R v Quinn [2007] VSCA 141

Court of Appeal (Vic)|2007-06-29|Before: MAXWELL P, VINCENT and ASHLEY JJA

Criminal law - Sentence - Whether principle described in R v Hall (1994) 76 A Crim R 454 infringed - Whether failure to give adequate consideration to delay as a mitigating circumstance - R v Merrett [2007] VSCA 1; (2007) 14 VR 392 - Whether sentence on count of trafficking in drug of dependence in not less than a commercial quantity manifestly excessive - Whether imposition of penalty under s 39(2), Dangerous Goods Act 1985 (Vic) based upon a misconstruction of the provision - Error in sentence which purported to defer commencement of non-parole period - Application and appeal allowed - Appellant re-sentenced for offence against , Form of sentence corrected.

1 I have had the advantage of reading in draft the reasons for judgment of Ashley JA. I agree that the application should be disposed of as his Honour proposes, for the reasons which he gives.

2 I agree in the disposition of this matter proposed by Ashley JA, and I do so for the reasons advanced by him in his judgment.

**3 The applicant, Daniel Quinn, pleaded guilty in the County Court to a count of blackmail on one presentment[1]; and to counts of burglary,[2] theft,[3] trafficking in a drug of dependence in not less than a commercial quantity,[4] possession of a drug of dependence,[5] and being a prohibited person in possession of a firearm[6] on a second presentment. He also pleaded guilty to a summary offence of possession of unauthorized explosives.[7]

**5 The sentence on the trafficking count was the base sentence. The learned judge cumulated six months of the sentence imposed for the burglary, six months of the sentence imposed for possession of a firearm, and two months on each of the counts of theft on each other and on the trafficking count. This yielded a total effective sentence of five years and four months' imprisonment. His Honour set a non-parole period of two years and seven months. He also ordered that ten months of the blackmail sentence be served concurrently with the sentences imposed on the counts in the second presentment. The consequence was, he said, that the effective sentence was, in all, five years and six months, the non-parole period running from the time when the applicant had served two months' imprisonment.

6 In respect of the summary offence of possession of unauthorized explosives, the judge imposed a fine of $2000; and he added what he described as a "statutory penalty" calculated pursuant to s 39(2) of the Dangerous Goods Act 1985 (Vic). What his Honour said about it was this:**

"I am mindful of s.39 of the Dangerous Goods Act that requires me to impose a penalty of one penalty unit per kilo or part thereof. You being in possession of 26.9 kilograms, accordingly I impose an additional fine of 27 penalty units or 2961 cents, that is $107.43 per unit."

" ... I have got to fix an additional penalty of 2961 cents, and calculated at $107.43 per kilo or part thereof, and there was 26.9 kilograms."

**7 His Honour did not identify the total amount of the statutory penalty in his sentencing remarks. But in the prisoner's return form it is shown as $2900.61.

8 By notice dated 1 August 2006 the applicant gave notice of application to leave to appeal against sentence. The application related only to sentence passed on the counts on the second presentment. The sole ground relied upon was manifest excess.

9 When the application for leave to appeal came on before Callaway JA pursuant to s 582 of the Crimes Act, counsel for the applicant foreshadowed further grounds of appeal. One of them related to the statutory penalty in respect of the summary offence. Because the application for leave to appeal against sentence did not include the summary offence, and because it seemed at the least well arguable that the sentencing judge had misconstrued s 39(2) of the Dangerous Goods Act, Callaway JA extended the time within which notice of application for leave to appeal against sentence passed for the summary offence might be given. He did not, however, determine whether the application for leave to appeal, including the aspect last-mentioned, should be granted. Rather, he referred that question to a Court of three.

10 What I have said provides the background to the Full Statement of Grounds filed on the applicant's behalf, which read:[8]**

"1. The learned sentencing judge erred by considering himself bound to penalise the Appellant to the extent of one penalty unit per kilogram of explosives that was possessed contrary to section 54(5) of the Dangerous Goods Act 1985 (Vic).

2. The learned sentencing [judge] erred by reasoning that the gravity of the offending conduct, denunciation, general and specific deterrence and the Appellant's prior convictions required that less weight be accorded to the Appellant's personal circumstances than would otherwise be the case.
3. The sentence on Count 4, and, as a consequence, the total effective sentence are manifestly excessive.
4. The learned sentencing judge erred by seeking to impose a non-parole period that was to commence after service of two months of the sentence imposed on Presentment S02426988.
5. The learned sentencing judge erred by failing properly or at all to take into account the delay that had accrued prior to the appellant being sentenced and the fact that in that period of delay the appellant had undergone substantial rehabilitation."

11 The applicant and a woman named Diaz had a relationship which ended in about September 2002. Diaz left some belongings at the applicant's home. In November 2002 a man named Taylor, with whom by then Diaz was in a relationship, went to the applicant's home and retrieved his girlfriend's belongings. But he also took things belonging to the applicant. Much later, in October 2003, the applicant took Diaz' dog from her unattended premises. He then sent her a text message, "a. all my gear back. All of it, or b. $13500 or c. Your dog. Your choice. Danny Quinn." This was the blackmail.

**12 On 24 February 2004 the applicant went to a factory at Laverton. He stole a bobcat, and took it to a factory/warehouse which he was then occupying at Williamstown (burglary, theft of bobcat). I interpolate that the applicant was then living at that premises, apparently for fear of retribution being exacted by Taylor. The factory had a high wire fence, and gates with padlocks. That gave him a measure of protection - although the protection was apt to serve more than one purpose.

13 In any event, and unfortunately for the applicant, the bobcat was fitted with a tracking system. In due course that led the police to the premises. Eventually they were let in, and the bobcat was located.

14 The police attendance had additional unfortunate sequelae from the applicant's standpoint. The police noted a strong smell of cannabis at the premises. Either on that day or the next - the material is not clear - they conducted a search. They found a nursery which contained 214 small cannabis plants and one mature plant. Elsewhere they found a large hydroponic system. Forty eight mature cannabis plants were being grown with the aid of artificial light. In all, 263 plants were found, their total usable weight being 55.4 kilograms. These were the circumstances pertinent to the trafficking count.

15 The search of the premises also disclosed the presence of an electricity by-pass facility (theft of electricity), 10.9 grams of methylamphetamine (possession of drug of dependence), 0.2 grams of heroin (second count of possession), a .22 calibre revolver with ammunition (prohibited person in possession of firearm) and 26.9 kilograms of fireworks (storage of unauthorized explosives).**

16 The applicant made no comment when interviewed on 10 November 2003 (in respect of the blackmail) and 25 February 2004 (in respect of the other offences). He was arraigned and pleaded guilty to blackmail on 15 September 2005. On 5 July 2006, following a voir dire in relation to the police search of his premises on 25 February 2004, the applicant pleaded guilty to the counts on the second presentment. On 6 July 2006 he consented to the summary offence being dealt with in the County Court, and pleaded guilty to it.

**17 The applicant was born on 20 March 1968, and so was aged 35 in the period of the offending. He was aged 38 when sentenced, and is now 39.

18 The applicant admitted 14 prior convictions from six court appearances between August 1992 and September 2003. They included convictions for:

• Assault of a police officer and assault by kicking.[10]

• Intentionally causing serious injury (2 counts) and causing serious injury recklessly.[11]

• Cultivating a narcotic plant (cannabis L); possessing a drug of dependence (two charges - cannabis L and amphetamine); and theft.[14]**

**19 The learned judge analysed the circumstances of the principal offences.

20 The blackmail, he said, "[was] not the most serious example of that crime and [was] reasonably explicable by reason of the fact that [the applicant] had [his] possessions stolen by Taylor".

21 The theft of the bobcat was claimed by the applicant to have been motivated by a desire to extract a debt owing from its owner. Regrettably, on his version of events, he had stolen the wrong bobcat. Although the owner of the "correct" bobcat gave some support for the applicant's version, his Honour was unable to make a finding concerning the veracity or otherwise of the account.

22 The cannabis was grown for personal use and for trafficking. The latter purpose, his Honour said, was part and parcel of [the applicant's] lifestyle at the time - which was one of "mixing again with the wrong sorts of acquaintances, leading to drinking and methylamphetamine use". The gravamen of the offence was "the sophisticated, cultivation of cannabis for profit."

23 Concerning the applicant's prospects of rehabilitation, the judge recounted the applicant's prior convictions. He said that they "limit the degree of leniency that can now be extended to you."

24 His Honour thereafter referred to the applicant's personal circumstances. Having joined the Regular Army at age 17, and having been honourably discharged at age 23, equipped with some skills, the applicant had returned to Melbourne. He had fallen in with bad company, and had begun to use drugs and drink to excess. His work performance had suffered. Offences followed, including the serious offences for which he was imprisoned in 1994. In prison, he had taken steps to better himself. On his release he got work, and his period of parole was unexceptional. In 2000 his father, who was living in Queensland, had become terminally ill. He had nursed his father through that illness, returning to Victoria after his father's death in 2001. He had again fallen in with bad company, resumed drinking to excess and taking drugs, and in that context the present offending had occurred. Subsequent to his release on bail, however, he had begun his own business and had commenced living with his present partner. They had a child. The evidence suggested that the applicant now had a focus in life.

25 His Honour summarized his conclusion regarding the applicant's prospects as follows:**

"I am inclined to accept that you are now at an age and stage of life that has allowed you to develop an insight into the reasons that have caused you to offend and you have now started to refocus your life in a more useful and law-abiding way."

26 Having referred to the circumstances of the main offences, to the applicant's prior offending, antecedents and prospects of rehabilitation, and to the delay in bringing the matter to court, the judge said this:

"The inevitable term of imprisonment that is appropriate in your case will not necessarily help you on the road to rehabilitation; and indeed, it may well hinder your rehabilitation. However, the gravity of your criminal conduct emphasises the need to impose a sentence that denounces your criminal conduct as being totally unacceptable and, of course, there is a need, in any appropriate sentence, to reflect considerations relating to both general and specific deterrence."

"Those factors, coupled with the limitations on the leniency that can now be extended to you by reason of your prior convictions, requires me to pass a sentence that gives less weight to your personal considerations that would otherwise be the case."

27 Section 39(2) of the Dangerous Goods Act reads as follows:

"Notwithstanding the provisions of section 45 and of any provision of this Act which prescribes a specific penalty for an offence, a person who is guilty of an offence under this Act in relation to any explosives is liable, in addition to or in lieu of any other penalty to which the person is liable under this Act, to a penalty not exceeding 1 penalty unit for every kilogram or part of a kilogram of the explosives and the penalty imposed under this section shall be no less than 5 penalty units."

**28 The learned judge said, in the passages in his sentencing remarks to which I earlier referred, that he was required to impose a penalty of one penalty unit per kilogram[15] or part thereof. If this should be taken to mean that his Honour regarded himself as bound not simply to impose a statutory penalty, but a penalty at the rate of one penalty unit for every kilogram or part thereof of explosives, then his Honour misconstrued s 39(2).

29 The prosecutor rightly submitted in the course of the plea that the penalty imposed pursuant to s 39(2) could have been anything between a bare minimum of (about) $500[16] and a maximum of (about) $2700. It would be surprising, in light of the prosecutor's submission, that this very experienced judge should have misunderstood the import of s 39(2). That gives some support for the submission for the Crown, before this Court, that his Honour was saying no more than that it was mandatory to impose a s 39(2) penalty. But in my opinion what his Honour said is intractably opposed to such a reading. Moreover, it is difficult to see why his Honour would have fixed the maximum available penalty.

30 I consider, then, that the application must be granted at least so that the applicant can be re-sentenced for the summary offence. I would impose a fine of $1000, and fix the statutory penalty at $1000.**

**31 Counsel for the applicant submitted that the judge had erred by determining that factors tending towards aggravation of the penalty required a sentence that gave "less weight" to the applicant's "personal considerations" than would otherwise be the case. The latter must always be given full weight. It had been wrong for his Honour to "cancel out" the mitigating features. By analogy, R v Hall,[17] R v Guthrie,[18] and R v Rainford[19] were said to support the submission which was advanced.

32 Counsel for the Crown submitted, in response, that the judge had given sufficient weight to the applicant's personal circumstances. His Honour had been bound to take account of the need for general deterrence, specific deterrence, and the applicant's significant history of prior offending. The alleged "cancelling out" of personal circumstances was not reflected in the sentencing remarks, nor in the sentence.[20]

33 In my opinion, what the learned judge said in the present case does not reveal error of the kind described in Hall[21] and reaffirmed in Guthrie.[22]

34 Each of those cases involved the sentencing judge setting off, as it were, aggravating circumstances against a plea of guilty. In Hall, the sentencing judge said this:**

"I agree that your plea of guilty and your early intimation of intention to do so and your cooperation with the prosecutorial authorities are mitigating factors. However, by reason of the extent and seriousness of your offending, and of the need to consider the protection of the community, I am satisfied that those matters have only a limited mitigatory affect in your case. They do not, in my judgment, outweigh or exceed the aggravating effect of your prior criminal history."

"I am satisfied that such mitigatory factors which exist, and go in your favour, are outweighed by the aggravating factor of your many prior convictions."

"The extreme gravity of your conduct outweighs the benefit to which you might otherwise be entitled for your plea of guilty ..."

36 Again, in Ioane[23] the sentencing judge said that the accused's plea of guilty, and the saving of the costs and ordeal of the trial -

"do not outweigh the proper weight to be given to considerations of specific and general deterrence in cases such as these".

**37 In each of those cases, as I have said, what was held to be "outweighed" was the mitigating effect of the plea of guilty - a matter to which s 5(2)(c) of the Sentencing Act 1991 (Vic) obliges the court to have regard; and the common thread was the concept of particular sentencing considerations being set against each other to see if one "outweigh(ed)" the other - rather than the various sentencing considerations being given the significance, respectively, which the overall circumstances demanded.

38 In Rainford, Callaway JA provided a rationale for Hall and an explanation of its reach. In part it was this: the fallacy in the sentencing remarks in Hall was that the effect of the plea of guilty "could be cancelled out or outweighed by an incommensurable circumstance of aggravation."[24] It might be doubted, his Honour said, that Hall said more than that "(t)wo matters bearing on the exercise of a judge's discretion may both be important, but in different ways. Each of them has to be considered on its own merits."[25]

39 The present case does not require, in my view, a conclusion whether what Callaway JA said about Hall was correct. Rather, it is enough to conclude, as I have already said I do, that the sentencing judge did not enter into an analysis of the kind which was held to be wrong in Hall and Guthrie.[26] I think that his Honour did no more, in assessing the overall impact of the various sentencing considerations, than recognise that circumstances of mitigation told less strongly in the applicant's favour than they might have done in another case. I do not attach to the words "give less weight" the meaning which counsel for the applicant sought to attach to them. It is not as if references to "weight", in the context of the significance of the variety of sentencing considerations in a particular case, are other than commonplace. It is a word which is used frequently in discussion about the sentencing synthesis. Multiple examples, for instance, are found in the reasons for judgment of Callaway JA in R v Tran;[27] and his Honour, as would be universally agreed, was very careful in his choice of words.**

**40 Ground 3 was amended on the hearing to refer to the sentence imposed on the trafficking count.

41 Counsel argued that a sentence of 4 years' imprisonment was a "stern sentence, well towards the top of the range", for an offence of the present kind. In that connection, he referred to its being a case in which the trafficking consisted of his client having in his possession for sale not less than a commercial quantity of cannabis L - rather than trafficking by sale, agreement to sell, or the like.

42 Counsel then submitted that this was a case in which there was powerful evidence of rehabilitation - rehabilitation, moreover, which had been achieved during the period of delay before trial; and that there were other mitigating circumstances as well.

43 The learned judge, counsel contended, had therefore gone wrong for one or both of two reasons. First, he had erred by not attaching adequate significance not only to the bare fact of the delay, but also to fairness and what the applicant had achieved during the period of delay by way of rehabilitation - citing R v Merrett.[28] Second, in any event the sentence imposed on count 3 had been manifestly excessive - this being explained by the judge's failure to attach adequate significance to the matters going in mitigation, most importantly the applicant's steps towards rehabilitation.

44 Counsel for the Crown accepted that the sentence on count 3 was at the upper end of the permissible range. But she submitted that, even taking due account of mitigating circumstances, there was every reason why the judge should have so assessed it. She emphasised that this was an operation of substantial scale, sophisticated and well-concealed. In that connection she referred the Court to police photographs.

45 In my opinion, the judge neither committed the specific error ascribed to him, nor passed a sentence that was manifestly excessive in respect of count 3.

46 As to the former, it is true that in terms the judge referred only briefly to delay. But that reference followed immediately upon his Honour's extensive description of what steps towards rehabilitation the applicant had taken during his time on bail. I do not think that it could fairly be said that his Honour's remarks evidence a failure to understand the relationship between the two circumstances, or to undervalue the significance of rehabilitation achieved in that setting.[29] Neither would I conclude that the brevity of his Honour's reference to delay bespoke a failure to apprehend the unfairness occasioned by delay.

47 Turning to the complaint of manifest excess, I accept, as the judge accepted, that there were circumstances going in mitigation of penalty: the plea of guilty, albeit its timing; the delay and the applicant's progress towards rehabilitation in his time on bail during that delay. Less convincingly, counsel for the applicant called in aid, in his written outline of submissions, the applicant having "lost everything" in the burglary by Taylor, the applicant having "a good history of being a hard worker," and the circumstance that imprisonment would be "particularly onerous" for the applicant because it would involve separation from his young son. But even if all those matters could be brought to account, and if they were given consideration in the sentencing synthesis, I am not persuaded that the sentence on count 3 was manifestly excessive. I agree with the submission of counsel for the Crown that the offence comprehended by count 3 was very serious. The material disclosed that this was a substantial operation, evidently well-planned and executed, and extensively concealed. It is plain enough that it was intended to be ongoing.[30] Against that background, having regard to other sentencing considerations adverse to the applicant, and notwithstanding matters running in his favour, it is not difficult to see why the particular sentence was imposed.**

**48 I have already said something about the way in which the learned judge imposed sentence on the two presentments. But something more need be said in order to understand the gravamen of ground 4.

49 His Honour imposed on the count of blackmail contained in what I have called the first presentment[31] a term of imprisonment of 12 months. He directed that ten months of that sentence be served concurrently upon the total effective sentence of five years and four months imposed in respect of the counts contained in what I have called the second presentment.[32]

"That means that the sentence of five years four months is, effectively, extended to a period of five years, six months and, of course, after you have completed two months' imprisonment you will start serving the minimum term of two years and seven months."

**51 Counsel were in agreement that there were errors in the form of the sentences passed. Counsel for the applicant did not contend, however, that the errors required the re-sentencing of his client for any purpose other than to correct such errors.

52 No need exists, in the present situation, to do more than refer generally to the various provisions of the Sentencing Act concerned with directions as to concurrency, cumulation, the order in which sentences are to be served, and the commencement of a non-parole period where more than one sentence is to be served.

53 I consider that the first, and in the circumstances less significant, error made by his Honour was to order that ten months of the sentence for blackmail was to be served concurrently with the sentences imposed on the counts contained in the other presentment. Save for some specific circumstances identified in s 16(1A) of the Sentencing Act, none of which is present here, every term of imprisonment imposed must, unless otherwise directed by the Court, be served concurrently with any uncompleted sentence or sentences imposed upon the offender. In the circumstances of this matter, the course that his Honour should have followed was to order that two months of the blackmail sentence be served cumulatively upon the other sentences and not ten months concurrently. As a practical proposition, however, this error made no difference to the result.

54 In my opinion, his Honour's second error was to impose a non-parole period for the offences contained in the second presentment which was to commence two months after the date on which sentence was imposed. By s 11(4) of the Sentencing Act -**

"(4) If a court sentences an offender to be imprisoned in respect of more than one offence, any [non-parole] period fixed under sub-section (1) or (2) must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed."

**55 There is, as I understand the position, no power in a sentencing judge to defer the commencement of a non-parole period. Indeed, on one view of the matter, any such deferral would itself effectively create a non-parole period incorporating the period of deferral but with the attendant risk that full effect may not be given to the totality principle.

56 It follows, in my opinion, that his Honour, having made the order for cumulation to which I have referred, should have fixed a non-parole period in respect of the aggregate period of imprisonment. Although we did not have the benefit of argument on the question, there would seem to be no reason in principle why the position would differ according to whether the offences concerned were contained in one or two presentments.

57 Counsel for the applicant and the Crown both accepted that his Honour intended in this matter that the applicant would remain in custody for a period of two years and nine months before he would be entitled to consideration for release on parole. They both accepted that had a non-parole period of that length been fixed no complaint could have been advanced. I would make orders appropriate to achieve that outcome.**

58 I would grant the applicant leave to appeal, allow the appeal in respect of the sentence passed on the summary offence, and re-sentence the applicant for that offence. I would also correct the orders bearing on the interrelationship between the sentence passed on the offence of blackmail and the sentences imposed for the other offences. I would do so in a way that achieved the result intended by the sentencing judge.

[1] Crimes Act 1958 (Vic) s 87(1). Maximum penalty, 15 years' imprisonment.

[2] 1 Count, count one. Ibid, s 76. Maximum penalty, 10 years' imprisonment.

[3] 2 Counts, counts 2 and 5. Ibid, s 74(1). Maximum penalty, 10 years' imprisonment.

[4] 1 Count, count 3. Drugs, Poisons and Controlled Substances Act 1981, s 71AA. Maximum penalty, 25 years' imprisonment.

[5] 2 Counts, counts 7 and 8. Ibid, s 73. Maximum penalty, 30 penalty units and/or one year's imprisonment.

[6] 1 Count, count 9. Firearms Act 1996, s 5(1A). Maximum penalty, 1800 penalty units or 15 years' imprisonment.

[7] Dangerous Goods Act 1985 (Vic), s 54(5). Maximum penalty, see s 45(2)(b), effectively not more than ten penalty units.

[8] Ground 5 was added by leave during the hearing.

[11] August 1994. Total effective sentence four years and six months' imprisonment. Minimum term three years.

[12] November 1994. Sentenced to imprisonment for 42 months, 30 months concurrent with sentence then being served.

[16] For the subsection refers to a penalty being "no less than 5 penalty units".

[18] [2006] VSCA 192, [75]-[79].

[20] Counsel called in aid Rainford , [15]-[16], [19] (Callaway JA).

[21] 450 (Philips CJ), 469, 470 (Crockett and Southwell JJ).

[22] [75], [77]-[79] (the Court); and see also R v Ioane [2006] VSCA 84.

[25] R v Shoukan, unreported, Court of Appeal, 15 February 1996, 10 (Callaway JA).

[26] I have assumed, without deciding, that the principle described in those cases can be extended to a situation where the mitigating factor which is "cancelled out" is not a plea of guilty. Counsel did not identify any case where the principle has been so extended.

[27] [2002] VSCA 52; (2002) 4 VR 457, see 463 [19]-[20], [29], [34].

[28] [2007] VSCA 1; (2007) 14 VR 392, 400-401, [34]-[38] (Maxwell P).

[29] Indeed, it is clear that his Honour well appreciated the mitigating significance of the applicant's rehabilitative efforts. The long potential period of parole speaks to that matter.

[30] All these matters were made very plain by the photographs, quite apart from other material on the plea.

Poisons and Controlled Substances Act 1981

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