R v Bennett
[2009] VSCA 42
•12 March 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 135 of 2008
| THE QUEEN |
| v |
| CLINTON BENNETT |
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JUDGES: | VINCENT and NETTLE JJA and WILLIAMS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 March 2009 | |
DATE OF JUDGMENT: | 12 March 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 42 | |
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CRIMINAL LAW – Sentencing – Trafficking in a drug of dependence – Specific deterrence – Manifest excessiveness – Whether lack of remorse indicative of need for specific deterrence – Whether sentence of 28 months’ imprisonment with 10 months suspended for two years manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G J C Silbert SC with Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr G M Hughan | Robert Stary & Associates |
VINCENT JA:
I will invite Nettle JA to deliver the first judgment in this matter.
NETTLE JA:
This is an appeal, with leave, against a sentence of 28 months' imprisonment, of which 10 months were suspended for two years, imposed on the appellant on pleading guilty to one count of trafficking in a drug of dependence. The appellant also pleaded guilty to one count of being in possession of a registered general category handgun, not being a collector or licensed, for which he was fined $1,000. But there is no complaint about that aspect of the sentence.
There are three grounds of appeal. The first is a complaint that the judge was guilty of specific error in concluding that specific deterrence was an important sentencing consideration. Secondly, it is contended that the judge erred in finding that the evidence was not sufficient to persuade her on the balance of probabilities that the appellant had been addicted to the drug in which he trafficked. Thirdly, it is said that the sentence is manifestly excessive.
In my view, there is nothing of substance in any of the three complaints.
Specific deterrence
In dealing with the mitigatory considerations urged on behalf of the appellant in the course of the plea, the judge said this:
In mitigation of the sentence, I have also allowed a discount for your plea of guilty, which followed the committal hearing, as this has spared the community the cost of a contested trial, and the witnesses the inconvenience of attending court. This plea, and to the extent that your father gave evidence that for you your arrest was an ‘eye opener’, I am quoting him, are indicators of a level of remorse, as is the fact that you have taken steps to improve your lifestyle and establish yourself in steady employment, all of which bode well for your future.
However, these matters notwithstanding, I have had difficulty in establishing from the material before me any direct evidence of regret on your part, beyond your concern about the predicament you find yourself in. Therefore, whilst there is evidence of good progress with your rehabilitation, specific deterrence nevertheless remains an important sentencing consideration.
Counsel for the appellant submitted that the judge was in error to regard the lack of evidence of remorse as indicative of the need for specific deterrence, and contended that there were in fact strong reasons to conclude that the appellant's offending was a one-off ‘uncharacteristic aberration’,[1] for which the need for specific deterrence was minimal. Those reasons included, counsel said, the appellant's relatively early plea of guilty; his complete lack of prior convictions, his age of 36 years at the time of first offending; the fact that, following the appellant's arrest and release on bail, he subjected himself to a drug rehabilitation program and, according to him, no longer used illicit drugs apart from the occasional consumption of cannabis; the fact that, in the 18 months between arrest and sentencing, the appellant returned to normal life in a stable home environment with a female partner who was a good mother to his children by a previous marriage and was pregnant with his child; and the fact that, over the same period, the appellant enjoyed solid employment as a welder with a metal manufacturing business and was highly regarded by his employer for his skill and diligence as an employee.
[1]Veen v The Queen (No 2) (1987) 164 CLR 465, 477.
I see no error in the judge's analysis. It is not contended that her Honour was wrong in finding a lack of evidence of contrition, as opposed to regret over having been caught. Nor could it be thought that the absence of ‘contrition is [not] a factor properly to be considered in determining what measure of clemency should be extended to an accused person’.[2] As it was put in R v Gray contrition is an aspect of the reformation component of sentencing, and so, logically, the absence of contrition may suggest a need for specific deterrence.
[2]R v Gray [1977] VR 225, 231.
Of course, that does not mean that the factors to which counsel referred were not indicative of progress towards reformation or strong prospects of rehabilitation. In my view, they were and are. But the judge evidently recognised them as such, for she referred to them in her sentencing remarks as relevant to that end, and the fact that her Honour imposed such a relatively merciful term of only 28 months' imprisonment and suspended ten of those months implies that she gave them considerable weight.
Drug addiction
In the course of the plea, counsel for the appellant submitted that there was evidence that the appellant had been addicted to drugs at the time of offending. But when the judge challenged that contention, it seems to me that counsel retreated to a submission that the evidence of trafficking other than of manufacture for own use was very limited. The exchange was as follows:
Counsel:… The evidence is before you that he was a person who had an addiction.
Her Honour: I don't know whether he had an addiction. The only evidence I have of that is that he says he was a user. An addiction is one thing and a user’s another.
Counsel:Yes.
Her Honour: You don't have any medical evidence of addiction?
Counsel:No. I suppose, it's in some ways putting it on the flip side, it's a submission, your Honour, that the evidence in this case, although manufacturing itself constitutes the offence of trafficking, by definition under the Drugs Act, [sic] whether or not anybody else used the substance. The evidence of trafficking in this case other than the manufacture for his own use is very limited…
Now, despite defence counsel's apparent acceptance of the lack of evidence of addiction as opposed to use, counsel for the appellant contends that the evidence was such that the judge was in effect bound to be satisfied on the balance of probabilities that the appellant was addicted. He relies in particular on the following:
(i)Evidence given at the committal by the appellant's co-accused, Weedon, that the appellant used drugs 'on a regular basis';
(ii)Evidence that following his arrest the appellant had undertaken what counsel described as 'drug rehabilitation' at Moreland Hall for over six months;
(iii)Evidence that a crack pipe was found at the appellant's home; and
(iv)Evidence given at the plea by the appellant's father that he believed that his son had been drinking too much and suspected that he may have used marijuana; that his son had seemed to be an angry man; and that, after the appellant's arrest, there appeared to be a lot of improvement.
In my view, none of that takes the matter any further than the submissions advanced before the sentencing judge. Weedon's evidence was equivocal. To say that the appellant used drugs on a regular basis was equally consistent with the appellant engaging in regular use as a matter of choice as in use because of addiction. The evidence of the crack pipe was also equivocal. An informant who visited the appellant's home stated that the pipe belonged to the appellant, but said nothing as to seeing him use it, still less of how often he did so. The appellant's father's evidence said nothing about addiction to methamphetamines. And the only evidence as to the content of the so-called ‘drug rehabilitation’ was a letter from an alcohol and drug counsellor at Moreland Hall as follows:
Mr Bennett attended his first counselling appointment with the writer on 23 January 2007 as scheduled. Mr Bennett attended regular counselling appointments with the writer until completion of counselling on 30 May 2007.
Mr Bennett engaged well in counselling, presenting as motivated and committed to the counselling process. He at all times presented as polite and respectful. Mr Bennett demonstrated considerable insight into the impact that illicit drugs use had had on his life. Mr Bennett identified his goals as maintaining abstinence from illicit substance use and finding new strategies with coping with life's stressors. Counselling focused on these areas. During the counselling process Mr Bennett made a significant number of positive changes to increase his capacity to remain drug free. These included making a commitment to abstinence and utilising strategies explored in counselling to achieve this.
Mr Bennett has made a strong commitment to a healthier lifestyle and has worked hard to achieve this. Mr Bennett indicated at the cessation of counselling that he intends to maintain abstinence from illicit substances and to continue making positive changes to his life.
In my opinion, it was well open to the judge to decide that she was not satisfied on the balance of probabilities that the appellant was addicted to drugs at the time of offending.
Manifest excessiveness
As to manifest excessiveness, counsel for the appellant referred to the same mitigatory factors as had been urged on the judge at the plea. It was said that the offence of trafficking was primarily constituted of the manufacture of methyl-amphetamine for personal consumption; the offending was of relatively small scale, in that only about six grams per week were produced over six months; that there was evidence of only two customers and no evidence that the appellant attempted to generate additional sales; that there was no evidence of financial betterment; that the applicant was close to 40 years of age and a first-time offender; that the offending occurred during a traumatic emotional period following a marital breakdown; and that, after the appellant was arrested, he returned to normal family life and regular full-time skilled employment.
As it appears to me, however, the facts were not quite as counsel stated. Weedon's evidence, as the judge noted, was that the appellant produced approximately 1.8 grams of uncut product each cook, of which there had been three a week throughout the relevant period, and that equates to the six grams per week mentioned by counsel. But there was also Ozman's evidence that he and others had attended the appellant's home on a regular basis to purchase the drug at a price of $100 or $150 a half gram.
Certainly, the indications are that the appellant was at relevant times going through a difficult emotional period the result of a marital breakdown and that, following his arrest, he did much towards his reformation and ultimate rehabilitation. But, as has already been observed, the judge paid specific attention to each of those matters in her sentencing remarks and explained why it was that the significance of them needed to be balanced against the requirements of general and specific deterrence.
Given that the maximum sentence for trafficking in a drug of dependence is 15 years' imprisonment and, as the judge said, in relation to offences of this kind, general deterrence is the principal sentencing consideration, in my opinion a sentence of only 28 months' imprisonment, of which ten months was suspended was anything but excessive.
Conclusion
I therefore would dismiss the appeal.
VINCENT JA:
I agree.
WILLIAMS AJA:
I agree that the appeal should be dismissed for the reasons given by Nettle JA.
VINCENT JA:
The order of the Court is that the appeal is dismissed.
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