R v Sebborn [2008] VSCA 200

1 The appellant, Mark Francis Sebborn, pleaded guilty in the County Court at Melbourne to all counts on two presentments. The first presentment contained two counts: Trafficking in methylamphetamine and possession of Cannabis L. There were three counts on the second presentment: trafficking in methylamphetamine, possession of methylamphetamine, and possession of Cannabis L.

2 On the first presentment on count 1, trafficking in methylamphetamine, the appellant was sentenced to be imprisoned for a period of two years. On the count of possession of cannabis, he was fined the sum of $250. On the second presentment on count 1, trafficking in methylamphetamine, the appellant was sentenced to be imprisoned for a period of two years and six months. On the count of possession of amphetamine, he was sentenced to be imprisoned for a period of three months. On the count of possession of cannabis, he was fined $500.

3 On 24 February 2005 a house the appellant had been renting in Sunshine was raided by the police. They discovered a clandestine laboratory designed for the manufacture of methylamphetamine. Items found included literature, handwritten notes on the method of manufacture of methylamphetamine, a list of local pharmacies, laboratory equipment, and other associated paraphernalia. Snap-lock bags and electronic scales were also found. The appellant was arrested and interviewed.

4 He remained in custody for several months before finally obtaining bail in May 2005.

5 On 6 September 2006 the police raided a house in Heidelberg West. Earlier that day, the appellant had been in contact with the occupant of those premises. He had agreed with that person to manufacture methylamphetamine at those premises later that day. The appellant then went to the house, bringing with him two boxes of pseudoephedrine-based medication. He subsequently attempted to purchase some additional supplies and other items relevant to the manufacturing process. He returned to the house and began to produce the drugs. The quantity of material located was consistent with the production of approximately two grams of methylamphetamine.

6 The appellant was arrested in his car later that night. Police found other items consistent with his having participated in having manufactured ecstasy. They also found a syringe, two plastic bags containing 30 milligrams of methylamphetamine, and 0.6 of a gram of cannabis. It was his possession of those items that gave rise to counts 2 and 3 on the second presentment.

7 The appellant tendered a report from a psychologist, Mr Warren Simmonds, which went into some detail regarding his background. It appears that the appellant was born in 1962 and came from a supportive family. He presented as being of above average intelligence.

8 The appellant left school in year 12 and commenced an apprenticeship as a printer. He completed that apprenticeship and worked in that field for many years. He had been introduced to amphetamines at about the age of 16, though it took a long time before he began to use that drug regularly. He was in a long-term relationship from about the age of 22, and had three children. That relationship broke down in about 1995. It seems that he had not coped well thereafter. From that time on, he became increasingly involved in the use of illicit drugs.

9 The appellant had actually begun offending in 1984. He came before the courts regularly thereafter, usually for offences involving dishonesty. In March 2001 he was dealt with on a charge of trafficking in amphetamines. He was sentenced on that occasion to be released on a community-based order for a 24-month period.

10 It should be noted that his Honour expressly found that the appellant was manufacturing the drug for his own use, and that there was no commercial element in what he was doing.

11 Regrettably, the appellant breached the community-based order and came back before the judge who had imposed it. He was then sentenced to be imprisoned for 10 months, three months of which were suspended for two years.

12 As it happened, the judge who dealt with him for the March 2001 offence was also the judge who heard his plea in relation to these current offences.

13 The sentencing judge observed that it was a matter of note that despite the appellant having previously been imprisoned for manufacturing amphetamines, he had not been deterred from engaging in similar conduct in February 2005.

14 His Honour also took into account the fact that the appellant committed the second series of offences in September 2006 while still on bail for the February 2005 offences. He noted that the appellant was now in a new relationship, and that his new partner was not involved in any way with drugs. He concluded that the appellant was quite capable of rehabilitation.

As with any count of drug trafficking, however, an attempt has to be made to determine the nature of the criminal activity in which you were involved and the extent to which you were involved in it. By that standard, this manufacturing operation appears to have been quite a modest one. But there is no question that you were heavily involved. Nevertheless, you were not an immature youth who got involved in something you did not understand. You are a mature middle-aged intelligent man who knew exactly what you were doing. Not only for those reasons but also because you have been down this track before, this is a case where the court is obliged to demonstrate that the law and the community regard an attempt to benefit from the manufacture of a highly dangerous drug, as a serious crime indeed. In this case, your prior criminal history and your age do not offer any mitigating feature although I do acknowledge that you have pleaded guilty.

Your position is complicated by reason of s 16(3C) of the Sentencing Act which requires that unless otherwise directed by the court, any sentence to be imposed on the second presentment is to be served cumulatively upon the sentence imposed on the charges contained on the first presentment. In my opinion, there is no reason why I should make an order contrary to the intention expressed in that provision.

17 His Honour then sentenced the appellant as earlier described.

18 The appellant relies upon the following grounds of appeal:

1. The learned sentencing judge erred by failing to find that:-

(a) the offences of trafficking in methylamphetamine (on the basis of manufacturing) and possession of methylamphetamine were for personal use; and

(b) that the level of the appellant's moral culpability was reduced by reason of his drug addiction.

1. The learned sentencing judge erred by giving no or inadequate regard to the principle of totality, and in particular by failing to order any concurrency between the sentences imposed on the first presentment and those imposed on the second presentment ...
2. The individual sentences imposed on counts 1 on each of the two presentments, count 2 on the second presentment the total effective sentence and the non-parole period are each manifestly excessive.

19 Before this Court, counsel submitted on behalf of the appellant that, although the plea below had been conducted on the basis that each count of trafficking in relation to each presentment had been based solely upon manufacture, and that there had been no commercial element involved, the sentencing judge had ignored that submission, and had sentenced instead upon the footing that the appellant in some way stood to gain from his actions. Counsel drew attention to the fact that the Crown had not at any stage challenged the submission that there was simply no evidence to support any finding of sale. Nor had the Crown taken issue with the submission that the appellant had manufactured the drug solely for his own use.

20 In his reasons for sentence, the judge did not address this issue in terms. However, as indicated, he did say that 'the law and the community regard an attempt to benefit from the manufacture of a highly dangerous drug, as a serious crime indeed'. (Emphasis added.)

21 The Crown submitted before us that his Honour's reference to an 'attempt to benefit' should be understood, in context, as nothing more than the appellant having been saved the cost of having to purchase the drugs for his own use.

22 We reject that submission. In our view, the words 'attempt to benefit' should be understood as introducing a commercial element into these offences. However, the evidence did not support any such finding. The appellant was plainly addicted to amphetamines. The amount of the drug that was produced was miniscule and entirely consistent with it having been manufactured for his own use. In these circumstances, ground 1 is made out.

23 As indicated, ground 2 complains of the judge's failure to pay adequate regard to the principle of totality. More specifically, it complains of his Honour's failure to order any concurrency between the sentences imposed on the first presentment and those imposed on the second presentment.

24 The Crown very fairly accepted that there seemed to be merit in this ground. We think so too. Notwithstanding the appellant's bad criminal history, a total effective sentence of four years and six months for these offences seems to us to have been excessive.

25 The sentencing judge referred to s 16(3C) of the Sentencing Act 1991, which provided that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the Court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term. His Honour gave no reasons for not 'directing otherwise' apart from saying that he could see no reason not to impose cumulative sentences.

26 The reason why wholly cumulative sentences ought not to have been imposed in this case lies in the principle of totality. A survey of the totality principle by Wells J in Attorney-General v Tichy[1] was quoted with approval by Gleeson CJ in Johnson v R.[2] Wells J stated:

... [W]hat is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct ... The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty.[3]

27 Section 16(3C) does not, in any way, impinge upon the duty of a judge who sentences a prisoner to have regard to that principle. In R v Hennen,[4] Bongiorno AJA, with whom Winneke P and Coldrey AJA agreed, observed that s 16(3C) overrode the general principle of concurrency set out in s 16(1) of the Sentencing Act in cases where offences were committed while on bail.

But those provisions displace a presumption, they do not direct that a judge take any particular course in a particular case. They draw the sentencing judge's attention to the Parliamentary intention expressed by them. That is to say that consideration must be given to the question as to whether the discretion to order some concurrency in such a case ought be exercised or whether the appropriate objects of sentencing can only be achieved by permitting total cumulation to occur by operation of the statute.[5]

28 In that case, a young offender with a lengthy criminal history was charged on a second presentment with offences committed while on bail for offences charged on a first presentment. He pleaded guilty to one count of intentionally causing injury on the first presentment and guilty to two counts of armed robbery, one count of recklessly causing injury and one count of attempted armed robbery on the second presentment. He was sentenced to imprisonment for three years on the count of intentionally causing injury on the first presentment, imprisonment for two years on the first count of armed robbery, imprisonment for two years on the second count of armed robbery (one year of which sentence was cumulated on that for the first count of armed robbery), imprisonment for one year on the count of recklessly causing injury (six months of which was cumulated on the previous sentences) and imprisonment for one year on the count of attempted armed robbery (three months of which was cumulated on the previously imposed sentence) on the second presentment. As the offences charged on the second presentment were committed while he was on bail, the sentencing judge cumulated the whole of those sentences imposed in relation to the second presentment on the three years imposed in respect of the count of intentionally causing injury on the first presentment.

29 The total sentence was six years and nine months with the appellant ordered to serve a minimum of five years before being eligible for parole. The Court ruled in that case that the sentences imposed on the offender offended the principle of totality.[6] It held that the intention of Parliament as to prima facie cumulation of sentences where offences are committed while on bail was adequately addressed by the sentencing judge in that case making an order for the cumulation of the total sentence imposed in respect of the second presentment upon that in respect of the first. By ordering further cumulation within the second presentment, the total effective sentence that had been imposed offended the principle of totality.[7] The appellant's sentence was reduced to a total of five years with a non-parole period of three years.

30 In our view, as in Hennen, the sentencing judge in the case before us fell into error by failing to give proper effect to the principle of totality. Ground 2 has been made out.

31 It is unnecessary to deal at any length with the appellant's complaint that the sentences imposed were manifestly excessive, both individually and collectively. It is sufficient for present purposes to say that we do not regard the sentence of two years imposed on the first presentment, and two years and six months imposed on the second presentment, as being individually excessive. That is so notwithstanding the mitigating factors that were present in this case.

32 The appellant had been afforded considerable leniency in the past. The community-based order, which he breached, gave him a chance to avoid imprisonment. He did not take advantage of that opportunity. A term of 10 months' imprisonment, with three months suspended, had not deterred him offending again, in much the same way, in February 2005. To make matters worse, he had re-offended whilst on bail in September 2006. His Honour's assessment of the appellant's prospects of rehabilitation may, in the light of his history, have been somewhat benevolent.

33 Nonetheless, sentencing error having been established, the appeal must be allowed. The sentences imposed below must be quashed. The appellant should be re-sentenced as follows. In relation to the first presentment, he is sentenced to two years' imprisonment on count 1 and fined $250 on count 2. In relation to the second presentment, he is sentenced to two years and six months' imprisonment on count 1, three months' imprisonment on count 2, and fined $500 on count three. Twelve months of the sentence imposed on count 1 in the first presentment is to be concurrent with the two years and six months imposed on count 1 in the second presentment. That makes a total effective sentence of three years and six months. We fix a non-parole period of two years and six months.

[1] (1982) 30 SASR 84, 92-3.

[2] [2004] HCA 15; (2004) 205 ALR 346, [4].

[3] (1982) 30 SASR 84, 92-3.

[4] [2004] VSCA 42.

[7] Ibid. See also R v Tran [2006] VSCA 222, [41]-[46].