R v Englisch
[2009] VSCA 71
•8 April 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 911 of 2007
| THE QUEEN |
| v |
| ANTON ENGLISCH |
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JUDGES: | MAXWELL ACJ, BUCHANAN and VINCENT JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 February 2009 | |
DATE OF JUDGMENT: | 8 April 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 71 | |
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CRIMINAL LAW – Sentence – Importation of a commercial quantity of ecstasy – Whether the trial judge erred in failing to give sufficient weight to the appellant’s offer to cooperate – Parity – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms W Abraham with Mr C B Boyce | Commonwealth Director of Public Prosecutions |
| For the Appellant | Mr M J Croucher | Rob Melasecca |
MAXWELL ACJ,
BUCHANAN JA
VINCENT JA:
The appellant pleaded guilty in the County Court at Melbourne to the importation of a commercial quantity of a controlled drug known as MDMA, or ecstasy, at Brisbane, on 20 November 2006.
After hearing a plea in mitigation of penalty, Judge Higgins, on 19 November 2007 imposed upon him a term of imprisonment of seven years and six months with a non-parole period of five years for this offence.[1]
[1] The appellant had one prior court appearance. On 13 May 2004 he was convicted of one count of possessing a prohibited import and one of attempting to possess a prohibited import for which he was sentenced by Judge Hogan to an effective term of three years, to be released after 18 months upon entering into a recognizance to be of good behaviour for 18 months and to pay a pecuniary penalty of $15,000. The prohibited import was ecstasy.
The appellant has contended before us that in imposing this sentence –
Ground 1: The learned judge erred:
·(a) in concluding that ‘there [was] no indication that [the appellant’s offer to co-operate with the police] meant that [he] would give evidence against [his] co-accused when he stands trial’;
·(b) in failing to give sufficient weight to the appellant’s offer of co-operation.
Ground 2: The sentence infringes the principles of parity among co-offenders when regard is had to the sentences imposed (subsequently) on the co-offender Hernan Andrade.
The background
The co-offender to whom reference is made in these grounds, Andrade, pleaded guilty before Judge Wilmoth, on 9 April 2008, for his part in the importation and was, on 15 April 2008 sentenced to seven years’ imprisonment. Her Honour also
revoked a recognizance order earlier made by her on 23 July 2004,[2] directing that he serve the remainder of the period then outstanding (18 months). Six months of that term was to be served cumulatively upon the sentence of seven years and a non-parole of five years was fixed.
[2]On that occasion, Andrade pleaded guilty to one count of acting and abetting the importation of a prohibited import (cocaine). He was sentenced to imprisonment for four years to be released after two years and six months on entering a recognizance to be of good behaviour for two years.
The circumstances relating to the commission of the appellant’s offence are sufficiently set out for present purposes in the remarks of Judge Higgins when addressing him in the course of imposing sentence -
In April 2006 Australian Federal Police commenced an operation known as Operation Quoll into the activities of one Herman (sic) Andrade. On 11 July 2006 a certificate was issued for a period of six months authorising AFP members to undertake a covert operation in respect of the illegal activities, and [the appellant] and Andrade were involved.
On 13 September 2006 a police undercover operative met with Andrade in St Kilda. Andrade asked the UCO if he was interested in ecstasy and if so he had a friend who can organise books containing 3,000 or 6,000 pills. These books would be sent from Europe to arrive in Australia approximately in four days.
At about 9 a.m. on 10 October 2006 the AFP lawfully intercepted a call between [the appellant] and Andrade. During the conversation Andrade stated he was meeting a person at 12 o‘clock in Albert Park. On that day an undercover officer met with Andrade in a bar in Albert Park. In the course of that conversation Andrade indicated there were imports of drugs to come from Columbia. Furthermore he offered the police officers 3,000 ecstasy pills for $15 each. Ultimately there was a settlement on $25,000 for 3,000.
On 10 October 2006 at [the appellant’s] residential address in Bulleen numerous calculations of possible prices and profit margins for the supply of pills to the undercover officer were discussed. [The appellant was] heard on tape stating the following, ‘Basically worst is 15,000 in pocket. I give [the appellant] 10. 5,000 for me’. On 10 October 2006 an intercepted call between Andrade and an undercover officer resulted in an agreement of a price at $25,000.
The following day a call was intercepted between Andrade and the undercover officer with regard to an address. A short time later a telecommunications service utilised [the appellant] using the following address, Chris Faris, Unit 102, 80 The Pines, Queensland, 4221. The same day Andrade stated the fax had been received and it can be read and the package will take about four days once it is sent.
On 15 October 2006 a further conversation occurred between Andrade and the undercover officer whereby a consignment number was provided for a package to be sent from The Netherlands on 15 November 2006, and a code was set in place. On 15 November 2006 Andrade told the undercover officer that the package was meant to have 3,000 tablets but it may in fact contain 6,000 tablets.
On 15 November 2006 the Australian Federal Police lawfully intercepted a call between [the appellant] and an unidentified male using Bulgarian Telecommunications Services. During that conversation [the appellant] stated that an individual was expecting between 3,000 to 3,500 but is now expected to receive 6,000. The unidentified male stated that there were three parcels, because they were unable to fit them into two.
On 20 November a parcel with a consignment numbered CC843790634NL was identified at the Australia Post Mail facility at Underwood in Queensland. That parcel was seized by Federal Police officers on 21 November 2006. On that date Australian Federal Police deconstructed the parcel containing the consignment number. The parcel contained three hard cover books with pills secreted in the front and the back covers. In total 6,117 pills were located inside the books, weighing a total of 1,780 grams. Upon analysis the pills were found to be ecstasy with a purity of 31.2 per cent, resulting in a total net pure weight of 555.48 grams. The commercial quantity of such a drug is fixed by Parliament at .5 kilograms. [The appellant] had 555 grams involved in this transaction which, although is only slightly above the amount fixed by Parliament as a commercial quantity, nonetheless makes [the appellant’s] offending serious by reason that it is a commercial quantity.
On 27 November 2006 Federal Police intercepted a call between a Bulgarian Telecommunications Service used by one Essan and [the appellant]. There is conversation between both of [the parties] with regard to the arrival of the drugs. Furthermore there is a discussion as to the beneficiary’s account number and the beneficiary’s bank code. As I understand the balance of the conversation both of [the parties] set up a system, whereby the money which flows from the drugs which had been sent to Australia would be repatriated back to Bulgaria using the coded names.
On 28 November 2006 Andrade is seen carrying a bag containing $25,000 and he travels home, and subsequently walks to [the appellant’s] residence. On that day AFP members executed a search warrant at Bulleen, which is [the appellant’s] residence. As a result of the search warrant the following items were seized: one mobile telephone used by [the appellant]; a paint tin containing rags and electronic scales; two $100 notes bearing serial numbers included in the $5,000 previously provided to Andrade by the undercover officer on 28 November 2006.
A faxed document detailing the two addresses provided to Andrade by the undercover operative on 29 November 2006 for the purposes of receiving imported cocaine, or MDMA, including the address for the parcel seized by AFP members in Queensland on 21 November 2006.
On 12 December there was executed a search warrant at Bulleen, which was the residence of Andrade. During the search a number of items were seized, including documents containing assignment details of various mobile phones and computer equipment. In the period between the last face to face meeting between the undercover officer and Andrade’s and [the appellant’s] arrest the following telegraphic transfers took place.
On 29 November 2006 [the appellant] to Sofia, Bulgaria, $9,427. 5 December 2006 [the appellant] to Sofia, Bulgaria, $3,438. 8 December 2006 [the appellant] to Sofia, Bulgaria, $4,500. Total, $17,366.28. It is noted that the additional $25,000 for the 3,000 pills prior to the arrest of both of [the parties were] not paid by Federal Police.
[The appellant] did not participate in any interview with police. The street price for ecstasy in May 2006 varied between $30 and $70 per tablet depending on the relationship between the seller and the purchaser and the quantity transacted. Local wholesale purchasers of the tablets are usually in lots of 1,999 or more. These prices are usually $20 to $25 per tablet for bulk purchase, and these prices are dependent upon the relationship between the seller and the quantity transacted.
The ecstasy in this matter, if purchased individually or up to five tablets at a time at a cost of $30 to $70 per tablet would result in the value of 6,117 pills between $183,510 and $428,190. The ecstasy in this matter, if sold in bulk, would be valued at between $122,340 and $152,925. It ought to be observed that there is no suggested that the drug would be sold in bulk, so the figures of 6,117 pills attracted a value of between $183,510 and $428,190, which would be the appropriate amount applicable to the transaction.[3]
[3]Sentence 1-4.
The appeal
Ground 1
With respect to assertions made in ground 1, counsel for the appellant drew the attention of the Court to the following exchange that took place in the course of the hearing –
HIS HONOUR: He has offered to co-operate with police from the outset and has that offer---
COUNSEL: No, Your Honour, the situation was that the police did not feel that there was any necessity in the facts of this---
HIS HONOUR: They didn’t need the help.
COUNSEL: No, not on the facts of this particular case, but he is still ready, willing and able in the event that Andrade changes his mind to provide whatever help and will give an undertaking to that effect, ...[4]
[4]Our emphasis.
He then pointed out that his Honour stated in his remarks on sentence, and seemingly inconsistent with what had been said by counsel –
… although I am told that you offered to co-operate with police, there is no indication that that co-operation meant that you would give evidence against your co-accused when he stands trial.
It was argued that it was unreasonable for his Honour to conclude, as it was contended he did, and, in the face of counsel’s clear statement of his client’s stance, that there was no indication that the appellant would give evidence, if required, in a subsequent trial. Although, on first reading there would seem to be some substance to this submission, We do not consider that his Honour’s words should be so interpreted.
It is apparent that those involved in the prosecution of the matter considered that independent of any assistance that the appellant might provide, the case against Andrade was powerful and, as the extract above shows, the offer of assistance had been rejected when it was initially conveyed. By the time of the hearing of the plea, a trial was perceived as unlikely and there seemed to be no prospect that the appellant would be called in any event. We consider that it is far more likely that it was to that situation his Honour was referring rather than that he placed a quite unwarranted restriction on the offer.
Accordingly, we are of the view that this ground must fail.
Ground 2
The appellant’s second ground raises the issue of a possible breach of the principle that there should be parity of treatment of similarly positioned co-offenders.
It was pointed out that, the appellant had received a longer sentence than Andrade for the same offence (seven and-a-half years compared with seven years) and the same total effective sentence and non-parole period (seven-and-a-half years with a non-parole period of five years) as that imposed upon Andrade, even though Andrade had the remaining 18 months of his previous sentence restored.
Further, it was submitted, there were additional factors which the judge could not be seen to have properly taken into account in arriving at this disposition. First, as mentioned, the appellant had offered to co-operate with the authorities. Secondly, his plea of guilty had been indicated at a much earlier stage than that of Andrade. Thirdly, he was to receive one third of the proceeds of the crime with Andrade to receive the bulk. Fourthly, whilst the appellant and Andrade each had a highly relevant prior conviction, that of the co-offender was more serious (as indicated by the circumstances and the respective sentences imposed) and Andrade’s new offence was committed in breach of an earlier sentencing order.
The question of parity did not arise before the judge when sentencing the appellant as he came before the Court prior to Andrade. However Judge Wilmoth, did address this question. In her written submissions, counsel for the Crown in this Court submitted –
It is apparent from Judge Wilmoth’s sentencing remarks in relation to Andrade that unlike the Appellant, Andrade suffered from a mental illness that attracted the principles set out in R v Verdins & Ors. She accepted that Andrade’s severe depression was in existence at the time of the offence’s commission, that it required substantial medication, that it impaired Andrade’s judgment at the time of the offence, that it reduced Andrade’s moral culpability and criminal culpability, and that it would ‘unarguably’ make service of a prison term more onerous as consequence.
Similarly, in the case of Andrade, but not the appellant, Judge Wilmoth was bound to apply the sentencing principle of totality because Her Honour was required to sentence Andrade for a breach of a recognisance. This breach attracted a further term of imprisonment. In applying totality, it is legitimate for a sentencing judge to compress individual terms of imprisonment that go to make up the total effective sentence. (Footnotes omitted)
It is evident upon perusal of the transcript of the hearing before Judge Wilmoth that her Honour had before her the transcript of the plea and sentencing remarks of the appellant. Indeed Andrade’s counsel submitted –
[The appellant’s] plea was heard on 23 August and he was sentenced on 19 November to a term of seven and half years, with a minimum of five years. The Crown will tell you, no doubt, that that is the starting point for Your Honour, it’s certainly the ball park. There is not a lot to distinguish [the appellant] from Mr Andrade, both have a relevant prior conviction, very relevant. What does distinguish them is that Mr Andrade breaches his bond, whereas [the appellant], as I understand it, I think was eight days, he committed the offence some eight days after the expiry of his bond. So in reality very, very little distinguishes the two.[5]
Unsurprisingly, counsel then directed his attention to Andrade’s personal circumstances with particular emphasis being placed on his psychological state. Her Honour was mindful of the need to give proper effect to the principle of parity and accepted that –
… there is little to distinguish between the two cases. In particular, you had both transgressed before in similar ways and whilst [the appellant] had just completed his period of recognizance, yours was still in operation.[6]
[5]Transcript 24.
[6]Sentence 5.
However, counsel before us argued, only limited weight could reasonably be attributed to Andrade’s mental state at the time of offending, because, it was said, it had been made clear to the judge in the present matter that the appellant also suffered a relevant mental disorder. In this context, the attention of the Court was drawn to the following exchange which occurred in the course of the appellant’s plea hearing:
COUNSEL: Your Honour, perhaps what is not in the material, but I can tell Your Honour and I have got documents which can confirm that, I said to my learned friend about two weeks ago that I was going to call Mr Joseph Lamberti who was an expert in drug and alcohol rehabilitation who has been attending on [the appellant] out at the gaol and Mr Lamberti unfortunately needed to fly to New York because his brother died and there was nothing we could do about having Mr Lamberti here, but essentially what Mr Lamberti was to confirm to Your Honour was that Mr Englisch at the time of these offences was not only taking the painkillers, but he was taking Zoloft, a medication against depression, as well as drinking on a continual basis and effectively this, together with what he was feeling about his future that he was no longer able to survive and keep the home, is what was troubling him. Unfortunately I don’t have this Mr Lamberti here to be giving evidence to you, but might I tell Your Honour what I have got in the way of documents and give them to Your Honour.
…
Here there appears to be a specific reason of substance and a real injury which is measurable and visible, compared to – also, in addition, his psychological condition where he becomes depressed and alcoholic.
…
Mr Lamberti is not here today and if a very important feature of Your Honour’s sentence is his psychological and alcoholic condition, well, there is no evidence as to that other than what one can intuitively infer from all of the materials.
HIS HONOUR: There is no report from him?
COUNSEL: He was coming along to give viva voca evidence and then approximately eight days ago his brother got ill and he just rushed to New York without doing any report or anything and he is currently attended to his brother’s death.
HIS HONOUR: When is he due to come back?
COUNSEL: Next week he will be back, I’m told. I’m certainly happy for Mr Lamberti to give that evidence upon his return if that is an important feature of Your Honour’s ultimate sentencing, but we would then have to come back on another day for that evidence to be given, Your Honour.
HIS HONOUR: I will give that some thought and if I think that is something that ought to be before the court, well, I will have my Associate advise.
…
THE PROSECUTOR: Just in relation to that, Your Honour, if Your Honour was to have any regard to what [your counsel] has said about Mr Lamberti then the Crown’s position would be that should be based on some evidence. If Your Honour was to not require him then there should be no regard to what has been said about what Mr Lamberti might say.
HIS HONOUR: There is nothing at all from him?
THE PROSECUTOR: No.
HIS HONOUR: I don’t think it is a terribly significant aspect in the whole range of things. I might change my mind. I’ll give it some thought.
When imposing sentence, his Honour stated –
…
In January 2006 you sustained an injury whilst working at home and you were admitted to Royal Melbourne Hospital with a serious arm injury. That injury prevented you from returning to work and you suffered continual pain and you were placed on Work Cover payments. You suffered a financial loss and became severely depressed because of the constant pain.
Although the judge did not explicitly so state, it would appear reasonable to infer from these remarks that he accepted the thrust of the appellant’s counsel’s submissions and took the appellant’s depressed state into consideration in his determination of an appropriate sentence. It must be borne in mind that counsel did not contend before his Honour that his client’s ‘psychological and alcoholic condition’ was an ‘important feature’ but only that, if the judge so regarded it, endeavours could be made to secure Mr Lamberti’s presence. By contrast, counsel for Andrade had argued forcefully, in reliance on expert reports and by reference to the decision of this Court in R v Verdins,[7] that Andrade’s depression at the time of the offence did mitigate his culpability.
[7](2007) 16 VR 269.
As mentioned above, his Honour indicated at the time that he did not regard the appellant’s mental condition at the time of offending as ‘a terribly significant aspect in the whole range of things’. This view was not challenged by the appellant’s counsel who, it can reasonably be inferred, that, if counsel considered that it was unfair to his client, he would have sought the opportunity to adduce evidence available to him.
We are far from persuaded that, on the basis of the material before him, the judge failed to attribute sufficient weight to the appellant’s psychological state or that the necessity to comply with principles of natural justice required him to say or do anything further.
In the event, however, and in order to ensure that the appellant was not unfairly treated, the Court received an affidavit from Mr Lamberti,[8] prepared shortly before the hearing of the appeal. The relevant parts of the affidavit read as follows:
[8]Sworn 29 January 2009.
1.THAT I have been working in the field for Drug and Alcohol rehabilitation since 1970 in the United States;
2.THAT in 1979 I became the founding chief executive officer of Odyssey House Victoria and remained in that position to the end of 1993;
3.THAT in January 1994 I commenced a private practice under the name of Lamberti and Associates and have been treating patients and assessing them for court related and rehabilitation purposes ever since.
4.THAT I was asked to attend on [the appellant] in custody for the purpose of a bail application immediately subsequent to his arrest and for that purpose I interviewed him by way of three separate assessments in the prison as well as attending on his wife Vania Englisch at my clinic on a further 3 occasions.
5.THAT it became clear to me from early on in the assessment that [the appellant] was significantly depressed and a large part of the causation to this was the serious injury that left him incapacitated for work which was followed by compounding alcoholism.
6. THAT both he and his wife were significantly committed financially and neither appeared to have the necessary skills needed to negotiate the change which had occurred in their lives. Mrs Englisch was clearly crying out for help, her primary concern always focussing on the potential loss of the family home.
7.THAT the proposed treatment was to be directed towards alcohol total abstinence and the discovery of a support network to alleviate their financial crisis.
8.THAT the program was never put into place as a decision was made by [the appellant’s] lawyers to not pursue bail having regards to the inevitability of a jail sentence taking into account [the appellant’s] expressed desire to plead guilty to the matters that were before the court.
That affidavit can be seen to have added very little to what had been put before the judge and accepted by him. It contains nothing concerning the existence, character or extent of any relationship between any depression or alcoholism from which the appellant may have been suffering and his involvement in a substantial drug importation.[9] Nor is there any indication in the affidavit, that the serving of a term of imprisonment would be rendered more onerous for the appellant by reason of the presence of any such condition. Mr Lamberti’s statements do not raise the reasonable possibility that any miscarriage of justice may have occurred in the passing of sentence or that any different sentence should have been passed.
[9]R v Verdins (2007) 16 VR 269; R v Tsiaras [1996] 1 VR 398.
The Court was also urged to have regard to an affidavit sworn by the appellant’s solicitor, on 28 January 2009, setting out the personal and financial difficulties experienced by the appellant’s wife since his arrest and additional information concerning the appellant’s state of health at the time of the commission of the offence and thereafter have been set out. Each of the matters addressed was the subject of attention in the Court below. There is nothing in that affidavit that could properly be regarded as fresh evidence or which could be perceived as indicating that the position of the appellant or his family was significantly different from that contemplated at the time sentence was imposed. In the circumstances, we have concluded that this affidavit cannot be received in evidence.
Without setting out the detail of the respective personal backgrounds and circumstances of two offenders, it is apparent that there were features which differentiated their situations and which influenced Judge Wilmoth in her assessment of the appropriate sentences to be imposed upon Andrade. Whilst, of course, we are currently looking at the position from the justifiable perspective of the appellant, we fail to see how either of them could reasonably claim to have been unfairly treated, given the clearly available findings and assessments of the two judges.
There is no substance in any of the complaints made, no error of omission or commission being evident in his Honour’s sentencing remarks and the disposition itself in no respect suggests the possibility of error, it follows that this appeal should be dismissed.
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