Thurlow v The Queen [2021] VSCA 71

1 The appellant pleaded guilty in the County Court to one charge of possession of substances and equipment for the purpose of trafficking in a drug of dependence, and one charge of possession of a drug of dependence, namely, methylamphetamine. On the same day, the appellant's co-offender, Raymond Hamment ('Hamment'), pleaded guilty to one charge, on the same indictment, of possession of precursor chemicals.

Possession of substance and/or equipment for trafficking a drug of dependence

2 After a plea presented on his behalf, the appellant was sentenced to a total effective sentence of 3 years' imprisonment with a non-parole period of two years. That sentence was constituted as follows:

3 The appellant, by leave, appealed the sentence on the following grounds:

Ground 1: The sentencing judge erred in:

(a) not taking into account as a matter in mitigation that the applicant had offered on 19 March 2018 to plead guilty to the charges on the plea indictment; and/or

(b) not according the utilitarian value of the plea the notional value it would have had, had the prosecution accepted it on 19 March 2018 rather than 8 July 2019; and/or

(c) not treating the plea as having been entered at the first reasonable opportunity.

Ground 2: The sentencing judge erred in not having regard to dead time the applicant had served in custody.

4 At the conclusion of oral submissions, we determined that the appeal should be allowed on both grounds, and that the appellant should be resentenced to a total effective term of two years and eight months' imprisonment with a non-parole period of one year and nine months. These are our reasons for that conclusion.

5 The offence, contained in the first charge, was alleged to have been committed by the appellant between 17 April and 18 July 2017. At that time, both the appellant and Hamment each resided at Christmas Hills in country properties that were approximately 8.5 kilometres apart. In late 2016, police commenced an investigation into the drug activities of the two men. In doing so, the police arranged for telephone intercepts, and for the installation of listening devices in both their homes. Between 18 March and 16 April 2017, seven conversations were intercepted in which they discussed in detail the chemical and manufacturing process for producing methylamphetamine. On 16 April 2017, a listening device installed in Hamment's house revealed that he was using electronic equipment to search for such devices. He located the listening device that was fitted in his home and removed it. As a result, search warrants were executed at both properties on the following day.

6 On execution of the warrant at the appellant's property, police located a large amount of substances and equipment. Among the items were scientific equipment including funnels, pipettes, measuring cylinders, condensers and thermometers. Much of that equipment contained traces of various prohibited and prescribed substances, including phenyl-2-propanone ('P2P'), methylamphetamine, mercury, acetic anhydride and mercuric chloride.

7 The chemical mercury is used to produce mercuric chloride. Both of those substances are prescribed precursor chemicals. In combination with P2P, methylamine and aluminium, mercuric chloride can be used in the manufacture of methylamphetamine.

8 Subsequently, the police searched the appellant's home again on 18 July 2017. On that date police again found equipment and substances that could be used in the manufacture of drugs of dependence.

9 Charge 1 - possession of substances and equipment for the purpose of trafficking in a drug of dependence - was based on the items located by the police in the two searches they conducted on 17 April and 18 July 2017. It was the combination of the possession of the glassware, equipment and other paraphernalia used in the production of methylamphetamine, the presence of precursor chemicals, the traces of methylamphetamine on the equipment, and the intercepted conversations between the appellant and Hamment, that provided the evidentiary foundation for charge 1. Charge 2 - possession of a drug of dependence - was based on the finding by police, on 17 April 2017, of a small quantity of methylamphetamine (0.8 grams) in a Pyrex container in a refrigerator in the appellant's kitchen.

10 On 17 April 2017, the appellant was arrested and interviewed. He denied allegations put to him that he and Hamment had been involved in manufacturing drugs at the properties. The appellant said that Hamment had been present at his property in order to help the appellant clean the property. The appellant also said that the condensers at his property were used for distilling alcohol, and he maintained that he was unaware that mercury was an illegal precursor substance.

11 The appellant was again arrested and interviewed on 18 July. He again denied any knowledge of, or involvement in, the manufacture of methylamphetamine, and of the possession of substances and equipment for the purpose of manufacturing and trafficking in that substance. During the interview, he said that 'blow ins', whose identity he did not know, would stay in a shed on his property. In that way the appellant impliedly suggested that those persons could have been responsible for using the equipment on the premises to manufacture drugs. The appellant also implied that his partner's father was responsible for the presence of the P2P and methylamphetamine. He said that the condensers were used by his partner to produce 'essential oils' and that the mercuric chloride, that had been found on the premises, was used as an insecticide and to treat mange in dogs. He again maintained that he and Hamment were not involved in manufacturing drugs.

12 On 16 October 2017, the appellant was charged with a number of offences, that included a charge of trafficking methylamphetamine. A hand up brief was served on the appellant on 11 January 2018. Seven weeks later, on 16 February 2018, the appellant offered to plead guilty to a charge of possession of precursor chemicals. The prosecution rejected that offer on 19 February. One month later, on 19 March 2018, and before the second committal mention hearing, the appellant offered to plead guilty to the charges, which were ultimately contained in the indictment. That offer was also rejected by the prosecution. On the plea, the prosecutor acknowledged that the charges, to which the appellant ultimately pleaded guilty, were essentially the same charges to which he had offered to plead guilty on 19 March 2018.

13 Following the rejection of that offer, a contested committal proceeding was held on 29 March 2018. The appellant was discharged on the charge of trafficking in a drug of dependence, but he was committed for trial on seven charges, namely: two charges of possession of items for the purpose of trafficking (on 17 April and 18 July 2017); three charges of possession of precursor chemicals; and two charges of possession of a drug of dependence. He announced a plea of not guilty to those seven charges.

14 Subsequently, the matter was fixed for trial on 8 July 2019. On that date, the appellant renewed the plea offer that he had previously made on 19 March 2018. That offer was then accepted by the prosecution. As a result, a new indictment was filed over, and the appellant pleaded guilty to the two charges in it.

Time spent by appellant in custody before sentence

15 In the period between his arrest and the plea, the appellant spent separate periods in custody, not all of which constituted pre-sentence detention in respect of the charges on which he was sentenced in this case or other unrelated charges on which he was sentenced during that period.

16 As we have mentioned, the appellant was originally charged on 16 October 2017. Following his committal proceeding on 29 May 2018, he was released on bail. Subsequently, on 10 October 2018, the appellant was charged and remanded on unrelated matters. On 8 July 2019, his bail in the present matter was revoked after he pleaded guilty to the two charges on the indictment. Subsequently, the unrelated matters resolved to a plea in the Magistrates' Court, with most of the serious charges being withdrawn. On 7 November 2019, the appellant was sentenced on the remaining charge to 90 days' imprisonment, all of which was declared as pre-sentence detention.

17 In the present case, the appellant was sentenced on 19 December 2019. At that date, he had accumulated 164 days of pre-sentence detention which could be, and was, declared pursuant to s 18(4) of the Sentencing Act 1991. In addition, he already had a residue of 181 days in custody which did not qualify for that declaration. It consisted of the period between 10 October 2018 (on which the appellant was charged and remanded on unrelated allegations) and 8 July 2019 (when his bail was revoked on the present matter after he pleaded guilty), less the 90 days of that period which qualified for a declaration under s 18(4) of the Sentencing Act in respect of the sentence imposed on him on the unrelated charges. Thus, when the appellant came for sentence in the present case, he had spent 181 days in custody which was not declared as pre-sentence detention in relation to the sentence imposed on him in the previous matter, and which could not be declared under s 18(4) in the present case. In the lexicon of sentencing practice, it constituted a period of 181 days of 'dead time'.

18 The appellant has a number of previous convictions, dating as far back as 1981. A number of the convictions involved charges for possession, cultivation or trafficking of a drug of dependence.

19 Relevantly, in 1993, the appellant was convicted and fined by the Ringwood Magistrates' Court on charges of cultivating a narcotic plant (cannabis), possession of Indian hemp and using cannabis. Ten years later, in October 2003, he was sentenced by the Melbourne County Court, on one charge of trafficking a drug of dependence and one charge of possession of a drug of dependence, to three years' imprisonment, with a non-parole period of 18 months. In April 2006, he was sentenced to a further term of nine months' imprisonment by the Melbourne County Court on one charge of trafficking a drug of dependence.

20 On 9 March 2011, the appellant was sentenced by the County Court, on two charges of trafficking a drug of dependence, and a summary charge of possession of methylamphetamine, to a total of four years' imprisonment with a non-parole period of three years.

21 The appellant was born in May 1962. At the time of sentence, he was 57 years of age. He grew up in the eastern suburbs of Melbourne. The appellant's father was a university lecturer and mechanical engineer.

22 The appellant was educated to Year 12 level. Upon leaving school he commenced work as a glass blower, and he then completed a four year apprenticeship as a fitter and turner. Subsequently, he undertook a course by night school to qualify as a toolmaker. In about 1988, he established his own engineering business which he conducted for some twenty years. In the meantime, he was in a stable de facto relationship for some twenty years. Following the failure of that relationship, he commenced a further relationship, in which his partner gave birth to his son. That relationship having failed, the appellant then commenced a further relationship which endured for some six years.

23 On the plea, counsel for the appellant relied primarily on his plea of guilty, which it was submitted was an early plea. In addition, counsel submitted that the 181 days of dead time which the appellant had spent in custody, and which we have described above, attracted the principles set out in R v Renzella.[1]

24 In her reasons for sentence,[2] the judge accepted that the appellant's pleas of guilty had a utilitarian value, and that they facilitated the course of justice.[3] In respect of the timing of the plea, the judge, in a passage which is the subject of ground 1, said:

It was not suggested, not surprisingly in light of the materials generally before me, that your plea of guilty was any evidence of remorse, but it was certainly a pragmatic acceptance of the strength of the case in respect of those charges against you. Although you did offer to plead guilty to the major charge before committal, from the discussions in the course of the plea, I am satisfied that you then made a strategic decision after committal to contest all charges and not revive the offer to plead guilty to these charges until the trial was due to commence. In those circumstances, I do treat it as a court door offer, as one, although made at an early stage, not pursued and therefore I do not consider you are entitled to the benefit of an early plea of guilty. I note that in the defence response filed by you, that you have put in issue knowledge and intent in respect of the charge of possession of substances and equipment for trafficking purposes.[4]

25 The judge then noted that the appellant had a significant relevant criminal history.[5] She regarded the appellant's prospects of rehabilitation as being 'poor'.[6] Her Honour considered that the appellant had not demonstrated that he would alter his ways.[7]

26 In respect of the issue of the 'dead time' that the appellant had spent in custody, the judge, having recited the history that we have set out above, stated, in a passage that is the subject of ground 2:

That left 183 days of pre-sentence detention that you had spent in relation to the other matters which was not consumed by the sentence ultimately passed in the Magistrates' Court. It was put that, in accordance with the decision in Renzella, I should take that 183 days into account in a general sense in imposing this sentence. I disagree. It is clear from what I was told by Mr Langton in the course of the plea that you had made a conscious tactical choice for reasons of your own and which I was not told about, not to apply to have your bail for these matters revoked when you were remanded in respect of the later charges. Given your history, I am satisfied that you were well aware that you could do so and what the effect of that would be in terms of sentencing for this. I do not therefore propose to reduce the sentence in respect of these matters by taking into account, in a general way, the 183 days that you spent in pre-sentence detention in respect of the other matters which were not then consumed by the sentence imposed**.****[8]**

27 In support of ground 1, counsel for the appellant contended that it was not open to the judge not to afford the appellant the 'discount', to which he would have been entitled had his plea offer that he made on 19 March 2018, been then accepted by the prosecution. Counsel submitted that this is not a case in which the prosecution was bound to refuse that offer. The 'rolling up' of the various possession charges, which had previously been brought against the appellant, into a single charge of possession for trafficking, and the removal of allegations that the appellant manufactured drugs with Hamment, represented the first reasonable opportunity for the appellant to plead guilty in the case. That was reflected by the omission in the prosecution plea opening of a number of allegations, which had been contained in the previously filed prosecution trial opening, and which were not accepted by the appellant. Counsel submitted that in the circumstances in which the prosecution had rejected the plea offer that was made on 19 March 2018, and in which negotiations between the parties had been affected by the position taken by and towards Hamment, it was not open to the judge to regard the appellant's conduct, between the rejection of the March 2018 offer and the subsequently remaking of that offer, as precluding recognition that the original offer had been made at an early stage in the proceeding.

28 Counsel submitted that the error by the judge, in her characterisation of the timing of the plea of guilty in this case, constituted a material error, by reason of which the sentences imposed on the appellant should be set aside and the appellant re-sentenced.

29 In response, counsel for the respondent noted that at no time after 19 March 2018 did the appellant renew the plea offer. Rather, the appellant filed a defence response in which he denied knowledge and intention in relation to each of the charges. It was submitted that, by doing so, the appellant had made clear his intention not to pursue the plea offer he had earlier made. In that respect, counsel noted that the prosecution had made clear to the appellant its intention not to pursue allegations other than those that had been encompassed in the plea offer made by the appellant on 19 March 2018. Counsel further submitted that the original plea offer of 19 March 2018 had been made subject to certain conditions which were not reiterated in the offer made by the appellant on the first day of the trial, and which was accepted by the prosecution.

30 In those circumstances, it was submitted, the first day of the trial was not the first reasonable opportunity for the appellant to plead guilty. In that respect, counsel for the respondent noted that although some aspects of the trial opening were amended following the appellant's guilty plea, those amendments did not represent a major departure from the document which summarised the opening that the prosecution intended to make at the trial of the charges.

31 Counsel for the respondent further submitted that the sentencing judge possessed a wide discretion in assessing the quality and implications of a plea of guilty. It was submitted that in the circumstances, the appellant was not entitled to the same degree of mitigation as an accused person who, throughout the course of the proceeding, had maintained a willingness to plead guilty to the charges upon which that accused was ultimately sentenced. Counsel accordingly submitted that the judge was correct to regard the appellant's plea of guilty as one which, although made at an early stage, had not been pursued.

32 It is well-established, and specifically recognised in s 5(2)(e) of the Sentencing Act, that a plea of guilty by an offender is a relevant sentencing consideration. Ordinarily, save in exceptional circumstances, it is regarded as an important mitigating circumstance which the Court should take into account.[9] In the present case, the judge, correctly, recognised that the pleas of guilty by the appellant were clearly of utilitarian value, in that they facilitated the course of justice and saved the time and expense of a contested trial of the charges.[10] That aspect of the mitigating quality of a plea of guilty has been discussed in a number of authorities which have explained the importance, to the efficient and appropriate conduct of our criminal justice system, of a process by which an offender acknowledges his or her guilt of the offences charged.[11]

33 Section 5(2)(e) provides that the Court should take into account (inter alia) the stage at which the offender pleaded guilty to the offence charged. In that respect, it has been recognised that particular weight should be attributed to a plea which may be characterised as being made at an early stage in the proceeding.[12] In determining whether a plea is characterised as an 'early' plea, the relevant question is whether the plea was made (or, in a case such as this, offered) at the first reasonable opportunity that was available to the offender to do so.[13]

34 Similar principles are applied to an offer that is made by an offender to plead guilty, which is rejected by the prosecution, and which is ultimately reflected either in the verdict on a contested trial or in a later plea accepted by the prosecution. In such a case, the question is whether the offer was made at the first reasonable opportunity.[14]

35 As mentioned, the appellant originally offered to plead guilty, to the charges on which he was ultimately sentenced, on 19 March 2018, before the hearing of the second committal mention. It is plain, therefore, that that offer was made at the earliest reasonable opportunity. If the offer had been accepted by the prosecution on that date, it would have been properly characterised as an early plea, and entitled to be accorded due weight as such in mitigation of sentence. The prosecution elected not to accept that offer, but rather, decided to continue to prosecute other additional charges against the appellant. Ultimately, on the first day of the trial, those additional charges were withdrawn. It was in that context that the appellant pleaded guilty to the two charges on which he was ultimately sentenced. On the face of those circumstances, accordingly, it seems incontrovertible that the original offer made by the appellant, and the plea entered by him to the two charges, were both made at the first reasonable opportunity to do so.

36 The judge rejected that proposition on the basis that after the first offer was rejected, the appellant then made a 'strategic decision after committal' to contest all charges and not to revive the offer to plead guilty to the two charges on which he was ultimately sentenced.[15] It is not apparent what that strategic decision was. Nor was there available to the judge any material on which such an inference could have been properly founded. The plain fact is that the appellant offered to plead guilty at a very early stage of the proceeding to the two charges on which he was ultimately convicted. In those circumstances, in our view, it was erroneous of the judge to treat the offer, that was ultimately accepted, as a 'court door offer ... although made at an early stage ...'.[16]

37 The fact that the appellant did not subsequently renew the offer, after it was first rejected, did not detract from its characterisation as an offer made at the first reasonable opportunity. If the appellant had, in the interim, renewed the offer, no doubt that might have entitled the plea, that he ultimately made, to be accorded even greater weight. However, the fact that he did not do so could not logically have the effect that the plea of guilty, ultimately entered by the appellant, was a 'court door offer', in circumstances in which it replicated the offer previously made by him. In that way, in our view, the assessment by the judge of the quality and timing of the offer, and the plea, made by the appellant significantly undervalued the weight that should have been attributed to it as a mitigating factor.

38 For those reasons, we upheld ground 1 of the application.

39 In support of ground 2, counsel for the appellant submitted, first, that it was not open to the judge to conclude that the fact, that the appellant had not made an application for his bail on the present matters to be revoked during the period of dead time, was a tactical decision made by the appellant. However, in any event, it was submitted that the reason why the appellant did not make such an application was irrelevant to the exercise of the discretion of the judge to take into account the dead time during which he had been in custody. The fact that the appellant had served time unnecessarily because, as it transpired, other charges were not pursued against him, was the sort of circumstance that justified the exercise of the discretion discussed in Renzella. Accordingly, it was submitted that the judge erred in failing to take that time into account, and that such an error by her Honour was material to the determination of the sentence imposed on the appellant.

40 In response, counsel for the respondent properly accepted that the judge should have made some allowance for the 'dead time' as a mitigating factor. Counsel submitted that such an allowance is not a mathematical exercise, and that it is a matter for the individual judge, in the exercise of the sentencing discretion, to decide what weight, if any, should be attributed to the 'dead time'. In that respect, counsel referred to the observation by Tate JA in Karpinski v The Queen[17] that such time cannot be regarded as 'a credit in a bank to be called upon to reduce a sentence for unrelated offending.'[18]

41 In Renzella, the Court recognised that where an offender, who is to be sentenced, has been in custody for a period which does not qualify as pre-sentence detention under s 18(4) of the Sentencing Act, the sentencing Court is 'not only empowered but obliged as a matter of justice' to take that period into account as a mitigating circumstance.[19]

42 The authorities make it clear that the manner in which the 'dead time' is to be taken into account is not a mathematical exercise. In other words, that factor does not entitle an offender, in each case, to a reduction in the sentence that is identical to the 'dead time' already spent by the offender in custody. However, it is important to bear in mind that the principle reflects a recognition, in an appropriate case, that, in addition to the sentence which is to be imposed, the offender has already spent a period in custody which could not otherwise be treated as part of a sentence served by that offender for a different offence for which the offender has been convicted. In that way, the principle is based on fundamental considerations of fairness, as well as on the principle of totality.

43 In the present case, the judge declined to take the 'dead time', spent by the appellant, into account, because she considered that the appellant had made a 'conscious tactical choice' not to apply to have his bail, for the present matters, revoked when he was remanded in respect of the other charges.[20] It is difficult to perceive precisely what the 'conscious tactical choice' was. It is even more difficult to discern any rational reason why such a choice would have been made by or on behalf of the appellant. However, whether that circumstance arose by way of tactical choice or otherwise, the fact remained that, when the appellant fell for sentence, he had spent almost six months in custody, which did not, and could not, constitute part of any sentence in respect of which the appellant had been or would be sentenced at law. In those circumstances, the basic principles of just sentencing required that that factor be taken into account as a mitigating circumstance. In our respectful view, the failure of the judge to do so not only was an error of law, but resulted in an unfair and unjust sentence being imposed on the appellant.

44 As senior counsel for the respondent correctly pointed out, the weight to be attributed to the 'dead time' as a mitigating circumstance does not involve a mathematical exercise, by which the offender, in this case, the appellant, must be credited with the 'dead time' on a pro rata basis.[21] In the present case, taking into account the seriousness of the offending, and the previous convictions of the appellant for related offences, we did not consider that the appellant should be entitled to a 'credit' on his sentence that matched the full amount of the 'dead time'.

45 For the foregoing reasons, we held that grounds 1 and 2 of the notice of appeal succeeded. Accordingly, we made orders that the appeal be allowed, that the sentences imposed on the appellant be set aside, and in their place, the appellant be resentenced, on charge 1, to two years and eight months' imprisonment, and on charge 2, to one month imprisonment. Thus, the total effective sentence is two years and eight months' imprisonment, and we fixed a non-parole period of one year and nine months. We declared, pursuant to s 6AAA of the Sentencing Act, that but for the appellant's pleas of guilty, we would have sentenced him to a total effective term of three years and two months' imprisonment, with a non-parole period of two years and three months.

[1] [1997] 2 VR 88, 96 (Winneke P, Charles and Callaway JJA) ('Renzella').

[2] DPP v Thurlow [2019] VCC 2217 ('Reasons').

[9] R v Hall (1994) 76 A Crim R 454, 469-70 (Crockett and Southwell JJ); Phillips v The Queen [2012] VSCA 140; (2012) 37 VR 594, 601-2, [24]; [2012] VSCA 140 (Nettle JA).

[11] See, eg, Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339, 360-1 [66]-[68]; [2002] HCA 6 (Kirby J) ('Cameron').

[12] R v Howard [2009] VSCA 281, [16] (Nettle JA).

[13] Atholwood v R (1999) 109 A Crim R 465, 467-8, [10]; [1999] WASCA 256 (Ipp J); Cameron [2002] HCA 6; (2002) 209 CLR 339, 345 [21]; [2002] HCA 6 (Gaudron, Gummow and Callinan JJ); Ngo v The Queen [2021] VSCA 21, [32] (Kaye and Niall JJA).

[14] Carr v The Queen [2012] VSCA 299, [70] (Neave and Redlich JJA and Williams AJA); Zarghami v The Queen [2020] VSCA 74, [21]-[23] (Kaye, T Forrest and Osborn JJA).

[17] (2011) 32 VR 85; [2011] VSCA 94 ('Karpinski').

[19] Renzella [1997] 2 VR 88, 96-7 (Winneke P, Charles and Callaway JJA). See also R v Stares [2002] VSCA 70; (2002) 4 VR 314, 323 [27]; [2002] VSCA 70 (Charles JA).

[21] See, eg, R v Chimirri [2003] VSCA 45, [4]-[5] (Winneke P, Phillips and Eames JJA); Karpinski [2011] VSCA 94; (2011) 32 VR 85, 103 [73]-[74]; [2011] VSCA 94 (Tate JA).