Matthews v The Queen; Vu v The Queen; Hashmi v The Queen [2014] VSCA 291 (19 November 2014)

Last Updated: 19 November 2014

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0028

S APCR 2014 0037

S APCR 2013 0182

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CRIMINAL LAW – Sentencing – Role of the Crown - Application for leave to appeal against sentence – Submission from counsel as to sentencing range – Whether a sentencing submission is a relevant consideration in sentencing – Whether receipt of a sentencing submission indicated sentencing judge took into account irrelevant consideration – Whether principle restricts defence submissions – Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323 applied – Application dismissed.

CRIMINAL LAW – Sentencing – Drug trafficking – Application for leave to appeal against sentence – Whether proper consideration given to applicant’s mental condition – Whether sentencing range given by the Crown resulted in sentencing error – Whether sentence manifestly excessive – R v Verdins [2007] VSCA 102; (2007) 16 VR 269 applied – Application dismissed.

CRIMINAL LAW – Sentencing – Drug trafficking - Application for leave to appeal against sentence – Whether sentencing range given by the Crown resulted in sentencing error – Whether sentence manifestly excessive – Application dismissed.

CRIMINAL LAW – Sentencing – Parity – Application for leave to appeal against sentence – Whether relative non-parole period of co-offenders breached the principle of parity – Whether sentencing range given by the Crown resulted in sentencing error – Whether sentence manifestly excessive – Application granted – Appeal allowed.

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WARREN CJ

NETTLE JA

REDLICH JA:

1 In Barbaro v The Queen,[1] a majority of the High Court held that the Crown should not be asked to make and should not make a submission about the bounds of the available range of sentences. These appeals are primarily concerned with whether the sentencing discretion is vitiated where the prosecution provided the sentencing judge with such a range.

The history

2 Prior to Barbaro the practice of the prosecution providing a range of sentences prevailed in Victoria and most other States and Territories of Australia. In R v MacNeil-Brown[2] this court held that, if a sentencing judge requests a prosecutor to make a submission on behalf of the Crown as to the range of sentences open to be imposed, the prosecutor should put forward a submission identifying the ambit of the sentencing discretion which, in the Crown’s submission, may lawfully be exercised in the particular circumstances of the case.[3] As the court went on to explain, the submission was required to identify the facts, including circumstances in aggravation upon which the submission rested and to take account, so far as could be anticipated, of all the matters which properly went in mitigation of penalty.[4]

3 MacNeil-Brown held that there is no precise upper or lower limit beyond which a sentence will inevitably be held manifestly excessive or inadequate. Thus, a submission as to range could not and should not be regarded as more than an approximation or indication.[5] The majority in MacNeil-Brown considered that it would be wrong to regard such a submission as ‘merely an expression of opinion’; for, as their Honours put it:

A submission on sentencing range is no different from any other submission which counsel makes, whether in criminal or civil proceedings. A submission conveys the considered judgment of counsel, based on analysis and evaluation of the relevant facts and the applicable law. The drawing of comparisons with, and distinctions between, other cases is a routine part of the making of submissions, as is argument seeking to extrapolate from one case to another. A submission on sentencing range has all of these characteristics.

To suggest, as counsel for the appellants did in these appeals, that a submission on sentencing range is merely ‘an expression of opinion’ is to mischaracterise counsel’s function. A submission on sentencing range is a submission of law. It identifies the ambit within which — according to the submitting party — the sentencing discretion may lawfully be exercised in the circumstances of the particular case. It is a submission explicitly formulated to assist the sentencing judge to avoid appealable error, that is, error of law.^[6]

4 MacNeil-Brown sought special leave to appeal to the High Court against the decision. The High Court concluded that it was not persuaded ‘that it [was] in the interests of justice generally or of this particular case’ that there be a grant of leave.[7] In refusing leave the High Court (Hayne and Kiefel JJ) stated that MacNeil-Brown’s application:

proceed[ed] on a misunderstanding of the task of the sentencing judge and the role of the submissions of counsel at a sentencing hearing. The submissions of counsel are a necessary and important part of the process of sentencing but do not determine the issue of what sentence should be passed.^[8]

Barbaro v The Queen

5 In Barbaro, however, the majority of the High Court stated that the practice described above is ‘wrong in principle’ and should no longer be followed[9] because, their Honours said:

1. ‘stating the bounds of an “available range” of sentences is apt to mislead.’;^[10]
2. ‘The practice ... depends upon the prosecution acting not only fairly (as it must) but in the role ... of ”a surrogate judge”. That is not the role of the prosecution.’^[11];
3. ‘the prosecution may have a view of the available sentencing range which gives undue weight to the assistance which the offender has given or promised [to the prosecution].’;^[12]
4. ‘in cases ... where pleas of guilty avoid very long and costly trials ... the prosecution may have a view of the available sentencing range which gives undue weight to the avoidance of trial.’;^[13]
5. ‘The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance ... with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution.’;^[14]
6. ‘Fixing the bounds of a range within which a sentence should fall ... wrongly suggests that sentencing is a mathematical exercise ... [in that] ... [i]f a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution’s view ... [and] if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.’;^[15]
7. ‘If a party makes a submission to a sentencing judge about the bounds of an available range of sentences, the conclusions or assumptions which underpin that range can be based only upon predictions about what facts will be found by the sentencing judge.’;^[16]
8. ‘It is neither the role nor the duty of the prosecution to proffer some statement of the specific result which counsel then appearing for the prosecution ... considers should be reached or a statement of the bounds within which that result should fall.’;^[17]
9. ‘Contrary to the view of the majority in MacNeil-Brown, the prosecution’s conclusion about the bounds of the available range of sentences is a statement of opinion, not a submission of law.’^[18]

6 Each of the appeals now before this court arises as a result of the majority’s decision in Barbaro. In each case, it is contended that, because the sentencing judge received a quantified sentencing range submission, the judge took into account an irrelevant sentencing consideration. According to the applicants, that means that the judge’s exercise of sentencing discretion is vitiated and it falls to this court to exercise the discretion afresh.

7 We are of the view and the other members of this Court also make plain in their joint reasons, that a quantified range submission will not vitiate the sentencing discretion unless it can be demonstrated that the sentencing judge was influenced by the submission in arriving at his or her sentence. Accordingly, in our view, each of the individual appeals must fail unless it can be shown that in fixing sentence the judge was influenced by the quantified range submission. Our reasons are as follows.

MacNeil-Brown range not a ‘consideration’

8 To begin with, sentencing ‘considerations’ are the findings of fact and law which are the bases—one might say ‘rational constituents’—of a sentencing decision. The sentencing task requires the judge to ‘synthesise’ those constituents in order to arrive at the sentence. As we understand it, a quantified range is not a finding of fact or law on which is based a sentencing decision. It is rather a proposed range for the sentence ostensibly derived from the synthesis of its own considerations. Nothing was said by the majority in Barbaro to the contrary. Cases involving irrelevant sentencing considerations clarify the distinction.[19]

Consistency with the High Court in Barbaro

9 Secondly, the distinction between an irrelevant consideration or input and a sentencing disposition or output finds support in the majority’s reasoning in Barbaro v The Queen; Zirilli v The Queen.[20] Evaluating the assertion that the sentencing judge’s refusal to consider a quantified range constituted a failure to take into account a relevant consideration, their Honours said:

[A] submission on sentencing range is not a ‘relevant consideration’ in the public law sense. Such a submission addresses the legal conclusion reasonably open to the decision-maker once all of the relevant factual matters—the ‘legitimate considerations’—have been taken into account and evaluated in the light of the applicable sentencing principles.^[21]

10 The majority in Barbaro did not gainsay the distinction between considerations on the one hand, and quantified ranges, which incorporate considerations, on the other. The key finding of the majority was that:

The prosecution’s statement of what are the bounds of the available range of sentences is a statement of opinion. Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed.^[22]

11 Their Honours expounded the point as follows:

[A]ny determination of the bounds of an available range of sentences would have to depend upon first, what considerations are judged to bear upon the fixing of sentence and second, what effect is given to those considerations. Hence, if a party to sentencing proceedings proffers a range of sentences as the range within which a particular sentence should be imposed upon an offender, the range will necessarily reflect conclusions or assumptions (stated or unstated) which have been made about what considerations bear upon sentence and what weight is given to each. As Buchanan JA rightly said in MacNeil-Brown, even if those conclusions and assumptions were all to be exposed, ‘it is not possible to explain the part played by those facts and factors in arriving at the figures advanced by counsel without resorting to the mathematical approach’ to sentencing which this court has rejected.

If a party makes a submission to a sentencing judge about the bounds of an available range of sentences, the conclusions or assumptions which underpin that range can be based only upon predictions about what facts will be found by the sentencing judge. ... In the present cases, for example, counsel for Mr Zirilli told the sentencing judge that the prosecution accepted that Mr Zirilli’s guilty plea indicated his remorse. Presumably the range of sentences which the prosecution indicated in correspondence with Mr Zirilli’s lawyers reflected this view of the matter. But the sentencing judge did not accept that Mr Zirilli was remorseful. Necessarily, then, the range of sentences proffered by the prosecution was fixed on a false basis.

This serves to demonstrate that bare statement of a range tells a sentencing judge nothing of the conclusions or assumptions upon which the range depends. ...

If a sentencing judge is properly informed about the parties’ submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about the available range. If the judge is not sufficiently informed ... the prosecution’s proffering a range ... will not assist the judge in carrying out the sentencing task in accordance with proper principle.

...

Contrary to the view of the majority in MacNeil-Brown, the prosecution’s conclusion about the bounds of the available range of sentences is a statement of opinion, not a submission of law. A statement of the bounds of the available range of sentences is a conclusion which depends upon identifying (and in many cases assuming) the facts and circumstances relevant to the offence and the offender and striking a balance between the many competing considerations which may bear upon the sentence.^[23]

12 These passages bespeak the majority’s acceptance of the distinction between ‘considerations ... judged to bear upon the fixing of sentence’ on the one hand, and a quantified range, which ‘reflects’ or is ‘underpinned’ by ‘conclusions or assumptions’ about those considerations, on the other. Indeed, the majority’s rejection of the practice that had arisen around quantified ranges was founded on that distinction. Their concern was not that range is an irrelevant consideration but rather that range is wholly distinct from the body of considerations which inform the sentencing decision (comprising submissions on ‘what facts should be found, the relevant sentencing principles and comparable sentences’). Additionally, those considerations that may have informed the range are not discernible from the range itself and cannot even be inferred (one might say ‘reverse engineered’) from it without resorting to a ‘mathematical’ approach. Hence, there was a risk that some of those considerations would be irrelevant; or, based as they are on predictions about the sentencing judge’s analysis, that they will be weighted differently or altogether excluded by the sentencing judge (as with Mr Zirilli’s putative remorse).[24]

Distinction between receipt of a submission and treating it as a consideration

13 Thirdly, we do not understand the majority in Barbaro to have held that the mere fact of receipt of a MacNeil-Brown range constituted taking into account an irrelevant consideration. The thrust of their Honours’ ruling was that the practice is to be eschewed because it fails to present a consideration, is vacuous, apt to mislead the Court and thus increases the risk of legal error:

To the extent to which MacNeil-Brown stands as authority supporting the practice of counsel for the prosecution providing a submission about the bounds of the available range of sentences, the decision should be overruled. The practice to which MacNeil-Brown has given rise should cease. The practice is wrong in principle. (These conclusions make it unnecessary to examine any question about the applicability of such a practice in a state court exercising jurisdiction conferred by s 68(2) of the Judiciary Act 1903 (Cth) and sentencing offenders for offences against the laws of the Commonwealth in accordance with the requirements of Pt IB of the Crimes Act 1914 (Cth).)^[25]

14 Elsewhere the majority similarly referred to the practice as an ‘error in principle’.[26] They emphasised that the range is not a submission of law (erroneous or otherwise) but an expression of opinion.[27] Their Honours also emphasised the distinction between prosecutor and judge as well as that sentencing is not a ‘mathematical exercise’.[28] They criticised use of the phrase ‘available range’ as potentially misleading and said that the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.[29]

15 The following remarks were also to the same effect:

The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process. If a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution’s view of what punishment should be imposed. By contrast, if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.^[30]

16 In our view, the majority gave a warning against a particular tendency. We consider it improbable that the majority would have condescended to such a warning if the matter were as straightforward as that seeking or hearing a quantified range is of itself an error of law.[31]

Inferring sentencing error

17 Counsel for the applicants next submitted that, although the receipt of a quantified range may not of itself amount to taking into account an irrelevant consideration, it should be inferred from the fact that a judge has sought and received a quantified range submission that the judge has allowed himself or herself to be swayed by the fact that it is the Crown’s view of the punishment which should be imposed. We also reject that submission. As Burchett J remarked in the broader context of the exercise of administrative discretion, the fact that a decision-maker may pick up a red herring, turn it over and examine it does not necessarily dictate that she or he has relevantly taken it into account.[32] Taking an irrelevant consideration or impermissible submission into account means consciously or subconsciously allowing it to affect one’s decision. But there must be an evidentiary basis for the conclusion that it has done so. It is not lightly to be inferred that a judge has taken into account an irrelevant consideration let alone a submission as to how the discretion should be exercised. In the scheme of things, judges not infrequently receive submissions which in effect express the submitting party’s view of the conclusion to which the judge should properly come. For example, it has never been suggested that when a prosecutor submits that a custodial disposition is appropriate and the judge imposes the same, the judge was improperly swayed by the urged conclusion. Although a judge may accept such a submission, it will rarely be inferred that the judge does so because he or she is swayed by the fact that the submission represents the submitting party’s view of the appropriate outcome. Ordinarily, it is to be assumed that a judge will only accept or reject such a submission after consideration of all of the relevant facts and law as may be apparent which bear upon its merit.

18 Moreover, in the case of quantified range sentencing submissions, that is more likely to be so than in the general run of cases. ‘Every sentence imposed represents the sentencing judge’s instinctive synthesis of all the various aspects involved in the punitive process.’[33] In MacNeil-Brown, this Court held that the submission of a quantified sentencing range had to draw to the attention of the sentencing judge the facts, comparable cases and any other relevant considerations upon which the submission was predicated. The Court stressed that it remained the duty of a sentencing judge to synthesise the relevant sentencing considerations in order to arrive at the appropriate sentence and, hence, that it would be quite wrong for a judge to impose a sentence merely because it was within the range suggested by the Crown. In the face of that guidance, it should not lightly be inferred that a judge who has received a quantified range submission has shirked the task of coming to the judge’s own instinctive synthesis on the basis only of the facts as found and relevant sentencing principles.

19 Of course, it remains that the question of whether a sentencing judge has allowed a quantified range submission to affect the sentencing disposition in the sense of being swayed by the Crown’s assessment of appropriate punishment must be decided on a case by case basis as one of fact and degree. But, in most cases, it should be clear. In some, like Barbaro itself, the sentencing judge may have expressly stated that he or she did not consider the fact of the Crown’s view of the appropriate range of sentences to be a matter which they would take into account. Where that is so, there could hardly be any doubt about the position. In other cases, the judge may not have said anything about the matter, but even so the position is still tolerably clear. A judge will not ordinarily be expected to state that they have or have not taken a quantified range submission into account. Unless the judge expressly states that the prosecution’s view of the appropriate range of sentences has been taken into account or it is necessarily implicit in the judge’s sentencing remarks that he or she has been so swayed, it is difficult to suppose that it would have been so. Exchanges between the judge and counsel during the plea in mitigation as to possible sentencing dispositions will not usually provide a sound basis for an inference that a range submission has influenced the judge.

20 The recent decision of the Queensland Court of Appeal (Fraser, Gotterson and Morrison JJA) in R v Ogden[34] reasoned in precisely this way. In rejecting a contention that the Crown had made a submission as to range, contrary to Barbaro, the Court said:

The applicant’s outline of submissions included a submission that the sentencing judge took into account that which a majority in Barbaro v The Queen; Zirilli v The Queen subsequently held should not be taken into account. This was a reference to the prosecutor’s submission that ‘a head sentence in the range of between five and five and a half years with approximately three years’ time to serve would be appropriate in all the circumstances’. At the hearing of the application for leave to appeal, the applicant’s counsel informed the Court that the applicant did not press that argument. That concession was appropriate. Although the prosecutor at the sentence hearing followed the then common practice of making submissions about the bounds of the permissible sentences which the majority in Barbaro has since condemned, the sentencing judge did not take those submissions into account in formulating the sentence. Instead, the sentencing judge took into account the comparable sentencing decisions which the prosecutor and defence counsel had helpfully provided to the sentencing judge and analysed in submissions. The prosecutor and defence counsel plainly did not contravene any practice which is now proscribed by Barbaro merely by supplying comparable sentencing decisions to the sentencing judge and making submissions about the similarities and differences between the circumstances and seriousness of those cases and those of the present matter. Indeed, it was part of the prosecutor’s duty to assist the sentencing judge by supplying those comparable sentencing decisions. More relevantly for present purposes, the sentencing judge was right to take the comparable sentencing decisions into account for guidance or as a ‘yardstick’ against which to examine the proposed sentence. That is what the sentencing judge did.^[35]

21 Finally, on this aspect of the matter, it remains to add that, even where it is shown or to be inferred that a sentencing judge has taken a quantified range submission into account as a consideration in the relevant sense of being swayed by the fact of the Crown’s assessment of the appropriate sentence, it will not necessarily follow that an appeal against sentence should be allowed. Under s 298(1) of the Criminal Procedure Act 2009 (Vic), this Court is enjoined not to allow an appeal against sentence unless persuaded both that there is error in the sentence first imposed and that a different sentence should be imposed. The Court will not interfere unless it is persuaded that the sentence imposed was too severe or lenient.[36] For that purpose too it is necessary to consider the facts of each matter separately.

Whether Barbaro applies to defence counsel

22 There is also a question whether the reasoning in Barbaro must be understood as precluding defence counsel from making submissions suggesting the appropriate range. We consider it highly desirable for the administration of criminal justice in this State that this question, in fact raised by the parties during the appeal, also be answered. Assuming that the proffering of a range is not an ‘irrelevant consideration,’ there is considerable doubt about the issue of whether the proscription of quantified sentencing range submissions applies as much to an offender as to the Crown. We have concluded on balance that it does not. As was earlier observed, some of the reasons given in Barbaro for holding it to be improper for the Crown to make a quantified sentencing range submission were to do with a perceived risk of blurring what should be a sharp distinction between the role of the judge and the role of the prosecution, and of the Crown’s submissions as to range being accorded undue importance. Axiomatically, concerns of that kind do not apply to an offender’s quantified sentencing range submission.

23 Further, although it appears to have been important to the majority’s reasoning in Barbaro that a submission as to the available range is a statement of opinion, not a submission law, and although that kind of reasoning is as applicable to an offender as to the prosecution, we think it significant that the majority in Barbaro in fact expressed their conclusion on the point in terms only of its application to the prosecution. As their Honours put it:

Once it is understood that a submission by the prosecution about the bounds of the available range of sentences is no more than a statement of opinion, it follows that the sentencing judge need not, and should not, take it into account in fixing the sentences to be imposed.^[37]

24 We do not overlook that, elsewhere in their Honours’ reasons, the majority in Barbaro spoke in terms of ‘a party’ and ‘the parties’,[38] as opposed to just ‘the prosecution’. But, with respect, we think that, if that were intended, it would have been stated expressly because of its effect on the criminal justice system. A plea in mitigation of penalty is supposed to be just that and, although there are sometimes good forensic reasons for defence counsel to avoid submitting a quantified sentencing range, there are just as many cases where a plea in mitigation of penalty would be significantly compromised unless defence counsel had the ability to make a submission of that kind.

25 Moreover, when and if defence counsel does make a submission as to range, we consider that it is necessary and therefore permissible for the Crown to respond and, in particular, to be able to tell the judge whether in the Crown’s submission it would be open to impose a sentence within that range; or, if not, to draw to the judge’s attention the comparable and other cases, current sentencing practices and other relevant considerations which in the Crown’s submission support that conclusion. To say so is not to suggest that the Crown would be entitled to specify an alternative quantified range. So much is now prohibited by Barbaro. But it remains necessary to the proper functioning of the sentencing process that the Crown be able to and do draw to the judge’s attention the possibility that acceptance of a defence submission might lead to appealable error.

Further considerations

26 There are then two further issues of general application which arose on the hearing of these appeals and with which it is convenient to deal before turning to the detail of the appeals. The first is how much of the pre-existing practice governing submissions on plea has survived the decision in Barbaro. The second is whether the proscription is confined to sentencing submissions on a plea in mitigation.

The Crown’s duty

27 As to the first, it appears that, apart from proscribing the submission of a quantified sentencing range, Barbaro has not changed any of the pre-existing practice. Nothing said in Barbaro detracts from the Crown’s obligation to make clear what type of sentencing disposition, whether imprisonment or otherwise, it contends is necessary or appropriate. It remains that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner. It has a duty to assist the sentencing judge to avoid appealable error.[39] That includes making an adequate presentation of the facts, identifying any aggravating features and admitting any mitigating features, fair testing of the offender's case, correcting any error of fact which emerges in the course of the plea and drawing attention to the offender’s antecedents including any sentence of imprisonment currently being served.[40] The Crown’s duty also extends to making appropriate submissions on relevant questions of law, including statutorily prescribed maximum penalties,[41] principles of sentencing reasonably thought to be applicable[42] and comparable and other relevant cases.[43] If it is submitted for an offender that he or she should receive a non-custodial disposition or a suspended term of imprisonment, the Crown should make clear whether it contends, and if so why, a disposition of the kind proposed would not be a proper exercise of sentencing discretion.[44]

28 As the majority in Barbaro took care to point out, their Honour’s proscription of the submission of quantified sentencing ranges must also be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Sentencing judges should continue to strive for consistency and consistency entails having regard to what has been done in other cases. Other cases may establish a range of sentences even though, as the majority said, they do not establish that the sentences imposed in those cases mark the outer bounds of the permissible discretion.[45]

Whether Barbaro applies in cases other than sentencing

29 Finally, it remains to mention that, even, in the short time since the decision in Barbaro was published, the proscription there enunciated has been raised for consideration in a range of contexts other than the sentencing of a prisoner to a term of imprisonment where different discretionary questions govern the choices reasonably open to the judge.[46] In the cases footnoted below, differing views have been expressed as to the reach of Barbaro and whether the proscription has any application beyond a submission by the Crown on a plea in mitigation as to the range of imprisonment that is available. In our opinion, it is clear that the reasoning in Barbaro is concerned only with sentencing and the role of the Crown in that process.

The individual appeals

30 The Court convened a full bench of five judges to hear three appeals, all of which sought to question the sentencing decision of a trial judge on the basis that the Crown had provided a quantified range submission as to range. We will deal with each appeal in turn.

Matthews v The Queen

31 On 13 December 2013, Mr Matthews pleaded guilty in the County Court to one charge of importing a marketable quantity of a border controlled drug[47] (charge 1) and one charge of trafficking a border controlled drug[48] (charge 2).

32 Following a plea hearing on 20 January 2014, on 21 January 2014 Mr Matthews was sentenced to be imprisoned for four years on charge 1, and 15 months on charge 2. By making orders directing when the individual sentences were to commence,[49] in essence, the sentencing judge imposed a total effective sentence of four years and three months’ imprisonment, upon which he fixed a non-parole period of two years and six months’ imprisonment. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) (‘Sentencing Act’), the judge declared that, but for the plea of guilty, he would have imposed a sentence of five years and eight months’ imprisonment, with a non-parole period of three years and nine months.

33 Mr Matthews seeks leave to appeal on three grounds:

1. The learned sentencing judge failed to take into account that Mr Matthews’ mental condition would weigh more heavily on him than a person in normal health.
2. The learned sentencing judge erred in taking the prosecution range into account as a sentencing consideration.

3. The sentence imposed is manifestly excessive.

34 For reasons that follow, we would refuse leave to appeal.

Circumstances of the offending

35 Charge 1, importing a marketable quantity of a border controlled drug, related to a period between 2012 and early 2013, during which Mr Matthews imported a total of 21 packages containing proscribed drugs. Of those packages — all of which originated either from the Netherlands, Germany, Spain or the United Kingdom — 17 contained MDMA; two contained amphetamine; one contained cocaine; and one both cocaine and amphetamine. The illicit drugs had been purchased via the internet site Silk Road (which operates as an internet-based black market), and were paid for by the virtual currency, Bitcoin. Some of the imported drugs were consumed by Mr Matthews and some he sold. In a record of interview with police Mr Matthews admitted that ‘only something like’ one in ten of the orders he placed were intercepted and not received.

36 The packages obtained from Silk Road were sent either to Mr Matthews’ residence in Craigieburn; one of two private post boxes in Collins Street and Little Collins Street, Melbourne, which he rented; or a licenced post office box at Craigieburn, which he also rented. Pure quantities of the drugs in the packages ranged between 0.5 grams and 20.3 grams, and the purities ranged from 82 per cent down to 15.5 per cent. The total pure quantities of the drugs imported in the 21 packages, and the marketable quantities set out in s 314.4 of the Criminal Code 1995 (Cth) (‘Criminal Code’), are set out in the table below:

37 Aggregation of quantities of different drugs for the purposes of charge 1 was permitted by s 311.4(1) of the Criminal Code, which allows such aggregation to prove marketable quantity, where ‘the defendant was engaged in an organised commercial activity that involved repeated importing or exporting of border controlled drugs’, and ‘the relevant quantity of a border controlled drug ... or of a combination of border controlled drugs ... was imported or exported in the course of that activity’. It was not disputed that Mr Matthews was engaged in an organised commercial activity that involved repeated importing of border controlled drugs.

38 Charge 2, trafficking a border controlled drug, arose out of the execution of a search warrant by Customs and police at Mr Matthews’ home on 21 February 2013. The resulting search located 14 envelopes addressed to various persons which contained MDMA, cocaine and methamphetamine (ice); a bag containing amphetamine; and a shoebox found in the bedroom wardrobe which contained cocaine, methamphetamine, amphetamine and MDMA in press-seal bags. Other items found included test kits for ecstasy and coca; scales; presumptive drug identification test kits; and a vacuum sealer and bags.

39 The drugs seized from Mr Matthews’ home which are the subject of charge 2, including the total pure quantities of the substances seized and the applicable trafficable quantities set out in s 314.1 of the Criminal Code, were as follows:

40 Examination of Mr Matthews’ mobile telephone and laptop computer revealed extensive evidence relating to dealings in controlled drugs, including a large number of transactions through Silk Road and feedback to sellers. Mr Matthews’ Silk Road account recorded purchases totalling approximately $25,000 during the nine months of his membership; and an account history page set out 93 transactions between 10 January 2013 and 20 February 2013. This evidence went to show that Mr Matthews was engaged in trafficking controlled drugs for the purposes of charge 2, and also to establish the context of, and motives for, the importation offence.

41 Mr Matthews was arrested on 21 February 2013 and interviewed. After initially declining to comment, Mr Matthews made admissions to both importation and trafficking. He said that through Silk Road, cocaine cost about $100 per gram, speed cost about $20 to $30 per gram and ecstasy about $5 to $10 per pill. Mr Matthews stated that prices in Australia were about $400 per gram for cocaine, $200 per gram for speed and $30 per pill for ecstasy, and that those were the sorts of prices he was selling the drugs for. He posted drugs to customers and used false sender names. The 14 parcels of drugs in addressed envelopes found at his home were due to be sent out that day. Those orders, he said, had come through over the previous week. Mr Matthews said that his customers were mainly people that he knew or that he met, and that he had met some interstate customers through Silk Road. He said that he had ‘under 50’ customers. His dealing he put down to financial pressures. His wife had recently had their second child. Mr Matthews stated that he and his wife had a mortgage of $373,000 and a personal loan of $20,000. He had a full time job working for the National Australia Bank (‘NAB’), earning approximately $63,000 per year, and his wife earned about $1,400 net per fortnight. The balance of his debts had not been reduced by his drug dealing, he said, ‘cause I order more stuff’ and so did not ‘get ahead’.

The plea hearing

42 On the plea, Mr Matthews’ counsel provided the judge with a written submission as to his personal circumstances and related matters, to which she spoke (Exhibit 1). She also tendered reports from two psychologists, Mr Patrick Newton (Exhibit 2) and Dr Mathew Barth (Exhibit 3), both of whom worked in the same practice. Oral evidence was also led from Mr Newton to update and supplement the contents of his written report. Various written references were received attesting to Mr Matthews’ character (Exhibit 4). In particular, a written reference as to Mr Matthews’ good character was received from his manager at work, Mr Dirk Ludowyk, who also gave viva voce evidence. A number of certificates evidencing Mr Matthews’ participation in self-improvement and other programs whilst on remand were also tendered (Exhibit 5), as was a written apology prepared by Mr Matthews (Exhibit 6). What follows is drawn principally from those sources.

43 Born on 9 November 1981, Mr Matthews was aged 32 years at the time of the plea. He had been married to his wife, Veronica, for five years, and had two daughters, aged five and two.

44 Mr Matthews had no prior convictions. He pleaded guilty to both charges at committal mention on 3 September 2013, so that his plea of guilty was entered at the earliest opportunity. It was accepted that he was genuinely remorseful.

45 Dr Barth had counselled Mr Matthews on 15 occasions between April and December 2013. His report, dated 6 December 2013, described the treatment that Mr Matthews had received, which was directed to overcoming his illicit substance abuse. The first phase of treatment focused on addressing Mr Matthews’ elevated levels of anxiety and low self-esteem; the second phase on enhancing interpersonal skills to combat the tendency to withdraw when anxious or overwhelmed; and the third phase on relapse prevention training. Significantly, the evidence was that, with the assistance of treatment from Dr Barth, Mr Matthews had become completely abstinent from illegal drugs.

46 Mr Newton forensically assessed Mr Matthews on 19 November 2013 for the purposes of providing a report. As we have noted, he also gave viva voce evidence. In his report, dated 5 December 2013, he expressed the view that Mr Matthews had experienced symptoms of depression for many years, which could be traced to his troubled childhood. He diagnosed a ‘Persisting Depressive Disorder (Dysthymia)’. Mr Newton expressed the view that Mr Matthews’ emotional state had improved with treatment.

47 As to Mr Matthews’ drug use, Mr Newton reported that Mr Matthews had used illicit stimulants regularly since his mid-twenties and that since 2009 he had become addicted to amphetamines, methamphetamines and cocaine, ‘after resorting to these drugs in a misguided effort to ameliorate his grief and depression’, following the sudden deaths of his father in July 2009 and his brother in August 2010. According to Mr Newton, Mr Matthews’ drug use was sufficiently severe to warrant the diagnoses of ‘Moderate Stimulant- and MDMA-Use Disorders’ (in early remission) under DSM-5[50] criteria. Mr Newton was of the opinion that these two factors led to Mr Matthews engaging in poor decision-making and, in that context, contributed to the commission of the offences.

48 In oral evidence, Mr Newton said that Mr Matthews had not sought treatment until after his arrest, save for brief consultations with a general medical practitioner who had prescribed an anti-depressant. He said that Mr Matthews’ depression had become worse in the five week period since he had been remanded in custody,[51] and that there was a risk that he would develop a major depressive disorder during his time in custody. In cross-examination, Mr Newton said that Mr Matthews had been ‘inured to’ and ‘immersed in the culture’ of Silk Road which ‘treats drug use as a mere recreational choice rather than as something with significant illegality’. He had ‘become corrupted into that framework’.

49 Mr Matthews had been in steady employment since the age of 18 years and, in the five years prior to sentence, had been employed with the NAB. Impressive character evidence was received from Mr Ludowyk, who was Mr Matthews’ supervisor. Despite being made aware of the charges, in the months prior to the plea hearing, Mr Ludowyk provided ongoing support to Mr Matthews and continued his employment. He described Mr Matthews as a ‘very promising individual’ with ‘a lot of potential’. Mr Matthews’ offending was, according to Mr Ludowyk, ‘totally out of character’. Other written character references also spoke highly of Mr Matthews.

Reasons for sentence

50 The sentencing judge was of the view that, while it was apparent that Mr Matthews made ‘some money’ from his offending, he ‘probably did not make a great deal of money out of it at the end of the day’. It was clear, however, that, at least in part, Mr Matthews had a ‘profit motive, successful or otherwise’.

51 It was noted that Mr Matthews had pleaded guilty at the earliest opportunity, consistently with being remorseful. Although at first reluctant to make full admissions, ultimately Mr Matthews made very substantial and frank admissions to the police. Mr Matthews’ ‘serious course of criminal conduct’ had, however, taken place over a period of nine months or thereabouts and, despite weighing the risks, he had continued to take them.

52 In light of the fact that Mr Matthews had remained drug free, and having regard to the character references and other material put before him, the sentencing judge was of the opinion that Mr Matthews was extremely sorry for what he had done and was most concerned about the impact on his family and friends. The judge thought Mr Matthews’ prospects of rehabilitation to be good.

53 The judge observed that Mr Newton’s evidence was ‘well balanced and persuasive and it did indeed expand upon the written report’. It is clear, the judge said, that Mr Matthews is an intelligent person, albeit that he has had issues with his self-esteem and self-confidence, and has had a depressive condition from adolescence.

54 It was noted that Mr Matthews had a good work record, and the evidence of Mr Ludowyk was said to be ‘very persuasive’ and ‘very impressive’.

55 With respect to Mr Matthews’ family circumstances, the judge took into account in fixing sentence that imprisonment will be a lot harder for Mr Matthews ‘than for many other fathers within the prison system’.

56 Referring to Mr Newton’s evidence, the judge thought that Mr Matthews’ financial stress was not ‘a particularly strong mitigating factor’, if at all. The judge accepted, however, that following the death of his father and brother, Mr Matthews’ use of recreational drugs increased to a point where he became dependent upon them and qualified him for the diagnosis of a Moderate Stimulant-and MDMA-use Disorder. The judge also accepted Mr Newton’s opinion that Mr Matthews suffered from a disorder, Dysthymia. Significantly, the judge was of the view that ‘the combined effect of those two disorders did play some part in [Mr Matthews’] offending conduct in the sense that it reduced [his] capacity for rational decisionmaking and caused [him] to behave in a way that [he] might not otherwise have done had [he] not had those conditions’. Although it was impossible to excuse Mr Matthews’ conduct on the basis of those combined conditions, the judge was of the opinion that to a ‘limited extent’ they reduced Mr Matthews’ moral culpability for his offending conduct, although his moral culpability remained ‘high’ despite ‘the reduction that ... is due by reference to those mental impairments’.

57 Importantly, when considering Mr Newton’s evidence as to the likely effect of a term of imprisonment upon Mr Matthews’ mental impairments, the judge accepted his evidence that there was a significant risk that Mr Matthews’ Dysthymia would deteriorate ‘possibly into a major depressive illness’. As a result, the judge proposed to reduce the sentence that he would otherwise have passed.

58 The judge noted the need for the sentence to reflect just punishment, denunciation, general and specific deterrence, and rehabilitation.

59 We will discuss the judge’s remarks concerning the prosecution’s MacNeil-Brown range when dealing with ground 2.

Failing to take proper account of Mr Matthews’ mental impairments

60 Ground 1 complained of a failure ‘to take into account that Mr Matthews’ mental condition would weigh more heavily on him than a person in normal health’. The complaint became somewhat more confined — and refined — in Mr Matthews’ submissions so that the thrust of the complaint was that the judge failed to give any consideration to the additional hardship of imprisonment that would flow from Mr Matthews’ ‘poor mental health’.

61 It was submitted that the evidence of Mr Newton supported Mr Matthews’ contention that Verdins[52] principles were enlivened. In particular, Mr Newton expressed the opinion that Mr Matthews’ time in prison would be harder than the ordinary prisoner and there existed a real risk that his mental health would materially deteriorate as a result of his incarceration. That evidence, it was submitted, went unchallenged. Although, however, the sentencing judge accepted Mr Newton’s evidence that the combined effect of Mr Matthews’ Dysthymia and Moderate Stimulant-and MDMA-Use Disorder played some part in the offending conduct (and, as a result, to a limited extent moderated or reduced Mr Matthews’ moral culpability), and also accepted that there was a significant risk that Mr Matthews’ Dysthymia would deteriorate into a major depressive illness during imprisonment (and needed to be taken into account by reducing Mr Matthews’ sentence) — thereby engaging the first and sixth propositions in Verdins — consideration of the additional hardship of gaol as a result of Mr Matthews’ ‘poor mental health’ was a feature ‘conspicuously absent’ from the judge’s reasons for sentence. The inference is thus compelled that the judge did not, or did not properly, synthesise that, as a result of his poor mental health, Mr Matthews’ sentence would weigh more heavily upon him than it would on the ordinary prisoner. It was submitted that the sentencing discretion therefore was vitiated.

62 In Verdins, the Court (Maxwell P, Buchanan and Vincent JJA) set out six relevant propositions bearing on the sentencing of those suffering from impaired mental functioning, three of which — the first, fifth and sixth — are relevant to the present ground of appeal:

Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

...

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.^[53]

63 As we have said, Mr Matthews’ counsel submitted that the judge took into account propositions 1 and 6, but not proposition 5. We reject that submission. Read in context, it is apparent from the judge’s reasons that he took heed both of the fact that Mr Matthews’ Dysthymia was present at the time of sentence and that it might in the future deteriorate into a major depressive illness; and that his Honour ameliorated the sentence accordingly to take account both of the present effect of the condition on Mr Matthews’ confinement and the possibility that his confinement might become even more burdensome if the condition in future developed into a major depressive illness. The judge might not have precisely rehearsed the content of proposition 5, but it is plain from a fair reading of his reasons for sentence that in practical effect he mitigated the punishment imposed to take account of the present consequences of Mr Matthews’ Dysthymia and the possibility that a major depressive illness might in future develop.

64 The complaint made under cover of the first ground has not been made out. Ground 1 cannot be upheld.

Taking the prosecution’s MacNeil-Brown range into account

65 At the forefront of Mr Matthews’ case was the submission that the judge’s sentencing discretion miscarried because, in fixing sentence, he took account of an irrelevant consideration — the prosecution’s MacNeil-Brown range. It is thus necessary to examine what the judge said. The judge observed:

The prosecution put forward a range of sentences, a head sentence between four and a half and six years, a nonparole period of between two and a half and three and a half years. Your counsel has urged me to select a sentence that is less than that range.

I must say that having regard to the period over which you were engaged in the importation offence, and indeed with the trafficking offence, that the range would seem to be a more than reasonable range having regard to the seriousness of the offending conduct.

However, I am persuaded that I am entitled to impose a sentence that is a little less, at least, than the range and below the minimum end of that range so far as the sentence is concerned, although I have to say not by very much.

66 Counsel for Mr Matthews submitted that the prosecution had put to the sentencing judge that the ‘parameters of the judge’s discretion’ were represented by a total effective sentence of between four and six years’ imprisonment, with a non-parole period of between two and a half and three and a half years. In the end, the judge imposed a total effective sentence just above the lower end of the range given to him and fixed a non-parole period equal to the lower end of the prosecution range. Hence, so it was argued, there can be little doubt that the exercise of the judge’s sentencing discretion was ‘informed’ by the prosecution’s submission as to range. So much is plainly disclosed, it was submitted, by the judge’s reasons for sentence. The discretion miscarried since the judge took into account an irrelevant consideration which was material to its exercise. Hence, the sentencing discretion was unravelled, the ‘only live question’ being whether a different sentence should be imposed (a question that ‘ought to be answered in the affirmative’).

67 Although both prosecution and defence counsel had made submissions on range, and in his sentencing remarks the judge made reference to ‘range’, in our opinion the sentencing judge did not fetter his discretion by reference to the range put by either end of the Bar table. In saying that he was ‘entitled to impose a sentence that is a little less, at least, than the range and below the minimum end of that range’, it is apparent that the judge determined for himself what the sentence should be without feeling himself shackled by the ranges proffered by either of the parties. He acknowledged the submissions that had been put to him about range, but in our view he did not, as Mr Matthews’ counsel submitted that he did, take into account the prosecution’s MacNeil-Brown range in any material way. Indeed, it does not appear to us that the sentencing judge was improperly influenced by the prosecution’s range, or that he failed to exercise any independent judgment. His Honour’s remarks must be viewed against the backdrop that he was provided by counsel with a table of other drug cases and copies of several sentencing decisions which were claimed to be comparable. Both counsel made submissions about the similarities and dissimilarities disclosed by those cases. The judge’s observation that the range advanced ‘would seem to be a more than reasonable range’ is explained by the manner in which counsel had sought to rely on supposedly comparable cases.[54]

68 But even were we wrong in our assessment, and the judge did err in the manner alleged, we would not intervene since, for reasons that will become clear in our discussion of the next ground, we are of the opinion that no different sentence ought to be passed.

69 Ground 2 cannot be upheld.

Complaint that the sentence is manifestly excessive

70 Counsel submitted that the sentence was manifestly excessive in light of the following ‘accepted facts’ which ‘represented a powerful constellation of mitigating factors’:

• Mr Matthews had no prior convictions or criminal history;

• there was positive evidence of good character;

• he suffered from a persisting depressive disorder since childhood;

• imprisonment represented a real risk that his poor mental health would further deteriorate;

• he made admissions to police and was co-operative with the investigation;

• he pleaded guilty at the earliest opportunity;

• he was found to be remorseful;

• he had excellent prospects of rehabilitation and specific deterrence was found not to be significant;

• he had become drug free;

• Mr Matthews’ time in custody would be especially burdensome in the light of his poor mental health and his concern for his wife and young children; and

• he had the continued support of his family.

71 Additionally, counsel pointed to and relied upon Mr Matthews’ own serious drug addiction; the absence of any evidence that he substantially profited from his offending; and the fact that, although the sentencing judge stated that he had taken into account the risk that Mr Matthews’ Dysthymia would deteriorate into a major depressive illness during imprisonment, the sentence imposed fails to reflect its having been given proper weight.

72 We are unpersuaded that the sentence is manifestly excessive.

73 By the time of his arrest, Mr Matthews had a well-established business selling a variety of illicit drugs and had a substantial network of customers. His offending involved significant quantities of drugs (many times the respective marketable quantities) being brought into this country and the distribution of significant quantities of those drugs into the community. The motivation for the offending was — save to the extent of personal use — overtly commercial. Over a period of nine months Mr Matthews was involved in many individual importations. A significant proportion of the imported illicit drugs was intended to be on-sold at a high mark-up.

74 Mr Matthews’ claims of financial stress was not significantly mitigating. Nor, in our view, did Mr Matthews’ mental impairments substantially mitigate his moral culpability. The evidence demonstrated that Mr Matthews was able to perform full-time work, while at the same time conducting an importing and trafficking operation requiring considerable organisation.

75 Although Mr Matthews was previously of good character, any sentence passed on him was required to give full effect to the need to deter others and to denounce his conduct. If there be a perception among some that the on-line trading in drugs, or their purchase or sale by post, is somehow less serious than more traditional forms of dealing, those perceptions need to be dispelled by sentences which adequately reflect the need for general deterrence.

76 Maximum available penalties of 25 years’ and 10 years’ imprisonment respectively for the two charges on the indictment reflect the seriousness of the offences. The individual sentences on each charge were, given the gravity of the offending, moderate. Indeed, the sentence on the trafficking charge strikes us as lenient. The effective cumulation between the individual sentences is conservative, and the non-parole period adequately reflects the mitigating aspects of the case (including Mr Matthews’ mental impairments).

77 The sentence is fitting. In no respect can it properly be described as manifestly excessive.

78 Ground 3 is not made out.

Conclusion

79 None of the grounds having substance, we would refuse leave to appeal.

Vu v The Queen

80 Ms Vu was apprehended on 31 March 2013 at Melbourne Airport carrying 345.5 grams of heroin gross with an average purity of 33.8 per cent. The total pure heroin was 116.8 grams. At the committal Ms Vu pleaded guilty to one count of importing a marketable quantity of a border controlled drug in breach of s 307.2(1) of the Criminal Code. On 9 December 2013, Ms Vu was sentenced to a period of five years and eight months’ imprisonment, with a non-parole period of three years and eight months’ imprisonment. The sentencing judge declared pursuant to s 6AAA of the Sentencing Act that, but for the plea of guilty, the sentence would have been eight years and six months’ imprisonment, with a non-parole period of six years and six months’ imprisonment.

81 Ms Vu now appeals on the following grounds:

Ground 1: The sentencing judge erred in requesting a range from prosecuting counsel in response to receiving a range from defence counsel in her written submission;

and

Ground 2: The sentence and the non-parole period are manifestly excessive, particularly in view of the following matters:

a) the early stage of the plea;

2. the fact that the quantity of the drug was at the very lower end of the ‘marketable quantity’ range;

100. [Ms Vu’s] reasonable prospects of rehabilitation by reference to her family relationships and her successful children;

4. [Ms Vu’s] role as courier as distinguished from a person involved in planning and financing the enterprise;
5. the fact of her acceptance of responsibility at the moment of detection;
6. the burden of worry about her disabled parents during her time in custody.

82 At the time of sentencing Ms Vu was 57 years of age. She was born and lived in North Vietnam and endured the difficulties and horrors of the Vietnam War. As the eldest daughter, she played a significant role in looking after her family. During the war, Ms Vu was responsible with her mother for the care, support and safety of six younger siblings. She remains affected by her wartime experiences and still suffers panic attacks as a result of loud noises.

83 Ms Vu married quite young and experienced an abusive relationship. She escaped from Vietnam with her husband and two children. She immigrated to Australia in 1984 after two difficult years in a refugee camp in Hong Kong. On arrival in Australia her husband left her and she was left to look after her three children (one child being born in Australia) on her own. She managed to achieve continuing employment until four years ago.

84 In the past two years, Ms Vu continuously travelled to Vietnam to care for her ailing parents who are effectively bedridden and require constant care. As a result, Ms Vu’s family needed to hire a carer for her parents in Vietnam.

85 At some point Ms Vu entered another relationship. In 1998, the new partner introduced her to heroin. She used this drug and alcohol to cope with the stress she was under regarding her parents’ conditions. Ms Vu quickly became addicted.

86 Ms Vu had a prior criminal history for trafficking and possession of drugs and dealing in property suspected of being the proceeds of crime.[55]

87 In 2004, Ms Vu was convicted of trafficking heroin, possessing ecstasy and dealing with the proceeds of crime. As a consequence, she was sentenced to 12 months’ imprisonment and served approximately five months of that sentence. After her release, Ms Vu claimed to have been abstinent from drugs. However, due to the stresses of caring for her parents, she resorted to the use of heroin and alcohol. Ms Vu fell into debt in meeting her drug addiction and the care of her parents. When she was unable to pay a debt of about $15,000, the credit provider offered her the alternative of bringing the detected drugs into Australia or being killed. It was these circumstances, it was submitted on the plea, that drove Ms Vu to commit the offence.

88 The learned sentencing judge rejected Ms Vu’s explanation for her offending. His Honour found there was no true contrition for the offending. In particular, his Honour did not accept the account given by Ms Vu as to her motivations for importing the drug. His Honour stated:

I am confident you are sorry for your own predicament and sorry for the impact upon your parents and children. But as I will make plain shortly, I am unable to accept the account you have given as to your financial predicament and the threat of physical injury driving this crime. I am ultimately unable to find that you have any true contrition for committing this offence. That is not a matter in aggravation.

89 Ms Vu was examined by a forensic psychologist Mr Watson-Monroe, who concluded, on the basis of a single consultation, that she appeared to be suffering symptoms of major depression, an anxiety disorder and an over-arching substance abuse disorder. His Honour viewed the psychologist's assessment as speculative, mainly because the psychologist relied solely on the account given to him by Ms Vu. In rejecting the Verdins application his Honour stated:

It is my view that his opinions are highly speculative and founded on the very shaky foundation of the history you gave him. As far as I am concerned, he [Mr Watson-Monroe] speculates as to the condition you may have been labouring under and then makes a further speculative call as to the impact of any such possible condition. He accepts your account of recruitment which by the way does not include any mention of a physical threat. I do not accept your account.

This is yet another example of very unsatisfactory and inconclusive materials being relied upon in this regard. I am not persuaded that the principles from the case of Verdins have any application in this case at all.

90 The judge considered general deterrence was a significant factor, particularly in cases of importation of drugs into this country. His Honour noted the need to send a strong message to others thinking about importation of drugs that they will face stern punishment. Moreover, his Honour took into account the need for specific deterrence. In relation to rehabilitation, the judge accepted that Ms Vu had some prospects of rehabilitation, noting Ms Vu’s history of abstaining from drugs for some time and her success in bringing up three children on her own. However, his Honour did point out that such prospects must be weighed against the fact that Ms Vu had previously been imprisoned three times for drug-related offences.

91 Relevantly for this application, defence counsel, in both the written and oral submissions, proffered a sentencing range without any invitation from the Bench. His Honour indicated this should not have occurred, noting that such submissions should not be made unless it was a result of an invitation from the Bench to provide such submissions. However, in light of the fact the submissions had already been made, he noted the range proffered by counsel for Ms Vu. Later in the plea, the judge asked whether the Crown wished to submit a range in response to the range given by defence Counsel. His Honour made it clear that he only sought the range from the Crown because the defence had already proffered a range. The prosecutor submitted a sentencing range of a head sentence of five to six years’ imprisonment, with a non-parole period of two years and nine months to three years and nine months.

Sentencing range

92 Turning to proposed ground 1 of the appeal, this ground may be disposed of quickly. There is nothing in his Honour's reasons to suggest he was affected or influenced by the submission on sentencing range. His Honour was plainly reticent about the propriety of receiving those submissions and held firm views about Ms Vu’s conduct well before the sentencing range was proffered. It might be said that his Honour only received the submission from the prosecutor as a matter of procedural fairness. His Honour made his concerns known in his sentencing remarks:

I make plain that I would not have asked for a sentencing range in this case. However, your counsel placed a submission as to sentencing range in her written materials which had been filed. That should not have happened and should never happen again. The provision of such a range is very much determined by invitation from the Bench. In the circumstances I asked the Crown to respond and the prosecution placed before me a submission as to the available range of sentence together with two charts of other sentencing outcomes for this crime marked as Exhibit B.

93 For the reasons stated earlier, the fact that a judge is given a sentencing range is not sufficient to demonstrate sentencing error. An applicant must demonstrate that the sentencing judge took into account an irrelevant consideration, namely the range submitted. Ms Vu pointed to the fact that the sentence handed down was close to the top of the Crown range to demonstrate that his Honour’s sentencing discretion was unduly influenced. The Crown, the respondent in this appeal, submitted that an appellate court, such as this one, should be reluctant to infer an abrogation of a sentencing judge’s obligation to come to an independent decision regarding sentencing range.[56]

94 There is nothing in the plea transcript or the reasons for sentence to indicate that his Honour applied the Crown’s range. To the contrary, his Honour made it clear that he had come to an independent decision regarding the appropriate sentence. His Honour stated:

The prosecutor submitted that a head sentence in the range of five to six years, with a non-parole period in the range of two years nine months to three years nine months, were the available ranges open to me. Your counsel had suggested that a sentence in the range of four to five years with a non-parole period spanning two to three years was open. I have to reach my own decision as to the appropriate sentence.

95 We accept, as the Crown set out in its submissions, that this Court should be reluctant to infer that a trial judge has abrogated his or her responsibility to come to an independent decision regarding the appropriate sentencing range. As Ms Vu cannot point to any indication that such an abrogation has occurred, it follows ground 1 is not made out.

Manifest excess

96 We now turn to proposed ground 2. Ms Vu submitted that there were a number of factors which, taken in their totality, indicate the sentence was manifestly excessive. In particular, she contended that his Honour did not properly comprehend the distinction between being a courier and someone more senior in organising the importation of drugs. The respondent argued that his Honour’s approach was consistent with the position set out by courts that involvement in the importation of drugs at any level deserves punishment.

97 In this case, the learned judge took account of each of the matters particularised in support of the ground: the early plea, the quantity of the drug, prospects for rehabilitation, Ms Vu’s lower order role as a courier, her acceptance of responsibility and the burden of her parents whilst in custody. The offending was particularly significant given Ms Vu’s criminal history. It was also, as his Honour pointed out, conduct integral for the successful import of drugs into this country. His Honour rejected the psychological report and the explanation given by Mr Vu for her offending. Critically, these findings were not challenged on the application. Having regard to his Honour’s careful sentencing remarks, which seek to weigh both the aggravating and mitigating factors, the sentence was appropriate within the overall circumstances.

98 No error has been demonstrated. We dismiss the application.

Hashmi v The Queen

99 On 21 August 2013, Mr Hashmi, who is now aged 30 years, pleaded guilty to four drug related offences. They were trafficking in a drug of dependence, namely methlyamphetamine (charge 1); possession of a drug of dependence, namely methorphan (charge 2); possession of a drug of dependence, namely anabolic and androgenic steroidal agents (charge 3) and possession of a schedule 4 poison, namely somatropin (summary charge 37).

100 Mr Hashmi admitted seven previous convictions from four court appearances. In March 2003, in the Ringwood Magistrates’ Court, he was fined $500 without conviction for handling stolen goods. In September 2003, in the Ringwood Magistrates’ Court, he was convicted of recklessly causing serious injury and sentenced to eight months’ imprisonment wholly suspended for two years. In 2004, he was sentenced in the County Court to two years’ imprisonment with a non-parole period of 12 months for recklessly causing serious injury and affray. In 2007, in the Ringwood Magistrates’ Court, the charges concerned possession and use of amphetamine, cocaine and anabolic steroids for which he was sentenced to a Community Based Order.

101 Mr Hashmi was indicted with two co-offenders – Mr Luke Helder and Mr Aaron Ong. Mr Helder was charged on a separate indictment with trafficking in a drug of dependence, namely methlyamphetamine (charge 1). Mr Ong was charged on a further separate indictment with one charge of possession of a precursor chemical, namely ephedrine sulphate; six charges of possession of a drug of dependence and three summary offences of possessing cartridge ammunition, possessing property suspected of being the proceeds of crime and possession of a prohibited weapon.

102 On 2 September 2013, the sentencing judge imposed the following sentences. Mr Hashmi was sentenced to a period of 28 months’ imprisonment on the count of trafficking and one month imprisonment on each of the possession charges to be served cumulatively with the sentence on charge 1. On the summary offence of possession of somatropin, he was fined $300. The total effective sentence was therefore two years and six months’ imprisonment and the judge fixed a minimum term of 18 months before Mr Hashmi was eligible to apply for parole. The judge declared, pursuant to s 6AAA of the Sentencing Act, that, but for the plea of guilty, the total effective sentence would have been four years’ imprisonment with a minimum term of two years and six months to be served.

103 The co-offender, Mr Helder, was sentenced on the trafficking charge to two years’ imprisonment and a minimum term before eligibility to apply for parole was fixed at nine months. As will be seen, this sentence, with particular reference to the non-parole period, raises the issue of parity on Mr Hashmi’s application for leave to appeal. On the charges to which Mr Ong pleaded guilty, he was sentenced to a two-year Community Corrections Order with a requirement for 100 hours of community work.

104 A further two offenders, Mr Christopher Young and Ms Kate Benden (who is Mr Hashmi’s partner), were separately dealt with in the Magistrates’ Court. Mr Young was sentenced on 20 December 2013 to five months’ imprisonment, wholly suspended for two years, and a Community Corrections Order on one charge of trafficking amphetamines, one charge of drink driving and one charge of handling stolen goods. Ms Benden was fined $7,000 on one charge of dealing in property suspected of being the proceeds of crime.

105 Mr Hashmi seeks leave to appeal on three grounds:

1. The disparity between [Mr Hashmi’s] non-parole period and that of the co-offender Luke Helder violates the principle of parity;
2. The individual sentences imposed and non-parole period are manifestly excessive;
3. The sentencing judge erred in law in taking into account the inadmissible submission of the prosecution on the sentencing range.

106 For the reasons that follow we would grant leave to appeal on ground, allow the appeal and substitute a sentence of two years and six months’ imprisonment with a minimum period before eligibility to apply for parole of 12 months.

Circumstances of offending

107 In early 2010, a police operation began targeting the drug trafficking activities of a number of people including Messrs Hashmi, Young and Ong. Telephones were intercepted and monitored by police and in September 2011 it became apparent that the home occupied by Mr Hashmi and his partner in Vermont was being used to manufacture amphetamines. Surveillance on the premises commenced on 13 October 2011 and later that day arrests were made and warrants executed. Mr Young was arrested at a hotel in Ringwood with 27.6 grams of methlyamphetamine.

108 When police entered Mr Hashmi’s Vermont address at 9:10pm on 13 October 2011, they found him, Mr Helder and Ms Benden. He informed them that there was a laboratory ‘cooking’ inside the premises. That was occurring in a converted underground garage area which included a laundry and in that laundry was a laboratory producing 126.9 grams of methlyamphetamine. A further 21 grams was located in the underground garage. Equipment for use in the manufacture was seized as were various chemicals consistent with the manufacture of methlyamphetamine. Some of the items of glassware that were seized, bore the fingerprints of Messrs Hashmi, Helder and Ong.

109 A warrant was also executed on Mr Ong’s premises on the same day and drugs and other items were seized.

The plea and sentence

110 The pleas were conducted over two days on 21 and 22 August 2013. During the opening by the prosecutor, a summary of the facts was read to the Court as were the details of the sentence imposed on the co-offender, Mr Young, as a result of his arrest at the Ringwood Hotel.

111 After some discussion, the sentencing judge indicated that he would proceed on the basis that the case against Mr Hashmi was put purely as trafficking by manufacture rather than sale. It was put by the prosecutor during the plea hearing that Mr Hashmi’s role was more ‘managerial’ than in the case of Mr Helder.

112 Senior counsel for Mr Hashmi commenced his plea by placing significance on two reports prepared by the forensic psychologist, Ms Alison Maynard, and to Mr Hashmi’s history as set out in those reports.

113 Ms Maynard first reported on Mr Hashmi on 21 May 2013. She described his personal and family background. Mr Hashmi was born in Afghanistan on 15 April 1984. For the first five years of his life he lived in Kabul with his mother and siblings but his father had another family. He recalls his mother and himself being the victims of his father’s violence and that his father forced he and his brother to fight, rewarding the victor and deprecating the loser.

114 At the time that he was living in Kabul he well recalled the effects of war with bombs falling and seeing people killed as well as terrible injuries to others. Ultimately, he and his family left Afghanistan and went to India via Pakistan where they spent some five or six years as refugees. His education during this time was almost non-existent. The family were then sponsored to resettle in Australia as refugees.

115 As an adolescent in Melbourne, Mr Hashmi committed offences of violence, spending time in a Youth Training Centre. He was sentenced to custodial sentences several times under the age of 20 years old.

116 At 20 years old, Mr Hashmi was stabbed and apparently became quite ill as a result. His brother attempted to exact revenge and for his trouble went to gaol for five years. Mr Hashmi was thus required to support his mother, which was made more difficult because she blamed him for his brother’s imprisonment.

117 When Mr Hashmi was 27 years old, his brother was released from custody, but their relationship failed. Mr Hashmi then began using amphetamine and methamphetamine. He suffered from depression and quickly developed an addiction to the drugs he was using.

118 At the time of being sentenced, Mr Hashmi was in a relationship with Ms Kate Benden. That relationship had lasted for about seven years. There is a child of the relationship and he is now 17 months old. He has confided in Ms Benden about his past experiences and she has supported him.

119 Ms Maynard concluded that Mr Hashmi met all the criteria for the diagnosis of Post-Traumatic Stress Disorder (‘PTSD’). He has had major depression with a generalised anxiety disorder. He also had a substance abuse disorder, which Ms Maynard opined had resolved.

120 In that first report, Ms Maynard urged that there be psychological counselling because although he had improved, symptoms of trauma, anxiety and depression were still evident.

121 On 14 August 2013, Ms Maynard prepared a second report. The picture painted in that report was of a man who had made a significant effort to change his life by concentrating on his family, being his relationship with Ms Benden and his son, his health and finding gainful employment. Ms Maynard had been involved with Mr Hashmi in the interim. She thought he had developed significant insight into his past and had made significant progress. She pointed out that he was at a sensitive stage of his treatment and that was psychologically vulnerable. She emphasised the importance of the treatment he was having being continued.

122 Senior counsel for Mr Hashmi placed considerable emphasis on the efforts and conclusions of Ms Maynard and for good reason. She offered optimistic conclusions about Mr Hashmi’s future and about the transition in his life he was endeavouring to achieve.

123 In addition, evidence was called, first, from Mr Peter Norris, and then from Mr Clive Benden, the father of Mr Hashmi’s partner. Mr Norris described having a business in tattooing in which he proposed to have Mr Hashmi join as a business partner. In addition to the tattooing, there was to be a clothing brand developed with t-shirts and similar items. Mr Hashmi was part of the graphic designing, in which he had an interest.

124 Mr Benden gave evidence during the plea in which he expressed his approval of Mr Hashmi as the partner of his daughter and added that clothing design seemed to be Mr Hashmi’s ‘forte’. In answer to the sentencing judge he said he had visited Mr Hashmi in custody. He described Mr Hashmi’s skills as a father very positively. He described his outlook as much more positive. His evidence demonstrated a willingness on the part of both he and his wife to support his daughter, his grandchild and Mr Hashmi.

125 In dealing with these personal circumstances of Mr Hashmi, the sentencing judge said:

I have received in evidence two psychological reports of Alison Maynard, a consulting forensic psychologist, detailing your background and psychological profile. I accept that your child hood and developmental years were seriously disrupted by the civil war in Afghanistan and the extreme violence that you were exposed to. Your family fled Afghanistan and thereafter you, your sister and brother, and mother were abandoned by your father and you lived in refugee camps in Pakistan. You arrived in Australia in 1998. You had difficulties settling in and you were bullied at school.

It was submitted on your behalf that your prior convictions for offences of violence were in response to violence directed to you and your brother, by gangs in the area in which you lived. You also developed a polysubstance abuse disorder and this in part explains your offending on this occasion.

You are currently in a stable relationship with Ms Benden and you have a child aged 9 months. I heard evidence from Ms Benden’s father and I accept that you are a caring father yourself and you have the support of Ms Benden’s family. It would appear that your work history has been intermittent and the vague evidence I heard from Peter Norris regarding your involvement in his clothing and tattoo business was not such that I could conclude that you have regular stable employment available to you on your release from prison.

In my opinion, any assessment of your prospects for rehabilitation must be guarded.

126 In the case of Mr Helder, it was submitted on his behalf that he had no prior convictions. True as that was, the present offences were committed by him whilst he was on bail for another charge of trafficking, which involved possession of cash and multiple mobile phones with text messages indicating trafficking. It was also submitted on his behalf that he was a youthful offender, being 23 years old at the time of the offending. He had strong family support and good prospects for rehabilitation.

Parity

127 In his submissions in this Court concerning this ground, senior counsel for Mr Hashmi concentrated his attention, as the ground of appeal itself does, on the relative non-parole periods of Mr Hashmi and Mr Helder. There is no issue raised as to whether it was open to the sentencing judge to impose a heavier sentence on Mr Hashmi than on Mr Helder. It clearly was.

128 However, when Mr Hashmi’s non-parole is expressed as a proportion of his head sentence it is 60 per cent. On its own that is an unremarkable proportion and, assuming the head sentence was within the acceptable range, would not attract appellate scrutiny. However, the proportion for the co-offender, Mr Helder, was 37 per cent, in circumstances where he had already received a lesser sentence than Mr Hashmi. The non-parole period for Mr Helder was explained by the sentencing judge when he said:

In your case I accept that it is appropriate for to fix a shorter than usual non parole period in order to facilitate your very good prospects for rehabilitation.

129 Mr Hashmi thus relies on the principles concerning consistency of punishment.[57] As Maxwell P observed in Howard v The Queen:

The requirement that like cases be treated alike, and that there be appropriate differentiation between unlike cases, is fundamental to the criminal justice system and to the maintenance of public confidence in the system. As the High Court has noted more than once, so fundamental is the requirement of appropriate relativities between offenders that it may be necessary to interfere with an otherwise appropriate sentence.^[58]

130 In R v Galea,[59] Winneke P, discussing the claims of disparity between co-offenders, said:

Before a court will intervene however, the disparity would need to be so manifest that it not only engenders a justifiable sense of grievance in the offender but would give the appearance to an objective observer that justice has not been done. Cf R v. Bernath [1997] 1 V.R 271 at 276-7 per Callaway, J.A. It seems to me that before such a disparity can be said to exist in the case of co-offenders who have pleaded guilty to multiple offences, an appellate court must not only have regard to the discrepancy in sentence for the particular offence complained of, but the influence which that sentence has played in the overall sentencing disposition. It is, after all, the discrepancy in the ultimate disposition which inevitably will engender the justifiable sense of grievance in a particular offender, and the appearance of injustice in the mind of the objective observer. Although an appellate court is primarily concerned with individual sentences, it is also concerned with the issue whether, at the end of the day, the overall sentencing discretion reflects error of such a kind that it considers that some other sentence more favourable to the appellant should have been imposed.^[60]

131 In our view, whilst the imposition of a lesser sentence on Mr Helder was appropriate and justifiable based on the antecedents of the two men, their personal circumstances and the additional charges faced by Mr Hashmi, the additional significant disparity in the proportion of the non-parole period to head sentence in each case is such that it would engender a justifiable sense of grievance in Mr Hashmi and give the appearance to an objective observer that justice has not been done. That is because, as Mr Hashmi has submitted, a careful examination of the evidence presented on behalf of Mr Hashmi, with particular reference to the reports of Ms Maynard, supports the conclusion that his prospects for rehabilitation were also ‘very good’ and that much of his previous conduct was explicable by the mitigating circumstances that applied in his case, including the diagnosed psychological conditions. As to those, he was making significant progress.

132 During his submissions and for those reasons, counsel for Mr Hashmi urged the sentencing judge not to impose a custodial sentence, but if that submission was not accepted, then there should be a ‘significant disparity’ between the head sentence and the non-parole period.

133 We note in particular that, in his reasons for Mr Hashmi’s sentence, the judge did not refer to Ms Maynard’s diagnoses of anxiety disorder, depression and PTSD. He also omitted to mention the significant psychological changes and progress in Mr Hashmi that had occurred as documented by her and how those conditions had progressed during 2013, particularly between May and August. In our opinion it appeared from the evidence before his Honour that the rehabilitation of Mr Hashmi was significantly advanced. We consider that ‘guarded’ may be an unnecessarily pessimistic term to employ for his prospects for rehabilitation when the detail of his changing and improving psychological condition is carefully examined.

134 As a result of these considerations, we have concluded that a non-parole period of similar proportions should have been fixed in Mr Hashmi’s case. In granting leave to Mr Hashmi to appeal and allowing the appeal, we propose to fix a non-parole which is equal to 40 per cent of the head sentence of two and a half years. That will result in a period of 12 months rather than 18 months to be served before he is eligible to apply for release on parole.

Sentencing range

135 Our conclusions on ground 1 may make it unnecessary to deal with the remaining grounds. However, we think it necessary to make some comments about ground 3.

136 As we earlier described, in the course of the plea, counsel for Mr Hashmi urged the sentencing judge to impose either a sentence which did not involve immediate custody for him, or one where there was a ‘significant disparity’ between the head sentence and the non-parole period.

137 Later in the proceedings, in discussion with the prosecutor, the sentencing judge expressed an opinion that in order to distinguish between Mr Hashmi and Mr Helder, and whilst a sentence of imprisonment might be imposed on Mr Hashmi, that might not apply to Mr Helder. The prosecutor responded that both should be imprisoned. The judge then said:

I’m not convinced that that’s the appropriate course in Mr Helder’s case, Mr Elwood [the prosecutor] what’s the sentencing range in Mr Hashmi’s case?

138 The prosecutor informed the judge that the range was between two and a half and three and a half years, with a minimum term of between one and a half and two and a half years. The judge imposed a sentence at the lower end of the range on Mr Hashmi. In the case of Mr Helder, the range was between two and three years, with a minimum term of between one and two years. In the latter case, the judge imposed the lower head sentence and fixed a minimum term three months below the lower end of that range. The judge however, did not refer in his reasons for sentence to the range offered by the Crown in either case. In those circumstances, we are not persuaded that the sentencing judge took the range into account in a material way in either case.

Conclusions

139 For the reasons set out above we do not consider that the receiving of a submission as to sentencing range, of itself, amounts to appealable error and we are not persuaded that the judge took any of the proffered sentencing ranges into account in a material way. As no other error was established in the appeals of Ms Vu and Mr Matthews, we would dismiss those appeals. In the matter of Mr Hashmi, we would allow the appeal on the ground of parity and re-sentence him to the same head sentence of two and half years, with a non-parole period of 12 months.

PRIEST JA

LASRY AJA:

140. We have had the considerable benefit of reading the reasons of Warren CJ, and Nettle and Redlich JJA in draft. Their Honours have concluded that the applications of Tuyet Thi Vu and Lee James Mathews ought fail, and that of Sayeed Hashmi should succeed.^[61] Substantially for the reasons advanced by their Honours, we agree with the dispositions proposed in each case. We wish to add some observations of our own, however, concerning a judge’s receipt of a sentencing range.
141. To the extent that their Honours’ reasons might be understood as concluding that for a sentencing judge to take into account a submission advanced by the prosecution as to the range of sentences open to be imposed — colloquially, a MacNeil-Brown^[62] range — is not to take into account an irrelevant consideration, with respect, we cannot agree. It is necessary that we set out our reasons for that disagreement.
142. Warren CJ, Nettle and Redlich JJA conclude that a MacNeil-Brown range is not a consideration; that is, it is not a finding of fact or law which are the bases of a sentencing decision. Their Honours hold that a MacNeil-Brown range is a proposed range for the sentence ostensibly derived from the synthesis of its own considerations.^[63] Moreover, it appears that their Honours do not understand the High Court in Barbaro^[64] to be saying that to take into account a MacNeil-Brown range is to take an irrelevant consideration into account.^[65] Rather, their Honours’ view is that the essence of the majority decision in Barbaro is that the practise of giving a MacNeil-Brown range should cease because of the risk of it leading judges into error.^[66] We respectfully disagree with these propositions.
143. In light of Barbaro, it must now be accepted that a submission concerning range is the expression of an opinion proffered in order to influence the sentence to be imposed. It is put forward to persuade a judge that the exercise of the sentencing discretion will only be sound if the sentence the judge imposes falls within the range advanced. It is an opinion which is irrelevant to the exercise of the sentencing discretion. It advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts in order to arrive at the sentence to be imposed.^[67] It is for that reason that the High Court concluded that such a ’statement of bounds’ should not be permitted to be made. An error in principle had been exposed such that the decision in McNeil-Brown should be overruled.^[68]
144. Before proceeding further, we should make this clear. When we speak of the MacNeil-Brown range, we contemplate only submissions as to the quantified range of sentences of imprisonment — days, weeks, months or years — put forward by the prosecution as being, in their view, an appropriate disposition. It remains proper for the prosecution to make submissions as to the range of sentencing options available in a particular case, so as to assist the sentencing judge to avoid appealable error. Indeed, closely analysed, that was one of the main premises that underlies the decision of the court in Casey and Wells,^[69] which was largely the underpinning of the majority’s reasons in MacNeil-Brown. In MacNeil-Brown, the majority, having cited extensively from Tait and Bartley^[70] and Casey and Wells, and having referred to other authorities, summarised their view of the effect of Casey and Wells:

The decision in Casey and Wells, adopting as it did all that was said in Tait and Bartley, stands as authority for the following propositions:

1. The prosecutor is under a duty to assist the court to avoid appealable error.
2. That duty extends to making submissions — on a plea as well as on appeal — as to the range of sentences that could be said to be appropriately open.
3. An appellate court may well decline to intervene on an appeal against sentence to correct an alleged error if the Crown did not do what was reasonably required to assist the sentencing judge to avoid the error. (This is obviously a matter of discretion^[71] and does not raise any issue of “estoppel”, about which the director expressed concern in argument.)

In our respectful view, what was said by the Full Court in Casey and Wells is still the law of Victoria. The duty of the prosecutor has not changed. ^[72]

145. In our opinion, the first and third propositions above are uncontroversial. They remain good law. Further, the second proposition also remains good law, so long as the reference to ‘the range of sentences that could be said to be appropriately open’ is understood in the manner intended by the court in Casey and Wells.
146. Casey and Wells was an appeal by the Director of Public Prosecutions against sentences imposed on two respondents for trafficking in a drug of dependence, ephedrine. That case was the first prosecution in this State involving ephedrine. The sentencing judge knew nothing about ephedrine, and felt unable to evaluate with confidence the ‘quality’ of the crime with sufficient certainty as to allow him to select an appropriate penalty. He was thus at a considerable loss as to what he should treat as an appropriate sentence to pass on each respondent.^[73] On the plea, the judge asked counsel for one respondent, ‘What do you say about the appropriate range and given that the Act requires me to sentence your client to imprisonment?’. Counsel then advanced a submission that ‘a sentence of the order of three years with eighteen months’ was appropriate. The prosecutor did not put forward figures, but said that there appears to be a range of sentences, and the present case fell into ‘the higher range bracket’. The Court (Crockett, McGarvie and Southwell JJ) deprecated in unequivocal terms the appropriateness of counsel at either end of the Bar table advancing ‘figures’ with respect to the length of terms of imprisonment:

We do not think it was appropriate for either counsel to suggest precise periods as being appropriate terms of imprisonment. But if the prosecution, as it now complains it should have got, wanted a higher penalty than that imposed, it ought to have done very much more than it did to allow the judge to form an accurate appreciation of the nature and extent of the heinousness involved in the offence.^[74]

147. Later, having cited a passage from Tait and Bartley,^[75] the Court said:

We do not think that these observations are in conflict with anything that was said by this Court in Burchielli or in Marshall [1981] VicRp 69; [1981] VR 725. As we have already said, we do not think it appropriate for counsel — either for the prisoner or for the prosecution — to suggest a precise period of imprisonment as being a proper penalty. Nor would the prosecutor’s duty extend “to assisting the court to avoid appealable error if that means to urge the court not to impose a sentence less than a specified sentence”: Marshall’s case at 735. But it is altogether another thing to assist the court by submission as to the range of sentences that could be said to be appropriately open, which is all that the judge asked for in the present case. After all, just such a submission is made almost daily in this Court — usually supported by reference to the annual publication of sentencing statistics in Victoria and, very recently, by reference to the comprehensive statistical data to be found in Fox and Freiberg — Sentencing State and Federal Law in Victoria (1985). If it is acceptable, and indeed helpful, to assist this Court with such submissions there can be no objection to counsel, on both sides, adopting a similar course during the hearing of a plea: see Williscroft [1975] VicRp 27; [1975] VR 292 at 301 and Marshall’s case at 735.^[76]

148. In our opinion, when the Court spoke of ‘the range of sentences ... appropriately open’, it was speaking of the range of sentencing options available, rather than any quantified or numerical range of sentences of imprisonment. So much is made clear by the Court’s recognition that the the prosecutor’s duty to assist a sentencing judge to avoid appealable error does not extend to urging a court not to impose a sentence less than a specified sentence. Moreover, that view is supported by the Court’s reference to Marshall.^[77]
149. Marshall was an application for leave to appeal against a sentence imposed for rape. It involved argument on the propriety of a judge indicating, before plea on arraignment, the sentence he or she has in mind as the appropriate sentence. The Court (Young CJ, McInerney and McGarvie JJ) observed:

... [I]f a judge were asked before arraignment to give an indication of the sentence likely to be imposed, the Crown, might by its silence give the impression of being content with the indication and yet appeal as soon as the indicated sentence was imposed. In our opinion such a practice would tend to weaken public confidence in the administration of justice. The prosecutor before a sentencing judge in accordance with the long tradition of the law invariably refrains from expressing an opinion as to the sentence to be passed. The Solicitor-General explained that it is not possible from a practical point of view, even if it were desirable, to depart from the long-standing practice and authorize the Crown Prosecutor in any given case to inform the Court what sentence the Crown thought appropriate. The view of the individual prosecutor would be irrelevant and no machinery exists for the submission of, as if were, an ex officio view. Nor would it be desirable. The prosecutor should certainly assist the court by reference to relevant statutes, but we would, with the greatest respect, doubt whether the prosecutor's duty extends to assisting the court to avoid appealable error if that means to urge the court not to impose a sentence less than a specified sentence: see R v Tait (1979) 24 ALR 473, at p. 477. We should have thought the prosecutor’s duty would be discharged by ensuring that the court was appraised of the range of sentences available.^[78]

150. The Court’s reference to Williscroft^[79] is also instructive. In that case, Adam and Crockett JJ observed:

So, too, a judgment as to what is appropriate by way of sentence must depend upon knowledge of sentences for the same or similar offences which is derived from personal experience or any other source. To this end the Court asked for and was supplied with some statistical data relating to sentences imposed in this State during the past 18 months for armed robbery of banks, TAB agencies and service stations. As to the propriety and utility of such a course being followed see the note in (1973) 47 ALJ at p. 548. In this connexion it is also interesting to note that as long ago as 1901 a memorandum prepared by the English judges contained this comment: “The judges of the King's Bench Division are agreed that it would be convenient and of public advantage in regard to certain classes of crime to come to an agreement, or, at least to an approximate agreement, as to what may be called a ‘normal’ standard of punishment: a standard of punishment, that is to say, which should be proved to be properly applicable, unless the particular case under consideration presented some special features of aggravation or extenuation.”

The information supplied to the Court, whilst not unnaturally disclosing a reasonably wide range of penalties as an acknowledgement that differing circumstances attend individual cases, confirms our own view that the type of offences in question are currently treated by the courts as meriting stern punishment. ^[80]

151. Further, in Burchielli,^[81] to which reference was also made in Casey and Wells, when dealing with a Crown appeal, Young CJ and Lush J remarked that, notwithstanding that the Crown now could appeal a sentence, they did ‘not envisage the development of a practice under which prosecutors make submissions on the extent of the punishment to be imposed’.
152. Hence, in our view, prior to this Court’s decision in MacNeil-Brown, the prosecutor had a duty to assist the sentencing court to avoid appealable error by drawing attention to the range of sentencing options available, and by taking the court to relevant statutory provisions (and the like). It was also appropriate to draw attention to the range of sentences of imprisonment open by reference to sentencing statistics and by reference to comprehensive statistical data gathered in texts on sentencing. The view of the individual prosecutor, or even the Director of Public Prosecutions himself, as to the appropriate sentence to be passed was, however, irrelevant; and the prosecution could not urge the court not to impose a sentence less than a specified sentence.
153. In our opinion, Barbaro does no more than revert to the position that existed prior to MacNeil-Brown. Prosecutors should thus harbour no misunderstanding of their roles in the wake of the High Court’s decision. The essential duty of the prosecution remains to assist the sentencing court to avoid appealable error. In order to fulfill that duty, the prosecution must ensure that the facts (including matters in aggravation and mitigation) are adequately presented. Ensuring an adequate presentation of relevant facts may involve the correction of any factual errors flowing from the presentation of the defence case. It may also involve fair and balanced testing of the defence case. Moreover, the prosecutor should ensure (as, indeed, must defence counsel) that the sentencing court is acquainted with the pertinent legal principles. Often this will require the prosecutor to draw the court’s attention to relevant statutory provisions and case law that bear on the exercise of the sentencing discretion (unless, of course, to do so would be otiose because, for example, the governing principles were trite). If a sentencing option is suggested, the adoption of which may lead the court into error — whether because the sentence simply is not open as a matter of law, or the resulting sentence will be inadequate or excessive — the prosecution is duty-bound to assist the court to avoid error. Although a prosecutor may not offer an opinion as to the severity of sentence thought appropriate, including the advancement of a MacNeil-Brown range, nonetheless the prosecution may provide the court with statistics and comparable sentencing cases, so that the court may discern the kinds of sentences previously passed for the kind of offence for which sentence must be imposed.
154. As will become plain, in our view a judge who takes into account a MacNeil-Brown range — so that the proffered range materially influences the sentence imposed — takes into account an irrelevant consideration. Taking the proffered range into account in a material way vitiates the exercise of discretion.^[82] But we make this clear. Mere receipt of a submission as to range does not of itself lead to the conclusion that the exercise of the sentencing discretion had miscarried. It is only if it can be discerned that the judge has acted on the submission in a manner that has influenced the sentencing result that sentencing error is demonstrated. Ordinarily, in circumstances where the Crown has offered a sentencing range, and a sentencing judge is minded to impose a sentence which is within (or close to) the proffered range, so as to avoid the conclusion that the range has been taken into account in a material way, we would expect the judge who has determined not to take the range into account to say so in his or her reasons for sentence.^[83]
155. Sentencing is the ultimate exercise of judicial discretion. If a sentencing judge acts upon a wrong principle, mistakes the facts, does not take into account some material consideration or permits ‘extraneous or irrelevant matters to guide or affect him [or her]’, then then the sentencing discretion miscarries.^[84] A MacNeil-Brown range offered by the prosecution is, in our opinion, an ‘extraneous or irrelevant matter’. If the sentencing judge permits it to guide or affect him or her, then a sentencing judge’s exercise of discretion miscarries. Indeed, in Barbaro the High Court observed that in fixing sentence a judge exercises a discretionary judgment,^[85] and acknowledged that reference to an ‘available range’ of sentences derives from the principles in House.^[86]
156. Barbaro involved a challenge to sentences passed for drug offending. Each applicant argued that the sentencing hearing was procedurally unfair because ‘the sentencing judge failed to take into account a relevant consideration’.^[87] The sentencing judge said at the outset that she did not seek, and would not receive, any submissions from the prosecution as to the appropriate range of sentences she could impose. It was argued that the judge ‘thereby precluded herself from taking account of a consideration relevant to sentencing’.^[88] The applicants contended that, had the prosecution been permitted to put them forward, they could have used the prosecution’s views as to range to their advantage in the course of the sentencing hearing.^[89]
157. Rejecting the applicants’ contentions, the majority in the High Court (French CJ, Hayne, Keifel and Bell JJ) thought that the applicants’ arguments depend on two premises, each of which was wrong. The first wrong premise was that the prosecution is permitted (or required) to put to a sentencing judge the prosecution’s view of the bounds of the range of sentences which may be imposed. The second wrong premise was that such a submission is a submission of law.^[90] As the majority made clear, the prosecution’s statement of what are the bounds of the available range of sentences is a statement of opinion. As such, its expression ‘advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed’. To permit such a submission is the practice ‘is wrong in principle’.^[91] Given that is so, the prosecution ‘is not required, and should not be permitted, to make such a statement of bounds to a sentencing judge’.^[92]
158. The majority made plain that fixing the bounds of a range within which a sentence should fall wrongly suggests that sentencing is a ‘mathematical exercise’, involving ‘some exercise in addition or subtraction’. A sentence must be arrived at by balancing ‘many different and conflicting features’. Providing a ‘bare statement of range’ will not assist the judge in carrying out the sentencing task in accordance with proper principle,^[93] since it ‘tells a sentencing judge nothing of the conclusions or assumptions upon which the range depends’.^[94]
159. Further, the majority said:

Contrary to the view of the majority in MacNeil-Brown, the prosecution’s conclusion about the bounds of the available range of sentences is a statement of opinion, not a submission of law. A statement of the bounds of the available range of sentences is a conclusion which depends upon identifying (and in many cases assuming) the facts and circumstances relevant to the offence and the offender and striking a balance between the many competing considerations which may bear upon the sentence.^[95]

And they later observed:

Once it is understood that a submission by the prosecution about the bounds of the available range of sentences is no more than a statement of opinion, it follows that the sentencing judge need not, and should not, take it into account in fixing the sentences to be imposed.^[96]

160. Ultimately, the majority concluded that not receiving a statement on range ‘was not a failure to take account of some material consideration’.^[97]
161. In our view, Barbaro confirms that a prosecution submission on range is immaterial to the exercise of the sentencing discretion. It is therefore irrelevant. It is something the judge ‘need not, and should not, take into account in fixing sentence’. Should he or she do so, the judge has taken into account an irrelevant consideration, and the sentencing discretion is thereby vitiated.^[98] The focus is then on whether a different sentence should be imposed.^[99]
162. Given the issues raised by the applications in this Court, we think it unnecessary to discuss whether Barbaro applies to submissions on sentencing range put forward by an offender, or whether it applies in cases other than sentencing.

---

^[1] [2014] HCA 2; (2014) 305 ALR 323 (French CJ, Hayne, Kiefel and Bell JJ; Gaegler J dissenting) (‘Barbaro’).

^[2] [2008] VSCA 190; (2008) 20 VR 677 (‘MacNeil-Brown’).

^[3] Ibid 681.

^[4] Ibid 697.

^[5] Ibid 698.

^[6] Ibid 691. MacNeil-Brown thereby brought sentencing practice in this State into line with the practice on sentencing range submissions which applied in New South Wales, Queensland, Northern Territory, Western Australia, New Zealand, the United Kingdom and Canada.

^[7] Transcript of Proceedings, MacNeil-Brown v The Queen [2008] HCATrans 411 (5 December 2008).

^[8] Ibid.

^[9] Barbaro [2014] HCA 2; (2014) 305 ALR 323, 328.

^[10] Ibid 329.

^[11] Ibid.

^[12] Ibid.

^[13] Ibid.

^[14] Ibid 330.

^[15] Ibid.

^[16] Ibid 330-1.

^[17] Ibid 331.

^[18] Ibid 332.

^[19] For example, in R v Jobson [1989] 2 Qd R 464, a sentencing judge was held to have wrongly taken into account, in sentencing an offender who had pleaded guilty to a single count of an offence, the offender’s alleged commission of other similar offences. In CNK v The Queen [2011] VSCA 228; (2011) 32 VR 641, the Court of Appeal found that a judge impermissibly considered general deterrence in sentencing a child, in contravention of s 362(1) of the Children, Youth and Families Act 2005 (Vic). In R v Pidoto [2006] VSCA 185; (2006) 14 VR 269, 278 an irrelevant consideration, properly so called, was the harmfulness of the drug which is trafficked. It was a factual matter which was capable of affecting the sentencing decision, but under sentencing law is to be excluded from consideration. An irrelevant consideration is an impermissible ‘input,’ because it lacks logical relevance or the law prohibits its consideration. In either case its introduction contaminates the synthesis and vitiates the sentence.

^[20] (2012) 226 A Crim R 354.

^[21] Ibid 361 (citations omitted).

^[22] [2014] HCA 2; (2014) 305 ALR 323, 325.

^[23] Ibid 330–2 (emphasis altered) (citations omitted).

^[24] Ibid 330-1.

^[25] Ibid 328.

^[26] Ibid.

^[27] Ibid 325, 332.

^[28] Ibid 330.

^[29] Ibid 328–9.

^[30] Ibid 330.

^[31] An alternative view is that compelling or insisting on a range submission, as occurred in MacNeil-Brown, could constitute a miscarriage of the sentencing discretion. That, it appears, was the (minority) view of Buchanan and Kellam JJA in that case. But this may leave open whether simply accepting a range submission is an error of law.

^[32] Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127, 135.

^[33] R v Williscroft [1975] VicRp 27; [1975] VR 292, 300.

^[34] [2014] QCA 89.

^[35] Ibid [7] (citations omitted).

^[36] R v Taylor [1958] VicRp 46; [1958] VR 285, 289.

^[37] [2014] HCA 2; (2014) 305 ALR 323, 333 (emphasis added).

^[38] Ibid 330-1.

^[39] R v Tait (1979) 24 ALR 473, 477.

^[40] R v Rumpf [1988] VicRp 55; [1988] VR 466, 476.

^[41] R v Travers (1983) 34 SASR 112, 115-6.

^[42] R v Tait (1979) 24 ALR 473, 477.

^[43] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 536-7.

^[44] Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295.

^[45] Barbaro [2014] HCA 2; (2014) 305 ALR 323, 331-2 [40]-[41].

^[46] See, eg, Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134 [23], [70]; Commissioner for Consumer Protection v Susilo [2014] WASC 50 (‘Susilo’); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FCA 160 (‘Construction, Forestry, Mining and Energy Union’); Fair Work Ombudsman v Ross Geri Pty Ltd [2014] FCCA 959; Australian Competition and Consumer Commission v Energy Australia Pty Ltd [2014] FCA 336; Australian Competition and Consumer Commission v Mandurvit Pty Ltd [2014] FCA 464; Tax Practitioners Board v Dedic [2014] FCA 511.

^[47] Criminal Code 1995 (Cth) s 307.2. The maximum penalty is imprisonment for 25 years or a fine of 5000 penalty units ($550,000), or both.

^[48] Ibid s 302.4. The maximum penalty is imprisonment for 10 years or a fine of 2000 penalty units ($220,000), or both.

^[49] Crimes Act 1914 (Cth) s 19.

50. ^[50] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5^th ed).

^[51] Following arraignment on 13 December 2013, Mr Matthews was remanded on custody until the plea hearing on 20 January 2014.

^[52] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (‘Verdins’).

^[53] Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 (citations omitted).

^[54] R v Ogden [2014] QCA 89 [7].

^[55] There are nine drug-related convictions, they are:

• 9 August 2000: possession of heroin;

• 11 September 2001: trafficking of heroin;

• 22 April 2002: trafficking of heroin (two charges);

• 26 May 2004: possession of heroin;

• 26 May 2004: use of heroin;

• 22 September 2004: trafficking heroin;

• 22 September 2004: possession of ecstasy; and

• 1 December 2011: possession of a drug of dependence.

^[56] See MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, 688.

^[57] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.

^[58] [2012] VSCA 83 [6] (citations omitted).

^[59] [2001] VSCA 115.

^[60] Ibid [13].

^[61] On 20 August 2014, the Court pronounced orders in Hashmi’s case. The application for leave to appeal was granted; the appeal was allowed; and the sentences imposed by the County Court were quashed. Orders were made which resulted in a total effective sentence of two years and six months’ imprisonment, with a non-parole period of 12 months.

^[62] MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677.

^[63] Above, [8].

^[64] Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323 (‘Barbaro’).

^[65] Above, [13].

^[66] Above, [14].

^[67] Barbaro, 325 [6]–[7].

^[68] Ibid 328 [23].

^[69] R v Casey & Wells (1986) 20 A Crim R 191 (Crockett, McGarvie and Southwell JJ) (‘Casey’).

^[70] R v Tait and Bartley (1979) 46 FLR 386 (‘Tait’).

^[71] See R v Allpass (1993) 72 A Crim R 561; Director of Public Prosecutions v Waack [2001] VSCA 108; (2001) 3 VR 194, 207 per Phillips JA, with whom Batt and Chernov JJA agreed.

^[72] MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, 684.

^[73] Casey, 193.

^[74] Ibid 194.

^[75] Tait, 349.

^[76] Casey, 196 (emphasis added).

^[77] R v Marshall [1981] VicRp 69; [1981] VR 725 .

^[78] Ibid 735 (emphasis added).

^[79] R v Williscroft [1975] VicRp 27; [1975] VR 292.

^[80] Ibid 301 (emphasis added).

^[81] R v Burchielli (Unreported, 10 June 1977, Vic, CCA).

^[82] Subject, of course, to the dictates of the Criminal Procedure Act 2009, s 280(1)(b).

^[83] Cf above [19] and [138], Warren CJ, Nettle and Redlich JJA.

^[84] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

^[85] Barbaro, 328 [25].

^[86] Ibid 328 [26].

^[87] Ibid 324 [2].

^[88] Ibid 325 [3].

^[89] Ibid 325 [5].

^[90] Ibid 325 [6].

^[91] Ibid 328 [23].

^[92] Ibid 325 [7].

^[93] Ibid 331 [38].

^[94] Ibid 331 [37].

^[95] Ibid 332 [42].

^[96] Ibid 333 [49].

^[97] Ibid 333 [50].

^[98] Subject to Criminal Procedure Act 2009, s 280(1).

^[99] Criminal Procedure Act 2009, s 281(1).