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[2019] VSCA 181
Court of Appeal (Vic)
2019-08-16
Mr J, Maxwell P, Forrest JA, Weinberg JA
Original judgment source is linked above.
DPP v Condo (Unreported, County Court of Victoria, Judge Mullaly, 10 April 2019)
CRIMINAL LAW - Appeal - Sentence - Crown appeal - Trafficking in commercial quantity of drug of dependence, dealing with proceeds of crime - Trafficking sentence 5 years 9 months - Total effective sentence 6 years, non-parole period 4 years - Whether manifestly inadequate - Whether sentence reflected uplift in sentencing practices - Quantity just below threshold for large commercial quantity - General and specific deterrence - Relevance of maximum penalty - Appeal allowed - Respondent resentenced - applied.
1 On 5 April 2019 in the County Court, the respondent pleaded guilty to one charge of trafficking in a drug of dependence (methylamphetamine), two charges of knowingly dealing with proceeds of crime and two counts of possessing a drug of dependence (methylamphetamine). He was sentenced on 10 April 2019 as follows:
Trafficking in a drug of dependence in not less than the commercial quantity
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
Section 6AAA statement:
8 years and 9 months' imprisonment with a non-parole period of 7 years
Ground 1: The sentence on charge 1, the total effective sentence and the non-parole period are manifestly inadequate.
Particulars
The sentences imposed:
(a) Failed to adequately reflect the objective gravity of the offending;
(b) Failed to give adequate weight to the principles of just punishment, denunciation, general deterrence and specific deterrence;
(c) Failed to give sufficient weight to the maximum penalty for charge 1.
3 The appellant did not raise any complaints regarding the individual sentences imposed on charges 2 to 5.
4 The respondent and two co-offenders (Vincenzo Brizzi and Saverio Casale) were arrested on 30 March 2017. All declined to comment when interviewed by police.
5 The respondent was a senior member of a drug syndicate led by Brizzi. Casale was also a member of the syndicate. The syndicate was involved in the trafficking of methylamphetamine on a large scale throughout Mildura and Red Cliffs. Members of the syndicate communicated with each other in code to obscure their activities.
6 Between September 2016 and April 2017, Victoria Police conducted an investigation into this syndicate. The investigation involved the use of telecommunication intercepts that targeted the respondent, Brizzi and Casale. Police also used tracking and listening devices installed in a car driven by the respondent. Police also undertook physical surveillance of numerous individuals in the syndicate. The respondent was first observed to be active in the syndicate on 16 December 2016.
7 The respondent's key trafficking activities include:
(a) obtaining large quantities of methylamphetamine with Brizzi;[1]
(b) storing large quantities of methylamphetamine and cash inside sections of PVC pipe that were subsequently buried at his property;
(c) supplying Casale on one occasion with 28 grams (one ounce) of methylamphetamine at a cost of $7,000;
(d) participating in supplying Casale with 28 grams of methylamphetamine on frequent occasions during the period of the police investigation. These transactions were occasionally on credit;
(e) supplying other customers with methylamphetamine for the price of $8,000 per 28 grams (some of whom were also supplied the drug on credit);
(f) supplying Andrea McCallum[2] with methylamphetamine;
(g) supplying women with methylamphetamine in exchange for sexual favours; and
(h) using specimen containers to store and traffick methylamphetamine.
8 On 4 March 2017, police arrested McCallum. This prompted concerned conversations between the respondent and Casale, and between the respondent and Brizzi. From then on, Casale looked elsewhere for his supply, but the respondent continued to traffick to lesser offenders.
9 On 17 March 2017, the respondent and Brizzi revealed in a covertly recorded conversation that they had buried methylamphetamine at the respondent's property. They subsequently discussed retrieving it. Later that day, Brizzi was observed at the respondent's property with a section of PVC piping. After the arrest of the respondent and co-offenders, police returned to the respondent's property and unearthed what was believed to be the same section of piping. It contained 846 grams of methylamphetamine (with purity of 84 per cent) and $165,100 in cash. By his pleas, the respondent accepted criminal responsibility for both the drugs and the money. It was accepted by the parties that the methylamphetamine (both trafficked and stored for trafficking) was mixed with some other substance.
10 As at March 2017, a commercial quantity ('CQ') of pure methylamphetamine could be constituted by not less than 100 grams and not more than 749.9 grams. Amounts of 750 grams or more constituted a large commercial quantity ('LCQ'). Additionally, when in a mixed form, a CQ of methylamphetamine was constituted by not less than 500 grams and not more than 999.9 grams. An amount of one kilogram and over constituted an LCQ.
11 By accepting a plea to trafficking in not less than the CQ, the appellant accepted that the respondent, during the identified period, trafficked in less than one kilogram of mixed methylamphetamine.
12 The precise quantity of methylamphetamine actually dealt with could not be established. The respondent's activities between September 2016 and March 2017 demonstrate, nevertheless, that he must have dealt in significant quantities. We consider that it must have been at the very top of the CQ range, just below a level appropriate for an LCQ. This conclusion was not disputed by the parties.
13 The respondent is 53 years old and was raised in Mildura. Apart from some criminal offending as a juvenile and being fined as a young adult for cultivation of a small number of cannabis plants, the respondent had not been involved with further criminal offending until the events the subject of these charges.
14 The respondent has four children. They continue to support their father. Following the breakdown of his marriage in 2003, he commenced using methylamphetamine. He continued using the drug until his arrest. Since his incarceration, the respondent has gained approximately 40 kilograms and this is a 'significant health concern'.[3]
15 The judge noted that the most serious offending was represented by charge 1 (trafficking in methylamphetamine in not less than the CQ).[4] He further stated:
Ice is a scourge throughout Victoria. Ice contributes to crime and not just crimes of dishonesty as users seek money to purchase this drug, but also to violent crime, that is violent drug fuelled crimes in homes, the streets and on the roads.
The courts regularly confront crimes committed by offenders where the explanation put forward is that the offender is addicted to ice. This drug is a corrosive force in our community. The courts must play an important role in dealing with this social problem by imposing stern deterrent sentences to those entrepreneurial drug traffickers who seek to profit from the misery this addictive drug causes.[5]
16 His Honour made the following observations when sentencing the respondent:
(a) The amount of 846 grams of methylamphetamine seized at the respondent's property with its high purity of 84 per cent was well above the CQ.[6]
(b) The many sales of significant amounts of drugs for thousands of dollars each time demonstrated the gravity of the respondent's offending.[7]
(c) The respondent's guilty plea came at a time when the more serious charge of LCQ trafficking was withdrawn.[8]
(d) The respondent had good prospects of rehabilitation, contingent, however, on his capacity to avoid abusing drugs.[9]
17 The judge further stated in his sentencing remarks:
I have examined other drug trafficking cases such as those of Gregory and Fernando which were provided to me by the prosecution. In the end I have done what is required in the task of individual sentencing in coming to the following sentences for [the respondent's] serious crimes committed by [him].[10]
18 This sentencing observation was prompted by the submissions of the prosecutor on the plea, who correctly directed his Honour's attention to Gregory (a pseudonym) v The Queen ('Gregory')[11] and Fernando v The Queen ('Fernando').[12] As the prosecutor pointed out, the Court of Appeal in those cases held that current sentencing practices for trafficking in a CQ of a drug of addiction were 'plainly inadequate' and needed to be uplifted. His Honour, in discussion with the prosecutor, observed about Gregory that 'this is all pre-Dalgliesh'.[13] The prosecutor correctly submitted that current sentencing practices were 'but one factor' in the sentencing mix. His Honour then said:
Yes, it's one factor but I think Dalgliesh got us to the point where there was some exposure of the focus on current sentencing practices by the Court of Appeal ... in a range of cases, perhaps including this. So ... I shouldn't especially concentrate on current sentencing practices here there and should be uplifted [sic]. What I need to do is look at the broad range of sentencing for a serious crime such as this ... and ensure that [the respondent] gets individualised sentencing.
19 It will be readily appreciated that the second last sentence in the above passage is either inelegantly expressed or inaccurately transcribed. If his Honour was saying - either in this passage or in paragraph 39 of the sentencing remarks quoted above - that Dalgliesh and its focus on individual sentencing has somehow dissolved the impact of the uplift called for in Gregory, then, with respect, he was in error. We note that the appellant did not contend error as a specific ground, although it was submitted that these remarks may explain manifest inadequacy. We consider it more likely that this very experienced judge has been inaccurately transcribed.
20 For the avoidance of doubt, however, we should make it clear that there is no tension between what this Court has said in Gregory and Fernando about the need for an uplift in current sentencing practices as they concern trafficking in CQs of drugs of addiction, and the need for individualised sentencing as expressed in Dalgliesh and earlier decisions such as Elias v The Queen.[14] Section 5 of the Sentencing Act 1991 requires a sentencing judge to have regard to current sentencing practices along with other factors as part of any sentencing exercise. This reflects the need for predictability and consistency in sentencing. While the uplifted sentencing practice is not a 'controlling factor', it cannot be ignored. It remains a relevant factor in every sentencing exercise of this kind.
21 The appellant submitted that a sentence of five years and nine months' imprisonment on charge 1 was manifestly inadequate. The appellant directed us to the 25-year maximum penalty for this offence and again to Gregory, where this Court observed that the 2017 sentencing practices for trafficking offences were 'plainly inadequate'[15] and that 'sentences well into double figures would [be] expected for [CQ] trafficking offences'[16] in cases with similar circumstances.
22 The appellant further submitted that the trafficking of drugs, in particular methylamphetamine, was a prevalent offence,[17] which meant that the weight to be afforded general deterrence should be increased. The respondent participated in a 'sophisticated, systematic and substantial distribution of drugs' that harmed the community for his own profit. To impose a term of imprisonment on charge 1 that was approximately 25 per cent of the maximum penalty indicated that the judge had failed to give proper weight to the maximum penalty, the gravity of the offending, and the principles of general deterrence, denunciation and punishment. The inadequacy of the sentence imposed on charge 1 was reflected in the inadequacy of the total effective sentence and the non-parole period.
23 The respondent submitted that, while it could be said that the sentence on charge 1 was 'very lenient', it was not manifestly inadequate. Similarly, the total effective sentence and non-parole period were also not manifestly inadequate. We were reminded of the stringent test that confronted the Director of Public Prosecutions ('Director') on a Director's appeal.
25 This appeal is brought by way of s 289 of the Criminal Procedure Act 2009. The Director may appeal against a sentence if she considers that there is an error in the sentence imposed and that a different sentence should be imposed, and she is satisfied that the appeal should be brought in the public interest. These provisions were considered in DPP v Karazisis,[18] in which the majority (Ashley, Redlich and Weinberg JJA) observed:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[19]
The Court will be astute to enforce the stringency of this test.[22]
27 In Zhuang, the Court went on to refer to the decision of the High Court in Dinsdale v The Queen,[23] in which Gleeson CJ and Hayne J explained that manifest inadequacy was a conclusion, not an expression of reasons. Manifest inadequacy, like manifest excess, will be plainly apparent and is not dependent upon the identification of specific error in reasoning by the sentencing judge.[24]
28 We have concluded that the sentence imposed on charge 1 is manifestly inadequate. While the maximum sentence is only a factor - amongst many to be taken into account in this sentencing exercise - it is always a yardstick[25] and, in a quantity-based sentencing regime, an important factor. For reasons that we have stated, the quantity actually trafficked or held by the respondent for the purposes of trafficking must have been perilously close to the LCQ threshold of one kilogram mixed. Additionally, the trafficking business was active and profitable over a four-month period, and the respondent was towards the top of the organisational hierarchy.
29 In this Court in Gregory, after referring to the maximum penalty for CQ trafficking, the Court stated:
It would therefore be expected - and Parliament must be taken to have intended - that there would be a spread of sentences across the statistical range. In particular, sentences well into double figures would have been expected for CQ trafficking offences where one or more of the following features was present:
• the quantity involved approached the LCQ 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.[26]
30 As we have observed, Gregory and Fernando were brought to his Honour's notice on the plea. In our view, any attention to individualised sentencing must necessarily have had in sharp focus the maximum penalty, the respondent's role in the drug enterprise, the quantity of the drug actually transacted and the period over which the offending occurred.
31 Naturally, the judge was required as part of the same process to take into account the mitigating factors which, in short compass, amounted to a relative lack of prior convictions, potentially poor health, qualified prospects for rehabilitation and a solid utilitarian benefit from the plea of guilty.
32 His Honour's reasons for sentence were comprehensive:
33 We respectfully agree with every one of these sentencing remarks. We consider, however, that his Honour's conclusions on the balance to be struck between sentencing purposes are not reflected in the sentence imposed on charge 1. It is plain, in our view, that the head sentence - five years and nine months, which is 23 per cent of the maximum penalty - was wholly inadequate for this active senior participant in the pernicious trade he chose. The Director's appeal is allowed.
34 Accordingly, we will substitute a sentence on charge 1 of nine years and nine months. This will be the base sentence. All other sentences and all orders for cumulation will remain. The total effective sentence will be ten years. The minimum period before parole eligibility will be seven years. Pre-sentence detention is declared to be 869 days. Our s 6AAA statement will be directed at the total effective sentence; but for the respondent's plea of guilty, we would have imposed a total effective sentence of 11 years and six months with a minimum period before parole eligibility of eight years and six months.
35 The respondent is therefore resentenced as follows:
Trafficking in a drug of dependence in not less than the commercial quantity
Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
Section 6AAA statement:
11 years and 6 months' imprisonment with a non-parole period of 8 years and 6 months
[1] There was no evidence of how the applicant and Brizzi sourced the methylamphetamine.
[3] DPP v Condo (Unreported, County Court of Victoria, Judge Mullaly, 10 April 2019) ('Reasons').
[13] DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428 ('Dalgliesh').
[14] [2013] HCA 31; (2013) 248 CLR 483, 494 [27].
[15] Gregory (2017) 268 A Crim R 1, 24 [100].
[17] Haddara v The Queen [2016] VSCA 168, [66], [69], [71].
[19] Ibid 662-663 [127] (citations omitted).
[25] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 372 [30]-[31].
[26] Gregory (2017) 268 A Crim R 1, 24 [98] (citation omitted).
DPP
Condo [2019] VSCA 181
(2010) 31 VR 634
(2017) 262 CLR 428
(2013) 248 CLR 483
(2000) 202 CLR 321
(2005) 228 CLR 357