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[2016] ACTCA 53
Court of Appeal (ACT)
2016-10-20
Murrell CJ, Elkaim and Ross JJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
APPEALS - CRIMINAL LAW - Sentencing - whether sentence is manifestly excessive - attempting to obtain property by deception - being knowingly concerned in possession of drug of dependence with intent to sell or supply - application of Bui v The Queen [2015] ACTCA 5 - accumulation of sentences - non-parole period
Criminal Code 2002 (ACT) ss 20, 45, 332, 600, 602, 603, pt 6
Court Procedures Rules 2006 (ACT) rr 5101, 5111, 5137, 5138
Balthazaar v The Queen [2012] ACTCA 26
Barbaro v The Queen [2014] HCA 2; 253 CLR 58
Barrett v The Queen [2016] ACTCA 38
Bui v The Queen [2015] ACTCA 5
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Gas v The Queen [2004] HCA 22; 217 CLR 198
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] HCA 70; 166 CLR 59
Munro v The Queen [2014] ACTCA 11
O'Brien v The Queen [2015] ACTCA 47
Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Pham v The State of Western Australia [2011] WASCA 244
R v De Simoni [1981] HCA 31; 147 CLR 383
R v Ellis (1993) 68 A Crim R 449
R v Hoang [2015] ACTSC 138
R v Kilicaslan [2015] ACTSC 39
R v Mahoney [2000] NSWCCA 256
R v Meyboom [2012] ACTCA 48
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Schero (Unreported, Supreme Court of the ACT, Higgins CJ, 19 July 2012)
R v Truong [2015] ACTSC 244
R v TW [2011] ACTCA 25; 6 ACTLR 18
Taylor v The Queen [2014] ACTCA 9
Citation: [2015] ACTSC 393
1. The appellant appealed against sentences imposed by Robinson AJ (the sentencing judge) on 16 December 2015. The appellant was sentenced for four offences arising from two incidents.
2. The sentencing judge imposed a total sentence of 21 months' imprisonment and set a non-parole period of 14 months' imprisonment. The sentences are detailed in the following table.
Knowingly concerned in an attempt to obtain a financial advantage by deception pursuant to s 332 of the Criminal Code 2002.
Knowingly concerned in the possession of a drug of dependence (cocaine) with the intention of selling or supplying it pursuant to s 164(2)(c) of the Drugs of Dependence Act 1994
Knowingly concerned in the possession of a drug of dependence (methylamphetamine) with the intention of selling or supplying it pursuant to s 164(2)(c) of the Drugs of Dependence Act 1994
Possession of prohibited substance (MDMA) pursuant to s 171(1)(b) of the Drugs of Dependence Act 1994
3. The sentence on Count 1 reflected a discount of 25% for the plea of guilty. On the other counts, the sentencing judge allowed a discount of 20% for the pleas of guilty.
4. At the hearing of the appeal, the appellant made the following submissions.
(a) Having regard to the objective seriousness of the offences, the sentences on Counts 2 and 3 were manifestly excessive. The sentencing judge erred by applying the principles in Bui v The Queen [2015] ACTCA 5 (Bui) when assessing the objective seriousness of the offences. The sentencing judge also erred by taking into account the entire quantity of drugs when only some of the drugs were to be sold or supplied (the remainder was for consumption by the principal offenders). Further, the sentencing outcomes were inconsistent with those in comparable cases.
(b) The sentencing judge completely accumulated the sentences for Counts 2 and 3 on the sentence for Count 1 and failed to explain why he had done so; the sentences imposed on Counts 2 and 3 should have been partially concurrent with the sentence imposed on Count 1.
(c) The sentencing judge imposed an excessive non-parole period which failed to reflect the appellant's prospects of rehabilitation.
5. On 20 March 2014, the appellant was driving his uninsured Mercedes Benz motor vehicle on the Federal Highway when it collided with a kangaroo, causing significant damage to the vehicle. Within a few days of the collision, the appellant entered a comprehensive insurance policy with AAMI, procured a false receipt from a tow truck operator and lodged a dishonest insurance claim on the policy for $82,721 for damage to the vehicle. The claim was not met.
6. On 16 April 2014, police executed a search warrant at a residential property occupied by the appellant and his partner. The appellant was the President of the ACT Chapter of the Comanchero Outlaw Motorcycle Gang (COMG). A shed at the rear of the house was frequented by members of the COMG, who used it as a clubhouse.
7. In a cupboard at the back of the shed, police found a clip-sealed bag containing a white powdered substance weighing 242 g. The substance was 32% cocaine, i.e. it had a base of 77.9 g of pure cocaine (estimated street value $64,000-$84,000) (Count 2). Police also located a clear snap-locked bag containing blocks of a green crystalline substance weighing 224 g. The substance was 10.5% methylamphetamine, i.e. it had a base of 23.5 g of pure methylamphetamine (estimated street value $32,000-$112,000) (Count 3). In the same cupboard, police found a cut vacuum-sealed plastic bag which contained a small amount of methylamphetamine, digital scales containing traces of cocaine and methylamphetamine, and an "ice pipe" (a pipe that was used for smoking methylamphetamine).
8. In the kitchen pantry of the house, police found a brown substance that weighed 1.688 g and contained MDMA (Count 4).
9. Initially, the appellant was charged with trafficking in drugs contrary to s 603 of the Criminal Code 2002 (ACT) (Criminal Code). He pleaded not guilty and was committed for trial. Within weeks of the scheduled dates for separate trials on Incidents 1 and 2, the prosecution filed a new indictment containing charges under s 164 of the Drugs of Dependence Act 1994 (ACT) (Drugs of Dependence Act) and the appellant entered pleas of guilty.
10. When considering the objective seriousness of the drug offences, at [19] the sentencing judge noted that the prosecution case was not that the appellant had intended to personally sell or supply the drugs found in the shed. The statement of facts said that "he was aware drugs were present in the shed and that others would likely use, supply to others and sell them". His Honour accepted that the drug offences were to be viewed as an isolated incident.
Some principles that have been identified in the authorities concerning the sentencing of drug traffickers include:
(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at 50; [33].
(b) While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430 at 438; [34].
(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly [2002] NSWCCA 300; (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.
(emphasis added)
12. Immediately after this reference to Bui, the sentencing judge canvassed the appellant's subjective circumstances. His Honour noted that the appellant had been convicted of possessing drugs, assault and many less serious charges. However, his record entitled him to some leniency.
13. When speaking to the authors of the pre-sentence report, the appellant had claimed that he had changed his lifestyle and abandoned his association with the COMG. At the sentencing hearing, there was a discussion between the sentencing judge and the appellant's counsel during which the sentencing judge said that he would not accept the appellant's claim unless he heard evidence from the appellant supporting the claim. The appellant was not called. Ultimately, the appellant's counsel did not pursue the submission that the appellant had changed his lifestyle and abandoned the COMG.
14. In relation to rehabilitation and risk of reoffending, in his remarks the sentencing judge noted that the authors of the pre-sentence report had described the appellant as at low risk of general reoffending given his stable accommodation, family support and long-standing employment. At [28], his Honour observed:
At the bar table there was discussion concerning the rehabilitation of the offender. I have concluded that the offender does not require the assistance of professionals in this regard. The offender is quite capable of and does function according to his capacity. The choices he has made have involved him accepting the risks associated with criminal behaviour. It remains to be seen whether he will make the same choices in the future.
The matter of his on-going association with members of the Comanchero Motorcycle Club could impact on his risk of recidivism.
15. The sentencing judge found that each of the three major offences (Counts 1, 2 and 3) invoked the sentencing purposes of adequate punishment and general deterrence: at [38].
16. Because Counts 2 and 3 were "part of the one transaction", his Honour imposed completely concurrent sentences for those matters: at [39].
17. The appellant submitted that the sentences on Counts 2 and 3 were manifestly excessive given the objective seriousness of the offences; among other things, the sentencing judge had erred by applying the principles in Bui to an assessment of the objective seriousness of the offences, had erred by taking into account the entire quantity of drugs (when only some of the drugs were to be sold or supplied) and that the sentencing outcomes were inconsistent with sentencing outcomes in comparable cases.
18. It is necessary to consider how the quantity of an illicit substance may be relevant when sentencing an offender who, because they were "knowingly concerned", is guilty of an offence against s 164(2)(c) of the Drugs of Dependence Act.
19. The offence of possessing a drug of dependence for the purpose of sale or supply contrary to s 164(2)(c) of the Drugs of Dependence Act carries a maximum penalty of five years' imprisonment (and/or a fine).
20. An offender may commit an offence against s 164 in one of three ways: by selling or supplying a drug; by participating in the sale or supply of a drug; or by possessing a drug for the purpose of sale or supply. In this case, the offences were committed in the third way.
21. Section 164 is contained within pt 10 of the Drugs of Dependence Act, which deals with offences of cultivating cannabis plants (s 162), selling, supplying or possessing for sale or supply a prohibited substance or drug of dependence (s 164) and possessing a drug of dependence (s 169). In the Dictionary to the Drugs of Dependence Act, "sell" is defined to include "offer or expose for sale" and "supply" is defined to include "offer to supply". The maximum penalty of five years' imprisonment applies to the sale or supply of any quantity of a drug.
22. Originally, pt 10 included other offences and different penalties applied depending on the quantity of the drug that was the subject of a s 164 offence. Heavy penalties applied to the sale, supply or possession for sale or supply of the "commercial" or "trafficable" quantity of a drug. The lower penalty of five years' imprisonment was reserved for those cases where the prosecution could not prove beyond reasonable doubt that the quantity of the drug was, at least, the "trafficable" quantity.
23. However, in 2004 more serious offences involving the sale or supply of the "large commercial quantity", the "commercial quantity" or the "trafficable quantity" of a drug were removed into the Criminal Code. Under the Criminal Code, "trafficking" includes "selling", which includes "supplying" by way of sale or otherwise: ss 600 and 602 Criminal Code. Trafficking in the "trafficable quantity" of a controlled drug other than cannabis attracts a maximum penalty of 10 years' imprisonment. Trafficking in the "commercial quantity" of a controlled drug attracts a maximum penalty of 25 years' imprisonment. For both cocaine and methylamphetamine, the "trafficable quantity" and "commercial quantity" are 6 g and 3 kg respectively.
24. Since 2004, s 164 has been used to prosecute the supply and sale of small drug quantities (or where it cannot be proved that the quantity exceeded the trafficable quantity under the Criminal Code). There may be cases where, for reasons other than drug quantity, a prosecution is brought under s 164 rather than under the Criminal Code. But, generally, it is the quantity that dictates whether proceedings are brought under the Drugs of Dependence Act or the Criminal Code.
25. Consequently, when sentencing for an offence against s 164 of the Drugs of Dependence Act, a sentencing judge cannot take into account as an aggravating feature that an offender possessed for supply, or actually sold or supplied a drug quantity that would have rendered the offender guilty of a more serious offence against the Criminal Code. To do so would involve a breach of the principle in R v De Simoni [1981] HCA 31; 147 CLR 383 that a sentencing judge cannot take into account a circumstance of aggravation that would warrant a conviction for a more serious offence. On the other hand, the sale or supply of a very small quantity (e.g. one small "deal") is a factor that may lessen the objective seriousness of an offence against s 164. These considerations provide a context within which to consider the relevance of the quantity of the drug that is the subject of a charge under s 164 of the Drugs of Dependence Act.
26. The central purpose of sentencing in most drug supply matters is to deter the dissemination of drugs in the community and thereby prevent harm to the community. For this reason, the quantity and purity of drugs is relevant to a determination of objective seriousness. Regardless of a drug supplier's knowledge about quantity and purity, both considerations are relevant to the sentencing purposes of general deterrence and protection of the community: Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) s 7.
27. A separate but related consideration is an offender's knowledge about the nature, quantity and purity of the drug that they are helping to disseminate. An offender's knowledge about these matters may inform an assessment of the offender's culpability. However, it is commonly the case that persons involved in drug supply (for example, couriers) do not know the nature, quantity or purity of the drug that they are helping to disseminate. Consequently, lack of specific knowledge about drug quantity or purity will not usually be an important consideration in sentencing. Where an offender does not know the quantity and purity of the drug, quantity and purity remain relevant and important to sentencing purposes such as protection of the community: Pham v The State of Western Australia [2011] WASCA 244.
28. Part 6 of the Criminal Code, which includes s 45 (complicity and common purpose), creates extensions of criminal responsibility. Under s 45 a person is "taken to have committed an offence" if (among other things) the person is "knowingly concerned" in the commission of the offence by another person. An offender is "knowingly concerned" if (among other things) their conduct is intentional and they are "reckless" about the commission of the principal offence. "Recklessness" is defined in s 20 of the Criminal Code to include awareness of substantial risk and unjustifiable taking of the risk.
29. In the case of an offender who is guilty because of criminal complicity, the quantity of the drug that was to be sold or supplied (or was possessed for that purpose) is no less important to the assessment of objective seriousness than it is in the case of a principal offender. The same logic applies: drug offences are designed to prevent the dissemination of drugs in the community and drug quantity informs the degree of harm associated with any drug offence.
30. Just as a principal offender's knowledge or lack of knowledge about the nature, quantity or purity of the drug that they are helping to disseminate may be of some, albeit limited, significance to an assessment of culpability, the knowledge or lack of knowledge of an offender who is guilty because of complicity may be of some significance but will not usually be a central consideration.
Did the sentencing judge err in failing to distinguish between possession for use and possession for sale/supply?
31. Although the sentencing judge was well aware that some of the drugs were possessed for use, in the sentencing remarks his Honour did not expressly distinguish between the drugs that were possessed for use (conduct that is not the subject of s 164) and the drugs that were possessed for sale or supply (conduct that is the subject of s 164).
32. In the submissions on sentence, he was not asked to do so.
33. Nor was the need to distinguish between possession for use and possession for supply/sale mentioned in the notice of appeal or the written submissions filed on the appeal. Rule 5101(1)(g) of the Court Procedures Rules 2006 (ACT) says that a notice of appeal should briefly, but specifically, state the grounds relied upon in support of the appeal, including, in particular, any grounds on which it is claimed that there was an error of law in the order of the court. Under r 5111, leave is required to amend the notice of appeal after the appeal papers have been settled. Rule 5137 provides for the filing and serving of a written summary of arguments. Rule 5138 requires that a summary of argument must state the issues in the appeal and an outline of the argument to be made in relation to each issue. The appellant did not comply with these rules. The use versus supply/sale argument is very much an "armchair" point: Munro v The Queen [2014] ACTCA 11 at [128]; R v Mahoney [2000] NSWCCA 256 at [15].
34. Nevertheless, as the point is readily dismissed, we will deal with it.
35. His Honour was aware that some of the drugs were possessed for use. We would not readily infer that he overlooked this matter when he found that "the quantity of drugs and their value was quite significant": at [23].
36. Counts 2 and 3 each involved a sizeable quantity of a prohibited drug (77.9 g of pure cocaine valued at a minimum of $64,000 and 23.5 g of pure methylamphetamine valued at a minimum of $32,000). As was admitted by the pleas of guilty, a portion of each large quantity was possessed for the purpose of supply or sale. The purity, quantity and value of each drug compelled a conclusion that a substantial portion of each large quantity was possessed for the purpose of supply or sale. To the extent that the portion exceeded the "trafficable quantity" of 6 g for each drug, it had to be disregarded for sentencing purposes.
37. Within the range of quantities that could be taken into account when assessing the objective seriousness of an offence against s 164 (i.e. no more than 6 g for each offence), the quantities that were possessed for supply or sale in this case were unarguably "quite significant". Not only was it impossible to be specific about the proportion of the drugs that was possessed for the purpose of use rather than sale or supply but, for sentencing purposes, any attempt to do so would have been pointless.
38. The appellant contended that the sentencing judge erred in applying the approach approved in Bui when assessing the objective seriousness of the drug offences because Bui related to offences of trafficking under s 603 of the Criminal Code and carried a maximum penalty of 10 years' imprisonment, not to offences of selling or supplying drugs under the Drugs of Drugs of Dependence Act, which carry a maximum penalty of 5 years' imprisonment.
39. At [24] of the sentencing remarks, his Honour described an offence under s 603 of the Criminal Code as "analogous" to an offence under s 164 of the Drugs of Dependence Act. His Honour then referred to a passage in Bui where the Court of Appeal set out three considerations that were relevant to sentencing drug offenders under s 603: the role of the accused (where the accused was positioned in the hierarchy of drug supply); the quantity of the drug (a matter that was not of chief importance); and the motive for the offence (whether for profit).
40. We note that, where Bui speaks of the role of an offender and an offender's position in the drug supply hierarchy as though they were the same thing, it would have been more accurate to say that an offender's role is to be determined not by attaching a label (for example, by reference to the offender's position in a drug supply hierarchy), but by examining what is known about the offender's conduct, i.e. "what the offender did"; the steps that the offender took to effect the offence: R v Olbrich [1999] HCA 54; 199 CLR 270 at [19], Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 at [135].
41. Similar considerations may be relevant when considering the objective seriousness of an offence against s 164 of the Drugs of Dependence Act and an offence under s 603 of the Criminal Code. First, under both provisions, it is critical to assess the culpability of "what the offender did". Second, under both provisions, the quantity of the drug and its purity may be relevant. For offences against s 164, a consideration of quantity is likely to be less important than it is under s 603 because almost all offences under s 164 involve small quantities. However, the quantity may be of some relevance, particularly if it is very small. Third, under both provisions, it is important to consider the motive for the offence; e.g. under s 164 the sale of a street deal for profit may be more objectively serious than sharing a drug in a non-commercial social context.
42. It was entirely appropriate for the sentencing judge to take into account (as he did at [23]) the appellant's conduct ("what he did"), that the "quantity of drugs and their value was quite significant" (inferentially, within the range of small quantities covered by s 164) and that there was "no evidence of financial reward flowing to the offender".
43. There is nothing in the sentencing judge's remarks that suggests that he misunderstood the maximum penalty applicable to an offence against s 164 of the Drugs of Dependence Act. A review of the transcript of the sentencing proceedings also shows that his Honour was conscious of the distinction between the maximum penalties applicable under s 164 of the Drugs of Dependence Act and s 603 of the Criminal Code.
44. The culpability of an accessory is not necessarily less than that of a principal: Gas v The Queen [2004] HCA 22; 217 CLR 198 at [23]. Much depends on what the offender did.
45. The appellant pleaded guilty to being knowingly concerned in two offences by others, namely possessing the drugs of dependence cocaine and methylamphetamine with the intention of selling or supplying those drugs.
46. By his pleas, the appellant admitted that he had intentionally allowed COMG members to leave items in the shed over which he exercised control and that he was aware of a substantial risk that drugs of dependence would be left in the shed, some of which were intended to be sold and supplied to other persons. As the statement of facts asserted, the appellant "was aware drugs were present in the shed and that others would likely use, supply to others and sell them".
47. Having regard to the large quantity of drugs that was present in his shed (not to mention their general appearance and the fact that they were located near digital scales containing traces of the same drugs), the appellant was very reckless, not only about the presence of drugs but also about the fact that a significant quantity of those drugs was possessed for sale and supply.
48. On the other hand, the offences were to be approached on the basis that they were an isolated act; the appellant himself did not intend to sell or supply the drugs and the appellant was to obtain no financial reward.
49. The sentencing judge did not expressly categorise the level of objective seriousness attaching to the offences. However, it is clear from his Honour's remarks and the 15-month starting points for the sentences that his Honour considered the offences to be of significant objective seriousness.
50. We agree that the quantity of drugs that was involved and the appellant's high degree of recklessness gave the offences significant objective seriousness.
51. A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is "manifestly excessive" in the sense that it is "unreasonable or plainly unjust": Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But "manifest excess" is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaar v The Queen [2012] ACTCA 26 at [61].
52. When deciding whether a sentence is "manifestly excessive", the legislated maximum penalty that applies to the "worst possible case" must be considered; it provides a "yardstick" for assessing the appropriate penalty: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.
53. As mentioned, Counts 2 and 3 involved offences of significant objective seriousness. On the other hand, the appellant did not advance strong subjective circumstances that attracted leniency. The courts see many offenders who, perhaps because of childhood disadvantage and a related long-standing problem of substance abuse, fall into an almost pre-ordained criminal lifestyle. Such subjective circumstances may attract considerable leniency. The appellant's circumstances were very different and attracted little leniency.
54. The sentencing judge agreed that the appellant's limited criminal history entitled him to some leniency. Otherwise, the sentencing judge was unimpressed. It was far from clear that the appellant had terminated his association with the COMG, a matter that could impact on his risk of recidivism, as the sentencing judge observed at [36]. The sentencing judge justifiably found that the appellant had chosen to engage in criminal conduct and it "remained to be seen" whether he would choose to change his ways.
55. The sentencing judge concluded that sentencing purposes of punishment and general deterrence should be emphasised. General deterrence was an important sentencing purpose, both in relation to insurance fraud and the facilitation of drug dissemination. We would add that specific deterrence was also an important consideration. The sentencing judge did not see a need for the sentence to support rehabilitation to any great extent; the appellant had the resources necessary to change his lifestyle and it was a matter for him whether he chose to do so.
56. The appellant provided the Court with a table of comparative cases involving sentences for offences against s 164 of the Drugs of Dependence Act. The appellant also provided ACT Sentencing Database graphs showing the types of sentences imposed in both the Supreme Court and the Magistrates Court (which has jurisdiction to deal with s 164 offences). Sentences are often in the range of 6 to 12 months. A minority of offenders receive sentences of full-time imprisonment. Many offenders are drug addicts or have other serious personal problems.
57. The appellant provided the Court with a table of cases showing sentences for offences imposed by the Supreme Court for offences against s 603(7) of the Criminal Code and ACT Sentencing Database statistics. The majority of offenders receive sentences involving a component of full-time imprisonment but the sentences are fully suspended in a significant minority of cases. In either case, the head sentence is often approximately 1 to 2 years.
58. The appellant referred to the sentences for offences against s 603(7) of the Criminal Code that were imposed in R v Truong [2015] ACTSC 244 and R v Hoang [2015] ACTSC 138. Both were relied upon as examples of more serious conduct to which a maximum penalty of 10 years' imprisonment applied, but where the penalty that was imposed was less than that imposed in the present case (in the latter case, the head sentence was relatively long but the non-parole period was short).
59. The respondent drew the Court's attention to sentences for offences against s 164 of the Drugs of Dependence Act, including in R v Schero (Unreported, Supreme Court of the ACT, Higgins CJ, 19 July 2012) and R v Kilicaslan [2015] ACTSC 39. In the latter case, the offender received a sentence of 12 months' full-time imprisonment for the offence of being in possession for the purposes of sale or supply of 3.435 g of methylamphetamine.
60. As has frequently been observed, the sentences imposed in other cases may show a sentencing pattern and provide a "yardstick", but they do not establish that the pattern is correct: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [41].
61. In summary, the Court was provided with a limited number of cases and statistics based on relatively few cases. Neither the cases nor the statistics provide a reliable indicator of a sentencing pattern. In any event, the table of cases and statistics that were provided in relation to sentences under s 164 suggest that the sentences that were imposed in this case were within the available range.
Were the sentences on Counts 2 and 3 manifestly excessive?
62. The sentences imposed on Counts 2 and 3 were stern. However, the starting point of 15 months' imprisonment was not outside the available sentencing range, taking into account the maximum penalty of five years' imprisonment, the significant objective seriousness of the offences, the absence of strong subjective features and the dominant sentencing purposes of punishment, general deterrence and specific deterrence.
63. We note that the appellant was fortunate to receive a discount of 20% for pleas of guilty entered shortly before the trial was scheduled to commence.
64. When sentencing for multiple offences, a sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623-624.
65. The sentencing judge did not state why he was entirely accumulating the sentences, but the reason was obvious. Counts 2 and 3 concerned very different conduct on an occasion quite separate from the Count 1 occasion.
66. The position is similar to that in O'Brien v The Queen [2015] ACTCA 47, where the Court rejected a submission that the complete accumulation of sentences resulted in a manifestly excessive total sentence. At [29] the Court stated:
Each of the three incidents for which the appellant was sentenced involved serious criminality that was separate and distinct. There is no overlap or commonality of factors or elements. Nor could it be said that the three incidents arose from a single episode or course of conduct such that the criminality involved in one of the incidents was subsumed or comprehended in the others...
67. The sentencing judge decided to completely accumulate the sentences for Counts 2 and 3 on the sentence for Count 1 although he could legitimately have made the sentences partially concurrent with the sentence on Count 1.
68. The decision to entirely accumulate the sentences for Counts 2 and 3 on the sentence for Count 1 should be considered in the context that his Honour also decided that the sentences for Counts 2 and 3 should be completely concurrent with each other.
69. It was not inappropriate to make the sentences on Counts 2 and 3 entirely concurrent. However, as the offences involved substantial amounts of different drugs, it was also open to the sentencing judge to partially accumulate the sentences. Where there are two separate offences with many common circumstances (such as an attempt to obtain possession of two parcels, each of which contained a different drug), it is not necessarily appropriate to impose entirely concurrent sentences: Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [12]. It was to the appellant's benefit that, in this case, the sentencing judge did impose entirely concurrent sentences.
70. The above discussion emphasises the point made by Penfold J in R v TW [2011] ACTCA 25; 6 ACTLR 18 at [83] that:
there is no single correct approach to the structuring of multiple sentences, and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise.
71. The real question is whether the total sentence is "just and appropriate" to reflect the total criminality: Mill v The Queen [1988] HCA 70; 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66].
72. We are not persuaded that the total sentence was not just and appropriate, given the totality of the criminal behaviour. Each offence incident involved unrelated criminal conduct of a quite different type (serious fraud and the facilitation of drug dealing), which occurred on a separate occasion. The appellant's subjective circumstances called for limited leniency. Sentencing purposes of punishment, general deterrence and specific deterrence were important. The maximum penalties were significant.
73. Counsel for the appellant had submitted to the sentencing judge that it was appropriate to impose a non-parole period of no more than 50% of the total sentence. On the appeal, it was submitted that the non-parole period of 66% that was imposed by the sentencing judge was manifestly excessive.
74. As this Court recently affirmed in Barrett v The Queen [2016] ACTCA 38, in this jurisdiction non-parole periods are often fixed at 50-70% of the total sentence. Generally, the determination of an appropriate non-parole period will be strongly informed by an offender's prospects of rehabilitation. However, the fixing of a non-parole period is discretionary and may legitimately be informed by a variety of factors other than rehabilitation.
75. Where a non-parole period falls outside the range of 50%-70% of the total term, error is not necessarily established, even in the case of an offender with a minor prior criminal history and no prior experience of imprisonment: Taylor v The Queen [2014] ACTCA 9 at [20].
76. The non-parole period of 66% of the total sentence that was fixed in this case was relatively high considering that the appellant had not previously served a sentence of full-time imprisonment and the impact of imprisonment on the appellant was unknown. However, the sentencing judge was sceptical about whether the appellant would choose to rehabilitate and adopt a crime free lifestyle. His Honour was entitled to impose the non-parole period that he did impose.
I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.
Zdravkovic
The Queen [2016] ACTCA 53