R v Chaouk
[2000] VSCA 238
•13 December 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.339 of 1999
| THE QUEEN |
| v. |
| MACHOUR CHAOUK |
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JUDGES: | PHILLIPS, C.J., BATT and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 22 and 23 November 2000 | |
DATE OF JUDGMENT: | 13 December 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 238 | |
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Criminal Law – Trafficking in drugs – Accomplice – Corroboration – Whether evidence capable of amounting to corroboration.
Criminal Law – Adequacy of Jones v. Dunkel warning.
Criminal Law – Comments by trial judge - Effect of direction that jury can reject judge's view.
Criminal Law – Verdict not unsafe or unsatisfactory.
Criminal Law – Sentence – Parity – Sentence not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. J.D. McArdle, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. P.F. Tehan, Q.C. | Pryles & Defteros |
PHILLIPS, C.J.:
I have had the benefit of reading the judgment of Buchanan, J.A. in draft form. I concur in the conclusions his Honour has reached and I would subscribe to his reasons therefor.
BATT, J.A.:
I agree with Buchanan, J.A.
BUCHANAN, J.A.:
On 26 August 1999 after a trial in the County Court the applicant was found guilty of a charge of trafficking in heroin on 17 December 1996.
The principal witness in the trial was Yehia Mahmoud el Maarbani, who pleaded guilty to a charge of trafficking in heroin and was sentenced before the trial of the applicant commenced. The only other witnesses, apart from a translator, were undercover police officers who dealt with the applicant and el Maarbani and police officers who conducted surveillance of the movements of the applicant and el Maarbani, intercepted their telephone conversations, tape-recorded conversations, arrested the applicant and el Maarbani and interviewed the applicant. Tape recordings were admitted in evidence and there was documentary evidence such as certificates of analysis, photographs, telephone records and transcripts of tape recordings.
El Maarbani deposed that in July or August 1996 he travelled from Sydney, where he lived, to Melbourne and was introduced to the applicant. The applicant said that he could make very good money selling drugs and said that if el Maarbani sold 100 grams of heroin for $15,000, the applicant would pay el Maarbani a commission of $2,000.
El Maarbani gave evidence that a day or two later he met a person called Abdul, and told him that he knew of a way to obtain drugs and required a purchaser. El Maarbani did not know that Abdul was a police informer. Abdul introduced el Maarbani to an undercover police officer who assumed the name Rachel Carter. El Maarbani told Carter that he could supply 100 grams of heroin for $14,000. Four days later on 8 November 1996 Carter met el Maarbani. El Maarbani repeated that he could supply 100 grams for $14,000 and said that he could obtain even larger amounts. He said that the heroin would come from Melbourne. Carter requested el Maarbani to provide her with a sample. El Maarbani later telephoned the applicant and advised him that he had found people who were interested in purchasing heroin. The applicant told him that the purchaser would have to come to Melbourne. When el Maarbani next met Carter he told her that he could supply her with heroin. He said that she would have to travel to Melbourne for the first transaction, after which further heroin would be supplied to her in Sydney. On a later occasion el Maarbani mentioned a price of $220,000 a kilogram. Carter said that was expensive and that she would need a sample before she would come to Melbourne. El Maarbani contacted the applicant and said that he needed a sample. The applicant told el Maarbani to come to Melbourne. El Maarbani drove to Melbourne and met the applicant and collected what the applicant told him was a sample. El Maarbani drove back to Sydney and met Carter. He gave her 1.2 grams of white powder, which later analysis showed was 31.5 per cent pure heroin.
Continuing his evidence, el Maarbani said that after receiving a telephone call from Carter, he telephoned the applicant and told him that the people in Sydney were interested in buying drugs. The applicant told him that he did not have 100 gram quantities any more and could only supply kilograms of heroin. The applicant asked el Maarbani if he was sure that the people he was dealing with were not undercover police officers, and proposed a test of offering heroin at a price in excess of $200,000 per kilogram. The applicant said that only police officers would buy drugs at such a price. Carter passed the test by telling el Maarbani that $220,000 per kilogram was too high a price. She also told el Maarbani that the quality of the sample provided was not good enough. The applicant regarded that reaction as evidence that the proposed purchasers were not police officers and told el Maarbani to finalise arrangements for the sale of heroin in Melbourne.
El Maarbani made arrangements with Carter for the purchase of half-a-kilogram of heroin for $90,000 to be supplied in Melbourne.
On 17 December 1996 Carter and el Maarbani separately travelled to Melbourne. El Maarbani met the applicant and told him that Carter wanted a reasonably large sample. The applicant said that if the purchasers wanted a large sample, they would have to pay for it, and it was arranged that 14 grams would be supplied at a price of $2,500. El Maarbani was driven to the Irico Motel in Parkville by the applicant. Carter was staying at the motel. The applicant handed to el Maarbani a small black plastic parcel and instructed him to exchange it for $2,500 in cash, which el Maarbani was then to bring out to the applicant. El Maarbani entered the hotel and went to a room occupied by Carter. Carter introduced el Maarbani to another undercover police officer called Jack Jones. Jones gave el Maarbani $2,500 in cash and received the small black plastic parcel, which contained 13.99 grams of powder, 34 per cent of which was heroin. El Maarbani left the hotel. He found that the applicant was not waiting for him, and caught a taxi to the applicant's house, where he handed over the money and received $700 from the applicant.
Carter telephoned el Maarbani and said the deal would proceed as the sample was satisfactory. The applicant told el Maarbani that he was to tell the purchasers that they would have to come to the applicant's house with the money before he would hand over the drugs. He instructed el Maarbani to go back to the motel, make sure they had the money and count it out before coming to the applicant's house.
Police officers conducting surveillance observed an orange Datsun coupe driven by the applicant with el Maarbani as a passenger arrive at Carter's motel. El Maarbani left the car and entered the motel. The applicant drove away. Other police gave evidence that the applicant drove to his house. At the motel Jones handed to Carter a sports bag containing $80,000 in cash, which was shown to el Maarbani and counted. Jones and another undercover policeman drove el Maarbani in their car to a street near the applicant's house, where they parked. El Maarbani made a telephone call and soon afterwards an orange Datsun driven by the applicant parked some distance behind the car of the police officers. The police officers were told by el Maarbani to follow the orange Datsun. They did so and drove to a side street where they parked. Jones joined el Maarbani and the applicant in the Datsun. El Maarbani left the car and walked away, reappearing a few minutes later driving his BMW sedan which he parked behind the Datsun. El Maarbani and Jones sat in the rear seat of the BMW. A man, whom el Maarbani said was the applicant's son, arrived and also sat in the back seat of the car. He produced from under his jacket a paper bag containing a brown powder. Jones said that it felt too light for 500 grams. He was told there were only 300 grams, and it was agreed that the remaining 200 grams would be provided the next day. El Maarbani told the person said to be the applicant's son to leave, which he did, taking the paper bag with him. Soon afterwards el Maarbani and the applicant were arrested. When the applicant was searched the police found a knife with a folding blade and $1,365 in cash.
At the conclusion of the prosecution case the applicant stood mute and did not call any evidence. After the jury returned a verdict of guilty the applicant was sentenced to be imprisoned for a term of five years. A non-parole period of three years and six months was fixed.
The applicant now seeks leave to appeal both against the conviction and the sentence. The grounds of appeal against conviction, which were substituted by an order made on 11 August 2000, are as follows:
"1.The learned trial judge erred in his directions concerning corroboration.
2.The learned trial judge erred in his directions regarding that evidence which was capable of amounting to corroboration of the 'accomplice' el Maarbani.
3.The learned trial judge erred in his directions regarding the failure by the Crown to call evidence in relation to telephone calls.
4.The learned trial judge erred in his directions regarding the use which the jury could properly make of evidence relating to telephone calls.
5.The learned trial judge erred in making adverse comment regarding the applicant's explanation of his role to investigating police.
6.The learned trial judge erred in failing to give an additional warning regarding unreliability of the witness el Maarbani.
7.In all the circumstances the verdict is unsafe and unsatisfactory."
The first two grounds arose from the direction given to the jury that it was dangerous to convict the applicant on the evidence of the accomplice el Maarbani unless his evidence was corroborated. The Crown contended that the trafficking by the applicant consisted in offering heroin for sale. Section 70 of the Drugs, Poisons and Controlled Substances Act 1981 provides that "traffick" includes "offer for sale ... a drug of dependence". Under the first ground counsel for the applicant submitted that the jury should have been directed that the corroborating evidence was required to show that the applicant offered heroin for sale as principal, using el Maarbani as his agent. The jury should have been told that it was not sufficient for the corroborating evidence to show that the applicant was merely connected with the offering of the heroin for sale.
The trial judge's directions as to what would constitute corroboration were as follows:
"Corroboration is evidence from a source independent of the accomplice which implicates the accused in the crime charged by confirming evidence in some material particular of the evidence not only that the crime was committed but that the accused committed it. The accomplice's evidence need not be confirmed in total but to be corroborative it must be confirming evidence in some material particular to the evidence of the case that the crime was committed and that it was the accused who committed it."
It appears from the judge's charge to the jury that the Crown's case was not that the applicant made an offer to sell heroin using el Maarbani as an agent, but rather that the applicant and el Maarbani entered into a joint enterprise to offer heroin for sale. His Honour listed the elements that would constitute an offer to sell in this case. The contentious elements were "... that an offer for the sale of heroin was made by the accused to Jack Jones ... [and] that the accused intended Jack Jones to believe the offer to sell heroin was genuine." The trial judge then explained the concept of a common design or joint enterprise, saying,
"[T]hree things are necessary to be proved. One, the crime must have been committed by someone. Two, the accused man must have known of a criminal purpose and agreed to play a part in it. Three, the accused man must have performed an act or acts for the purpose of carrying out the crime."
In the context of a joint enterprise I think the direction given to the jury as to corroboration was sufficient to enable the jury to properly consider whether there was corroboration of the evidence of el Maarbani. The jury did not have to be satisfied of a relationship of principal and agent, but only that there was concerted action on the part of el Maarbani and the applicant with respect of an offer of heroin for sale. If there was concerted action on the part of el Maarbani and the applicant, they were both principals in the enterprise. Whether one was the agent of the other for the purposes of the civil law of contract was irrelevant to the question whether the applicant had committed the offence. Counsel for the applicant relied on the fact that el Maarbani's evidence was that he was recruited by the applicant. That version of the genesis of the enterprise, however, did not have to be accepted in order to conclude that the applicant and el Maarbani were jointly concerned in the offer of heroin for sale.
The evidence concerning the offer was straightforward. In my view the direction that corroborating evidence must confirm that the crime was committed and that the applicant was implicated in the commission of the crime was adequate. As there was no dispute in this case that the crime had been committed, it was only necessary for the corroborating evidence to confirm the applicant's participation in it. The direction required corroboration of the applicant's participation in the joint enterprise to make the offer, and in my view that would have been understood by the jury as a reference to evidence linking the applicant to the crime as one of those jointly concerned in its commission.
Under the second ground counsel for the applicant submitted that the trial judge erred in instructing the jury that certain evidence was capable of amounting to corroboration of the evidence of el Maarbani. The impugned directions were as follows:
"The evidence which I direct you is capable of amounting to co-operation is one, dropping off by the accused of el Maarbani at the Irico Motel at 4.15 p.m. on 17 December 1996 shortly prior to the meeting where the $19,000 was counted. Evidence that at 5.24 p.m. Mr Chaouk was seen talking to el Maarbani outside 663 Geelong Road and also that they went inside. Evidence that at 5.39 p.m. el Maarbani left the house and walked along Geelong Road. At 5.44 p.m. the evidence of Mr (indistinct), is observed getting into the car, the orange Datsun, NCR 415 and driving. Shortly after he is observed by Detective Jack Jones. At 6.01 p.m. he is observed in the orange car, NCR 601 with the undercover man, Jack Jones. This evidence is circumstantial evidence drawn from his travels with el Maarbani to the Eureka [scil. Irico] at 4.15 and little over an hour and ten minutes later he was seen with el Maarbani and then he's in the car with the undercover detective, Jack Jones.
Next, the actions of the accused in the driving of the orange Datsun and the BMW about 6 p.m. that evening 17 December 1996. Three, the words spoken in English and in a foreign language as translated by Mr Zein from which inferences can be drawn that the accused was party to the crime. The evidence is to be found in the evidence of Jones, Jack Jones' tape and the evidence of Mr Zein."
It was submitted that the first category of evidence described by his Honour could not corroborate el Maarbani because it required el Maarbani's explanation of why the applicant acted in the way he did to be accepted before the evidence could be said to tend to show that the applicant had committed the offence with which he was charged. It was submitted that the fact that the applicant may have been called on by el Maarbani to come to the meeting did not mean that he was committing the offence of trafficking in the way alleged by el Maarbani.
In my opinion the evidence was capable of amounting to corroboration, for it was at least circumstantial evidence of the applicant's connection with the crime.[1] For the reasons stated above I am of the opinion that it was sufficient for the corroborating evidence to show that the applicant was connected with the commission of the crime. It was not necessary for the evidence to show that the applicant was the principal who committed the crime acting through el Maarbani as his agent. The Crown was seeking to prove the applicant's participation in the enterprise of offering Jones heroin for sale, and in my view the evidence described by the trial judge, if accepted by the jury, was capable of rendering el Maarbani's evidence of the applicant's participation in the transaction more probable. The evidence was that the applicant was concerned and interested in the steps leading to and the holding of the meeting with the undercover police officers at which the offer of heroin for sale was made and was in close communication with el Maarbani when the meeting was organized and conducted. The conclusion that the applicant participated in the offer of heroin for sale could be drawn without accepting the evidence of el Maarbani himself.
[1]See R. v. Rayner [1998] 4 V.R. 818 at 838 per Winneke, P.
It was submitted that the second category of evidence described by the trial judge was also incapable of amounting to corroboration because it required el Maarbani's evidence to elevate it to the status of evidence showing that the applicant was the trafficker rather than el Maarbani. In respect of the third category of evidence, the applicant's counsel submitted the tapes were not sufficient to prove by themselves that the applicant was the offeror of the heroin.
In my opinion these contentions are flawed in that they appear to assume that it was necessary for the Crown to prove that the applicant was the principal who made an offer by means of el Maarbani as his agent. The Crown case, however, was that el Maarbani and the applicant participated in a joint enterprise, which did not involve a hierarchical relationship between the two. In my opinion the evidence described by his Honour could have been accepted by the jury as showing that the accused was involved in the commission of the crime as one of the participants in a joint enterprise. When the crime itself is viewed in that light, the evidence which the trial judge said could be relied on by the jury was capable of being regarded as more consistent with guilt than with innocence; it was not "intractably neutral in its effect"[2]; and rendered the other evidence of the applicant's participation probable.[3]
[2]R.v. Kerim [1988] 1 Qd.R. 426 at 447 per Macrossan, J.
[3]Doney v. R. (1990) 171 C.L.R. 207 at 211 per Deane, Dawson, Toohey, Gaudron and McHugh, JJ.
Grounds 3 and 4 are concerned with the failure of the Crown to lead any evidence of telephone calls by el Maarbani or the applicant after 11 December 1996. The trial judge dealt with the topic by saying:
"What you make of it in this particular case is a matter entirely for you. But this is the direction of law I give you on witnesses not called or not enough evidence being called upon it. At the outset, of course, is the obvious proposition that you must decide this case upon the evidence you have heard; not by speculating about the nature of evidence you have not heard. The absence of that evidence cannot be treated as supplying evidence additional to that which you have heard. However, the failure to call some evidence may be used by you in assessing the evidence which has been produced. First, evidence which could have been contradicted were it not true, may be more readily accepted by you because it has not been contradicted. Second, an inference arising from the evidence which has been called and which, were it unsound, could have been contradicted by evidence which has not been called, may more readily be accepted by you because of the failure to call the evidence which could have contradicted it.
In this regard, finally, where you find the party had deliberately failed to call the witness who could have given relevant evidence, you would be entitled to conclude that the party believed that the witness would not give evidence helpful to that party's cause. You will bear in mind that you must not infer the guilt of the accused unless you are satisfied beyond reasonable doubt on the facts upon which it is based and proved.
In the long run, members of the jury, you might think that this aspect, the failure to call evidence, except as to the telephone calls, you might think – and this is a comment of mine – that it is better to rely on the evidence which has been called than to attempt any speculation about evidence which has not been called. Nevertheless, it is a comment of mine which you can reject if you wish. The matter of importance that you give to it – and you have heard Mr Hartnett's comments – is a matter entirely for you."
The applicant complains that the trial judge failed to direct the jury that they might draw an inference adverse to the Crown from its failure to produce telephone records.[4] In my view, the jury would have understood from the direction "where you find the party had deliberately failed to call the witness who could have given relevant evidence, you would be entitled to conclude that the party believed that the witness would not give evidence helpful to that party's cause", that if they thought the prosecutor had decided not to tender telephone records that were available, those records would not have shown calls being made to or from the applicant's telephone number and el Maarbani's number, thereby lessening the significance of the evidence that in the course of the motor car manoeuvres on 17 December the applicant was seen to use his mobile phone.
[4]Jones v. Dunkel (1959) 101 C.L.R. 298 at 308 per Kitto, J., 312 per Menzies, J. and 320-1 per Windeyer, J.
The applicant also complained that the judge's comment undid the effect of the warning: the jury were told to disregard the absence of evidence of telephone calls after 11 December. The complaint assumes that the qualifying words "except as to the telephone calls" were not spoken and are an error in the transcript. The assumption gains support from the terms of counsel's exception to the charge, for it appears he thought the jury were told they could ignore the absence of telephone records.
While a judge is entitled to state his views as to the effect of evidence, he should warn the jury that they are free to reject his views.[5] A warning will not enable the judge to express his views too strongly. In Broadhurst v. R.[6] the Judicial Committee said:
"In the present case no warning was given; and their Lordships consider also that, even had there been a warning, the Chief Justice went too far in revealing his views, so that there was a danger of the jury being overawed by them."
In the present case a warning was given and I do not consider that the judge's comment was so strongly expressed as to override the effect of the warning.[7]
[5]R. v. Mawson [1967] V.R. 205 at 209.
[6][1964] A.C. 441 at 464. Cf. R. v. Crupi, unreported, 7 June 1995, Court of Criminal Appeal, at 29-30 per Crockett, Nathan and Vincent, JJ.
[7]Cf. R. v. Pennant [1998] 2 V.R. 453 at 466-7 per Ormiston, J.A.
The fifth ground was amended during the hearing of the appeal and became:
"The learned trial judge erred in making adverse comment regarding:
(i)the applicant's explanation of his role to investigating police;
(ii)the unreliability of the witness el Maarbani."
The comment with respect to the applicant's explanation of his role was as follows:
"It may well be – and it is only a comment from me, which you are free to reject or use if you wish, that you might wonder how a struggle with the police lines up with the credit, for the credibility you give to what the accused man says in his interview about being an innocent dupe. You can use that in my comment to you if you should wish, as going to the matter of what credit you give to the accused man's record of interview when he says an innocent dupe and Mr Hartnett's comment that he was so stunned that he engaged in a struggle with the police.
My comment is a strong one, you are free entirely whatsoever, to put it to one side if you should so desire or you can use it if you wish."
Evidence was given that the arresting police officers, who wore vests bearing the word "Police", and who identified themselves as police officers, requested the applicant to get down on the ground. When a police officer placed her hand on the applicant's arm to encourage him to comply with the request, he pushed against her and a struggle ensued. The evidence was that the applicant "began to resist quite strongly and Detective Sergeant Duncan used his police issue baton to try and subdue Mr Chaouk ..."
The jury in my opinion were entitled to view the applicant's reaction to his arrest as inconsistent with innocence. The fact that there were possible explanations of his resistance to the police which were consistent with his innocence did not render the trial judge's comment unfair in my view, and his Honour was at pains to ensure that the jury were aware that they could reject his views if they wished.
The trial judge pointed out to the jury matters that reflected ill upon the credit of el Maarbani . The applicant's complaint is that his Honour also said that there was no evidence that el Maarbani dealt in drugs on any occasion earlier than the transactions canvassed in this trial. In the course of summarising the address of the prosecutor the judge said:
"Of course el Maarbani told a number of lies to Rachel Carter on the basis that you might think that he was very interested in developing a relationship with her. That el Maarbani was certainly no practised drug dealer. He has got no prior convictions for it. He was not known by the police as a dealer in any way. That he did not have the money to purchase drugs, although admittedly it may be said that his lifestyle, how much work he was doing, his lifestyle may indicate that it needed more than the dole. But there is nothing whatsoever to suggest that he was anything else but a newcomer who was engaged by Mr Chaouk to find people in Sydney and bring them down to Melbourne for the purpose of selling (sic) to Mr Chaouk."
Later the judge said, recounting the comments made by the applicant's counsel as to the evidence of el Maarbani:
"He was five minutes into his cross-examination when he was already displaying that he was a convincing liar and admitting that he was a convincing liar. He is not just an awkward or stupid man, he is a liar, a cheat and I think Mr Hartnett said a misogynist, a drug dealer, that he can be a convincing liar. So you have to exercise considerable care when you are dealing with his evidence. ... Mr el Maarbani denied being a drug dealer, there is no evidence from the police that he was known to them adversely or as a drug dealer and in my view, my comment is that you might have considerable doubts as to how he was getting his money but it would be speculative on your part on this evidence to come to the conclusion that he was a drug dealer. But that, members of the jury, is entirely a matter for you. As I say, any comments I make, you are free to reject. If they help you, you may use them but it is what you make of the evidence in the long run."
Again the comments were accompanied by a direction that the jury were free to reject the judge's views. The comments themselves were not so much the expression of a view as to what the facts were as advice about the consequences of reaching conclusions without a foundation of evidence, and might be seen as putting into perspective the assertion made by counsel for the applicant in his address to the jury that el Maarbani was a drug dealer. I do not regard the comments as likely to have occasioned any injustice.
The sixth ground of the application was not pressed.
It was contended on behalf of the applicant that the verdict was unsafe and unsatisfactory in two respects. The first was that the errors said to be identified under the earlier grounds rendered the evidence unsafe. As I do not agree that any of those errors were made, I do not consider the ground can be established in this way.
Secondly, it was submitted that the directions given by the trial judge might have caused some members of the jury to have treated acts of el Maarbani as evidence against the applicant although those members thought that an agreement between el Maarbani and the applicant to commit the crime was made after the performance of those acts. The potential confusion arose from two functions served by the formation of an agreement between the applicant and el Maarbani to offer heroin for sale. One function was to establish a common enterprise, thereby implicating the applicant in the commission of the crime; the other was to render admissible the acts and words of el Maarbani against the applicant.[8] The direction which the applicant's counsel submitted was confusing was this:
"[Y]ou do not all have to be satisfied between yourselves that such agreement was reached at the same time between el Maarbani and the accused, so long as you are satisfied that an agreement to commit the crime existed immediately prior to the meeting between el Maarbani and Rachel Carter at the Elrico Motel after about 4.15 p.m. on 17 December 1996 at the latest."
It was contended that some members of the jury could have thought that agreement was not reached until 17 December 1996 and yet may have relied on earlier acts or words of el Maarbani as evidence against the applicant.
[8]Tripodi v. R. (1961) 104 C.L.R. 1.
I do not consider there was a real risk that the direction could have had that result. The impugned direction was preceded by these words:
"If you were satisfied that there was an agreement to commit the crime then after such agreement as you have found it the acts of el Maarbani become evidence against the accused man." [My emphasis.]
In my opinion the jury would have appreciated the different purposes served by a finding of an agreement between the applicant and el Maarbani and would have understood that they were required to find that an agreement existed before using later acts and words of el Maarbani against the applicant. No exception was taken to this aspect of the charge.
For the foregoing reasons I would dismiss the application for leave to appeal against conviction.
The applicant is now 54 years of age. He has 15 prior convictions from seven court appearances. Several of the convictions were for assault and like offences. Two of the convictions were for trafficking in heroin, and another two were for possession of heroin, the penalty being a fine on each charge. The convictions for trafficking and possession of heroin arose from one court appearance.
The applicant was born in Tripoli and worked on a family farm until he came to Australia at the age of 25 years. After his arrival in Australia the applicant worked in a tyre factory at Parramatta. He revisited Lebanon in 1974 to marry. Upon his return to Australia the applicant worked at a tyre factory in Melbourne, in a wool firm and at a fruit shop. In 1985 he was injured in a motor vehicle accident and has been unable to work since, although he engaged with his brother in the unsuccessful venture of a grocery shop in 1991. The applicant has suffered injuries in motor car accidents and at work, principally to his back. As a result of his emotional reaction to his injuries he has become depressed and lacks self-esteem. He has been treated by a psychiatrist since 1986. The applicant and his wife have six children, two of whom are still at school. The applicant lost his house in the failure of the grocery business in 1991 and is dependant upon his sons for the upkeep of himself and his family. Mr Healey, a psychologist, concluded that the applicant suffered from "significant depression and anxiety, and a distinct paranoid trend. He was seen as an emotionally disturbed man ..."
The grounds of the application to appeal against sentence are:
"1.the learned sentencing judge failed to give adequate weight to the applicant's personal circumstances;
2.the learned sentencing judge gave undue weight to the issue of general deterrence;
3.the learned sentencing judge erred in sentencing the applicant as a 'principal';
4.the sentence imposed was excessive when compared to the sentenced imposed on the witness el Maarbani ;
5.the sentence was manifestly excessive."
Counsel for the applicant pointed out that the only circumstances personal to the applicant mentioned in the sentencing remarks were the applicant's prior convictions and his ill-health. I do not think it follows that his Honour had regard only to those factors. A comprehensive plea was made on behalf of the applicant, in the course of which a detailed psychological report was tendered and the applicant's history and present position were fully described. The sentencing judge said:
"I take into account the evidence and the written material which has been placed before me ... and, indeed, all that your counsel has said on your behalf."
The first ground should be viewed together with grounds 2 and 5. The crime committed by the applicant was serious indeed. The fact that there was no evidence of an identified quantity of heroin does not mitigate the offence. The transaction in which the applicant engaged met the statutory declaration of trafficking, and the price of the drug the subject matter of the offer denoted its scale. General deterrence was properly given substantial weight by the sentencing judge. The effects of the use of heroin are pernicious. It often ruins the lives of those it does not kill. Persons who facilitate the use of heroin for their financial gain must expect condign punishment.[9] In my opinion the sentence imposed upon the applicant was not manifestly excessive having regard to the nature of the offence and making all due allowance for the personal circumstances of the applicant.
[9]R. v. Pantsis [1998] VSCA 134 at [12] per Tadgell, J.A.; R. v. Berisha [1999] VSCA 112 at [32]-[33] per Charles, J.A. and [39]-[41] per Tadgell, J.A.
In the course of his sentencing remarks the judge said that he was satisfied that the applicant was a principal in the transaction. As the case conducted by the prosecution was that the applicant participated in a joint enterprise with el Maarbani, the verdict entailed the conclusion that the applicant was a principal in the sense of a joint participant. Further, I consider that it was open to the sentencing judge to conclude that the applicant was a principal also in the sense that he was further up the chain of supply and closer to the source of the drug than el Maarbani .
The sentence imposed upon el Maarbani was a term of 15 months' imprisonment, 9 months of which was wholly suspended for a period of two years. There were significant differences between the positions of the applicant and el Maarbani . The latter had no prior convictions, he pleaded guilty, his evidence was largely responsible for the conviction of the applicant[10] and he could be seen to occupy a position in the hierarchy of the drug industry that was inferior to that of the applicant. In my opinion those distinctions justified their different punishments.
[10]R. v. Duncan [1998] 3 V.R. 208.
I would also dismiss the application for leave to appeal against the sentence.
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