Matthew Robinson v The Queen
[2016] VSCA 225
•19 September 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0130
| MATTHEW ROBINSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and HANSEN JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 2 September 2016 | |
| DATE OF JUDGMENT: | 19 September 2016 | |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 225 | First revision: 19 September 2016, catchwords |
| JUDGMENT APPEALED FROM: | DPP v Robinson (Unreported, County Court of Victoria, Judge Gucciardo, 8 June 2016) | |
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CRIMINAL LAW –Application for leave to appeal – Sentence – Applicant convicted of trafficking in a drug of dependence and possession of a drug of dependence – Sentenced to a total of 12 months’ imprisonment and 12 month CCO – Whether sentencing judge erred in several respects in course of sentencing – Whether sentencing judge appropriately applied Renzella principle – Whether sentencing judge imposed an unduly harsh sentence in comparison to co-offender – No error made by sentencing judge – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Alexander | Garde-Wilson Lawyers |
| For the Crown | Ms D I Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
HANSEN JA:
The applicant, Matthew Robinson, aged 33, pleaded guilty to one charge of trafficking in a drug of dependence (methylamphetamine) and was sentenced to a term of 12 months’ imprisonment, combined with a 12 month Community Correction Order (‘CCO’). The conditions set out in the CCO included 250 hours of unpaid community work as well as treatment and assessment for drug use.
The applicant’s brother, Jamie Robinson, pleaded guilty to two charges of trafficking in a drug of dependence (methylamphetamine) and one charge of possession of a drug of dependence. He was sentenced on the same day, and by the same judge, to a total effective sentence of 18 months’ imprisonment, combined with a 12 month CCO.
The applicant initially sought leave to appeal against sentence upon a single ground, with two components. He complained of a failure on the part of the sentencing judge correctly to apply the ‘Renzella principle’[1] to his situation, and also that he had been treated unduly harshly, by comparison with his brother, whose offending was said to be significantly worse in several key respects.
[1]R v Renzella [1997] 2 VR 88.
Subsequently, in an amended written case, he formulated his proposed grounds of appeal as follows:
1.The learned sentencing judge erred by failing to correctly apply the Renzella principle to the Applicant’s sentence and/or by failing to reflect the subjective differences relevant to parity between the applicant and [Jamie Robinson].
2.The learned sentencing judge erred by imposing a sentence which was unduly harsh on the Appellant (sic) compared to the co-offender Petersen.
The reference to ‘the co-offender Petersen’ was to Adam Petersen, who was sentenced, some six weeks or so after the applicant and his brother, to a total effective sentence of 16 months’ imprisonment combined with a 12 month CCO requiring 150 hours of community work.
At the commencement of the hearing before this Court, counsel for the applicant abandoned the second limb of ground 1, namely the parity issue as regards the sentence imposed on Jamie Robinson. That left just the Renzella point, and the parity issue as regards Petersen to be determined.
Circumstances of the offending
The applicant was involved in a drug syndicate dealing in methylamphetamine in the Wangaratta region. His offending took place between January and September 2014, when he was aged about 30.
The quantity of methylamphetamine that he trafficked during that time could not be determined. The Crown submitted that he should be viewed as being ‘mid-range’ in that regard. The defence disputed that characterisation.
The applicant was arrested on 15 September 2014 in relation to the offending the subject of this application. He was remanded in custody, and detained for some 94 days before being granted bail. Whilst on bail he was charged with attempting to pervert the course of justice and remanded in custody for a further 130 days. On 15 February 2016 he was again granted bail.
The sentencing judge declared that 94 days had been served by the applicant by way of pre-sentence detention. He also treated the 130 days as Renzella time.
Sentencing remarks
Although the quantity of drugs trafficked was unknown, the sentencing judge concluded that the applicant should be viewed as a mid-range trafficker who had sold, shared, and used methylamphetamine. He had also engaged in intimidation, theft from others, and had used a TAB wagering account to launder drug money in significant sums. He had sourced drugs from others and, on several occasions, bought and sold drugs, or guns, in return for methylamphetamine.
The applicant had a number of prior convictions, but these were of limited relevance so far as sentencing for this offence was concerned.
Ground 1
The applicant submitted that the sentencing judge had not correctly applied the Renzella principle to the sentencing task. It was submitted that his Honour had failed to make proper allowance for Renzella time when he imposed the term of 12 months’ imprisonment.
In the written case, much of this argument was linked to the parity submission originally advanced, complaining of the less favourable treatment accorded to the applicant as compared with his brother, Jamie. The argument was expressed in different ways, and in intricate (and unnecessary) detail. It was said to establish specific error, requiring the applicant to be resentenced.
In whatever form the argument took, it was devoid of merit. The sentencing judge gave the applicant credit for 130 days of Renzella time. He could not conceivably have been entitled to any more. The suggestion that he was not in fact given the benefit of those 130 days was premised upon a separate, but also highly elaborate, argument advanced, on a parity basis, with the sentence imposed upon his brother. The abandonment of that parity point, so far as Jamie Robinson was concerned, leaves ground 1 without any foundation.
We should add that, even assuming specific error with regard to Renzella time, we would have refused leave on this ground. It is plain that the 12 month sentence, coupled with the CCO given to the applicant was merciful. No different and lesser sentence could reasonably have been imposed.
Ground 2
It was submitted on behalf of the applicant that because he fell to be sentenced as part of what was known as the ‘Operation Juliet’ drug syndicate, along with a number of co-offenders, one of whom was Adam Petersen, parity with Petersen applied.
Petersen pleaded guilty to 1 charge of trafficking methylamphetamine between March 2013 and September 2014, a period of 18 months. That was significantly longer than the eight months that the applicant engaged in trafficking. Petersen also pleaded guilty to possessing material relating to trafficking, two charges of possessing a drug of dependence, and summary charges of possessing ammunition, dealing with proceeds of crime and contravening bail conditions.
The applicant recognised that Petersen was not, in any strict sense, a co-offender. Nonetheless, he submitted that the principle of parity was applicable, and cited authority in support of that proposition.[2]
[2]R v Burgess [1995] VSC 72 and R v Rodden [2005] VSCA 24.
The applicant noted that the sentencing judge had described him as a ‘mid-range’ trafficker. By contrast, Petersen was described as a ‘middle to higher range’ offender. Yet Petersen had received a sentence of 14 months’ imprisonment for trafficking, only two months longer than the sentence imposed upon the applicant. As well, Petersen was given a 12 month CCO, requiring 150 hours of community work. That was said to be in stark contrast with the applicant’s 250 hours of community work.
It was submitted that this left the applicant with a legitimate or justifiable sense of grievance.
Not surprisingly, the respondent noted first that Petersen was not relevantly ‘a co-offender’. He neither offended with, nor had any contact whatever, with the applicant.
Next, the respondent drew attention to the fact that the quantity of the methylamphetamine that Petersen trafficked was limited to an offer to supply a single ounce. On any view, although the quantity trafficked by the applicant could not be ascertained, it would almost certainly have significantly exceeded that amount.
In addition, Petersen had been dealt with for other offences apart from trafficking. His total effective sentence was 16 months’ imprisonment, of which 14 months was the trafficking component. Accordingly, when comparing the applicant’s sentence for trafficking with that imposed upon Petersen, the principle of totality had to be taken into account.
Finally, the respondent submitted that the difference between 12 months for the applicant, and 14 months for Petersen could not be said to be inadequate, bearing in mind the similarities between both offenders. What the applicant was inviting this Court to do was to ‘tinker’ with his sentence, with a view to achieving some form of mathematical correlation that was no part of any proper sentencing exercise.
Conclusion
On any reasonable view, as we have said, the applicant received lenient treatment for his mid-range trafficking, extending as it did over some 8 months. While parity might be a matter to be taken into account by this Court, once Petersen had been sentenced, it could not be said that Petersen’s treatment was so merciful, and out of kilter with that accorded to the applicant, as to engender in the applicant a legitimate sense of grievance.
For these reasons, we consider that leave to appeal should be refused.
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