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[2021] VSCA 141
General information, not legal advice.
Court of Appeal (Vic)
2021-05-25
Mr J, Priest JA, Forrest JA
Original judgment source is linked above.
[2019] VCC 2174 (Judge Gucciardo)
CRIMINAL LAW - Appeal - Sentence - Trafficking in a drug of dependence in a commercial quantity - Manifest excess - Sentence of seven years' imprisonment with non-parole period of four years and six months for commercial quantity trafficking not manifestly excessive - Individualised justice - Need to balance sentencing considerations - Role of current sentencing practices in sentencing exercise - Consideration of 'uplifting' sentencing practices not a controlling factor in sentencing exercise - Proper application of in light of - Finding as to appellant's role in trafficking enterprise in absence of evidence - Whether open to find appellant was principal in trafficking enterprise where no positive evidence but absence of evidence of involvement of others - ; , ; , , , considered; , - Leave to appeal refused - Appeal dismissed.
2 BTD is an industrial solvent which, when ingested, metabolises into GHB. GHB is an illegal drug sometimes used as a 'party drug' in the dance and club scene. A commercial quantity of BTD is two kilograms and above.[3] It was undisputed that the appellant possessed approximately 279 kilograms of BTD. The maximum penalty for this offence is 25 years' imprisonment.
3 The appellant was sentenced to seven years' imprisonment with a non-parole period of four years and six months. Pre-sentence detention of 169 days was declared.
4 On 7 May 2021, the appellant was granted leave to appeal on one ground, of manifest excess, and refused leave on a ground that alleged that the judge had erred in concluding that the appellant was a principal in the drug enterprise (the 'role ground'). Undeterred, the appellant now seeks to re-litigate the role ground and add a further ground. The three grounds that now comprise this appeal/application are as follows:
Ground 1: The learned sentencing judge erred in assessing the role of [the] Applicant in the criminal enterprise.
Ground 2: The learned sentencing judge erred in finding that the principles outlined in Gregory v The Queen (2017) [268] A Crim R 1 in respect of cases of trafficking in a commercial quantity approaching the large commercial quantity threshold had application in this matter.
Ground 3: The sentence on Charge 1 and the non-parole period are manifestly excessive having regard to, in particular, the Applicant's lack of prior convictions and reasons for offending.
5 As we have indicated, leave to appeal was refused on ground 1, granted on ground 3, and is now sought on the added ground 2.
6 In his reasons for sentence the judge summarised the appellant's offending:
In April 2018 a consignment consisting of nine barrels was detected by Australian Border Force. The drug task force began an investigation into this cargo. It was an importation supposedly of a substance described in accompanying paperwork as Glyoxal. Preliminary analysis showed it to be 1,4-butanediol, an industrial solvent which when ingested metabolises into GHB in the body. It is a relatively cheap drug increasingly being used recreationally as an alternative to ice or other like drugs.
The shipment was coming from China. A formal analysis confirmed it as
1,4-butanediol, with an estimated quantity of 279 kilograms. A commercial quantity of 1,4-butanediol is 2 kilograms and above. The purity was not determined. The substance was ordered from Shanghai New Material Tech Company. The consignee was a company named Print Together Pty Ltd, a business in Carnegie. This consignee was referred to in the airway master bill by false address. A false telephone number and a fictitious name was attached to it.
In March 2018 you had attended at a logistics company, Pro Global, and collected a consignment also purportedly on behalf of Print Together and spoken to Pro Global's director, Mr Chu. You asked to be contacted upon arrival of the next consignment. You gave your name as John and gave your phone number. This phone had been established in your name.
On 16 April 2018 you contacted Mr Chu three times and enquired about a consignment for Print Together. At about 5 pm that day police attended the premises of Wholesale Logistics in Westmeadows and arrested you. You had just taken delivery of the nine barrels which contained 1,4-butanediol. You turned up with a ute and you were endeavouring to fit the barrels in the rear tray.
Upon a search of the vehicle police found paperwork in relation to the consignment and [a] mobile phone. Asked about the consignment you told police you had received an anonymous call from an unknown male who had asked you to collect it and that subsequently you had received paperwork through the mail pertaining to its delivery.
Although you gave police a residential address[,] when police spoke to the occupants, who were your sister and her family, she stated that you had not [lived there] for some years. Investigators extracted data from the phone that you had used and discovered text messages in which you discussed trafficking in 1,4-butanediol, in terms of quality, prices and transactions, indicating you were trafficking in the substance. Print Together was not at the address given and you had never been employed by it. That company did not use chemical products. It had never dealt with chemical factories or employed private delivery drivers.[4]
7 No other offenders were identified as being implicated in the appellant's offending.
8 The appellant submitted in his written case, and orally on this appeal/application, that the judge erred in concluding that the appellant was effectively the principal in this particular drug operation. In his reasons for sentence the judge made the following observations:
Much of the plea was taken up with the question as to your role. It was forcefully put that the evidence was consistent with your role as a courier and it was submitted that I should consider you as merely in such a role. I [do] not accept that submission for reasons I made clear on the plea hearing and which are clear in my view beyond reasonable doubt. The texts which I have just mentioned are powerful evidence of the context which sheds light on your role. The documentation details, which pertain to communications involving you, elevate your role beyond that of a courier.
It was alternatively put that you were trafficking on behalf of another or others as some sort of directed underling. There was no evidence of this, except your assertion which the jury must have rejected.
Although there was no evidence of other accoutrements, such as firearms, sums of cash or storage facilities and access thereto or record books, and it was put that you were only to receive $1,000 for this pickup as an expectation of yours, the central contention in the trial was that this consignment was yours to deal with. That is to be used at your disposal to [traffic] to others. That was the basis of the verdict on the charge of trafficking. I am satisfied beyond reasonable doubt that your role was significantly greater than that of a courier.
I note that unlike in the case of Arici v The Queen [2019] VSCA 228, there was in this case no prosecution concession that the evidence could not exclude the fact that Arici was not the primary organiser or distributor. Here rather it was contended that you had such a role. In Arici there was agreed characterisation of two co-accused as either sitters or couriers, there was no such agreed characterisation in this case. This was your enterprise. This may not have been a drug business involving many others or any others and was most likely a one man operation, but the evidence demonstrates it was yours and it was well planned. It is amply demonstrated by the evidence that $1,000 was not going to be your reward, but substantially much more given the quantity of drugs involved.
This was an enterprise pursued for financial reward with apparent callous indifference to the harm which [drugs] of dependence, like butanediol, cause to those who use them and to the wider community. You clearly regarded the rewards potentially available as justifying taking the risk of very severe punishment.[5]
9 The appellant submitted that the preponderance of evidence did not allow the judge to conclude beyond reasonable doubt that the appellant was, in fact, the principal in this operation. In particular, the appellant emphasised that:
10 In short, the appellant contended that the prosecution had not mustered sufficient evidence to establish that he was a principal, and the judge could not have been satisfied of any more than that the appellant was a 'directed underling'.
11 The respondent, both at the sentencing hearing and in this appeal/application, took issue with this contention. It was submitted that, on all the evidence, the appellant was shown to be much more than a 'directed underling' or mere courier. This was the appellant's one-man operation, and not altogether unsophisticated.
12 In our view it was open to the judge to conclude beyond reasonable doubt that the appellant was running a one-man operation. Whilst there is some force in the appellant's submission that there is no evidence of certain activities that one would expect of a principal in such a large importation, the evidence that is present is telling. In particular, we refer to the following:
13 These facts, together with the further fact that there was no objective evidence of any involvement in the movement of the BTD by any other criminally-associated person, are ample in our view to justify the judge's finding that the appellant was a principal in this very large importation. The only other evidence of the involvement of others in the importation was the appellant's assertion to police that he was acting at the behest of some unnamed caller for payment of $1,000. On the evidence that we have reviewed, the judge was entitled to reject this weak and objectively unsupported assertion.
14 Leave to appeal on this ground must be, once again, refused.
Ground 2 - Application of Gregory v The Queen
15 This ground alleges a sentencing error in applying the principles outlined in Gregory v The Queen.[6]
16 At [13] and [14] of the reasons for sentence the judge stated that he had
taken into account in setting the sentence the line of authority from Gregory v The Queen ..., in which the court discussed the spread of sentences expected across the statistical range and the expectation of a certain level of sentence where certain factors or features are present. Some of those are present here. Not all of them. Those that are present I take into account in this sentence.
If the sentences for trafficking in a drug of dependence not less than a commercial [quantity] have been plainly inadequate, as the Court of Appeal in Gregory indicated, [then] these factors must be taken into account to arrive at an appropriate sentence. They are: the quantity involved, the period of trafficking, the plea of not guilty, your role and prior history.[7]
17 This, the appellant contended, was an application of Gregory, a case which had been specifically disavowed by this Court in two subsequent judgments. Lytras v The Queen[8] and Roxburgh v The Queen[9] were decided in the light of the High Court's statement in Director of Public Prosecutions v Dalgliesh[10] that current sentencing practices cannot be treated as a 'determinative' or 'controlling' factor in the exercise of the sentencing discretion.[11] In these post-Dalgliesh judgments this Court has clarified, so the submission went, that Gregory was confined to its facts, and that it is
wrong for an intermediate appellate court to state prescriptively the range of sentences that would be appropriate for offending of a particular character in such a way as to fetter the discretion of a sentencing judge. Justice [requires] greater individualisation, in accordance with the particular facts of each case.[12]
18 While the appellant acknowledged that Lytras and Roxburgh had been decided six to nine months after the judge published his reasons in this case, it was contended that the two decisions nevertheless meant that, since Dalgliesh, it was clear that 'individualised justice' must prevail over any 'judicial command' in Gregory to automatically 'uplift' sentences in order to adjust current sentencing practices for offending with certain common features. The judge's referencing Gregory in his reasons in the way that he did meant, it was contended, that it was now not possible to discern the extent to which his Honour was formulating his sentence according to this 'command', or according to the particular facts of the case.
19 The respondent submitted that there was no error in the judge's application of the relevant principles in Gregory, which, contrary to the appellant's contention, was not confined to its facts by Dalgliesh. The Court in Director of Public Prosecutions v Condo[13] had endeavoured to 'harmonise' Gregory and Dalgliesh.[14] The respondent submitted that sentencing courts were still required to consider current sentencing practices as a factor which went into the sentencing mix along with all other factors, with the product being an individualised sentence. It was submitted that nothing said in Dalgliesh, Lytras or Roxburgh amounted to a prohibition on a sentencing judge having regard to current sentencing practices, and there was no evidence in the sentencing reasons that the judge had treated current sentencing practices as a controlling or determinative factor.
20 We have concluded that there was no error in the judge's treatment of Gregory. We shall set out a brief summary of the development of this line of authority.
21 In Gregory this Court stated that, where certain features were present in commercial quantity trafficking, a more punitive sentence will be warranted than then current sentencing practices reflected.[15] A sentencing 'uplift' was required.[16] The High Court in Dalgliesh subsequently held that the sentencing considerations set out in s 5(2) of the Sentencing Act 1991 cannot be applied mechanically and must be balanced against one another in an exercise of the instinctive synthesis. Current sentencing practices are only one factor, among several, that a court must take into account.[17] Those practices can inform the instinctive synthesis but are not determinative, nor do they set outer limits on sentencing.[18] Each sentence involves an individualised approach.[19]
22 In Condo this Court explained what it understood to be the intersection of the principles from Gregory and Dalgliesh and a harmonisation of those principles:
For the avoidance of doubt ... we should make it clear that there is no tension between what this Court has said in Gregory ... about the need for an uplift in current sentencing practices as they concern trafficking in [commercial quantities] of drugs of addiction, and the need for individualised sentencing as expressed in Dalgliesh and earlier decisions such as Elias v The Queen.[20] 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]
23 In Lytras this Court recognised that harmonisation:
In Condo, the Court endeavoured to harmonise Dalgliesh and Gregory, expressing the view that it was an error to think 'that Dalgliesh and its focus on individual sentencing has somehow dissolved the impact of the uplift called for in Gregory'.[22]
24 Reproducing the statement from Condo set out above, the Lytras Court emphasised the following passage: '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.'[23]
25 Subsequently, in Roxburgh, an application for leave to appeal against sentence before a single judge, Weinberg JA stated:
Gregory was decided before the High Court delivered its judgment in Dalgliesh v The Queen. In Lytras v The Queen, this Court held that it was at least open to question as to whether the entire body of principles laid down in Gregory had survived the High Court's decision in Dalgliesh. There, the High Court had made clear that it was wrong for an intermediate appellate court to state prescriptively the range of sentences that would be appropriate for offending of a particular character in such a way as to fetter the discretion of a sentencing judge. Justice required greater individualisation, in accordance with the particular facts of each case.[24]
26 Justice Weinberg granted leave to appeal on the ground that the sentencing judge in that case had erred in her application of the principles from Gregory. However, this was on the basis that the judge had erred in finding that those principles were in any way applicable to the applicant's particular situation. It was not stated in Roxburgh that the Gregory principles had no further place in the sentencing exercise due to Dalgliesh. Subsequently to the statement quoted above Weinberg JA referred to 'the possible qualification which [Lytras] raised as to the use to which Gregory could be put'.[25] This assumes an ongoing role for Gregory principles in sentencing, if qualified by the need to balance this against other considerations weighed according to the individual case.
I have taken into account in setting the sentence the line of authority from Gregory v The Queen ..., in which the court discussed the spread of sentences expected across the statistical range and the expectation of a certain level of sentence where certain factors or features are present. Some of those are present here. Not all of them. Those that are present I take into account in this sentence.
If the sentences for trafficking in a drug of dependence not less than a commercial [quantity] have been plainly inadequate, as the Court of Appeal in Gregory indicated, [then] these factors must be taken into account to arrive at an appropriate sentence. They are: the quantity involved, the period of trafficking, the plea of not guilty, your role and prior history.[27]
This uplift sentencing practice is not a controlling factor in this sentence but remains a factor to take into account and I do so (See Condo [2019] VSCA 181).
29 We agree with the respondent that '[t]hese statements are plainly correct and represent accurate statements of the relevant principles and their application to [this] case'. It is clear from Condo and Lytras that Gregory has not been 'confined to its facts', as submitted by the appellant. The 'uplift' effect of Gregory is neither a determinative nor a controlling factor in the sentencing calculus, and it was not applied as such by his Honour. The judge carefully considered the quantity of drugs trafficked,[28] the duration of the trafficking,[29] and the appellant's role in the enterprise.[30] He balanced the objective gravity of the offending and the appellant's moral culpability[31] with personal factors.[32]
30 Ground 2 is not reasonably arguable and leave must be refused.
31 On this ground of manifest excess the appellant, surprisingly given his contentions under ground 2, relied on Gregory, arguing that the absence of certain of the Gregory features meant that his case was not in the 'double figures' category described in that case.[33] In particular, the appellant emphasised the fact that the offending took place over just one day and that he had no relevant prior convictions.[34] He went on to catalogue various other factors that, he contended, had not been given sufficient weight in the sentencing calculus, including the absence of violence or coercion, the lack of evidence of expectation of great enrichment, and 'some measure of ... remorse' as well as 'reasonable' prospects for rehabilitation as found by the judge.[35] He contended that, even if his arguments on ground 1 were not accepted, the appellant's offending ought be considered 'unsophisticated', involving profits that were less than those available from trafficking in almost any other drug.
32 The appellant pointed to this Court's statement in Ellis v The Queen[36] that 'sentences well below four years' imprisonment for trafficking in a commercial quantity of BTD might be imposed where there are no relevant prior convictions ... or where there are unusual mitigating features ...'[37] It was submitted that the appellant met both of these criteria, his severe back injury and consequent chronic pain being cited as an 'unusual mitigating factor'. This proposed application of Ellis would seem to run into the same Dalgliesh gloss as did the judge's alleged application of Gregory.
33 The appellant also compared his case with those of Condo and Director of Public Prosecutions v Fatho,[38] wherein sentences of nine years and nine months' and eight years' imprisonment respectively were imposed. Those cases, it was submitted, involved offenders with relevant prior convictions, principal or 'extensive' roles in the trafficking enterprises, long durations of offending, extensive criminal enterprises and larger quantities of drugs than in the appellant's case. The appellant argued that the comparison rendered the sentence of seven years' imprisonment imposed upon him 'excessively harsh', and therefore 'wholly outside the range of sentences reasonably open to the learned sentencing judge'.
34 The respondent submitted that the sentence imposed, when assessed on its own facts, was well within the range of sentences available to the judge. The appellant trafficked 140 times the commercial quantity. He pleaded not guilty and received a sentence that was a fraction of the maximum penalty available.[39] He was the principal of this apparently single-handed importation, and the absence of evidence of potential financial reward did not prevent the judge from legitimately concluding the expected reward was much greater than the $1,000 claimed by the appellant. It was further submitted that general deterrence must loom large as a sentencing consideration in relation to a trafficking enterprise of this scale. Thus, the respondent contended, the sentence imposed properly reflected not only the factors adverse to the appellant, but also those favourable to him, such as his lack of relevant prior criminal history, mental state, prior back injury and concern for his elderly parents.
35 The Court regularly observes that arguments of manifest excess are difficult to establish. Sentencing is a discretionary exercise, and, in the absence of identifiable error, an appellant must demonstrate that the sentence imposed was not reasonably open to the sentencing judge. To succeed, an appellant must demonstrate that the impugned sentence is 'wholly outside the range' of sentences available for that particular offence.[40]
36 In this case there was a good deal that could be said for the appellant. He had no criminal history, suffered from chronic pain due to a work-related injury, fulfilled a role as carer to his father who is currently quite unwell, developed a drug habit consequent upon pain management, is married with a young son, and has a wife who remains supportive. His time in custody will be more onerous than otherwise because of his constant back pain and generalised anxiety. Many positive character references were tendered on the appellant's behalf. The judge accepted that there was 'some measure of developing remorse' and assessed his prospects for rehabilitation as 'reasonable'.
37 The judge was taken to a table of sentences which the respondent reproduced on this appeal/application:
38 We have observed that current sentencing practices are but one sentencing consideration only.[41] The widely varying sentences in the above table are a reflection of the widely varying circumstances that attended each offender and are of limited assistance. Each offender, it should be noted, pleaded guilty. In the present case the appellant was a principal in an enterprise that trafficked 279 kg of a drug of dependence - nearly 140 times the commercial quantity. He received a sentence that was 28% of the maximum available penalty after pleading not guilty. These facts alone call for a substantial prison sentence. In our view the sentence imposed, while stern, is a fair reflection of the competing sentencing considerations, and well within the range of sentences available to his Honour.
[1] Whilst Mena Gayed is the applicant in relation to grounds 1 and 2 and the appellant in ground 3, for convenience we shall refer to him as the 'appellant' throughout these reasons.
[4] DPP v Gayed [2019] VCC 2174, [3]-[8] (Judge Gucciardo) ('Reasons').
[6] [2017] VSCA 151; (2017) 268 A Crim R 1 ('Gregory').
[8] [2020] VSCA 150 ('Lytras').
[9] [2020] VSCA 228 ('Roxburgh').
[10] [2017] HCA 41; (2017) 262 CLR 428 ('Dalgliesh').
[11] Ibid 428-9. See also at 434 [9], 450 [68] (Kiefel CJ, Bell and Keane JJ).
[12] Roxburgh [2020] VSCA 228, [21] (Weinberg JA).
[13] [2019] VSCA 181 ('Condo').
[14] See Lytras [2020] VSCA 150, [57] (Priest and Weinberg JJA).
[15] Gregory [2017] VSCA 151; (2017) 268 A Crim R 1, 24 [98]-[99].
[17] Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [9] (Kiefel CJ, Bell and Keane JJ).
[18] Ibid 454 [83]-[84] (Gageler and Gordon JJ).
[19] Ibid 444 [49] (Kiefel CJ, Bell and Keane JJ).
[20] [2013] HCA 31; (2013) 248 CLR 483, 494 [27].
[21] Condo [2019] VSCA 181, [20] (Maxwell P, T Forrest and Weinberg JJA) (citations in original).
[22] Lytras [2020] VSCA 150, [57] (citations omitted).
[23] Ibid, quoting Condo [2019] VSCA 181, [20] (emphasis in original).
[24] Roxburgh [2020] VSCA 228, [21].
[26] The sentence came down after Gregory, Dalgliesh and Condo had been delivered, but before Lytras and Roxburgh.
[33] See Gregory [2017] VSCA 151; (2017) 268 A Crim R 1, 24 [98] (Maxwell P, Redlich and Beach JJA).
[36] [2018] VSCA 221 ('Ellis').
[37] Ibid [29] (Whelan and Beach JJA) (citations omitted).
[39] 25 years' imprisonment: Drugs, Poisons and Controlled Substances Act s 71AA(1).
[40] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); Atem v The Queen [2020] VSCA 35, [48] (Tate, McLeish and Weinberg JJA).
Gayed
The Queen [2021] VSCA 141
(2017) 262 CLR 428
(2013) 248 CLR 483
(2011) 32 VR 361