R v Ellis
[2009] VSCA 186
•20 August 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 988 of 2008
| THE QUEEN |
| v |
| RODNEY JAMES ELLIS |
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JUDGES: | WARREN CJ, ASHLEY JA and LASRY AJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 20 August 2009 | ||
DATE OF JUDGMENT: | 20 August 2009 | ||
MEDIUM NEUTRAL CITATION: | [2009] VSCA 186 | ||
JUDGMENT APPEALED FROM: | R v Ellis (Unreported, County Court of Victoria, Judge Leckie, 17 December 2008) | ||
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CRIMINAL LAW – Appeal – Application for extension of time within which to lodge notice of application for leave to appeal against conviction – Plea of guilty – Whether applicant had not intended to plead guilty to counts as formulated.
CRIMINAL LAW – Appeal – Sentence – Whether want of parity with sentence passed on co-offender.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G T Cannon | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr P J Doyle | Victoria Legal Aid |
WARREN CJ:
I invite Ashley JA to deliver the first judgment.
ASHLEY JA:
On 9 December 2008, the applicant, Rodney Ellis, pleaded guilty in the County Court to two counts of trafficking in a drug of dependence. The first count alleged that he trafficked MDMA at Bendigo between 1 January 2007 and 2 December 2007. The second count alleged that he trafficked amphetamine between those dates. On 17 December 2008, he was sentenced to three years and six months' imprisonment on each count. The total effective sentence, there being full concurrency, was three years and six months' imprisonment. The judge fixed a non-parole period of two years and four months' imprisonment and made a declaration that the applicant had served 381 days pre-sentence detention. Pursuant to s 6AAA of the Sentencing Act 1991, the judge stated that, had it not been for the plea of guilty, he would have sentenced the applicant to a total effective sentence of four years and eight months' imprisonment, with a non-parole period of three years and six months.
Now the applicant seeks leave to appeal against both conviction and sentence. The grounds of appeal so far as they were pursued are as follows:
Appeal against conviction
1.The appellant did not appreciate that he was pleading guilty on counts 1 and 2 to trafficking over the period alleged and he did not intend to admit to trafficking over that period.
Appeal against sentence
1.The learned sentencing judge failed to apply adequately the principle of parity between co-offenders.
The judge sentenced the applicant on the basis of the following description of the offending:
3… In October 2007, Bendigo Police commenced Operation Condos which targeted the trafficking of amphetamines and ecstasy in the Bendigo region. The operation employed both visual and telecommunication surveillance and culminated in a number of search warrants being issue in December 2007.
4The operation revealed that you, Mr Ellis, together with your associate, Sharon Selwood, were bringing amphetamines and ecstasy into the Bendigo area and then distributing them to approximately ten sub-dealers, one of whom was Mr Chalker. Mr Martin's role in this enterprise was principally as an aider and abettor to Mr Chalker.
5The facts relating to Counts 1 and 2 on the presentment to which you, Mr Ellis, pleaded guilty are as follows.
6Having purchased the drugs in Melbourne you, Mr Ellis, would then contact the sub-dealers by way of coded text message. They would then reply in similar fashion. By using this method you were able to distance yourself from street level transactions. You, Mr Ellis, were Mr Chalker's principle supplied (sic) and the police operation identified 105 occasions upon which you and Mr Chalker contacted each other by this method. The number of actual meetings between the both of you was witnessed during periods of surveillance.
7You, Mr Ellis, also had other sub-dealers, one of whom was Paul McDonald whom you had met on approximately 15 occasions in October and November of 2007. Over that period you sold McDonald approximately 112 grams of amphetamines which were valued at $200 per gram, had a potential street value of $22,000.
8Smaller quantities of ecstasy and amphetamines were also sold by you to Gerard Marsh and Simon Gahan. On 15 November 2007, following the interception of a telephone conversation between you, Mr Ellis, and Ms Selwood, Ms Selwood was arrested driving back towards Bendigo to meet you, having made a drug purchase in Melbourne. She was found in possession of 63.2 grams of amphetamines.
9On 2 December 2007, you were arrested at Gisborne and when interviewed you exercised your right to remain silent. On 15 April 2008, police searched a bushland location which surveillance had identified as a hiding spot you used. Located there in a bag were two further snap seal bags, one containing 94 ecstasy tablets and some broken tablets and the other a lesser quantity of water damaged tablets.
10Witness statements from Selwood, Jared Marsh and Tamara (indistinct) indicate that you had been trafficking in ecstasy and amphetamines from the beginning of 2007.[1]
[1]Sentence 78-79.
Chalker and Martin were charged with offences on the same presentment as was the applicant. Because the applicant raises on his sentence application a parity issue with respect to Chalker, I should set out the counts which related to Chalker:
Count 3: AND the Director of Public Prosecutions further presents that Troy Jeffrey Chalker & Travis David Martin at Eaglehawk in the said State between the 5th day of October 2007 and the 2nd day of December 2007 trafficked in a drug of dependence namely 3, 4-methylenedioxy-Nmethylamphetamine (MDMA).
Count 4: AND the Director of Public Prosecutions further presents that Troy Jeffrey Chalker and Travis David Martin at Eaglehawk in the said State between the 5th day of October 2007 and the 2nd day of December 2007 trafficked in a drug of dependence namely Amphetamine.
Count 5: AND the Director of Public prosecutions further presents that Troy Jeffrey Chalker at Eaglehawk in the said State between the 5th day of October 2007 and the 2nd day of December 2007 trafficked in a drug of dependence namely Alprazolam.
Pausing for a moment, it will be noted that the charges against Chalker were restricted to the period 5 October 2007 to 2 December 2007; that is, the period of the police operation which the judge described in his sentencing remarks.
Because, as I noted a moment ago, the applicant complains of want of parity between the sentence imposed upon him and the sentence passed on Chalker, it is convenient now to set out what the judge said about Chalker's offending:
11The facts surrounding Counts 3, 4 and 5 to which you pleaded guilty, Mr Chalker, are as follows. Having purchased ecstasy and amphetamines from Mr Ellis, you would typically contact your customers by mobile phone and inform them that you had a fresh supply. You used various codes or nicknames for the drugs which you sold from your house and the surrounding area.
12On some occasions you made drop-offs using your vehicle sometimes with the assistance of Mr Martin or others. You, Mr Chalker, did not usually sell the drugs in small street-level quantities. Rather, the smallest quantity of amphetamines sold would be half a gram, $100, and typically ecstasy tablets would only be sold in lots of ten.
13From these facts I accept on some occasions you were selling to sub-dealers. You also trafficked in Xanax tablets, Alprasolam and in one conversation you were overheard to say that you were making $500 per bottle for Xanax and on 11 November 2007, you had an appointment to see a doctor to obtain more of this drug.
14Although Mr Ellis was your principal supplier of drugs, you also sourced drugs from other persons on other occasions. For example, between 22 November and 1 December 2007, you purchased three eight balls, 10.5 grams of amphetamines, from Nathan Smith and Michael Darcy for $1800, also selling them 50 ecstasy tablets valued at $1000 in return.
15You were arrested by police on 2 December 2007. When interviewed by police about your drug activities you exercised your right to remain silent. The two month police operation revealed approximately 874 intercepted telephone calls which can be directly related to the trafficking in drugs and I am satisfied that some 109 transactions took place, resulting in the sale of 163 ecstasy tablets, 57.5 grams of amphetamines and 62 Xanax tablets with an estimated street value of between $17,000 and $20,000.
16An examination of your bank account revealed deposits between 3 October and 30 November 2007 of $7600 at a time when your only legitimate source of income was Centrelink payments.
The conviction appeal
The documents which prefaced the applicant's appearance in the County Court, at which time he pleaded guilty to the two counts which I have earlier detailed, are somewhat confusing. Placed before us were copies of the five charges contained in the police brief of evidence. They alleged offending in the period 1 January 2007 to 2 December 2007, and included charges that the applicant trafficked in amphetamine and ecstasy in not less than a commercial quantity, and that he conspired to traffic in those drugs.
The charges thus recorded did not accord, however, with charge sheets remaining on the file held by the Magistrates' Court. There, the charge of trafficking in not less than a commercial quantity had the obviously mistaken 'between dates' of 10 December 2007 and 2 December 2007, and the conspiracy to traffic charges had 'between dates' of 10 October 2007 and 2 December 2007. On the other hand, the charges on which the presentment was based had the amended commencing date of 1 January 2007, it being noted 'amendments made 22/10/08'. Twenty-two October 2008 was the date on which the applicant was committed. The applicant, I interpolate, averred that all he ever received were copies of the five charges in the terms in which they had originally been filed in the Magistrates' Court; that is, without reference to the amendments made on 22 October 2008.
The extract of orders made on 22 October 2008 also shows some confusion. The charge of trafficking in a commercial quantity of drugs, with 'between dates' of 1 January 2007 and 2 December 2007, and the counts of conspiracy to traffic, with 'between dates' of 10 October 2007 and 2 December 2007, were described as 'struck out - withdrawn', whilst the charge on which the applicant was committed was stated, despite the amendment to the charge sheet, to relate to the period 10 October 2007 to 2 December 2007.
What emerges out of all this is that –
(1) The applicant faced a number of serious charges when he attended the committal hearing on 22 October 2008.
(2) There was (this is not in dispute) negotiation between counsel. As a result, the charge of trafficking two drugs in not less than a commercial quantity and the charges of conspiracy to traffic drugs were withdrawn. The applicant then pleaded guilty to the two charges which formed the basis for the presentment. They had been amended so as to allege 'between dates' of 1 January 2007 and 2 December 2007.
The presentment was filed on 9 December 2008, the day on which the plea hearing took place.
On arraignment, the relevant counts on the presentment were read in full to the applicant. He pleaded guilty to them. The prosecution opening in written form was then tendered. In answer to a question by the learned judge whether it was an agreed document, counsel responded 'Yes'.
The prosecutor then read the opening. So far as the applicant is concerned, it set out the circumstances essentially as his Honour recounted them in his sentencing remarks.
The prosecutor referred specifically to the period of offending alleged against the applicant, and the judge asked a question about the matter:
COUNSEL: …Witness statements from Selwood, Jarod Marsh and Tamara Kraus indicate that Ellis had been trafficking in ecstasy and amphetamines from the beginning of 2007, so hence, Your Honour, the time date, 1 January 2007 until the date of his arrest on 2 December last year.
HIS HONOUR: So a ten month period of trafficking.
MR SOUTHEY: Eleven, is it not? Arrested on 2 December.
This was not the only reference to the period of the applicant's offending. There was this interchange between the prosecutor and his Honour:
COUNSEL: It seemed to me, Your Honour, that perhaps there could have been a matter alleged against Mr Ellis in a further presentment, but once again [applicant’s counsel] will explain that matter that he was sentenced for in the middle of last year. But as I understand it, he received an ICO for similar matters in April of last year, which is in the middle of this trafficking period. It doesn't appear in a further presentment.
HIS HONOUR: In relation to Mr Ellis, the factual material put before me, he was trading for 11 months in both drugs.
COUNSEL: In both drugs.
HIS HONOUR: And there's not much point in me distinguishing between the drugs.
The prosecutor also said this:
It can't be said that his trafficking was isolated over the period of surveillance. It's alleged to have taken place at some degree throughout the year.
There was this interchange between the judge and the prosecutor:
HIS HONOUR: … Selwood, Marshall, Kraus provided information by way of statements about the extent of trafficking relating to Ellis, which went back to the beginning.
MR SOUTHEY: That's right. That's why he's dealt with on that different timeframe, but as I say, it's difficult to be precise about frequency or quantities.
It is perfectly plain that applicant's counsel was aware of the longer period of offending alleged against his client:
HIS HONOUR: Mr Ellis is being put forward as, subject to what you tell me about it, as far as this operation is concerning, as the top of the pile.
APPLICANT’S COUNSEL: He has certainly been there for the longer time, Your Honour, regarding his - - -
The point of the period of the offending was emphasised by the learned judge in discussion with counsel:
HIS HONOUR: How does any of this mitigate the offence. At the moment I'm looking at a person who has trafficked for 11 months, serious drugs into this community; being instrumental in getting them from Melbourne up to here.
and
Quite properly you have indicated or disclosed to me what happened in April last year but these offences span that period, as I understand it.
COUNSEL: Yes.
HIS HONOUR: According to this he's pleaded guilty to trafficking which started in January and went through to December. Just before the commencement of this trafficking he was arrested for some similar-type matters but on a lesser scale.
COUNSEL: A lesser scale, that's so, sir.
HIS HONOUR: In December of '06, he gets dealt with by the magistrate in the middle of last year, April, the magistrate gives him an opportunity by way of an ICO. It would seem, while all that's happening, he's trading in drugs.
COUNSEL: That's right. Your Honour is perfectly correct.
and
HIS HONOUR: What do I make of this because for a person to be going along to the Magistrates' Court and pleading to the magistrate for some sympathy and the magistrate giving him some sympathy but he seems to be in the background of that just trading in drugs.
COUNSEL: In fact some of the - - -
HIS HONOUR: What do I make of that by way of mitigation? If anything it's aggravation.
and
HIS HONOUR: I'm interested in the trafficking in the MDMA and the amphetamine.
COUNSEL: Yes.
HIS HONOUR: They're the two drugs that were pledged, (sic) and he'd traffic for 11 months, largely, as I understand the opening, from Melbourne to here so that sub-distributors could then put them into the community here.
COUNSEL: That's so, …
and
COUNSEL: And the other thing that I would be saying, sir, is what was significant at that stage would be his addiction itself, and he was using. He was supporting his addiction - - -
HIS HONOUR: Yes, I'm not sure how far that gets you. At the same time he'd been before the - the police had picked him up once, he'd gone before the magistrate, the magistrate had tried to help him by putting him in ICO and in the meantime he's trading.
COUNSEL: Yes. In that - - -
HIS HONOUR: I know addiction is a terrible thing, but I'd look at that in the area of rehabilitation, and I certainly don't - a man with no prior convictions, I've got to regard him as having reasonable prospects, I would have thought, but that particular fact mitigates or goes against him, doesn't it, it has to.
COUNSEL: It certainly hasn't assisted. Whilst he was on a court order to - - -
In the course of the plea made on behalf of Chalker, the learned judge again drew attention to the difference in the counts preferred against the applicant:
It seems to me the best that can be said for your client is the shorter period of time that he is pleading to which is the two month period.
and
If I am to distinguish between these two; how do I do it? The only way it seems to me at the moment, the major factor, is one is for far less a period. (indistinct) is looking at 11 months trading and you are looking at two months of trading.
In the course of the plea made on behalf of Martin, his counsel sought to distinguish the applicant's position:
Obviously he has very little, if anything, to do at all with Mr Ellis. Mr Ellis is a person who was obviously involved in trafficking over an 11 month period. His period of trafficking is, of course, much closer to that of Mr Chalker.
When the prosecutor replied, the learned judge asked for guidance as to the sentence range for the applicant and Chalker. He said this:
I do request and would like some guidance from the Crown as to what they say is the range for those two gentlemen; trafficking in drugs, one for an 11 month period; and one for a two month period, all in general circumstances in which the Crown understand.
Having taken instructions, the prosecutor relevantly said this:
Mr Ellis obviously is in a serious category in that he's bringing the drugs into regional Victoria and distributing them through a network of other dealers, and he's carried this on for a large time whilst on an ICO for the same type of activity,
Counsel for the applicant, asked if he had anything further to say, said that he did not.
Out of all this, two related matters emerge with clarity. First, in the course of the plea hearing, there were numerous references to the period of offending alleged against the applicant by the counts to which he had pleaded guilty. Second, this circumstance understandably emerged as an important point of discrimination between the offending of the applicant and of the other men.
Two further observations should be made. First, there could be no doubt that counsel for the applicant appreciated this point of discrimination. Second, the applicant must have done so - which is not the same thing as disagreeing, allegedly, with things said about the period of trafficking and quantities alleged.
A conviction entered on a plea of guilty may be set aside if there has been a miscarriage of justice: R v Vella.[2] Whilst, as the Court observed in that case, 'it is probably a mistake to attempt to define the circumstances in which such an appeal will be allowed',[3] two kinds of case in which appeals have been allowed are cases in which
it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit that he was guilty, or (2) that on the admitted facts he could not in law be convicted of the offence charged.[4]
[2](1984) 14 A Crim R 90.
[3]Ibid 92.
[4]Ibid 92.
The applicant contends that there was a miscarriage of justice in his case because he did not intend to plead guilty to trafficking over an eleven-month period. On 21 July 2009, he swore an affidavit in which he averred, inter alia:
4.On 22 October 2008 my case was set down for a committal hearing of three days. We had requested a number of witnesses to attend for cross-examination, as I disagreed with their statements.
…
6.[Counsel] told me that the prosecution would drop the charges of trafficking in a commercial quantity, conspiring to traffick and possessing ecstasy if I pleaded to one count of trafficking ecstasy and one count trafficking amphetamines. I agreed to this because I wanted to plead guilty to what I was involved in and it would save time, court costs and the stress of a trial. [Counsel] never mentioned the dates for these charges, so I assumed that I would be pleading guilty to trafficking over two months, as stated on the charge sheets, which I still had in my possession. We never discussed the amounts I was alleged to have trafficked.
7.When the case was heard in Court I remember hearing the prosecutor and the Magistrate discussing replacing the word ‘ecstasy’ with ‘MDMA’ and changing ‘methylamphetamine’ to ‘amphetamine’. From where I was sitting in the Courtroom there were some things said that I didn’t hear. I did hear the prosecutor mention the date 1 January 2007 but I did not think anything of it. I thought it may have been a reference to the statement of Shannyn Sellwood, which was one of the statements I disputed. I heard no further discussion of dates. I did not think I was being charged with trafficking from 1 January 2007. I was not aware of any amendment to the dates on the charges.
8.I was formally cautioned by the Magistrate and asked how I pleaded to the two counts of trafficking. I pleaded guilty. I do not recall the Magistrate stating the dates fro the trafficking. I did not speak with my barrister after the committal hearing.
…
10.On 9 December 2008 a plea hearing was held at Bendigo County Court before Judge Leckie. I saw [counsel] in Court but did not speak with him about the case before the hearing started. I was asked to stand up while the charges were read out. I pleaded guilty. I do not recall any ‘between dates’ of trafficking being mentioned when the charges were read out. I never saw a written copy of the charges other than the ones I was originally given. I never saw a presentment, and never saw the statement of facts the prosecutor read from at the start of the hearing.
11.During the plea hearing I became concerned at what was being said. In particular, I disputed a lot of what the prosecutor said about what I had done. I disagreed with the period of trafficking and the quantities alleged. A lot of it was from witness statements which I think are wrong. I wanted to get my barrister’s attention but I didn’t want to interrupt the hearing. At the lunch break, Mr Chalker’s barrister came over to the dock to speak to him. I asked him to get [counsel] for me. I was led away for lunch and didn’t get the chance to speak with him.
12.After the hearing I tried to raise my concerns with my barrister. I asked him why they were now saying I’d been trafficking for 11 months (since January 2007). He said he didn’t know what I was talking about and that it had always been those dates. He said that we shouldn’t discuss it here. As he said this he looked over to where the police and the prosecutor were standing so I assumed he was concerned about them being there. He said he’d speak to me later, and give me a chance to speak with my mother, who was at Court and wanted to see me.
13.When I was taken out the back of the Court to the prison van I was allowed to speak with my mother for a while before being taken back in the van. I spoke with her and told her that I was upset about what had been said in Court. I didn’t get the chance to speak with my barrister again.
The applicant further averred that:
(a)in the period between the plea and sentence, he unsuccessfully attempted to speak with his solicitor about what had happened in court;
(b)he was told by his parents that his brother had spoken to his counsel, who had said that the dates on the indictment were always going to be the dates;
(c)he contemplated interrupting the judge when the latter was passing sentence, but decided not to do so;
(d)he told counsel after sentence that he was not happy and asked about an appeal;
(e)he intended to dispute evidence that he had been trafficking drugs for a long time before October 2007;
(f)he would have proceeded with the committal had he known that he was being charged with trafficking over a period of eleven months.
Before going on, I should mention that at one stage, before us, applicant’s counsel applied to call his client in order to adduce further evidence from him. When it became apparent, however, that all he wanted to do was to put to the applicant arguments raised by the respondent in written submissions and to obtain refutation of them – in effect, to use his client as the vehicle for advancing contrary arguments - the Court indicated that it would not permit the applicant to be called for such a purpose and the matter went no further.
I am not persuaded that the circumstances have been shown to fit that rare instance in which a conviction will be set aside despite a plea of guilty. To my mind, the applicant's averment that his subjective state of mind was that he would not have pleaded guilty had he understood that the offences related to the period January to December 2007 ought not be accepted. True it is that the Court is concerned with the applicant's subjective state of mind, and that he has deposed what it was. But I cannot accept, when consideration is given, as it must be, to the objective circumstances of the matter, that his state of mind was to such effect. The following matters tend in favour of that conclusion.
First, negotiations on 22 October 2008 resulted in serious charges being withdrawn and the charges on which the presentment was based being amended. The applicant was formally cautioned before being asked to plead. Then he pleaded guilty. It is scarcely credible that he realised that some charges had been withdrawn, that he agreed to plead guilty to two charges, that he heard mention of ‘1 January 2007’ (as he says he did), that he was cautioned and after that pleaded guilty, and yet did not know that the critical charges related to the period 1 January to 2 December 2007.
One other reason why that seems a grossly improbable state of affairs is the applicant's assertion that he intended to dispute statements in the police brief that he had been trafficking in drugs for ‘a long time before October 2007’. If that was the case, one would have expected he would have been acutely aware of any amendment which was founded on those statements.
Second, the applicant deposes to a lengthy meeting with counsel at the Remand Centre before the plea hearing. On his account, although he raised allegations in the police brief about which he was concerned, nothing was said about the period of the offending alleged against him. That seems most unlikely. The matters on his account which concerned him were the period of the offending and the quantities of drugs trafficked.
Third, the applicant deposes that he did not recall any 'between dates' being mentioned when the charges were read out on the plea hearing. That is another averment which strains credibility to breaking point. It would be extraordinary if the applicant, being concerned on his account to refute allegations that he had trafficked in drugs over a period of many months, simply overlooked critical details of the counts to which he pleaded guilty.
Fourth, as I said earlier, it is plain that the period of the applicant's offending was repeatedly discussed in the course of the plea. The applicant says that he disagreed with the period of trafficking and the quantities alleged, and that he told his barrister this after the plea hearing had ended, but before sentence was passed. On his account, the barrister said that he didn't know what the applicant was talking about, and that it had always been those dates. The reported response seems entirely likely and does not assist the applicant. It should not be taken to mean, I add, that counsel was saying that the dates had been so before the negotiations were concluded.
Further, if it be the fact that the issue was raised by the applicant with counsel after the plea hearing but before sentence, I consider that nothing was to be made of it. Counsel argued that it showed that the applicant was concerned about the matter even before a sentence which he considered too harsh was passed upon him. But the many references during the plea to the period of the applicant's offending meant that the sentence was inevitably going to be heavier than the applicant might have hoped.
Fifth, the applicant deposes to an understanding that his brother spoke to the barrister in the period between the plea and sentence, and that the brother was told the same thing. It is noteworthy that the brother has not sworn an affidavit. He could at least have confirmed, assuming it occurred, speaking to the barrister, which might have given the applicant's account some credibility.
Sixth, the applicant deposes to telling the barrister, after sentence had been passed, that he 'wasn't happy'; and that he asked about an appeal. That account, if true, would add nothing to the applicant's present complaint. Many prisoners are unhappy with the sentence passed on them.
Seventh, the applicant has made serious allegations against counsel - in effect, that a settlement was made the details of which were at odds with his instructions; and that thereafter counsel made no attempt to rescue the situation - rather the converse. Counsel recently swore an affidavit. In substance, he said that he had no useful recollection of the circumstances of the committal or the plea hearing. I consider that the affidavit does not assist the applicant. It is very unlikely that counsel would not have recalled, if it was the case, that the applicant had raised with him a particular concern about the period of offending embraced by the counts to which he had pleaded guilty. That is the more so having regard to the repeated references during the plea to the period of the applicant’s offending.
Eighth, it was evidently important that the offences to which the applicant pleaded guilty embraced a period during which he was subject to an intensive correction order. It is, I consider, improbable in the extreme that counsel would not have discussed with the applicant the significance of that circumstance in the context of likely sentence for the instant offences.
Ninth, it may be that in the course of the plea hearing the applicant came to believe that what had seemed a good bargain at the committal - the withdrawal of serious charges - had a less satisfactory aspect in that the judge was evidently concerned about the length of the admitted offending. Be that as may, it does not mean that the guilty pleas were not understood and freely entered.
In all the circumstances which I have discussed, I would refuse the application for leave to appeal against conviction.
The sentence appeal
It was contended for the applicant that the sentences imposed on Shannyn Sellwood (in the Magistrates' Court) and Chalker give rise to a justifiable sense of grievance. Particular attention was focused on the sentence imposed on Ms Sellwood, who pleaded guilty (according to the applicant’s written submissions) to single charges of trafficking amphetamine between 10 October and 2 December 2007, possessing amphetamine on 15 November 2007 and using amphetamine on 14 November 2007. She was sentenced to an aggregate sentence of seven months' imprisonment wholly suspended.
The judge was provided with little information concerning Ms Sellwood and her offending. The Crown opening read to the judge stated that the applicant 'together with his associate Shannon Sellwood, were bringing amphetamines and ecstasy into the Bendigo area and then distributing them to approximately ten sub-dealers'. The opening also stated that on 15 November 2007 Ms Sellwood was arrested driving back towards Bendigo, having made a drug purchase in Melbourne, and that she was found in possession of 63.2 grams of amphetamines. It further noted that Ms Sellwood had made a statement in which she indicated that the applicant had been trafficking in drugs from the beginning of 2007.
The judge asked the prosecutor whether Ms Sellwood had been dealt with. The prosecutor said that she had, he did not know much about it, but that he understood she had received 'a very substantial discount for the assistance that she was willing to give against' the applicant.
Counsel for the applicant described Ms Sellwood as having been the de facto wife of his client at the relevant time. He said that Ms Sellwood's sentence was 'for trafficking, as far as I'm aware'. He did not know what the 'between dates' were. He accepted that Ms Sellwood had provided cooperation. Later, he stated that Ms Sellwood had provided the police with information leading in April 2008 to the discovery of a stockpile of buried drugs.
Further according to applicant's counsel, his client met Ms Sellwood, a drug user, at his workplace. Counsel did not make it clear just when the applicant first met her. In any event, they had established a relationship whilst he was subject to the intensive correction order. In her company, counsel asserted, his client had gone back to drug use, but his client was not blaming her for that.
The only other assertions made by counsel were that his client and Ms Sellwood initial trafficking had been essentially to secure a drug supply for both of them; and that at a later stage she had moved away from the applicant and begun dealing, together with another woman, on her own account.
One thing which counsel did not submit was that Ms Sellwood's sentence could be called in aid of a parity argument. He did not respond in substance to an observation which the learned judge made early on in the plea that, because of the lack of detail provided with respect to the sentences passed on Ms Sellwood and another offender, McDonald, 'it doesn't look like there's any parity argument'.
In his written outline of submissions, counsel for the applicant referred to a statement made by Ms Sellwood, in which she is said to have described accompanying the applicant to meet buyers, and acting as a courier of drugs from Melbourne to Bendigo. Further in his outline, counsel referred to a statement made by a Ms Krause, in which she said that Ms Sellwood had directly supplied her with ‘speed’.[5] I asked counsel whether those statements were in the hands of the learned sentencing judge. Counsel replied that it was not clear whether his Honour was provided with the depositions. I assume that he was saying, indirectly, that he could not answer my question one way or the other. In any event, if the judge did have the statements when he came to sentence the applicant, it added little to what he otherwise knew. But if he did not, then the extent to which it limited his Honour’s understanding of Ms Sellwood and her offending was correspondingly small.
[5]Ms Krause was the person with whom, according to applicant’s counsel on the plea, Ms Sellwood had set up business as a drug dealer. See [48] above.
I have now described what was known by the sentencing judge about Ms Sellwood and her offending. I have earlier recounted what his Honour said about the circumstances of the applicant's offending. I should now refer to what his Honour said about the applicant's antecedents and other pertinent considerations. He said this:
25. In each of your cases there is, however, a significant mitigating factor. Each of you has pleaded guilty and indicated at an early stage your intention to do so. In fact, no committal proceeding was conducted as the matter was resolved at that time. The community has, by your pleas, been spared the time and cost of a trial which, in this case, could have been lengthy and expensive. Witnesses have been spared the ordeal of giving evidence upon a trial.
26. I am also prepared to accept in each of your cases that your plea does indicate some remorse for your conduct. I have also been told something of the personal history and circumstances of each of you.
27. You, Mr Ellis, are now 31 years of age having been born in Melbourne but raised in the Bendigo area. Your father was a fire fighter and your mother worked as a home helper for the elderly. I understand you have one brother and one sister. You attended school until Year 9 but failed to finish your schooling, leaving home at the age of 16 and going to Queensland.
28. You stayed for a short time with your sister but then remained in Queensland for the following three years, moving about and living as best you could in part on Centrelink benefits. You made contact with your grandfather, apparently, who visited you whilst you were in Queensland and although you remained in Queensland, some contact was re-established with your family. When your grandfather died you returned to Victoria for his funeral but then returned to Queensland.
29. In the following years you achieved your Year 10 at school which is to your credit but you then drifted about living off some money that your grandfather had left you. You also work in various forms and have worked in the primary production area.
30. When you were 19, you returned to Victoria and you were welcomed home by your family. You obtained employment as an upholsterer for two years and then worked in a business which distributed processed foods where you remained for ten years gaining various promotions.
31. Although you were arrested in 2006 for other drug matters and spent one month on remand, your employer regarded you highly enough to grant you leave for that period. As mentioned earlier, in April 2007, you were placed on an intensive corrections order for eight months for those matters. You counsel informed me that during your employment you were required to do night shifts and you developed insomnia and started using drugs. During the period of your Intensive Corrections Order you received treatment and counselling for drugs and largely overcame your problem.
32. Your counsel further stated that unfortunately, because of your association with Ms Selwood who was a drug addict, this caused you to relapse to some extent. It was submitted that your drug trafficking was primarily to supply both yourself and Ms Selwood but no evidence was put forward to support this and I am not satisfied, on balance, of this proposition.
33. You have no prior convictions which is significant in light of your age and, on balance, I am satisfied you have a reasonable chance of rehabilitation. This is despite the fact that you committed these offences while on an Intensive Corrections Order. The reasons I am persuaded is because you have a good work record, you are now 31 and you have no prior convictions.
34. However, I must also take into account deterrence, especially general deterrence which is most significant in cases such as this. Specific deterrence is also relevant in your case because you committed the part of the offences whilst on an Intensive Corrections Order for other drug matters.
35. I must also consider the question of protection of members of the community from you and bear in mind the likelihood of you re-offending. Conduct such as yours must also receive strong denunciation and on behalf of our community I do so.
It is now possible to deal with the applicant's complaint about want of parity between his sentence and the sentence imposed on Ms Sellwood. In my opinion, for the following reasons, the complaint is not made out.
First, the judge was able to make findings about the period of the applicant's offending, the applicant's principal role in drug distribution activities, and its extent. By contrast, what he knew about Ms Sellwood was that she had pleaded guilty to a much shorter period of trafficking than did the applicant, and that the possession charge arose out of her being intercepted whilst returning from Melbourne with drugs, the interception being triggered by a telephone call between Ms Sellwood and the applicant. So far as this Court has been made aware, the judge knew nothing at all about the charge of using drugs.
Second, his Honour did know that Ms Sellwood had provided considerable assistance to the police. He knew that she had provided the police with information which led them to the buried drugs stockpile. He also knew that she had undertaken to assist the prosecuting authority with respect to the charges laid against the applicant. He might reasonably have inferred a substantial degree of remorse on her part. He knew also that the applicant had not assisted police at the outset, although he had later pleaded plea to two charges.
Third, the judge knew about the applicant's antecedents, in which I include his drugs offending in 2006 - albeit that the sentence imposed in April 2007 did not stand as a prior conviction. But about Ms Sellwood's antecedents he knew nothing save for what applicant's counsel volunteered - and his Honour did not accept some of what had been said.
In all, I accept that, despite his request for assistance, the judge was probably left knowing less about Ms Sellwood, her offending, or matters standing in mitigation of sentence, than was desirable. This made it difficult for him to fully understand why she was sentenced as she was, a key matter in any consideration of parity of sentences. But what the judge did know showed that there needed to be a very considerable disparity between the sentence imposed on Ms Sellwood and the sentence which he imposed on the applicant.
I should refer finally to a submission orally advanced by applicant’s counsel. It was that the judge had erred by not ensuring that he was provided with material sufficient to make a parity analysis between the sentences imposed on Ms Sellwood and the applicant. Counsel relied upon an observation made by Dawson J in R v Lowe,[6] a case in which the co-offenders were charged with the same offence.
[6](1984) 154 CLR 606, 622.
I do not accept that submission. It was founded on a premise that I do not accept. Having regard to what knowledge the judge had about Ms Sellwood and her offending, and in particular knowing that she had assisted the police, and had given an undertaking, I consider that the judge was able to conclude, despite the sentence imposed on Ms Sellwood, that he was not precluded from imposing the sentence which he did on the applicant. I add only that I am not to be taken as accepting the proposition that, having initiated discussion about parity with counsel, and having in substance sought assistance from counsel, the judge was required to do more in order not to commit appellable error.
I turn to Chalker. The judge sentenced him to two years and six months' imprisonment on each of the three counts of trafficking. There was total concurrency, so the total effective sentence was two years and six months. The judge fixed a non-parole period of one year and six months. In sentencing, his Honour took into account, on a Renzella basis, one month of a 60-day sentence which Chalker had served in respect of an unrelated matter. His Honour stated that, but for Chalker's guilty plea, he would have imposed a total effective sentence of three years and four months, with a non-parole period of two years and six months.
I have already set out his Honour's description of Chalker's offending. Other than that, I refer to what his Honour said about the offenders’ guilty pleas, and the following summation of Chalker's antecedents and the pertinent sentencing considerations:
38. Mr Chalker, you are now 24 years of age, having been born and raised in Bendigo. Your personal history and circumstances are set out in detail in the report of Warren Simmons, psychologist, dated 20 November 2008, which is Exhibit C1. I do not propose to repeat all the details in this judgement. You came from a large family in poor circumstances and your parents separated when you were only 12 years of age. You spent some time with your father but ran away when you were 13. Your education was limited and you only got part-way through Year 9. You reported that you cannot read and write properly. Tests reveal that you are in the lower average range of intellectual ability.
39. You have had a number of relationships and are the father of two children although access to them has been limited. Recently your latest partner lost a child which has caused you considerable distress. You have abused alcohol and drugs over the years and since your son died, you reported daily use of drugs.
40. You reported that you had been diagnosed with attention deficit hyper-activity disorder as a child but that you received no proper treatment. The psychologist in his report, opined that this may have been linked to your past behaviour. I note that the psychologist also recommended drug and alcohol counselling and also assistance with grief you are experiencing related to the death of your son recently.
41. You have admitted prior convictions, there are 118 such convictions involving 22 court appearances between 1998 and 2007. Nine of those appearances were before Children's Court. You have been convicted of offences involving dishonesty, violence, road traffic offending and drug offences. You have also received Youth Supervision Orders, periods of incarceration in a youth training centre, Community-based Orders, Intensive Corrections Orders, suspended sentences and fines. You have two convictions relating to drugs, one in 2002 for cultivation of a narcotic plant. You were fined $100 on that charge and I regard that as a fairly minor matter.
42. You were also convicted in 2007 for possession of a drug of dependence and fined $100. Again that is a minor matter albeit a drug-related offence. Although this is an appalling record, and you have been before the courts in every year since 1998 to 2007, you are still a young man and I intend to try to maximise your chances of rehabilitation, such as they are.
43. As with Mr Ellis, distinguishing between the three offences to which you have pleaded guilty is difficult. Similar to Mr Ellis, you were running a business which involved trafficking a number of different drugs. The period over which you were trafficking in each Count is the same, being two months but whether there was more activity relating to one or the other drug is difficult to discern and therefore there is a degree of artificiality in the approach to sentencing.
44. However, in the same what (sic) that I have approached Mr Ellis' sentence, I am focussing in the total effective outcome relating to your sentences.
Counsel for the applicant submitted that, having regard to the sentence imposed on Chalker, his client had a justifiable sense of grievance about the sentence imposed upon him. Counsel stressed (1) Chalker's very bad criminal history, by contrast with his client's largely blameless past; (2) the fact that Chalker had dealt with sub-dealers and drug users; and (3) the fact that Chalker dealt in a third drug, Zanax.
Counsel for the Crown submitted that the different sentences (the differences were not very great) were explicable by, inter alia, (1) the different periods of offending; (2) the applicant's principal role; (3) the fact that the applicant had offended whilst undergoing an intensive correction order for drugs offences; (4) the fact that the applicant was an older man; (5) the fact that the applicant had supplied persons other than Chalker with drugs; and (6) the fact that the extent of drug dealing alleged against Chalker was less than the extent of drug dealing alleged against the applicant.
In my opinion, considering the matters advanced by both counsel, the applicant has not made out his complaint. The strongest thing which applicant's counsel could urge, in my view, was the comparison between Chalker's criminal past and his own client's largely blameless past. But, even there, the applicant's position was somewhat complicated by the fact that he committed the instant offences whilst undergoing an intensive correction order for drugs offences. Other than that, the circumstances relied upon by counsel for the Crown were in my opinion persuasive that the judge did not err.
In the event, I would refuse the application for leave to appeal against sentence.
WARREN CJ:
I agree.
LASRY AJA:
I also agree that the applications for leave to appeal against conviction and sentence should be refused.
WARREN CJ:
The Court orders that the applications for leave to appeal against conviction and sentence are refused.
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