R v Fisher
[2005] VSCA 75
•17 March 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 194 of 2004
| THE QUEEN |
| v. |
| KAREN FISHER |
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JUDGES: | WARREN, C.J., BATT and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 March 2005 | |
DATE OF JUDGMENT: | 17 March 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 75 | |
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Criminal Law - Sentencing - Drugs - Trafficking in speed, attempted trafficking in cannabis - Immediate custodial sentence notwithstanding significant degree of rehabilitation - Total effective sentence of three years' imprisonment with minimum term of 18 months not manifestly excessive - Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.A. Gamble | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr L.C. Carter | Mr M.G. Wardell |
WARREN, C.J.:
I will invite Chernov, J.A. to state his reasons first.
CHERNOV, J.A.:
The appellant, Karen Fisher, who is now aged 32 years, pleaded guilty on 26 July 2004 in the County Court at Melbourne to one count of trafficking in a drug of dependence, namely, methylamphetamine ("speed"), contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 ("the Act") (count 1), one count of theft of a motor car (count 2) and one count of attempting to traffick a drug of dependence, namely, cannabis, contrary to s.71AC of the Act (count 3). Further, she pleaded guilty to three summary charges of being in possession of property suspected to be the proceeds of crime. The maximum penalty for the offences of trafficking and attempting to traffick in a drug of dependence is 15 years' imprisonment. Theft carries a ten year maximum custodial penalty. The appellant has 10 prior convictions from two court appearances, in February and November 2002, including six convictions in respect of possessing or using a drug of dependence, but has not been required to serve a term of imprisonment in relation to those offences.
The appellant was arraigned on 26 July 2004 together with three of her six co-offenders, each of whom was involved in some capacity in the same drug trafficking operation as the appellant. All of them pleaded guilty. After hearing a plea in mitigation made on the appellant's behalf on 4 August 2004, the learned sentencing judge sentenced her to the following terms of imprisonment: on count 1, three years; on count 2, nine months; and on count 3, 12 months. The learned sentencing judge also imposed a term of three months' imprisonment in respect of each charge of possessing property suspected to be the proceeds of crime. His Honour made no orders as to cumulation, thus imposing a total effective sentence of three years' imprisonment. He directed that the appellant serve a minimum term of 18 months' imprisonment before becoming eligible for parole. On 10 August 2004 the appellant filed her notice of application for leave to appeal against sentence and was granted such leave by a single judge of this Court on 4 February 2005.
The appellant relies on a single ground of appeal, namely, that each of the individual sentences imposed on counts 1 and 3, the total effective sentence and the non-parole period is manifestly excessive. By way of particulars the appellant asserts that the learned sentencing judge accorded insufficient weight to the degree of rehabilitation achieved by her since the offences were committed and to the "potential counter productivity of re-incarcerating (sic) the appellant". Further, the appellant contends under cover of this ground that, in the particular circumstances of this case, an immediate period of incarceration was "clearly inappropriate".
Before dealing with this ground it is necessary to describe briefly the circumstances of the offending and of the appellant insofar as they are relevant to the present appeal.
Circumstances of the offending
As a result of an extensive investigation into the operation of a drug trafficking ring in the Ballarat area between 18 July and 20 December 2002, the police uncovered a substantial trafficking operation in speed, and 3, 4 methylenedioxy-methylamphetamine or MDMA (commonly known as "ecstasy") by a group of persons in that area. Seven people, including the appellant, were arrested and charged in relation to such drug trafficking. In short compass, the operation that was conducted by the appellant and her co-offenders was as follows. The head of the group was Paul Kaeser, who sold, essentially, ecstasy to Stephen Tiburcy. In turn, Tiburcy, who was assisted in his operation by two others, sold ecstasy, speed and cannabis to others, including Ashley Karslake, who, assisted by his girlfriend, Zoe Bone, supplied these drugs to various "street-level" dealers, including the appellant. For her part, the appellant purchased speed from Karslake, and then sold it on to users of that drug or used it herself.
Relevantly, as I have said, the appellant was charged with trafficking in speed (count 1) and attempting to traffick in cannabis (count 3). At the hearing of the plea in mitigation made on her behalf, the Crown characterised the appellant's offending as "significant street level methylamphetamine traffick[ing]" and stated that the appellant "had a client base of approximately 60 users who she sold the drug to on a regular basis". At the height of her offending, his Honour found that the appellant was making about 14 drug transactions per day. During the plea in mitigation, her then counsel acknowledged, "I cannot and do not seek to submit that my client's role [in the trafficking operation] was anything other than a significant one."
That the appellant's then counsel made this concession is not surprising. Material gathered by the police shows the appellant's offending conduct that was the subject of count 1 was ongoing and considerable. Between 26 September and 17 October 2002, police intercepted more than 5,000 telephone calls made to and from the appellant's mobile telephone, including approximately 600 made by the appellant to Karslake's telephone number. Police identified 241 separate drug transactions conducted by the appellant over that period and on that basis, estimated that she trafficked in approximately 35 grams of that drug, with a total value of approximately $8,050. Notably, the estimate of 35 grams did not take into account any discussion in which the appellant arranged for the sale of speed but did not mention a specific quantity.
Count 2, as I have mentioned, related to the appellant's theft of a motor car. This theft was carried out, at the appellant's instruction, by an associate of the appellant, Joshua Brading, in the following context. On 5 October 2002, the appellant was involved in an accident, which resulted in her car being damaged. She concocted, with Brading, a plan to steal a car of like make, model and colour to her own car, replace its number plates with her car's plates and thereby pass it off as her car. On 12 October, Brading stole a car, which he and the appellant had previously agreed was an appropriate "match". The number plates on the car were then switched and the appellant later sold the stolen car to an unknown person. The car, which had a value of approximately $15,000, was eventually recovered in January 2003 by police in South Australia.
The circumstances that formed the basis of count 3 were these. In about mid-November 2002 the appellant and Karslake discussed the then proposed purchase by Karslake of up to 6 pounds of cannabis. The appellant agreed to contact someone who might be able to supply this large amount of the drug. She did so, and later telephoned Karslake and informed him that he could purchase that amount of cannabis from her supplier and that the price would be in the order of $18,000. The appellant then arranged to meet the supplier in Bacchus Marsh but, for reasons not presently relevant, was unable to do so. Later that day, she again telephoned Karslake and confirmed that he still wanted to purchase the drug. The appellant then made further attempts to obtain it from the supplier but, due to a shortage of cannabis at that time, the sale did not take place.
On 20 December 2002, the appellant was arrested by police following the execution of a search warrant at her home in Ballarat. During the search, the police found in her bedroom numerous plastic "deal bags" and syringes, a pair of scales and a tourniquet. Police officers also found secreted in her room and elsewhere around the house $2,000 in cash, a quantity of jewellery, five mobile phones, a car stereo, several car speakers, a car amplifier and a digital camera. Police suspected that these items were the proceeds of crime and in the event, as mentioned earlier, the appellant was charged with possessing property that was suspected to be the proceeds of crime. When interviewed by the police that night, the appellant denied trafficking in speed or cannabis and gave various false explanations for possessing the abovementioned items. More particularly, she said that some of the items belonged to other persons and that others were found by her when she moved into the house.
Personal circumstances
The appellant was born on 16 August 1972 in Ballarat and was one of four siblings. Her father abandoned the family when she was only two years of age and she has almost no memory of him. The appellant successfully completed year 12 and thereafter commenced full-time employment. She ceased work, however, in 1996 when she fell pregnant to Terry Mitchell. Later that year, she gave birth to their son, Connor, and she, Mitchell and their son lived together in Ballarat. She did not go back to employment and was, at first, satisfied with staying at home to care for her child. By 2000, however, when Connor was aged approximately three years, the appellant began to feel "bored" and commenced using speed. Her use of the drug developed quickly into a habit and by 2001 she was injecting it. Her partner left her as a result of the effects of the drug on her mood and behaviour and took their son with him. Thereafter the appellant's use of the drug increased as did her gambling, and it was not long before she commenced selling speed in order to fund her own habit. The appellant became well known in the area for falling asleep at poker machines - having stayed there all night, spending much of the proceeds from her sale of speed. The appellant claimed that at the height of her offending, approximately six months prior to her arrest, she was injecting one and a half to two grams of the drug each day. The largest quantity of the drug she trafficked at any one time was four grams, most amounts being between 0.1 and 0.8 of a gram.
After her arrest on 20 December 2002, the appellant was remanded for six months in the Deer Park Prison. During this time she completed the mandatory drug counselling and treatment programme. She was granted bail in mid-May 2003, on the condition that she spend a specified period in Bridge Haven, a residential drug and alcohol rehabilitation centre for women. Ms Lyn Spence, a drug and alcohol case worker at the centre, gave evidence at the hearing of the plea in mitigation that the appellant had displayed a "single-mindedness in her own rehabilitation" and was "very very determined that she was not going to go back to using drugs at all ... [and that] she was actually glad she [was] caught because it just really put an end to that treadmill that she was ... on." Ms Spence agreed that the appellant had "severed her drug-related contacts and focused on her son" and that she was a "role model" for other women at the centre.
By the time the appellant came to be sentenced, she was seeing her son approximately once every fortnight, with the consent of his father, although during school holidays she was able to see him for longer periods, including overnight. She had the support and consent of the father in maintaining and extending her role in the child's upbringing.
Appeal
In support of the claim that the sentences are manifestly excessive, Mr Carter, for the appellant, emphasised first the appellant's rehabilitation towards a drug-free state in the circumstances that I have just outlined. It was said that the appellant had remained drug free during her period of bail of approximately twelve months, had been a role model for other women at the rehabilitation centre and had re-built her relationship with her now seven-year-old son and regained the trust of his father. In the circumstances, it was said, immediate incarceration was clearly inappropriate and his Honour erred in so sentencing the appellant. In support of this contention counsel referred to a passage in the reasons for judgment of Callaway, J.A. in R. v. Mantini[1], but I consider that what his Honour there said does not assist the appellant, given that his Honour was concerned essentially with the court's discretion in imposing sentence, particularly in ordering cumulation or concurrency. Relevantly, his Honour emphasised in that case that, unless there is specific error, appellate intervention in relation to a sentence is not warranted unless the sentencing disposition is not open to the judge. Mr Carter then pointed out that, although the Crown Prosecutor told his Honour that he was instructed to seek immediate custody, those instructions were given without reference to mitigation material that was put before the court on the plea in mitigation. I note, however, that immediately before conveying that to his Honour, the prosecutor accepted that the appellant had made "significant inroads into her rehabilitation". Notwithstanding this, as I have said, he told the judge that a sentence requiring immediate incarceration would be appropriate.
[1][1998] 3 V.R. 340 at 349.
Mr Carter then submitted that his Honour's decision to "re-incarcerate" the appellant shows that his Honour had insufficient regard to the potential "counter-productivity" flowing from her return to prison. Counsel further argued that:
-the appellant's trafficking in drugs should be seen in the context of her being addicted to speed and to gambling;
-the trafficking was at street level and was confined to a total of 35 grams;
-her attempt to traffick cannabis was limited to her informing Karslake of a supplier whom she knew and who, in the event, was not able to obtain the drug;
-the appellant has no prior convictions for drug trafficking.
In those circumstances, said Mr Carter, a suspended sentence was clearly the appropriate sentencing disposition and, in that context, counsel referred to what was said by Eames, J.A. in R. v. McConkey (No.2)[2]. But his Honour's observation in that case was made in the context of a parity argument and, in my view, is not of much assistance to the appellant's case notwithstanding the reference there to what Batt, J.A. said in R. v. Groom[3] as to some of the circumstances in which a suspended sentence may be desirable. Counsel also referred in oral argument to Director of Public Prosecutions v. Buhagiar and Heathcote[4], in which Batt and Buchanan, JJ.A. said that a suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency and went on to say that it is wrong to assume that a sentence of imprisonment, albeit wholly suspended, does not play a role in deterring others. There was no point, said counsel, in sending the appellant back to prison and such a course may be counter-productive. While that may be true in principle, it is the circumstances of this case to which regard must be had in order to determine if the sentence should be suspended or if it was inappropriate for his Honour not to do so, as contended for by counsel.
[2][2004] VSCA 26 at [32]-[36].
[3][1999] 2 V.R. 159 at [40].
[4][1998] 4 V.R. 540.
In substance, therefore, there are two essential matters raised by Mr Carter on this appeal, first, whether his Honour erred in not suspending the sentence and secondly, whether the sentence is manifestly excessive. In my view, it is plain that it was open to his Honour to impose an immediate custodial sentence, given the seriousness of the offence and of the offending conduct, to which I will refer later, and given the importance of the principle of general deterrence in the sentencing disposition in a case of this nature. I agree with the oral submission of Mr Gamble, for the respondent, that the mere fact that the appellant served six months in custody before sentence cannot make it inappropriate to impose a custodial sentence. On the second matter, whether a sentence is manifestly excessive raises the question whether it is outside the range of sentences that was properly available to his Honour. In sentencing the appellant his Honour was required to fix a sentence that properly reflected the gravity of the offence and of the offending conduct and the applicable sentencing principles - here, principally general deterrence - albeit balancing these matters against the appellant's personal circumstances and other mitigating factors. There is no doubt that the offences in question are very serious, as was the appellant's offending conduct. This Court has emphasised on a number of occasions the serious nature of the offence of trafficking in drugs of dependence given their devastating effect on the community, particularly on those who can least afford to be subjected to them. Consistently with its condemnation of such conduct, the Court has made it plain that those who traffick in such drugs should expect to receive condign punishment. The seriousness with which Parliament views this offence is reflected in the maximum custodial sentence of 15 years that it has prescribed in relation to it.
As Mr Gamble for the respondent pointed out, the trafficking activities of the appellant represented, in particular, by count 1 were very serious. Her conduct was persistent and she played an important role in allowing others located higher in the trafficking hierarchy to supply drug users in the Ballarat community with speed. As I have already noted, the appellant's then counsel, who appeared for her at the hearing of the plea in mitigation, considered the offending represented by count 1 to be serious and I agree with Mr Gamble's submission that his Honour's observations about the frequency and duration of the trafficking in the drug by the appellant, and the need for general deterrence to be reflected adequately in the sentence imposed for such offending, were "sound assessments".
Moreover, the appellant's conduct constituting count 3 was far more serious than Mr Carter would have it. The amount of the drug that was to be sold was substantial, as was the amount of money that was to be involved in its acquisition (although, it would seem, none of it was to go to the appellant). Importantly, the appellant did more than tell Karslake where he could obtain the cannabis that he wanted, as counsel suggested. As I have explained, there was considerable discussion and negotiation between the appellant and Karslake about the quantity of cannabis that he wanted to purchase and the price that he was prepared to pay for it. Moreover, the appellant actively sought to meet the proposed supplier in order to facilitate the proposed transaction. Although the deal was not consummated, that was for reasons unconnected with the appellant's desire to bring it about.
All the mitigating factors, and the arguments that were based on them, which were highlighted to us so aptly by Mr Carter, were also put to the learned sentencing judge and were clearly considered by him. I mention in particular that, notwithstanding the appellant's implicit suggestion to the contrary, his Honour was clearly aware, and took into account for sentencing purposes, the appellant's significant progress towards rehabilitation. There was no doubt that the appellant had shown considerable strength of character and realisation of her wrongdoing in reaching the position described by Ms Spence and in restoring her life. I consider, however, that not only did his Honour acknowledge these matters in his sentencing remarks, but he gave effect to that recognition, I think, by ordering a relatively low non-parole period. Moreover, no doubt partly due to that mitigating factor, his Honour showed leniency towards her in rejecting the Crown's application for pecuniary penalty and in not ordering cumulation, a course which was plainly open to his Honour. I think some cumulation would have been appropriate given the
seriousness of the offence and the offending conduct, including that which was the subject of count 2, and in particular the importance of general deterrence in this case.
In the circumstances, notwithstanding the helpful and intellectually forceful arguments of Mr Carter, I consider that there is nothing in the carefully considered sentencing remarks of this very experienced sentencing judge that shows that he erred as was contended for on the appellant's behalf. The impugned sentences are well within the range that was open to his Honour. In my view, the sentencing disposition was merciful. I would dismiss the appeal.
WARREN, C.J.:
In my view the appeal should be dismissed, for the reasons stated by Chernov, J.A., with which I agree.
BATT, J.A.:
The principal submission for the appellant, as I understood it, was that a sentence of further incarceration was a clearly inappropriate disposition to be made by the sentencing judge. That submission involves that it was not open to his Honour to make that disposition. Despite the quite remarkable rehabilitation the appellant had achieved by the time she came to be sentenced, I am of the opinion that the disposition was open. I agree in the judgment of Chernov, J.A.
WARREN, C.J.:
The order of the Court is that the appeal is dismissed.
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