R v Belyea
[2003] VSCA 192
•4 December 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 290 of 2002
| THE QUEEN |
| v. |
| SIMON JOHN BELYEA |
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JUDGES: | WINNEKE, P., CHARLES & EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 November 2003 | |
DATE OF JUDGMENT: | 4 December 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 192 | |
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Criminal Law – Sentence – Trafficking in cannabis in substantial quantities over lengthy period – Sentence of four-and-a-half years imprisonment with minimum period of two years and nine months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. T. Gyorffy | Ms. K. Robertson, Solicitor for Public Prosecutions |
For the Applicant | Mr. W.G. Gilbert | Victoria Legal Aid |
WINNEKE, P.:
The applicant Belyea stood for sentence in the County Court at Geelong in October 2002 on two counts of trafficking in a drug of dependence; namely cannabis; and one count of cultivating a narcotic plant; also cannabis. He had pleaded guilty to each count. After entertaining a plea in mitigation, the sentencing judge, on 25 October 2002, imposed sentences as follows:
Count 1;trafficking between September 1999 and July 2000 - 2½ years
Count 2;cultivation - 9 months
Count 3;trafficking between November 2001 and May 2002 - 3½ years
His Honour ordered that 12 months of the sentence on count 1 be cumulated upon the sentence imposed on count 3. The total effective sentence was, thus, 4½ years’ imprisonment. His Honour directed that the applicant serve a minimum period of two years, nine months before becoming eligible for parole. He declared that the applicant had been detained in custody in respect of these sentences for 157 days.
On 6 June 2003, Chernov, J.A. rejected the applicant’s application for leave to appeal against the sentences, pursuant to s.582 Crimes Act 1958. The applicant has now, by notice dated 14 June 2003 elected to have his application determined by a Court of Appeal comprising three judges.
The applicant’s initial leave application was supported only by one ground; namely that the sentence was manifestly excessive. Mr. Gilbert who appeared for the applicant before this Court, applied to add another three grounds to the application:
“2.The learned sentencing judge erred in that he failed to give sufficient weight to the nature and quality of the admissions made by the applicant in his Record of Interview.
3.The … judge erred in that he failed to take into account the stage at which the applicant pleaded guilty, namely at the earliest opportunity, as required by s.5(2)(e) of the Sentencing Act 1991.
4.The … judge erred in failing to take into account the applicant’s lack of relevant prior history.”
The Court gave leave to Mr. Gilbert to argue these grounds, but reserved to itself the question whether leave to amend should be given.
The applicant is now aged 47 years. He admitted to previous convictions in 1989 (13 charges of making false statements to obtain benefits which he knew were not payable) and 1995 (obtaining a social security benefit which was not payable). These convictions apparently stemmed from claiming unemployment benefits when he was “casually employed”. Although the applicant neither gave nor called evidence on the plea, his counsel described a man who had been a hard worker, but whose life had effectively “fallen apart” by 1995 when his marriage had broken down and whose health began to suffer through excess drinking and gambling. It would appear that, by the late 1990’s he had become unemployable due to back ailments which were the consequence of his previous physical labour and his dissolute lifestyle. These were the circumstances in which he began to traffick in cannabis to supplement his income.
It would appear that his activities became known to the police in or about May 2002, when a warrant was executed to search premises in Clifton Springs Road, Drysdale, occupied by the applicant’ former wife and her partner. Police found a hydroponic cannabis system in the rear shed (in respect of which the wife’s partner was charged) and, inside the house, a locked safe which belonged to the applicant. This was taken into police possession. The police contacted the applicant and, at their request, he attended at the police station later that day – that is 22 May 2002. In the police presence , the applicant opened the safe. Inside the safe, police found nearly $9,000 in cash, a number of re-sealable plastic bags, a bulk quantity of cannabis and 12 “deal bags” of cannabis each weighing 28 grams. The total quantity of cannabis found weighed 769 grams of an estimated retail value of about $10,800. Thereafter, a lengthy interview process began. It commenced on 22 June 2002 at about 6.30 p.m., and continued into the following day. At the commencement of the interview, the applicant admitted that the safe and the money in it were his, but claimed that the money was the proceeds of a “loan sharking” business which he carried on. The cannabis, he said, belonged to an associate who had paid him $500 to look after it. During a break in the interview, police found a notebook in the applicant’s vehicle which contained a large number of names and numbers. These, the applicant said, were records relevant to his loan-sharking business. In the boot of the car police found a tin which contained traces of cannabis. The keys of the car had attached to them a “tag” bearing an address of 28 Casaceli Court, an address of the applicant’s former girlfriend. The applicant said he sometimes “slept” at that address, but at which – he said – he had no possessions. The police conducted a search at that address, and found a box containing 12.2 grams of cannabis, two notebooks, two boxes of plastic bags, a roll of aluminium foil and electronic scales. When confronted with this the applicant said:
“You got me, hook, line – cut the bullshit, you got me, right …it’s all my shit.”
He claimed that one of the notebooks, which contained names, was a record of his loan business; but eventually conceded that, in fact, it included records of his drug sales. He then conceded that the money found in the safe included money from drug trafficking. He also agreed that certain of the records related to an endeavour to cultivate cannabis which he had financed early in the year 2000 but which, so he said, netted him no gain. That concession was the basis of count 2. He also agreed that his note-book records related to trafficking cannabis between 1 September 1999 and 29 July 2000 (count 1) and between 15 November 2001 and 22 May 2002 (count 3). He claimed he was involved in trafficking for the profit. The records indicated sales amounting to about $15,500 for the period in count 1; and for the period alleged in count 3, a gross return of between $33,000 and $62,000 was estimated. He said that he purchased the drug for $6,000 for a 2 pound bag; and on-sold in “ounce bags” for $250-$300 per ounce. Although his notebooks were not easily interpretable (no doubt, for good reason) patient reading was able to reveal that he was selling the cannabis in one ounce lots at $280, on average, per ounce. He appeared to have plenty of customers whose identity was revealed only by first name. At one point in the interview, the applicant conceded that he had some $30,000 in cash “buried” at some undisclosed location; he offered to give the police “half” of it if they let him go. At all material times, he was operating his trafficking business by use of his motor vehicle – that is, he was “a mobile drug dealer”.
The sentencing judge noted that the applicant was only prepared to concede his drug dealing activities after he had been confronted with a growing list of incriminating items. Until then, it had been his intention to mislead with a “cover story” about loan sharking deals. As his Honour said, the estimate of true financial returns from the trafficking could only be a guide to the total involved, but that – on any view – the trafficking was “extensive” and involved substantial sums. The applicant, in his Honour’s view, was “driven by no consideration other than profit”. Accordingly, for the purpose of sentencing, principles of general and special deterrence should loom large. His Honour noted that, after the initial endeavours to mislead, the applicant was co-operative and made frank admissions, ultimately leading to his pleas of guilty. Having referred to his past working history, and ultimate disablement from back injury, his Honour said:
“Nevertheless, however straitened your circumstances became during 1999, this provides no excuse for your election to traffick in drugs. This, to my way of thinking, is a case of a man with some intelligence and indeed business acumen, making a deliberate choice to deal in drugs seeking the potentially large rewards that such activities might bring.”
The sentences which his Honour imposed were, as he said, designed to “reflect the seriousness of [the applicant’s] offending”.
In this Court Mr. Gilbert submitted that the sentences imposed reflected, by their weight, that his Honour must have failed to pay proper regard to the mitigating circumstances which had been placed before him; including the applicant’s age, his plea of guilty, the fact that he had a good work history and no significant criminal record; and – in particular – the fact that he had made “frank” admissions revealing the extent of trafficking beyond what would have been known had those admissions not been made. Thus, it was put by Mr. Gilbert that, without the applicant’s ultimate concessions in the record of interview, the authorities would have had no basis for alleging the offence of “cultivation” in count 2; nor would they have unravelled the extent of the trafficking which underpinned counts 1 and 3. It was put by counsel, under cover of the amending ground 2, that his Honour had failed, or must have failed, to give sufficient weight to these “frank concessions”, and the applicant’s pleas of guilty, because the individual sentences and the total effective sentence of 4½ years were just too high for this level of offending by a mature man with no significant criminal background. In support of that argument, Mr. Gilbert appended to his submissions a list of sentences meted out by the courts in this State for this type of offending in recent years. By reference to these sentencing patterns, so it was submitted, both the total sentence and the non-parole period were “manifestly too high”, when assessed against the maximum sentence for trafficking in “traffickable quantities”; namely 15 years. Mr. Gilbert, under cover of proposed amended ground 3, further submitted that the judge must have failed to sufficiently take into account the stage at which the applicant had entered his guilty plea – namely at the earliest opportunity. That, it was put, was not only an indication of true remorse but had significant utilitarian value in the saving of community expense. The remorse was further demonstrated, Mr. Gilbert submitted, by the fact that the applicant had not applied for bail. Further, so it was submitted, the judge had failed to give sufficient weight to the applicant’s personal circumstances, and – in particular – his lack of relevant criminal history. Regarded cumulatively, so Mr. Gilbert contended, these errors had resulted in his Honour imposing a sentence which was outside the range of sentences legitimately available to him.
I have paid close attention to these submissions eloquently presented by Mr. Gilbert. It is tolerably clear that the matters argued under cover of the proposed amended grounds of appeal are, in substance, but particulars of ground 1 – i.e. that the sentences are manifestly excessive. All the matters put could have been put in support of ground 1; and therefore it is unnecessary and inappropriate to give the leave to amend the grounds which has been sought.
For my own part, I cannot accept that the sentences imposed by the sentencing judge are manifestly excessive. The highest of the sentences was 3½ years on count 3 which represented a lengthy period of trafficking in substantial quantities and carried out in a sophisticated fashion for no better purpose than greed. Nor can I accept the implication in the submissions made that his Honour – a very experienced criminal judge – has failed to pay sufficient heed in sentencing the applicant to the early plea of guilty or the so-called “frankness” of his “confessions”. It must be remembered that sentencing is still a project of “instinctive synthesis”, and that sentences imposed by experienced judges are not to be regarded as infected by specific error simply because a judge fails to mention all of the ingredients which go into “the mix”. It is, in my view, absurd to think that this sentencing judge was unaware that the applicant had pleaded guilty at an early stage; or was unaware that, ultimately, he had made admissions contrary to his interests; or of the implications which those admissions had for the applicant. The specific contentions of “failure to give adequate weight” to certain matters depend, for their success, upon the appellate court’s view of the reasonableness of the ultimate sentences imposed. If, instinctively, the appellate court concludes that the sentences are outside the range of reasonableness, it will infer that it is so because the judge must have given too much weight to some factors and/or too little weight to others. I do not regard the sentences imposed by his Honour as manifestly excessive, either as to the sentences individually or the total effective sentence of 4½ years. This was, on any view, a lengthy period of trafficking carried on in a sophisticated manner. The nub of the applicant’s criminality was succinctly expressed by his Honour when he said that this was a case of an intelligent man, with business acumen, making a deliberate choice to deal in drugs and to take advantage of the large rewards available. That type of trafficking in proscribed drugs has been, for years, labelled by this and other courts as destructive of community health and standards and worthy of stern punishment. Whether the so-called “frank” statements made by this applicant to the police truly disclose the limits of the trafficking is open to question, having regard to the lengths to which the
applicant went to conceal the existence of his criminality before becoming overwhelmed by the inevitable. For my own part, I would be sceptical; and my impression is that the judge may well have been sceptical too. But whether he was or not, the sentences imposed were, in my view, well within the range of sentences open for this type of opportunistic trafficking in cannabis; as was the limited cumulation ordered by the judge. The total effective sentence produced was not, in my view, manifestly excessive; nor was the minimum period which his Honour fixed.
I would, in accordance with these reasons, dismiss the application for leave to amend the grounds; and I would dismiss the application for leave to appeal against the sentence.
CHARLES, J.A.:
I agree with Winneke, P.
EAMES, J.A.:
For the reasons given by Winneke, P., I agree that the application for leave to amend the grounds should be dismissed and so too should the application for leave to appeal against sentence be dismissed.
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