Jason Gioffre v The Queen
[2020] VSCA 177
•1 July 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0097
| JASON GIOFFRE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 June 2020 |
| DATE OF JUDGMENT: | 1 July 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 177 |
| JUDGMENT APPEALED FROM: | [2020] VCC 473 (Judge M P Bourke) |
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ELECTION TO RENEW APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to one charge of trafficking a drug of dependence and one charge of possession of a drug of dependence – Whether in comparing offence to previous offence involved a factual finding not reasonably open on evidence – Where sentence disproportionate to objective gravity of offence –
Whether sentence manifestly excessive – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Poole | Giorgianni & Liang |
| For the Respondent | Ms R Harper | Ms A Hogan, Solicitor for Public Prosecutions |
KAYE JA
EMERTON JA:
Introduction
On 22 March 2019, the applicant pleaded guilty to trafficking a drug of dependence, methylamphetamine, (charge 1)[1] and to possessing a drug of dependence, cannabis (charge 2)[2]. He was sentenced in the County Court as follows:
[1]Contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1991.
[2]Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1991.
Charges on Indictment J11344344
Offence
Maximum
Sentence
Cumulation
1 Trafficking in a drug of dependence (contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981) 15 years 4 years Base 2 Possession of a drug of dependence (contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981) 12 months 3 months Nil Total Effective Sentence: 4 years’ imprisonment Non-Parole Period: 2 years and 6 months’ imprisonment (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 318 days 6AAA Statement: 6 years’ imprisonment with a non-parole period of 4 years
The applicant seeks leave to appeal against the sentence on two grounds. Ground 1 asserts that the sentencing judge erred ‘in that he made a finding that was not reasonably open on the evidence’; ground 2 asserts that the sentence is manifestly excessive in that it is disproportionate to the objective gravity of the offending. Leave having been refused by a single judge of the Court, the applicant has elected to have an oral hearing of his application pursuant to s 315(2) of the Criminal Procedure Act 2009.[3]
[3]Jason Gioffre v The Queen (Unreported, Victorian Court of Appeal, Priest JA, 19 July 2019) [31].
Circumstances of the offending
On 22 May 2018, at around 12.30 pm, the applicant left his residence at Herne Hill near Geelong in his car. Shortly afterwards he was intercepted by police, arrested and transported to the Geelong Police Station.
When the applicant was searched, police found a small black pouch. The black pouch held three clear bags containing a white crystal substance weighing approximately 70.4 grams, a clear resealable bag containing a number of smaller clear releasable bags and a set of digital scales. The white crystal substance was analysed and found to contain 60 grams of pure methylamphetamine.
Later that day, a search warrant was executed at the applicant’s residence. His bedroom was searched and the following items were located and seized:
(a) a black bag that held a vacuum sealed ‘cryovac’ bag containing 84 grams of cannabis and a clear resealable bag containing a number of smaller clear resealable bags;
(b) one roll of unused ‘cryovac’ plastic bags;
(c) pieces of plastic ‘cryovac’ bag located in the bin inside the bedroom; and
(d) measuring spoons.
The applicant was charged with trafficking and possession offences.
Previous offending
This was not the first time the applicant had been charged with and convicted of trafficking a drug of dependence. On 5 July 2013, the applicant was sentenced by Judge Mullaly in the County Court of Victoria to a total effective sentence of five years, with a minimum term of two years and nine months, in respect of a number of offences including a charge of trafficking in a drug of dependence. The trafficking charge attracted a sentence of three years’ imprisonment, which served as the base sentence. The applicant pleaded guilty to the trafficking charge on the basis that he sold methylamphetamine to a named individual between 13 September 2012 and 1 October 2012.
This earlier offending (the ‛2012 offending’) was more serious than the present offending. In 2012, when police executed a search warrant on the applicant’s then residence they found, inter alia, the following items:
(e) 13.5 grams of methylamphetamine;
(f) $305,040 in cash;
(g) a military and police Smith & Wesson .38 special revolver;
(h) a sawn off Stirling 12 gauge shotgun;
(i) a red shotgun cartridge, two Smith & Wesson .38 calibre rounds and a box of the same, a box of Winchester BB shotgun cartridges and four Winchester shotgun cartridges; and
(j) handwritten notes recording how much money the applicant was owed (found in a suitcase that also contained scales and deal bags).
In his reasons for sentence in respect of the 2012 offending,[4] Judge Mullaly described the 2012 offending as follows:
Police investigations revealed you were regularly selling methylamphetamine in ounce lots to a Travis Kelly. On 1 December 2012, that man was arrested. He had just purchased 27.9 grams, or one ounce, of methylamphetamines from you. It was at 80 per cent purity. It is alleged that you trafficked approximately 10 to 14 ounces, or between 270 and approximately 370 grams, of methylamphetamines to Mr Kelly over about a three week period.
Clearly from all the circumstances, you were a significant player in the supply of methylamphetamines in Geelong.[5]
[4]DPP v Gioffre (Unreported, County Court of Victoria, Judge Mullaly, 5 July 2013).
[5]Ibid [2]–[3].
His Honour continued:
The community expects that when those entrepreneurial drug traffickers fall to be punished, that the courts will endeavour to deter and denounce this sort of conduct by imposing stern sentences. An indication of the scale of your trafficking is provided by the vast sum of cash you had at your premises. Also, the possession and the type of firearms found are of great concern. To get and keep these weapons indicates that you were plainly involved in the serious lawlessness that surrounds drug trafficking.[6]
[6]Ibid [4].
Judge Mullaly’s sentencing remarks make the scale and gravity of the 2012 offending plain.
In the event, the applicant served the entire sentence imposed for the 2012 offending, as he was not granted parole. The applicant was released from gaol at the conclusion of his sentence just six months before the present offending. In other words, the applicant quickly resumed selling drugs once released back into the community. In the absence of supervision and support of the type associated with parole, the applicant was largely unsupported, became homeless and began to use drugs again.
Applicant’s personal circumstances
The applicant was born in December 1987, and at the time of the offending he was 31 years of age. When he was three years of age his parents separated in what appear to have been difficult circumstances. Subsequently his mother re-partnered. In due course he had a number of different stepfathers, some of whom were violent.
The applicant attended four different primary schools, and ultimately finished his education at the end of Year 10. During the following years he worked in a number of different occupations, including sheet metal fabrication, a chicken factory, a security supervisor, and bricklaying. His last employment was with a cold store in Melbourne.
The applicant had a short period of experimentation with cannabis in his early teenage years. When he was about 18 years of age he occasionally used methylamphetamine. Subsequently, after having difficulties gaining employment, he turned to drugs to escape from his problems. In 2011, approximately 12 months before his arrest for the 2012 offending, he commenced regular use of methylamphetamine. As discussed, after completing his sentence, he had difficulties adjusting to living in the community, and returned to drug use. It was in that context that the offending in the present case took place.
Reasons for sentence
The sentencing judge commenced by recording the applicant’s plea of guilty, which qualified as an early plea notwithstanding a contested committal, because the applicant had offered to plead to the offence of which he was ultimately convicted (trafficking simpliciter, as opposed to trafficking in a commercial quantity) prior to the committal.[7] The judge observed that although the amount of methylamphetamine found on the applicant exceeded the legislative threshold for a commercial quantity of methylamphetamine, being 50 grams, the applicant was not to be sentenced for trafficking in a commercial quantity as the accepted position was that the applicant intended to traffick less than 50 grams of methylamphetamine. Nonetheless, the applicant possessed a substantial quantity for sale well above the legislative threshold for simple trafficking.[8]
[7]DPP v Gioffre [2019] VCC 473, [3]–[4] (‘Reasons’).
[8]Ibid [13]–[14].
After describing the applicant’s personal circumstances, including his disadvantaged childhood and difficult family background, the judge referred to the 2012 offending, noting the sentence imposed by Judge Mullaly and setting out the extent of the 2012 offending, including the possession of substantial proceeds of crime and the commission of firearm offences. The judge observed in relation to the 2012 offending that the applicant had been a ‘significant player’ in the supply of methylamphetamines in Geelong.[9]
[9]Ibid [17]–[21].
The judge recorded that the applicant had served the full term of five years’ imprisonment for the 2012 offending, that he had had difficulty adjusting once he was back in the community,[10] and that he had been diagnosed with a depressive illness stemming from the abandonment and instability in his childhood.[11] However, the judge continued:
Drug trafficking is a serious crime and attack upon the welfare of our community. It attracts a maximum sentence of 15 years. You have a highly relevant prior conviction. Such circumstances make important sentencing considerations of deterrence, here both specific and general deterrence, your moral culpability, the need to sentence in a way to condemn and proportionately punish. There must be a sentence of imprisonment, one of significant length.[12]
[10]Ibid [23].
[11]Ibid [24].
[12]Ibid [25].
The judge listed three matters going to moderate the sentence: first, the applicant’s plea of guilty and cooperation; secondly, the applicant’s personal history and circumstances; and, thirdly, the applicant’s prospects of rehabilitation. In relation to the applicant’s prospects of rehabilitation, the judge said:
[Counsel] put that you have reasonable prospects for rehabilitation, pointing for example to your limited criminal history. You have the motivation of wishing to rekindle and maintain a relationship with your children. Before succumbing to drug dependence, you have shown yourself capable of consistent employment. You are still in your early thirties. [Counsel] also made the point that you have not hitherto had the benefit of a community based drug rehabilitation program. However, your prior conviction is relevant. You were sentenced in 2013 to three years for trafficking in circumstances which should be seen as at least comparable to the offence before me. I bear in mind that the sentencing judge imposed significant cumulative sentences for other related offences. You committed this offence only six months after release from a five year sentence. I am obliged to be guarded about your rehabilitation. Your prior conviction also makes more relevant the sentencing purpose of specific deterrence. You are not to be punished again for your 2012, 2013 offending. As stated I must be guarded about your prospects for rehabilitation; however, I do not discount them. Much will depend on whether you can stay drug free. I hope release and support upon parole helps you with this.[13]
[13]Ibid [29].
Ground 1
The applicant submits that the judge fell into error by describing the circumstances of the 2012 offending as ‘at least comparable’ to the present offending, a finding submitted not to be open on the facts because the 2012 offending involved:
(k) significant actual sales of methylamphetamine;
(l) a period of trafficking between dates (13 September 2012 to 1 October 2012);
(m) a large quantity of drugs (between 10 to 14 ounces or approximately 270 to 370 grams);
(n) significant proceeds of crime ($305,040);
(o) the presence of firearms (a Smith & Wesson .38 revolver and a sawn off shotgun); and
(p) the possession of cartridge ammunition.
In contrast, the applicant submits, the present offending involved no sales, a single instance of possession for the purpose of sale, a much smaller quantity of methylamphetamine, no evidence of any enrichment or proceeds of crime and no weapons of any description. As the 2012 offending was of greater objective gravity and involved higher moral culpability than the present trafficking offence, it was simply not open to the judge to treat the 2012 offending as comparable to the present offence of trafficking. In comparing the offending in the way that he did, the judge took an impermissibly harsh view of the objective gravity of the present offence of trafficking.
The respondent submitted that the judge was alive to the factual differences between the present offending and the 2012 offending and that the 2012 offending was objectively more serious. The judge acknowledged during the course of the plea hearing that the present offending was a ‘lesser’ form of the same offence. Nonetheless, in sentencing the applicant, the judge took into account that the previous conviction was for the same type of offence, involving the same drug of dependence. It was in this context that the judge described the 2012 offending as ‘at least comparable’. Having regard to the basic similarities, it could not be said that the two sets of offending were not comparable, even if they differed in certain respects.
We accept the respondent’s submissions. There was nothing factually incorrect about the statement that the two trafficking offences were ‘at least comparable’. While the present trafficking offence was not as serious as the 2012 trafficking offence, it was comparable offending in the sense that it involved the applicant going back to selling methamphetamine.
In sentencing the applicant, the judge was clearly aware of the different factual circumstances of the previous offending. In the Reasons,[14] the judge summarised, in some detail, the circumstances of the 2012 offending. His Honour observed that on that occasion, the applicant was sentenced both for trafficking in methylamphetamine and for possessing the proceeds of crime ($300,000 in cash) and firearm offences which the sentencing judge associated with the drug trade. He then stated:
Judge Mullaly found that you were a significant player in the supply of methylamphetamine in Geelong. The amount of cash you possessed was relevant to this finding and what was found about the scale of your trafficking. You had been arrested in December 2012 having sold just 1 ounce of the drug at 80 per cent purity. It was alleged that you sold 10-14 ounces, 270 grams to 370 grams, over an approximate three-week period.[15]
[14]Ibid [21].
[15]Ibid.
The statement by the judge that the applicant was sentenced in 2013 to three years for trafficking ‘in circumstances which should be seen at least comparable to the offence before me’ must be understood in the context of the entirety of his Honour’s reasons, including the part that we have quoted relating to the details of the previous offending.
The existence of earlier, similar offending was relevant to a number of sentencing considerations, including the applicant’s prospects of rehabilitation and the need for specific deterrence and community protection. Reference to the applicant’s earlier, similar offending in this context was not an indication that the judge would treat the present offending as equally serious and it cannot be inferred that it led the judge to form an impermissibly harsh view of the objective gravity of the present offence of trafficking. The judge expressly recognised that the present trafficking offence was not as serious as the 2012 trafficking offence. We see no error in the judge’s approach.
Ground 1 is not made out.
Ground 2
The applicant complains that the imposition of a sentence of four years for trafficking simpliciter was manifestly excessive given that he had previously received a sentence of three years for a more serious example of the same offence. The trafficking sentence imposed in the present case was 33 per cent higher than the sentence imposed for the 2012 trafficking offence, notwithstanding that the 2012 offence was, objectively, a significantly more serious example of the offence. The applicant says that this amounts to imposing a fresh penalty for the 2012 offending and involves the imposition of a sentence which is manifestly excessive.
In order to succeed on the ground that the sentence imposed by the judge was manifestly excessive, the applicant must demonstrate that the sentence was wholly outside the range of sentencing options available to the sentencing judge. In other words, the sentence that is the subject of the application for leave to appeal must be so excessive as to bespeak error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in the judge’s reasons for sentence.[16]
[16]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); Lieu v The Queen [2016] VSCA 277, [50] (Beach and Kaye JJA).
The purposes for which a sentencing court may take into account an offender’s criminal history in the sentencing synthesis were identified by this Court in R v O’Brien as follows:[17]
an adverse criminal record may impact on the sentencing process in a number of ways; for example, as an indicator of the offender’s moral culpability, his prospects for rehabilitation, his dangerous propensity and the community’s need for protection, and the increased importance of specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence.[18]
[17][1997] 2 VR 714.
[18]Ibid 718 (Charles JA, with whom Winneke P and Southwell AJA agreed).
In the course of the plea hearing, the judge stated on a number of occasions that he had to be careful not to punish the applicant again for the 2012 offending. He recognised that the present offending was ‘a lesser form of trafficking’ than the trafficking the applicant was previously sentenced for, but noted that the 2012 offending was relevant to the applicant’s prospects of rehabilitation and the need for specific deterrence. The applicant committed the present offences shortly after being released from custody, having served a long sentence for the same kind of offence (albeit a more serious example). The fact that the applicant took up selling methylamphetamine again soon after his release is, as the judge recognised, relevant to a number of sentencing considerations.
In this case, the applicant was sentenced to four years’ imprisonment on the trafficking charge, while the 2012 trafficking charge, alone, attracted a three year prison sentence. This outcome appears, on its face, to be inconsistent with the judge’s preliminary view of the sentencing relativities, expressed during the plea hearing. In a somewhat confusing exchange with counsel, the judge said:
It’s not just arithmetic, isn’t it? I mean, it seems to me that this is a lesser form of trafficking than what Judge Mullaly sentenced him for. It’s not just a matter of giving him more than what he got last time, I would have thought. Otherwise you are tending to punish him twice or there’s a risk of it. On face value, I think the proportionate punishment for this offence is not what Judge Mullaly gave him, or certainly not more.
These were off the cuff remarks by the sentencing judge made in the course of discussion with counsel during the plea hearing. They record his awareness of the need not to punish the applicant twice for the 2012 offending, although that offending was plainly relevant to the exercise of the sentencing discretion in this case. Ultimately, his Honour considered the 2012 offending to be relevant to the assessment of the applicant’s moral culpability, the weight to be given to general and specific deterrence, and considerations of just punishment and proportionality.[19] It was also relevant to the applicant’s prospects of rehabilitation.[20] There is nothing in the plea transcript or the Reasons to suggest that the judge improperly treated the applicant’s criminal history as aggravating the present offending.
[19]Reasons [25].
[20]Reasons [29].
Having regard to the maximum term of imprisonment, the objective gravity of the offending for which the applicant stood to be sentenced and the factors particular to the applicant, including his previous offending and the fact that he reoffended so soon after being released from gaol, the total effective sentence imposed was reasonably open to the judge.
Ground 2 is not made out.
Disposition
Neither proposed ground of appeal is made out. Leave to appeal is refused.
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