R v Bidmade
[2009] VSCA 90
•14 May 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No 525 of 2008 |
| v | |
| ANTHONY JAMES BIDMADE |
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JUDGES: | VINCENT and NETTLE JJA and WILLIAMS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 April 2009 | |
DATE OF JUDGMENT: | 14 May 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 90 | |
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CRIMINAL LAW – Conviction – Trafficking and possession of drug of dependence – Whether act of possession part and parcel of trafficking.
CRIMINAL LAW – Sentencing – Applicant sentenced to a total effective sentence of two years and 10 months’ imprisonment with a non-parole period of two years on one count of trafficking in methyl amphetamine, one count of possessing methyl amphetamine – Whether judge gave sufficient weight to applicant’s youth and plea of guilty – Manifest excessiveness – Appeal allowed in part – Applicant re-sentenced to a total effective sentence of two years and seven months with a non-parole period of 21 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr C G Mandy | Slades & Parsons Solicitors |
VINCENT JA:
I have read the judgment of Nettle JA and agree that the application for leave to appeal against conviction on Count 3 be allowed and the conviction on that count quashed. I also agree that leave to appeal against sentence be granted and allowed, that the sentences imposed by the court below be set aside and the applicant re-sentenced as ordered by the Court.
NETTLE JA:
This is an application for leave to appeal from a total effective sentence of two years and 10 months’ imprisonment with a non-parole period of two years imposed on the applicant on pleading guilty in the County Court at Geelong to one count of trafficking in methyl amphetamine (Count 1), one count of criminal damage (Count 2), one count of possessing methyl amphetamine (Count 3) and one count of possessing cannabis (Count 4).
The judge sentenced the applicant on Count 1 (trafficking amphetamine) to two years and six months’ imprisonment, on Count 2 (criminal damage) to one months’ imprisonment, on Count 3 (possession of amphetamine) to three months’ imprisonment and on Count 4 (possession of cannabis) to a fine of $100.00. His Honour directed that the sentences imposed on Counts 2 and 3 be served cumulatively on each other and on the sentence imposed on Count 1 making for the total effective sentence of two years and 10 months’ imprisonment.
There is also an application for leave to appeal against conviction on Count 3, which we granted leave to file out of time, on the ground that the act of possession which comprised Count 3 was one of the acts which constituted the count of trafficking the subject of Count 1.
The circumstances of the offending
In brief substance, the circumstances of the offending are as follows. In
November 2006 police investigated an extensive drug ring which was then operating in the Geelong area. One Steven Dare was identified as the focal point of the ring. He carried on business as a large scale street level retailer of drugs and sourced his stocks of drugs from a number of different suppliers. The applicant was one such supplier and identified as supplying Dare with significant quantities of amphetamines.
Telephone intercepts were established on Dare’s telephone and between 4 December 2006 and 10 June 2007 and over 15,000 of Dare’s telephone calls were monitored. As a result of the exercise, the applicant was identified as being in contact with Dare by telephone on 684 occasions and at least 232 of those calls were drug related conversations. Analysis of the telephone intercepts revealed that the applicant was supplying Dare with amphetamine on a more or less daily basis in transactions of sizes ranging between a quarter of a gram for $50 to 3.5 grams for $450.
In one of the calls relating to the supply of drugs, the applicant’s voice could be heard ordering various telephones which he wanted stolen from K Mart in return for providing the drugs. During the course of another of the conversations he was heard to say that he had smashed the windows of the Sawyers Arms Tavern in Geelong and that he did not care. Those admissions founded the charge of criminal damage which is the subject of Count 2.
Over the period between 4 February 2007 and 13 June 2007 the applicant so trafficked 80 grams of amphetamine to Dare of which one gram was found upon analysis to be 30% pure. Those are the facts which comprised the count of trafficking in methyl amphetamine the subject of Count 1.
On 13 June 2007, police executed a series of warrants in the Geelong area, including one at the applicant’s premises where he was located in bed. Police there found ten small zip lock bags, each containing half a gram of amphetamine together with a container of $805 in cash. The applicant did not adduce any evidence to rebut the presumption of trafficking and, given that the applicant was in the business of trafficking amphetamine and that the amphetamine was located in ten individual half gram lots with the cash, the judge held that he was not satisfied that the amphetamine was for a purpose other than trafficking. Those are the facts which comprised the count of possessing methyl amphetamine the subject of Count 3.
The police also found 2 grams of cannabis in the applicant’s bed, but the judge was satisfied that it was for the applicant’s personal use. Those the facts which comprised the count of possessing cannabis the subject of Count 4.
When sentencing the applicant, the judge observed that several other people were awaiting trial for offences relating to their roles in supplying amphetamines and other drugs to Dare. But their involvement was with Dare, not the applicant, and therefore the judge considered that it was desirable to look at the applicant’s role in isolation from those other cases.
Applicant’s personal circumstances
The applicant’s personal circumstances emerge from the judge’s sentencing remarks. He was born on 11 May 1988 and thus was 18 years of age at the time of offending and 19 years old at the time of sentencing. His parents separated when he was five years old. His father had a long history of drug abuse and criminal convictions and, after separating from the applicant’s father, the applicant’s mother formed an unhappy relationship with another man. Eventually she took the applicant and his sister to a refuge in another town. But the applicant was left with a strong memory of the disturbance and fear which had been caused by the break up of his mother’s relationships. He attended various schools and suffered significant social problems. He was teased and bullied at school for the fact that he is an albino. He began smoking cannabis at the age of 12 and smoked heroin and began using amphetamines at the age of 13 or 14. As a young man he also ‘chromed’.[1] In 2002, his mother took out an intervention order against him but they subsequently reconciled. The applicant was in a relationship with a young woman for some years but when she left, at first for another woman and then for another man, the applicant relapsed into drug and alcohol abuse. It was then that he began to source amphetamines for Dare, keeping some of the drugs from each transaction by way of what he described as his ‘profit’.
[1]Sniffed paints.
Prior offences
Regrettably, these were not the applicant’s first drug offences. On 5 May 2006, he was brought before the Children’s Court at Geelong on 15 charges including charges of using methyl amphetamine, using cannabis, possession of cannabis, and trafficking amphetamines. On that occasion he was released without conviction on a Youth Supervision Order for a period of nine months.
On 11 September 2006, he was before the Magistrates’ Court at Geelong on charges of using cannabis and amphetamines and on two charges of possession of a drug of dependence, and on that occasion he was released on a bond without conviction for a period of 12 months. The applicant committed the offences the subject of this application during the currency of that bond.
The applicant’s grounds of appeal
Under cover of Ground 1 of the application for leave to appeal against sentence, counsel for the applicant contended that the judge failed to give sufficient weight to the applicant’s youth and prospects of rehabilitation, and counsel relied in support of that contention on the fact that the applicant was aged 18 years when the offending the subject of Count 1 began, and only 19 years of age at the end of that period, and so was properly to be regarded as a youthful offender. As was to be expected, counsel emphasised the principles pertinent to the sentencing of young offenders which were essayed in R v Mills.[2]
[2][1998] 4 VR 235.
I do not accept that the judge erred in the manner suggested. The principles to which counsel referred are not in doubt. But it appears to me from the judge‘s sentencing remarks and the length of the sentence which he imposed that his Honour had the applicant’s youth and prospects of rehabilitation at the forefront of sentencing considerations. As his Honour put it:
I take into account your age. You were 18 when your offending started and 19 when it was completed, and as such you were a young offender and I must have regard to your potential rehabilitation as the principal purpose in sentencing. I note that this is your first time in adult prison and that your remand has been, in Mr Joblin’s report, a wake-up call for you and there are some prospects that in the future you will avoid involvement with drugs and with crime. In addition you have prospects of employment and enjoy the support of both you mother, who requires you help, and your sister.[3]
[3]Sentencing remarks, [20].
Counsel for the applicant referred to the fact that the prosecutor had accepted before the judge that a sentence of three years in a Youth Justice Centre would have been within the sentencing range and counsel emphasised the fact, as he put it that, although the applicant was subsequently assessed as being unsuitable for a Youth Justice Centre order, the only reason for that was the length of time he had by then spent in an adult facility.
I am not sure that is right. It appears to me from the pre-sentence report that, although the length of time which the applicant spent in an adult gaol was one of the reasons he was assessed as unsuitable for a Youth Justice Centre order, his rejection was also due to what were perceived to be the risk which he posed to the wellbeing of other clients in the Youth Justice system and the seriousness and escalation of his offending despite previous Youth Justice intervention and other support services.
Be that as it may, however, counsel argued that, given that the Crown accepted that three years in a Youth Justice Centre was within the range, the judge should have imposed something much less than three years in adult prison. The nub of the complaint, as I understood it, was that a sentence of two years and 10 months with a non-parole period of two years means that in effect the applicant will be required to serve much more time in adult prison than he would have had to serve in youth detention. Alternatively, counsel contended, if the principles applicable to youthful offenders were not to be reflected in the head sentence, they should have been given greater weight in the setting of the non-parole period, especially given that the judge accepted that the Youth Justice Centre report confirmed the applicant’s prospects for rehabilitation.
I do not accept those contentions. The notion that, because a sentence of three years in Youth Justice Centre may have been within range, a sentence of two years and 10 months in adult gaol was beyond range, is misconceived. The duration of the sentence to be imposed is to be determined having regard to all relevant sentencing considerations, and in this case in particular, the youth and prospects of rehabilitation of the applicant. Having then come to a view that a sentence of no more than three years was within range, it was appropriate for his Honour to consider the suitability of the applicant to serve that period of imprisonment within a Youth Justice Centre. But the fact that the applicant was subsequently found unsuitable for a youth Justice Centre order was not a reason for the judge then to reduce the sentence that would otherwise have been imposed. Other things being equal, the length of a sentence should be more or less the same regardless of whether it is to be served in gaol or in a Youth Justice Centre or it is to be suspended.
Ground 2: Plea of guilty
Under cover of Ground 2, counsel for the applicant contended that the judge had given too little weight to the applicant’s early plea of guilty. He submitted that, inasmuch as the trafficking was put on a Giretti[4] basis; and that the total amount trafficked over the period of four months for which surveillance was maintained was no more than 80 grams comprised of individual amounts of between 0.5 grams and 3.5 grams; and that the applicant was trafficking solely to support his own habit, it was apparent that the judge had failed to give ‘tangible effect’[5] to the sentencing discount to be accorded to a plea of guilty.
[4]The Queen v Giretti (1986) 24 A Crim R 112.
[5]Cf R v Taing; R v Ly [2004] VSCA 46, [25] (Coldrey AJA).
I do not agree. The maximum sentence for the offence of trafficking amphetamine is 15 years’ imprisonment and although the quantities here are not commercial quantities, still less large commercial quantities, they were significant and the offending was committed over a substantial period of time on a regular and recurrent business basis. Nor did the judge find that the applicant engaged in the offending solely to support his habit; and, as far as the evidence goes, the telephone conversation in which he asked for stolen telephones as the price for the drugs to be supplied and the pot of money found by police when the applicant was arrested, rather suggest the contrary.
In my view, were it not for the applicant’s plea of guilty, he should properly have received a significantly harsher penalty than the sentence of only two years and six months’ imprisonment which the judge imposed, and thus in my view it is tolerably clear that the judge did give tangible effect to the guilty plea discount.
Cumulation of the sentences imposed on Counts 1 and 3
The complaint made under Ground 3 is that judge erred in cumulating the sentence imposed on Count 3 on the Sentence imposed on Count 1. The argument put here was that the possession the subject of Count 3 should have been seen as part and parcel of the trafficking the subject of Count 1 because it occurred on the last day of, and thus within, the Giretti period of between 4 February 2007 and 13 June 2007. In counsel’s submission, it followed that the sentence imposed on Count 3 should have been ordered to be served wholly concurrently with the sentence imposed on Count 1.
Alternatively, under the heading of the application for leave to appeal against conviction on Count 3, counsel argued that, because the act of possession occurred on the last day of and therefore within the Giretti period the subject of Count 1, the acts which comprised Count 3 were all comprised within Count 1 and thus that the applicant should not have been convicted of Count 3.
I accept the latter submission. Despite the fact that the applicant pleaded guilty to Count 3, it seems to me clear that it was part and parcel of Count 1 and that to allow the conviction to stand in those circumstances would be productive of an injustice.[6] It is true that the applicant pleaded guilty to both counts, and ordinarily that would be enough to put the commission of the two separate offences beyond doubt. But as Buchanan JA observed in R v Ahmed:[7]
An appeal against conviction by an offender who has pleaded guilty will be entertained if it appears that upon the admitted facts the accused could not in law have been convicted of the offence charged[8] or otherwise it appears that there has been a miscarriage of justice.[9] In my view there has been a miscarriage of justice in this case.[10] The applicant stood convicted of more offences than he had committed. That is apparent from the circumstances which emerged at the hearing of the plea. It is not necessary to investigate the events which induced the applicant to plead guilty.
[6]R v GJB (2002) 4 VR 355, 362 [15] (Winneke P).
[7](2007) 17 VR 454, 450 [20] (Buchanan JA).
[8]R v Forde [1923] 2 KB 400, 403 (Avory J); cf.R v El-Kotob (2002) 4 VR 546, 548 [3]-[5] (Callaway JA).
[9]See R v Coffey (2003) 6 VR 543, 545-6 (Callaway JA); R v Murphy [1965] VR 187.
[10]Cf R v GJB (2000) 4 VR 355, 362 [15] (Winneke P).
In my view, the conviction on Count 3 should be quashed and the sentence on that count set aside.
Ground 4: Manifest excessiveness
Finally, under Ground 4 of the application for leave to appeal against sentence, counsel for the applicant contended that the sentence was manifestly excessive and referred in support of that contention both to the grounds which have already been considered and also to a range of matters which he argued ought to have resulted in more lenient individual and total effective sentences than were passed below, including the applicant’s candour and expressions of regret for his offending, the pressing health needs of his family, his albinism and very poor sightedness, his attitude in custody, the fact that he had been ‘stood over’ in Port Phillip Prison while on remand and the availability to him of employment and substantial support in the community.
It will be apparent from what I have already said about the other grounds of appeal against sentence that I do not consider that any of them is reason to conclude that the sentence was manifestly excessive. I also note that the judge paid specific attention to each of the other factors which are now relied upon. Apart from the sentence imposed on Count 3, I am unable to detect anything in his Honour’s analysis or in the length of the individual sentences, total effective sentence or non-parole period in any way indicative of error. It seems to me that each of the individual sentences and total effective sentence were all within the range of sound sentencing discretion.
Conclusion and orders
It follows from what I have said that I would allow the application for leave to appeal against conviction on Count 3, treat that appeal as instituted and heard instanter and allowed, and quash the conviction on that count.
As a result of that, I would also allow the application for leave to appeal against sentence, treat that appeal as instituted and heard instanter and allowed and set aside the sentences passed below.
Consistently with the sentences passed below on the counts other than Count 3, I would re-sentence the applicant on Count 1 (trafficking amphetamine) to two years and six months’ imprisonment, on Count 2 (criminal damage) to one month’s imprisonment, and on Count 4 (possession of cannabis) to a fine of $100.00. Like the judge below, I would also direct that the sentence imposed on Count 2 be served cumulatively on Count 1, making a total effective sentence of two years and seven months’ imprisonment. Finally, I would set a new non-parole period of 21 months.
WILLIAMS AJA:
I agree that the application for leave to appeal against conviction on Count 3 be allowed, and the conviction on that count be quashed.
I agree that leave to appeal against sentence be allowed, and with the orders proposed by Nettle JA.
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