• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

THE COURT: Introduction

1. On 1 December 2021, the respondent to this appeal was sentenced to 34 months’ imprisonment to be served by way of an Intensive Correction Order (R v Low [2021] ACTSC 285 (primary judgment)). For the sake of clarity, the respondent will be referred to as the offender in this judgment, and the appellant will be referred to as the prosecution.

2. The offender was sentenced for one count of trafficking in a controlled substance other than cannabis (namely, cocaine) contrary to s 603(7) of the Criminal Code 2002 (ACT). The sentencing judge assessed the appropriate starting point for the sentence as 46 months which was reduced by “just under” 25% on account of the offender’s plea of guilty, resulting in a total sentence of 2 years and 10 months, to be served by way of an Intensive Correction Order.

3. The offender pleaded guilty to the offence in the Magistrates Court. The basis of the offender’s plea was that he was guarding or concealing the drug for someone else. The prosecution initially accepted that offer and the matter was listed for sentence in the Magistrates Court. Just before that listing, the prosecution informed the offender’s solicitor that, in the prosecution’s view, the Magistrates Court did not have jurisdiction and the offender needed to be committed for sentence. At this time, the prosecution also flagged that it no longer accepted the limited basis of the offender’s involvement, and indicated that if the offender wished to withdraw his plea, it would not be opposed.

4. In March 2021, the offender was committed for sentence. The offender confirmed that he maintained his plea, with the basis of the trafficking to be determined by the Court. On 1 November 2021 the matter proceeded as a disputed facts and sentencing hearing before the sentencing judge.

5. The surrounding agreed facts, which were summarised by the sentencing judge at [9]- [10] of the primary judgment, are set out in the statement of facts and as well as other evidence admitted in the disputed facts hearing. In summary, on 11 May 2020, police, having obtained search warrants, found about a kilogram of cocaine in a Woolworths shopping bag in the offender’s home. The bag had been hidden in a wall cavity behind the oven.

6. Forensic examination of the cocaine showed it to have a purity in the order of 75% to 80%, and its value potentially reaching up to $518,000.

7. The exact nature of the trafficking was the subject of the disputed facts hearing. The prosecution position was that the offender intended to play a role in the on-sale of the cocaine, including receiving a financial reward. As such, the prosecution submitted that the offender was involved in the drug trade both as to distribution and its production of profit. The offender contended that he had no active role in the distribution of the cocaine and was merely guarding or concealing the drug. The intention was limited only to allowing the other person to conceal the drug in his home for future supply.

8. Further evidence at the hearing included: the evidence of First Constable Joshua Dick concerning searches of the offender’s garage, and his role in the investigation of another person, CB, an associate of the offender; evidence of Detective Sergeant David Fleming concerning searches of the offender’s house, and unchallenged expert evidence relating to organised criminal networks involved in drug trafficking; and the evidence of First Constable Wade Barnes concerning data extracted from the offender’s mobile phone.

9. The sentencing judge was not satisfied that the prosecution had proven its case beyond reasonable doubt and proceeded to sentence on that basis.

Grounds of Appeal

10. The grounds of appeal are as follows: 1) The learned sentencing judge acted upon a wrong principle in assessing the circumstantial evidence. 2) The learned sentencing judge made a finding of fact that was unreasonable having regard to the evidence. 3) The learned sentencing judge failed to take into account a material consideration in the ordering of an ICO. 4) The sentence imposed was manifestly inadequate. Did the sentencing judge err by acting upon a wrong principle in assessing the circumstantial evidence; and, did the sentencing judge make a finding of fact that was unreasonable having regard to the evidence (Grounds 1 and 2)

11. The prosecution dealt with these two grounds together in submissions and it is therefore appropriate that the two grounds be considered together in this judgment.

12. The prosecution submitted that while his Honour correctly stated that the general approach to be taken to fact-finding was to consider the facts as a whole and not examine them individually, the sentencing judge then went on to do the opposite, and therefore misapplied or failed to apply the correct approach. The prosecution referred to the Court of Appeal decision of R v Stott [2021] ACTCA 18 concerning errors of fact.

13. The prosecution argued in written submissions that the sentencing judge’s finding about the offender’s role depended upon considering certain features of the circumstantial case in isolation from the evidence as a whole. The prosecution submitted that this reasoning was erroneous and resulted in error. The prosecution referred to the manner in which the sentencing judge discussed various pieces of evidence and came to conclusions on the basis of each individual piece of evidence.

14. The offender submitted that the prosecution has not shown that the sentencing judge acted upon a wrong principle in assessing the circumstantial evidence, nor has the prosecution shown any basis for determining that there was an unreasonable finding.

15. We note that there is some debate concerning the proper approach to be taken in an appeal concerning factual error. It has been observed that the “subtle difference” in meaning between a mistake of fact that was material to sentence and a finding of fact that was not open to a sentencing judge will, in most cases, have no effect on the result: Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 at [31]. For the purposes of the current appeal any such difference is not of significance.

16. In our view, the two grounds of appeal are not made out for the following reasons.

17. The case against the accused was circumstantial. The relevant law concerning circumstantial evidence is summarised in The Queen v Baden-Clay [2016] HCA 35; 258 CLR 308 at [46]-[47], where the Court referred to the earlier decision of Barca v The Queen (1975) 133 CLR 82:

… In Barca v The Queen, Gibbs, Stephen and Mason JJ said: "When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen." (our emphasis added)

18. It is of critical importance in a circumstantial case that all of the circumstances established by the evidence are considered together. In The Queen v Hillier [2007] HCA 13; 228 CLR 618, Gummow, Hayne and Crennan JJ (Gleeson CJ and Callinan J agreeing) stated at [48]: Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]: At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness 'separately in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence: cf Weeder v The Queen. Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage, cited in Reg v Van Beelen; and see Thomas v The Queen and cases there cited.

(our emphasis added)

19. Thus it is tolerably clear that a factfinder must consider the evidence as a whole and not in a piecemeal fashion. The judgment reveals that the primary judge did just that. Relevantly, at [12] to [23] of the primary judgment his Honour stated the following: 12. The Crown stressed that I should look at the above matters in an holistic fashion. I should not examine each in turn to see if they had an alternative, perhaps innocent, explanation. The Crown is correct as to the general approach to be taken, but that does not mean that explanations for the individual indices cannot be taken into account. For example the DNA on the cocaine wrapping and the fingerprints near the hiding place are equally consistent with simply concealing the drug as opposed to dealing with it. 13. A cutter is a substance used to add to a drug to increase its volume. The Creatine was in a very old packet. There was no suggestion of recent use. There was also steroid material found in the house, perhaps consistent with an alternate use of the Creatine. The white powder was not identified. 14. The offender was a drug user. This is confirmed by his previous conviction and by various statements made by him. The presence of the scales (with cocaine residue) is consistent with this usage. 15. The hydraulic press is a device that can be used in the drug trade for the compression of material, perhaps following its dilution with another substance. But this press could have had other uses, and more importantly, items that might have been associated with its use in this way were missing. Detective Sgt Fleming said that he did not find a mould nor a stamp normally associated with compaction. An example of a stamp can be seen in the photograph of the brick of cocaine included in Exhibit B. 16. The notes clearly relate to the drug trade. But other than being found in the offender’s bedroom there was no other link to the offender. The handwriting on the notes called out for comparison to that of the offender. No such comparison was made. I do not blame the police for this. The police were content, as stated by senior Constable Dick, with the plea that had been agreed. Accordingly further written examination and investigation did not occur. 17. The same is true of the mobile phone. No follow-up ever occurred on the contents of the phone. 18. All of this is not surprising. The police were involved in a much wider investigation of another person (see Exhibit 4) who had been at the offender’s premises on the weekend immediately before the Monday on which the search warrant was executed. In addition this person’s motor vehicle, a Range Rover Evoque, was still present at Mr Low’s residence on the Monday. The fact that it was left at the offender’s residence might be seen as consistent with other items associated with that person also being left in the ‘mess’ that characterised the residence and the garage in which the hydraulic press was found. 19. As for the cash, it is suspicious. But relative to the amounts of drug dealing being suggested by the Crown it is a relatively insignificant amount. 20. The Crown’s submission was that the whole of the evidence gave rise to a finding that, beyond reasonable doubt, the offender was involved in the drug trade both as to its distribution and its production of profit. The Crown said this was a case of “greed not need”. 21. I do not think the Crown has proved its case beyond reasonable doubt. At first sight the collection of items at the offender’s home give rise to a good deal of suspicion. But it is to be remembered that he has not denied his involvement at all. He was a user of cocaine. He had been visited by a person of great interest to the drug investigating police officers. 22. It is no surprise that his DNA was found on the cocaine or his fingerprints in the area of the concealment. The police seemed to have had prior knowledge that the cocaine was to be brought to the residence. There was no suggestion that the hydraulic press was utilised to put it into its brick-like state. Further, the hydraulic press was found in a “dirty and grimy” state. 23. I do agree with the Crown that the offender’s statement of non-involvement in the Pre-Sentence Report should be treated with caution. I have placed very little weight on it. I have simply found that the Crown has not discharged its onus to prove the case against the offender. (emphasis added)

20. In our view, it is apparent from a review of the extracted paragraphs from the judgment at first instance that the primary judge was aware of his obligation to look at the evidence as a whole and did so. The primary judge considered the united force of the evidence. The fact that the primary judge looked at individual pieces of evidence before coming to a determination on the whole of the evidence does not therefore demonstrate that in this case the primary judge erred by acting upon a wrong principle in assessing the circumstantial evidence. Nor does it demonstrate that the primary judge made a finding of fact that was unreasonable having regard to the evidence. This was not a case where the only rational inference was that the prosecution case was established beyond reasonable doubt.

21. In conclusion, it is clear from the extracted paragraphs that the sentencing judge did not err in the fact-finding exercise as contended for by the prosecution. We would dismiss the first two grounds of the appeal. Did the sentencing judge err by failing to take into account a material consideration in the ordering of an ICO (Ground 3)

22. The prosecution submitted that the sentencing judge referred to comparable cases and then stated that, having regard to his findings on the disputed facts, an ICO would not be an inappropriate penalty. The prosecution submitted that his Honour misstated the test, and that it was “difficult not to conclude” that his Honour used comparable cases as a yardstick, rather than applying the text of the legislation.

23. The relevant legislation is the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Section 11(3) sets out the test as follows: The court may make an intensive correction order if the sentence of imprisonment is for more than 2 years but not more than 4 years, but only if the court considers it is appropriate to do so, having regard to— (a) the level of harm to the victim and the community caused by the offence; and (b) whether the offender poses a risk to 1 or more people or the community; and (c) the offender's culpability for the offence having regard to all the circumstances. (emphasis added)

24. At paragraph [24] of the primary judgment, his Honour stated the following: As to objective seriousness, on the basis of my findings limiting the involvement of the offender, I think his offending should be assessed at below medium for this type of offence. I have taken into account the amount of drugs involved, their value and their potential harm. Regrettably drug use is rife in the community and while there is a lot of cocaine involved, as pointed out by the Crown, it is 1/3 of the amount necessary for a commercial quantity. (emphasis added)

25. His Honour went on to state at [39]: Each of the above two cases has points of distinction. Having regard to my finding on the disputed facts, I am satisfied that at ICO would not be an inappropriate penalty. The Crown submitted that an ICO is not “obviously punitive”. But it is a prison sentence and any breach of its conditions will place the offender into gaol. He will be monitored over a long period. I think there are teeth in an ICO and, in appropriate circumstances, it does meet the requirements for general deterrence.

26. Further, at [43] his Honour stated the following: The term of the ICO, I think needs to be lengthy, to reflect the seriousness of the drug trade, the amount of cocaine involved and the need for general deterrence forcefully, and correctly, advanced by the Crown.

27. It should be noted that the primary judge is an experienced judge for whom s 11(3) is not a novel provision.

28. The sentencing judge received both oral and written submissions concerning his obligations under s 11(3). There is no reason for this Court to infer that his Honour did not consider the matters set out in ss 11(3)(a), (b) and (c). The prosecution argued at the hearing of the appeal that the factors under s11(3) boil down to two matters. First, risk to the community and second, culpability for the offence.

29. The paragraphs extracted above demonstrate that the primary judge did not ignore, and relevantly addressed, the applicable factors. Error has not been established.

30. Before turning to the next ground which concerns manifest inadequacy it is important to underline what was stated in R v Hopkinson [2022] NSWCCA 80 by Leeming JA at [113]: As has been seen in the context of administrative law, and which applies to appeals from an exercise of discretion, this Court should not be concerned with “looseness of language” nor “unhappy phrasing”. Nor should the reasons of a sentencing judge be “construed minutely and finally with an eye keenly attuned to the perceptions of error”. (footnotes omitted) Was the sentence imposed manifestly inadequate (Ground 4)

31. The prosecution’s primary submission is that the sentencing judge approached the fact-finding process in an incorrect fashion leading him to misconstrue the facts as part of the sentencing process. Further, the prosecution submitted, the sentencing process was also marked by clear error and the approach by the sentencing judge culminated in the imposition of a manifestly inadequate sentence by way of an ICO.

32. However, the prosecution submits that the sentence imposed was manifestly inadequate even if error is not made out under the first two grounds.

33. The prosecution submitted that the culpability of those who engage at any level in drug supply networks is significant: R v Shi [2004] NSWCCA 135.

34. The prosecution submitted that this was an “overwhelmingly strong” case warranting a lesser discount, though this was not advanced as a separate ground of appeal. Subjective circumstances

35. The sentencing judge noted the offender was 30 years old and had a normal and supportive upbringing. He had a very limited criminal history and steady employment. While he started using cocaine in 2016 he had stopped his use of drugs since his arrest in May 2020. He had a history of depression which was heightened by his drug use. However, his mental health was stable. The prosecution submitted that there were no particular criminogenic drivers that needed to be addressed or that required an intensive period of supervision in the community. Purposes of sentencing

36. The prosecution submitted that the sentencing judge referred to the prosecution’s submission that general deterrence was an important sentencing purpose for drug trafficking, however, his Honour made no express reference to other purposes of sentencing except rehabilitation. His Honour stated that in the appropriate circumstances an ICO met the requirements of general deterrence noting that an ICO was a prison sentence and any breach of its conditions would place the offender in prison. He also noted that the offender would be monitored over a long period.

37. The prosecution submitted that, first, a breach of the conditions will not automatically place the offender in prison. Second, the prosecution submitted that the deterrent effect of a sentence depends on the extent to which it is punitive and seen to be so by the community. The prosecution argued that the punitive effect is determined by the extent and duration of the curtailment of an offender’s freedoms. The prosecution referred to Boulton v The Queen [2014] VSCA 342 (Boulton) at [91], where the court observed that (the equivalent) Community Corrections Order (CCO) had punitive elements because of the mandatory conditions attached to it. The prosecution argued that restrictive conditions, such as requiring an offender to have treatment at a residential facility, are likely to very severely interfere with an offender’s freedoms to live as they choose. However, in this case, the sentencing judge did not impose any conditions (other than the automatic core conditions).

38. We interpolate to note that the core conditions in the ACT are contained in s 42 of the Sentencing Act, which states: 42 Intensive correction order—core conditions (1) The core conditions of an offender’s intensive correction order are as follows: (a) the offender must not commit— (i) an offence against a territory law, or a law of the Commonwealth, a State or another Territory, that is punishable by imprisonment; or (ii) an offence outside Australia against a law of a place outside Australia that, if it had been committed in Australia, would be punishable by imprisonment; (b) if the offender is charged with an offence against a law in force in Australia or elsewhere—the offender must tell the director-general about the charge as soon as possible, but within 2 days after the day the offender becomes aware of the charge; (c) if the offender’s contact details change—the offender must tell the director-general about the change as soon as possible, but not later than 1 day after the day the offender becomes aware of the change of details; (d) the offender must comply with any direction given to the offender by the director-general under this Act or the Corrections Management Act 2007 in relation to the intensive correction order; (e) the offender— (i) is on probation under the supervision of the director‑general; and (ii) must comply with the director-general’s reasonable directions in relation to the probation; (f) any test sample given by the offender under a direction under section 43 (Intensive correction order—alcohol and drug tests) must not be positive; (g) the offender must not use or obtain a drug; (h) the offender must not— (i) leave the ACT without the director-general’s approval; or (ii) leave Australia without the board’s written approval; (i) if leaving the ACT or Australia, the offender must comply with any condition of the approval to leave; (j) the offender must comply with any direction given to the offender by the director-general to— (i) live at any premises; or (ii) undertake any program; or (iii) report to a corrections officer; or (iv) allow a corrections officer to visit the place where the offender lives at any reasonable time; (k) the offender must comply with any notice made under section 63 to attend a hearing of the board; (l) any condition prescribed by regulation that applies to the offender. (notes omitted)

39. The prosecution submitted that the sentence that the sentencing judge imposed did not adequately reflect the relevant purposes of sentencing. The prosecution submitted that the sentence of 2 years and 10 months’ imprisonment to be served wholly by ICO (with no extra conditions other than the core conditions) cannot be said to recognise the significant potential harm to the community, nor provide adequate general deterrence to others.

40. The prosecution further submitted that current sentencing practice is a relevant consideration pursuant to s 33(1)(za) of the Sentencing Act.

41. The prosecution referred to R v Mackinder [2021] ACTSC 176 and R v Harmouche [2020] ACTSC 194 and a table of comparable cases. Consideration

42. In the case of prosecution appeals asserting manifest inadequacy, the general approach was summarised in R v Rappel [2019] ACTCA 11 at [10] (see also R v Nicholas; R v Palmer [2019] ACTCA 36 (Nicholas and Palmer)) at [68]): As this Court said in R v Lee [2017] ACTCA 30 at [53], a Crown appeal against sentence is a “unique species of appeal” … Such appeals “constitute an anomaly in the criminal justice system and so should be instituted sparingly”: R v TW [2011] ACTCA 25; 6 ACTLR 18 at [3]. Appropriate occasions that might arise for the bringing of a Crown appeal, include, as stated in R v Clarke (1996) 2 VR 520 at 522: (a) to correct a sentence that reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle; (b) to enable the Court to establish and maintain adequate standards of punishment; (c) to ensure uniformity in sentencing, so far as the subject matter permits.

43. The following matters are germane to a consideration of a ground of manifest inadequacy.

44. It is not enough to establish error that the appeal court considers that had it been in the position of the primary judge, it would have taken a different course: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]

45. Manifest inadequacy of sentence, as for manifest excess, is a conclusion. It is not established simply because the result arrived at is markedly different to other cases: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [59]; Dinsdale v The Queen [2000] HCA 54 (Dinsdale); 202 CLR 321 at [6]; Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58].

46. An appellate court must respect the wide discretion of the sentencing judge concerning an appropriate sentence: Nicholas and Palmer at [66].

47. The test is whether the sentence is unreasonable or plainly unjust: see House v The King (1936) 55 CLR 499; Dinsdale; Barbaro v The Queen [2014] HCA 2; 253 CLR 58.

48. In approaching the task of determining whether the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no single correct sentence. Sentencing allows for differences of judicial opinion at first instance while still acting in accordance with principle: see Dalton v The Queen [2015] ACTCA 48 at [18] and Melham v The Queen [2011] NSWCCA 121 at [85].

49. It is accepted that an ICO is a lenient disposition of a case such as this. Leniency in and of itself does not denote error. As was made clear in Boulton, a five-judge bench constituted by Maxwell P, Nettle, Neave, Redlich and Osborn JJA, there are times when such an order is appropriate. This is, in our view, such a case. We note in particular the comments of the Victorian Court of Appeal in Boulton at [114]-[115]: The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide. In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, ‘How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?’ As we have endeavoured to explain, that question should mark the beginning, not the end, of the court’s consideration. (emphasis added)

50. The synthesis of sentencing considerations is an avowedly and notoriously difficult process. This is because sentencing often involves dealing with and weighing conflicting considerations.

51. In this case the primary judge appropriately assessed objective seriousness, took into account the offender’s relevant subjective matters, including letters from his employer and his mother. His Honour referred to comparable cases and the prosecution submissions concerning “public deterrence, in particular the need to send a message to drug dealers that they will go to prison if involved in this trade”.

52. His Honour referred at [41] to his view as to the impact that a full-time custodial sentence would have, stating: This offender is capable of being rehabilitated. To place him into full-time custody would, in my view, put his rehabilitation at significant risk. I think he is a prime candidate for an ICO. He will be monitored and he will need to live within the law, at risk of his future liberty.

53. The primary judge carefully considered all relevant factors and arrived at a just result. We perceive no basis for finding that the sentence was manifestly inadequate.

Orders

54. The orders of the Court are as follows: (a) The appeal is dismissed.

I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 27 October 2022