Latina v The Queen

[2015] VSCA 102

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0174
ROSARIO LATINA	Appellant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 April 2015
DATE OF JUDGMENT:	15 May 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 102
JUDGMENT APPEALED FROM:	DPP v Latina (Unreported, County Court of Victoria, Judge Stuart, 24 June 2014)

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CRIMINAL LAW – Sentence – Trafficking in a drug of dependence – Confession – Disclosure of new information about a known trafficking offence which elevated it to an offence of more serious gravity – Giretti charge – Application of the principle in Ellis [1986] 6 NSWLR 603 and Doran [2005] VSCA 271 – Failure to provide an appropriate demonstrable discount – Guilty plea – Rehabilitation – Appeal allowed – Total effective sentence of six years and six months’ imprisonment reduced to five years’ imprisonment with non-parole period of two years and nine months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Turnbull Lawyers Pty Ltd
For the Crown	Ms S M Borg	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA

KYROU JA:

1. The appellant, now aged 46, pleaded guilty to a number of drug and related offences and was sentenced as follows:

Charges on Indictment	Maximum	Sentence	Cumulation
1	Trafficking in a drug of dependence [Drugs, Poisons and Controlled Substances Act1981 s 71AC]	15 years’ imprisonment [Drugs, Poisons and Controlled Substances Act1981 s 71AC]	4 years 6 months’ imprisonment	Base
2	Possession of substance, material, documents or equipment for manufacturing drug of dependence [Drugs, Poisons and Controlled Substances Act1981 s 71A]	10 years’ imprisonment [Drugs, Poisons and Controlled Substances Act1981 (Vic) s 71A]	18 months’ imprisonment	6 months
3	Handling stolen goods [Crimes Act 1958 s 88(1)]	15 years’ imprisonment [Crimes Act 1958 s 88(2)]	2 years 6 months’ imprisonment	12 months
4	Possession of substance/equipment for purpose of manufacturing a drug of dependence	10 years’ imprisonment	18 months’ imprisonment	-
5	Possess, carry or use an unregistered category B longarm [Firearms Act 1996 s 6A]	2 years’ imprisonment [Firearms Act 1996 s 6A]	6 months’ imprisonment	2 months
6	Possess, carry or use an unregistered category B longarm	2 years’ imprisonment	6 months’ imprisonment	-
7	Possess, carry or use an unregistered category B longarm	2 years’ imprisonment	6 months’ imprisonment	-

Summary Offence	Maximum	Sentence	Cumulation
4	Possess cartridge ammunition without licence or permit [Firearms Act 1996 s 124(1)]	40 penalty units [Firearms Act 1996 s 124(1)]	$1000 (conviction recorded)	-
5	Deal with property suspected of being proceeds of crime [Crimes Act 1958 s 195]	2 years’ imprisonment [Crimes Act 1958 s 195]	8 months’ imprisonment (aggregate)	3 months (aggregate)
6	Deal with property suspected of being proceeds of crime	2 years’ imprisonment
7	Deal with property suspected of being proceeds of crime	2 years’ imprisonment
8	Deal with property suspected of being proceeds of crime	2 years’ imprisonment
9	Possess prohibited weapon without exemption [Control of Weapons Act 1990 s 5AA]	2 years’ imprisonment [Control of Weapons Act 1990 s 5AA]	3 months’ imprisonment (aggregate)	1 month (aggregate)
10	Possess prohibited weapon without exemption	2 years’ imprisonment
11	Possess prohibited weapon without exemption	2 years’ imprisonment
14	Possess prohibited weapon without exemption	2 years’ imprisonment
15	Possess cartridge ammunition without licence or permit	40 penalty units	$2000 (conviction recorded)
Total Effective Sentence:		6 years 6 months’ imprisonment
Non-Parole Period:		4 years
Pre-sentence Detention Declared:		19 days
6AAA Statement:		8 years’ imprisonment (NPP:  6 years)
Other orders: Forensic Sample Retention Order pursuant to s 464ZFB(1) of the Crimes Act 1958, Disposal Order pursuant to s 77(1) of the Confiscations Act 1997, Forfeiture Order pursuant to s 32(1) of the Confiscations Act 1997, Forfeiture Order pursuant to s 151 of the Firearms Act 1996, Forfeiture Order pursuant to s 9(1) of the Control of Weapons Act 1990

1. The appellant appeals against the base sentence of four years and six months on charge 1 of trafficking in a drug of dependence and against his total effective sentence of six years’ and six months’ imprisonment and a non-parole period of four years’ imprisonment.  He was granted leave to appeal on a single ground which was to the effect that each of those sentences was manifestly excessive in that the learned sentencing judge failed to give sufficient weight to his disclosure of his involvement in the offence of trafficking in a drug of dependence. 

1. The facts, which are not in dispute, were set out in the amended summary of prosecution opening tendered at the plea hearing.  They may be summarised as follows.  On 25 March 2013 the police executed a search warrant at the appellant’s home address of 27 Begonia Avenue, Altona North.  The police located a ziplock bag on a kitchen table.  The ziplock bag was alleged to contain 27.7 grams of methylamphetamine.  However, the sentencing judge sentenced the appellant on the basis that the actual amount of methylamphetamine contained in the bag was less than half of that amount and that such amount was for the appellant’s own use.  In the back shed at the premises the police located equipment and substances associated with the manufacture of methylamphetamine.  The total quantity of the substances containing methylamphetamine was 768.5 grams.  The amount of pure methylamphetamine contained within this amount was 15 grams.  Also located was a large amount of stolen property and cash. 

1. On 26 March 2013 the police executed a search warrant at a storage facility at 698 Geelong Road, Brooklyn that was used by the appellant.  At that facility the police located a further amount of stolen property, firearms, ammunition and gun powder.  Also located were chemicals and equipment associated with the manufacture of methylamphetamine.  The appellant was interviewed by police on 25 March 2013 and 27 March 2013.  In the second interview the appellant admitted that he had been selling methylamphetamine from his home for approximately 13 months. 

1. The sentencing judge accepted that the appellant had started off trafficking at a relatively low level but increased to the stage where he was selling between $300–$1,000 worth of methylamphetamine on a daily basis (charge 1).  The substances and equipment associated with the manufacture of methylamphetamine constituted the subject of charge 2.  With respect to those substances and equipment the subject of charge 2, the appellant told police that he had never attempted to manufacture drugs.  He said that he had not touched the ‘stuff’ found in the shed for two to three years.  With respect to the stolen property, the appellant admitted to obtaining a large amount of stolen property in exchange for the supply of drugs to various individuals (charge 3).  With respect to the equipment and substances found in the storage facility, the appellant told police that these items had been given to him for storage purposes (charge 4).  The appellant told police that the firearms found at the storage facility had been given to him in exchange for drugs that he had supplied (charges 5, 6 and 7). 

1. The four summary charges of possession of property suspected of being the proceeds of crime related to the:

(a)               $8,050 found inside jacket pockets in the appellant’s bedroom, said by the appellant to be money received as a loan (summary charge 5);

(b)               $1,300 found inside a jacket in the appellant’s bedroom, said by the appellant to be his personal money (summary charge 6);

(c)               $18,000 found inside a vacuum-sealed bag secreted behind the kitchen drawers (summary charge 7);

(d)              $15,900 found in a vacuum-sealed bag secreted behind the kitchen drawers (summary charge 8).

The money the subject of summary charges 7 and 8, totalling $33,900, was from the sale of drugs.

1. The summary charges of possession of a prohibited weapon related to:

(e)               a samurai sword found beside a bed (summary charge 9);

(f)                a handmade taser device in the hall (summary charge 10);

(g)               an imitation firearm in the kitchen (summary charge 11);

(h)               a cross bow in the storage facility (summary charge 14).

1. The summary charges of possession of ammunition related to rounds of ammunition, shot gun shells and bullets found in the back shed of the appellant’s premises (charge 4) and rounds, shells and cartridges found at the storage facility (charge 15).

1. Charge 1 was framed as a Giretti[1] charge.  The appellant had conducted the business of trafficking in methylamphetamine without detection over a continuous period of 13 months between 25 February 2012 and 25 March 2013.  In sentencing the appellant the sentencing judge accepted that the time-frame alleged was based entirely on the appellant’s confessional statements as was the quantity of the drug trafficked during that period.  Based upon the appellant’s admissions, the sentencing judge correctly observed that this was protracted offending.  As a result of his admissions, a conservative estimate of the quantity of drugs trafficked by the appellant during this period placed the total drugs trafficked above the traffickable quantity of 500 grams.[2]  The appellant was not however to be sentenced on the basis of having trafficked in a commercial quantity.  The large amount trafficked by the appellant nonetheless demonstrated the seriousness of this example of the offence.

   [1]R v Giretti (1986) 24 A Crim R 112 (‘Giretti’).

   [2]This estimate is based on 10 months purchasing half an ounce per fortnight (11 ounces) escalating to three months purchasing one ounce per week (13 ounces) making a total of 24 ounces or about 680 grams.

1. It was also clear from the appellant’s admissions and other evidence that the appellant, who was addicted to amphetamine, trafficked to feed his addiction throughout the period of his offending.  He also clearly profited considerably from his criminal conduct.  The sentencing judge found that, of the $43,250 in cash found at the appellant’s premises, the amount of $33,900 was the proceeds of drug transactions.  A very large amount of stolen property, which had been exchanged for drugs, was also found in a shed at the appellant’s premises and in a storage unit. 

1. There was ample evidence upon which to charge the appellant with trafficking simpliciter without the benefit of his confessional statements but it was not in dispute that without those admissions the duration of his offending and the quantity in which he had trafficked would not have been established.  It was only by virtue of his admissions that the prosecution was able to place this offending within a more serious category of the offence of trafficking[3] thereby exposing the appellant to the risk of a more substantial period of incarceration.  The sentencing judge referred in his sentencing remarks to the fact that the duration of the trafficking was based entirely upon the appellant’s confessional statements, that the appellant had been frank and open with investigating police and that his confession evidenced his genuine remorse.  But the appellant submits that the sentencing judge did not significantly discount the sentence to allow for the fact that it was only because of his confessional statement that the gravity of his offending was established. 

   [3]Ashdown v The Queen [2011] VSCA 408, [174].

1. The right to a significant discount where an offender, by his or her admissions, provides proof of an offence which was otherwise unknown and which the prosecution could not otherwise have established is now relatively well settled.  However the principle has not always been expressed in precisely the same way.  In R v Ellis[4] Street CJ said that an element of leniency will enter into the sentencing discretion ‘[w]here it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence.’[5]  The principle rests upon the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and make a confession of guilt of that offence.  It was the disclosure of an ‘otherwise unknown guilt of an offence’ which the Chief Justice considered merited significant added leniency, the degree of which would vary according to the degree of likelihood of that guilt being discovered by investigators.[6]  These observations were referred to with approval by McHugh J in Ryan v The Queen.[7]  McHugh J treated the observations in Ellis as ‘statements of a general principle or perhaps more accurately of a factor to be taken into account’.  It was not a rule to be ‘quantitatively, rigidly or mechanically applied’.[8]  Kirby J also spoke of the public interest that would be served in encouraging offenders to acknowledge and bring to official notice offences not previously known to the authorities.[9]  Kirby J emphasised the benefit to a victim from public vindication arising from the offender’s acknowledgement of unknown crimes.[10]  He also referred with approval to the need for a ‘considerable’ or ‘significant added’ element of leniency when sentencing an offender in respect of offences disclosed that were otherwise unknown to the authorities.[11]  Subsequently, in R v Doran,[12] Buchanan JA (with whom Eames and Nettle JJA agreed) observed that the appellant had voluntarily provided the prosecution with all the evidence necessary to convict him of the majority of the crimes.  His Honour considered it necessary that ‘the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions’.[13]  He referred to the observations of Kirby J in Ryan as to the public interest served in the revelation of additional offences which it would have been difficult to prove without confession’.[14]  The principle is now often described in Victorian courts as the ‘Doran discount’. 

   [4][1986] 6 NSWLR 603 (‘Ellis’).

   [5]Ibid 604.

   [6]Ibid.

   [7](2001) 206 CLR 267, 272 [12] (‘Ryan’).

   [8]Ibid 273 [15].

   [9]Ibid 295 [95].

   [10]Ibid 295 [93].

   [11]Ibid 295 [95].

   [12][2005] VSCA 271 (‘Doran’).

   [13]Ibid [14].

   [14]Ibid [15].

1. This principle was further considered in JBM v The Queen.[15]The appellant had pleaded guilty to sexual offences involving his three year old niece.  Weinberg JA, with whom Priest JA agreed, observed that the prosecution could not have proceeded without the appellant’s co-operation and the full admissions he had made.  Although the offences were in one sense already ‘known to police’ as a result of a complaint reported to police by the complainant’s mother, as a matter of reality they were ‘known’ only from a theoretical perspective as there was not the slightest chance that the offences could have been proved in the absence of the appellant’s co-operation and admissions.  Weinberg JA, citing Doran, stated that public policy demanded that the appellant receive a significant reduction in any sentence that might otherwise have been imposed.[16]

   [15][2013] VSCA 69.

   [16]Ibid [41]–[48].

1. In the present appeal, the Crown submitted that the added element of leniency required by a Doran discount was not called for nor had one been requested by experienced senior counsel who had appeared for the appellant on the plea.  It was submitted that, in light of the drugs, drug paraphernalia, the large sum of cash and a huge amount of stolen property found at the appellant’s premises and in his storage unit, the Crown had a strong circumstantial case on all the charges ultimately dealt with on the plea.  Further, it was submitted that the appellant had not made a full and frank record of interview until he was confronted with the full extent of the police searches at his premises and at the storage unit.  For these reasons, the Crown submitted that the principle in Doran was distinguishable.  For the following reasons, those submissions must be rejected.

1. First, at the commencement of the plea in mitigation, it was the sentencing judge who drew to the attention of the prosecutor and senior counsel for the appellant the fact that the appellant had made a full and voluntary confession in his second interview.  It was submitted that, had the sentencing judge not shown such emphatic recognition of the importance of the disclosures, counsel on the plea would have specifically drawn his Honour’s attention to the Doran principle which gave those disclosures their mitigatory significance.  Indeed, at the conclusion of the plea in mitigation, senior counsel for the appellant, responding to the sentencing judge’s observation that charge 1 constituted a most serious offending, stated that its seriousness was ‘ameliorated to a significant degree because it all arises from his own admissions’.  The judge did not question that submission or require any authority to support it.  There is no substance to the Crown’s submission that it was not made plain that the appellant’s voluntary disclosures entitled him to a significant discount on sentence. 

1. Second, it must be accepted that the quantity of drugs found at the appellant’s premises, namely 768.5 grams of which 15 grams was pure methylamphetamine together with the items found in the storage unit including the proceeds of crime, pointed to the appellant being in the business of drug trafficking.  That said, as senior counsel who appeared for the Crown on the leave application acknowledged in oral argument, had the voluntary disclosures not been made, the charge likely to have been laid would have been confined to one day or a small number of days of trafficking.  The circumstantial evidence could not have sustained a Giretti charge let alone one of the duration volunteered by the appellant.  The nature of the charge which the appellant faced, spanning drug trafficking over a 13 month period, depended entirely upon the appellant’s frank disclosures.  The form of the charge being dependent upon the appellant’s confession, the principle discussed in Ellis and Doran was enlivened. 

1. Third, the principle has been applied where an offender, responding to complaints as to the commission of an offence, makes admissions which disclose the commission of further offences.[17]  We entertain no doubt that the principle may also have application where the disclosures made by the offender do not relate to a new charge but show that the offence committed was of a more serious order than was known by or would have been discoverable by the investigators.  It is clear from the consideration of the authority to which we have referred that it is entirely consistent with the policy underlying the principle that it may have application even though investigators may be able to establish that an offender has committed a specific offence.  If admissions are made as to facts concerning the commission of that offence that are unknown by the investigators which materially elevate the gravity of the offence, such voluntary disclosures entitle the offender to a discount on the sentence that would otherwise be imposed for the offence of that gravity.

   [17]See, eg, DPC v The Queen [2011] VSCA 395; R v BF [2007] VSCA 217, [50]–[52].

1. Fourth, the fact that the appellant only made a confession after he was confronted with the evidence discovered upon the execution of the search warrant did not affect the application of the principle.  Those circumstances may have borne upon the appellant’s remorse, his prospects for rehabilitation or the need for special deterrence but his reason for making such disclosures did not alter the fact that the gravity of the offending could only be established as a consequence of his voluntary disclosures.

1. For these reasons, the appellant was entitled to a discount on sentence for the serious trafficking that was established as a consequence of his confession.  In oral argument on appeal, counsel who now appeared for the Crown rightly conceded that a discount for the appellant’s confession was necessary though it should be of a lower order than that which would apply had the disclosures been as to a new and hitherto unknown offence.

1. We agree.  The appellant was, in the words of McHugh J in AB v The Queen,[18] entitled to ‘considerable leniency because of his confession’.  The sentencing judge did not indicate that any such allowance had been made.  Instead, the appellant’s confession was considered in the context of the ‘discount’ to which an offender is ordinarily entitled for a guilty plea.  Although the appellant’s co-operation with investigators and his frankness in making a full confession was taken into account as bearing upon his remorse and prospects for rehabilitation, there was no reference to the principle in Ellis or Doran and no indication that there had been significant leniency allowed for his confession. 

   [18](1999) 198 CLR 111, 126 [27].

1. We do not accept the Crown’s contention made on appeal, that the sentencing judge may have allowed for the Doran discount in fixing his sentence.  There is nothing in the sentencing remarks to suggest that an allowance was made for the fact that the magnitude of the appellant’s trafficking in terms of its duration and the quantity of the drug trafficked would have remained unknown had the appellant not made the full disclosures that he did.  It could not be inferred from the sentence that such an appropriate discount had been made.  The sentence imposed on charge 1 was a sentence well above the median sentence for sentences for trafficking simpliciter.  As the disclosures made by the appellant were indispensable to proof of the magnitude of his offending, the sentence to be fixed by the sentencing judge had to be substantially less than it otherwise would have been.  The required leniency is not reflected in the sentence imposed.

1. Specific error having been made out, the appellant must be resentenced on charge 1.  We would fix a sentence of three years’ imprisonment.  We would confirm all other sentences including orders for cumulation that were imposed making a total effective sentence of five years’ imprisonment.  The appellant came before the Court without any prior criminal history.  The sentencing judge was impressed with the appellant’s endeavours to address his drug addiction prior to sentence and assessed the appellant’s prospects for rehabilitation as excellent.  We therefore fix a non-parole period of two years and nine months.[19]

   [19]We declare pursuant to s 6AAA of the Sentencing Act 1991 that, but for the appellant’s plea of guilty, we would have sentenced him to eight years’ imprisonment with a non-parole period of six years.

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