R v Hnativ

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 121 of 1998

THE QUEEN

SIMON HNATIV

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JUDGES:	PHILLIPS, C.J., CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 1998
DATE OF JUDGMENT:	3 August 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 113

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Criminal law - Appeal against sentence for trafficking in heroin - Complaint of disparity of sentence vis a vis co-offenders sentenced after the applicant - Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. R.A. Elston	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. B.E. Walters	Slades & Parsons

PHILLIPS, C.J.:

The applicant, who is aged 24, pleaded guilty in the County Court at Melbourne on 8 May last to a presentment containing one count of trafficking in heroin (count 1), one count of possession of cannabis (count 2) and one count of theft (count 3). These offences, which were committed between 1 August 1997 and 23 October 1997, carried maximum penalties of 15 years' imprisonment and a fine of $100,000, 5 years' imprisonment and a fine of $40,000 and 10 years' imprisonment respectively. The applicant admitted 86 previous convictions from nine court appearances between April 1995 and 27 August 1997. These included 70 convictions for offences of dishonesty, including obtaining property by deception, theft, making false documents and forging a prescription.
After hearing a plea for leniency, which included viva voce evidence and reports concerning urine samples, the judge sentenced the applicant as follows:
count 1 - three-and-a-half years' imprisonment;
count 2 - a fine of $75; count 3 - a fine of $200.
A declaration was made as to 88 days' pre-sentence detention and a non-parole period of 18 months was fixed.
The applicant later lodged notice of application for leave to appeal against sentence, eventually pleading that the sentence was manifestly excessive (ground 1) and that the disparity between the sentences imposed on the applicant and co- offenders left the applicant with a justifiable sense of grievance (ground 2).
It is now necessary to set out in summary form the facts of these matters. Between 1 August 1997 and 23 October 1997 the applicant sold caps of heroin for between $40 and $50 each and half-gram quantities of heroin for $200 each. The applicant was involved in purchasing the heroin, cutting it and packaging it in various ways. He used an alias in making sales. On 1 September 1997 the police searched the applicant's rubbish bin and found packaging materials. Surveillance of the applicant showed him attending at many cars at an oval near his home. He had contacts with the occupants, both at the oval and in other locations in the northern suburbs. The applicant was on occasions conveyed to locations by a Caitlin Sayers or a Matthew Samuel Bursey. The police saw the applicant exchanging heroin for cash up to three times a day when he was under observation. The police also arranged a sale of heroin by the applicant for $200 to an undercover officer, to whom the applicant declared that there were another ten people waiting to purchase heroin. The heroin purchased by the officer was of 65% purity. Another sale to the officer of approximately half a gram of heroin for $200 then occurred; it was of 71% purity. On yet another occasion, at Eltham, the officer was handed compressed heroin in small quantities by the applicant, and this was later analysed at 61% purity. On 21 October the applicant telephoned the undercover police officer on her mobile phone, the number of which she had given to him. The applicant offered, in accordance with his previous response to her request, to put her in touch with someone else to supply heroin to her. It was arranged that they would speak the next day but they never did, and the sentencing judge found as a fact that the applicant had ceased trading prior to his arrest.
On 23 October 1997 the applicant's home was searched under warrant and much material for packing heroin and a set of scales were seized. The police also found 2.9 grams of dried cannabis and 1.9 grams of cannabis cutting in a glass of water. They also found a parking meter belonging to the City of Melbourne. Also recovered was documentation which recorded amounts of money owed to the applicant. The applicant was interviewed and admitted counts 2 and 3 but replied "no comment" to questions touching count 1. After the interview the police found five aluminium foil packages containing compressed heroin in a pair of jeans in his home.
Both Sayers and Bursey were later arrested and they admitted driving the applicant in the course of his heroin-selling business, for which they received caps of heroin as payment. Bursey admitted to this conduct between March and 22 October 1997 and Sayers made similar admissions for the period between July 1997 and 22 October 1997. Bursey and Sayers made police statements which were included in the papers provided to the sentencing judge. Charges preferred against them in this matter were still outstanding when the applicant was sentenced. A few weeks later they appeared in the Magistrates' Court at Heidelberg and they pleaded guilty to charges of trafficking heroin, and in the case of Bursey an additional charge, and received non-custodial sentences.
I now turn to the arguments of counsel in this matter. Mr Walters, for the applicant, began his submissions by giving what he called an "overall picture" of the application. He allowed that the judge had said that he had taken all relevant matters into account in composing a sentence, but he submitted the sentence on its face was manifestly excessive and thus the judicial discretion must have in some way miscarried. On the question of disparity of sentence, Mr Walters submitted that it mattered not that the co-offenders had not been sentenced at the time of the applicant's sentence, and he referred to the decision of the High Court in Jones v. The Queen (1993) 67 A.L.J.R. 376 and the matter of Lowe v. The Queen (1984) 154 C.L.R. 606 referred to therein. Again as to the matter of alleged disparity, Mr Walters did not suggest that the sentencing judge's discretion had miscarried but rather he submitted that the consequent events engendered a justified sense of grievance in the applicant, and that it was consistent with high authority that this Court was empowered in those circumstances to intervene. Counsel accepted that the co-offenders had played a less culpable role in the offences, and he acknowledged that they had assisted the authorities in making statements. But, he contended, those statements were not the linchpin of the prosecution case. He pointed out that Bursey was additionally convicted of trafficking in cannabis and it appeared that Bursey had a prior conviction for possession and use of marijuana. (There was no evidence, according to the Crown, that Sayers had a prior conviction). Counsel submitted that the trafficking alleged against them both in the Magistrates' Court was between 1 May 1997 and 22 October of that year, a period longer than that involving the applicant. On the other hand, he said, the applicant had been sentenced in November 1995 to a term in a youth training centre and, save for possibly two or three thereof, his subsequent court appearances related to offences he had committed before the youth training sentence was imposed. It appeared that in March 1996 the applicant commenced a full-time course of study at RMIT and had been allowed varying periods of release from detention and was released on parole at about the end of 1996. Continuing, Mr Walters accepted that the sentences on the co-offenders were apt in the setting of the Magistrates' Court, but he said this circumstance reinforced his argument that the sentence imposed on the applicant was manifestly excessive.
Turning to the facts of the trafficking charge, Mr Walters pointed out that sales during the police observation were to the order of up to three times a day and were to end users, according to the evidence. The use of his parents' premises by the applicant, counsel said, pointed in part to an unsophisticated operation. In any event, sales were to a small group of people the applicant knew, and the applicant had ceased trading before his arrest.
Mr Elston, for the Crown, submitted that it was clear that Mr Walters had indeed conceded that his Honour considered all matters urged on the applicant's behalf. Indeed, the judge had called them "powerful and persuasive". But, Mr Elston said, his Honour was obliged to take into account other matters, particularly the seriousness of the trafficking offence. Having regard to that seriousness and the applicant's prior record, Mr Elston submitted that a totally suspended sentence was out of the question and that the lower-than-usual non-parole period fixed showed that the learned judge had given full weight to the aspect of the applicant's rehabilitation. Mr Elston submitted that the co-offenders were "mere taxi drivers", whereas the applicant had contacts both up and down, that is, he bought from a dealer or dealers higher up and sold to users located down in the chain of sales.
In reply, Mr Walters disputed that the co-offenders were mere taxi drivers. Bursey, he said, had pleaded guilty to a charge of trafficking in cannabis, and he said that, viewed in one way, punishments administered to the applicant by the courts had moved relatively quickly to a custodial sentence.
I now turn to my conclusions, and I shall deal first with ground 2, which, it will be recalled, alleges such disparity between the sentences of the applicant and the co-offenders that the applicant was left with a justifiable sense of grievance. The Crown has accepted that this Court could intervene if events subsequent to the applicant's sentence operated to produce the relevant sense of grievance. It must be remembered that the sentences imposed were imposed in two different sentencing regimens. In relation to the trafficking of heroin, the magistrate was limited to a maximum penalty of two years' imprisonment. The maximum penalty relevant to the judge was that of 15 years' imprisonment and a fine of $100,000. It has not been suggested that, in their setting, the sentences in the Magistrates' Court were unduly lenient, nor has it been disputed that there were differences between the roles of the applicant and the co-offenders, with the applicant plainly being the more culpable. So too, the co-offenders had at least evidenced a disposition to assist the authorities. It may be debated whether the term "mere taxi drivers" is appropriate for the co- offenders, but I think there is great force in the argument of counsel for the respondent that the applicant had contacts up and down in the way that I have described. Finally, there is the question of prior convictions. Taking into account the circumstances of the prior records of the co-offenders as I have outlined them, the applicant's prior background was quite different. After courts had heard some 40 charges against him he had still escaped a custodial sentence. When such a sentence was imposed on him in November 1995, he was granted generous parole and yet, within nine months thereafter, he was involved in the commission of a very grave offence indeed.
I am quite unpersuaded that relevant disparity has been made out and I would not uphold ground 2.
As to ground 1, there was much said on the applicant's behalf on the plea, and properly so. He could point to the cessation of his conduct before arrest and to his rehabilitative efforts. Mr Walters has stressed some of this material today, and it is set out in detail in his written outline, which I have read several times. The judge said, as is conceded, that he took all of this material into account. I have looked to the face of the sentence for evidence that the judge failed to do, or failed sufficiently to do, what he said he had done. Despite Mr Walters's able and economical efforts, I am unable to find such evidence. On this ground it is for the applicant to show that the sentence imposed fell altogether outside the range of those properly available to the learned judge. I am not persuaded that it did.
Prominent among my reasons for that conclusion are the continuing nature of the applicant's conduct constituting count 1, the volume of sales involved and the maximum penalty prescribed by Parliament for this offence, together with the applicant's prior record and the chances he has been given in the past by the courts.
In my opinion this application should be dismissed.

CALLAWAY, J.A.:

I do not, with respect, attach importance to the fact that the co-offenders were dealt with in the Magistrates' Court. To my mind that reflects no more than the appropriate forum for the offences that they committed in all the circumstances pertaining thereto. But there were differences between the applicant and the co- offenders, especially their respective roles and antecedents, which show that ground 2 cannot succeed. Subject to that qualification, I agree in the reasons of the learned Chief Justice and in his Honour's conclusion.

BATT, J.A.:

Subject to the qualification that Callaway, J.A. has stated, I too agree in the reasons and conclusions of the Chief Justice. I would simply add a reference, in relation to the sentencing by the Magistrates' Court, to Hansford v. His Honour Judge Neesham [1995] 2 V.R. 233.

PHILLIPS, C.J.:

The order of the Court is that the application for leave to appeal against sentence stands dismissed.

[1998] VSCA 113

3 August 1998