R v Duncan [2006] VSCA 239

2 On 17 October 2005 the applicant, after pleading guilty, was convicted in the County Court at Melbourne of one count of trafficking in a drug of dependence (Cannabis L) (Count 1); one count of trafficking in a large commercial quantity of a drug of dependence (3, 4 methylenedioxy-N-methylamphetamine ("MDMA"))[1] (Count 2), and one count of possession of a drug of dependence (MDMA) (Count 3). Following a plea in mitigation of penalty, the judge sentenced him on Count 1 to a term of imprisonment of 20 months; on Count 2, to a term of imprisonment of eight years and a fine of $3,500; and on Count 3, to a term of imprisonment of two months, and the judge cumulated 10 months of the sentence imposed on Count 1 on the sentence imposed on Count 2, thereby making for a total effective sentence of eight years and 10 months, and ordered that the applicant serve not less than four years and five months' imprisonment before being eligible for parole.

3 The applicant now applies for leave to appeal against sentence on grounds that:

1. The judge failed to have regard to the likelihood of automatic forfeiture of the applicants interest in real estate and a motor car pursuant to the Confiscation Act 1997 (Ground 1).

2. The judge made a mistake as to the maximum penalty applicable to the offence of trafficking in a large commercial quantity of a drug of dependence (Ground 3).

3. The judge erred in treating MDMA as a more harmful drug than cannabis and thus the offence of trafficking in MDMA as a more serious offence than trafficking in cannabis (Ground 2).

4. The sentence on each count, the orders for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive (Ground 4).

5. The sentence on each count, the orders for cumulation, the resulting total effective sentence and the non-parole period infringe the principles relating to parity amongst co-offenders (Ground 5).

4 I shall deal with the grounds of appeal in the order in which they were presented by counsel.

Ground 3: Error in maximum penalty

5 Under cover of ground 3 it is contended that the judge erred by sentencing the applicant in respect of Count 2 on the basis of a mistake that the maximum fine which could be imposed was $5,000 and on the mistaken premise that her Honour was bound to impose a fine as well as a term of imprisonment.

6 That appears to be so. In paragraph [18] of the judge's sentencing remarks her Honour said that :

"Count 2 is an offence in the category of the most serious offending in the law. The penalty of life imprisonment and a fine of up to $5,000 reflects the community's concern and condemnation of this crime. Apart from causing risks to health, it is a crime which involves considerable amounts of police time and public money to detect."

In fact the maximum penalty prescribed by s.71 is life imprisonment and 5,000 penalty units, which is to say something in excess of $500,000,[2] and it can be seen from the transcript of the plea that the prosecutor told the judge, incorrectly, that the judge was bound to impose a fine in addition to a term of imprisonment.

7 Of itself, I should not have thought that the judge's mistake as to the amount of the fine was of any consequence. It does not seem that her Honour was steering by the maximum and, even if she were, it could only have worked to the advantage of the applicant.[3] But the error as to whether it was mandatory to impose a fine in addition to a term of imprisonment does appear to be material.

8 In the case of level 2 offences, s.109(3A) of the Sentencing Act 1991 makes plain that, if any fine is imposed, it must be in addition to and not in lieu of a term of imprisonment.[4] Additionally, although s.109(3A) does not apply to offences punishable by life imprisonment, the natural and ordinary meaning of the words of s.71, combined with s.49 of the Sentencing Act 1991, is that if any fine is imposed, it must be in addition to and not in lieu of imprisonment. There are too a number of circumstances which may make it appropriate to impose a fine in addition to a term of imprisonment, including those mentioned in s.50(5) of the Sentencing Act 1991. In the case of drug offences, one reason to impose a fine in addition to a term of imprisonment would be to enforce the disgorgement of the financial benefits of the offending.[5] But it remains within the discretion of a sentencing judge as to whether to impose any fine under s.71 and, in exercising that discretion, a judge is bound to keep in view the requirement of s.5(3) of the Sentencing Act 1991 that the judge not impose a sentence more severe than is necessary to achieve the purpose or purposes for which the sentence is imposed. Thus a judge may take the view that the disgorgement of profits is better served by pecuniary penalty orders and confiscation of property under the Confiscation Act 1997 than by the relatively arbitrary mechanism of fines.

9 In this case I do not consider that there was anything necessarily wrong with imposing a fine in addition to a term of imprisonment. The judge had to deal with the matter as it was when it was before her, and at that time it remained for the procedures under the Confiscation Act 1997 fully to be worked out. In those circumstances, I do not think it could be said that it was beyond the range of sound discretionary judgment to impose a fine in addition to a term of imprisonment.

10 But there was error in approaching the matter on the basis that the imposition of a fine was mandatory rather than something which called for the exercise of the judge's sentencing discretion, and it was an error which resulted in the judge proceeding in accordance with wrong principle. That is enough to necessitate the re-exercise of the sentencing discretion.

Ground 2: Error in the approach to MDMA

11 At paragraphs [16] to [19] of her sentencing remarks, the judge said this:

"[With reference to Count 2] Mr Duncan, ecstasy is a mind-altering drug which, unhappily, has been increasingly abused in our society over recent years. It is known to cause harm, particularly to vulnerable and/or susceptible young persons who are often engaged in poly-substance abuse. The level of harm which it is known to cause can vary from those young persons who lead feckless party lifestyles and are awake for days on end to darker effects where there have been recorded instances of death associated with ecstasy use, particularly in combination with other substances.

...

...

As far as Count 1 is concerned, although it is a lesser offence than Count 2, it is nonetheless a serious offence. It is well known that cannabis can have a very deleterious effect on health, particularly for those who are predisposed to certain psychiatric disorders. If heavily abused, it reduces motivation, may mask or exacerbate psychological conditions such as depression, and adversely affect an individual's ability to successfully relate to those around them."

12 The applicant's counsel submitted that it is apparent from those remarks that the judge regarded ecstasy as a more harmful drug than cannabis and that her Honour considered that, all else being equal, the offence of trafficking in ecstasy was a more serious offence that trafficking in cannabis. It followed, in counsel's submission, that the judge erred by taking a view as to the effects of ecstasy which was not supported by the evidence or, alternatively, by failing to warn counsel who appeared for the applicant on the plea that her Honour was proposing to approach the matter on that basis.

13 That appears to be so. The decision in R. v. Pidoto and O'Dea[6] establishes that, other things being equal, trafficking in a commercial quantity of drug of dependence "A" is not to be regarded as more nor less serious than trafficking in a commercial quantity of drug of dependence "B",[7] and, presumably, the same holds true for trafficking in a large commercial quantity or a quantitiy less than a commercial quantity. As the court said, it is the volume of the substance the subject of trafficking which determines the seriousness of the offending.

14 Following the decisions in Pidoto and O'Dea and Yacoub,[8] I think it must now also be accepted that it is an error for a judge to bring to bear his or her assessment of the harm associated with any particular drug. The matter is instead to be approached on the basis that all drugs proscribed by the Drugs Poisons and Controlled Substances Act 1981 have deleterious consequences of anti-social proportions and that trafficking in any of them is therefore properly to be regarded as a serious criminal offence.

15 In practical terms, however, in this case that really made no difference. The applicant was sentenced on the basis that MDMA is a dangerous psychogenic substance (which in effect if not in terms accords with the approach laid down in Pidoto and O'Dea and Yacoub that all drugs proscribed by the Act have deleterious consequences of anti-social proportions), and on the basis that cannabis was not as dangerous as MDMA (which as it now emerges was contrary to the approach since dictated by Pidoto and O'Dea and Yacoub that one proscribed drug is not to be regarded as productive of consequences any more or less serious than another). As we now know, it should have been treated as being just as serious, subject only to the relative quantities involved. But since the way in which the matter was dealt with can only have operated in favour of the applicant, resulting in a more lenient sentence on the count of trafficking in cannabis than would otherwise have been the case, it was not a material error. The applicant is better off than he would have been if the error had not occurred.

16 Accordingly, the sentencing discretion is reopened, but there is nothing in the point of itself to suggest that the applicant should be resentenced more leniently.

Ground 4: Manifest excessiveness

17 Under cover of ground 4 it was submitted on behalf of the applicant that the individual sentences, the resulting total effective sentence and the non-parole period were all manifestly excessive having regard to the applicant's relative youth at the time of offending (he was then aged 24 or 25 years); his early plea of guilty; his remorse; the delay between the offending and sentencing; the fact that he trafficked to support a gambling disorder; his insight; the support which he enjoys from family and friends; his absence of prior convictions; and his prospects of rehabilitation.

18 There are three things to be said about that. First, this applicant pleaded guilty to trafficking in cannabis, for which the maximum penalty is 15 years imprisonment, and to trafficking in a large commercial quantity of MDMA, for which the maximum penalty is life imprisonment, and yet he has been given a total effective sentence of only eight years and ten months imprisonment and a non-parole period of only four years and five months. On any objective analysis, he has done very well indeed.

19 Secondly, the judge referred to each of the matters which are now urged in mitigation of penalty and in the course of her very detailed and careful sentencing remarks gave each of them reasoned consideration. There is no reason to doubt that they were given adequate weight in her Honour's sentencing synthesis.

20 Thirdly, bearing in mind the loathsome nature and gravity of the offences committed by the applicant, the sentences imposed and in particular the non-parole period that was set can only be regarded as merciful. They reflect the judge's assessment of his prospects of rehabilitation. Anything substantially less would have been beyond the range.

Ground 5: Parity

21 Under Ground 5 it was submitted that the sentence on each count, the orders for cumulation, the resulting total effective sentence and the non-parole period infringed the principles relating to parity amongst co-offenders.

22 Reference was made to the fact that one of the applicant's co-accused, Jayson Rodda, pleaded guilty to five counts and two summary offences and it was submitted that there were five respects in which the applicant should be seen to have a justifiable sense of grievance as to the magnitude of his own sentence compared to that imposed on Rodda:

1. First, on the equivalent count of trafficking in a large commercial quantity, Rodda was sentenced to be imprisoned for six years and fined $500 (his Count 1) whereas the applicant sentenced to eight years' imprisonment and a fine of $3,500 (his Count 2). It was submitted that the difference in those sentences over-represented any difference in the role played by the applicant or the number of tablets with which he was charged (17,500 compared with 23,000).

2. Secondly, on the count of conspiracy to traffick in 20 pounds (or 280 ounces) of cannabis, Rodda received a sentence of nine months' gaol (his Count 2), whereas the applicant was sentenced to 20 months' gaol for trafficking ten ounces of cannabis (his Count 1). It was submitted that the disparity was manifest.

3. Thirdly, Rodda received a total effective sentence of seven years' gaol whereas the applicant received a total effective sentence of eight years and ten months' gaol. It was submitted that there should have been no difference in total effective sentence or, alternatively, that the difference was just too great given that, in addition to the offence of trafficking in a large commercial quantity of ecstasy, Rodda was also convicted of the more serious offence of conspiring to traffick 20 pounds of cannabis, plus an offence of reckless endangerment in trying to outrun the police, and he had committed offences of dishonesty in being in possession of money and property that could not be accounted for.

4. Fourthly, it was submitted that the same was true of the respective non-parole periods - three years and six months compared with four years and five months.

5. Fifthly, Rodda had a prior appearance for possession of cocaine, possession of ecstasy and possession of cannabis, whereas the applicant had no prior appearances or convictions.

23 A similar argument was advanced on the basis of the sentences imposed on the applicant's co-accused, Bruno D'Aloia, who pleaded guilty to four counts. It was submitted that there were two respects in which the applicant should be seen to have a justifiable sense of grievance as to the magnitude of his own sentence compared to that imposed on D'Aloia:

1. First, on the equivalent count of trafficking in a large commercial quantity, D'Aloia was sentenced to be imprisoned for nine years and fined $3,500 (his Count 4; the applicant's Count 2) and it was submitted that the difference of only one year's gaol and no difference in the fine imposed failed fully to reflect the differences identified by the judge at paragraphs [37] to [39] of her sentencing remarks.

2. Secondly, on the count of trafficking in 18 cannabis seedlings, D'Aloia was sentenced to be imprisoned for eight months (his Count 3), and it was submitted that it was no less serious an offence than the applicant's trafficking in ten ounces and, in some respects, it was a more serious offence. As the applicant would have it, D'Aloia's offence would usually be deserving of a heavier sentence, given D'Aloia's criminal history, relative age and lesser prospects of rehabilitation and, it was asserted, because 18 seedlings once grown and harvested would be expected to produce something in the order of 20 to 60 kilograms of green weight or about ten to thirty pounds of dried cannabis, which is substantially more than the ten ounces which attracted a sentence of 20 months' gaol for the applicant.

24 It is convenient to deal with the two arguments in turn. Plainly, the single most important difference between the applicant and Rodda is that the applicant was found to be at a considerably higher level than Rodda in the tree of distribution. As the judge found in respect of Count 2, the applicant dealt in 23,000 Ecstasy tablets in five separate transactions over a period of five weeks. That offending involved a "large commercial quantity", with the consequence that the prescribed maximum penalty for the offence included a sentence of life imprisonment. And as the judge also found, the applicant then sold those tablets to other persons for profit.[9] By comparison, Rodda obtained ecstasy tablets on six occasions. Rodda obtained those tablets from Finn who in turn had obtained them from Duncan. Rodda was found to have done it because he was a drug user.

25 Secondly, a strong plea in mitigation was presented on Rodda's behalf and the judge found that Rodda's plea was truly indicative of remorse and that he had gained considerable insight into his reasons for offending; he had remained drug free and had committed himself to an honest, hard-working lifestyle. His was a truly remarkable and exceptional story of remorse and rehabilitation.

26 Thirdly, as has been seen, the judge found that the applicant engaged in his offending at least in part for profit. The judge sentenced Rodda, however, on the basis that he was "a significant drug user rather than someone who was callously engaging in the trade solely for profit".

27 Fourthly, while Rodda pleaded guilty to conspiracy to commit the offence of trafficking in cannabis, the substantive offence of trafficking in cannabis was never committed. The police intervened before any sale was concluded.

28 Fifthly, the applicant made actual sales of cannabis (albeit only one ounce on each occasion) on 10 separate occasions over a six month period.

29 Sixthly, in imposing sentence upon the applicant, the judge paid express regard to the manner in which she had sentenced Rodda and explained the reasons for the differences,[10] as follows:

"Finn and Rodda were seriously involved in trafficking large commercial quantities of ecstasy. Although it is possible that they had sources of supply other than yourself, I am satisfied beyond reasonable doubt that all of the tablets which the Crown assigned to them in the context of these Court proceedings, came from yourself and that you had obtained them from Bruno D'Aloia. You and Bruno D'Aloia are the ones who have made the whole of this chain of the commercial trade in ecstasy possible. Thus the penalty which should apply to you and Bruno D'Aloia should be greater than that applied to Finn and Rodda to reflect the greater gravity of your offending."[11]

30 All things considered, particularly the extent and scale of the applicant's offending and his position in the tree of distribution compared to that of Rodda, I do not accept that the applicant is justified in having a sense of grievance about the differences between the sentence imposed on him and the sentence imposed on Rodda.

31 So far as the comparison with the sentence imposed on D'Aloia is concerned, the judge gave concise but detailed reasons for the differences as follows:

"Although the role you played in trafficking of ecstasy is no less serious than that of your supplier, Bruno D'Aloia, and hence should usually be punished by a [like] sentence, there are differences which I take into account.

I am satisfied on the balance of probabilities that you were an ecstasy user to some considerable degree whereas Bruo D'Aloia was not. I am satisfied on the balance of probabilities that a substantial albeit not the sole reason for you engaging in this grave offending on Count 2, was to feed your own habit whereas Bruno D'Aloia does not have that mitigating factor available to him. Certainly, he claims that he was a cannabis user, but he has engaged in other innocent means of satisfying that particular habit.

In addition, you are 15 and a half years younger than Bruno D'Aloia and unlike him, you come before the Court with no prior convictions. Even though his prior convictions are not very serious compared to the charges for which he is to be sentenced, he clearly has had a long association with illicit drugs going back to 1980 and Count 1, to which he has pleaded guilty, is a very serious charge which goes back to 1996. Unlike yourself, he is not able to rely upon prior good character.

In addition, although Bruno D'Aloia has apparently ceased his marijuana use, re-connected with his family, and been undertaking some honest employment, the material put forward on his plea is not comparable to the impressive array of testimonials on your account, which leave me in no doubt of your true remorse for your offending, and the very significant rehabilitative gains which you have made since. I regard your prospects of rehabilitation as markedly superior to those of Bruno D'Aloia."

32 As may be seen, therefore, despite the overall favour with which the judge regarded the applicant compared to D'Aloia, her Honour proceeded correctly from the premise that the applicant was to be subjected to the same sentence on Count 2 as D'Aloia, subject only to due allowance for the differences which her Honour identified.

33 It may be that another judge would have taken the view that the differences to which the judge referred were such as to warrant a greater difference between the sentences imposed on the two offenders. But, as must always be kept steadily in view, the process of sentencing is not given to mathematical precision. In the end, it is an exercise in discretion in which it is the responsibility of the sentencing judge to synthesise all of the relevant considerations and it is only subject to appellate intervention in a case of specific error or manifest excessiveness. Given the starting point that the applicant's level of offending on Count 2 was approximately equal to that of D'Aloia, I am not persuaded that the judge's sentencing synthesis was beyond the bounds of sound discretionary judgment. I do not consider that the differences or lack of differences between the sentence imposed on the applicant and the sentence imposed on D'Aloia are such as to breach the sentencing principle of parity.[12]

34 In my view Ground 5 fails.

Ground 1

35 Ground 1 was abandoned in the course of oral argument.

Re-sentencing

36 If the sentencing discretion is to be re-opened, as I think should be the case, I consider that the applicant should be re-sentenced on essentially the same terms as he was originally sentenced, on all counts except Count 2. So far as the other counts are concerned, apart from the misapprehension that s.71 of the Drugs Poisons and Controlled Substances Act required the judge to impose a fine in addition to a term of imprisonment, the only material error which I perceive in the judge's sentencing analysis is that which is revealed by the subsequent decisions of Pidoto v. O'Dea and Yakoub. For the reasons which I have endeavoured to explain, it can only have led to the imposition of a lesser sentence on Count 1 than would otherwise have been imposed. So far as Count 2 is concerned, I agree with the judge that a sentence of eight years imprisonment is an appropriate sentence but, given the availability to the Crown of confiscation proceedings and proceedings for pecuniary penalty orders, I would not impose a fine.

37 I would therefore re-sentence the applicant on Count 1 to a term of imprisonment of 20 months; on Count 2, to a term of imprisonment of eight years; and on Count 3, to a term of imprisonment of two months. I would cumulate 10 months of the sentence imposed on Count 1 on the sentence imposed on Count 2,

thereby making for a total effective sentence of eight years and 10 months, and I would order that the applicant serve not less than four years and five months' imprisonment before being eligible for parole.

38 I agree that this appeal should be allowed and the applicant re-sentenced in the manner proposed and for the reasons advanced by Nettle, J.A.. in his judgment.

[1] Commonly known as "ecstacy".

[2] Sentencing Act 1991, s.110.

[3] cf. R. v. R.J.E. [1999] VSCA 79 at [10]- [13].; also R. v. Beary [2004] VSCA 229; (2004) 151 A. Crim. R. 388 at 396.

[4] See also, Fox & Freiberg, Sentencing, State and Federal Law in Victoria, 2nd Ed. at [4.207]; DPP v. Rzek [2003] VSCA 97 at [32] fn.15.

[5] See, further, Fox & Freiberg, at [4.206] and [4.208].

[6] [2006] VSCA 185 at [39] (which was handed down after her Honour imposed sentence).

[7] Other things being equal.

[8] The Queen v. Yacoub [2006] VSCA 203.

[9] Sentencing remarks at [16].

[10] Sentencing remarks at [36].

[11] My emphasis.

[12] R. v. Taudevin [1996] 2 V. 402, at p.404.