DPP v Mitchell
[2002] VSCA 151
•12 September 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 71 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH |
| v. |
| TOBY GEOFFREY MITCHELL |
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JUDGES: | PHILLIPS, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 September 2002 | |
DATE OF JUDGMENT: | 12 September 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 151 | |
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Criminal law – Sentencing – Crown appeal – Attempting to possess a prohibited import – Second offence committed whilst respondent on bail – Offending little more than “active encouragement” – Total effective sentence of 4 years and 6 months with non-parole period of 2 years not manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R. Maidment, S.C. and Mr M. Cahill | Solicitor to Commonwealth D.P.P. |
| For the Respondent | Mr O.P. Holdenson, Q.C. | Theo Magazis |
PHILLIPS, J.A.:
I will ask Vincent, J.A. to deliver the first judgment.
VINCENT, J.A.:
On 9 July 2000 the Australian Customs Service intercepted a parcel at the airmail transit centre at Melbourne Airport, Tullamarine. The parcel was a brown cardboard box addressed to a Darren Gardiner, at a unit in Coventry Street, South Melbourne, let to the respondent’s aunt and grandmother. The sender was stated to be a James Peters at an address in the United Kingdom. On inspection the parcel was found to contain a coffee tin containing four coloured packages, a soft toy and a greeting card in an envelope. When the packages were removed from the coffee tin a number of tablets, which on later inspection were ascertained to contain a drug known as MDMA and more generally as ecstasy, were observed. The four packages in the tin contained similar tablets. On analysis, the tablets weighed 1491.7 grams and a total of 471.3 of pure MDMA. A substitution of the tablets was made and on 11 July 2000 a controlled delivery of the parcel was made at its intended address. It was accepted by a male person who identified himself as Darren Gardiner but who signed for the parcel in the name of Paul Harris. This person was subsequently identified as the respondent. Immediately after acceptance of the parcel by him, sounds consistent with the opening and unwrapping and movement of it were recorded by a listening device installed in the parcel. Shortly afterwards the respondent was arrested in a nearby pizza shop and returned to the Coventry Street unit, where the contents of the unwrapped parcel were located.
He was then charged with attempting to possess a prohibited import contrary to s.233B(1)(c) of the Customs Act (Cth) 1901. This offence is punishable by the imposition of a maximum sentence of imprisonment of 25 years, a fine of $500,000, or both. He was also charged with one count of attempting to import a prohibited import pursuant to s.233B(1)(b) of the Act. However, this charge was ultimately not pursued. He applied for and was admitted to bail on 12 July 2000.
Whilst on bail, and between 31 July 2000 and 15 August 2001, several telephone conversations between a man named Kerslake and persons in the United Kingdom and between Kerslake, a co-offender named Mantese and the respondent were intercepted and recorded. These calls indicated that Kerslake was arranging for another parcel to be forwarded from the United Kingdom to Australia and that the parcel was expected to arrive on Friday 11 August or Monday 14 August 2000. The parcel which was subsequently collected from the St. Kilda post office by Mantese was intercepted by New Zealand police and New Zealand Customs Service officers on 9 August 2000. It contained a number of items including a total of 4984 tablets containing 478.4 grams of pure ecstasy. Examination of those tablets showed that they were identical to those intercepted en route to the respondent on 9 July 2000. It was concluded that they had derived from the same source and they contained the same trace materials and additives.
The respondent in due course pleaded guilty to two counts of attempting to obtain possession of prohibited imports arising from his involvement in these two transactions.
After hearing a plea in mitigation of penalty presented on his behalf in February 2002, the judge, who had earlier sentenced both Kerslake and Mantese for their parts in the second transaction, imposed upon the respondent, in relation to his activities in the first, a sentence of imprisonment for 3½ years and, in relation to the second, a sentence of imprisonment for 2 years. He directed that one year of the sentence imposed in respect of the second offence be served cumulatively upon that imposed in respect of the first. This created a total effective sentence of 4 years and 6 months, in relation to which a non-parole period of 2 years and 6 months was fixed.
On 30 March 2001 the judge had sentenced Kerslake to imprisonment for 7 years with a non-parole period of 4 years and 6 months for his part in the second offence, and on 8 February 2002 he imposed a sentence of 3 years and 6 months with a non-parole period of 2 years upon Mantese for his involvement in that offence.
Although the grounds include a complaint with respect to the sentence imposed in relation to the first attempted possession, as I understand the submissions in this Court the Commonwealth Director of Public Prosecutions limited the argument to the sentence imposed in relation to the second, the total effective sentence and the non-parole period fixed, asserting that all were manifestly inadequate in the circumstances. It was argued in support of this claim that, in characterising the role of Mitchell in relation to the second offence as being much less than that performed by Mantese, the sentencing judge fell into error. There were, it was said, no significant differences between the offences involved in the separate counts before the court, and at the time of his participation in the second transaction the respondent was on bail following his arrest in relation to the first. In those circumstances, the argument proceeded, the sentence imposed upon the respondent in respect of the second matter should have been at least equal to that imposed upon Mantese and the total effective sentence the same as that imposed upon Kerslake.
The principles upon which an appellate court must act when considering a Crown appeal against a sentence imposed upon an offender are well known and no ritual recitation of them is, in my opinion, required. It is sufficient to refer to the statement of Charles, J.A. in R. v. Clarke[1] to indicate what is required.
[1][1996] 2 V.R. 520 at 522-523.
At this stage reference is necessary to the findings of the sentencing judge when imposing sentence upon the respondent. In respect of the role performed by him in relation to the attempted importation constituting the basis of count 1 (the first transaction), the sentencing judge said, when addressing the respondent, that he was "a courier who was prepared to allow his address to be used in order to effect the importation into Australia of this ecstasy. The return for you was going to be the receipt of ecstasy which you intended to consume to satisfy your own habit and to sell a portion thereof in order to make income". This role was almost identical to that performed by Mantese in relation to the second attempt to secure a quantity of the drug. His Honour also pointed out that the respondent, prior to the first attempted possession of narcotic material, had assisted Kerslake, who was the organiser of the enterprise, by forwarding a sum of money on his behalf to persons in England. Mantese had also forwarded money at around the same time. With respect to count 2, the sentencing judge described the role of the respondent as being "one of active encouragement and seeking to receive a financial reward therefor".
The judge took into account the respondent's plea of guilty, which he accepted had been entered at the first reasonable opportunity. He considered that that plea demonstrated remorse, but also expressed the realistic view that it was entered in relation to both matters in circumstances in which conviction appeared to be inevitable. He accepted, presumably when making his assessment of the respondent's level of criminality and his prospects of rehabilitation, that the respondent had been a drug user but had, by the time of sentencing, ceased to use such substances.
The sentencing judge imposed upon the respondent the same sentence for his involvement in the first offence as he imposed upon Mantese for performing a very similar role in relation to the second. Although the personal circumstances of the two men were quite different, I do not consider that it can be properly found that his Honour fell into error in so doing.
I am unpersuaded that it has been demonstrated that he was in error in imposing the sentence of 2 years' imprisonment handed down upon the respondent for his involvement in the second offence, acknowledging, as counsel for the appellant has emphasised in argument before us, that it must be borne in mind that the respondent was on bail following his arrest for the earlier offence - a circumstance of significant aggravation on more than one basis.
Clearly, it was incumbent upon the sentencing judge to have regard to the roles played by the respondent when considering the appropriate sentence to be imposed in respect of his involvement in each transaction. Although it was certainly not due to any want of enthusiasm on his part, it is evident that the respondent was
only peripherally involved in the second offence. His actual role appears to have been minor, to the extent that it can be described as minimal. There was some evidence that he was aware of the proposed importation, and it would seem reasonable to infer that he hoped to secure some of the ecstasy when it arrived, but, apart from the provision of encouragement, the absence of which would scarcely have affected the situation, there is no evidence upon which a finding could be made at the relevant standard that he played any other part in the attempted transaction. His motivation appears to have been, as the judge accepted, a desire to secure for himself a reward that he had been denied in relation to the earlier matter.
I am also unpersuaded that his Honour fell into error with respect to the order for cumulation made by him and the total effective sentence handed down. It is apparent on perusal of his Honour's remarks that the differences in the sentences imposed on Kerslake, Mantese and the respondent represented a differentiation made between them based on their respective roles, histories and personal circumstances. There is nothing before us which could give rise to any reasonable apprehension that the sentencing judge misunderstood the principles of parity, which at heart amount to the proposition that persons in relevantly like positions should be treated in the same fashion and that appropriate differentiation may be required between those who are not. Nor does it appear to me, by reference to the sentences themselves, that his Honour's discretion miscarried when sentencing the respondent. The sentence imposed on count 2, the non-parole period fixed and the total effective sentence were all within the range available to the sentencing judge in the circumstances.
I would dismiss this appeal.
PHILLIPS, J.A.:
I too am not persuaded, despite Mr Maidment's earnest argument to the contrary, that the judge fell into error when sentencing the respondent. For the reasons given by Vincent, J.A., I too would dismiss the appeal.
CHERNOV, J.A.:
I agree.
PHILLIPS, J.A.:
The order of the Court is that the appeal be dismissed.
(Discussion ensued.)
PHILLIPS, J.A.:
The Court grants to the respondent a certificate under s.15 of the Appeal Costs Act.
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