R v Gates
[2005] VSCA 61
•23 March 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 159 of 2004
| THE QUEEN |
| v. |
| JONATHAN GATES |
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JUDGES: | WARREN, C.J., BATT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 February 2005 | |
DATE OF JUDGMENT: | 23 March 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 61 | |
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CRIMINAL LAW – Sentencing – Trafficking in commercial quantity of drug of dependence, pseudoephedrine – 30 kilograms of 80% purity – Offence committed in breach of suspended sentence – Pleas of guilty - Sentence of twelve years’ imprisonment said by judge to represent significant to high discount – Sentence held manifestly excessive – Applicant re-sentenced to ten years’ imprisonment on trafficking count – Cumulation of 12 month’s imprisonment with respect to breach of suspended sentence – Total effective sentence of 11 years’ imprisonment with eight years non-parole period – Drugs, Poisons and Controlled Substances Act 1981, s.71(1) – Sentencing Act 1991, s.31(6).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Mr M.J. Croucher | Victoria Legal Aid |
WARREN, C.J.:
The facts and circumstances of this appeal against sentence are thoroughly described and set out in the judgment of Eames, J.A. The circumstances of the early plea of guilty and the lack of prior convictions for drug related offences lead me to consider that insufficient weight was given to these factors on the sentence imposed on count 1. I regard the sentence on that count, therefore, as manifestly excessive and the sentencing exercise is reinvoked. For the reasons set out in the judgment of Eames, J.A. I would resentence the applicant as proposed in that judgment.
BATT, J.A.:
I gratefully adopt the statement of facts in the reasons of Eames, J.A.
As the maximum custodial penalty of 25 years’ imprisonment shows, trafficking in a commercial quantity of a drug of dependence is a most serious crime, and this was a very serious instance of it, for the trafficking was a substantial business. Moreover, the offending was aggravated by the fact that it was committed during the operational period of a suspended sentence of imprisonment. General deterrence and specific deterrence had to be the principal sentencing purposes. I adopt Eames, J.A.’s references to the material suggesting guarded prospects for rehabilitation. Although the sentence of 12 years’ imprisonment for trafficking in a commercial quantity of pseudoephedrine is heavy, were it not for one group of mitigatory factors I would have held it (and probably the non-parole period of 10 years and 6 months) to be within the range of sentences available to the sentencing judge in the exercise of his discretion and, thus, not manifestly excessive. (I do not consider that the total restoration of the two year sentence of imprisonment that had been suspended or the cumulation of one year of that sentence was manifestly excessive. If the total effective sentence was manifestly excessive or infringed the principle of totality the fault lay in the sentence on count 1.)
I turn to the mitigatory factors to which I have referred. The applicant substantially admitted his conduct when interviewed, made a statement to the police and pleaded guilty at a relevantly early stage. His Honour said that those actions were “indications of genuine remorse” and added, correctly in my opinion, that the applicant was entitled to “a significant to high discount to the sentence [he] would otherwise receive but for that plea”. His Honour later stated that he gave full effect to the applicant’s plea of guilty and took into account his lack of prior convictions for drug related offences and that he gave full weight to principles of totality. However, the sentence of nearly 12 years’ imprisonment – almost half the maximum – does not, I consider, betoken a significant to high discount from an otherwise permissible sentence or in any other respect reflect his Honour’s remarks just quoted, at any rate in the case of an offender with no prior convictions for drug offences. That means that the sentence of 12 years’ imprisonment was manifestly excessive.
That conclusion makes it unnecessary to consider the relationship of the non-parole period fixed to the head sentence, for the whole sentencing discretion is re-opened. I agree in the re-sentencing proposed by Eames, J.A.
EAMES, J.A.:
This is an application for leave to appeal against sentence. The applicant pleaded guilty to a count of trafficking in a commercial quantity of a drug of dependence, the drug being pseudoephedrine, a precursor in the manufacture of methylamphetamine. The offending occurred over some three months between 1 August 2001 and 20 October 2001. During that period the applicant had his 35th birthday.
The offence was contrary to s.71(1) of the Drugs, Poisons and Controlled Substances Act 1981 which carried a maximum penalty of 25 years' imprisonment. Under that Act two kilograms represents a commercial quantity of pseudoephedrine. The sentencing judge in this case found that in the course of the offending period the applicant facilitated the delivery of over 30 kilograms of pseudoephedrine which was of 80% purity and which was agreed to be sold for a price of $25,000 per kilogram. His Honour accepted evidence that one kilogram of pseudoephedrine would be required for the manufacture of methylamphetamine to a value of $150,000.
The applicant admitted four previous convictions from two court appearances. On 1 July 1994 he was convicted for possession of a firearm without a licence and on 15 September 1999 he was convicted on three counts of handling stolen goods. On that latter occasion he was sentenced to two years’ imprisonment which sentence had been totally suspended for three years by a County Court judge. The applicant admitted that the present offence constituted a breach of that suspended sentence and the applicant fell for sentencing pursuant to s.31(6) of the Sentencing Act 1991 with respect to the breach.
On 28 June 2004 the learned sentencing judge sentenced the applicant to twelve years' imprisonment on the trafficking count and ordered that the suspended sentence be restored as to two years' imprisonment but further ordered that twelve months of the suspended sentence be served concurrently with the sentence imposed for trafficking. That produced a total effective sentence of thirteen years' imprisonment. His Honour directed that the applicant serve ten years and six months' imprisonment before being eligible for parole.
There were four grounds of appeal for the application, but the fourth was abandoned at the hearing. Of the remaining grounds, the first ground complained that the sentence was manifestly excessive and the remaining grounds were treated as particulars of the complaint of manifest excess. Those grounds complained, respectively, that insufficient weight and undue weight were given by the sentencing judge to the plea of guilty, and to the personal circumstances of the applicant at the time of offending.
On 1 August 2001 a total of 175 kilograms of pseudoephedrine were stolen whilst on route to a factory in Croydon. That theft led to the creation of a Victoria Police Taskforce to investigate the distribution of the drug. The applicant is not being sentenced on the basis that he was implicated in that theft but the learned sentencing judge found that subsequent to the theft the applicant gained access to a substantial supply of pseudoephedrine, through his brother. Although the judge concluded that the applicant’s brother was engaged in the distribution of the drug at a high level, he was acquitted of charges brought against him in a separate trial which was conducted at a time after the trial of the applicant.
When acting on behalf of his brother, the applicant first organized the sale of a 20-kilogram drum of the drug, for a price of $350,000. The drug was delivered but the purchaser failed to pay for it. The judge found that thereafter the applicant was under pressure from his associates and agreed to act as a middle-man in the supply of pseudoephedrine to one Shane Wilcox, a member of the Banditos Motor Cycle Club in Sydney. Wilcox was involved in the manufacture of methylamphetamine in New South Wales. Counsel for the applicant did not contend that his subsequent involvement in trafficking was in any way caused by duress from anyone on account of the failure to receive payment for the first delivery, but, rather, it was put that his role in that failed exercise was a factor which contributed to the decision of the applicant to continue with the trafficking to the degree he subsequently did.
As the judge found, the applicant was not taking the role of a mere courier. The applicant was asked by his brother to find a purchaser for the chemical and after engaging two other people to assist him in that task he then became the essential link in transactions of pseudoephedrine to Wilcox, dealing with Wilcox directly and extensively. The applicant sold the drug at $25,000 a kilogram to Wilcox, whilst acting as a “middle-man” for his brother. As intercepted telephone conversations demonstrated, the applicant organized and negotiated the terms of the delivery of pseudoephedrine from his brother to the buyer. His Honour found that the pseudoephedrine supplied by the applicant would have produced millions of dollars worth of methylamphetamine. He found that the applicant was “involved in high level and extensive drug trafficking”.
Mr Croucher submitted that the individual sentence of 12 years' imprisonment for trafficking, the extent of cumulation with respect to the suspended sentence, and also the length of the non-parole period were each, in turn, manifestly excessive.
Mr Croucher, first, submitted that the sentence of 12 years' imprisonment was manifestly excessive having regard to the drug involved and to the applicant’s role in its trafficking. Mr Croucher submitted that the learned judge sentenced the applicant as though the drug involved was methylamphetamine, rather than pseudoephedrine, a drug which, he submitted, was not itself addictive and was merely a pre-curser for the manufacture of methylamphetamine. Counsel submitted that the difference between those drugs as to their inherent dangerousness and, in turn, the difference in the degree of seriousness of dealing with them could be gauged by the fact that for methylamphetamine (and also for heroin) a commercial quantity was 250 grams pure[1]. In the case of pseudoephedrine the commercial quantity was two kilograms pure. The quantity of pseudoephedrine involved in this trafficking represented some 12 times the commercial quantity. A sentence of 12 years' imprisonment for trafficking what was 12 times the commercial quantity of heroin might arguably be appropriate, Mr Croucher submitted, given that it represented three kilograms of that drug, but such a sentence was totally disproportionate with regard to pseudoephedrine.
[1]When mixed, the commercial quantity for heroin was 500 grams, and 1.25 kilograms for methylamphetamine: Schedule 11, Part 3, Column 2A, Drugs, Poisons and Controlled Substances Act 1981.
As to this argument, Mr McArdle, for the Director, submitted that the same maximum penalty, 25 years imprisonment, applied for trafficking what were deemed the commercial quantities of methylamphetamine, pseudoephedrine and heroin and there was no reason why pseudoephedrine trafficking in a commercial quantity must be regarded as less serious than heroin trafficking in a commercial quantity. The fact that this drug can be used to create another drug with even greater profitability is not to the point, Mr McArdle submitted. The offending in this case reflected a very significant and professional level of criminal conduct.
Given that the same maximum penalty applies for commercial trafficking in both pseudoephedrine and methylamphetamine there is some force in the contention of Mr McArdle that one offence of trafficking in a commercial quantity ought not be treated as less important than the other, by virtue of any claimed difference in the nature of the drug involved. This Court held in R. v. Howden[2] that there ought be very little distinction drawn, for example, between trafficking in heroin and in methylamphetamine, but Charles, J.A. so concluded because the latter, like heroin, was “a very deleterious substance the use of which can lead to severely psychotic and destructive behaviour” and because the trafficking of it can produce enormous rewards. Although he noted that no evidence was called either at the hearing or on the appeal as to this, Mr McArdle did not seek to challenge the assertions of Mr Croucher that pseudoephedrine was not itself addictive, had value only as a precursor for the manufacture of methylamphetamine, and that trafficking in it did not produce profits akin to those available to traffickers in the finished product. He submitted that the extent of the trafficking in this case was so great that those factors, even if accepted, would have little impact in ameliorating the seriousness of the offence.
[2](1999) 108 A. Crim. R. 240, at 244, per Charles, J.A., Winneke, P. and Chernov, J.A. agreeing.
As an examination of recent sentencing decisions discloses, the manufacture and trafficking in methylamphetamine has reached very serious levels throughout Australia, particularly in New South Wales, where the pseudoephedrine was bound in this case. The incidence of offences of trafficking in pseudoephedrine reflects directly on the growth in the trade of the finished product. Without the trade in one, there is not the trade in the other. In my opinion, the fact that pseudoephedrine is merely a precursor to manufacture of methylamphetamine ought produce only a modest amelioration in sentence for those who traffick in it, rather than in the finished product, but modest as the difference may be there must be some reflection in penalty for the fact that traffickers in commercial quantities of methylamphetamine seek even greater profits than those trading in pseudoephedrine.
Mr McArdle did not dispute the contention of Mr Croucher that the sentence imposed on the applicant in this case, is significantly higher than others that have been imposed for similar trafficking in this drug in this State.
Mr Croucher submitted that although the applicant was held by the judge to be involved at a high level in the trafficking he remained a middle-man, being used by his brother so as to conceal his own, even more serious, involvement.
The pleas of guilty had been undervalued, Mr Croucher submitted, given that the judge accepted that the plea had been entered at a relatively early stage and disclosed indications of genuine remorse. Although the judge said that he would award a significant to high discount because of the plea of guilty, the sentence imposed was so high as not to reflect any or any adequate discount in that regard, counsel submitted. Mr Croucher submitted that the applicant had been cooperative with police, by giving a statement which fully described his own role and that of others who had been involved in the trafficking enterprise.
Although significant sums had been involved in the trafficking, the prosecutor conceded that Gates had not been shown to have shared those profits, save that he had been provided with an expensive motor bike as part payment for one transaction. In fact, he retained the motorbike only for two weeks, it being recovered from him when he failed to provide the balance of the quantity of the drug which he had promised.
The judge accepted that the applicant had a consistent work record until 1999, when he commenced employment in a nightclub and became, in effect, its manager. The club was somewhat sleazy and provided ready access to drugs, and in addition to heavy consumption of alcohol the applicant developed a cocaine and amphetamine habit. The judge accepted that the club lifestyle clouded the applicant’s judgment and in that atmosphere these offences occurred. His Honour had regard to a report from forensic psychologist Mr Ian Joblin, who opined that the club and drug culture had led the applicant to consider himself omnipotent and immune from legal restraint.
The applicant had no prior convictions for drug offences and, as his Honour held, had been drug free in prison and had undertaken drug education and other courses. In my view, the judge was entitled to be cautious in his assessment of the applicant’s prospects of rehabilitation, in saying merely “there are some prospects for your rehabilitation, particularly if you remain drug free”. There were a number of factors which explained his Honour’s caution in this respect.
On 16 April 2002, that is, at a time subsequent to the time of the present offence, but still within the time of operation of the suspended sentence imposed by Judge O’Shea, on 15 September 1999, the applicant, together with others, committed two further offences, of burglary and theft. Thus, those offences constituted a second breach of the suspended sentence imposed by Judge O’Shea. Upon his pleas of guilty to those offences he was sentenced by Judge Anderson, on 19 December 2003, to six months imprisonment on each count, the sentence being declared to have been served while in custody. As the learned sentencing judge in the present case concluded, those offences were part of a sophisticated burglary at a transport depot.
The learned sentencing judge said that he took into account when sentencing the applicant for trafficking the fact that the subsequent convictions dealt with by Judge Anderson constituted a further breach of the suspended sentence imposed by Judge O’Shea. He did not more precisely state how he took the subsequent offences into account, but no complaint was made before us that his Honour erred in having regard to that matter. The fact of there having been a second, albeit subsequent, breach was relevant to the question of the rehabilitation prospects of the applicant. So too was the report of Mr Joblin, who by no means gave an unqualified endorsement as to his prospects of rehabilitation.
This was a very significant instance of trafficking in this drug. The quantity of the drug and the sums involved in trafficking it were substantial. Although the applicant may not himself have yet received substantial sums with respect to the trade he obviously anticipated significant rewards for his criminal conduct, in which he engaged over a lengthy period and at a high level. The importance of general deterrence in cases of major drug trafficking has been repeatedly emphasised in the courts: see R. v. Berisha[3].
[3][1999] VSCA 112.
Nonetheless, the sentence of 12 years’ imprisonment on the trafficking count is a very severe one, constituting almost half the maximum penalty for a first drug offence, and upon pleas of guilty. That is particularly so when regard is had to the fact that the judge said that the sentence reflected a “significant to high discount”. It must follow that had he pleaded not guilty his sentence would have been significantly higher again. On the Crown case, however, the applicant, although a central figure, as his Honour found, played a less significant role than his brother (who was separately tried and acquitted) and it may be surmised that had his brother been convicted after pleading not guilty the judge would have been bound to impose a sentence significantly greater than that which would have been imposed on the applicant, had he pleaded not guilty. That analysis suggests that as serious as the matter was the penalty for a person regarded as a principal in this drug trafficking enterprise, and convicted after a trial, would have been close to the maximum available, or at least have been so high as to be very substantially outside the range of penalties previously imposed in this State for trafficking in pseudoephedrine.
As is inevitably said, the question whether a sentence is manifestly excessive does not admit of much debate. In this case, notwithstanding he seriousness of the offending, I conclude that the sentence for trafficking pseudoephedrine was manifestly excessive.
I turn, then, to the penalty imposed with respect to the breach of the suspended sentence.
Mr Croucher did not contend that, of itself, the order made by the learned sentencing judge - that 12 months of the suspended sentence be served concurrently - was manifestly excessive or otherwise erroneous. It was only when taken with the sentence imposed on the trafficking count that it was a further factor in the result that the total effective sentence offended the principle of totality, he submitted.
As the judge noted, the applicant’s convictions, for which he received his suspended sentence, were very serious examples of handling stolen property, involving goods to the value of about $500,000. Having regard to that, then the course of conduct involved in the present offence, as well as the offences dealt with by Judge Anderson, reflect a disdain for the leniency shown by Judge O’Shea in imposing the suspended sentence. In those circumstances, the order that one year of the suspended sentence be served concurrently with the sentence for trafficking was by no means harsh, and I would not interfere with it.
Given that my conclusion as to the trafficking count would require that the applicant be re-sentenced, if my view in that respect reflected a majority view, then a new non-parole period would need to be set. It is, in the circumstances, appropriate to address the complaint of manifest excess concerning the fixing of a non-parole period of ten years six months, below the total effective sentence of thirteen years. That non-parole period bears an unusual relationship to the sentence of 13 years imprisonment, in the order of 80%. No explanation was given by his Honour for that being so, and Mr McArdle very fairly conceded that the non-parole period imposed was so high as to be “eye-catching”.
Given the pleas of guilty and a positive (albeit qualified) finding made as to the applicant’s prospects of rehabilitation, the non-parole period fixed would of itself reflect sentencing error, in my opinion, even allowing for the fact that the current offences were committed while the applicant was subject to a suspended sentence. Upon re-sentencing the applicant on the trafficking count I would fix a non-parole period that in my opinion would bear a more appropriate relationship to the head sentence that I would impose.
I would allow the application for leave to appeal against sentence on count 1, set aside the sentence on that count and impose instead a sentence of ten years’ imprisonment. I would not interfere with the orders made as to sentence on count 2, thus producing a total effective sentence of eleven years’ imprisonment. I would order that eight years imprisonment be served before the applicant is eligible for parole.
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