Samuels-Orumnwense v The Queen; Osifo v The Queen [2015] VSCA 152

CRIMINAL LAW - Appeal - Conviction - Continuity of drugs - Whether verdict unsafe and unsatisfactory.

CRIMINAL LAW - Appeal - Sentence - Attempting to possess a marketable quantity of a border controlled drug (heroin) - Individual sentences of 5 years and 9 months' imprisonment - Parity - Totality - Findings as to roles of offenders - Whether failure to apply Verdins principles - R v Verdins [2007] VSCA 102; (2007) 16 VR 269 - Whether sentences manifestly excessive.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 I have had the considerable advantage of reading in draft the reasons for judgment of Priest JA in both appeals. I would make the orders as his Honour proposes, for the reasons which he gives.

3 After an eight week joint trial in the County Court, in which some 32 witnesses gave evidence in the prosecution case, on 23 April 2014 a jury convicted both the applicant Efe Samuels-Orunmwense (for convenience, 'ESO') and the applicant John Omoruyi Osifo ('JO') of attempting to possess a marketable quantity of a border controlled drug, heroin.[1], [2]

4 Following a plea, on 25 August 2014 both applicants were sentenced to a total effective sentence of five (5) years and nine (9) months' imprisonment. In ESO's case, a non-parole period of three (3) years was fixed. JO's sentencing was more complicated. He was already undergoing sentence, imposed in the County Court on 28 October 2011, for a previous drug offence of a similar nature committed in July and August 2010. The judge was thus required to make orders which, in effect, resulted in some cumulation and the fixing of a new global non-parole period. In this Court, the respondent has conceded that the judge's orders were not apt to accomplish her stated intention, so that intervention is required. I will elaborate on

the orders, and their effect, when I come to deal with JO's application.

5 ESO seeks leave to appeal against both conviction and sentence. I would refuse both applications. My reasons are set out below.

6 JO seeks leave to appeal against sentence. For the reasons that follow, I would grant leave to appeal; allow the appeal; and resentence him in the manner later set out.[3]

7 Before turning to the detail of the respective applications, it is convenient to provide a thumbnail sketch of the facts.

8 The charges related to a parcel containing 398.1 grams of heroin - addressed to a fictitious person, 'Lewis Burton', at 59 Alamanda Boulevard, Point Cook, Victoria - which was intercepted by Australian Customs in Sydney on 28 February 2011. The parcel had been imported from India. Within it were four cricket thigh pads in which the heroin was concealed. Australian Federal Police ('AFP') officers substituted the heroin with an inert substance and arranged for the parcel to be delivered to the Point Cook address.

9 On 3 March 2011, the parcel was delivered to the address. It was collected by ESO, who drove to a nearby street and disposed of the parcel's wrapping in an industrial bin. JO, who was nearby, was communicating with ESO by mobile telephone.

10 ESO, with the parcel, then drove in his vehicle, while JO followed in his. AFP officers intercepted ESO. JO did not immediately stop, but was intercepted by police further down the road. He was in possession of three mobile telephones and $2,000 in United States currency.

11 At trial, ESO's case was that, on 3 March 2011, he was in the Point Cook area in connection with his employment with a business, Solar Today. That employment involved him in providing quotes and looking at premises' suitability for conversion to solar energy. He picked up the parcel outside 59 Alamanda Boulevard, Point Cook, believing it was for the Salvation Army. ESO relied on his record of interview with police, and called no evidence in his defence.

12 JO's case was that he was merely going to meet ESO to pick up some medicine to treat his baby girl's colic. He, too, relied on his police interview, and neither gave nor called evidence.

13 Putting peripheral maters to one side, the essential issue for the jury in each applicant's case was whether they were satisfied beyond reasonable doubt that the particular applicant intended to take possession of a substance that 'he intended or knew to be a border controlled drug'.

14 There were 398.1 grams of substance containing heroin seized, 221.9 grams of which were pure heroin. The marketable quantity of heroin is 2 grams, so that the amount of pure heroin intercepted represented 110 times the marketable quantity. Evidence revealed that the wholesale value of the heroin was estimated to be between $101,120 and $142,200, while the value at street level was between $184,915 and $396,830.

15 ESO seeks leave to appeal against conviction on six grounds:

1. The trial judge erred in refusing the applicant's application for a separate trial from his co-accused.
2. The trial judge erred in admitting into evidence telephone data or texts from two telephones recovered from the applicant.
3. The trial judge erred in admitting into evidence matters and things, arising from and seized during the search of the applicant's room on 4 March 2011, including fingerprint analysis, data and records from the applicant's Lenovo laptop computer.
4. The trial judge erred in finding that continuity was established in relation to the parcel.
5. The trial judge erred in finding there was a case to answer, and failing to discharge the jury and direct that an entry of not guilty be made.
6. The verdict of the jury is unsafe and unsatisfactory.

16 With respect to sentence, ESO seeks to agitate seven grounds, as follows:

1. The sentence is manifestly excessive.
2. The non-parole period is manifestly excessive.

Particulars in relation to Grounds 1 and 2

(a) The sentencing judge failed to give sufficient weight to the applicant's prior good character;

(b) The sentencing judge failed to give sufficient weight to the applicant's good prospects of rehabilitation;

(c) The sentencing judge failed to give sufficient weight to the delay in the commencement of the trial; and

(d) The learned sentencing judge failed to give any or sufficient weight, to the distress caused to the applicant by his fiancée's distress.

1. The sentencing judge erred in her findings regarding the respective roles of the offenders, in particular that of the applicant.
2. The sentencing judge erred in finding apparently beyond reasonable doubt that:

(a) The applicant sent money to India for the drugs in question;

(b) The applicant tracked the parcel in question on his Lenovo laptop computer; and

(c) The applicant was in telephone contact with the co-accused about matters to do with the parcel beyond acting as a mere courier.

1. The sentencing judge erred in failing to apply, or properly apply, the six Verdins principles.
2. The sentencing judge erred in failing to apply, or properly apply, the law regarding the weight to be given to prior good character.
3. The sentencing judge erred in failing to apply, or properly apply, the principle of parity.

17 As I have said, JO seeks leave to appeal against sentence only. His grounds are:

1. The sentencing judge failed to have regard to the possibility of ordering that the applicant be made subject to a recognisance release order pursuant to s 19AB(2) of the Crimes Act 1914 (Cth) given that at the time of sentence he was 'not already subject to a non-parole period or recognisance release order in respect of a federal sentence'.
2. The sentencing judge erred by failing properly to apply the sentencing principle of totality that, in consequence, leaves the applicant with a justifiable sense of grievance and the imposition of a total effective sentence that is manifestly excessive.
3. By reason of fresh evidence obtained by means of an order made under s 317 of the Criminal Procedure Act 2009 (Vic), a different sentence ought be passed.

18 It is convenient to turn first to ESO's application with respect to conviction.

ESO's conviction ground 1 - Failure to order a separate trial

19 Counsel for the applicant submitted that there was a real risk of injustice as a result of ESO being tried with JO. There was, it was argued, a risk of guilt by association. Both applicants were of the same ethnic group, and this fact might have been given 'unfair weight'. Further, the evidence against JO was significantly different, and included evidence relating to the transfer of money; texts relating to the 'Burton' package; telephone calls to Pakistan, South Africa, Thailand and Nigeria; the parcel with drugs being sent to an address close to JO's home; and the circumstances of JO's arrest, including his failure to stop for police and his possession of $2,000 in United States currency.

20 The respondent contended that an indictment against co-offenders should be jointly tried unless to do so would prejudice the fair trial of an offender, or for any other reason a separate trial is appropriate.[4] This general rule is based on reasons of principle and policy, including the avoidance of inconsistent verdicts, reaching finality as expeditiously as possible, and avoiding multiple trials (with the associated inconvenience and cost).[5] The respondent submitted that both ESO and JO faced the same charge (albeit that JO was criminally liable as an aider and abettor, counsellor or procurer), and all of the evidence - other than the answers in their interviews and JO's alleged flight from the scene of his arrest - was admissible against each. With appropriate directions - which, it was submitted, the judge gave - there was no risk the jury would misuse the evidence. The grant of a separate trial to ESO, so it was argued, would not have cured any risk of guilt by association (if there was such a risk) when the bulk of the evidence - including JO's assistance - would have been admissible against him.[6] There was no apparent prejudice or embarrassment to ESO's defence by reason of being charged on the same indictment as JO. The judge properly refused to grant a separate trial.

22 Where two or more accused are charged with the same offence, the starting point is that they should be tried together.[7] Pursuant to s 193(3) of the Criminal Procedure Act 2009, the court may order that an accused, charged on the same indictment with another, be tried separately if 'a trial with the co-accused would prejudice the fair trial of the accused' or 'for any other reason it is appropriate to do so'. Before a separate trial is ordered, however, not only must there be substantial prejudice to an accused arising from a joint trial, but the prejudice must be of a kind not really amenable to nullification by judicial direction.[8]

23 Whether to order a separate trial is a matter within the discretion of the trial judge. The matters of public interest to be considered in all such cases are undoubted,[9] and were spelled out in Demirok:[10]

In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.

24 The ground of appeal asserts that the trial judge 'erred in refusing the applicant's application for a separate trial from his co-accused'. On its face, it is an attack on the exercise of the judge's discretion. The trial judge declined to order a separate trial on the basis of the depositions, and, self-evidently, without perfect knowledge of the course the trial would take. This Court now looks at the issue, however, against the background of the whole of the record of the trial, and may only intervene if the applicant satisfies the Court that due to an error or irregularity in or in relation to the trial, or for any other reason, there has been a substantial miscarriage of justice.[11] Guidance may again be derived from Demirok:[12]

When the judge's exercise of his discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how in the end it was conducted. This circumstance means that any review of the judge's discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge's decision aside and substitute a different view of its own unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was made on correct grounds and was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge's discretion miscarried, but simply that because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage.

25 I cannot see, first, that the judge wrongly exercised her discretion; or, secondly - having regard to the whole of the record of the trial - that it realistically can be contended that there has been a substantial miscarriage of justice.

26 When called upon to rule on ESO's application for a separate trial, the trial judge, having cited authority,[13] said:[14]

The case for the prosecution against both accused is a circumstantial one. It includes evidence of telephone records revealing that the two accused were in almost continuous telephone contact during the morning of 3 March 2011 when arrangements were made for the package to be delivered to an address close to Mr [JO's] home; that each accused had a number of phones allegedly to make contact with each other that night before the collection of the parcel; that the accused men made contact with overseas telephone numbers; that there was suspicious movements of both men on the day in question around the Point Cook area. This evidence is relied upon by the prosecution as circumstantial evidence to support the case that the accused men agreed to play roles, different roles, in the collection of the border controlled drug; that Mr [ESO] collected the parcel and Mr [JO] aided and abetted him in the commission of the offence.

Given the nature of this case it would be expensive and lengthy to hold separate trials. It is not a case where there are large amounts of significant differences in the prosecution case between Mr [ESO] and Mr [JO]. While there is some evidence which is admissible against Mr [JO] only, for example the alleged flight from the scene, the jury will be given an appropriate direction regarding this evidence and they will be given appropriate directions regarding any other evidence which is admissible against only one accused.

With respect to the submission that both men belong to the same ethnic group and that there is a risk in all the circumstances that this association might be given unfair weight I do not accept this submission. Given the small population of Nigerians in this country it is not surprising that people know each other and associate with each other.

27 The judge then referred to - and, in my view, correctly distinguished - the circumstances in Chami,[15] and continued:

As to the submission regarding good character evidence I do not accept that the fact that Mr [JO] is not in a position to rely on such evidence will cause prejudice to Mr [ESO]. The jury will receive appropriate direction as to how they can use good character evidence.

In conclusion in all the circumstances of this case and bearing in mind the public policy considerations, which support the desirability of there being joint trials where two persons [are] accused of the same crime, I do not consider that the interests of justice require that I grant Mr [ESO] a separate trial.

28 I detect no error in her Honour's ruling. She took into account all relevant considerations, and did not act on any that were irrelevant.

29 Moreover, having reviewed the record of the trial, I cannot discern any miscarriage of justice - substantial or otherwise - flowing from the joint trial of the applicants. The preponderance of the evidence in the case was admissible against both applicants. In context, very little was admissible solely against one applicant to the exclusion of the other. The judge gave impeccable directions to the jury on the need to consider the case against each applicant - and the evidence admissible against each applicant - separately. Those directions nullified any possible prejudice flowing to ESO from a joint trial.

ESO's conviction ground 2 - Admission of telephone data and texts

32 The judge admitted documentary evidence of telephone calls and texts to and from two mobile telephone numbers. One number was registered in ESO's name. The other number related to a SIM card contained in a Nokia mobile telephone found in ESO's possession when he was arrested.

33 Counsel for the applicant argued that telephone calls and texts relating to the two numbers could only be relevant insofar as they related to the period between first contact of the applicant and JO on 3 March 2011 and the time of their arrest. The trial judge, it was submitted, erred in failing to examine each record individually so as to determine its relevance, and so as to assess probative value and prejudicial effect. Counsel relied on ss 55, 135, 136 and 137 of the Evidence Act 2008. In oral argument, however, counsel conceded that there were no telephone records (beyond those upon which he specifically asked the judge to rule) which he had submitted to the trial judge were prejudicial. When pressed, the best argument counsel could muster was that it was 'hard to say' that the evidence of the telephone calls and texts could have been misused.

34 The respondent submitted that the judge, having heard detailed submissions on the specific telephone records sought to be relied upon by the prosecution, properly found the evidence to be relevant and admissible. There was no unfair prejudice to the applicant ESO arising from the admission of the evidence.

35 The short answer to this ground is that the judge considered each part of the evidence that she was asked to. She found that the evidence was relevant to a fact in issue, and that the probative value of the evidence was not outweighed by the risk of unfair prejudice. I detect no error in the judge's approach, and cannot see that any of the impugned evidence was wrongly admitted. In particular, insofar as it might have been suggested that the judge was required proactively to investigate the admissibility of pieces of evidence not specifically drawn to her attention by the parties, so as to determine the admissibility of each piece of evidence, such suggestion must be rejected. A judge in a common law trial is not an inquisitor.

ESO's conviction ground 3 - Admission of evidence seized during search of 4 March 2011

37 Although it was not articulated with much clarity in the applicant's written case, at the heart of this ground lies the contention that evidence derived from a laptop computer, seized by police in the course of a search of the applicant's premises, was obtained improperly or in breach of an Australian law. As I understand the submission, the applicant contended that, when the police seized the computer from the applicant's premises pursuant to a search warrant - the computer containing incriminating data[16] (the incriminating data being the tracking identifying number for the parcel containing heroin) - they could not have been satisfied that two of the conditions of the warrant had been satisfied. Thus the laptop computer had been improperly or unlawfully seized, and the evidence harvested from the improper or unlawful seizure ought to have been excluded at trial. Hence, so it was submitted, the trial judge should have excluded the evidence pursuant to s 138 of the Evidence Act 2008.

38 The particular evidence sought to be excluded related to data on an IBM ThinkPad Lenovo laptop computer located at, and seized from, the applicant's address at 15 Andrews Street, Sunshine, in the early hours of 4 March 2011. One might readily appreciate the sting in the evidence from the applicant's point of view. A tracking number for the parcel containing the heroin was found on the laptop computer - taken from the desk in his locked room, Room 2, at the searched premises - which, by his own admission, was a computer he used. It cannot be gainsaid that the evidence was significantly probative of ESO's knowledge of the parcel and its contents, and his intention to collect it from the Point Cook address.

39 Briefly, the prosecution evidence was that at 12.39 am on 4 March 2011, Federal Agent Debra Skewes, together with eight other AFP officers and a drug-sniffer dog, attended ESO's premises at 15 Andrew Street, Sunshine, and conducted a search pursuant to a warrant ('the first warrant'). During the search, at about 1:17 am, Skewes advised Federal Agent Neil Burnage that the search being undertaken at 15 Andrew Street was almost complete. Burnage directed Skewes to cease searching the property as he had become aware that ESO's name had not been included on the first warrant.[17] He gave evidence that when he was told that there were computers in Room 2 of the premises, he decided that it might be sensible to obtain another warrant. Once another warrant ('the second warrant') was obtained - which specifically included ESO's name - he and Skewes returned to the premises. At 3:59am Skewes used a key to open the door to Room 2, and they entered. Burnage saw a Lenovo laptop computer and two other laptop computers in the room. He seized the Lenovo laptop computer, an Asus laptop computer and an HP iPAQ laptop computer. He purported to do so pursuant to the second warrant - 'Search Warrant for Search of Premises' - which named him as the officer responsible for its execution.[18]

40 The Lenovo laptop computer was subsequently analysed by a forensic examiner. A computer program, CCleaner, which deletes records of recently accessed files and internet browsing histories, was found installed on the computer, although it could not be determined when the program had last been run. Analysis showed that a tracking identifier, ED212238005IN, was to be found in 'unallocated clusters'. That number was the reference number for the 'Lewis Burton' parcel containing drugs, which was sent to the Point Cook address.

41 As I have mentioned, the second warrant was issued to Burnage in the early hours of 4 March 2011. On its face, it was a 'Search Warrant for Search of Premises' under 3E of the Crimes Act 1914 (Cth). By its terms, it related to evidential material[19] which satisfied all of three conditions.[20] The First Condition described a range of items, including, 'Personal or laptop computers and peripheral devices'. By the Second Condition, the items in the First Condition had to relate to 'one or more of the following', including 'EMS Tracking Number ED212238005IN'. The Third Condition was that there be reasonable grounds for suspecting that the specified items relate to offences of importing a marketable quantity of a border controlled drug on 22 February 2011 and 1 March 2011.

42 In short compass, the applicant's counsel submitted at trial that the seized laptops did not fall within two of the conditions of the second warrant, and Burnage could not have had a bona fide belief or suspicion on reasonable grounds that they did so. As I follow it, the applicant conceded that the seized computers fell within the First Condition of the warrant, in that they fitted the description of things that were 'personal or laptop computers', so that the First Condition was satisfied. It was said, however, that the police could not properly have concluded that the Second Condition (containing subject-matter to which the things searched for were to relate) and the Third Condition (which described the suspected offences and the dates of their commission) were satisfied, without accessing the data on the computers (something which the police did not do at the time of the search). Thus the seizure of the computers was not justified by the warrant.[21] Ancillary to these submissions, counsel argued that a search warrant must be executed strictly in accordance with its terms;[22] and that officers of the AFP have no general right to seize property, and can only do so pursuant to some lawful authority.

43 The respondent submitted that the trial judge properly found that the seizing officer had reasonable grounds for suspecting the Lenovo laptop found in the applicant's room would afford evidence as to the commission of the offence. Reliance was placed on certain of the evidence of Burnage, who had seized the laptop. He gave evidence that he had been informed by colleagues that there had been electronic tracking of a series of items imported into Australia; he was looking specifically for a laptop or similar item that could be used for the purposes of electronic tracking; and there was information available to suggest the laptop would contain evidence regarding the electronic tracking of an imported parcel or parcels. Burnage also testified that police standing instructions were not to risk altering, destroying or losing evidence by turning on computers at the place of seizure if the officer was not familiar with their operation. Thus, the respondent submitted, the trial judge properly found that, in circumstances where Burnage had no appropriate training and qualifications, rather than attempt to operate the computer at the point of search, it was proper for him to seize the computer so that it could be examined by others more qualified.

44 Additionally, the respondent argued that the warrant's specification of suspected offences on dates that did not relate to the 'Lewis Burton' parcel was in the context of a disclosed investigation into multiple suspect parcels. The judge properly found the substance of the offences listed on the warrant was near enough to the offence ESO ultimately was charged with, and clearly indicated the nature of the search, such that the warrant was not invalid.

It seems to me on looking closely at the transcript of Mr Burnage, that he did have a reasonable suspicion that was attached to the computer items seized on the particular date, due to conversations that he had had with other officers involved in not just the alleged illegal importation of one package, but the alleged illegal importation of a number of packages.

...

It would appear to me that that investigation, once the reasonable suspicion is formed, the investigation of the computer would take place back at police headquarters by a duly authorised and qualified computer expert, who no doubt would have to do all sorts of wondrous things to access that computer without a code and to obtain the appropriate information. I considered the issue of the fact that the third condition in the warrant did not refer specifically to 28 February 2011. I do not see that as being a problem, in that the warrant does not have to be strictly correct as an indictment has to be.

It has to be substantially correct, and substantially what was being dealt with in this case is the suspected importation of a substance, whether it be the importation or the attempted possession of, is really here or there. The warrant was referring to the type of offence that was connected very much so to the actual offence that the accused was eventually charged with. As I said, it is in rough but I am ruling that the computer material can remain in.

46 Acknowledging that the judge's ruling is, as she said, 'rough,'[23] it seems clear that the judge found that Federal Agent Burnage suspected on reasonable grounds that the computers seized contained data falling within the terms of the warrant, and that examination of the computer by a computer expert would render the data accessible. In other words, her Honour was satisfied that Burnage believed himself to be acting within the terms of the warrant, and was not satisfied that there had been any deliberate impropriety on the part of the police. Further, her Honour thought that the Third Condition of the warrant sufficiently described the relevant offence, so that there was no improper or illegal conduct. These findings were, in my view, properly open to her. Indeed, they were obviously correct.

47 The applicant's contention that, unless police accessed data from the computers during the search, they could not have suspected on reasonable grounds that the computers contained evidential material in relation to an offence to which the warrant related, is untenable. Section 3L(1) of the Crimes Act 1914 (Cth) provides that the executing officer of a warrant 'may operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential material'. By its terms, s 3L(1) is permissive, not mandatory.[24] Burnage could have - but was not required to - operate the computer to access data stored on it. He was entitled to

seize the laptop if it was of the kind of evidential material[25] specified in the warrant;[26] or if he believed on reasonable grounds the computer to be evidential material to which the warrant related and that seizure was necessary to prevent its concealment, loss or destruction.[27]

48 Turning to the submission that the specification of the offence or offences in the Third Condition was inadequate, authority dictates that the question whether a particular specification is adequate must be approached in a broad and practical sense. There is no justification for an 'exact object' test. The terms of the warrant need to be viewed against the circumstances of the case, and in view of the principle that the warrant need only disclose the nature of the offence in such a way as to indicate the area of the search.[28] In my view, if the Third Condition is approached in that fashion, it must be seen to be adequate. The Third Condition described two importation offences - the first at Melbourne on 22 February 2011, and the second at Sydney on 1 March 2011 - in the context that the police investigation related to the importation of multiple suspect parcels. There seems little doubt that the heroin was imported from India within the 'Lewis Burton' parcel. Hence, it is of little moment, in my opinion, that the applicant ultimately was charged with attempted possession of the heroin, rather its importation.

49 Even were I satisfied, however, that it was open to conclude that there had been some technical breach of Australian law, I still would not uphold this ground. In my opinion, the desirability of admitting the evidence of the data located on the computer outweighed any suggested undesirability of admitting the evidence in light of the way it was obtained.[29] The probative value of the evidence, and its importance in proving the applicant's guilt, was significant, whilst the gravity of any suggested impropriety or contravention of law - in light of the judge's findings - was trivial.[30] Given the judge's findings, any impropriety or breach of law could not be said to be deliberate,[31] in that Burnage believed he was acting in accordance with the terms of the warrant.

ESO's conviction grounds 4, 5 and 6 - Lack of continuity of seized drugs and unsafe and unsatisfactory verdict

51 Grounds 4, 5 and 6 were argued together. No aspect of them, in my view, has any substance.

52 I should observe at the outset that, although ground 5 is that the trial judge erred 'in finding there was a case to answer, and failing to discharge the jury and direct that an entry of not guilty be made', the issue for the Court is not whether the judge should have upheld the applicant's submission of no case to answer, but rather whether, on all of the evidence, it was open to the jury to find the applicant guilty.[32]

53 Counsel for the applicant submitted that it is an element of the offence of attempting to possess a marketable quantity of a border controlled drug that, at the point of import, the substance was a border controlled drug, heroin. It was submitted that what was called 'continuity' was in issue. There was no direct evidence that the parcel had been imported into Australia. Next, it was submitted that other unknown persons had handled the parcel before it was seized by the authorities. There was no admissible evidence as to who had created or addressed the parcel, or how it got to the point of seizure. Further, so it was submitted, there were several breaks in the chain of continuity after the parcel was seized.

54 The respondent rejected the suggestion of any relevant lack of continuity. It was not the trial judge's role, the respondent submitted, to find that 'continuity was established'. Questions whether the relevant substance had been unlawfully imported, and whether it was a border controlled drug, were issues of fact for the jury to determine. There was abundant evidence to satisfy the jury beyond reasonable doubt that the parcel, and its contents, had been imported into Australia; and that the parcel contained a substance that was a border controlled drug. The respondent submitted that the absence of evidence from the exporter is not fatal to the jury finding the heroin was imported into Australia. Even if one were to accept the 'apparent breaks' upon which the applicant relied, none were consistent with a reasonable hypothesis that the heroin had been planted in the parcel by a third party, and that ESO and JO had intended to collect something other than a border controlled drug in the parcel at the Point Cook address.

55 Further, the respondent submitted that the judge had properly found that there was sufficient evidence for the jury to lawfully return a guilty verdict against the applicant, and so reject the 'no case' submission. When seeking to overturn the conviction as unsafe and unsatisfactory, so the respondent submitted, it is not sufficient to show there was material which might have led the jury to acquit. Having regard to the totality of the evidence, this was not a case, it was argued, where the jury must, as distinct from might, have entertained a doubt about ESO's guilt. Having regard to the totality of the evidence, it was well open for the jury to be satisfied beyond reasonable doubt of the charge.

56 In my opinion, the respondent's submissions must be accepted. To understand why this is so, it is necessary to canvass the evidence in moderate detail.

57 It was an agreed fact in the trial that on 17 and 18 February 2011, the applicant transferred $6,000 to Delhi, India, via two instalments from Sydney and one from Footscray.

58 About a week and a half later, on 28 February 2011, the parcel addressed to 'Lewis Burton' was intercepted by Customs Officer, Avtar Singh, at the Gateway Facility in Sydney, where Mr Singh examines goods that arrive from overseas (his job being limited to examining international parcels). All indicia on the parcel - including sender, seal and wrapping - showed that it had come from India.[33] Mr Singh gave evidence that parcels are presented for Customs examination by Australia Post, who load them onto the conveyer belt for x-raying. He did not know what happens to the parcels prior to him seeing them at the x-ray point.

59 Mr Singh said that, by use of an x-ray machine, he detected anomalies in the parcel. He took photographs of the x-ray images, showing the parcel's contents. Mr Singh then opened the parcel. He cut open a cricket thigh pad in the parcel, and took out a hidden package wrapped in carbon paper and brown tape. Having made an incision in the package, he found brown powder which he suspected was heroin. So as to prevent tampering, he repackaged the goods in a plastic bag, and affixed a Customs Seal number 1117165.

60 After he had sealed the parcel, Mr Singh handed it the same day to another Customs officer, Bradley Thomas. Mr Thomas signed an Evidence Transfer Form relating to the parcel and then secured it in a safe.

61 Later the same day, Xiao Yan Liang (a Customs officer at the Gateway Facility is Sydney), took the parcel from the safe and gave it to an AFP officer. She signed the Evidence Transfer Form and an AFP Property Seizure Record.

62 Federal Agent Timothy Underhill was present when Liang handed the parcel to Federal Agent Joanne Evans. He filled out the Property Seizure Record, number 3219020/001, and saw Evans fill out the Evidence Transfer Form. Underhill took the parcel to AFP Headquarters in Sydney, where he handed the parcel to Evans. He saw Evans put it into a locked safe at 6:45 pm.

63 On 1 March 2011, at 1:00 pm, Federal Agent Danielle Woodward went to the safe and retrieved the wrapped parcel bearing Property Seizure Record number 3219020/001. Woodward carried the parcel by air to Melbourne, where she locked it in a safe at AFP Melbourne Headquarters. She retained the key to the safe.

64 Woodward handed the key to the safe to Federal Agent Jarrod Phelan at 8:00 am on Wednesday, 2 March 2011. Phelan gave evidence that after Woodward gave him the key, he went to the safe and retrieved the parcel bearing Property Seizure Record number 3219020/001. He took it to Forensic Services, where he handed it to a forensics officer, Alison Hughes.

65 Ms Hughes gave evidence that she inspected an item bearing Customs Seal number 1117165. The Customs Seal was in place and did not appear to have been breached. Photographs were taken. One thigh pad in the parcel appeared to have been cut. It contained a package of powder. Powder was also hidden within the three other pads in the parcel. Ms Hughes took samples from each of the four packages containing powder. After mixing the bulk powder, Ms Hughes took two one gram samples from each package and added them to separate bags. What were described as 'A' samples were forwarded to the National Measurement Institute ('NMI') for testing, and the 'B' samples were retained in case of a defence request for alternate testing. The samples were placed in sealed Audit Bags. The 'A' samples were placed in Audit Bag number B522891.

66 On 2 March 2011, Jarrod Phelan collected item number 3219020/001 from Alison Hughes, and lodged it with Drugs and Property. Kevin Paslawskyj, the Drugs and Property Registrar, received item number 3219020/001 from Phelan at Drugs and Property and secured it in the Melbourne Drug Vault.

67 Mr Paslawskyj sent item 3219020/001 to NMI in Sydney on 9 March 2011. He placed the item in a 'secure satchel' and then a canvas bag number 276 containing a traceable seal. He gave the bag to TNT driver, Malcolm Chierra. Mr Chierra signed a consignment note given to him by Paslawskyj at AFP Headquarters, and placed it into a TNT Failsafe Bag. He took the bag to the TNT Depot for consignment to Sydney.

68 The next day, 10 March 2011, Jim Moutopoulos, took bag number 276 out of TNT's Depot cage in Sydney. He checked the seal numbers and delivered the bag to NMI in Pymble. Ananta Bhattarai received Audit Bag B522891 from Mr Moutopoulos at the NMI. The seal was intact. He broke the seal, conducted testing, and detected heroin of a specified purity.

69 After Alison Hughes had examined the parcel and collected samples, police reconstructed the 'Lewis Burton' parcel to resemble the way it originally looked.

70 In the afternoon of 3 March 2011, the reconstructed parcel was delivered to 59 Alamanda Boulevard, Point Cook. ESO was filmed by police collecting something from the address at 3:15 pm. He was seen at 3:19 pm in Baltic Court, near where the wrappings from the parcel were later found discarded. When he was arrested shortly afterward, at 3:30 pm, items matching the contents of the parcel and its wrapping were found in the applicant's car, he being the sole occupant.

71 From the evidence that I have outlined, in my view it was open to the jury to infer that the parcel containing the heroin had been sent from India, and had not been tampered with before being examined by Mr Singh using the x-ray machine. It matters not one whit, as the applicant's counsel seemed to submit, that the identity of the person who sent the parcel was not established.

72 Following Mr Singh's examination of the parcel, the evidence reveals, in my view, an unbroken chain of custody, such that it would be wholly unrealistic to hypothesise that some person unknown might have tampered with the contents of the package before the 'A' samples reached NMI.

73 Having carried out my own independent assessment of the evidence, in my view it was well open to the jury to be satisfied of the applicant's guilt. There is nothing in the evidence concerning 'continuity' that must have compelled the jury to acquit. Indeed, so far as I can see, there is nothing in the evidence of continuity that rationally might have caused the jury to entertain a reasonable doubt about the integrity of the continuity of the parcel's contents.[34]

Conclusion on ESO's grounds relating to conviction

75 None of the grounds relating to conviction can be upheld. ESO's application for leave to appeal against conviction must be refused.

ESO's application for leave to appeal against sentence

Manifest excess and the applicant's role - Grounds 1, 2 3 and 4

76 Sentencing practices for the offence of attempting to possess a marketable quantity of a border controlled drug, heroin, were recently examined in Chan.[35] In that case, the applicant Hong Hoc Tan, attempted to possess a quantity of imported heroin of 340.5 grams, 245.5 grams of which was pure. The applicant, Chuan Wei Chan, attempted to possess both that quantity of heroin, and another imported quantity of 351.4 grams, 241.4 grams of which was pure. (The amount in the present case - 398.1 grams of substance, 221.9 grams of which were pure heroin - is comparable.) As opposed to the applicants, both Tan and Chan pleaded guilty. Tan was sentenced in the County Court to be imprisoned for six years, upon which a non-parole period of four years was fixed. Chan was sentenced to be imprisoned for seven years on each of two charges. With some cumulation, Chan's total effective sentence was eight years and six months' imprisonment, upon which a non-parole period of six years and three months was fixed. I refused each leave to appeal against sentence.[36] Ultimately, however, each succeeded on appeal. Tan's sentence was reduced to five years' imprisonment, with a non-parole period of three years. On each charge Chan faced, sentences of six years' imprisonment were imposed. With cumulation, the same total effective sentence of eight years and six months' imprisonment was imposed, but his non-parole period was reduced by three months, to six years.

77 In Chan, the Court, as I have said, considered current sentencing practices for the offence of which ESO and JO were convicted.[37] By reference to current sentencing practices - and, of course, by reference to the individual facts of each case - the Court determined that the individual sentence of six years' imprisonment in Tan's case was manifestly excessive; as were individual sentences of seven years' imprisonment for each offence that Chan faced. Individual sentences of five years' and six years' imprisonment were substituted. Although sentences are not precedents which must be followed unless distinguished,[38] and, axiomatically, each case must turn on its own facts, a general overview of sentences imposed for offences of a similar character may play a part in informing the instinctive synthesis,[39] particularly insofar as it may provide a general guide to current sentencing practices.

78 Having regard to current sentencing practices for attempting to possess a marketable quantity of heroin in an amount similar to that in this case, one does not instinctively draw back from the head sentence of five years and nine months' imprisonment imposed on each applicant, particularly when those sentences have not been the subject of the ameliorating effect of a plea of guilty. That does not, of course, foreclose argument that the sentences are, as a result of the individual features of the case, manifestly excessive. As a matter of first impression, however, and without examination of the relevant features in aggravation and mitigation, the sentences do not strike one as outside the appropriate range.

79 The applicant was found guilty, after a contested trial, of a serious offence. Some indication of the seriousness with which the legislature views the offence may be gauged by its maximum penalty, 25 years' imprisonment. The sentencing judge was required to impose a sentence that reflected the seriousness of the offence; justly punished the applicant; denounced his conduct; and appropriately heeded the need for specific and general deterrence.

80 In assessing these matters, due weight must be given to the fact that the sentencing judge presided over a trial which occupied forty sitting days. It is to be expected that during that period she had gained a deal of insight into the offenders and the offending, and enjoyed some advantages that this Court does not. So far as I can see, when sentencing ESO, the judge took into account matters relevant to the offence, including that: the applicant was actively involved in planning for, and obtaining possession of, the heroin after its importation into Australia; there was no evidence of what was to happen with the heroin after its collection in Point Cook; the offending was motivated by financial reward; although not at the top of the range, the heroin that the applicant attempted to possess was 110 times the applicable marketable quantity; and the heroin was of relatively substantial value (between $101,120 and $142,200 wholesale, or $184,915 and $396,830 at street level).

81 Her Honour, recognising the difficulties in ascribing role, thought the applicant's involvement to be greater than that of a courier. Given the nature of the offence and its circumstances, the applicant had to be sentenced on the basis that he attempted to possess the parcel believing that it contained a substantial quantity of a border controlled drug. In oral argument, counsel for ESO criticised the judge's findings as to role. He had submitted to the sentencing judge, as the judge noted, that ESO's role was 'at the lowest level, that of a courier collecting the parcel at the behest of others'; and that JO was 'involved at the level above'. Her Honour rejected these contentions, and found that ESO's role was 'greater than that of a mere courier'. She relied on 'all the evidence relating to [his] role in this matter including the sending of the money to India, the tracking of the parcel on the Lenovo laptop computer in [his] possession, [and his] phone contact with [JO] on and around the date [he] collected the parcel'. The only reasonable inference that could be drawn from the evidence, the judge said, was that the applicant was 'actively involved in the planning regarding obtaining possession of the parcel containing the drugs'.

82 Counsel argued that the judge could not, on all of the evidence, have been satisfied that his client's role was more than that of courier. This was a wholly unrealistic submission. The circumstantial evidence pointed inexorably to the conclusion that he had a much greater role than a mere courier, and that his actions were instrumental in obtaining the parcel which he thought contained a significant quantity of illicit drugs. As Redlich JA observed in Pham:[40]

[I]t will be useful in some circumstances to distinguish the positions occupied by offenders within a hierarchical criminal organization as a means of determining the offender's level of culpability. For example a courier will generally attract a more lenient sentence than a principal within a criminal drug hierarchy. The characterization of an offender's position may not always illuminate and may sometimes obscure the actual level of criminality of the offender assessed by reference to his conduct.[41] Where the evidence establishes the acts performed by the offender and their position within the criminal organization, the offender's criminality is to be assessed by a consideration of both the actions of the offender and the role he occupies within the organization.[42]

83 Moreover, it seems to me that the judge properly took into account all matters personal to the applicant, including: his age (he was born on 12 July 1968, and is now aged 47 years) and background; his lack of prior convictions; his otherwise prior good character (character witnesses describing him as an active, hard-working and well-regarded member of the community); courses completed by the applicant whilst in custody; that he suffered from depression, anxiety, panic attacks and suicidal thoughts, which would have an impact upon his time in custody; that he had good prospects of rehabilitation; given that he had no family in Australia, and his fiancée was in Nigeria, his isolation in custody; and the delay in the proceeding.

84 Notwithstanding these factors in mitigation, the applicant suffered no drug addiction, mental illness or other problem that might have explained his offending. His motive for offending solely was profit. There was no mitigation available based on a plea of guilty, remorse or co-operation with authorities.

85 In light of the above, I am wholly unconvinced that the sentence imposed could properly be described as manifestly excessive. Nor am I persuaded that any of the other complaints ESO raised by his grounds are capable of being made out.

86 As to ESO's mental condition, her Honour rejected the submission that the first five Verdins[43] principles had any application to ESO's situation. She did not err in that regard. That said, it is, perhaps, a little curious that her Honour expressed herself by saying that she was not satisfied that 'the first five principles set out in Verdins apply to moderate general and specific deterrence'[44] - since not all of the first five principles address those aspects[45] - but sentencing remarks ought not be read as if a statute or a deed. The judge's central finding was that the applicant had 'failed to establish a causal link between [his] depression and [his] offending'. As I have noted, the judge took into account that, in a general sense, the applicant's depression, anxiety, panic attacks and suicidal thoughts, would make incarceration more onerous.[46] But the judge rejected the submission that there was sufficient evidence to find that the applicant's depression compromised his judgment with respect to the offending, in circumstances where he had not discussed the reasons for his offending with his treating psychologist, and the psychologist was unable with confidence to diagnose the applicant retrospectively, or to draw direct links between any depression and the offending. It was open to her Honour to do so.

87 A clinical psychologist, Dr Paul Grech, had examined ESO and reported on his condition. When called to give evidence on the plea, he said he knew of the issues raised by Verdins. Although he was of the opinion that ESO was suffering from clinical depression during the period of the offending, 'there wasn't enough evidence to discern a post-traumatic stress disorder'. In cross-examination, having been asked whether he could draw any direct links between ESO's diagnosis of clinical depression and the offending - given that the applicant refused to discuss the offending - Dr Grech said the refusal 'makes it extremely problematic'. In this Court, counsel for ESO contended that, despite his client's refusal to discuss the circumstances of the offending with Dr Grech, and despite Dr Grech's inability to link ESO's offending to his depression, nonetheless the judge was wrong in failing to conclude that ESO's depression was operative at the time of the offending in such a way as to reduce his moral culpability. This submission was, it must be said, hopeless. The applicant bore the burden of persuasion with respect to all of the Verdins issues. He failed to produce any material upon which the judge properly could have resolved the particular issue in his favour. Indeed, had the judge determined that there was a link between the applicant's condition and the offending - there being no evidence justifying that conclusion - she probably would have fallen into appealable error.

88 With respect to previous good character, ESO urged that the judge erred in her approach. I do not agree. There is nothing in the sentence imposed, or in the judge's reasons for sentence, which would lead me to conclude that the judge paid insufficient regard to ESO's lack of prior convictions and to his previous good character. It was not wrong of the judge to observe that less weight might be given to good character in cases like the present because of the objective seriousness of the offending, and the likelihood that those without prior convictions are more likely to avoid the suspicions of authorities.[47]

89 Finally, in my opinion the judge did not err in the manner in which she dealt with the question of parity. She took into account JO's prior convictions (which were of limited relevance), his subsequent conviction and the fact of his offending whilst on bail. These factors were, however, balanced against the impact of JO's mental health (and other health issues); the period of time he had spent in custody beyond his initial non-parole period; and the need for the application of the principle of totality when imposing an additional sentence and in setting a new non-parole period. I see no basis for ESO entertaining any justifiable sense of grievance, or for otherwise concluding that the sentence imposed is excessive or unjust.[48]

90 It was open to the judge to find that there was no clear distinction between the role of ESO and that of JO. The evidence tended to show that they had complementary roles, and shared in the planning of the offence and collection of the drugs. Although JO had earlier been involved in similar offending, ESO had supported him and had given evidence at his bail application. JO physically distanced himself from the package and its collection, but ESO had worn clothing to avoid detection whilst retrieving it. Further, ESO had transferred money overseas; communicated with others; tracked the parcel; and retrieved the drugs and kept possession of them after the parcel's collection. ESO's sending of money to India; his texting of the transfer details to others; his use of the computer to track the parcel; his use of several mobile phones; and his wearing of clothing of a solar energy company to avoid detection, were all relevant to determining ESO's role vis-à-vis JO, and whether he was to be sentenced as a mere 'courier' (or someone at the lower level of offending). In my view, it was open to the judge to reject the submission that ESO was involved at a low level, and that his role was subservient to that of JO. Indeed, given the state of the evidence, any different finding would have been surprising.

Conclusion on ESO's grounds relating to sentence

91 I would not uphold any of ESO's grounds relating to sentence. His application for leave to appeal against sentence should be refused.

JO's application for leave to appeal against sentence

92 At the time of committing the instant offence with ESO in February and March 2011, the applicant was on bail for an earlier drug offence, committed less than a year earlier.

93 Between 9 July 2010 and 16 August 2010, the applicant attempted to possess five packages containing illicit drugs. Packages were sent from Nepal, Bangladesh, Thailand, the Philippines and Argentina, to false names at both false and legitimate addresses in Melbourne. Contained in the packages was a total of 1,355.6 grams of heroin (491.3 grams of which was pure heroin), and 97.3 grams of cocaine (69.7 grams of which was pure). Evidence showed that the total street value of the drugs ranged from $436,916 to $846,712.

94 Based on these facts, the applicant pleaded guilty in the County Court to one charge of attempting to possess a marketable quantity of a border controlled drug; and, on 28 October 2011, was sentenced to be imprisoned for six (6) years, upon which the judge fixed a non-parole period of three (3) years and six (6) months ('the first sentence'). Pre-sentence detention ('PSD') of 325 days, not including the day of sentence, was declared as having already been served under the sentence.

95 As I have mentioned, following a contested trial relating to the offence of attempting to possess a marketable quantity of a border controlled drug committed with ESO, on 25 August 2014 the applicant was sentenced to be imprisoned for five (5) years and nine (9) months ('the second sentence'). The judge sought to make part of the second sentence cumulative on the first; and also sought, in effect, to impose a new global non-parole period. Unhappily, and as the respondent fairly concedes, in an attempt to perfect her intention, the judge erred in the structure of the sentence, in the manner I will shortly discuss. Consequently, the respondent concedes that the Court must allow the appeal to the extent necessary to permit correction of the error.

96 The judge, as I have said, on 25 August 2014, imposed a sentence for the February-March 2011 offending of five (5) years and nine (9) months' imprisonment. Her Honour's expressed intention was that 'three years of that sentence is to be cumulative' on the first sentence. In other words, the judge intended that the overall sentence for the two sets of offending would be in the order of nine (9) years' imprisonment (presumably being nine years from the date of the first sentence, 28 October 2011).

97 Further, the judge also purported to fix a new 'global' non-parole period of six and a half (6½) years' imprisonment referable to what she thought to be the total effective sentence of about nine (9) years' imprisonment (arrived at, as I have said, through partial cumulation of the second sentence on the first). The commencement date for both the sentence that the judge imposed, and the new global non-parole period, was expressed to be 25 August 2014.

98 It seems from her Honour's remarks that it was the judge's intention that the applicant serve 'slightly less than 3 years' - 'I think it works out to be about 2 years and 9 months or something like that' - before being eligible for release on parole. (A full three years from the date of the second sentence - without PSD - would have been to 24 August 2017; and a full two years and nine months from the date of the second sentence - without PSD - would have been to 24 May 2017.) To that end, as I have mentioned, the judge purported to impose a new non-parole period of six and a half (6½ ) years. Her Honour then declared PSD of 1,384 days.

99 At the risk of repetition, at the time the second sentence was imposed the applicant was already serving the first sentence - six (6) years' imprisonment - imposed on 28 October 2011 for another federal offence. A non-parole period of three and a half (3½) years had been fixed on that sentence. Since the judge had declared PSD of 325 days, the practical effect was that the applicant was eligible for release on parole on 6 June 2014. (Parole was, however, refused on 21 May 2014, partly as a result of the applicant's conviction by the jury on 23 April 2014.)

100 When the new non-parole period of six and a half (6½) years was fixed with respect to all federal offences on 25 August 2014, the judge declared PSD of 1,384 days. This was an error. The orders had the effect that the total effective sentence for the two sets of offending would be complete on 27 April 2020, yet the new non-parole period notionally would not be complete until 24 February 2021. (In other words, the effect of the orders was that the minimum term would exceed the head sentence.)

101 Further complicating the matter, the judge attempted to amend her sentencing orders on 28 August 2014. The revised orders indicated that the second sentence was to be cumulated on the first. In error, however, it was stated that the second sentence was to commence on 29 October 2017, and the new single non-parole period of six and a half (6½) years on 25 August 2014. Once the error was recognised, the court again convened so as to attempt to remedy the orders, resulting in the original orders being confirmed on 18 September 2014.

102 During the mention on 18 September 2014, in the course of discussion with the prosecutor, it became clear that the judge intended that the applicant's earliest possible release date should be 12 May 2017. The judge wished to structure her orders in such a way that JO's parole period would expire on 12 May 2017, and that he be eligible for release on that day. In the circumstances, it is appropriate for this Court to make orders that give effect to her Honour's intention.

103 The respondent concedes that the judge erred in the formulation of her orders, and in particular, the manner of fixing the new non-parole period and the declaration of 1,384 days PSD. On the plea hearing it had been agreed that the applicant had served a total of 25 days in relation to the charge which was declared as PSD. This related to a period between 3 March and 29 March 2011, when the applicant was on remand for the later offending, and not in custody in relation to the earlier offence. By the time the judge came to pass sentence, this period had increased to 27 days. When setting a new non-parole period on the first and second sentences, the judge correctly declared 27 days PSD. Error arose, however, when a further 1,032 days was added (relating to the period of time the applicant had served under his first sentence), together with another 325 days (a re-declaration of the original PSD). To achieve the judge's intention, the respondent submitted, it would have been appropriate for the judge to set the new non-parole period of six and a half (6½) years to commence on 28 October 2011, and declare PSD of 27 days. The earlier declaration of 325 days PSD would remain effective on the new non-parole period thus fixed.

104 In light of the respondent's concessions, it is, as I have said, appropriate - at the very least - for the Court to intervene so as to give effect to the judge's stated intention.

105 JO contends, however, that - no matter the judge's intention - as a result of sentencing error or fresh evidence this Court should make orders so as to reduce his sentence. With that in mind, I turn to the applicant's grounds of appeal, and the overarching question whether the applicant's sentence ought otherwise be reduced.

Ground 1 - Failure to consider a recognizance release order

106 The prosecutor had submitted to the sentencing judge - wrongly - that it was not open to fix a recognizance release order with respect to the sentence of imprisonment she imposed.

107 In this Court, the respondent conceded that the judge had been misled. The effect of s 19AD(4) of the Crimes Act 1914 (Cth) is that a recognizance release order cannot be fixed where an offender is subject to an existing non-parole period. In error, the prosecutor informed the judge that the respondent was, at the time of sentence, subject to an existing non-parole period. The non-parole period imposed in the County Court on 28 October 2011 had, however, expired, so that s 19AD(4) did not apply. Instead, s 19AB(2) of the Act applied; so that the sentencing judge had the choice either of fixing a single non-parole period in respect of all federal offences, or fixing a recognizance release order.

108 Although I accept that the respondent's concession is properly made, and that the judge was misled, that cannot avail the respondent. In my opinion, it would not have been appropriate to fix a recognizance release order in preference to a non-parole period in light of the seriousness of the offending and - particularly in light of the earlier offence having been committed in breach of bail - the need for supervision upon release by parole authorities. The applicant's prospects of rehabilitation depended to some extent on him being subject to treatment. Such treatment is best imposed and monitored by the Parole Board. Further, so far as is appropriate, there is a need to maintain parity with ESO.

110 Undeterred by his arrest for remarkably similar offending - which led to him being held in custody from 16 August 2010 until granted bail on 6 December 2010 - the applicant committed the offence with which the present application is concerned within three months of his release. The commission of the offence whilst on bail was an aggravating feature.[49]

111 I fail to see that the individual sentence of five (5) years and nine (9) months' imprisonment infringed the principle of totality, in circumstances where the offending occurred whilst the applicant was on bail, and the sentence was not subject to the ameliorating effect of a plea of guilty.

112 Indeed, the sentencing judge paid specific attention to totality. She said that what she sought to achieve was that the applicant 'basically serves the same time with a little bit of variation, given the principle of totality', as ESO. Her Honour's intention was that the applicant be eligible for release on parole in 'about 2 years and 9 months or something like that', and 'that takes into account the principle of totality of course because he has already served a long period'.

113 Insofar as her Honour thought that the applicant should serve a further period of about two years and nine months in custody before being eligible for conditional release, that was a view that was open in the proper exercise of discretion. Quite plainly, the judge was acutely aware of the need to apply the principle of totality. As I have said, however, the structure of the judge's orders was not apt to carry her intention into effect. For that reason, intervention is warranted. But I would not uphold the contention that the judge failed to apply the principle of totality.

115 On the plea, the judge received a number of reports. Included were a report of Dr Lester Walton, consultant psychiatrist, dated 10 October 2011; and a report from Ms Catherine Ly, psychologist, dated 18 October 2011. Both of these reports had been prepared for the proceedings in which the applicant was sentenced on 28 October 2011. The judge also received three progress reports, dated 13 January 2011, 24 February 2011 and 22 March 2011, prepared as part of the Court Integrated Services Program, pursuant to which the applicant's mental health and drug use was managed whilst he was on bail for the 2010 offending. There was also a more recent report from Ms Angeline Swan, forensic psychologist, dated 27 July 2014. Ms Swan had assessed the applicant for the purposes of his plea to the offence with which the present application is concerned.

116 In her reasons for sentence, the judge noted that Dr Walton had assessed the applicant as qualifying for a diagnosis of post-traumatic stress disorder of moderate severity, triggered by the applicant's childhood exposure to military activities and certain abuse that he had suffered. The judge also noted that, when sentencing the applicant in October 2011, the judge moderated both general and specific deterrence, took into account that imprisonment may worsen the applicant's post-traumatic stress disorder and that the 'disease' would involve greater hardship to the applicant than for a person not suffering from that condition. Her Honour also observed that Ms Ly recognised a need for the applicant's post-traumatic stress disorder to be treated. He had, however, only undertaken six sessions of treatment before re-offending. Importantly, the judge acknowledged that Ms Swan was also of the opinion that the applicant suffered from post-traumatic stress disorder, together with a major depressive disorder and difficulties in managing feelings of anxiety. Ms Swan reported that the applicant's mental health issues had increased significantly during his incarceration, including experiencing auditory hallucinations. Her opinion was that the applicant's mental health was likely to worsen should he receive a further period of imprisonment.

117 When imposing sentence, the judge further observed:[50]

Given that your treatment was not completed in the relatively short time frame between the committing of the respective offences and given the psychiatric opinion that I have just referred to, on balance I accept that when you reoffended your mental condition continued to impair your judgment.

I also accept that your mental health and the disease that you suffer from would make imprisonment and are in fact making imprisonment more onerous for you than it would be for someone of normal health. Consequently, as did [the earlier judge], I moderate general and specific deterrence to some degree. However in sentencing you I must take into account of course that you committed the same offending while on bail and I take this into account as an aggregating feature.

118 It is plain that the judge regarded the applicant's judgment as impaired at the time of offending, and moderated general and specific deterrence as a result. It is also plain that the judge thought that the applicant's condition would make imprisonment for him more burdensome than for someone of normal health.

119 In this Court, the applicant's counsel relied substantially on progress notes obtained from Justice Health concerning the applicant's mental health since being sentenced in August 2014, to demonstrate that the applicant's condition had deteriorated in recent times. Thus, for example, in January 2015 a psychiatrist noted that the applicant's condition had 'worsened over the past month'. The applicant 'stated hearing multiple voices now', and he 'felt low in mood'. The psychiatrist's previous impression was that post-traumatic stress syndrome was the 'primary diagnosis', but that 'his current presentation has emergence of symptoms indicative of a depressive and psychotic nature'. Other entries in the progress notes also record the applicant's complaints of auditory hallucinations.

120 Moreover, in this Court the applicant also relied on a report from Dr Adam Deacon, consultant psychiatrist, dated 24 April 2015. When he interviewed the applicant via videolink to Loddon Prison on 24 April 2014, Dr Deacon observed a remarkable episode, which he described as follows:

Mr [JO's] mental state promptly altered after about forty-five minutes into the assessment. He suddenly became mute and his eye gaze diverted to his left side. He lost conscious awareness of his surroundings and he lost balance, almost resulting in him falling off the chair he was sitting on. As his head rolled around his eyes had rotated backwards with only the whites of his eyes being observed. He recovered conscious awareness after about two minutes, but he was remarkably vague and unaware of his surroundings. He promptly responded to auditory hallucinations, diverting his attention to his right and left side, whilst verbally responding to the hallucinations. He slowly recovered and apologised for the interruption. He asked if I could hear the voices talking to him. The voices were commenting, 'You you you' and also told him that he shouldn't listen to me or do anything for me. He confirmed that he regularly experienced similar changes in his mental state, although he could not understand or recall what had specifically occurred. This episode appeared to be consistent with disassociation, but complicated by the presence of psychotic symptoms.

Mr [JO] has continued to experienced Post Traumatic Stress Disorder symptoms in prison, including intrusive flashbacks and nightmares, and associated anxiety. He has also been afflicted with severe depression, although it has varied in intensity over time.

Mr [JO] has persistently experienced auditory hallucinations whilst in prison. The voices have been derogatory and commanding in quality. He has been troubled by voices telling him to harm himself and others. He has struggled to resist responding to the voices.

Mr [JO's] most likely diagnosis is severe PTSD with associated severe depression and auditory hallucinations, but he may have also developed an associated or independent enduring psychotic disorder. A further differential diagnosis is severe depression with psychotic features. It is entirely possible that Mr [JO] had multiple comorbidities. It is unusual for severe trauma to cause psychosis, but it is recognised as a psychiatric phenomena, and I am familiar with some clinical cases in my experience working with war veterans. It can sometimes be difficult to differentiate a psychotic disorder such as schizophrenia from a psychotic disorder secondary to severe PSTD, but particularly when assessment is not conducted in a hospital setting.

Mr [JO] ideally requires a hospital admission for further psychiatric assessment and diagnostic clarification. This is indicated given the complexity of his presentation, need for closer monitoring, and initiation of tailored treatment. Having worked for many years in prison settings, I am familiar with the limitations of prison outpatient psychiatric reviews, as they do not provide the opportunity for adequate thorough assessment. ...

122 In imposing sentence, the judge had before her the report of Ms Swan which included the applicant's suffering from auditory hallucinations. Ms Swan had also reported the applicant's post-traumatic stress disorder, together with his major depressive disorder and anxiety. She reported that the applicant's mental health issues had increased significantly during his imprisonment, and her opinion was that the applicant's mental health was likely to worsen should he receive a further period of imprisonment. The judge took these matters into account. She moderated general and specific deterrence accordingly, and concluded that the applicant's condition would make custody for him more burdensome than for others. These factors were - given the applicant's offending whilst on bail for a similar offence, and given the applicant's conviction after a trial - adequately reflected in the sentence imposed. The individual sentence was lenient, and the intended cumulation moderate. The material which has come to light since the sentence was imposed does not alter those conclusions.

Conclusion on JO's grounds relating to sentence

124 None of JO's grounds of appeal can be upheld; but, as I have said, the respondent concedes that the structure of the judge's sentence was not apt to perfect her intention, which was that JO should be eligible for release on 12 May 2017.

125 Having received further written submissions, it seems that the most convenient way of giving effect to the judge's intention is to order the applicant to be imprisoned for a period of five (5) years and nine (9) months, such sentence to commence on 25 August 2014; and, with respect to all federal offences, to fix a new global non-parole period of six (6) years and six (6) months' imprisonment, to commence on 28 October 2011. PSD of 27 days should be declared. For the avoidance of doubt, the Court should indicate its intention that the period of 325 days is to be taken as PSD served in relation to the sentence imposed on 28 October 2011.

126 I would thus grant JO leave to appeal against sentence, allow the appeal, set aside the sentence imposed in the County Court on 25 August 2014 and make orders to give effect to the above.

127 For the foregoing reasons ESO's applications for leave to appeal against conviction and sentence should both be refused.

128 JO's application for leave to appeal against sentence should be granted and the appeal allowed. I would make orders as proposed above.[51]

[1] Criminal Code (Cth) s 307.6(1), s 11.1(1). The maximum penalty is 25 years' imprisonment (or 5000 penalty units, or both).

[2] The prosecution's case was that JO had aided and abetted ESO in the commission of the offence.

[3] See below, [125].

[4] Criminal Procedure Act 2009, ss 193(2) and (3). See also s 170(2).

[5] R v Alexander and McKenzie [2002] VSCA 183; (2002) 6 VR 53, 63 [25]-[26] (Winneke P) ('Alexander').

[6] R v Chami [2002] NSWCCA 136; (2002) 128 A Crim R 428, 431 (Ipp AJA, Sully and Bell JJ) ('Chami').

[7] Criminal Procedure Act 2009, s 170(2). See also R v Grondkowski & Malnowski [1946] KB 369; R v Demirok [1976] VicRp 19; [1976] VR 244; R v Torney (1983) 8 A Crim R 437; Collie, Kranz and Lovegrove v The Queen [1991] SASC 2996; (1991) 56 SASR 302 ('Collie'); Webb v R [1994] HCA 30; (1994) 181 CLR 41, 88-9 (Toohey J); Alexander, 67 [31] (Winneke P); R v Ferguson [2009] VSCA 198; (2009) 24 VR 531, 587 [310] (Maxwell P, Buchanan and Weinberg JJA) ('Ferguson').

[8] R v Jones & Waghorn (1991) 55 A Crim R 159, 164 (Crockett J); Ferguson, 587 [310]. See also R v Gibb & McKenzie [1983] VicRp 78; [1983] 2 VR 155; R v Ditroia & Tucci [1981] VicRp 28; [1981] VR 247.

[9] Compare Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81, 90 [25]-[32] (Pullin JA).

[10] R v Demirok [1976] VicRp 19; [1976] VR 244, 254 (Young CJ, Lush and Crockett JJ) ('Demirok'). See also Collie, 308-10 (King CJ).

[11] Criminal Procedure Act 2009, s 276(1).

[12] Demirok, 251. See also Collie, 310.

[13] Including Alexander and R v TJB [1998] 4 VR 621.

[15] See above, n 6. The circumstances of Chami are markedly different from the present case. In that case, five men of the same ethnic group had been charged with a series of 'brutal, cruel, callous and horrifying' rapes and sexual assaults. Two men, who were not involved in all of the relevant incidents, were given separate trials following an interlocutory appeal, for reasons including the 'risk of guilt by association'.

[16] See the definition of 'data' and 'data storage device', and of 'data held in a computer', in s 3(1) and s 3C(1) respectively of the Crimes Act 1914 (Cth).

[17] See Crimes Act 1914 (Cth), s 3E(5)(b).

[18] See Crimes Act 1914 (Cth), s 3E(5)(d).

[19] See Crimes Act 1914 (Cth), s 3E(5)(c), and the definition of 'evidential material' in s 3C(1).

[20] See Dunesky & Anor v Elder & Ors; Edney v Elder [1994] FCA 1006; (1994) 54 FCR 540, 550, 556 (Lockhart, Beaumont and Hill JJ), and Harts Australia Ltd & Harts Pty Ltd v Commissioner, Australian Federal Police (1997) 75 FCR 145, 153 (Hill, Cooper & Whitlam JJ), with respect to 'three condition' warrants.

[21] Counsel cited Different Solutions Pty Ltd v Commissioner, Australian Federal Police (No 2) [2008] FCA 1686; (2008) 190 A Crim R 265, 298 [148], 300 [164]-[166] (Graham J) ('Different Solutions'); Trimboli v Olney (No 2) [1981] 2 NSWLR 466 (Moffitt P, Hope and Hutley JJA agreeing).

[22] Citing Allitt v Sullivan [1988] VicRp 65; [1988] VR 621, 638 (Brooking J); Crowley v Murphy [1981] FCA 31; (1981) 52 FLR 123; Slaveski v State of Victoria [2010] VSC 441.

[23] That is not a criticism. The submissions suggesting that evidence was improperly or illegally obtained were not, as they should have been, made pre-trial. My distinct impression is that they were developed in a somewhat lackadaisical and unstructured fashion as an afterthought when the trial before the jury was well underway. The judge was thus required to rule quickly, on a moderately difficult topic, so as to avoid undue delay.

[24] See Different Solutions, 288 [93].

[25] By s 3C(1) of the Crimes Act 1914 (Cth), 'evidential material means a thing relevant to an indictable offence ... including such a thing in electronic form'; and by s 3(1):

thing relevant to an indictable offence means:

(i) anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed;

(b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or

(c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence.

[26] Crimes Act 1914 (Cth), s 3F(1)(c).

[27] Crimes Act 1914 (Cth), s 3F(1)(d).

[28] Beneficial Finance Corporation Ltd v Commissioner of Australian Federal Police [1991] FCA 92; (1991) 31 FCR 523, 543 (Burchett J); Different Solutions, 290 [100].

[29] Evidence Act 2008, s 138(1).

[30] Ibid ss 138(3)(a) and (b).

[31] Ibid s 138(3)(e).

[32] Maric v The Queen (1978) 52 ALJR 631, 634 -5 (Gibbs ACJ); Ferguson, 581 [255].

[33] See Evidence Act 2008, s 70.

[34] M v The Queen (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113] (Hayne J); Klamo v The Queen [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40] (Maxwell P); Greensill v The Queen (2012) 37 VR 257, 277 [82]-[83] (Redlich, Osborn and Priest JJA).

[35] Chan v The Queen; Tan v The Queen [2014] VSCA 301 (Redlich JA and Almond AJA) ('Chan').

[37] See also Pham v The Queen [2014] VSCA 204 (Maxwell P, Osborn and Kyrou JJA). (I note that on 15 May 2015, the High Court granted the prosecution special leave to appeal against the Court of Appeal's judgment: [2015] HCATrans 121.)

[38] DPP v Adajian [1999] VSCA 105, [28] (Callaway JA).

[39] R v Giordano [1998] 1 VR 544, 549 (Winneke P); cf DPP (Cth) v Edge (a Pseudonym) [2012] VSCA 289, [60] (Priest JA).

[40] Pham v The Queen; Tang v The Queen [2012] VSCA 101, [4] (Redlich JA).

[41] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 279 [19]-[20]; [DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 62 [255]]; [R v Nguyen and Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106]; [Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; (2011) 31 VR 673, 681-2 [34] (citations omitted)]; [Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104].

[42] R v Olbrich (above); Savass v The Queen [1995] HCA 29; (1995) 183 CLR 1; [R v Wong; R v Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340]; [Tyler v R [2007] NSWCCA 247; (2007) 173 A Crim R 458, 471-4 [78]-[95] (Simpson J with Spigelman CJ and Harrison J agreeing)]; [R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524, 533-4 [37]-[41]].

[43] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 272 [32] ('Verdins').

[44] There were two versions of the Reasons for Sentence provided, neither distinctly being described as the revised reasons. The impugned remark appears only in one set of reasons.

[45] The six principles are (Verdins, 276 [32]):

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.40

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

[46] That is, the sixth Verdins principle.

[47] R v Leroy [1984] 2 NSWLR 441, 446-7 (Street CJ); R v Berisha; R v Elmazovski; R v Rizmani [1999] VSCA 112, [27] (Charles JA); Nguyen v The Queen; Phommalysak v The Queen [2011] VSCA 32; (2011) 31 VR 673, 695-6 [88] (Maxwell P).

[48] See R v Lewis [2008] VSCA 202, [15] (Maxwell P); R v Wolfe [2008] VSCA 284, [9] (Maxwell P); Teng v The Queen; Lam v The Queen; Tan v The Queen; Wong v The Queen [2009] VSCA 148; (2009) 22 VR 706, 710 [17] (Maxwell P, Ashley JA and Lasry AJA).

[49] R v Gray [1977] VicRp 27; [1977] VR 225, 229-230; R v Treloar and Butler (1989) 43 A Crim R 75, 80 (Crockett J); R v Basso & Frazetto [1999] VSCA 201; (1999) 108 A Crim R 392, 397-8 [21]-[26] (Chernov JA), 404-5 [57]-[63] (Charles JA); DPP v Galea and Mosut [2000] VSCA 87; (2000) 112 A Crim R 507; R v Pop [2000] WASCA 283; (2000) 116 A Crim R 398.