Londrigan v The Queen
[2010] VSCA 81
•19 April 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| PETER FRANCIS LONDRIGAN | No 567 of 2009 |
| v | |
| THE QUEEN |
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| JUDGES | REDLICH and HARPER JJA and HABERSBERGER AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 8 February 2010 |
| DATE OF JUDGMENT | 19 April 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 81 |
| JUDGMENT APPEALED FROM | R v Londrigan (Unreported, County Court of Victoria, Judge Howie, 7 November 2008) |
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CRIMINAL LAW – Sentence – Trafficking in a drug of dependence and dishonestly handling stolen goods – Pleas of guilty – Total effective sentence of four years with a non-parole period of two years and eight months – Whether sentence manifestly excessive – Co-offenders – Parity – Whether sentence adequately reflected the applicant’s role in comparison with his co-offenders – Whether sufficient weight given to applicant’s attention deficit hyperactivity disorder – R v Verdins (2007) 16 VR 269 considered – Appeal dismissed.
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Appearances: | Counsel | Solicitors |
For the Applicant | Mr G M Hughan | Casey Criminal Law |
| For the Crown | Mr G J Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
REDLICH JA:
I agree for the reasons given by Harper JA that leave to appeal should be refused.
HARPER JA:
On 19 June 2007, Peter Francis Londrigan (‘the applicant’) was charged with trafficking between 20 September 2005 and 1 March 2006 in a drug of dependence (methylamphetamine) and dishonestly handling stolen goods (a Holden Astra motor vehicle) on 8 January 2006. After a committal proceeding in which he reserved his plea, the applicant was on 22 August 2008 arraigned before her Honour Judge Hannan in the County Court at Melbourne. He pleaded guilty to each charge.
The plea was heard by his Honour Judge Howie on Wednesday 29 October 2008. It was then adjourned part heard to the following Friday, 31 October. Sentence was pronounced on 7 November. The applicant was sentenced on the count of trafficking to a term of three years and six months’ imprisonment. On the charge of handling stolen goods, he was sentenced to imprisonment for nine months. His Honour ordered that six months of the latter sentence be served cumulatively with that of trafficking. The total effective sentence was therefore imprisonment for a term of four years. His Honour fixed two years and eight months as the period which the applicant must serve before becoming eligible for parole, and indicated that, in the absence of the plea of guilty, he would have imposed a total effective sentence of five years’ imprisonment, with a non-parole period of three years and six months.
The applicant now wishes to appeal against sentence. But his outline of submissions was filed a day late. As a result, his application was taken to be dismissed pursuant to r 2.09(1). He now seeks its reinstatement, an application to which the respondent consents. This Court ordered accordingly that the application for leave to appeal be reinstated.
The applicant relies upon three grounds. The first of these is that each of the individual sentences imposed on counts 1 and 2, together with the direction for partial cumulation and the non-parole period, are manifestly excessive. The second ground is that his Honour ‘erred in the application of the principles of parity of sentence by imposing a sentence on the applicant which did not adequately reflect the differences in his role … in comparison with that of the co-offenders.’ The applicant further contends (as his third ground of appeal) that the learned sentencing judge erred when considering (i) the degree of the applicant’s moral culpability for his offending, and (ii) the significance for sentencing purposes of the principles of general and specific deterrence. The error, according to this ground of appeal, is that his Honour failed to give sufficient weight to the applicant’s (previously undiagnosed) mental disorder: ADHD, or attention deficit hyperactivity disorder.
The applicant was arrested on 15 February 2006. On the same day, a like fate befell the five others involved with him in the drug-manufacturing enterprise: David Ballinger, Glen Austin, Mark Brown, Albert El Moustafa and Andrew Gordon-Walker. This was the cumulation of a police investigation code-named ‘Operation Paras’ into the drug-related activities of Ballinger and his associates. The investigation, which was extensive, commenced in September 2005. It established that those arrested were trafficking in methylamphetamine. At that time, a traffickable quantity of pure methylamphetamine, as the expression ‘traffickable quantity’ is defined in s 70 and Part 3 of Schedule Eleven of the Drugs Poisons and Controlled Substances Act 1981, was six grams.
Operation Paras disclosed that, over the period commencing in September 2005, Ballinger had no legal employment and appeared to be involved full time in the trafficking of drugs which were manufactured by his associates from ingredients obtained by his associates. His starting point was the purchase of the ingredients.
Principal among these was pseudoephedrine. It is a constituent in a range of medications, such as those for the treatment of colds and influenza, which are available from pharmaceutical chemists. It was the applicant’s role to go into the market for those medications. To the extent that he could identify chemists who were not as particular about the identity of their customers or the purpose of their transactions as perhaps they should have been, so much the better. Having selected his soft options, the applicant then obtained as much pseudoephedrine as they were prepared to supply, or as he dared to ask for. According to the prosecution opening on the hearing of the plea, he was, in the period of 85 days between 23 November 2005 and 1 March 2006, occupied on this quest on 32 occasions. His arrest on 15 February was obviously not the occasion for immediate and effective remorse. His total haul, according to the Crown case, was about 136 packets of pseudoephedrine-based medicines from which approximately 40 grams of pure methylamphetamine and 200 grams of (as the prosecutor put it on the plea) ‘fairly good quality consumer level’ methylamphetamine could, after a successful ‘cook’ be produced. Forty grams is some seven times the traffickable quantity.[1]
[1]In a document headed Prosecution Opening on Plea, the number of packets obtained by the applicant was said to be 100, and the number of episodes of ‘psuedoephedrine running’ by him said to be 29; but in his oral submissions on the hearing of the plea, the prosecutor told the judge that he had checked the figures to reach the results recorded above. Counsel for the applicant did not challenge the revised figures.
There was an additional element in the applicant’s trafficking. He was also a vendor of methylamphetamine, though the sales were to consumers. The evidence does not permit any conclusion other than that this activity was of minor proportions.
Once the pseudoephedrine had been obtained, Ballinger arranged for the production of methylamphetamine from it, and from other necessary ingredients. The process includes what is known by those involved as ‘doing a cook’. In this case, the general responsibility for that endeavour was placed upon a father and son team (Mark Brown and Glen Austin respectively) who had the required expertise to act as methylamphetamine ‘cooks’. They operated a clandestine laboratory in Dandenong, at which they received supplies of pseudoephedrine from Ballinger, manufactured the methylamphetamine in the cooking process, and split the resultant product half and half with Ballinger. At the same time, they also had their own sources of pseudoephedrine and their own customers.
A total of between eight and nine cooking sessions were undertaken during the period in question. Ballinger himself acted as an occasional assistant cook, though on one occasion he cooked alone. He pleaded guilty to trafficking in methylamphetamine by the manufacture of between 187 and 207 grams of the pure drug.
The applicant does not by reference to Albert El Moustafa seek to advance his claim that his sentence was disproportionately severe when compared to his co-offenders. This perhaps is because El Moustafa pleaded guilty to trafficking on the basis that he had supplied Ballinger with a maximum of 15 packets of pseudoephedrine and 10 grams of poor quality methylamphetamine which Austin had difficulty in selling. For this, El Moustafa was sentenced to two years and six months’ imprisonment. If the prosecutions’ characterisation of El Moustafa’s participation is correct, he was not as involved in trafficking as the applicant, and the disparity between their sentences can be explained accordingly.
The other co-offender, Gordon-Walker, was involved in the Ballinger-led operation only between early February 2006 and his arrest, with Ballinger and El-Moustafa, on 15 February. He was approached by Ballinger when the latter began to suspect that the police were interested in him. Thinking that it would be wise to change the address of his manufacturing operation, Ballinger asked Gordon-Walker if he could use Gordon-Walker’s house for that purpose. Permission was given, and it was at the Gordon-Walker premises that Ballinger, El Moustafa and Gordon-Walker were arrested as a cook was taking place. Gordon-Walker was sentenced to a two-year community-based order, with 100 hours of unpaid community work.
The applicant now relies on the fact that (i) Ballinger, who had three prior convictions for trafficking, was sentenced to four years and six months’ imprisonment with a non-parole period of three years; (ii) Austin was sentenced to three years and six months’ imprisonment of the trafficking charge and to 12 months’ imprisonment on a charge of cultivating cannabis, six months of which were made cumulative on the trafficking charge, resulting in a total effective sentence of four years’ imprisonment, with a non-parole period of two years; (iii) Brown was sentenced to three years’ imprisonment on the trafficking count and one year’s imprisonment on a charge of cultivating cannabis, six months of which were made cumulative on the trafficking charge, resulting in a total effective sentence of three years and six months’ imprisonment, with a non-parole period of one year and eight months; and (iv) Gordon-Walker was sentenced to a community based order. All these are in contrast to the applicant’s sentence of three years and six months’ imprisonment on the trafficking charge, and nine months’ imprisonment on the charge that he handled stolen goods.
On the raw and incomplete data provided by these figures, Mr Londrigan might think himself to be unfortunate. But each case has its own unique characteristics, as is illustrated by his own; he was the only co-offender charged with, let alone convicted of, handling stolen goods. It may also be that mitigating circumstances which were applicable to the co-offenders or one or more of them were not relevant to the circumstances of the applicant.
The applicant contends (as the third ground of appeal) that the judge failed to adequately take into account as mitigating factors the applicant’s reduced moral culpability. The psychiatric evidence tendered on the applicant’s plea was to the effect that the applicant suffered from a form of attention deficit hyperactivity disorder. This, according to a report dated 8 October 2008 from Dr William Orchard, a psychiatrist who saw the applicant on nine occasions between 23 November 2007 and the date of the report, is (i) ‘genetically determined’; (ii) caused by ‘an under-functioning dopamine system of the brain’; and (iii) is treated by a drug, dexamphetamine, which is closely related to methylphenidate or, as Dr Orchard also called it, ‘street speed’. In Dr Orchard’s opinion, the applicant’s use of ‘street speed’ was therapeutic because ‘he was only obtaining [it] in therapeutic amounts to help keep himself stable.’ He continued:
I know much of Mr Londrigan’s past interactions with the law and also point out that for the last decade or so he has been predominately law abiding and has had no difficulties with legal charges.
Dr Orchard concluded his report with the somewhat enigmatic statement that ‘I feel fairly confident that if he remains under medical treatment and is compliant in taking his medication he may never come before a court room again in his life.’
In my opinion, this is not of much assistance to Mr Londrigan because his history is not one which fits Dr Orchard’s report. In this context, I note in passing that the applicant remained conviction-free for approximately 24 years – after a spate of convictions in 1981, the next was in November 2005. All this was well before the applicant became a patient of Dr Orchard’s. Perhaps during that period he was taking methylamphetamine for therapeutic purposes only; but there is no evidence on that point.
What is clear is that for a large part of the more than two decades from 1981, the applicant led a life of remarkable self-improvement. In 1989 there occurred what his counsel at his plea described as ‘a major change in his life’. In that year, he completed at the Goulburn Valley Community College a six-week ‘community information workers course’ (a course on the State Register of Accredited Programs). This was followed by his receipt in August 1993 of a certificate of satisfactory completion of the Victorian Private Agents Registry Accredited Crowd Controllers Course; and in April 1994 by the award of an Associate Diploma of Social Science (Welfare Studies) by the Loddon Campaspe College of TAFE. The next nine years or so saw the applicant receive some 25 additional certificates covering a wide range of endeavours including, but by no means restricted to, first aid; emergency life support; anger management; competence in the use of computers; and accreditation as a fire warden.
Things changed markedly after the applicant fell in with David Ballinger. The reason for that change remains unknown: in the words of the applicant’s counsel on the plea ‘there lies the mystery’. From someone so much in control of his life as to achieve what he did, the applicant became (again, in the words of his counsel) ‘a very heavy user’ of methylamphetamine who consumed between seven and eight grams each day. His counsel continued:
The main aim that was driving Mr Londrigan was to be able to get back methylamphetamine [from Ballinger] because of his raging addiction and, indeed, it’s put on that basis that he was a heavy drug user at the time and needed substantial amounts to keep him just functioning.
If this is true, the applicant was not obtaining methylamphetamine in therapeutic amounts to help keep himself stable. There was not much that was therapeutic about this usage. His drug use at the time of his trafficking was not related to his mental disorder or to his need to keep himself stable. His behaviour during the period of offending was not that of a person struggling to achieve stability.
More importantly for sentencing purposes, the applicant’s history throws doubt on his capacity for long-term rehabilitation. It is true that the applicant has demonstrated since his arrest a commendable desire to effect that rehabilitation. In particular, between October 2007 and June 2008 the applicant was a resident at the Ngwala Willumbong Co-operative (otherwise known as the Percy Green Recovery Centre) where he completed a number of courses and so impressed those responsible for the rehabilitation programs that he was later employed on a casual basis to facilitate relapse prevention courses. He submits that the sentencing judge gave this matter insufficient weight.
There is, however, no doubt that his Honour did take the applicant’s prospects of rehabilitation into account. Given the enigmatic prognosis of Dr Orchard, and the applicant’s history, his Honour could not be said to have acted on a wrong principle in according it the weight he did.
The applicant submits that his diagnosis of attention deficit hyperactivity disorder in combination with his ‘long term addiction to drugs’ is relevant to several of the principles enunciated by this Court in R v Verdins.[2] He refers in his outline of submissions to what have become known as the (at least) six ways that impaired mental functioning may be relevant to sentencing. He relies on the first, third and fourth of these.
[2](2007) 16 VR 269.
The first is that the condition could reduce the moral culpability of the offending. But here the level of drug use was so high that it cannot be said to have its basis in an unknown but nevertheless real therapeutic benefit. The third is whether the condition diminishes the importance of general deterrence. In this case I do not think that it can. On the contrary, the message must be that ADHD is no excuse for wild self-indulgence in drug-taking.
The final relevant principle to be derived from Verdins, the applicant contends, is that specific deterrence may be moderated or eliminated as a sentencing consideration. This, however, depends upon the nature and severity of the symptoms as exhibited by the offender, and the effect of the condition on his mental capacity, whether at the time of offending or of sentencing, or both. In this case, there is no evidence that the applicant’s experience of the disorder varied between the period of achievement as revealed by his award of certificates (1989-2003) and the period of offending.
For these reasons, the third ground of appeal is not made out.
In my opinion, the other two grounds are also unsupportable. The applicant was, as his counsel submitted, only loosely connected with any joint enterprise. Hence senior counsel for the respondent doubted the correctness of treating the applicant as a co-offender with Ballinger and Austin. If the principle of parity does apply, the disparity between the applicant’s sentence and those of Ballinger and Austin was not such as to leave the applicant with a justifiable sense of grievance. Neither does the applicant’s sentence suggest that his Honour fell into error. This, it
seems to me, is particularly so when it is borne in mind that the maximum penalty on the trafficking count is 15 years’ imprisonment, and the applicant was sentenced to imprisonment for less than a third of that period after a course of offending which continued after his arrest, which covered a period of 85 days, and which involved him supplying Ballinger with 100 packets of pseudoephedrine. Given these circumstances, it is in my opinion not possible to conclude that the first ground of appeal is made out on the count of trafficking.
The applicant also includes, under the first ground of appeal, a complaint that his sentence on the count of handling stolen goods is manifestly excessive. The item in question was a Holden Astra motor vehicle which, knowing that it was stolen, the applicant nevertheless harboured for a day and then oversaw its transfer to a third person. In my opinion, a sentence of nine months’ imprisonment, of which three months are to be served concurrently with the base sentence for trafficking, is not manifestly excessive, especially given that the maximum sentence is 15 years’ imprisonment.
Finally, the applicant contends that the non-parole period of two years and eight months is too long. It is eight months longer than that directed in the most closely comparable case, that of Austin. Opinions about its appropriateness in the applicant’s case might differ, but it cannot be said that, of itself, the non-parole period, either looked at in isolation, or when compared to that directed in Austin’s case, demonstrates that his Honour fell into an error of principle, or that it is manifestly excessive.
For these reasons, the application for leave to appeal must be refused.
HABERSBERGER AJA:
I agree with Harper JA.
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