and David Vozlic v The Queen
[2013] VSCA 113
•8 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0217 | |
| DAVID VOZLIC | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY, REDLICH and PRIEST JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 May 2013 | |
DATE OF JUDGMENT: | 8 May 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 113 | |
JUDGMENT APPEALED FROM: | R v Vozlic (Unreported, County Court at Mildura, 7 September 2012) | |
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CRIMINAL LAW – Sentence – Trafficking simpliciter in amphetamines over eight month period – Commercial quantity – Pecuniary Penalty Order by consent – Vacating order as facts did not support conclusion that profit had been made – Predetermined general view not to accept assertions from Bar table and contents of psychological reports that appellant’s drug use contributed to offending in the absence of ‘cogent admissible evidence’ – Error in general approach to factual question – Observations about reference to content of witness statements in Crown opening – Appeal allowed – Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T Kassimatis | Valos Black & Associates |
| For the Respondent | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I ask Redlich JA to give the first judgment.
REDLICH JA:
The appellant pleaded guilty in the County Court at Mildura on 1 September 2012 to one charge of trafficking in a drug of dependence and one charge of threat to kill. On 7 September 2012 he was sentenced as follows:
Charge Number
Offence
Maximum
Sentence
Cumulation
1
Trafficking in a drug of dependence
(s 71AC of the Drugs Poisons and Controlled Substances Act 1981)
15 years’ imprisonment
3 years
9 months’ imprisonment
Base
2
Threat to kill (s 20 of the Crimes Act 1958)
10 years’ imprisonment
6 months’ imprisonment
3 months
Total Effective Sentence:
4 years’ imprisonment
Non-parole Period:
2 years 6 months’ imprisonment
Pre-sentence detention declared:
207 days
6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years.
Other relevant orders: Pecuniary Penalty Order of $31,000.
The sole ground of appeal on which the appellant was granted leave relates to the individual sentences on Charge 1, the total effective sentence and the non‑parole period, all of which are said to be manifestly excessive in lights of the constellation of mitigating factors being the appellant's absence of prior conviction, his early plea of guilty and his good prospects for rehabilitation.
Between 15 September 2010 and 20 April 2011, the appellant and his co‑offender, LD, engaged in commercial trafficking of amphetamine in Mildura. LD also pleaded guilty to trafficking in a drug of dependence and was sentenced at the same time as the appellant. LD was sentenced to two years and nine months' imprisonment, wholly suspended.
The appellant was aged 41 at the time of the offences and LD was significantly younger. The appellant, who had access to a significant supply of drugs, supplied LD with about one ounce of amphetamine each week, 31 weeks, between those dates. LD and his girlfriend would purchase the amphetamine from the appellant and then on sell it to other persons either in that quantity or in other quantities after diluting their purity.
The estimated cost of the 31 ounces of amphetamine was $173,600 with a profit which the Crown said, in opening, was somewhere between $31,000 and $49,000. The judge ordered, by way of pecuniary penalty, that the appellant pay $31,000. By virtue of s 5(2A)(d) of the Sentencing Act1991, the court must not have regard to the pecuniary penalty order to the extent to which it related to profits derived from the commission of the offence. For reasons that hereafter appear, that order should now be vacated.
The brief facts as opened by the prosecution disclose that on 18 April 2011, LD met a covert operative in a McDonald's car park in Mildura and agreed to sell him one ounce of amphetamine. After the transaction had been completed, the police executed a search warrant for LD's home address and seized approximately three grams of amphetamine and other drug paraphernalia. LD was arrested. The prosecution further submitted that LD and his girlfriend had been approached by the appellant in September 2010 to sell amphetamines for the appellant. They agreed to an arrangement whereby the appellant would supply the drugs and they would on sell it to friends for profit. At some point around Christmas, he took delivery of an unknown quantity of amphetamine on behalf of the appellant from premises in Adelaide and delivered that substance to Mildura.
While the total amount trafficked by the appellant was in excess of a commercial quantity, the prosecution was unable to establish beyond reasonable doubt that the appellant had the intent to traffic in a commercial quantity from the beginning of the period of the charge.[1] Hence the charge of trafficking simpliciter.
[1]R v Mustica (2011) 31 VR 367.
Charge 2 relates to threats made by the appellant to LD. LD owed the appellant approximately $12,000 and had been threatened by the appellant in relation to this debt. Police intercepted a series of telephone calls made by the appellant to LD on 29 April 2011 in which the appellant made threats to kill LD saying, among other things:
I'll tell you why you're out, you're out because you're fucking going to die. I'm coming to get you, all right? I'm coming to get you.
Something should be said about the form of the prosecutor's opening which became Exhibit 1. The matters relevant to the appellant's offending were identified by referring to various assertions of fact of various witnesses contained in the police statements. That is an inappropriate way in which agreed facts should be presented to a sentencing judge. Fortunately, it did not give rise to any dispute in the present case, but it is not a practice that should be continued.
The sentencing judge accepted that the appellant was an intelligent, mature man with no prior convictions, of a stable working history and strong filial support. He concluded that the appellant had good prospects of rehabilitation. These matters in mitigation and his early guilty plea were to be synthesised with the objective seriousness of the offending and the appellant's moral culpability. His Honour found that notwithstanding the appellant’s previous good character and prospects of rehabilitation, by engaging in drug trafficking for profit, his moral culpability was high which made general and specific deterrence significant sentencing factors in the calculus.
In his written case the appellant submitted that, having found that the appellant had good prospects of rehabilitation and that he 'may have been a user of amphetamine', his Honour ought to have set a significant parole period to assist the appellant in rehabilitation from his drug use. He submitted that in light of current sentencing practice, the individual sentence on Charge 1, the total effective sentence and non‑parole period were beyond the permissible boundary, and referred the Court to sentencing statistics. Those statistics show that the median principal sentence for trafficking a drug of dependence in the higher courts for 2006 to 2011 was two years and six months, and the most common term of imprisonment imposed was two years to less than three years. However, it is to be noted that his Honour had indicated, during the prosecutor’s submission on the plea that he considered a sentence of four years was within range. The prosecutor had agreed. Counsel for the appellant, having initially submitted that a partially suspended sentence was appropriate, did not, in reply, take issue with that view.
In the appellant's written case, he took issue with the following remarks made by the sentencing judge:
You were engaged in the business of drug trafficking for profit and you enlisted a young drug addicted person, and others, to carry on that business. In my opinion, your moral culpability for your offending may properly be described as high.
It was said that the sentencing judge had given excessive weight to the commercial nature of the offence of drug trafficking and the appellant's role as organiser and profiteer. The appellant stated in his written case that while drug trafficking necessarily involves sales and profit, in this case the appellant was owed $18,000 for drugs sold on credit by LD, and was owed another $12,000 by LD and his girlfriend, so that any commercial gain the appellant had obtained was undermined by these debts. During the course of oral argument on the appeal, the appellant’s counsel sought to further develop this aspect of the written case. He challenged the basis upon which the pecuniary penalty order had been made and contended that as a consequence of the order the sentencing judge had failed to give due weight to the fact that the appellant had in fact derived no profit from his trafficking. This argument rested upon the agreed facts that the co‑offender owed the appellant $18,000 for drugs sold to another, and owed the appellant a further $12,000 for drugs which he and his girlfriend had obtained from the appellant. Thus, it was submitted that as the appellant had not received any part of the $30,000 and was never likely to recover it, there was no 'profit' derived from the commission of the offence that could substantiate the order.
The sentencing judge had been requested by the Crown to make the pecuniary penalty order. It was consented to by counsel for the appellant on the plea. No criticism can be made of his Honour who dealt with the matter in the manner requested by the parties. Senior counsel, who now appears for the Crown, with his customary fairness, submitted that ‘as the appellant had not received what he was required to pay under the order’, the pecuniary penalty order should be vacated. The Crown now conceding that no profit could be established, I would vacate the pecuniary penalty order that was made.
There no longer being the impediment of a pecuniary penalty order, counsel for the appellant sought leave to add a further ground of appeal to the effect that the sentencing judge did not give any weight to the fact that the amount of $31,000 was not in truth profit derived by the appellant from his offending. No objection being taken to that course I would grant leave to add such a ground.
The appellant thus contended that he was sentenced on the basis that he had made a profit from his trafficking, when in fact there was no evidence of any betterment by the appellant. In reply, senior counsel for the Crown argued that although the sentencing judge in his sentencing remarks had referred to the appellant making a profit from his activity in the order of $31,000 to $49,600 – a matter opened by the prosecution without objection – the sentencing judge had also recognised that the appellant was owed $18,000. It was said that his Honour must also have recognised that the appellant’s motivation for the threat to kill, being the second charge, was an attempt to recover what the appellant was owed by his co-offender. However, it is evident from the sentencing remarks that his Honour did proceed on the basis that the appellant had derived a not insignificant amount from this trafficking, and that its profitability bore upon the sentence to be imposed. It is not surprising that his Honour made such findings given the prosecution opening, the consent pecuniary penalty order and the fact that the appellant’s counsel did not take issue with the proposition that the appellant had obtained a profit from his trafficking. However, the new argument on appeal has shown there was no basis for a finding that the appellant made any significant profit.
I turn then to a second asserted error. On the plea counsel for the appellant submitted that the appellant had lapsed into serious drug addiction by the time of his offending which contributed to his offending. She also relied upon the psychological report in which it was said that at the time of the offending the appellant was addicted to amphetamine. His Honour, at an early stage of the plea, informed the appellant's counsel that ‘in cases of this type’ he would require ‘cogent admissible evidence’ before he would accept that a person who had pleaded guilty ‘ought to be entitled to mitigation of penalty because of drug use.’ His Honour wished to put counsel on notice that submissions from the Bar table or assertions in a report ‘would be approached with a great degree of scepticism and caution.’ Neither party took exception to this general approach.
It is not clear what the appellant’s counsel contemplated might constitute ‘cogent admissible evidence.’ Although the appellant was present in court his counsel stated that she was unable to adduce such evidence. His Honour repeated during the course of the plea on further occasions when the appellant’s counsel made reference to the appellant’s drug addiction during his offending, that he would not act upon such an assertion in the absence of cogent evidence.
In his sentencing remarks his Honour accepted that the appellant ‘may have been a user of amphetamines’ but did not accept that the drug use was a reason for the appellant's offending or that its use impaired the appellant's understanding of the seriousness of what he was doing.
During oral argument on appeal it was submitted that a general approach in these types of cases not to accept submissions from the Bar table or the content of any psychological report, that an offender had an addiction which entitled him to some mitigation of penalty unless proven by cogent admissible evidence was productive of error. Senior counsel for the Crown readily acknowledged that to adopt a general approach as to the nature of the proof required to establish the offender’s drug addiction and to refuse to accept such an assertion of fact from the Bar table was inappropriate. That concession was rightly made.
It has long been the practice that counsel for the accused on the plea for mitigation of penalty will advance facts from the Bar table which are not the subject of evidence. Where those facts are not challenged by the prosecutor, the sentencing judge may, but is not obliged to accept those facts. In R v Storey[2] this court referred to the practice of acting upon facts not the subject of evidence which are relied upon in submissions from the Bar table as follows:
We have spoken of ‘proof’. Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the bar table and we see no reason why that practice should not continue. We are not to be taken as suggesting any departure from current practices on sentencing hearings. As we have said, judges can, and commonly do, act in such hearings on matters that are not proved by evidence that would be admissible at trial. There will, however, be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence.[3]
[2][1998] 1 VR 359.
[3]Ibid 371 (Winneke P, Brooking, Hayne and Callaway JJA and Southwell AJA).
Unless it is inherent from the proceeding that a fact is likely to be in issue,[4] a sentencing judge will ordinarily inform counsel if the judge is of the view that a fact advanced by counsel may not be accepted unless established by formal evidence.[5] It is, however, a matter for the judge what particular facts in a particular case should be proved. But to approach a particular category of facts in a type of case from the predetermined perspective that an assertion from the Bar table or the content of a report as to the existence of that fact will not be accepted in the absence of formal proof of that fact does not accord with the established practice to which I have referred. A judge should not ordinarily, at the commencement of proceedings, have a predisposition towards the acceptance or rejection of a particular category of fact. Where that occurs, the apprehension may arise that the judge will not dispassionately consider the material which is available in support of or against the fact in issue.
[4]Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492.
[5]Davey v The Queen [2010] VSCA 346, [27]–[29] (Redlich JA).
Counsel here wished to rely upon the fact, supported by the psychological report, that the appellant had a drug addiction which contributed to his offending. In The QueenvKoumis& Ors[6] this Court said:
Whether the motivation of the drug addict who traffics solely to feed their habit is viewed as the absence of aggravating circumstances or as a mitigatory circumstance, one would ordinarily expect some differentiation between the sentence imposed on such an offender and one who was motivated purely by greed. The authors of sentencing, State and Federal law in Australia, identify a number of factors that may explain why the sentence for an addict will be usually be lower.[7]
[6](2008) 18 VR 434.
[7]Ibid 436 [50]; see also Storey, 365.
The vice in the general approach taken by his Honour is illustrated in the present case. It served to undermine the current practice of heavy reliance being placed by judges upon unproven facts asserted by counsel from the Bar table.[8] Those facts commonly concern matters personal to the offender. They may also bear upon the circumstances of the offending. This predetermined approach negated the purpose served by the admission into evidence of psychological reports. It gives rise to a reasonable apprehension that no or insufficient regard will be given to whether the content of the submission or the report asserting that fact are sufficient to justify acceptance of the fact.
[8]Storey, 371.
A fact such as drug addiction is a circumstance of the offender which will often have an intrinsic relevance in the sentencing process.[9] The causal relationship between drug addiction and the nature and level of trafficking are relevant circumstances in the sentencing process.[10] If the absence of drug addiction is to be used in a manner adverse to the offender – to support the conclusion that the trafficking was motivated solely out of greed and not to feed a habit – then proof of its absence is required to the criminal standard.[11]
[9]Storey, 365.
[10]The Queen v Koumis (2008) 18 VR 434, 435–436 [49] (Redlich and Kellam JJA, and Osborn AJA).
[11]R v Storey [1998] 1 VR 359; R v Olbrich (1999) 199 CLR 270; Weininger v R (2003) 212 CLR 629.
Counsel had informed the sentencing judge that the appellant was addicted to amphetamine at the time of offending, was in substantial debt and had turned to the selling of the drug. The appellant had not then been in any meaningful employ and had no assets. The psychologist's report, which was tendered as an exhibit on the plea, set out the level of the appellant's drug use during the period of his offending, and detailed its profound affects upon him. Further, the appellant's sister gave evidence that at the time the appellant came to live with her, shortly after the offending, she had observed a noticeable change in his appearance and demeanour. Notwithstanding this body of material, the sentencing judge, while accepting that the appellant may have used amphetamines, excluded the applicant's drug use as any explanation for his offending.
If there were reasons based upon the circumstances of the case which supported the view that the applicant’s drug addiction did not contribute to his offending, they were not identified in the sentencing remarks. Senior counsel for the Crown was unable to suggest during the course of oral argument why his Honour should not have accepted the facts asserted from the Bar table or the evidence in the report supplemented by the evidence of the appellant’s sister’s observations.
In the absence of evidence to the contrary the judge could not be satisfied to the criminal standard that the appellant did not have an addiction which contributed to his offending. The prominent explanation for the impugned finding thus lay in the judge’s predisposition not to accept statements made from the bar table or in a report on such an issue. The matters placed before his Honour should at least have led to the conclusion that one motivation for the appellant's trafficking was to obtain funds to satisfy his addiction. As there were both submissions and evidence of a causal relationship between his addiction and his offending, some qualification was required to the adverse finding in aggravation of his offending that the appellant’s trafficking was soley for the purpose of enrichment.[12]
[12]Such an unqualified finding was not open on the state of the material on the plea.
I therefore consider that material errors in the sentencing process have been established. I turn to consider whether a different sentence should be imposed. References to sentencing statistics are of limited assistance. As had been said on countless occasions, reliance on statistical surveys wrongly focuses on 'numerical or mathematical equivalents' rather than on 'the application of relevant legal principles.'[13]
[13]Hili v The Queen (2010) 242 CLR 520, 527 [18].
In the case of trafficking simpliciter, statistics will convey very little. While the head sentence of three years and nine months for Charge 1 is above the median sentence imposed for that offence, statistics reveal that sentences between three to five years are not uncommon. A single count may vary from a very small amount trafficked on one occasion to a large amount, as here, in excess of a commercial quantity, trafficked over a protracted period.
Although the appellant in his written case complained as to the weight which the sentencing judge placed on the commercial nature of the drug trafficking operation, his Honour rightly had regard to the quantity of drugs sold and the nature of the business conducted. It was correct to describe the appellant as involved in a commercial trafficking operation. The appellant had managed the operation and recruited LD, a drug addict, almost 20 years his junior, to distribute the amphetamine. His co‑offender was above a street level trafficker. The appellant occupied a higher position in the hierarchy which gave him access to large quantities of the drug with the prospect of profits. The findings made by the sentencing judge as to the objective gravity of the offending, as the appellant’s counsel acknowledged, placed it toward the higher end of the range of sentences for trafficking simpliciter.
However, his Honour, as I have said, did not find that the appellant had an addiction or that the addiction contributed to his offending. He also sentenced the appellant on the basis that he had made a significant profit. Taking into account the constellation of mitigating factors and that the offending was driven in part, by the appellant's drug addiction and that no profit from that activity, in fact, had been established, I would impose a different sentence.
On Charge 1, I would fix a sentence of three years' imprisonment. On Charge 2, I would fix a sentence of six months' imprisonment. I would order that three months of the sentence on Charge 2 be cumulated on the sentence on Charge 1, making a total effective sentence of three years and three months' imprisonment. I would order a non‑parole period of two years.
ASHLEY JA:
I agree for the reasons given by my brother Redlich that this appeal should be allowed and the appellant re‑sentenced as his Honour proposes.
PRIEST JA:
I also agree.
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