R v Zane [2001] VSCA 72

2. Charles, J.A. will give the first judgment in this appeal.

6. On 27 June 2000 the appellant pleaded guilty in the County Court at Melbourne to a presentment alleging one count of trafficking in drugs of dependence (methylamphetamine and MDMA - ecstasy). A plea was heard on 18 August 2000 and on 25 August the appellant was sentenced to 18 months' imprisonment. The appellant now appeals pursuant to leave granted pursuant to s.582 of the Crimes Act 1958 on 1 December 2000 on the ground that the sentence is manifestly excessive, that the judge failed to set a minimum term having regard to the prisoner's circumstances, that the sentence failed to reflect the personal circumstances and background of the prisoner and that the judge did not consider the setting of, or actually fix, a non-parole period when it was incumbent on him or appropriate for him to do so, particularly having regard to the appellant's prospects of rehabilitation.

9. The circumstances giving rise to this offence were as follows. In the early hours of 14 November 1998 police investigators working with the National Crime Authority observed a blue-coloured Toyota MR-2 coupé enter Clifton Street, Prahran and park next to Edward's Tavern in High Street. A police vehicle was driven into Clifton Street and pulled up next to the Toyota coupé. The investigators left the police car and approached the open passenger door of the Toyota coupé, the engine of which was still running. They identified themselves as police officers and requested an unidentified male standing beside the open door of the car and the occupant of the vehicle to remain where they were and not to move. At this point the driver of the Toyota, later identified as the appellant, took off in a northerly direction in Clifton Street, but after travelling approximately 25 metres, began to lose control of the car, which subsequently struck a brick wall and a steel bollard on the

western footpath. As a result the Toyota rolled on to its roof and came to rest facing in a north-westerly direction. As the investigators approached the upturned vehicle they noticed the appellant pick up a white plastic Target brand shopping bag and attempt to conceal it behind the passenger seat of the vehicle. The appellant was helped out of the car and the vehicle was then searched. The Target bag contained a number of clear plastic bags in which were a large quantity (1863) of tablets of a compressed white powder. Of these tablets, 389 have subsequently tested positive as containing methylamphetamine. The total quantity of methyl-amphetamine from these tablets was 134.7 grams dilute. A purity estimate analysis indicated that each tablet contained less than 0.5% methylamphetamine. Of these 389 tablets, 73 tablets contained MDMA or ecstasy, the total quantity from those 73 tablets being 26.1 grams dilute. The remainder of the 1863 tablets contained no illicit material. The evidence of a police witness, Detective Bunning, was that the street level value of an ecstasy tablet would be in the range of $60 - $80. On this basis the judge estimated that the street level value of the 389 tablets was $23,340.

13. Later that day the appellant was taken to St Kilda Road police station where he answered "no comment" to police questions. The appellant when first arraigned on 27 July 1999 pleaded not guilty, but changed his plea to guilty on 27 June 2000.

16. The first submission made on behalf of the appellant was that the judge was obliged to consider whether to fix a minimum non-parole period by virtue of s.11(2) of the Sentencing Act 1991. It was put that, although a judge is not bound to state reasons for not fixing a non-parole period when a term of imprisonment of two years or less is imposed, it is none the less desirable that reasons be given for this course[1]. The submission conceded that a failure to give reasons does not of itself ordinarily support an inference that the sentencing judge failed to consider the exercise of the discretion pursuant to s.11(2)[2]. It was submitted, however, that in the present case the failure to refer at all to the question of the imposition of a non-parole period in combination with other factors did support an inference that the judge failed to consider the exercise of the discretion. In that regard counsel relied on the fact that submissions were made on the plea directed to the service of a term of imprisonment by way of supervision in the community, and that the circumstances of the case would ordinarily call for the fixing of a non-parole period, and it was put that the imposition of a term of 18 months with no non-parole period, in the circumstances of this case, would be unusual so that one would expect reasons to be given for not fixing a non-parole period.

19. The second submission made for the appellant was that if the judge considered the exercise of his discretion under s.11(2) and determined not to fix a minimum non-parole period, then this decision was made in error. The fixing of a non-parole period, so it was said, confers a benefit on the prisoner but also serves the interests of the general community by furthering his rehabilitation[3]. It was submitted that the circumstances of this offence and of the appellant called for the fixing of a minimum non-parole period and the failure to do so represented manifest excess. Reliance was placed on the appellant's addiction to drugs, which it was said contributed to his offending; and when released, it would have been better in the early stages for him to be supervised rather than released from prison into the community without supervision. Since the prisoner is HIV positive his incarceration will be more onerous. He has guarded prospects for rehabilitation which could only be improved by a period of supervised parole. Finally reliance was placed on the limited nature of his offending, having regard to the very low purity of the drugs possessed.

22. In response counsel for the Crown submitted that a sentence of 18 months' imprisonment was plainly not manifestly excessive and that the failure to fix a minimum term did not make it so. She pointed to the appellant's prior convictions, which include three previous convictions for trafficking amphetamines, together with the fact that on two occasions the appellant has been brought before the courts for breach of community-based orders. Even though the appellant was not trafficking in a commercial quantity, it was put that the circumstances of the offence showed him to have been trafficking in a not insignificant manner. The sentencing judge found that the appellant lacked true remorse, and there was plainly a need for specific deterrence in relation to this appellant.

25. In relation to the failure of the judge to fix a minimum term, the Crown submitted that, although no reasons had been specifically addressed to this question, there was nothing in the reasons to indicate that the very experienced judge did not consider the question. Sentence was delivered after the plea had been heard only a week beforehand. The judge had plainly considered the appellant's prospects of rehabilitation. Having taken the view that there remained a prospect of rehabilitation, his Honour was unable to take the view that the appellant's complete rehabilitation was likely. In all the circumstances it had been open to the judge to find that, although material had been put forward on the question of rehabilitation, the appellant after his release on bail for the offence had consistently returned urine samples which on testing proved positive for amphetamines. Counsel for the appellant had conceded during the plea that a sentence of 12 months' imprisonment was within range, to be served either by way of an intensive correction order or a combined custody-treatment order, and the judge had made it clear that his preliminary view was for an immediate custodial sentence of a different nature. Accordingly, the judge had obviously had under consideration a review of the factors necessary for the fixing of a minimum term, in the course of his determination that the appropriate sentence was one of more than 12 months' imprisonment. It was submitted that the imposition of an 18-month term of imprisonment in these circumstances was not unusual.

28. As to the final ground, the failure to fix a non-parole period, it was submitted that the judge took into account all relevant matters in sentencing the appellant, including his prospects of rehabilitation, that he was being treated for his drug addiction, and that as a consequence of his HIV condition he will be isolated in many respects from other prisoners. The judge had taken into account the scope of the offending, which had not been "limited". The judge had also taken into account the low level of purity of methylamphetamine in the 389 tablets. In all these circumstances it was submitted that no error was to be found in the sentence imposed.

31. Taking first the ground that the judge did not consider the setting of a non-parole period, s.11(2) of the Sentencing Act 1991 gave his Honour power to fix a non-parole period and accordingly required the judge at least to consider in sentencing whether any, and if so what, non-parole period should be fixed as appropriate; R. v. Watts[4] and the cases there cited. It is, however, equally well established that a sentencing judge is not obliged to give reasons for not fixing a non-parole period (see e.g. R. v. Sener[5]), and it is the practice of this Court to proceed on the presumption of regularity, that is, on the assumption that consideration has been given to the question, even though there is no express mention of it in the judge's sentencing remarks, in the absence of an indication that the question was not in fact considered (R. v Watts[6]).

34. The fixing of a non-parole period is particularly directed to the question when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitation under supervision (R. v. Bernath[7]). In the present case the very experienced sentencing judge was faced with a prisoner who, on the available evidence, was trafficking in some style, surrounded by a number of potential buyers apparently awaiting his arrival making mobile telephone calls; it was midnight, outside a bar then operating, with numbers of people still inside. The appellant had three prior convictions for trafficking in amphetamines and on two occasions had breached community-based orders. He was then two days short of his 30th birthday, with a substantial criminal record and an established amphetamine habit. His

Honour found that the appellant had no true remorse and specific as well as general deterrence were plainly both important sentencing considerations. The appellant's counsel submitted during the plea that a sentence of 12 months' imprisonment was within range, and that it could be served either by way of intensive correction order or a combined custody-treatment order. The sentencing judge in response had made it clear that his preliminary view was for "an immediate custodial sentence of a different nature to a combined custody and treatment order". His Honour was then plainly reviewing the factors required for consideration of the fixing of a minimum term. Having regard to the circumstances of the offence and also to the prior criminal history of the appellant, it was not in the least unusual or surprising that a non-parole period was not fixed. The appellant's past failure on two occasions to comply with community-based orders is particularly significant in this regard.

38. As to grounds 1 and 2, I do not accept that the judge fixed a sentence which failed to reflect the personal circumstances and background of the prisoner. In my view the circumstances of the offence, together with the appellant's prior criminal history, resulted in the sentence imposed being well within range and entirely understandable. It was certainly not manifestly excessive, indeed it was arguably merciful.

41. Notwithstanding the supportive references tendered on behalf of the appellant at the plea, and the sympathy one would naturally feel for the appellant given his drug addiction and his diagnosis as being HIV positive, the sentence imposed was in my view well within range.

56. The formal order of the Court is that the appeal is dismissed.

[1] R. v. Sener [1998] 3 V.R. 749; R. v. Watts [1998] 4 V.R. 244.

[3] R. v. Krasnov & Shlakht (1995) 82 A.Crim.R. 92.

[5] [1998] 3 V.R.749 per Batt,J.A. at 751-752.