R v Derham
[2003] VSCA 211
•9 December 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 117 of 2003
| THE QUEEN |
| v. |
| JAMIE DAVID DERHAM |
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JUDGES: | CHARLES, CHERNOV, JJ.A. and ASHLEY, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 December 2003 | |
DATE OF JUDGMENT: | 9 December 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 211 | |
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CRIMINAL LAW - Sentencing - Offenders sentenced at different times by different judges - Whether parity of sentences.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr D.A. Dann | Michael J. Amad Pty. |
CHARLES, J.A.
I will invite Ashley, A.J.A. to give the first judgment.
ASHLEY, A.J.A.:
Jamie Derham appeals by leave against sentence passed on him in the County Court on 28 April 2003, the sentence being that on 1 count of trafficking in a drug of dependence, to which count he pleaded guilty, he be imprisoned for 4 years with a minimum term of 2 years and 9 months. The maximum sentence for that offence, see s 71 (1)(b) of the Drugs, Poisons and Controlled Substances Act 1981, is 15 years imprisonment and a fine of $100,000.
The Grounds Appeal, as amended, are:
“1. The sentence imposed is manifestly excessive;
2.The learned sentencing judge gave insufficient weight to the fact that the Applicant was not a principal in the drug trafficking enterprise in the period alleged;
3.The sentence imposed upon the Applicant offends against principles of parity in that -
(i)a co-accused, Chilcott, who was a principal in the drug trafficking enterprise, was in fact sentenced to a lesser term of imprisonment than was the applicant; and
(ii)a co-accused, Harrigan, who was a principal in the drug trafficking enterprise, was in fact sentenced to the same term of imprisonment as the applicant.
The sentence thus imposed on the applicant by the learned sentencing judge, when compared with the sentences imposed upon the principal offenders, is sufficiently disparate as to engender a justifiable sense of grievance in the mind of the applicant.”
Ground 3 was the centrepiece of counsel’s submissions. Ground 2, which counsel described as a particular of Ground 1, really addresses the same issue from a different standpoint.
Also before the Court, until its abandonment yesterday, was an application by Todd Aaron Chilcott for leave to appeal against sentence passed on him by a different judge in the County Court on 23 September 2003, the sentence being that on 1 count of trafficking in a drug of dependence, to which count he pleaded guilty, he be imprisoned for a period of 3 years with a minimum term of 18 months. As in the appellant’s case, the maximum sentence fixed by statute for this offence was 15 years imprisonment and a fine of $100,000.
Chilcott’s grounds of appeal were as follows:
“1. In all the circumstances the sentence is manifestly excessive.
2. The learned sentencing judge erred in forming the view that the degree of involvement of Chilcott in the trafficking enterprise was not a central factor in determining his sentence.
3. The learned sentencing judge erred in his characterisation of the role of Chilcott in the trafficking enterprise.”
The extant appeal involves persons who participated, speaking generally, in the same criminal enterprise. It raises a question as to the roles adopted by the appellant, Chilcott, and a man named Harrigan.
The circumstances of the matter generally may be outlined as follows: A drug distribution network, dealing in methylamphetamine, operated in Melbourne’s north-west suburbs in the period April – July 2001. The network’s members included the appellant, Chilcott, Harrigan, Kevin Miller, and, on one occasion, Leighton Sullivan.
All but one of the persons to whom I have just referred have now been sentenced. Miller absconded whilst on bail.
It is not in debate that the appellant’s role was that of a street dealer in the period embraced by the presentment – that is, 22 May to 7 June 2001. Nor is it in debate that Sullivan delivered an ounce of methylamphetamine to an undercover policeman on 19 July 2001. Nor again is it in debate that Miller was a principal in the criminal enterprise.
The grounds of appeal raise, however, questions as to the roles of Chilcott and Harrigan in the criminal enterprise. It is necessary, then, to see the way in which the matter was presented to the judges who sentenced the appellant, Chilcott and Harrigan; and the basis upon which those men were sentenced.
The appellant was presented first. On 28 April 2003 the prosecutor agreed with the judge’s proposition that –
“The Crown has the principals were Miller, Chilcott and Harrigan and that the accused was in effect their salesmen. Is that it?”[1]
[1]T 7.
Referring to certain taped telephone conversations between Miller and the appellant, and between Chilcott and the appellant the prosecutor said –
“What is clear from these sequence of calls … over the whole period is that [the appellant] was just very actively operating under the direction of those other persons.”[2]
[2]T 7.
According to the submissions of counsel for the appellant,
“Chilcott and Miller were clearly principals, I’m not here to agitate or argue a case for Harrigan.”[3]
and
“ … he commenced selling amphetamines on behalf of Miller and to a lesser extent on behalf of Chilcott.”[4]
and
“… his instructions to me therefore is that Chilcott appeared to be less involved in this business than did Miller.”[5]
[3]T 12.
[4]T 16.
[5]T 16 – 17.
Sentencing the appellant, the judge noted that it was said that
“Miller, Chilcott and Harrigan were distributing amphetamines,”[6]
that the Crown alleged
“You were working as a salesman for Miller and Corrigan (sic);”[7]
and that the appellant agreed to sell methylamphetamine
“on behalf of both Chilcott and Miller.”[8]
[6]T 28.
[7]T 28.
[8]T 28.
In all, the learned judge definitely sentenced the appellant on the footing that he was a street dealer – certainly for Miller, and, by reference to other passages in his Honour’s reasons, for Harrigan and/or Chilcott. His Honour did not need to lay out, in detail, the roles of the other men in the criminal enterprise.
Chilcott and Harrigan were presented before a different judge in the County Court on 23 September 2003. The prosecutor provided his Honour a summary of facts. The import of the document, apparently, was that Harrigan took over the appellant’s role as a street dealer.[9]
[9]T 5.
According to the prosecutor
“throughout the period of the counts … Miller directed the activities of the others.”[10]
[10]T 7.
Chilcott, the prosecutor asserted, was the “facilitator”; by which he meant not the direct sales person, but the person who provided a mobile phone and motor vehicles used by the street vendors; who on occasions provided methylamphetamine to the appellant and Harrigan for sale to customers; and who received moneys.
The prosecutor described Chilcott’s involvement as a
“middle role in the operation…;”[11]
and said that
“his role is therefore a person who is importantly involved in assisting them in the sale to the customers … a role which is no more important than the role adopted by Mr Derham or Mr Harrigan, in as much as those 2 persons were very active.”[12]
[11]T 8.
[12]T 9.
Counsel for Chilcott, pressed by the judge to say in what respect, on his instructions, his client’s role was not as the prosecutor had described it, submitted that his Honour could not find that his client had been a key participant, or a financial provider. He had rather played a non-essential role. When the learned judge put it to him that Chilcott was the “go between”, counsel described his client as a “part timer”, the person preparing quantities of drugs on Miller’s direction. He conceded that throughout the period 22 May – 19 July 2001, his client, with respect to Harrigan, had collected money, supplied drugs, and arranged cars.[13] He submitted, however, that an analysis of the material did not reveal his client to be “equally involved as Harrigan or Miller.”[14]
[13]T 21.
[14]T 22.
The prosecutor, further pressed by the judge, agreed that in the period until Harrigan’s arrest Chilcott’s role was “certainly not more than Harrigan.”[15] In the short period thereafter Chilcott was, he said, “a very important player.”[16]
[15]T 25.
[16]T 28.
Counsel for Harrigan submitted that, consonant with the Crown’s position, the roles of her client and the appellant were indistinguishable. She urged the judge not to make her client’s sentence any greater than that imposed on the appellant.[17] She conceded that the position of her client relative to the appellant was in several respects disadvantageous – for he had a drug trafficking conviction, albeit not one high up in the scale of that offence; and on the present occasion he had pleaded guilty to other offences also.
[17]T 47.
The prosecutor submitted, concerning the sentence appropriate to Harrigan, that he deserved a greater penalty than the appellant.[18]
[18]T 71.
The learned judge accepted that Harrigan took over the appellant’s role as salesman.[19] His Honour imposed a 4 year term of imprisonment on Harrigan for the particular trafficking charge which mirrored the charge in respect of which the appellant had been sentenced. It is clear enough that his Honour was concerned that Harrigan’s circumstances arguably required a somewhat heavier sentence than that imposed on the appellant for the like offence. But in the end he did not impose a heavier sentence.
[19]T 89.
Having sentenced Harrigan for the other offences to which he had pleaded guilty, and also for a breach of a suspended sentence, his Honour imposed orders for cumulation, in consequence of which the total effective sentence became 4 years and 6 months, with a 2 years and 9 months non-parole period. That was the same non-parole period as had earlier been imposed upon the appellant.
Concerning Chilcott, his Honour said this:
“ … it is my view that you were more than a bit player, you were a participant in the whole scheme, and in some way towards the centre of it in the sense that Miller trusted you, you were a person who sometimes packaged the amphetamine, sometimes collected moneys and generally assisted Miller in the operation, and whilst the direct evidence relating to the furtherance of the trafficking business might not be as graphic in portraying your role as a member of the syndicate as compared, for example, Harrigan, the inference to be drawn from your participation is one that you actively engaged in furthering the interests of the business.
It is also clear that when Harrigan was arrested, in the following two weeks you substantially took over his role of salesman.”[20]
His Honour also said this about Chilcott’s role in the enterprise:
“… whilst you may not have played the same role as Harrigan and Derham, and certainly Miller, you were no doubt involved in the furtherance of the on-going business throughout the period alleged, and certainly after Harrigan’s arrest you took over part of his duties. It is my view that you were meaningful participant and your role was much more extensive than Mr Johns has submitted, albeit less than perhaps the other two accused.”[21]
[20]T 90.
[21]T 97.
“The other two”, in context, was no doubt a reference to Miller and Harrigan. It might as easily have been a reference to Miller and the appellant.
The judge who sentenced Harrigan and Chilcott was cognisant of the sentences that had been passed on the appellant and Sullivan. He made a positive finding, compatible with the material placed before him, that the roles of Harrigan and the appellant had been essentially similar. He evidently used the sentence which had been passed on the appellant as a reference point when sentencing Harrigan. He evidently concluded that Chilcott’s role had been a somewhat lesser one; and he noted the inescapable fact that Chilcott’s antecedents were appreciably better than those of Harrigan.
There was, in the event, putting to one side for the moment the antecedents of the various offenders, an explicable rationale to the sentences which his Honour imposed upon Harrigan and Chilcott; and in turn their relationship to the sentence which had earlier been imposed on the appellant. That rationale, however, depended upon a view of the facts which differed sharply from that upon which the appellant had been sentenced.
Can it be said, in the circumstances, that the appellant is entitled to have a justifiable sense of grievance, justifiable in the sense that it would be shared by an objective observer?[22] An answer to that question cannot be given solely by reference to the roles that the appellant and the two other men played in the criminal enterprise – even if the role played by each of them was unequivocally clear. It must also depend upon their antecedents, to which I now turn.
[22]R v Taudevin [1996] 2 VR 402 at 404 per Callaway JA, cited by Charles JA in DPP v Bulfin [1998] 4 VR 114 at 137.
The appellant was aged 30 at time of sentence. He admitted 5 findings of guilt from 3 Magistrates’ Courts appearances between August 1980 and November 2000, and 16 convictions from 5 Magistrates’ Court appearances between November 1990 and December 1998. Included amongst his convictions were 2 for possession of cannabis, and 2 for using that drug. He had no convictions for drug trafficking. The sentencing judge described the appellant’s prior convictions as being of no great relevance save for indicating familiarity with cannabis and “a somewhat lawless indisposition”(sic). That was, I think, a fair description. I should add that the appellant had not served time in prison before the sentence the subject of the present appeal.
The appellant’s personal circumstances were as follows: he was an adopted child. His adoptive parents had separated, acrimoniously, when he was about 16. He had been left with his adoptive father. Their relationship had been a good one. Nonetheless, following the separation he had stopped studying, begun to keep irregular hours and to use cannabis. His work history thereafter had been poor. He had become addicted to cannabis and amphetamine.
In the period of more than 12 months which he had spent on remand, however, the appellant had remained drug free and had attended courses. He had become a senior billet in the prison laundry. He had resolved on his release to study, to obtain employment and to settle into a domestic relationship. The judge said, summarising:
“There is obviously hope for you, and if you pursue your resolution, considerable hope.”[23]
[23]T 30.
Like the appellant, Chilcott was aged 30 at time of sentence. The learned sentencing judge said that what perhaps distinguished Chilcott from the others was that he had
“Limited prior convictions, none of any real relevance that would limit the degree of leniency that can now be extended to you, as compared with Harrigan…”[24]
[24]T 90.
I have no doubt that Chilcott’s past criminal history should be described as very minor. He had only been before the courts on 3 occasions – and in each case it had been before a Magistrates’ Court in 1991. In two of the 3 instances no conviction had been recorded. Once he had been convicted and fined $100. The observation made by the sentencing judge to which I referred a moment ago was entirely justified.
Chilcott’s personal history was as follows: born and raised in Tasmania, in a law-abiding family, he left school at Year 11. Thereafter he worked inter alia as storeman, a security officer and a warehouse manager. At the time of the 2001 offences he was working as a plumber’s labourer. Bailed, he travelled to Queensland and found work. He returned to Victoria to face his trial. He had been a drug user, but apparently had not used drugs in the period between his arrest in 2001 and the plea hearing. He had established, as at the latter time, a de facto relationship. On his plea a number of favourable references were tendered on his behalf.
Harrigan was presented, in September 2003, on five counts. Apart from the count which mirrored the count on which the appellant was presented, he was also presented on counts of trafficking amphetamine and possessing cannabis in January 2001, handling stolen goods in July 2001, and being a prohibited person in possession of a fire-arm in July 2001.
Harrigan admitted 44 previous convictions from 15 court appearances between June 1990 and May 1999. In some respects the bare figures may create a worse impression than the facts underlying the figures might justify. Particularly that is so with respect to his convictions for armed robbery and for trafficking, the circumstances of which were outlined on the plea in September this year. Be that as may, Harrigan’s history of prior offending was very considerably worse than that of the appellant, and greatly worse than that of Chilcott. It included serious driving offences, multiple occasions of failure to answer bail, theft, burglary, and escape from a youth training centre. On some six occasions Harrigan had been sentenced to terms of imprisonment.[25]
[25]In one instance it was to detention in a Youth Training Centre.
Harrigan’s personal circumstances were broadly as follows: he was 31 at the time of sentence. He was the middle child in a family of three. There had been instability in his home life. His parents had divorced when he was very young and thereafter he had not seen his father for many years. He had attended school only up to Year 9. Thereafter he had episodically engaged in unskilled work. His life had been blighted by abuse of alcohol when he was young; and later by amphetamine addiction. At one stage he had established a de facto relationship. There was a child. The relationship ended when Harrigan’s older brother, a man with an extensive criminal history, took up with Harrigan’s de facto partner. Later on, a new lady with whom he had formed a relationship became seriously ill. That contributed to his falling back into drug use. By contrast with his picture of gloom, it seems that Harrigan had behaved as a model prisoner whilst on remand, endeavouring, inter alia, to rid himself of his drug addiction.
The problem which arises on this appeal concerning sentencing parity has its roots, I do not doubt, in the fact that two different judges sentenced three men who had engaged in the same criminal enterprise on the basis of different conclusions as to the part which two of the three men had played in that enterprise.[26] In that connection, the Crown presentation on the plea hearings before the two different judges seems to me to have been something less than satisfactory.
[26]The circumstances are different to, and in a sense worse than the circumstances which arose for consideration in R v Nikodjevic [1998] 2 VR 33 – for there, at least, the same judge had sentenced the co-offenders – albeit on the basis of different information.
To describe the likely reason why a parity question arises in the particular case is not, however, to resolve that question. In my opinion the answer is that in all the circumstances the appellant is entitled to have a justifiable sense of grievance that he should face a sentence which is in essential respects identical to that which was imposed on Harrigan; and an objective bystander would share that sense of grievance. I do not consider, on the other hand, that the appellant should be thought entitled to have such a sense of grievance in respect of the sentence imposed on Chilcott.
There is no doubt that when sentencing the appellant the learned judge understood Harrigan’s role to have been more serious than that of the appellant. When Harrigan was sentenced, however, it was on the basis that his role and that of the appellant were essentially the same – although Harrigan’s offending had taken place over a longer period. What the objective bystander would perceive, as should the appellant, is that in the end both the appellant and Harrigan were sentenced on the footing that each had been a street dealer. What would further be perceived is that Harrigan had engaged in such conduct over a longer period than had the appellant, that he had done so whilst a suspended sentence was in operation, that he had faced a series of other charges, yet been sentenced to an effective term of imprisonment which was only slightly longer than that imposed on the appellant, and to an identical non-parole period; and that this was so although the past history of offending by the two men and their antecedents otherwise were very different indeed - in which case, in all, issues of moral culpability and specific deterrence were the more significant in Harrigan’s case and the prospects of his rehabilitation were arguably less favourable. It is of course true that mathematical precision cannot be expected in the sentencing process; and its absence cannot found a successful appeal. But in my opinion the present case goes well beyond criticism of mere mathematical imprecision.
I turn to Chilcott. His role – as determined on the one hand by the sentencing judge, on the other hand by the judge who sentenced the appellant – was considerably different. Other than that, his criminal history and his antecedents otherwise were somewhat better than those of the appellant. In my opinion, all things considered, an objective observer would not share any sense of grievance that the appellant might have when comparing his sentence with the sentence passed on Chilcott. The observer would probably think that the major reason explaining the different sentences lay in the antecedents of the two men, noting that the judge who
had sentenced Chilcott had considered him to have been a “meaningful participant” in the criminal activity; and that the point of discrimination, for sentencing purposes, lay in Chilcott’s limited past criminal history and favourable antecedents otherwise - notwithstanding that the appellant’s prior history of past offending was not very extensive.
In the circumstances which I have described, and not being of opinion that the sentence imposed on Harrigan was unduly lenient, I would allow the appeal, set aside the sentence, and re-sentence the appellant to serve three (3) years and six (6) months imprisonment. I would fix a period of one (1) year and nine (9) months before the appellant becomes eligible for parole.
CHARLES, J. A.:
I agree.
CHERNOV, J. A.:
I also agree.
CHARLES, J. A.:
The orders of the Court today are as follows:
The appeal is allowed.
The sentence imposed in the County Court on 28 April 2003 is set aside; in lieu thereof the appellant is sentenced to three and a half years imprisonment. The Court orders that the appellant serve a minimum term of one year and nine months before becoming eligible for parole. The Court declares that the period of 619 days be reckoned as at today’s date as already served under this sentence and direct that this declaration be noted in the records of the Court.
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