Mourkakos v The Queen [2018] VSCA 26

CRIMINAL LAW - Appeal against conviction - Possession of firearms while prohibited person - Shotgun and pistol in same gun bag - Applicant found guilty of possession of shotgun but not pistol - Whether verdicts inconsistent and irreconcilable - No error established - Mackenzie v The Queen (1996) 190 CLR 348 applied.

CRIMINAL LAW - Appeal against sentence - Whether judge erred by using fact that applicant was prepared to 'prey on others' despite experience as a drug addict adversely to him - Whether judge erred in failing to take into account punitive element of applicant's stay at residential rehabilitation facility while on bail - No error established - Akoka v The Queen [2017] VSCA 214 applied.

1 The applicant was charged with the offences set out in the table below. Following a trial in the County Court, on 13 February 2017, the jury returned the verdicts set out in that table. On 3 March 2017, he was sentenced as set out in that table.[1]

Trafficking in a drug of dependence (Methylamphetamine) ('ice') - Commercial quantity [s 71AA Drugs, Poisons and Controlled Substances Act 1981 ('DPCSA')]

Possession of a drug of dependence (ice) [s 73(1) DPCSA]

Trafficking in a drug of dependence (MDMA) [s 71AC DPCSA]

Possession of a firearm whilst being a prohibited person (pistol) [s 5(1) Firearms Act 1996]

Possession of a firearm whilst being a prohibited person (shotgun)

Possession of a firearm whilst being a prohibited person (pistol)

Make a threat to kill [s 20 Crimes Act 1958]

2 Charge 2 was an alternative to charge 1, charge 4 was an alternative to charge 3, charge 6 was an alternative to charge 5, and charge 8 was an alternative to charge 7. In relation to charge 1, the judge also left to the jury the statutory alternative of trafficking in ice. As the jury found the applicant guilty on charges 1 and 7, no verdict was taken in relation to charges 2 and 8 or the statutory alternative to charge 1.

3 The applicant has sought leave to appeal against conviction and sentence. The application for leave to appeal against conviction relies on two grounds, namely, that the judge impermissibly dictated to the jury the sequence of its deliberations and that the guilty verdict on charge 10 is inconsistent and irreconcilable with the not guilty verdict on charge 9.

4 The application for leave to appeal against sentence relies on the ground that the judge erred in finding that the applicant was prepared to prey on others notwithstanding that he knew the misery that was caused by ice, and using that finding adversely to the applicant. On the hearing of the application, the applicant sought leave to add a new ground, namely, that the judge had failed to take into account the punitive element of his stay of 14 months at a residential rehabilitation facility while he was on bail for the current charges. The proposed new ground relies on the principles regarding 'quasi-custody' discussed in Akoka v The Queen[3] which was published after the applicant was sentenced.

5 For the reasons that follow, the application for leave to add the new ground, the application for leave to appeal against conviction and the application for leave to appeal against sentence will be refused.

6 The allegations against the applicant were set out in an amended summary of prosecution opening. Those allegations are set out at [7]-[17] below.

7 On 30 April 2015, police stopped the applicant while he was driving a Hyundai vehicle along Beaumont Crescent, Lalor. The applicant allowed police to search the car. They located the following items:

(a) a black leather wallet containing $1,500 cash and an ANZ bank card in the name of Tim Blackshaw on the passenger seat;

(b) $4,500 cash in an envelope in the centre console;

(d) receipts for cash deposits totalling at least $45,000;

8 While speaking to police, the applicant told them his current phone numbers were 0448 082 944, 0404 311 801 and 0402 428 528.

9 The applicant was not arrested or charged on that occasion.

10 On 12 June 2015, police executed a search warrant on a house owned by the applicant at 14 Beaumont Crescent, Lalor, where he was living with his parents. When police entered the house, the applicant was standing inside the doorway of the first bedroom. Police found the following items in that bedroom:

(a) a black leather wallet, on top of the right bedside table, containing:

(iii) a car key that police later learned belonged to a Toyota Camry sedan registration SNR847 parked nearby outside 4 Hertford Place, Lalor;

(iv) two small keys that police later learned opened a black safe in the boot of the Toyota Camry;

(b) next to the wallet, three mobile phones whose numbers were the same as three of those located in the Hyundai vehicle on 30 April 2015;

(c) $41,280 cash in the top drawer of the left bedside table;

(d) two digital scales and some clear plastic zip lock bags together in the same drawer;

(e) an electric money counting machine in a plastic bag on the floor;

(f) a set of digital scales topped with what appeared to be cannabis residue on top of the TV entertainment unit; and

(g) a registration certificate for the Toyota Camry, in the name of the applicant's mother, in a plastic bag full of rubbish on the bedroom floor.

11 Later that day, police executed a search warrant on the Toyota Camry where it was parked outside 4 Hertford Place, Lalor. Police unlocked the car using the key they had located in the applicant's bedroom and found the following items:

(a) a black safe, in the boot of the car, which police opened with the small keys they had located in the applicant's bedroom, and which contained:

(i) a snap lock bag and a plastic bag, both containing ice;

(ii) two snap lock bags containing MDMA, or 'ecstasy'; and

(b) a black cloth gun bag, in the boot of the car, which contained:

(i) a Browning .22 pistol with magazine (charge 9: Prohibited person possessing a firearm); and

(ii) a Winchester 12 gauge pump action shotgun with a box of Imperial 12 gauge, 70 mm cartridge ammunition (charge 10: Prohibited person possessing a firearm);

(c) a Beretta .22 pistol with magazine and a snap lock bag containing .22 ammunition, in the boot of the car (charge 11: Prohibited person possessing a firearm);

(d) an 'Expressi' box containing multiple bags of dried cannabis, in the boot of the car;

(e) a set of digital scales, in the boot of the car;

(f) a green shopping bag, in the rear footwell of the car, which contained:

(g) letters and personal papers in the name of the applicant's parents and a

prescription in the name of the applicant, in the glove box; and

12 Police went back to 14 Beaumont Crescent, Lalor. While they were there, the applicant's mother began complaining of chest pains. Police called an ambulance. While waiting for an ambulance, the applicant said to one of the police officers, 'If something happens to my mother, I'm going to hunt you down in the fucking street and fucking kill you.' The police officer felt scared that the applicant would carry out this threat. (Charge 12: Make a threat to kill.)

13 Subsequent analysis of the drugs seized returned the following results:

(a) The ice ranged in purity from 71 per cent to 90 per cent and weighed a total of 577.2 grams, thereby exceeding the commercial quantity threshold of 500 grams that was applicable to that drug. (Charge 1: Traffick commercial quantity of ice and alternative charge 2: Possession of ice.)

(b) The MDMA was 24 per cent pure and weighed a total of 116.6 grams, thereby exceeding the traffickable quantity applicable to that drug. (Charge 3: Traffick MDMA and alternative charge 4: Possession of MDMA.)

(c) The cocaine ranged in purity from 62 per cent to 68 per cent and weighed a total of 4.9 grams, thereby exceeding the traffickable quantity applicable to that drug. (Charge 5: Traffick cocaine and alternative charge 6: Possession of cocaine).

(d) The cannabis weighed a total of 875.1 grams, thereby exceeding the traffickable quantity applicable to that drug. (Charge 7: Traffick cannabis and alternative charge 8: Possession of cannabis.)

14 Biological material was found on the following items that were located in the safe in the boot of the Toyota Camry:

(a) the clip seal region of a medium snap lock bag containing 78 grams of ice with a purity of 71 per cent;

(b) the outside surfaces of three small snap lock bags (combined sample) containing a total of 33.2 grams of ice with a purity of 86 per cent;

(c) a small snap lock bag containing 0.4 grams of cocaine with a purity of 68 per cent;

(d) a knotted plastic bag containing 4.5 grams of cocaine with a purity of 62 per cent;

(e) the clip seal regions of a large snap lock bag containing 351.8 grams of ice with a purity of 87 per cent and another large snap lock bag in which it was packaged (combined sample); and

(f) the clip seal regions of a small‐medium zip lock bag containing 27.6 grams of ice with a purity of 89 per cent and two medium‐large zip lock bags containing 116 grams of MDMA with a purity of approximately 24 per cent (combined sample).

15 The results of DNA analysis of profiles taken from that biological material were that the profiles were 100 billion times more likely to occur if the applicant was a contributor to the biological material than if he was not.

16 Fingerprint comparison of a latent fingerprint found on the zip lock bag referred to at [11(a)(i)] above matched the print to the applicant.

17 The prosecution alleged that the applicant was in the business of drug trafficking. It relied on the location of cash and drug trafficking paraphernalia on both 30 April and 12 June 2015 as circumstantial evidence of that fact.

18 Relevantly, s 70 of the DPCSA defines 'traffick' to include possession of a drug of dependence for sale.

19 The defence case at trial was that the drugs and firearms that were in the Toyota Camry did not belong to the applicant. The applicant's first cousin, George Mourkakos, gave evidence that the car was given to him by the applicant's mother to use, that the drugs and guns belonged to him and that he had been trafficking in ice for approximately three years.

20 As the jury found the applicant guilty of charges 1, 4, 6, 7, 10 and 11, it obviously did not accept George Mourkakos's evidence.

PART A: APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION

21 The applicant's proposed grounds of appeal against conviction are as follows:

1. A substantial miscarriage of justice occurred in the trial of Charge 1 and Charge 7 as a result of directions by the trial judge to the jury that undermined the freedom which jurors enjoy at law to order their deliberations as they see fit. In particular, the trial judge erred by:

(a) dictating impermissibly the sequence in which the jury deliberated the charges on the indictment; and

(b) failing to direct the jury that they were free to organise their deliberations in whatever order they chose.

1. The jury's guilty verdict on Charge 10 is inconsistent and irreconcilable with its not guilty verdict on Charge 9.

Proposed Ground 1: Fettering of the jury's deliberations

22 In Stanton v The Queen,[4] a majority of the High Court (Gleeson CJ, McHugh and Hayne JJ) stated that jurors are free to organise their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient.[5] The majority also stated that a corollary of this freedom is that a judge cannot direct a jury as to the sequence of its deliberation and thereby impermissibly restrain it in the manner in which it might properly exercise its function.[6] We will refer to this principle as 'the principle in Stanton'.[7]

23 Where an accused is charged with more than one offence, or there is a statutory alternative to a charge on the indictment, a judge may direct the jury about the sequence and manner in which its verdicts will be returned.[8] However, a judge must not direct the jury as to the order in which it should consider the charges or the issues raised by each charge. Likewise, a judge cannot direct a jury that it must refrain from considering an alternative charge until it has completed its consideration of the primary charge.[9] On the other hand, a judge can direct a jury that it cannot find an accused guilty of an alternative charge unless it has reached a unanimous verdict of not guilty on the primary charge.[10]

24 One of the perceived risks of directing a jury to order its deliberations in the manner in which its verdicts will be taken is that the jury will start with the more serious primary charges and not consider - or not properly consider - any less serious alternative charges.

25 Where it is alleged that a judge's direction has infringed the principle in Stanton, the impugned direction must be considered in the context in which it was given, including the issues as they emerged at trial, the other directions the judge gave the jury and the precise terms of any questions asked by the jury and the judge's answers to those questions.[11]

26 A number of cases involving alternative charges have considered the circumstances in which a trial judge's directions to the jury will impermissibly fetter the manner in which the jury may deliberate.

27 In Stanton, the accused was charged with wilful murder before a jury in the Supreme Court of Western Australia. The alternative charges of murder and manslaughter were left to the jury. The sole substantial issue of fact was the intent with which the accused had killed the deceased, which meant that only the verdicts of wilful murder and manslaughter were realistically open. The jury found the accused guilty of wilful murder. The trial judge gave the following directions to the jury:

You first consider wilful murder and if you're unanimously of the view that the accused is guilty of wilful murder, that will be your verdict. If you are unanimously of the view that he's not guilty of wilful murder, then you proceed to consider whether you find him guilty of murder. If you are unanimously of the view that he is guilty of murder, then that will be your verdict.

If you are unanimously of the view that he's not guilty of murder, then you will consider manslaughter. If you are unanimously of the view that he is guilty of manslaughter, then that will be your verdict. If you are unanimously of the view that he is not guilty of manslaughter, then the verdict will be not guilty.

I suggest you start your deliberations by considering whether the killing was unlawful in the sense of whether it was not accidental. Unless you're satisfied of that; that is, unless you're satisfied to the required degree that the shooting was not accidental, then the verdict must be not guilty and that will be that. It's entirely for you, of course, but the circumstances are such that I think you will hardly bring in a verdict of not guilty in this case. I don't think you will have any difficulty in concluding that ... pointing a loaded and cocked shotgun at the chest of another with your finger on the trigger is, at the very least, such a grossly negligent act as to rule out accident.

If you decide that the killing was unlawful in the sense that it was not an accident, then the verdict must be at least manslaughter. If intent to kill is proved, the verdict must be wilful murder. If intent to do grievous bodily harm is proved, the verdict must be guilty of murder.

...

When you are ready to deliver your verdict you will be asked first whether you find the accused guilty or not guilty as charged and whatever that verdict is, whether guilty or not guilty, it must be unanimous.

If the verdict is not guilty as charged then you will be asked whether the verdict - whether you find the accused guilty or not guilty of murder and so on. On each announcement of your verdict you will be asked whether it is the verdict of you all. They are all the matters that I wish to mention to you.[12]

28 About four hours after the jury retired, it asked the following questions:

If the jury is in conflict, do those who believe he is guilty of wilful murder have to move down to the charge of manslaughter? Do 12 people have to agree to manslaughter?[13]

29 The judge provided the following further direction:

Yes, the law is quite clear. You can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder. So, whatever your verdict is on the first charge of wilful murder, it must be unanimous.[14]

30 The majority in Stanton held that the trial judge's directions did not infringe the principles set out at [22]-[25] above. The majority found that as the sole issue the jury had to decide, regardless of the order in which it considered the evidence, was intent, it was difficult to understand how sequential reasoning could arise. The majority also found that the trial judge was entitled to suggest to the jury (as distinct from directing it) that it start by considering whether the killing was unlawful before considering the issue of intent. This was because the verdict would be 'not guilty' if the jury was satisfied that the killing was not unlawful. Finally, the majority found that, as sequential reasoning could not arise, the trial judge's response to the jury's question using the word 'consider' was about the formal act[15]f finding a verdict.15

31 The proper construction of a provision that set out a less serious alternative charge was considered in King v The Queen.[16] In that case, the accused had been charged under s 318(1) of the Crimes Act 1958 with two charges of culpable driving causing death. Section 422A(1) of the Crimes Act 1958 provided as follows:

If on the trial of a person charged with an offence against section ... 318 (culpable driving causing death) the jury are not satisfied that he or she is guilty of the offence charged but are satisfied that he or she is guilty of an offence against section 319 (dangerous driving causing death or serious injury), the jury may acquit the accused of the offence charged and find him or her guilty of the offence against section 319 and he or she is liable to punishment accordingly.

32 The accused was convicted on both charges of culpable driving causing death after a trial by jury in the County Court. He appealed on the ground that the judge had misdirected the jury on the alternative charge of dangerous driving causing death. A majority of the High Court (French CJ, Crennan and Kiefel JJ) stated that s 422A(1) should be interpreted as follows:

As a matter of construction, the power to deliver an alternative verdict of guilty of the offence under s 319 is conditioned upon the jury not being satisfied that the accused is guilty of the offence charged under s 318. It is only 'if' the jury are not so satisfied that their attention is directed to the lesser offence. Consideration of the s 318 offence may therefore be seen as a condition precedent to consideration of the offence under s 319. The word 'may' in s 422A(1) is in the nature of a permission, which may be acted upon, when the jury is satisfied that the accused is guilty of the offence under s 319. That word governs the composite term 'acquit ... and find him or her guilty of the offence against section 319'. There is no other source of power conferred by the Crimes Act to return a verdict for a lesser offence where culpable driving causing death is charged.[17]

33 The majority further considered the construction of s 422A(1), as follows:

The Crown sought to invoke the proviso submitting ... that the findings of fact made and the conclusion reached by the jury as to the more serious offences under s 318 meant that any misdirection as to the lesser offences under s 319 could not have affected the outcome in this case. That submission directed attention to the provisions of s 422A of the Crimes Act. That section conditions the jury's power to return a verdict of guilty of an offence against s 319, in relation to a person charged with an offence against s 318, upon their want of satisfaction that the person is guilty of the offence against s 318. That is to say, the jury has no power to return the alternative verdict unless first satisfied that the person is not guilty of the offence against s 318.[18]

34 The majority concluded that the judge had not misdirected the jury on the alternative charge under s 319 of the Crimes Act 1958 and therefore it was not necessary to consider the applicability of the proviso.

35 In Bouch v The Queen,[19] this Court considered whether a judge's direction to a County Court jury infringed the principle in Stanton. In that case, the accused was charged with offences that included one charge of culpable driving causing death by gross negligence. The statutory alternative charge of dangerous driving causing death - to which the accused had pleaded guilty - was left to the jury. The jury found the accused guilty of the culpable driving charge.

36 Before this Court, the accused contended that a substantial miscarriage of justice had occurred as a result of the trial judge's direction that the jury 'only consider' the alternative charge of dangerous driving causing death if it was not satisfied that the accused was guilty of culpable driving. As the accused had pleaded guilty to dangerous driving causing death in the presence of the jury, the jury was, similarly to the circumstances in Stanton, effectively required to determine a sole issue. That issue was whether the accused's driving was grossly negligent for the purpose of the offence of culpable driving causing death.

37 The judge's directions which the accused sought to impugn, including in response to a question from the jury, were as follows:

I've got your question, Madam Foreman, and the answer to your question, I'll read it so that everyone knows what it is, 'Can we have a clear definition between culpable and dangerous driving, negligent versus dangerous driving?' and the answer is I'll be giving you quite explicit directions about that in my charge, which will be very soon, I think. I won't answer it now. In essence, you don't need to concern yourself with dangerous driving. I will be telling you what [is] culpable. That's the question. Is it culpable or is it not? That's what this case is about.

...

There is another offence known to the law of dangerous driving causing death, and that is, any time that there's a charge of culpable driving alleged by the Crown, as there is here, Parliament prescribes that there must be an alternative offence left to the jury of dangerous driving causing death. It is a lesser offence than culpable driving, but it is a serious offence.

You have heard the accused man plead guilty to that when he was arraigned on culpable driving. ...

The issue in this trial is whether or not the driving of the accused man amounts to culpable driving, as I will define it for you. There are various ways upon which people can commit the offence of culpable driving. In this case, the way the Crown have alleged it, or the allegation is that it was gross negligence. ...

He has admitted that his driving was dangerous. He disputes and says, 'My driving wasn't culpable'. ...

...

So the one thing you have to determine is whether it is culpable. You don't have to determine whether it's dangerous, you don't have - because he admits it is but I will tell you in a general sense what 'dangerous' is and I will tell you in great detail what 'gross negligence' is. ... [Criminal negligence is] such a departure from the standard of care that a normal person would expect, and it poses such a risk of danger or death that it warrants being called culpable, and that's what you have to determine, whether in this case, and I'll define that in much more detail and with more precision, but I'm giving you an overview now, whether or not the apparent uncontradicted facts constitute culpable driving or not.

They either do or they don't. If the Crown satisfy you beyond reasonable doubt that the elements, the ingredients of culpable driving are made out, you'll find [him] guilty, if they don't satisfy you, you'll find him not guilty, you won't have to worry about the alternative count of dangerous driving, I will tell you what that is, but he's pleaded guilty to that. He says 'I'm guilty of that but I'm not guilty of that'. You follow? It is a question for you as to whether or not it does reach the standard that his driving is of such a poor quality, such gross negligence as to amount to culpable driving.

...

The issue is whether or not it is culpable driving; it either is or it isn't, and that is really your task, to answer that. ...

When I give you my Charge, I will deal with concepts of criminal negligence in much more detail and I'll deal with what the elements are of dangerous driving but you don't need really to concern yourself with dangerous driving, it's the culpable that you've got to concern yourself with, whether or not this is gross negligence warranting criminal punishment.

...

You only consider the alternative [charge] if you are not satisfied beyond reasonable doubt that the accused is guilty of culpable driving ... That is why I say that is the issue for you in this trial. You ask yourself whether the evidence proves [this charge] beyond reasonable doubt. If it does you will find him guilty and you do not have to consider the alternative [charge], but if you find him not guilty of culpable driving ... because you are not satisfied his driving reaches the required standard, you will then have to consider the alternative [verdict] of dangerous driving causing death...[20]

38 Whelan and Ferguson JJA in a joint judgment, and Priest JA in a separate judgment, decided that the judge's directions did not act as a fetter or restraint upon the sequence of the jury's deliberations. Whelan and Ferguson JJA stated that the critical consideration in that case was that there was a sole issue on which the jury was required to deliberate and, in so stark a 'single issue' case, 'there was no practical risk that what the judge said would act as a fetter or restraint upon the sequence of the jury's deliberations because there was only one matter upon which they had to deliberate'.[21] In reaching that view, their Honours acknowledged that the distinction between jury directions as to the sequence of verdicts where there is a lesser alternative charge, and impermissible directions as to the sequence of the jury's deliberations, can be very fine. They said that this was particularly so in relation to the use of the expression 'consider'.[22]

39 In a joint judgment, Redlich and Weinberg JJA stated that although Bouch and Stanton were both single issue cases, the directions on the alternative verdict given in Bouch would not have been understood by the jury as going only to the sequence of the verdicts to be brought in. To the contrary, their Honours found that, from the language used by the judge and the judge's repeated statement that the jury did not need to concern itself with the lesser alternative charge, the jury was likely to have understood those directions as instructions as to the sequence that had to be followed with regard to its deliberations.[23] Redlich and Weinberg JJA also decided that the High Court in King had not altered the principle in Stanton.[24]

40 In Medici v The Queen,[25] Smith v The Queen,[26] Vo v The Queen[27] and Maher v The Queen,[28] this Court rejected contentions that the judge's charge in each case infringed the principle in Stanton. In Bouch, Redlich and Weinberg JJA explained the outcome in Smith and Vo as follows:

[In Smith] Justice Priest, with whom Harper and Coghlan JJA agreed, concluded that, although a direction which purports to instruct a jury as to sequence of deliberations is contrary to law, there would be no difficulty with a direction that dictates the sequence of verdicts. The mere fact that the trial judge had told the jury that they only need consider the lesser alternatives if they first acquitted of the more serious charge did not constrain them to consider the verdicts in any particular order. Accordingly, the general 'rule' in Stanton was not infringed.

In Vo ... [i]t was held that the passages in the charge under challenge when viewed in context, showed that the judge had not transgressed. A jury could legitimately be told that they need only consider lesser alternatives if they first acquitted on more serious charges. A direction along those lines, without more, did not amount to the dictation of a sequence of deliberation, or a direction to the jury that they organise their deliberations in a particular way. Rather, in context, what was said to the jury would have been understood by them merely as a direction about the sequence in which verdicts would be taken. The use of the word 'consider', in context in that case, was referable to the process of taking the verdicts, not the order in which the jury should deliberate.[29]

41 The provisions of the DPCSA which set out the trafficking offences the subject of charges 1 and 7 and the alternative possession offences the subject of charges 2 and 8 are as follows:

71AA Trafficking in a drug or drugs of dependence - commercial quantity

A person who, without being authorized by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a quantity of a drug of dependence or of 2 or more drugs of dependence that is not less than the commercial quantity applicable to that drug of dependence or those drugs of dependence is guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).

...

71AC Trafficking in a drug of dependence

A person who, without being authorized by or licensed under this Act or the regulations to do so, trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence and liable to level 4 imprisonment (15 years maximum).

...

73 Possession of a drug of dependence

(1) A person who without being authorized by or licensed under this Act or the regulations to do so has or attempts to have in his possession a drug of dependence is guilty of an indictable offence and liable -

(a) where the court is satisfied on the balance of probabilities that -

(i) the offence was committed in relation to a quantity of cannabis or tetrahydrocannabinol that is not more than the small quantity applicable to cannabis or tetrahydrocannabinol;

(ii) the offence was not committed for any purpose related to trafficking in cannabis or tetrahydrocannabinol -

to a penalty of not more than 5 penalty units;

(b) subject to paragraph (a), where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in that drug of dependence - to a penalty of not more than 30 penalty units or to level 8 imprisonment (1 year maximum) or to both that penalty and imprisonment; or

(c) in any other case - to a penalty of not more than 400 penalty units or to level 6 imprisonment (5 years maximum) or to both that penalty and imprisonment.

42 Section 239(1) of the Criminal Procedure Act 2009 sets out the circumstances in which a jury may convict an accused of an alternative charge where it finds the accused not guilty of a charged offence. It provides as follows:

On a trial on indictment for an offence other than treason or murder, if the jury finds the accused not guilty of the offence charged but the allegations in the indictment amount to or include, whether expressly or impliedly, an allegation of another offence that is within the jurisdiction of the court, the jury may find the accused guilty of that other offence.

43 The trial in the present case began on 6 February 2017. The judge's charge commenced at about 3:45 pm on 9 February 2017 and concluded at 10:58 am on 10 February 2017.

44 At the commencement of his charge, the judge informed the jury that the charge would be in three parts. He said that the first part would be a reminder of several important principles of law and that the second part would be an explanation of what the prosecution must prove, and a summary of the evidence presented and the arguments made by counsel. He said the following about the third part of the charge:

The third part of my charge to you, which will be reasonably brief will be when I explain what verdicts that you may return in this case, and in doing so, I have prepared a flow chart. Because there's 12 verdicts, or in fact, potentially 13 verdicts to return in this case, it is not necessary to consider each and every charge, depending on how you go about your task. So, I have prepared this. I have run it past counsel and I will give you that at the end, and that, I would hope, would be of some assistance to you.[30]

45 The 'flow chart' to which the judge referred was a three-page document headed 'Verdict Flow Chart'. It listed each of the 12 charges on the indictment and the charge of trafficking methylamphetamines which was a statutory alternative to charge 1 (trafficking a commercial quantity of methylamphetamines). The flow chart also set out the order in which the jury would be asked to return its verdicts on the charges. It is described in more detail at [51] below.

46 In his charge, the judge referred to some of the evidence and directed the jury that it must give separate consideration to each charge. He then said that 'the true issue between the prosecution and defence centres upon whether the prosecution can prove beyond reasonable doubt that [the applicant] possessed the items found in the car'.[31] After referring to some of the prosecution evidence, the judge said the following:

And then when you turn to the indictment, you see the 12 charges are brought against [the applicant]. And so you know that there is the trafficking commercial quantity of methylamphetamines, trafficking in ecstasy, trafficking in cannabis and trafficking in cocaine. The first charge, if I take you to that, is trafficking in not less than a commercial quantity of methylamphetamines, and you see that there, on the indictment there, is an alternative charge. You have been told it was an alternative of possession of a drug of dependence, namely amphetamine. So, there is trafficking on the one hand and then there is possession.

There is another alternative at law, and I am asked to put this to you. And that is that there is an alternative law of trafficking methylamphetamines, but not in a commercial quantity. So, if you were not satisfied of commercial quantity but satisfied of possession for the purposes of trafficking, you can go to that. And you would only consider the alternative charge if you are not satisfied beyond reasonable doubt that [the applicant] was guilty of trafficking the commercial quantity.

Now, I will come to that in due course as well. When I take you through the flow chart, you will see how that works. But given the way the Crown case is put, you will readily appreciate that the Crown has laid alternative charges to trafficking of [MDMA], cannabis and cocaine. So, that if you were not satisfied of Charge 1, you would consider Charge 2. If you were not satisfied of Charge 3, you would consider Charge 4. If you were not satisfied of Charge 5, you'd consider Charge 6. But in the same way, if you were satisfied of Charge 1, you would not consider Charge 2, all right, and so on down the line.[32]

47 On the morning of 10 February 2017, the judge reiterated the elements of the trafficking offence the subject of charge 1 and referred to the statutory alternative charge which was not on the indictment and the possession offence the subject of charge 2. He said the following about those charges:

So if you were to find [the applicant] not guilty of the first charge then this alternative will be put to you even though it is not a charge on the indictment, and it is a charge of [traffick] methylamphetamines.

...

If, however, you were satisfied beyond reasonable doubt that [the applicant] was in possession of the methylamphetamines in the car and intended to sell those drugs or some of them that were in his possession, you would enter a verdict of guilty when asked by my associate as to the alternative charge of trafficking in methylamphetamines, but I stress this will only arise if you are not satisfied beyond reasonable doubt that [the applicant] is guilty of the first charge on the indictment.

All right, so we move back to the indictment and we do not move off the indictment. Charge 2 is a charge that [the applicant] had in his possession a drug of dependence, namely methylamphetamine. So if you are not satisfied beyond reasonable doubt of the first charge, if you are not satisfied beyond reasonable doubt of the alternative charge, you are then ... obliged to consider whether you are satisfied beyond reasonable doubt that [the applicant] was in possession, in that he had custody or control over the methylamphetamines or some of them found in his car on 12 June [2015].[33]

48 The judge made a number of similar observations in which he linked the verb 'consider' and the noun 'consideration' to the flow chart and the taking of the jury's verdicts. The following are examples:

So if you are satisfied that [the applicant] was in possession of those drugs in the manner that I have already directed upon, then you would enter a verdict of guilty to the charge. If you are not satisfied then you would enter a verdict of not guilty, but as I have emphasised before and as you will see from the flow chart that I will provide to you at the end of these directions, Charge 2 only arises for your consideration if you are not satisfied of one or other of the trafficking charges in relation to the methylamphetamines.

...

If you are satisfied [the applicant] was trafficking in MDMA on 12 June 2015, by possession for the purposes of sale, then you must enter a verdict of guilty to this charge and you will not be called upon to consider the alternative charge of possession of MDMA. If you are not satisfied he trafficked MDMA, then you must enter a verdict of not guilty to this charge and go on to consider the charge of possession.

...

[I]f you are satisfied beyond reasonable doubt that [the applicant] trafficked in cocaine, looking at Charge 5, then you must enter a verdict [of] guilty to Charge 5. If you are not so satisfied you would enter a verdict of not guilty to that charge and then you would go on to consider the alternative, Charge 6.

...

So it comes down to whether you are satisfied beyond reasonable doubt that [the applicant] exercised control over the cannabis and intended to sell it. If you are so satisfied and satisfied beyond reasonable doubt then you would enter a verdict of guilty to Charge 7 and you would not have to consider Charge 8.

If you are not satisfied beyond reasonable doubt of Charge 7 then you must consider Charge 8, which is the charge of possession. The same arguments as to possession apply. If you are satisfied beyond reasonable doubt of possession without a commercial element to it then you must enter a verdict of guilty to the charge. If you are not satisfied beyond reasonable doubt that [the applicant] was in possession then you must enter a verdict of not guilty.[34]

49 When the flow chart was provided to the jury, the judge gave the following directions about it:

The verdict flowchart takes you through, and is best read in conjunction with the indictment. So you have Charge 1 there, and it guides you as to, if you are satisfied, what your next consideration is. If you are satisfied of Charge 1, then you do not have to worry about Charge 2. You move to Charge 3. If you are not satisfied of Charge 1, then that alternative at law is there, and you have to consider that. If you are not satisfied of that, then Charge 2 comes up.

So it tells you how to move through each of the charges, and it tells you when you can leapfrog a charge. So basically, the bottom line is if you find [the applicant] guilty of a particular charge of trafficking, you can leapfrog the possession charge that is attached to that, you do not have to consider the possession charge. It is only if you find him not guilty of trafficking then the possession charge associated with that drug needs to be considered. If you have got any queries about that, then we can reconvene and I will make it clear.[35]

50 Defence counsel did not take exception to any of the judge's directions set out above.

51 As we have already stated, the flow chart listed each of the 12 charges on the indictment and the charge of trafficking methylamphetamines which was a statutory alternative to charge 1. In respect of each charge, the flow chart asked a question and gave two directions. The questions and directions in respect of charge 1, the statutory alternative to charge 1, and charges 2, 7 and 8 are set out below by way of example.

Charge 1 - Trafficking not less than a Commercial Quantity of methyl amphetamines

Are you satisfied beyond reasonable doubt (BRD) that the accused is guilty of this charge?

If yes, enter a verdict of guilty and [move] to consider charge 3.

If no, enter a verdict of not guilty and move to consider the statutory alternative.

Statutory alternative - Trafficking methyl amphetamines

Are you satisfied BRD that the accused is guilty of this charge?

If yes, enter a verdict of guilty and move to consider charge 3.

If no, enter a verdict of not guilty and move to consider charge 2.

Charge 2 - Possession of methyl amphetamines

Are you satisfied BRD that the accused is guilty of this charge?

If yes, enter a verdict of guilty and move to consider charge 3.

If no, enter a verdict of not guilty and move to consider charge 3.

...

Charge 7 - Trafficking cannabis

Are you satisfied BRD that the accused is guilty of this charge?

If yes, enter a verdict of guilty and move to consider charge 9.

If no, enter a verdict of not guilty and move to consider charge 8.

Charge 8 - Possession of cannabis

Are you satisfied BRD that the accused is guilty of this charge?

If yes, enter a verdict of guilty and move to consider charge 9.

If no, enter a verdict of not guilty and move to consider charge 9.

52 The flow chart was provided to the jury when it retired to commence its deliberations.

53 The applicant submitted that the judge's charge infringed the principle in Stanton because, when was read as a whole, it amounted to a direction to the jury to structure its deliberations to conform with the manner in which it would deliver its verdicts. He contended that there was a real risk that, in his charge, the judge had conflated the issues of how the jury was to deliberate and how it was to return its verdicts and erred in failing to direct the jury that it was free to organise its deliberations as it saw fit.

54 The applicant argued that the judge's directions to the jury - including those set out at [46] above which the applicant described as 'cascading' and 'almost bullet point type' - had the effect of directing the jury as to how to perform the task of considering the charges in its deliberations. He submitted that the judge's directions were such as to have mandated that the jury foreclose from its consideration of each of the primary offences with which he was charged, his possible guilt on the lesser alternatives. He contended that if the judge had directed the jury in terms that conveyed that it was free to organise its deliberations in whatever order it chose, it may well have found him not guilty of charges 1 and 7 and guilty of the lesser alternative charges. The judge's failure to give such a direction was said to have resulted in the trial miscarrying on charges 1 and 7.

55 The applicant submitted that the judge's statement 'depending on how you go about your task' - set out at [44] above - was ambiguous and did not negate the overall impression that the judge was dictating to the jury how it was to conduct its deliberations. Accordingly, so it was said, the jury was improperly constrained to sequential reasoning which amounted to a substantial miscarriage of justice.

56 The Crown submitted that a proper reading of the charge as a whole led to the conclusion that the judge had not fettered the jury's freedom to deliberate as it saw fit, and there was no perceptible risk that he had done so. It contended that the judge's directions using the verb 'consider' were referable on each occasion to the taking of verdicts and the flow chart, which outlined the manner in which the verdicts would be taken.

57 The Crown also argued that the use of the phrases 'will be put to you' and 'when asked by my associate' - set out at [47] above - would have made it clear to the jury that the judge was referring to the process of delivering verdicts when he used the word 'consider'.

58 According to the Crown, the judge's statement 'depending on how you go about your task', made at the very beginning of the charge, related to the course of the jury's deliberations and would have conveyed to the jury that there were no constraints on how it chose to deliberate.

59 The Crown also submitted that, given that possession was the threshold issue for charges 1 to 11, it was highly likely that the jury would have deliberated on that issue first rather than 'doggedly' deliberating on the charges from 'top to bottom of the indictment.' The guilty verdicts on charges 4 and 6 were said to signify that the jury may not have adopted a 'top to bottom' approach.

60 In our opinion, proposed Ground 1 is not made out.

61 In determining whether the judge's charge infringed the principle in Stanton, it is necessary to look at the charge as a whole in the context of the issues as they emerged at trial.[36] When the judge's charge is so viewed, it is evident that the judge's references to the order in which charges should be considered by the jury were to the order in which the jury's verdicts would be taken at the conclusion of its deliberations, in accordance with the flow chart. Accordingly, the jury would not have understood that the judge was directing it about the order in which it should undertake its deliberations.

62 As appears from [44] above, at the outset of his charge, the judge told the jury that he would provide the flow chart to the jury to explain the verdicts it may return and that 'depending on how [the jury went] about [its] task' it may not be necessary for the jury to 'consider each and every charge'. This initial statement, which set the framework for the directions that followed, made it clear that the verb 'consider' was being used by the judge in the context of the taking of verdicts and that the jury was free to go about its task of deliberating on the charges as it saw fit. We reject the applicant's submission that the judge's reference to the jury's 'task' was ambiguous; the jury would have understood it to refer to its deliberations.

63 The directions set out at [46]-[49] above are consistent with the judge's initial statement to the jury and make it clear that the judge was using the verb 'consider' in the context of the taking of verdicts at the end of the jury's deliberations in accordance with the flow chart. The statements 'this alternative will be put to you' and 'when asked by my associate as to the alt[37]native charge'37 plainly referred to the taking of verdicts by the judge's associate. Further, the judge's statement that he hoped that the flow charge might be of 'some assista[38]e' to the jury38 is inconsistent with the judge directing the jury that it must order its deliberations in accordance with the flow chart.

64 We accept that, if the judge's statement 'if you were satisfied of Charge 1, you would not consider Charge 2 ... and so on down the line'[39] were considered in isolation, it could be interpreted as referring to the order in which the jury should deliberate on the charges. The same might be said of the statement 'if you are not satisfied beyond reasonable doubt of the alternative charge, you are then ... obliged to consider [charge 2]'.[40] However, it would be inappropriate to construe these statements in isolation. Viewed in the context of the charge as a whole, the jury would have understood the statements as referring to consideration of the charges at the time of the taking of verdicts in accordance with the flow chart.

65 The judge's charge must also be considered in the context of the issues in the trial. The key issue for all the charges, other than charge 12, was whether the applicant was in possession of the contents of the Toyota Camry. Knowledge of the presence of the items in that car and their nature was an important component of the issue of possession. As between charge 1, and the statutory alternative charge, another key issue was whether the applicant intended to possess 500 grams or more of ice for sale. As between charges 1, 3, 5 and 7 on the one hand and charges 2, 4, 6 and 8 on the other hand, another key issue was whether the applicant had possession of the relevant drug for the purpose of sale.

66 Although this case was not a single issue case in the same way as Stanton and Bouch, the issues overall were confined, with the predominant issue being that of possession. The confined nature of the issues is an additional contextual matter which would have enabled the jury to understand that the judge's charge was not seeking to dictate the manner in which it should deliberate on the charges.

67 It is relevant that, although the jury found the applicant guilty of trafficking ice and cannabis, it found him guilty of the alternative charges of possession in relation to MDMA and cocaine. This supports the Crown's submission that the jury did not consider itself bound to order its deliberations in any particular manner and indicates that it gave proper consideration to those lesser alternative charges as well as the more serious primary charges.

68 We note that our conclusion that the judge's charge did not infringe the principle in Stanton is consistent with the decisions in Medici, Smith, Vo, Bouch and Maher, which involved similar jury directions. We agree with the applicant's submission that the conclusions in those cases turned on their own facts and the precise wording of the directions given by the trial judge in each case. We also agree that those conclusions do not establish a precedent on the meaning of the verb 'consider' in a direction to a jury. Nevertheless, we take comfort from the fact that the approach in those cases is similar to the approach that we have adopted.

69 Finally, the fact that defence counsel did not take exception to any parts of the charge which the applicant now seeks to impugn suggests that he was not concerned that the jury might form the erroneous impression that the judge was fettering its deliberations.

Proposed Ground 2: Inconsistent jury verdicts

70 In MacKenzie v The Queen,[41] Gaudron, Gummow and Kirby JJ (with whom Dawson and Toohey JJ relevantly agreed in a separate judgment) set out the following principles for determining whether a guilty verdict is unreasonable and cannot be supported on the whole of the evidence because it is inconsistent with a verdict of not guilty on another charge:

(a) A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency.[42]

(b) In a criminal matter, factual inconsistency may arise both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events.[43]

(c) In a criminal matter, where the inconsistency arises in the jury verdicts on different charges, 'the test is one of logic and reasonableness.'[44] However, due to the respect that courts have for juries, appellate courts are reluctant to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed its functions as required, that conclusion will generally be accepted.[45]

(d) In a criminal matter, the appellate court may take the view that the jury simply followed the judge's instruction to consider separately the evidence on each charge and to apply to each charge the requirement that all of the elements must be proved beyond reasonable doubt. Alternatively, the appellate court may conclude that the jury took a 'merciful' view of the facts upon one charge. It is open to a jury to apply in favour of an accused its innate sense of fairness and justice by, for example, finding the accused guilty of less than the full number of charges on the indictment even if all of them have been technically proved. However, 'mercy' on the part of a jury will not always be sufficient to justify apparent inconsistency between verdicts on different charges.[46]

(e) There will be cases where the different verdicts returned by the jury represent 'an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty'.[47] More commonly, it may suggest confusion in the minds of members of the jury or a misunderstanding of their function, uncertainty about the distinction between the offences, or a lack of clarity in the judge's instructions on the applicable law. It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. In some cases, it may be appropriate for the appellate court to enter a verdict of acquittal on the charge upon which the accused has been convicted in order to carry forward the logic of the jury's verdict of not guilty on the other charge.[48]

(f) The onus of establishing inconsistency of verdicts rests on the party alleging the inconsistency.[49]

71 In MacKenzie, the jury found the accused guilty on one charge of perjury and not guilty on another charge of perjury. The High Court concluded that the inconsistent verdicts were not 'so repugnant and irreconcilable that they invite, or require, intervention.'[50]

72 In MFA v The Queen,[51] the appellant was found guilty of two charges involving sexual offences against the complainant and not guilty of seven charges involving sexual offences against the complainant. He appealed on the ground that the verdicts of guilty were unreasonable and could not be supported having regard to the evidence and to the verdicts of not guilty. He contended that the verdicts were factually inconsistent because, if the jury had rejected the complainant's evidence on seven of the charges, there was no logical or reasonable basis on which it could have accepted his evidence on the other two charges.

73 The High Court dismissed the appeal. Gleeson CJ, Hayne and Callinan JJ held that there was an obvious explanation for the differences in the jury's verdicts: a witness gave evidence which, in some respects, supported the evidence of the complainant in relation to the two charges upon which the appellant was found guilty but no witness gave evidence in support of the complainant's evidence about the events that were the subject of the charges upon which the appellant was found not guilty. In those circumstances, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on two charges while acquitting him of the remaining seven charges.

74 Their Honours stated that, where it is alleged that a guilty verdict on a charge is unreasonable and cannot be supported on the whole of the evidence because it is inconsistent with the verdict of not guilty on another charge, the question for the appellate court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the former charge.[52] The test is unreasonableness, not inconsistency.[53] Their Honours said that the significance of the verdicts of not guilty on some charges had to be considered in the light of both the facts and circumstances of the case, and the context of the role of juries.

75 In a separate judgment, McHugh, Gummow and Kirby JJ applied the principles in MacKenzie and concluded that there was a logical and reasonable basis for the different verdicts.[54]

76 In Avery v The Queen,[55] Weinberg JA reviewed MacKenzie and MFA and stated that they make clear that 'if there is a rational explanation for the different verdicts arrived at by a jury, it will not lightly be inferred that the jurors have forsworn their oaths, and impermissibly compromised'.[56]

Plea hearing - Defence counsel's explanation for inconsistent verdicts

77 At the plea hearing, defence counsel addressed the inconsistency informing the applicant's Ground 2, in the context of whether the judge could conclude that there was an aggravating feature of the applicant's possession of the firearms, namely, that they were for use as protection in the applicant's drug operation. The following discussion took place:

COUNSEL: [The jury verdict] creates, in my submission, perhaps that there was some rebuttal of the suggestion for the jury's mind that [the applicant is] in possession of the guns as he's using them as protection, as opposed to perhaps being aware of the existence of the firearm. Now, can I - perhaps should be a bit careful with this. But the jury have acquitted [the applicant] in relation to the small - the handgun in the - what I've described as the shotgun bag. What that might reflect is the view of the jury that [the applicant] must have been aware that it was a long arm in that bag, because that would be obvious without opening the bag, for instance from its weight, the fact that the bag would clearly not be empty, be able to feel the object, et cetera. But not satisfied that he knew of the other gun in there. And in my submission, if that is open as a path of reasoning that the jury may have undertaken, then it can't be concluded that [the applicant], beyond reasonable doubt, was in possession of the firearms for the purpose of use either in terms of protection or some form of intimidation.

...

HIS HONOUR: So possession with knowledge of the existence of that gun in the bag.

COUNSEL: Yes.

HIS HONOUR: Not of the handgun in the same bag. I can see how it follows in relation to the handgun, just excise that from the picture, no problem there. But how does your submission stand good about - it doesn't necessarily follow that it's there for protection, I - - -

COUNSEL: Well, if someone has provided the item to [the applicant] to hold on to, to keep - - -

HIS HONOUR: I see, I see, I see.

COUNSEL: - - - he would know about the long arm, but - - -

HIS HONOUR: I see. Yes. I'm not saying I accept that, but I understand how your argument is put now. [57]

78 The applicant submitted that the jury's verdicts on charges 9 and 10 are irreconcilable and that the jury's verdict of guilty on charge 10 should not be permitted to stand because it is an affront to logic and common sense, and must have been a compromise on the part of the jury.

79 The applicant contended that, as the shotgun the subject of charge 10 and the pistol the subject of charge 9 were found together in the gun bag in the Toyota Camry, the firearms must have been placed in the gun bag together, or one must have been placed in the gun bag when the other was already inside. He argued that because the prosecution case was that he had engaged in, or been complicit in that conduct, he must have known that both guns were in the gun bag, rendering the verdicts inconsistent and incapable of any rational explanation. It followed, so it was said, that the conviction on charge 10 should be quashed.

80 The applicant submitted that the statements made by defence counsel on the plea regarding a possible explanation for the jury's verdicts[58] were the very kind of conjecture that should be avoided.

81 The Crown submitted that the verdicts on charges 9 and 10 were clearly rational and demonstrated a thoroughness on the part of the jury. It contended that it was open to the jury to find that the applicant knew of the gun bag due to his knowledge of the car and its contents, but did not know the entire contents of the gun bag because his cousin, George Mourkakos, also had access to the car.

82 The Crown referred to the evidence of police officer Hatherly that the Expressi box containing multiple bags of dried cannabis that was found in the boot of the car was on top of the gun bag. The Crown contended that it was open to the jury to find that the applicant placed the Expressi box on top of the gun bag, and that when he did so it would have been obvious to him that the bag contained a rifle or long arm of some description. The Crown argued that, by contrast, it would not have been obvious that the gun bag also contained the much smaller pistol when the Expressi box was placed on top of it. Accordingly, so it was said, it was open to the jury to find that the applicant was aware that the shotgun was in the car, but not the pistol.

83 In our opinion, proposed Ground 2 is not made out.

84 It is plain from the jury's verdicts that it concluded that the applicant was aware of the nature of the drugs in the Toyota Camry and that he was in possession of the drugs. However, that conclusion did not require the jury to find that the applicant had exclusive access to the car and was solely responsible for placing all of the items in it. On the evidence, it was open to the jury to find that George Mourkakos had placed the gun bag in the boot of the car.

85 As the jury concluded that the applicant had possession - and was thus aware of - the Expressi box containing cannabis the subject of charge 7, it was inevitable that it would have concluded that he was aware of the gun bag underneath the box. The nature of the gun bag, as depicted in the photographs that were provided to the jury, would have left it in no doubt that there was a shotgun in the gun bag. Thus, it was open to the jury to find that the applicant must have known there was a shotgun in the gun bag even though he had not placed the bag there or opened it to see what was inside it.

86 However, there would have been no basis for the jury to conclude that the applicant also must have known that there was a pistol in the gun bag unless it was satisfied that he had placed the bag in the boot of the car with the pistol inside it or had opened the bag and seen the pistol. As there was no evidence that either of these events had occurred, the jury had a rational reason to find the applicant guilty of possession of the shotgun and not guilty of possession of the pistol.

87 As appears from [77] above, an explanation along these lines for the different verdicts on charges 9 and 10 was relied upon by defence counsel on the plea in support of his submission that the firearms were not kept by the applicant as protection for his drug operation. As defence counsel considered the explanation as rational, it is difficult for the applicant to now contend that it is irrational and that the verdicts on charges 9 and 10 are irreconcilable. During argument on the appeal, senior counsel for the applicant, who was not defence counsel, conceded the force of this proposition. Although he did not abandon proposed Ground 2, he did not press it forcefully.

Conclusion on application for leave to appeal against conviction

88 For the above reasons, the application for leave to appeal against conviction on proposed Ground 1 will be granted as that proposed ground was arguable, but the appeal will be dismissed. Leave to appeal will be refused on proposed Ground 2.

PART B: APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE

89 The applicant was 27 years old at the time of the offending and 29 at the time of sentencing. He has one sister who is six years his elder.

90 The applicant completed Year 8, after which he left school to undertake a rendering apprenticeship. He undertook the apprenticeship on and off for a period of three years and also completed certificates and a diploma in the building industry, eventually receiving his builder's licence.

91 The applicant has held steady employment in the building industry for periods of his life since he was 15 or 16 years of age. He worked for a building company and as a building inspector before starting his own company which performed building inspections and maintenance work for real estate agents. The applicant submitted on the plea that he would be able to return to that work on his release.

92 The applicant has a history of substance abuse. From the age of 14 he engaged in binge-drinking. From the age of 23, in the context of a relationship with a woman who engaged in substance abuse, he began using cannabis and ice, becoming a daily user. From the age of 25 he also used Xanax and Alprazolam and he has also used GHB, cocaine and ecstasy. The applicant's relationship with his former partner ended in approximately January 2015.

93 The applicant has relevant prior offending. On 5 June 2007, when he was 19 years old, he was convicted of the offences of aggravated burglary with an offensive weapon, intentionally causing injury, two charges of recklessly causing injury, criminal damage, affray and possession of an unregistered handgun. That offending took place on 25 March 2006. He was sentenced to a total effective sentence of 6 months and 2 weeks' imprisonment, which was equivalent to the time already served by him in an adult prison.

94 On 26 December 2006, while the applicant was on bail for the 25 March 2006 offending, he committed the offences of affray, intentionally causing injury and stalking. He was convicted of those offences on 5 June 2007 and sentenced to a 2 year community based order.

95 The Director of Public Prosecutions appealed against the sentences imposed on the applicant for the 25 March 2006 and 26 December 2006 offending on the ground of manifest inadequacy. This Court allowed the appeal and resentenced the applicant to a total effective sentence of 3 years' imprisonment, suspended for a period of two years, for the 25 March 2006 offending. The appeal was dismissed insofar as it related to the sentence imposed for the 26 December 2006 offending.[59] In disposing of the Director's appeal, this Court had regard to the respondent's youth and good prospects of rehabilitation, informed by the evidence of a psychologist and the applicant's Youth Justice supervisor, who had supervised him on bail. Both the psychologist and supervisor were optimistic about the applicant's future prospects.

96 Upon his arrest for the current offending on 12 June 2015, the applicant was remanded in custody. In July 2015, while the applicant was held on remand, he was placed on a stringent period of lockdown as a result of prison riots that occurred at the Melbourne Remand Centre. This period of lockdown caused significant hardship to the applicant, including remaining in his cell for consecutive days with no release, being unable to access personal hygiene toiletries at various times, greater restriction on personal calls and being without access to the 'outside world' for two weeks. The applicant attempted suicide while on lockdown.

97 An application for bail was heard by John Dixon J on 17 December 2015. One of the matters upon which his Honour relied in deciding that there were exceptional circumstances which warranted the grant of bail was the applicant's willingness to attend a residential rehabilitation facility conducted by 'RecoverOz' as a condition of bail. His Honour referred to the evidence of George Thompson, the program and clinical director of RecoverOz, about the restrictions that applied to residents at the RecoverOz facility and accepted Mr Thompson's evidence about the applicant's suitability to undertake the rehabilitation programs offered by RecoverOz.[60] That evidence was not before the sentencing judge on the plea[61] or before this Court.

98 John Dixon J imposed the following conditions on the applicant's bail:

[The applicant]:

(a) be released into the company of Mr George Thompson of [RecoverOz] or his nominee ('Mr Thompson'), and attend directly upon release at the premises of [RecoverOz] for admission into the [RecoverOz] Residential Rehabilitation Recovery Program;

(b) appear at the Magistrates' Court at Melbourne on 29 March 2016;

(c) reside at such residential premises controlled and managed by [RecoverOz] in Melbourne as directed by Mr Thompson or his nominee;

(d) notify the Informant 24 hours prior to any change in residential address if the applicant is required to move between any residential premises controlled or managed by RecoverOz;

(e) obey all lawful instructions and directions of Mr Thompson or his nominee;

(f) comply with each of the following requirements: He

(i) undergo supervised random urine drug screens at least once per week;

(ii) not leave his residential premises unless for a purpose authorised by Mr Thompson or his nominee;

(iii) be in the company of Mr Thompson or his nominee at all times if leaving his place of residence;

(iv) only receive visitors approved by Mr Thompson;

(v) maintain a curfew of 11:00 pm to 9:00 am every night;

(vi) surrender any mobile telephone in his possession forthwith to Mr Thompson;

(vii) (if and when permitted by Mr Thompson to have a mobile telephone while a resident of the [RecoverOz] program) have no more than one mobile phone, the number of which is to be supplied to the Informant within 24 hours of obtaining same. The mobile telephone service must be subscribed in the applicant's name and with his current address;

(g) report daily to the Officer-in-Charge of the police station at Box Hill between the hours of 6:00 am and 9:00 am;

(h) forthwith surrender all valid passports to the Informant and not apply for or possess any other passport or travel document, and not attend any point of international departure; and

(i) not contact or approach any witness for the prosecution other than the Informant.[62]

99 Upon his release on bail on 17 December 2015, the applicant resided at the RecoverOz facility until February 2017, when he stood trial for the current offending.

100 Mr Thompson gave evidence at the plea hearing. He did not have the applicant's file with him. His evidence may be summarised as follows:

(a) During his 14-month residency at the RecoverOz facility, the applicant undertook 57 urine screens, which roughly equates to one screen per week. All of the screens returned negative results for drug use.

(b) The applicant had undertaken daily group sessions. He also attended individual counselling sessions with a psychologist on a regular basis.

(c) For the last six months of this residency, the applicant 'was regarded as probably the leader of the community' and a 'model client' in the program.[63] He was highly respected and ended up being something of a peer role model in the facility.

(d) Towards the end of his residency, the applicant was permitted to 'put together' his building business again. He was 'well on the way' to getting 'his business back to what it was'.[64]

(e) The applicant had been '21 months' clean, nearly 22 months'. He was 'one of the top people that have been through the program ... [i]n terms of recovery.'[65] No one else had resided at the facility for as long as the applicant.

(f) The applicant previously had been a 'poly-drug user', having used ice and marijuana and 'tried the lot'.[66] Before his treatment, his lifestyle involved starting his day with drugs and also selling drugs.

(g) The applicant's Centrelink benefits were used to pay for the program.

(h) The applicant had described his previous drug trafficking as 'A bit for me, a bit for him, a bit for me, a bit for him'.[67] Mr Thompson understood from this statement that the applicant was a 'low-level' drug addict and dealer.[68] Mr Thompson was surprised to hear that, when he was arrested, the applicant had in his possession over 500 grams of ice and over $100,000 in cash.

101 A psychiatric report from Dr Anthony Cidoni dated 7 December 2015, which was prepared in support of the applicant's bail application on 17 December 2015, was tendered on the plea. The report stated that the applicant had a history of depression and had experienced insomnia and anxiety while in custody awaiting trial for the current offending. The report stated that the applicant has suffered from a major depressive disorder, which had not been treated or medicated in custody, and significant substance use disorders. In Dr Cidoni's opinion, the applicant's use of ice was in part an attempt to self-medicate his depressive condition. Dr Cidoni stated that, despite the current offending being 'undoubtedly disappointing and a set-back', in his view the applicant still had very good prospects of rehabilitation.

102 A report dated 16 February 2017 from Cherie Lacis, a clinical psychologist, was also tendered on the plea. The report stated that the applicant had attended 14 counselling sessions to address his depression between 22 January 2016 and 19 January 2017. Ms Lacis's opinion was that the applicant had a capacity for personal insight and observed that he had said that he was positive that he would maintain his abstinence from illicit substances and was motivated to obtain work in the building industry. Ms Lacis concluded that the applicant had 'sound prospects of rehabilitation'.

103 Also tendered on the plea were character references from a former employer and the brother-in-law of the applicant's sister. They described the applicant as honest, reliable and trustworthy. The latter reference stated that there had been a considerable change in the applicant since he has attended rehabilitation sessions and that he has 'got his life back on track and is genuinely remorseful for his actions'.

104 The applicant enjoyed the support of his parents and sister.

105 Defence counsel submitted the following about the applicant's compliance with his bail conditions:

[The applicant] is successfully engaged in drug rehabilitation under a very long period of time, some 14 months. He has good prospects of rehabilitation in terms of his employability and business as a builder. And he's managed to comply with a long period of bail under extremely stringent conditions.[69]

106 The judge described the applicant's trafficking activities as follows:

[Y]ou were engaged in a substantial commercial venture of trafficking in illegal drugs.

...

[I]t is apparent that your trafficking activities were far beyond those of a subsistence street dealer. Your possession of the firearms, both a shotgun and a pistol, speaks of the high criminality of your conduct and of the steps you were prepared to take to protect your business and perhaps intimidate others by the production of such weapons. The money held by you speaks of the level of your activity and the profits and pure greed of your enterprise.[70]

107 The judge accepted that the applicant had been addicted to ice. He said the following about the relationship between that addiction and the applicant's trafficking offences:

The crime of trafficking in not less than a commercial quantity of methylamphetamines is a serious one. The penalty of this court must reflect the fact that you were determined to profit in substantial amounts of money from the misery of others. It was a misery that you claimed to have known well yourself, and yet you were still prepared to prey on others. Further, despite the submissions of your counsel, I find that the firearms were there for the purpose of protecting your drug trafficking business.[71]

108 We will refer to the italicised words in the above statement as the 'misery of others' statement.

109 The judge said that he had some reservations about the evidence given by Mr Thompson. Due to Mr Thompson's ignorance about the quantities of drugs and cash that the applicant had in his possession when he was arrested, the judge said that it was 'open on the evidence to find that [the applicant] minimised the true extent of [his] criminality in [his] dealings with Mr Thompson during the course of [his] long rehabilitation at [RecoverOz].'[72]

110 The judge also had reservations about the report prepared by Ms Lacis. He said that there was nothing in that report to suggest that Ms Lacis had been given the details of the extent of the applicant's prior criminal history or his drug activity for which he stood trial.[73]

111 The judge referred to the progress towards rehabilitation that the applicant had made during his residency at the RecoverOz facility but did not discuss the restrictions on the applicant's liberty at the facility and whether they involved a punitive element.

112 The judge said that there was no evidence that the applicant had exhibited remorse for his offending. He said that, even during the applicant's rehabilitation from his own drug use, 'there [was] a suggestion that [he had] tried to minimise [his] actions and involvement in this pernicious trade'.[74]

113 The judge commended the applicant for his 'sustained efforts at rehabilitation from the use of methylamphetamines' but treated his overall prospects of rehabilitation 'with caution' in the light of earlier observations made by the Court of Appeal in 2007[75] and the judge's reservations about the evidence given by Mr Thompson and the report prepared by Ms Lacis.[76] The judge considered the applicant's prospects of rehabilitation to depend upon him 'developing greater insight generally' and not just on him 'overcoming an addiction to methylamphetamines'.[77]

114 In the circumstances, the trial judge did not consider the applicant's offending to have been at the lower end of the scale for what he described as 'these very serious crimes'.[78] He concluded:

As the sentence comes at the end of a trial, the fact of your rehabilitation from drug use cannot play a significant role in discounting the sentence imposed upon you. In my view, there is no proper basis upon which you could be sentenced to a combined sentence of imprisonment and a CCO. In the circumstances, the only sentence is one of imprisonment to be appropriate.[79]

Proposed ground of appeal: Applicant's knowledge of misery caused by ice

115 The applicant's proposed ground of appeal against sentence is as follows:

The learned sentencing judge erred by finding, and synthesizing in a manner adverse to the Applicant:

(a) his own addiction to methylamphetamines; and

(b) the fact that, despite his 'know[ing] well' the misery caused by methylamphetamines, he was 'still prepared to prey on others.'

116 The judge's 'finding' to which this ground refers is the 'misery of others' statement set out at [107] above.

117 We will deal with this ground before considering the applicant's application for leave to add the proposed new ground based on the 'punitive element' of his residency at the RecoverOz facility.

118 The mere fact that an offender was addicted to drugs at the time of the commission of an offence is not ordinarily a mitigating factor. However, there may be circumstances in which an offender's drug addiction will be relevant to sentencing considerations such as the prospects of rehabilitation, specific deterrence and protection of the community.[80]

119 Similarly, the mere fact that an offender who has committed trafficking offences has a history of drug addiction ordinarily cannot be treated as an aggravating feature of those offences. However, there may be circumstances in which the nature of that history and the nature of the trafficking offences affects the offender's moral culpability.[81] For example, the moral culpability of an offender who trafficks small quantities of drugs solely to fund his or her habit may be lower than that of an offender who trafficks on a scale that is intended to generate a profit.[82]

120 In Nguyen v The Queen,[83] Beckerton v The Queen[84] and Trajkovski v The Queen,[85] the appellants in each case, who were addicted to drugs, were convicted of drug offences. In sentencing them, the sentencing judge commented that, to the extent that the appellants understood the disabilities of drug addicts because of their own drug use, 'so much the worse [was their] offending'.

121 In Nguyen, Maxwell P, with whom Redlich JA agreed, stated that the sentencing judge's comment conveyed 'the clear impression that he regarded [the appellant] as more morally culpable, and hence deserving of more severe punishment, because of his personal experience of drug addiction.'[86] Maxwell P noted that the judge did not, in terms, characterise the appellant's addiction as an aggravating feature[87] and ultimately held that the judge had not synthesised the appellant's drug addiction in a manner adverse to his interests.[88] Relevantly, Maxwell P said that there was nothing in the sentence which suggested that the offending was more severe because of the appellant's addiction.[89]

122 In Beckerton, Weinberg JA, with whom Ashley JA agreed, described the sentencing judge's comment as 'problematic' and noted that the Court in Nguyen was highly critical of it.[90] Weinberg JA said:

There are, in my opinion, some circumstances in which it can fairly be said that a past history of drug addiction not only does not mitigate an offence such as trafficking, but may be viewed as a factor that worsens the applicant's level of culpability. I have in mind the admittedly unusual case of an offender who, having been an addict for much of his or her adult life, and therefore fully appreciates the devastating consequences that addiction can have, then overcomes his or her habit, and subsequently decides to sell drugs purely for profit, and out of a sense of greed. In such a case, comments such as 'so much the worse is your offending' may be entirely apt.[91]

123 Weinberg JA did not think that the case before him quite fell into the above description. The appellant was still addicted to drugs throughout the period of the offending and 'it is fair to say that her primary motivation seems not to have been to obtain money or drugs to maintain her habit, but rather to generate profit'.[92] Weinberg JA added that the special circumstances in which drug addiction can be used as a factor that worsens moral culpability should be narrowly circumscribed.[93] His Honour decided that, even if the judge had erred, the appeal should be dismissed because no different sentence should be imposed.

124 In Trajkovski, Weinberg JA, with whom Ashley JA and Hargrave AJA agreed, adopted the observations he made in Beckerton.[94]

125 The applicant accepted that the judge was entitled to give little or no mitigatory weight to his addiction. However, according to the applicant, in the 'misery of others' statement, the judge went further and impermissibly treated his drug addiction, and use of drugs during the offending, as adversely impacting upon him and his moral culpability.[95]

126 The Crown contended that the 'misery of others' statement did not convey the clear impression that the applicant was more culpable because of his personal experience of drug addiction and hence deserving of more severe punishment. It said that the 'misery of others' statement might just as easily be interpreted as the trial judge stating an objective fact and perhaps doubting the veracity of the applicant's claim to misery on account of his own drug addiction.

127 In our opinion, the proposed ground of appeal against sentence is not made out.

128 The judge's statement that, notwithstanding that the applicant claimed to have known the misery caused by drug addiction, he was still prepared to prey on others was a mere statement of an obvious fact. It cannot fairly be regarded as a finding that the applicant's drug addiction increased his moral culpability or otherwise constituted an aggravating feature of his trafficking offences, such that he was deserving of more severe punishment.

129 On the plea, defence counsel referred to the applicant's history of drug use in the context of a failed relationship. There was also much emphasis on the applicant's rehabilitation and drug-free status from the time he was remanded in custody following his arrest and, in particular, while he resided at the RecoverOz facility following his release on bail. However, there was a dearth of evidence about the precise nature and extent of the applicant's drug use.

130 The judge found that the applicant had not been forthcoming in the information he provided to Mr Thompson about his drug use and trafficking activities which, understandably, resulted in the judge having reservations about Mr Thompson's evidence. The judge's statement that the applicant 'claimed to have known' the misery caused by drug use reflects the incomplete nature of the evidence about the applicant's history of drug use.

131 The judge's statement that the applicant was 'still prepared to prey on others' is unobjectionable. As a trafficker in large quantities of drugs, the applicant sold drugs to vulnerable drug users and took advantage of their addiction for financial gain.

132 Our conclusion that the judge did not treat the applicant's history of drug use as an aggravating feature of his trafficking offending is borne out by the fact that the sentences that the judge imposed for the trafficking offences were moderate. There is nothing to suggest that the sentences would have been lower had the judge not made the 'misery of others' statement. Read as a whole, the judge's sentencing remarks indicate that the sentences he imposed for the trafficking offences were informed not by the applicant's history of drug use but by the serious nature of those offences and the fact that, having pleaded not guilty and shown no remorse, the applicant was not entitled to the benefit of a guilty plea or remorse as mitigating factors.

133 The 'misery of others' statement in the present case cannot be compared to the 'so much the worse was [their] offending' comment in Nguyen, Beckerton and Trajkovski. As Maxwell P stated in Nguyen, that comment conveyed the impression that the appellant in that case was more morally culpable and hence deserving of more severe punishment.[96] No such impression is conveyed by the 'misery of others' statement.

Application for leave to add new proposed ground of appeal against sentence

134 At the hearing of the application for leave to appeal against sentence, the applicant sought leave to add the following new ground of appeal.

The sentencing discretion miscarried as a result of a failure on the part of the sentencing judge to give any or sufficient weight to the 14 months spent by the Applicant whilst on bail as an inpatient of a residential drug rehabilitation centre and, in particular, to the punitive element of his time in that facility.

135 Notice of the proposed new ground was given by email on the day preceding the hearing.

136 The Crown opposed the grant of leave to the applicant to add the proposed new ground. By agreement of the parties, the Court heard submissions on the question of leave to add the proposed new ground and on the merits of the proposed new ground and reserved its decision on both issues.

137 Before considering the parties' submissions, it is convenient to refer to the principles set out in Akoka upon which the proposed new ground is based.

138 In Akoka, this Court considered how the punitive nature of an offender's residency at a rehabilitation facility - as distinct from any rehabilitative effects of such residency - while on bail for the relevant offences is to be taken into account in the exercise of the sentencing discretion. The Court reviewed decisions from New South Wales and the Australian Capital Territory in which a discrete discount on sentence of around 50 per cent was provided for time spent by an offender in such a facility where the sentencing court was satisfied that the restrictions on the offender's liberty during the residency amounted to 'quasi-custody'. The Court decided that the approach adopted in New South Wales and the Australian Capital Territory should be followed in Victoria, subject to some modifications.

139 The Court set out the following principles to guide sentencing courts on when and how to allow a discount on sentence for periods of 'quasi-custody' in a residential rehabilitation facility:

In our opinion, subject to the observations that follow, the approach adopted in New South Wales and the Australian Capital Territory is correct and it should be followed in Victoria. Such an approach will also promote comity with the courts of other Australian jurisdictions. That approach, adapted in the manner discussed below, will require Victorian sentencing courts to give greater emphasis than in the past to the punitive element of residency in a rehabilitation facility such as Odyssey House.

...

[T]he nature and severity of the restrictions [on the liberty of residents] and the treatment programs on offer may vary as between different facilities. Where reliance is placed on residency at such a facility, evidence will be required to establish that it is appropriate for the Court to give credit for such residency. It will be relevant for the court to know whether the residency is entirely voluntary or whether there is an element of compulsion as in the present case, where residence at Odyssey House was a condition of the applicant's bail. Of course, voluntary residency will continue to be relevant to the instinctive synthesis in other ways.

...

Self-evidently, it is in the community's interest that offenders - particularly young offenders with substance abuse problems - seek assistance from residential rehabilitation facilities and complete the rigorous treatment programs that they offer. Offenders will be encouraged to seek residential treatment if it is understood that sentencing judges will acknowledge, and give credit for, the punitive nature of residency in such a facility. The extent of that credit will depend on the circumstances of each case, including the nature and severity of the restrictions to which an offender has been subject and the duration of the offender's residency. Clearly, the period of residency must post-date the commission of the offences for which the offender is being sentenced. Further, a period of residency cannot be doubly credited. Thus, where the offender is sentenced on different occasions for separate offences following a period of residency, credit for that period can be given on only one of those occasions.

The credit referred to ... above will, as with all other sentencing discounts, form part of the application of the instinctive synthesis without being numerically identified. However, as with other significant sentencing considerations, a sentencing judge should ordinarily explain how the punitive nature of residency at a rehabilitation facility has informed - in terms of the weight assigned to it - the instinctive synthesis.

Although residency at a rehabilitation facility has punitive elements, credit for it cannot be given in the same way as pre-sentence detention. Pre-sentence detention involves time spent in custody and, in accordance with s 18(1) of the Sentencing Act 1991, it must be deducted from a custodial sentence in a precise mathematical manner for the entire period the offender has spent in detention. On the other hand, residence at a rehabilitation facility, no matter how restrictive and punitive, is not equivalent to time spent in custody. It will not ordinarily result in a deduction of the entire period of residency from a custodial sentence.

For these reasons, residency at a rehabilitation facility is also different in nature to Renzella time. Although Renzella time is actual time spent in custody, it falls outside s 18 of the Sentencing Act 1991. As Renzella time is real incarceration it will usually be given greater weight than time spent in a residential rehabilitation facility.

...

[T]he sentencing remarks, read as a whole, indicate that [the sentencing judge] misapprehended the real significance of [the punitive] element [of the offender's residency at Odyssey House]. Moreover, until now, there has been no focus in Victoria upon how the punitive aspect of restrictive residency should be treated. Had the judge appreciated the full impact of the restrictive nature of the applicant's residency and how it should inform the exercise of his sentencing discretion, there would no doubt have been reference made to it in the sentencing remarks.[97]

140 The applicant submitted that the Court should grant him leave to add the new proposed ground because sufficient facts to attract the principles in Akoka were before the judge on the plea and therefore the judge was obliged to apply those principles.

141 The applicant contended that the following material was sufficient to establish that his stay at the RecoverOz facility while he was on bail for the current charges was punitive and therefore warranted a discount on sentence in accordance with Akoka:

(a) The conditions of the applicant's bail set out at [98] above.

(b) The evidence of Mr Thompson summarised at [100] above.

(c) The unchallenged assertion of defence counsel on the plea that the applicant had met the stringent conditions of his bail.[98]

142 According to the applicant, although the judge took into account the rehabilitation element of his residency at the RecoverOz facility, he made no reference to the punitive element of the residency and erred in law in not giving him any discount for the punitive or 'quasi-custody' conditions of his residency as required by Akoka.

143 During argument, the Bench noted that while some of the bail conditions imposed by John Dixon J were fixed, other conditions were discretionary in the sense that they could be relaxed or waived by Mr Thompson. An example of a fixed condition was the 11:00 pm to 9:00 am curfew. Examples of discretionary conditions were the requirements that the applicant not leave the RecoverOz facility, receive visitors or have a mobile phone unless authorised by Mr Thompson. Senior counsel for the applicant accepted that, insofar as any restriction on the applicant's freedom of movement or otherwise depended on the exercise of discretion by Mr Thompson, there was no evidence as to how Mr Thompson had exercised that discretion.

144 The Crown submitted that the Court should not grant leave to the applicant to add the proposed new ground of appeal for two reasons.

145 The first reason was that, as the applicant did not rely on the punitive element of his residency at the RecoverOz facility on the plea, it would be unfair to the Crown if he were permitted to rely on that element on the appeal. This was said to be because, had the applicant relied on the punitive element on the plea, the Crown would have conducted the plea differently, including cross-examining Mr Thompson about the conditions of the applicant's residency at the RecoverOz facility.

146 The second reason was that the proposed new ground lacked an evidentiary basis and could not succeed. This was said to be because the evidence that was adduced on the plea from Mr Thompson about the conditions of the applicant's residency at the RecoverOz facility was insufficient to attract a discount for quasi-custody in accordance with the principles in Akoka.

147 It was common ground before us that the evidence in support of the proposed new ground is confined to the evidence on the plea and the conditions of bail imposed by John Dixon J (which were said to be a matter of public record). The applicant also relied on defence counsel's uncontested statement on the plea that the applicant had complied with the stringent conditions of his bail. The applicant conceded that no reliance could be placed on Mr Thompson's evidence at the hearing of the bail application before John Dixon J, as that evidence was not before the sentencing judge on the plea or before this Court.

148 In our opinion, the application for leave to add the proposed new ground of appeal against sentence should be refused, largely for the reasons advanced by the Crown.

149 Akoka makes it clear that there must be a sufficient evidentiary basis for a sentencing court to give a discount on sentence due to an offender's stay at a residential rehabilitation facility. That evidence must describe in sufficient detail the restrictions on the offender's liberty to which the offender was actually subject during his or her stay at the facility in order to satisfy the court on the balance of probabilities that that stay constituted quasi-custody, as that term was explained by Akoka and the authorities to which it referred.

150 In the present case, the evidence of Mr Thompson on the plea established no more than that: the applicant was a resident at the RecoverOz facility for 14 months; the applicant undertook weekly urine screens, all of which returned negative results for drug use; the applicant undertook daily group sessions and regular individual counselling sessions; and the applicant's Centrelink benefits were used to pay for the RecoverOz program. These features of the applicant's residency at the RecoverOz facility are insufficient to establish that the residency was quasi-custodial.

151 It may be accepted that the applicant complied with the conditions of his bail, including observing the 11:00 pm to 9:00 am curfew, reporting daily to police, not attending any point of international departure and not approaching any prosecution witnesses other than the Informant. While these conditions have the effect of restricting liberty, they are not uncommon conditions of bail and are not the types of restrictions which constitute quasi-custody.

152 It may also be accepted that the applicant complied with the other conditions of his bail such as not to leave the RecoverOz facility unless it was for a purpose authorised by Mr Thompson or his nominee, to receive only those visitors approved by Mr Thompson and not to have a mobile phone unless permitted by Mr Thompson. These types of conditions are relevant to an assessment of whether residency at a residential rehabilitation facility constitutes quasi-custody. The difficulty in the present case, however, is that there was no evidence as to how these conditions were applied in practice. For example, it is not known whether Mr Thompson gave blanket permission to the applicant to absent himself from the RecoverOz facility outside curfew hours as the applicant saw fit, to receive any visitor of his choice at any time outside the curfew hours, to have a mobile phone or to have unlimited internet access. If this were the case then the applicant's stay at the RecoverOz facility would not constitute quasi-custody.

153 In this regard, it is significant that Mr Thompson gave evidence that, towards the end of his residency, the applicant was permitted to re-establish his building business.[99] It is not clear what this permission entailed. The fact that Mr Thompson said that the applicant was 'well on the way' to getting 'his business back to what it was' suggests that the applicant was given a degree of liberty which is far removed from that enjoyed by a person in custody.

154 These issues were not explored on the plea because defence counsel did not seek to rely on the punitive component of the applicant's residency at the RecoverOz facility as a discrete basis for a sentencing discount. We agree with the Crown that, if there had been such reliance, it is very likely that the prosecutor would have cross-examined Mr Thompson on the actual conditions of the applicant's residency at the RecoverOz facility. Accordingly, there is some force in the Crown's submission that it would be prejudiced if leave were granted to the applicant to rely on the proposed new ground of appeal on the basis of Mr Thompson's evidence, in circumstances where the prosecutor did not have an opportunity to cross-examine Mr Thompson on matters relevant to that ground.

155 It is not necessary for us to reach a final decision on the question of prejudice. This is because we are firmly of the view that leave to add the proposed new ground of appeal should be refused because, on the evidence before us, that ground cannot succeed.

Conclusion on application for leave to appeal against sentence

156 For the above reasons, the application for leave to appeal against sentence will be refused.

[1] DPP v Mourkakos (Unreported, County Court of Victoria, 3 March 2017, Judge Lyon) ('Sentencing remarks').

[2] Charge 6 was subject to a lower maximum sentence than charge 4 because the judge was satisfied on the balance of probabilities that the applicant had possession of the cocaine, but not the MDMA, for a purpose other than trafficking. See DPCSA s 73(1)(b), which is set out at [41] below.

[3] [2017] VSCA 214 ('Akoka').

[4] [2003] HCA 29; (2003) 198 ALR 41 ('Stanton').

[5] Stanton [2003] HCA 29; (2003) 198 ALR 41, 49 [35].

[6] Stanton [2003] HCA 29; (2003) 198 ALR 41, 49 [34].

[7] It should be noted that the principle in Stanton has been abolished by the Jury Directions and Other Acts Amendment Act 2017, which inserted s 64G in the Jury Directions Act 2015. That section took effect on 1 October 2017. Section 64G does not apply to this proceeding because s 10 of the amending Act has the effect that s 64G only applies to trials that commence on or after 1 October 2017**.**

[8] Stanton [2003] HCA 29; (2003) 198 ALR 41, 49 [35].

[9] LLW v The Queen [2012] VSCA 54; (2012) 35 VR 372, 375 [5] ('LLW').

[10] LLW [2012] VSCA 54; (2012) 35 VR 372, 377 [15].

[11] Stanton [2003] HCA 29; (2003) 198 ALR 41, 49 [36].

[12] Stanton [2003] HCA 29; (2003) 198 ALR 41, 45-6 [14]-[15].

[13] Stanton [2003] HCA 29; (2003) 198 ALR 41, 46 [17].

[14] Stanton [2003] HCA 29; (2003) 198 ALR 41, 46 [18].

[15] Stanton [2003] HCA 29; (2003) 198 ALR 41, 49-50 [37]-[39].

[16] [2012] HCA 24; (2012) 245 CLR 588 ('King').

[17] King [2012] HCA 24; (2012) 245 CLR 588, 595 [12] (citations omitted).

[18] King [2012] HCA 24; (2012) 245 CLR 588, 611-12 [56].

[19] (2017) 80 MVR 85 ('Bouch').

[20] Bouch (2017) 80 MVR 85, 90-2 [27]-[29] (emphasis in original) (citations omitted).

[21] Bouch (2017) 80 MVR 85, 101 [76]-[77]. See also Priest JA at 125-6 [151].

[22] Bouch (2017) 80 MVR 85, 100-1 [75].

[23] Bouch (2017) 80 MVR 85, 93 [37].

[24] Bouch (2017) 80 MVR 85, 99 [65].

[25] [2013] VSCA 111; (2013) 39 VR 350 ('Medici').

[26] [2013] VSCA 112; (2013) 39 VR 336 ('Smith').

[27] [2013] VSCA 225; (2013) 39 VR 543 ('Vo').

[28] [2017] VSCA 381 ('Maher').

[29] Bouch (2017) 80 MVR 85, 96-7 [52]-[53] (citations omitted).

[30] Transcript of Proceedings (9 February 2017) 316.

[31] Transcript of Proceedings (9 February 2017) 335.

[32] Transcript of Proceedings (9 February 2017) 342-3.

[33] Transcript of Proceedings (10 February 2017) 359-61.

[34] Transcript of Proceedings (10 February 2017) 362, 363-4, 366, 368-9.

[35] Transcript of Proceedings (10 February 2017) 391-2.

[36] See [25] above.

[37] See [47] above.

[38] See [44] above.

[39] See [46] above.

[40] See [47] above.

[41] (1996) 190 CLR 348 ('MacKenzie').

[42] MacKenzie (1996) 190 CLR 348, 366.

[43] MacKenzie (1996) 190 CLR 348, 366.

[44] MacKenzie (1996) 190 CLR 348, 366.

[45] MacKenzie (1996) 190 CLR 348, 366-7.

[46] MacKenzie (1996) 190 CLR 348, 367-8, 370. Their Honours cited with approval R v Kirkman (1987) 44 SASR 591, 593.

[47] MacKenzie (1996) 190 CLR 348, 368.

[48] MacKenzie (1996) 190 CLR 348, 368.

[49] MacKenzie (1996) 190 CLR 348, 368.

[50] MacKenzie (1996) 190 CLR 348, 369.

[52] MFA (2002) 213 CLR 606, 615-16 [25]. Their Honours cited with approval M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493.

[53] MFA (2002) 213 CLR 606, 618 [36].

[54] MFA (2002) 213 CLR 606, 631 [87], 632 [89].

[55] [2014] VSCA 86 ('Avery').

[56] Avery [2014] VSCA 86 [114].

[57] Transcript of Proceedings (17 February 2017) 447-8.

[58] See [77] above.

[59] DPP v Mourkakos [2007] VSCA 312.

[60] DPP v Mourkakos [2015] VSC 775 [41]-[42] ('John Dixon J's bail decision').

[61] As will be seen, Mr Thompson gave evidence on the plea.

[62] John Dixon J's bail decision [2015] VSC 775 [57].

[63] Transcript of Proceedings (17 February 2017) 432.

[64] Transcript of Proceedings (17 February 2017) 433.

[65] Transcript of Proceedings (17 February 2017) 433-4.

[66] Transcript of Proceedings (17 February 2017) 434.

[67] Transcript of Proceedings (17 February 2017) 437.

[68] Transcript of Proceedings (17 February 2017) 437.

[69] Transcript of Proceedings (17 February 2017) 449-50.

[71] Sentencing remarks [36] (emphasis added).

[75] See DPP v Mourkakos [2007] VSCA 312, which is discussed at [95] above.

[80] Koumis v The Queen [2008] VSCA 84; (2008) 18 VR 434, 437 [53]-[54], 438 [58] ('Koumis'); Nguyen v The Queen [2011] VSCA 32; (2011) 31 VR 673, 696 [89] ('Nguyen').

[81] Koumis [2008] VSCA 84; (2008) 18 VR 434, 437 [53], 438 [58]; Beckerton v The Queen [2011] VSCA 107 [38]-[39] ('Beckerton').

[82] Beckerton [2011] VSCA 107 [41].

[83] [2011] VSCA 32; (2011) 31 VR 673.

[84] [2011] VSCA 107.

[85] [2011] VSCA 170; (2011) 32 VR 587 ('Trajkovski').

[86] Nguyen [2011] VSCA 32; (2011) 31 VR 673, 696 [90].

[87] Nguyen [2011] VSCA 32; (2011) 31 VR 673, 696 [91].

[88] Nguyen [2011] VSCA 32; (2011) 31 VR 673, 696 [92].

[89] Nguyen [2011] VSCA 32; (2011) 31 VR 673, 697 [93].

[90] Beckerton [2011] VSCA 107 [42].

[91] Beckerton [2011] VSCA 107 [44].

[92] Beckerton [2011] VSCA 107 [45].

[93] Beckerton [2011] VSCA 107 [48].

[94] Trajkovski [2011] VSCA 170; (2011) 32 VR 587, 608-9 [108].

[95] In this respect, the applicant cited Trajkovski [2011] VSCA 170; (2011) 32 VR 587, 608-9 [105]-[109]; Nguyen [2011] VSCA 32; (2011) 31 VR 673, 696 [90]; Beckerton [2011] VSCA 107 [41]-[45].

[96] Nguyen [2011] VSCA 32; (2011) 31 VR 673, 696 [90].

[97] Akoka [2017] VSCA 214 [105], [107], [109]-[112], [114] (citations omitted).

[98] See [105] above.

[99] See [100(d)] above.