John Waters v The Queen
[2013] VSCA 86
•18 April 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0248
| JOHN WATERS | Applicant |
| v | |
| THE QUEEN | Respondent |
JUDGES: | REDLICH and WHELAN JJA, KAYE AJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 13 March 2013 |
DATE OF JUDGMENT: | 18 April 2013 |
MEDIUM NEUTRAL CITATION | [2013] VSCA 86 |
JUDGMENT APPEALED FROM: | Director of Public Prosecutions v Waters (Unreported, County Court of Victoria, Judge Hampel, 11 October 2012) |
CRIMINAL LAW – Application for leave to appeal against sentence – Initially arraigned on numerous drug charges – Plea of guilty to some offences and found guilty at trial of another – Sentenced to imprisonment – Earlier appeal against conviction and sentence allowed – Charge upon which convicted at trial remitted for re-trial – Plea of guilty to charge of trafficking in a commercial quantity of a drug of dependence – Sentence of 5 years’ 4 months’ imprisonment, 3 years to be served cumulatively on sentence previously imposed – Total effective sentence of 11 years 6 months with a new single non-parole period of 7 years 9 months – Whether order for cumulation and new single non-parole period manifestly excessive – Leave refused.
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Holt SC with Ms Z Broughton | C Marshall & Associates |
| For the Crown | Mr P J Doyle | Mr C Hyland Solicitor for Public Prosecutions |
REDLICH JA:
For the reasons given by Whelan JA I agree that the application for leave to appeal against sentence should be refused. I would only add the following.
The sentencing judge was faced with a difficult sentencing task. In very careful and informative reasons her Honour explained that she had significantly reduced the sentence that would otherwise have been imposed for the present offence had that been the base sentence. Because of the sentences that had already been imposed, a substantial reduction in the sentence for this offence was required in order to satisfy the principle of totality.[1] The total effective sentence now to be served had to be one that was no more than was necessary to reflect the overall criminality of the applicant.
[1]For a discussion of the rationale for the principle see Azzopardi v The Queen [2011] VSCA 372.
Giving effect to totality and allowing for the constellation of mitigating factors that were present, the sentence fixed and the new non-parole period clearly fell within a sound exercise of the sentencing discretion.
WHELAN JA:
In 2009 the applicant was arraigned in the County Court on two presentments containing a number of charges of drug offences. He pleaded guilty on arraignment or during his trial to eight offences. He was found guilty by the jury of one offence. He was sentenced to terms of imprisonment. He appealed against his conviction and the sentences. On 9 December 2011 those appeals were allowed.[2] The charge upon which he had been convicted after a trial was remitted for re-trial. He was re-sentenced on the other counts to a total effective sentence of 8 years 6 months’ imprisonment with a non-parole period of 6 years 3 months.
[2]Waters v The Queen [2011] VSCA 415.
The charge upon which he was ordered to be re-tried was a charge of trafficking in a large commercial quantity of MDMA. It was the most serious charge
which he faced. His re-trial was fixed for hearing in the County Court in September 2012. What had been a single count of trafficking in a large commercial quantity of MDMA was reformulated by the prosecution into two counts for the same offence referable to different periods and different transactions. After discussions between the defence and the prosecution, the applicant was arraigned on a single count of trafficking in a commercial quantity of MDMA to which he pleaded guilty.
The sentencing task which then confronted the County Court judge was a complex one. Notwithstanding the ‘downgrading’ of the charge, the offence for which she had to sentence the applicant was still the most serious of the nine charges he had originally faced. The interaction between that sentence and the sentences which had been imposed by the Court of Appeal gave rise to difficult problems. This was particularly so, as, by the time the judge came to sentence the applicant on 11 October 2012, he had served a very substantial part of the sentences imposed by the Court of Appeal and he was only one month short of the date upon which he was to become eligible for parole on those sentence. The sentencing issues raised by these circumstances were so unusual that the manager of Central Prison Records was called to give evidence on the plea. Amongst other things, he suggested that he had never seen this set of circumstances arise in any prior case.
The sentence imposed by the County Court judge was a sentence of 5 years and 4 months’ imprisonment. She ordered that 3 years of that sentence be served cumulatively on the sentence which had been imposed in the Court of Appeal. She fixed a new single non-parole period in respect of all the sentences pursuant to s 14 of the Sentencing Act 1991 of 7 years 9 months commencing on 9 December 2011.
The applicant now seeks leave to appeal. The proposed ground is that the order for cumulation and the new single non-parole period are manifestly excessive as:
1. They fall outside of the range of sentences reasonably available based on current sentencing practices including sentences imposed on related co-offenders.
2. They failed to give adequate weight to the delay in the applicant’s case being resolved.
3. They failed to give adequate weight to the applicant’s guilty plea.
Circumstances of the offending
The nine offences committed by the applicant concerned drug trafficking activities over a period, broadly speaking, from mid-2005 to mid-2006. The applicant was a drug user, but his trafficking activities were sophisticated and commercial, and involved three inter-related drug trafficking businesses.
The first drug business was trafficking in MDMA. These are the activities which were the subject of the count upon which he was originally convicted after trial and upon which he was ordered to be re-tried after a successful appeal. The charge to which he then pleaded guilty on his re-trial was trafficking of MDMA, in a commercial quantity rather than a large commercial quantity. The quantities involved in his activities were large. The total number of pills trafficked was 20,043 weighing 2,004 grams. This is two and a half times the threshold for a large commercial quantity and 20 times the threshold for a commercial quantity. The charge and applicant’s plea are explicable by the problems of proof which arise in relation to intent when the charge concerns trafficking by conducting a business over a specified period, a so-called ‘Giretti’[3] count. Twenty-five separate transactions were involved in this MDMA trafficking. One of the applicant’s suppliers of MDMA was one Boris Trajkovski. He was a co-accused on one of the presentments upon which the applicant was initially arraigned.
[3]R v Giretti (1986) 24 A Crim R 112.
The other two businesses which the applicant conducted were trafficking in methylamphetamine and trafficking in cannabis.
The conduct of the methylamphetamine business resulted in three offences of trafficking methylamphetamine. One of the trafficking methylamphetamine offences involved Trajkovski, and, like the MDMA trafficking, concerned numerous transactions, most of which were at what might be described as a ‘wholesale’ level. One of the offences was trafficking by manufacture and was committed with a co-offender named Samac. The third methylamphetamine trafficking offence concerned the possession of a relatively small amount of methylamphetamine which was admittedly held for sale but which was also held by the applicant for his own personal use.
The cannabis trafficking business resulted in one offence of trafficking cannabis, in which Trajkovski again had an involvement. The quantity sold was 18.8 kg. The applicant also committed an offence of conspiracy to cultivate cannabis as a result of arrangements he undertook, including the purchase of a house and a variety of equipment, for the purpose of establishing what would have been a sophisticated cannabis cultivation enterprise.
The applicant was arrested on 18 January 2006 and released on bail on 15 February 2006. Trajkovski had been arrested at the end of 2005. Neither of these two circumstances deterred the applicant from his drug trafficking activities.
He committed a further offence of trafficking methylamphetamine between May 2006 and the end of July 2006 and a further offence of trafficking MDMA on 23 June 2006. These two offences were charges on the second presentment upon which the applicant was arraigned in 2009.
Sentences imposed
There were nine counts against the applicant on the two presentments upon which he was originally arraigned. The count to which he pleaded not guilty, on which was tried and convicted, and as to which he successfully appealed, was count 7. The sentences imposed in the Court of Appeal on the other counts were as follows:
Charge on Presentments
Offence
Maximum
Sentence
Cumulation
First Presentment
2
Trafficking in Methylamphetamine
15 years
4 years
Base
5
Trafficking in Methylamphetamine
15 years
3 years
1 year
6
Trafficking in Methylamphetamine
15 years
1 year
None
9
Trafficking in Cannabis
15 years
4 years
1 year
10
Conspiracy to cultivate Cannabis
15 years
3 years
1 year
11
Possess Cannabis
1 year
Fine $250
None
Total for First Presentment
7 years’ imprisonment
Second Presentment
1
Trafficking in Methylamphetamine
15 years
1 year, 6 months
Base
2
Trafficking in MDMA
15 years
1 year, 6 months
6 months
Total for Second Presentment
2 years of which 18 months’ imprisonment was to be cumulative on 7 years on First Presentment
Total Effective Sentence:
8 years, 6 months’ imprisonment
Non-Parole Period:
6 years, 3 months’ imprisonment
Pre-sentence Detention Declared:
1167 days
6AAA Statement:
10 years’ imprisonment, Non-Parole Period of 7 years, 9 months
In the County Court the following sentence was imposed:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Trafficking in a commercial quantity of MDMA 25 years 5 years, 4 months’ imprisonment 3 years on Court of Appeal sentence New Total Effective Sentence: 11 years, 6 months’ imprisonment New Non-Parole Period: 7 years, 9 months Pre-sentence Detention Declared: 1167 days already declared 6AAA Statement: 10 years’ imprisonment against a ‘notional’ sentence of 8 years, being the sentence which would have been imposed if this sentence had been imposed with all the others County Court judge’s sentence
The County Court judge who sentenced the applicant on 11 October 2012 gave comprehensive reasons for the course which she adopted. She set out the history of the various counts in some detail, referring to the complexity often involved in proving intent in relation to Giretti counts. Her Honour set out the circumstances of the offending in relation to the offence for which she had to sentence the applicant, and she addressed and resolved some factual matters which had been contested on the plea. She referred to the circumstances of the other offences by reference to the Court of Appeal judgment, which had in turn referred to the sentencing remarks of the sentencing judge in 2009. She set out the matters relied upon in mitigation including what she described as ‘very strong family support’, the delay which had been involved in finalisation of the matter, and the fact that the applicant had by then been in custody for in excess of six years. She referred to the difficulties which the long period already served created in terms of fixing an appropriate sentence, and to the submissions made on behalf of the applicant by his counsel.
The sentencing judge indicated that if she had been sentencing the applicant for the offence with which she was concerned, and for all of the other offences at the same time, she would have imposed a sentence of 8 years’ imprisonment and ordered that three years of that sentence be served cumulatively upon the sentences imposed for the other offences. In order to give effect to that outcome, given the period the applicant had already served, she said that it was necessary to sentence the applicant to a term of 5 years 4 months’ imprisonment. With the order for cumulation this resulted in a total effective sentence of 11 years 6 months, being three years greater than the total effective sentence imposed in the Court of Appeal.
Her Honour determined that a new single non-parole period should be fixed which added a further 18 months to the non-parole period which had been fixed in the Court of Appeal. In due course she fixed that period by an order in the following terms:
Direct that a new non-parole period commencing 9 December 2011 be fixed and that the new minimum term to be served before being eligible for parole is 7 years 9 months’ imprisonment.
In making that order her Honour adopted the second of the alternative approaches which Brooking JA had held in R v Rich (No 2)[4] were open to a sentencing judge.
[4](2002) 4 VR 155.
No complaint is made on appeal as to any of what might be termed the ‘technical’ aspects of her Honour’s disposition. It is the substance of the disposition which is complained of, not the form. The form accorded with submissions made to her by the applicant’s counsel on the plea.
Submissions on the application
On behalf of the applicant it was submitted that the sentencing judge had had a difficult task, but that her focus on those difficulties had ‘distracted’ her and had resulted in a situation where the order for cumulation and the new non-parole period failed to properly reflect the totality of the offending in the light of what was said to be the extraordinary circumstances of this case.
It was submitted that sentencing statistics, notwithstanding their well-recognised limitations, were relevant and revealed that the sentence that her Honour imposed, was the second longest such sentence for similar offending during the period from 2006-2007 to 2010-2011 and also occupied a similar position in relation to the period from 2004-2005 to 2008-2009. Reliance was also placed upon sentences imposed upon other offenders, particularly the sentence imposed in Mustica v The Queen[5] and the sentence imposed on the co-offender Trajkovski.[6] It was submitted that Mustica’s lower sentence, a total effective sentence of 10 years’ imprisonment with a non-parole period of 6 years 6 months for what was said to be relevantly similar offending, was significant and was indicative of error. It was submitted that the sentences imposed on the co-offenders, particularly Trajkovski, who after appeal was sentenced to a total effective sentence of 11 years 3 months with a non-parole period of 8 years 3 months, was also indicative of error. It was submitted that it had been found by the sentencing judge that Trajkovski ‘sat above’ the applicant in the supply chain and yet the applicant had received almost the same sentence as him.
[5](2011) 31 VR 367.
[6](2011) 32 VR 587.
It was submitted that the sentencing judge must have failed to give adequate weight to both the delay which the applicant had experienced and to his guilty plea. It was submitted that the outcome was manifestly excessive and that there was nothing in the applicant’s case which warranted a total effective sentence placing his sentence in the highest two or three sentences imposed for like offending. It was said that the procedural history of the case, requiring the sentencing judge to ‘graft’ a sentence for this offence, which in ordinary circumstances would itself have been the base sentence, onto sentences imposed by the Court of Appeal, had led to a manifestly excessive total outcome.
The respondent resisted the application for leave relying upon statements in the authorities as to the care which must be taken when considering sentencing statistics and what are said to be comparative cases.[7] The respondent addressed the differences between the applicant’s position and that of Mustica in some detail suggesting that the difference in sentence was explicable.
[7]Hili v The Queen [2010] 242 CLR 520, 535 [48], 537 [54]-[55]; Hudson v The Queen (2010) 30 VR 610, 617.
Sentencing statistics and comparable sentences
The sentence imposed by her Honour in this case is only at the top of the range as revealed by the sentencing statistics if it is treated as a sentence of eight years’ imprisonment. In my view that is not the correct analysis. The sentence her Honour imposed was 5 years 4 months’ imprisonment. She explained how she reached that figure. It was no part of the applicant’s case that the sentencing judge had engaged in impermissible two-stage sentencing.
Notwithstanding the limitations involved in reliance upon what are said to be comparable sentences, given the importance placed in the applicant’s submissions upon the sentencing dispositions in relation to Mustica and Trajkovski I will address those two offenders specifically.
In relation to the kind of roles which Trajkovski, Mustica and the applicant played in their respective operations, there are similarities. They were all principals in the sense that they were conducting commercial drug trafficking operations for personal profit. They were all trafficking in large quantities. I do not accept the applicant’s submission that there was a finding by the sentencing judge that Trajkovski ‘sat above’ the applicant. All the sentencing judge said about that was that the applicant had obtained MDMA from Trajkovski and also from Samac.[8] All three offenders, the applicant, Mustica and Trajkovski, were in the upper range of traffickers in a commercial quantity.
[8]The paragraph of the sentencing remarks cited in support of the proposition that the sentencing judge had found that Trajkovski ‘sat above’ the applicant was [24]. That paragraph does not address the issue. The paragraph to which I refer is [26].
In relation to the number of offences committed, the applicant committed more offences than either of the two others. Trajkovski committed six offences, three of which were trafficking in a commercial quantity of methylamphetamine. Mustica committed four offences.
All three offenders were mature adults. Trajkovski was 39 at the time of offending and 43 at the time of sentence. Mustica was 52 at the time of offending, 56 at the time of sentence, and 57 at the time of appeal. The applicant is now 52 and was 44 at the time of his offending.
Trajkovski and the applicant were both drug users.
Trajkovski had no priors of any significance. It was said that the applicant was in a similar position, but I do not accept that that is so. The applicant has serious prior offences for dishonesty, which in 2003 resulted in a suspended jail term. The sentencing judge was told on the plea that those offences were drug related. Mustica had a very old criminal history and no drug related prior offending.
Trajkovski, Mustica and the applicant all pleaded guilty or indicated a willingness to plead guilty to the charges of which they were eventually convicted.
The circumstances of delay in the applicant’s case were extraordinary, and are perhaps unprecedented. That is an important factor in his case. But there was also an ‘extended period of delay’ in Mustica’s case.[9] Trajkovski’s appeal was determined and he was re-sentenced on 17 June 2011. He had been arraigned with the applicant in 2009 and his offences were committed in the second half of 2005.
[9](2011) 31 VR 367, 383 [83].
There is one significant circumstance which differentiates the applicant from both Trajkovski or Mustica. The applicant offended whilst on bail. He conducted three drug trafficking businesses. When his co-offender Trajkovski was arrested, he was undeterred. Then, he was arrested. He was released on bail after about a month. He was still undeterred. He committed further drug trafficking offences. Apart from anything else, in relation to the offences committed whilst on bail the presumption of concurrency was replaced by a presumption of cumulation.[10]
[10]Sentencing Act 1991 s 16.
In my view, the differences in the total effective sentences and the non-parole periods of the applicant on the one hand and Trajkovski and Mustica on the other do not suggest any error in the sentencing process. Insofar as Trajkovski is concerned, there is not a disparity which is such as to give rise to a justifiable sense of grievance.
Delay and guilty plea
The circumstances of this case were extraordinary. The sentencing judge addressed them comprehensively and there is no suggestion that she failed to appreciate any significant fact or matter in relation to them. In substance what is put is that she failed to give them sufficient weight.
As was pointed out by Batt JA in R v Giles:[11]
Grounds going only to the weight given to factors or sentencing purposes are difficult indeed to make out having regard to the discretionary character of a sentence, and ordinarily will fall to be treated as particulars of an allegation of manifest excessiveness or, as relevant, manifest inadequacy.
That is the way the matter was put on this application.
[11][1999] VSCA 208, [13].
In order to establish that a sentence is manifestly excessive it is necessary to demonstrate that the sentence imposed is ‘wholly outside the range of sentencing options available’.[12]
[12]R v Abbott (2007) 170 A Crim R 306, 309 [13]-[14].
I do not consider that that has been demonstrated in this case. Her Honour dealt with the very difficult sentencing problem confronted by the concurrence of circumstances which arose here in a full and comprehensive manner and determined upon a disposition which, in my view, was reasonably open to her to impose.
Conclusion
I would refuse the application for leave to appeal.
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KAYE AJA:
For the reasons given by Whelan JA, I agree that the application for leave to appeal against sentence should be refused.
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