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[2015] VSCA 221
Court of Appeal (Vic)
2015-08-25
Osborn JA, Hansen JA, Whelan JA, Beach JA
Original judgment source is linked above.
[2014] VCC 1328 (Judge Gucciardo)
CRIME - Sentence - Trafficking offences - Drugs not distributed - Whether relevant in mitigation - DPP v Holder [2014] VSCA 61 explained - Harm (actual or potential) of particular conduct potentially a relevant matter - Application for leave to appeal granted - Not satisfied different sentence should be imposed - Appeal dismissed.
Ms V Anscombe, Acting Solicitor for Public Prosecutions
1 On 14 April 2014, the applicant pleaded guilty in the County Court to three charges of trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981. On 30 July 2014, the applicant pleaded guilty to the summary offence of possessing a prohibited weapon contrary to s 5AA of the Control of Weapons Act 1990. Following a plea hearing, on 18 August 2014, the applicant was sentenced as follows:
Trafficking in a drug of dependence - Ecstasy [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
[s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
[s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
[s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
[s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
[s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
[s 5AA of the Control of Weapons Act 1990]
[s 5AA of the Control of Weapons Act 1990]
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:
6AAA Statement: 6 years' imprisonment with a non-parole period of 4 ½ years.
2 On 20 February 2015, the applicant filed an application for leave to appeal against his sentence. In that application, the applicant set out his proposed ground of appeal as follows:
(a) trafficking is no less serious in respect of unsupplied drugs than in respect of those which are actually supplied to ultimate consumers and other traffickers;
(b) the potential harm of unsold or unsupplied drugs of dependence must be viewed as seriously as the actual harm caused by the sale and distribution of the drugs; and
(c) the seriousness of the trafficking is unaffected by the fact that the drugs may not have reached the public.
3 On 6 May 2015, following an oral hearing, Osborn JA refused the applicant's application for leave to appeal against his sentence.[1] Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application to this Court. In renewing his application for leave to appeal, the applicant sought leave to rely on a second ground of appeal as follows:
4 The application was argued on the basis that if leave were granted the Court should determine the appeal instanter.
5 Charge 1 was a Giretti[2] charge relating to the trafficking of ecstasy, in amounts unknown, between 27 March 2013 and 10 April 2013. Given that the applicant's grounds of appeal relate only to the sentence imposed on charge 2, it is not necessary to set out any further details of the circumstances of charge 1.
6 Charge 2 is another Giretti charge relating to the trafficking of methylamphetamine between 1 April 2013 and 12 April 2013. Charge 2 concerned a series of dealings between the applicant, his supplier, and others. In the course of those dealings:
7 Charge 3 involved the trafficking of cannabis on one day, 5 April 2013.
8 On 1 August 2013, a search warrant was executed at the applicant's home address. Amongst other things located, police found a sword next to the bedside table in the master bedroom. The finding of the sword at the applicant's home constituted the summary charge of possessing a prohibited weapon.
9 The applicant was born in Tonga, and was 33 years of age at the time of sentencing. The applicant came to Australia in 1989, and subsequently completed his VCE. The applicant is married with four children. When sentencing him, the judge described the applicant as being in good physical and mental health, not having used or abused drugs or alcohol.
10 The applicant's criminal history may be briefly summarised as follows. In January 2008, the applicant was found guilty of possessing/attempting to possess a prescribed restricted substance. In August 2009, the applicant was convicted of supplying a prohibited drug in a commercial quantity and sentenced to a term of imprisonment of three years with a non-parole period of one year and six months. In November 2010, the applicant was convicted of handling/receiving/disposing of stolen goods. A year later, in November 2011, he was convicted of intentionally causing injury, making a threat to kill and using an unregistered general category handgun. On that occasion, the applicant was sentenced to a term of imprisonment of 21 months with a non-parole period of nine months. The applicant was granted parole and released in December 2012. Upon his arrest in August 2013, the applicant's parole was cancelled.
12 The judge referred to counts 1 and 2 and said that the second count related to two ounces 'actually transacted' and 'the willingness or attempt to source and move seven to ten ounces'.[5]
There is no doubt that drug trafficking is trafficking in human misery. Such a trade causes enormous costs, measured in human suffering, damage to physical and mental health, the destruction of families, damaged lives, often young lives, and is the cause of much associated or derivative crime in our community. It is a tawdry, evil blight that is central to many of our social ills. While you were not the person selling drugs directly to the public, or the manufacturer, you were a mid-level supplier and dealer, and your responsibility is substantial. On the occasions the transactions about which you were exchanging messages with others fell through, it was your intention and purpose to proceed and procure sale and supply.
Trafficking is no less serious in respect of unsupplied drugs than in respect of those which are actually supplied to ultimate consumers and other traffickers. The potential harm of unsold or unsupplied drug of dependence must be viewed as seriously as the actual harm caused by the sale and distribution of the drug. The seriousness of the trafficking is unaffected by the fact that the drug may not have reached the public. You willingly and knowingly engaged in trafficking for profit. Your motive was greed. You undertook a willing risk and made yourself a partner and link between suppliers, and you closed your mind to the insidious effects of the drug, concerning yourself only with your own real and potential benefit.[6]
14 The judge noted that the applicant's plea was made at the earliest opportunity available. The judge took this into consideration, accepting that the plea was indicative of a level of remorse.[7] The judge said that while he accepted that there was no evidence of enrichment, the offending was motivated by greed.[8] The judge then set out the applicant's relevant criminal history, saying that the most recent cancellation of the applicant's parole and time spent in custody before sentencing fell to be taken into account in compliance with the principle of totality.[9]
15 The judge then set out the applicant's background, gave further consideration to the issue of totality and finished with a consideration of the issue of parity in relation to another offender, before pronouncing the sentence set out above.
16 The applicant makes complaint about the judge's statements that:
(a) trafficking is no less serious in respect of unsupplied drugs than in respect of those which are actually supplied to ultimate consumers and other traffickers;
(b) the potential harm of unsold or unsupplied drugs of dependence must be viewed as seriously as the actual harm caused by the sale and distribution of the drug; and
(c) the seriousness of the trafficking is unaffected by the fact the drug may not have reached the public.
17 The applicant contends that, as general and unqualified statements of principle, these statements are wrong in law. Further, he contends that so far as there might exist authority in this State consistent with those statements, then such authority is plainly wrong.
18 Finally, the applicant contends that having been sentenced upon principles that are wrong in law, his application for leave to appeal should be granted, the appeal allowed, and he should be re-sentenced in accordance with law.
19 The respondent submits that the applicant was sentenced in accordance with authority and that the passages in the decisions the applicant seeks to impugn are not wrong (plainly or otherwise). Further, the respondent contends that there was no error made by the sentencing judge, and that leave to appeal should be refused. In support of these submissions, the respondent contended:
The proposition that 'trafficking is no less serious merely because some of the drugs trafficked are not distributed to ultimate consumers' is not a blanket statement that all instances of trafficking are equally serious. It does not detract from courts considering the circumstances of each case individually, and forming a view of the culpability of the offender and the objective seriousness of the instant offence. What it does, however, is remind courts that the gravamen of the offence of trafficking a drug of dependence does not include proof that the drugs were distributed and caused harm.
20 The debate before us commenced with the decision in The Queen v Spaull.[10] Spaull was a case concerning two applicants who had each pleaded guilty to a count of trafficking in methylamphetamine. The Court,[11] in rejecting an argument that the applicants' criminality was reduced by the fact that - despite their best endeavours - there was no yield from their attempts to manufacture methylamphetamine, said:
His Honour was entitled, we think, to gauge the criminality of the conduct of the applicants not by reference to what they had in fact achieved but rather by the potential consequences of what they had set out to achieve. The fact that their own ineptitude prevented the consequences from inflicting more damage on the intended victims than they had hoped or intended does not, in our view, prevent the sentencing judge from considering the potential of their criminal conduct by reference to their intent when assessing its criminality. The criminality of a person who plants a bomb intending that it should explode in a department store is not to be measured by the fact that his lack of expertise prevented the objective from being achieved. In this regard, the judge measures the level of criminality by reference to the potential of the consequences intended by the accused. ...
Mr Danos submitted that his Honour's reliance on the decision in R v Morgan and Byrnes was misconceived because the facts were different, and materially different, in that case. In this case, so it was submitted, his Honour had given too much colour to the potential consequences, which, so it was said, were unachievable because of a decision by the applicants to give their project away before their arrest. This is another way of contending that his Honour gave too much weight to the potential of the enterprise in the formulation of his sentencing disposition. It suffices to say that we cannot agree that his Honour did give too much weight to this aspect of the sentence. It was mentioned only as one aspect of the circumstances surrounding the commission of the offence, favourable and unfavourable.[12]
It should not be forgotten that the manufacture of amphetamines is a form of drug trafficking where general deterrence is regarded as high on the ladder of sentencing priorities. The fact that in retrospect a particular offender may be seen to have had no prospect of real success does not absolve a court from imposing a sentence which will deter others from trying. These offences were an attack upon the health and welfare of the community of this state, particularly the young community, and must be expected by those who commit them to be met with condign punishment.[13]
22 In R v Mihalo,[14] this Court had to consider the relative seriousness of attempted trafficking and trafficking. Eames JA[15] noted that the definition of 'traffick' in the Drugs, Poisons and Controlled Substances Act 1981 captured incomplete attempts to pass drugs of dependency into the community, so that the distinction between a completed offence and an attempt might be 'difficult to discern on occasions'. His Honour went on:
Furthermore, this is a category of criminal enterprise where, as in this case, many arrests are made by the employment of undercover law enforcement agents. Parliament might well conclude that in such circumstances the culpability of those who attempt to traffick drugs, but are thwarted in their attempt, may in some cases be no less than that of offenders who succeed in their endeavours to traffick drugs. There is, in other words, nothing illogical in treating attempted trafficking as worthy of the same maximum penalty as applies to a completed offence. The extracts of the Second Reading Speech of the Minister of Health relating to the introduction of the amending legislation in 1983, to which we were referred, demonstrate clearly that it was a deliberate decision to have attempts dealt with in similar fashion to completed offences.[16]
23 In Chandler v The Queen,[17] this Court had to consider the sentences imposed on two appellants for trafficking in a large commercial quantity of methylamphetamine. The case concerned the finding by police of a total quantity of pure methylamphetamine of 13.246 kilograms (18 times the large commercial quantity) at a property where the appellants had been engaged in the manufacture of methylamphetamine. Police had found packages of the drug in powder form ready for distribution, and each of the appellants had been observed packing the drug into plastic bags. The appellants submitted that their offending was to be viewed as less serious than it would otherwise have been had the quantity manufactured by them been distributed in whole or part. In the course of rejecting that submission, the Court[18] said:
Other things being equal, manufacturing a large commercial quantity of a drug for distribution is no less culpable than the distribution of that quantity of drug. The definition of 'traffick' in s 70 of the DPCS Act makes the manufacture of a drug of dependence an act of trafficking, in the same way as preparing a drug for trafficking and selling or offering for sale as an act of trafficking. Under this legislative scheme, the potential harm of the manufactured drug is viewed as seriously as the actual harm of the distributed drug.[19]
The fact that count 5 involved only an attempt to traffick in a large quantity of a drug of dependence, because a benign substance was substituted for the drug, does not reduce the gravity of the offence. The offence of trafficking covers both the doing of an act which comes within the definition of traffick and an attempt to do such an act and the same maximum penalty applies to both offences. This does not mean that the same sentence should always be imposed for an attempt to traffick, as for a completed trafficking offence. But it supports the Crown's submission that the offences intended to deal with the potential harm caused by trafficking in illicit drugs.[22]
25 Neave JA then quoted the passage from Eames JA in Mihalo, which we have quoted earlier, and a little later said:
The fact that the applicant did not achieve his goal of buying methylamphetamine for the purpose of distributing it to the public did not diminish his moral culpability or the gravity of his offending, simply because that goal was thwarted or because, in the case of count 5, the police replaced the drug with a harmless substance.[23]
However, the judge's earlier statement that the low purity of the drug in the mixture was not to be given significant weight when assessing the applicant's culpability was, in my view, incorrect. Obviously, the legislature has chosen to treat any drug that is part of a mixture as though the whole of that mixture constituted the drug of dependence. That is clear from the fact that it is the weight of the mixture that determines whether the offence is to be characterised as involving, for example, a commercial quantity, on the one hand, or a large commercial quantity on the other.
There is no reason, in principle, why the fact that the mixture contains what is plainly only the most miniscule quantity of a drug of dependence, and is therefore unlikely to produce the deleterious effects normally associated with a much larger amount of that particular drug, albeit in a mixture, should not be regarded as a significant factor to be taken into account in assessing the gravity of the offending.
This very point was considered by the Western Australian Court of Criminal Appeal in R v Mahasay.[26] There it was held that the low level of purity of the methylamphetamine in question was a factor of some importance, at least in a case involving trafficking in that drug. In the case of couriers, the purity might be less relevant.
The matter arose again, before this Court, in R v Minh Thanh Do.[27] There, the Court found it unnecessary to determine whether the low level of purity of a drug as a mitigating factor had survived the rejection by this Court in R v Pidoto & O'Dea[28] of a harm-based system of classification of drug offences.
In my opinion, there is nothing in Pidoto which requires the low level of purity of a particular drug in a case such as the present to be given little or no weight. Whether one views such a matter as a mitigating circumstance, or rather as simply reducing the objective culpability of the offending, matters little in the ultimate result. There is obviously a difference between trafficking in 3.9 kilograms of pure methylamphetamine, and trafficking in 1.9 grams of methylamphetamine in a mixture of 3.9 kilograms. To treat these two offences as relevantly indistinguishable would be an affront to common sense.[29]
27 In Director of Public Prosecutions (Cth) v Haidari[30] this Court considered a Director's appeal from sentences imposed on a number of Commonwealth offences including people smuggling and importing a border controlled drug. In relation to one of the people smuggling offences the sentencing judge had accepted that the culpability of the offender had been diminished because (unbeknown to him) he was dealing with the authorities and the circumstances were such that but for the involvement of the undercover agent the events which resulted in the charge might not have happened at all. In that context Harper JA[31] said:[32]
It is also necessary to take into consideration the fact that the respondent's offending put no one at risk; and that factor, when properly taken into account, diminishes the respondent's culpability. As Hulme J said in R v DW:
[A]bsent circumstances where criminality has been exacerbated by or at the instigation of authorities, the circumstance that the authorities have been complicit in offending or have prevented drugs from being disseminated into the community, in no way mitigates the subjective criminality of the offender. However, if the involvement of the authorities prevents the transaction from resulting in harm, it is illogical not to afford that fact appropriate weight just as in the converse situation one would take account of any damage that was a consequence of the offending.[33]
28 The case referred to, R v DW, was a decision of the New South Wales Court of Criminal Appeal concerning an offender who had made an agreement with an undercover police officer to manufacture 4 kg of methylamphetamine.
29 In Director of Public Prosecutions v Holder,[34] this Court had to consider a case where the respondent had trafficked a quantity of ecstasy which exceeded 20 multiples of the large commercial quantity threshold. The offending related to a number of very large transactions that were completed. However, not every supply that had been agreed actually eventuated. The respondent's counsel submitted that the criminality of the respondent's conduct was lower in respect of drugs that had only been offered for supply, since there was no 'actual harm done' by the provision of those drugs to ultimate consumers. The Court[35] said:
As the Director correctly submitted, trafficking is no less serious merely because some of the drugs trafficked are not in fact distributed to ultimate consumers. The legislative scheme which establishes the offence of trafficking does not distinguish between acts of trafficking on this basis. The potential harm of an unsold or unsupplied drug of dependence is viewed as seriously as the actual harm caused by the sale and distribution of the drug. That is why possession for sale is a species of trafficking. In short, the seriousness of the trafficking is unaffected by the fact that the drugs do not reach the public.[36]
30 A comparison of the passage complained of in the sentencing judge's reasons, as quoted previously, with the passage from Holder quoted above suggests the sentencing judge relied upon Holder in what he said. There are important differences, however, to which we will return.
31 In Zandi v The Queen,[37] this Court dealt with an appellant who was, in attempting to source cocaine, dealing at all times with an FBI operative. One issue was whether that fact was relevant to the sentence to be imposed for attempting to possess a marketable quantity of a border controlled drug contrary to the provisions of the Criminal Code (Cth). The Court[38] said:
That moral culpability was not at all diminished by the fact that there was no prospect of any harmful drug reaching the streets. He fully intended that the drugs would be obtained by him and disseminated into the community. As Johnson J said in Achurch:
[A]lthough the fact that drugs are not disseminated into the community may be a relevant factor on sentence, the weight to be given to that factor will vary from case to case. A primary consideration remains that an offender intended to supply the prohibited drug to members of the community, and that it was no act of an offender that resulted in this not happening.[39]
We do not regard the fact that the appellant was dealing with undercover police as mitigating his offending. It was not suggested that he was the subject of any entrapment. Indeed, the judge did not criticise the police conduct, and, as he remarked, 'These offences are difficult to detect, and it is necessary for police to masquerade as people involved in the drug trade in order to detect those that are also engaged in the trade'. Further, we do not need to resolve finally whether the objective seriousness of the offending was diminished by the fact that there was no prospect of any actual drugs reaching the community, since, when his Honour's reasons are taken as a whole, it is plain that the sentencing judge gave that aspect adequate attention.[40]
That the drugs were not disseminated into the community is a relevant factor, the weight of which will vary from case to case.
Whilst the drugs found in the applicant's possession were not actually disseminated by the applicant into the community, the applicant was to be sentenced for deemed supply in circumstances where it was clear that this was not an isolated occasion of the possession of drugs for the purpose of supply. In the circumstances, little, if any, weight can be attached to the fact that these drugs were not actually supplied.[43]
33 The authorities we have reviewed make clear the importance of the fact that the legislative scheme governing trafficking[44] does not distinguish between the acts which constitute 'trafficking' in such a way as to render less serious acts which do not result in distribution from those which do. The acts which constitute trafficking include preparing a drug of dependence for trafficking, manufacturing a drug of dependence, and selling, exchanging, agreeing to sell, offering for sale or having in possession for sale a drug of dependence. This is made clear in both Holder and in Chandler. The passage in Holder, which we quoted earlier, is, by its own express terms, an analysis of the legislative scheme.
34 Likewise, the authorities make it clear that it is significant that the legislative scheme does not differentiate between attempts to traffick and trafficking. This Court made that clear in Mihalo and in Mokbel.
35 But the judgments in Mihalo, Mokbel, Chandler and Holder do not mean that all acts which constitute trafficking or attempts to traffick are to be treated the same. The relevant passage in Chandler commences with the critical words: 'Other things being equal'. Neave JA in Mokbel expressly stated that the fact that the legislative scheme covered both trafficking and attempts to traffick did not mean that the same sentence should always be imposed for an attempt to traffic as for a completed trafficking offence. The Court in Holder said trafficking is no less serious 'merely' because some drugs are not distributed.
36 The harm (actual and potential), or in the words of Weinberg JA in Trajkovski the 'deleterious effects', of particular conduct is a potentially relevant matter depending upon the circumstances of each individual case. The sentencing judge is entitled to gauge the criminality of the conduct by its potential consequences and by the intentions of the offender notwithstanding what he or she was in fact able to achieve. This is made clear in Spaull. The fact that the conduct of the offender may be such as to render it unlikely, or even impossible, that he or she will achieve the objective is unlikely to mitigate an assessment of the criminality, and it will commonly have very little weight, as was said in Zandi and the cases it cited. In any particular case, actual harm, both its presence and its absence, can be taken into account, as this Court said in Haidari.
37 Turning then to what the sentencing judge said here, the sentencing judge has expressed observations similar to those made by this Court in Holder about the legislative scheme as if they are propositions sentencing judges are bound to adopt on the particular facts of every case. The sentencing judge did not relate his observations to the 'legislative scheme', as this Court did in Holder, and he did not reproduce this Court's qualification to those propositions inherent in the use of the word 'merely'. To that extent the sentencing judge's comments were erroneous.
39 However, the appeal should be dismissed because we are not satisfied a different sentence should be imposed on count 2.[45]
40 The conduct that constituted the offending in charge 2 involved the exchange of two unknown quantities of methylamphetamine, a six ounce order that was cancelled, a ten ounce order, an attempt to deliver first seven ounces and then six ounces of methylamphetamine, another order for ten ounces, and the delivery of two ounces. The sentencing judge characterised the offending in count 2 as relating to two ounces 'actually transacted' and a 'willingness or attempt to source and move seven to ten ounces'. This was a most favourable characterisation of the conduct from the offender's point of view.
41 The maximum penalty for the offence in count 2 is 15 years' imprisonment.
42 Mr Taumoefolau has two prior convictions for drug offences. One of those prior convictions was for the supply of a prohibited drug in a commercial quantity. In 2009 he was convicted of that offence in the Sydney District Court and was sentenced to a term of imprisonment of three years with a non-parole period of one year six months. He has other prior convictions including prior convictions for violence offences for which he was sentenced to a term of imprisonment of one year nine months with a non-parole period of nine months in the Melbourne County Court in 2011.
43 In the circumstances, notwithstanding the matters put in mitigation on Mr Taumoefolau's behalf, the sentence on count 2 of three and a half years' imprisonment, 12 months of which was cumulated on the sentence on count 1, was lenient. No lesser sentence could be imposed.
44 There will be orders granting the applicant leave to appeal, but dismissing the appeal.
[1] Taumoefolau v The Queen [2015] VSCA 91.
[2] R v Giretti (1986) 24 A Crim R 112.
[3] DPP v Taumoefolau (Unreported, County Court of Victoria, Judge Gucciardo, 18 August 2014) [2]-[10] ('Reasons').
[10] [1999] VSCA 18 ('Spaull').
[11] Winneke P, Brooking and Ormiston JJA.
[12] [1999] VSCA 18 [11]-[12] (citation omitted).
[14] [2002] VSCA 217; (2002) 136 A Crim R 588 ('Mihalo').
[15] With whom Phillips CJ and Chernov JA agreed.
[16] Mihalo [2002] VSCA 217; (2002) 136 A Crim R 588, 596 [40] (citation omitted).
[17] [2010] VSCA 338 ('Chandler').
[19] [2010] VSCA 338 [25].
[20] [2011] VSCA 34; (2011) 211 A Crim R 37 ('Mokbel').
[21] With whom Nettle and Tate JJA agreed.
[22] Mokbel [2011] VSCA 34; (2011) 211 A Crim R 37, 47 [43].
[24] [2011] VSCA 170; (2011) 32 VR 587 ('Trajkovski').
[25] With whom Ashley JA and Hargrave AJA agreed.
[28] [2006] VSCA 185; (2006) 14 VR 269 ('Pidoto').
[29] Trajkovski [2011] VSCA 170; (2011) 32 VR 587, 611 [123]-[127].
[30] (2013) A Crim R 134 ('Haidari').
[31] With whom Weinberg and Priest JJA agreed.
[32] Haidari (2013) A Crim R 134, 143 [37] (emphasis in original).
[33] (2012) A Crim R 63, 88-9 [117].
[34] [2014] VSCA 61 ('Holder').
[36] Holder [2014] VSCA 61 [25]. The Court in Holder supported this passage of its judgment with a footnote referring to Chandler [2010] VSCA 338 [25] and Mokbel [2011] VSCA 34; (2011) 211 A Crim R 37, 45-7 [37]-[43].
[37] [2015] VSCA 24 ('Zandi').
[39] [2011] NSWCCA 186; (2011) 216 A Crim R 152, 168 [97].
[41] [2008] NSWCCA 262 ('Ly').
[42] With whom Beazley JA and Harrison J agreed.
[43] [2008] NSWCCA 262 [26]-[27] (citations omitted).
[44] In this particular case s 71AC and the definition of 'traffick' in s 70 of the Drugs, Poisons and Controlled Substances Act 1981.
[45] Criminal Procedure Act 2009 s 281(1)(b) and (2).
Taumoefolau
The Queen [2015] VSCA 221
(2011) 32 VR 587
(2006) 14 VR 269