Grech v The Queen

[2013] VSCA 117

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0008

MARIO PETER GRECH	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN, PRIEST and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 MAY 2013
DATE OF JUDGMENT	15  MAY 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 117
JUDGMENT APPEALED FROM	R v Grech (Unreported, County Court of Victoria, Judge Gaynor, 18 December 2012)

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CRIMINAL LAW — SENTENCE — Total effective sentence of five years three months’ imprisonment — Non-parole period of 18 months — Applicant sentenced whilst already in custody due to the cancellation of a parole order — Whether the total effective sentence imposed offended the principle of totality — Initial non-parole period adjusted to have regard to principle of totality but the total effective sentence remained unchanged — Leave granted — Appeal allowed — Total effective sentence of three years six months’ imprisonment

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Appearances:	Counsel	Solicitors
For the Applicant	Mr M Goldberg	Robert Stary Lawyers, Ringwood (Ms K Ljubicic)
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. I will ask Coghlan JA to deliver the first judgment.

COGHLAN JA:

1. On 24 September 2012 the applicant pleaded guilty to charges set out below and was sentenced on 18 December 2012 as set out in the table accordingly.  The sentences imposed below are then set out leading to a total effective sentence of five years three months and a non‑parole period of 18 months.  Pre‑sentence detention was declared to be 21 days.

Indictment A13532085
Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Trafficking in a drug of dependence (Amphetamine) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC]	15 years [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC]	5 years
2.	Possession of a drug of dependence (Cannabis L) [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73]	5 penalty units [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 73(1)(ii)]	$100.00 (with conviction)
summary charge	Deal with property suspected of being the proceeds of crime [Crimes Act 1958 (Vic) s 195]	2 years [Crimes Act 1958 (Vic) s 195]	4 months	1 month
summary charge	Deal with property suspected of being the proceeds of crime [Crimes Act 1958 (Vic) s 195]	2 years [Crimes Act 1958 (Vic) s 195	4 months	1 month
summary charge	Deal with property suspected of being the proceeds of crime [Crimes Act 1958 (Vic) s 195]	2 years [Crimes Act 1958 (Vic) s 195	4 months	1 month

Total Effective Sentence:	5 years 3 months’ imprisonment
Non-Parole Period:	18 months
Pre-sentence Detention Declared:	21 days
6AAA Statement:	6 years imprisonment with a non-parole period of 4 years

1. The applicant’s ground of appeal is:

The Learned Judge erred by not altering the total effective sentence having regard to totality notwithstanding reduction of the non-parole period for the same purpose.  

1. The history of what transpired in this matter may be stated briefly.  The applicant had been sentenced in 2006 to a total effective sentence of six years and six months for trafficking in a drug of dependence.  A non-parole period of four years was fixed by the learned sentencing judge.  The applicant committed the offences set out in the table above between October and December 2010, when he was on parole for similar offending.  The applicant was arrested on 22 December 2010 and remanded in custody.  On 12 January 2011 his parole was cancelled and he was then liable to serve up to two years seven months and eight days.

1. At the time of sentence he was therefore serving that balance of the sentence for which he had been released on parole.  As at the date of sentence, it was common ground that he had served one year 11 months and seven days of the parole sentence.  He was liable to serve a further period of approximately seven months of that sentence.  It was not contended on the plea that any exceptional circumstances existed and the sentence imposed by her Honour Judge Gaynor would have to be served cumulatively upon ‘any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order’.[1]

   [1]Section 16(3B) Sentencing Act 1991.

1. Since the decision of this court in R v Piacentino[2] it has been accepted that when dealing with the principle of totality of sentence regard must be had to any period a prisoner may have to serve as a result of the cancellation of parole.  Her Honour was obliged to have regard to the fact that the applicant may be called upon to serve the whole of the period of two years seven months and eight days in addition to any sentence she was to impose.

   [2](2007) 15 VR 501.

1. Her Honour at first imposed a sentence in the same terms as set out in the table above but fixed a non-parole period of three years.  However when the cancellation of the parole was drawn to her Honour’s attention, her Honour altered the non-parole period by reducing it to 18 months.  She made no alteration to the head sentence.

1. It is her failure to do so that has lead to the appeal.  It is conceded by the respondent on this application what her Honour was obliged to do.  That concession is rightly made.

1. When dealing with the principle of totality there is no reason to distinguish between the head sentence and the non-parole period.  The sentence as presently constructed would produce either a very long period of parole or have the applicant detained, if he is not granted parole, for seven years ten months.

1. The ground must succeed, leave should be granted and the appeal allowed.  The applicant falls to be re-sentenced.

1. On 2 December 2010 the police began to monitor the applicant’s mobile phone.  That monitoring lead to the conclusion that between 1 October and 22 December 2010 the applicant trafficked in a quantity of methylamphetamines less than a commercial quantity ie less than 500g.  The plea proceeded on the basis that the question of methylamphetamine trafficked was at the higher end of trafficking simpliciter.

1. At the relevant time, the applicant was unemployed and receiving Centrelink benefits.  He purchased a car for $22,000 in October 2010.  He regularly attended Crown Casino and gambled there.  At the time of his arrest he was in possession of 5.4g of cannabis and 6.7g of methylamphetamine.  He was also in possession of a 2004 Ford GT sedan, a Telstra T-Hub and $23,750 cash which were suspected of being proceeds of crime.  Those items were the subject of the three summary offences to which the applicant pleaded guilty.

1. The applicant has a very significant history of serious drug trafficking and other convictions dating back to 1976.  He is now 55 years of age and has a number of serious medical problems.  There is a risk that his mental condition may deteriorate in prison.  The applicant has had a very difficult upbringing.  Her Honour made very favourable findings as to the applicant’s remorse based, in particular, on a letter which had been tendered on the plea.  I am prepared to accept that the applicant’s prospects are at least moderate. 

1. Although the non‑parole period imposed below was merciful, I am prepared to accept that it is appropriate in all the circumstances.  I would re‑sentence the applicant as follows.

1. On Charge 1, trafficking in a drug of dependence, three years three months, and that will be the base sentence.

1. On Charge 2, the possession of a drug of dependence, cannabis, fined $100.

1. On the summary charges, deal with property suspected of having been stolen, on each of the three summary charges, I would impose a sentence of three months and order that one month of each sentence be served cumulatively on the base sentence leading to a total effective sentence of three years and six months’ imprisonment.  I would fix a non‑parole period of 18 months.

1. The pre‑sentence detention as calculated would appear to be 169 days. 

1. Pursuant to s.6AAA of the Sentencing Act 1991, had it not been for the plea of guilty in this case, I would have imposed a sentence of five years’ imprisonment with a non‑parole period of three years.

BUCHANAN JA:

1. I agree.

PRIEST JA:

1. I also agree.

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