Baensch v The Queen
[2010] VSCA 191
•24 June 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0808
| MARK SHANE BAENSCH | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P, WEINBERG JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 24 June 2010 | |
DATE OF JUDGMENT: | 24 June 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 191 | |
JUDGMENT APPEALED FROM: | R v Baensch (Unreported, County Court of Victoria, Judge Morrow, 2 September 2008) | |
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CRIMINAL LAW – Appeal – Sentence – Two counts of trafficking in a non-commercial quantity of heroin – Summary offence of using heroin – Sentenced to four years’ imprisonment with a non-parole period of three years – Correctness of characterisation of offending as serious example of offence – Manifest excess – Relevance of quantity in exercise of sentencing discretion – Recidivist offender – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr C B Boyce | Brugman Mellas |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
WEINBERG JA:
This is an appeal by Mark Shane Baensch against a sentence imposed in the Geelong County Court on 2 September 2008. The appellant pleaded guilty to two counts of trafficking heroin and to the summary offence of using heroin. He was sentenced as follows:
| COUNT | OFFENCE | MAXIMUM | SENTENCE |
| 3 | Trafficking drug of dependence (heroin) | 15y | 6m |
| 4 | Trafficking drug of dependence (heroin) | 15y | 4y |
| 7 | Use of drug of dependence (heroin) | 1y | 1m |
| Total effective sentence: 4y Non-parole period: 3y | |||
In our judgment, the appeal should be dismissed. Our reasons are as follows.
Factual circumstances
In November 2007, Geelong police received information that heroin was being trafficked from a Geelong address at which the appellant was living. An investigation was conducted and on 18 February 2008 an undercover police officer arranged to meet with the appellant in order to purchase drugs. At the meeting, the appellant agreed to supply the undercover officer with 0.5 grams of heroin at a price of $200. This transaction subsequently took place. Analysis of the drug sold to the police officer by the appellant showed that it was 20 per cent pure heroin weighing 0.4 grams (Count 3).
Between 3 March and 8 March 2008 police monitored over 1,950 telephone conversations on the appellant’s mobile phone, pursuant to a warrant to intercept. The calls, nearly all of which related to drugs, showed that the appellant travelled each day from the Geelong area to Richmond and Braybrook to purchase heroin while his co-offender, Daniel Patterson, remained at the Geelong unit in order to sell the drugs to customers. The appellant collected money from potential customers prior to going to Melbourne, where the heroin was obtained. The heroin was sold for $50 for 0.1 of a gram and in batches of up to 0.5 of a gram, worth $200 (Count 4).
The heroin was purchased with money collected from customers, amounting to at least $9,450. When 3.5 grams of heroin purchased by the appellant in Melbourne on 8 March 2008 was stolen from him, he and his co-accused were unable to raise further funds and ceased trafficking.
Prior convictions
The appellant, who was 36 at the time of sentencing, admitted 151 prior convictions over a period of 17 years. These included, materially for present purposes, a prior conviction for trafficking heroin in 1999, for which he received a sentence of three months’ imprisonment, and a conviction for trafficking heroin in November 2006 for which, together with other offences, he was sentenced to 15 months’ imprisonment with a minimum of six months.
On the assumption that he had not been in custody until the date of the latter sentence, the minimum term on the appellant’s 2006 sentence would have expired in about May 2007. That shows – significantly, in our view – that this offending, which occurred in March 2008, took place very shortly after he had completed his parole. It is possible, as the appellant’s counsel acknowledged, that it was a ‘close-run thing’ whether this offending was a breach of parole. We proceed on the assumption that it was not but it is, we think, significant that, so soon after having served a term of imprisonment and completed parole for exactly the same offence, the appellant should have again engaged in trafficking.
Manifest excess
The sole ground relied on by the appellant is that the individual sentences, total effective sentence and non-parole period are manifestly excessive. As this Court has said repeatedly, that is a difficult ground to establish, because it requires the appeal court to be satisfied that the sentence imposed was not reasonably open to the judge in the circumstances of the case. That principle is an affirmation of the fact that the sentencing task is entrusted by the parliament to sentencing judges and this Court is only to intervene where the sentencing discretion has obviously gone wrong.[1]
[1]R v Abbott (2007) 170 A Crim R 306, 309–310.
In our view, that threshold has not been met in this case. We consider that the sentences imposed were within the range reasonably open to this judge, sentencing this offender ‑ with his record ‑ for this offending.
The submission made on behalf of the appellant focused on what was said to be the relatively small quantity of the drug trafficked, 8.3 grams. It is said that a sentence of four years on the Count 4 trafficking count is out of kilter with current sentencing practices for quantities of that magnitude. As this Court has said ‑ most recently in Bala v The Queen,[2] R v McCulloch[3] and R v Dominique[4] ‑ the quantity trafficked is a significant factor in determining sentence, this being a quantity-based sentencing regime, but it will never be determinative. There is no arithmetical relationship between the amount trafficked and the sentence.
[2][2010] VSCA 78, [12].
[3][2009] VSCA 34, [46].
[4][2009] VSCA 133, [6]–[7].
This, in our view, is an example of a case where other factors were ‑ necessarily ‑ of real significance in the sentencing synthesis. Principal amongst those was that this was a recidivist offender. The statements in this Court and elsewhere about the community’s abhorrence of the scourge of drug trafficking are too numerous to mention. This offending, and the persistence of this offender in trafficking heroin, would in our view attract the opprobrium which underpins this very severe sentencing regime, viz 15 years’ imprisonment for less than a commercial quantity, 25 years’ imprisonment for a commercial quantity, and life imprisonment for a large commercial quantity.
It is also relevant that there was quite a degree of organisation in this trafficking operation. It was conducted, as the appellant’s counsel conceded, as a business. Although it was not backed up by any store of financial capital, it was a very active business and, in our view, the judge was right to say that the role of this appellant was pivotal in the distribution of drugs to customers. Without this degree of organisation, with a person to take the orders and another person to make the heroin purchases, this drug would not have been delivered to the hapless addicts who were purchasing it.
The sentencing of repeat offenders attracts the principles laid down by the High Court in Veen v The Queen (No 2).[5] Someone who, despite custodial sentences on two occasions for the same offending, engages in further offending of an organised nature might be thought to exhibit an inability to appreciate that this is unlawful behaviour which carries heavy penalties. In our view, the sentencing judge was entitled to regard as very significant factors the issues of specific deterrence and the protection of the community against people, like the appellant, who would engage in this evil trade. These issues were properly seen by the sentencing judge as not only entitling but obliging him to impose a heavier sentence than would have been justified for a first offender.
[5](1988) 164 CLR 465.
Sentencing practice for this offence
We have set out in Appendix 1 a table of recent decisions on sentencing for trafficking less than a commercial quantity, in order to inform the exercise of the sentencing discretion in like cases in the future.
As we have often said, consistency in sentencing is a vital objective. One aspect of consistency is that, where there are relevant differences between offenders, the sentences should be appropriately differentiated. In our view, the differential between the sentence imposed on this appellant and those imposed on others who may have trafficked in equivalent quantities is explained by the matters to which we have referred, namely, the degree of organisation and the significant recidivism. The sentence – which was still less than one third of the maximum – was fully justified for a third-time offender.
Accordingly, in our view, the appeal should be dismissed.
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APPENDIX 1
Table of recent comparative cases (trafficking in less than a commercial quantity of a drug of dependence)
| Case | Offence | Plea | Priors | % of commercial quantity | Sentence on indiv. trafficking count/s | TES | NPP | Comments |
| R v Mili Bala [2010] VSCA 78 | · 1 count trafficking cannabis | NG | Prior trafficking convictions | Less than 5% | 3y 6m | 3y 6m | 2y | · Positive indications of rehabilitation including constant employment and no further offences while on bail |
| R v Ververis and Ververis [2010] VSCA 7 | · Peter: 1 count trafficking meth. · Christopher: 1 count possessing pseudoephedrine, 1 count possess trafficking equipment | G G | None | More than 80% (Peter) | 2y 6m (Peter) | Peter: 2y 6m Christopher: 3y 6m | Peter: 1y 6m Christopher: 2y 3m | · Young offenders · Substance dependency relevant |
| R v Djukic [2010] VSCA 65 | · 1 count trafficking heroin · 2 counts trafficking meth. · 1 count trafficking MDMA | G | Prior convictions for trafficking in heroin | Heroin: 11% Meth.: 9% MDMA: 1% | 4y 3y 2y 1y | 6y | 4y | · Offender was primarily trafficking for profit and was engaged in a ‘sophisticated and carefully managed operation of drug dealing’ |
| R v Georgiou [2009] VSCA 57 | · 1 count trafficking meth. · 3 counts possess drug of dependence · 1 count handling stolen goods | NG | Substantial criminal history | 20% | 4y | 4y 1m | 2y 1m | · Conviction appeal was successful in relation to 1 count of possession |
| R v Dare [2009] VSCA 91 | · 1 count trafficking meth. · 1 count trafficking cannabis · 1 count trafficking LSD · 2 counts possess a prohibited firearm · 1 count possess cannabis · 1 count possess amphetamine · 1 count placing persons in danger of serious injury | G | None | Unclear | 4 y (meth.) 3 y (cannabis) 12m (LSD) | 6y 3m | 4y 3m | · Offender was found to be at the centre of an extensive Geelong drug ring · Ceased using drugs while in prison, a job was available to him on his release; reasonable prospects of rehabilitation |
| R v Bidmade [2009] VSCA 90 | · 1 count trafficking meth. · 1 count criminal damage · 1 count possess meth. · 1 count possess cannabis | G | Prior offences for use of drugs | 16% | 2y 6m | 2y 7m | 21m | · Related to Dare case - supplying Dare with amphetamines on an almost daily basis · Offender aged 19 at time of sentencing |
| R v Waugh [2009] VSCA 92 | · 1 count trafficking meth. · 1 count trafficking MDMA · 2 counts possess meth. · 1 count possess a prohibited firearm | G | 15 prior convictions for drug offences | Unclear | 3y 6m (meth.) 18m (MDMA) | 4y | 2y 6m | · Related to Dare case - supplied Dare with amphetamines and other substances, was one of the larger suppliers · Trafficking occurred on a daily basis; exact quantities trafficked unknown but substantial · Offender affected by medical condition |
| R v Doherty [2009] VSCA 93 | · 1 count trafficking meth. · 1 count possess meth. · 1 count possess cannabis | G | 23 priors including drug offences (offences occurred during the suspended sentence for the previous trafficking conviction) | 1% | 2y 6m | 2y 6m | 18m | · Related to Dare case · Offender had used drugs since he was 13 · Conviction appeal against possess meth. count successful |
| R v Bassie [2009] VSCA 120 | · 1 count trafficking heroin · 1 count trafficking meth. | G | 58 prior convictions of dishonesty and violence, including one drug offence (use of heroin) | 100% (heroin) 5.6% (meth.) | 4y (heroin) 2y (meth.) | 5y | 3y 6m | |
| R v Dominique [2009] VSCA 133 | · 1 count trafficking amphetamine · 1 count trafficking ecstasy · 1 count trafficking cocaine · 1 count trafficking in cannabis · 1 count trafficking in heroin · 6 summary offences related to drug use and possession of firearm | G | 176 previous convictions (including some for drug possession) | 24% (amph.) Unclear (ecstasy) 5.6% (cocaine) Less than 1% (cannabis) Less than 1% (heroin) | 3y 6m (amph.) 12m (ecstasy) 18m (cocaine) 12m (cannabis) 12m (heroin) | 4y 4m | 2y 11m | · The offences involved relatively significant amounts of money · Offender was trafficking to feed his own drug addiction |
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