McAleer v The Queen [2015] VSCA 4

1 On 12 August 2014, the applicant pleaded guilty to aiding and abetting trafficking in a drug of dependence, methylamphetamine[1] (charge 1), and possession of an unregistered general category handgun[2] (charge 2).

2 Following a plea hearing conducted on 12 and 22 August 2014, the judge sentenced the applicant on 22 August 2014 to be imprisoned for 20 months on charge 1, and for 10 months on charge 2. Four months of the sentence of imprisonment on charge 2 was ordered to be served cumulatively with the sentence on charge 1. The total effective sentence was thus two years' imprisonment, upon which the judge fixed a non-parole period of 10 months.

3 The applicant seeks leave to appeal on two grounds which, despite their drafting, should we think be regarded as particulars of a complaint of manifest excess:

1. The sentencing judge erred by failing properly to give effect to the fact that the Applicant fell to be sentenced as a youthful offender.
2. In all the circumstances, the decision to impose a sentence of imprisonment and require that some portion of it be served immediately caused the sentencing discretion to miscarry.

4 For the reasons that follow, we would grant leave to appeal, allow the appeal and resentence the appellant to a community correction order ('CCO') of two years' duration.

5 The appellant's counsel accepted as accurate the factual background as outlined by the prosecutor:

The Crown case is put that [the appellant] lived with Dean Murphy who was a high-level methylamphetamine dealer. ...

Dean Murphy's phone was intercepted lawfully by police which led them to execute a search warrant at the premises that they shared together at 71 Victoria Street, Seddon.

When police executed a warrant at that premises on 19th April 2014 (sic 2013) they located and seized amongst other things, three exercise books that contained the [appellant's] handwriting, and also what the Crown says is Murphy's handwriting, which recorded details of amounts owed, paid and property traded by clients to reduce their drug debts. The Crown case is that [the appellant] maintained a drug ledger of Murphy's drug trafficking business and thereby assisted and encouraged his drug trafficking. This constitutes the majority of the case against [the appellant] in relation to Charge 1.

Police also located a handwritten note from [the appellant] indicating that she had paid a plasterer one gram of amphetamine for his work. ... This is further evidence of aiding and abetting the drug business of Murphy that constitutes part of Charge 1.

It is the Crown case that [the appellant] was well aware of the drug trafficking activities of Murphy and assisted and encouraged him and thereby aided and abetted his drug trafficking by maintaining these registers of transactions of the business. The Crown case is when the figures are added up, it amounts to approximately $300,000 worth of drug dealing.

Charge 2 relates to an incident on 18th April 2013 when Murphy was wishing to collect on a significant drug debt owed to him by a person called Osman. He made a request of the [appellant] to retrieve a sawn-off .22 rifle with a silencer and ammunition from their premises in Victoria Street, Seddon, and take it to him where he was waiting in a stolen Nissan Pathfinder sedan. She concealed that firearm in a silver sunshade and took the weapon in that form out to him in that vehicle.

There had been previous communications between Murphy and the [appellant] where Murphy was telling her that he was going to 'kill this cunt tonight' ... 'I'm gonna drive back now, can you bring out to me the thing in the sunshade and the yellow box, please, hon'.

[The appellant] proceeded to tell him to think straight and that she didn't want to lose him over this, but complied with his request to take the firearm to him. Her involvement was confined to bringing out the unregistered firearm to him from their premises and the Crown case is that she was in possession of it for that limited amount of time.

6 On the plea hearing, the appellant's counsel submitted that the appropriate sentence was a CCO.

7 At the time of the plea hearing, the imposition of a suspended sentence of imprisonment remained open to the sentencing judge. That was significant, since the prosecutor did not press for a period of imprisonment immediately to be served. He submitted:

The submission is, Your Honour, that a sentence of imprisonment is appropriate here. How that is served is not a matter that the Crown presses for immediate service. It's noted that the amendments in relation to serious and significant offence have not taken a suspended sentence out of the equation for Your Honour's sentencing discretion in this matter.

A little later, when asked by the judge specifically whether a CCO was open, he said:

Well perhaps a combination is within the range. Three months [imprisonment] and a community correction order, as I understand it, is possible. ... So Your Honour has two offences and a combination can be - sentence can be imposed. If that was done, the Crown would not be saying that was out of range. ...

And later still, the prosecutor, in the following exchange, made it plain that a sentence of imprisonment immediately to be served was not being sought:

HER HONOUR: I thought you were saying an immediate term of three months and a combination ...

[PROSECUTOR]: No, I indicated that an immediate term was not being sought, so I'll maintain that.

HER HONOUR: You are saying it's within the range, though, aren't you?

[PROSECUTOR]: I am saying it's not outside the range, Your Honour, if I'm choosing my words carefully, but that's not the submission that I'm actually pressing on the court.

8 Despite the attitude adopted by the prosecution, however, the judge imposed a sentence of imprisonment which was not suspended (but which had a non-parole period fixed).

9 The sentencing judge observed that the appellant's offending called for denunciation, and that 'strong weight must be given to general deterrence'. She placed some weight ('albeit limited') on specific deterrence and protection of the community.

10 With respect to the offending, the judge observed that the appellant was the book keeper in 'an evil enterprise', methylamphetamine ('ice') being 'a scourge on the community'. She noted that, although the appellant may herself have used ice, it had not been put that she took part in criminal activity to support her drug use. The appellant's moral culpability was, the judge thought, 'high', given that she knew that she was assisting in a 'not insignificant' and relatively sophisticated business of distributing methylamphetamine, her role being 'most important' in its successful running. Her Honour also regarded the appellant's possession of handgun as a serious example of the offence, albeit that her possession was for a limited time. Although the appellant had tried to talk Murphy out of using the gun, she had still given it to him. Murphy, the judge noted, is 38 years of age. The appellant had met him through mutual friends in late 2012 and commenced a relationship with him not long afterward. Murphy had the central role in the drug trafficking business. The judge took into account that he was 'a good deal older' than the appellant, had a prior criminal history, and seemed to have had 'the upper hand' in the relationship.

11 As to the appellant's personal circumstances, the judge noted that the appellant was aged 24 years (she having been 22 at the time of the offending). She had completed year 12, and had obtained qualifications enabling her to work in childcare. The appellant had, the judge noted, been arrested at work. She had been dismissed and her licence to work with children had been revoked, destroying her intended career path.

12 The judge said that the appellant pleaded guilty 'at a relatively early stage', and that entitled her to a 'significant discount' in sentence. As against that, the judge observed that the appellant 'took a stance of "no comment" when interviewed by police and it took negotiation at the door of the committal hearing after police had deciphered the ledgers for [her] to plead guilty'. Despite 'full credit' for the relatively early guilty plea, 'the stance that [the appellant] took with police and the lack of expression of insight on the plea do not manifest a picture of complete remorse'. In light of the appellant's relatively early plea of guilty, however, her lack of prior convictions and her 'wherewithal to work in a legitimate job in the future', the judge regarded her prospects of rehabilitation as 'fairly good'. Her Honour accepted that the appellant was 'otherwise good character', and had 'a fairly good work ethic'. Moreover, the judge also 'factored in that the end of [her] career in childcare has acted as a punishment to a degree'.

13 Ultimately, notwithstanding that the prosecutor did not seek an immediate term of imprisonment - and being 'aware of the desirability to maximise [the appellant's] prospects of rehabilitation as a youthful offender who is before the Courts for the first time' - the judge thought the offending as too serious to merit anything other than a term of immediate imprisonment.

14 In the written case, counsel for the appellant submitted that the nature of the appellant's offending was not so serious 'as to justify the subjugation of her youth - and its significance in the sentencing process - to other considerations'. Rehabilitation, it was argued, should have been 'at the forefront of the judge's exercise of the intuitive synthesis'. The appellant was aged 22 years during the period of her offending. She had no prior convictions and had nothing pending.

15 Counsel challenged the judge's opinion that appellant's offending was too serious to merit anything other than a term of immediate imprisonment. To the contrary, he submitted, the appellant and her offending did not necessitate 'recourse to the disposition of last resort'. By ordering that the appellant be imprisoned, the sentencing judge erred. Inherent in that error was a failure on the judge's part to give effect to the appellant's youth and its synthesis.

16 The appellant, counsel submitted, was at least influenced by a mature and more experienced principal offender. She had aided and abetted the commission of two crimes at his instigation and direction. Further, counsel argued that the appellant is, because of her immaturity, liable to be more vulnerable to the polluting influences of gaol. It was contended that a youthful offender ordinarily must be seen as being capable of reclamation; and since protection of the community must be the aim of all sentencing - and such protection must be advanced by the rehabilitation of an offender - a sentence which promotes rehabilitation is to be encouraged. Imprisoning a young person rarely advances community protection.

17 Beyond the appellant's youth, the appellant's counsel also relied on 'a constellation of mitigating features and other considerations', including her early plea of guilty; remorse; that she was 'in a very real sense Murphy's subordinate'; that the appellant had not previously offended (and had nothing pending); her previous good character; the loss of a career which her offending had brought to an end; her sound work ethic; and the family support that she continues to enjoy.

18 Drawing all of those threads together, counsel submitted that 'one is compelled to the view that it was not open to the judge to send the [appellant] to gaol'.

19 With perspicuous fairness, in the course of the hearing in this Court, counsel for the respondent submitted that, when she imposed sentence, the sentencing judge did not have the benefit of the guidance provided by this Court's judgment in Boulton.[3] In light of that decision, counsel conceded that it was open to the Court to impose a CCO in conjunction with a short period of imprisonment (which the applicant should be considered to have already served).

20 The task of an appellate court in a case such as this was described by Lowe and Gavan Duffy JJ said in Taylor and O'Meally:[4]

It will not proceed by considering at once what the individual members of the bench consider an appropriate punishment. On the contrary it will look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously - not merely arguably - too severe or too lenient, it will not interfere.

21 Similarly, in Dinsdale, Gleeson CJ and Hayne J observed:[5]

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at that conclusion. ...

22 We would uphold the thrust of the appellant's contentions. In our opinion, when viewed against the appellant's youth, her previous good character and lack of prior convictions, her early plea of guilty, her good prospects of rehabilitation and the influence exerted over her by her older paramour, the appellant's offending did not merit a sentence of imprisonment immediately to be served.

23 When called upon to sentence the appellant, as we have observed the judge did not have the benefit of this Court's recent judgment in Boulton, which provides guidelines concerning the imposition of community correction orders. Boulton recognises that a CCO is by its nature punitive, and that a CCO may be appropriate even for offences of some seriousness (and which might previously have attracted a sentence of imprisonment). The Court observed: [6]

The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.

The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.

In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, 'How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?' As we have endeavoured to explain, that question should mark the beginning, not the end, of the court's consideration.

The views we have expressed are reinforced by the recent insertion into the Act of s 5(4C). This provision came into force on 29 September 2014, after the completion of argument in the present proceeding. The new subsection provides as follows:

A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.

... What is most powerful about s 5(4C) is that it prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:

(a) the purposes for which sentence is to be imposed on the offender; and

(b) whether those purposes can be achieved by a CCO to which one or more of the specified (onerous) conditions is attached.

The process of deliberation which this provision requires should assist in the reconceptualisation of sentencing options to which we have referred. In particular, that process will throw into much sharper focus the distinction we have sought to draw, between the narrow punitive purpose (and effect) of imprisonment, on the one hand, and the multi-purpose character of the CCO. The sentencing court should ask itself a question along the following lines:

Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?

25 In our opinion, there is no 'feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option'. Rather, in our view the present is a case where the peculiar features of the offending, and of the appellant, support the conclusion that a CCO was eminently appropriate. We regard the sentence of imprisonment imposed as manifestly excessive. It should be quashed. Consistently with Boulton, the proper exercise of discretion dictated that the appellant should have been sentenced to a CCO of a duration of two years on both charges. That is the course we now propose.

26 Ordinarily, it would have been appropriate to attach a condition to the CCO requiring the appellant to perform a significant number of hours community work. The appellant has, however, served in excess of five months' imprisonment. That was significant punishment. In light of that fact, we would not require the appellant to perform any community work, since to make such a requirement would, in the particular circumstances confronting the Court, be unduly punitive.

27 We would grant leave to appeal, allow the appeal and set aside the sentence imposed by the County Court. In lieu, with the appellant's consent[9] we would impose a CCO of two years' duration. Having received a pre-sentence report and had regard to its contents,[10] apart from the conditions that attach to every CCO,[11] we would attach a treatment and rehabilitation condition relating to drug abuse and dependency (the details of which will be specified in the order),[12] and a condition that for the duration of the CCO the appellant not contact or associate with Dean Murphy.[13]

[1] Drugs, Poisons and Controlled Substances Act 1981, ss 80(1) and 71AC. The maximum penalty is 15 years' imprisonment.

[2] Firearms Act 1996, s 7B(1). The maximum penalty is seven years' imprisonment.

[3] Boulton v The Queen [2014] VSCA 342 ('Boulton').

[4] R v Taylor and O'Meally [1958] VicRp 46; [1958] VR 285, 289.

[5] Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (emphasis added). See also DPP v Werry (2012) 37 VR 524, 534 [52]-[53] (Warren CJ, Maxwell P, Buchanan, Weinberg and Bongiorno JJA).

[6] Ibid [113]-[115] (footnote omitted).

[9] Sentencing Act 1991, s 37(c).

[10] Ibid s 37(b).

[11] Ibid s 45.

[12] Ibid s 48D.

[13] Ibid s 48F.