R v Cima
[2001] VSCA 103
•27 June 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 180 of 1999
| THE QUEEN |
| v. |
| FRANCO CIMA |
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JUDGES: | PHILLIPS, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 June 2001 | |
DATE OF JUDGMENT: | 27 June 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 103 | |
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Criminal law – Sentencing – Trafficking in heroin – Retail selling through coffee shop over period of months – 7½ years’ imprisonment with minimum term of 5½ years not manifestly excessive – No failure to have regard to offender’s ill health – “Fresh evidence” of ill health of no significance, if admissible.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S.E. Pullen | Solicitor for Public Prosecutions |
| For the Appellant | Mr. D.G. Just | Geoffrey Tobin Pty. |
PHILLIPS, J.A.:
This is an appeal against sentence imposed in the County Court on 18 August 1999 when the appellant, after pleading guilty to one count of trafficking in a drug of dependence, was sentenced to imprisonment for seven years and six months, a minimum term being fixed of five years and six months. There was pre-sentence detention of 364 days to be reckoned as already served.
The appellant, who was born on 1 July 1943, is now 57 years of age. The charge to which he pleaded guilty was that, with one Giuseppe Rocca, he trafficked in a drug of dependence, namely heroin, between 1 January 1998 and 10 June 1998. At the date of the offending, he was 55 years old. Rocca and the appellant were charged on a presentment naming also one Folino-Gallo, who was separately charged with aiding and abetting the other two in the commission of their offence. All three recorded pleas of guilty at their committal on 15 December 1998 and on 18 August 1999 all three were sentenced in the County Court. Rocca was sentenced to imprisonment for seven-and-a-half years, with a minimum term of five years, and Folino-Gallo to imprisonment for three-and-a-half years, with a minimum term of two-and-a-half years. The maximum penalty for trafficking in heroin was 15 years' imprisonment and a fine of $100,000 and that was also the maximum penalty for aiding and abetting in the trafficking of heroin.
As for the circumstances of the offending, in December 1996 Rocca took a lease of a building in High Street, Northcote and started running a coffee shop. It was from these premises that the trafficking occurred, Rocca purchasing large quantities of heroin which he gave the appellant to be prepared for sale. In order to avoid detection by the police, it was alleged, Rocca maintained minimal participation in the preparation and day to day sales of the heroin, but he received all the money from the sales and out of this he paid the appellant a percentage. Rocca and the appellant were assisted from time to time by one woman or another who had for the time being formed a live-in relationship with Rocca. In October 1997, Folino-Gallo commenced work at the coffee shop as a waiter and a cleaner. He was aware of the heroin sales being conducted and he soon commenced assisting the appellant with the selling.
In January 1998, police surveillance commenced and covert video recordings were made. The police became aware of a system instituted by Rocca whereby purchasers attending the coffee shop were given free cups of coffee while they waited to receive their heroin, in order to preclude large numbers of people coming and going briefly which might have attracted undue attention. Between late February and late May 1998, Rocca, the appellant and Folino-Gallo were selling each week about one ounce of heroin, about 28 grams, which cost Rocca $8,000 and if sold in half gram lots was sold for about $11,200, thereby yielding $3,200 by way of profit. The judge said:
"Over a period of 23 weeks between 1 January 1998 and 10 June 1998 the turnover was approximately $257,600 and the profit approximately $73,600. If the heroin was sold in very small quantities then, of course, turnover was greater and the profit margin greater."
On 12 March 1998, a police operative attended at the coffee shop, spoke with both Rocca and the appellant, and subsequently purchased two separate half-gram silver-foil packages of heroin for $200 each. On 16 March, another police operative attended at the coffee shop, spoke with the appellant and purchased for $200 another half-gram of heroin. He then spoke with Rocca, who gave him his telephone number and told him that they would be happy to sell heroin to him from time to time. There is no need to go much further into the detail of the police operation: suffice it to say that on 6 May 1998 a police operative went to the coffee shop and discussed with Rocca the possibility of his purchasing seven grams of heroin and, although the possibility was explored, in the end Rocca told him that they could not make the sale because of a problem with the supplier.
On 10 June 1998, the police executed search warrants at the coffee shop when Rocca, the appellant and Folino-Gallo were arrested along with several others. On searching the premises, police found in the appellant's pocket a plastic bag containing two silver-foil packages of heroin. All three men were interviewed, and all three answered "no comment" to the questions put.
Given the nature and extent of the surveillance operation, it is scarcely surprising that the appellant pleaded guilty to the charge of trafficking in heroin. As the sentencing judge said, he was "Rocca's right hand man", given that Rocca was purchasing the heroin and responsible for the day to day running of the shop, while he, the appellant, assisted in preparing the heroin for sale and participated in the selling. In sentencing, the judge described Rocca as "a man without scruple, quite insensitive, if not indifferent, to the suffering of those who provided [him] with income", and in sentencing the appellant in particular, the judge said that he, "like Rocca, ruthlessly exploited heroin addicts for [his] own personal gain". Unlike Rocca, who had no significant or relevant prior convictions, the appellant admitted 38 prior convictions from 13 court appearances between 1972 and 1996, including convictions for dishonesty and violence-related offences - although it must be said that none were for drug-related crimes and the appellant had not actually been in gaol.
Plainly the judge was fully justified when he said, when sentencing, that while what should be done in relation to heroin addicts who traffic might be a matter of debate, "what should be done in relation to non-addicted drug traffickers brooks no argument. Drug traffickers play for high stakes. When caught and convicted, they should expect little mercy from the courts." Hence the sentences handed down on 18 August 1999. On 30 August, the appellant gave notice of application for leave to appeal against sentence on the one ground that the sentence imposed was manifestly excessive. That application came before a Judge of Appeal on 6 June 2000, when leave was refused and the application dismissed, his Honour saying "the sentence was plainly ... within range: indeed it could have been higher."
Nothing daunted, the appellant, still then an applicant for leave, applied to have his application heard by a Bench of three, and that hearing took place on 19 October 2000. As on the previous occasion, the appellant represented himself. This time, he emphasised his health which he claimed had been getting worse while in gaol. Among other things he told the judges about "a lump in my back which just grow up in the gaol". According to the appellant, "they want to operate on me and I refused because there is 90 per cent [chance] of being in a wheelchair the rest of my life". He complained of being barely able to move, with increasing arthritis in both legs and one arm. One judge pointed out that all this might be new evidence casting important light on something existing at the time of the sentence and that, if so, it might be admissible - something accepted by the Crown. But as no affidavit was then available, the Court could not proceed further with the matter and so leave to appeal was granted in order that the appellant might get legal aid. In discussion it was pointed out that, if the matter was to proceed, the appellant would need "a proper medical affidavit". He was also warned, once again, that the sentence might be increased if the Court reached the point of re-sentencing.
The appeal pursuant to the leave granted on 19 October last has now come on for hearing. I have described the history of the application for leave to appeal because of the state of the material which is now before us. It was only last week, on 19 June, that application was finally made to the Registrar for amendment to the grounds of appeal (and only since then, I think, has any material in support been filed). Two new grounds were added to the original ground of manifest excess: first, that the judge erred in failing to regard ill-health as a factor tending to mitigate punishment and, secondly, that "fresh medical evidence explains the true significance of facts in existence at the time of sentence" so that imprisonment would now appear a greater burden on the applicant by reason of ill-health.
A third new ground was also added, but I can deal shortly with that at the outset. That further ground alleged error in the judge's finding that the offending continued until 10 July 1998, when in fact it ended on 10 June with the arrest of all three offenders. The presentment initially charged the appellant with trafficking between 1 January and 10 July 1998, but this was an obvious slip and it was amended on 16 August last before the accused pleaded and counsel commenced the pleas in mitigation. In sentencing, the judge first mentioned the charge as trafficking between 1 January and 10 July, but this too was an obvious slip, and one of no consequence in my opinion, because shortly into his sentencing remarks, when describing the size of the operation, he referred expressly - as we have seen - to its continuing over 23 weeks, between 1 January and 10 June. In my opinion, in sentencing the judge made no error as to the duration of the offending.
As for the other new grounds, I mention first that which turns on fresh evidence; for despite the amendment (and I should add despite what was said by their Honours last October when granting leave to appeal), we received no affidavit in support until the day before yesterday. On 19 June the application to amend was apparently supported by a report from Dr Tuck, the Director of Medical Services at St Vincent's, dated 5 June 2001, and the other day we received a second report of hers, dated 19 June. Both of these are now exhibited to an affidavit sworn by the doctor on 25 June 2001. Yesterday we received a third report, this time from Dr Byron Collins, dated 25 June 2001 and duly exhibited to an affidavit of his sworn on 26 June.
All this is scarcely satisfactory. On any view, the fresh evidence should have been far more readily to hand and provided more promptly to the Court than it was, but in saying that I make no criticism of the appellant's solicitors, whose difficulties in this regard were explained to us. But one of our difficulties is that there is no general power in this Court to alter sentences, and, to the limited extent that we can intervene on fresh evidence, in a case like this that evidence must be such as casts further light on something in existence at the date of sentence, the full significance of which was not then known. Ordinarily the longer the time that passes after sentence the less likely it is that that test will be met; and in this instance the lapse of nearly two years since sentence was passed makes it more difficult to distinguish in the reports that we now have between what might be admissible and what is not.
In the end, it seems to me unnecessary to rule upon admissibility because, even if we had regard to all that is in these three medical reports, I see in them no basis for our intervening to set aside the sentence passed below because of some lack of appreciation then of the appellant's medical condition. The first of the new reports is the three-page report from Dr Tuck, dated 5 June 2001. That sets out an "overview of medical problems" being experienced by the appellant while in custody, based on information contained in the patient's "correctional medical file". The problems include diabetes, hyperlipidaemia, circulation problems, radiculopathy (disease involving nerves), arthritis, some toe-nail thickening, hypertension and pilonidal sinus (being inflammation or infection commonly at the lower end of the spine). Surgical incision of the pilonidal sinus occurred on 1 May 2001, and perhaps this was the lump on the appellant's back of which he spoke to the Court on 19 October. Otherwise there is no mention of any lump requiring surgery, let alone any risk that, should surgery occur, the appellant stood a high chance of being immobilised.
The report of 5 June therefore provides no support for the very dramatic affliction described by the appellant to the Court in October 1999. In argument this morning, Mr Just relied upon the radiculopathy, and more particularly nerve root pressure at the base of the neck, and suggested that that was the lump to which the appellant had been referring in October. He said, too, that this was a new discovery flowing from the condition of back pain, but, as we pointed out in argument, to add that there is nerve root pressure scarcely makes a material difference - that is, a difference material to the exercise of the sentencing discretion.
The second report from Dr Tuck does not add much, if at all, to the earlier report. Nor, if I may say so, does the report of Dr Collins, save this: that report does refer to a lump in the appellant's neck. Of this the doctor says:
"On clinical examination, I note that Mr. Cima has a relatively well-defined, subcutaneous, mobile lump in the posterior aspect of his neck overlying the osteoarthritic vertebrae. This area, as far as I can ascertain, has not been subjected to biopsy, but it is likely to be related to the episode of trauma when he fell whilst in prison, striking his neck after he was hit in the face by a door which was suddenly opened."
It must be doubted whether this evidence in particular is admissible on appeal, given that the examination referred to was conducted less than a week ago: it is not known when the fall occurred. Anyway this report does not support the claims made in October last. Like its predecessors, it does not even hint at the dire consequences suggested by the appellant should surgery be attempted, assuming surgery is appropriate.
In short, none of this material supports, in my opinion, the claim that there is further evidence bearing on the ill health of the appellant which is such as to justify our setting aside the sentence imposed below and re-sentencing. The appellant's medical condition was the subject of report from Dr Tuck in August 1999. That report was before the sentencing judge on the plea in mitigation and it is not shown to have been significantly deficient. Indeed, it refers to the various conditions described by Dr Tuck in her later reports. In my opinion, there is nothing in the ground of appeal relating to fresh evidence.
Nor is it shown, in my opinion, that the sentencing judge did not have regard to the appellant's ill health as a factor going in mitigation. On the plea appellant's counsel put to the judge that "he's a lonely ill man who's having to at the age of 56 look seriously where he's going in life, both in terms of offending and his various health woes". After pointing to the fact that the appellant had no other "serious drug-related priors", counsel pleaded: "Given also his worsening health problems as drawn out by the report your Honour's read, I'd ask your Honour to give consideration to a non-parole period in the order of 12 months." Otherwise the plea was very brief. As I have said, Dr Tuck's report of August 1999 was before the judge and, save for the plea of guilty itself, there was little more said in favour of the appellant - and the judge said as much in sentencing. The plea was heard on the Monday and sentence was passed on the Wednesday, and it cannot be said that the judge paid no regard at all to the appellant's ill health as a mitigating factor. Plainly his Honour must have considered it, and considered it as such, if only by dint of the plea made by counsel. It is of no consequence then that when sentencing the judge saw no need to mention the appellant's health specifically - particularly, I would add, when Dr Tuck in her reports had made the point that the appellant's habit of
smoking 70 cigarettes a day was itself damaging to his health. As Mr Just frankly conceded this morning, there was no direct evidence how any of the complaints mentioned in these reports impacted upon the appellant's imprisonment. I accept the submission of the respondent that there is nothing in the amended ground alleging error in the judge's failing to have regard to the appellant's ill health.
Nor, in my opinion, is there anything in the ground of manifest excess. After all, this was a very serious offence and, despite the plea of guilty, it obviously merited a significant custodial sentence. In my opinion, even taking full account, as one must, of the appellant's state of health, his age, the plea of guilty and his antecedents, this sentence was within range and there was no error in that regard. Although, perhaps, they are not admissible for the purpose, it is at least interesting to note that all three reports now before us refer to the appellant's own reluctance to undertake remedial efforts to improve his health. In addition to his heavy smoking, the appellant is said to have been "poorly compliant with ... requests that he undertake blood sugar estimation" in relation to his diabetes, and he has apparently refused to undergo an operation for nerve decompression to relieve his neck pain. I place no weight on this evidence, but these reports serve at least to highlight how far the deterioration in health, particularly as to pain and immobility, is at least in part the product of time.
I would dismiss this appeal. I very much doubt that the appellant would have been granted leave to appeal had it not been for his suggestion, made at a time when he was not represented, that there was significant fresh evidence about his health. In my view, no such fresh evidence has been forthcoming and there is no ground for allowing this appeal.
CHERNOV, J.A.:
I agree.
VINCENT, J.A.:
I agree.
PHILLIPS, J.A.:
The order of the Court is:
Appeal dismissed.
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