R v W M R [2005] VSCA 59

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

3 This is an appeal against sentence, leave having been granted by a judge pursuant to s.582 of the Crimes Act 1958. On 25th June 2004, upon his pleas of guilty the appellant was sentenced by a judge of the County Court with respect to two indictable offences and two summary offences. The two summary offences were dealt with by the County Court judge at the same time as he dealt with the indictable offences, pursuant to s.359AA of the Crimes Act. This appeal is primarily concerned with the first count on the indictment.

4 Count 1 was trafficking in a commercial quantity of a drug of dependence, on one day, 5 December 2001, contrary to s.71(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981, which offence carried a maximum penalty of 25 years' imprisonment, and for which the appellant was sentenced to four years' imprisonment. On count 2, being a prohibited person in possession of a firearm, contrary to s.5(1) of the Firearms Act 1996, as then in force (for which the maximum penalty was seven years' imprisonment or a fine of $60,000), he was sentenced to three months' imprisonment. On the summary offence of possession of a prohibited weapon, contrary to s.5(1) of the Control of Weapons Act 1990 (for which the maximum penalty was six months' imprisonment or a fine of $12,000), he was sentenced to three months' imprisonment, and for the summary offence of possession of prohibited wildlife[1] contrary to s.46(1) of the Wildlife Act 1975 (for which the maximum penalty was 12 months' imprisonment or a fine of $12,000), he was sentenced to six months' imprisonment.

5 His Honour directed that all sentences were to be served concurrently with each other and with the sentence on count 1 thus producing a total effective sentence of four years. His Honour ordered that the sentence of four years' imprisonment was to be served cumulatively upon a sentence of five years' imprisonment, with a non-parole period of three years and nine months' imprisonment, which had been imposed by Judge Solomon of the District Court in New South Wales on 23 February 2003. The non-parole period under that sentence was due to expire on 4 September 2005. Pursuant to a request by the Attorney-General of Victoria under s.7 of the New South Wales Prisoners (Interstate Transfer) Act 1983, in June 2003 the appellant was transferred from New South Wales to Victoria and had been serving the New South Wales sentence in Victoria whilst awaiting sentence on the Victorian counts. Subsequent to his sentencing in the County Court the appellant was returned to prison in New South Wales.

6 The effect of the cumulation order imposed in the County Court was that there was a total effective head sentence of nine years. Purporting to do so pursuant to s. 14 of the Sentencing Act 1991, the Victorian judge fixed a new non-parole of five years and three months' imprisonment[2]. His Honour declared that pursuant to ss.27 and 28 of the Prisoners (Interstate Transfer) Act 1983 the term of imprisonment imposed in New South Wales was deemed to have been imposed in Victoria.

7 Before addressing the grounds of appeal it is first necessary to say something about the facts.

8 The appellant, who was then aged 39 years, was arrested on 5 December 2001 in New South Wales and was charged with the manufacture and distribution of methylamphetamine between 24 August and 6 December 2001. 2.429 kilograms of methylamphetamine were involved. On the same day as his arrest in New South Wales an apartment occupied by the appellant in Melbourne was searched by police and in a container police located 3.001 kilograms of pharmaceutical grade pseudoephedrine. The appellant's DNA was found on the plastic bags in which the drug was contained. Also at that time the police found a high-grade airgun (which led to count 2), a black Tazer stun gun (the first summary charge) and three juvenile diamond pythons (the subject of the second summary charge).

9 In an interview the appellant admitted that he had collected the pseudoephedrine but declined to give any details of the circumstances in which he came upon that drug. He gave innocent, but implausible, explanations for his possession of the other items which were seized.

10 On 9 December 2003 after having been transferred from New South Wales to Victoria the appellant appeared at a hand-up committal in the Magistrates' Court and pleaded guilty to the two counts now on the presentment. On 16 and 23 June 2004 submissions in mitigation of penalty were made on behalf of the appellant upon his plea of guilty to the presentment and to the two summary charges.

11 The appellant admitted 31 prior convictions comprising nineteen convictions in New Zealand from fifteen court appearances between 1980 and 1993 and twelve convictions in New South Wales from four court appearances between 1997 and 3 November 2001. His prior convictions included twelve for drug-related offences and one conviction for manslaughter, imposed in September 1987 at the High Court in Auckland for which he was sentenced to be imprisoned for six months. That conviction related to a death arising out of a motor vehicle accident.

12 All of the New Zealand drug prior convictions were for possession, not trafficking, and they mostly related to cannabis. As to the charges concerned with cannabis he received fines on all occasions, save once when he was placed on a community based order. On three occasions he was convicted of possession of heroin, being fined twice and placed on a bond once. The last of his New Zealand drug convictions was in February 1993. In New South Wales he was convicted in June 1997 on two counts of supplying a prohibited drug and was sentenced to one year's imprisonment with nine months minimum before parole. In July 1998 he was fined for possession.

13 As to the offence of trafficking in pseudoephedrine, the judge noted that the appellant had been in Melbourne for three months purchasing the drug which he would then transport to Sydney where it would be manufactured to produce methylamphetamine. His Honour noted that a kilo of pseudoephedrine would produce methylamphetamine to a value of approximately $150,000. Notwithstanding that there was evidence that the appellant had been trafficking in much greater quantities of pseudoephedrine than those discovered on 5 December 2001 his Honour stressed that he would sentence him only in respect of the three kilograms of pseudoephedrine (which was 2.4 kilograms pure) found in his apartment. His Honour noted that the 2.4 kilograms pure pseudoephedrine was only slightly above the commercial quantity for that drug.

14 The learned sentencing judge had before him a wide range of material, including the transcript of the plea before Judge Solomon and his Honour's sentencing remarks. His Honour said he had regard to the pleas of guilty as demonstrating remorse but said he regarded the appellant as being a career criminal and held out little hope of his rehabilitation.

15 The appeal relates to the sentence imposed on count 1 and to the order of cumulation and the non-parole period which was fixed. It is unnecessary to set out the ten grounds of appeal. They were argued under a series of headings, the primary complaints being that the sentences were manifestly excessive and, as a discrete argument, that the sentencing judge failed to have proper regard to the question of totality.

16 Mr Boyce accepted that the sentence in this case did not offend the principle of double punishment[3] but contended that it did offend the principle of totality.

17 If the sentencing judge had regard to the principle of totality, which Mr Boyce said he did not concede to be the case, then, so counsel submitted, his Honour only did so when addressing the non-parole period, and not the total effective sentence which his order as to cumulation produced. Mr Boyce placed reliance on the principle discussed in Mill v. The Queen[4], a case which was neither cited to his Honour nor mentioned in his sentencing remarks.

18 In Mill the High Court addressed the totality principle in circumstances of some similarity to the present case. The appellant had committed two armed robberies in Victoria and one in Queensland within a six week period, and had been first sentenced in Victoria then on his release on parole he was re-arrested and taken to Queensland for sentencing. The Court approved the approach taken by the Court of Criminal Appeal in New South Wales in R. v. Todd[5], as stated by Street, C.J., in cases where the interstate offences had been "so closely related in time and character" to the local ones. The High Court held[6] that the principle of totality was not confined to the non-parole period and that in applying it the proper approach for the judge sentencing in the second State was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all of the offences within the one jurisdiction and had been sentenced at the one time.

19 The approach approved in Mill would have precisely applied to the present case but for the deeming effect of the provisions of the Prisoners (Interstate Transfer) Act. In his sentencing remarks his Honour said that his intention was to impose a term of imprisonment of four years cumulative upon the head sentence ordered in New South Wales and to increase the minimum term by eighteen months above that which had been ordered by Judge Solomon.

20 After commencing his sentence in New South Wales the applicant, as earlier mentioned, was transferred to Victoria, by executive order, so as to be dealt with for the present offences. Section s.27 of the Prisoners (Interstate Transfer) Act then applied to him. That section reads as follows:

"27. Sentence deemed to have been imposed in this State

(1) Where under an interstate law an order is issued for the transfer to Victoria of a person imprisoned in a participating State and the person is brought into Victoria pursuant to the order, then from the time the person arrives in Victoria -

(a) any State sentence of imprisonment (as defined in the interstate law of the participating State) imposed on the person by a court of the participating State and any sentence of imprisonment deemed by the provision of an interstate law that corresponds to this section to have been imposed by a court of the participating State shall be deemed to have been imposed on the person; and

(b) any direction or order given or made by a court of the participating State with respect to when any such State sentence of imprisonment shall commence shall, so far as practicable, be deemed to have been given or made -

by a corresponding court of Victoria and, except as otherwise provided in this Act, shall be given effect to in Victoria, and the laws of Victoria shall apply, as if such a court had had power to impose the sentence and give or make the direction or order, if any, and did in fact impose the sentence and give or make the direction or order, if any.

(2) Sub-section (1) does not apply to or in respect of a sentence of imprisonment imposed on a person if the person has completed serving that sentence."

21 By operation of that section the sentence of 5 years imposed in New South Wales is to be treated as though it was imposed in Victoria on an earlier occasion. The approach adopted in Mill nonetheless remains applicable because the totality principle adopted by the Court was applied since it provided a just and principled approach when dealing with the problem of an offender who comes to be sentenced some time after the offence by reason of the fact that he has been serving a sentence imposed in another state for an offence of the same nature and committed at about the same time. The Court held that: "the intervention of a state boundary denies to an offender the opportunity of having a series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences"[7].

22 In this case the trafficking count is sufficiently closely related in time and character to the New South Wales offence as to make the principle in Mill applicable. When adopting that approach it is readily seen that there is force in the contention of Mr Boyce that the Victorian trafficking sentence offended the principle of totality. The police officer who was the informant for the New South Wales offences gave evidence that had the possession of pseudoephedrine also occurred in New South Wales then as informant he would have treated that quantity of the drug as an exhibit in the manufacturing charge so that it was subsumed in that count. Even if a separate charge had been pursued then had all of the offences been dealt with by the same court, it is plain that if a head sentence of five years was to be imposed on the count of manufacturing methylamphetamine it would have been highly inappropriate and unlikely that a wholly cumulative sentence of four years' imprisonment would then have been imposed for a single offence of trafficking a precursor chemical on one day within the manufacturing period.

23 Mr McArdle conceded that the trafficking offence in Victoria and the manufacturing offence in New South Wales ought to be treated as being part of the same course of criminal behaviour, but he did not concede that the trafficking offence ought to be treated as conduct which was subsumed within the crime for which he was convicted in New South Wales. As he rightly observed, the Victorian crime was committed on almost the last day of the period as to which he pleaded guilty to manufacturing methylamphetamine in New South Wales. Thus, the trafficking of pseudoephedrine must have been intended to be applied in a manufacturing offence which, if it took place at all, would have taken place outside the time frame of the offence for which he was sentenced in New South Wales. It was therefore, a distinct offence.

24 In adopting the Mill approach, and in applying the deeming effect of the Prisoners (Interstate Transfer) Act, the judge in this case had to accept the correctness of the sentence imposed in New South Wales. If in those circumstances the application of the Mill totality principle meant that a head sentence produced by the Victorian judge was lower than that which he would have imposed if he in fact sentenced the applicant for all offences at the one time, then that is the price that must be paid because, as the High Court held, that result "is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of state boundaries"[8]. Whilst the Prisoners (Interstate Transfer) Act reduces the impact of state boundaries, it does not remove altogether the unfair impact they would have if the totality principle was not applied. As was made clear in evidence before the judge, there were significant delays in attempting to have his charges dealt with by a Victorian Court, those delays not being the fault of the appellant in any way.

25 It is clear that these principles were not applied when the judge sentenced the appellant for the trafficking offence. I would therefore allow the appeal against sentence. The question of what sentence ought to be now imposed by this court on re-sentencing, raises a number of issues. In the first place, it is necessary to determine what will be the commencement date of any sentence we now impose.

26 By s.17(1) of the Sentencing Act 1991, but subject to s.16 and s.18, a sentence of imprisonment commences on the day it is imposed. The time of commencement of the New South Wales sentence was ordered to be 5 December 2001, the date of the arrest of the applicant. By s.27(1)(a) of the Prisoners (Interstate Transfers) Act that commencement date is deemed to have been stipulated by a Victorian Court and the laws of Victoria will apply to it as though that had been the case. By s.25(1) upon his transfer back to New South Wales any State sentence "including a translated sentence" ceases to have effect in Victoria except for the purpose of the continuation of the Victorian appeal against sentence.

27 Section 25 reads as follows:

"25. Transfer of sentence with prisoner

(1) Where pursuant to an order of transfer a prisoner is conveyed to a participating State or a Territory specified in the order, then from the time the prisoner arrives in the participating State or the Territory every State sentence of imprisonment imposed upon the prisoner including a translated sentence, ceases to have effect in Victoria except -

(a) for the purpose of an appeal against or review of any conviction, judgment or sentence made, imposed or fixed by a court of Victoria;

(b) in relation to any period of imprisonment served by the prisoner in Victoria; or

(c) in relation to the remittance of money to the Minister which is paid in discharge or partial discharge of a sentence of default imprisonment originally imposed upon the prisoner by a court of Victoria.

(2) Sub-section (1) does not apply to a sentence of imprisonment imposed on a person if the person has completed serving that sentence."

28 The combined effect of s.27(1) and s.25(1) is that the commencement date for the sentence which this Court will impose must be the commencement date imposed by Judge Solomon.

29 In submissions to the learned sentencing judge counsel conceded that his Honour could not make a declaration as to pre-sentence detention but submitted that regard could be had to the time served on the New South Wales sentence, in a broad way, as would be appropriate in situations where imprisonment was doubly justified: see R. v. Renzella[9]. In my opinion, once it is accepted that the sentence which was imposed in Victoria commences at the date of the arrest of the appellant then no question arises, at all, as to taking into account pre-sentence detention.

30 As to the new non-parole period of five years three months, if that commenced on 5 December 2001 then when he was sentenced on 25 June 2004 for trafficking in Victoria the applicant had already served about 2 years and 7 months of that non-parole period. Mr Boyce submitted, however, that there was no power for the judge to have fixed a new non-parole period under s.14 of the Sentencing Act. Mr Boyce submitted that by purporting to do so the judge was in breach of the terms of s.28(3). It is necessary to set out those provisions of s.28 which are of relevance for present purposes.

"28. Provisions relating to translated sentences

(1) Where under a law of a participating State there has been fixed by a court in respect of a translated sentence a non-parole period (being a shorter period than the translated sentence), during which non-parole period the person subject to the sentence is not eligible to be released on parole, then, except as otherwise provided in this Act, that non-parole period shall be deemed likewise to have been fixed by the corresponding court of Victoria.

(2) Where a translated sentence or a non-parole period deemed under sub-section (1) to have been fixed by a corresponding court of Victoria -

(a) is varied or quashed on a review by or appeal to a court of the participating State where the sentence or non-parole period was imposed or fixed, the sentence or non-parole period shall be deemed to have been varied to the same extent, or to have been quashed, by a corresponding court of Victoria; or

(b) otherwise is varied or ceases to have effect as a result of action taken by any person or authority in that participating State, the sentence shall be deemed to have been varied to the same extent, or to have ceased to have effect, as a result of action taken by an appropriate person or authority in Victoria.

(3) Nothing in this Act operates to permit in Victoria any appeal against or review of any conviction, judgment, sentence or non-parole period made, imposed or fixed in relation to a person by a court of a participating State.

(6) A person who is subject to a translated sentence -

(a) shall be deemed to have served in Victoria such period of the translated sentence as, up to the time of his transfer to Victoria, he had served in respect of that sentence in a participating State (including any period deemed by the provision of an interstate law that corresponds to this paragraph to have been served in a participating State and any period spent in custody while being transferred to a prison in Victoria); and

(b) shall, subject to sub-section (7), be credited, in respect of the part of the translated sentence served in a participating State, with such entitlements to remission as may be specified in the order of transfer;

(c) shall, in accordance with the law of Victoria, be credited with further reductions of that sentence as from the day of the person's arrival in Victoria.

(a) for which the person who is subject to the sentence was eligible up to the time of the person's transfer to Victoria; and

(b) which is attributable to a part of the sentence not served or not to be served in the participating State from which the person was transferred -

shall not be taken into account for the purposes of sub-section (6)(b).

(8) A non-parole period in respect of a person subject to a translated sentence may be fixed, extended or reduced by the appropriate Victorian court on the application of the person subject to the sentence or the Crown.

(10) In this section 'the appropriate Victorian court', in relation to a person subject to a translated sentence, means a court that is, in relation to the court by which the sentence was imposed, a corresponding court of Victoria."

31 Mr Boyce cited R. v. Cook[10], a decision which in my opinion can be distinguished. In Cook the interstate court which first sentenced the applicant had sentenced him to a term of imprisonment in excess of six years and expressly ordered that he not be eligible for parole. In sentencing the applicant to three years' imprisonment for another offence the Victorian judge ordered that he serve a two year non-parole period and that the whole sentence be cumulative upon the interstate sentence. The Court of Appeal held that a non-parole period could not have been fixed by the Victorian judge because in so ordering he would have been seen to modify or alter the express direction of the interstate court that there be no parole for the sentence it imposed. The Court held that that was the clear effect of s.28(3)[11].

32 In my opinion, the situation addressed in Cook is quite different to that which arose in this case. The making of a later sentencing order which merely extended a non-parole period (which is deemed to have been fixed in Victoria and to be subject to all relevant Victorian laws) by reference to offences other than those dealt with by Judge Solomon could not meet the description of an "appeal" or "review" of Judge Solomon's sentence or non-parole order. In my opinion, the combined effect of ss.25, 27 and 28(1) of the Prisoners (Interstate Transfer) Act provided undoubted power to cumulate a Victorian sentence on the New South Wales sentence and to fix a new non-parole period. The terms of s.25(1), when, first, the words "including a translated sentence" are given full weight and read with the qualification in s.25(1)(a), and, secondly, when read with s.27, clearly impose no restriction on the appeal court's power to deal with all matters ancillary to the disposition of an appeal against sentence, including making orders as to cumulation or concurrency, as this court deems appropriate. Furthermore, s.28(8) puts the question beyond any conceivable doubt as to the power to fix a new non-parole period.

33 In Cook the Court noted s.28(8) but held that it was not necessary for it to consider the meaning of that sub-section, given the clear application of s.28(3) to the facts in that case. In the present case not only does s.28(3) not, in terms, preclude the setting of a new-non-parole period, s.28(8), in clear terms, applies to the case. That conclusion is consistent with the decision of the South Australian Court of Criminal Appeal in R. v. Romeo.[12] In that case the Court held that the equivalent of s.14 of the Sentencing Act could not be applied to fix a new non-parole period only because it gave power to do so only when "sentencing" the offender, which was not the applicant's situation. Nyland, J. with whom, Doyle, C.J. and Prior, J, agreed, held[13], however, that the power to fix a new non-parole period arose under the equivalent of s.28(8) in the South Australian interstate transfer legislation and that provision was deliberately drafted in wide terms so as to cover any situation which might otherwise not be covered by the equivalent section to s.14 and was intended to accord with the spirit of parole legislation in South Australia. In my view, like considerations would apply in Victoria. In R. v. Heazlewood[14] Phillips, J.A., without expressing a concluded opinion, also suggested that s.14 would enable a sentencing court, when sentencing an offender for whom a non-parole period remained applicable under an interstate sentence, to impose a new non-parole period under that section in circumstances such as those in the present case.

34 In this case despite his prior convictions and the significant quantity of the drug involved in the count, the principle of totality did require that the sentence on the count be reduced and that a substantial portion of that sentence be served concurrently with the New South Wales sentence. In addition to the fact that he pleaded guilty at a very early stage and admitted the offence when questioned by police there were many other mitigating features in the appellant's antecedents and circumstances which I am satisfied justify a significant reduction in the sentence.

35 I would re-sentence the appellant on the trafficking count to three years' imprisonment and order that 12 months of that sentence be served cumulatively on the sentence imposed by Judge Solomon in New South Wales. That would produce a total effective sentence of 6 years. I would order, by way of a new single non-parole period, that he serve four years before being eligible for parole. As that sentence, by operation of law, commences on 5 December 2001, some three years and three months of the non-parole period has been served already.

[1] It was agreed between counsel that the charge should have read "notable wildlife".

[2] The judge actually announced a non-parole period of 5 years 6 months' imprisonment, but the return of prisoners was corrected to reflect his intention, as elsewhere stated, that it be a period of 5 years 3 months.

[3] As discussed in Pearce v. The Queen (1998) 194 C.L.R. 610, at 623-4, 629-630, 650.

[4] (1988) 166 C.L.R. 59.

[5] [1982] 2 N.S.W.L.R. 517, at 519-520.

[6] At 66.

[7] At 66.

[8] At 67.

[9] [1997] 2 V.R. 88. Since that decision was delivered the words "and for no other reason" had been omitted from s.18(1) (see Act no. 48 of 1997, s.11(1)).

[10] [1996] VicRp 93; [1996] 2 V.R. 658, per Winneke, P., Callaway, J.A. and Hampel, A.J.A.

[11] At 661.

[12] (1996) 89 A.Crim.R. 149.

[13] At 152.

[14] [1998] VSCA 33; [1999] 1 V.R. 172, at 177-8, Winneke, P. and Kenny, J.A. agreeing.