R v Casey [2002] VSCA 117

5. After hearing a plea in mitigation, the learned judge sentenced the applicant as follows on 28 September 2000: on count 1, seven years' imprisonment to commence 18 months from the date of the commencement of the sentence imposed upon count 2; and, on count 2, six years' imprisonment to commence immediately.

8. The method of sentencing adopted by the judge meant that the total effective sentence to be served was one of eight and a half years. His Honour ordered that the applicant serve a period of six years' imprisonment before becoming eligible for parole.

11. The applicant had been in custody for some 147 days with respect to these charges and that period was declared by his Honour pursuant to the relevant section of the Crimes Act 1914 (Cwlth).

14. The applicant admitted a number of previous convictions, including one for trafficking in cannabis. At the time of his sentence he was serving out a term of imprisonment of 12 months of which he had completed, at the time of sentence for these charges, nearly seven months. His Honour ordered that the sentences that he imposed for these charges should run concurrently with the uncompleted portion of the sentence then being undergone by the applicant.

17. The applicant initially applied for leave to appeal against both his convictions and the sentences imposed. The conviction application, however, has since been abandoned and the proceedings in this Court have been confined to the appeal against sentence.

20. The grounds of appeal relied upon in this respect are several in number although in the main they assert that the total effective sentence and the non-parole period are manifestly excessive.

23. Before turning to the grounds, it is desirable to briefly describe the circumstances of the offending. On 11 August of 1998 federal customs officers had their attention drawn to a parcel at the Sydney Mail Exchange. It was apparently a bulky parcel and was addressed to one "Bradley Wood, care of the Ocean Grove Post Office, Victoria". The point of origin of this article was apparently the Netherlands.

26. Bradley Wood, as it subsequently turned out, was a friend of the applicant and he too was ultimately charged with the offence of attempting to obtain possession of prohibitive imports. He claimed that he knew nothing about this parcel or its provenance or its importation but had agreed with the applicant, after the parcel had arrived in Australia, when approached by him, to claim and collect the parcel in return for a sum of $500.(It should be said that Wood ultimately pleaded guilty in the County Court in March of 2000 to one count of attempting to obtain possession of a prohibited import. At his plea he promised cooperation in relation to the trial of the applicant and was ultimately sentenced to two years' imprisonment and ordered to serve six months before being released on a recognizance release order. The minimal nature of the sentence imposed upon him reflects both his limited role in this particular operation, together with discounts for the cooperation which he promised and in fact gave.)

29. In any event, the parcel which had been brought to the attention of the customs officers in Sydney was taken into possession by them and, upon inspection, was found to contain a number of bottles of liquid labelled "sports soft drinks". Upon further analysis it revealed that the fluid in each of the bottles contained 18 per cent of methylamphetamine capable of being reduced to solid form by a chemical evaporation process. The total amount of pure amphetamine was estimated at approximately 679 grams. The trafficable quantity of this substance specified in the schedule to the Customs Act is two grams. The bottles were emptied by the customs officers into separate containers and refilled with what appears to have been an innocuous substance of similar colour, then repacked and put back into circulation, and thereafter forwarded to the Ocean Grove Post Office destined for the so-called Bradley Wood.

32. In due course, namely on 18 August 1998, Mr Wood was sent by the applicant to collect the parcel. He was told that it was not there on that day but to come back on the following day when they expected it might arrive. He did as he was told and was seen to arrive on 19 August in a car driven by the applicant. Once the parcel had been picked up by Mr Wood and taken to the applicant's car, the two of them drove to a pharmacy where the applicant alighted and purchased a pair of surgical gloves, no doubt as a detection avoidance device. The applicant and Wood then drove on to the house of a friend of the applicant where, after donning the gloves, the applicant opened the parcel, inspected the contents and, apparently satisfied, paid to Wood the $500 promised. He and Wood then drove to other premises in the area where the applicant collected a number of boxes and then returned to the car. He and Wood then drove to Wood's house. The boxes were taken from the car into a garage at the rear of the house. They contained laboratory equipment designed to facilitate the recovery of the methylamphetamine from the liquid. The liquid was subjected to the chemical process but, of course, no amphetamine was recovered. The applicant became ostensibly annoyed, telling Wood that he would "go home and email the bloke about it". The equipment and the remnants of the parcel were left at Wood's house and were recovered by federal police officers when they executed the search warrant on 9 September. Wood was then arrested. He made full admissions as to his involvement. The applicant was also arrested and declined to comment. A search of his house revealed scales and a glass reaction vessel and other paraphernalia related to drug trafficking. He ultimately pleaded not guilty at his trial which lasted over six sitting days in September of the year 2000. The jury convicted him of both the offences with which he was charged after a retirement of a little more than an hour.

35. There are six grounds of appeal upon which the applicant relies to challenge the sentences imposed upon him. They are, in brief form:

2. That the judge was in error in failing to make the sentences wholly concurrent;

3. The sentences are too high and reflect sentences for the importation of more harmful substances such as heroin or cocaine;

4. That excessive weight was given to general deterrence in the sentencing process;

5. That there is manifest disparity between the applicant's sentence and that imposed upon Wood; and

6. That there was a failure to take account of time spent in uncomfortable custody at the Geelong cells.

44. Grounds 2, 3 and 4 are really particulars of ground 1 and were treated as such by Mr Tehan in this Court when he appeared for the applicant.

47. Ground 5, that of disparity between the applicant's sentence and the sentence imposed upon Wood, was not pursued.

50. In support of his contention that the total effective sentence of eight and a half years and the non-parole period of six years was manifestly excessive, Mr Tehan made a number of submissions.

53. First, he submitted that his Honour was in error in cumulating a portion of the sentence imposed on count 2 upon the sentence which had been imposed upon count 1. It was put that his Honour had erroneously relied - in ordering cumulation - upon matters which he had already taken into account in imposing sentences on the substantive offences. In other words, proper sentencing principles, so Mr Tehan, submitted, dictated total concurrency to "avoid doubling up".

56. He contended that every importer of a prohibited substance is necessarily a "collector and possessor", and that the criminality of the acts of importing and taking into possession necessarily and wholly overlap.

59. It was put that the matters which his Honour relied upon for the purposes of cumulating were matters that were appropriate to the fixing of the individual penalties but not to cumulation.

62. The unwarranted cumulation, it was said, was demonstrated when one looks at the total effective sentence which can be seen to be manifestly unjust because it can be seen that the impact of cumulation has carried the total effective sentence beyond the reasonable limits for this type of offence.

65. There were other matters upon which Mr Tehan relied in support of his contention that the total effective sentence and the non-parole period were manifestly excessive. Thus it was submitted that sentences imposed for importing methylamphetamine as distinct from substances such as "Ecstasy," do not suggest sentences of that magnitude. Here it is said that the total sentence imposed is the equivalent of a head sentence of more than 12 years, when s.16G of the Crimes Act (Cwlth) is applied; with a non-parole period the equivalent of nine years.

68. The authorities, it was submitted, suggested that generally courts make a larger disparity between a total effective sentence of the sort imposed by his Honour and the non-parole period.

71. The sentence, so it was put, reflected a failure also to give any weight to the delay between the arrest of the applicant and the ultimate conviction. The offences, Mr Tehan said, were two years old but the applicant had been bailed and first arraigned in August 1999; yet he had to wait another year before trial.

74. Furthermore, it was contended that his Honour must have given insufficient weight to the prospects of rehabilitation. That could be seen, so it was said, by the ultimate sentences imposed, even though it was conceded that general deterrence had to play an important part in the sentencing process.

77. All of these matters, Mr Tehan submitted, should compel the Court to the view that the head sentence of eight and a half years was manifestly excessive and that there was insufficient disparity between that sentence and the non-parole period fixed.

80. Notwithstanding that these arguments were persuasively put, I must confess that I remain unpersuaded that the sentences which his Honour imposed, that is the total effective sentence and the non-parole period, are manifestly excessive. It may be that it can be said that they are stern sentences but in my view they are not manifestly excessive in the sense that they are so disproportionate to the gravity of the offending that on their face they bespeak error.

83. It is necessary to recall the many occasions upon which this Court has emphasised that those who engage in the importation and trafficking of drugs must expect, if caught, severe punishment. In the main, offences such as these are motivated by greed. The judge in this case took the view that this was the major motivation of the applicant. If, indeed, he had recovered the 697 grams which he expected, the amount of profit which he could and would have expected was immense.

86. The comments which the Court has made about drug importation in recent years, in my view, apply as much to methylamphetamine as they do to heroin, notwithstanding that it is sometimes thought that amphetamines are "recreational drugs" of less intensity and addictive power than, for example, heroin and cocaine. His Honour was correct to point out that methylamphetamine, however one classifies it, is a mood altering drug and is capable of creating anti-social behaviour and damage to the youth of our community in similar proportion to the so-called "hard drugs". I agree with the comments of Wood, C.J. in the case of R v. Bimahendali[1] to the effect that it is non-productive in sentencing offenders to speak of graduations of seriousness depending upon the substance involved. Courts should always take their cue from the legislature and the penalties prescribed by statute rather than import into the sentencing discretion individual views as to the perniciousness of the substance. In that direction will ultimately lie inconsistency of sentences. Similar comments were made by this Court in the case of Carey[2].

89. In the context of the penalties provided by parliament, it is my view that the sentences of seven years on count 1 and six years on count 2 imposed by his Honour, and for the very careful reasons which he gave, cannot be said to be manifestly excessive; particularly having regard to the quantity of the drugs imported, the sophistication of the method which was chosen and the deliberate cunning and callous methods taken by the applicant to take possession of the prohibited imports. Contrary to Mr Tehan's primary argument, it seems to me that his Honour was entitled to cumulate a portion of the sentence imposed on count 2 on the sentence imposed on count 1 to demonstrate the extra criminality involved in the methods employed in reducing the drug into his possession. In my view, the crimes were not so interrelated or intertwined in the circumstances of this case to demand total concurrency. I think it was within his Honour's discretion to make the limited cumulation which he did. I cannot accept that his Honour was constrained to reflect the gravity of the applicant's conduct solely in the sentence which he imposed on count 2, and not at liberty to reflect that added degree of criminality in the total effective sentence. Nor, in my view, does the limited cumulation provided render the total effective sentence of eight and a half years with a non-parole period of six years manifestly excessive. Even allowing for aspects of delay, which are not, in my view excessive, and for the impact to s.16G of the Crimes Act (an impact for which his Honour clearly did allow), the ultimate sentence still appears to me to be within the range of penalty open to this very experienced judge. Principles of general and specific deterrence had to loom large in fixing appropriate sentences in the circumstances of this offending, although it is clear from his Honour's remarks that he has given full effect to the personal circumstances of the applicant.

92. I would accordingly reject ground 1 and with it grounds 2, 3 and 4 which, as I have said, are really particulars of ground 1.

95. That leaves ground 6 which asserts that his Honour failed to take into account the time spent by the applicant in custody in uncomfortable circumstances in the Geelong cells during the period of the trial. This ground was added by leave of the Registrar. His Honour said that he would take account in sentencing, and would so state, the fact that the applicant had been held in uncomfortable circumstances in the Geelong cells prior to and during the trial. When it came to sentence, his Honour did not so state.

98. Mr Tehan concedes that although this is a minor matter in the context of his arguments in support of this application, he nevertheless submits that the applicant was entitled to receive a discount which, in effect, he was promised, no matter how small that discount might be.

101. The difficulty about that argument, as I see it, is that it cannot be shown that this experienced judge did not do what he said he was going to do and that is to take the uncomfortable period in the cells into account in the course of his sentencing discretion. It is true that he has not made a specific statement about the matter in his sentencing remarks but I would, myself, have regarded that the statement which he said he was going to make was not going to be for the benefit of the applicant but, rather, for the benefit of those responsible for the state of the cells in Geelong. The fact is that his Honour made the sentences which he imposed concurrent with the unexpired portion of the sentence the applicant was then undergoing. No doubt, such a course was consistent with his Honour's views as to totality but it was also quite consistent, I would have thought, with his expressed attitude of making allowance for the discomfort of the applicant at Geelong during what was a reasonably short period of time.

104. None of the grounds of the application have been made out and in my view it

113. I agree that the application should be dismissed for the reasons given by the President.

118. The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.

[1] [1999] NSWCCA 409; (1999) 109 A.Crim R. 355 at 362.

[2] [1998] 4 V.R. 13 at p.18.