traumatic stress disorder, was the principal in the enterprise and used intimidation and violence to enforce drug debts. This Court rejected the offender's contention that the sentence was manifestly excessive. It found that the offending 'was at the upper end of seriousness'.[27]

66 The Court stated that sentencing practices for the upper category of the offence of trafficking in a commercial quantity of a drug of dependence were 'plainly inadequate'.[28] It applied the principle that current sentencing practices constrain the sentencing discretion which, as discussed above, has been repudiated by the High Court in Dalgliesh. The Court said that, had the sentencing court not been constrained by that principle, a sentence in the range of 13-15 years would have been well within the range.[29]

[S]entences well into double figures would have been expected for [commercial quantity] trafficking offences where one or more of the following features was present:

• the quantity involved approached the [large commercial quantity] threshold;

• the offender was in charge of the trafficking business;

• the business was conducted for a substantial period;

• the offender pleaded not guilty; and/or

• the offender had relevant prior convictions.[30]

68 In Sharbell v The Queen,[31] this Court stated that past sentences for the offence of trafficking in a commercial quantity of a drug provide little guidance as to the future.

69 The statement from Gregory at [67] above is also relevant to the second limb of the applicant's submission that the sentences for charges 1 and 5 are manifestly excessive, namely that the judge erred in her assessment of the seriousness of his offending. All of the factors in that statement, other than the fourth factor, apply to the applicant in relation to charge 5 and they more than justify the judge's assessment of the seriousness of the applicant's offending for that charge. As submitted by the Crown - and conceded by the applicant[32]n the plea32 - the quantity of ephedrine was at the very top end of a commercial quantity for the purposes of sale. The applicant was in charge of the trafficking business. As the judge found, he was the principal of the drug operation and, although it was not 'a large hierarchy', it was not a 'one-man [33]nd'.33 Although the offending was limited to one day, as the judge found, it had to be considered in the context that the applicant was also manufacturing methylamphetamine, and apparently used ephedrine as one of the [34]gredients.34 The applicant had relevant prior convictions, namely four prior convictions for trafficking.

70 The second and fifth factors in the statement from Gregory at [67] above also apply to the applicant in relation to charge 1. Further, although the quantity of methylamphetamine that was manufactured and sold by the applicant is not known, the fact that he sold three full ounces during the offending period supports the judge's finding that it was towards the upper middle range of trafficking [35]mpliciter.35 Also, the offending was conducted for a period of nearly six months.

71 The applicant conceded that it was open to the judge to find that the offending the subject of charge 1 was towards the upper middle range of offending for trafficking simpliciter. However, notwithstanding that concession, he submitted that such a sentence should only be imposed for offending 'at the upper end of the range, or the most serious examples of trafficking simpliciter'. I reject that submission.

72 In R v Kilic,[36] the High Court dealt with the circumstances in which offending can be classified as falling within the 'worst category' of a particular offence. The Court said that what is meant by that phrase is that the offending in the relevant case is 'so grave that it warrants the imposition of the maximum prescribed penalty for that offence'.[37] The Court then referred to a 'spectrum' of seriousness for offences, as follows:

Where ... an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty ... a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being 'within the worst category'. It is a practice which should be avoided.[38]

73 In relation to charge 1, in the light of the principles set out in Kilic, the above discussion concerning the factors set out in Gregory and the maximum penalty of 15 years' imprisonment, the sentence of 5 years' imprisonment is unremarkable. Likewise, having regard to those principles, that discussion and the maximum penalty of 25 years' imprisonment applicable to charge 5, the sentence of 8 years' imprisonment for that charge is entirely appropriate.

74 The sentence of 3 years' imprisonment for charge 4 was well within the range of sentencing options available to the judge. Appended to the judge's sentencing remarks was a list of the equipment and substances that the applicant had in his possession for the purpose of trafficking in a drug of dependence. The fact that the list included 96 items extending over 4 pages is testament to the extensive and sophisticated nature of the applicant's illicit drug business.

75 The applicant's offending was organised and persistent. Having regard to his relevant prior offences and the judge's assessment that his prospects of rehabilitation were only 'fair', specific deterrence was an important sentencing consideration. So were general deterrence, denunciation and protection of the community.

76 The orders for cumulation made by the judge in relation to charges 2 and 4 had due regard to the principle of totality and were, in all the circumstances, modest. The total effective sentence and the non-parole period were well within the range of sentencing options available to the judge.

77 The applicant's reliance on the judge's statement under s 6AAA of the Sentencing Act is misplaced. In R v Burke,[39] this Court said the following about the relevance of such a statement to a contention that a sentence is manifestly excessive:

The 'notional' sentence announced in accordance with s 6AAA [of the Sentencing Act] is not part of the sentence imposed. No appeal lies in respect of the notional sentence. ...

The ground of manifest excess falls to be considered in relation to - and only to - the sentence actually imposed. A complaint about the sentence discount or the notional sentence identified in the s 6AAA statement is a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.[40]

78 In the present case, the judge gave appropriate weight to all the mitigating circumstances upon which the applicant relied including, in particular, his plea of guilty. There is nothing in the s 6AAA statement that indicates any error in the exercise of her sentencing discretion.

79 I accept that the applicant is able to call in aid significant mitigating factors. Apart from his guilty plea, those factors include his expressions of remorse, insight, medical conditions, family support and efforts at rehabilitation while on remand. However, those factors do not indicate that the sentences imposed by the judge are manifestly excessive. As the applicant's offending was serious and his moral culpability was high, had it not been for the moderating effect of those mitigating factors, the sentences would, undoubtedly, have been higher.

80 For the above reasons, the application for leave to appeal will be refused.

[1] DPP v Chong [2019] VCC 274 ('Sentencing remarks').

[12] Sentencing remarks [46], [59].

[14] Sentencing remarks [42], [59].

[15] See Sentencing Advisory Council, Sentencing Snapshot No 218: Trafficking in a non-commercial quantity of drugs (August 2018); Sentencing Advisory Council, Sentencing Snapshot No 219: Trafficking in a commercial quantity of drugs (August 2018).

[16] (2017) 268 A Crim R 1 ('Gregory').

[17] The Crown relied on R v Burke [2009] VSCA 60; (2009) 21 VR 471 ('Burke') in support of this contention.

[18] See, eg, Burgess v The Queen [2017] VSCA 59 [40]; Matheas v The Queen [2017] VSCA 330 [36].

[19] DPP v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [9], 450 [68] ('Dalgliesh').

[20] [2017] HCA 41; (2017) 262 CLR 428.

[21] Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [5], 449 [65], 452 [79], 454-5 [83]-[85]. See also Camara v The Queen [2019] VSCA 207 [34] ('Camara').

[22] Lee v The Queen [2018] VSCA 63 [89]; Blango v The Queen [2018] VSCA 210 [61] ('Blango'); Camara [2019] VSCA 207 [33].

[23] Hamid v The Queen [2019] VSCA 5 [56] ('Hamid'); Camara [2019] VSCA 207 [34].

[24] Blango [2018] VSCA 210 [61]; Camara [2019] VSCA 207 [34].

[25] (2017) 268 A Crim R 1.

[26] Gregory (2017) 268 A Crim R 1, 8 [26].

[27] Gregory (2017) 268 A Crim R 1, 4 [6].

[28] Gregory (2017) 268 A Crim R 1, 24 [100].

[29] Gregory (2017) 268 A Crim R 1, 25 [103].

[30] Gregory (2017) 268 A Crim R 1, 24 [98].

[31] [2018] VSCA 324 [5].

[32] Transcript of Proceedings (14 February 2019) 16-17.

[33] See [39] above.

[34] See [38] above.

[35] See [37] above.

[36] [2016] HCA 48; (2016) 259 CLR 256 ('Kilic').

[37] Kilic [2016] HCA 48; (2016) 259 CLR 256, 265 [18] (citations omitted).

[38] Kilic [2016] HCA 48; (2016) 259 CLR 256, 266 [19] (citations omitted). See also Hamid [2019] VSCA 5 [61].

[39] [2009] VSCA 60; (2009) 21 VR 471.

[40] Burke [2009] VSCA 60; (2009) 21 VR 471, 477 [30]-[31].