SUPREME COURT OF VICTORIA COURT OF APPEAL S APCR 2013 0149 JOHN HIBGAME Appellant v THE QUEEN Respondent --WEINBERG

and COGHLAN JJA MELBOURNE 13 February 2014 3 March 2014 [2014] VSCA 26 DPP v Hibgame (Unreported, County Court of Victoria, Judge Nicholson, 12 July 2013) ---

JUDGES WHERE HELD DATE OF HEARING DATE OF JUDGMENT MEDIUM NEUTRAL CITATION JUDGMENT APPEALED FROM

CRIMINAL LAW Sentence Guilty plea Appellant sentenced to five years imprisonment for importing a marketable quantity of a border controlled drug (known as BZP) and two years imprisonment for trafficking in border controlled drugs (BZP and methamphetamine) Six months of sentence on trafficking offence cumulated upon sentence for importation offence Total effective sentence of five years and six months imprisonment Whether sentencing judge impermissibly restricted her sentencing discretion by finding that she was bound to impose an immediate term of imprisonment Whether sentencing judge erred in characterising trafficking charge as a very serious example of this type of offence Not to be so characterised as trafficked drugs had combined total weight of 3.5 grams, and not to be trafficked for financial gain Manifest excess established regarding trafficking charge Sentencing discretion re-opened Appeal allowed Observations regarding sentencing judge having been given no information about BZP (a relatively new drug) R v Pidoto & ODea (2006) 14 VR 269 and Adams v The Queen (2008) 234 CLR 143 discussed. --APPEARANCES: For the Appellant For the Crown Counsel Mr R F Edney Mr A J Field Solicitors C Marshall & Associates Director of Public Prosecutions (Cth)

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Court of Appeal 459 Lonsdale Street, Melbourne, Vic, 3000

WEINBERG JA COGHLAN JA:

1

The appellant, now aged 24, pleaded guilty in the County Court at Melbourne to one charge of importing a marketable quantity of a border controlled drug (benzylpiperazine) (BZP) (charge 1),1 and one charge of trafficking in border controlled drugs (BZP and methamphetamine) (charge 2).2 He also pleaded guilty to six summary charges3 of importing a prohibited import

(trifluoromethylphenylpiperazine) (TFMPP).

He was sentenced to five years

imprisonment on charge 1 and two years imprisonment on charge 2.

2

For reasons that are not altogether clear, the sentence on charge 2 formed the base sentence. That sentence was to commence on the day it was pronounced, whereas the sentence on charge 1 was to commence six months later. This made a total effective sentence of five years and six months imprisonment. A non-parole period of two years and six months was fixed. The appellant was fined an aggregate total of $2,000 in relation to the six summary offences.4

Pursuant to leave granted by Priest JA, the appellant now relies upon the following grounds of appeal:
1. The sentencing judge impermissibly restricted her sentencing discretion by finding that she was bound to impose an immediate term of imprisonment; The sentencing judge erred in her assessment that the trafficking charge was a very serious example of this type of offence; and The sentences imposed on the charges of importing a marketable quantity of a border controlled substance and trafficking a border controlled drug: (i) (ii) were manifestly excessive; outside the range of sentences reasonably open in the circumstances of the offence and the offender; and

2. 3.

1 2 3 4

Criminal Code Act 1995 (Cth) s 307.2(1). Maximum penalty 25 years imprisonment. Criminal Code Act 1995 (Cth) s 302.4(1). Maximum penalty 10 years imprisonment. Customs Act 1901 (Cth) s 233(1)(b). Maximum penalty 1000 penalty units. The fine imposed in relation to these six summary offences is not the subject of this appeal.

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(iii)

resulted in a total effective sentence and non-parole period that was manifestly excessive.

Circumstances of the offending Charge 1

4

On 15 March 2012, Australian Customs officers intercepted a parcel from China, the contents of which were described as sample of Powder NCV. The parcel was addressed to a Jhon (sic) Higgins at PO Box 528, Mount Evelyn, Victoria, 3976. The telephone number provided for the consignee was the appellants mobile number. Inside the parcel were two bags containing white powder. One contained a net quantity of 551.8 grams of BZP, and the other contained 839.25 grams net of TFMPP. The post office box had been rented, at the request of the appellant, by a friend of his. The appellant was in possession of the key. Charge 2

On 17 May 2012, Australian Federal Police officers executed a further search warrant at the appellants house. There the police found the following items: several boxes containing small plastic deal bags; one heat sealed bag containing 89 white tablets with a Mercedes-Benz symbol on them; one blue coloured tablet; electronic scales; one re-sealable plastic bag containing a pink substance; two re-sealable plastic bags containing a clear crystalline substance; clip seal bags containing brown and white crystalline substances; one clear plastic lunch box; and one grey plastic box.

The police subsequently analysed the 89 white tablets as well as the single blue tablet and found the presence of two grams net of BZP. Analysis of the

crystalline substances revealed 1.5 grams net of methamphetamine. Trace residue of methamphetamine was found on the two plastic boxes.
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Summary offences
7

Between 27 February and 3 March 2012 the Australian Customs Service intercepted two parcels from China containing TFMPP. Those parcels were again addressed to a Jhon (sic) Higgins, this time at PO Box 397 located at the Monbulk Post Office. The appellants step-brother told police that he had opened the post office box at the appellants request and had been given $100 or $200 plus a couple of points of ice to do so. Customs officers intercepted four additional parcels from China containing varying quantities of TFMPP on 8, 13 and 15 March 2012.

The appellant made some admissions in his various records of interview and conversations with relevant officers. In essence, however, he denied the offending. On 3 October 2012, he was committed for trial in the County Court, having entered pleas of not guilty. On 6 May 2013 he indicated at a directions hearing in the County Court, apparently for the first time, that he would plead guilty to the charges. Defence submissions on the plea

Defence counsel submitted that a Community Correction Order (CCO) would be an appropriate disposition in this matter. He submitted, in the alternative, that a short term of imprisonment, coupled thereafter with a CCO, would meet the needs of the case. A further alternative that was put forward was a term of

imprisonment of less than three years, with early release under a recognizance release order.
10

It was submitted, in relation to charge 1, that the appellants role should be viewed as that of a courier whose task was merely to pass on the imported drugs to others, in exchange for other drugs. It was submitted that he was not to benefit financially.

11

In relation to charge 2, it was submitted that the appellant had trafficked this very small quantity of drugs for the sole purpose of supporting his own addiction. It was submitted that he did not otherwise stand to gain from his actions.

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Prosecution submissions on the plea

12

It was submitted on behalf of the Crown that, having regard to the objective gravity of the offending, nothing short of an immediate custodial term would be appropriate. A MacNeil-Brown5 range of between five years and six months and seven years was proffered for the head sentence. It was submitted that a non-parole period of between three and four years should be fixed.

13

The prosecutor submitted that the importation of the BZP, which gave rise to charge 1, was by far the more serious of the two indictable offences before the Court. He submitted that, for that reason, the sentence imposed on that charge should form the base sentence. He added that the offence of trafficking, which gave rise to charge 2, was a discrete offence and warranted some measure of cumulation. The course of the plea

14

At the conclusion of the first day of the plea, the judge ordered that a presentence report be prepared regarding the appellants suitability for a CCO. Her Honour noted that the parties were still fairly early into the plea and that she had not yet heard the prosecutors submission in support of the MacNeil-Brown range which had been advanced. She made it clear to the appellant that even if he were to be assessed as suitable for a CCO, there was no guarantee that he would be granted one.

15

The plea recommenced a month or so later. The judge announced that a presentence report had been obtained and that the appellant had been found to be suitable for a CCO.

16

The judge expressed concern, however, that although the appellant had not been under any particular obligation to do so, he had not, in the intervening period,

R v MacNeil-Brown; Piggot (2008) 20 VR 677. This case was recently overruled in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, where the High Court held that the provision of sentencing range submissions by the prosecution was impermissible.

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returned to see the psychologist who had been treating him. In her Honours terms, he had apparently decided to go it alone. She commented that this might indicate that he lacked insight into his wrongdoing. Sentencing remarks
17

Almost immediately before her Honour pronounced sentence, she addressed some remarks to the appellant. She said:
HER HONOUR: Now Mr Hibgame, you may remain seated. There [are] a number of reasons I need to place onto the record for the sentence that I shall be formally imposing, at the conclusion of those reasons for sentence. In fairness to you, I consider it appropriate to indicate at the outset what the general form of sentence will be. I can assure you that I have taken into account all the relevant matters that have been placed before the court on your behalf and balanced those with the many matters that the learned prosecutor has rightly put before the court. And it has been a determining sentence in the facts of this case have been [sic] its been a difficult and exacting task and I am bound by a number of principles, enunciated by well-known judicial authority and if I had the power, I would have exercised my discretion to allow you to remain in the community. Unfortunately, given all the circumstances of the case, including the offending and relevant judicial pronouncements, despite your, what I regard, good prospects of rehabilitation, providing you do not relapse into drug addiction and your, what might be termed, young age of 23, I would have [acceded] to your counsel, Ms Kaddeches submissions and Mr Lewins today. However, I do not consider that I have any other option, in all the circumstances of your case, to impose an immediate term of imprisonment. However, I will be fixing a longer than usual parole period or a shorter nonparole period, to address the many matters that have been placed before the court on your behalf. All right, I appreciate there will be a hardship flowing to you of being required to serve an immediate term of imprisonment. I also accept that your family and loved ones will also suffer hardship of you being required to serve an immediate term of imprisonment.

18

The sentencing judge then proceeded to deliver her reasons for sentence. These were extensive, covering more than 20 pages of transcript. She said:
In sentencing you in relation to the Commonwealth charges I am bound by Commonwealth legislation. I have taken into account the relevant provisions of Commonwealth legislation when determining sentence in your case, as well as relevant principles outlined and set out in the Written Submissions of the Learned Prosecutor and they are applicable, including Part 1(b) of the

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Crimes Act and common law principles, and section 17A of the Crimes Act. I am satisfied, in all the circumstances of the case, that there is no other sentence appropriate in your case but a term of immediate imprisonment. Any term of immediate imprisonment should be a sentence of last resort. In addition to the legislative criteria the Prosecutor also submitted there are a number of common law principles which bind the Court and are specific to Commonwealth drug importations. Of course general deterrence is a significant principle and of paramount consideration in sentencing in drug importation offences. The role of general deterrence is significant as is the Courts denunciation of the offending and the difficulty of detecting importation offences and the social consequences. I have had the opportunity of considering the principles enunciated by President Maxwell in Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32, in particular where President Maxwell distilled a number of relevant principles for guidance to sentencing judges in determining sentence in such cases and they are set out particularly at paragraphs 33 and 34. Of course each case turns very much on its own facts and circumstances but the relevant key factors and principles are applicable in the circumstances of your case. I have also had the opportunity of considering the Victorian Court of Appeals pronouncements in Lau v The Queen [2011] VSCA 324. In that case the Court referred to the well-known case of the New South Wales Court of Appeal, Director of Public Prosecutions (Cth) v De La Rosa where the Court identified key factors when sentencing an offender such as you in relation to the importation of a Border Controlled Drug in a marketable quantity. Those key factors are: the quantity of the drug; the role of the offender; the reward obtained by the offender; any assistance given to the authorities, which is not applicable in the circumstances of your case; the offenders criminal history, which is limited in your case; and your prospects of rehabilitation which I consider have been appropriately addressed by you in the period since you were arrested and have come before this Court.
19

Her Honour referred to the Crowns MacNeil-Brown submission, and indicated that, at least in relation to the non-parole period, she did not propose to accede to it.

20

With regard to the drug BZP itself, her Honour made the following observations:
Your counsel Ms Kaddeche made a number of submissions in relation to the substance BZP and argued that there is no evidence as to the nature of that drug or what impact it has. In accordance with judicial authority I cannot and do not take into account a harm-based regime. I have referred to the quantity of the drug, namely 551.8 grams of pure BZP

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which is relevant for sentencing purposes. The minimum amount of that drug required to constitute a marketable quantity is 2 grams and the maximum amount to constitute a commercial quantity is 750 grams. In your case Mr Hibgame, the relevant amount of BZP imported by you is 270 times the minimum amount required and well over two thirds of the commercial quantity. I accept those matters. I have also taken into account Ms Kaddeche's submissions but I do consider your offending to be very serious.
21

Her Honour said, as to the appellants role in the importation:

As far as your role is concerned I am satisfied that, at the very least, you were an organiser at some level. I accept the learned prosecutors submissions in that regard. You imported the drugs, you arranged for other people to rent post office boxes, you paid other people for obtaining those facilities and exposing themselves to risk and you arranged for sums of money to be sent overseas by way of Western Union transfer. Therefore I accept that your role was significant and crucial. However, Ms Kaddeche did submit your role was at the lower end. However, I am mindful of judicial pronouncements by the courts that no matter what the role, given the nature of this type of offending and the need for general deterrence, significant sentences are warranted.

22

The judge noted that the appellant had previously been dealt with summarily on charges of possession and use a drug of dependence. She said that she regarded these matters as being of some relevance, though she observed that the appellant had been dealt with leniently, as a first offender. It seems that he had been fined without conviction.

23

Her Honour was fully cognisant of the various mitigating factors present in this case. She was satisfied that the appellant had been making serious efforts to address his drug problems. She had regard to his plea of guilty, which she described as having been entered at an early stage. She observed that it had utilitarian benefits. She added that, in her opinion, it indicated remorse and contrition. She noted the appellants difficult family background, his youth, and his history of drug usage. She commented upon the fact that he had used ice on a daily basis for about 18 months, and found that this had affected him profoundly. She said that his chronic use of that drug had led to erratic behaviour. She noted that, despite his addiction, he had maintained a consistent employment record and displayed a good work ethic.

24

Her Honour said that, in considering the objective gravity of the importation 7 THE COURT

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of the BZP, she was influenced by the fact that the quantity brought into this country (being 551.8 grams) was more than 270 times the minimum marketable quantity.6 She further noted that the amount imported was substantially greater than two thirds of the commercial quantity for that drug.7 In her Honours opinion, this placed the appellants offending well on a path towards a most serious class of drug importation. offending.
25

She characterised the offence as being at the mid-level of such

Importantly, for present purposes, her Honour went on to characterise the trafficking that gave rise to charge 2 as a very serious offence. She did not advert to the fact that only a combined total of 3.5 grams was involved.

26

The sentencing judge, having delivered her reasons, engaged in a protracted discussion with the prosecutor as to the mechanics of sentencing for Commonwealth offences. Eventually, almost by a process of arithmetic trial and error, she imposed the sentences that she did, with the two year sentence for charge 2 and the base sentence. The appeal to this Court Ground 1

27

In her remarks to the appellant immediately before pronouncing sentence, the judge said that she was bound by a number of principles. She added that if she had the power to do so, she would have wished to exercise her discretion to allow him to remain in the community, rather than imposing a custodial sentence.

28

With respect, that observation seems to us to have been unhelpful. It would have been of little comfort to the appellant, and would have been better left unsaid.

29

That point having been made, we would reject the appellants submission that the judges comment that she was bound to impose a term of imprisonment
The marketable quantity for BZP is two grams. The commercial quantity for BZP is 750 grams.

6 7

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demonstrated an error of principle.

Although she may have expressed herself

infelicitously, it is perfectly apparent that she was under no misapprehension as to whether she had the power to impose a non-custodial sentence. Had she laboured under any such misconception, she would scarcely have had the appellant assessed for a CCO.
30

In our opinion, her Honour intended by what she said to convey nothing more than that there were a number of statements of principle, some of them emanating from this Court, to the effect that an immediate term of imprisonment was almost inevitable. She added, by implication, that if she did not imprison the appellant, she would fall into appealable error.

31

The judge justified that conclusion by referring at length to s 16A of the Crimes Act 1914 (Cth), and to a number of the authorities, all of which make it clear that the paramount consideration when sentencing for offending of this character is general deterrence. The plain fact is that a non-custodial disposition was never a realistic option, given the objective gravity of this offending. Ground 2

32

Here the appellant complained of the sentencing judges description of his offending on charge 2 as a very serious example of trafficking. He submitted that this was a wholly incorrect characterisation of what was, in truth, and on any view, relatively low-level offending.

33

The appellants complaint is fully justified. So much was readily conceded by counsel who appeared on behalf of the respondent before this Court.

34

The quantity of the drug trafficked was very small. It consisted of two grams net of BZP and 1.5 grams net of methamphetamine. There was no suggestion that the appellant stood to gain financially from the sale of those drugs. His purpose in trafficking them, in so far as it could be ascertained, was simply to enable him to obtain other drugs, for his own use.

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35

Trafficking on this scale would normally be dealt with in the Magistrates Court. It would usually be visited with nothing more than a modest fine, or at worst, a short term of imprisonment. The sentence of two years imprisonment for this offence was wholly outside the range, and may properly be described as manifestly excessive.

36

This gives rise to a particular difficulty in the circumstances of this case. The two years imposed on charge 2 operated as the base sentence. By reason of that fact, any reduction in that sentence must have a flow-on effect so far as the sentence on charge 1 is concerned. Moreover, the two years fixed for the trafficking charge is likely to have had some effect upon the length of the non-parole period that was fixed. In other words, this particular omelette is difficult to unscramble. Ground 3

37

Finally, there are challenges mounted to each of the individual sentences imposed on charges 1 and 2, the total effective sentence, and the non-parole period. All are said to be manifestly excessive.

38

As we have already indicated, the sentence of two years imposed on charge 2 was unquestionably excessive, and that sentence should be set aside. That requires us to consider afresh the sentence imposed upon charge 1, the total effective sentence and the non-parole period.

39

Before doing so, we should first make the following observation. Perhaps not surprisingly, the judge made it clear that she knew nothing about the drug BZP that was the subject of the importation charge. By the time the plea came to be heard, this drug had only been included within the Schedule to the Code for just over two years, and little, if anything, was known about it. Her Honour was given no assistance in that regard. She was simply told that the quantity of 551.8 grams came to some large multiple of the marketable quantity, as set out in the Schedule.

40

It is difficult to see how a judge can be expected to sentence an offender for having imported a particular drug without having the slightest idea of (a) what that

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drug is, (b) how it can be used, (c) what, if anything, is known about its effects, or (d) what that drug might sell for at a wholesale or retail level.
41

It seems that the judge was given so little information about this new drug because it was assumed that only the quantity imported was relevant, and nothing more. If we may say so, that reflects a serious misunderstanding of correct legal principle.

42

In R v Pidoto & ODea8 the appellants each pleaded guilty to a charge of trafficking in a commercial quantity of a drug of dependence, contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981. The drug in question was ecstasy. In sentencing the offenders, the judge expressed views as to the harmful effects of ecstasy, describing it as a very significant community problem.

43

On appeal, the Court was faced with the question whether it was relevant, when sentencing an offender for trafficking, to consider the harm associated with the drug the subject of the charge. The majority (Maxwell P, Buchanan, Vincent and Eames JJA) held that as a matter of statutory construction, the harmfulness, or otherwise, of the drug was irrelevant to the exercise of the sentencing discretion. This included the nature and extent of the harm which the particular drug caused directly to users, and the harm caused indirectly to the community as a whole. It was also irrelevant to consider whether the particular drug, now trafficked, was more or less harmful than another drug of dependence.

44

Their Honours were of the opinion that Parliament did not intend the sentencing court to make any judgment about the (relative) harmfulness of the drug in question.9 Without a comprehensive harm-based classification of drugs, much like that established in the United Kingdom and New Zealand, a judge cannot evaluate the relative harmfulness of a drug. Assessments of that kind require

specialist expertise and detailed investigation and research on a range of issues.

8 9

(2006) 14 VR 269 (Pidoto). Ibid [4].

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45

Put simply, the Court in Pidoto determined that sentencing judges could not be tasked with assessing the degree of harm attributable to a particular drug of dependence, less still to decide whether that degree of harm is to be regarded as an aggravating or mitigating factor.10 The sentencing judge had regarded as an

aggravating factor that the offenders had trafficked in a very significant drug. Indeed, the sentencing judge had gone on to say that ecstasy was emerging as a very significant problem [causing] really adverse behaviour, when there was no basis, on the evidence before the Court, for any such conclusion to be reached.
46

In Adams v The Queen11 the High Court addressed essentially the same question as that raised in Pidoto, albeit in the context of Commonwealth legislation. There, an accused was convicted of possession of a commercial quantity of MDMA (ecstasy). In sentencing the offender, the judge stated that, generally, for the

purposes of sentencing, ecstasy was to be equated with heroin.

47

In revoking special leave to appeal, on the basis that the sentence should have reflected the fact that ecstasy was less harmful to users and to society than heroin, the majority (Gleeson CJ, Hayne, Crennan and Kiefel JJ) said:
But there is nothing in the Customs Act, or the evidence, or the demonstrated state of available knowledge or opinion, which requires or permits a court to sentence on the basis that possessing a commercial quantity of MDMA is in some way less anti-social than possessing a commercial quantity of heroin.12

48

As in Pidoto, the Court in Adams held that the application of a judiciallyconstructed harm-based system of penalties would cut across the legislative scheme for a quantity-based system.13

49

Neither Pidoto nor Adams seems to us to justify deliberately withholding from a sentencing judge information about a new drug with regard to which very little may be known. Both those cases essentially concerned judges impermissibly

10 11 12 13

Ibid [35]. (2008) 234 CLR 143 (Adams). Ibid 148. Ibid.

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assessing the relative harm of a particular known drug, and doing so without any evidential foundation.
50

Here, however, and unlike the position in either Pidoto or Adams, the judge was not seeking to compare the effects of BZP with any other drug. She simply had no idea what BZP was. Sensibly, she asked defence counsel one question, what is BZP meant to be used for? She was told that there was no evidence regarding that matter. Her Honour then asked whether there was any evidence that BZP was harmful, and was again told that there was nothing in counsels brief regarding that matter.

51

There was nothing to suggest that, by asking these questions, her Honour was attempting to assess the relative harmfulness of BZP in comparison with other drugs. Having asked for assistance from defence counsel, and having been provided with none, the prosecutor did not seek to rectify the situation. The judge was left to sentence the appellant without having even basic information that could assist her in assessing the gravity of the offending.

52

During the course of the appeal, the members of this Court made it plain that we would not tolerate that situation if we were required to re-sentence the appellant. For that reason we asked for, and were given some information, from the bar table, assisted by the informant, as to the known characteristics of BZP.

53

We were told that, when combined with TFMPP, BZP could be used to produce a substitute for methamphetamine. Supplementary written submissions on behalf of the appellant suggested that BZP is a recreational drug with euphoriant and stimulant properties, similar to those of amphetamines. Those supplementary submissions also argued that the Crowns comments regarding the combination of TFMPP and BZP must remain at a general level as there was no evidence in this case that the appellant did actually mix the two substances together, or in fact intended to do so. The Crown did not seek to challenge the accuracy, or utility, of these further submissions filed on behalf of the appellant.

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54

We have now had regard to the matters relied upon on the plea. We have also had regard to the additional material placed before this Court which, it was agreed, was to be considered in the event that we allowed the appeal. The sentence on charge 2, having been shown to be manifestly excessive, must be set aside. That necessitates a reconsideration of the sentence on charge 1, as well as the total effective sentence and the non-parole period. In approaching the matter in that way, we are of course considering the sentences to be imposed entirely afresh.

55

We would allow the appeal and set aside the sentences imposed below. We would re-sentence the appellant as follows: Charge 1 four years imprisonment. Charge 2 one months imprisonment.

56

We would order that both sentences are to commence this day, and are therefore to be served concurrently. This makes a total effective sentence of four years imprisonment.

57

We would fix a non-parole period of one year and nine months imprisonment.

58

We would declare, pursuant to s 6AAA of the Sentencing Act 1991, that the total effective sentence on all charges that would have been imposed but for the respondents guilty plea would have been five years, with a non-parole period of three years.

59

For the avoidance of doubt, we would affirm the aggregate fines imposed on the summary offences and all ancillary orders. -----

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