R v H N T
[2005] VSCA 12
•2 February 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 59 of 2004
| THE QUEEN |
| v. |
| HNT |
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JUDGES: | VINCENT and NETTLE JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2 February 2005 | |
DATE OF JUDGMENT: | 2 February 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 12 | |
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Criminal Law – Sentence – Trafficking in heroin in not less than a commercial quantity – Manifest excess – Substantial assistance by appellant to investigating authorities – Principle of parity – Treatment of co-offenders – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Trapnell | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr L.C. Carter | Hale & Wakeling |
VINCENT J.A.:
The appellant pleaded guilty in the Count Court to one count of trafficking in a commercial quantity of a drug of dependence, namely heroin. After hearing a plea in mitigation of penalty the learned sentencing judge, on 22 March 2004, imposed a sentence of imprisonment of three years and six months for this offence in respect of which a non-parole period of 20 months was fixed.
Having been granted leave to do so he now appeals against that sentence. The notice before the Court contains a single ground, namely the sentence was manifestly excessive in the circumstances.
This morning, counsel appearing on behalf of the appellant sought leave to add two further grounds. The first he conceded in discussion, was probably unnecessary for his purposes as it did no more than provide particulars of the ground already before the Court. The second raised an issue of alleged disparity between the sentence imposed upon the appellant and sentences imposed upon persons with whom he had been associated in his activities. After further discussion, the Court decided that we would hear argument with respect to the matters raised in these two proposed grounds, and reserve for consideration the question whether leave to add them should be granted.
Before I depart from this aspect, I should indicate that the desire to add those grounds was made clear at the time that this matter had previously come before the Court on a s.582 application. At that stage it was understood that an application would be made, in accordance with normal procedure, to the Registrar for their addition. Why nothing was done with respect to them until the day of the hearing of this appeal has not been satisfactorily explained to this Court.
It is not to be assumed that the indulgence that has been granted in this case will always be afforded where the opportunity to address such matters has simply not been taken, and certainly where no explanation for failure to comply with the rules of this Court has been proffered. Were it not for the fact that there was no potential for prejudice to the prosecution, and the issues raised in the grounds could be appropriately addressed this morning, the Court would have been extremely reluctant to consider them today.
I return to the appeal. It appears that between 18 October and 25 November 2001, the appellant was engaged in the daily business of trafficking heroin to dealers described by the sentencing judge as "lower down the chain of supply."[1] Precisely how much of this material was involved in his activities could not be determined, but as a consequence of the plea the quantity must be regarded as more than 500 grams. He was found in possession of 116 grams of poor quality material, of which he apparently had difficulty in selling. The learned sentencing judge found, on the basis of telephone intercepts and other material before her, that the appellant was "trafficking at a high level both in price and quantity and supplying to other dealers and not directly to the user."[2] There is no need to emphasise the seriousness of that conduct.
[1]Sentence T24.
[2]Sentence T26.
The maximum penalty which can be imposed upon a person trafficking in not less than a commercial quantity of heroin is imprisonment for 25 years. Understandably this offence is regarded extremely seriously, and regularly results in the imposition of very substantial terms of imprisonment. It is not necessary for present purposes to expatiate upon the reasons why this is so or to dwell on the consequences to our community of the engagement of persons in drug trafficking, as these are now well known.
The explanation proffered on behalf of the appellant for his involvement in this noxious trade was that he had initially been recruited as a means of paying gambling debts, but that, after some successful transactions he commenced to gamble with the money received. This created a need to engage in further trading. Whilst one might have some sympathy for a person with a gambling problem, it is hardly an explanation that is capable of attracting sympathy to him.
The sentencing judge directed attention to a number of matters which were advanced on the appellant’s behalf in mitigation of penalty. They included his plea of guilty, the absence of any prior criminal history, his difficult early years in Vietnam, and his endeavours to rehabilitate himself. The judge considered that his prospects in this regard were "reasonably good"[3]. By far the most mitigating feature, it would seem, from her Honour's perspective, was her finding that she accepted as quite substantial the appellant's assistance to investigating authorities in identifying a number of persons and syndicates involved in the importation and trafficking of various drugs of dependence "on a large scale on a State, interstate and a national basis”[4]. Accordingly, she stated that the sentence that she passed upon him was far less severe than otherwise would have been the case. I should add that I have read a letter which was before her Honour, that outlines the character and extent of this assistance. There can be no doubt that it was substantial, continuing, and exposed the appellant to serious physical risk. The letter has been provided to the other members of the Court.
[3]Sentence T29.
[4]Sentence T26.
The learned sentencing judge also noted that the appellant had expressed preparedness to continue to assist the authorities, and as I have indicated, recognised that as a consequence of what he had done and proposed to do, he was at some personal risk. In my view, when regard is had to the general range of sentences that have been handed down in this State upon persons engaged in trafficking commercial quantities of drugs, there can be little doubt that considerable weight was given to this factor. One would ordinarily have expected a substantially longer period of imprisonment than that imposed were it not for the presence of that consideration.
As I have indicated, a further proposed ground has been raised for consideration concerning the operation of the principle of parity and treatment of the two co-offenders in this case. I observe that her Honour addressed this matter and made specific reference to the sentence imposed by Judge Wodak upon one of them, and her own sentencing of the other.
It is sufficient for present purposes simply to set out the various distinctions which can be made between the situations of these three people to which her Honour adverted in her sentencing remarks, in order to appreciate why disparate sentences were regarded as appropriate. She stated:
"I am bound to and do take into account, the sentences passed on your
co-offenders. I am of the view that these are relevant, although parity does not strictly apply. Although the 116 grams of heroin was the common thread between all three cases, there are a number of differences. In the case of [A], he was a 43 year old man with a 10 year psychiatric history. He did have prior convictions, but not for drug matters. His was a one-off trafficking transaction and the police surveillance which was trained on you and [B], did not reveal [A] to be otherwise engaged in the trade. I consider that there was no alternative to imprisonment in his case, but because of primarily his psychiatric history and continuing ill health, together with 50 days already spent in custody, the sentence of 15 months’ imprisonment I imposed on him was partially suspended as to 14 months. [B] was a dealer supplied by you and was therefore at a lower level than you in the chain of supply. The period covered in her presentment was eight weeks, in yours five weeks. She was presented on trafficking simpliciter in small amounts, including the 116 grams. You were presented on trafficking in a commercial quantity. She pleaded guilty at committal; you pleaded guilty at trial. She had a prior conviction for dishonesty offences and a second dishonesty count on her presentment. She is aged in her late twenties and is the sole parent to four small children. She received a sentence of three years on the count of trafficking from his Honour Judge Wodak. On the other hand you have given substantial assistance to which I have already referred. So for all of these reasons, parity does not seem to apply, but insofar as the sentences are relevant I have taken them into account.”[5]
[5]Sentence T28-29.
I am unable to detect any error in her Honour's sentencing remarks, or her approach to the sentencing of this appellant. It is apparent that she had regard to all of the relevant sentencing considerations and factual matters, and specifically all of those upon which reliance has been placed in support of the present appeal. Accordingly, I am of the view that the application to add further grounds should be
refused and the appeal dismissed.
NETTLE J.A.:
I agree. A sentence of three and a half years, with a non-parole period of only 20 months, appears to me to represent a very hefty discount on a sentence that might properly have been imposed on a count of trafficking in a commercial quantity of heroin.[6] Accordingly, whilst it is evident that the appellant has given a very significant degree of assistance to the police and other investigative authorities, and despite that he appears committed to doing what he can to continue to assist them, I consider that he has been very fairly dealt with. So to say is not to deny that the learned sentencing judge might have given an even more lenient sentence than she did, but equally she might quite properly have imposed a greater sentence. Like the learned presiding judge, I am unable to detect any error in Her Honour's sentencing remarks or sentencing disposition, and thus I too would dismiss the appeal.
[6]See R v. Berisha (1999) VSCA 112 at paragraphs 32 to 33 in the judgment of Charles JA.
CUMMINS A.J.A.:
I agree there was significant assistance and appropriately a significant discount.
VINCENT J.A.:
The application for leave to add the additional grounds to the notice of appeal in this matter is refused. The appeal is dismissed.
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