Harrington v The Queen

[2010] VSCA 249

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 0876 of 2008

TRAVIS HARRINGTON	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and WEINBERG JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 September 2010
DATE OF JUDGMENT	23 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 249
JUDGMENT APPEALED FROM	R v Harrington (Unreported, County Court of Victoria, 27 October 2008, Judge Barnett)

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CRIMINAL LAW – Appeal against sentence – Drug trafficking offences (MDMA, cocaine and methylamphetamine) – Total effective sentence of seven years and ten months’ imprisonment with a non-parole period of five years and six months – Whether sufficient weight given to principle of parity – Appeal allowed – Appellant re-sentenced to six years and six months’ imprisonment with a non-parole period of four years and six months.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC	Tony Hargreaves & Partners
For the Crown	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA
WEINBERG JA
T FORREST AJA:

1. The appellant conducted a drug trafficking business between December 2006 and April 2007.  He bought and sold MDMA (ecstasy), cocaine and methylamphetamine.  He possessed a cocaine press with his co-accused, Anastasios Papadopoulos.  The appellant’s activities were disclosed following a police investigation into Papadopoulos.  So too, were the activities of 13 other young people, all of whom have been dealt with by the courts.  In broad terms, this group bought and sold large quantities of drugs amongst themselves and to the wider public, including at times to an undercover police operative.  The investigation took place over five months.

1. Papadopoulos was the most active of all the appellant’s co-accused.  Between December 2006 and April 2007 he sold MDMA, cocaine and methylamphetamine.  He also traded in various types of steroids and, as we have indicated, jointly possessed the cocaine press.  Papadopoulos pleaded guilty before his Honour Judge Barnett to nine offences.  The appellant also pleaded guilty before his Honour.  Unlike Papadopoulos he pleaded guilty to only four offences.  All four of these offences can be readily compared to corresponding counts in the Papadopoulos sentence.  The table below sets out the offences, very short details of them and the sentence imposed.

Papadopoulos				Harrington
Count	Offence	Sentence	Details	Count	Offence	Sentence	Details
1	Traffick large commercial quantity MDMA	8 years	18,715 tablets trafficked over 5 months	1	Traffick large commercial quantity MDMA	6 years 6 months	8,340 tablets trafficked over 5 months
2	Traffick commercial quantity cocaine	4 years; 6 months cumulative	879 grams trafficked over 5   months	2	Traffick cocaine	2 years; 1 year cumulative on count 1	415 grams trafficked over 5 months
3	Traffick amphetamines	18 months;   1 month cumulative	931 grams trafficked over 5 months	3	Traffick methylamphetamine	4 months; 2 months cumulative	112 grams trafficked over 5 months.
4	Traffick testosterone	18 months	13,344 mls
5	Traffick nandrolone	18 months	54 mls
6	Traffick stanozol	18 months	15 mls
7	Traffick mesterolone	18 months; 1 month cumulative	13 mls
8	Possession of equipment for the purposes of trafficking	6 months; 1 month cumulative	Cocaine press jointly possessed with Harrington	4	Possession of equipment for the purposes of trafficking	4 months; 2 months cumulative	Cocaine press jointly possessed with Papadopoulos
9	Summary charge – proceeds of crime offence (uplifted)	3 months
Total effective sentence 8 years 9months.  Total effective sentence 7 years 10 months. Non-parole period 5 years.  Non-parole period 5 years 6 months.

1. Counsel for the appellant sought to argue four grounds of appeal.  He was encouraged to argue ground 4 first.  It contends that the learned sentencing judge failed to accord any, or sufficient, weight to the sentencing principle of parity.  Specifically, it was argued that there was a disparity between the sentences imposed on Papadopoulos and those imposed on the appellant.

1. When compared to the appellant’s drug trafficking activities, it can be appreciated that Papadopoulos dealt with more than twice the amount of MDMA and cocaine over the same period.[1]  He also dealt in eight times more amphetamine related drugs and he trafficked in significant quantities of prohibited steroids.  Papadopoulos’ summary ‘proceeds of crimes’ offences were, of course, also to be taken into account.

   [1]Papadopoulos pleaded guilty to trafficking in a commercial quantity of cocaine; the appellant pleaded guilty to trafficking simpliciter in the same drug.

1. The appellant’s effective head sentence is nearly 90 per cent that of Papadopoulos.  Even more surprising, given the nature and gravity of their respective offending, is the fact that the appellant’s non-parole period is 110 per cent that of Papadopoulos.

1. Counsel for the respondent argued that any differences in the sentencing approaches by his Honour could be explained by Papadopoulos’ very early plea.  Certainly in the Papadopoulos sentencing remarks, his Honour accorded great weight to this and characterised Papadopoulos’ position as ‘unique’.[2]  Papadopoulos’ solicitor had moved with his customary dispatch after receiving a partial hand-up brief and indicated an intention to plead guilty in October 2007 just one month later.  The appellant waited for the full brief to be served.  He did not, however, run a contested committal and indicated, in February 2008, that he would plead guilty to the counts that ultimately were alleged on the indictment.  On his plea the Crown accepted that it could correctly be characterised as ‘early’, but submitted the Papadopoulos’ plea indication was ‘even earlier’.

   [2]R v Papadopoulos (Unreported, County Court of Victoria, 26 June 2008, Judge Barnett), [41].

1. Apart from whatever benefits ought accrue from the ‘even earlier’ plea, there was little to distinguish Papadopoulos and the appellant.  They were both from good families, still relatively young and recounted a similar tale of recreational drug use and a descent into the twilight of the drug world.  Neither had relevant prior convictions.

1. We take the view that any benefit Papadopoulos derived from his ‘even earlier’ plea, as compared to the appellant’s mere ‘early plea’, should at best have been marginal.  It was clearly not so.  We consider that, objectively measured, the disparity between the two sentences is such as to engender a ‘justifiable sense of grievance’ in the appellant.[3]  The need for parity is based upon the broader principle of equal justice.[4]  We consider the relevant differences between the respective positions of Papadopoulos and the appellant have not been reflected in the sentences imposed and we consider the disparity manifest.  Accordingly, ground 4 is made out.

   [3]R v Taudevin [1996] 2 VR 402.

   [4]Lowe v The Queen (1984) 154 CLR 606, 610-611 (Mason J).

1. It is unnecessary to consider grounds 1 to 3. We make only this passing observation in relation to ground 1. That ground contends that a failure to comply with s 6AAA of the Sentencing Act 1991 (Vic) is, of itself, sufficient to vitiate the exercise of the sentencing discretion. While we have not heard argument in support of that ground, that seems a highly doubtful proposition. If the sentence, and the reasons provided, reflect the fact that an appropriate discount has been given for the plea of guilty, the failure to specify that quantum in accordance with the section is likely to be viewed as nothing more than a procedural irregularity. We consider that, by itself, an irregularity of that kind would rarely, if ever, justify this Court in interfering with the sentence imposed.

1. The appeal must be allowed.  The sentence imposed below will be set aside.   

1. The orders of the Court will be as follows:

1.The appeal be allowed.

2.The sentence below be set aside

3.In lieu thereof the appellant be re-sentenced as follows:

(a)Count 1 – Five years’ imprisonment,

(b)Count 2 – Two years’ imprisonment,

(c)Count 3 – Four months’ imprisonment,

(d)Count 4 – Four months’ imprisonment.

The Court directs that one year of the sentence imposed on count 2, three months of the sentence imposed on count 3, and three months of the sentence imposed on count 4 be served cumulatively upon each other and upon count 1, making a total effective sentence of six years and six months’ imprisonment.

4.A non-parole period of four years and six months is fixed.

5.It is declared that the period of 766 days including this day is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that the declaration was made and its details.

Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) the Court declares that, but for the appellant’s plea of guilty, he would have been sentenced to a term of eight year’s imprisonment with a non-parole period of six years.

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