R v Crabbe

[2008] VSCA 160

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 358 of 2007

THE QUEEN

v

LEONARD CHARLES CRABBE

---

JUDGES:	NETTLE and ASHLEY JJA and MANDIE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2008
DATE OF JUDGMENT:	25 August 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 160	1st Revision 17 September 2008, [12].

---

CRIMINAL LAW – Sentencing – Trafficking in a drug of dependence in a large commercial quantity – Principle of parity – Co-offender had been re-sentenced – Appellant re-sentenced

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant	Mr W E E Stuart	Greg Thomas & Associates

NETTLE JA:

1. I invite Mandie AJA to deliver the first judgment.

MANDIE AJA:

1. The appellant pleaded guilty in the County Court to one count of trafficking in a drug of dependence, namely, methylamphetamine and to one count of trafficking in a drug of dependence, namely, 3, 4 – methylenedioxy – N-methylamphetamine in not less than a commercial quantity.  On 19 October 2007 he was sentenced to 18 months imprisonment on the first count and 42 months imprisonment on the second count producing a total effective sentence of 42 months imprisonment and it was ordered that he serve 30 months imprisonment before becoming eligible for parole. He was also fined $500 on certain summary counts and other orders not presently relevant were made. 

1. The appellant appeals against the sentence on the ground that a co-offender,  one Barbaro, and certain others tried along with him, whose sentences were taken into account by the learned sentencing judge, have been re-sentenced to lower terms of imprisonment by the Court of Appeal and that, accordingly, by application of the principle of parity, his sentence ought also to be reduced.  The Crown does not dispute this. 

1. The principal offender, Barbaro, and his co-accused were dealt with as follows:

Total Effective Sentence	Non-parole period	Total Effective Sentence imposed by Court of Appeal	Non-parole period set by Court of Appeal
Barbaro	9 ½  years	7 years	7 ½ years	5 years
Wilson	6 years	4 ½ years	6 years	3 years 9 months
Parodi	4 years 3 months	2 years 10 months	3 years	1 year 9 months
Sallama	3 years	2 years 9 months	2 years 9 months	1 year 6 months

1. The ground of appeal is made out.

1. I would refer to and adopt, without setting it out, what was said by the learned sentencing judge in his reasons for sentence on 19 October 2007 as to many of the relevant circumstances and matters to be taken into account. 

1. Counsel for the appellant, referred to a number of matters that ought in his submission be taken into account by this Court.  These included:

·The delay between the appellant’s arrest and sentence and this appeal

·The subordinate role of the appellant in relation to the offences

·The appellant’s age and antecedents

·The appellant’s work history and how he became involved in the offences

·That there was no evidence of financial benefit to him from the offending

·The adverse consequence suffered by him by the forfeiture of his one-half interest in valuable real property

·The appellant’s good conduct and efforts to rehabilitate since his imprisonment.

1. Despite all of these matters, the offences were, of course, serious. 

1. In the light of the re-sentencing of Barbaro (and others) by the Court of Appeal, and taking into account the matters emphasised by counsel for the appellant, I would propose that the appeal be allowed and that the appellant be re-sentenced on the first count to a term of 1 year’s imprisonment, on the second count to a term of 3 years’ imprisonment with a consequent total effective sentence of 3 years and that a non-parole period be fixed of 1 year and 6 months and that the other sentences and orders made by the County Court be confirmed.   

NETTLE JA:

1. I agree, and add only that in my judgment the lesser than usual non-parole period of only 18 months as against the three years total effective sentence which his Honour proposes is in this case warranted by the appellant's exceptional personal and work history;  the relatively lowly role which he played in the criminal enterprise over which he was charged;  the fact that his offending was motivated by his addiction, given the circumstances in which he became addicted;  and the very considerable steps already taken towards rehabilitation during the protracted period of delay between his offending and the disposition of this appeal.

ASHLEY JA:

1. I agree that the application for leave to appeal should be granted, that the appeal should be allowed and the appellant re-sentenced for the reasons advanced by my brother Mandie and for the further reasons of my brother Nettle.

NETTLE JA:

1. The orders of the Court shall be as follows:

1.The appeal against sentence is allowed in part.

2.The sentences passed below on counts 1 and 2 are quashed and in lieu thereof the appellant is re-sentenced as follows.

On count 1, trafficking in a drug of dependence, to a term of one year. 
On count 2, trafficking in a drug of dependence,
commercial quantity, to a term of imprisonment of three years.

The total effective sentence is therefore three years' imprisonment. 
A non-parole period is fixed of one year and six months.  It is declared that the number of days already served under the sentence is 353 days including this day, and it is directed that the fact of the declaration and its details be entered in the records of the Court.
The sentence passed below on the summary offence of possessing ammunition is confirmed. The order made below pursuant to s.464ZF of the Crimes Act 1958 and s.77(1) of the Confiscation Act 1997 are also confirmed.

---