R v Marcus [2004] VSCA 155

5. The authorities intercepted the package on 16 December 2002, satisfied themselves that it contained an illicit substance, and effected a controlled delivery. The appellant was arrested. He made full admissions to the police and volunteered that he had done it once before, in respect of a package which contained substance which had a total weight of 2½ ounces. On that occasion, so he freely conceded to the police, the substance that he had received was cut and was sold for a total of $12,000, of which he received $2,000. It was conceded that if the appellant had not volunteered this information, the charges which became counts 1 and 2 on the indictment would not have been laid. In respect of those counts, he was therefore entitled to expect that a "considerable element of leniency" should be extended to those who voluntarily disclose their guilt in order to encourage guilty persons to come forward and disclose their offences.[1]

8. The appellant was charged on an indictment containing two counts of importing prohibited imports, namely cocaine, of not less than a traffickable quantity, contrary to s.233B(1)(b) of the Customs Act 1901 (Cth), the minimum quantity specified in that Act as "traffickable" being two grams. He was also charged with trafficking in the first quantity imported between October and December 2002, contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). They were the offences alleged in counts 1 and 2 on the indictment and effectively, as I have said, were those which the appellant had volunteered. Count 3 alleged the importation in respect of which the interception was made and the controlled delivery undertaken.

11. In due course the appellant pleaded guilty and stood to be sentenced in the County Court in September 2003. There was before the judge a body of material testifying to the appellant's efforts towards ridding himself of his habit, efforts which had been made following his arrest. There was material which led the sentencing judge to conclude that his chances of rehabilitation were reasonably good. As the judge noted, the appellant had not had an easy background in America, to a large extent because he was dyslexic and, as a consequence, illiterate. However, having come to Australia in 1989, he had worked hard, had established a family with his common law wife and had sought to establish a living through hard work, which had led him, apparently, into his use of cocaine and the formation of that habit. At the end of the day, her Honour imposed sentences on count 1 (the first importation) of four years' imprisonment; on count 2 (trafficking the drug imported on the first occasion) of three years' imprisonment; and count 3 (the second importation) of five years' imprisonment. Effectively, the learned judge cumulated one year of count 1 on the five years on count 3 by representing commencement dates in accordance with the provisions of the Commonwealth Crimes Act at a year's interval, and she ordered that the three years imposed on count 2 be served wholly concurrently with the sentence imposed on count 1. That amounted to a total effective sentence of six years, and her Honour fixed a non-parole period of four years. She regarded, quite correctly in my view, as the primary purpose of punishment, the principle of general deterrence. That must necessarily be so for this type of offending, having regard to the impact which it has, and has been said many times to have, on the community, and particularly youthful members[2] of the community. Nevertheless, her Honour accepted that the appellant had taken advantage of the opportunities to change his lifestyle and had, so she said, shown remorse for his criminal offending.

14. On 14 May of this year, Batt, J.A. granted leave to appeal on two bases, the first being that the judge had proceeded on the erroneous basis that the importation alleged in count 1 was an importation of 2½ ounces of pure cocaine, when it was in fact substantially less, and, secondly, that the sentences were arguably excessive.

17. The first error in relation to the quantity of the drugs alleged in the first importation has now been conceded by the respondent, who is represented in this Court by Ms Orr, who, if I may say so, has made submissions which have been very helpful to the Court in the task which it has to perform. No one now knows just how much cocaine was imported in this conceded importation which, but for the appellant's mentioning of it, would not have been known. Nevertheless, it must have been, I think, substantially less than the 2½ ounces assumed by her Honour; although it is to be inferred from the appellant's plea, however, that it must have exceeded the minimum quantity of two grams.

20. Mr Holdenson submitted to the Court this morning that this error must re-open the sentencing discretion, and I think that that must be right. Ms Orr agrees, but said that her Honour's error was not substantially material, or at least not a really significant factor, because the criminality of the appellant is to be better identified by looking at the state of the importer's knowledge of what he is involved in, and the impact of his importation.

23. I do not think, however, that that argument can be wholly correct. These offences are undoubtedly aimed at preventing importations of substances which are invasively harmful to Australia's citizens, but it seems to me to be unquestionably the Parliament's intention to come down more heavily on those who, by the quantity imported, intend to inflict more harm. That is why the offence and the maximum penalties set by the Parliament are graded between "commercial" and "non-commercial" quantities, in the first place, and why courts themselves have endeavoured to establish grades within those quantities for the purposes of establishing consistent penalties, reflective of the assumed harm intended to be inflicted upon the community. In this regard, I refer to the graded penalties set out in the guideline tables in the case of R. v. Wong[3]. Quantities of harmful substances imported are obviously very relevant to the range of penalties inflicted, and it seems to me to be too late in the day to contend to the contrary, no matter what view one might take of guidelines as set out in Wong. I refer to the High Court decision on appeal in the case of Wong[4].

26. I think, therefore, that the sentencing discretion must be re-opened because her Honour had imposed the sentence on count 1 on a false premise. That having been agreed to as I have indicated, Mr Holdenson presented his submissions to us as if afresh on the plea. It was his submission that because the only information about the first importation came from the appellant, it was necessary, in accordance with the usual sentencing principles, for her Honour to have sentenced the appellant on the basis that the level of drugs imported in the first importation was at the "low end" of trafficable quantity. Thus, it was said that the sentence which she has imposed on count 1 becomes material to the whole sentencing process because effectively part of that sentence was cumulated on the sentence imposed on count 3, and it must also reflect in the non-parole period.

29. In presenting his arguments in support of what he contends ought to have been lower sentences imposed on counts 1 and 2 as well as on count 3, Mr Holdenson referred us to the appellant's strong work ethic, and his attempts, which were said to be successful, to rehabilitate himself by getting off his cocaine habit and improving his literacy skills. He relied upon the judge's acceptance that the offending was occasioned by his somewhat unfortunate former lifestyle, in which he had become trapped. I think it can be said with some confidence that the dealing in small quantities imported was not widespread but confined.

32. 11 As I have indicated earlier, the Court has been assisted by Ms Orr's submissions. She agreed that the terms of imprisonment imposed on counts 1 and 3 were stern; as she said, "perhaps towards the top end of the range". However, she said, those sentences were not outside the range, and should be re-imposed.

35. Bearing in mind all the considerations which I have briefly touched upon, I think that the appeal ought to be allowed on the basis that the sentences are excessive and outside the range which was available, although, because we have the luxury of re-sentencing, it does not matter whether they were "manifestly excessive", or can be so described, or not.

38. In lieu of the sentences which her Honour imposed, I would impose the following sentences, bearing in mind in respect of the sentences to be imposed on counts 1 and 3 the provisions of s.16G of the Crimes Act 1914 (Cth)[5]:

I would order all the sentences to be served concurrently, and that means in Commonwealth terms that the sentences on counts 1 and 3 will have commenced on 19 September 2003. The intention is that the sentence imposed on count 2 should be wholly concurrent, and it is unnecessary, as I understand it, to fix in respect of that sentence any non-parole period.

That means that the total effective sentence will be one of four years and six months. I would order that the appellant serve a minimum period of three years before becoming eligible for parole.

59. The formal order of the Court will be that the appeal is allowed.

The sentences imposed by the court below are set aside and in lieu thereof this Court imposes the following sentences:

It is ordered that all the sentences be served concurrently. That means, in Commonwealth terms, that the sentences on counts 1 and 3 will have commenced on 19 September 2003. The intention is that the sentence imposed on count 2 should be wholly concurrent. There is no need to express a non-parole period in respect of that sentence.

The total effective sentence will be one of four years and six months.

It is ordered that the appellant serve a minimum period of three years before becoming eligible for parole.

We declare pursuant to s.16E(2) of the Crimes Act (Cth) and s.18 of the Sentencing Act 1991 (Vic) that the appellant has already served 347 days of the sentences which we have imposed, that period being up until today's date, 19 August 2004.

[1] See R. v. Ellis (1986) 6 N.S.W.L.R.603 at 604; R. v. Lomax [1998] 1 V.R.551 at 561.

[2] Cf. R. v. Berisha & Ors. [1999] VSCA 112, particularly per Tadgell, J.A. at [39]-[43].

[3] [1999] NSWCCA 420; (1999) 48 NSWLR 340 at 373 and following.

[4] [2001] HCA 64; (2001) 207 CLR 584 at 616.

[5] (S.16G has since been repealed - as from 16 January 2003.)