DPP v McInnes [2009] VSCA 144

2 The prosecutor tendered a written summary of his opening. The summary stated that on 9 August 2007, members of the police force were conducting surveillance on the respondent's house. One Luke Brodie visited the house. On leaving, his vehicle was intercepted and searched by the police, who found 100 ecstasy tablets. Brodie told the police that he had been purchasing from 100 to 500 ecstasy tablets a week from the respondent for approximately two months. The following day the police arrested the respondent while he was sitting in his car in a car park. The police found 3,430 ecstasy tablets in a sports pack on the back seat of the car, a further 10 tablets on the person of the respondent and cash in the sum of $2,640.

3 In the course of a record of interview the respondent was asked about the quantity of drugs in which he had trafficked and the period of time over which he had done so. The respondent said in answer to one question that he had been trafficking since 'a little bit before' 21 March 2007. In answer to another question he said that he would have trafficked 'in the vicinity of 3,300 per week.' A hand-written list was found in the possession of the respondent when he was arrested. The list contained various sums of money against names. The respondent explained that it was a list of persons from whom he was to collect money for the supply of drugs.

4 When the respondent was arrested, the police seized three mobile telephones. Calls intercepted on one of the telephones in the period from 2 to 10 August 2007 disclosed that the respondent had during that period trafficked in a total of 1,625 tablets.

5 In his record of interview, the respondent claimed that he was merely a courier. He was paid $500 a week by the person who supplied him drugs, whom he would not name. The respondent said that his supplier held him responsible for a debt of between $30,000 and $35,000, which was the result of the failure of a customer to pay the price of drugs supplied by the respondent. The respondent said he was paying off the debt.

6 The respondent said that his role was limited to counting out quantities of drugs as he was directed, delivering them and collecting payment. The Crown did not accept this explanation and relied upon the August telephone conversations, intercepted by the police, which indicated that the respondent was arranging transactions and played a leading role in the sale of drugs. The Crown conceded that the respondent bought the drugs from an unknown supplier to pass on to smaller intermediate suppliers for ultimate distribution to consumers.

7 The respondent is now 23 years old. A report by a clinical psychologist was tendered to the Court. The psychologist reported, presumably based upon what he was told by the respondent, that the respondent was educated to year 12. He excelled at the sport of basketball and attended the Australian Institute of Sport in Canberra for two months before going to Texas on a scholarship. He returned to Australia after 12 months to find that his parents had separated and his mother was living in a reduced, depressed state. The respondent obtained employment in a sports shop and then a traineeship in real estate for which he received a low wage, on which he struggled to survive.

8 After a plea, the respondent was sentenced to be imprisoned for a term of five years and a minimum term of two years was fixed before the respondent was to be eligible for parole.

9 The Director of Public Prosecutions has appealed against the sentence on the grounds that the sentence (including the non-parole period) was manifestly inadequate; and on two grounds alleging specific error. Those two grounds are:

1. The learned sentencing judge erred in finding that there had been a significant and inordinate delay in the prosecution of the respondent.
2. The learned sentencing judge erred in finding that it was only possible to find beyond reasonable doubt that the respondent trafficked in an amount in excess of one kilogram of MDMA particularly in the light of the concessions made by the respondent as to trafficking in at least 3.91 kilograms of MDMA.

It is convenient to deal first with the allegations of specific error.

10 The sentencing judge said that she was satisfied that 'there has been significant and inordinate delay in this case.'[1] It was submitted by the Crown that the lapse of 12 months from the arrest of the respondent to the imposition of sentence did not constitute an inordinate or significant delay. There was no contested committal, although the plea was reserved because of a dispute as to the amount of drugs in which the respondent trafficked. The respondent was arraigned and pleaded guilty on 31 July 2008.

11 In R v Merrett, Piggott and Ferrari,[2] the President, speaking of a delay of five years between the commission of offences and sentence, said:

There is, of course, a strong public interest in criminal conduct being investigated and prosecuted as quickly as is reasonably practicable. But the absence of an explanation for the delay could not, by itself, justify any greater reduction in the sentence than would be made in a case where the delay was satisfactorily explained.

The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. [3]

12 In the present case, while we think that the adjective 'inordinate' was inappropriate to describe the delay, the respondent did suffer as a consequence of the Crown's somewhat leisurely, if unremarkable, handling of a charge which was uncontested. The respondent, who had never previously been imprisoned, was held in custody on remand from the date of his arrest until sentence. He was assaulted twice and was racially abused. He had no access to educational and other rehabilitative activities available to sentenced prisoners. In the end, we do not consider that her Honour's misdescription displayed error. The delay, while not inordinate, was relevant.

13 At the hearing of the plea, the prosecutor advanced several different estimates of the quantity of drugs trafficked by the respondent. The respective estimates were calculated as follows:

(a) As noted earlier, Brodie said that he purchased between 100 and 500 tablets from the respondent each week for a period of two months. Assuming the lower figure, Brodie purchased 800 tablets. There was evidence in the depositions that 100 tablets weighed 27.7 grams. Accordingly, the respondent sold 221.6 grams of tablets to Brodie.

(b) The weight of tablets found in the possession of the respondent when he was arrested was 978.9 grams. In his record of interview, the respondent said that he would have trafficked in the vicinity of 3,300 tablets a week between 'a little bit before' 21 March 2007 and 10 August 2007. Assuming that 100 tablets weighed 27.7 grams, the prosecutor calculated that the respondent trafficked 20.1 kilograms.

(c) We referred earlier to the hand-written list of names and sums of money found in the possession of the respondent. This was said by the prosecutor to disclose dealing in 14,120 tablets based upon a price of $12.50 per tablet. Making the same assumption as to the weight of 100 tablets, the respondent was said to have trafficked 3.91 kilograms.

(d) The prosecutor said that in the intercepted telephone conversations there were references to 1,625 tablets sold to a person called Jeff. At a weight of 27.7 grams per 100 tablets, the prosecutor extrapolated the amount over a period of 22 weeks to produce a figure of 9.5 kilograms.

(e) Another estimate advanced by the prosecutor was 5.5 kg, made up of the 3.91 kg derived from the list, the weight of 978 grams constituted by the tablets seized on 10 August 2007 and the weight of the tablets represented by the debt of $30,000.

14 The sentencing judge was not satisfied beyond reasonable doubt as to the accuracy of any of the prosecutor's calculations. Subject to what follows, in our view her Honour was justified in reaching that conclusion. Uncertainty attended each of the calculations, for each depended upon assumptions or extrapolations which were speculative to some extent at least. For example, the calculation based upon the record of interview assumed sales at a constant rate, which was at odds with the respondent's statement that he trafficked in small quantities at the outset.

15 In his notice of appeal and written outline of argument, the Director effectively conceded that the sentencing judge was not bound to accept any of the hypotheses advanced by the prosecutor, save one. Her Honour ought to have found that the respondent trafficked in at least 3.91 kilograms of ecstasy. That submission was based on the following exchange between the sentencing judge and counsel for the respondent:

HER HONOUR: Well, what then does the Court fall back?

COUNSEL: Well the Court can fall back on that the lists indicate 3.91 kg.

Counsel for the respondent conceded in argument - properly, in our view - that this was indeed a concession that his client had trafficked in an amount of 3.91 kg of ecstasy.

16 In the event, however, it appears that the sentencing judge did not act upon the concession. Her conclusion was that the respondent trafficked 'in a large commercial quantity of MDMA in an amount in excess of 1 kg of that drug in substantial amounts.'[4] We take her Honour to have meant that the respondent's purchases and sales were - at least on occasion - in large quantities and that the total exceeded 1 kg by an unknown amount, at least by an amount which could not be established beyond reasonable doubt. Her Honour did not view the respondent as having trafficked in a substantial amount in excess of 1 kg, yet that is what counsel had conceded. We consider that her Honour erred in this respect. For the reasons expressed hereafter, we are of the opinion that the respondent should be resentenced.

17 In oral argument at the hearing of the appeal, counsel for the Director sought to go further than the concession made by the respondent's counsel. He sought to argue that, on the evidence, her Honour should have been satisfied, beyond reasonable doubt, that the respondent had trafficked in at least 5.5 kg of ecstasy. Counsel for the Director contended that, because the prosecutor had made the assertion during the plea that the amount was 5.5 kg, the respondent was on notice that this point might be raised at the hearing of the appeal.

18 We ruled that it was not open to the Director to raise, without prior notice, a different contention as to the quantity trafficked. These being quantity-based offences, the precise quantity trafficked is an important sentencing consideration.[5] In order to enable the Director's new submission to be properly ventilated, there would have to be a factual enquiry into the content of the evidence given at the hearing of the plea bearing on the quantity trafficked and also an examination of the depositions. New counsel may take a different view from counsel who has settled a written outline. Nevertheless, the party to the appeal will be bound by the content of the outline unless adequate notice is given to the other side, and to the Court, that there is proposed to be a change of submission.

19 There remains the contention that the sentence was manifestly inadequate.

20 At the outset of his submissions on the available sentencing range, counsel for the Director drew attention to the increase in the maximum penalty for this offence to life imprisonment. He foreshadowed a submission that the sentencing decisions provided to the sentencing judge by the prosecutor, while fairly representing the sentencing practices since the change in the maximum, did not adequately reflect that increase.

21 The Court pointed out that the Director's notice of appeal gave no indication of any such challenge to current sentencing practices. It was pointed out, further, that even if the Court were persuaded that current sentencing practices were inadequate, that conclusion could not be brought to bear in any re-sentencing, for the respondent had pleaded guilty no doubt acting on the assumption that he would be sentenced in accordance with current practices. Senior counsel for the respondent indicated he was taken entirely by surprise by the foreshadowed submission.

22 The foreshadowed submission was then withdrawn, properly in our view. If the Director proposes to advance arguments concerning the adequacy of current sentencing practices for an offence, this must necessarily be done on notice to the other party to the appeal.

23 The respondent could rely upon powerful mitigating factors. He was youthful. He had no prior convictions. The sentencing judge found that he was a 'young man of good character.'[6] He readily confessed to the police and pleaded guilty at an early stage.

24 In the course of his submissions, counsel for the respondent sought to raise additional factual matters said to relate to events that occurred when the respondent travelled to America on a sporting scholarship. The additional matters were that the respondent had suffered pancreatitis and, as a result of that illness, had missed a selection process in the United States for elite basketballers. As a result of missing that selection process, the respondent was unable to return and finish the second year of the scholarship, so was in that sense deprived of those opportunities. He became disillusioned in the United States because he had 'seen some awful things' while he was there. Against that background of illness, frustration in his basketball pursuits, and disillusionment, he returned home and was then confronted with the news that his parents had separated. Only the last matter - the separation - was before the sentencing judge.

25 Counsel conceded that, without the consent of the Crown, none of those new matters could be advanced in defence of the sentence imposed. That consent was not forthcoming. Counsel foreshadowed, however, that he would seek to put those matters before the Court in the event that we upheld the Director's appeal and proceeded to resentence the respondent.

26 Subsequently, counsel sought leave to file affidavit material to verify the additional factual matters. The grant of leave was opposed on the basis that the evidence before the sentencing judge (in the form of a report by a clinical psychologist), dealt comprehensively with the health issues affecting the respondent. No additional evidence was sought to be led before the judge, nor was the report said to be deficient or inaccurate in any respect.

27 We ruled that any resentencing of the respondent would be confined, in relation to those matters, to the account which the respondent gave to the clinical psychologist as set out in the report. If the respondent were permitted to raise new factual matters in relation to resentencing, that would have required a factual enquiry in which there would be new evidence which would apparently contradict the evidence relied upon by the respondent before the sentencing judge. There was no satisfactory way in which that factual dispute could have been resolved.

28 As to the respondent's role, he appears to have operated at one level above sales to consumers. The sentencing judge does not appear to have accepted the submission of counsel for the respondent that the respondent was a mere courier. Her Honour noted that in the record of interview the respondent admitted he was selling to persons who called at his home. She referred to the intercepted telephone conversations, which showed that the respondent was active in promoting and concluding sales of drugs. Her Honour did accept that the respondent owed money to his supplier and that 'in once sense it could be said that you received a salary'.[7] As noted earlier, the respondent said that his supplier treated him as responsible for a debt of between $33,000 and $35,000 owed by another for drugs and that he was paying off that amount from the $500 to $600 per week he received from the services he rendered to his supplier. Her Honour accepted that the respondent's role initially was that of a courier but considered that at a later time he became more active as a trafficker.[8]

29 There was debate in the course of the hearing of the appeal as to whether the use of the word 'courier' was appropriate. The label itself is of little assistance. The question is: what was the nature of the respondent's role? It was properly conceded by counsel for the respondent that his client was no 'mere courier'. He accepted that the respondent could be viewed as a species of agent acting for an unnamed principal - that is, he was delivering quantities of drugs which had been ordered by the principal's customer and was collecting money from those customers on behalf of the principal.

30 In the course of argument, counsel for the Director submitted that the sentencing judge had misapprehended the respondent's role. He relied upon the fact that in February 2007, the respondent engaged debt collection agents in connection with the debt of about $30,000 for which the principal apparently held him responsible. He also drew our attention to the transcripts of intercepted telephone conversations in August 2007. He submitted that the judge should have been satisfied, by inference from those facts, that the role of the respondent was not that of a commercial agent in the way we have described it, but that of a trader in his own right.

31 That proposition was not advanced before the sentencing judge. Had it been advanced, it would properly have been the subject of argument as to the facts and the inferences to be drawn from the facts. There was no ground in the notice of appeal advancing such an error on the part of the sentencing judge.

32 We ruled that the new submission could not be made. While there may have been a basis for the argument, it is simply not open to the party on an appeal (and we would say a fortiori in the case of the Crown, with its resources) to advance, without notice, a materially different case from that which is articulated in the notice of appeal and in the written outline of argument.

33 The scale of the respondent's dealings, and the time over which they occurred, resulted in trafficking in substantially more than a quantity for which the maximum sentence is life imprisonment. Recognising the harm which trafficking in large commercial quantities of drugs of dependence inflicts upon the community, and the view of the legislature of the gravity of the offence, we do not consider the sentence to be one which could have been imposed in the exercise of a reasonable sentencing discretion.

34 Sentencing judges are not concerned with the harms attributable to particular drugs of dependence. Thus, they should not compare the ill effects of one drug of dependence with another;[9] nor should they bring to bear their own perception of the harm wrought by a particular drug of dependence.[10] It is, however, both necessary and appropriate for sentencing judges to take into account - as a general sentencing consideration - that drugs of dependence represent a significant social evil: they damage lives, families and society as a whole. Traffickers in drugs prey upon the young, the weak and the vulnerable. The high maximum penalties fixed by Parliament reflect the community's abhorrence of this pernicious trade and a determination to punish severely those who profit from it.[11]

35 We referred earlier to the significant mitigating factors present in the case. Importantly, while the quantity was very substantial indeed, the respondent himself profited little, it would appear. As too often happens, the true profiteer is not before the Court.

36 We are also constrained by the principle of double jeopardy which applies when the Court resentences on a Director's appeal. The submission for the Director was that, according to current sentencing practices, the applicable sentencing range for the head sentence (without any reduction for double jeopardy) was 8 - 10 years.[12]

37 We would allow the appeal and resentence the respondent to be imprisoned for a term of six years and would fix a minimum term of three years' imprisonment before the respondent is to be eligible for parole.

[1] R v Ezra James McInnes (Unreported, County Court of Victoria, Judge Nicholson, 14 August 2008) ('Reasons'), [34].

[2] [2007] VSCA 1; (2007) 14 VR 392.

[5] R v Pidoto & O'Dea [2006] VSCA 185; (2006) 14 VR 269; R v Dominique [2009] VSCA 133, [5]-[7].

[9] R v Pidoto & O'Dea [2006] VSCA 185; (2006) 14 VR 269.

[10] Ibid [83]; R v D'Aloia [2006] VSCA 237; R v Karafilowski [2007] VSCA 156.

[11] R v Pidoto & O'Dea [2006] VSCA 185; (2006) 14 VR 269, [14].

[12] Counsel referred to DPP v Downing [2007] VSCA 154; R v D'Aloia [2006] VSCA 237; R v Duncan [2006] VSCA 239.