R v Buhov
[2003] VSCA 106
•13 August 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 284 of 2001
| THE QUEEN |
| v. |
| MICHAEL BUHOV |
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JUDGES: | PHILLIPS, C.J., VINCENT, J.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 March 2003 | |
DATE OF JUDGMENT: | 13 August 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 106 | |
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Criminal Law - Application for leave to appeal against sentence - Grounds alleging manifest excess and disparity with co-offender - Lowe v. The Queen (1984) 154 C.L.R. 616 applied - Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pullen | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr G.J. Thomas | Victoria Legal Aid |
PHILLIPS, C.J.:
VINCENT, J.A.:
The applicant, who is aged 41, pleaded guilty in the County Court at Melbourne on 9 November 2001 to a presentment containing two counts, viz: trafficking in a drug of dependence, pseudoephedrine, (count 1) and having in his possession a drug of dependence, 3,4-mehylenedioxyamphetamine (count 2).
These offences were committed at South Yarra and other places in June 1999 (count 1) and at South Yarra on 23 June 1999 (count 2) and carried maximum penalties of 15 years’ and (apparently) 12 months’ imprisonment respectively, with possible additional fines.
The applicant admitted some 15 prior convictions, mostly for offences of dishonesty. These were incurred between 1984 and 1991 and variously attracted fines and a community based order (the sentencing judge thought them irrelevant). After a plea for leniency, during which the learned judge received or was informed of viva voce character evidence touching the applicant together with work certificates and a psychological report compiled by Mr Ian Joblin, the applicant was sentenced on 26 November 2001 to be imprisoned upon count 1 for seven years’ and upon count 2 for one month, making for a total effective term of seven years’ imprisonment. A non-parole period of five years’ was fixed and a declaration made as to 254 days pre-sentence detention.
Sentenced with the applicant was his wife, Elizabeth, who had pleaded guilty to count 1. The sentence imposed on her was one of three years’ imprisonment wholly suspended.
The applicant later lodged notice of application for leave to appeal against sentence pleading the sole ground that the sentence imposed was manifestly excessive, but the learned Registrar, on 28 February 2002, granted leave to add an additional ground.
“2.The learned sentencing judge erred in imposing a sentence on the applicant which was so disparate from that imposed on the co-offender, Elizabeth Buhov, as to engender a justifiable sense of grievance on the part of the applicant and to give the appearance that justice had not been done.”
On 8 March, 2002, Phillips, J.A., sitting alone, refused the applicant leave to appeal.
It is now necessary, to set out in summary form, the facts of these matters. We have had resort to the undisputed summary of evidence supplied to the Court.
At approximately 2.40.p.m. on Wednesday 23 June 1999, a fire occurred at a rented furnished apartment situated at 7/85 Caroline Street, South Yarra. Witnesses observed three males and a female leave the premises at the time of the fire. The manager and staff of Aston apartments extinguished the fire before extensive damage could be caused. Moderate damage was caused to the property. The cost of repairs was borne by the insurance company engaged by Aston Apartments Pty Ltd.
From 15 June 1999 onwards Elizabeth Buhov, co-accused and wife of the applicant, rented unit 7/85 Caroline Street, South Yarra from Aston Apartments Pty Ltd on a week to week basis. She gave a residential address of 43 Maroondah Terrace, Bundoora which is Michael Buhov’s parents’ address. Police investigations have identified that Michael and Elizabeth Buhov, Dimitar Pop-Ivanov and Nicholas Duffy were all present at Unit 7/85 Caroline Street, South Yarra, at the time of the explosion and subsequent fire. All occupants attempted to put out the fire by using blankets and couch cushions with no success and subsequently ran from the address.
Uniform police from Prahran Police Station identified the apartment as being a clandestine laboratory and notified the Drug Squad. The scene was examined by police on the evening of 23 of June, 1999, at which time the laboratory was capable of accommodating a large scale operation for the process of extracting pseudoephedrine from Sudafed tablets. Evidence was gathered which indicated that sufficient ‘Sudafed’ tablets had been purchased by occupants of the flat and others to yield approximately 1.5kg of pseudoephedrine. A significant proportion of these tablets were recovered from the scene.
Fingerprints located at the scene were later identified as belonging Michael and Elizabeth Buhov.
A Hertz rental car registered number PFI 174 was left in the driveway of the units in undercover parking provided for Unit 7. Keys to this vehicle were later discovered inside Unit 7. Inquiries with Hertz revealed the vehicle to have been rented by Michael Buhov from the High Street, Preston office of that company. At the time of renting this vehicle, Buhov was accompanied by his sister Lence Ilioski (also known as Helen). Ilioski provided her MasterCard details to the company as a form of security for the rental of this vehicle.
Personal papers including driver's licences and passports were found in the flat in the names of Michael Buhov, Elizabeth Buhov and Nicholas Duffy.
Other documents recovered from the scene indicate the employment by Michael Buhov of a number of persons who were acting as runners, purchasing large quantities of Sudafed tablets from chemist shops and supplying them to him for extraction of the pseudoephedrine. These documents include ledgers, which record the amount of cash advanced to the runner and the number of packets of Sudafed received in return. Although given names and nicknames are used in the records these runners have been identified as: Nicholas Duffy, Dimitar Pop‑Ivanov, Lence Ilioski and Sevi Georgas.
Documents located in the unit show that the Buhov’s had an agreement with their connections in Queensland whereby they would send 2 kilograms of pseudoephedrine via post to a Queensland address on a regular basis and in return they would receive $22,500. If the pseudoephedrine were not received in Queensland within 5 days they would receive $20,000. Overall they were to make an estimated profit of $6,500 for every 2 kilograms of pseudoephedrine.
Shipping documents, from Australian Air Express, located in the flat indicate that at least one parcel had already been forwarded to Queensland. Documents present in the unit infer that this parcel may have been a previous extraction of two kilograms of pseudoephedrine.
On 12 July 1999 a search warrant was executed upon the Commonwealth Bank by Detective Sergeant Stephen McIntyre. Amongst other documents seized at this time were banking statements relating to an account held jointly in the names of Michael and Elizabeth Buhov. Examination of these records indicate that during the period 26 May 1999 to 23 June 1999 a total of $16,550 was deposited at a number of locations in Queensland. Six of these deposits were followed almost immediately by an identical withdrawal from the account at locations around Melbourne.
Immediately following the fire the Buhov’s and Duffy went to the Crest Barkly Hotel, 47 Barkly Street, St Kilda. They met with Sevi Georgas who used her identification to enable them to rent a room. On 25 June, 1999, they checked out and went to another hotel the Park Avenue Motor Inn, 441 Royal Parade, Parkville. They checked out of this hotel on 29 June 1999. The Buhov’s and Duffy avoided apprehension by travelling to Sydney in a rented Toyota.
Duffy returned to Melbourne on 2 July 1999 and surrendered himself to police.
On 7 March 2001, Elizabeth Buhov contacted Victoria Police via her solicitor George Defteros and arranged to surrender herself to police. On the morning 8 March 2001, Elizabeth Buhov in company with her solicitor attended at the offices of the Victoria Police Drug Squad where she was taken into custody.
On 17 March 2001, Michael Buhov was arrested by members of the New South Wales Police Service in the Kings Cross area. Buhov was taken into custody in relation to drug offences which are currently unresolved in that state. At the time of apprehension Buhov supplied the arresting members with a false name being that of his brother in law Kiri Ilioski. Only through checking of fingerprint records was Michael Buhov correctly identified.
A Victorian warrant to arrest was subsequently executed upon Buhov on 21 March 2001. He was extradited to Victoria.
The applicant took part in a tape recorded interview on 23 March 2001 at the offices of the Drug Squad. Except in respect of formal parts of the interview the applicant answered “no comment” to all questions put to him.
The co-accused, Elizabeth Buhov took part in a tape recorded interview on 8 March 2001 at the offices of the Drug Squad. Except in relation to formal parts of the interview the co-accused did not comment on any questions put to her and indicated that she would at the conclusion of the interview make a formal written statement after advice from her solicitor. Reference will be later made to this statement.
During this interview Mrs Buhov identified herself as being depicted in one of 12 female photographs attached to an identification folder. The photograph Mrs Buhov indicated as depicting herself had earlier been identified by staff of the Aston Apartments as being the person who rented the flat at the time of the fire. Mr Buhov also identified in this statement a document as being in the handwriting of her husband, Michael Buhov.
We now turn to the arguments of counsel on this application.
Mr Thomas, for the applicant, began his submissions by addressing ground 1 and he referred to a number of the learned judge’s findings. These included findings that the applicant had an arrangement with persons in Queensland to produce pseudoephedrine and sell it to them; Sudafed found at the apartment could have produced one and a half kilograms of pseudoephedrine; the applicant’s motive was substantial monetary gain and he had fallen prey “to the machinations of more professional drug dealers in Queensland who saw an advantage in sub-contracting out of the State the production of their pseudoephedrine”; the method used was amateurish, foolish and dangerous.
Mr Thomas pointed out that the profit from two kilograms of the drug was an estimated $6,500 and he argued that the overall criminality of the applicant, in particular the scale of the offence representing count 1, was not such that it should properly attract a sentence of seven years’ imprisonment with a non-parole period of five years. He emphasised that it is the offence and not the enterprise which attracts the sentence imposed.
Continuing his submissions, Mr Thomas laid store on Elizabeth Buhov’s sentence and the fines imposed on Duffy and Ilioski who were dealt with summarily. He argued these sentences properly reflected the scale of the trafficking offence as well as individual roles. He also relied on matters favourable to the applicant including his plea of guilty, remorse, lack of relevant prior convictions and his “reasonably good “ prospects for rehabilitation as found by the judge.
Counsel submitted that the applicant’s sentence was inappropriate for a “sub-contractor” and was to the order of sentences commonly imposed on substantial traffickers manufacturing and selling amphetamines. He cited, in this connection, R. v. McNamara[1] and R. v. Yorston[2] unreported 29 November 1993. In the first of those cases, an application for leave to appeal against a sentence of seven and a half years’ imprisonment with a non-parole period of three years and nine months for trafficking in amphetamine for somewhat less than two months was dismissed. In the second of those cases, an application for leave to appeal against a sentence of eight years with a non-parole period of six years for a like offence was allowed and a new sentence of six years’ imprisonment with a non-parole period of four years and six months was imposed.
[1]BC 9605237
[2]BC 9300844
Mr Thomas allowed that a “consequent inflation of sentences imposed on drug traffickers” has occurred and referred to R. v. Berisha and Ors.[3], a heroin trafficking case.
[3][1999] VSCA 112
Turning to ground 2, Mr Thomas submitted that the principles of parity in sentence are well established. He referred to the judgment of Mason, J. (as he then was) in Lowe v. The Queen[4].
“This brief review of the authorities raises two questions. The first is: is discrepancy a ground for intervention in itself or is it merely indicative of undisclosed error in the sentencing process? Logic and reality combine to compel the answer in favour of the first alternative. The undisclosed error, as we have seen, may have occurred in the sentencing process as it affected the co-offender. The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.
What I have already said provides an answer to the second question: what is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.”
[4](1984) 154 CLR 616 at 613-4
Counsel also cited R. v. Djukic[5] in this connection.
[5][2001] VSCA 226.
Mr Thomas allowed that the evidence justified a lesser, and non-custodial, sentence for Elizabeth Buhov, but contended that what he called “such a large disparity in sentencing” was not rationally explicable. Properly understood, he contended, count 1 was a “joint” offence in the full sense of that term. The judge had found that the applicant and his wife were “supporting themselves in an expensive way” by their conduct and that Elizabeth’s involvement and knowledge of the offence much exceeded that which was contained in her statement. Indeed, she was an active collaborator, the premises being rented in her name and the account which received Queensland deposits was in joint names. An unjustified disparity was manifest R. v. Pulham[6].
[6](2000) 109 A. Crim. R. 541.
Ms Pullen, for the Crown, noted that it was not disputed that the applicant had established a business of producing pseudoephedrine for the purposes of substantial monetary gain and, indeed, all the inferences drawn by the learned judge against the applicant were plainly open to him. The Sudafed at South Yarra would yield 1053 grams of pseudoephedrine. There was also evidence of the applicant employing “runners” and of the regular sending by him of the drug through the post to Queensland. His Honour had the benefit of a very detailed plea on behalf of the applicant and it is not to be supposed that he failed to take its detail into account. The sentence was plainly within range on the whole of the evidence and the non-parole period made proper allowance for rehabilitation.
As to ground 2, Ms Pullen submitted that the differing sentences reflected not only the offending but also the personal circumstances of both offenders. The material showed the judge was “acutely aware” of the question of parity. The differing sentences were amply explained and justified by the concession of the prosecution that Elizabeth’s offending was not as significant as that of the applicant and did not warrant a sentence of imprisonment immediately served. She had surrendered herself to the police and was but one of a number of persons employed to purchase the Sudafed. The learned judge had properly taken into account her past achievements and her “being besotted with the applicant”. She had made attempts to break from the relationship which the applicant had frustrated. Further, the judge had “powerful plea material” on her behalf from the psychologist, Mr Newton, together with other character evidence.
We now turn to our conclusions.
As to ground 1, it is for the applicant to show that the sentence imposed fell altogether outside the range of those properly available to the learned judge. In the resolution of this ground, we have followed the course long sanctioned by authority of first identifying all the relevant circumstances and then looking at the face of the sentence in order to determine if, indeed, it is manifestly excessive. Performing that exercise we are unpersuaded that the sentence fell outside that range. Prominent among our reasons for that view are the evidence as to the scope of count 1, the applicant’s motivation for his offence and the maximum penalty imposed by Parliament. Perusal of the reasons for sentence shows that his Honour plainly kept in mind matters favourable to the applicant. While appreciating the industry of counsel, we are not assisted by the cases illustrative of other sentences – for each case falls to be determined on its own individual circumstances. This ground fails.
As to ground 2, it is for the applicant to show that the discrepancy in sentences is manifest and not merely arguable. It is proper to repeat that this sentencing judge was, beyond doubt, keenly aware of the issue of parity in his sentencing exercise. In his reasons for sentence, he stated:
“If one relies only upon the damning evidence left in the flat, the avoidance of apprehension and the disingenuous conduct after the search, one can only paint a picture of conscienceless criminality in pursuit of narcissistic self-indulgence. This picture does not, however, fit all the facts. It posits an apotheosis of crime quite inconsistent with [the wife’s] earlier life. Mr Bunyard [the systems manager of a transport company for whom Mrs Buhov was working] provides his own explanation: ‘I truly believe Elizabeth was an unwilling victim of circumstances. A person torn between a misguided loyalty to her husband and her own sense of fair play and what was right’. This is not far from my supposition and takes account of all the facts.
The ultimate question is, of course: Does the mitigatory supposition constitute a reasonably possible explanation of the prisoner’s involvement in the crime? In my opinion, it does. That conclusion gives form and content to Mr Sanders’s concession that Elizabeth Buhov’s involvement was much less in terms of criminal seriousness than that of Michael Buhov.”
In our opinion, the above views and conclusion were open to the learned judge and sufficiently explain and justify the discrepancy in the two sentences.
Applying the principles enunciated by Mason, J. (supra), this ground also fails and this application must be dismissed.
CUMMINS, A.J.A.:
I agree entirely in the judgment of the learned Chief Justice and Vincent, J.A..
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