Formosa v The Queen
[2012] VSCA 298
•12 December 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0059 | |
| TYRONE FORMOSA | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH, OSBORN and WHELAN JJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 26 October 2012 | |
DATE OF JUDGMENT/ORDER: | 12 December 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 298 | 1st revision 13 December 2012 |
JUDGMENT APPEALED FROM: | R v Formosa (Unreported, County Court of Victoria at Melbourne, Judge Parsons, Date of Sentence 8 December 2011) | |
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CRIMINAL LAW – Application for leave to appeal against sentence – Contested plea hearing – Principles as to fact finding on contested plea hearing - Whether sentencing judge made findings of fact not open on the evidence – Leave granted in relation to fact finding on contested plea hearing but appeal dismissed.
CRIMINAL LAW – Application for leave to appeal against Sentence – Conspiring to import a commercial quantity of methylamphetamine, trafficking in methylamphetamine, trafficking in MDMA - Sentence of nine years imprisonment, non parole period of 6 years and 6 months – Whether sentence manifestly excessive – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G F Meredith | C Marshall & Associates |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
1 I agree for the reasons given by Whelan JA that the application for leave to appeal should be refused.
2 As Whelan JA has set out, there was during the plea in mitigation, a very substantial factual dispute, the outcome of which could have affected the view that might have been taken as to the degree of culpability of the applicant.
3 Where there is a factual issue in dispute on the plea which might substantially affect the view that is taken of the objective gravity of the offence or the degree of criminality of the offender or some matter relied upon in aggravation or mitigation of penalty, it will usually be desirable that the sentencing judge announce his or her findings at the completion of hearing any evidence and submissions directed to that dispute. Although reasons for the findings may await the sentencing remarks, sufficient needs to be said as to the intended findings before the balance of the plea in mitigation is conducted, so that the parties have an opportunity to make submissions in the light of those findings.
OSBORN JA:
4 I also agree with Whelan JA.
WHELAN JA:
5 On 12 August 2011, Tyrone Formosa pleaded guilty to one charge of conspiring to import a border controlled drug, namely methamphetamine, in a commercial quantity; one charge of trafficking in methylamphetamine; and one charge of trafficking in MDMA. On 8 December 2011 he was sentenced as follows:
Charge on Indictment Offence Maximum Sentence 1. Conspiring to import a border controlled drug in a commercial quantity [Criminal Code Act 1995 (Cth) ss 11.5(1), 307.1(1)] Life 9 years, commencing 8 Dec 11 2. Trafficking in a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC][1] 15 years 3 years, commencing 4 years after 8 Dec 11 3. Trafficking in a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC][2] 15 years 3 years, commencing 4½ years after 8 Dec 11 Total Effective Sentence:
9 years
Non-Parole Period:
6 years and 6 months
Pre-sentence Detention Declared:
134 days
6AAA Statement:
TES: 10 years and 6 months
NPP: 8 years
[1]Methylamphetamine.
[2]MDMA.
6 Mr Formosa seeks leave to appeal against that sentence on the grounds that the sentencing judge made findings of fact not open on the evidence, and that the individual sentences and the total effective sentence are manifestly excessive.
7 The applicant was sentenced after a contested plea hearing.
Legal principles on contested pleas, and the leave application on ground concerning factual findings
8 The legal principles which apply on a contested plea hearing are the following:
1. Conventionally, the Crown opening constitutes an agreed factual basis upon which a judge passes sentence.[3]
[3]Campbell Phillip Ashton v The Queen [2010] VSCA 329, [22]; R v LFJ [2009] VSCA 134, [3].
2. It is standard practice to use the depositions and related exhibits as the basic materials.[4]
[4]Halden (1983) 9 A Crim R 30, 33.
3. Should either party seek to have the sentencing judge take any additional matter into account in passing sentence, it is for that party to bring the matter to the attention of the judge and, if necessary, call evidence about it.[5]
[5]R v Olbrich (1999) 199 CLR 270, [25].
4. A contested factual assertion upon a plea must be proved by admissible evidence.[6] There is, however, no requirement that the evidence should all have been given on oath, or that there should have been a prior opportunity for cross-examination.[7]
5. A sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.[8]
[6]R v Rumpf [1998] VR 466, 471.
[7]Halden (1983) 9 A Crim R 30, 33-34.
[8]R v Storey [1998] 1 VR 359, 369; quoted and approved in R v Olbrich (1999) 199 CLR 270, [27].
9 It was not contended on this application that the reasons given by the sentencing judge for his factual conclusions on the contested plea were inadequate. But in my view it is relevant to the issue of whether leave should be granted on the ground concerning the factual findings on the contested plea that the reasons do little more than state conclusions as to credit and incorporate the submissions of the DPP by reference.
10 There are reasons why it is important for judges to give reasons, appropriate to the matter in issue, for their decisions.[9] Perhaps the most longstanding and well accepted reason is so as to enable the proper exercise of rights of appeal.[10]
[9]The reasons are discussed in Sun Alliance Insurance Limited v Massoud [1989] VR 8, 18-19 and the cases cited, especially Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279-80 per McHugh JA; Fletcher Construction v Lines Macfarlane (No 2) (2002) 6 VR 1, [99]-[100]; and Sherlock v Lloyd (2010) 27 VR 434, [14]. The fundamental importance of reasons in the undertaking of the judicial function has been emphasised by the High Court recently in Wainohu v State of New South Wales (2011) 243 CLR 181.
[10]Sun Alliance Insurance Limited v Massoud [1989] VR 8, 18; Perkins v County Court of Victoria (2000) 2 VR 246.
11 Given the nature of the reasons here, being in significant part the incorporation of submissions, and the nature of the submissions so incorporated, it is impossible to assess the proposed ground of appeal without analysing the submissions themselves and the transcript references to which the submissions refer. In this case, that is not something which can be done without gaining a full understanding of the evidence given by the witnesses on the contested plea hearing.
12 As it is necessary to review the material in some detail in order to understand the reasons given, leave to appeal should be granted so as to avoid the prospect of the same task being undertaken twice.
13 The application for leave proceeded on the basis that if leave were granted the appeal would be heard and determined instanter, and the submissions on the leave application were to be treated as submissions on the appeal.
14 I would grant leave to appeal on the ground concerning the factual findings on the contested plea hearing.
The charges, arraignment, foreshadowed change of plea application and Crown opening
15 The conspiracy with which the applicant was charged was under the Criminal Code (Cth). It was alleged that the applicant conspired with a person named Scott MacCallum Osborne between 1 January 2007 and 13 March 2008 to import a commercial quantity of methamphetamine. The conspiracy charge arose out of the applicant’s participation in an enterprise whereby Scott Osborne sent methamphetamine by mail to the addresses of various properties in Victoria during the charged period. Scott Osborne was living in British Colombia, Canada but visited Australia from time to time.
16 In addition to that Commonwealth offence, the applicant was charged with the State offences of trafficking in methylamphetamine between 9 August 2007 and 13 March 2008, and trafficking in MDMA between 9 August 2007 and 13 March 2008.
17 The applicant was arraigned on these charges before a judge in the County Court on 12 August 2011. He pleaded guilty. The plea hearing was fixed for 19 September 2011. On 19 September 2011 senior counsel for the applicant advised the judge that the applicant proposed to apply to alter his pleas of guilty and that she was not in a position to act for him on that application. Senior counsel for the applicant told the judge that the issue which prompted the application to change the plea was that an analysis of the different relevant properties to which drugs had been posted had led the applicant to conclude that he did not wish to plead guilty to having conspired to import a commercial quantity.[11] This is not the issue which subsequently was the subject of the contested plea hearing, although it was somewhat indirectly related to it.
[11]Transcript 132-33.
18 The application for a change of plea was fixed for 22 September 2011. On that day the matter was adjourned to 29 September 2011. On 29 September 2011 the application was either withdrawn or never made. The matter was then fixed for a plea hearing on 8 November 2011.
19 On 8 November 2011 the plea hearing began. A Crown opening was tendered. In response to a query from the judge to senior counsel for the applicant as to whether there was any ‘difficulty’ with anything contained in that document, senior counsel for the applicant indicated that a significant Crown witness, a co-offender named Joey Mamich, was to be cross-examined and that the ‘main point of dispute’ was ‘the role that Mr Mamich played as compared to Mr Formosa’.[12]
[12]Transcript 139-140.
20 The Crown opening asserted that Osborne was sending drugs through the mail into Australia between May 2005 and June 2008 and that in total 60 such mail articles had been intercepted. Twenty-five of the items had been addressed to properties in Victoria. It was asserted in the opening that ‘most’ of them went to a group comprising the applicant, Mamich and others. The Crown opening stated:
T Formosa was the principal person of this group and was the Victorian contact for Osborne.
21 The conspiracy with which the applicant was charged concerned only the period between 1 January 2007 and 13 March 2008, but the Crown alleged that the ‘system’ had been the same since 2005 and in the opening the Crown asserted that there had been an importation in August 2005 to an address at 1069 Pittfield Road, Cape Clear, a property owned by the applicant’s parents. The prosecution opening then set out evidence relating to a succession of addresses said to have been utilised, some of which had been used prior to the charged period.
22 The Crown opening recorded the fact that it had been agreed that the total amount imported during the period of the charged conspiracy was in excess of the commercial quantity provided for under the Criminal Code (Cth) (being 750 grams pure) and stated that, whilst no specific sum had been agreed, the amount imported was ‘at the lower end of a commercial quantity’.
23 The opening set out evidence of telephone intercepts. In relation to the applicant those intercepts commenced on 22 November 2007 and continued until his arrest on 13 March 2008.
24 The Crown contended that the applicant trafficked drugs to his brother, Clifford Formosa, amongst others. The telephone intercepts concerning Clifford Formosa commenced on 9 August 2007.
25 The Crown also relied upon emails between the applicant and Osborne and others.
26 In relation to the trafficking charges, the Crown substantially relied upon the telephone intercepts. There were no factual disputes in relation to those charges.
The contested plea hearing
27 The contested plea hearing occupied most of the day on 8 November 2011, all of 11 November 2011, all of 16 November 2011, and it concluded with submissions, including submissions as to matters relied upon in mitigation, on 28 November 2011.
28 The way the matter was put to the sentencing judge was that the applicant conceded having been a party to the conspiracy between 1 January 2007 and 13 March 2008 but maintained that he had played a ‘lesser role’ until mid-2007, that he had not been involved in the setting up of the system which had been used since 2005, and that he had not enlisted Mr Mamich to the enterprise as alleged by Mr Mamich but had in fact been enlisted to the enterprise by Mr Mamich at a point shortly after he had acquired a business named ‘Fleet Kleen’ from a cousin of Mr Mamich named Sertic.
29 The substance of the dispute on the contested plea hearing amounted to this. Mr Mamich maintained that his involvement in the enterprise was constituted by steps he took to send money overseas on the applicant’s instructions between August 2005 and February 2007 and that he was also involved in one importation in March 2008 in the course of which he sent an email to Osborne, also on the applicant’s instructions. The applicant maintained that it was Mamich who had recruited him at or about the time he purchased the ‘Fleet Kleen’ business in early 2007 and that his role gradually increased over time until he became the sole or principal contact for Osborne in Victoria in the latter part of 2007.
30 The prosecution called Mr Mamich and he adopted a 26 page statement which he had made which was to the effect I have already summarised. He was then cross-examined at length. A great deal of that cross-examination was constituted by matters being put to him, on the basis of the applicant’s instructions, which he denied.
31 I have reviewed the transcript of the entire proceeding and paid particular attention to Mr Mamich’s cross-examination.
32 Senior counsel for the applicant does not seem to have had material which was particularly compelling in relation to Mr Mamich’s credit. She put to him that he had obtained unemployment benefits when working at Fleet Kleen and had lied to Centrelink. He agreed with that without apparent hesitation or prevarication.[13] She also attacked his credit on the basis that he had said that his involvement in the enterprise effectively concluded in early 2007 but he had sent an email to Osborne in early 2008 and was involved in an importation then. Again, he made no apparent attempt to conceal that,[14] and he had indeed been charged and pleaded guilty to an offence constituted by that conduct. She tackled him at some length in relation to intercepted phone calls between him and the applicant in December 2007 which, it was put to him, were about Osborne and drugs. On my reading of the transcript, it was open to conclude that Mr Mamich’s credit was affected by his answers in relation to those phone calls,[15] but that is not the impression made on the judge, who observed midway through that cross-examination that as far as he was concerned counsel had not ‘laid a punch on him yet’.[16]
[13]Transcript 207.
[14]Transcript 280.
[15]Transcript 282-83, 284-86, 288-89, 291, 294.
[16]Transcript 287.
33 In the absence of independent material which reveals a witness to be not credible, it is difficult for an appellate court to reach conclusions as to credit based upon the transcript of cross-examination. The judge who sees and hears the cross-examination is in a better position to assess the credit of the witness.
34 Senior counsel called the applicant to give evidence.
35 In evidence-in-chief the applicant swore that he was not involved in the importation of drugs before January 2007 when he acquired the Fleet Kleen business.[17] He said he had never met Osborne before 2007 and that he first became aware of him in January/February 2007.[18] He was asked to explain the fact that the first importation identified by police, in August 2005, was to a property at Cape Clear which was owned by his parents. He said that the property had been empty and that at Mamich’s request he had permitted a friend of Mamich to reside there.[19]
[17]Transcript 312-13.
[18]Transcript 313 and 316.
[19]Transcript 314-15.
36 Notwithstanding the initial account he gave of his first involvement in the importation, later in his evidence-in-chief he said that he had spoken to Osborne on the phone before he purchased the business,[20] and he then said he had begun his involvement in 2006, ‘probably’ November 2006.[21]
[20]Transcript 317-18.
[21]Transcript 318.
37 In his evidence-in-chief the applicant said that his involvement in the importation increased after what he said was a breakdown in the relationship between Osborne and Mamich which he said occurred in February or March of 2007. He then related that breakdown to the time when he said he ‘started doing the importations, say, about August, just before August’.[22]
[22]Transcript 333.
38 It must be observed at this point that even in his evidence-in-chief the account the applicant gave of how he came to be involved, and when he came to be involved, was difficult to follow. The difficulty was accentuated as a result of the cross-examination.
39 When asked in cross-examination when it was that Mamich explained what was happening and recruited him to the venture, the applicant initially said that it was ‘mid-07’.[23] When it was suggested to him that it could have been earlier, perhaps January 2007, he said he could not really say as he was stoned a lot of the time, concluding with the comment:
I’m just going by all the documents when this happened on this date, so it must’ve.[24]
[23]Transcript 356.
[24]Transcript 356.
40 The account the applicant gave of how he came to take over as the principal participant from Mamich was confused, it seems to me, and in my view it was open to find that the account he gave was unacceptable.[25] The applicant agreed in cross-examination that eventually as far as Osborne was concerned the applicant was the ‘sole person that he was dealing with’, and he agreed that he had taken on this role even though, on his account, he had never met Osborne.[26]
[25]Transcript 358-360.
[26]Transcript 360-62.
41 The applicant agreed in cross-examination that by the time the telephone intercepts started he was in regular and frequent phone contact with Osborne.[27] Matters were put to him suggesting he had been in phone contact with Osborne in 2006, and, it seems to me, that it was open to conclude that he did not deal with these issues satisfactorily.[28] He accepted that calls had been made from his phone to Osborne’s partner, one Vanessa Thompson, in 2006, his explanation being that Mamich could have used his phone.[29]
[27]Transcript 369.
[28]Transcript 375.
[29]Transcript 375.
42 In cross-examination the applicant was also asked about emails sent from his email account to Osborne. Initially he maintained:
… all my emails were sent by Joey Mamich, every one of them.[30]
Later, when he was taken through specific emails he accepted that they had indeed been sent by him and he explained this by saying that at the time of those emails, in early 2008, he was trying to squeeze Mamich out of the operation.[31]
[30]Transcript 379.
[31]Transcript 388-89, 392, 394, 398.
43 He was cross-examined about the Cape Clear property to which the first import identified by police had been made in August 2005. He agreed that his bank statements were being sent to that address at that time, and said that he had lived there prior to 2005 and that he had never changed his address because he then got cheaper car registration, licence and insurance.[32]
[32]Transcript 396.
44 He agreed in cross-examination that from mid-2007 he was ‘the sole organiser with Scott Osborne’.[33] The judge asked the applicant about his activities as ‘sole organiser’. In my view, his answers were, at best, confusing. The judge said to the cross-examiner that he thought he had heard enough.[34]
[33]Transcript 405-6.
[34]Transcript 407.
45 Counsel for the applicant and counsel for the prosecution gave the sentencing judge written submissions on the disputed factual issues.
46 On 8 November 2011 the sentencing judge had made comments suggesting that he envisaged making a separate ruling on the disputed factual matters,[35] but on 11 November 2011 senior counsel for the applicant indicated that she proposed making a plea in mitigation immediately after the conclusion of the evidence,[36] and she confirmed that that was her intention in discussion on 16 November 2011.[37]
[35]Transcript 139, 142.
[36]Transcript 320-21.
[37]Transcript 412.
47 The written submissions which were given to the sentencing judge were made without counsel having transcript, but counsel and the sentencing judge agreed that it would be satisfactory to proceed in that way.
48 As foreshadowed, on 28 November 2011 senior counsel for the applicant went straight on from making submissions about the disputed facts to dealing with matters in mitigation,[38] and at the conclusion of her submissions, and submissions from the prosecution, the judge indicated that he would sentence on 9 December 2011. In fact, he sentenced on 8 December 2011.
[38]Transcript 425.
Sentencing judge’s findings on contested factual issues
49 The sentencing judge did not make a separate ruling on the contested factual issues but dealt with all matters relevant to sentence in reasons for sentence delivered on 8 December 2011. That meant that counsel had had to address on sentence without knowing what the findings were on significant disputed issues as to the offending conduct itself. Matters proceeded in that way because senior counsel for the applicant wished to adopt that course. No complaint is made about that course on this appeal.
50 The judge articulated the factual issues in dispute and referred to the evidence called and the submissions made. He then went on:
I find that you have sought to downplay your role by giving false and/or misleading evidence as to your role during the period up to the middle of 2008 [clearly a typographical error – 2007]. It seems that from then on you do take responsibility for your role which you described as being the organiser. I do not find it necessary to recount in any detail the factual matters that were argued in a detailed way before me. They are dealt with in the various written submissions and in particular in the DPP closing submissions, with which I am in substantial agreement, and I particularly note in that regard, paragraph 7(a), (b), (c), (d), (e), (f) and (g) inclusively as well as paragraph 8 of those submissions.
I found your evidence to be unconvincing, opportunistic and inconsistent with the matters set out by Mr Mamich, whom I found to be an entirely credible witness, bearing in mind the difficulties created by the passage of time and also the various matters of detail that seem to me might escape anyone in similar circumstances. Accordingly, I reject your evidence where it is inconsistent with that of Mr Mamich.
The result of all that is, of course, that I will proceed on the basis that Exhibit B, the Crown opening for the plea hearing, is indeed an accurate and appropriate basis on which the sentencing should proceed and I will disregard any submissions made on your behalf that the material in that exhibit does not accurately characterise your involvement in the count that you plead guilty to.
51 On the hearing of this appeal a version of the DPP submissions to which the judge had referred, with some transcript page numbers added was handed up. Given the importance of paragraphs 7 and 8 to the sentencing judge’s reasons I set them out in full [typographical errors uncorrected]:
7.Tyrone Formosa’s evidence as to his role in importations is incredible and improbable and ought to be rejected:
a.Mamich denied that that there ever was an arrangement whereby Tyrone Formosa would act as the front man for these importations (8/11/11). He denied that Mickey Sertic was involved in drugs or ever knew Scott Osborne (8/11/11). As far as he knew Mickey Sertic lived on the east coast of Canada, whereas Scott Osborne was on the west coast of Canada (T 11/11/11 at 65 [T 304]. He denied knowing anyone else in Canada other than Osborne and his cousin (T 11/11/11 at 16-17 and 65-66) [T 255-256; T 304-305].
b.Mamich denied he was involved in the importation of drugs to the other properties Tyrone Formosa alleged he was the sole instigator (other than to the limited extent of his plea of guilty to aiding and abetting an importation between 1 March and 12 March 2008) (11/11/11 at 15-18, 23-44) [T 254-257; T 262-283].
c.It is improbable that Osborne, the supplier in Canada, would start dealing directly with and send drugs worth thousands of dollars to a person in Australia whom he had never met, on the basis of the say so of Mickey Sertic, the cousin of Mamich who it was claimed was not sending Osborne the right money for the purchase of drugs.
d.There were contradictions in his evidence, for example:
i.He initially said that he started his involvement in importations one month after he purchased the Fleet Kleen business (T 11/11/11 at 73-74) [T 312-313], but later said he commenced doing things in relation to importations probably in November 2006, before he purchased the business (T 11/11/11 at 79.15-79.22) [T 318.15-318.22], although he denied meeting or being in telephone contact with Scott Osborne in 2006 (T 16/11/11 at 42-44, 52-53) [T 364-366; T 374-375].
ii.He said Mamich sent all emails to Scott Osborne (T 16/121/11 at 57.30) [T 379.30], but later admitted that by 8 January 2008 he started sending email to Osborne himself (T 16/11/11 at 66.26) [T 388.26].
e.He denied being the recipient of profits from drugs sent to 18 Storkbill Road, Wyndham Vale, and denied that he and Natasha Davis lived at that address (T 16/11/11 at 46.6 and 59.5) [T 368.6 and T 381.5] despite the following:
i.The intercepted calls which show he was getting Mamich to pick up he his mail from 52 Hilma Street (T 16/11/11 at 81.13) [T 403.13].
ii.His admissions to police at his interview (see PO at [18]);
iii.His arrest at that address on 13 March 2008, and the finding of his personal items at that address (see PO at [47]);
iv.The evidence of Mamich (statement at [50]) and Amanda Mitchell (statement dated 13/3/08, Depositions a 23).
f.The intercepted telephone conversations and email communications, albeit from late 2007 to early 2008, show that it was Tyrone Formosa and Scott Osborne who were making important decisions in relation to importations including:
i.Addresses to which drugs were to be sent;
ii.Payment for drugs;
iii.Alternative means of importing drugs;
iv.Getting others to assist in the importation of drugs by sending money overseas.
g.The system of importing drugs and payment of drugs and the group of people who were involved remained the same with no indication of a change in leadership at any time from August 2005 to 13 March 2008.
8.The intercepted telephone calls between the accused and Osborne, and email from Tyrone Formosa’s email account to Osborne, show no distinction between properties Tyrone Formosa claims he was the ‘sole instigator’ or at least was a party to joint enterprise, and other properties to which drugs were sent:
a.Call 922 on 21/12/08 and email on 1/1/08 and 6/1/08 show that Tyrone Formosa and Osborne discuss drugs going to 15 and 18 Storkbill Road, Wyndham Vale, as well as to Little River and 52 Hilma Street, Ardeer;
b.Call 2119 on 15/1/08 and the email on 6/1/08, show Tyrone Formosa and Osborne discussing 33 Tern Court, Melton (without any reference to Farrugia) and 18 Storkbill Road, Wyndham Vale as well as the Little River address;
c.Call 1830 on 13/2/08 and email on 26/1/08, show Tyrone Formosa and Osborne discussing both Nicholson Street, Ballarat and Archeron Street, Carole Springs. (See selection of TI calls – Ex E, and email Ex F.)
Competing contentions on appeal in relation to the facts found on the contested plea
52 On behalf of the applicant it was submitted that findings of fact were made which were not open on the evidence including the following:
(a) the finding that the applicant had deliberately deceived the court when giving evidence;
(b) the finding that Mamich’s evidence was entirely credible;
(c) the finding that the Crown opening should be accepted;
(d) the finding that the applicant had been involved as principal from August 2005;
(e) what was said to be a finding made ‘inferentially’ that the applicant was the only point of contact in Melbourne with Osborne for the entire charged period and for the earlier period; and
(f) the finding that the telephone intercepts disclosed evidence of the applicant’s role as principal for the entire charged period.
53 In oral submissions, particular reliance was placed upon submissions concerning reasons why the sentencing judge ought not have been satisfied beyond reasonable doubt of the account given by Mr Mamich in his evidence. The matters relied upon, were:
(i) his inability to explain his ongoing involvement in early 2008;
(ii) the unlikely ‘coincidence’ that his cousin, Sertic, sold the business to the applicant and then moved to Canada;
(iii) the fact that Mamich worked as manager for Fleet Kleen when on unemployment benefits;
(iv) the content of the intercepted phone calls in December 2007 and March 2008 indicating continuing involvement by Mamich; and
(v) the fact that the applicant’s account had consistency in that he took over the Fleet Kleen business at the beginning of the charged period.
54 In oral submissions it was also put in relation to the fact finding issues that the sentencing judge had placed too much importance upon the issue of who was the principal contact during the first six months of the 14 month charged period. This aspect of the submission really went to the proposed manifest excess ground.
55 On the appeal, the prosecution essentially adopted the submissions which had been made before the sentencing judge.
56 My review of the transcript, particularly the aspects to which I have referred above, leads me to conclude that insofar as submissions were made in the DPP submissions, which were incorporated by the sentencing judge into his reasons, as to the improbability of certain aspects of the applicant’s evidence and contradictions in his evidence, those findings were open to be made. The finding that the intercepted telephone conversations and email communications reveal the applicant and Osborne to be the ones making the important decisions was also open. The finding that the intercepted phone calls and emails do not reveal the distinction which the applicant made between addresses as to which he was the sole active party and others was also open.
57 As to Mr Mamich’s evidence, it was open to the judge to have taken a less favourable view of Mr Mamich than he did, but none of the factors relied upon by the applicant required the judge to take that less favourable view. Having read the transcript, the only issue upon which it seems to me that Mr Mamich gave answers which are difficult to accept is what he said about the intercepted phone calls between he and the applicant in December 2007. But the judge was in the best position to assess what he said about that. A reading of the transcript does not reveal anything which required the sentencing judge to reject Mr Mamich’s evidence. It was open to him to accept it, as he did.
58 Having read the transcript, in my view it was open to the judge to reject the applicant’s evidence.
59 Having accepted Mr Mamich’s account and rejected the applicant’s account it was open to the judge to conclude the applicant had sought to downplay his role by giving a false account.
60 Given the nature of the issues in contention, it would not of course have been appropriate for the sentencing judge to simply compare the evidence of the applicant and with that of Mr Mamich and to reach conclusions based upon a preference for Mr Mamich’s account. This is a criminal matter and the Crown was required to establish matters adverse to the applicant beyond reasonable doubt. A mere preference for the account given by Mr Mamich could not have met the requisite standard.[39] But the sentencing judge did not do that. He rejected the applicant’s account and he accepted Mr Mamich’s account. It was open to him to reach those conclusions and once he did so it was open to him to find beyond reasonable doubt that during the charged period it was the applicant who had the senior role and who was the principal, not Mr Mamich, and to adopt the Crown opening as the factual basis in relation to the offending conduct.
[39]Douglass v The Queen [2012] HCA 34, [12]-[13].
61 I reject this ground of appeal.
Application for leave on manifest excess ground
62 The applicant also seeks leave to appeal on the ground that the individual sentences, the non-parole period, and the total effective sentence are manifestly excessive.
63 In support of this proposed ground, the following submissions were made:
1. This is the applicant’s first term of imprisonment. He does not have priors for similar offences. ‘Too much weight’ was given to a previous short term of imprisonment which was wholly suspended. Inadequate weight was given to the character references, to courses completed while in custody, and to the delay in sentencing.
2. The offences were a course of conduct and total concurrency was appropriate in the circumstances, yet there was cumulation between counts 2 and 3.
3. The sentencing judge erred in finding that the applicant lacked any remorse and that his guilty plea did not indicate true remorse. In the alternative, insufficient weight had been given to the utility value of the guilty pleas.
4. An insufficient discount had been given for the pleas of guilty. Whereas the judge had said that the sentence he would imposed would be ‘far less’ than would have been imposed had he gone to trial, in the event the discount was ‘insignificant’.
5. The sentencing judge erred in finding that the applicant had not expressed true remorse to his general practitioner, Dr Tan.
6. The sentencing judge had given insufficient weight to matters referred to by a forensic psychologist, Mr McKinnon.
7. The sentencing judge had over emphasised the importance of the issue as to when the applicant had become the principal contact for Osborne in Victoria.
64 In my view none of these complaints has validity.
65 The sentencing judge summarised the applicant’s prior criminal history and as to the suspended term of imprisonment merely observed that that sentence needed to be borne in mind.[40]
[40]Sentencing Reasons [40]-[44].
66 The sentencing judge appears to me to have accepted the thrust of the character evidence relied upon on behalf of the applicant, and he accepted the conclusions reached by Mr McKinnon.[41]
[41]Sentencing Reasons [48], [54], [56]-[59], and [63].
67 The sentencing judge took into account the course completed whilst in custody,[42] and also took into account the delay which had occurred in sentencing and the anxiety necessarily associated with that delay.[43]
[42]Sentencing Reasons [55].
[43]Sentencing Reasons [62].
68 As to the sentencing judge’s findings about remorse, given the facts which he found and the assessment he made of the credit of the applicant, his conclusion about remorse was open to him notwithstanding what the applicant may have told Dr Tan.[44] The sentencing judge expressly recognised the utility value of the guilty pleas and the fact that that was not affected by his conclusion on remorse.[45]
[44]Sentencing Reasons [38] and [45].
[45]Sentencing Reasons [38] and [39].
69 The discount given, by way of comparison with the s 6AAA statement, is approximately 14.3% on the head sentence and 18.75% on the non-parole period. Views may differ as to whether or not that discount can accurately be described as being ‘far less’ than the sentence that would otherwise have been imposed. But this kind of approach is generally unhelpful, the relevant question being whether the sentence which was imposed is excessive.[46]
[46]Ciantar and Rose v The Queen [2010] VSCA 313, [28]-[36].
70 The sentencing judge’s sentencing reasons do not reveal any ‘over emphasis’ on the issue of when the applicant became the principal contact for Osborne. On my reading of the sentencing reasons, the principal consequence of the judge’s findings on that issue is his conclusion as to the applicant’s remorse.
71 The complaint as to concurrency is also, in my view, without substance. Some cumulation was open to be ordered on counts 2 and 3, but in any event the effect of the orders his Honour made is that those sentences are entirely concurrent with the sentence on count 1.
72 A review of sentences for importation offences does not suggest that the sentence on count 1 is excessive.[47]
[47]See Nguyen v The Queen [2011] VSCA 32; Lau v The Queen [2011] VSCA 324; OPQ v The Queen [2012] VSCA 115. I am conscious of the limitations inherent in the use of sentences imposed in what are necessarily disparate fact situations.
73 A circumstance the sentencing judge might have referred to, but did not, is that at the time he was apprehended the applicant was actively seeking to expand the importation enterprise.[48]
[48]Transcript 405.
74 The Court of Appeal will only interfere with a sentence on the basis of manifest excess, if it concludes that the sentence imposed was not reasonably open. In my view that is not arguable in this case in relation to any of the particular sentences imposed, or in relation to the total effective sentence and the non-parole period.
75 I would refuse leave to appeal on this ground.
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