Court of Appeal (Vic)|2011-06-07|Before: Bongiorno JA, Maxwell ACJ

Hilder v The Queen [2011] VSCA 192 (7 June 2011)

R v Hilder & Sandhu (Unreported, County Court of Victoria, Judge Gullaci, 20 August 2010)

2 On 20 August 2010 the appellant was sentenced in the County Court to one count of trafficking in a drug of dependence, the drug being methylamphetamine. The sentence imposed was three years and six months and it was ordered that the appellant serve two years' imprisonment before being eligible to apply for parole. The appellant's pre-sentence detention at the time of being sentenced was declared at 382 days. The appellant had pleaded guilty to the single count in the presentment and the sentencing judge recorded that but for the plea of guilty, the sentence he would have imposed would have been five years' imprisonment with a minimum term before eligibility for parole of three years and six months.

3 Also sentenced on that day was Simranjit Singh Sandhu who was an accomplice of the appellant. Their respective roles are important in this appeal and I will deal with the detail of that shortly. Sandhu was sentenced for the more serious offence of trafficking in methylamphetamine in not less than a large commercial quantity, and for a second count of possessing an unregistered handgun. He was sentenced to a total effective sentence of four years and six months' imprisonment and the Court ordered that he serve a minimum period of two years and ten months before being eligible to apply for parole.

4 The appellant was granted leave to appeal against his sentence on 10 December 2010 by Bongiorno JA.

5 The appellant and Sandhu were involved in a drug manufacturing and trafficking operation managed and directed by a man named Samuel James. In August 2009 police executed a search warrant at a factory in Dandenong that had been rented by Sandhu on behalf of James since June 2009. Those premises were

used for the purposes of manufacturing illegal drugs and a clandestine drug laboratory had been established. Apart from apparently being at the head of the operation, James had also provided the illegal pill press to be used in the manufacture of tablets.

6 When police arrived at the Dandenong factory on 2 August 2009, the appellant was present. He was arrested and participated in a record of interview in the course of which he denied being involved in the manufacture of drugs. The appellant explained his presence at the factory on the basis that he was there to collect a motor vehicle on behalf of a person he was unwilling to name.

7 The prosecution case against the appellant was that he was in fact a methylamphetamine cook and produced an amount of the drug on behalf of Sandhu and James. It was put on behalf of the prosecution that between 23 June 2009 and 3 August 2009, being the dates in the presentment, he produced an unknown quantity of the drug at the Dandenong factory and utilised chemicals and equipment which were located at the factory to extract ephedrine and pseudoephedrine from cold-and-flu tablets.

8 The prosecutor said the total quantity of pseudoephedrine extracted by the appellant was not able to be ascertained. In addition there were telephone records to suggest contact between the appellant and Sandhu and James. Evidence also indicated that he used a computer to assist in his work in the manufacture of drugs.

9 In this Court two grounds were argued in the appeal against sentence and they are in the following terms:

Ground 1:

The sentencing judge erred by imposing individual terms of imprisonment, total effective sentences and non-parole periods on the appellant and his co-offender Sandhu which:

(a) disclosed insufficient a disparity; and

(b) engendered into the appellant a justifiable sense of grievance.

Ground 2:

The sentencing judge erred by imposing a sentence against a misapprehension of the law as it pertains to the provision by the Crown of a sentencing range.

10 Counsel for the appellant submitted that there was an insufficient disparity between the sentences imposed on the appellant and on Sandhu. It was thus submitted that in accordance with principle the appellant's sentence should be reduced. The submission was based on the following circumstances:

(a) the appellant pleaded guilty to the offence of trafficking simpliciter whereas Sandhu had pleaded guilty to trafficking in not less than a large commercial quantity;

(b) the appellant was subordinate to Sandhu in the commission of his offence;

(d) Sandhu was also being sentenced in respect of a firearms offence.

11 Sandhu was sentenced to four years and three months on the count of trafficking in not less than a large commercial quantity of methylamphetamine. He was also sentenced to 12 months' imprisonment on a count of possession of an unregistered handgun. Three months of the sentence on that count was to be cumulative with the sentence on the first count of trafficking, resulting in a total effective sentence of four years and six months. The minimum term was two years and ten months.

12 The sentencing judge did not need to quantify the discount he applied for the undertaking given by Sandhu to give evidence though his Honour made it clear that he was imposing a less severe sentence.

13 In making a declaration under s 6AAA of the Sentencing Act 1991 (Vic) ('Sentencing Act'), his Honour indicated that had Sandhu pleaded not guilty and been found guilty by a jury, the sentence he would have imposed would have been eight years' imprisonment with a minimum term of six years. To the extent that the appellant's submission on the issue of parity depends on asserting error in connection with the informer's discount applied to Sandhu's sentence, that submission is bound to fail for the reasons given by this Court in Scerri v The Queen.[1]

14 However, I take the appellant's submission to be that what should be regarded as a significant difference in the criminality between the appellant and Sandhu was not properly reflected in their sentences whether viewed before or after the application of s 6AAA of the Sentencing Act.

15 Counsel for the respondent, on the other hand, pointed to particular circumstances which in his submission suggested the respective sentences on the appellant and Sandhu were appropriate. In the case of the appellant, particular reference was made to the role the appellant played as a 'cook', coupled with his denial of this involvement when being interviewed. The respondent also referred to the sentencing judge's description of the appellant's particular circumstances in relation to the lack of 'support structures in the community' and the benefit the sentencing judge considered the appellant would receive from supervision by the Parole Board. He also noted that the offending was committed whilst the appellant had absconded on bail for offences alleged to have been committed in South Australia.

16 In the course of the appellant's plea, it was submitted that the product manufactured by him was for personal use only due to his addiction to methylamphetamine, Xanax and Valium. The judge rejected that submission on the basis that it was no more than assertion from the Bar table during the course of the plea and not based on any evidence.

17 On the other hand, Sandhu was younger at the time of the offending and cooperated at an early stage. He made three statements to the police and gave an undertaking to give evidence against Samuel James. Apart from the significant discount for his undertaking it was also significant that he had no prior convictions. During his time in custody he would be isolated and apparently faced deportation upon his release. The respondent submitted that these matters were appropriately analysed by the sentencing judge.

18 In seeking to refine the submissions on parity, counsel for the appellant placed emphasis on the sentences declared by the sentencing judge that would have been imposed but for the pleas of guilty in both cases pursuant to s 6AAA of the Sentencing Act. In the appellant's case, the sentence that would have been imposed would have been five years' imprisonment with a minimum period of three years. In the case of Sandhu, absent his plea of guilty and cooperation, his sentence would have been eight years with a non-parole period of six years. The question is whether or not the fact that Sandhu was trafficking in a large commercial quantity with the appellant as his subordinate and being in possession of an unregistered firearm should have meant that the disparity should have been greater.

19 In my opinion there is not such a lack of disparity between the sentence imposed on Sandhu and the sentence imposed on the appellant which would result in a conclusion that the sentence that was imposed on the appellant was not reasonably open. I do not regard the difference between the sentences to be in any sense manifestly inadequate.[2] It was a legitimate consideration for the judge to regard the appellant's role in being the 'cook' as significant and central to the production of the drugs in which the trafficking was occurring. The sentencing judge appropriately analysed the mitigating factors in favour of both the appellant and Sandhu.

20 Naturally, in the case of Sandhu, the mitigating factors that were significant included not only his cooperation both during his record of interview and his three subsequent statements with all the consequences that that may involve, but also a lack of prior convictions. To that could be added the prospect of deportation on the completion of his sentence or after the trial of the co-accused, James.

21 It is also notable that as to the firearms offence for which he was separately sentenced, the Crown accepted that the firearm in his possession was given to him by James for the purpose of repair and that his intention was to return the firearm and the drugs stored at his premises to James.

22 In addition, notwithstanding there was trafficking in a large commercial quantity, the benefits, such as they were, flowing to Sandhu, were found by the judge to be insignificant.

23 I would therefore conclude that the claimed lack of disparity between the sentence imposed on the appellant and the sentence imposed on Sandhu is without substance and that this ground of appeal should fail.

24 Ground 2 concerns the range of sentences which was provided to the judge by the prosecutor. As I understand it, it is submitted that by his Honour's observations during argument, the sentencing judge has demonstrated that he misunderstood the principles which apply when a prosecutor makes a submission about the range of appropriate sentences.

25 In the course of submissions on the plea of the appellant, the sentencing judge indicated that, in view of the submissions being made on behalf of the appellant, it would be helpful if the Crown made a submission as to the range. The prosecutor then said:

Your Honour, the instructions in relation to Mr Hilder was a sentence between and two and a half and four years as a head sentence; 18 months to three years minimum term.

As can be seen, the sentence imposed by the judge fell within that range.

26 On behalf of the appellant, it was submitted that the sentencing judge 'misapprehended the meaning and effect of the principle underpinning the decision in R v MacNeil-Brown and Piggott'.[3] That submission arose because in a subsequent hearing on 20 August 2010 and in response to a submission on behalf of the appellant, the sentencing judge said:

Whilst I indicate that the matters you are relying on are matters of force, I am not at all persuaded that a submission by the Crown on range is a submission by the Crown that the sentence, if the sentence goes below or above, that it is manifestly inadequate or adequate as a matter of law but ...

27 Counsel for the appellant then submitted to his Honour that a submission as to range by the prosecutor represents the upper and lower limits beyond which the Crown say the judge would be falling into error either because the sentence was inadequate or excessive to a manifest degree. His Honour then observed:

As a matter of law I am not sure that is right but at any rate I will hear what the Crown have to say.

28 The prosecutor then submitted to the judge that the Crown's 'opinion' as to what the sentencing Court should or not should not do 'is not determinative' and authority was referred to. Finally, counsel for the appellant made a further submission to his Honour, the effect of which was to remind the judge of the Crown's range of sentence was not an opinion but a submission of law which 'must be taken to have synthesised all the relevant factors which a judge must synthesise'.

29 In dealing with the matter in his reasons for sentence concerning the appellant, the learned sentencing judge said:

The learned Crown prosecutor submitted the circumstances of your offending warrant the imposition of a term of imprisonment in the range of two and a half to four years' imprisonment with a minimum term in the range of 18 months to three years.

30 On behalf of the respondent in this Court, it was submitted that there is no substance to this ground of appeal. I respectfully agree. In R v MacNeil-Brown and Piggott,[4] the Court made clear that a submission on sentencing range from the prosecutor is no different from any other submission made by counsel. The Court said that to characterise such a submission as 'an expression of opinion' was to mischaracterise counsel's function and that such a submission should be formulated to assist the sentencing judge to avoid appellable error. The Court also observed that a judge is not bound to accept counsel's submission and is entirely free to come to a different conclusion.

Indeed the judge is bound to do so if, in his/her judgment, a sentence outside the nominated range is called for and can lawfully be imposed.[5]

32 That position was reemphasised in Campisi v The Queen[6] where this Court, referring back to the judgment in MacNeil-Brown, emphasised that no judge is bound by a Crown submission on range. In that case, the complaint made on behalf of the appellant was that the sentencing judge made no reference to the Crown submission in her Honour's reasons for sentence. In dealing with that complaint the Court adopted what had been said in the R v Earl,[7] in particular, where the Court said:

Regardless, however, whether the Crown conceded that a lesser sentence might suffice, it was for the judge to decide on the sentence to be imposed and in the end the question for us is whether it was beyond the range of sound sentencing discretion.[8]

33 I agree with the submissions of the respondent that it is evident that in this case the sentencing judge analysed the Crown's sentencing range against the relevant facts and ultimately dealt with it in accordance with principle. There is nothing in the considered reasons for sentence that his Honour delivered to indicate error in the way that he treated the prosecutor's submission as to range.

36 I too would dismiss the appeal and, subject to what follows, I do so for the reasons which his Honour has given.

37 As regards the parity ground, I express the hope that the phrase 'justifiable sense of grievance' will in due course disappear from the discourse in this area. It is, of course, a phrase of the most impeccable pedigree but, with respect, it seems to me to distract attention from the true nature of the question which must be addressed when the ground of parity is advanced. The question is whether it was reasonably open to the judge in the circumstances of the case to differentiate - or fail to differentiate - between the co-offenders in the way he or she did.[9] After all, it is the legality of the judge's decision, not the offender's sense of grievance, justified or otherwise, on which attention must be focused.

38 Expressing the test in this way - 'was it reasonably open?' - seems to me to have the advantage not only of placing the parity ground squarely within the analytical framework of sentence appeals but of underlining the difficulty of making good the ground. There is a close analogy with the stringency of the test of manifest excess. For this ground to succeed, it must be shown that the conclusion as to sentence differentials was not reasonably open. As with manifest excess, that should be viewed as a difficult hurdle to surmount, as this Court recently said in Director of Public Prosecutions v Karazisis.[10]

39 What I said in R v Stuttard[11] in relation to manifest excess applies equally to parity. Where a judge has carefully considered all of the relevant sentencing considerations applicable to the respective co-offenders, a ground of parity will rarely succeed. In those circumstances it will be necessary for an appellant to show that, despite the sentencing task having been carefully and conscientiously carried out, nevertheless, the conclusion as to differentiation is so obviously wrong that this Court is constrained to conclude that the sentencing discretion miscarried as a matter of law.

40 As to the MacNeil-Brown[12] point, defence counsel was, with respect, correct to point out to his Honour what is conveyed by a submission on sentencing range. Counsel (who also appeared on this hearing) correctly pointed out that a submission on range is, as the majority in MacNeil-Brown said,[13] a submission to the effect that the sentencing discretion will be lawfully exercised if the sentence imposed falls within the range identified. The corollary is that, in the submission of the Crown, to sentence outside that range would be not lawful, that is to say, not within the range within which minds can reasonably differ.

41 But, while his Honour queried whether that was technically correct, I see no reason to doubt that his Honour fully understood what was conveyed to him by the Crown's submission. His Honour understood that it was the Crown's view that it was open to him to impose a sentence within the range propounded. The fact that he imposed sentence within the limits of the Crown range is, itself, unremarkable.

42 Finally, it is notable that the judge in this case indicated to counsel that if he proposed to sentence above the upper end of the Crown range, he would invite further submissions from the parties. It is important, I think, to say very clearly that his Honour was under no obligation to provide that further opportunity in those circumstances. It has never been the law that a judge must, in the course of argument, signify any reservations he/she has about a particular submission made or, if those reservations develop after the hearing has concluded, provide a further opportunity for argument.[14]

43 A submission on range is no different from any other submission made to a judge. Counsel makes the submission knowing full well that whether or not it is accepted will be a matter for the judge's further consideration.

44 The order of the Court is that the appeal be dismissed.

[1] [2010] VSCA 287, [22]-[24].

[2] As opposed to manifestly excessive - see Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.

[3] [2008] VSCA 190; (2008) 20 VR 677 ('MacNeil-Brown').

[9] Teng v The Queen [2009] VSCA 148; (2009) 22 VR 706, 710 [17].

[10] [2010] VSCA 350, [124]-[128].

[14] R v Nguyen & Nguyen [2000] VSCA 223, [61] (Phillips CJ, with whom Brooking and Buchanan JJA agreed).

Hilder v The Queen [2011] VSCA 192

At a glance

Court

Decision date

Before

Source

Judgment (67 paragraphs)

Hilder v The Queen [2011] VSCA 192 (7 June 2011)

Parties

Cases Cited (3)