R v D'Brass & Ortillo
[2002] VSCA 39
•15 March 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 382 of 2000
No. 391 of 2000
| THE QUEEN |
| v. |
| MATTHEW JOHN D'BRASS SHERWIN ZAMUDIO ORTILLO |
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JUDGES: | WINNEKE, P., BATT, J.A., O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 March 2002 | |
DATE OF JUDGMENT: | 15 March 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 39 | First Revision 1 May 2002 |
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CRIMINAL LAW - Sentencing - Heroin trafficking - Giretti type - Offenders in mid-twenties, but one with prior like convictions and other on other charges - 5 years' and 5 years 3 months' imprisonment each with a 4 year non-parole period not manifestly excessive - Sentences erroneously recorded - County Court to correct.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Cahill | Director of Public Prosecutions (Cth.) |
| For the Applicant D'Brass | Mr D. Dann | Mulcahy, Mendelson & Round |
| For the Applicant Ortillo | Mr G. Thomas | Victoria Legal Aid |
WINNEKE, P.:
I will invite Batt, J.A. to deliver the first judgment in these applications .
BATT, J.A.:
The applicants, Matthew John D'Brass and Sherwin Zamudio Ortillo, were arrested by Australian Federal Police officers on 30 March 2000 and charged with various offences against s.233B(1)(ca) of the Customs Act 1901 (Cth.) and s.71(1) of the Drugs, Poisons and Controlled Substances Act (which I shall call "the Drugs Act"), in each case in relation to heroin. The applicant Ortillo was charged also with a passport offence and a summary offence. On 25 August 2000 the committal mention in relation to both applicants at the Magistrates' Court at Melbourne was adjourned to 4 September 2000 to allow negotiations to take place with a view to both applicants entering guilty pleas at committal to a reduced number of charges on an agreed summary of facts. The magistrate ordered that a summary of facts be prepared and served by the informant by 30 August and that the applicants respond by 1 September. On 4 September, following a preliminary examination which proceeded by way of "hand-up brief", the applicants were committed for trial in the County Court at Melbourne on one count of trafficking in a drug of dependence, namely, heroin, between 15 December 1999 and 30 March 2000, contrary to s.71(1) of the Drugs Act. Ortillo was also committed on one count of possessing an Australian passport issued to another contrary to s.9A(d) of the Passports Act 1938 (Cth.), and the summary charge against him of possessing a prescribed weapon, namely a butterfly knife, contrary to the then s.5(1)(d) of the Control of Weapons Act 1990 was adjourned sine die. The remaining charges were withdrawn and marked "struck out" prior to committal upon the indication of the pleas of guilty to the "between dates" trafficking in heroin and upon the tendering of the agreed summary of facts as an exhibit at the committal. The applicants entered pleas of guilty to the counts on which they were committed.
On 15 November 2000 a joint indictment/presentment containing the counts on which the applicants had been committed was filed in the County Court at Melbourne. The applicants were arraigned and pleaded guilty to the respective counts against them. Pursuant to s.359AA of the Crimes Act 1958 Ortillo requested that the outstanding summary charge of possession of a prescribed weapon be dealt with by the County Court and entered a plea of guilty to that charge. The maximum penalties for the various offences were: for trafficking in a drug of dependence, imprisonment for 15 years or a fine of $100,000 or both, by virtue of s.71(1)(b) of the Drugs Act; for the passport offence, imprisonment for two years or a fine of $5,000 or both; and for the summary offence imprisonment for six months or a fine of $6,000. D'Brass admitted eight previous convictions sustained between 31 August 1994 and 19 August 1998. On the latter date he had been sentenced to perform a community based order for 12 months on charges of trafficking in heroin, using heroin and possessing heroin. Ortillo admitted 11 previous convictions sustained between 28 April 1993 and 3 August 1995. They included possession of a prescribed weapon, possession of a dangerous weapon, carrying a dangerous weapon and assault with a weapon. His Honour heard a plea in mitigation of penalty on behalf of each applicant. The Crown tendered the agreed summary of facts as Exhibit A. Counsel for D'Brass indicated there were some matters in it with which his client now took issue.
On 30 November 2000 his Honour pronounced sentence. He sentenced D'Brass to imprisonment for five years, fixed a non-parole period of four years and declared that 245 days spent in custody be reckoned as time already served under the sentence. Because he was informed that there were third party claims, his Honour did not pronounce or sign the tendered forms of orders for forfeiture and destruction in relation to D'Brass but gave the prosecution leave to apply for such orders later. Inexcusably, the associate's endorsement on the presentment and the return of prisoners signed by his Honour, purport to record him as having made those orders.
His Honour sentenced Ortillo to imprisonment for five years for drug trafficking, fined him $500 for the passport offence and sentenced him to three months' imprisonment on the summary offence. His Honour made the same declaration in relation to pre-sentence detention as he had made in respect of D'Brass. In his sentencing remarks the judge, in relation to the summary offence, stated that he declared "that sum [which seems to be a slip for 'sentence' or 'term'] cumulative upon the sentence already imposed by me" and for that declaration he gave a reason, namely, that it was Ortillo's fourth conviction for the offence. But, again inexcusably, the associate's endorsement and the return of prisoners expressly purport to record that that sentence was concurrent. In anticipation of the County Court correcting its records at the instance of the respondent (as to which see R. v. Saxon[1], I shall consider Ortillo's application as though the three months' sentence were cumulative.
[1][1998] 1 V.R. 503)
The applicants now seek leave to appeal against sentence. The grounds on which D'Brass seeks to do so, as amended pursuant to the Registrar's order of 19 November 2001, are:
"1. The sentence imposed is manifestly excessive.
2.The plea hearing of the Applicant miscarried in that the learned Sentencing Judge failed to consider the submissions made on behalf of the Applicant in a way that was fair to the Applicant.
3.The learned Sentencing Judge erred in the way he dealt with the factual dispute that had arisen in relation to the Applicant's level of involvement in the trafficking as alleged by the Crown by reference to the summary and the entries in the notebook.
4.The learned Sentencing Judge erred in finding that the money located at the Applicant's home at the time of his arrest was the proceeds of drug sales.
5.The learned Sentencing Judge failed to have sufficient regard to the Applicant's plea of guilty and co-operation with police at the time of his arrest
6.The learned Sentencing Judge failed to have sufficient regard to the Applicant's efforts at and prospects of rehabilitation.
7.The learned Sentencing Judge erred in fixing only a twelve month gap between the head sentence and non parole period."
Ortillo's grounds are:
"1. Sentences manifestly excessive.
2. Failure to order concurrency on count 3.
3.Failure to take into account Crown submissions that the time served was within the range of sentencing options.
4.Failure to take into account attempts at and prospects of rehabilitation.
5.Failure to take into account that the trafficking was at the lower end of the scale.
6.Failure to take into account that the trafficking was related to drug addiction and was not solely motivated by profit.
7.Incorrectly concluding that he was deliberately misled by counsel in relation to submissions that the trafficking was at the lower end of the scale.
8.Failure to take into account the mitigating factors in the plea.
9.Undue emphasis on aggravating features and general and specific deterrence."
The facts relating to the offences may be briefly stated. They are derived, at least substantially, from surveillance by the Australian Federal Police, authorised telephone intercepts and the execution of search warrants at the home of each applicant. Surveillance of Ortillo showed that he frequented the Springvale Road strip shops area and Paterson Road in Springvale and that he met various people in Springvale throughout the day. He indicated by telephone to a police informer that he was able to supply one kilogram of heroin in bulk for $500,000, though that never occurred. First, a sample was required and on 20 January 2000 Ortillo sold 1.15 grams of heroin of 40 per cent purity to the informer for $500 in a controlled purchase at Ortillo's residence in Clayton. A second controlled purchase of 0.5 of a gram of 50 per cent purity for $500 occurred on 3 February, Ortillo having obtained the heroin from the residence of D'Brass in Paterson Road, Springvale. During the period charged Ortillo and D'Brass received on their telephones numerous calls from persons using first names only and speaking with them in code, in the course of which arrangements were made for the sale of heroin to the callers. The sales were subsequently effected, in places such as supermarket carparks, principally by Ortillo. The applicants themselves spoke to each other by telephone not infrequently and Ortillo obtained his supply of heroin, in part at least, from D'Brass, who in turn purchased heroin from "Johnny" in Hawthorn East.
On 30 March 2000 each applicant was arrested and search warrants were executed at their homes. Amongst the numerous items found at Ortillo's home were 1.6 grams of compressed heroin; one box containing electronic scales, scissors, scalpel, tweezers and a quantity of aluminium foil; $1,550 in Australian currency and a small green notebook. That notebook contained various first names, being names used in telephone calls which had been intercepted, and various figures were recorded beside each name, some figures being followed by the notation "HRS" and others by the notation "PTS", which the respondent alleged were code denoting, first, the amount of heroin and, secondly, the price. Especially since many of the entries were consistent with intercepted telephone conversations and observed sales, that allegation is eminently reasonable. A page of the notebook was also located in the possession of D'Brass. The total number of "HRS" recorded on the 16 pages of entries and the additional page located on D'Brass was 1477 or 147.7 grams of heroin and 36223 "PTS" or $36,223. There were 185 transactions recorded and they were shown to relate to the period from 8 March to 30 March 2000. Amongst items found at the home of D'Brass were about 19 grams of compressed heroin; aluminium foil, electrical tape, a pair of scissors with white residue on the ends, which D'Brass admitted were his and had been used to weigh, cut and divide heroin; the above-mentioned single page of notepaper bearing first names with various figures recorded next to them; $6,435 in Australian currency and several mobile telephones. Of the money $2,200 was in $100 notes and $3,350 was in $50 notes.
Personal particulars of the applicants are summarised in his Honour's sentencing remarks. It is sufficient for present purposes to say that at the time of the plea D'Brass was aged 24 and Ortillo 25 and that each was in a de facto relationship which had produced a child.
In the course of his sentencing remarks, his Honour, after having set out the submissions of counsel, made a number of "specific findings", in the course of which he said:
"1.I am satisfied that both prisoners were in the business of the sale of heroin for profit and that that business was significant, well- organised, efficient and on-going. Indeed the agreed figures contained in the summary that between 8 March 2000 and 30 March 2000 185 separate transactions selling 147.7 grams for a sum of money totalling $36,223 is an indication of the extent of this heroin trafficking business. Each counsel in the course of their respective submissions stressed that in their submission their client's involvement was trafficking at the lower end of the range. Bearing in mind the evidence in the depositions and the agreed Summary of Facts, I find this description of involvement to be deliberately misleading and most unhelpful to the sentencing process. If a sentencing judge cannot rely upon counsel to properly and truthfully represent their client's criminal involvement when they make their respective submissions, then they do themselves great forensic harm and make a sentencing judge's task infinitely more difficult. Perhaps counsel assume that judges do not read materials submitted and thereby believe that they can gild the lily with impunity. I simply add that I was not helped at all by counsel appearing in this plea in that regard.
2.I am satisfied that there were significant aggravating features in this heroin trafficking business and in this regard I refer to my summary of the Crown submissions.
3.I am satisfied, in the absence of any credible evidence to the contrary, that the large sums of money found were proceeds of drug sales.
4.I am satisfied that each prisoner was equally involved in this heroin trafficking business and bears equal responsibility."
His Honour then stated that this Court and its predecessor on numerous occasions had stressed that "those involved in this pernicious and devastating trade must expect to receive condign punishment. I am firmly of the view that principles of specific and general deterrence are of paramount importance in the sentencing process". He then pronounced the sentence as stated earlier. Later, counsel for D'Brass, referring to His Honour's comments on his submissions, said that he was not altogether sure that he had in fact used the terminology used [by his Honour]. The transcript in fact breaks off after the word "used" but it seems that the next words were or should have been "by his Honour". The transcript then records the following:
"His Honour: My notes say you did.
MR DANN: Sorry?
HIS HONOUR: My notes say you did.
MR DANN: That may be - - -
HIS HONOUR: And I found them most unhelpful.
MR DANN: Well, that may be a matter for further examination - - -
HIS HONOUR: Yes. If my notes are incorrect and the transcript proves that to be so, so be it.
MR DANN:Can I indicate to you, sir, that I wasn't intending to mislead you in the sense that you may, by your notes, think that I did."
In making his submissions on behalf of the applicant Ortillo, Mr Thomas argued all grounds after the first as particulars of the first ground, namely, that the sentences were manifestly excessive. He expressly did not challenge his Honour's order for cumulation. He submitted that his Honour erred in placing excessive weight on the principles of specific and general deterrence and insufficient weight on matters of mitigation, criticising his Honour's remark that specific and general deterrence were of paramount importance and, by reference to authorities, submitting that matters of mitigation had to be given appropriate scope. In essence he was saying that his Honour allowed specific and general deterrence to swamp mitigatory matters. Next, he submitted that, although his Honour had said that the applicant would receive a benefit for his guilty pleas, an allowance on that score was not evident. His Honour appeared to have accepted the mitigatory matters submitted to him and recorded by him under the headings "Personal particulars" and "Rehabilitation", particularly the applicant's age, lack of drug convictions, use of methadone treatment (commenced on the day of his arrest) and reasonable work and family history. But the sentence, said Mr Thomas, did not reflect those mitigatory circumstances. Counsel next submitted that the non-parole period of four years was unusual given the head sentence of five years and was not supported by reasons. Even if the head sentences stood the non-parole period was, he submitted, manifestly excessive. Where there were prospects of rehabilitation they should be reflected in a longer period of supervision on parole even when proper weight was given to general and specific deterrence. Finally, he sought comfort from the submission below for the respondent that immediate release from custody was open but in the lower end of the range.
It has been said many times that whether a sentence is or is not manifestly excessive does not admit of much argument. I must say that I do not regard the sentences imposed on the applicant Ortillo as manifestly excessive. My principal reason for that view is the nature and seriousness of the trafficking offence here committed, on which it is nowadays unnecessary to dilate, and the criminality of the applicant. It is true that the applicant had no prior drug conviction, had pleaded guilty and was still relatively young, but the cases show that such a person may properly be sent to prison for a substantial period if he or she commits a serious drug offence - and this was undoubtedly serious. In that regard I entirely endorse his Honour's description of the business conducted by the applicant in the first few sentences of his first specific finding. The revenue produced in a period of a little over three weeks was significant and the period charged was much longer. If there had been really strong evidence of rehabilitation, achieved as well as prospective, it may be that it would not have been appropriate for general and specific deterrence to be paramount, though they would still have been very significant. But the evidence of rehabilitation here was not, to my way of thinking, strong. In those circumstances, it appears to me that, despite the applicant's age and lack of drug convictions, the non-parole period can be justified even though his Honour did not give reasons for it. Strictly, in the case of Ortillo, the non-parole period is to be compared with a head sentence of five years and three months, though it must be acknowledged that at the time that his Honour pronounced the non-parole period he had not been reminded that he had overlooked sentencing for the summary offence. His Honour was not bound by the respondent's submission on which reliance is placed, which was a very guarded one in any event.
For the foregoing reasons I would dismiss the application by Ortillo.
Mr Dann for D'Brass argued ground 2 first. He conceded that the crime was a very serious matter and that general and specific deterrence were of great significance. However, at the heart of his submission was the proposition that any person pleading guilty was entitled to be sentenced properly and that the carriage of this plea went off the rails because of errors in the sentencing remarks and because of the finding that the judge had been deliberately misled by counsel, so that there was a perception that the reception and consideration of the submissions was affected by his Honour's finding. Besides that error the judge had erred in mistakenly attributing submissions, concessions and agreements to counsel for the applicant.
His Honour's remarks about each counsel in the course of his first specific finding were very serious indeed, for, by the use of the words "deliberately misleading" and "truthfully", his Honour called in question counsel's probity, perhaps the main asset of any person appearing as counsel. It was, as Mr Dann said in his reply, a public castigation of counsel and it appears to have been delivered with vehemence. It should be said straightaway that there was no basis for his Honour's finding against Mr Dann. He had not submitted, as had Ortillo's then counsel, that "it was reasonably low level trafficking" and, in my view, he did not have to disassociate himself from that submission expressly in order not to be thought to be endorsing it. He had made a submission that street dealing had been occurring, but that was only a description of what had been happening and not a classification of the trafficking according to its position on a scale of seriousness. I would add that when counsel later sought to defend himself his Honour's remarks can only be considered as cavalier in the extreme and as not evidencing a proper judicial concern for accuracy. Let it therefore be understood that his Honour was quite wrong to make the remarks he did in relation to Mr Dann. Nevertheless, in my view the remarks did not infect the sentencing process or colour the exercise of his Honour's discretion. To my mind it is clear from the concluding portion of his first specific finding that his Honour was delivering a homily to counsel and that the matter ended there. He was adverting to the professional truth that, as Sir Owen Dixon said[2], counsel must justly gain and regain the confidence of the court and in advocacy, paradoxically, candour is a weapon. I therefore consider that there was no miscarriage on this score.
[2]"Professional Conduct" in Jesting Pilate, 134.
Mr Dann turned to the other aspect of his challenge to the sentencing process, his Honour's alleged misunderstanding of the stance of counsel for D'Brass. First, it was said that his Honour had erred in indicating in his sentencing remarks that counsel for the applicant had agreed that Exhibit A accurately set out the respective roles of each prisoner and was accurate as to the various facts and circumstances set out in it. It is true that, although counsel for D'Brass had not objected to the tender of Exhibit A, he had indicated that certain aspects of it were not accepted by his client. That, I must say, was highly unsatisfactory, for, as Mr Dann accepted before us, and as the facts I have set out at the commencement of these reasons show, there had been agreement to the document in the Magistrates' Court and indeed that agreement and the plea were the price for the prosecution's withdrawal of the other charges, some of which were far more serious than the ultimate trafficking count. If resiling from such agreements becomes frequent, it may be that the prosecution will re-consider its approach. Then, more specifically, counsel said, the judge had indicated that the code entries in the notebook indicated the level of dealing agreed to by both counsel, and it was pointed out before us that counsel for D'Brass below had expressly disputed the relevance of that book to D'Brass. It was next claimed that the judge had wrongly attributed the following to counsel for D'Brass - a submission that he, D'Brass, had been selling to street dealers; a submission that the task of D'Brass was simply to direct purchasers to Ortillo; a concession that the applicants were in the business of trafficking heroin together; and a submission that the involvement of D'Brass was trafficking at the lower end of the range. I am inclined to think that all the criticisms are made out. Mr Dann submitted that the level of disregard thereby demonstrated went beyond mere rejection of the applicant's submissions and involved departure from proper, fair and adequate consideration of submissions. But, whilst carelessness is shown, I do not think in the end that the sentencing process was affected. It seems to me that, whether or not counsel had agreed that Exhibit A was accurate in all respects, it had gone into evidence. Moreover, it was, according to what the judge was told, merely a summary of the depositions, which indeed his Honour had read. There being no evidence before him to the contrary, unless it be in the record of interview (which his Honour was by no means bound to accept), his Honour was entitled to find in the circumstances set out earlier that the code entries in the notebook, including the single sheet, indicated the level of trafficking engaged in by both applicants in concert, although it may be mainly by Ortillo from a physical point of view. The onus was on the Crown but the material before his Honour satisfied that onus. It seems not to be appreciated how significant evidence from the prisoner can be on a plea, but there was none here. His Honour was amply entitled to find, in my opinion, that both applicants were in business together, even though the precise business arrangements may not be clear. I do not think that his Honour relied for that finding as against D'Brass solely on a concession wrongly attributed to his counsel. So far as his Honour recorded or dealt with submissions which were not made, that did not, in my view, redound to the disadvantage of the applicant (as opposed to his counsel) and did not deflect his Honour from making appropriate findings sustaining the sentence which he went on to impose.
I come to the other grounds. It should be apparent from what I have already said that I reject ground 3. In support of ground 4 it was pointed out that the issue of the source of the money found at the applicant's home was significant, that his Honour regarded the feature of large sums of money as aggravating, and that the prosecutor had informed his Honour that other people were claiming an interest in that money and that police inquiries had not confirmed the source of it. It was submitted that his Honour expressed his finding as made "in the absence of credible evidence to the contrary" and that that was a reversal of the onus of proof in relation to aggravating factors. In my opinion, his Honour was not precluded from making his finding by the matters stated to him by the prosecutor. He was entitled to have regard to the denominations of the notes and to the fact that the applicant and his de facto had no lawful source of substantial income, as well as to the circumstances generally of the case. I consider that his Honour was entitled to be satisfied beyond reasonable doubt that the money found in substantial sums was the proceeds of drug trafficking. His Honour did not reverse the ultimate onus of proof, but simply meant that the prima facie conclusion to which he would otherwise come was not displaced by evidence from the applicant or any claimant to the money.
As to ground 5, so far as it concerns the plea of guilty, I refer to what I said when dealing with a like submission on behalf of Ortillo. As regards past co-operation, it was submitted that it was worthy of some credit and it was pointed out that the prosecutor had indicated that it was a matter for his Honour to take into account. It is true that this point does not appear to have been expressly mentioned by his Honour, but the co-operation was not very significant and I do not think that the judge was bound to mention it expressly. It must be remembered that sentencing remarks are not statutes or wills to be pored over with a magnifying glass.
In support of ground 6 attention was drawn to matters put in place to assist the applicant's rehabilitation, namely, employment, family support, drug counselling and methadone reduction. It was pointed out that the applicant was a relatively young man facing his first gaol sentence who had already had 245 days in custody. It was submitted that rehabilitation should have received discrete consideration in both the passing of the head sentence and the fixing of the non-parole period. In the latter regard it was submitted that the length of the non-parole period showed that the prospects of rehabilitation had not been taken into account and in relation to both the non-parole period and the head sentence it was said that youth should have shortened the period in custody. His Honour recorded all those matters and also stated that he had re-read the character references, the certificates and the community health centre report. He was well aware of the age of the applicant and the fact that he had not undergone custody in prison before. As the President remarked during argument, the applicant's offending straight after the completion of service of the community based order must say something about his rehabilitation. What I have said about youth and the non-parole period when dealing with the application by Ortillo applies with appropriate modifications to the application by D'Brass. I would not uphold ground 6, or ground 7.
Finally, I come to ground 1. It was submitted that the head sentence and non-parole period were each manifestly excessive. The seriousness of the offence was acknowledged but it was said that the applicant was able to rely upon "some powerful matters in mitigation". They are set out in paragraph 6.4 of counsel's outline and I do not take time to enumerate them, though I have considered them all. In addition, the submission of the Crown concerning immediate release was relied on. Further, it was submitted that some of the aggravating factors put forward for the respondent before his Honour and accepted by him were without substance, such as that public meetings took place and that pre-paid phone cards were used. I must say that I do not find this descent into minutiae helpful, but in any event it is sufficient for me to say that I do not accept the submission. In relation to the factor relied upon by the respondent before his Honour to the effect that the applicants were in the trafficking business for two reasons, both to supply for their own use and to make a profit, it was said that his Honour developed that into the proposition that they were both in the business of the sale of heroin for profit, simply. His Honour certainly said the latter, without the word "simply", but it was accurate in the context in which he said it. Moreover, he was well aware that both applicants were addicts. The reference to the passport and the use of the plural "credit cards" was criticised, but again I do not find that helpful on the larger question of whether the sentence was manifestly excessive. Substantially for the reasons I have given when dealing
with the application by Ortillo, though with appropriate modifications, I consider that the head sentence and the non-parole period passed in relation to D'Brass were within the range open to his Honour.
I would therefore dismiss this application also.
WINNEKE, P.:
I agree, for the reasons given by Batt, J.A., that these applications should be dismissed. I wish, however, to make some comments of my own in respect of two matters which have arisen on these applications.
The first relates to the failure of the records of the County Court to accurately reflect the orders as to sentence made by the judge. This is a repeat of concerns frequently adverted to by this Court - most recently in R. v. Ahomana & Ors[3]. Batt, J.A. has referred to those parts of the record which do not accurately record the sentences imposed upon Ortillo and the recital of forfeiture and destruction of property orders made against D'Brass which were not in fact made. Counsel have agreed that the records in those respects are in error.
[3][2001] VSCA 155.
This Court pointed out in Ahomana that its capacity to correct the records of the County Court after the judgment and sentences imposed by that Court have "passed into record" is both limited and questionable. That is why it is a matter of importance for the judges of the Court responsible for passing sentence in the first instance to take care to ensure that the sentences which they impose are properly recorded. The "quadruplicate" or "Return of Prisoners" will stand as the record in accordance with which the prisoner will be treated by the Department of Corrections. I repeat the comments which I made in Ahomana that it would be desirable if the Sentencing Act were to be amended to give this Court a specific power to amend the records of the County Court in the event that a discrepancy in those
records is made apparent to the Court upon the hearing of an application for leave to appeal. Until that occurs, it would seem that the appropriate course is for this Court to invite the Director of Public Prosecutions to make application to the County Court to invoke its inherent powers to correct its own record. This was the approach which was preferred in R v Saxon[4].
[4][1998] 1 V.R. 503 at 410-11.
Secondly, I agree that the comments which the judge made about counsel who appeared for the applicants before him were unwarranted. Quite apart from the fact that Mr Dann - who appeared for the applicant D'Brass both before his Honour and this Court - did not make the submission attributed to him by his Honour, it seems to me that the submission made on behalf of Ortillo that his Honour should regard the trafficking as "trafficking at the lower end of the scale" did not warrant his Honour's condemnation of it as "deliberately misleading and most unhelpful to the sentencing process". Counsel, as it seems to me, were not seeking to trivialise the nature and scope of the trafficking, but rather to suggest that it was trafficking at street level, rather than higher up the chain. As this Court has recently said in R v O'Brien[5], trial judges - whilst enjoying a degree of latitude as to the manner in which they conduct proceedings - must take care not to create the impression or appearance, by their words or conduct, of partiality or lack of fairness to the prisoner in whose presence the trial is being conducted. However, whilst I regard his Honour's remarks to be unjustified, I cannot accept counsel's submission that they were calculated to create in the mind of the objective observer an impression that his Honour was not bringing an even-handed approach to his sentencing discretion.
[5][2001] VSCA 157 at [29].
Subject to those comments, I agree, for the reasons given by Batt, J.A., that these applications should be dismissed.
O'BRYAN, A.J.A.:
I agree that the applications should be dismissed essentially for the reasons given by Batt, J.A.
I join in the remarks of Winneke, P. concerning errors in the "Return of Prisoners" and in the comments he made that counsel's conduct in the court below did not justify the judge's harsh comments.
WINNEKE, P.:
The formal order of the Court will be that the application of each of these applicants for leave to appeal against sentence is dismissed.
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