Johnson v The Queen [2022] VSCA 9

2 On 3 September 2021, the judge sentenced him as follows:

Trafficking in a drug of dependence in a commercial quantity

Dealing with property suspected of being proceeds of crime

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991

3 The applicant now applies for leave to appeal on two proposed grounds. The first is that the judge erred by failing to sentence the applicant on the basis that the applicant was a courier. Secondly, it is said that the sentence imposed on the primary charge was manifestly excessive.

4 For the reasons that follow, the application for leave to appeal will be refused.

5 At the time of the offending, the applicant was 55 years old. He owned and operated an interstate express freight transport company.

6 On 23 February 2021, near East Wangaratta, the applicant was driving a truck registered to his company northward along the Hume Freeway. Police intercepted the vehicle, and with the applicant's consent they searched it.

7 The applicant denied the presence of drugs. However, the search revealed:

(a) a total of 47.52 kilograms of cannabis, stored in more than 100 plastic bags, roughly half of which were vacuum-sealed; and

(b) a total of $6,560 in cash, located in the applicant's wallet and in bundles in a separate bag.

8 The cannabis was located in a hidden storage section under the base of a bed in the rear of the truck.

9 On the same day, a search warrant was issued and executed at the applicant's address in Bulla. There, the police located and seized a vacuum sealing device and various vacuum sealing bags matching those found in the applicant's vehicle.

10 In his interview with police, the applicant said that he had been driving to Queensland. He admitted that he had loaded the cannabis in the truck, and that he had been caught 'red-handed' with it. Otherwise, he was largely non-responsive to police questioning, including as to the origin and destination of the cannabis. He was, as he put it, already 'in enough trouble'.

11 It was common ground on the plea that the primary offence was a serious one, and that a custodial sentence involving the imposition of a non-parole period was inevitable.[3]

12 It was also common ground that the applicant fell to be sentenced on the basis that his role was 'that of a courier'.[4]

13 The judge, however, declined to find that the applicant was no more than a courier. This was because the applicant provided no account of his role despite being repeatedly invited to do so, and in the face of evidence which suggested it was unlikely that his role was so limited.[5] The judge said:

[Y]ou choose to provide no detail. No account. The hope no doubt is that there will be some default setting of treating you as the least serious offender that can be envisaged. Your counsel argues you are just a courier transporting from A to B. Well, your involvement as a successful business man running a freight company casts sizeable doubt on that assertion. Why on earth would you be involving yourself in such an enterprise? You were using your company and the company structure to cloak the crime with legitimacy. How would anyone else know of your capacity to secrete drugs in the way that you did? It was your truck, a recently purchased one. You were travelling interstate. You had the vacuum sealing machine and bags at your address in Victoria. I am not satisfied on the balance of probabilities that you were just a courier.[6]

14 Having declined to make the finding that the applicant was just a courier or 'mule', the judge concluded that he could make no alternative finding as to the applicant's role in the drug enterprise.[7] What position, if any, he occupied, could simply not be established to the required standard. He concluded:

It is your choice to not present any evidence or even provide your instructions to the court in so many areas. My inability to reach a view as to your role does not compel me to accept on the balance of probabilities your counsel's submissions as to your role on the inferential basis suggested.

I have to be satisfied of mitigatory matters on the balance of probabilities and I am not satisfied to that degree that you were just a courier.

...

It is impossible for me to have any understanding of your role with others in this exercise or even if there are others in some organisational structure.

I cannot just dream up a hierarchy out of thin air nor for that matter place you at the top of the tree or for that matter at the bottom. I am however not satisfied on the balance of probabilities that you were in any way a minor or low level player. I am not satisfied on the balance of probabilities that you were just a courier.[8]

15 The judge characterised the offending as 'mid-range'[9] on the basis that the cannabis was almost twice the commercial quantity threshold,[10] and the applicant was 'financially secure' and evidently motivated by greed. His conduct 'reek[ed] of a calculated decision taken by a man in full control of his faculties' and in pursuit of a 'very substantial financial incentive'.[11] The judge could not locate anything in the applicant's personal background which diminished his moral culpability.[12]

16 The judge also referred to two relevant prior convictions, both of which were committed when the applicant was in his thirties and forties. One was a conviction for cultivating a narcotic plant (also cannabis). This involved the hydroponic cultivation of roughly a dozen cannabis plants, involving a power bypass. Another more recent conviction for the same offence related to about half a dozen plants.[13] On both occasions, a suspended sentence was imposed.

17 The judge referred to the following matters in mitigation:

(a) the applicant's early guilty plea, and its heightened utilitarian value during the present pandemic;[14]

(b) the applicant's remorse, which the judge described as 'limited', given the narrowness of the applicant's admissions in his terse police interview, and the 'overwhelming' strength of the prosecution case on the charges to which the applicant pleaded guilty;[15]

(c) the applicant's 'reasonably good' prospects of rehabilitation;[16]

(d) an increased custodial burden, given:

_(i) that it would be the applicant's first time in custody;[17]

(ii) the ongoing impacts of the pandemic on prisoners;[18] and

(iii) the ailing health of the applicant's mother, and his inability to continue to provide care to her while in custody;[19] and_

(e) the fact that a forfeiture order would be made in respect of the vehicle that the applicant was driving, which would be likely to cause him some financial loss.[20]

1. There was an error in the sentence first imposed that resulted from the sentencing judge sentencing the applicant on the basis that the applicant was not a courier.

2. The sentence imposed on charge 1 was manifestly too long.

19 The applicant submitted that the agreed facts upon which he fell to be sentenced properly informed the prosecution's concession that he fell to be sentenced as a courier - albeit one who was a 'willing and active participant in the distribution chain' and who played some role in packaging the cannabis for transport.

20 The applicant contended that the judge erred by declining to accept that concession. In doing so, he sentenced the applicant on a 'more serious basis' than agreed by the parties. In other words, by not finding that the applicant was a courier, the judge necessarily sentenced the applicant on the basis that he had a 'higher level' role.

21 The respondent submitted that it is open to a judge to decline to make a finding consistent with a prosecution concession. In this case, the judge gave ample warning of his intention to do so. He expressed his reasons for failing to be satisfied as to the parties' characterisation of the applicant's role. Those reasons drew on the agreed facts, including the applicant's apparent involvement in packaging and secreting the drugs, and the use of his legitimate business to transport the drugs.

23 First, the task of sentencing a participant in a drug enterprise is to be undertaken by reference to all the relevant facts and not merely by reference to whether the offender can be given some particular label describing their role in the enterprise.[21] Such labels, including the label 'courier', may not always accurately demarcate different levels of culpability, and can tend to obscure the more fundamental task of assessing the offender's conduct in light of all the relevant facts.[22] Indeed, it is not at all essential that the precise role of an offender in a criminal hierarchy be established.[23]

24 Secondly, even if a label describing the offender's role in a drug enterprise - such as 'courier' - is agreed by the parties on the plea, the sentencing judge is not bound to accept that label, provided that, in departing from the agreed position, the judge affords the parties procedural fairness.[24]

25 Thirdly, any mitigatory finding that an offender had a particularly lowly role in a larger criminal hierarchy, and was, for example, a 'mere courier' or 'mule', requires some sound evidentiary basis; it is not a finding to be made by default or inferred simply from an absence of evidence.[25]

26 In the present case, the sentencing judge declined to find that the applicant was 'no more than' or 'just' a courier. That course was well open, for the reasons the judge gave, and no complaint is made as to any want of procedural fairness. It does not follow, as the applicant contends, that the judge necessarily sentenced on the basis that the applicant had a 'higher level' role. The judge expressly did not do so. He merely refused to find that the applicant's role was a confined one. He was then unable to make any finding as to any particular role the applicant had.

27 In those circumstances, the judge sentenced the applicant on the basis of the known facts, without assigning him a given role in the trafficking enterprise. In doing so, the judge applied the principles set out above. The first proposed ground is not reasonably arguable.

28 The applicant submitted that the sentence imposed on the primary charge was manifestly excessive, for two reasons. First, the sentence showed that the mitigatory matters referred to by the judge must have been insufficiently accounted for. Secondly, the sentence reflected that the judge had not only mischaracterised the applicant's role, but had also mischaracterised the offending as 'mid-range' when it was less serious.

29 The respondent contended that the sentence was well within range. The sentence was less than a quarter of the maximum penalty, with a non-parole period less than two-thirds of the head sentence. The sentence showed that the judge adequately accounted for the matters in mitigation, to which he expressly referred, while also appreciating the relevance of the applicant's prior convictions. The judge's characterisation of the offending as 'mid-range' was entirely open, given the amount trafficked, the applicant's financial motive, his role in packaging the drugs and his use of his business vehicle to provide a 'cloak of legitimacy'.

30 The ground of manifest excess requires an appellant to show that the sentence was wholly outside the range of sentencing options available; that is, that it was not reasonably open to the sentencing judge.[26] It must be shown that something has gone 'obviously, plainly or badly wrong' in the exercise of the sentencing discretion, without necessarily identifying what that something is.[27]

31 In my opinion, while the sentence of 5 years and 6 months' imprisonment might be seen as stern, it is not reasonably arguable that it is outside the range of sentences reasonably open to the sentencing judge in this case. The maximum penalty for trafficking a commercial quantity of a drug of dependence is 25 years' imprisonment. It was open to the judge to characterise the offending as 'mid-range' in terms of seriousness, in circumstances where the applicant was transporting nearly twice the commercial quantity threshold amount, in a hidden compartment of a vehicle being used in his legitimate trucking business, and there was evidence of his involvement in the packaging of the drugs. As the judge found, the offending was calculated rather than spontaneous, and motivated by greed.[28]

32 The matters in mitigation, while important, did not demand a lower sentence than that imposed. It must be borne in mind, in that connection, that the non-parole period of 3 years and 6 months can be seen to give particular weight to the applicant's remorse (found by the judge to be limited[29]), and his prospects of rehabilitation (regarded by the judge as reasonably good[30]).

[1] Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 71AA.

[2] Crimes Act 1958 s 195.

[3] Director of Public Prosecutions v Johnson [2021] VCC 1284 [46], [94] ('Sentencing Remarks').

[4] The prosecutor seems to have been under the impression that the Crown had to concede that the applicant was no more than a courier unless it could establish a more significant role to the criminal standard.

[14] Ibid [30]-[32]; Worboyes v The Queen [2021] VSCA 169.

[21] Nguyen v The Queen [2019] VSCA 134 [59] (Priest and Beach JJA) ('Nguyen').

[22] R v Olbrich (1999) 199 CLR 270, 279 [19] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

[23] Dao v The Queen [2014] VSCA 93; (2014) 240 A Crim R 574, 587 [39] (Redlich JA, Priest JA agreeing at 588 [43]); [2014] VSCA 93 ('Dao').

[24] Nguyen [2019] VSCA 134 [61].

[25] Dao [2014] VSCA 93; (2014) 240 A Crim R 574, 582 [17] (Nettle JA), 587 [38] (Redlich JA).

[26] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[27] Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P); Nicholls v The Queen [2016] VSCA 300 [31] (Redlich and McLeish JJA and Beale AJA); Till v The Queen [2018] VSCA 122 [45] (Maxwell P, Tate and Niall JJA); Osman v The Queen [2021] VSCA 176 [97] (Priest, T Forrest and Emerton JJA).

[28] Sentencing Remarks [39], [41], [84].