Roach v The Queen [2020] VSCA 205

1 On 10 September 2018, the appellant, Mark Roach, pleaded guilty after a contested committal hearing in the Melbourne Magistrates' Court to one charge of trafficking in a drug of dependence in a commercial quantity (1,4-Butanediol), one charge of criminal damage, one charge of negligently dealing with the proceeds of crime, and six charges of possessing, in small quantities, a number of drugs of dependence. He was also dealt with for a related summary offence of unauthorised possession of a sch 4 poison. The matter proceeded by way of a straight hand-up brief. On 30 January 2019, the plea in mitigation was heard in the County Court at Melbourne.

2 On 15 February 2019, the appellant was sentenced as follows:

Trafficking in commercial quantity of drug of dependence (1,4‑Butanediol) [s 71AA(1) - Drugs, Poisons and Controlled Substances Act 1981]

Intentionally damaging property [s 197(1) - Crimes Act 1958]

Negligently dealing with proceeds of crime [s 194(4) - Crimes Act 1958]

Possessing drug of dependence (diazepam) [s 73(1)(b) - Drugs, Poisons and Controlled Substances Act 1981]

Possessing drug of dependence (cocaine) [s 73(1)(b) - Drugs, Poisons and Controlled Substances Act 1981]

Possessing drug of dependence (tetrahydrocannabinol) [s 73(1)(b) Drugs, Poisons and Controlled Substances Act 1981]

Possessing drug of dependence (cannabis L) [s 73(1)(a) - Drugs, Poisons and Controlled Substances Act 1981]

Possessing drug of dependence (methylamphetamine) [s 73(1)(b) - Drugs, Poisons and Controlled Substances Act 1981]

Possessing drug of dependence (amphetamine) [s 73(1)(b) - Drugs, Poisons and Controlled Substances Act 1981]

Possessing a Schedule 4 Poison (Catapres 100) [s 36B(2) - Drugs, Poisons and Controlled Substances Act 1981]

4 years and 6 months' imprisonment with a non-parole period of 3 years

3 By notice dated 4 October 2019, the appellant sought leave to appeal against that sentence. He did so on the following ground:

The learned sentencing judge erred in fettering her discretion due to an erroneous belief that section 5(2HC) of the Sentencing Act 1991 applied to the sentencing task.

4 On 24 February 2020, Priest JA granted leave to appeal, on the papers. For reasons that follow, we would dismiss the appeal.

5 The following summary of the circumstances surrounding the commission of these offences is extracted from the written reasons for the grant of leave.

In the evening of 18 February 2018, the applicant accidently locked himself out of his short stay apartment, room 1005 of the District Apartments in South Yarra. In order to get back inside, the applicant obtained a set of garden secateurs and used them to force entry into the room, causing extensive damage to the door and lock mechanism, valued at $2,695 (charge 2).

The following morning, 19 February 2018, a maintenance worker noticed damage to the door of room 1005 and notified staff, who attended and spoke to the applicant. He was agitated and acting erratically, and admitted to causing the damage to the door. When told by one of the staff that the damage would cost approximately $1,000 to repair, the applicant went inside and returned with $1,000 in cash. After one of the staff noticed that the smoke detector had been covered with a plastic bag, another staff member told the applicant that he believed that the applicant had been smoking methylamphetamine in the room. He told the applicant that police would be called, and that he would need to vacate the room. The applicant denied smoking methylamphetamine, but nevertheless packed his possessions into several suitcases and placed them outside the room in the hallway.

Police attended and arrested the applicant. They searched him and located $1,643 in various denominations (forming part of charge 3) and a small ziplock bag containing 0.2 grams of cocaine inside his pants pockets (charge 5). The applicant was taken to Prahran Police Station, where a further search revealed a small ziplock bag containing 0.7 grams of dried cannabis (charge 7), and a second small ziplock bag containing 0.2 grams of methylamphetamine (charge 8), in his pockets.

When police searched room 1005, they found digital scales and another small ziplock bag, containing 0.4 grams of tetrahydrocannabinol, in the bedroom (charge 6). Among the applicant's possessions in the hallway police located documents and a passport in the applicant's name; digital scales; three Apple iPhones; a plastic bag containing $9,900 in various denominations (part of charge 3); plastic water bottles containing a total of 6.3261 kilograms of 1,4-Butanediol (charge 1); a small ziplock bag containing four tablets of diazepam (charge 4); a blister pack containing eight 'Catapres 100' tablets (summary offence 8); and a small ziplock bag containing five white tablets of amphetamine (charge 9).

The applicant gave a 'no comment' record of interview.[1]

6 1,4-Butanediol is an industrial solvent which is widely used by young people in nightclubs, and is said to be closely related to GHB. A commercial quantity of 1,4‑Butanediol is two kilograms. Accordingly, the amount of that drug seized by police was more than three times the commercial quantity.

7 During the course of the plea, it seems that the prosecution, defence, and the judge were all under the misapprehension that s 5(2HC) of the Sentencing Act 1991 ('Sentencing Act') applied. The error can be explained by first noting that 'trafficking in a commercial quantity of a drug of dependence' is what is known as a 'category 2 offence' under that Act.

8 Section 5(2H) which, in an earlier form, was applicable to the appellant's situation, relevantly provided:

(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless -

...

(e) there are substantial and compelling circumstances that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).[2]

9 Section 5(2HC), however, was not applicable to the appellant at the time of the offending in question.[3] That section goes much further than s 5(2H) and is in the following terms:

(2HC) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court -

(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and

(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

(c) must not have regard to -

(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or

(ii) an early guilty plea; or

(iii) prospects of rehabilitation; or

(iv) parity with other sentences.

10 After the prosecution opening had been read to the judge, the prosecutor stated that:

In terms of Charge 1, trafficking in a commercial quantity of a drug of dependence, that is a Category 2 offence pursuant to the Sentencing Act, and s 5(2H) of the Sentencing Act applies. Both my learned friend and I will make further submissions, Your Honour, in relation to the application of that section, but in essence it requires the court to make ... under Division 2 of Part 3 of the Act, that is a term of imprisonment not in combination with a community correction order, unless certain criteria are met, and they're set out in the opening and will be addressed by the parties.

11 During her submissions, the following exchange took place between the judge and defence counsel:

[COUNSEL]: ... it's conceded that s 5(2H) applies. It is my submission that substantial and compelling circumstances, which really means forceful and convincing - - -

...

HER HONOUR: All right. So you've said in your submissions that the substantial and compelling circumstances comprise of the considerable voluntary, successful steps taken at rehabilitation. How is that submission consistent with s [5](2HC), saying, 'In determining whether there are substantial and compelling circumstances the court (a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than other sentencing considerations, and (b) give less [weight] to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and (c) must not have regard to - so the court must not have regard to - the relevant parts here are an early guilty plea or prospects of rehabilitation'.

So the legislation directs that the court must not have regard to prospects of rehabilitation, and it also says that I am required to give less weight to personal circumstances than to the offending itself.

[COUNSEL]: Perhaps in terms of prospects of rehabilitation, the submission is not made - well, the submission has been made that his prospects are excellent, but it's what he's done to date, the last year, to confine it to that, rehabilitation to that, rather than - and Your Honour could take in terms of consideration, his personal circumstances are not wholly extinguished, and Your Honour in my submission can't just ignore that there has been this year. And whilst I've defined it as rehabilitation, really it could be defined in lots of other ways.

HER HONOUR: But the Act says that unless there are substantial and compelling circumstances that are exceptional and rare, a term of imprisonment is imposed, in effect. It then goes on to describe, or to direct what are substantial and compelling circumstances, and personal circumstances are to be given less weight. So that activity over the last 11 months or 12 months relates to the work that he has put in, and I accept that that is not an easy task to actually participate in a residential rehabilitation, and to then continue along that path.

But the reason he has done that, to a certain extent, must be to increase his chances for rehabilitation in a positive way.

[COUNSEL]: His prospects.

HER HONOUR: And I'm explicitly directed that I'm not allowed to take that into account.

[COUNSEL]: You can't, not.

...

HER HONOUR: And it's difficult, and it's obviously difficult for a reason, given the serious nature of the offending, but I am not - finding it difficult to reconcile the plea material with the obligations that I have to consider under the Act, which is unfortunate for your client.

[COUNSEL]: Yes, and that is something that is accepted. We've conceded that the section applies.[4]

12 When the judge asked the prosecutor for his submissions on this point, he said:

If Your Honour's not satisfied of substantial and compelling circumstances, requires Your Honour to impose a term of imprisonment only in relation to that offence.

It's appreciated that my learned friend relies upon s 5(2H)(e), and that requires the demonstration of substantial and compelling circumstances that are exceptional and rare, that justify not making such an order. It's the prosecution's submission, based on the clear intention and expression of the legislation, that those substantial and compelling circumstances are not made out on the material before Your Honour.

Your Honour's noted the further clarification provided by the legislation as to what Your Honour can and cannot take into account. Your Honour is required in determining whether there are substantial and compelling circumstances, and this is pursuant to s 5(2HC) Your Honour must regard general deterrence and denunciation as having greater importance than other sentencing consideration set out at s 5(1). Your Honour must give less weight to personal circumstances of the offender. And Your Honour must not have regard to, relevantly in this matter, the early plea of guilty and the prospects of rehabilitation.[5]

13 Towards the conclusion of the plea, the judge reiterated that 'prospects of rehabilitation must not be had regard to for Charge 1.' The prosecutor confirmed this, saying:

Your Honour is prohibited in determining the issue of substantial and compelling circumstances from taking into account, or having any regard to, the early guilty plea or prospects of rehabilitation.

Your Honour can still take into account Mr Roach's personal circumstances, but Your Honour is obliged to give less weight to personal circumstances as compared with other relevant matters, such as the nature and gravity of the offence.[6]

14 As we have indicated, these submissions were incorrect. Section 5(2HC) did not come into force until 28 October 2018, some eight months or so after the offending occurred. In addition, her Honour's reference to 'exceptional and rare' reflected the amended version of s 5(2H), which was not applicable to the appellant's situation.

15 The judge initially turned to the appellant's prior criminal history. In 2016 and 2017, he was dealt with for drug offences in the Melbourne Magistrates' Court on a number of occasions. These included prior convictions for trafficking. Most recently, on 31 October 2017, he was convicted and sentenced to a 12 month community correction order ('CCO'). At the time of the present offending in February 2018, he had completed about 4 months of that CCO. The judge correctly observed that the fact that he was on a CCO at the time of this offending was an aggravating feature.

16 With regard to the appellant's plea, her Honour acknowledged that it had been entered 'at an early opportunity'. She also found that it had 'significant utilitarian benefit.'[7] Further, she recognised that, by his early plea, the appellant had 'facilitated the efficient administration of justice and [was] entitled to a benefit for that.'[8]

17 The judge then turned to the appellant's expressions of remorse. She noted that in a report prepared by Dr Jan Borrell, the appellant's treating psychologist, he had expressed shame at his offending and how it had impacted upon his family. Her Honour accepted that, in conjunction with the various character references tendered on the plea, the appellant had displayed genuine remorse.

18 With regard to the appellant's prospects of rehabilitation, the judge noted that he was receiving ongoing therapy for his drug addiction. Evidence on the plea indicated that he had demonstrated commitment to his rehabilitation program, including regular attendance at Narcotics Anonymous. Further, all urine screens collected between the date of his arrest in October 2018 and January 2019 had returned negative. Her Honour observed that the appellant had made significant efforts towards rehabilitation, and that she was 'prepared to moderate [his] sentence to reflect [those efforts].'[9] Further, she noted Dr Borell's observations that since the offending, the appellant's 'self-reflection has been brutally honest.'[10]

19 The judge said that the appellant's abstinence from drugs for 12 months was significant, and augured well for his future.[11] Finally, she noted that the Crown had conceded that the appellant's prospects of rehabilitation were 'very good.'[12] She said that his ability to remain abstinent from drug use would be the 'critical factor' in whether he would succeed in that rehabilitation.[13]

20 Turning then to the appellant's personal circumstances, the judge noted that he had had an 'unremarkable' upbringing.[14] He had completed high school, and then graduated with an Arts degree. He had, however, been unable to find regular employment since about 2015. During his time on bail, he had managed to obtain some casual employment through his case manager.

21 The judge said that the appellant's drug use commenced in secondary school. He had told Dr Borrell that he had been addicted to cannabis throughout the last four years of his secondary education. At university, he commenced using other drugs, including methylamphetamine. His use of that drug escalated when he began work at a nightclub. In 2009, after losing that job, he started using GHB. He described his drug use from 2011 to 2017 as having 'snow ball[ed] to unprecedented levels'.[15] By 2015, he felt that he was 'unable to exist without drug use.'[16] It was in that year that he began to offend.

22 The judge commented upon the appellant's strong level of family support, in particular, that of his sister, mother, and step-father, with whom he lived while he was on bail. Her Honour observed that 'they see you every day[,] keeping watch over you, anxious for your sobriety to continue.'[17]

23 The judge then turned to the sentencing requirements for a category 2 offence. Her consideration of that matter was as follows:

When considering sentence in this matter, I am obliged to consider that trafficking in a commercial quantity of a drug of dependence, is a category two offence, pursuant to the Sentencing Act 1991. The Act is prescriptive in the type of penalty to impose in such a case, being a term of imprisonment. The threshold to impose an alternative disposition is very high. Relevantly, s 5(2H) of the Sentencing Act states that the court is required 'to make an order, that is a term of imprisonment (other than a sentence of imprisonment imposed in addition to making a community corrections order)' unless subsection (e), 'there are substantial and compelling circumstances that are exceptional and rare that justify not making such an order.'

Defence counsel have submitted that subsection (e) has application in this case. The prosecution dispute that submission. The legislation in s 5(2HC) provides the relevant criteria for consideration as to whether there are substantial and compelling circumstances. In particular, I am obliged to prioritise general deterrence and denunciation over other sentencing considerations set out in s 5(1) of the Sentencing Act. I accept that in this case, general deterrence must be given significant weight in the sentencing process, as must the factor denunciation and also of punishment. I am also obliged to give less weight to your personal circumstances than to other matters, such as the nature and gravity of the offence.

... The section directs that this plea material must be given less weight than the nature and gravity of the offending when considering sentence. Further, the Act specifically directs that the court must not have regard to your early plea of guilty or to your prospects of rehabilitation in considering whether there are substantial and compelling circumstances.

In view of this, I am unable to be satisfied that your circumstances are exceptional and rare. It is clear from material referred to by your counsel that successful rehabilitation and then maintaining a drug-free lifestyle for 12 months is not common. You are to be commended for your efforts to achieve this since being released from custody. However, I am unable to conclude that your level of reformation from drug use can be correctly characterised as exceptional and rare.

At s 5(2I) of the Act, the court is directed to have regard to Parliament's intention that in sentencing for this offence, a term of imprisonment should ordinarily be made, unless the circumstances in which a departure from this express Parliamentary intention could be justified. The intention of Parliament is clear from the language used. Whilst I am impressed by the evidence that has been provided to the court of the efforts that you have made over the past 12 months, my sentencing discretion in this case has been pared down by Parliament. I am not satisfied that you have established the exceptional circumstances that you rely on. In relation to the other charges that are before the court, general deterrence, specific deterrence and protection of the community must be given significant weight in the sentencing process. Rehabilitation must also strongly feature in the sentencing mix.[18]

24 Her Honour then sentenced the appellant as set out above.

25 The appellant's overarching submission was that the judge had erroneously applied s 5(2HC) of the Sentencing Act to the task before her when that section had no application to this particular offender. In support of that submission, his written case addressed the relevant amendment history of that Act.

26 First, the appellant referred to the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 ('the Sentencing Amendment Act'), which came into operation on 20 March 2017.[19] Section 4(1) of that Act inserted s 5(2H) into the Sentencing Act. That section, is relevantly set out above at [8].

27 Section 3 of the Sentencing Amendment Act inserted a definition of a 'category 2 offence' into s 3(1) of the Sentencing Act. Such an offence included 'an offence against s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (trafficking in a drug or drugs of dependence - commercial quantity)'.

28 The appellant submitted that since his offending occurred on 19 February 2018, s 5(2H) in its earlier form applied. Accordingly, the judge was required to impose a term of imprisonment (of more than 12 months) unless there were 'substantial and compelling circumstances that justify not making' such an order. There was no additional requirement that these circumstances be 'exceptional and rare'.

29 As indicated, on 28 October 2018, s 76(6) of the Justice Amendment Act introduced s 5(2HC) into the Sentencing Act. That section is set out above at [9].

30 Section 83 of the Justice Amendment Act also inserted s 168(6) into the Sentencing Act. That section was a transitional provision that said:

The amendments made to this Act by section 78(2) or a provision of section 76 (other than section 76(1) and (2)) or 79 of the Justice Legislation Miscellaneous Amendment Act 2018 apply to the sentencing of an offender for an offence alleged to have been committed after the commencement of that provision of that Act.

31 The appellant then referred to the Victorian Government Gazette No S 480,[20] which fixed 28 October 2018 as the date when s 5(2HC) of the Sentencing Act would come into force. He submitted that because that provision did not come into force until after the offending, s 5(2HC) had no part to play in the judge's sentencing task.

32 The appellant turned to the plea transcript to demonstrate that the judge, prosecutor, and defence counsel were all under the misapprehension that s 5(2HC) was applicable. Further, he pointed to [22]-[24] of the judge's sentencing remarks[21] as revealing s 5(2HC) as a significant factor in her Honour's conclusion that exceptional and compelling reasons had not been met.[22]

33 The appellant submitted that the judge's decision as to whether substantial and compelling reasons existed had clearly been influenced by her erroneous belief that s 5(2HC) applied to his case. This was said to be an irrelevant consideration. Further, he submitted that the judge's error also involved a failure to take into account a relevant consideration, that was highly material, namely, his significant steps towards rehabilitation. It was submitted that these errors vitiated the exercise of her Honour's sentencing discretion. This required that the sentencing discretion be entirely reopened.

34 Finally, the appellant submitted that, on a reopened sentencing discretion, a lesser sentence should now be imposed. He referred, in support of that submission, to this Court's decision in Akoka v The Queen[23] where it was held that 90 days spent in residential rehabilitation could be taken into account separately in mitigation of sentence, as well as the rehabilitative benefits that flowed from that period. He submitted that the fact that the offending had been intertwined with his drug addiction, and the significant steps he had taken towards rehabilitation, warranted the imposition of a combination sentence of a term of imprisonment with a CCO. In effect, that meant a sentence less than 12 months' imprisonment.

35 During oral argument, counsel for the appellant raised with the Court an entirely separate matter. She noted that on 19 September 2019, the appellant had, in the course of an altercation with another prisoner, thrown boiling water at him. That gave rise to a charge of recklessly causing injury. On 18 March 2020, the appellant was sentenced in the Magistrates' Court to a term of 6 months' imprisonment, wholly cumulative upon the County Court sentence which is the subject of this application.

36 Counsel submitted that the magistrate had erred in concluding that the offence which the appellant committed in custody was a 'prison offence' within the meaning of s 16(3) of the Sentencing Act and that, accordingly, there was a presumption of cumulation. She submitted that, in the event that this Court resentenced the appellant, we should correct the error that the magistrate had made, and order that some part, if not all, of the 6 month sentence should be served concurrently with the County Court sentence.

37 This additional argument was elaborately stated, and became the subject of written submissions by both parties. Put shortly, it was submitted that s 16(3) had no application to the appellant's position because the offence of recklessly causing injury to another prisoner was not a 'prison offence' within the meaning of that expression in that subsection. It was further submitted that, in any event, the magistrate had erred in failing to find that there were exceptional circumstances within the meaning of s 16(3), such that total cumulation was not warranted. We shall return to these arguments when we state our conclusions.

38 In her written response, counsel for the respondent properly conceded that the judge had erroneously taken into account s 5(2HC) of the Sentencing Act in imposing the sentence that her Honour did. Counsel submitted, however, that the judge's consideration of s 5(2HC) did not have any material effect upon the ultimate sentence.

39 Counsel submitted that this was because s 5(2HC) only assumed relevance in determining whether there were 'substantial and compelling circumstances' that were sufficient to warrant a departure from the requirement that the judge impose a sentence of imprisonment in excess of that which could lawfully be combined with a CCO.

40 Alternatively, counsel submitted that the sentence of 3 years and 3 months' imprisonment imposed on charge 1 was so clearly moderate, and so well within the range, that no different and lesser sentence should now be fixed.

41 Counsel submitted that the objective gravity of the appellant's offending was so great as to warrant a substantial term of imprisonment. For a combination sentence even to be contemplated, the appellant would have been required to overcome the hurdle of establishing 'substantial and compelling circumstances' set by s 5(2H) in its applicable form, irrespective of whether the additional threshold of 'exceptional and rare', subsequently introduced, could be demonstrated. It was submitted that the appellant could never have met that lower threshold, in any event.

42 Counsel acknowledged that while the phrase 'substantial and compelling circumstances' in s 5(2H) appeared not to have been the subject of specific consideration at an appellate level, that language was similar to that which appears in s 10A(2)(e) of the Sentencing Act which, of course, concerns relevant exceptions to the imposition of minimum non-parole periods.

43 In that regard, counsel referred to Director of Public Prosecutions v Hudgson,[24] a case to which reference had been made on the plea. There, this Court said, of s 10A:

It was plainly the intention of Parliament that the burden imposed upon an offender who sought to escape the operation of s 10 should be a heavy one, and not capable of being lightly discharged.

More specifically, we accept the Director's submission that the word 'compelling' connotes powerful circumstances of a kind wholly outside what might be described as 'run of the mill' factors, typically present in offending of this kind.

...

In addition, the various matters upon which the respondent relied as giving rise to 'substantial and compelling circumstances', and which her Honour found to meet that description, fall well short, in our view, of doing so.[25] There is nothing 'compelling' about them in the sense required. Nor can it be said that they are 'rare', or 'unforeseen' in cases of this type.

It follows that no 'special reason' of the kind required to avoid the consequences of s 10 has been demonstrated.[26]

44 Counsel submitted that the approach taken above illuminated the approach to be followed when considering whether 'substantial and compelling' circumstances, within the meaning of 5(2H), existed.

45 Further, it was noted that the prosecutor on the plea had referred to s 5(2I), which is in the following terms:

In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to -

(a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and

(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.

46 With regard to the appellant's prospects of rehabilitation, it was submitted that the judge had plainly taken these into account. This was demonstrated in her sentencing remarks, when she noted the steps towards rehabilitation that he had taken, and observed that these were consistent with genuine remorse. She said that, as a consequence, she was prepared to moderate his sentence. This, she had clearly done.

47 In response to the appellant's reliance on Akoka, it was noted that defence counsel on the plea had not sought to rely on that case. Nor had defence counsel submitted to the judge that the period that the appellant had spent in rehabilitation had been punitive, and that this was a matter that should be taken into account by way of mitigation. It was submitted, therefore, that this Court ought not lightly entertain the appellant's submissions in that regard.[27]

48 Counsel submitted that the fact that this case concerned 1,4-Butanediol, and not some other, arguably more deleterious drug, did not render the offending less serious. She referred, in that regard, to R v Pidoto,[28] where it was held that the sentencing regime for drug trafficking offences did not permit a consideration of the relative harmfulness of particular drugs of dependence. Further, it was submitted that even if 1,4-Butanediol is less profitable when trafficked than, for example, heroin or cocaine (as to which there was no evidence on the plea), that fact alone did not significantly reduce the appellant's moral culpability.

49 Finally, it was submitted that the principles of general and specific deterrence had to loom large in this case. In that regard, counsel referred to the appellant's prior criminal history, including convictions for trafficking, the fact that he had been on a CCO at the time of this offending, and to this Court's decision in Kim v The Queen.[29] Overall, she reiterated that despite the errors made by the sentencing judge, no lower sentence should be imposed.

50 With regard to the submission regarding s 16(3) of the Sentencing Act, and the error allegedly made by the magistrate in ordering the 6 month sentence for recklessly causing injury to be served cumulatively, counsel for the respondent submitted that no such error had been demonstrated. She contended that recklessly causing injury to another prisoner, whilst in custody, was a 'prison offence' within the meaning of that expression in s 16(3). She further contended that there were no exceptional circumstances of a kind that were relevant. Once again, the argument was elaborately stated, and we will come to it shortly.

51 As we have said, the Crown's concession of sentencing error was clearly correct. Her Honour simply misdirected herself as to the provisions which governed her sentencing decision. It is unfortunate that the submissions of both counsel contributed to the error. The complexity of provisions such as these makes it imperative that counsel appearing on a plea check carefully in advance which provisions are applicable and can then identify them correctly for the judge.

52 It follows that there was 'an error in the sentence first imposed', within the meaning of s 281(1)(a) of the Criminal Procedure Act 2009. For reasons which follow, however, we are not persuaded that 'a different sentence should be imposed'. The appeal must therefore be dismissed, in accordance with s 281(2).

53 The possession for sale of more than three times the commercial quantity of a drug of dependence is obviously a very serious matter indeed. The appellant engaged in this conduct for profit. He had prior, and recent, convictions for trafficking drugs. The offences were committed during the course of a CCO, making it clear that, notwithstanding efforts at rehabilitation, specific deterrence remained a relevant factor. So too, of course, did general deterrence.

54 Our consideration of the sentence imposed must, of course, be approached on the basis that s 5(2H) applied in the form in which it appeared at the time of this offending. But, as the respondent correctly submitted, the offending was clearly too serious for a non-custodial or combination sentence. It follows that the judge's erroneous reference to s 5(2HC) had no effect on the sentence.

55 We cannot conceive of a sentence of less than 3 years and 3 months' imprisonment as being appropriate for offending of this gravity. We note that the maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years' imprisonment. That, of itself, suggests that a term of 3 years and 3 months' imprisonment, given the prior convictions and the fact that the offending took place in the course of serving a CCO, was a benevolent disposition.

Consideration - the order for cumulation on the magistrate's 6 month sentence

56 As noted earlier, the appellant's additional submission that we should interfere with the Magistrates' Court order for cumulation of the 6 month sentence for recklessly causing injury was raised for the first time in oral argument. Counsel explained that she had been unaware of that sentence when the written case was filed. The submission was made in anticipation of the possibility of resentencing, given the Crown's concession of sentencing error.

57 The short answer to the submission is that this Court has no jurisdiction to review the sentence imposed by the magistrate. The Court's appellate jurisdiction was enlivened by the application for leave to appeal under s 278 of the Criminal Procedure Act 2009. That application related to - and only to - the sentence imposed by the 'originating court', that is, the County Court.

58 Leave to appeal having been granted, the determination of the appeal is governed by s 281. As we have already said, our conclusion that no different sentence should be imposed means that - in accordance with s 281(2) - the appeal against the County Court sentence must be dismissed. The making of that order will exhaust the exercise of appellate jurisdiction.

59 This Court has no appellate jurisdiction with respect to sentences imposed by the Magistrates' Court. An appeal against such a sentence could only lie to the County Court or, on a point of law, to a single judge in the Trial Division. Accordingly, the correctness of the magistrate's sentencing order could never have arisen for consideration in this appeal.

60 Nonetheless, in deference to the comprehensive written submissions filed by the parties and because the construction point may be of importance in the future, we consider it appropriate to deal briefly with the 'prison offence' question. Section 16(3) of the Sentencing Act relevantly states:

Every term of imprisonment imposed on a prisoner by a court in respect of a prison offence or an escape offence must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any uncompleted sentence or sentences of imprisonment ... imposed on that prisoner, whether before or at the same time as that term.

61 Section 3 of that Act provides that ' ... prison offence has the same meaning as in pt 7 of the Corrections Act 1986 ...' pt 7 of the Corrections Act includes s 48, which relevantly provides:

'prison offence' means a contravention of this Act or the regulations.

62 Both the Corrections Act and the Corrections Regulations 2019 create a number of distinct criminal offences. The appellant notes that recklessly causing injury is not one of those listed offences. Importantly, however, reg 65(1)(a) creates the 'prison offence' of 'assaulting or threatening a person'.

63 Counsel for the appellant properly acknowledged that, absent a statutory definition, the expression 'prison offence' would encompass any offence committed by a prisoner in prison. She submitted, however, that the legislature had chosen to define that expression in narrow and specific terms, and that the offence of recklessly causing injury was distinct from the offence of assault. For example, an injury can be inflicted without the direct application of force, or even the mere apprehension of force.

64 According to the submission, it would be absurd to think that 'prison offence' encompassed those forms of recklessly causing injury which embodied assaults, but not those forms of that offence which did not. Further, it was said, offences such as affray and riot,[30] which did not embody assaults, were not prison offences, as defined. Accordingly, so it was said, there was no reason to treat recklessly causing injury as falling within that expression.

65 Counsel acknowledged that there was no appellate authority supporting her preferred construction of the meaning of 'prison offence'. She pointed out that, in R v Devries,[31] this Court had assumed (without the benefit of argument on the point) that recklessly causing serious injury, in a prison context, did amount to a 'prison offence'.[32]

66 Counsel for the respondent submitted that the appellant's conduct in splashing boiling water over another prisoner was, on any view, an assault. The fact that it was an assault of an aggravated nature (since it encompassed the causing of injury as well as the basic elements of an assault) did not take it outside the scope of s 16(3). It would be a strange result, it was submitted, if a lesser charge of assault would have triggered the presumption of cumulation while the significantly more serious offence committed by the appellant did not.

67 Given that the question does not arise for decision, we do not express a concluded view. As the respondent pointed out, those representing the appellant in the Magistrates' Court accepted that s 16(3) was applicable. That was, in our view, unsurprising in the circumstances. For the reasons advanced by the respondent, there is obvious force in the proposition that the appellant's offending conduct was properly characterised as 'assaulting a person' and hence was a 'prison offence' within the meaning of s 16(3).

68 For the reasons we have given, the appeal will be dismissed.

[1] Roach v The Queen (Unreported, Court of Appeal, Priest JA, 24 February 2020), [5]-[9].

[2] This section was amended by s 76(6) of the Justice Legislation Miscellaneous Amendment Act 2018 ('the Justice Amendment Act'). That provision came into force on 28 October 2018 to raise the threshold from 'substantial and compelling circumstances' to 'substantial and compelling circumstances that are exceptional and rare'.

[3] This section was also introduced into the Sentencing Act by s 76(8) of the Justice Amendment Act. It also came into force on 28 October 2018.

[7] DPP v Roach [2019] VCC 145, [9].

[18] Ibid [21]-[25] (emphasis added).

[19] Victoria, Victoria Government Special Gazette, No S 17, 31 January 2017, 1, 1.

[20] Attorney-General, 'Justice Legislation Miscellaneous Amendment Act 2018 - Proclamation of Commencement' in Victoria, Victorian Government Gazette, No S 480, 16 October 2018, 1, 1.

[21] Set out above at [23].

[22] The appellant was also entitled to complain of the judge's reference to 'exceptional and rare' as a component of s 5(2H), when that additional hurdle did not apply to his situation.

[23] [2017] VSCA 214 ('Akoka').

[24] [2016] VSCA 254 ('Hudgson').

[25] These matters were said to include parity, delay, a diagnosis of post-traumatic stress disorder, and the respondent's anguish at being separated from his three young children.

[26] Hudgson [2016] VSCA 254, [111]-[112], [115]-[116].

[27] See Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486, 489-90 [11] (Redlich JA, Buchanan JA agreeing at 494 [28], Mandie JA agreeing at 494 [29]).

[28] [2006] VSCA 185; (2006) 14 VR 269, [5]-[6] (Maxwell P, Buchanan, Vincent and Eames JJA).

[29] [2019] VSCA 149, [31] (Kaye and T Forrest JJA). There, this Court emphasised the significance of general deterrence and denunciation in cases of trafficking in a commercial quantity of a drug of dependence.

[30] In DPP v Luca [2016] VCC 1573, [47], Chief Judge Kidd accepted, in accordance with the position of the parties in that case, that 'riot' was not a 'prison offence'.

[31] [2005] VSCA 95.

[32] Ibid [8] (Charles JA, Vincent JA agreeing at [18], Osborn AJA agreeing at [24]). In addition, counsel drew attention to DPP v Hope [2017] VCC 1315, where Judge Smith concluded that 'causing injury' offences were not prison offences for the purposes of s 16. Accordingly, no presumption of cumulation applied.