Luu v The Queen [2018] VSCA 92

1 On 22 November 2017, the applicant was sentenced in the County Court, for offending described below, to a total effective sentence of three years' imprisonment with a non-parole period of two years. He now seeks leave to appeal that sentence on four proposed grounds, three of which are conceded by the respondent. The respondent accepts (correctly in our view) that the sentence imposed must be set aside and the applicant re-sentenced.

2 On 12 June 2015, the applicant pleaded guilty in the Melbourne Magistrates' Court to 21 charges arising out of offending that occurred between 10 May 2014 and 19 February 2015 ('the original offending'). The offences to which the applicant pleaded guilty were trafficking methylamphetamine (two charges), possessing methylamphetamine, trafficking heroin, possessing heroin (three charges), possessing GBH (two charges), dealing with property suspected of being proceeds of crime (four charges), unlicensed driving (two charges), committing an indictable offence while on bail, possessing amphetamine (two charges), trafficking a drug of dependence and possessing a drug of dependence (two charges).

3 The magistrate sentenced the applicant to one year's imprisonment and an 18 months' community correction order (CCO). The CCO included conditions as to supervision, treatment and rehabilitation. It also included a condition that the applicant perform 200 hours of unpaid community work.

4 Pursuant to s 254 of the Criminal Procedure Act 2009 ('the CPA'), the applicant appealed to the County Court against the magistrate's sentence. On the hearing of the appeal, on 24 August 2015, the magistrate's sentence was set aside as required by s 256(2)(a) of the CPA.[1] At the conclusion of the appeal, the judge imposed the same sentence that had been imposed by the magistrate (12 months' imprisonment and an 18 months' CCO).

5 The applicant served his 12 months' term of imprisonment, and was released on 20 January 2016. On that day, the CCO commenced. The CCO was due to expire on 19 July 2017.

6 The applicant first breached his CCO on 5 February 2016 when he failed to comply with a supervision requirement. There were further breaches which resulted in a hearing before the judge on 23 August 2016. On that day, the judge declared the applicant's breaches of the CCO proven. The judge, however, said that he would give the applicant 'one last chance' and allow him to continue on the CCO.

7 On 23 May 2017, following further breaches of the CCO, the applicant was charged with contravening the CCO contrary to s 83AD of the Sentencing Act 1991. The contraventions alleged included breaching the terms and conditions of the CCO and committing further offences (unlicensed driving, possessing prohibited weapons, possessing drugs of dependence, possessing controlled weapons without an excuse and failing to answer bail).[2]

8 On 11 August 2017, the applicant was taken into custody in relation to his alleged breaches of the CCO.

9 On 22 November 2017, the issue of the applicant's breaches of the CCO and the new charge of contravening the CCO came on for hearing before the judge. The applicant pleaded guilty to contravening the CCO. The maximum term of imprisonment for that offence was three months.[3]

10 On that day (22 November 2017), and pursuant to s 83AS of the Sentencing Act 1991, the judge cancelled the CCO. He sentenced the applicant in respect of the original offending to an aggregate term of imprisonment of two years and six months. He then sentenced the applicant in respect of the contravention of the CCO to a term of imprisonment of six months, the whole of which was ordered to be served cumulatively upon the aggregate sentence, making a total effective sentence of three years. The judge then fixed a non-parole period of two years.

11 The judge made a declaration under s 18(1) of the Sentencing Act in relation to pre-sentence detention served by the applicant from 11 August 2017, when the applicant was taken into custody, until the date of sentencing (103 days). No pre-sentence detention was declared in respect of the 12 months period that the applicant originally served before commencing the CCO.

12 Pursuant to s 278 of the CPA, the applicant now seeks leave to appeal against the sentence imposed on 22 November 2017.[4] The applicant's proposed grounds of appeal are as follows:

1. The judge erred by imposing a sentence on the charge of contravening a community correction order (six months' imprisonment) that exceeded the maximum penalty prescribed for that offence (three months' imprisonment).
2. The judge erred by failing to deal with the applicant as if the applicant had just been found guilty of the offences for which the community correction order was initially imposed (in combination with a term of imprisonment), in that:

(a) the applicant had served 365 days in gaol in relation to those offences before being released on a community correction order; and

(b) in the absence of his Honour ordering otherwise, that 365 days ought to have been reckoned as a period of imprisonment already served (pursuant to s 18(1) of the Sentencing Act 1991).

1. The judge erred by imposing sentences that breached the totality principle, given:

(a) the applicant had served 365 days in gaol before being released on a community correction order;

(b) that 365 days was not reckoned as pre-sentence detention when the applicant was re-sentenced upon the determination of the contravention proceedings;

(c) the sentence imposed on the charge of contravening a community correction order was ordered to be served wholly cumulatively to the aggregate sentence also imposed; and

(d) the cumulative effect of the sentences imposed at the appeal hearing on 24 August 2015 and upon the determination of the contravention proceedings requires the applicant to effectively serve sentences totalling four years' imprisonment and a non-parole period of three years' imprisonment.

1. The sentences imposed upon the determination of the contravention proceedings are manifestly excessive.

13 The most serious of the charges constituting the original offending were the drug trafficking charges. Save for the second charge of trafficking methylamphetamine, the offences involving methylamphetamine, heroin and amphetamines related to quantities that were less than five grams. The second charge of trafficking methylamphetamine was, however, more serious. It involved an amount of 142.69 grams. The charges involving GHB were less serious. They involved small quantities of that drug. The proceeds of crime charges related to cash amounts of $1,315, $4,271, $7,347 and $3,515.

14 The maximum term of imprisonment the Magistrates' Court could impose on each individual charge was two years.[5] In this Court, the parties agreed that the maximum cumulative term of imprisonment that could be imposed was five years.[6] The appeal to the County Court was a rehearing in which the County Court was empowered to impose 'any sentence which the court considers appropriate and which the Magistrates' Court imposed or could have imposed'.[7]

15 The respondent accepts that the complaints in grounds 1, 3 and 4 are made out. It concedes (as we said, correctly in our view) that:

(1) the sentence of six months for contravening the CCO, being double the maximum prescribed penalty, must be set aside;

(2) the total effective sentence of three years' imprisonment with a non-parole period of two years breaches the totality principles when regard is had to the original offending and the 365 days served by the applicant prior to the commencement of the CCO; and

(3) the sentence imposed by the judge was, in the circumstances, manifestly excessive.

16 The issue in dispute between the parties concerns the proper construction and operation of s 83AS(1) of the Sentencing Act. That section provides:

83AS Powers of the court on finding of guilt for contravention of community correction order

(1) If a court finds a person guilty of an offence under section 83AD (in addition to sentencing the offender for the offence) the court must -

(a) vary the order in any manner set out in section 48M(2)(d), (e), (f), (g) or (h); or

(b) confirm the order originally made; or

(c) cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence with respect to which the order was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence; or

(d) cancel the order and make no further order with respect to the offence with respect to which the order was originally made.

17 The applicant submitted that the combined operation of ss 18(1) and 83AS(1)(c) of the Sentencing Act required the judge to impose a new term of imprisonment and declare the period of 365 days served prior to the commencement of the CCO as pre-sentence detention.

18 The respondent submitted, however, that the text of s 83AS(1) did not permit the judge to take the course contended for by the applicant. The respondent noted that s 83AS(1) only permits the cancellation of the CCO and not the setting aside of any term of imprisonment that has already been served as part of a combination sentence. The respondent's position was that a sentencing judge, complying with s 83AS(1), might cancel a CCO and impose a term of imprisonment in respect of the original offences. In fixing such a term of imprisonment, the sentencing judge would be required to take full account of any time served in custody under the sentence originally imposed.

19 While the respondent contended that either approach should ultimately result in the same total period of time being served in custody, it submitted that the approach contended for by the applicant had the potential to lead to anomalous results in certain circumstances.[8]

20 Section 83AS(1) provides alternative courses that may be taken with respect to a CCO that has been contravened. The section does not expressly state what (if anything) is to occur in relation to any other penalty imposed on the offender at the time of sentencing. While s 83AS(1)(c) requires a court, upon cancellation of the CCO, to 'deal with the offender as if it had just found him or her guilty of [the original] offence', the section does not expressly provide for the setting aside of any term of imprisonment or fine that may have been imposed as part of a combined sentence.

21 As the parties have identified, under s 83AS(1)(c), two possibilities arise when a court is faced with a contravention of a CCO that was imposed in combination with a sentence of imprisonment. The following matters tell in favour of setting aside the original term of imprisonment before imposing another term of imprisonment, for which the earlier time served will be declared as pre-sentence detention:

(1) Section 83AS(1)(c) requires the Court to deal with the offender 'as if it had just found him or her guilty' of the earlier offending.[9]

(2) Section 18(1) requires the Court to declare pre-sentence detention for any period of imprisonment already served under a sentence for the same offence 'unless the sentencing court ... otherwise orders'.

(3) If the earlier term of imprisonment is not set aside, there remains a risk that the imposition of two separate sentences of imprisonment might exceed the maximum prescribed period of imprisonment for the relevant offence.

(4) The imposition of two separate sentences of imprisonment for the same offence has the capacity to affect what might otherwise be regarded as an entitlement to the fixing of a non-parole period under s 11(1)(b) where the total period in custody ordered in respect of a particular offence exceeds two years.

22 An additional consideration favouring a construction of s 83AS(1)(c) that requires the primary judge to set aside the original term of imprisonment is the role of this Court on appeal. On appeal, if this Court is satisfied that there is an error in the sentence first imposed and that a different sentence should be imposed, this Court must set aside the sentence imposed by the primary judge and (absent remitter) impose the sentence that it considers appropriate.[10] In order to achieve this purpose, this Court must have before it the whole of the sentence imposed (not merely that part of the sentence imposed following the contravention of the CCO). A construction of s 83AS(1)(c) that gives this Court the power to impose whatever sentence it thinks should be imposed upon a re-sentencing is one that more naturally accords with the provisions governing appeals to this Court under Part 6.3 of the CPA.

23 While both courses identified by the parties should ordinarily be expected to yield the same outcome, for the reasons just given, the better approach is for the judge to set aside the whole of the sentence imposed (that is, by cancelling the CCO and setting aside the term of imprisonment earlier imposed). The Court would then sentence afresh, 'as if [the Court] had just found [the offender guilty]' of his or her earlier offending. Pre-sentence detention would then be declared, and would include the time already served by the offender under the original sentence of imprisonment. This approach would see an offender's entitlement (if any) to the fixing of a non-parole period being the same irrespective of whether a sentence of imprisonment was first imposed, or imposed following the contravention of a CCO that was an element of a combination sentence. Contrary to the respondent's submission, this approach decreases the possibility of anomalous outcomes.

24 In the present case, the judge did not take the approach we have just identified. Instead, he imposed a second term of imprisonment in respect of the earlier offending. Moreover, it appears that, in sentencing the applicant, the judge did not take into account the 12-month period served prior to the commencement of the CCO. It is that approach that has produced, what has been conceded to be, a manifestly excessive sentence - and one that breaches principles of totality.

25 Having regard to the errors made by the judge, to which we have already referred, the applicant's appeal must be allowed and the applicant re-sentenced. The applicant's breaches of the CCO commenced within three weeks of the commencement of the CCO. There were then multiple breaches constituted by further offending and breaching each of the supervision, treatment, rehabilitation and work requirements of the CCO.

26 In all the circumstances, we would sentence the applicant to a term of imprisonment of 2 years and 6 months in respect of the original offending. This is the same length as the original term of imprisonment term coupled with the CCO. In our view, it would be a very unusual case where, having cancelled a CCO under s 83AS(1), a court would then impose a term of imprisonment that was longer than the period of the original combination sentence. We see no basis for taking such a course in the present case.

27 Section 83AS(2) requires the Court to 'take into account the extent to which the offender has complied with the order'. In this case there was much 'non-compliance', and little substantial compliance. Moreover, whatever the applicant's prospects for rehabilitation might have been when he was originally sentenced, those prospects should now be regarded as diminished by the applicant's multiple failures to comply with the CCO, and his subsequent offending.

28 To the extent that the applicant submitted that a term of imprisonment now imposed should be less than 2 years and 6 months (being the total period of the initial combined 12 month term of imprisonment and 18 month CCO) because the length of a CCO is 'likely to be longer - often, markedly longer - than the term of imprisonment which might otherwise have been imposed',[11] that submission must be rejected in this case. While such a submission might find favour in different circumstances, the circumstances of the applicant's original offending, and his history following his release from custody in January 2016, have led us to the conclusion that the appropriate term of imprisonment now to be imposed for the original offending is 2 years and 6 months (30 months).

29 For the contravention of the CCO, we would sentence the applicant to two months' imprisonment. The applicant pleaded guilty to this offence. The maximum term of imprisonment is, as we have said, three months. While the applicant's breaches of the CCO were a serious contravention of that order, they were not deserving of the maximum term of imprisonment. Moreover, the judge should have given credit (and we will give credit) for the applicant's plea of guilty.

30 In our view, one month of the two month sentence for contravening the CCO should be served cumulatively on the 30 months' sentence for the original offending, making a total effective sentence of 31 months. We would then fix a non-parole period of 24 months, before declaring, as pre-sentence detention, the periods the applicant spent in custody before his CCO commenced, and since his arrest on 11 August 2017. While this non-parole period might be thought to be high as a proportion of the new head sentence, we think that the applicant's now diminished prospects of rehabilitation (evidenced by his repeated breaches of the CCO and further offending while on the CCO) require a longer than usual non-parole period.

31 The application for leave to appeal will be granted, and the appeal allowed. The sentence imposed in the County Court on 22 November 2017 will be set aside, and the applicant will be re-sentenced to a total effective sentence of 31 months' imprisonment with a non-parole period of 24 months. Pre-sentence detention covering all of the applicant's time in custody for the original offending, and later contravention of the CCO, will be declared.

[1] See Quick v Creanor [2015] VSCA 273; (2015) 49 VR 479, 484 [22].

[2] For which the applicant was subsequently dealt with at the Melbourne Magistrates' Court on 30 November 2017, receiving a sentence of five months' imprisonment to be served concurrently with the sentence imposed by the judge on 22 November 2017.

[3] See s 83AD of the Sentencing Act 1991.

[4] Section 278 of the CPA permits a person 'sentenced for an offence by an originating court' to appeal to the Court of Appeal against the sentence if the Court of Appeal gives the person leave to appeal. 'Originating court' is relevantly defined in s 3 of the Act to mean 'the County Court in its original jurisdiction'. 'Original jurisdiction' is relevantly defined to include 'a proceeding for variation or contravention of a sentencing order under the Sentencing Act 1991'.

[5] See ss 113 and 113A of the Sentencing Act 1991.

[6] See s 113B of the Sentencing Act 1991.

[8] The possibility of anomalous results was said to be caused by non-parole periods being required to be fixed for short additional periods of imprisonment, pursuant to s 11(2) of the Sentencing Act, in circumstances where the same may not be appropriate having regard to matters such as the offender's prospects of rehabilitation, specific deterrence and the need to protect the community.

[9] Note the difference in language in the use of the words 'as if', rather than the use of the word 'if' as in ss 48M(2)(b), 83ASA(1)(d) and 83AT(1)(d).

[11] See Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308, 337 [122].