R v Harkness
[2001] VSCA 87
•15 June 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 150 of 2000
No. 155 of 2000
No. 161 of 2000
No. 166 of 2000
| THE QUEEN |
| v. |
| HARKNESS, DANG, GNJATOVIC and BROOKS |
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JUDGES: | WINNEKE, A.C.J., ORMISTON and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 and 10 April 2001 | |
DATE OF JUDGMENT: | 15 June 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 87 | |
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Criminal law – Sentencing – Drug trafficking – Common design – Supplying drug of dependence to a child – Limited relevance of offender’s youth – Principles applicable to fixing non-parole periods – Relevance of scale and cost of police investigation – Proof of sentencing facts – Cumulation – Parity – Male and female offenders – Drugs, Poisons and Controlled Substances Act 1981, ss. 71, 71B.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown For the Applicant Harkness | Ms. S. Pullen Mr. P.J. Hannebery | Mr. S. Carisbrooke, Acting Solicitor for Public Prosecutions Balmer & Associates Pty. |
WINNEKE, A.C.J.:
I have read the reasons for judgment of Callaway, J.A. I agree, for the reasons which his Honour assigns, that these four applications should be disposed of in the manner which his Honour proposes.
ORMISTON, J.A.:
In this matter I have had the benefit of reading the detailed and careful reasons in the draft judgment of Callaway, J.A. In relation to the applicants Brooks, Gnjatovic and Harkness, I agree, substantially for the reasons stated by his Honour, that those applications should be dealt with in the way he suggests.
As to the applicant Dang, I regret to say, with great respect, that I am not satisfied, from the reasons stated in Callaway, J.A.’s judgment, nor for any reasons put forward in argument by his counsel, that there were any errors in the sentencing judge’s findings or in his reasons for sentencing the applicant that a different sentence should have been passed. The sentences imposed on all the offenders were modest, especially having regard to the systematic way in which it was clear that heroin was being peddled by them in the Ballarat area. Although there may not have been large sums of moneys involved, certainly by comparison with other trafficking rings, the vicious nature of the trade and its appalling effects on the community have been sufficiently often stated for it not to need repeating.
To my way of thinking, with respect, it has not been shown adequately that the learned sentencing judge was wrong in his assessment of the evidence relating to the applicant Dang. It is easy to look at particular pieces of evidence and the inferences which they might separately justify or not justify, but the sentencing judge’s task is to look at the whole of the evidence from the array of material presented to him for that purpose, which includes the whole of the depositions and all relevant exhibits. For good reason we were not taken to all of these, but the Court
was asked to deal with it on the basis of certain items of evidence, as if that was the totality of the story. A sentencing judge has a difficult enough task and I do not believe it is this Court’s function to second-guess findings of fact which depend upon inferences drawn from a vast volume of material. Rather it is to see whether there is an error demonstrated, and occasionally it can be shown that there was no evidence before the sentencing judge which could support the relevant findings. I am not satisfied that there was any such error here, for it seems to me, having considered the material for myself, that it was open to the judge to draw the inferences adverse to the applicant Dang based on the whole of the material before him. For example, the alleged confusion as to the use of the name “Tommy” was a matter best left to the judge to assess. With respect, I believe it was open to him to conclude that this applicant had repeated contact with the applicant Gnjatovic over the relevant period and that this was for the purpose of the latter’s trafficking “business” in Ballarat.
Moreover, I do not think it appropriate to vary the sentence, even if the facts were held to have been erroneously found, to reduce the minimum term by three months. I cannot believe that that would relieve an applicant in these circumstances of any justifiable sense of grievance for having been unfairly dealt with because of a supposed lack of parity. The truth is in these cases, as in so many others, that the offender is never satisfied, unless he receives a less than adequate sentence. I am not satisfied that it is appropriate to change the minimum term, for I do not believe that the errors, even if one accepts them to have been so established, properly justify the imposition of a different sentence.
It follows that I would dismiss Dang’s application.
CALLAWAY, J.A.:
Each of the applicants, together with seven others, pleaded guilty in the
County Court to one count of trafficking in heroin between 15th August and 29th November 1999. Harkness also pleaded guilty to one count of possession of cannabis. Gnjatovic also pleaded guilty to one count of trafficking in cannabis, one count of supplying heroin to a child and one count of handling stolen goods. After hearing pleas for leniency on their behalf, the learned judge sentenced Harkness, Dang, Gnjatovic and Brooks on the count of trafficking in heroin to 15 months' imprisonment, three-and-a-half years' imprisonment, four years' imprisonment and three-and-a-half years' imprisonment respectively. Harkness was also fined for possession of cannabis. Gnjatovic was also sentenced to nine months' imprisonment for trafficking in cannabis, 18 months' imprisonment for supplying heroin to a child and 12 months' imprisonment for handling stolen goods. Orders for cumulation resulted in a total effective sentence in his case of five years' imprisonment. Non-parole periods of seven months, two years and nine months, four years and two years and nine months were fixed in relation to the sentences imposed on Harkness, Dang, Gnjatovic and Brooks respectively. Each of them seeks leave to appeal against sentence.
The offence to which all four applicants pleaded guilty came to light as the result of a police investigation in the Ballarat area using physical, photographic and electronic surveillance techniques as well as video cameras.[1] On 29th September 1999 Brooks was seen to drive Gnjatovic in a vehicle CLZ 482 to the Deer Park Shopping Centre. There Gnjatovic spoke to the occupants of another vehicle POF 792. On 19th October the two vehicles rendezvoused on the Western Highway near the Old Melbourne Road. Brooks was observed in CLZ 482 and other observations confirmed that he and Gnjatovic were using that vehicle on that occasion. Three days later Gnjatovic and the occupants of POF 792 were seen near Bakery Hill. The vehicle later returned to an address in Neale Street, Deer Park where Dang and a co-offender Hieu Dai Nguyen lived, together with Dang's wife and two young children.
[1]In what follows I rely substantially, although not entirely, on the learned judge's sentencing remarks. They in turn reflected his Honour's study of the depositions, which he had read twice.
In late October an undercover police officer using the name Gary Davidson made contact with a number of people eventually including the co-offender Angwin, who was prepared to traffic heroin to Davidson. The heroin was supplied in differently coloured balloons.
A conversation about the purchase of a larger quantity of heroin led Angwin to refer Davidson to Gnjatovic, whom Davidson arranged to meet in Sebastopol. Brooks drove Gnjatovic to the meeting and a conversation ensued about drugs being supplied to Davidson. Gnjatovic said that he would have to make inquiries and arrange supply by his supplier in the Ballarat area. Later they repaired to Gnjatovic's house in Spencer Street, Sebastopol, where Davidson was given heroin and Gnjatovic showed him a blue cylindrical canister for concealing drugs in the anus. Gnjatovic said that Davidson should give one day's notice of his requirements. Brooks also told Davidson that heroin could be purchased from him, saying, "All you have to do is let me know where you are and I'll come and meet you."
On 9th November Davidson spoke to Gnjatovic by telephone and asked whether he could purchase a gram of heroin the following day. He said he would be in Ballarat between 7 and 8 p.m. Davidson did go to Ballarat and contacted Gnjatovic. Arrangements were made for them to meet near a hotel in Sebastopol. Brooks and Angwin were also present. There followed a further meeting at the house in Spencer Street, where Davidson saw the same three men together with others including two women. He arranged to purchase rock heroin. Gnjatovic left and later returned with heroin.
A week later Davidson telephoned Gnjatovic and arranged to purchase seven grams of heroin the next day. On that day he went to Ballarat and met Gnjatovic at Bakery Hill. Brooks was again the driver. Davidson was given the heroin and then inquired about the price for an ounce, to which Gnjatovic responded that he would have to make inquiries. He made a telephone call to someone whom he addressed as "Tommy" and, shortly thereafter, himself received a telephone call. He then informed Davidson that the cost of an ounce of heroin would be $5,800.
On 21st, 22nd and 25th November Harkness was seen to drive Angwin to one or other of the premises involved in the trafficking. On 23rd November Dang and Nguyen were seen in POF 792. They met Gnjatovic, Brooks and another co-offender, Hower, at a service station on the Western Highway. The next day Gnjatovic, Brooks and Hower were seen in CLZ 482 at the Neale Street address. The same day Davidson and Gnjatovic met by arrangement and Davidson said he had money to purchase two ounces or more on 29th November.
On 25th November Davidson again spoke to Gnjatovic, informing him that he had $11,000 for the purchase but was not prepared to hand the money over before he received the heroin. Gnjatovic said that Davidson could accompany him when he went to collect it. Four days later the two men met at a petrol station in Deer Park. The venue was suggested by Gnjatovic. Gnjatovic then drove to a Caltex station in CLZ 482 with Davidson following. He walked to the rear of the station and then got into Davidson's car. He showed him a bag said to contain two-and-a-half ounces of heroin and directed Davidson to drive to another location where the exchange would take place. Gnjatovic said, "I know what I'm doing. I don't want to go to gaol." The exchange took place in Mill Park Drive, Deer Park. Gnjatovic was arrested shortly afterwards counting money in a plastic bag. Money and white powder were seen in his car at the scene of the arrest.
Once Gnjatovic had been arrested the premises at Neale Street were raided pursuant to a search warrant. Densley, Rye and Brooks were all present and were arrested. Later that evening a search warrant was executed at the Spencer Street address. Drug-related exhibits and stolen property were seized.
I shall refer to other relevant facts and, where necessary, the personal circumstances of the offenders in the course of considering the four applications. An important factor to be borne in mind, without undue repetition, is that each applicant pleaded guilty at an early stage, which the judge accepted as some (which I take to mean limited) evidence of remorse.
Harkness
Harkness seeks leave to appeal on three grounds, of which the second and third may be regarded as particulars of the first. They are that the sentence is manifestly excessive, that the learned sentencing judge failed to give appropriate weight to the applicant's prospects of rehabilitation and that his Honour failed to give appropriate weight to the youthfulness of the offender.
The real question raised by those grounds is whether his Honour was bound to adopt a different sentencing disposition in the light of the applicant's youth, antecedents and prospects of rehabilitation. He was 21 at the time of the offences and 22 at the time of sentencing. He had no previous convictions but had appeared on a charge of theft in the Magistrates' Court in 1996 and been released on recognizance. He had stopped using cannabis, was in current employment and was endeavouring to gain some trade qualifications. He enjoyed the support of his mother and maternal grandparents and a girlfriend of some eight years' standing. Mr Hannebery submitted that he was the kind of offender whom the courts strain to keep out of the adult prison system or, if that cannot be avoided, to incarcerate for as short a time as possible.[2]
[2]See R. v. Mills [1998] 4 V.R. 235 at 241-242 and the cases there cited. There are subsequent authorities both applying the propositions referred to in R. v. Mills and putting them in context. They include, but are by no means limited to, R. v. Giles [1999] VSCA 208 at [20], R. v. Bell [1999] VSCA 223 at [14], R. v. Wilshaw and Lowe [2001] VSCA 35 at [43]-[49] and R. v. van Staveren [2001] VSCA 41 at [10]-[11].
The judge accepted that Harkness had a limited role in the trafficking in heroin, his involvement being confined to the period 14th to 29th November 1999. On five or six occasions during that period, each of approximately two hours' duration, he drove Angwin around whilst the latter delivered heroin to addicts. He took calls on Angwin's mobile telephone and was present at Gnjatovic's house when heroin was cut and packaged. He was not himself a user of heroin and, as his Honour observed, knowingly played his part in a serious crime. He received almost nothing for his pains, his reward being limited to money for petrol and some marijuana. He made full admissions to the police. The applicant's youth, antecedents and prospects of rehabilitation were matters of great importance. Doubtless they explain both the head sentence and the unusually short non-parole period. The former is well within the range. In my opinion the latter was open to the judge as an appropriate disposition. He was not bound to opt for a partially suspended sentence.[3]
[3]A wholly non-custodial sentence was not possible because of pre-sentence detention, but in any event I am inclined to think that such a sentence would have been unduly lenient having regard to the gravity of the offence and the applicant's involvement in it.
R. v. Thomas[4] concerned the importation of not less than a traffickable quantity of cocaine. The following passage[5] applies mutatis mutandis to the present case:
"The applicant's age was relevant: see R. v. Lawson (1997) 142 F.L.R. 323 at 324-325 and 337-338. Being 21 at the time of the offence does not, however, carry as much weight as it might in other cases. That is partly because of the gravity of the offence, partly because of the pressing need for general deterrence and partly to discourage drug runners from engaging young men or women as couriers on a promise that they will be treated leniently if they are caught. Similar considerations apply to the absence of relevant prior convictions."
For similar reasons it cannot be said that the present sentence was outside the range available to the judge or that his Honour failed to give appropriate weight either to the applicant's prospects of rehabilitation or to his age.
Dang
[4][1999] VSCA 204.
[5]At [16].
Dang seeks leave to appeal on seven grounds:
"1.That the learned trial judge gave insufficient weight to the degree and nature of the assistance provided by the applicant to the police.
2.That the learned trial judge erred in defining the roles of the offenders.
3.That the learned trial judge gave insufficient weight to the principles of parity of sentence.
4.That the sentence imposed was manifestly excessive.
5.The learned sentencing judge erred in his approach to fact-finding and the applicable burdens and standards of proof, and in particular he erred in holding that there was an onus on the applicant to establish his role in the offending.
6.The learned sentencing judge erred:
(a)in his approach to the setting of the non-parole period;
...
(c)in failing to impose a greater disparity between the head sentence and the non-parole period.
7.The learned sentencing judge erred in having regard to the likely costs of the investigation."
Ground 6(b) was abandoned.
Mr Croucher argued grounds 4 and 6 first. In support of ground 4 it was submitted that both the head sentence of three-and-a-half years' imprisonment and the non-parole period of two years and nine months were manifestly excessive having regard to the time during which Dang was involved, from 12th October to 29th November 1999, and his early plea of guilty, remorse, admissions to the police and assistance that he had given. Like Harkness, Dang had no previous convictions but had appeared on a charge for an offence of dishonesty in the Magistrates' Court and, the charge having been found proven, he had been sentenced to pay a fine. Nevertheless, in my opinion, unless one of the other grounds of appeal is made out, the head sentence is well within the range. Counsel conceded that his submissions were directed primarily to the non-parole period.
It was submitted that the gap between the head sentence and the non-parole period was unusually short and that the proportion of the non-parole period to the head sentence was unusually high. Similar submissions were to be made later by Mr Dann in support of one of Gnjatovic's grounds of appeal.
It is true that a non-parole period sometimes invites scrutiny because it is unusual in the circumstances of the case. R. v. Krasnov and Shlakht[6] is a well known example. There are many others. But there is no standard non-parole period, standard proportion or standard gap. There cannot be: it is of the nature of a non-parole period that all the circumstances must be taken into account in order to determine the minimum time that justice requires the prisoner to serve before becoming eligible for conditional release.[7] As I said in R. v. Pope[8] in a judgment in which Phillips, C.J. and Batt, J.A. concurred:
"In VZ [1998] VSCA 32 especially [3], [12-15], [18], [22] the Court as presently constituted reviewed some of the principles applicable to non-parole periods. I do not repeat what we said on that occasion. I simply mention two salient points. First, we referred to what Winneke P called in Mulvale (unreported, Court of Appeal, Vic, No. 273 of 1995, 20th February 1996) at p 11 the need for
'discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision.'
Secondly, we said that no mechanistic or formulaic approach could be taken to the fixing of a non-parole period. Because it is the minimum time that the judge determines justice requires that the prisoner serve having regard to all the circumstances (see Power (1974) 131 CLR 623 at 629; Deakin (1984) 11 A Crim R. 88 and Bugmy (1990) 169 CLR 525 at 531, 536 and 538; 47 A Crim R 433 at 437-438, 441 and 442-443), it cannot be fixed automatically by taking two years, or one-third or one-quarter, off the head sentence: see also Saunders [2000] VSCA 58 at [28]. All the relevant factors have to be taken into account and they may be many and varied."[9]
[6](1995) 82 A.Crim.R. 92.
[7]This has been repeatedly affirmed by the High Court: see the cases cited in the passage about to be quoted.
[8](2000) 112 A.Crim.R. 588 at [28]. Unfortunately this report incorporated most of the footnotes into the text. The judgment as handed down is available in the Supreme Court Library and on the Internet.
[9]See also Director of Public Prosecutions v. Adajian [1999] VSCA 105 at [30] and Director of Public Prosecutions (N.S.W.) v. Bavandra (2000) 115 A.Crim.R 152 at [51].
The question is whether it was open for the judge to consider that two years and nine months was the minimum time that justice required Dang to serve before becoming eligible for parole. His antecedents and prospects of rehabilitation were important, but so too were the circumstances of the offence. A non-parole period has a penal element and care must be taken not to undermine either general or specific deterrence in cases where they are important.[10] I mention these considerations because they will be relevant to Gnjatovic's application. I need not answer the question posed at the beginning of this paragraph because, for other reasons, I consider that it will fall to this Court to re-sentence Dang.
[10]R. v. VZ [1998] VSCA 32 at [15]; see also [3] and [22]. Those factors have additional significance where a moderate head sentence has been imposed.
It is strictly unnecessary to consider any of the other grounds of appeal except ground 2. I shall say nothing of parity, simply bearing it in mind in the sentence that I ultimately propose. The general tenor of ground 1 appears from its terms. We have read the relevant evidence. I shall take that into account also. Lest it be thought that I agree with ground 7, I shall say something about it before turning to the grounds that lie at the heart of Dang's application.
Ground 7 refers to the following passage in the sentencing remarks:
"I go to some general observations. This trafficking was over a period of three and a half months. It involved some 77 police in bringing it to a conclusion wherein the offenders were arrested and, indeed, producing evidence which is of such a nature as to compel pleas of guilty. That is a use of community resources that could well be used elsewhere. I am sure the citizens of this area would find other uses for it without any difficulty. The economic cost to the community is a factor that must be taken into account."
The context should be mentioned. In the immediately preceding paragraph the judge had set out that part of Tadgell's J.A.'s judgment in R. v. Pantsis[11] in which his Honour referred to the very high proportion of criminal cases that we see in this Court that are drug-related, the pernicious consequences of drugs and in particular heroin and the importance of general deterrence.[12] In the immediately succeeding paragraph the judge referred to the degree of planning that had been undertaken to avoid detection, which in turn betokened a realization of the criminality invoked.
[11][1998] VSCA 134 at [12].
[12]See also R. v. Osenkowski (1982) 30 S.A.S.R. 212 at 215 per Cox, J. and R. v. Berisha [1999] VSCA 112.
Further light is thrown on his Honour's intention in saying what he did if one turns to the transcript of Brooks's plea. The judge put to counsel, and counsel accepted, that having 77 police involved in the investigation went to the serious nature of the crime. He referred also to the difficulty of detection. Counsel for Brooks conceded that it was relevant that the enterprise was difficult to detect and that it used up a lot of community resources. His Honour had stated his intention to take the cost to the community into account before any of the individual pleas was heard. No submissions on that subject were made on Dang's behalf.
In my opinion, his Honour's remarks exhibit no error. The scale of the police investigation was one indicator of the scale of the trafficking operation and the steps that the offenders had taken to avoid detection. It was a use of community resources that could well have been employed elsewhere. The economic cost of bringing offenders to justice is one of the detriments that their offences inflict on society. None of those factors can be said a priori to be irrelevant to sentencing. This was an appropriate case to take them into account.
Grounds 2 and 5 were argued together. The respect in which it is said that the judge erred in his approach to fact-finding is that, in the course of their pleas, he regarded Dang and his co-offenders as bearing an onus to diminish their respective roles on the balance of probabilities. In practical terms they did bear such an onus.[13] They had all pleaded guilty to trafficking between 15th August and 29th November 1999, the species of trafficking being a business of the kind described in R. v. Giretti[14] and their criminal liability being by reason of common design. The Crown did not submit that the sentences to be imposed on them should be increased by reason of their roles. Rather, Dang and other offenders submitted that the sentences to be imposed on them should be mitigated because of their limited contribution to the joint enterprise.[15] His Honour was doing no more than applying by analogy what Gleeson, C.J., Gaudron, Hayne and Callinan, JJ. said in R. v. Olbrich[16] at [24]-[28]. He recognized that in the end he might be able to make no specific finding about a particular offender's role. In my opinion, counsel for Dang at the plea was correct in accepting that that was the right approach for the judge to adopt[17].
[13]Compare R. v. Olbrich (1999) 199 C.L.R. 270 at [25].
[14](1986) 24 A.Crim.R. 112.
[15]Compare R. v. Olbrich at [26].
[16]Counsel endeavoured to distinguish Olbrich's Case on its facts but I consider that the paragraphs to which I have referred disclose principles of general application.
[17]See also and compare Ruvinovski v. R. (2000) 116 A.Crim.R. 131 at [19] - [31] and Punevski v. R. (2000) 116 A.Crim.R. 146 at [9].
The position was different if the judge made a finding as to Dang's involvement or level of participation that would operate adversely to him in the sense of justifying a longer sentence or otherwise more unfavourable disposition. In the end that is what happened. His Honour rejected Dang's assertions that he played but a minor role. That meant that he was not satisfied that he played such a role, even on the balance of probabilities. But his Honour went further. In the course of his sentencing remarks he said that he was satisfied beyond reasonable doubt that Dang had obtained the heroin which found its way to Ballarat.
Dang and the co-offender Hieu Dai Nguyen both lived at the Neale Street address. Dang claimed that Nguyen was Gnjatovic's supplier and that Dang was no more than a driver. It was Nguyen, he claimed, who brought drugs to the house. "Tommy", he said, was Nguyen. Ms Pullen submitted that his Honour was entitled to reject those assertions, and to make contrary findings on the criminal standard of proof, having regard to three occasions on which visual surveillance proved that Dang met with Gnjatovic[18], visual surveillance on the day of the arrests, 46 telephone intercepts[19], the fact that coloured balloons were found in both the master bedroom and the second bedroom of the house at Neale Street, responses Dang had given in his record of interview and the responses of Nguyen and Hower when they were interviewed.
[18]They were on 22nd October, 23rd November and 24th November. There was also visual surveillance of a meeting on 29th September 1999 but that was prior to the period of Dang's involvement in the offence.
[19]Neither the transcripts nor any statement by the police officer who monitored the intercepts was before us, but counsel pointed out that at least some of the transcripts were before the judge.
The finding that the applicant had obtained the heroin which found its way to Ballarat appears twice in the sentencing remarks. On both occasions the judge referred to a concession, made by counsel for Dang on the plea, that his client knew a source of supply and a market for illicit drugs. His Honour also said that it was conceded that his summary of Dang's level of involvement was correct. Part of that summary was that telephone intercepts and surveillance indicated that he spoke with Gnjatovic on 46 occasions and met him on 42. That, however, was not conceded. Counsel for Dang submitted that there were "42 meetings between Tommy, who could have been either of the two Vietnamese involved, and people from Ballarat." The judge also said that Dang was usually alone when he met Gnjatovic.
The judge's finding that Dang met Gnjatovic on 42 occasions, usually alone, was critical to his conclusion that Dang was Gnjatovic's supplier. It depended in part on a misapprehension as to the concessions made by counsel on the plea and in part on a view that the 46 telephone intercepts were of conversations between the applicant and Gnjatovic. Both the applicant and Nguyen were known as Tommy and Nguyen admitted that he took most of the telephone calls at the Neale Street address.[20] He said that sometimes Dang met Gnjatovic on his own but that he was present too on more than 20 occasions. Dang was with Nguyen on two of the three occasions of visual surveillance mentioned above. I am conscious of his Honour's advantage in having the whole of the depositions before him, as we do not, but, on the material to which we were referred, the finding of 42 meetings, usually alone, was not open.
[20]Counsel for Dang at the plea said that telephone conversations thought to be between Gnjatovic and his client had been shown to be between Gnjatovic and yet another Nguyen. That was not contradicted by the prosecutor and Ms Pullen did not rely on the part of Dang's record of interview that was said to be infected by that error.
There remains the concession that Dang knew a source of supply and a market. It is clear that he was actively involved on a daily basis in the supply of heroin to Gnjatovic. I accept that, if we set aside a critical finding of fact, that reopens the discretion but, so far as the head sentence is concerned, I think that no different sentence should be passed. On the judge's findings it was well within the range; even on a more cautious view of Dang's participation over a period of some seven weeks, it remains the appropriate disposition. In reaching that conclusion, like the judge, I have taken Nguyen's record of interview into account. His Honour's intention to do so was clearly foreshadowed on the plea and no objection was raised.[21] I have not relied on Hower's record of interview.
[21]Compare R. v. Halden (1983) 9 A.Crim.R. 30 and R. v. Cambareri [2001] VSCA 39 at [21]. That does not mean that counsel for Dang accepted the correctness of what Nguyen had said. He relied on at least one part of his record of interview and contested others.
It is at this point that I return to the non-parole period. In support of the contentions that a period of two years and nine months was outside the range or appellably disparate or both, Mr Croucher emphasized Dang's absence of previous convictions and the assistance that he had given to the police. They were mitigating factors on which neither Gnjatovic nor Brooks could rely, yet their non-parole periods were the same in proportion to their head sentences and identical in the case of Brooks. It is unnecessary to decide the correctness of the contentions in support of which those submissions were advanced, but I do think they should be given effect in re-sentencing. Applying the principles to which I have earlier referred, I would fix a non-parole period of two years and six months.[22]
Gnjatovic
[22]In my opinion that is sufficient to overcome any justifiable sense of grievance arising from disparity. It implies that the original non-parole period was not manifestly excessive, a reduction of three months being justified only by the necessity to re-consider the sentence for ourselves.
Gnjatovic sought leave to appeal on six grounds but ground 3 was not pursued. The other grounds read:
"1.That the sentence imposed by the learned sentencing judge was manifestly excessive.
2.That the learned sentencing judge erred in the extent to which he ordered cumulation in the circumstances of the applicant's case.
...
4.That the sentence imposed on count 4 was manifestly excessive.
5.That the learned sentencing judge failed to take into account the efforts at – and prospects of – the applicant's rehabilitation.
6.That the learned sentencing judge erred in fixing only a one year gap between the head sentence and non-parole sentence."
It will be recalled that Gnjatovic pleaded guilty to four counts: trafficking in heroin (Count 1); trafficking in cannabis (Count 2); supplying heroin to a child (Count 4) and handling stolen goods (Count 5). The sentences imposed on those counts were four years' imprisonment, nine months' imprisonment, 18 months' imprisonment and 12 months' imprisonment respectively. His Honour directed that nine months of the sentence imposed on count 4 and three months of the sentence imposed on count 5 be served cumulatively upon each other and upon the sentence imposed on count 1. That resulted in the total effective sentence of five years' imprisonment, with a non-parole period of four years, to which I have earlier referred.
Mr Dann did not argue that the sentence imposed on count 1 was manifestly excessive. Gnjatovic was the principal offender and organizer of bulk heroin purchases and their subsequent distribution. During the relevant period he purchased approximately seven grams of rock heroin daily. Of those seven grams approximately four would be consumed by Gnjatovic, Densley, Brooks and Rye, all of whom were living together. The remaining three grams would be cut into smaller deals, packaged in colour-coded balloons and sold to addicts, who would either come to Gnjatovic's house or have it delivered to them by Angwin or Brooks. Gnjatovic admitted selling heroin to 20 customers a day. During the period 12th October to 29th November 1999 approximately 3000 incoming calls to the applicant's mobile telephone were intercepted. Almost all of them were solely for the purpose of trafficking.
Whilst accepting that the sentence imposed on count 1 was within the range, counsel contended that the sentence imposed on count 4 and the measure of cumulation directed in relation to that sentence were not.
The offence the subject of count 4 was supplying a drug of dependence to a child contrary to s.71B of the Drugs, Poisons and Controlled Substances Act 1981, not trafficking to a child contrary to s.71(1)(ab).[23] It was nevertheless, obviously, a serious offence. But I accept counsel's submission that it was low on the scale. The child was 17 years old. She had several times asked the applicant to supply her with heroin and he had refused. She persisted in her request and, on the one occasion charged[24], he supplied her with a small quantity of heroin for which she paid $20. The applicant pleaded guilty and made full admissions. He is entitled to our scrutiny of the individual sentence imposed on count 4 for the reasons explained in such cases as R. v. Boucher[25], R. v. Lomax[26] and Director of Public Prosecutions v. Grabovac[27]. In all the circumstances I consider that 18 months' imprisonment was too severe.
[23]The maximum custodial penalties are 15 years' and 20 years' imprisonment respectively.
[24]In his record of interview the applicant said that he thought there had been two occasions. He was charged with only one. It was not a representative count.
[25][1995] 1 V.R. 110 at 116.
[26][1998] 1 V.R. 551 at 555 per Winneke, P. and 562-564 per Ormiston, J.A.
[27][1998] 1 V.R. 664 at 676-681 per Ormiston, J.A.
That is, however, the limit of my respectful disagreement with the judge. A measure of cumulation was plainly appropriate.[28] The effect of the directions for cumulation was to produce a total effective sentence which, far from being manifestly excessive, was well within the range. Counsel was warned that, if the Court upheld ground 4, we might take the view that there should be fresh directions for cumulation producing the same total effective sentence in order to reflect the overall criminality involved. As will become apparent from the orders proposed at the end of this judgment, that is the course I think the Court should take. It is implicit in those conclusions that I would reject grounds 1 and 2.
[28]See R. v. Mai [2000] VSCA 184 at [12]-[14] and [20], R. v. McCorriston [2000] VSCA 200 at [12]-[14], [15] and [16] and the cases there cited, especially R. v. Kostikidis and Mpehelevanas (unreported, Court of Appeal, 12th September 1996) at 14 and R. v. O'Rourke [1998] 1 V.R. 246 at 253 and 255-256.
Grounds 5 and 6 were argued together. Gnjatovic had 23 previous convictions, and one charge that was found proven and dismissed, from ten court appearances. They disclosed a pattern of serious offending from 1983 to 1985, a break until 1998 and then a number of lesser offences. The latter included retention of stolen goods as well as three charges of unlicensed driving. Together with the much more serious offences with which we are concerned, they suggest that his earlier attempt at rehabilitation had achieved little. I do not overlook the reasons for his relapse that were advanced on the plea or the report from Moreland Hall that was tendered, but I bear in mind that he was the principal offender, organizing the supply of heroin on a daily basis and its distribution to addicts in the way that I have described. There was nothing in the non-parole period that particularly invited scrutiny in the circumstances of this case. In my opinion, it was open to his Honour, applying the authorities to which I have referred in connexion with Dang's application, to consider that justice required him to serve at least four years of his sentence.
I am conscious, however, that that may not be the end of the matter. Even if a non-parole period of four years was open to the judge, might it not be said that the sentencing discretion is reopened by the conclusion that the sentence imposed on count 4 was too severe? There are arguments both ways. On the one hand, it might be said that we are doing no more than restructuring the head sentence in a way that implies agreement with the judge's view of the overall criminality involved and that that does not authorize us to reconsider the non-parole period. On the other hand, it might be said that, because the non-parole period includes a penal element, the length of individual sentences that are wholly or partly concurrent is likely to have some effect on it.[29] I find it unnecessary to decide the point because, in my opinion, if the discretion is reopened in this case, we should take the responsibility of confirming the non-parole period.
Brooks
[29]Totality may, for example, require two sentences to be concurrent, but the fact that there were two offences may lead the judge to conclude that justice requires a longer period to be served before eligibility for release than if only one offence had been committed.
Brooks seeks leave to appeal on three grounds, namely that the sentence was manifestly excessive, that the learned sentencing judge erred in finding that the applicant's role in the offence was that of a "minder" and that the sentence infringes the principle of parity. It is pleaded that the finding that the applicant was a "minder" suggested that he played a more significant part in the trafficking operation than his Honour was entitled to find. It is convenient to begin with that ground, not only because Mr Wraight argued it first but also because it has a bearing on the other two grounds.
There are two relevant passages in the transcript. In the course of the plea, counsel for Brooks submitted that his client, together with Densley and Rye, were "foot soldiers" for Gnjatovic. Counsel continued as follows and the following exchange took place:
"I don't think the Crown puts him any more in any different position to Densley or Rye in that sense, that if he was home and the phone rang he would answer it. There may be a request for drugs. That would then be passed on to Mr Gnjatovic.
HIS HONOUR: A bit more than that. He was a driver.
COUNSEL: Yes, I was going to get to that.
HIS HONOUR: And he's a solidly built man."
Counsel responded, "Yes" and continued his submissions regarding Brooks's role.
In the course of the sentencing remarks addressed to Brooks, his Honour said:
"On reading the depositions, I was left with the impression that your presence at various transactions indicated that your role, to some extent, was that of 'minder'. When I saw your physical appearance and read your previous convictions, my impression was confirmed."
His Honour went on to reject a contention that Brooks was involved only at street level for the purpose of feeding his own addiction and to conclude that his moral culpability was high, not least because of his previous convictions.
Mr Wraight submitted that the finding that Brooks was a "minder" was an adverse finding that had been factored into the sentence and a finding that was not open to his Honour on the criminal standard.[30] Ms Pullen submitted that it was not a finding but only an impression and that it had not influenced the judge. She did not, however, concede that, if it was a finding, it was not open.
[30]Although counsel referred us to R. v. Harris [1998] 1 Cr.App.R.(S.) 38 and the Victorian Sentencing Manual (2nd edition) at 852, I did not understand him to contend that the judge used "minder" as a term of art. Rather, in counsel's words, the finding or impression was that Brooks was a "heavy".
It is true that his Honour referred only to an impression and did not expressly refer in terms to satisfaction beyond reasonable doubt, as he often did when expressly making adverse findings, but I find it difficult to believe that the impression did not influence him. He referred to it in the course of the plea in the context of the applicant's role and thought it of sufficient importance to mention, and not just in passing, in the course of his sentencing remarks. In my view, the difficulty in the way of accepting Mr Wraight's submission is not that there was no finding, but that it is not shown that that finding was not open. The judge had advantages denied to us, not least that of seeing the applicant in the dock.[31] Accordingly I would not uphold the third ground, but I should emphasize that I think this matter played only a minor part in his Honour's reasoning.
[31]The other applicants attended at the hearing of the application but Brooks did not.
I do not consider that the sentence imposed on the applicant was manifestly excessive. On the contrary, in common with the sentences imposed on Dang and Gnjatovic, it was moderate. Brooks answered Gnjatovic's mobile phone and facilitated transactions by accepting money in exchange for heroin. He also delivered heroin to addicts. He was present when Gnjatovic cut heroin and when users came to Gnjatovic's house to purchase the drug. He was familiar with colour-coded balloon packaging and relevant values and drove Gnjatovic to meet his supplier when purchases of bulk lots of rock heroin were made. He was 35 at the time of sentence and had extensive previous convictions to which I shall refer when I turn, as I do now, to the issue of parity.[32]
[32]I attach no significance to the fact that, in the course of sentencing remarks covering some forty pages and dealing with eleven offenders, his Honour did not mention a psychologist's report, based on a 90 minute interview, that was tendered on the plea and read when it was tendered.
Mr Wraight submitted that there was appellable disparity if one compared Brooks's sentence with those imposed on Densley, Rye, Angwin and Dang. It is convenient to consider them in reverse order.
Even if Dang's role was greater than that of Brooks, Brooks was actively involved[33] for a similar period and their antecedents were very different. Dang, as I have said, had no previous convictions but only a single court appearance for an offence of dishonesty. Brooks admitted 56 previous convictions from 18 court appearances and two further court appearances where charges of dishonesty were disposed of without conviction. The previous convictions included 10 for drug-related offences, of which two were for trafficking in a drug of dependence. He was not to be punished again for those offences but they were plainly relevant: see R. v. McInerney[34] and Veen v. R. [No. 2][35]. He started working with Gnjatovic almost as soon as he was released from prison. There was no appellable disparity, in my opinion, as between Brooks and Dang.
[33]See [8]-[15] and [50] above.
[34](1986) 42 S.A.S.R. 111 at 113.
[35](1988) 164 C.L.R. 465 at 477-478.
Angwin was one of the seven others who pleaded guilty to the count of trafficking in heroin between 15th August and 29th November 1999. His involvement was for a period of six weeks during which, in his counsel's words adopted by the judge, he was "a knowing conduit and cover for Gnjatovic". He was 23 at the time of sentence. His Honour sentenced Angwin to two-and-a-half years' imprisonment on the count in respect of which he was a co-offender with Brooks. A measure of cumulation on another count resulted in a total effective sentence of two years and nine months' imprisonment, in respect of which a non-parole period of two years was fixed. His only previous court appearance was in the Children's Court in 1992, when two charges of offences of dishonesty were dealt with without conviction. The suggestion of appellable disparity between Brooks and Angwin is without substance.
I come finally to the appellable disparity said to exist between Brooks on the one hand and Densley and Rye on the other. Densley was 26 at the time of sentence. In 1996 she had been convicted on two charges of being in possession of a prohibited drug and fined. She had no other previous convictions or court appearances. She and Rye were the de facto partners of Gnjatovic and Brooks respectively and were living together in the same house. Her counsel on the plea endeavoured to characterize her as "[t]he loyal de facto who helped if help was needed". She would take telephone calls placing orders for drugs and would, on occasions, drop off heroin and collect the cash on Gnjatovic's behalf. She also admitted giving instructions to Angwin. Unlike Brooks, there was no attempt to limit the period of her involvement. Her motivation was said to be to feed her own habit. She made full admissions to the police. She had attempted rehabilitation from drugs in prison and had parents who would support her when she was released. She was distressed by separation from her two-and-a-half–year-old daughter.
Rye was aged 30 at the time of sentence. She had 14 previous convictions from four court appearances between 1996 and 1999. Her previous convictions were not for drug-related offences but there was an appearance in the Magistrates' Court in 1993 when charges of possession and use of cannabis were found proven and she was released on recognizance. Her involvement, as conceded on the plea, was that she sometimes acted as a driver for Gnjatovic, that she answered the telephone in connexion with the business and that she delivered heroin in exchange for money. It was said that listening device surveillance showed that she was acting under orders. Like Densley, she was addicted to heroin and, like her, she had a young child, aged 12 months, and could look forward to the support of her mother when she was released from prison. A number of reports and certificates were tendered on her behalf, including the report of a psychologist. Those materials are not before us but there is no suggestion in the sentencing remarks that they revealed any special feature in her case. Addressing Rye, his Honour said, "As with Densley, your role was limited and was related to the activities of your de facto."
The sentence imposed on both Densely and Rye was 18 months' imprisonment with a non-parole period of nine months. Their culpability was substantially less than that of Brooks and their antecedents were not comparable. Their prospects of rehabilitation were plainly better. In the course of his sentencing remarks the judge expressly rejected the submission made on behalf of Brooks that his role was on a par with that of Densley. His Honour considered that Brooks was much more heavily involved. He referred to counsel's concession that both general and specific deterrence were relevant in his case. I can readily understand why a substantially heavier sentence was imposed on Brooks than on Densley and Rye, but two points remain to be considered.
The first is the magnitude of the difference. The head sentence imposed on Brooks is more than twice that imposed on Densley and Rye. It is more than both their sentences added together. Brooks's non-parole period obviously contains a considerable component for punishment and deterrence. That is why it is unexceptionable. But the non-parole period fixed for Densley and Rye is at the other end of the spectrum. Brooks's non-parole period is nearly four times theirs. Densley and Rye were punished only a little more severely than Harkness, who was younger, had even better prospects of rehabilitation and had been personally involved for only two weeks.
The other point relates to the emphasis that counsel for Densley and Rye placed, which his Honour evidently accepted, on the position of the two women as loyal de factos. The approach of the courts to sentencing female offenders has changed over the years in reflection of the community's views.[36] The principle at stake is equality. The law cannot, and should not, be blind to human nature or to the vulnerability of persons in the position of Densley and Rye and there are other differences between male and female offenders that can legitimately affect the sentencing discretion, but it is no longer acceptable that an offender be given a different sentence solely because of his or her sex.[37] I am reluctant to attribute that error to the learned and very experienced judge in the present case. I am conscious, too, of the philosophical difficulty in asserting that Densley and Rye would not have received such lenient sentences if they had been young men dependent on Gnjatovic for drugs and accommodation. There are too many other variables.
[36]It is instructive to compare the first edition of Fox and Freiberg, Sentencing (1985) at §11.409-11.410 with the second edition (1999) at §3.712-3.715.
[37]I emphasize "solely". For example, I express no opinion on the argument that, at least in relation to some crimes, general deterrence is less important for female offenders.
There are cases where undue leniency to offenders like Densley and Rye will have the unfortunate effect of requiring appellate courts to reduce sentences imposed on co-offenders that are otherwise beyond criticism. Not without hesitation, I have concluded that this is not such a case. I have asked myself what sentences I would myself have imposed on these three offenders. That exercise has reinforced the conclusion earlier expressed that a substantial difference between Densley and Rye and Brooks was fully warranted. The fact that I might myself have made a less, but not much less, difference between them does not mean that there is such marked disparity as to engender a justified sense of grievance on Brooks's part, that is to say a sense of grievance that would be shared by an objective observer. In the end, therefore, I am of opinion that this ground fails too.
Orders
For the foregoing reasons I consider that the applications of Harkness and Brooks should be dismissed but that Dang's non-parole period should be fixed at two years and six months[38] and that Gnjatovic should be re-sentenced on count 4. On that count I would sentence him to 12 months' imprisonment, but I would direct that six months of that sentence, three months of the sentence imposed on count 2 and three months of the sentence imposed on count 5 be served cumulatively upon each other and upon the sentence imposed on count 1, resulting again in a total effective sentence of five years' imprisonment. Dang's head sentence and Gnjatovic's non-parole period should be confirmed.
[38]The reasons appear at [36] including fn. 22 above.
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