Duncan v The Queen [2010] VSCA 92

• Count 1: Trafficking in a drug of dependence on 8 June 2005 - not less than a large commercial quantity (MDMA or ecstasy) (under s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) for which the maximum penalty was life imprisonment) - 6 years' imprisonment;
• Count 2: Possession of a drug of dependence on 8 June 2005 (methylamphetamine) (under s 71(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) for which the maximum penalty was 1 year imprisonment) - 6 months' imprisonment;
• Count 3: Using false documents to open a bank account on 13 February 2004 (under s 81A(2) of the Crimes Act 1958 for which the maximum penalty was 10 years' imprisonment) - 12 months' imprisonment;
• Count 4: Obtaining financial advantage by deception between 13 February 2004 and June 2005 by using a banking facility under a false name (under s 82(1) of the Crimes Act 1958 for which the maximum penalty was 10 years' imprisonment) - 12 months' imprisonment.

3 It was ordered that six months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1, resulting in a total effective sentence of six years and six months and the Court fixed a non-parole period of three years' imprisonment.

4 The appellant appeals against the sentence on three grounds:

1. The individual sentence imposed on count 1 is, in all the circumstances of the case, manifestly excessive.
2. The individual sentence imposed on count 2 is, in all the circumstances of the case, manifestly excessive.
3. The total effective sentence imposed is, in all the circumstances of the case, manifestly excessive.

5 The appellant did not challenge the sentences imposed on counts 3 and 4[1] or the cumulation ordered in relation to the sentence imposed on count 3.

6 On 7 June 2005 the appellant contacted one George Cancer and ordered 4,000 ecstasy tablets which he arranged to collect from Cancer on the following day. The appellant in fact received 5,000 tablets from Cancer but paid for 4,000 tablets while the extra 1,000 tablets were received on credit to be paid for if the ultimate recipient wanted the extra 1,000 tablets (which would be returned to Cancer if these were not required). The conversation between the appellant and Cancer regarding the purchase of these tablets was recorded and the price of $15 per tablet was mentioned with the appellant indicating that he wanted to on-sell the tablets for $15.50 each. Shortly thereafter the appellant was arrested and police found in his possession 5,026 ecstasy tablets, cash comprising in excess of $11,000 and a New South Wales drivers licence in a false name and two mobile telephones.

7 The police subsequently searched the appellant's apartment and found some methylamphetamine. The total quantity of ecstasy (MDMA) seized was 1561 grams (see count 1) and the total amount of methylamphetamine found in the appellant's apartment was 2.75 grams (see count 2).

8 The judge said that trafficking in a large commercial quantity of a drug of dependence was a very serious crime indeed reflected by the maximum penalty of life imprisonment. The judge noted that the appellant had trafficked in the drug on one occasion only but the amount involved constituted a large commercial quantity. The judge referred to the devastating effects which flowed from the distribution of drugs and said that general deterrence was an important consideration in the sentencing process. The judge said that specific deterrence had a somewhat lesser weight given the steps that the appellant had taken to rehabilitate himself.

9 The judge referred to a number of matters in mitigation and his comments may be summarised as follows:

• The appellant pleaded guilty to the charges at the earliest possible opportunity and the sentences should reflect a discount for that reason.
• The delay which had occurred since the appellant's arrest on 8 June 2005 was inordinate and unacceptable and the prospect of a sentence requiring an immediate term of imprisonment had been hanging over the appellant's head.
• Any benefit which the appellant may have anticipated to have received from the transaction could only be described as modest - nevertheless the drugs were obviously to be sold to members of the public.
• The drugs found in the appellant's apartment were for his own use and the sentence imposed on that count would be concurrent with the sentence imposed on the major count.
• The appellant had obtained bail some seven days after his arrest and had taken positive steps thereafter to rehabilitate himself by engaging in full-time employment and by changing his lifestyle and he regarded the appellant's prospects of rehabilitation as reasonable.

10 The judge noted that the appellant was 44 years old. He referred to his history of employment in the building industry and his involvement in union politics. The judge summarised the significant character evidence called on behalf of the appellant.

11 The sentencing judge referred to what the Attorney-General had said, when introducing the relevant amendments to the Drugs, Poisons and Controlled Substances Act, in the second reading speech, namely:

The new offence of trafficking in a large commercial quantity will attract the Mr Bigs of the drug trade who operate at the top of the manufacturing and distribution hierarchy and who make large profits from trafficking in drugs.

On the evidence you do not fit any part of that description. In no way could you be described as a Mr Big of the drug trade ... As I said earlier, the potential profit, if indeed there was any profit at all, was to be modest. However, the offence seriousness remains high and the sentence imposed must be such as will send a loud and clear message to those who may be tempted as you were to deal in a large commercial quantity of a drug of dependence and that stern punishment is a likely consequence when apprehended.

...

Your crime, involving as it did, a single act of trafficking, albeit in a large quantity of MDMA, is nowhere near the upper end of the scale. Indeed, it is in my judgment towards the lower end of the scale of what is nonetheless a very serious offence.

...

I impose sentence on the basis that your offence, serious though it is, falls towards the lower end of the scale of that offence. There are powerful matters by way of mitigation to which I have referred in these reasons for sentence.

(The judge then referred again to the mitigatory factors and continued -)

In the circumstances I propose to order a much greater differential between the head sentence and the non-parole period than would ordinarily be the position to reflect the mitigatory factors to which I have referred, including your prospects so far as rehabilitation is concerned.

13 In relation to the sentence imposed on count 2, the appellant submitted that the quantity of drugs involved was minuscule and was for the appellant's own use and that current sentencing practice suggested that the appropriate sentence would have been one to two months or a fine. The sentence was manifestly excessive and, although it was wholly concurrent, it was a significant component of the overall sentence and therefore relevant to the non-parole period. The appellant submitted that the fixing of the non-parole period was therefore vitiated by error and the whole sentence was reopened as a result.[2]

14 In relation to the sentence imposed on count 1, the appellant submitted that the sentence imposed was manifestly excessive because it did not properly reflect the factors that the sentencing judge had himself described including the many mitigatory factors and the fact that the offence constituted an isolated episode that was 'out of character'.

15 In answer, in relation to the sentence imposed on count 2, the respondent submitted that the sentence 'needs to be looked at in the context of a person who has access to large quantities of drugs by reason of the conviction on count 1'. I will say at once that, in my opinion, this contention is inadmissible because it raises a matter that would be inappropriate to take into account, in the circumstances, in relation to count 2.

16 In relation to the sentence imposed on count 1, the respondent submitted that the sentence in fact imposed did reflect that the offence fell at the lower end of the range and was an appropriate sentence having regard to applicable considerations especially those of general deterrence. The respondent submitted that, after taking into account all matters pleaded in mitigation, the sentence imposed on count 1 was still clearly within range.

17 In my opinion, the sentence imposed in relation to count 2 was manifestly excessive. The drugs involved were for personal use and of a very small quantity. I accept the appellant's submission that the consequence is that the fixing of the non-parole period is vitiated by error and that the whole sentence is reopened. I would add however that I do not think that the sentence imposed on count 1 by this very experienced judge, who took into account all of the relevant matters, was itself manifestly excessive. I would accept the respondent's submission that the sentence imposed on count 1 was within range and, indeed, in my view, it was appropriate in all the circumstances.

18 I would allow the appeal and re-sentence the appellant as follows: on count 1, six years' imprisonment; on count 2, two months' imprisonment; on count 3, 12 months' imprisonment six months of which should be cumulative upon the sentence imposed on count 1; on count 4, 12 months' imprisonment. The total effective sentence of six years and six months would thus remain unaltered and I would still

fix a non-parole period of three years, noting, as the sentencing judge also noted that this results in a much greater than normal differential between the head sentence and the non-parole period.

[1] It is unnecessary to refer to the facts supporting counts 3 and 4 but they are summarised in the reasons of the sentencing judge.

[2] See Pope [2000] VSCA 108; (2000) 112 A Crim R 588, [29] (Callaway JA).