R v Johnston [2008] VSCA 133

Mr S Ward, Acting Solicitor for Public Prosecutions

1 I will ask Nettle JA to deliver the first judgment in this matter.

2 This is an application for leave to appeal against a total effective sentence of 23 years' imprisonment, with a non-parole period of 15 years, that was imposed on the applicant on pleading guilty to one count of murder, one count of kidnapping, one count of false imprisonment, and counts of trafficking in a large commercial quantity of MDMA, trafficking in a commercial quantity of methylamphetamine and trafficking in a commercial quantity of MDMA. The sole ground of the application is that the individual sentences, total effective sentence and non-parole period are manifestly excessive.

3 The applicant was born on 29 November 1981 and was for some time a talented athlete. He competed at state and national levels until knee injuries forced his retirement in 2004. He completed year 12 at school and went on to university to study accounting, but he gave that up after only about 18 months, and then was employed in various positions until he became involved in the drug scene in 2006.

4 To begin with, his involvement in drugs was as a low-level dealer in ecstasy. That changed after he was introduced to Adam Hargrave in May 2006. Hargrave and his father, Greg Hargrave, were members of a syndicate involved in the manufacture and wholesale distribution of a range of illicit drugs, including ecstasy (MDMA), amphetamine, cocaine and crystal methamphetamines (ice). The manufacturing side of the operation was managed by Ngoc Bui and Kevin Ng out of premises in Endeavour Hills. The Hargraves conducted sales and distribution out of a logistics warehouse in Scoresby, from which they also operated a transport business under the name of Logistics Plus.

5 Adam Hargrave engaged the applicant as his lieutenant, in effect as his main runner to traffic and distribute the drugs through a group of dedicated runners under the applicant's charge. They became close friends and worked together in expanding distribution by sales of drugs on 'tick' (which is to say on consignment) through the dedicated runners. The applicant's takings were laundered through the Logistics Plus payroll. At the peak of his offending, he received just under $10,000 profit per week, and even on a bad week he received $3,000. He and Adam Hargrave discussed expanding the operation to enable them to obtain $50,000 per week.

6 Andrew Ferguson was one of the runners who purchased drugs on tick. On 10 November 2006, he purchased 2,000 White Superman ecstasy tablets from Hargrave on that basis. He then attended a pre-arranged drug deal with John Feretzanis with the intention of selling the tablets to Feretzanis. But when Feretzanis arrived, he produced a handgun and demanded that Ferguson give him the tablets. Ferguson did so and Feretzanis told him that if his boss, Adam Hargrave, wanted the drugs back, he should get in touch with Feretzanis's associate, Michael Daou. Ferguson then contacted Adam Hargrave and told him what had happened.

7 Between 10 November 2006 and 17 November 2006, Adam Hargrave learned that Daou was selling the stolen White Superman tablets, and on 17 November 2006 he engaged Kylie McDonald to set Daou up for retribution. McDonald had previously been the applicant's girlfriend and was also known to Daou, and Hargrave promised to give her drugs in return for her assistance. Hargrave told the applicant that he was setting Daou up to get his drugs back and that he wanted the applicant's help. At that stage the applicant believed that all that was intended was to give Daou a belting.

8 As planned, McDonald later lured Daou to an address in Scoresby and from there he was kidnapped by Ngoc Bui, Kevin Ng, Quoc Bui and Adam Hargrave's brother, Aaron. They forced him at gunpoint into the boot of a car and then drove him back to the warehouse. Hargrave and the applicant were waiting for them at the warehouse and, when they arrived, the applicant opened the roller door to allow them to drive in.

9 The four men who had kidnapped Daou then beat and tortured him for the next three hours. They removed him from the boot and began to assault him by punching him. They asked him why he had ripped them off. They removed 450 tablets from his possession, and demanded to know who the drugs belonged to. Daou denied any knowledge of them. They continued to assault him, and he stumbled and tried to run away from them. They pulled him back, and eventually tied his upper body to a chair with packing tape. He tried to stand in an attempt to get away, and then they tied his lower body to the chair and put a black plastic bag over his head. During the course of the assault, Aaron Hargrave used a lighter to ignite the gas from an aerosol can and then used the flame to burn Daou's genitals. One of the four also sprayed Daou with the contents of a fire extinguisher. The attack was so severe that at one point the sight of it caused Ng to vomit. Finally, at the conclusion of the attack, Aaron Hargrave passed a revolver to Adam Hargrave and a short time later Hargrave shot Daou two or three times to the head. Then they loaded his body into the boot of the car.

10 At 5.15 a.m., Adam Hargrave and the applicant drove the car, with the deceased's body in the boot, to Mountain Flat Road, Narre Warren East. After positioning the car in a shallow ditch, they poured petrol over it, filled it with eight aerosol cans to act as accelerants, and then set it alight. Then they returned to the warehouse in a second car driven by Bui and together with Aaron Hargrave and Ng, they cleaned up the crime scene with bleach, removing blood and disposing of clothing and other items.

11 On 14 December 2006, Homicide Squad investigators obtained telephone intercepts from the mobile phone services of Adam Hargrave, Gary Hargrave, Ngoc Bui and Ng. On 11 January 2007, all four were arrested and remanded in custody, and on 29 January 2007 Aaron Hargrave was interviewed and charged. When the applicant was later interviewed, he made a number of admissions. He stated that he intended to plead guilty and he subsequently made a statement implicating his co-offenders. He has undertaken to assist investigators and prosecutors upon the trial of those persons, and has already given evidence against some of his co-offenders.

12 As the sentencing judge observed, the applicant's plea of guilty to murder, false imprisonment and kidnapping led to the inescapable conclusion that he had at least aided and abetted the actions of the Hargraves and his co-accused in the performance of those crimes. But, upon the urging of the Crown, the judge also accepted that the applicant should be regarded as the particeps criminis of least culpability. His Honour found that the applicant had been a dominated individual who had gone along with what was occurring, because to have done otherwise to the detriment of the Hargraves would have placed him in an invidious position.

13 As to the counts of trafficking in drugs of dependence, the judge observed that the applicant's primary interest in drugs was commercial - there was no evidence that he was addicted or in any way dependent on drugs - and that he was a willing participant at the upper middle level of a large to very large drug dealing enterprise controlled by the Hargraves. His motive was financial reward. The judge expressly noted, however, that the most significant sentencing factors in the case were the applicant's pleas of guilty and his willingness to assist the authorities in prosecuting his co-offenders, and that the Crown had conceded that the applicant should receive the maximum possible sentencing discount for that cooperation.

Questions of denunciation and general and specific deterrence will be secondary in your case to the need to encourage others in a similar position to you to assist the authorities in the investigation and prosecution of criminal behaviour. To this end your sentence will be considerably less than it would have been had you not agreed to assist the authorities. Indeed, the discount applied to what might have been the total effective sentence in your case, and to the maximum term which would otherwise have been fixed, will be very great, as the law requires.

15 The argument for the applicant is simple. Counsel for the applicant submits that the maximum discount which the law will allow for an offender who pleads guilty and undertakes to assist police and the Crown in the prosecution of co-offenders is anything between 50% and two thirds. A total effective sentence of 23 years and non-parole period of 15 years implies that the judge has either not allowed a discount of anything like 50% or that, were it not for the discount, his Honour would have sentenced the applicant to a total effective sentence of 46 years and a non-parole period of 30 years. It follows, in counsel's submission, that the sentence is manifestly excessive.

16 The resolution of the problem is less simple. By and large, courts in this state have been loath to quantify the amount of such informer discount as they may allow. Despite observations of McGarvie J in R v Perrier (No 2)[1] and R v Nagy[2] as to the desirability of identifying the extent of the discount, other judges have castigated the idea as inconsistent with the notion of intuitive synthesis.[3] More recently, this Court has recognised that it may be acceptable to identify the amount of a discount in some circumstances.[4] But in R v Markarian,[5] the majority of the High Court restricted such occasions to simple cases in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters.[6] This is not such a case. It is a complex case in which the need for denunciation, general deterrence and just punishment must be weighed against the social utility of granting substantial sentencing discounts to offenders who agree to inform.[7]

17 Following Markarian, Parliament amended the Sentencing Act 1991 to require sentencing judges to state the sentence and non-parole period which but for a plea of guilty would have been imposed.[8] But those amendments say nothing of the additional discount which is to be allowed for a plea of guilty and cooperation with the Crown; and, in any event, they only apply to plea hearings commenced on or after 1 July 2008.[9] The plea hearing in this case commenced in December 2007.

18 There is also a further difficulty that, in the absence of legislative prescription or authoritative appellate pronouncement, there is no necessarily correct amount of the informer discount in a given case. While there are decisions which suggest a discount of 50%, or perhaps even as much as two thirds,[10] it is inevitable that circumstances will differ between cases. For example, in some cases the quality of information which an informer is able to provide to authorities may be of such limited utility that any discount would be thought of as excessive.[11] In others, it could be that the information which the informer is able to provide is so valuable, and the risks to which he may expose himself by informing are so great, that a discount of 50% would not be enough.[12] Other relevant considerations include the nature and gravity of the crime, the offender's moral culpability, prevalence and the need for deterrence of the crime in question,[13] and whether it is perceived that there is a need to encourage offenders to inform against other offenders concerning crimes of that kind.

19 Under a more perfect sentencing regime, the level of informer discount might be worked out as a matter of social policy and provided for expressly in legislation. But as it is, sentencing judges must make do with their own conceptions of what is desirable. Effectively, the only safeguard is the relatively rough and ready measure of manifest excessiveness or inadequacy as a ground of appeal.

20 That said, however, in this case the applicant's cooperation was predicated on the Crown's concession that the applicant is 'entitled to the maximum discount on sentence which proper sentencing practice is able to afford him'. In those circumstances, it would be doing less than justice to the applicant, and less than can be done to encourage other offenders to cooperate with the Crown, if the applicant were not now sentenced on that basis. As the High Court stated in Markarian, the law strongly favours transparency, and there are cases in which 'some indulgence in an arithmetical process will better serve these ends'. As I see it, this is one such case. Although, recognising that the quantification of informer discount involves a degree of arbitrariness which adherents to the shibboleth of intuitive synthesis may prefer to avoid, in the circumstances of this case I would set the discount at 50%.

21 So to say is not to suggest that the level of discount could not be less or more in another case involving drug-related offences. Each case is unique.[14] Nor is it to say that it is necessarily the only figure to which one could properly come in the circumstances of this case. It goes without saying that, within a given range of acceptability, views may reasonably differ. But, in my view, less than 50% would be an inadequate recognition of the quality of the information which the applicant has provided to authorities in this case, and the risks to which he has subjected himself by agreeing to do so; and more would tend to undermine public confidence in the sentencing process in relation to serious offences which arise out of organised drug trafficking activities on the scale here involved. I am strengthened in that conclusion by the analysis undertaken by Wells J in R v Golding.[15]

22 In order then to decide whether the sentences which the judge imposed in this case were manifestly excessive, I turn first to the sentences which would properly have been imposed in the absence of the informer discount.

23 As to the count of murder, I consider that the sentence properly to be imposed in the absence of the discount would be in the order of 20 years. In some respects it was a particularly grave crime of murder, in that it was planned, cold-blooded, brutal and motivated by illicit drug trading considerations. As against that, however, the applicant was relatively young and had no prior convictions; as was conceded by the Crown, he was the least culpable of those concerned; he signified his intention to plead guilty at the first opportunity; and he made full admissions.

24 The offence of kidnapping was also serious, as is emphasised by the 25 years maximum penalty, but current sentencing practice suggests that the sentence properly to be imposed in the absence of the informer discount would not be more than five years with only some of that to be cumulated on the sentence imposed on the count of murder.[16]

25 As to the offence of false imprisonment, the maximum sentence is 10 years, and here the imprisonment lasted for three hours in gruelling conditions. But after factoring in the applicant's level of culpability and personal considerations, I have concluded that the sentence should not exceed four years and that it would not be necessary to cumulate a great deal of that on the sentence imposed on the count of murder.

26 As to the drug offences, as the judge observed, the offence of trafficking in a large commercial quantity was particularly serious; hence, the maximum penalty is life imprisonment. But this was not in the worst category of the offence that may be imagined and current sentencing practices imply that in such case the sentence should be considerably less than life. I allow for the sophistication of the drug trafficking operation which was involved, and the relatively senior level in the hierarchy occupied by the applicant. But balancing that against the personal circumstances of the applicant leads me to conclude that a sentence of in the order of 12 years would be appropriate.[17]

27 Finally, on the counts of trafficking in a commercial quantity - for which the maximum sentence is 25 years - current sentencing practice and the other considerations I have mentioned lead me to conclude that a sentence of in the order of six or seven years on each count, with significant cumulation would be in order.[18]

28 Turning then specifically to cumulation and keeping in mind the requirements of totality and the need to avoid a crushing sentence, I would cumulate two years of the sentence imposed on the count of kidnapping, one year of the sentence imposed on the count of false imprisonment, six years of the sentence imposed on the count of trafficking in a large commercial quantity and 18 months of each of the sentences imposed on the counts of trafficking in a commercial quantity, on each other and on the sentence on the count of murder, making for a total effective sentence of 32 years.

29 I note that the applicant is to be sentenced on the counts of trafficking in a commercial quantity of methyl amphetamine and a commercial quantity of MDMA as a serious drug offender.[19] For the reasons I have stated, I would direct for the purposes of s 6E of the Sentencing Act 1991 that the sentences to be imposed on that count be cumulated on the sentences to be imposed on the other counts only to the extent which I have stated.

30 I come back then to the application of the informer discount of 50% which I would allow. Its effect would be to reduce each of the individual sentences I have mentioned as follows:

• on the count of murder, to a sentence of 10 years' imprisonment;
• on the count of kidnapping, to a sentence of two years and six months' imprisonment;
• on the count of false imprisonment, to a sentence of two years' imprisonment;
• on the count of trafficking in a large commercial quantity of MDMA, to six years' imprisonment;
• on the count of trafficking in a commercial quantity of methylamphetamine, to three years' imprisonment;
• and on the count of trafficking in a commercial quantity of MDMA, to three years' imprisonment.

31 Again mindful of the constraints imposed by the totality principle and the need to avoid a crushing sentence, I would then cumulate one year of the sentence imposed on the count of kidnapping, six months of the sentence imposed on the count of false imprisonment, three years of the sentence imposed on the count of trafficking in a large commercial quantity of MDMA, and nine months of each of the sentences imposed on the counts of trafficking in a commercial quantity, on each other and on the sentence imposed on the count of murder, making for a total effective sentence of 16 years' imprisonment.

32 Finally, in view of the applicant's age and prospects of rehabilitation, but at the same time keeping in mind the need to avoid undermining public confidence in the sentencing process,[20] I would set a non-parole period of 11 years.

33 It follows from what I have said that I consider that the sentences imposed by the judge are manifestly excessive. Despite his Honour's very careful analysis of the facts and other relevant sentencing considerations, including his observations that the applicant was entitled to a significant informer discount, it appears to me that the judge has not allowed sufficient discount.

34 In the result, I would grant the application, allow the appeal, quash the sentences passed below and re-sentence the applicant in the manner I have mentioned.

The appeal is treated as instituted and heard instanter and is allowed.

The sentences passed below are set aside, and in lieu thereof the appellant is sentenced to be imprisoned as follows:

It is ordered that one year of the sentence imposed on the count 2, six months of the sentence imposed on count 3, three years of the sentence imposed on count 4 and nine months of the sentence imposed on each of counts 5 and 6 of be cumulated on each other and on the sentence on the count of murder.

The total effective sentence is 16 years' imprisonment.

It is ordered that the appellant serve a term of 11 years' imprisonment before he is to be eligible for parole.

It is declared that a period of 566 days has been served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

It is declared that the appellant is to be sentenced on counts 5 and 6 as a serious drug offender and it is ordered that the fact that that declaration has been made is to be entered in the records of the Court.

[1] [1991] VicRp 38; [1991] 1 VR 717.

[2] [1992] VicRp 45; [1992] 1 VR 637, 644-5.

[3] Ibid 638 (Crockett J, with whom Phillips J agreed); R v Schioparlan and Georgescu (1991) 54 A Crim R 294, 305 (Young CJ).

[4] R v ZMN [2002] VSCA 140; (2002) 4 VR 537, 542 (Charles JA).

[5] [2005] HCA 25; (2005) 228 CLR 357, 375 [39].

[6] See too R v Sahari [2007] VSCA 235 [18] (Kellam JA).

[7] R v Su [1997] 1 VR 1, 77.

[8] Sentencing Act 1991, s 6AAA, introduced by Criminal Procedure Legislation Amendment Act 2008, s 3.

[9] Sentencing Act 1991, s 135.

[10] See, for example, R v Perrier (No 2) [1991] VicRp 38; [1991] 1 VR 717, 726 (McGarvie J).

[11] R v Cartwright (1989) 17 NSWLR 243, 252-3; R v Su [1997] 1 VR 1, 78-9.

[12] R v Lindstrom [2008] NSWCCA 160 [58]-[60].

[13] R v Downie and Dandy [1998] 2 VR 517, 520-522; cf R v Lim and Ko [1998] VSCA 54 [31]-[34].

[14] R v Schioparlan and Georgescu (1991) 54 A Crim R 294, 299, 305 (Young CJ and Marks and Brooking JJ).

[15] (1980) 24 SASR 161, 173-4.

[16] R v Alipek [2006] VSCA 66.

[17] See and compare R v Sibic and Sibic [2006] VSCA 296, 9 years with 5 years; R v Duncan [2006] VSCA 239, 8 years 10 months with 4 years 5 months; R v D'Aloia [2006] VSCA 237, 13 years with 9 years; DPP v Downing [2007] VSCA 154, 7 years with 4 years but considered to be a very low sentence.

[18] See and compare R v Pham & Nguyen, (commercial quantity of heroin: 7 years), R v Strawhorn [2008] VSCA 101, (commercial quantity of pseudoephydrene hydrochloride: 7 years); R v Koumis [2008] VSCA 85, (commercial quantity of heroin: 6 years); R v Barbaro [2007] VSC 271 (commercial quantity of MDMA: 6 years and 6 months); R v Nguyen [2007] 165 (commercial quantity: 5 years and 8 months but offender an addict supporting habit).

[19] Sentencing Act 1991, s 6B(2).

[20] R v VZ [1998] VSCA 32; (1998) 7 VR 693, 698 [15] (Callaway JA).