Authorised report: 13 ACTLR 168

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Nchouki v The Queen

Citation: [2018] ACTCA 28

Hearing Date: 7 May 2018

Decision Date: 6 July 2018

Before: Burns ACJ, Loukas-Karlsson and Bromwich JJ

Decision: The appeals against conviction and sentence should be

dismissed.

Catchwords: CRIMINAL LAW – Appeal – Appeal against conviction – whether primary judge erred in finding electric control devices were designed to administer an electric shock on contact and neither items of medical equipment nor electric prods designed to be used exclusively with animals – whether primary judge erred in not including principles of law and findings of fact on which they relied

Appeal against sentence – whether primary judge erred in accumulation of sentences – whether primary judge erred in failing to take into account the purity of the illicit substances – whether primary judge erred in failing to give necessary effect to the principle of totality – whether primary judge erred by finding that the appellant was motivated by greed – whether primary judge erred in failing to consider alternatives to imprisonment – whether primary judge erred in failing to take appellant’s plea of guilty into account – whether primary judge erred by imposing manifestly excessive or unreasonable or plainly unjust sentence

Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 10, 35, 80 Criminal Code 2002 (ACT) ch 6, ss 58, 59, 601, 603, 604 Criminal Code Regulation 2005 (ACT) sch 1 Electoral Act 1992 (ACT) s 73 Evidence Act 2011 (ACT) s 79 Legislation Act 2001 (ACT) s 126 Prohibited Weapons Act 1996 (ACT) s 5, sch 1 Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11 Supreme Court Act 1933 (ACT) ss 68B, 68C

Cases Cited: Borbil v Western Australia [2007] WASCA 24; 169 A Crim R 152 Bui v The Queen [2015] ACTCA 5 Buxton v R [2017] NSWCCA 169 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Cranfield v The Queen [2018] ACTCA 3 Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594

2

Dowling v Bowie (1952) 86 CLR 136 Ellis v R [2010] NSWCCA 298 FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 Greer v The Queen [2015] NSWCCA 312 Henshaw v Mark (1997) 95 A Crim R 115 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Kapkidis v The Queen [2013] VSCA 35 Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 Locke v R [2010] NSWCCA 296 Luu v The Queen [2008] NSWCCA 285 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McKellar v R [2010] NSWCCA 295 Mill v The Queen (1988) 166 CLR 59 Nguyen v The Queen [2011] VSCA 139 O’Brien v R [2010] NSWCCA 297 O’Brien v The Queen [2015] ACTCA 47 Peden v Boxx [2016] ACTSC 86 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v JS [2007] NSWCCA 272; 230 FLR 276 R v Kalache [2000] NSWCCA 2 R v Meyboom [2012] ACTCA 48 R v MMK [2006] NSWCCA 272; 164 A Crim R 481 R v Nchucki (No 2) [2017] ACTSC 387 Robinson v R [2012] NSWCCA 26 Samani v The Queen [2017] ACTCA 23 The Queen v Debono [2013] VSC 408 Trajkovski v The Queen [2011] VSCA 170; 32 VR 587 Williams v The Queen [2018] ACTCA 4 Zdravkovic v The Queen [2016] ACTCA 53

Texts Cited: D A Thomas, Principles of Sentencing (Heinemann Educational Books Ltd, 2nd ed, 1979) Explanatory Statement, Criminal Code (Controlled Drugs) Legislation Amendment Regulation 2014 (No 1)

Parties: Mohammed Nchouki (Appellant)

The Crown (Respondent)

Representation: Counsel

Mr G James QC (Appellant)

Ms M Jones (Respondent)

Solicitors

Ben Aulich Associates (Appellant)

Office of the ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 51 of 2017

Decision under appeal:

Court: Supreme Court of the ACT

Before: Robinson AJ

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Date of Decision: 3 October 2017; 15 December 2017

Case Title: R v Nchucki; R v Nchucki (No 2)

Citation: [2017] ACTSC 287; [2017] ACTSC 387

THE COURT 1. On 7 March 2017 the appellant was arraigned on an indictment alleging the following:

(i) Count 1: Trafficking in 137.96 g of cocaine, in contravention of s 603(7) of the

Criminal Code 2002 (ACT) (Criminal Code), which carried a maximum penalty

of 1000 penalty units, 10 years’ imprisonment or both;

(ii) Count 2: Trafficking in 19.23 g of methylenedioxymethylamphetamine (MDMA),

in contravention of s 603(7) of the Criminal Code;

(iii) Count 3: Trafficking in 57.28 g of methylamphetamine, in contravention of

s 603(7) of the Criminal Code;

(iv) Count 4: Possessing a prohibited weapon (two electric control devices) in

contravention of s 5 of the Prohibited Weapons Act 1996 (ACT) (Prohibited

Weapons Act), which carries a maximum penalty of 500 penalty units, 5 years’

imprisonment or both; and

(v) Count 5: Possessing a prohibited weapon (flick knife), in contravention of s 5 of

the Prohibited Weapons Act.

2. The appellant elected to be tried by judge alone pursuant to s 68B of the Supreme

Court Act 1933 (ACT). The trial was presided over by Acting Justice Robinson and ran

for seven days in the period commencing 7 March 2017 and ending 8 August 2017. At

the commencement of the trial the appellant pleaded not guilty to Counts 1, 2, 3 and 4,

and guilty to Count 5 on the indictment. On 3 October 2017, his Honour returned

verdicts of guilty to Counts 1, 2, 3 and 4.

3. On 15 December 2017, his Honour sentenced the appellant to an aggregate sentence

of 3 years’ imprisonment commencing 22 June 2017 and expiring on 21 June 2020,

with a non-parole period of 20 months ending on 21 February 2019. His Honour

imposed individual sentences, and structured the aggregate sentence as follows:

Offence

Start date End date Effective term

Count 1:

Trafficking in

cocaine (137.96g)

22 June 2017

21 June 2019

2 years

Count 2:

Trafficking in MDMA

(19.23g)

22 June 2018

21 December 2018

6 months

Count 3:

Trafficking in

methylamphetamine

22 December 2018

21 June 2020

18 months

4

(57.28g)

Count 4:

Possessing a

prohibited weapon

(2 electric control

devices)

22 December 2018

21 April 2019

4 months

Count 5:

Possessing a

prohibited weapon

(flick knife)

22 December 2018

21 April 2019

4 months

4. The appellant initially appealed from the convictions on Counts 1, 2, 3 and 4. The

Notice of Appeal progressed through a number of iterations, each alleging multiple

grounds of appeal. At the outset of the hearing of the appeal, the appellant sought

leave to file a Third Amended Notice of appeal abandoning conviction appeals in

respect of Counts 1, 2 and 3. The Crown did not oppose this application, and

accordingly the appeal proceeded limited only to an appeal against conviction with

regard to Count 4 and against the sentences imposed for all offences.

5. The grounds of appeal as ultimately formulated are as follows:

Ground 1

(a) The primary judge erred in finding that the so-called “electric control devices”

were:

(i) designed to administer an electric shock on contact; and

(ii) neither items of medical equipment nor electric prods designed to be

used exclusively with animals.

(b) The primary judge erred in not complying with s 68C(2) of the Supreme Court

Act 1933 (ACT) in that his Honour did not include the principles of law and

findings of fact on which he relied.

Ground 2

(a) The primary judge erred in the way he accumulated the sentences for

Counts 1, 2, 3, 4 and 5, and in particular Counts 1 and 3, where the appellant

stood for sentence in respect to a single act of criminality, on a single date and

not for individual acts of trafficking in those substances over a period of time,

and where the counts discriminated between different drugs and different

parcels of drugs but not for individual acts of trafficking in those different

substances over a period of time;

(b) the primary judge erred in that, although he mentioned the purity of the illicit

substances for Counts 1, 2 and 3, he failed to take into account that the purity

of the substances were low and when viewed on a pure weight basis, neither

substances for Counts 2 and 3 exceeded the deemed trafficable quantity;

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(c) the primary judge erred in structuring the sentences as he did in that, whilst

acknowledging the principle of totality, he failed to give the necessary effect to

the principal;

(d) the primary judge fell into error in finding as an aggravating factor that the

appellant was able to efficiently conduct the business of a builder,

notwithstanding his significant drug use, and was thus motivated by greed,

when the evidence at trial established, on the balance of probabilities, that the

appellant was able to function efficiently in that regard because of, rather than

in spite of, his illicit drug use;

(e) in fixing sentences for Counts 4 and 5, the primary judge erred in failing to

consider the availability of alternatives to full-time imprisonment including

monetary penalties;

(f) the primary judge erred in failing to take account of, at all, the appellant’s plea

of guilty to Count 5; and

(g) the primary judge erred by:

(i) imposing a total sentence that is manifestly excessive; and

(ii) in the alternative to (i), imposing a total sentence that is unreasonable or

plainly unjust in the circumstances.

Grounds 1 (a) and 1 (b) – Count 4 Conviction Appeal

6. Section 5 of the Prohibited Weapons Act makes it an offence to possess or use a

prohibited weapon when not authorised by a permit, or otherwise under that Act. A

“prohibited weapon” is defined under s 4A of the Prohibited Weapons Act as a weapon

or thing described in Schedule 1 of that Act. The relevant prohibited weapon alleged to

have been possessed by the appellant is described in Part 1.4, Item 4 of Schedule 1 as

“a hand-held or other electric device designed to administer an electric shock on

contact, other than a piece of medical equipment or an electric prod designed

exclusively for use with animals”.

7. It is desirable to give a brief description of the facts surrounding the charges, as set out

in the respondent’s summary of argument. It was not suggested that this summary was

inaccurate or inadequate:

7. On 26 November 2014 police executed search warrants on the appellant’s premises and his two vehicles in Chisholm. Cocaine, methylamphetamine and MDMA were found in the house, his office at the back of the house and in one of his vehicles. The appellant made formal admissions of fact at the commencement of the trial admitting that the drugs were found and that they belonged to him. The two electric control devices the subject of count 4 were located in a bag in the appellant’s vehicle. Also located in the vehicle was a bag containing methylamphetamine and $1550 in cash.

…..

9. At the trial no issue was taken with the location of the two electric control devices, or that they were in the possession of the appellant. In relation to the drug charges… the appellant’s case at trial was that the drugs were for his own personal use. The Crown relied upon the deeming provision in s 604 of the [Criminal] Code as well as other indicia of trafficking. The appellant gave evidence that the drugs were for his own use….

10. The appellant’s case in relation to count 4 was that the two electric devices did not come within the definition of a prohibited weapon as defined in the Prohibited Weapons Act, in particular item 4 of Part 1.4 of Schedule 1 of the Act.

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8. Grounds 1 (a) (i) and (ii) assert that there was insufficient evidence to establish that the

electric control devices were designed to administer an electric shock on contact and

were neither items of medical equipment nor electric prods designed to be used

exclusively with animals. The respondent submitted, citing s 58(3) of the Criminal

Code, that the appellant had an evidential burden of adducing or pointing to evidence

that the electric control devices fell within the description of a piece of medical

equipment or an electric prod designed to be used exclusively with animals. We will

refer to these descriptions compendiously as “the qualifications”. The appellant

submitted that s 58(3) did not apply, such that the onus fell on the respondent to

establish that the electric control devices did not fall within the qualifications.

9. The issues raised by these grounds of appeal are, therefore:

(a) Was there sufficient evidence to enable the primary judge to conclude that the

devices were “designed to administer an electric shock on contact”?

(b) Did s 58(3) of the Criminal Code impose on the appellant an evidentiary onus

of reducing or pointing to evidence that the devices were neither items of

medical equipment nor electric prods designed to be used exclusively with

animals?

(c) If the answer to (b) is “yes”, did the appellant satisfy that onus?

(d) If the answer to (b) is “no”, was there sufficient evidence to enable the primary

judge to conclude that the devices were not items of medical equipment nor

electric prods designed to be used exclusively with animals?

(e) Did the primary judge sufficiently expose his reasoning in concluding that the

devices were prohibited weapons?

10. At the trial, the respondent led evidence regarding the devices from Jodie Green, a

member of the Australian Federal Police Firearms Identification and Armoury Team.

Her written report dated 11 December 2014 was tendered without objection, and was

supplemented by oral evidence. No issue was taken with her qualifications or

experience. Ms Green’s report was to the effect that the devices were virtually identical,

with identical controls. Each device was marked “3800K VOLT”, “800TYPE” and “Direct

current ultrahigh voltage”. Each device had two metal probes on the top of the device

located either side of a torch bulb. Each device had a three-stage switch located on the

right hand side of the device. Each device also had a black circular button on the right

hand side of the device. When the three-stage switch was moved into the centre

position, the torch bulb in the device was activated. When the three-stage switch was

moved into the forward position a rectangular red light was illuminated. When the

circular button was then depressed an electrical arc was observed between the two

probes, and an audible electric “crack” noise was heard. With regard to the devices, Ms

Green said in her report:

While [the devices] have the functionality of a torch, they also have two (2) pointed metal probes located on either side of the bulb with the points facing towards each other. For both devices, a rectangular red light was illuminated and an arc was observed jumping between the probes along with an audible electric ‘crack’ when the three (3) stage switch is in the forward position and the circular button is depressed.

Devices of similar appearance and design to [the devices] are promoted as ‘electrical non-lethal self-defense’ devices to ‘immobilise an attacker’ and ‘will render your assailant helpless’.

7

…

On the basis that [the devices were] observed to produce a visible arc between their two (2) probes along with an audible electric “crack” and that devices of a similar appearance and design to [the devices] are promoted as being designed to administer an electric shock on contact, it is determined that the devices…are ‘Prohibited Weapons’ as per the Australian Capital Territory Prohibited Weapons Act 1996, more specifically ‘Other Prohibited Weapons’ (Schedule 1, Part 1.4, Item 4).

11. In evidence in chief at the trial Ms Green stated that she is trained in identifying

electrical control devices. When asked what electrical control devices generally do, she

stated “[t]hey generally inflict a shock which is used as a control mechanism or a

compliance device”.

12. In cross examination Ms Green agreed that she had not tested the devices to

determine whether the electrical arc passing between the two probes would necessarily

result in an electrical shock on contact. Cross examination concluded with the following

question and answer:

If the current were caused to jump between those sideways facing prongs, but the pins were in contact with an animate object, a human or an animal, would that human or that animal necessarily receive an electric shock?---I couldn’t answer that without testing it.

13. The appellant participated in a recorded interview with police in which he was

questioned about the devices. He told police that he had found them on a building site,

and said that he initially thought that they were some form of laser device. When asked

what the device was used for, he said “[i]t was in a bag, I don’t know electric shock,

shock mother fuckers I guess”. Police asked him whether it was an electric shock

device like a Taser, and he replied “I think so, I think so yeah”.

14. The primary judge noted that the appellant had conceded that the sole issue in relation

to Count 4 was whether the two devices answered the relevant description in Part 1.4,

Item 4 of Schedule 1 of the Prohibited Weapons Act. He noted that a number of

matters were not disputed. It was not disputed that the two items were identical. It was

also not disputed that they were identified by Ms Green as hand-held devices and not

as pieces of medical equipment or electrical prods. We will interpolate at this point to

note that it was not accepted in the course of this appeal that the last matter was not in

dispute at the trial. After quoting the cross examination of Ms Green referred to at [12]

above, the primary judge said at [104] – [105]:

104. I take this cross-examination into account as having a necessary relationship to the precise fact in issue, namely, whether the items are designed to administer an electric shock on contact. The fact that no testing was done on an aspect of the items in question (albeit for good reason, it seems) opens up a potential gap in the process of reasoning to determine whether the Crown has proved, beyond reasonable doubt, that the items match the statutory definition.

105. Viewing the two items, together with the evidence of their functions when regard is had to the various switch positions, it is difficult to believe that the design of the items can be other than for the administration of an electric shock on contact. There is some confirmation for this. The items in evidence are marked “3800 VOLT, 800 TYPE, Direct – current ultrahigh voltage” with a label which may reasonably be supposed to have been attached in the course of a business and for the purpose of describing or stating the nature of the items (Evidence Act 2011 (ACT) s 70).

15. After referring to the statements made by the appellant in the course of his interview

with police about the devices, as set out above, the primary judge said:

8

107. By itself, I would give this admission limited weight, upon the reasoning that the strength of an admission to smoking cannabis depends upon a familiarity with cannabis. However, I find that the items “worked”, at least for some purposes when tested on 10 December 2014 and I conclude that the presence of the two items on 26 November 2014 in two separate compartments of the Lonsdale bag indicates that it is more likely than not that they have been pressed into service or were to be pressed into service, in some way as electric control devices…

108. It is probable that the accused had an insight into the functioning of these items, and his admission, recorded above, is entitled to some weight in the proof of the case against him.

109. I have concluded that the items in question are hand-held electric devices designed to administer an electric shock on contact. They are not items of medical equipment and they are not electric prods designed to be used exclusively with animals.

16. The appellant submitted that the evidence could not have satisfied the primary judge as

the tribunal of fact that the devices fell within the definition of a prohibited weapon. He

submitted that the primary judge had to be satisfied beyond reasonable doubt not

merely that the device could produce electricity or an electric arc but that it was, in fact,

designed to administer an electric shock on contact. He submitted that there was no

evidence to establish the design of the devices was to administer electric shocks on

contact. The appellant submitted that there was simply no evidence about what the

devices were designed to do. He further submitted that any evidence about the design

of the devices would have required the necessary specialised knowledge under s 79 of

the Evidence Act 2011 (ACT). He referred us to the decision in FGT Custodians Pty Ltd

v Fagenblat [2003] VSCA 33 where the Victorian Court of Appeal said, at [19]:

Any matter of which a judge cannot take judicial notice, or which a jury cannot similarly resolve from their own experience, requires expert evidence if technical issues arise or if proof of a matter requires the expression of suitably qualified opinion.

17. The appellant submitted that there was no evidence that the devices were capable of

administering an electric shock on contact because they had never been tested.

18. The respondent submitted that the evidence of Ms Green, both in her written report and

in her oral testimony, was sufficient to enable the primary judge to find that the devices

were designed to administer an electric shock on contact.

19. In determining that the devices were designed to administer an electric shock on

contact, the primary judge took into account the operation of the devices when the

circular button was depressed at the various positions of the three-stage switch, the

labelling of the devices, the evidence of Ms Green and the statements made by the

appellant in the course of his interview with the police. Operation of the controls of the

devices, as undertaken by Ms Green, established two functions for the devices. When

the circular button was depressed with the three-stage switch in the middle position, a

torch bulb was illuminated. When the circular button was depressed with the three-

stage switch in the forward position, an electric arc was generated between the two

probes on the top of the device. It was open to the primary judge to conclude based

upon an analysis of the way in which it functioned that the device was designed to do

two things: to operate as a torch and to generate an electric current between the two

probes.

20. Ms Green was called by the respondent at the trial to give expert testimony. She gave

evidence which was unchallenged by the appellant that based upon her experience

and expertise the devices were electrical control devices. She said that such devices

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“generally inflict a shock which is used as a control mechanism or a compliance

device”. One of the devices was tested by Ms Green and it operated so as to generate

an electric current or arc between the two probes. It was open to the primary judge to

infer that when so operating the device would administer an electric shock on contact.

In order to satisfy the requirement that the device be designed to administer an electric

shock on contact, it is not necessary for the Crown to prove that the device is designed

such that an electric shock of any particular magnitude, or having any particular

consequence, may be administered. Indeed, the prosecution was not obliged to prove

that the devices in question were capable of administering an electric shock, merely

that they were designed to do so. It was not necessary for expert evidence to be put

before the primary judge to establish that if a person comes into contact with an electric

current that he or she will suffer a shock. On all of the evidence, the primary judge was

entitled to infer that the devices were designed to administer an electric shock on

contact.

21. Turning to the second question identified above, the description of a device proscribed

as a prohibited weapon as a thing described in Part 1.4, Item 4 of Schedule 1 of the

Prohibited Weapons Act has what may conveniently be referred to as two

qualifications. A device which would otherwise fall within the description is not a

prohibited weapon if it is a piece of medical equipment or an electric prod designed

exclusively for use with animals. The appellant submitted that no evidence had been

adduced by the respondent in the trial to establish that the devices did not fall within

either of these qualifications. The respondent submitted that the provisions of s 58(3) of

the Criminal Code were engaged such that an evidentiary onus was cast on the

appellant to either adduce or point to evidence in the trial that the devices fell within

one of the two qualifications. Section 58(3) of the Criminal Code provides:

(3) Subject to section 59, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) has an evidential burden in relation to the matter.

22. Section 59 of the Criminal Code has no application in the present matter. The

examples which accompany s 58(3) are as follows:

Examples

1 The XYZ Act 2002, section 10 (1) creates an offence of producing a false or misleading document. Section 10 (2) provides—

(2) This section does not apply if the document is not false or misleading in a material particular.

Section 10 (2) is an exception to section 10 (1). A defendant who wishes to rely on the exception has an evidential burden that the document is not false or misleading in a material particular.

2 The XYZ Act 2002, section 10 (1) creates an offence of a person making a statement knowing that it omits something without which the statement is misleading. Section 10 (2) provides—

(2) This section does not apply if the omission does not make the statement misleading in a material particular.

Section 10 (2) is an exception to section 10 (1). A defendant who wishes to rely on the exception has an evidential burden that the omission did not make the statement misleading in a material particular.

3 The XYZ Act 2002, section 10 (1) creates an offence of disclosing certain information about a restraining order. Section 10 (2) provides—

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(2) This section does not apply if the disclosure is made to a police officer.

Section 10 (2) is an exception to section 10 (1). A defendant who wishes to rely on the exception has an evidential burden that the disclosure was made to a police officer.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

23. The first submission made by the appellant was that the provisions of s 58(3) did not

operate because the relevant “exceptions” were found within a definition contained

within a schedule to the Prohibited Weapons Act. As we understand the submission,

the appellant contended that the offence was created by s 5 of the Prohibited Weapons

Act, and the provisions of Part 1.4, Item 4 of Schedule 1 was simply part of a definition

provision via the operation of the definition of “prohibited weapon” in s 4A of the

Prohibited Weapons Act. As such, the appellant submitted, there was no “exception,

exemption, excuse, qualification or justification” provided by the law creating the

offence so as to engage the provisions of s 58(3) of the Criminal Code.

24. This submission should not be accepted. A schedule to an Act is part of the Act:

Legislation Act 2001 (ACT), s 126. The question is, how is the schedule to be read in

conjunction with the provisions of s 5 and s 4A of the Prohibited Weapons Act? The

term “prohibited weapon” as used in s 5 has no content other than as prescribed by the

Prohibited Weapons Act. The term “prohibited weapon” has no common English

meaning, because it begs the question: prohibited by whom? The terms of s 4A and

the Schedule to the Prohibited Weapons Act operate to give meaning or content to the

term “prohibited weapon”. The placing of each item proscribed as a prohibited weapon

into a schedule rather than listing them in s 5 is simply a convenient drafting device.

The way such a provision is to be interpreted is by effectively substituting the

proscribed article, as described in the Schedule, for the term “prohibited weapon” in s

5. This is consistent with common sense, and also with the approach taken by a five

member Court of Criminal Appeal in New South Wales in R v JS [2007] NSWCCA 272;

230 FLR 276 at [120] – [159], and particularly at [125]. When approached in this way,

the primary submission made by the appellant must be rejected.

25. The appellant referred to the judgment of Jordan J in Ex Parte Ferguson: re Alexander

(1944) 45 SR (NSW) 64, at 66-67, on the question of whether words may represent an

exception to an offence:

If the offence were defined as consisting of a single concatenation of factors, all were regarded as necessary ingredients of the offence, whether they were positive or negative in their nature ; but, if the definition were twofold, in the sense that after a definition of the offence there was a distinct and separate provision exempting from liability in a certain event, only the first part was regarded as defining the ingredients of the offence, and the second was regarded as a matter of confession and avoidance available by way of a defence…

26. The appellant submitted that the words “other than” found in Item 4, Part 1.4 of

Schedule 1 to the Prohibited Weapons Act (and presumably the words following) are

an ingredient of the offence created by s 5 and not an exception. He cited Chugg v

Pacific Dunlop Ltd (1990) 170 CLR 249, where Dawson, Toohey and Gaudron JJ said

at 258:

…if a matter accompanies the description of an offence, then it will ordinarily be construed as an element of the offence which the prosecution must prove, unless there is something

11

in the form of the language used or in the nature of the subject matter to suggest that it is an exception upon which the defendant bears the onus of proof.

27. Later, at 258-9, their Honours continued:

One indication that matter may be a matter of exception rather than part of the statement of the general rule is that it sets up some new or different matter from the subject matter of the rule…. If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.

28. The appellant submitted that there is nothing in the form of language used or in the

nature of the subject matter to suggest that the exception to the relevant definition is an

exception upon which the appellant bore an evidential onus. He submitted that

knowledge as to whether the devices are medical equipment or an electric prod

designed exclusively for use with animals is not a matter expected to be peculiarly

within the knowledge of the appellant. He further submitted that the three examples

listed under s 58 of the Criminal Code are not analogous to the definition in the present

case. Each of the examples in the Criminal Code, he submitted, listed the exception to

the rule in a separate sub-section and with the words “This section does not apply if” as

part of the exception.

29. The appellant took us to the decision in Director of Public Prosecutions v United

Telecasters Sydney Ltd (1990) 168 CLR 594 (United Telecasters). The respondent in

United Telecasters was convicted after a trial by jury of an offence under s 100(5A) of

the Broadcasting and Television Act 1942 (Cth), which provided that the holder of a

broadcasting licence “shall not broadcast or televise an advertisement for, or for the

smoking of, cigarettes or cigarette tobacco”. Section 100(10) of that Act provided that

“[a] reference in subsection… (5A)…to the …televising of…an advertisement shall be

read as not including a reference to the televising of matter of an advertising character

as an accidental or incidental accompaniment of the… televising of other matter…”.

The broadcast material upon which the DPP relied was part of a telecast of the New

South Wales Rugby League grand final in 1984. An appeal by United Telecasters was

upheld by the New South Wales Court of Criminal Appeal on the grounds that certain

evidence tendered by the DPP at trial should not have been admitted. The DPP

obtained special leave to appeal to the High Court from the decision of the Court of

Criminal Appeal, and United Telecasters sought special leave to appeal on the ground

that there was no evidence upon which the jury could conclude that the respondent had

televised an advertisement for cigarettes. In rejecting United Telecasters’ argument,

the plurality (Brennan, Dawson and Gaudron JJ) approved of the direction by the trial

judge to the jury that it was for the prosecution to prove that the impugned material was

not televised as an accidental or incidental accompaniment of the other material

televised (the football game). The plurality said, at 600-1:

Clearly, material may be designed or calculated to draw public attention to a product or to promote its use without explicit description or exhortation. Indeed, an advertisement may be of a subliminal character. Short of that, there are many means, subtle or otherwise, of drawing public attention to a product. The jury were entitled to conclude that the colours in which the dancers were clothed were not an accidental choice and were designed or calculated to draw attention to or to promote Winfield cigarettes when combined, however briefly, with the word "Winfield" appearing on the banner and in the advertisement on the A-frame.

Having concluded that the television segment constituted matter of an advertising character, the jury were, we think, entitled to reach the further conclusion that it was not, within the meaning of s.100(10), an accidental or incidental accompaniment of the

12

televising of other matters. It was common ground that the respondent received no payment or other valuable consideration for televising the segment in question and the learned trial judge directed the jury that the prosecution bore the onus of establishing that it was not an accidental or incidental accompaniment of the other matter shown. That direction was, we think, correct.

The rule laid down in Woolmington v. The Director of Public Prosecutions [[1935] UKHL 1; [1935] AC 462, 481-2], that the burden of proving every element of an offence charged rests at all times upon the prosecution, was expressed to be "subject to ... the defence of insanity and subject also to any statutory exception". It is made clear in Reg. v. Edwards [[1975] QB 27] and Reg. v. Hunt [[1987] AC 352] that the statutory exceptions referred to are not confined to those which expressly cast the burden of proof upon the accused (see, e.g., Crimes Act 1900 (N.S.W.), s. 417), but extend to cases in which an intention to do so is necessarily implied. Such cases will ordinarily occur where an offence created by statute is subjected to a proviso or exception which, by reason of the manner in which it is expressed or its subject matter, discloses a legislative intention to impose upon the accused the ultimate burden of bringing himself within it. That burden may, of course, be discharged upon the balance of probabilities. Whilst it is convenient to speak in terms of provisos or exceptions, the legislative intent cannot be ascertained as a mere matter of form. The Court of Appeal in Reg. v. Edwards [[1975] QB 27, 40], viewed the statutory exceptions as limited to:

"offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities."

In Reg. v. Hunt [[1987] AC 352, 375], even this formulation was said by the House of Lords not to be exhaustive. Each case must turn upon the construction of the particular enactment.

But it is clear that in this case the exemption contained in s.100(10) of the Broadcasting and Television Act was not intended to cast any burden upon an accused charged under s.100(5A). Sub-section (10), as it then was, reads:

"A reference in sub-section ... (5A) ... to the ... televising of ... an advertisement shall be read as not including a reference to the ... televising of matter of an advertising character as an accidental or incidental accompaniment of the ... televising of other matter ..."

Whilst sub-s.(10) cuts down the scope of sub-s.(5A) it does so by way of definition rather than by way of proviso, exception or saving and there is no reason to suppose that in so limiting sub-s.(5A) the legislature intended that the sub-section should operate without limitation unless an accused brought himself within the terms of sub-s.(10).

30. The appellant also referred to Burns J’s decision in Peden v Boxx [2016] ACTSC 86

(Peden v Boxx) where Burns J considered whether a charge under s 73(1) of the

Electoral Act 1992 (ACT) was defective. The section creating the offence provided that

a person who was not enrolled to vote committed an offence if, without reasonable

excuse, the person did not make a claim for enrolment within 21 days after the day

they became entitled to be enrolled. The form of the charge brought on that occasion

omitted the words “without reasonable excuse”. The issue for determination was

whether the charge was defective by reason of absence of those words. The

respondent in that case (the informant in the prosecution) accepted that the ultimate

legal burden of proof that the offence was committed without reasonable excuse fell on

the prosecution. However, he submitted that the burden of proof only fell on the

prosecution after the appellant satisfied the evidentiary burden imposed by s 58 of the

Criminal Code to present or point to evidence suggesting that there may have been a

reasonable excuse for the actions of the appellant that were alleged to constitute the

offence. The respondent submitted that, as such, proof that the offence was committed

“without reasonable excuse” was not and could not be an essential factual ingredient of

13

the charge because the informant was not, at that point in time, required to prove the

absence of reasonable excuse.

31. To the extent that Burns J examined the question of the onus of proving the exception

in Peden v Boxx, it was through the prism of determining a pleading issue. After

considering the decision of Miles CJ in Henshaw v Mark (1997) 95 A Crim R 115

(Henshaw), concerning an offence alleged under s 11 of the Public Order (Protection

of Persons and Property) Act 1971 (Cth), Burns J said:

In my opinion the present case is effectively indistinguishable from that in Henshaw. Section 73 creates a general offence of (for present purposes) not enrolling to vote without reasonable excuse. It may be accepted that the defendant will have peculiar knowledge of any circumstances that may constitute a reasonable excuse for not enrolling to vote, and that any such circumstances will not usually be known to the prosecution, but the same may be said with respect to the offences alleged section 11 of the Public Order (Protection of Persons and Property) Act 1971 (Cth). A requirement that the words “without reasonable excuse” be pleaded as part of a valid charge for the alleged offence against s 73 of the Act does not mean that the onus falls on the prosecution to negative all possible or theoretical reasonable excuses. Where the defendant adduces or identifies evidence that is capable of constituting a reasonable excuse for a contravention of s 73, the onus falls on the prosecution to prove beyond a reasonable doubt that such facts or circumstances adduced or identified by the defendant did not exist, or that, if they did, they do not amount to a reasonable excuse.

32. The respondent to the present appeal submitted that the two exceptions found within

Item 4 of Part 1.4 of Schedule 1 to the Prohibited Weapons Act are exceptions to which

s 58 of the Criminal Code applied such that there was an evidentiary onus on the

appellant. It submitted that the examples provided in the section indicate that where

there is a broader category of facts, circumstances or events, but within such a

category a subgroup is excluded from that broader category, that amounts to an

exception within the meaning of s 58. The respondent submitted that this is analogous

to the present matter, where the legislation provides for a broader category of item (a

hand-held electric device designed to administer an electric shock on contact) and

within that provision are exceptions, that is, the device is other than a piece of medical

equipment or an electric prod designed exclusively for use with animals. As such, the

respondent submitted, the two qualifications found in Item 4 constitute exceptions for

the purposes of s 58(3), placing an evidential burden on the appellant.

33. Whether a qualification in an enactment creating an offence is an exemption for the

purposes of s 58 of the Criminal Code, placing an evidentiary onus on an accused, or

is in the nature of a proviso which the Crown must prove does not apply, is a matter of

statutory construction: Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen

(1945) 70 CLR 635. In that case Dixon J considered legislation which provided that an

employer was liable to pay compensation to a worker or his dependents where he ‘has

received injury “without his own default or wilful act” on any of the daily or other

periodic journeys’ between his place of abode and place of employment. The issue

arose as to who held the onus with regard to establishing either the existence or

absence of default or wilful act on the part of the worker. Dixon J, with whom Williams J

agreed, said:

The answer depends upon the interpretation of the provision. For the burden of proof is a legal consequence of the nature of the qualification placed by the words “without his own default or wilful act” upon the general conditions of liability stated in the clause. If these words are but part of the legislative attempt to define the conditions upon which the worker’s right to compensation arises, then, like all other ingredients or elements in a cause of action or title to claim, proof of the fulfilment of the conditions they described must

14

lie with the claimant. But if the true nature of the qualification is to introduce new matter, not as part of the primary grounds of liability, but as a special exception all condition defeating or answering liability otherwise existing, then the onus of proof lies with the party setting up default or wilful act by way of answer.

The form in which the clause is cast, no doubt, favours the view that the words in question express part of the description of the primary or general grounds of liability. For they occur in the formulation in a single proposition of the conditions in which the worker or his dependents “shall receive compensation from the employer.” But, although in such a question the form in which an enactment is thrown is a consideration of much importance, it is by no means decisive. The substance of the provision must be considered and weight must be given to the nature of the general conditions laid down and to the substance and real effect of the particular qualification. Further, an interpretation is to be preferred which will give the provision an operation consistent with the principles of the common law. Notwithstanding the form of the clause, I think that the considerations of substance show that the qualification, expressed by the words “without his own default or wilful act,” amounts to a particular exception or an answer, the proof of which lies upon the employer.

34. In the later case of Dowling v Bowie (1952) 86 CLR 136 (Dowling), it was held that the

prosecution had an obligation to prove that the appellant sold liquor to a “half-caste”

Aboriginal as defined by the Aboriginals Ordinance 1918 – 1947 (NT), which involved

establishing that the person to whom the liquor was sold was not a person deemed not

to be a “half-caste” Aboriginal by reason of gazettal of his name. In the appeal, the

respondent argued that the burden of proving that the name of the person to whom the

liquor was sold had been gazetted lay upon the appellant because it was a special

matter amounting to an exception of a particular individual from the operation of a

general rule. In rejecting this argument, Dixon CJ, with whom Fullagar and Kitto JJ

agreed, said:

The argument treats the case as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification. See Barritt v Baker [(1948) VLR 491, 495]. The distinction has been criticised as unreal and illusory and as, at best, depending on nothing but the form in which the legislation may be cast and not upon its substantial meaning or effect. The question, however, where in such cases the burden of proof lies may be determined in accordance with common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes with in it. Cf. Pye. V Metropolitan Coal Co Ltd [(1934 50 CLR 614; (1936) 55 CLR 138)]; Darling Island Stevedoring & Lighterage Co. Ltd v. Jacobson [(1945) 70 CLR 635]

(Emphasis added)

35. Similarly, in The Queen v Debono [2013] VSC 408, Kyrou J said at [21]-[24]:

21 The question of whether an exculpatory statutory provision imposes the onus on an accused to prove the facts required to come within the provision or on the prosecution to disprove the existence of such facts, will depend on the legislative intention as determined by the language of the provision, its context and purpose. The courts have developed criteria to assist in the process of statutory interpretation. Those criteria include whether the provision is a proviso rather than an exception, the form and

15

structure of the provision and whether the facts in question would ordinarily be exclusively in the possession of an accused.

22 Generally, if an exculpatory provision is part of the definition of the grounds of liability, it will be a proviso and the onus will be on the prosecution to prove that the proviso does not apply. On the other hand, if an exculpatory provision is separate from the definition of the grounds of liability, and sets out a basis for negating liability that would otherwise arise, the onus of proof will usually be on an accused.

23 In relation to the form and structure of the exculpatory provision, if it exists in a single proposition with the definition of the grounds of liability, it is likely to be a proviso, in which case, the onus of proof will usually be on the prosecution. On the other hand, if an exculpatory provision is distinct from the provision that defines the grounds of the liability, it is likely to be an exception, in which case, the onus of proof will usually be on an accused. However while the form and structure of the exculpatory provision is important, ultimately the question is to be determined by the substance of the provision rather than its form and structure.

24 Where the subject matter of the exculpatory provision comprises facts that are ordinarily exclusively in the possession of an accused, this may indicate that it is an exception and that it is intended that the onus be on an accused to prove those facts.

36. The clear intention of the legislature demonstrated in s 5 and Item 4 of the Prohibited

Weapons Act is to proscribe devices of a particular description: hand-held or other

electric devices designed to administer an electric shock on contact. The qualifications

found within Item 4 effectively introduce a new subject matter by reference to which

devices of the relevant description are not proscribed, being the use to which the

device is put or designed to be put. To paraphrase the words of Dixon CJ in Dowling at

[34] above, the provisions of Item 4 assume the facts on which the general rule of

liability is based, but provides for exculpation on the basis of additional facts of a

special kind, being the use to which the device is put or designed to be put. It may also

be expected that a person in possession of such a device will know its provenance,

and will know whether it is a piece of medical equipment or an electric prod designed

exclusively for use with animals. The person in possession of such a device will

generally have a far greater knowledge of the device than a prosecuting authority. The

fact that the appellant in the present case, if his version of events is accepted, did not

have any significant knowledge of the provenance of the devices is not to the point. In

an appropriate case, a person innocently in possession of such a device in the

mistaken belief that it fell within one of the qualifications in Item 4 would be able to

raise a defence of mistaken belief of fact. In the present case, such a defence was not

available to the appellant because there is no suggestion that he believed that the

devices which he possessed were either pieces of medical equipment or electric prods

designed exclusively for use with animals.

37. In our opinion, the qualifications found in Item 4 are properly described as exceptions

to which s 58(3) of the Criminal Code apply, with the consequence that there was an

evidentiary onus on the appellant to present or point to evidence that suggested a

reasonable possibility that the qualification applied in his case. It was conceded that

there was no such evidence either presented by the appellant or to which he could

point at his trial which would satisfy the evidential burden placed upon him.

38. The answer to question (b) in paragraph [9] above, is “yes”. The answer to question (c)

is “no”. It is therefore unnecessary to answer question (d).

39. The final issue raised by the appellant with regard to Count 4 is whether the primary

judge sufficiently exposed his reasoning for determining that the two devices were

16

prohibited weapons. The provisions of s 68C(2) of the Supreme Court Act 1933 (ACT)

require that a judge trying a criminal matter without a jury must include in their

judgment the principles of law applied and the findings of fact on which the judge relied.

In concluding that the devices were prohibited weapons as described in Item 4 the

primary judge expressly took into account the description of the devices, the evidence

of Ms Green of the functions performed by the devices, how the devices were

operated, the statements made by the appellant with regard to the devices and the

absence of any obvious alternative purpose for the devices other than as electric

devices designed to administer an electric shock on contact. This was an adequate

base for the primary judge to draw an inference that the devices were prohibited

weapons as described in Item 4.

40. The answer to question (e) in paragraph [9] above, is “yes”.

41. The appeal against conviction on Count 4 should be dismissed.

Appeals against sentence

Grounds 2 (a) and (c) – Accumulation of sentences and totality

42. The appellant submitted that the offences of trafficking in cocaine, Count 1, and

trafficking in methylamphetamine, Count 3, were the two most serious offences on the

indictment. He was sentenced to 2 years’ imprisonment for Count 1 and 18 months’

imprisonment for Count 3. The primary judge made six months of the sentences

imposed for those two counts concurrent, with the consequence that they were

accumulated to the extent of 12 months. The appellant submitted that the primary

judge erred in giving the necessary effect to the principle of totality and in the way he

accumulated the sentences.

43. The appellant accepted that questions of accumulation are discretionary, but submitted

that the discretion must nonetheless be exercised according to law and proper policy.

The appellant referred us to R v MMK [2006] NSWCCA 272; 164 A Crim R 481 where

the New South Wales Court of Criminal Appeal said, at [13], that any discretion in

questions of cumulating sentences “is generally circumscribed by a proper application

of the principle of totality”. The Court went on to say, at [11]:

It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616.

44. In Mill v The Queen (1988) 166 CLR 59, the plurality (Wilson, Deane, Dawson, Toohey

and Gaudron JJ) said, quoting from Thomas, Principles of Sentencing, 2nd ed. (1979),

56-7:

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when…cases of multiplicity of offences comes before the court, the court must not content itself by doing the arithmetic and passing the

17

sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’”

45. The appellant submitted that the relevant consideration is whether the sentence for one

offence can comprehend and reflect the criminality of the other. If the sentence for one

of the offences can achieve this objective, he argued, then the sentences ought to be

concurrent.

46. The appellant also referred us to the decision of the New South Wales Court of

Criminal Appeal in Robinson v R [2012] NSWCCA 26 (Robinson), which was

concerned with the issue of accumulation of sentences for offences of supplying a

commercial quantity of MDMA and supplying methylamphetamine. The offence of

supplying a commercial quantity of MDMA carried a maximum penalty of 20 years’

imprisonment, and under the relevant sentencing regime in New South Wales had a

standard non-parole period of 10 years. The offence of supplying a prohibited drug,

methylamphetamine, carried a maximum penalty of 15 years’ imprisonment, and no

standard non-parole period was prescribed. In respect of the charge of supplying a

commercial quantity of MDMA, Robinson was sentenced to a non-parole period of 4

years and 6 months with an additional term of 4 years and 6 months to commence at

the expiration of the non-parole period. In respect of the charge of supplying

methylamphetamine he was sentenced to a non-parole period of three years with an

additional term of three years to commence at the expiration of the non-parole period.

The sentencing judge accumulated the sentence for supplying methylamphetamine in

such a way that it commenced three years into the sentence for supplying a

commercial quantity of MDMA. In total, therefore, Robinson received a non-parole

period of six years with an additional term of three years. The effect of the sentences

imposed was that the head sentences were entirely concurrent, but the non-parole

periods were entirely accumulated. The complaint which was made by the appellant in

Robinson was that the accumulation of the non-parole period for the offence of

supplying methylamphetamine was too great to reflect properly the total criminality of

the two offences.

47. In Robinson, the Court of Criminal Appeal referred to previous decisions in McKellar v

R [2010] NSWCCA 295 (McKellar), Locke v R [2010] NSWCCA 296 (Locke), O’Brien v

R [2010] NSWCCA 297 (O’Brien) and Ellis v R [2010] NSWCCA 298 (Ellis). In Locke,

the Court resentenced the offender on appeal for four offences of supplying MDMA on

four separate occasions by reducing the one year accumulation between the offences

to six months. In O’Brien, accumulations of 12 months, six months and 18 months

between three offences of supplying MDMA were reduced to six months accumulation

each. In Ellis, the Court reduced the period of accumulation of sentences for two of five

offences of supplying MDMA from nine months to six months each, noting the

commonalities in the offending. In McKellar, the sentences imposed for two offences of

supplying MDMA had a 12 month accumulation reduced to three months on appeal. In

concluding that the period of accumulation of the non-parole periods in Robinson was

too high, Davies J (with whom Macfarlan JA and Rothman J agreed) said at [57] – [59]:

57 It may be accepted that the notion of instinctive synthesis comes particularly to the fore when questions of partial accumulation and totality are being considered because a discretion is being exercised. A sentencing judge will not necessarily fall into error because he or she does not set out in detail how the precise period of any accumulation is reached. Nevertheless, it is desirable that some remarks should be addressed to the factors which have been taken into account: McKellar at [63]. A failure to do so may result in this Court concluding, where the sentence or the measure of accumulation appears unreasonable or unjust, that there has been a

18

manifest error in the application of principle relevant to the exercise of the discretion: House v The King (1936) 55 CLR 499 at 505.

58 In my opinion that is the position in this case. His Honour did not say why he accumulated the sentences in the manner he did, and the overall resulting sentence is unreasonably high. When it is remembered that both drugs were found at the same locations in the same premises at the same time the commonality of these matters highlighted the need for his Honour to explain why he adopted the course he did. His Honour, who is a very experienced trial judge, was mindful of the totality principle - he referred to Pearce - but did not relate the principles to the facts he found. One explanation for the overall sentence (as mentioned earlier ) may be that his Honour felt more constrained by the standard non-parole period in respect of Count 1 than would now be thought necessary: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 at [17] and [26] - ]28].

59 A proper application of the totality principle would, in my opinion, have resulted in a lesser period of accumulation. Some guidance is available from the four related cases to which I have referred. Two factors tell against the Applicant by comparison with the appellants in those cases. First, they were young (19 to 21). Secondly, they had either no prior convictions or relatively minor convictions, unlike the present Applicant who has two prior convictions for supplying drugs. On the other hand, apart from McKellar, the quantity of the drugs in those cases greatly exceeded the quantity in the present case, and the facts showed a more systematic supply organisation[.]

48. The appellant also referred us to the decision of Greer v The Queen [2015] NSWCCA

312 (Greer) where R A Hulme J (with whom Ward JA and Fagan J agreed) said in

regard to sentences for supplying two different types of drugs on one occasion, at [30]:

The facts and associated circumstances relating to the offence in count 1 established on their own that the applicant was substantially involved in a business of drug dealing. The fact that he also supplied another type of drug added an additional dimension to that business, but the additional criminality was not all that substantial.

49. In the present case, the appellant noted that all five counts arose from the possession

of a number of prohibited substances and items found within the boundaries of the

appellant’s home on the same day, 26 November 2014. The appellant submitted that

the primary judge should have approached the trafficking offences as a single instance

of criminality for the following reasons:

(a) all the charges arose from the execution of a single search warrant;

(b) the appellant was in possession of the various substances and things on a

single day;

(c) there was no suggestion in the evidence of any earlier involvement in drug

dealing prior to 26 November 2014.

50. The appellant submitted that the primary judge should have imposed entirely

concurrent sentences for Counts 1 and 3, or alternatively they should only have been a

short period of accumulation. He submitted that the sentence imposed in respect of the

trafficking in cocaine offence could wholly reflect the criminality of the trafficking in

MDMA and methylamphetamine offences or, alternatively, recognising the

commonalities between the offences, warranted accumulation of less than the 12

months fixed by the primary judge.

51. The respondent referred us to the decision in Zdravkovic v The Queen [2016]

ACTCA 53 (Zdravkovic), where this Court said in dealing with a similar argument on

appeal at [69]:

19

…as the offences involved substantial amounts of different drugs, it was also open to the sentencing judge to partially accumulate the sentences. Where there are two separate offences with many common circumstances (such as an attempt to obtain possession of two parcels, each of which contained a different drug), it is not necessarily appropriate to impose entirely concurrent sentences: Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [12].

52. In Luu v The Queen [2008] NSWCCA 285 the applicant was charged with two deemed

supply offences following the execution of a search warrant, one relating to heroin, the

other to MDMA. The New South Wales Court of Criminal Appeal dismissed an appeal

against sentence, stating at [32]:

Possession of the two different kinds of drugs giving rise to the “deemed supply” offences is not properly regarded as one episode of criminality. There were two deemed supplies, as there would be two (or more) actual supplies were the different drugs to be sold to two (or more) purchases in the course of the applicant’s drug dealing.

53. A similar statement is found in the decision of Borbil v Western Australia [2007]

WASCA 24; 169 A Crim R 152, where Steytler P (with whom Wheeler and McLure JJA

agreed), said at [88] – [89]:

In drug cases, it has been held that the fact that a person is found on one occasion in possession of quantities of drugs with intent to sell or supply does not bring the offences within the one transaction rule… In Samuels v Western Australia (2005) 30 WAR 473, the Court said (at 489), in a case in which the appellant had simultaneously possessed two different types of drugs with intent to sell or supply each to another or others, that each possession “was a separate occasion of potential harm to the community from distribution of that particular drug.”

In my opinion, the same is true of the sale of heroin and supply of methylamphetamine in the present case. Each of these offences was negotiated separately and each was a separate occasion of potential harm to the community, even though the offences were committed on the same day and involved the same parties. The so-called “one transaction rule” is consequently not applicable.

54. The respondent further submitted that in the case of Greer referred to by the appellant

(see [48] above), the Court of Criminal Appeal had still determined that a degree of

accumulation of sentences was appropriate.

55. The respondent submitted that in sentencing the appellant, the primary judge expressly

noted that the issue of totality arose, and that he was structuring a sentence that

reflected the overall criminality of the offending. It further submitted that the relationship

between the sentences on Counts 1 and 3, the total head sentence and the non-parole

period is such that the primary judge used concurrency and accumulation as

techniques to arrive at an overall just and appropriate sentence, a method approved by

this Court in R v Meyboom [2012] ACTCA 48. It further submitted that caution was

required with regard to the New South Wales Court of Criminal Appeal decisions cited

by the appellant because of the different sentencing regime which exists in that state.

The respondent submitted that the individual sentences imposed by the primary judge

were just and appropriate given the objective seriousness of the offences and that the

period of accumulation of 12 months between the sentences for Counts 1 and 3 was

part of the process by which the primary judge arrived at a sentence which reflected

the overall criminality of the offending.

56. The starting point in considering this ground of appeal is the statement recently made

by this Court in Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA

19, at [56]:

20

There is no single correct approach to the structuring of multiple sentences and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise: R v TW [2011] ACTCA 25; 6 ACTLR 18 per Penfold J at [83], applied in Zdravkovic v The Queen [2016] ACTCA 53 at [70].

57. It may be accepted that there were features of commonality between the offences for

which the appellant was sentenced by the primary judge. All of the offences occurred

on a single day, with the substances or items involved being located at a single

location. All of the substances or items were located in the execution of a single search

warrant. It would be wrong, however, to suggest that there was no added criminality by

reason of the appellant trafficking in methylamphetamine beyond that revealed by the

appellant’s trafficking in cocaine. The primary judge was entitled to view the appellant’s

trafficking in methylamphetamine as significantly increasing the criminality of the

appellant’s offending beyond that revealed by the offence of trafficking in cocaine. Each

offence was a separate occasion of potential serious harm to the community. The

amount of methylamphetamine mixture located by police was nearly 10 times the

trafficable quantity. The value of the methylamphetamine, as accepted by his Honour,

was approximately $19,200.00. The gross weight of the mixture of cocaine located was

137.96 g, some 22 times the trafficable quantity. The value of the cocaine was

accepted by the primary judge as approximately $28,800.00. In our opinion, no

complaint can be made by the appellant regarding the individual head sentences

determined by the primary judge for these offences. The real issue must be whether

some error is demonstrated in the manner in which the sentences were accumulated.

58. It must be remembered that the exercise which the primary judge was undertaking was

not restricted to imposing sentences for Counts 1 and 3. His Honour was also

sentencing the appellant for offences of trafficking in MDMA (Count 2), possession of

prohibited weapons (Count 4), being the electrical control devices, and a further charge

of possession of a prohibited weapon (Count 5), being a flick knife. The sentence of

6 months’ imprisonment imposed on Count 2 was made wholly concurrent with the

sentence imposed on Count 1. Count 2 related to 86 pills weighing a total of 19.23 g,

nearly twice the trafficable quantity. The value of the MDMA was approximately

$2,520.00. The way in which the primary judge structured the aggregate sentence by

making the sentence on Count 2 wholly concurrent with that on Count 1 involved

significant leniency. Similarly, the sentences of 4 months’ imprisonment imposed for

each of Counts 4 and 5 were not only wholly concurrent with each other, but were also

wholly concurrent with the sentence of 18 months’ imprisonment imposed on Count 3.

59. The primary judge could have, without objection, structured the aggregate sentence in

other ways. It would be wrong, however, in the context of the present appeal to simply

consider the question of accumulation of the sentences on Counts 1 and 3 in isolation,

without considering the overall sentencing approach taken by the primary judge. If

viewed in isolation, there may be some merit to the proposition that the accumulation of

12 months of the sentence imposed on Count 3 on that imposed on Count 1 is beyond

that required to reflect the overall criminality reflected in those two offences. When

viewed as part of the overall sentencing structure imposed by the primary judge, we

are not satisfied that the appellant has demonstrated error.

60. This ground of appeal does not succeed.

21

Ground 2 (b) – Purity of the drugs

61. The appellant submitted that the primary judge did not, at all or adequately, take

account of the purity of the three types of drugs in fixing the sentences of imprisonment

for each count. In particular, he submitted that the primary judge did not set out

whether the purity affected the assessment of the objective seriousness of the

offences. The appellant observed that while the total mixed weight for the MDMA

(Count 2) was 19.23 g, the weight of pure MDMA was 3.68 g which is below the 10 g

threshold for the trafficable quantity of the substance, set in Item 124 of Part 1.2 of

Schedule 1 of the Criminal Code Regulation 2005 (ACT) (Criminal Code Regulation).

The total mixed weight for the methylamphetamine (Count 3) was 57.28 g but the

weight of the pure substance in the mixture was found to be either 4.83 or 4.31 g,

below the 6 g trafficable quantity threshold in Item 44 of Part 1.1 of Schedule 1.

62. The appellant referred us to paragraphs [26] and [27] of the decision of this Court in

Zdravkovic:

The central purpose of sentencing in most drug supply matters is to deter the dissemination of drugs in the community and thereby prevent harm to the community. For this reason, the quantity and purity of drugs is relevant to a determination of objective seriousness. Regardless of a drug supplier’s knowledge about quantity and purity, both considerations are relevant to the sentencing purposes of general deterrence and protection of the community…

…it is commonly the case that persons involved in drug supply (for example, couriers) do not know the nature, quality and purity of the drug that they are helping to disseminate. Consequently, lack of specific knowledge about drug quantity or purity will not usually be an important consideration in sentence. Where an offender does not know the quantity and purity of the drug, quality and purity remain relevant and important to sentencing purposes such as protection of the community: Pham v The State of Western Australia [2011] WASCA 244.

63. The appellant acknowledged that the primary judge referred to the purity of each of the

drugs in his sentencing remarks. The relevant passage is to be found at paragraphs

[11] and [12] of the sentencing remarks, R v Nchucki (No 2) [2017] ACTSC 387

(Nchucki (No 2)):

11. I am satisfied beyond reasonable doubt that the offender’s motivation in trafficking in controlled drugs was to derive a profit from their sale.

12. I do not know where the offender fits into the hierarchy. There is no evidence that he has employees or associates in the distribution of drugs. The approximate value of the drugs seized was not particularly high. As much as it can be determined from the evidence, it appears that the individual sales made were of modest value and to end users or similar persons. The purity of the drugs is equivocal but I will act on the basis that, on balance, it gives some confirmation of these matters. I conclude that the offender was above the typical street level dealer, who might maintain a small stock of drugs for his own use and derive a small profit from sales. Profit was the dominant motivation for the dealing in this case.

64. The appellant submitted that these remarks referred to the purity of the drugs only as

confirmation of the appellant’s position in the hierarchy of drug suppliers, but the

primary judge did not address how the purity should affect the objective seriousness of

the offences. He submitted that this was particularly important to Count 3, where the

appellant possessed a pure quantity of methylamphetamine below the trafficable

threshold and was sentenced to 18 months’ imprisonment.

22

65. The respondent submitted that low purity of drugs can only be taken into account in

mitigation where it is so low as to be considered to be “de minimus”, citing Trajkovski v

The Queen [2011] VSCA 170; 32 VR 587 (Trajkovski) and Kapkidis v The Queen

[2013] VSCA 35 (Kapkidis). The respondent submitted that neither the purity of the

MDMA (19%) nor the methylamphetamine (7.52%) could be described as de minimus.

66. It is convenient to commence consideration of this ground of appeal by referring to the

statutory provisions relevant to offences of the deemed supply of drugs. The offence of

trafficking in a controlled drug is created in s 603 of the Criminal Code. That section

provides for differing maximum penalties for trafficking in a controlled drug depending

upon whether the person traffics in a large commercial quantity of a controlled drug

(s 603(1)), a commercial quantity of a controlled drug (s 603(3)), or simply traffics in a

controlled drug other than cannabis (s 603(7)). There is no separate offence of

trafficking in a trafficable quantity of a controlled drug other than cannabis. The

significance of the concept of a trafficable quantity of a controlled drug is evidentiary. In

s 604 of the Criminal Code it is provided that if, in a prosecution for an offence against

s 603, it is proved that the defendant, inter alia, possessed a trafficable quantity of a

controlled drug, it is presumed, unless the contrary is proved, that the defendant had

the intention or belief about the sale of the drug required for the offence under s 603. A

trafficable quantity of a controlled drug means a quantity of the drug that is not less

than the quantity prescribed by regulation as a trafficable quantity of the drug: s 601,

Criminal Code. In s 601(2) of the Criminal Code the legislature made provision for the

prosecution of offences under Chapter 6 of the Criminal Code with regard to a

controlled drug which forms part of a mixture of substances:

(2) For this chapter, a trafficable, commercial or large commercial quantity of a controlled drug in a mixture of substances is, subject to the regulations –

(a) if the prosecution elects to establish the quantity of the drug in the mixture – the relevant quantity of the drug worked out by reference to the quantity (if any) prescribed by regulation for the pure form of the drug; and

(b) if the prosecution elects to establish the quantity of the mixture instead of the quantity of the drug in the mixture – the relevant quantity of the mixture worked out by reference to the quantity (if any) prescribed by regulation for a mixture containing the drug.

67. The Criminal Code Regulation provides that the trafficable quantities of

methylamphetamine, cocaine and MDMA for the purposes of s 601(2)(a) and (b) are

the same. In other words, the same trafficable quantity applies either to the pure form

of the drug or the quantity of the mixture containing the drug depending upon how the

prosecution elects to proceed. This may initially appear to be counterintuitive, but in

understanding why this is the case it is important to consider the history of the Criminal

Code Regulation. As originally promulgated, the Criminal Code Regulation provided for

trafficable quantities of controlled drugs based on the pure weight of the drug. Section

9 of the Criminal Code Regulation in its present form was inserted by the Criminal

Code (Controlled Drugs) Legislation Amendment Regulation 2014 (No 1) (the

amending regulation). The Explanatory Statement for the amending regulation stated,

with regard to the new s 9:

This clause substitutes section 9 and replaces the existing ‘pure weight’ system of drug enforcement with a ‘mixed weight’ adopted in other Australian jurisdictions. The ability to charge based on the ‘pure weight’ is still available to prosecutors in the event that an offence requires this calculation.

23

A mixed-weight system is a more transparent way of calculating the amount of prohibited drugs. It is also much more practical for law enforcement.

68. The Explanatory Statement also set out the basis for determination of the trafficable

quantities for the various controlled drugs, which, in context, must be a reference to the

trafficable quantity using the mixed weight approach:

The Model Criminal Code Offices Committee of the Standing Council of Attorneys-General addressed the factors that inform the setting of trafficable quantities. The 1998 Report – Chapter 6, Serious Drug offences identified the three factors as central to the grade of criminality of the offence:

the profit expected from illegal activity,

the damage to the community including:

o financial impact through the functioning of a black market and the diversion of funds from legitimate to illegal business enterprises;

o flow on crime such as property crime to finance use and crimes of violence resulting from market competition and disputes;

the damage done to the individual user.

69. There are good policy reasons for placing greater emphasis on the weight of a drug

mixture rather than the pure weight of the drug with regard to trafficking offences.

Where a drug dealer supplies drugs of a particularly low purity, the addiction of the

purchaser is unlikely to be satisfied to the extent that it would if the purity were greater.

This has the potential to increase property crime and crimes of violence in order to

enable a user to purchase more drugs, and has potential for violence arising between

drug suppliers and purchasers. It is too simplistic a proposition that the lower the purity

of the drug trafficked, the less objectively serious the offence.

70. At the heart of the appellant’s submission is the proposition that in determining the

objective seriousness of an offence of trafficking in a controlled drug, the pure weight of

the controlled drug in a mixture will generally be of significance. It may be accepted

that the pure weight of the drug is relevant to sentencing, but much will depend upon

the circumstances of each case. In the present case the analysis urged by the

appellant in determining the objective seriousness of the drug trafficking offences, and

particularly the offence of trafficking in methylamphetamine, was between the pure

weight of the drug and the prescribed trafficable quantity of that drug. Once it is

accepted, as it must be, that the legislative intention of the amending regulation was to

move away from the pure weight of a controlled drug as the basis for determining the

trafficable quantity to a mixed weight approach, the comparison urged by the appellant

between the pure weights of the drugs in the mixtures and the prescribed trafficable

quantities is without significance for the purpose of determining the objective

seriousness of the present offences.

71. That is not to say that the purity of the drug in a mixture is irrelevant for sentencing

purposes. This was expressly accepted by the Victorian Court of Appeal in Trajkovski,

where Weinberg JA (with whom Ashley JA and Hargrave AJA agreed) said:

120. It should not be forgotten that the actual weight of the drug, in its pure state, was miniscule (1.96 grams of methylamphetamine). Although his Honour stated that the low purity of the drug in the mixture was not to be given significant weight in the sentencing process, he cited no authority for that proposition. He noted only that “it ha[d] not been submitted to the contrary”.

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121. In support of his view that the low purity of the drug was of no real significance when it came to assessing the applicant’s culpability, his Honour observed that all drugs proscribed by the Drugs, Poisons and Controlled Substances Act 1981 have deleterious consequences. He added that trafficking in any of them was properly to be regarded as a serious criminal offence.

122. These latter propositions are, of course, supported by the authorities.

123. However, the judge’s earlier statement that the low purity of the drug in the mixture was not to be given significant weight when assessing the applicant’s culpability was, in my view, incorrect. Obviously, the legislature has chosen to treat any drug that is part of a mixture as though the whole of that mixture constituted the drug of dependence. That is clear from the fact that it is the weight of the mixture that determines whether the offence is to be characterised as involving, for example, a commercial quantity, on the one hand, or a large commercial quantity on the other.

124. There is no reason, in principle, why the fact that the mixture contains what is plainly only the most miniscule quantity of a drug of dependence, and is therefore unlikely to produce the deleterious effects normally associated with a much larger amount of that particular drug, albeit in a mixture, should not be regarded as a significant factor to be taken into account in assessing the gravity of the offence.

72. Subsequently, in Kapkidis, the Victorian Court of Appeal, constituted by Maxwell P and

Redlich JA, after referring to the decisions in Trajkovski and Nguyen v The Queen

[2011] VSCA 139 (Nguyen), both of which involved drug mixtures of particularly low

purity, said:

25. In our view, nothing said in Trajkovski and Nguyen detracts from what this Court made clear in [R v Pidoto (2006) 14 VR 269]. There is no place for considering the relative harmfulness of the drug in sentencing an offender for trafficking offences. Where the purity of the amount trafficked is ‘de minimus’ it may be taken into account, but save for such exceptional circumstances, the relative purity of a mixed quantity of a drug of addiction does not bear upon the objective gravity of the offence.

73. The above extract from Kapkidis addressed the argument that the relative purity of a

drug as part of a mixture is only relevant to determining the extent to which the

objective gravity of the offence is reduced by reason of the reduced harm to the

community occasioned by the supply of the mixture only in circumstances where the

purity of the amount trafficked is de minimus. This is consistent with the reference to

the decision in Pidoto. When viewed in this way, there is no conflict between the

authorities referred to by the respondent and the decision of this Court in Zdravkovic.

74. While the appellant submitted that the primary judge had erred by not setting out

whether the purity of each of the controlled drugs within the mixtures affected his

assessment of the objective seriousness of the offences, he did not, with the exception

of Count 3, say how the primary judge should have taken those facts into account as

reducing the objective seriousness of the offences. The appellant’s argument with

respect to Count 3 was based upon a comparison between the pure weight of

methylamphetamine in the mixture and the prescribed trafficable quantity of that

substance. For the reasons which we have given, such a comparison provided no

useful information for the purposes of sentencing. The fact that the pure quantity of

methylamphetamine trafficked by the appellant was less than the trafficable quantity

proscribed as a pure quantity was not a matter of significance. The primary judge

utilised the question of the purity of each of the controlled drugs in the various mixtures

as a circumstance relevant to determining the precise nature of the appellant’s

involvement in the drug trade, which was relevant to determining the objective

seriousness of the offences of trafficking: R v Kalache [2000] NSWCCA 2.

25

75. This ground of appeal also fails.

Ground 2 (d) – The appellant’s drug use and motivation for offending

76. The primary judge made a finding of fact in his sentencing reasons (Nchucki (No 2))

that the appellant consumed drugs and had done so for many years. He went on to

say, at [10]:

I note, however, that his consumption of drugs was not such as to impede the efficient conduct of his business. The offender has run a successful business in the construction industry for approximately nine years. A number of references tendered on sentence confirmed that the offender ran an organised and successful business. I am satisfied beyond reasonable doubt that the offender did not have to sell drugs to fund his own drug consumption. He had the financial resources to fund his habit. Counsel for the offender did not dispute this fact. Indeed it was the basis of his defence to the charges.

77. The primary judge also acknowledged in his sentencing reasons (Nchucki (No 2)) that

there was evidence that the appellant suffered from a medical condition:

25. There is medical evidence before the Court that includes a diagnosis or intimation that the offender suffers from Attention Deficit Hyperactivity Disorder. There is also a CADAS report and a PSR.

26. I have concluded, from this evidence, that the offender must address his issues and follow medical advice if he is to reach his potential and function on a day-to-day basis. The offender shows good insight into its problems. The challenges facing him are not insurmountable and can be overcome. He has already demonstrated a capacity to function at a high level, notwithstanding his drug consumption and, possibly, an undiagnosed and untreated disorder.

….

28. …The offender is not driven to act under compulsion by an uncontrolled addiction to drugs or by an untreatable mental disability. He has the necessary resources to help himself.

78. The appellant acknowledged that the need to fund a drug habit is not an excuse or in

itself a mitigating factor, but it may nonetheless be relevant to any impulsivity of an

offence, to exclude other aggravating motivations for offending and the state of mind or

capacity of an offender to exercise good judgment: R v Henry (1999) 46 NSWLR 346 at

[273]. Drug addiction may also be relevant to the prospects of rehabilitation.

79. The appellant gave evidence during his trial of using amphetamine type substances

every morning and throughout the day to help him stay focused at work for a number of

years leading up to these offences. He said that by 2014 he was using a gram or more

of amphetamines a day and five or more grams of cocaine a day. He submitted that

this evidence was supported by clinical notes from Erindale Health care and the report

of a psychiatrist, Associate Professor Gordon Davies. The gist of the submission made

by the appellant was that the primary judge should have concluded that the appellant

was effectively self-medicating by using amphetamine type substances and cocaine for

the purpose of enabling him to maintain his business and function in everyday life. The

appellant submitted that the primary judge had overstated the level of objective

seriousness of the trafficking offences by treating his motive for committing those

offences as “unadulterated greed”.

80. It is appropriate at this point to consider the report prepared by Associate Professor

Davies and tendered by the appellant in the course of his trial, together with the clinical

notes from Erindale Healthcare. Associate Professor Davies’ report is dated

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29 October 2016. He first saw the appellant when he was admitted to the South Coast

Private Hospital under Associate Professor Davies’ care on 16 June 2016. He

subsequently saw the appellant on three occasions, the most recent being 23

September 2016. The appellant gave him a history of using cocaine and

amphetamines since the age of 24. The appellant said that his use had been

recreational to start with, but that he had then depended on it to keep up with the

demands of his work running a construction company. The accused told him he used

drugs every day for the last 10 years. The appellant told Associate Professor Davies

that the drugs found in his possession in November 2014 were drugs that he “had put

aside for his long-term use”. Associate Professor Davies stated that during the

appellant’s period in hospital, it was apparent that he was having ongoing problems

with attention and concentration which affected his ability to carry out day-to-day

activities. This confirmed Associate Professor Davies’ suspicion that the appellant

suffered from Attention Deficit Disorder and a decision was made to commence

treatment with dexamphetamine. This led to an immediate improvement in his day-

to-day functioning prior to his discharge from hospital. In his summary, Associate

Professor Davies said:

An important feature of Mr Nchouki’s history was that prior to his drug use he had manifested clear symptoms of Attention Deficit Disorder although this had been undiagnosed and untreated. This meant that one of the results of his stimulant use was that he was for the first time able to study and to develop a successful business. This was however at the cost of concomitant other illicit drug use and dependence, as well as an association with other illicit users.

81. Associate Professor Davies made formal diagnoses of Substance Abuse Disorder and

Attention Deficit Disorder.

82. The clinical notes from Erindale Healthcare contain notes of consultations between the

appellant and general practitioners between 20 September 2004 and 24 July 2009. The

notes indicate that during a consultation on 30 July 2008 the appellant gave a history of

long-standing drug use, including cannabis, heroin and cocaine. He was prescribed

medication to help him sleep while attempting to withdraw from the use of cocaine. It

should be noted that the notes of a subsequent consultation on 9 September 2008

record that the appellant was keeping away from illegal drugs, and working in the

building industry. Subsequent consultations show no record of the appellant revealing

or seeking treatment for illicit drug use.

83. The report of Associate Professor Davies supports the proposition that the use of

stimulants (presumably amphetamine-type substances or cocaine) had a beneficial

effect on the appellant’s Attention Deficit Disorder, reducing his problems with attention

and concentration, which in turn enhanced his ability to conduct his business and

improving his functioning in his day-to-day life. Even if it is assumed that this opinion is

correct, Associate Professor Davies does not proffer any opinion as to how much of

any particular stimulant was required to address the appellant’s Attention Deficit

Disorder. The appellant did not give Associate Professor Davies a history of trafficking

in the illicit drugs located at his premises. The history given by the appellant was

consistent with his explanation given in the course of the trial: the drugs located by

police were for his personal use. This was an explanation which was not accepted by

the primary judge, and the appellant has not appealed that finding in these

proceedings. It is inherent in the findings of guilt made by the primary judge regarding

the offences of trafficking that the appellant was in possession of at least some of the

illicit drugs for the purposes of sale to others. The appellant did not give evidence at his

27

sentence hearing, and as such there was no evidence before the primary judge of the

extent to which the drugs located by police may have been for his personal use, and

what proportion of those drugs may have been for sale or supply. The finding of the

primary judge that the appellant did not need to engage in the supply of drugs in order

to satisfy his own drug habit was one which was open to the primary judge. There was

evidence that the appellant had conducted a successful business for some nine years

before these offences. It was, as the trial judge observed, the defence to the charges of

trafficking put forward by the appellant that his business earnings were such as to

enable him to purchase the drugs in question for his own personal use. The primary

judge was entitled to find that the appellant could have funded his own drug use out of

the earnings of his business. Contrary to the submission made by the appellant, the

primary judge did not treat the appellant’s ability to efficiently conduct his business,

notwithstanding his significant drug use, as an aggravating circumstance.

84. At paragraph [11] of his sentencing remarks (Nchucki (No 2)), the primary judge stated

that he was satisfied beyond reasonable doubt that the appellant’s motivation in

trafficking in controlled drugs was to derive a profit from their sale. The appellant’s

complaint is that this finding is effectively that the appellant possessed all of the drugs

for the purpose of supply. The appellant submits that this is inconsistent with the

evidence of Associate Professor Davies that the appellant was self-medicating through

the use of stimulants such as amphetamines and cocaine. There are two responses to

this submission. First, the primary judge, at [11], made a finding as to the appellant’s

motive for trafficking in illicit drugs. This is not the equivalent of a finding that all of the

drugs found in the possession of the appellant were for the purpose of trafficking. The

primary judge did not make any finding to the effect that all of the drugs found in the

appellant’s possession were for the purpose of supply. In fact, the primary judge

acknowledged that the appellant had consumed drugs for many years. The absence of

truthful evidence from the appellant regarding the purpose for which he possessed the

drugs in question deprived the primary judge of the ability to make a clear finding

regarding what proportion of the drugs was for supply and what proportion was for the

appellant’s personal use. Secondly, when the primary judge’s sentencing remarks are

read as a whole it is clear that his Honour did not make a finding that profit was the

sole motive for the appellant trafficking in drugs. After the apparently unqualified finding

at [11] of his sentencing remarks, quoted above, the primary judge went on to say at

[12] that profit was the “dominant” reason for the appellant dealing in drugs.

85. The primary judge accepted that the appellant was an illicit drug user. He had before

him no evidence to enable him to determine what proportion of the drugs found in the

appellant’s possession were for personal use, and what proportion were for supply.

The primary judge was nevertheless obliged to determine the objective seriousness of

the offences, which, inter alia, obliged him to determine where the appellant fitted in the

hierarchy of supply. On the objective evidence the primary judge concluded that the

appellant was above a typical street level dealer, who might maintain a small stock of

drugs for his own use and derive a small profit from sales. It was open to the primary

judge to conclude that, to the extent that the appellant was trafficking in the drugs

found in his possession, his dominant motive for doing so was profit.

86. This ground of appeal must be rejected.

28

Ground 2 (e) – Failure to consider the availability of alternatives to full-time imprisonment

87. The appellant submitted that the primary judge erred by imposing sentences of

imprisonment for Counts 4 and 5, the offences of possessing electric control devices

and possessing a flick knife respectively. The maximum penalty for each such offence

was 5 years’ imprisonment, 500 penalty units or both. The maximum penalty informed

the Court of the penalty prescribed for the worst offence of that type: Markarian v The

Queen [2005] HCA 25; 228 CLR 357 at [31]. The appellant referred us to s 10(2) of the

Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act) which provides that a

court may only sentence an offender to imprisonment if satisfied, having considered

possible alternatives, that no other penalty is appropriate. The appellant submitted that

these offences would fairly sit in the low or low–mid range of objective seriousness for

offences of their kind, and did not warrant sentences of imprisonment. In his

submission, fines would have been adequate.

88. The respondent submitted that the appellant had not developed this ground beyond

asserting that the primary judge should have imposed fines for the offences, in effect

raising a complaint about the sentence that was imposed rather than identifying how

that sentence was incorrect. The respondent submitted that the flick knife was located

in the appellant’s work pants, with a sum of cash, and the electric control devices were

located in the appellant’s vehicle, in a bag also containing a sum of cash and an

amount of methylamphetamine. It submitted that in the circumstances the primary

judge was not in error to impose sentences of imprisonment. In any event, the

respondent submitted, the sentences imposed for these offences were made wholly

concurrent with the sentences imposed on Counts 1 and 3, so that substituting those

sentences with fines would not alter the total sentence.

89. The real complaint of the appellant concerning these sentences must be that the

sentences were manifestly excessive. If the sentences are not manifestly excessive,

the fact that the primary judge did not refer to the provisions of s 10(2) of the Crimes

(Sentencing) Act would not be a sufficient reason to interfere with the sentences. We

will treat this ground of appeal as alleging that the sentences imposed by the primary

judge were manifestly excessive in that he imposed sentences of imprisonment rather

than some other and lesser form of sentence. It is not to the point in considering this

ground of appeal that the aggregate sentence imposed by the primary judge was

structured in such a way that these particular sentences had no effect upon the final

aggregate sentence.

90. In O’Brien v The Queen [2015] ACTCA 47, this Court addressed the principles

applicable to a ground of appeal alleging manifest excess of sentence:

25. The considerations that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:

(a) Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321…

(b) The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499… A sentence which is unreasonable or plainly unjust for no other reason than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason and justice: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 at [61].

29

(c) In approaching the question of whether a sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance while still acting in accordance with principle…

(d) It is not enough that the members of the appeal court would have imposed a different sentence: Markarian v The Queen [[2005] HCA 25;] (2005) 228 CLR 357 at [28]; R v Abbott [[2007] VSCA 32;] (2007) 170 A Crim R 306 at [14]; Balthazar v The Queen [2012] ACTCA 26 at [61].

91. The principles expressed in the above quotation are directed towards manifest excess

in the length of a sentence imposed. The same principles will apply where it is alleged

that a sentence is manifestly excessive by reason of the type of sentence imposed.

92. The legislative purpose in prohibiting the possession of weapons or articles prohibited

under the Prohibited Weapons Act is protection of the public. In determining the

objective seriousness of an offence under s 5 of the Prohibited Weapons Act, of

unauthorised possession of a prohibited weapon, it is necessary to consider not only

the nature of the weapon, but also the circumstances in which it was possessed in

order to determine the danger or potential danger to the public in the particular offence.

In the present case, the evidence revealed that the appellant was a person who was

dealing in illicit drugs. By its nature, such activity involves dealing with criminals. There

is also real potential for violence. This violence will not necessarily be perpetrated by

the drug dealer. The possession of prohibited weapons by people involved in the drug

trade involves significant potential danger to the community. It would be wrong to

describe such offences as towards the bottom of the range of offences of that type. In

our opinion, the sentences imposed by the primary judge have not been demonstrated

to be manifestly excessive.

93. This ground of appeal also fails.

Ground 2 (f) – Failure to take account of the appellant’s plea of guilty to Count 5

94. The appellant submitted that the primary judge made no reference to the relevance of

his plea of guilty to sentencing for Count 5, and did not specify any discount for that

plea. He referred the Court to s 35 of the Crimes (Sentencing) Act, which provides:

35 Reduction of sentence—guilty plea

(1) This section applies if—

(a) an offender pleads guilty to an offence; and

(b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment.

(2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters:

(a) the fact that the offender pleaded guilty;

(b) when the offender pleaded guilty, or indicated an intention to plead guilty;

(c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;

(d) the seriousness of the offence;

(e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement.

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Note For who may make a victim impact statement, see s 49.

(3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.

(4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.

(5) For subsection (2) (b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.

(6) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

(7) In this section:

available documents, in relation to the offence, means any of the following:

(a) any written statements or admissions made for use as evidence at a trial that would have been admissible as evidence at the trial for the offence;

(b) depositions taken at any committal proceeding for the offence;

(c) any written statements or admissions used as evidence in any committal proceeding for the offence;

(d) any other relevant written documents.

defence means—

(a) the offender; or

(b) any lawyer representing the offender.

established facts means facts established by—

(a) evidence given at the trial; or

(b) available documents; or

(c) admissions by the offender; or

(d) submissions made by the prosecution or defence.

95. In Williams v The Queen [2018] ACTCA 4 (Williams) at [52], this Court cited the

immediately preceding decision in Cranfield v The Queen [2018] ACTCA 3 regarding

the allowance of a sentence discount for a plea of guilty:

The context and terms of s 35 (2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a “normal” discount may be inappropriate having regard to the other considerations in s 35 (2) or other circumstances, including those identified by Howie J in [R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1].

96. The appellant submitted that he had a reasonable expectation of a discount for his plea

of guilty, although he accepted that his plea was not made at an early stage. He

submitted that the primary judge’s failure to give reasons for not affording a discount in

itself amounted to a specific error in sentencing.

31

97. The respondent submitted that the provisions of s 35(2) of the Crimes (Sentencing) Act

only require that the Court consider specified matters in relation to the plea of guilty,

and thereafter provides that the Court may impose a lesser sentence: s 35(3). It

submitted that the plea of guilty on Count 5 was a very late plea entered on the

morning of the first day of trial. It further submitted that the prosecution case was very

strong, noting that the knife was found in the appellant’s pants in his home. In addition,

the respondent observed that the sentence imposed for this offence was entirely

concurrent with the sentence imposed in respect of Count 3.

98. The sentencing judge made no reference to allowing the appellant any discount on

sentence on Count 5 based upon his plea of guilty. It must be inferred that his Honour

did not allow any discount. An offender who pleads guilty to an offence will ordinarily

have an expectation that their plea will result in a reduction of sentence, but a reduction

of sentence is not inevitable. As this Court observed in Williams, the primary policy

consideration that determines the degree of discount for a plea of guilty is the utilitarian

value of the plea, which will largely be determined by the timing of the plea. In the

present case, the appellant was facing trial on three charges of trafficking in drugs, as

well as another charge of possession of a prohibited weapon (the electric control

devices). All of those charges proceeded to trial. It was open to the primary judge to

conclude that the appellant’s plea of guilty to one charge of possession of a prohibited

weapon (the knife) on the first morning of the trial had virtually no utilitarian value. In

addition, it is abundantly clear that the case against the appellant on this charge was

overwhelming. In our opinion, the primary judge was not obliged to reduce the

appellant’s sentence for this charge by reason of his plea of guilty. It should

nevertheless be observed that where a sentencing judge determines not to reduce an

otherwise appropriate penalty to reflect a plea of guilty, he or she should clearly state

what they are doing and why. Even if it were a specific error on the part of the primary

judge not to give reasons for declining to reduce the appellant’s sentence on Count 5

by reason of his plea of guilty, we would not interfere with the sentence imposed by his

Honour.

Ground 2 (g) – Manifestly excessive sentences

99. The appellant submitted that the aggregate sentence imposed by the primary judge

was manifestly excessive and/or plainly unjust. He referred to his subjective

circumstances at the time of sentencing and to the objective circumstances of the

offences:

…the Appellant was 37 years old with essentially no criminal antecedents of relevance, from either before or after committing the relevant offences. Several character testimonials tendered at the sentence hearing spoke of his high regard in family life and the construction industry in which he built and owned a successful business. He was married with two children at the time of offending.

At the time of offending he had been dealing with long-standing methylamphetamine and cocaine addictions which Professor Davies said he had used in treating his undiagnosed Attention Deficit Disorder. The Appellant had actively addressed these addictions through participation in a comprehensive detoxification and rehabilitation program and he had remained drug-free since he was prescribed dexamphetamine.

All offences were confined to possession on 26 November 2014, more than 3 years prior to his sentencing. The Appellant had not reoffended in those 3 years.

Admissions tendered during the sentence hearing of his association with the Nomads Motorcycle club showed this role commenced around 15 months after the sentences were

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committed and ceased around 5 months prior to being sentenced. His Honour found any risk of reoffending would be no higher than medium or moderate if the Appellant continued not to associate with the club.

The Appellant pleaded guilty to Count 5 on the Indictment at the commencement of the trial. He assisted investigating police by participating in discussions during the execution of the search warrant and assisted in the administration of justice by making a number of formal admissions early in the trial, including admitting possessing the illicit substances and other prohibited items, and in otherwise significantly limited issues in dispute.

The Appellant was a man of otherwise good character and respected businessman within the community. He had demonstrated good prospects of rehabilitation by the time of the sentence hearing.

In terms of objective seriousness, 2 of the 3 trafficking offences had pure weights below the deemed threshold for trafficking. A not insignificant amount of the drugs possessed by the Appellant were for personal use. Any profits derived from the sales were small...

100. The appellant submitted that the sentences imposed by the primary judge did not fairly

reflect the finding that the appellant “was above the typical street level dealer”: Nchucki

(No 2) at [12]. He submitted that the total sentence of three years’ imprisonment with a

non-parole period of 20 months was unreasonable or plainly unjust having regard to

the objective seriousness of the offences, the appellant’s lack of antecedents, his

successful rehabilitation from drug addiction and other mitigating factors. He further

submitted that the primary judge should have considered alternatives to full-time

imprisonment including a suspended sentence or an intensive corrections order.

101. The respondent referred the Court to the decision in Bui v The Queen [2015] ACTCA 5,

where this Court referred to relevant principles in sentencing drug traffickers at [41]:

Some principles that have been identified in the authorities concerning the sentencing of drug traffickers include:

(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell [[2002] NSWCCA 34;] (2002) 128 A Crim R 44 at 50; [33].

(b) While, as decided in Wong v The Queen at 609; [67] – [70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan [[2004] NSWCCA 342;] (2004) 147 A Crim R 430 at 438; [34].

(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly [[2002] NSWCCA 300;] (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.

102. The respondent submitted that the primary judge dealt with each of these

considerations in turn. The findings made by the primary judge were:

(a) the quantity of the substances were significant, being multiple times the

trafficable quantity;

(b) the dominant motive for the appellant trafficking in illicit drugs was profit; and

(c) the appellant’s role was above that of a street level dealer.

103. The respondent also noted that the maximum penalty for each of the trafficking

offences was 10 years’ imprisonment and/or a fine of $150,000.00. The maximum

penalty for the remaining offences was 5 years ‘and/or a fine of $75,000.00.

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104. The respondent submitted that the primary judge’s sentencing remarks revealed that

he had taken into account matters now raised by the appellant, such as his age, limited

criminal history, character references and prospects for rehabilitation. The respondent

submitted that notwithstanding the appellant’s lack of relevant prior convictions, the

offences of which he was convicted were serious. The trafficking offences involved

significant quantities of drugs. It submitted that general deterrence was highly relevant,

as was denunciation of the appellant’s conduct and the need to hold him accountable

for his actions. The respondent also submitted that the appellant had not demonstrated

any remorse for his offending, maintaining his denials up to the point of sentencing.

105. Regarding the appellant’s submission that the primary judge should have considered

an intensive corrections order, the respondent submitted that the appellant’s trial

counsel had conceded that a period of full-time imprisonment was appropriate. No

application for an assessment of the appellant for an intensive corrections order was

made by the appellant’s trial counsel. Rather, the appellant’s counsel submitted that

full-time imprisonment with a period suspended was the appropriate disposition. An

intensive corrections order cannot be imposed in combination with a sentence of full-

time imprisonment or a suspended sentence: Crimes (Sentencing) Act, s 80. The

approach to be taken by this Court with regard to a submission made for the first time

in this Court that an intensive corrections order should have been considered in

sentencing, was recently considered in Samani v The Queen [2017] ACTCA 23. The

Court stated, at [30]:

30. The Court firstly observes that, in Zhuang v Director of Public Prosecutions (DPP) (NSW) [2016] NSWCCA 27 at paragraph [39], the New South Wales Court of Criminal Appeal noted that:

There is a practical expectation that an offender’s legal representative will make submissions to the sentencing Judge at first instance by reference to the particular factors which are sought to be taken into account on sentence.

31. The motivation necessary to re-examine a sentence where a matter was not, but should have been, argued in the court below was discussed in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81]:

The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgement and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not likely entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13], [18]; Bayram v R [2012] VSCA 6 at [28] – [29].

106. The respondent submitted that where it was conceded by counsel for the appellant in

the course of the sentence proceedings that a term of full-time imprisonment was

appropriate, it was not an error for the primary judge not to consider an intensive

corrections order. This was particularly so, it submitted, in circumstances where an

intensive corrections order could only be imposed with the consent of the appellant,

and the appellant’s trial counsel did not submit to the primary judge that the appellant

was prepared to consent to such an order.

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107. The respondent further submitted that consideration of previous sentences imposed for

this type of offending did not suggest that the sentences imposed by the primary judge

were outside the range available. In that regard, both the appellant and the respondent

referred this Court to a number of previous decisions in which sentences were imposed

for similar offences. It is fair to say that some of the sentences imposed were more

severe than those imposed by the primary judge, some were comparable and some

were less severe. The cases to which we were referred merely reinforce the

proposition that there is no single correct sentence for offences of trafficking in a

controlled drug. What is important is not numerical equivalency in sentencing different

offenders for a particular type of offence, but consistency in application of principle: Hili

v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520.

108. In Buxton v R [2017] NSWCCA 169 the New South Wales Court of Criminal Appeal

reiterated principles relevant to determining an appeal based upon a ground alleging

manifest excess of sentence. At [79] – [81] the Court said:

79 As has been pointed out on many occasions, a sentence which is manifestly excessive is one that is unreasonable or plainly unjust such that it is to be inferred from the result that there was a failure to properly exercise the discretion of the law reposes in the court of first instance: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [26] – [27].

80 In this context to matters must be remembered. First, it is not the function of an appellate court to substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28].

81 Second, intervention on the ground of manifest excess is not justified simply because the result arrived at is manifestly different from the result in other cases, but only where the difference is such that in all the circumstances the appellate court considers that there must have been an error, even though when and how is not apparent from the statement of reasons: Hili v The Queen; Jones v The Queen supra at [59]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]. In this context, as was pointed out in Barbaro supra at [28], the conclusion that an error has (or has not) been made neither permits law requires setting the bounds of the range of sentences within which the sentence should have fallen.

109. It is not possible to infer from the aggregate sentence imposed by the primary judge

that there was a failure to properly exercise the sentencing discretion. A sentence of

three years’ imprisonment with a non-parole period of 20 months for offences of

trafficking in reasonably substantial amounts of cocaine, methylamphetamine and

MDMA cannot be said to be outside the range of aggregate sentence available in the

proper exercise of the primary judge’s sentencing discretion. The aggregate sentence

imposed by the primary judge was only 30 per cent of the maximum penalty available

on any one of the three trafficking charges. In his sentencing remarks the primary judge

referred to all relevant facts and circumstances regarding the trafficking offences. It

was conceded by the appellant’s counsel in the sentence proceedings before the

primary judge that sentences of imprisonment were appropriate. It was no part of the

appellant’s submissions to the primary judge that the requirements of sentencing would

be adequately addressed through the imposition of an intensive corrections order, and

this Court should resist the temptation to revisit that issue.

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110. We are not satisfied that the aggregate sentence imposed by the primary judge was

manifestly excessive, and this ground of appeal should be dismissed.

Conclusion

111. The appeals against conviction and sentence should be dismissed.

I certify that the preceding one-hundred-and-eleven [111] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Acting Chief Justice Burns and Justices Loukas-Karlsson and Bromwich.

Associate:

Date: 6 July 2018