Mileto v The Queen
[2014] VSCA 161
•31 July 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0123
| VINCENT MILETO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 July 2014 |
| DATE OF JUDGMENT: | 31 July 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 161 |
| JUDGMENT APPEALED FROM: | R v Mileto (Unreported, County Court of Victoria, Judge Allen, 22 March 2012) |
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Criminal law – Sentencing – Appeal – Trafficking in a drug of dependence (methylamphetamine) in not less than a commercial quantity – Fresh evidence – Forfeiture offence – Forfeiture application determined after sentence – Re-opening sentencing discretion – Evidence of conditions of imprisonment since original sentence – Head sentence and non-parole period reduced
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms M Fox | SDR Law |
| For the Crown | Mr D A Trapnell QC | Mr C Hyland, Solicitor for Public Prosecutions |
WHELAN JA:
I agree with Priest JA.
PRIEST JA:
Following a guilty plea to one charge of trafficking not less than a commercial quantity of a drug of dependence,[1] methylamphetamine, on 22 March 2012 the applicant was sentenced by a judge of the County Court to be imprisoned for five (5) years, upon which a non-parole period of two (2) years and six (6) months was fixed.
[1]Drugs, Poisons and Controlled Substances Act 1981, s 71AA. The maximum penalty is imprisonment for 25 years.
The applicant seeks leave to appeal against that sentence on the following ground:
On the basis that because fresh evidence concerning the automatic forfeiture of the applicant’s property has come into existence after the applicant was sentenced, a miscarriage of justice has arisen warranting the imposition of a lesser sentence upon the applicant.
For reasons that follow, I would grant leave to appeal, allow the appeal and sentence the applicant to be imprisoned for four (4) years and six (6) months, and would fix a non-parole period of two (2) years and three (3) months.
It is necessary to briefly outline the factual background. Between 8 August 2008 and 21 January 2009, together with other offenders, the applicant trafficked in methylamphetamine. The single charge of trafficking embraced several different, but complimentary, activities. Thus with his co-offenders the applicant possessed, sold and attempted to manufacture quantities of methylamphetamine.
The total quantity of methylamphetamine sold was 1.008 kilograms, which commanded a price of $135 100.
Further, between 7 October 2008 and 13 November 2008, the applicant also converted meth oil or meth powder into crystal form methylamphetamine The
amount involved was in total about 256 grams. The several attempts to manufacture methylamphetamine occurred on four occasions in 2008 — 8 August; 17 August; 5 September; and 17 October. Apart from those four attempts to manufacture, the applicant was successful in converting meth oil or meth powder to crystal form on three other occasions in 2008 — on 7 October; between 7 and 11 November; and on 13 November.
After the first three unsuccessful attempts to manufacture methylamphetamine, the applicant and a co-offender, Edward Clover, discussed the possibility of obtaining methylamphetamine from the head of the syndicate with which the applicant was involved, Fedele D’Amico, for the purposes of on-sale. Hence, on 9 October 2008 D’Amico supplied the applicant with 15 ounces of methylamphetamine for a price of $38 500; and on 5 November 2008 supplied a further 16 ounces for a price of $45 000. Two ounces from that total quantity of 31 ounces were removed for the purpose of attempted manufacture. The remaining 29 ounces were mixed with a cutting agent so as to produce a total quantity of 36 ounces (1.008 kilograms), which was then sold to five individuals (including the son of the head of the syndicate). These sales resulted in a total price of $135,100. It would seem that the applicant’s total profit from the sales, after taking account of outlay and Clover’s share of proceeds, would be between $17 000 and $25 800.[2]
[2]By consent, the sentencing judge mad a pecuniary penalty order in the sum of $17 275.
I should interpolate at this point that the property referred to in the ground of appeal is a residential house and land situated in Miller Street, Thornbury (‘the property’). The applicant and his former wife had become registered proprietors of the property on 17 June 1988. Following his divorce from his wife, by order of the Federal Magistrates’ Court dated 30 April 2007, the property was transferred to the applicant. Significantly, the applicant was arrested an interviewed on 27 March 2009; and only three days later, on 30 March 2009, he executed a transfer of land with respect to the property to his de-facto partner. The stated consideration for the transfer was ‘natural love and affection’.
Following his arrest on 27 March 2009, the applicant was released pending further investigation. On 9 April 2009, police executed a search warrant at the property, and the applicant was again arrested and charged. He remained in custody until granted bail on 25 May 2009, so that at the time he was sentenced he had spent 46 days in detention. A committal proceeded by way of hand-up brief on 8 March 2011, and in November 2011 the applicant indicated that he would plead guilty.
The applicant was born on 29 November 1950 and is now aged 62 years. Between 1968 and 1973, he acquired a number of prior convictions for offences including larceny, shop and house breaking, common assault, assaulting police, resisting arrest, road traffic and other offences. He had been imprisoned for some of those offences. Between 1973 and the date of his arrest for the current offending, however, he had — apart from an offence of possessing a pistol (or imitation) without a licence, for which on 6 May 1993 he was fined without conviction — been offence free. Of significance, his history disclosed no drug offences. The sentencing judge took into account the applicant’s personal history and previous good character ‘as an adult at least’ since aged about 21 years (a period of some 40 years), and remarked that the applicant had ‘kept out of trouble and lived a decent life, working hard, raising a family’, as was evidenced in various character references that had been tendered on the plea.
By way of mitigation, the judge also took into account a number of other factors. The judge gave the applicant’s plea of guilty ‘significant weight’, since it was entered at an early stage in the proceedings, thus avoiding a long and complex trial.
Delay was also a factor that the judge took into account, since the delay involved ‘uncertainty and anxiety’, which ‘in itself is a form of punishment’.
The judge also found ‘strong evidence of genuine and profound insight and remorse’, such that specific deterrence ‘has been achieved already’. It was, the judge thought, ‘highly unlikely, if not unthinkable, that [the applicant] would ever be tempted to offend in this way again, such is the depth of [his] insight and remorse.’
Further, the judge accepted that although he was not aged, imprisonment ‘would involve more hardship than for someone half [his] age’.
Finally, the sentencing judge found that the applicant had ‘excellent prospects of rehabilitation’, justifying the imposition of a lower non-parole period than would otherwise have been called for.
As I have said, ultimately the judge imposed a sentence of five years’ imprisonment, with a non-parole period of two years and six months. Pursuant to s 6AAA of the Sentencing Act 1991 the judge declared that but for the plea of guilty, he would have sentenced the applicant to six years with a minimum of four, so that the applicant could ‘see the powerful effect of [his] plea of guilty on [his] sentence.’
Between the applicant’s arrest and sentence, the Director of Public Prosecution had applied for a restraining order with respect to the property. On 9 June 2009, Mandie J made an order under s 18 of the Confiscation Act 1997 (’the Act’) which provided that ‘no person shall dispose of or otherwise deal with the property’. The following day, 10 June 2009, the applicant filed an application under s 21 of the Act seeking to exclude the applicant’s interest in the property from the operation of the exclusion order. That application was ultimately withdrawn. On 16 July 2013, Sifris J made an order pursuant to s 22(1)(a) of the Act ordering that fifty per cent of the interest of the applicant’s de-facto partner in the property[3] be excluded from the operation of the exclusion order. The practical effect was that, as a result of withdrawing his application for exclusion, the applicant’s 50 per cent interest in the property — assessed as having a value of $310 000 — became forfeited.
[3]She was by this time the sole registered proprietor of the property.
At the plea hearing before the sentencing judge the possibility of the property’s forfeiture was aired, but the applicant’s exclusion application was still on foot, so that the judge was prevented from taking account of forfeiture of the applicant’s interest in the property.
Before this Court, the applicant relied on the forfeiture of the applicant’s interest in the property as fresh evidence.[4] The respondent conceded that evidence of the forfeiture of the applicant’s interest in the property could be received as fresh evidence, but that no reduction of the applicant’s sentence was warranted. Importantly, the respondent did not dispute the affidavit evidence filed on behalf of the applicant that the property was lawfully acquired, and conceded that the forfeiture of the applicant’s interest in the lawfully acquired property is punitive.
[4]The applicant cited Kapkidis v The Queen [2013] VSCA 35, [44]; R v Duy Duc Nguyen [2006] VSCA 184, [36]; and R v McLeod (2007) 16 VR 682, 685–6 [17]–[18].
In my opinion, the evidence concerning forfeiture of the applicant’s interest in the property is admissible as fresh evidence since it shows ‘the true significance of facts in existence at the time of sentence’.[5] It should thus be regarded as reopening the sentencing discretion.
[5]R v McLeod (2007) 16 VR 682, 690 [3], citing R v Eliasen (1991) 53 A Crim R 391; R v Rostom [1996] 2 VR 97; R v Pividor; R v Dale [2002] VSCA 174; R v Williams [2005] VSCA 274; R v SH [2006] VSCA 83, [25]; and R v Ahmed [2006] VSCA 200.
I have earlier observed that the applicant withdrew his application for exclusion from forfeiture with respect to his interest in the property. It should be noted that this withdrawal was made in the face of evidence in the hands of police that the applicant had used the property to manufacture drugs, and had otherwise used the property to store drugs for sale. Thus it seems clear enough that there was evidence available that the property had been used in, or in connection with, the offence of trafficking a drug of dependence in not less than a commercial quantity. The present application should be viewed in that light.
In McLeod,[6] the Court (Maxwell P, Redlich JA and Habersberger AJA) drew a distinction between the forfeiture of proceeds of crime and forfeiture of lawfully acquired property. The Court observed:[7]
In Sentencing: State and Federal Law in Victoria, Professors Fox and Freiberg describe the forfeiture measures of the Act as ‘making no claim to serving any rehabilitative purpose, their impact intended to be incapacitative and deterrent’. In their view, the operation of the legislation was not intended to be subject to the restraints of proportionality, totality and mitigation imposed by general sentencing principles.
There has been limited judicial analysis of when and how confiscatory legislation should affect sentencing. This may reflect the great variation in circumstances, relating both to the acquisition of the forfeited property and to its use in the commission of the crime, and the variations which exist in the statutory regimes which provide for confiscation. Difficult questions arise as to how, as a matter of proportionality, forfeiture legislation should interact with the judicial imposition of sentences.
The obligation to disgorge the proceeds of crime is not a penalty. Disgorgement is necessary to prevent unjust enrichment. Forfeiture of the proceeds of crime has, nevertheless, been treated as a mitigating factor in some cases. Thus it has been said that pecuniary penalty orders which relate entirely to profits from the unlawful activity constitute an additional punishment.
Disgorgement of benefits apart, forfeiture is relevant to penalty. At common law, forfeiture of lawfully-acquired property has generally been regarded as a mitigating factor in sentencing, since it places the offender in a worse position than he/she was before the commission of the offence. That is, forfeiture has a punitive or deterrent effect.
The sentencing principle of proportionality requires that the nature and extent of any forfeiture of property be considered in fixing the sentence. That is not to say that such orders are always to be viewed as warranting mitigation of penalty. It is necessary to consider whether the forfeiture will have a disproportionate or exceptional effect on the offender and may have a substantial deterrent effect.
[6]Ibid.
[7]Ibid 685–6 [14]–[18] (citations omitted).
The Sentencing Act 1991 also permits forfeiture to be taken into account in circumstances such as these. So far as relevant, s 5(2A) provides:
(2A) In sentencing an offender a court—
…
(ab) if it is satisfied that property was acquired lawfully, may have regard to automatic forfeiture under the Confiscation Act 1997 in respect of property—
(i) that was used in, or in connection with, the commission of the offence;
(ii) that was intended to be used in, or in connection with, the commission of the offence;
(iii) that was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i) or (ii);
…
(e) subject to paragraph (ab), must not have regard to any property forfeited under automatic forfeiture or a pecuniary penalty order made in relation to a Schedule 2 offence under that Act.
Given the affidavit evidence to the effect that the property was lawfully acquired, and the fact that the respondent did not dispute that the property was lawfully acquired and conceded that the forfeiture order was punitive; and in light of general principle and the provisions of the Sentencing Act; in my view it is proper to take into account the forfeiture of the applicant’s interest in the property in mitigation of sentence, and I propose to do so.
The applicant sought to rely further, however, on the applicant’s attitude to the application for forfeiture as an indication of remorse. Section 5(2B) of the Sentencing Act 1991, which permits a court to have regard to a forfeiture order or an automatic forfeiture order ‘as an indication of remorse or co-operation with the authorities on the part of the offender’, was called in aid. Given, however, the manner in which the applicant endeavoured to transfer the property to his de-facto partner within days of his arrest; the evidence of his use of the property in his offending (which must have made obvious to him that forfeiture of the property was ‘on the cards’); and his belated withdrawal of the exclusion application (albeit he was awaiting legal advice); I would not regard the applicant’s attitude to the forfeiture application as demonstrating any dimension of remorse additional to that which the judge found to be present. The respondent’s submission that the applicant’s ‘decision to resolve the confiscation proceedings was born of pragmatism, rather than remorse or a willingness to assist authorities’, should be accepted.
Two affidavits were relied upon as demonstrating the existence of fresh evidence. The first was affirmed by the applicant on 12 June 2014; and the second was sworn by his solicitor on 17 June 2014. In anticipation that the fresh evidence relating to the forfeiture order might reopen the sentencing discretion in this Court, the applicant’s affidavit describes the circumstances of his confinement, which are submitted to be particularly onerous. The respondent accepted that ‘evidence concerning the conditions of the applicant’s incarceration may be received by this Court in order to inform the re-exercise of the sentencing discretion, should that discretion be re-opened’.
In his affidavit, the applicant described the circumstances of his confinement. It is unnecessary to recount them in detail, since it seems plain that the circumstances of his imprisonment have been more restrictive than the judge might have anticipated at the time of sentence. Quite apart from the applicant’s affidavit, the respondent relied upon an affidavit of Jennifer Ann Hosking, the Acting Assistant Commissioner of the Sentence Management Branch of Corrections Victoria. Drawing on the contents of Ms Hosking’s affidavit, it is clear that the applicant has spent much of his time in custody in protection, which is a more onerous regime than might have been anticipated when the applicant was first sentenced. This factor should be taken into account when sentencing the applicant afresh.
In my opinion the sentence passed by the learned County Court judge, having regard to the material then before him, was lenient. Notwithstanding that this is so, in light of the matters that I have earlier adverted to, some further — albeit slight — amelioration of sentence is called for. Taking into account the mitigating features identified by the sentencing judge; further taking into account the forfeiture of the applicant’s interest in the property (some $310 000), which plainly has a punitive element; and taking into account the evidence concerning the circumstances attending the applicant’s imprisonment; I would set aside the sentence passed at first instance, and would make orders so as to sentence the applicant to be imprisoned for four years and six months, upon which I would fix a non-parole period of two years and three months. All other ancillary orders and declarations should be confirmed. I would declare the period of 907 days (not including today) as being reckoned as a period already served pursuant to the sentence.
I would add this. Where this Court imposes a sentence not much different to that imposed at first instance, in some quarters it is accused of ‘tinkering ’. In light of that, I am cognisant of the fact that the sentence I propose (and in particular, the non-parole period) may appear to be not markedly different to the sentence first imposed. But in my view no complaint of tinkering may legitimately be made where this Court’s discretion as to sentence is thereby enlivened — whether as a result of material error, or by reason of fresh evidence — since it is the duty of the Court to consider whether a different sentence should be imposed.[8]
[8]R v Mok [2011] VSCA 38, [45] (Ashley JA); Jackson v The Queen [2013] VSCA 14, [36] (Priest JA).
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