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The Offending Conduct and Charges

Incident 1 - trafficking in cocaine

3. Between 1 March 2010 and 20 August 2012, the appellant trafficked in cocaine by selling it to friends and acquaintances. He was also found to be in possession of 931 grams of cocaine. When police executed a search warrant on the appellant’s premises, they located a total of $44,900.00 in cash, which was the proceeds of the appellant’s trafficking. The cocaine found in the appellant’s possession had a street value of between $279,300.00 and $325,850.00.

4. The appellant was charged with an offence of trafficking in a controlled drug (other than cannabis) under s 603(7) of the Criminal Code 2002 (ACT) (Criminal Code) (which carries a maximum penalty of 10 years’ imprisonment, or 1000 penalty units or both) and an offence of dealing with money which was the proceeds of crime under s 114C of the Crimes Act 1900 (ACT) (Crimes Act) (which carries a maximum penalty of 2 years’ imprisonment, or 200 penalty units or both).

5. The appellant initially pleaded not guilty to these offences. He changed his plea to guilty after his conviction at trial in respect of one of the incident 2 offences.

6. When sentenced in relation to the incident 1 offences, the sentencing judge took into account a number of scheduled offences, including an offence of perjury relating to false evidence given by the appellant during a bail application.

Incident 2 - domestic violence

7. On 19 August 2012, the appellant severely beat his then domestic partner, causing her horrific injuries. Separately, but during the same overall incident of violence, he choked his partner in the presence of his young son. Subsequently, but on the same day, the appellant restrained his partner from leaving their premises and forced her to take prescription sedatives. His purpose in doing so was to stop her from seeking medical treatment and thereby possibly revealing the assaults. This detention lasted for approximately 24 hours.

8. In respect of this incident, the appellant was charged with two counts of assault occasioning actual bodily harm under s 24 of the Crimes Act, an offence which carries a maximum penalty of 5 years’ imprisonment. He was also charged with a single count of forcible confinement under s 34 of the Crimes Act, a charge which carries a maximum penalty of imprisonment of 10 years.

9. The appellant pleaded guilty to the assault count relating to the choking incident. He was convicted of the other more serious assault count and the unlawful confinement count after a judge alone trial.

Incident 3 – perverting the course of justice

10. Between 19 January 2013 and 25 January 2013, the appellant attempted to pervert the course of justice by encouraging his (by then ex) partner not to attend court in relation to the assault and confinement charges (the incident 2 charges) and encouraging her to produce and give false evidence about her psychological frame of mind at the time of the assaults. He was charged with an offence of attempting to pervert the course of justice under s 713 of the Criminal Code, an offence which carries a maximum penalty of 7 years’ imprisonment, or 700 penalty units or both.

11. The appellant initially entered a plea of not guilty in relation to this count, but changed that plea to guilty, again after his trial and conviction for the assault charge.

The Sentences

12. The sentences imposed by the learned sentencing judge are summarised in the following table:

Incident Incident Charge Maximum Sentence No. Date/s Penalty 1 1/03/10- Trafficking in 10 years’ 6 years’ imprisonment, 20/08/12 cocaine, s 603 imprisonment 20/08/12 - 19/08/18 Criminal Code

20/08/12 Dealing with 2 years’ 10 months’ proceeds of crime, imprisonment imprisonment, 20/02/18 -s 114C Crimes Act 19/12/18

2 19/08/12 Unlawful 10 years’ 5 years’ imprisonment, confinement, s 34 imprisonment 20/12/18 - 19/12/23 Crimes Act

19/08/12 Assault 5 years’ 3 years’ imprisonment, occasioning actual imprisonment 20/12/21 - 19/12/24 bodily harm, s 24 Crimes Act

19/08/12 Assault 5 years’ 9 months’ imprisonment, occasioning actual imprisonment 20/12/21 - 19/09/22 bodily harm, s 24 Crimes Act 3 19/01/13- Attempting to 7 years’ 19 months’ 25/01/13 pervert the course imprisonment imprisonment, 20/12/23 -of justice, s 713 19/07/25 Criminal Code

13. It is to be noted that the incident 1 sentences are partly cumulative and partly concurrent. The incident 2 sentences are also partly cumulative upon and partly concurrent with each other. However, the incident 2 sentences are wholly cumulative on the sentences imposed for the incident 1 offences: the first incident 2 sentence commences on the day after the expiry of the last incident 1 sentence. The incident 3 sentence is partly cumulative and partly concurrent with the last-ending incident 2 sentence.

Remarks on Sentence

14. It is unnecessary to refer at length to the remarks on sentence of the learned sentencing judge. The appellant’s submissions on appeal did not address them at all. It suffices to note the following.

15. First, his Honour found that the trafficking offence was in the upper range of objective seriousness for such offences.

16. Second, his Honour accepted that the pleas of guilty in respect of the incident 1 offences had some utilitarian value but did not demonstrate real remorse. His Honour applied a 10% discount to these sentences in respect of the guilty pleas.

17. Third, his Honour found that the confinement charge fell within the upper range of objective seriousness for such offences.

18. Fourth, in relation to the more serious of the assault counts, his Honour said (at [34]):

The injuries inflicted were quite shocking and speak of a vicious assault upon the victim who was helpless. I note that the assault has resulted in ongoing emotional and psychological difficulties for the victim. I also note that your young son was present in the house while this occurred and was aware of what was occurring.

19. Fifth, his Honour did not allow for any reduction of the incident 2 sentences in respect of which the appellant pleaded guilty. That was because the appellant disputed the facts on the sentence, showed no remorse and defended the most serious assault count.

20. Sixth, in relation to incident 3, his Honour found that the appellant’s conduct had “the potential to seriously endanger the course of serious criminal prosecutions.” His Honour noted that the appellant showed no remorse and entered a late guilty plea. He nonetheless allowed a discount of 10% in respect of the guilty plea.

21. Seventh, in relation to the subjective circumstances, his Honour noted that the appellant had a lengthy criminal history which disentitled him to any leniency and that the appellant had shown no remorse and did not have strong prospects for rehabilitation. Grounds of Appeal and Submissions

22. As already noted, the appellant’s sole ground of appeal was that the overall sentence was manifestly excessive.

23. The appellant conceded, in his submissions, that none of the individual sentences was manifestly excessive. In reality, his sole complaint was that the incident 2 sentences should not have been wholly cumulative on the incident 1 sentences. He submitted that it would have been appropriate to allow some concurrency between the incident 1 and incident 2 sentences.

24. The appellant also submitted that there was nothing to suggest that, having arrived at the individual sentences, the sentencing judge took a “last look at the total just to see whether it looks wrong”: cf. Mill v The Queen (1988) 166 CLR 59 (Mill) at 63 quoting Thomas, Principles of Sentencing, 2nd ed. (1979) at 56-57.

Relevant Principles

25. The considerations that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:

(a) Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).

(b) The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason and justice: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 at [61].

(c) In approaching the question of whether a sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Melham at [85].

(d) It is not enough that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

26. The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:

(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.

(b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63. (c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].

(d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].

Was the aggregate sentence imposed on the appellant manifestly excessive?

27. Accepting that each of the individual sentences could not be said to be manifestly excessive (as properly conceded by the appellant), the question here is whether the aggregate sentence of 12 years and 11 months with a non-parole period of 8 years and 4 months was so long as to be unreasonable or plainly unjust. The appellant submitted that it is and that this came about because the incident 2 sentences should not have been wholly cumulated on the incident 1 sentences, and should have been at least partly concurrent. He also submitted that there is no indication that the judge applied the totality principle.

28. In all the circumstances of this case, the total or aggregate sentence may be considered by some to be somewhat harsh. However, it cannot be concluded that it is unreasonable or plainly unjust, or that the total sentence is not just and appropriate having regard to the overall criminality. It cannot, therefore, be considered to be manifestly excessive.

29. Each of the three incidents for which the appellant was sentenced involved serious criminality that was separate and distinct. There is no overlap or commonality of factors or elements. Nor could it be said that the three incidents arose from a single episode or course of conduct such that the criminality involved in one of the incidents was subsumed or comprehended in the others. That is particularly the case in relation to incidents 1 and 2.

30. The structure of the sentences reveals that the sentencing judge gave careful attention to questions of accumulation, concurrence and totality. There was a degree of concurrence between the individual sentences within incidents 1 and incident 2 and a degree of concurrency between the incident 2 and incident 3 sentences, perhaps reflecting that the perversion of the course of justice related to the proceedings the subject of the incident 2 offences. The appellant’s submission that the sentencing judge did not have regard to the principle of totality is without merit and is rejected.

31. No other error on the part of the sentencing judge was suggested or made out by the appellant. Disposition

32. The appellant failed to demonstrate that the aggregate sentence imposed on him was manifestly excessive or that the sentencing judge otherwise erred in principle, either in relation to making the incident 2 sentences wholly cumulative on the incident 1 sentences or otherwise. The appeal was accordingly dismissed.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

Associate:

Date: 2 September 2015