R v James
[2003] VSCA 13
•24 February 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 55 of 2002
No. 54 of 2002
No. 56 of 2002
| THE QUEEN |
| v. |
| TRACY LEE JAMES, RICKY PETER MERETT and DANNY MARK MOUSLEY |
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JUDGES: | BATT, BUCHANAN and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 February 2003 | |
DATE OF JUDGMENT: | 14 February 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 13 | |
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Criminal law – Sentencing – Manifest Excess – Plea of guilty – Failure of sentencing judge to refer to plea in sentencing remarks – Whether this demonstrates failure to take plea of guilty into account or give it sufficient weight in sentencing disposition – Whether undue weight given to prior convictions – Whether sufficient weight given to principles of parity – Whether period of cumulation is excessive – Whether sentence imposed was beyond statutory maximum – Whether “small quantity” of cannabis not possessed for any purpose relating to trafficking – Drugs, Poisons and Controlled Substances Act 1981 (Vic.) s 73(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant James | Mr R. Richter, Q.C. | Lethbridges |
| For the Appellant Merett | Mr M.J. Croucher | Leanne Warren & Associates |
| For the Appellant Mousley | Mr G.F. Meredith | Victoria Legal Aid |
BATT, J.A.:
I will invite Chernov, J.A. to deliver the first judgment in these appeals.
CHERNOV, J.A.:
On 24 January 2002, the appellants, Tracy Lee James, Ricky Peter Merett and Danny Mark Mousley, who are now aged 40, 43 and 43 respectively, pleaded guilty in the County Court at Melbourne to respective presentments which charged each of them with drug related offences allegedly committed by them variously in late 1998 and early 1999. The relevant counts are summarised in the table below, as are the applicable penalties and the sentences that were imposed. The first appellant, James, admitted numerous prior convictions involving dishonesty and other serious offences. They include obtaining property by deception, forgery, uttering, theft, handling stolen goods and various drug offences, not including trafficking. Notwithstanding the large number of convictions, she had not been imprisoned. The second appellant, Merett, and the third appellant, Mousley, had no relevant prior convictions. I now set out the table to which I have referred, below which I also set out the total effective sentence imposed on each of the appellants and the non-parole period relating to each.
TABLE
COUNT JAMES MERETT MOUSLEY PENALTY (STATUTORY MAXIMUM) 1. Trafficking in a drug of dependence 4 yrs imprisonment 3 yrs 6 months imprisonment 3 yrs imprisonment s.71AC DP&CS Act (15 years) 2. Trafficking in a drug of dependence (Cannabis L – “substantial amount”) 2 years imprisonment (1 year cumulation on Count 1) 18 mths imprisonment (1 year cumulation on Count 1) s.71AC DP&CS Act (15 years) 3. Trafficking in a drug of dependence (Cannabis L – 2.4g) 8 mths imprisonment (cumulative on Count 1) s.71AC DP&CS Act (15 years) 5. Possession of a drug of dependence (Cannabis L – 10g) 2 mths imprisonment s.73(1) DP&CS Act (5 years) 6. Possession of a drug of dependence (Cannabis L – 4g) 2 mths imprisonment s.73(1) DP&CS Act (5 years)
TES 5 yrs 4 yrs 6 mths 3 yrs 8 mths
NPP 3 yrs 6 mths 3 yrs 2 yrs 6 mths
On 24 January and 22 February 2002, a plea in mitigation was made on behalf of each of the appellants, and in that context material was tendered which related to their personal circumstances. On 1 March 2002, his Honour sentenced the appellants to terms of imprisonment shown in the above Table. On 15 March 2002, each appellant filed a notice of application for leave to appeal against sentence, and on 16 August 2002 a judge of this Court gave leave to the appellants pursuant to s.582 of the Crimes Act 1958 to appeal against their respective sentences.
A co-offender, Robyn Margaret Lunt, who is the mother of the first appellant, also pleaded guilty before the same sentencing judge to one count (count 4) of trafficking, in early 1999, a drug of dependence, namely, cannabis. The offence involved the supply by her of a number of immature cannabis plants to the first two appellants for use in their trafficking operations which are described later. His Honour concluded that the involvement in this illicit transaction was limited. The Crown conceded that her participation in the drug trafficking enterprise that was conducted by the first two appellants was substantially less than that of the three appellants and did not claim that an immediate custodial sentence should be imposed on her. His Honour sentenced Ms Lunt to six months' imprisonment which he suspended for a period of twelve months. No appeal was sought to be brought against that sentence.
For completeness, I mention that there were two other co-offenders, Kelly La Mude and Sandra Masoe, who also pleaded guilty to a number of drug offences that related to the appellants’ trafficking operations, and they were sentenced on 5 October 2000 in respect of their offending conduct by another County Court judge.
I will deal later with the grounds of appeal that are relied on by each appellant. For present purposes, however, it is sufficient to describe them in broad terms. In her appeal, the first appellant relies on three grounds, namely, that the sentence is manifestly excessive, that the learned sentencing judge failed to give sufficient weight to certain mitigatory matters and that he gave undue weight to her prior convictions. The four grounds on which the second appellant relies are substantially similar, except that he also claims under cover of ground 3 that his Honour was not entitled to order cumulation, or alternatively, the period of cumulation that was ordered was excessive[1]. The six grounds on which the third appellant relies claim that the total effective sentence is manifestly excessive (ground 1) and in particular, that the sentences on counts 3 and 5 are manifestly excessive (grounds 2 and 3). It is also alleged under cover of ground 4 that his Honour failed to give sufficient weight to the principles of parity between the co-offenders and, under cover of grounds 5 and 6, it is alleged that the sentences imposed on counts 5 and 6 were beyond the statutory maximum. Ground 7 asserts that his Honour erred in ordering cumulation, or alternatively ordering cumulation as he did[2].
[1]Grounds 2 to 4 were added by leave of the Registrar on 5 February 2003.
[2]Grounds 5 to 7 were added pursuant to leave given by the Registrar on 5 February 2003.
I now turn to describe briefly the circumstances relating to the offending conduct of the three appellants. Between November 1998 and May 1999, the Victoria Police Drug Squad conducted an operation codenamed “Moray” which was concerned with targeting the drug trafficking activities of the three appellants and their co-offenders. It was a large scale, continuous, operation which involved nearly 13,000 telephone intercepts, and a significant number of surveillance and undercover operations. As a result of the evidence gathered during this operation, the three appellants and their co-offenders were initially charged with various drug offences, including trafficking drugs in commercial quantities, but we are now principally concerned with the criminal conduct of the appellants which forms the subject of the counts on the presentment that was before his Honour and to which the appellants pleaded guilty. The details of the appellants’ relevant activities are set out in the Crown’s written opening at the hearing of the plea in mitigation which was marked by his Honour as Exhibit A. It is not necessary to reproduce those details here. For present purposes it is sufficient to note the following. Count 1, to which all three appellants pleaded guilty, is a Giretti[3] count which alleges that, between 20 November 1998 and 28 May 1999, they engaged in the ongoing and continuing business of trafficking in amphetamine. Count 2, which relates to the trafficking in of cannabis by the first two appellants between 3 December 1998 and 28 May 1999, is also a Giretti count. Although in terms of hierarchy, the third appellant was on a rung lower than his two co-offenders, he was an important participant in the trafficking operations. The first two appellants were equal proprietorial partners in the operation, controlling the obtaining and distribution of amphetamines (and cannabis) and trafficking the drugs through a number of persons who were subservient to them, including the third appellant, who was the principal salesman, and, inter alia, Ms La Mude, who also sold drugs on their behalf. Although the first two appellants were considered by the learned sentencing judge to have been “equal partners” in the criminal undertaking, the telephone intercepts demonstrate that the second appellant was (to the knowledge and approval of the first appellant) “pushing large quantities of pure amphetamine and cannabis and was a co-ordinator and supplier of amphetamine and cannabis to lower level dealers and users”[4]. It is apparent that the quantity of amphetamines trafficked by the three appellants and the quantity of cannabis dealt with by the first two appellants was considerable, notwithstanding that, in the end, the Crown did not allege that commercial quantities were involved. The appellants themselves conceded that the amount trafficked by them was significant.
[3]The expression derives from R. v. Giretti & Giretti (1986) 24 A.Crim.R. 112.
[4]Exhibit A at 16.
Count 3 relates to the seemingly gratuitous supply by the third appellant of three grams of cannabis to a covert police operative on 15 February 1999 after the police operative had a little earlier paid $1,900 for half an ounce of amphetamine. On 2 May 1999, after the police intercepted the third appellant’s vehicle and located in it 33 grams of amphetamine (which formed the subject of count 1) and some equipment that was suitable for use in a drug distribution operation, they searched his home and found there 10 grams of cannabis. Possession of that cannabis by the third appellant formed the basis of count 5. Count 6 relates to the finding of 4 grams of cannabis by the police in the course of their execution of search warrants at the third appellant’s home.
After the first and second appellants were arrested on 28 May 1999, they took part in a taped record of interview in which they both made “no comment” answers to questions put to them. A like position applied in respect of the third appellant.
I now turn to the personal circumstances of the appellants as they were disclosed in the material before the learned sentencing judge. The first appellant was an asthma sufferer when she was young and was brought up in an environment where physical, psychological and sexual abuse were commonplace. Her father was described by her as a violent man who abused alcohol and who inflicted considerable physical harm on all members of the family. It was also said that he sexually abused her sister and tried to do the same to her. Later she was physically abused by some of her de factos and at one stage, when she was aged 20, she was admitted to the Footscray Psychiatric Hospital for treatment. She became pregnant when she was in her teens, and shortly prior to that time, when she was 13 years of age, her father developed a relationship with another woman. As a consequence, he ordered the family to leave their home in order to make way for that woman and her children. Her mother suffered a mental breakdown and was admitted to Royal Park Psychiatric Hospital and diagnosed with schizophrenia. Notwithstanding the circumstances which militated against a close family relationship, the first appellant remained close to her mother and siblings. Her father, whom she continued to see from time to time notwithstanding his treatment of her and the other members of the family, was brutally murdered in 1995 and that, too, had a traumatic effect on her.
After her treatment at the Footscray Hospital, she developed a relationship which lasted for some 13 years and which was not marked by physical violence. That relationship, however, was terminated by the man in 1998, causing her significant emotional distress. She then developed a relationship with the second appellant and it seems that she was again subjected to some physical abuse.
Although the first appellant had periodically abused alcohol, she was generally not a user of drugs. Nevertheless, she was no stranger to the drug scene by the time police operation “Moray” was implemented. Her 23-year-old daughter had been a heroin addict for some time and worked as a prostitute to support her addiction. In the circumstances, the first appellant has had the care of her daughter’s four-year-old son for most of his life. She also has a 20-year-old son who was addicted to heroin but who seems to have undergone successful rehabilitation in that respect at Barwon Prison.
In sentencing the first appellant, his Honour had regard to her prior convictions and that they had been recorded over a significant period of time and said that this “limited” the leniency that could be extended to her. His Honour nevertheless accepted that, after her arrest, she had successfully embarked upon a rehabilitation process in the course of which she formed a new relationship and was involved in community activities with her children and assisted her younger son in his sporting and other endeavours. His Honour also took into account the fact that, although the first appellant was not a habitual user of amphetamines, she was clearly aware of the seriousness of her conduct (and no doubt of the very harmful effects of the drugs on their users and of the ruination they bring to a wide range of people associated with them). His Honour found that the first appellant entered into the trafficking arrangement substantially for the purpose of making money (principally to finance the building of a new home). This, his Honour said, was a factor that made her offending a serious example of this type of criminal conduct and which called for a sentence that strongly reflected the principles of general and specific deterrence.
The second appellant has been a truck driver for most of his life and had a sound record. His Honour received in evidence a report from Jeffrey Cummins, a clinical psychologist, which set out the personal circumstances relating to that appellant. It is plain that the sentencing judge had regard to it when sentencing him. In particular, his Honour noted that, as an owner-driver, he had experienced the “ups and downs” of the trucking industry and at one stage was compelled to sell his family home in order to keep his business afloat. Difficulties encountered in his trucking business and in obtaining work led to the breakdown of the second appellant’s marriage approximately six years ago, although he has kept in touch with his wife after their separation. Shortly after the separation, he established a relationship with the first appellant which lasted some twelve months, although he continued to maintain his own accommodation, living with her only on an intermittent basis. His Honour also noted that, although the second appellant had been a user of amphetamine for a considerable period, after his arrest, with the assistance of Ms Bryant, a counsellor, (and according to her evidence), he ceased using amphetamine in about September 2001 and “succeeded in forging for [himself] a path to rehabilitation”.
His Honour sentenced the second appellant on the basis that he was a person of previous good character and accepted that his offending behaviour has been out of step with his past conduct and that he entered into the criminal transactions in question at a time when he was emotionally vulnerable. His Honour further accepted that the second appellant was in anguish about the effects a gaol sentence would have on his future and in particular how it would affect his relationship with his sons. His Honour considered that the second appellant recognised that he should not again become involved in drug trafficking and generally viewed him as having reasonable prospects of rehabilitation. Nevertheless, the learned sentencing judge was of the view that the offending amounted to a serious breach of the criminal law which called for the imposition of a sentence that strongly reflected the operation of the principles of specific and general deterrence.
In sentencing the third appellant, his Honour had regard to the evidence presented on his behalf, including the report of 11 January 2002 of Ms Warren, a forensic psychologist. So far as is relevant for present purposes, the judge recognised that the appellant had a good work record and was to be sentenced as a person of good character notwithstanding his (few) prior convictions. The third appellant used amphetamine during a significant period of his life, but the frequency of its use intensified markedly after approximately 1996 because of his apparent reliance on drugs to maintain his efficiency levels during the long hours of driving his concrete truck and to cope with his failing marriage. This increased use of amphetamine, his Honour found, resulted in the third appellant becoming heavily addicted. In the end, he lost his marriage, his concreting business and generally, control of his life. His Honour was told that, since approximately 1998, he lived the life of a junkie; he had no job, no permanent address and often slept in his car. Although he had a good relationship with his mother, since she re-married he could only have limited contact with her because her husband did not want him in his home due to his drug addiction. Nevertheless, his mother seemed to remain supportive of him and was present in court during the hearing of the plea in mitigation.
It seems that his Honour accepted that the third appellant participated in the offence with a view to gaining easier access to amphetamine rather than for profit. His Honour was also told that, essentially, the third appellant did not traffic at random but supplied the drug to a relatively limited number of purchasers who were known to him and who were not youthful. As I have previously mentioned, the third appellant was sentenced on the basis that, in the hierarchy of drug operations in which he was involved, he was on a lower rung than the first two appellants, being the principal salesman in the enterprise rather than an entrepreneur.
I now turn to deal with the submissions made on behalf of the appellants in support of their grounds of appeal and I do so in the order in which they were argued.
Second appellant
By arrangement between the parties at the Bar table, it was agreed that the second appellant’s counsel, Mr Croucher, would make his submissions ahead of Mr Richter who appeared for the first appellant. I therefore turn first to Mr Croucher’s submissions.
Grounds 1 and 2 – manifest excess; insufficient weight to relevant factors
Grounds 1 and 2 were argued together. It was first submitted for the second appellant that his Honour failed to give sufficient weight to a number of relevant mitigating factors for sentencing purposes (ground 2).
Ground 2(a) – plea of guilty, remorse
In that context, it was submitted (under cover of ground 2(a)) that his Honour failed to give sufficient weight to the second appellant’s plea of guilty and to his remorse and, in particular, to the fact that his offer to plead guilty was made early in the proceedings, namely, towards the end of 2000, yet the plea was not heard until January 2002. It was said that, because the second appellant continued to be prepared to plead guilty throughout that period, this was an indication of his remorse, a factor that was also manifested by his plea of guilty. It was further said that, although the learned sentencing judge referred at the outset of his reasons to the appellant having pleaded guilty to counts 1 and 2, he made no further reference to it or to the appellant’s remorse elsewhere in his sentencing remarks, and that this showed that he did not give sufficient weight to those mitigating factors for sentencing purposes. Counsel argued that it was important for his Honour to have done more than simply mention the plea of guilty in the course of identifying the relevant counts, and his failure to deal with those matters specifically, indicates that he may have overlooked them.
It is trite that the plea of guilty ordinarily demonstrates at least some remorse on the part of the offender and that both matters, that is to say, the plea of guilty and remorse, constitute significant mitigating circumstances which ordinarily entitle the offender to a sentencing discount. His Honour is an experienced trial judge and would undoubtedly have been aware that he was required to take into account for sentencing purposes these mitigating factors. It is also relevant to note, as Mr Elston for the respondent submitted, that the judge took a generous view of the appellant for sentencing purposes and, as has already been mentioned, referred specifically in his sentencing remarks to the fact that he had pleaded guilty to counts 1 and 2. All these circumstances, it seems to me, point to his Honour having taken into account for sentencing purposes the mitigating factors referred to earlier. It should be mentioned for completeness that the learned sentencing judge was involved in the management of this case by way of management conferences and the like and was thus likely to have been aware of relevant developments in the case including the second appellant’s offer in or about December 2000 to plead guilty to counts 1 and 2 as they were ultimately formulated. Furthermore, merely because his Honour did not explicitly state in his sentencing remarks that he had regard to each of the above mitigating factors does not mean that he did not have regard to them - see, for example, R. v. Dole[5]; R. v. Brooks[6]; R. v. Roy[7]; and R. v. Gillick[8]. In State of Victoria v. Bacon[9], Winneke, P. (with whom Ormiston and Phillips, JJ.A. agreed) said in the context of a situation not dissimilar to the present one[10]:
“It should not be thought that because the trial judge does not specifically refer to every piece of relevant evidence, or every submission made, in deciding what was essentially an issue of fact, he has, therefore, failed to have regard to those pieces of evidence or those submissions.”
[5][1975] V.R. 754 at 767 per McInerney, J.
[6][2000] VSCA 188 at [12, 13] per Callaway, J.A.
[7](2001) 119 A.Crim.R. 147 at 149.
[8](2001) 125 A.Crim.R. 395 at 398 per Buchanan, J.A.
[9][1998] 4 V.R. 296.
[10]At 282.
It was suggested by the second appellant’s counsel that the passage of some five weeks between the plea and sentence may have resulted in his Honour overlooking the appellant’s plea of guilty, but in my view there is no basis for such a suggestion. If anything, the time taken by his Honour to reflect on the sentence probably demonstrates that he took into account all the material that was put before him.
It needs to be said, however, that it would have been helpful had his Honour specifically mentioned the above matters in his sentencing remarks. In my view it is desirable that this be done. They are important considerations for sentencing purposes and their mention in this case would have enabled the parties and this Court more readily to determine whether regard was had to them by his Honour and possibly what weight he gave them[11]. At the very least such a course may have precluded the present argument (although, no doubt, the claim that his Honour gave those factor insufficient weight would probably have been persisted with in any event). Merely to skate over these matters is likely to do little towards encouraging guilty persons to plead guilty. This may also lead to persons who have been sentenced feeling aggrieved because of the perception that the judge has failed to acknowledge their plea of guilty. Be that as it may, in this case, his Honour probably did not specifically mention those factors in his sentencing remarks because he considered that it was plain enough that he recognised them in the context of considering the submissions that were put to him on behalf of the second appellant.
[11]See, for example, Gillick at 398 per Buchanan, J.A.
The claim that his Honour did not give sufficient weight to the plea of guilty and remorse is difficult to sustain. Once one accepts, as I do, that the sentencing judge implicitly had regard to those factors for sentencing purposes, whether his Honour gave them sufficient weight can only be established from the terms of his sentencing remarks or from the fact that the sentence is manifestly excessive. In my view, there is nothing in the sentencing remarks which demonstrates such an error and, for reasons given below, I do not consider that the sentence is manifestly excessive.
Ground 2(e) - delay
It was next argued (under cover of ground 2(e)) that his Honour failed to give sufficient weight to the delay between the second appellant’s arrest and sentence. Mr Croucher correctly pointed out that this matter was not referred to by his Honour in his sentencing remarks. For the reasons I have given in the context of analysing ground 2(a), this does not necessarily establish that his Honour did not have appropriate regard to the relevant consequences of delay for sentencing purposes. The matter should be examined in its proper context. First, it seems to me that the delay here was not excessive, given the volume of material that had to be prepared by the prosecution – there were, as I have mentioned, almost 13,000 telephone intercepts and a number of co-offenders – and the time that was taken up by the negotiations between the parties as to whether the Crown would pursue its then claim that the trafficking was carried out in commercial quantities. Nevertheless, the delay of three years obviously caused some hardship to the second appellant (and to the co-offenders) bearing in mind the disruption that this caused to their lives, not to speak of the anxiety that must have been experienced by them arising out of the uncertainty of their position during that period. It is true that, during that period, the second appellant took the opportunity to pursue rehabilitation (as did the first appellant), nevertheless the overall state of uncertainty must have worked a hardship on him which warranted it being taken into account for sentencing purposes. The question of weight is, of course, a different issue.
That his Honour was aware at all relevant times of the delay in question seems obvious enough given that he participated, as I have mentioned, in case conferences and directions relating, inter alia, to this case. Furthermore, during the hearing of the plea in mitigation in relation to the second appellant, his Honour effectively contradicted the prosecutor’s claim that delay did not play a major part in sentencing. The judge said that “it must [be] … in one sense” and the prosecutor did not seek to persuade him to the contrary.
Consequently, it seems to me that his Honour sufficiently took the delay into account for sentencing purposes, at least in the “overall” sense referred to by Tadgell, J.A. in R. v. Miceli[12] and there is nothing in his sentencing remarks that indicates that undue weight was given to that factor.
Ground 2(c) – appellant’s use of amphetamine
[12][1998] 4 V.R. 588 at 591-592 per Tadgell, J.A.
It was then claimed (under cover of ground 2(c)) that his Honour failed to give sufficient weight to the fact that the appellant’s use of amphetamine was a reason for his offending. Counsel submitted that, although there was no direct evidence that the second appellant embarked upon the drug trafficking operation because of his use of the drug, this was to be necessarily inferred from his use of amphetamines (which, it was said, he obviously used in connection with, inter alia, his truck driving activities) and his subsequent trafficking in it. The basis for the claim that his Honour did not give sufficient weight to that matter was that he did not say so in his sentencing remarks. It should be said at this point that there has been no suggestion by the second appellant here or below that, unlike the third appellant, he was addicted to amphetamine at or about the time of trafficking. It was also clear from what I have said earlier, that his Honour was aware that the second appellant was a user of amphetamine and that he gave up its use according to the evidence of Ms Bryant. Moreover, it was submitted to the learned sentencing judge during the hearing of the plea in mitigation that the second appellant’s use of amphetamine was a reason for his trafficking in the drug.
It seems to me, therefore, that, in all the circumstances, in sentencing the second appellant, his Honour had regard to the fact that he was an amphetamine user during the relevant period and that it was in that context that he engaged in drug trafficking.
Remainder of ground 2
The other complaints made by the second appellant in relation to the sentences imposed on him under cover of ground 2 were effectively abandoned at the hearing of the appeal.
Ground 1 – manifest excess
I now turn to consider ground 1, namely, that the sentence imposed on the second appellant is manifestly excessive. It has been said repeatedly by this Court that this question does not admit of much debate and this was accepted by Mr. Croucher. On its face, the sentence appears either excessive or it does not. In considering whether the sentence is manifestly excessive, it is not a question of what sentence this Court would have imposed had it been in the shoes of the sentencing judge, but rather whether the sentence in question is outside the range of sentences properly available. In sentencing the appellant, a judge the judge must fix a sentence which properly reflects the gravity of the offence and of the offending, taking into account, inter alia, matters personal to the appellant and other mitigating factors as well as the applicable sentencing principles. That his Honour did this, in my opinion, is clear from his sentencing remarks. The seriousness of the crime in which the appellants engaged cannot be overstated. It has been recognised by this and other courts for a considerable time that trafficking illicit drugs to members of the community causes considerable harm, which is often fatal to users and, all too often, to members of the community that have direct or indirect contact with them. The evil effect of illicit drugs spreads through the community, usually claiming as its victims the young and those who cannot properly look after their own interests. It is the most vulnerable in our community that all too often succumb to the temptation of acquiring illicit drugs which they can least afford and it is they who so often put profits or other benefits into the hands of the cynical suppliers. The courts have said time and time again that those who pursue this evil operation should expect to be justly punished for such crime. What this Court said in R. v. Berisha[13], for example, about the seriousness of the offence of trafficking heroin, applies to trafficking amphetamine. It should also be mentioned that the seriousness of the offence is reflected in the maximum term of imprisonment of 15 years that is prescribed in relation to it by Parliament. Moreover, the principles of general deterrence assume considerable significance for sentencing purposes in a case such as the present one[14], as does the need for the Court to demonstrate its denunciation of the criminal conduct and to impose just punishment. The quantity of drugs involved in the trafficking operation in this case was considerable, as was conceded by the appellants (notwithstanding that, in the end, the Crown did not pursue the claim that commercial quantities of the drugs were trafficked). When all these matters are balanced against the personal and other mitigating factors that are relevant to the second appellant to which I have referred earlier, and regard is had to the appropriate sentencing principles, it is apparent, in my view, that the sentences imposed by his Honour on the second appellant were within the range that was reasonably available.
[13][1999] VSCA 112 at [32] per Charles, J.A. and [39,40] per Tadgell, J.A.
[14]See R. v. Pantsis [1998] VSCA 134 at [12] per Tadgell, J.A.
In the circumstances, I am of the view that grounds 1 and 2 of the second appellant’s appeal fail.
Ground 3 – excessive cumulation
I now turn to ground 3, which alleges that his Honour erred in ordering cumulation as between the sentences imposed on the second appellant in relation to counts 1 and 2, or alternatively, that the period of cumulation that was ordered was excessive. Mr Croucher first submitted that the learned sentencing judge so erred for three reasons. First, he said, the offences charged in counts 1 and 2 coincided in time and circumstance and, since both drugs were trafficked as part of the one operation, the offending in count 2 was totally subsumed by the offending in count 1. Secondly, counsel said, the period of cumulation that was ordered produced a total effective sentence that offends against totality and in particular, it fails sufficiently to reflect the second appellant’s rehabilitation and overstates the criminality of the offending. Thirdly, it was argued, a proper application of the principles of parity amongst the co-offenders dictated a lesser degree of cumulation than was imposed on the first appellant.
In my view, this claim should be rejected. As I understood counsel, the first argument was pressed but faintly. Be that as it may, I consider it to be without merit. It essentially amounts to saying that, since the offence charged by count 2 was totally subsumed by the offending charged in count 1, count 2 could not stand. But any such claim would be unfounded. The two sets of trafficking operations in which the second appellant engaged amounted to two separate offences; the trafficking in cannabis, which was pursued for profit, was a relevantly different operation from that concerned with trafficking amphetamine. Not only were two different drugs involved, but the markets were not identical, nor was the price at which the two drugs were sold. No doubt there are other differences between the two sets of offending conduct. It follows that the offending in count 2, in my view, was not subsumed by the offending charged by count 1.
I am also of the view that the second point argued by Mr Croucher should be rejected. In my opinion, the total effective sentence that resulted from the order for cumulation did not offend totality. It is plain, as I have said, that trafficking in drugs amounts to a very serious offence which, in a case such as the present, calls for a significant sentence so as to reflect at least the principles of general deterrence and the court’s strong denunciation of the crime and the imposition of just punishment. Having regard to the maximum penalty prescribed in relation to those offences, the total effective sentence is approximately 20 per cent of it. In those circumstances, it more properly reflects the criminality of the conduct than if no (or a substantially smaller period of) cumulation were ordered.
I am also of the view that, given that the first and second appellants were regarded by the learned sentencing judge as “equal partners”, it was appropriate that some cumulation be ordered in relation to their respective sentences. The difference between their personal circumstances as outlined earlier was more properly reflected in the different primary sentences that were imposed on each of them, so that each sentence produced an appropriately different base on which to build the period of cumulation. Any disparity was, as Mr Elston pointed out, properly reflected in the primary sentences imposed and not in the period of cumulation.
Ground 4: insufficient disparity with the sentence on first appellant
Under cover of ground 4, Mr Croucher attacked the total effective sentence (and the non-parole period) imposed on the second appellant on the basis that they were insufficiently disparate to reflect the differences in personal circumstances between the second appellant and the first appellant. It was said, in effect, that the cumulation ordered in respect of the second appellant was not, but should have been, disparate and lower than the cumulation ordered in respect of the first appellant. Counsel claimed that, whilst the lesser individual sentences imposed on the two appellants were consistent with parity principles, there were important differences in their personal circumstances which called for a differential, in favour of the second appellant, in any cumulation that may be ordered. (A like claim was made in respect of the non-parole period.) The differences which counsel highlighted were:
- the second appellant’s earlier indication of the plea of guilty
- his amphetamine habit as a reason for his offending-his recovery from amphetamine abuse and his prospects of rehabilitation generally
-the delay not being attributable to the second appellant
-his lack of relevant prior convictions
-his loss of contact with his children as a result of incarceration.
In my view, however, the differences identified by the second appellant do not justify the claim made on his behalf that the total effective sentences (and the non-parole periods) referable to the first and the second appellant are insufficiently disparate. Essentially, the same or the same kind of personal circumstances that have been identified by counsel as applying to the second appellant, can also be said to have applied to the first appellant, such as the relatively early plea of guilty, progress towards rehabilitation during the period of delay, the delay itself and family hardship arising out of imprisonment. A relevant distinction between the personal circumstances of the two appellants lies really in their different criminal histories, and that was appropriately reflected in the fixing of the individual sentences.
Consequently, in my view, the second appellant’s arguments in support of ground 4 must be rejected.
It follows that, in my opinion, notwithstanding the able arguments of Mr. Croucher, the appeal of the second appellant should be dismissed.
First appellant
Grounds 1 and 2 – manifest excess; insufficient weight to relevant factors
I now turn to the first appellant’s case. It was first submitted (under cover of ground 2) that his Honour failed to give sufficient weight to a number of relevant mitigating factors for sentencing purposes. More specifically, as Mr Richter explained, the first appellant’s primary complaint was that there was lack of parity between the sentences imposed on the first two appellants. The second primary complaint was that the sentences imposed are manifestly excessive and that this reflects his Honour’s failure to give due weight to a number of mitigating factors.
Ground 2(a) – insufficient parity
Thus, Mr Richter first argued lack of parity (under cover of ground 2(a)). He submitted that it was accepted by the Crown and by his Honour, as can be seen from his sentencing remarks, that the offences that were committed by the first and second appellants were “exactly the same” and that, as equal partners, they were “equally culpable”. Nevertheless, said counsel, there was considerable disparity between the sentences so that the first appellant had a justifiable grievance in being sentenced to longer sentences and minimum term. It was argued that this disparity could not be properly explained away by the differences in their prior convictions. It was said for the first appellant in that regard that, although she had been previously convicted of a number of offences, some of them were unrelated to drug trafficking and were, therefore, not relevant, while many others were of such age as to be also of little relevance. Mr Richter effectively submitted that his Honour failed to analyse the prior convictions for the purpose of determining their relevance to the sentencing process in which he was engaged, but merely applied them “formalistically” to the question before him. It was said that, had his Honour made a full analysis along the lines put by Mr Richter, he would, or should, have concluded that the first appellant’s prior convictions, almost wholly, were irrelevant to the sentencing considerations in her case, having regard in particular to her sound prospects of rehabilitation.
In my view, however one examines the first appellant’s criminal history, it is plain that her past criminality is not insignificant and is substantially greater than that of the second appellant (with whom she might be said to be otherwise on an equal footing for relevant purposes). I have referred earlier to the categories of the first appellant’s prior offences which go back to May 1980. This aspect of her history makes it plain that she not only disregarded the law for over 15 years, but that she rejected numerous opportunities to rectify the position and continued to offend until July 1996. That she was not imprisoned for any of these offences (other than perhaps for a very short minimum period) merely demonstrates that the courts have been lenient to her – perhaps too lenient – and that she abused over many years the leniency that was extended to her. In the circumstances, his Honour was entitled to put the first appellant’s prior convictions on the scales, with the result that they tipped against her in relation to the second appellant, thereby producing a longer sentence in her case notwithstanding that, as Mr Richter said, they were, or could be regarded as being, equal in many other relevant respects.
In my view, therefore, this ground fails.
New ground 2(e)
Mr Richter then sought to argue that, in his sentencing considerations, his Honour failed to have regard to the three-year delay to which I have referred earlier. The learned presiding judge, however, pointed out to him that this complaint was not the subject of any of the first appellant’s grounds of appeal. In the result, counsel applied for and was granted leave to amend ground 2 by adding paragraph (e), which reads: “delay between arrest and sentence”.
In the context of arguing this ground, Mr Richter essentially adopted the arguments in relation to it that were put to us by Mr Croucher and to which I have referred earlier. Additionally, it was claimed for the first appellant that the effect of the delay on her was greater than it was on the second appellant. It was said that the first appellant effectively became the mother of her young grandson and that a strong relationship developed between them during this period. Thus, said counsel, the grandson came to regard the first appellant as his mother and he, his natural mother and the first appellant wanted and continued to wish that the grandson would live with the first appellant. Further, it was said, in order to be able better to provide for her grandson, the first appellant undertook, for the first time, part-time employment and committed no offence during that period. In those circumstances, it was said, the delay caused the first appellant particular hardship which was greater in intensity than that likely to have been experienced by the second appellant. It was then said that, if that factor had been properly taken into account by his Honour, there would be no basis for differentiating between the two appellants in terms of sentences. It was claimed that his Honour failed to have sufficient regard to the delay and, in particular, to the hardship caused thereby to the first appellant with the consequence that he wrongly imposed longer sentences on her.
In my view, however, for reasons I gave when dealing with the submission on delay made on behalf of the second appellant, I do not accept the claim that his Honour failed to take into account sufficiently for sentencing purposes the period of delay and the hardship it caused to the first appellant. As Mr Richter himself said, the matter of delay was raised with his Honour by the first appellant’s then counsel. Moreover, as I have said, his Honour effectively rejected the prosecutor’s suggestion that delay was of no great moment for sentencing purposes. Moreover, the judge was well aware that the first appellant had formed a close bond with her grandson and that being separated from him would cause significant hardship to her and to her family.
In the circumstances, it is my view that the new ground 2(e) should fail.
Grounds 1 and 2(b) – manifest excess; plea of guilty
As I understood Mr Richter, he adopted Mr Croucher’s arguments in respect of the claims that his Honour failed to give sufficient weight to the first appellant’s plea of guilty and that the sentence was manifestly excessive. I reject those claims for the same reason that I rejected them in the case of the second appellant.
Ground 2(c) – exceptional hardship upon family
It is asserted in ground 2(c) of the first appellant’s grounds of appeal that his Honour failed to give sufficient weight for sentencing purposes to the exceptional hardship that the sentence was likely to have upon the first appellant’s family. Although it seems to me that Mr Richter did not press that point during his oral submissions to us, the ground is the subject of his written submissions. It was said that it was apparent at the time of sentencing that the family circumstances of the first appellant were such that the imposition of a custodial sentence on her would cause exceptional hardship on her family which would be greater than would be experienced by most other members of the community. It was said that his Honour failed to give that factor sufficient weight in his sentencing disposition. In my view, however, there is nothing in this claim.
It is true that, at the relevant time, it was plain that the first appellant’s family would suffer hardship if she were imprisoned: but it does not follow that such hardship would be “exceptional” as that term was explained by this Court in R. v. Holland[15]. I also do not accept that his Honour took insufficient account of the fact that the first appellant’s family would suffer hardship due to her imprisonment. This matter was obviously present to his Honour’s mind when the sentence was determined. As Mr Elston pointed out, in deciding what weight should be given to that factor, however, regard should be had to the fact that, notwithstanding her family obligations, the appellant chose to engage in a high level of trafficking drugs over a period of six months and involved herself in that criminal activity as a wholesaler and retailer. She engaged willingly in that criminal enterprise, being fully aware of the risks to which she exposed not only herself but also her immediate family.
Ground 2(d) – prospects of rehabilitation
[15][2002] VSCA 118.
Ground 2(d) asserts that his Honour failed to give sufficient weight to the first appellant’s prospect of rehabilitation. It was claimed in the written submissions filed on behalf of the first appellant that she had material prospects of rehabilitation, yet the sentencing judge failed to give sufficient weight to that mitigating factor. In my view this claim is totally without merit. Personal references were tendered to his Honour on behalf of the first appellant which essentially spoke of her progress towards rehabilitation. His Honour also recognised, as I have mentioned, what the first appellant did in the sense of helping her children and her grandson and the community work in which she was involved. As Mr Elston has correctly pointed out, there is nothing in his Honour’s sentencing remarks that indicates that he dismissed any prospect of rehabilitation for the first appellant. The learned sentencing judge merely balanced that prospect with the other matters relevant to sentencing, in particular, specific and general deterrence.
Ground 3 – undue weight to appellant’s prior convictions
It was then contended under cover of ground 3 that his Honour gave undue weight to the first appellant’s prior convictions. As I have previously mentioned, it was submitted to us by Mr Richter that a close analysis of the appellant’s previous convictions demonstrates that they were of limited relevance. In my view, this ground must also be rejected. The first appellant’s prior convictions were, in my view, not as irrelevant as Mr Richter would have it. They were not only extensive but, as I have earlier pointed out, they demonstrate her disregard for the law over a long period and her effective abuse of the leniency shown towards her by the courts. The prior convictions were plainly relevant to sentencing considerations and in particular to the question of rehabilitation[16]. His Honour took them into account but, in my view, that does not demonstrate error on his part. Importantly, the learned sentencing judge placed that factor in context, namely, in the context of the “unfortunate aspects of [her earlier] life”. Moreover, his Honour did not consider, as Mr. Richter claimed, that her prior criminal history disentitled her from receiving leniency. He merely said, with justification, that her prior convictions limited the leniency that could be extended to her.
[16]
It follows, therefore, that, in my view, the first appellant’s grounds have not been made out and, consequently, I would dismiss her appeal.
Third appellant
I now turn to consider the submission of the third appellant. It will be recalled that there are a number of grounds on which this appellant relies in support of his appeal, but for reasons which will become apparent, it is only necessary to consider three grounds, namely grounds 2, 5 and 6.
Grounds 5 and 6 claim that the sentences imposed in relation to those counts were beyond the statutory limit available in s.73 of the Drugs, Poisons and Controlled Substances Act 1981 (“the Act”). So far as is relevant, the section provides that, where a person possesses no more than a defined “small quantity” of cannabis and the possession is not related to trafficking in that drug, the court may impose a penalty of up to “five penalty units” – s.73(1)(a) of the Act. The provisions of the Sentencing Act 1991 effectively translate that penalty into a maximum fine of $500[17]. In the context of this case, possession of cannabis in any other case would attract a maximum penalty of five years' imprisonment or a substantial fine or both – s.71(1)(c) of the Act.
[17]See s.110 of the Sentencing Act 1991.
I have already described the circumstances in which the police found the third appellant to be in possession of cannabis on 2 May 1999 and again on 28 May 1999[18]. It is common ground that on each occasion the amount of cannabis involved – 10 grams on the first occasion and 4 grams on the second – constituted a “small quantity” for the purposes of the Act. It is also common ground that it was for the third appellant to have satisfied his Honour on the balance of probabilities that the offence fell within s.73(1)(a). I have also mentioned that the plea in mitigation proceeded before his Honour on the basis of the facts in Exhibit A. Relevantly, it is said in Exhibit A[19] that, after the police took the cannabis from the third appellant on 2 May 1999, he told them, in a taped record of interview, that it was for his own use. This passage in Exhibit A was not challenged at the hearing before his Honour and there was no direct evidence before the judge as to the purpose for which the third appellant held the cannabis on 28 May 1999.
[18]See [7] above.
[19]At 2.
As I have already mentioned, his Honour made it plain at the outset of his sentencing remarks that he proceeded to sentence the appellants on the basis of the “factual matters contained in … Exhibit A”. It is also relevant to mention that, as Mr Meredith for the third appellant pointed out, in her opening, the prosecutor made reference, albeit a brief one, to penalties that plainly related to counts 5 and 6. She said: “I simply indicate that the small quantities in relation to possession of cannabis charges in relation to [the third appellant] for obvious reasons”.
Against that background, Mr Meredith submitted that the third appellant should have been sentenced in relation to counts 5 and 6 on the basis that he fell within s.73(1)(a) and that, therefore, the sentences imposed in relation to those counts exceed the statutory maximum.
In relation to the sentence on count 5, there are at least two reasons which make it apparent that the third appellant should have been sentenced on the basis that the cannabis in question was held by him for his own use and that, therefore, he fell within s.73(1)(a) of the Act. First, the only evidence before the learned sentencing judge as to the purpose for which the third appellant held the cannabis was that contained in Exhibit A, namely, that he held it for his own use. There was no evidence or suggestion by the Crown to the contrary and if his Honour were minded not to accept the third appellant’s claim that he held the drug for his own use, he would no doubt have said so at the hearing in accordance with the requirement to accord procedural fairness. Secondly, as Mr Meredith pointed out, the prosecutor effectively accepted that, in relation to counts 5 and 6, the third appellant fell within s.73(1)(a) of the Act. That this was what the prosecutor intended to convey to the sentencing judge is made clear, as counsel submitted, by her reference to the amount of cannabis in each case being a “small quantity”. If the Crown wanted to say that the third appellant fell within s.73(1)(c), said Mr Meredith, there would be no purpose in the prosecutor telling the judge that the amount of cannabis involved amounted to a “small quantity”; that would only be relevant if it was considered that the offence fell within paragraph (a). (It seems to me that the fact that the amount of cannabis involved was quite small is consistent with it being held by the third appellant, then a drug addict, for his own use.)
As to count 6, as I have said, there is no direct evidence in Exhibit A to show that the cannabis in question was not related to trafficking. But the amount involved was very small and it was consistent with it being held by the third appellant for his own use. Furthermore, for reasons given earlier, the Crown proceeded on that basis and the learned sentencing judge did not indicate to the parties that he had, or may take, a contrary view.
In the circumstances, therefore, his Honour imposed a sentence in relation to each of those counts which was beyond the statutory maximum and, consequently, grounds 5 and 6 should be upheld.
As to ground 2, that alleges that the sentence imposed in relation to count 3 is manifestly excessive. I have already described the circumstances in which the relatively small amount of cannabis was handed by the third appellant to the police
operative. It might be that it was passed over as part of a commercial “good-will” gesture by the third appellant towards one of his good “customers”. Be that as it may, having regard to the fact that the third appellant pleaded guilty to count 3, which entailed his admission of all the necessary elements of the offence, the transaction must be treated for sentencing purposes as amounting to trafficking. Nevertheless, it was a very relatively minor transaction in the context of what was uncovered during operation “Moray”. In those circumstances, the sentence, which Mr Elston, consistently with his customary fairness, described as “stern”, is, in my view, outside the range that was reasonably available. Consequently, in my opinion, ground 2 should be upheld.
In light of my above conclusions, it is plain that his Honour’s sentencing discretion in relation to counts 3, 5 and 6, has miscarried, thereby vitiating also the sentence imposed on the third appellant in relation to count 1. Consequently, it is not necessary to consider the other grounds on which the third appellant relied in support of his appeal. In short, his appeal should be allowed.
It is, however, necessary for this Court to re-sentence the third appellant. I would exercise that discretion by imposing on him in relation to count 1 the same sentence that was imposed by his Honour, namely, three years' imprisonment. In respect of count 3, I would impose a sentence of four months' imprisonment and would order that the third appellant pay a fine of $150 in relation to each of counts 5 and 6. I would also cumulate two months of the sentence imposed in relation to count 3 on the sentence imposed in relation to count 1 in order to reflect the criminality of the whole offending, thereby producing a total effective sentence of three years and two months. I would also order that the non-parole period be two years.
BATT, J.A.:
I agree.
BUCHANAN, J.A.:
I also agree.
BATT, J.A.:
The orders of the Court are therefore as follows:
In the appeal by Tracy Lee James, the Court orders that the appeal be dismissed.
In the appeal by Ricky Peter Merett, the Court orders that the appeal be dismissed.
In the appeal by Danny Mark Mousley, the Court orders as follows:
1. Appeal allowed.
2.Sentences imposed on the appellant in the County Court at Melbourne on 1 March 2002 are set aside.
3. In lieu thereof –
(a) the appellant is sentenced as follows:
on count 1 - to be imprisoned for three years;
on count 3 - to be imprisoned for four months;
on count 5 – to pay a fine of $150;
on count 6 – to pay a fine of $150.
(b)The Court directs that two months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 1, so that the total effective sentence is imprisonment for three years and two months.
(c)The Court fixes the period of two years as the period to be served before the appellant is eligible to be released on parole.
4.The Court declares that as at this day, 14 February 2003, the period of 369 days is the period to be reckoned as already served under this sentence and directs that the fact of the making of this declaration and its details be entered in the records of the Court.
5. The disposal order and the pecuniary penalty order are confirmed.
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See, for example, O’Bryan & Gloster [1997] 2 V.R. 714 at 718-721 per Charles, J.A.;
R. v. O’Connor[1999] VSCA 55 per Winneke, P. and D.P.P. v. Wareham [2002] VSCA 110.
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