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Mason (a pseudonym) v The King [2023] VSCA 75

The offender was sentenced following a plea of guilty to 1 count of importing a commercial quantity of a border controlled drug. Offending related to approximately 960 kilograms of methylamphetamine and 22.8 kilograms of heroin. Original sentence imposed 11 years imprisonment with a non-parole period of 7 years. Offender appealed on the grounds that the head sentence and non-parole period were manifestly excessive, and that the judge erred by failing to specify the non-parole period that would have been fixed but for the offender’s undertaking to cooperate.

  Manifest Excess: Offender commences their submission by focusing on the imputed ‘head sentence’ of 29 years imprisonment that the judge had identified for the combined purposes of s 16AC of the Crimes Act 1914 (Cth) and s 6AAA of the Sentencing Act 1991 (Vic). Offender submitted that, unlikely a s 6AAA statement, a s 16AC declaration is not a ‘notional’ figure but forms part of the sentence. Offender’s argument fails at every level, primarily because it focuses on the wrong subject matter. The sentence imposed was 11 years, not 29 (or 22) years. It is that sentence that must be shown to be manifestly excessive. The argument proceeds on a misunderstanding of the role of s 16AC. In every case, in which a judge quantifies a discount for cooperation, the ground of manifest excess will not be made out by arguing that a different weighting should have been given or that the hypothetical alternative is too high. The question is whether the sentence imposed is manifestly excessive and attention must be directed to the outcome rather than the process of reasoning. The s 16AC figure, which is hypothetical, does not represent a ‘head sentence’ nor does it convert the sentence imposed here to a sentence of 22 years (being the amount attributed by the judge for offender’s cooperation).  There is no occasion to ask whether the figure under s 16AC is manifestly excessive. The only question is whether the head sentence of 11 years imprisonment or the non-parole period of 7 years are manifestly excessive. Balancing all of the factors, it may be concluded that the sentence actually imposed was well within range.

  Non-parole Period: Offender submits that s 16AC(2)(b) required the sentencing judge to specify the non-parole period that would have been fixed but for the reduction owing to offender’s undertaking to cooperate with law enforcement agencies. If there has been an impact on both the head sentence and the non-parole period (which will be the usual case) the sentencing judge must specify how each element had been affected. The sentencing judge did not adopt that course in this case. Rather, they specified what would have been the sentence without referring to the non-parole period. It follows that the sentencing judge erred in the application of s 16AC. The specification required under s 16AC is not a sentence within the meaning of the Crimes Act nor is it a sentence for the purposes of s 278 of the Criminal Procedure Act 2009 (Vic). At the time it is pronounced it has no legal effect on the person. It follows that the failure to make the specification is not an error in the sentence. It is not tenable to contend that the failure to specify the hypothetical non-parole period materially affected the actual sentence imposed such that there was an error in that sentence.

  Leave to appeal granted. Appeal dismissed.
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