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Ludwig v The Queen [2015] VSCA 35 (10 March 2015)

Last Updated: 10 March 2015

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0177

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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence out of time – Multiple charges – Whether sentencing judge gave any or any proper consideration to relative youth of applicant – Manifest excess – Whether sentencing judge failed to give any or any proper consideration to relevant features of prohibited imports – Differential maximum penalties imposed by Parliament in respect of importation and possession.

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WEINBERG JA

SANTAMARIA JA:

Introduction

1. On 5 March 2014, the applicant pleaded guilty in the County Court at Melbourne to a Commonwealth indictment containing the following charges: trafficking a marketable quantity of a controlled drug^[1] (charge 1), importing a marketable quantity of a border controlled drug^[2] (charges 2 and 5), importing Tier 2 goods^[3] (charges 3 and 6), importing a marketable quantity of a border controlled precursor^[4] (charge 4) and possession of a controlled drug^[5] (charge 7). He also pleaded guilty to four uplifted summary charges.
2. Following a plea hearing on 9 May 2014, the applicant was sentenced by the learned trial judge to be imprisoned for three years and 11 months and, after serving 30 months’ imprisonment, a Recognisance Release Order for a period of two years, according to the following table:^[6]

3. On 12 May 2014, the matter was mentioned before the sentencing judge in order to correct a slip in the form of orders pertaining to the commencement dates of the sentences imposed on 9 May 2014.

Application for extension of time

4. Pursuant to s 313 of the Criminal Procedure Act 2009, the applicant has applied for an extension of time within which to file a notice of application for leave to appeal against sentence. Given that the sentence was pronounced on 14 May 2014, the application for leave to appeal should have been filed by 6 June 2014.
5. In support of his application for an extension of time, the applicant relies upon an affidavit of Mr David Barrese (‘Barrese’), his solicitor, sworn 6 August 2014. Barrese was not the solicitor at the time of the plea hearing. He was contacted by the mother of the applicant very soon after the applicant was sentenced. Immediately, he contacted the office of the former solicitors and, by 28 May 2014, gained access to the brief of evidence on the basis of which the applicant had been prosecuted. The materials provided did not include the sentencing judge’s reasons for sentence, nor did they contain a recording of the plea conducted on his behalf. On 3 June 2014, Barrese contacted counsel with an inquiry as to availability. He was advised by the County Court that it would take 6 weeks to produce a transcript of the plea and sentencing remarks. At this stage, he had not received funding from the applicant’s family. On 10 June 2014, funds were placed in his trust account. On 13 June 2014, Barrese collected from the Victorian Government Reporting Service a copy of the plea recording and the judge’s sentencing remarks (‘the recording’). He retained counsel and forwarded to him a copy of the CD containing the recording. On 25 June 2014, Barrese conferred with counsel. At that conference, counsel informed Barrese that he was due to commence 4 weeks’ leave. As counsel had already advised on the merits, Barrese asked counsel to retain the brief. On 14 August 2014, the applicant served the Office of the Commonwealth DPP with his notice of application for extension of time.
6. The Crown filed an affidavit of Mr Grant Schubert from the Commonwealth DPP. He said that between 12 May 2014 and 14 August 2014, the DPP received no communication from any representative of the applicant.
7. While time limits are not optional^[8] and, if unexplained, may be a basis for refusing an application for an extension of time, the Court has a broad discretion: ‘it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed’.^[9] In the present case, the delay was not great and has, to an extent, been explained. Accordingly, it is not necessary for the applicant to meet the high threshold appropriate where there had been ‘considerable’ delay. The respondent has not raised any matter of prejudice.
8. In the circumstances, we would grant the applicant the extension of time necessary to bring his application for leave to appeal against his sentence.

Proposed grounds of appeal

9. The applicant seeks leave to appeal on the following two grounds:
   1. The sentencing judge erred by failing, properly at all, to synthesize when imposing sentence, the Applicant’s youth.
   2. The individual sentences imposed upon the Applicant on charges 3 and 6 are manifestly excessive.

Circumstances of offending

10. On or about 15 February 2013, the applicant came to the attention of the Australian Federal Police (‘the AFP’) following the interception by Customs of a consignment containing a border controlled drug bound for 38 Baker Parade in Ashburton, Victoria.
11. On 19 February 2013, a search warrant was executed by the AFP and Customs at that address. The applicant resided at the premises with his mother.
12. In relation to Charge 1, there was a total amount of methylamphetamine of 62.5 grams, a total of MDMA of 185.7 grams, a total of amphetamine of 9.1 grams, a total of LSD of 0.003 grams, and a total of ketamine of 39.8 grams.
13. In relation to Charge 2, importing a marketable quantity of a border controlled drug, a total of seven individual international consignments were intercepted and seized by Customs that contained border controlled drugs in marketable quantities between 14 October 2012 and 12 February 2013.
14. On 25 February 2013, shortly after the arrest of the applicant but before his committal, a further international consignment containing a border controlled drug in a marketable quantity was seized. The parcels originated from Canada, Spain and Germany. They were variously addressed to Brian Ludwig, Ryan Laughton and Sam Ludwig at 38 Baker Parade, Ashburton Victoria 3147.
15. In relation to Charge 3, importing a Tier 2 prohibited import, on 28 February 2013, a further international consignment was seized at the Australia Post Clayton Parcel Centre. Upon examination by the AFP, the consignment was found to contain four laser pointers, separated into parts for reassembly. Importation of laser pointers designed or adapted to emit a laser beam with an accessible emission level of greater than 1 milliwatt is conditionally prohibited.
16. Subsequent analysis established that three of the items emitted laser beams at an output of around 153.7 milliwatts, 214.3 milliwatts and 216 milliwatts. The remaining item was not functional. The consignment was addressed to Ryan Ludwig, 38 Baker Parade, Ashburton Victoria 3147. The consignor was listed as PT Aroma Indonesia JI Radio Dalam Raya, No.9 Suite 18 Kalarambaroo 12140, Indonesia.
17. In relation to Charge 4, importing a marketable quantity of a border controlled precursor, on 5 March 2013 a further consignment was seized at the Melbourne gateway facility. It contained 922.9 grams of Safrole oil in a litre of liquid weighing 938 grams. This was a purity level of 98.4 per cent. The consignment was addressed to Ryan Ludwig, 38 Baker Parade, Ashburton, Victoria, 3147. The consignor was listed as PT Aroma Indonesia JI Radio Dalam Raya, No.9 Suite 18 Kalarambaroo 12140, Indonesia.
18. In relation to Charge 5, importing a marketable quantity of a border controlled drug, on 15 August 2013, a further mail item was seized at the Melbourne gateway facility. It contained 49 tablets weighing 12.6 grams. Analysis subsequently established that the tablets contained 4.6 grams of MDMA, this being a purity level of 36.9 per cent. The tablets were concealed inside a DVD case and the mail item was addressed to Sam Lawson, 38 Baker Parade, Ashburton, Victoria. The sender was listed as Scan Sounds Ltd, 229 Ginsborough Road in Dublin, Ireland.
19. In relation to Charge 6, importing a Tier 2 prohibited import, on 19 August 2013, a further international consignment was seized at the Sydney Gateway Facility. Upon examination by Customs, the consignment was found to contain one Wicked brand laser pointer. The manufacturer’s label displayed on the device stated that the item was designed to emit a laser emission greater than 2000 milliwatts. The consignment was addressed to Sam Ludwig, 38 Baker Parade, Ashburton Victoria 3147, and the consignor was listed as Beijing Ubasa Trading Company Limited, Room 406, Building 9, Zizhucheng Shibal Idiyang Chaoyang District in Beijing, 100123, China.
20. In relation to Charge 7, possession of controlled drugs, on 22 August 2013, the AFP executed a s 3E Crimes Act 1914 (Cth) search warrant at 38 Baker Parade, Ashburton. In the execution of the warrant, the AFP located and seized a metal tin containing ten clear plastic resealable bags. In three of the bags, a white crystalline substance was discovered. Upon analysis, this was found to be 2.4 grams of methylamphetamine in a mixture weighing 3.1 grams. The purity of the mixture ranged between 79.4 per cent and 80.3 per cent. In one of the bags, an amount of white coloured powder was located. Upon analysis, this was found to be 0.3 grams of MDMA and a mixture weighing half a gram. This is a purity level of 76.5 per cent.
21. In relation to the transferred summary charges, in the course of the search warrant executed at the applicant’s premises on 19 February 2013, the AFP located and seized a laser pointer in his bedroom. The item was a model Spyder 3 Arctic ARC 44501. Analysis subsequently established that the pointer was capable of emitting a laser beam with an accessible emission level of around 1256 milliwatts. Possession of a laser pointer designed or adapted to emit more than 1 milliwatt is prohibited without approval or authorisation, and the applicant had no such approval or authorisation.
22. As previously indicated, the applicant was originally arrested on 19 February 2013 and charged as aforesaid. He was bailed to appear at a committal mention on 14 May 2013.
23. On 11 June 2013, the applicant was committed to the County Court. The committal proceeded by way of straight hand-up-brief and the applicant pleaded guilty to the charges.
24. Whilst on bail, the applicant continued to offend. He was arrested for the second time on 22 August 2013.
25. On 15 November 2013, the applicant was committed to the County Court on a second set of charges involving offences committed in the period 15 August 2013 to 23 August 2013.
26. The committal proceeded by way of straight hand-up-brief. The applicant pleaded guilty to the charges. He remained in custody from the time of his arrest on 23 August 2013. Between that date and the date of his plea hearing, 5 March 2014, he had spent 197 days in custody.

Ground 1: failure to synthesize when imposing sentence, the applicant’s youth

27. Counsel for the applicant submitted that youth remained a principal sentencing factor, even where the crimes committed by a young person are serious. Put another way, a young or youthful offender should not be dealt with in the same manner as an adult. The applicant’s age and its implications ought to have been at the forefront of the considerations that informed the judge’s function. However, save to state that the applicant had graduated to abusing methamphetamine and was introduced to the ‘Silk Road’ medium at the age of 22, the judge’s sentencing remarks were entirely silent as regards the significance of his youth to the exercise of the sentencing discretion. In fact, the words ‘youth’ and ‘youthful offender’ did not appear in the judge’s otherwise comprehensive reasons for sentence.
28. Youth, of course, is a relative concept. The applicant was born on 13 September 1989. He commenced his offending at the age of 23. He was arrested when he was 23. He continued to offend when he was on bail just before his 24^th birthday. He was almost 25 when he came to be sentenced.
29. It is true that the trial judge made no reference to the applicant’s youth in his sentencing remarks. However, when the transcript of the plea hearing is considered, it is plain that, at the first plea hearing on 5 March 2014, the applicant’s relative youth was an important consideration. A report dated 28 February 2014 had been prepared by David Ball, a psychologist. Its usefulness had been subverted by a lack of cooperation on the part of the applicant. The following exchange took place:

HIS HONOUR: [A]s you say, these things I have read and obviously are matters of some concern, and particularly Mr Ball’s concern that adequate precautions need to be taken to ensure Mr Ludwig’s safety and wellbeing. It occurred to me that if in fact Mr Ludwig now is in a position where I am sure the enormity of all of this is bearing down upon him, and I can see that he’s struggling with it this morning, what I thought might be appropriate is to order a psychiatric report under Forensicare but it would clearly be something that he would need to cooperate with, that in the sense that Mr Ball has done his best to assist Mr Ludwig and I assume that Mr Ludwig’s parents are in court.

MR DEVOLLE: They are indeed, Your Honour. Yes.

HIS HONOUR: To that end, it seems to me that if Mr Ludwig was interested in being assessed by a competent psychiatrist employed by the State, then that would be a useful thing for me to understand because clearly I would say he’s a young man with problems.^[10]

30. A little later, the following discussion occurred:

MR DEVOLLE: Your Honour, I can say that my submission was going to request Your Honour to exercise your powers under s 96 of the Sentencing Act and order that pre-sentence report.

HIS HONOUR: Well, I think we are all, as they say, on the same page. I just don’t want to waste everybody’s time if Mr Ludwig is not going to help the process.

MR DEVOLLE: And I did have the opportunity of going into prison on Monday to see Mr Ludwig and did indicate that I would be making this application to Your Honour because of the, I guess, insufficient nature if you like of the existing report from

HIS HONOUR: What did he say?

MR DEVOLLE: He’s happy to do that.

HIS HONOUR: Mr Ludwig, is that right?

ACCUSED: That’s correct.

HIS HONOUR: Well, you understand that I think Mr Devolle has got a very sensible point to make. You are clearly a young man who has got your life ahead of you. Nobody — I don’t want to sentence you without knowing who you are and what your life has been and what your expectations are and also I think an expert psychiatrist will be able to help you and to help me. But you understand you have got to help yourself by opening up to him.^[11]

31. At the resumed hearing conducted on 5 May 2014, the sentencing judge considered the report of David Ball and a new report from Dr Gunvant Patel, a psychiatrist, dated 17 April 2014. Each of the reports spoke of the difficulties the applicant experienced in his secondary education and of his inability to progress with any tertiary education.
32. At the resumed hearing, the transcript reads as follows:

MR DEVOLLE: given his inherent difficulty in being able to relate to people and live in what is a difficult environment and perhaps in the circumstances, Your Honour may consider a recognizance release order in respect to the Commonwealth offences.

HIS HONOUR: I will in due course, but it seems to me that the offence warrants no longer in gaol yet, but yes, I think a recognizance release order will probably be appropriate in the circumstances in due course.

MR DEVOLLE: And certainly as far as that’s concerned, Your Honour, it would provide to Mr Ludwig the degree of support and assistance that there is no doubt that he needs in terms of getting his life back on track. He’s got a couple of supportive parents who are present here today.

HIS HONOUR: Yes, well I understand that and I think clearly, in the circumstances, he needs some assistance. He also needs to assist himself, but time will tell whether he takes advantage of that which is offered to him and obviously the assistance of his parents, but yes, we'll wait and see.^[12]

33. It is true that the judge did not deal specifically, in his sentencing remarks, with the significance of youth as a sentencing consideration. However, given the manner in which he conducted the plea hearing, it is plain that the difficulties that the applicant had suffered as a child, and the manner in which they had carried over into his present state of life, were very much in the judge’s mind. He said:

I am on balance satisfied that the chances of your rehabilitation are reasonably good in view of the matters spoken of by the psychologist and the psychiatrist and I accept their assessments of you. As well as those matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence and clearly general deterrence is of considerable importance in a case such as this involving as it does the number and type of drugs that you have involved yourself in as well as the various summary matters. I also bear in mind the question of protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be modest if you do not resume using the various drugs that you utilised prior to your incarceration.^[13]

34. In our opinion, it cannot be said that the judge failed to take into account the applicant’s relative youth.
35. The offending in this case involved the importation of various border controlled drugs in many multiples of the marketable quantity, and trafficking in similar quantities of border controlled drugs. The applicant offended over the space of several months, basically for the purpose of his own enrichment. He continued to offend after his initial detection and arrest. He offended whilst on bail. In our opinion, counsel for the respondent was right to observe that, in the particular circumstances of this case, the judge was required to give considerable weight to the sentencing objectives of general deterrence and denunciation.
36. In R v Groom,^[14] Tadgell JA said:

A judge’s sentencing remarks are not to be construed as if contained in a statute, a will or a deed.^[15]

37. See also Saxon v The Queen,^[16] where it was said:

[T]he Court should not engage in overzealous scrutiny by seeking to discern whether some inadequacy in the reasons may be gleaned from the way in which those reasons are expressed. Self-evidently, a sentencing judge’s reasons are not to be read as though they are the words of a statute. Nor, it should be said, are they to be trawled over as though they reflect the language chosen by an appellate court. They must be read as a whole, fairly and not perversely. They must also be read in full recognition of the fact that such reasons are often delivered ex tempore, without the opportunity, or inclination, to pause over every word chosen.^[17]

38. While it is true that this Court will not engage in ‘overzealous scrutiny’ of the remarks of a sentencing judge, it nonetheless seems to us to be somewhat unfortunate that the sentencing judge did not give greater emphasis, in his reasons for sentence, to his consideration of the applicant’s youth, and the manner in which he synthesised that factor with the other considerations germane to the sentencing process. That said, we are not able to detect appealable error, of the specific nature alleged, in his reasons.

Ground 2: individual sentences imposed upon the applicant on charges 3 and 6 are manifestly excessive

39. The applicant submitted that the sentences imposed on him for Charges 3 and 6 (importing) were manifestly excessive. In his written submissions, he proceeded upon the erroneous assumption that the maximum penalty for those offences was 2 years’ imprisonment. It was, in fact, 10 years’ imprisonment. On Charges 3 and 6, he received sentences of six months’ and three months’ imprisonment respectively. He contrasted those sentences with the fact that on the summary charge (possession), which did carry a maximum penalty of 2 years, he had merely been convicted and fined.
40. The applicant also pointed to the fact that the laser pointer in respect of which he had been charged with possession, and for which he was convicted and fined, was more powerful^[18] than the laser pointers in respect of which he had been charged with importation, and for which he had been sentenced to terms of imprisonment.^[19]
41. The applicant submitted that the error attaching to the sentences on Charges 3 and 6 had been compounded by the fact that three months of the sentence imposed on Charge 3 (committed before he was arrested and bailed) and one month of the sentence imposed on Charge 6 were ordered to be served cumulatively upon the remaining sentences and upon each other. The effect was that the applicant was ordered to serve four months’ actual gaol for offending that ought to have attracted a disposition no greater than a fine.

42 At the least, so it was contended, the sentences imposed on Charges 3 and 6 should be set aside and the applicant re-sentenced on each to a non-custodial disposition. That exercise might also suffice to vitiate the sentencing discretion simpliciter.[20] Whatever the result, his minimum term (or the term he was ordered to serve before becoming eligible for release on his RRO) should, it was submitted, similarly and commensurably be reduced. It was submitted that the minimum term ought to be fixed with the view to promoting, to the extent that the Court can, his reclamation.

43 In Director of Public Prosecutions (Vic) v Karazisis,[21] Ashley, Redlich and Weinberg JJA (with whom Warren CJ and Maxwell P relevantly agreed) said:

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.

The court will be astute to enforce the stringency of this test. As the High Court has emphasised:

‘The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.’^[22]

44 In Barbaro v The Queen,[23] French CJ, Hayne, Kiefel and Bell JJ said:

The residuary category of error in discretionary judgment identified in House is where the result embodied in the court’s order ‘is unreasonable or plainly unjust’ and the appellate court infers ‘that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’. In the field of sentencing appeals, this kind of error is usually referred to as ‘manifest excess’ or ‘manifest inadequacy’. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.^[24]

45. As we have said, the applicant’s written submission proceeded on the false premise that Charges 3 and 6 each carried a maximum penalty of 2 years. In fact, as we have observed, each carried a maximum penalty of 10 years. At the hearing, the applicant contended that, like theft, the maximum penalty covered a broad spectrum of possible offences, and that the present offences should be viewed as being at the very lowest end of that spectrum. It was anomalous, he also submitted, that Charge 3 had attracted a penalty of 6 months’ imprisonment, whereas Charge 6, which involved a more powerful laser pointer, had attracted a penalty of only 3 months’ imprisonment.
46. In Markarian v The Queen,^[25] Gleeson CJ, Gummow, Hayne and Callinan JJ said:

[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.^[26]

47. However, it is to be observed that Charge 3 involved the importation of multiple laser pointers (each of which had a power well in excess of that referred to in the regulations), while Charge 6 involved the importation of a single laser pointer only. Further, the applicant was being sentenced for a large range of offences. It seems reasonable to conclude that, by the time the judge came to deal with Charge 6, he had an eye on the totality of the sentence in order to ensure that it was not inappropriately burdensome.^[27]
48. The ground of ‘manifest excess’ is not made out.
49. As the proposed grounds of appeal are without merit, we would refuse leave to appeal.

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^[1] Criminal Code Act 1995 (Cth) s 302.3(1).

^[2] Criminal Code Act 1995 (Cth) s 307.2(1).

^[3] Customs Act 1901 (Cth) s 233BAB(5).

^[4] Criminal Code Act 1995 (Cth) s 307.12(1).

^[5] Criminal Code Act 1995 (Cth) s 308.1(1).

^[6] Section 19 of the Crimes Act 1914 (Cth) provides for cumulative, partly cumulative and concurrent sentences.

^[7] Transferred summary offences, numbered as upon transfer.

^[8] Jopar v The Queen [2013] VSCA 83; (2013) 228 A Crim R 519, 527-528 [32] (Weinberg JA); see also 535–536 [68]–[74] (Priest JA).

^[9] R v Davis [2003] VSCA 173; (2003) 6 VR 538, 539 (Winneke ACJ with whom Phillips & Eames JJA agreed).

^[10] Plea Transcript, DPP v Ludwig (County Court of Victoria, CR-13-02188, Judge Parsons, 5 March 2014) 16-17.

^[11] Ibid 18.

^[12] Plea Transcript, DPP v Ludwig (County Court of Victoria, CR-13-02188, Judge Parsons, 5 May 2014) 32-33.

^[13] DPP v Ludwig [2014] VCC 997 [24] (Judge Parsons).

^[14] [1999] 2 VR 159.

^[15] Ibid 160 [3].

^[16] [2014] VSCA 296.

^[17] Ibid [47] (Weinberg JA with whom Santamaria JA agreed) (citation omitted). See also Wong v The Queen [2013] VSCA 52, [19]; R v McConkey [2004] VSCA 26, [12]; R v Kane [1998] VSCA 66, [37].

^[18] The pointer was capable of emitting a laser beam with an accessible emission level of around 1256 mW.

^[19] In respect of charge 3, the devices stated that the three items emitted laser beams at an output of around 153.7 mW, 214.3 mW and 216 mW. In respect of charge 6, the device stated that the item was designed to emit a laser emission greater than 2000 mW.

^[20] Ludeman v The Queen (2010) 31 VR 606, [82]-[99].

^[21] [2010] VSCA 350; (2010) 31 VR 634.

^[22] Ibid 662-663 [127]-[128] (citations omitted). The reference to the High Court is to Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

^[23] [2014] HCA 2; (2014) 88 ALJR 372.

^[24] Ibid 377 [26] (citation omitted) (emphasis in original).

^[25] [2005] HCA 25; (2005) 228 CLR 357.

^[26] Ibid 372 [31].

^[27] On the different approaches to sentencing where there are multiple offences, see Jomaa v Director of Public Prosecutions (Vic) [2014] VSCA 103 (Weinberg & Santamaria JJA).