R v Bassie
[2009] VSCA 120
•5 June 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 671 of 2007
| THE QUEEN |
| v |
| TROY BASSIE |
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JUDGES: | VINCENT, NETTLE and NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 May 2009 | |
DATE OF ORDERS | 13 May 2009 | |
DATE OF REASONS: | 5 June 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 120 | |
JUDGMENT APPEALED FROM: | R v Bassie (County Court of Victoria, Judge Duckett, 5 June 2007) | |
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CRIMINAL LAW – Sentence – Trafficking heroin – Trafficking methylamphetamine – Parity – R v Koumis and Ors (2008) 18 VR 434 – Appeal allowed – Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr J J Lavery | Brugman Mellas |
VINCENT JA
NETTLE JA
NEAVE JA:
The Court, on 12 May 2009, allowed the appeal brought by the appellant against sentences imposed upon him in the County Court on 5 June 2007. We indicated at the time that a statement of our reasons for so doing would be delivered at a later date.
The appellant pleaded guilty to one count of trafficking heroin (count 1) and one of trafficking methylamphetamine (count 2) admitting also 58 prior convictions arising from 15 court appearances between January 1994 and March 2005. These other appearances related to offences of dishonesty and violence for the most part, but they included one for a drug offence, that is, using a drug of dependence (heroin) in 2004 for which he was sentenced to pay a fine of $100.
After hearing a plea in mitigation of penalty, the judge imposed upon the appellant –
On count 1 - 4 years’ imprisonment
On count 2 - 2 years’ imprisonment
His Honour directed that one year of the sentence on count 2 be served cumulatively upon that imposed on the other count, thereby creating a total effective sentence of 5 years in respect of which he fixed a non-parole period of 3 years and 6 months.
The appellant then sought and was granted leave to appeal. There is no need to set out the grounds upon which he proposed to rely as the Crown appropriately conceded that, in the light of the judgment of the Court in R v Koumis and Ors,[1] a question of treatment of co-offenders has arisen which compels parity re-examination of the sentence in any event. Specifically the re-sentencing of a co-offender Barry Jones by this Court, to a total effective sentence of four years and six months with a non-parole period of three years necessitated reconsideration of the sentence imposed upon the appellant.
[1](2008) 18 VR 434.
The background
In January 2006, police commenced an investigation into heroin and amphetamine trafficking in the western suburbs of Melbourne by a man named Theodosis Koumis. As a result of the use of telephone intercepts, covert surveillance and the execution of search warrants, a number of persons, including the appellant and Jones, were charged with drug offences.
Jones and the appellant, were in due course presented together and both entered pleas of guilty – Jones to one count of trafficking heroin and the appellant to the two counts already mentioned.
With respect to the heroin trafficking, his Honour sentenced the two men on the basis that they acted jointly to obtain, in 30 separate transactions, a total of 500 grams of this drug from Koumis in the charged period of five and a half weeks. They paid a total of more than $125,000 for it, with two thirds being purchased by Jones and the remainder by the appellant.
His Honour found that most of the heroin was on-sold to a number of their respective customers who had combined contributions so that larger purchases could be made with a consequent reduction in price.
Count 2 related to a separate purchase by the appellant of 28 grams of methylamphetamine from Koumis.
Jones was sentenced by his Honour to five years’ imprisonment with a non-parole period of four years for his part in this activity. He appealed and, on 22 May 2008, the Court reduced his sentence to four years and six months’ imprisonment with a non-parole period of three years. There is no need to recite the considerations which the Court took into account in doing so. They are to be found in the joint judgment in R v Koumisand Ors.[2]
[2](2008) 18 VR 434.
The practical effect of the reduction of his sentence, as far as the appellant was concerned, was to reduce the distinction that the sentencing judge had properly made between them on the heroin count. This understandably gave rise to a legitimate sense of unfairness in the appellant which, as we have indicated, was acknowledged by the Crown. It was also accepted that the sentence of two years’ imprisonment for the amphetamine offence, of which 12 months was to be served cumulatively was, in the circumstances at least heavy and arguably excessive.
Although there were, of course distinctions that could be made between the personal backgrounds and situations of Jones and the appellant, they were not of a kind or extent that required any significant discrimination to be made between them for sentencing purposes. They were of roughly similar age and each had a long history of drug abuse. Both had appeared before the Courts on a number of occasions for offences of dishonesty and neither had convictions for serious drug offending. The major relevant differences arose from their levels of offending with respect to heroin and the separate involvement of the appellant in trafficking in a small amount of amphetamine.
The Court formed the view that the proper application of the principle of parity, in the circumstances, necessitated reopening of the sentencing discretion.
Against this background we allowed the appeal and made the following orders:
The appeal is allowed.
The sentences imposed in the court below are set aside and in lieu thereof the appellant is sentenced on count 1 to a term of three-years and six months’ imprisonment, and on count 2 to a term of 12 months’ imprisonment.
It is directed that six months of the sentence on court 2 be served cumulatively upon that imposed on count 1, making for a total effective sentence of four years’ imprisonment, in respect of which the Court fixes a non-parole period of two years and six months.
It is declared that the period of 1,073 days has already been served under the sentence hereby imposed and it is ordered that the fact of that declaration and its details be entered in the records of the Court.
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