Arnautovic v The Queen
[2012] VSCA 112
•14 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0608 | |
| DRAGAN ARNAUTOVIC | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WARREN CJ and REDLICH and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 1 May 2012 | |
DATE OF JUDGMENT: | 14 June 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 112 | |
JUDGMENT APPEALED FROM: | R v Arnautovic (Unreported, County Court of Victoria, Judge Smallwood, 30 April 2009) | |
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CRIMINAL LAW – Sentence – Trafficking in drug of dependence – Possession of a drug of dependence – Offences committed while on parole – Parole cancelled after sentence – Almost 3 years of original sentence to be served – Totality – Re-sentenced – Reduced head sentence and non-parole period – Sentencing Act 1991, ss 5(2AA) and 16 (3B).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P F Tehan QC | Defteros Lawyers |
| For the Crown | Mr M Roper | Mr C Hyland, Solicitor for Public Prosecutions |
WARREN CJ:
I have had the benefit of reading in draft form the reasons for judgment of Hansen JA. I agree with his Honour, for the reasons that he gives, that the application for leave to appeal should be granted, the appeal allowed, and the applicant resentenced as proposed by his Honour.
REDLICH JA:
I also agree with Hansen JA.
HANSEN JA:
The applicant pleaded guilty in the County Court to one count of possession of a drug of dependence (heroin) and not guilty to one count of trafficking in a drug of dependence (heroin). Following a trial, he was found guilty of the trafficking count. On 30 April 2009, following a plea in mitigation, the applicant was sentenced to terms of imprisonment of 10 years for trafficking (count 1) and 2 years for possession (count 2). The latter sentence was made wholly concurrent, hence the total effective sentence was 10 years. The judge fixed a non-parole period of 8 years.
The offences were committed while the applicant was on parole, under a sentence for trafficking a commercial quantity of heroin. At the date of sentence, the applicant’s parole had not been cancelled; accordingly the judge sentenced him on the basis that he could not speculate as to whether the applicant might serve additional time in the event that his parole was cancelled.[1] However, on 13 May 2009 the Adult Parole Board cancelled the applicant’s parole, with the applicant still owing a further 2 years, 11 months and 30 days under the earlier sentence.
[1]Sentencing Act 1991, s 5(2AA)(a).
In these circumstances, the Crown concedes that the sentencing discretion is reopened and that the applicant must be resentenced, having regard to the fresh evidence to the effect that he may be required to serve the whole of the period of effectively 3 years remaining under the earlier sentence.
The applicant’s written case raised further grounds of appeal. The full grounds are as follows:
1.The learned sentencing judge failed to give sufficient weight to the applicant’s plea of guilty.
2.The learned sentencing judge erred in the fixing of the non-parole period.
3.The learned sentencing judge erred in failing to give sufficient weight to the principle of totality.
4.The individual sentences and the total effective sentence are manifestly excessive.
5. The learned sentencing judge erred in finding that:
(i) there was absolutely no evidence of remorse;
(ii) the applicant’s prospects of rehabilitation were dim.
6.The sentence is manifestly excessive and a different sentence should be now passed having regard to that fresh evidence, that is, the fact that the parole of the applicant has been cancelled since the passing of sentence.
7.The learned sentencing judge erred in failing to mitigate the sentence having regard to the risk of the applicant being institutionalised.
The applicant was born in 1962, is now aged 49, and has three adult children. His criminal history, which dates back to 1980, includes convictions for burglary, handling stolen goods, assaults and other street offences. As to drug offences, in 1986 he was fined for possessing and using amphetamines. In 1989 he was fined for possessing a drug of dependence. In 1990, he was fined for using heroin. Of particular significance, in November 1990 he was sentenced to a total effective sentence of nine years with a non-parole period of seven years, in respect of two counts of trafficking and one count of possessing heroin. Both trafficking offences were Giretti counts, the second being committed while on bail for the first. As a result of remissions, the sentence effectively became six years with a minimum of four years. The applicant was released from prison in 1994 and his head sentence expired in 1996. In March 1997, the applicant was convicted of trafficking a drug of dependence and sentenced to 85 days’ imprisonment. Following his release, and between September and November 1997, the applicant trafficked in a commercial quantity of heroin. This was another Giretti count, and a total of at least one kilogram of heroin was trafficked. There were four individual transactions within the charged period that were above the commercial quantity. In November 1999 the applicant was sentenced in the County Court to 12 years’ imprisonment with a non-parole period of 9 years. On appeal, the Court of Appeal held that the judge had erroneously sentenced the applicant on the basis that the ‘serious offender’ provisions applied, and considered that if the judge had not been mistaken about that matter he would have imposed a lesser sentence. Nevertheless, the majority (Brooking and Charles JJA, Winneke P dissenting) concluded that no different sentence should be passed.
The applicant was released on parole in August 2006. The trafficking the subject of the present application was charged as a Giretti count covering the period from 23 May to 12 June 2007. When arrested on 12 June, the applicant was in possession of 10.4 grams of heroin, which was the basis of the possession count. When interviewed, he admitted possession but denied trafficking. It is not clear what quantity of heroin was trafficked. The judge stated that the jury verdict meant that they were satisfied that the applicant was conducting a continuing business of heroin trafficking, at least in relation to one customer. And while there may well have been more customers, his Honour stated that he sentenced only on the limited basis described. The judge said that although the trafficking covered a relatively short period, it was ‘vigorous’ and ‘almost frenetic’, occurring as it did in a period where the applicant was in the lead up to competing for the Victorian cruiserweight boxing title. The judge described the offending as ‘middle range trafficking’.
As to the applicant’s personal circumstances, the judge referred to oral evidence of John Richard Walsh, Executive Officer of the Bridge of Hope Foundation. Mr Walsh deposed that he had known the applicant since 2000, and that the applicant had assisted him and his organisation by mentoring younger prisoners about the need to change, telling them that prison was not a good place, and training them in kickboxing. In short, the young prisoners respected the applicant because of his kickboxing prowess, and thus were potentially more susceptible to heeding his message. After the applicant’s release in August 2006, Mr Walsh arranged several meetings to discuss with the applicant his future involvement in a mentoring program targeted at young people in schools in marginalised areas, in effect to dissuade them from a life of crime. The applicant was ‘often running late’, seemingly with the result that few, if any, meetings took place. On the day that the applicant was ultimately to meet Mr Walsh to ‘put the finishing touches on a program’, the applicant was arrested for the current offending.
The judge accepted that the applicant had assisted Mr Walsh’s organisation in mentoring younger prisoners. However, his Honour expressed concern that the applicant had become institutionalised, in that prison was a place where he did well, in the sense that he could survive and gain respect in that environment. The judge described the applicant as a recidivist and stated that he could not find any evidence of remorse. He regarded his rehabilitation prospects as ‘dim’ and prospects of re-offending upon release as ‘very problematic indeed’. The judge accepted that Mr Walsh would be available to the applicant upon his eventual release and that ‘one can only hope’, hence he determined to impose a minimum term to avoid a crushing sentence.
Counsel for the applicant did not address the specific grounds of appeal as such, but rather made submissions under the following broad topics.
First, counsel did not challenge the judge’s findings as to the seriousness of the offending, nor the relevance of his prior convictions for the same type of offending. He accepted that it was ‘serious’ and ‘vigorous’ heroin trafficking, albeit in relation to a non-commercial quantity and over a relatively short period of time.
Secondly, counsel noted that the combined effect of the cancellation of the applicant’s parole, and the statutory presumption of cumulation in s 16(3B) of the Sentencing Act 1991, was that the applicant effectively faced a head sentence of 13 years, rather than the 10 years imposed by the judge. He submitted that if parole had been cancelled before sentence, the consequential additional time to be served would have been a relevant matter informing the application of the totality principle. Similarly, the matter was relevant now, in order to ensure that a person whose parole was cancelled after sentence is not in a worse position than somebody whose parole is cancelled before sentence. In short, he submitted that having regard to the applicant’s personal circumstances and other relevant sentencing matters, the Court ought to reduce the burden of the 13 year head sentence by (a) reducing the sentence imposed by the judge, or (b) ordering partial concurrency as between that sentence and the earlier sentence, or (c) doing both (a) and (b).
Thirdly, as to the applicant’s personal circumstances, counsel emphasised his age and the need to avoid a crushing sentence and minimise the risk of further institutionalisation. While the applicant had reoffended on many occasions, it was not conceded that his rehabilitation prospects were dim. On the contrary, in an affidavit sworn for the application Mr Walsh deposed that the applicant was presently in contact with him, talking of the need for change, and mentoring younger prisoners. Mr Walsh further deposed that the applicant was likely to work for Mr Walsh’s organisation on his release. Further, the applicant was in a committed relationship and intended to marry upon his release, and was back in contact with his adult children. In short, counsel submitted that the potential for rehabilitation meant that the applicant would benefit from a ‘healthy disparity’ between the head sentence and the non-parole period.
Conclusion
The cancellation of the applicant’s parole subsequent to his sentence is admissible by way of fresh evidence.[2] Having received that evidence, this Court applies the totality principle, which in this case requires the Court to take account of the period of 3 years’ imprisonment which the applicant may be required to serve as a consequence of his cancelled parole.[3] The totality principle does not apply in isolation, however, but in the context of s 16(3B) of the Sentencing Act 1991 which provides that:
Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.
[2]R v Alashkar (2007) 17 VR 65.
[3]DPP v Kennedy (2008) 21 VR 431, 437 [26].
The proper approach was described by Redlich JA in R v Mourad,[4] as follows:
The Court is now required to evaluate the overall criminality involved in all of the offences for which the appellant is undergoing sentence to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of sentences imposed, which includes the sentence being served as a consequence of his breach of parole. This Court must, however, ensure that the totality principle is applied to the sentence in a manner which will not undermine the legislative policy inherent in s 16(3B). Thus, while preserving the principle of cumulation enunciated in s 16(3B), the total sentence which the appellant is required to serve might be moderated so that the aggregate of sentences imposed by reason of such cumulation is not greater than any sentence required to fulfil the totality principle.
[4][2008] VSCA 4, [15]. See too, DPP v Dickson [2011] VSCA 222, DPP v Johnson [2011] VSCA 288.
Counsel for the applicant submitted that the Court could moderate the effect of the sentence by ordering some degree of concurrency as between the sentences. Indeed, counsel for the Crown seemed to accept this was so, as he submitted that there should be ‘some cumulation’ between the two sentences. In other words, he seemed to accept that there could be at least some degree of concurrency. The difficulty with the approach of both counsel is that the Court’s power to order concurrency is conditioned upon the existence of exceptional circumstances. In Singh v The Queen,[5] Nettle JA observed that:
… exceptional circumstances for the purposes of s 16(3B) of the Sentencing Act 1991 is a both relative and protean conception of which the application calls for a determination of fact and degree on the basis of the facts and circumstances of the case in issue.
[5][2011] VSCA 333, [23].
Neither counsel pointed to exceptional circumstances that justified an order for concurrency. It follows that the statutory presumption of cumulation applies.
The critical question is whether the overall sentence, effectively a head sentence of 13 years with a non-parole period of eight years, is appropriate having regard to the totality of the applicant’s criminality, which comprehends not just the present offending but the earlier offending in respect of which the applicant was on parole.
In assessing this matter, I agree with the judge’s conclusion that the applicant’s rehabilitation prospects are dim. I do not overlook the applicant’s past, present and potential future involvement with Mr Walsh’s organisation. But as the Crown pointed out, at the very time the applicant was supposedly engaged in the mentoring of young people, or preparing to do so, he engaged in the present offending. While the applicant has no doubt used drugs from time to time, particularly in earlier years, the evidence does not indicate any ongoing drug addiction. Rather, it appears that the applicant has consistently chosen to engage in drug trafficking as his occupation. I also agree with the judge’s conclusion that the applicant has shown no remorse in relation to the trafficking offences. True it is that he pleaded guilty to the possession offence and, as the judge noted, he made certain sensible concessions which shortened his trial and saved some time and expense. In that sense, there is some utilitarian value attaching to this conduct but it should not be overstated.
As the judge said, specific and general deterrence, denunciation and just punishment loom large as sentencing factors. As against that, and notwithstanding the applicant’s dim rehabilitation prospects, he is still only 49 years of age and has much of his life ahead of him. I consider that having regard to the additional three years the applicant may be required to serve, it is appropriate to reduce the head sentence imposed by the learned judge by 18 months so that when considered in conjunction with the parole sentence, the applicant faces what is in effect a sentence of 11 and a half years. I would reduce the non-parole period to 6 years. It will be a matter for the parole board as to how much of the parole sentence and the balance of the present sentence the applicant is required to serve before he is released on parole.
I would therefore order that the application for leave to appeal against sentence be granted, the appeal be treated as instituted and heard instanter and allowed, and the applicant be resentenced to a term of eight years and six months’ imprisonment on count 1. I would confirm the sentence of two years on count 2, to be served concurrently with the sentence on count 1, thus producing a total effective sentence of eight years and six months’ imprisonment, to be served cumulatively upon the period remaining under the parole sentence. I would fix a non-parole period of six years.
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