DPP v Natale
[2001] VSCA 13
•20 February 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 3 of 2001
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEFANO NATALE |
---
JUDGES: | TADGELL, ORMISTON and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 February 2001 | |
DATE OF JUDGMENT: | 20 February 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 13 | |
---
CRIMINAL LAW – Sentence – Prosecution appeal – Trafficking in cannabis – Offender with medical conditions resulting in 50% chance of surviving three years – Exercise of power to impose merciful sentence.
---
APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr P.A. Coghlan, Q.C. | Solicitor for Public Prosecutions |
| For the Respondent | Mr B.E. Walters | Lethbridges |
TADGELL, J.A.:
I shall invite Ormiston, J.A. to deliver the first judgment.
ORMISTON, J.A.:
The appellant Director of Public Prosecutions seeks to overturn a sentence imposed on the respondent in the County Court on a plea of guilty to one count of trafficking in a drug of dependence, namely cannabis L, between 1 July 1990 and 3 March 1998. After hearing a plea, including extensive evidence from the principal prosecution witness, one Gleeson, formerly a forests officer, and the respondent himself, the judge imposed a sentence of 23 months' imprisonment and directed that he serve a period of eleven months before becoming eligible for parole. The maximum sentence for the offence was 15 years' imprisonment. The Director's sole ground of appeal is that the sentence and the non-parole period were both manifestly inadequate, but four particulars were given: failure to reflect adequately the gravity of the offence; failure sufficiently to take into account general deterrence; giving too much weight to mitigatory factors; and giving inadequate weight to the respondent's "antecedents".
Because I have taken a clear view as to how this appeal should be determined, it will not in the circumstances be necessary to set out in detail the rather confusing evidence, both from the depositions and the two days of evidence before the sentencing judge. Those facts, to which I shall briefly turn in a moment, would on their face suggest that the respondent was dealt with very leniently, but they are in the end largely irrelevant to the ultimate disposition of this application. Indeed the learned judge made most of the relevant fact findings against the respondent but in the end reached a conclusion which must have been based on what he perceived to be a merciful exercise of his sentencing discretion which flowed largely from the medical evidence tendered and forwarded to him in the course of his deliberations. The relevant medical finding appeared in Dr Lefkovits' report of 10 August 2000, which predicted that the respondent had "only a 30% chance of surviving five years
and a 50% chance of surviving three years", assuming "optimal medical care" and the respondent's abstaining from alcohol. The respondent was and is 58 years old, and the doctor said he could be considered "at the end stage of liver disease", with an unrelated bone marrow disease which resulted in a very high risk that any trauma would cause a life-threatening haemorrhage.
Doubtless these were the primary reasons for the judge's concluding that the "parlous state" of the respondent's health meant that his days of marijuana growing were over and that he no longer presented "a threat to the community". This in my opinion, in all the circumstances, justified the conclusion that questions of both specific and general deterrence were of marginal importance. Although the evidence also showed that life in prison would also be extremely uncomfortable because of nose and other bleeding, excessive leg swelling, nausea, vomiting and myalgia, the proper basis for viewing the judge's ultimate decision was that he was exercising the power to impose a merciful sentence in recognition of the fact that the respondent's life expectancy had been, and has been, very severely reduced. See, e.g., Miceli[1] and Mitchell[2]. In those circumstances it is necessary only to turn briefly to the other matters raised.
[1][1998] 4 V.R. 588.
[2](2000) 112 A.Crim.R. 315 at 321-322.
Counsel for the Director argued strenuously that the sentence imposed was far less than should have been imposed for a number of reasons. I would not disagree with much of that analysis. Indeed, if one were to look only at the circumstances of the offending and the respondent's past record, the sentence would clearly have been too light. In my opinion it should be clearly understood that the sentence and any rejection by this Court of this appeal does not indicate that such a sentence for trafficking cannabis or any other drug of dependence could be sustained in other circumstances.
The offending took place, on and off, from about 1991 or 1992 until the respondent was apprehended in early 1998. It consisted largely in the respondent's taking a significant role in the cultivation of areas of cannabis L in a State forest, not inappropriately (for present purposes) called the Mount Disappointment forest area, near Broadford. Sometimes 30 plants were cultivated, sometimes up to 400 plants, but except possibly on one occasion there was no successful harvesting of the crop which led to any return to the respondent. The last crop was planted in late 1997 but was not harvested, as the police raided the site in March 1998, arresting three co-offenders, before the crop could be harvested and sold. Its potential weight was estimated at 50 kilograms with a potential price of $500,000. However, the earlier plantings were far less successful, some being stolen and some failing altogether, and some were simply not the subject of any satisfactory evidence. It was clear, however, that the respondent was interested in growing cannabis and offered to pay Gleeson money to keep an eye on the various crops and for other assistance. The dispute as to the evidence led to Gleeson's evidence being largely accepted and the respondent's rejected, inasmuch as he sought to say that he was only a minor player in the enterprise. Gleeson, because he offered to give evidence, and, of course, did give evidence, had earlier been given a 24-months suspended sentence and the other persons arrested all, for varying reasons (most had in fact been involved in only one crop), received suspended sentences also. The learned judge rightly took some account of the need for parity with these offenders but that could not in itself have justified the lenient sentence here given.
Counsel for the Director maintained that, as to this offending, there "could hardly have been a better example of persistent conduct of this kind". For this purpose he pointed to its extending over eight years, that it was for gain, that the respondent was a principal and that part of the offending was committed while the respondent was on parole (in 1990) and part while he was on a suspended sentence. There is no doubt that the respondent had a record of eleven prior convictions from five appearances from 1965 to 1989 and that the last was for trafficking in cannabis for which he was imprisoned for two-and-a-half years, with a minimum term of 22 months. Likewise, although it was not a prior offence, he had been convicted in 1996
for a separate offence of trafficking for which he received a suspended sentence of two years.
As to these I am not satisfied that the respondent was on parole for the 1989 conviction when he started the trafficking to which he has now pleaded guilty. The evidence was disputed and the original contact with Gleeson did not relate to cannabis at all and the next few contacts were somewhat vague. The later offence clearly preceded the planting of the last, or possibly the last two, crops.
All these matters would otherwise have justified a substantially higher sentence than that which the judge imposed. Nevertheless, when one takes into account the actual medical condition of the respondent and also the psychological evidence which showed that the respondent suffered from severe depression and had only a very limited intelligence rating, I can see no error in the way in which the learned judge chose to impose a mercifully light sentence on him. The judge also placed considerable weight on questions of parity but it is unnecessary to examine that aspect further, nor the other matters raised in the carefully expressed submissions of counsel for the respondent.
In my opinion the appeal should be dismissed.
TADGELL, J.A.:
I agree. The learned sentencing judge was in this case faced with the necessity to exercise a number of discretions - not just one but several. He had to take into account and give due effect to the plea of guilty, the substantial delay between the time the plea for leniency was heard and the imposition of sentence (some four-and-a-half months), as well as the factors of the respondent's age and his exceedingly complicated medical condition, both physical and mental. What was called for was the achievement of a delicate balance. The judge was of course entitled to exercise those various discretions as he saw fit. I think it would be wrong for this Court to arrogate to itself the task of putting under too powerful a microscope the manner of
his Honour's exercise of those various discretions. This is not a case in which the Court should countenance an interference with the way in which the judge undertook that task and the result that he reached.
I therefore agree that the appeal should fail.
CHERNOV, J.A.:
I also agree that, for the reasons given by their Honours, the Director has not made out a basis on which one could properly interfere with the sentencing discretion of the learned sentencing judge. I would dismiss the appeal.
TADGELL, J.A.:
The judgment of the Court is:
Appeal dismissed.
The respondent may take a certificate under s.15 of the Appeal Costs Act 1998.
---
0
0
0