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DPP (Cth) & DPP (Vic) v Edge [2012] VSCA 289 (5 December 2012)

Last Updated: 13 December 2012

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0200

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CRIMINAL LAW – Sentence – Director’s appeal – Drug offences – Importation of marketable quantity of border controlled precursor (pseudoephedrine), contrary to s.307.12(1) of the Criminal Code(Cth) – Possessing substance, material, document and equipment with intention to use for trafficking a drug of dependence, contrary to s 71A(1) of the Drugs, Poisons and Controlled Substances Act 1981(Vic) – Respondent sentenced to term of imprisonment of 24 months, with non-parole period of ten months – Whether sentence manifestly inadequate – Whether judge erred in taking an irrelevant matter into account – Appeal dismissed.

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NEAVE JA:

1 I have had the advantage of reading the draft reasons of Osborn and Priest JJA. Unlike my judicial brothers, I consider that the sentence was manifestly inadequate. Nevertheless, I would dismiss the appeal in the exercise of the Court’s discretion to do so. I also wish to make some additional observations relevant to this appeal.

2 My first observation concerns the usefulness of comparing sentences in other cases, in order to assist the Court in deciding whether the sentence challenged on appeal was manifestly inadequate or manifestly excessive.

3 As this Court recognised in Hudson v The Queen,[1] like cases can only provide general guidance on the appropriate range of sentences to be imposed in a particular case. Because both the circumstances of the offending and of the offender may differ widely, such comparisons must be used carefully. In addition, where there have only been a small number of sentences imposed for a particular offence (as was the case here), it may be misleading to give too much weight to such comparisons in determining whether the sentence imposed in the case under appeal fell outside the range of sentences which the sentencing judge could have imposed in the reasonable exercise of his or her sentencing discretion.

4 However, subject to these qualifications, comparisons with the sentences imposed in other cases can help to ensure consistency in sentencing at both first instance and appellate level,[2] and are relevant in assisting appellate courts to decide whether a sentence is manifestly inadequate or manifestly excessive. Indeed, it is difficult to envisage how a judge could take current sentencing practices into account as required by s 5(2)(b) of the Sentencing Act 1991, or how this Court could determine whether a sentence was manifestly inadequate or manifestly excessive, without having some regard to the ‘yardstick’ which such comparisons may provide.

5 Over the past few years, judgments of this Court have frequently included a tables of sentences imposed for the same offence in comparable cases, in order to take account of current sentencing practices and/or to resolve appeals based on claims of manifest excess or manifest inadequacy.[3] Unlike the Sentencing Snapshots published by the Sentencing Advisory Council, such tables usually contain more information than simply the nature of the offence and the particular sentence imposed. Frequently, they indicate a range of matters relevant to the exercise of the sentencing discretion, including the age of the offender, whether or not the offender pleaded guilty, whether or not he or she had prior convictions, and whether or not there were other mitigating or aggravating features.

6 In Hili v The Queen; Jones v The Queen,[4] the plurality of the High Court recognised the role of such comparisons, citing with approval Simpson J’s comments in DPP (Cth) v De La Rosa.[5] Their Honours said:

Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: ‘Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.’ But the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’. Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’.^[6] When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that “unifying principles” may be discerned’.

7 Although sentences in comparable cases will often assist this Court in deciding whether a sentence falls outside the range of sentences which could reasonably be imposed on the particular offender for the particular offence, they do not provide a definitive answer to that question.

8 In my opinion, the sentence imposed in this case was manifestly inadequate. I take that view despite the mitigating factors which existed in this case and the relatively low sentences previously imposed for the offence, as disclosed in the short table of comparable sentences provided to the Court by the Crown. Unlike a spontaneous offence driven by an offender’s addiction, the importation of a relatively large amount of precursor chemical required a degree of planning. In these circumstances, general and specific deterrence were important sentencing considerations. Her Honour also had to give significant weight to the maximum penalty of 15 years’ imprisonment for charge 1 and 10 years’ imprisonment for charge 2. In my opinion, the sentence imposed by her Honour did not adequately reflect these factors.

9 Although I consider that the sentence imposed was manifestly inadequate, I would dismiss the appeal in the exercise of the Court’s discretion. I would do so because of the judge’s view that the respondent had good prospects of rehabilitation and had begun to address the addiction which contributed to his offending.

10 It is not clear from the plea transcript whether the range put forward by the Crown took account of the mitigating factors on which the respondent relied, although counsel for the respondent contended that it was simply based on the objective gravity of the offences. Her Honour did not seek to clarify the basis on which the range was put forward, but the total effective sentence imposed was below the Crown range. I do not consider that the prosecutor’s failure to refer specifically to mitigating factors in putting forward the range would, of itself, justify the Court exercising its discretion not to impose a different sentence on

the respondent.

OSBORN JA:

11 I agree with Priest JA, for the reasons he gives, that the allegation of specific error with respect to an irrelevant consideration has not been made out.

12 I also agree with Priest JA’s conclusion that the sentence imposed in this case was not manifestly inadequate. The sentence was lenient but should not be characterised as manifestly inadequate when regard is had to the factors operating in mitigation of penalty. Most significantly, those factors included the following:

• pleas of guilty at an early stage;

• the fact the offending occurred in the context of the respondent’s drug addiction;

• the fact the respondent suffered from both amphetamine addiction and a dysthymic disorder which was both severe and chronic;

• imprisonment was likely to be more burdensome by reason of his depressive disorder; and

• the respondent who was aged 32 was judged to have good prospects of rehabilitation and it was accepted that he was addressing the addiction which formed the background to his offending.

13 This is so despite the maters upon which the appellant placed particular emphasis:

• the substantial maximum penalties prescribed for the offences;

• the quantity of precursor involved in the offending;

• the commercial element of the offending;

• the need for general deterrence; and

• the need for specific deterrence.

14 This said, I agree with Neave JA that, as the decision in Hili v The Queen[7] explains, comparison with other cases may provide a sentencing yardstick. In turn, the usual range of sentences imposed for like offending may inform the appellate decision making function.[8] It follows that in some cases there may be utility in comparing sentences imposed in a range of other cases as part of the assessment of the question whether a sentence under appeal is or is not manifestly inadequate. On the other hand, such a comparison will not, in itself, be determinative of the conclusion in a particular case. In the present case, for the reasons Priest JA explains, the cases to which attention was drawn by way of comparison do not materially assist the Court.

PRIEST JA:

Introduction

15 By Notices of Appeal dated respectively 12 September 2012 and 14 September 2012, each of the Director of Public Prosecutions for the Commonwealth and Director of Public Prosecutions for the State of Victoria, appeal against a sentence imposed by a judge of the County Court of Victoria on 20 July 2012.

16 The impugned sentence relates to charges contained in an indictment filed on 6 February 2012 and certain related summary offences. There were four charges in the indictment as follows:

• Charge 1 – importing a marketable quantity of a border controlled

precursor, pseudoephedrine, contrary to s 307.12(1) of the Criminal Code (Cth) (‘the Code’). The maximum penalty for this offence is 15 years’ imprisonment.

• Charge 2 – possessing a substance, material, document and equipment with the intention of using them for the purposes of trafficking in a drug of dependence, in breach of s 71A(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘the Drugs Act’). The maximum penalty for this offence is 10 years’ imprisonment.

• Charge 3 – possessing a drug of dependence, methylamphetamine, in breach of s 73(1) of the Drugs Act. For a non-trafficking related offence, the maximum penalty for this offence is imprisonment for one year and/or a fine of 30 penalty units.

• Charge 4 – possessing a drug of dependence, cannabis, in breach of s 73(1) of the Drugs Act. For a non-trafficking related offence, the maximum penalty for this offence is imprisonment for one year and/or a fine of 30 penalty units.

17 By a Notice of Related Summary Offence filed 6 February 2012, a summary charge of using a drug of dependence, amphetamine, in breach of s 75 of the Drugs Act was put before the County Court.[9] For an offence involving use of a drug other than cannabis, the maximum penalty for this offence is imprisonment for one year and/or a fine of 30 penalty units.

Sentences imposed by the County Court

18 On 30 March 2012 the respondent pleaded guilty to each charge. He was sentenced as follows:

• Charge 1 – 20 months’ imprisonment. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the respondent was ordered to be released after serving six (6) months, upon giving security by entering a recognisance in the sum of $1,000 to be of good behaviour for three (3) years. The sentence on this charge was ordered to commence four (4) months after the commencement of the sentence imposed on charge 2.

• Charge 2 – 14 months’ imprisonment. A non-parole period of seven (7) months was fixed. The sentence on this charge was ordered to commence on 20 July 2012.

• Charges 3 and 4 – convicted and fined respectively $200 and $100.

• Summary charge – convicted and fined $100. Stays on the fines were ordered until 19 January 2013.

19 The evident intention of the sentencing judge was to impose, in effect, a total effective sentence of imprisonment of 24 months with a minimum term of 10 months. In purported reliance on s 6AAA of the Sentencing Act 1991, the sentencing judge said that ‘but for the pleas of guilty, the sentence that would have been imposed for charge 1 and charge 2 globally would have been a total of seven [7] years’ imprisonment with a non-parole period of four [4] years’ imprisonment’.[10] Thus it may immediately be appreciated that, on the face of it, the judge reduced the ‘head’ sentence by five (5) years (or 71.42 per cent), and the minimum term to be served by three (3) years and two (2) months (or 79.16 per cent), because of the pleas of guilty.

The Grounds of Appeal

20 Separate Notices of Appeal under s 287 of the Criminal Procedure Act 2009 were filed by each of the Commonwealth and State Directors of Public Prosecutions. With the consent of the State Director, the Commonwealth Director took on the conduct of the appeal relating to the sentence on charge 2 of the indictment.

21 The grounds of appeal in the Notice of Appeal filed by the Commonwealth Director focus on the sentence on charge 1. On that charge it is alleged that:

• the judge erred by taking into account an irrelevant matter, ‘namely that a further step was required to manufacture methylamphetamine from the imported pseudoephedrine’ (ground 1); and

• the sentence is manifestly inadequate (ground 3).

22 (Ground 2, which claimed that the judge erred ‘in finding that the majority of the imported pseudoephedrine was for personal use’, was abandoned.)

23 In the State Director’s Notice of Appeal a single ground claims that the sentence on charge 2 is manifestly inadequate.

24 The particulars subjoined to the ground in each Notice claiming manifest inadequacy, allege that in imposing sentence the judge ‘gave insufficient weight’ to:

• the nature and circumstances of the offence;

• the principle of general deterrence;

• the principle of specific deterrence;

• the need to ensure the respondent was adequately punished for the offences;

• the respondent’s character and antecedents; and

• the need to ensure consistency in punishment.

25 And it is alleged that the judge ‘gave too much weight’ to:

• the respondent’s contrition;

• the degree to which the respondent co-operated;

• the respondent’s prospects of rehabilitation; and

• other mitigating factors.

The circumstances of the offences

26 The circumstances of the offences may be described in short compass. On 7 November 2010, an air cargo consignment sent via DHL Express from New Delhi, India, arrived in Melbourne. The consignor was recorded as Harsh Chaudhary of the Static Consultant Group; and the consignee, Mr David Edge, 9 Rankins Road, Monbulk, Victoria, Australia. It was declared that the parcel contained ‘Horlicks’.

27 On 8 November 2010, an examination of the parcel by Customs and Border Protection Officers located a foil package inside a ‘Horlicks’ brand box. Wrapped in masking tape inside the foil was a package containing approximately 600 grams of a white crystal substance. Later analysis of the substance showed a gross weight of pseudoephedrine of 597.5 grams, with a pure weight of 488.76 grams.

28 Customs and Victoria police executed a search warrant at the respondent’s premises on 11 November 2010. He lived there with his parents. In his bedroom was found a clandestine laboratory set up for the production of amphetamine.

29 The respondent soon after attended the premises, having been contacted by Customs Officers, and informed of the search. He declined to answer questions.

30 Items seized from the respondent’s bedroom included 10.8 grams of methylamphetamine, an ammonia gas bottle, formaldehyde, drug making manuals and trafficking paraphernalia. A small quantity of other substances was also seized. The respondent’s fingerprints were on a number of items seized.

31 An analysis of the respondent’s computer demonstrated that he had tracked the delivery of the consigned parcel. It also contained a number of documents providing instructions for the manufacture of methylamphetamine from pseudoephedrine.

32 A warrant executed on Western Union some time later revealed that the respondent had made three separate payments totalling $2,500 to Ather Chaudhary.

33 When interviewed by police on 11 November 2010 at 10.30pm, the respondent claimed that:

• he had all of the items in the bedroom out of a general interest in science;

• the formaldehyde was for camping;

• the document relating to methylamphetamine manufacture was in his possession out of interest;

• the white crystalline substance was probably methylamphetamine, and was for personal use;

• the green seeds were probably cannabis;

• he had used amphetamine a couple of days ago; and

• handwritten notes specifying weight and money amounts for various drugs were scribbles made over time because of his interest in research.

34 At 11.20pm on 11 November 2010 Customs officers interviewed the respondent, who said:

• the importation was for personal use;

• he ‘never knew how illegal it was’;

• he had ordered the pseudoephedrine a couple of weeks earlier; and

• he had paid ‘a couple of grand’ for the importation.

The first ground: Submission that an irrelevant matter was taken into account

35 The first ground of the Commonwealth Director’s appeal asserts that the sentencing judge took into account an irrelevant matter, ‘namely that a further step was required to manufacture methylamphetamine from the imported pseudoephedrine’.

36 In the impugned passage from the judge’s reasons for sentence she said:[11]

In relation to charge 1, I have also taken into account that this is a case where the substance imported was not the drug itself and that a further step was needed before the pseudoephedrine could have been used to manufacture the drugs. Those drugs would then be either sold to users, either for financial reward or to fund your own habit and to feed and fuel that habit and/or to manufacture drugs for your own use. I am unable, as I said, to determine those factual matters with any precision.

37 It is submitted by the appellant that this passage betrays error, in that it was irrelevant to the seriousness of the offence that an additional step was required to convert the pseudoephedrine into methylamphetamine. The criminality, so it is said, was the importation of the precursor with the intention to manufacture it into a controlled drug, along with the means and intent to commercially distribute at least some of the end product.

38 For the respondent it is argued that the judge’s remarks merely reflect the judge’s recognition of the magnitude or gravity of the harm caused by the offence.

39 So far as relevant, s 307.12 of the Code provides:

307.12 Importing and exporting marketable quantities of border controlled precursors

(1) A person commits an offence if:

(a) the person imports or exports a substance; and

(b) either or both of the following apply:

(i) the person intends to use any of the substance to manufacture a controlled drug;

(ii) the person believes that another person intends to use any of the substance to manufacture a controlled drug; and

(c) the substance is a border controlled precursor; and

(d) the quantity imported or exported is a marketable quantity.

...

(4) Subsection (1) does not apply if:

(a) in relation to conduct covered by subparagraph (1)(b)(i) – the person proves that he or she neither intended, nor believed that another person intended, to sell any of the controlled drug so manufactured; or

(b) in relation to conduct covered by subparagraph (1)(b)(ii) – the person proves that, although he or she believed that the other person intended to use the substance to manufacture a controlled drug, he or she did not intend to sell any of the substance to the other person.

40 It may be acknowledged that the criminal conduct provided for in s 307.12 is the importation of a border controlled precursor with the intention to use any of the substance to manufacture a controlled drug. In this case it was, however, legitimate – indeed necessary – for the judge to assess the gravity of the harm caused by the respondent’s offending. Although it may be said that the judge’s reasons on this aspect are not expressed with the clarity which might have been desirable,[12] on a fair reading of the reasons it seems to me that the judge was endeavouring to convey no more than that she was unable with any precision to determine the objective gravity of the offence.

41 That being so, I am of the view that the first ground of the Commonwealth Director’s appeal is not made out.

Grounds claiming manifestly inadequate sentences

Principles

42 Although the principles applicable to a complaint of manifest inadequacy are well understood, they bear repetition.

43 In Dinsdale, Gleeson CJ and Hayne J observed:[13]

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non custodial) or because the sentence imposed is manifestly too long or too short.

44 And Kirby J (with whom Gaudron and Gummow JJ agreed) said:[14]

[57] The legal process before the Court of Criminal Appeal was, as described, an appeal. This is a creation of statute.^[15] An appeal may take several forms, the precise nature in a particular case depending upon the legislation in question.^[16] Here, that legislation, by providing for an appeal, required the demonstration of error before the appellate court enjoyed the authority to disturb the decision subject to appeal. In Lowndes v The Queen,^[17] this Court remarked that:

‘a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.’

[58] The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence.^[18] ... Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it.^[19] As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.^[20]

[59] As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly.^[21] In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.^[22]

[60] The existence of this residual basis for appellate intervention is well established. In fact, it is inherent in the provision by statute of a facility to appeal against sentence to a court of criminal appeal. It enables such a court to correct ‘idiosyncratic views’^[23] of individual judges about punishment for particular crimes or types of crime and to replace a sentence that is manifestly disproportionate to the circumstances. Such disproportion can arise where the punishment imposed is considered to be plainly excessive. But it can also arise where such punishment is judged to be manifestly inadequate.

45 These statements of principle must guide the Court in the resolution of these appeals. In particular, the Court must be astute not to interfere simply because we would, if sentencing at first instance, have imposed a different sentence. It is only if it is ‘plainly apparent’ that the sentence is inadequate, as being ‘manifestly ... too short’, that the Court is entitled to intervene.

Appellants’ Submissions

46 Counsel for the appellants, in his written arguments, relied on Carroll[24] and Malikowski,[25] to found a submission that ‘no reasonable judge could have imposed this sentence on this offender for these offences in these circumstances’. With respect, I think that the question to be determined is not whether the sentence is one that no reasonable judge could have passed, but rather whether the sentence is so disproportionate to the circumstances as to bespeak error in the exercise of discretion.[26] Attention is thus called to the manifold factors – aggravating and mitigating – which properly might influence the sentence.

47 It was principally submitted for the appellants that although the judge found that the offending was serious, that finding is not reflected in the sentences on charge 1 or charge 2, or in the total effective sentence and minimum term. Attention was drawn to the ‘substantial maximum penalties’. Those bringing illicit substances into Australia deserve condign punishment. The crimes were not spontaneous and showed premeditation.

48 Counsel reminded the Court that a marketable quantity is 3.2 grams (and a commercial quantity, 1.2 kg).[27] The pure weight of the substance in this case was 488.76 grams. The sentence passed, so it was submitted, does not reflect the substantial amount of substance imported. Moreover, it was submitted that the potential ‘yield’ of methylamphetamine was between $22,500 and $61,600 wholesale, or $227,710 and $521,300 at street level. Potential yield is very relevant in ‘precursor cases’,[28] and the judge was wrong to find that estimates of potential yield were not helpful due to the variables associated with the production process. Insufficient weight was given to the ‘commercial aspect’.

49 The appellants submitted that although she identified general deterrence was important, the sentence demonstrates that the sentencing judge failed to give sufficient weight to that aspect. Further, although acknowledging the importance of specific deterrence (particularly in light of prior convictions), the sentencing judge did not give sufficient recognition to it in the sentence. It was submitted that the sentence does not adequately punish the respondent.

50 Too much weight, it was submitted, was given to co-operation, prospects of rehabilitation, delay, publicity and drug addiction. The sentence reflects that this is so.

51 Lastly, it was submitted that too much weight was given to the pleas of guilty. When making a declaration under s 6AAA of the Sentencing Act 1991, the judge indicated that but for the guilty pleas, she would have sentenced the respondent to seven (7) years’ imprisonment with a minimum term of four (4). The ‘discount’ thus allowed on the head sentence was 71.5 per cent, and on the minimum term, 79.2 per cent.

The Respondent’s Submissions

52 The respondent emphasised the various factors in mitigation found by the judge to exist.

53 Counsel drew attention to the ‘range’ as put by the prosecutor in the court below. The range suggested a total effective sentence of between three (3) and four and a half (4 ½) years’ imprisonment, with a minimum term of between two (2) and three (3) years. That range made no allowance for the respondent’s psychological condition as described in a report by a consultant and forensic psychologist, Mr David Ball, since it was offered at a time before the court and prosecution had been apprised of the report’s contents. Given that the judge accepted all of the psychological evidence, necessarily the range had to be moderated to make due allowance for that fact.

54 Further, counsel for the respondent pointed out that the range was proffered by the prosecution while maintaining that the offending was all for a commercial purpose. The sentencing judge having found that the offences were not committed solely for a commercial purpose,[29] that factor also should operate as a moderating factor. Seen in light of the psychological evidence, and the judge’s finding concerning commerciality, the sentence ultimately imposed was consonant with the range as first put by the prosecution.

55 Counsel for the respondent pointed out that the Court could offer guidance without the need to allow the appeal. It was submitted that guidance afforded to sentencing judges by allowing an appeal should not come at too high a cost in terms of justice to the individual.[30] It was open to the Court to exercise its overriding discretion to dismiss the appeal because the sentence passed (when the psychological and other matters were factored in) was consistent with the prosecution’s range; the sentence passed here was in line with comparative sentences which the prosecution drew to the sentencing judge’s attention; and the respondent’s personal circumstances militated against allowing the appeal. Without objection, counsel tendered an updated report from Mr Ball, which emphasised that the burden of imprisonment weighed more heavily on the respondent than on another of ‘normal’ health.

Conclusions

56 As has been observed, various submissions were advanced by the appellants in support of the particulars of the grounds alleging manifest inadequacy with respect to the sentences on charge 1 and charge 2. In the end, however, resolution of the question of whether the sentence[31] is manifestly inadequate requires the Court to synthesise all relevant factors – both aggravating and mitigating – in order to reach a conclusion whether it is ‘plainly apparent’ that the sentence is inadequate.

57 In my opinion, although the sentence imposed may fairly be described as lenient, in all the circumstances the length of the sentence of imprisonment imposed cannot be said to be ‘manifestly ... too short’.

58 Provided with the appellants’ submissions was a schedule, ‘Comparative Cases for Commonwealth Offence (Charge 1)’.[32] It was a table of comparative sentences passed by the County Court, and the District Courts of South Australia and Western Australia, together with a reference to a sentence appeal determined by this Court, between 7 February 2008 and 13 April 2012, concerning the importation of the border controlled precursor, pseudoephedrine. Maximum sentences ranged from 12 months’ imprisonment to three (3) years’ imprisonment. Minimum terms varied between six (6) months and 18 months. Amounts of pseudoephedrine imported fell between 276 grams and 854.7 grams.

59 The appeal determined by this Court referred to in the schedule was DPP (Cth) v Vestic,[33] an appeal by the Commonwealth Director. Vestic was a 42 year old male who, together with a co-accused, had played an important role in the importation of 854.7 grams of pure pseudoephedrine from Malaysia. He had one minor prior conviction, but had otherwise been of good behaviour. A County Court judge had sentenced him to be imprisoned for 12 months, to be released on recognisance after serving six (6) months. This Court determined that the sentence passed was manifestly inadequate but, in the exercise of discretion, dismissed the appeal. (The exercise of discretion was animated principally by considerations of parity with the sentence passed on the co-accused, a factor which, of course, can have no application to the present case.)

60 In my view, generally there is little utility in comparing sentences passed in other cases in order to determine whether a sentence under appellate review is or is not inadequate. Each case must turn on the facts peculiar to it. It might be observed, however, that the sentence under review – although undoubtedly lenient – does not appear to be egregiously out of kilter with sentences passed previously for the offence of importing the precursor, pseudoephedrine. Although perhaps a borderline case, having regard to the following matters it was in my view open to the judge to pass the sentence that she did.

61 The respondent is aged 32 years, having been born on 19 February 1980.

62 In mitigation, the sentencing judge took into account the fact that the respondent had pleaded guilty to the offences at an early stage (although not the ‘earliest’).[34] Those pleas indicated remorse, and had ‘utilitarian consequences’ which ‘facilitated the course of justice’. She accepted that the offending was ‘drug related and was caused by [his] battle with drug addiction’. Some of the money gleaned from the offending was to be used to feed his drug habit. It was accepted that that the respondent had made a ‘promising start’ to dealing with mental health issues and drug problems; and that he had embarked on a process of rehabilitation, his chances of rehabilitation being ‘good’.

63 Further, the judge found there to be a causal connection between the respondent’s mental disorders, drug addiction and depression, and the commission of the offences. She was satisfied that those conditions would worsen the burden of imprisonment, and that imprisonment ‘will weigh more heavily on [him] than it would on a person in normal health’.[35] Those conclusions were open to her given the opinions expressed by the psychologist, Mr Ball, in his reports of 17 May 2012 and 7 November 2012. Specific testing of the respondent had provided a profile that ‘indicates anxiety, drug dependence and a significant history of depression, a generalised severe personality disturbance with antisocial and self-defeating personality features’. Mr Ball was of the opinion that the respondent fitted the diagnostic criteria for amphetamine dependence (which was in early full remission), and for Dysthymic Disorder, which was ‘both severe and chronic’. The respondent had ‘a history of crushingly low self-esteem and depressive symptoms that he has medicated for a considerable period of time mostly with amphetamines and cannabis’. His ‘mood disorder and pervasive deficits in his personality’ could be traced back to incidents in his ‘chaotic upbringing’.

64 As to the offending, the judge found that a commercial purpose was not the sole purpose behind the importation on charge 1. Although she could not determine the extent of the commercial purpose, a commercial purpose was not the dominant purpose of the importation. As to charge 2, any production of drugs by the respondent would be for the purpose of satisfying his drug addiction and for some financial reward (the level of which could not be determined). On both charges the offending was ‘essentially unsophisticated’. The judge found that there was an ‘overlap’ between charge 1 and charge 2, leading to ‘a degree of cumulation’ between the sentences imposed on those two charges.

65 These findings were open to the judge, and it was proper that they inform the exercise of her sentencing discretion. Save for one matter, I can detect no error in the judge’s approach to sentence, or in the sentences passed.

66 The one matter upon which I have reservation is the statement by the judge of the sentence she would have passed had the respondent not pleaded guilty. At face value, a notional head sentence of seven (7) years’ imprisonment, with a minimum term of four (4) years, would equate in this case to discounts being afforded of in excess of 70 per cent on each given the sentence actually passed in this case. That would, in the circumstances of this case, be a truly startling discount. Given that that is so, I think it likely that the judge simply made a mistake in announcing terms of seven years and four years respectively, and that in fact she had other figures in mind. Certainly nobody had suggested figures of that order to the judge at any stage of the plea hearing.

67 Even were the sentence thought to be inadequate, however, I would still dismiss the appeals in the exercise of discretion.[36] To this end I would point to the range as proffered remaining unrevised by the prosecution after mitigating factors were brought to the attention of the court (in effect leaving the judge unassisted as to the extent to which the range should be seen to have been affected, if at all, by those factors), and the effect that increasing the present sentence might have on the respondent’s incipient rehabilitation.

68 Two final matters requires mention. As I have said, I regard the sentence in this case as very lenient. Absent the particular facts attending this case, I doubt that – all other things being equal – a total effective sentence and minimum term of the order imposed here would be regarded as adequate, where pseudoephedrine of the quantity found was imported, and the importer had a laboratory (albeit crude) available ready to turn the precursor into methylamphetamine. The sentence passed in this case ought not be regarded as a guide for the imposition of sentences in other cases of this kind.

69 Finally, although the sample in the prosecution’s ‘Comparative Cases for Commonwealth Offence (Charge 1)’ was relatively small, one might draw from it the conclusion that sentences commonly passed for the offence of importation of a precursor substance do not adequately reflect the maximum sentence provided for in the Code, or the particular mischief to which the offence is directed. A real question is thus raised as to the adequacy of sentencing standards for this offence, and whether they are in need of revision. Given, however, that I have concluded that the sentence is this case – based on its own facts – is not manifestly inadequate, the question of the adequacy of sentencing standards for importing a border controlled precursor will have to await another day.

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^[1] (2010) 30 VR 610, 617 [29].

^[2] See the remarks to this effect in DPP v Coates Hire Operations Pty Ltd [2012] VSCA 131 [81].

^[3] See, eg, R v Towle [2009] VSCA 280 (dangerous driving causing death, and dangerous driving causing serious injury); Hasan v The Queen (2010) 31 VR 28 (rape); Phuong Bich Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; (2011) 207 A Crim R 380 (importation of commercial quantity of border-controlled drug, possession of commercial quantity of imported drug); DPP v DJ [2011] VSCA 250; (2011) 211 A Crim R 367 (incest) and Ashdown v The Queen  [2011] VSCA 408  (recklessly causing serious injury); Chalmers v Liang [2011] VSCA 439 (murder); Cooper v The Queen [2012] VSCA 32 (using a carriage service to groom a person under 16 years, and intent to procure sexual activity with person under 16 years) and OPQ v The Queen [2012] VSCA 115 (possession and attempted possession of a marketable quantity of a border controlled drug, and importation and attempted importation of a marketable quantity of a border controlled drug).

^[4] [2010] HCA 45; (2010) 242 CLR 520, 537.

^[5] [2010] NSWCCA 194; (2010) 243 FLR 28.

^[6] Emphasis added.

^[7] [2010] HCA 45; (2010) 242 CLR 520, 536-7.

^[8] Cf the discussion of ‘the usual non-parole period’ in Kumova v The Queen [2012] VSCA 212 (Redlich and Osborn JJA [26]-[35]).

^[9] See s 242 of the Criminal Procedure Act 2009.

^[10] Reasons for Sentence, [278].

^[11] Reasons for Sentence, [184].

^[12] This is particularly so given the fact that the Reasons for Sentence – in what was a relatively straightforward case – occupy 48 pages (or 206 paragraphs).

^[13] Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321, [6].

^[14] Ibid [57]–[60].

^[15] State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306, 322 [72]; [1999] HCA 3; 160 ALR 588, 609.

^[16] Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, 258-260 [17]-[21]; cf Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297-298 (Glass JA).

^[17] [1999] HCA 29; (1999) 195 CLR 665, 671-672, [15].

^[18] See eg R v Tait (1979) 24 ALR 473, 476; Allpass (1993) 72 A Crim R 561, 562; R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522.

^[19] cf House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-505.

^[20] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509, 519-520; Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652, 655.

^[21] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

^[22] Valentini and Garvie [1980] FCA 133; (1980) 2 A Crim R 170, 174; Davey [1980] FCA 134; (1980) 2 A Crim R 254, 259-261.

^[23] cf R v Osenkowski (1982) 30 SASR 212, 213 (King CJ); cf R v P [1992] FCA 626; (1992) 39 FCR 276, 285.

^[24] Carroll v R [2009] HCA 13; (2009) 254 ALR 379; 83 ALJR 579.

^[25] DPP v Malikowski [2010] VSCA 130.

^[26] Cf Malikowski, [46].

^[27] Section 314.6 of the Code.

^[28] R v Ververis [2010] VSCA 7, [10].

^[29] A ground of appeal attacking the judge’s finding that the imported pseudoephedrine was for personal use was abandoned.

^[30] Green v R [2011] HCA 49; (2011) 244 CLR 462, [42]-[44].

^[31] That is, the individual sentences on each count, and the total effective sentence and period of custody to be served before release on recognisance or parole, produced through orders designed to effect a measure of cumulation.

^[32] The same table was provided to the sentencing judge.

^[33] [2008] VSCA 12 (Vincent and Neave JJA, and Coghlan AJA).

^[34] On 3 October 2011, the respondent pleaded guilty to the State charges on the morning a contested committal was to start. He pleaded guilty to the Commonwealth charge at committal mention on 17 November 2011. At a plea hearing in the County Court on 6 February 2012, he withdrew his plea of guilty with respect to the State charges due to doubt as to the validity of relevant a Drugs Act warrant. Once doubts as to the validity of such warrants was dispelled by legislation, the respondent again pleaded guilty to the State charges on 30 March 2012.

^[35] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, [32], propositions 2 and 6.

^[36] DPP v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14, [103]–[115].