Koumis v The Queen
[2013] VSCA 47
•7 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0259
| THEODOSIS KOUMIS | Appellant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE JA, KAYE and LASRY AJJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 25 February 2013 |
| DATE OF JUDGMENT | 7 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 47 (1st Revision – 08.03.13 [5], fn 3, fn 21.) |
| JUDGMENT APPEALED FROM | DPP v Koumis (Unreported, County Court of Victoria, Judge Taft, 7 August 2012) |
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CRIMINAL LAW − Appeal against sentence − Offences committed whilst on parole − Fresh evidence − Reclaimed parole − Whether cumulation of reclaimed parole on sentence imposed offends principle of totality − Whether application of principle of totality permits consideration of time already served under earlier sentence − Appeal dismissed
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
I have had the advantage of reading the draft judgments of Kaye and Lasry AJJA. I agree with their Honours that leave to appeal should be granted and the appeal dismissed. In my opinion the sentence was not manifestly excessive, having regard to the legislative policy expressed in s 16(3B) of the Sentencing Act1991, the criminality involved in the entirety of the applicant’s offending and the fact that the offences were committed only a short time after he had been released on parole for the earlier serious offences.
I have reached that view regardless of whether the principle of totality only permits the Court to have regard to the period of imprisonment calculated by reference to the sentences against which the applicant appeals, combined with the additional period of imprisonment he will have to serve as a consequence of the breach of parole, or requires the Court to take account of the whole of the sentence imposed for the previous offending.
Although I agree with their Honours’ conclusion, I take a different view as to the approach which this Court must take to the application of the principle of totality. There is an attraction in the view expressed by my brother judges, that totality requires the court to consider the total period of imprisonment to be served by the applicant for his previous offending and the sentences imposed for the later offending, to which this appeal relates. Such an approach is logically consistent with the reasoning which underpins the totality principle, which is that the court must consider whether the effect of the sentence under appeal is proportionate to the offender’s overall criminality.
The determination of an appropriate sentence through the process of instinctive synthesis should not be over-complicated. The broader approach to totality which is supported by my brother judges is simpler than the approach taken by this court in McCartney v The Queen[1] and Waugh v The Queen,[2] which held that the
court is confined to considering only the combined parole sentence and the sentence for the later offences.
[1][2012] VSCA 268.
[2][2013] VSCA 36.
It may be noted also that in many cases where the later offending occurred while the offender was on parole, the two different approaches will not necessarily alter the outcome of a sentencing appeal. This may be because of the effect of s 16(3B) of the Sentencing Act 1991, which is discussed by this Court in Morgan v The Queen,[3] to which Lasry AJA refers in his judgment.
[3][2013] VSCA 33, [104]–[105].
Be that as it may, the correctness of McCartney v The Queen and Waugh v The Queen which hold that the court must consider the period of imprisonment arrived at by adding the parole sentence to the sentence currently imposed, can only be determined by a bench of five.
KAYE AJA:
I have read the reasons of Lasry AJA in draft form. I agree with his Honour’s reasons, and with his conclusion. For those reasons I agree that leave to appeal should be granted, but that the appeal should be dismissed. I also agree with his Honour’s conclusion, expressed in paragraph 17 of his reasons, that, in considering whether the total period now to be served by the applicant in custody breaches the principle of ‘totality’, it is appropriate to examine the nature of the original offending, the offending for which he was sentenced, and the sentence imposed on him, including that part of the prior sentence already served by the applicant.
In my view, that conclusion is necessarily founded on basic principle. In sentencing an offender, a court is required, by the application of established sentencing principles, to impose a just sentence, taking into account the circumstances of the offending, and all the relevant circumstances of the offender. In a case where a court sentences an offender for an offence, which has resulted in the cancellation of parole for an earlier offence, the fact of that cancellation, and its
consequences for the offender, are indisputably relevant, and must be taken into account by the sentencing judge. They necessarily include the fact that the offender has already served a period in custody for the prior offence. Similarly, where an offender’s parole has been cancelled after sentence, the Court must take into account the same circumstances, including the circumstances of the prior offending, the sentence already served in respect of it, and the parole period which has been cancelled and which is liable to be served in custody.
Generally, where an offender is sentenced for an offence which has resulted in the cancellation of parole, I would expect that that circumstance may not result in any, or any substantial, moderation in the sentence which is to be passed. The fact that the offence constituted a breach of parole is, of itself, an aggravating feature of the offending. In addition, as Redlich JA stated in DPP v Johnson[4], the sentencing court must have due regard to the legislative policy, contained in s 16(3B) of the Sentencing Act, of deterring violations of parole. Nevertheless, in passing a sentence, or (as in this case) in reviewing a sentence already passed, the court must take into account that the cancellation of the offender’s parole means that the offender is required to complete the balance of a custodial sentence to which he or she is already subject, in addition to serving the sentence which is to be imposed on the offender. In doing so, the court must consider the criminality involved in the prior offending, and the period already served in custody in respect of it. Those circumstances are all logically relevant to determining whether, in a particular case, there may need to be some moderation of the sentence which is to be imposed, in order to ensure that, in all the circumstances, it is ‘just and appropriate’.[5]
[4](2011) 213 A Crim R 262, [72].
[5]Compare R v Mill (1988) 166 CLR 59.
Thus, in order to make such a determination in the present case, the relevant circumstances of the applicant must include (inter alia) the degree of criminality involved in the previous offence, the total sentence imposed for it, the amount of the sentence already served by the applicant, and the amount of the parole period which
he is now liable to serve in custody in respect of it. It would, in my opinion, be artificial and unbalanced to disregard the fact that the applicant had already served four years and six months in custody in respect of the earlier offence, in determining whether, as a result of the cancellation of his parole, the sentence imposed by Judge Taft is just and appropriate, and as such, does not offend the principle of ‘totality’.
LASRY AJA:
This is an application for leave to appeal against sentence by the Theodosis Koumis (‘the applicant’).
On 7 August 2012 in the County Court sitting at Warrnambool, following his plea of guilty on the previous day, the applicant, now aged 64 years, was sentenced in relation to two charges of trafficking in a drug of dependence. The first charge related to trafficking in heroin on 24 September 2011 and on that charge he was sentenced to be imprisoned for 12 months. On the second charge, which related to trafficking in amphetamine on the same day, he was sentenced to be imprisoned for 2 years. Six months of the sentence on charge one was ordered to be served cumulatively with the sentence on charge two resulting in a total effective sentence of 2 years and 6 months. His Honour ordered that 12 months of the total effective sentence was to be suspended for 3 years. That meant that the applicant is required to serve 18 months of the sentence imposed. The pre-sentence detention of the applicant was declared at 318 days. Pursuant to s 6AAA of the Sentencing Act 1991, His Honour indicated that but for the applicant’s pleas of guilty the sentence he would have imposed would have been 3 years and 3 months’ imprisonment with a non-parole period of 2 years and 3 months.
As at 24 September 2011 when he was arrested for these matters, the applicant was on parole for earlier offending which I will describe shortly. Following the sentencing of the applicant, on 2 October 2012, the Adult Parole Board cancelled that parole which means that the applicant must serve an additional 2 years, 5 months and 30 days. In accordance with authority the sentencing judge did not take into
account the fact that the applicant ‘…was likely to be claimed by the Parole Board and required to serve his parole sentence’.[6]
[6]R v Mangelen (2009) 23 VR 692, [6]; R v Piancentino; R v Ahmad (2007) 15 VR 501, [28].
The applicant seeks leave to appeal on one ground:
As a result of the order made by the Adult Parole Board on 2 October 2012 requiring the applicant to serve in custody the period of 2 years 5 months and 30 days parole owing by him, fresh evidence exists which requires the sentencing discretion to be re-opened and a lower sentence fixed.
Circumstances of Offending
When the applicant was arrested by police on 24 September 2011 he had just checked into a hotel in Portland. He was under earlier police surveillance and when searched, found to be in possession of a total quantity of 64.3 grams of a mixture of amphetamine with a purity of about 5% and 15.2 grams of a mixture containing heroin with a purity of 16%. In the hotel room he was using, police found some of the drugs in a zip lock bag in some clothing and other accoutrements of drug trafficking. Later in his vehicle, mobile phones, cash and digital scales were also located.
The applicant was interviewed by police and he admitted that he was to receive a commission of $200 for delivery of bags of drugs but denied a more extensive involvement. As the sentencing judge observed, ‘[t]he prosecution case and plea, which has belatedly been entered, is founded upon a confined culpability on your part’. The ‘confined culpability’ amounted to the applicant being a courier only, despite the misgivings of the sentencing judge.
The applicant’s earlier offending occurred in the first half of 2006 and on 30 May 2007, he and four other offenders were dealt with in the County Court for trafficking in a commercial quantity of heroin and trafficking in methylamphetamine. The amount of heroin involved was ‘close to’ one kilogram. The amount trafficked by the applicant exceeded 500 grams. The amount of methylamphetamine involved was about half a kilogram. In total, the applicant received of the order of $200,000 in revenue from the combined benefits of the trafficking and it was those financial rewards that explained his involvement.
During those events in 2006, it appears that the applicant was the victim of a robbery which resulted in four individuals stealing drugs, money, jewellery and a mobile phone from him at the point of a knife. The applicant reported the matter to police and ultimately agreed to give evidence against those who had committed that offence. He also agreed, two days before his plea, to give evidence against one of his drug suppliers and confirmed that willingness with an undertaking on oath during the plea.
The applicant was then sentenced to 7 years’ imprisonment with a non-parole period of 4 years and 6 months. He applied for leave to appeal which was refused. He was released on parole on 10 October 2010.
There is no dispute before us that ‘…the cancellation of [the applicant’s parole] and the consequences thereof do constitute fresh evidence which this court should receive.’[7] There are, as the applicant properly concedes, limits to the application of the principle of totality and such principle should not engulf other critical sentencing considerations.[8] The issue is whether, leave having been granted, a different sentence should be imposed. The sentencing judge noted that at the time of him imposing sentence no application to the Parole Board for breach of parole had occurred and he could not anticipate ‘an administrative decision’ of the Parole Board.[9]
[7]R v Alashkar (2007) 17 VR 65, [12].
[8]R v Mangelen (2009) 23 VR 692, [36].
[9]DPP v Koumis (Reasons for Sentence) (Unreported, County Court of Victoria, Judge Taft, 7 August 2012), [13].
Analysis
Section 16(3B) of the Sentencing Act 1991 provides:
Every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.
In R v Piacentino; R v Ahmad,[10] this Court constituted by a bench of five made clear that the principle of totality applied ‘…to an offender who was liable to serve an additional sentence by virtue of breach of parole’.[11] In DPP v Johnson,[12] Redlich JA considered the authorities and summarised the relationship between the principle of totality and the clear legislative policy of s 16(3B) of the Act as follows:
This line of authority contemplates the ongoing operation of the principle of totality in light of s 16(3B) and an approach to applying the principle that is appropriately sensitive to the legislative policy behind the section. It is in this latter respect that a sentencing court should pay particular regard to the principles of general and specific deterrence. An offender charged with crimes, while on parole, may only be entitled to individual sentences moderated by a principle of totality that is well attuned to generally deterring parole violation and specifically deterring the offender from further breaching parole or re-offending.
In accordance with these three propositions, a sentencing court is entitled to give effect to the principle of totality in light of s 16(3B) of the Sentencing Act, provided that the approach to its application is conducive to the legislative intent behind the section. That would require cumulation of that portion of the individual sentences on any term of imprisonment resulting from the cancellation of parole which together satisfies the principles of totality. (Emphasis added.)
[10](2007) 15 VR 501.
[11]Per Eames JA, [37].
[12](2011) 213 A Crim R 262, [72]–[73].
In what should be a relatively straightforward application of principle, there has been some question about the process and what aspects are to be taken into account when the principle of totality is applied to a period of reclaimed parole in circumstances such as those in this case. The issue, as it arose before us, was whether in a case where a reclaimed parole period is being cumulated with a sentence for offences committed by an appellant whilst on parole, the period already served for the first offences is part of a consideration of the application of the principle of totality. Such a situation might confront a sentencing judge if he or she knows that parole has been cancelled prior to the imposition of the sentence or, as in this case, it may confront this Court where the cancellation of parole is put forward as fresh evidence in an appeal against the sentence already imposed. Counsel for the applicant in this case sought to proceed on the basis that the Court would, as a starting point, examine the total of the two sentences. Counsel for the respondent took issue with that approach and, ultimately, relied on the following passage from the judgement of the Court in McCartney v The Queen:[13]
In R v Alashkar[14] and again in R v Mangelen,[15] however, this Court had regard only to the additional parole sentence which the offender was required to serve.
The Court in that case proceeded on the basis that was the approach they must follow.
[13][2012] VSCA 268, [99]. See also Waugh v The Queen [2013] VSCA 36, [33].
[14](2007) 17 VR 65.
[15](2009) 23 VR 692; see also R v Hunter (2006) 14 VR 336 which was decided before the decision of this Court in Piacentino, and DPP v Dickson [2011] VSCA 222.
In my respectful opinion, the two cases cited do not require such an approach. In Alashkar, this Court first considered whether a cancellation of parole after sentencing for offences committed whilst on parole constituted fresh evidence for the purpose of an application for leave to appeal against sentence. The Court concluded that it did. As to this issue the Court said:[16]
In the circumstances before us the totality principle requires the Court to have regard to all sentences which the prisoner is now undergoing.[17] The principle requires the Court to evaluate the overall criminality involved in all the offences for which the prisoner is undergoing sentence and to ensure that there is appropriate relativity between the totality of the criminality and the totality of the effective length of sentences imposed, including circumstances whereby the sentence currently being served derives from a breach of parole.[18]
[16](2007) 17 VR 65, [38].
[17]Postiglione v The Queen (1997) 189 CLR 295, 308.
[18]R v Sullivan [2005] VSCA 286, [20].
In the later case of R v Mangelen[19] this Court was again concerned with a situation where the appellant had been sentenced and his parole later re-claimed after the imposition of that sentence as in this case. Redlich JA (with whom Ashley JA agreed) analysed the application of the principle of totality in such circumstances. He certainly qualified the application of the totality principle by reference to s 16(3B) of the Sentencing Act 1991:[20]
This Court must ensure that the totality principle is applied to the sentence in a manner which will not undermine the legislative policy inherent in s 16(3B).
[19](2009) 23 VR 692.
[20]At [35].
In my opinion, there is nothing from the judgement of the Court in Mangelen or the earlier case of Alashkar which suggests that the time in custody an appellant has already served must not be considered as part of the application of the principle of totality. In accordance with the cited passage from Johnson, the application of the principle is modified because the second offences were committed whilst the applicant was on parole. However, that does not mean that the time already served must be removed from consideration under that heading. In case there were any doubt about it, in a judgement delivered by this Court in Morgan v The Queen[21] after the hearing of this appeal, the Court identified the distinction between two categories of cases where totality may need to be taken into account:
Before leaving the matter, it may be useful to distinguish between two categories of case in which totality may need to be taken into account. The first category involves those cases which call for the application of Mill in its purest sense. In such cases, the sentencing judge is required to pose the hypothetical question: what sentence would have been imposed had the offender been dealt with at the one time for two or more sets of offending? In such cases, it must at least have been notionally possible for the two or more sets of offending to have been dealt with at once. In other words, it must be meaningful, and appropriate, to ask the hypothetical question. That, as we have suggested, does not depend upon the two or more sets of offending being closely connected in time and character. There is no reason why the fact that offences are disconnected in time and nature would necessarily prevent them from being dealt with, notionally, at the same sentencing hearing.
The second category involves the application of the principles set out by this Court in McCartney, which had been worked out, at an earlier stage, through a series of decisions including Piacentino, R v Hunter and DPP v Dickson. In cases of this kind, the offender has, by engaging in the offending for which he is to be sentenced, breached parole imposed in respect of earlier offending. The offender is serving (or may be required to serve) cancelled parole. In such cases, it is hardly meaningful to ask the hypothetical question posed in the first category. Although regard must still be had to the fact that the offender has been in continuous custody for some period, prior to being sentenced, the principle of totality cannot operate in precisely the same way as it does under Mill. That is because there has been intervening conduct on the part of the offender which disconnects the present offending from the past, and which itself constitutes an aggravating factor in assessing the gravity of that later offending. For that reason alone, the hypothetical question posed in Mill may be thought to be inappropriate in such a case. (Emphasis added, citations omitted.)[22]
[21][2013] VSCA 33.
[22]Ibid, [104] – [105].
Thus, in this case, in considering the appeal against the sentence imposed, bearing in mind that the Parole Board now require the applicant to serve the balance of his parole period, and in considering whether or not the total period to be now spent in custody breaches the principle of totality, in my opinion it is appropriate to examine the nature of the original offending and sentences imposed on him. That is because part of that original sentence has been activated due to his breach of parole. Such a consideration must inevitably include the fact that the applicant served the 4 years and 6 months’ non-parole period in the earlier offences because it is part of the total of the custodial sentences arising from all the offending the Court is considering. Finally, this consideration must occur in light of the clear legislative policy expressed in s 16(3B) of the Sentencing Act 1991 as explained in Johnson.
At the time of the sentence being imposed on the applicant in August 2012, he was aged 64 years having been born in Cyprus and coming to Australia at the age of 7. His trade was as a tiler and he worked in that field for his father until his death in 1999. The applicant’s previous convictions from 1991 to 2003 were relatively minor although they included offences of dishonesty. It is the offences of trafficking in a commercial quantity of drugs in 2007 that are the major feature of his history. After those matters there were two more convictions for the offences of dishonesty being handling/receiving stolen goods later in 2007 and dealing in the suspected proceeds of crime at the end of 2008.
Counsel for the applicant submitted when the parole sentence of two years, five months and 30 days was added to the total effective sentence imposed in this case of two years and six months (of which 12 months was to be suspended), the entire sentence offended the totality principle as it was disproportionate to the criminality involved in all of the offences. In addition, he pointed out that in the event of a further release on parole, if the applicant committed further offences he would be subject to both breach of parole and breach of the suspended sentence imposed by Judge Taft. For all these reasons counsel submitted that this Court should impose a lower sentence.
Counsel also submitted that had the circumstances of the present offences formed part of what was alleged against the applicant for the 2007 matters, the sentence imposed in 2007 would not have been increased. That may be so but it is an artificial consideration because, as counsel for the respondent pointed out, the significance of this offending is that two groups of offending were separated by 6 years and that the later offending occurred whilst the applicant was on parole. Further, as the sentencing judge noted in the course of the plea in this matter:
That (his age) is the very basis for my concerns about his prospects of rehabilitation. He’s not 30 or 40. He’s had a hard lesson following a conviction for trafficking in a commercial quantity of heroin. He is on parole and he commits further drug trafficking. That’s hardly an indicator of positive prospects for rehabilitation.[23]
[23]Transcript (DPP v Koumis, County Court of Victoria, Judge Taft, 6 August 2012), [21].
Counsel for the respondent has submitted that even with the unexpired parole period added, the sentence does not offend the principal of totality and a different sentence should not now be imposed. In particular, Ms Dalziel submitted that the applicant’s drug trafficking activity in the earlier offences for which he was later released on parole was very serious. There could be no argument about that. This was trafficking in a commercial quantity of two drugs for very significant financial rewards. The subsequent breach of parole by the applicant in these later matters less than a year into his parole period makes the total offending ‘substantial’ according to the respondent’s submissions. It is argued that when the criminality of ‘the two sets of trafficking offences’ is examined the effective sentence now imposed on the applicant now faces is ‘reasonably open’. I respectfully agree with those submissions.
It was also argued on the applicant’s behalf that the limits imposed on the application of the principle of totality by s 16(3B) of the Act have less weight when the offence which gives rise to the breach of parole is an offence properly regarded as at the low end of the scale of offending. In isolation the offence might not have required a custodial sentence. However, as I have earlier noted it is significant that the offences occurred some 6 years apart and that the later offending occurred less than a year into the applicant’s parole period. The sentencing judge in this case imposed a sentence which, in my respectful opinion, was appropriate for those offences given the applicant’s history. I am unable to accept that the combination of that sentence with the unexpired parole period leads to a sentence which is disproportionate given the seriousness of the applicant’s earlier offending.
In my opinion, leave to appeal should be granted but the appeal should be dismissed.
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