R v Burr
[2000] VSCA 182
•19 September 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 288 of 1999
| THE QUEEN |
| v. |
| LESLIE THOMAS BURR |
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JUDGES: | BROOKING, ORMISTON and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 14 September 2000 | |
DATE OF JUDGMENT: | 19 September 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 182 | |
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CRIMINAL LAW – Sentence – Trafficking in methylamphetamine – Whether manifest disparity between co-offenders – Six years' imprisonment not manifestly excessive.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr P.A. Coghlan, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr P. Tehan, Q.C. with Mr M. Croucher | David Tonkin & Associates |
CHERNOV, J.A.:
The applicant, Leslie Thomas Burr, is 55 years of age. On 31 March 1999 he pleaded guilty in the County Court at Melbourne to a single count of trafficking in a drug of dependence, namely, methylamphetamine. The relevant offence was allegedly committed by the applicant between 1 August 1993 and 31 March 1996. He admitted to 31 prior convictions between December 1960 and July 1995, two of which were drug-related. The first involved his conviction on 5 August 1983 in the District Court of New South Wales for supplying heroin. In relation to that offence he was sentenced to 10 years' imprisonment with hard labour. On 24 February 1989 he was convicted in the County Court of trafficking in amphetamines, for which he was sentenced to six years' imprisonment with a minimum period of four years. Other convictions involved offences which included escaping from legal custody, dishonesty in various forms, breaking and entering and firearms. He was described by his counsel during the hearing of the plea in mitigation on 30 July 1999 as a "career criminal" and his Honour observed that the applicant had not really known another way of life. According to his Honour's findings, the applicant is of normal intelligence, albeit of limited education, social skills and personal resources.
The maximum penalty for the offence in question was 15 years imprisonment and/or a fine of up to $100,000. On 21 October 1999 the applicant was sentenced to six years imprisonment with a non-parole period of four years. His Honour also declared that the applicant had served 54 days in custody and deemed that time to be already served under the sentence. It is apparent from the transcript of the proceedings of 15 and 21 October 1999 that the declaration as to the 54 days was made by his Honour because the parties had told him that this was the agreed period of pre-sentence detention. Nevertheless, one of the applicant's contentions in the present application is that the declaration is erroneous.
The applicant now seeks leave to appeal against the sentence imposed upon him. In a notice of application filed with the Registry on 8 November 1999 the applicant stated one ground upon which he wished to appeal, namely, that in all the circumstances the sentence is manifestly excessive. It is convenient to mention now that the report of the learned sentencing judge to this Court made pursuant to r.2.27 of the Supreme Court (Criminal Procedure) Rules 1998, which was made in the context of the notice of application as filed, stated that his Honour could not usefully add to what is contained in the sentencing remarks. His Honour noted, correctly as at the date of his report, that the only ground of the application was that the sentence was manifestly excessive. His Honour went on to say that, "Should the grounds of appeal change significantly and the court feels that it would be assisted by a further report I would be happy to provide it." Some time after his Honour made the report, on 11 September 2000, the Registrar granted leave to the applicant to amend the grounds of appeal by adding the following grounds:
(2)the learned sentencing judge erred in failing to place any or any sufficient weight upon the hardship faced and likely to be faced by the applicant in prison as a result of his fear of the co-offender, Gado;
(3)the learned sentencing judge erred by failing to place sufficient weight upon the applicant's psychiatric and psychological state;
(4)the learned sentencing judge erred by failing to place sufficient weight upon the applicant's plea of guilty;
(5)the sentence imposed upon the applicant is manifestly disparate with the sentences imposed upon the co‑offenders, Gado, Neill and Worcester; and
(6)the order for pre-sentence detention is erroneous.
This amendment undoubtedly amounted to a significant change in the grounds of the application. Because no notice of it was given to his Honour at the commencement of the hearing of the appeal, we did not have the benefit of a further report from his Honour. Nevertheless, in order not to hold up the hearing of the application, and so as not to inconvenience his Honour unnecessarily with a request for a further report, we decided to hear the application on the basis that, if we considered it necessary to call for a further report after we had analysed the arguments, we would do so. Counsel before us took no objection to that proposal.
The circumstances giving rise to the offence were agreed upon between the parties at the hearing of the plea in mitigation and his Honour, in effect, adopted the agreed facts and constructed the sentence relating to the applicant and a number of his co-offenders accordingly. It is unnecessary to repeat that material here. I shall only set out a brief outline of the background circumstances and refer to other facts insofar as they are relevant for the purpose of considering the grounds.
In essence, the offending conduct involved the applicant establishing and operating on a number of occasions during the two-and-a-half year period clandestine laboratories at various rural locations in which he manufactured ("cooked") amphetamines for the purpose of sale at a profit. His Honour found that altogether the applicant conducted seven cooks during the period in question, although not all of them were successful. None of the substances produced by the applicant were for his own use. The amount of amphetamines produced was substantial, although no raid took place which afforded the police the opportunity of seizing and quantifying precisely the amount produced. In the event, the applicant was not charged in relation to a commercial quantity of the drugs.
The police became aware of his operation through information provided to them by police informers, some of whom were co-offenders with the applicant. His Honour found that the unlawful operation which the applicant put into effect required considerable planning, effort and skill on his part. He managed to locate, principally with the assistance of one of his co-offenders, Robert James Neill, suitable isolated sites at which he manufactured the amphetamines. Neill and another co-offender, Zoran Gado, also assisted the applicant with work that was preparatory to the manufacturing process, such as moving and assembling some of the equipment and "shelling" capsules of Sudafed, the contents of which the applicant later used for the purpose of manufacturing amphetamines. The cooking, however, which involved mixing ingredients in the required proportions and the processing of them, was carried out by the applicant. Unbeknown to him, however, his amphetamine manufacturing operation, as well as other drug-related activities undertaken by others, were the subject of the then largest and most comprehensive investigation conducted by the Drug Squad, code-named Operation Phalanx. It involved the use of, inter alia, undercover police officers and police informers. Neill and Gado became such informers and the police were thus appraised of the applicant's illicit operation.
I will now turn to consider the grounds in the order in which they were argued by Mr Tehan, who appeared with Mr Croucher for the applicant.
Ground six was disposed of at the outset by agreement between the parties that the correct period of pre-sentence detention is 67 days.
Mr Tehan then argued grounds two and three. He submitted that his Honour gave insufficient weight in his sentencing considerations to the fact that the applicant's psychological and psychiatric state, including his paranoia arising out of his fear of being killed by Gado whilst in prison, will substantially increase the hardship that he will suffer in serving his term of imprisonment. It was contended for the applicant that this was a significant mitigating factor which his Honour failed to take into account sufficiently in constructing the sentence. Mr Tehan pointed to the reports of Mr Cummins, a forensic psychologist, of 13 April and 13 July 1999, and that of Dr Lester Walton of 18 May 1999, which dealt with the applicant's psychological and psychiatric condition and which, he submitted, showed that the applicant is highly obsessive, suffers from amphetamine psychosis, has a borderline disorder and suffers from paranoia, principally about being killed by Gado. It was submitted for the applicant that his psychological state - particularly his low self-esteem, in that he had made a fool of himself amongst his criminal associates, his sense of agitation and his intense suspicion - was a product of his criminal history and his institutionalisation. Although Mr Tehan agreed that these causes were self-induced, he contended that they were not a critical consideration for present purposes. What is of significance, he argued, is that his history of institutionalisation has produced in the applicant his current psychological and psychiatric condition, which will make it more difficult for him to bear his term of imprisonment. Mr Tehan argued that this is a mitigating factor which his Honour did not sufficiently take into account in his sentencing considerations.
Mr Tehan also highlighted the applicant's paranoia arising out of his fear of Gado. Two recent events, it was said, increased this paranoia. The first occurred on 23 July 199 when, according to the applicant, Gado tried to shoot him. The second event was the giving of evidence by the applicant against Gado at the latter's committal proceedings on a charge of attempting to kill the applicant, thereby giving rise to the concern that Gado would be even more determined to kill him. Mr Tehan contended that this paranoia will make it more burdensome to the applicant to serve his term of imprisonment having regard to his belief that Gado will have a greater opportunity of killing him while he is in prison. It was said on his behalf that, while in prison, he will not be able to take protective measures against the threat of Gado's attack on him, such as going into hiding, frequently changing his residence, and so on. While in prison he will, it was said, be a "sitting target" for Gado. Thus, Mr Tehan argued, the applicant will be continuously "looking over his shoulder" and suffering from attendant anxiety, and this will add significantly to the hardship of prison life. Mr Tehan submitted this was a significant mitigating factor which was not given sufficient weight by his Honour.
The fact that the person sentenced to imprisonment will, because of his or her particular circumstances, suffer significantly additional hardship in prison is ordinarily relevant to sentencing considerations.[1] Putting aside the Gado problem, it may be accepted that the applicant's psychological problems may make it more burdensome for him personally to serve his term of imprisonment. But those problems are not very different in nature from the type of problems that confront any number of people who are compelled to suffer imprisonment and who, because of them find imprisonment difficult to bear. It should also be borne in mind that the applicant is a person of normal intelligence and that he has had previous experience of the prison system, so that that environment would not come as a cultural shock to him. Moreover, to a large extent his personality disorder has been brought about by his criminal activity in which he has engaged for most of his life. In the circumstances, therefore, it seems to me that the additional burden of imprisonment due to his psychological and psychiatric condition is not of such a magnitude as to amount to a significant mitigating factor.
[1]See Fox and Freiberg, Sentencing - State and Federal Law in Victoria 2nd Ed at paras 3.901-3.903.
I also have difficulty in accepting Mr Tehan's argument that there is a sound basis for the applicant's apprehension that he is at greater risk of being killed by Gado while he is in gaol and that his Honour failed to give this mitigating factor due weight in the sentencing process.
Be that as it may, however, the fact is that his Honour did take the applicant's mental condition, including his paranoia about Gado, into account in his sentencing considerations. In his sentencing remarks the learned sentencing judge referred to Mr Cummins' reports and to his oral evidence about the applicant's mental health, as well as to the report of Dr Walton. Further, his Honour said the paranoia from which, according to Mr Cummins, the applicant suffers "is a fact that could make things more difficult in gaol" and that he would take that into account in his sentencing considerations. Furthermore, as I have already mentioned, his Honour also recognised the applicant's fear of Gado and that the authorities will be informed of the situation. There is, in my view, nothing in his Honour's sentencing remarks that indicates that he did not give those factors due weight. In the circumstances, therefore, and given that, for the reasons I give later, the sentence imposed by his Honour is not manifestly excessive, these grounds must fail.
Mr Tehan next argued ground five, namely, that the sentence imposed upon the applicant is manifestly disparate to the sentences imposed upon his co-offenders, Gado, Neill and Worcester. In support of his argument, Mr Tehan relied on what was said by Dawson and Gaudron, JJ. in Postiglione v. R.[2], namely, that the principle of parity recognizes that 'equal justice requires that, as between co-offenders, there should not be marked disparity which gives rise to a "justifiable sense of grievance"; [Lowe v. The Queen (1984) 154 C.L.R. 606 at 610 per Gibbs, C.J.; at 613 per Mason, J.; and at 623 per Dawson, J]'. If there is, the sentence in issue should be reduced notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Mr Tehan contended that the co-offenders were dealt with lightly and that the applicant's sentence was therefore disproportionately high giving rise to a justifiable sense of grievance in relation to it.
[2](1997) 189 C.L.R. 295 at 301.
In my view, however, this contention should be rejected. The cases of the co-offenders and that of the applicant were so different from one another that the principle of parity had little, if any, relevance to the sentencing considerations that were applicable to the applicant. Even if they were relevant, his Honour clearly had regard to them in his carefully reasoned and balanced sentencing remarks. The culpability of each of the three co-offenders in the crime was significantly lower than that of the applicant who was, as I have said, the only one who had technical knowledge to manufacture the amphetamines. The others merely assisted him in various ways. I have briefly mentioned the roles of Gado and Neill. Worcester was charged with conspiracy with the applicant to traffic methylamphetamines. His role, which was considered by his Honour to have been an important one, was to obtain the ingredients for some of the "cooks" although, as events turned out, no amphetamines were produced pursuant to the alleged conspiracy.
The personal circumstances of each of the co-offenders were also materially different from that of the applicant. Gado, who was at the time of sentencing aged 31, was presented on two counts of trafficking in a drug of dependence and was sentenced to twelve months' imprisonment on count one and two years' imprisonment on count two. There was concurrency between the sentences and the total effective sentence of two years was suspended for 24 months. Relevantly, Gado was a police informer and provided comprehensive information and intelligence to the police relating to the activities of Burr over a period of time. He swore 16 statements for the police and undertook to give evidence at both the committal and trial of Burr and others charged in relation to the operation. In his sentencing remarks the sentencing judge noted that, by co-operating with the police, Gado "has placed himself and his family at risk and has had to make serious changes to their life which will no doubt continue in the future". Moreover, Gado's criminal history is of a much lesser order than that of the applicant.
Neill, who at the time of sentencing was aged 38, was charged on one count of trafficking in a drug of dependence and was sentenced by another judge of the County Court to two years' imprisonment which was wholly suspended for two years. Neill's criminal history, although significant, was also not as extensive as that of the applicant. Furthermore, his role in the offence was, in relative terms, minor. The prosecutor described him as being the "bottom rung". The learned sentencing judge was also told that Neill had been of considerable assistance to the law enforcement authorities and was to give evidence not only against the applicant but also against the principal target of the police operation who was described as "one of the most significant drug traffickers in this State and who had eluded detection for a considerable period of time". It was also acknowledged that Neill jeopardised his life by providing this assistance. Furthermore, the Crown accepted that a wholly suspended custodial sentence would be appropriate.
Worcester was sentenced on 28 November 1997 by his Honour in respect of a number of state and federal offences, only one of which involved the applicant, namely, the conspiracy charge to which I have referred. I have also mentioned his role in the operation. His chronic medical condition, which included asthma, gastro-intestinal disorders, irritable bowel syndrome, skin complaints and an anxiety condition, was such that his Honour was satisfied that it would render the burden of imprisonment more onerous and took that factor into account in fixing the sentence. Worcester was the first of the offenders to plead guilty, which he did at the committal stage, and which led to other offenders pleading guilty. He had been sentenced to life imprisonment in Thailand in relation to a 1979 drug offence but was released in 1986. Nevertheless, his criminal history is not as extensive as that of the applicant. In relation to the counts in question, he received a total effective sentence (including two years three months on the conspiracy count) of two years three months, which was partially suspended for eighteen months. The Crown had submitted to his Honour that a partial suspension of a custodial sentence would be within the range.
Thus, in my view, contrasting the relevant circumstances applicable to each of the three co-offenders with those referrable to the applicant, it could not be properly said that the sentences imposed on the co-offenders would lead to a justifiable sense of grievance in respect of the applicant's sentence.
It is clear from his Honour's carefully reasoned sentencing remarks that he was very much alive to this issue and took great care to justify objectively the sentence imposed on the applicant when compared with those imposed on his co-offenders. Thus, his Honour said that he took those sentences into account in sentencing the applicant, and concluded that the different degrees of culpability and different circumstances of the co-offenders justified imposing on the applicant a sentence that was different to that imposed upon them. His Honour also concluded that, in all the circumstances, the imposition of a much more severe sentence on the applicant was warranted. In the circumstances, including the applicant's long criminal history, his Honour was well justified in coming to that conclusion.
In my opinion, his Honour did not err in applying the parity principle in sentencing the applicant and, therefore, this ground must also fail.
As to the remaining grounds, Mr Tehan was content to rely on his written outline of submissions. The claim made under cover of ground four, namely, that his Honour failed to place sufficient weight upon the applicant's plea of guilty is, in my view, without foundation. His Honour's sentencing remarks make it clear that he gave that factor considerable weight. His Honour said that he took into account in the applicant's favour the fact that he had pleaded guilty and that, in the circumstances, this warranted a "considerable sentencing discount". His Honour went on to recognise as well that there was some indication of remorse on the part of the applicant with respect to his criminal behaviour, as was outlined in Mr Cummins' reports. Mr Tehan did not seek to point to any of his Honour's sentencing remarks which arguably detract from what his Honour said on this matter. In the circumstances, therefore, this ground must fail.
Turning to ground one, namely, the claim that the sentence was manifestly excessive, it is trite that it does not admit of much argument. In determining whether a sentence is manifestly excessive, it is not a question of what sentence this Court would have imposed had it been in the shoes of the sentencing judge but, rather, whether the sentence in question is outside the range of sentences available to his Honour.
The task of the sentencing judge is to impose an appropriate sentence having regard to the gravity of the offence but taking into account matters personal to the applicant, including mitigating factors and relevant sentencing principles. That is what his Honour did in this case.
His Honour fully recognised the nature and the gravity of the offence. He considered, rightly in my view, that the offence of trafficking in amphetamines was one of considerable gravity which in this case occurred over a long period of time of some two-and-a-half years. As his Honour pointed out, the drug in question is dangerous and can be produced relatively easily from the establishment of a modest laboratory. It has the ability to alter mood and affect the mental wellbeing of those who abuse it. It is a drug that is often associated with violent and destructive behaviour and is a genesis of violence and erratic behaviour which comes before the criminal courts. That the drug is a danger to the community has been recognised by the courts on a number of occasions. Similarly, the gravity of the offence has been recognised by Parliament as is reflected in the maximum term of imprisonment that is prescribed for it. His Honour also took into account, rightly in my view, that the applicant had previously been involved in the trafficking of amphetamines to a significant extent and that specific deterrence and the protection of the community from the applicant were relevant sentencing considerations.
It is also clear from his Honour's sentencing remarks that he balanced against those matters factors personal to the applicant and other mitigating circumstances. Thus, his Honour recognised, as I have mentioned, that the applicant had pleaded guilty at a relatively early stage, that some remorse was present in relation to his criminal conduct and that, although there were difficulties associated with rehabilitation so far as the applicant was concerned, it was appropriate to take some account of it in sentencing him and, in particular, in fixing the non-parole period, his Honour also took into account other mitigating factors to which reference has been made.
In the circumstances, I can find no relevant error in his Honour's structuring of the sentence and, in my view, it was well within the range of sentencing options that were available to his Honour. Consequently this ground must also fail.
It follows that, notwithstanding Mr Tehan's valiant arguments in support of the grounds to which I have referred, the application must fail, save that 67 days should be substituted for the 54 days declared by his Honour as the period of pre-sentence detention. I mention for completeness that in the circumstances there is no need to request his Honour to provide a further sentencing report. I would therefore allow the appeal solely for the purposes of correcting the declaration concerning the period of pre-sentence detention.
BROOKING, J.A.:
I agree.
ORMISTON, J.A.:
I also agree.
BROOKING, J.A.:
The application for leave to appeal against sentence is granted and the appeal is treated as instituted and heard instanter and allowed for the purpose only of correcting the declaration pursuant to s.18 of the Sentencing Act 1991. The declaration made below is varied by substituting 67 days for 54 days as the period of custody specified in the declaration. Otherwise the sentence is confirmed.
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