R v Lines
[2007] VSCA 229
•16 October 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 380 of 2006
| THE QUEEN |
| v |
| DAVID JOHN LINES |
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JUDGES: | MAXWELL P and ASHLEY and KELLAM JJA | |
WHERE HELD: | SALE | |
DATE OF HEARING: | 16 October 2007 | |
DATE OF JUDGMENT: | 16 October 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 229 | |
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Criminal law – Appeal against sentence – Appellant guilty of one count of trafficking in a drug of dependence and many summary offences – All sentences imposed on summary charges ordered to be served concurrently with the sentence imposed on the count of trafficking – Total effective sentence of six years’ imprisonment with a non-parole period of four years not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M A Gamble SC with Ms D I Piekusis | Ms A Cannon, Solicitor for Public Prosecutions |
| For the Appellant | Ms S E Cure | O’Sullivan & Ruffilli |
MAXWELL P:
Ashley JA will deliver the first judgment.
ASHLEY JA:
The appellant, David Lines, a man now aged 53, appeals by leave against sentence passed upon him in the County Court on 21 November 2006. The appellant pleaded guilty to one count of trafficking in a drug of dependence[1] and to the following summary offences – driving whilst unlicensed (20 charges),[2] dealing with property suspected of being the proceeds of crime (four charges),[3] possessing a prohibited weapon without exemption/approval (one charge)[4] and possessing a controlled weapon without excuse (one charge).[5] He admitted 78 prior convictions and two findings of guilt from 19 court appearances between July 1971 and April 2003. He was sentenced as follows:
[1]Amphetamine, contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981, maximum penalty 15 years’ imprisonment.
[2]Road Safety Act 1986, s 18(1A). Maximum penalty 25 penalty units or three months’ imprisonment.
[3]Crimes Act 1958, s 195. Maximum penalty two years’ imprisonment.
[4]Control of Weapons Act 1990, s 5(1)(e). Maximum penalty 120 penalty units or six months’ imprisonment.
[5]Control of Weapons Act 1990, s 6(1). Maximum penalty 60 penalty units or six months’ imprisonment.
Trafficking: 6 years’ imprisonment
Driving whilst unlicensed: 2 months’ imprisonment on each charge
Dealing with property suspected
of being proceeds of crime: 6 months’ imprisonment on each charge
Possessing a prohibited weapon: 7 days’ imprisonment
Possessing a controlled weapon: 7 days’ imprisonment
The learned sentencing judge ordered that all the sentences imposed on the summary charges be served concurrently with the sentence imposed on the count of trafficking. The total effective sentence was thus six years’ imprisonment. His Honour fixed a non-parole period of four years, and made a declaration that the appellant had served 194 days by way of pre-sentence-detention.
The sole ground of appeal is that the sentence is manifestly excessive.
Circumstances of the offences
The police conduced surveillance of the appellant, and premises which he occupied at Old Dookie Road, Shepparton in the period 22 February 2006 to 11 May 2006. On the last mentioned date a search warrant was executed at his premises. The appellant was also searched on his return there. He was arrested and was interviewed at the Shepparton police station. He made no admissions.
Concerning count 1, the count of trafficking:
(i)Police surveillance revealed the attendance at the appellant’s premises of some 40 vehicles a day, occurring at all hours and on each day of the week.
(ii)Undercover policemen purchased of amphetamines totalling some 25 grams from the appellant on nine occasions between 23 March 2006 and 2 May 2006. For the most part, the purchases were paid for in cash. The amounts paid totalled $4,450. On one occasion, payment was partly made in kind. The last-mentioned circumstance was the foundation for two of the charges of dealing with property suspected of being the proceeds of crime.
(iii)The appellant was frequently observed selling amphetamines to other persons.
(iv)A telephone intercept placed on the appellant’s mobile phone on 19 April 2006 identified multiple associates of the appellant. In all, and from all sources of surveillance, 21 addresses were identified as having regular contact with the appellant. Telephone interception showed that the appellant had regular conversations with associates about the sale of drugs of dependence.
(v)The search of the appellant’s premises on 11 May 2006 located equipment used in the measurement, weighing and distribution of amphetamines.
(vi)Search of the appellant on 11 May 2006 located, inter alia, about 3 grams of amphetamine.
(vii)Throughout the period of observation, the appellant took considerable measures to avoid detection. His premises were fitted with a surveillance camera. He had particulars of police vehicles used in the Shepparton area, and he had a scanner tuned to the local police channel.
I turn to the circumstances of the other offences.
In the course of the observations of the appellant, he was observed on many occasions to drive a motor vehicle. It was uncontroversial that he did not hold a driver’s licence at that time.[6] Thus the many charges of driving whilst unlicensed.
[6]Indeed, he seems never – or at most rarely – would have held a licence.
Search of the appellant’s premises on 11 May 2006, and of the appellant himself that day, resulted in the identification of property giving rise to the balance of the summary charges. The prohibited weapon was a sword. The controlled weapon was a long knife. The property suspected of being the proceeds of crime included some $2,750 in cash and motor vehicle number plates.
Pausing for a moment, it should be observed that despite the appellant engaging in much activity which unequivocally pointed to him engaging in substantial and persistent drug trafficking in the period February to May 2006, the only quantity of drugs that he could be proved to have trafficked was 27.2 grams of methylamphetamine, that quantity being established by weighing the material contained in the packages which had been purchased by the undercover policeman, and the package which was located when the appellant was searched on 11 May 2006. The approximate purity of the methylamphetamine in those packages, analysis showed, varied between eight and 18 percent.
The course of events
The appellant, as I said a little earlier, made a no comment record of interview on 11 May 2006. On 29 September 2006 he was committed for trial on a count of trafficking amphetamine. He pleaded guilty without there being any need for the committal process to run its course.
The plea hearing took place on 21 November 2006. It was then that the appellant consented to the uplifting or determination by the learned trial judge of the various summary charges, and pleaded guilty to these charges.
Sentencing remarks
The learned judge referred to the appellant’s large number of prior convictions. He said that they included, relevantly:
· A conviction in October 1988 for trafficking in cannabis L, in respect of which a fine had been imposed;
· More importantly, convictions in June 1990 for trafficking in a drug of dependence – apparently amphetamines - and for other offences, in respect of which, on appeal, a total effective sentence of five years’ imprisonment was imposed, with a non-parole period of three years.
· Convictions for trafficking drugs of dependence – amphetamine and cannabis – and other offences in September 2002, in respect of which, on appeal, a total effective sentence of 12 months’ imprisonment with a three months non-parole period was imposed
· A conviction for trafficking a drug of dependence – amphetamine – in April 2003, in respect of which a term of imprisonment of 12 months with a non-parole period of six months was imposed.
His Honour noted that the offence which was dealt with in April 2003 had been committed whilst the appellant was on bail for the offences the subject of the September 2002 sentence.
Concerning the appellant’s prior offences otherwise, the learned judge noted that they included many instances of the appellant having driven whilst unlicensed, and a number of offences of dishonesty.
His Honour described the appellant’s conduct the subject of the trafficking count as a continuing enterprise or a course [of] trade or in business of dealing in drugs, paraphrasing descriptions given by Ormiston J in R v Giretti.[7] In so characterising the appellant’s offending, the learned sentencing judge referred to the various aspects of the police investigation of which I have already made mention.
[7](1986) 24 A Crim R 112,
His Honour found that the drugs sold by the appellant and located at the time of search were ‘at street level quantities’.
Considering matters going in mitigation, his Honour noted that –
· The appellant had pleaded guilty – without the need for a committal hearing, still less a trial.
· Save for the offence committed whilst on bail, the appellant had responded well to supervision. He had not breached parole.
· The offences committed by the appellant were in the context of him being a drug user himself.
· There was no evidence that the appellant had made large financial gain out of his criminal conduct.
Turning to sentencing considerations, the judge concluded that the appellant’s prospects of rehabilitation were remote. He concluded also that general and specific deterrence were primary sentencing considerations.
It was in light of the circumstances and considerations which I have briefly sketched that his Honour imposed the sentence of which complaint is now made.
Submissions for the appellant
Before this Court, counsel for the appellant submitted that the sentence imposed on the trafficking count was manifestly excessive. She argued that -
· The quantity of drugs trafficked was indicative of street level trafficking, and was contra-indicative of trafficking for gain.
· The period of trafficking only embraced the period February to May 2006. The Crown summary, which the learned judge annexed to his sentencing remarks, was wrong when it referred to a 20 month period of offending
· The appellant has trafficked to support his own addiction, not for gain.
· The appellant had pleaded guilty at the earliest possible opportunity.
· The appellant was aged 52 at time of sentence, and had three young children and one step-child.
· An examination of pertinent authorities demanded a conclusion that the sentence was outside the available range.
Submissions for the respondent
Counsel for the respondent submitted that –
· The appellant had conducted a business of trafficking over a two and a half month period.
· The amount of amphetamine trafficked was on any view of the evidence substantial.
· A smaller quality of the drugs analysed was of 18 percent purity, which was ‘at extreme end of street level purity’, and allowed for further cutting of the drug before on-selling.
· There was evidence that the appellant had taken considerable efforts to avoid detection. He had a surveillance camera installed at his premises, had a list of the details of local police vehicles, and had a scanner tuned to the local police channel.
· This was a serious example of a serious offence. The level of the appellant’s moral culpability was ‘relatively high’.
· Save for the plea of guilty, there was little by way of mitigation. In any event, the plea had been made in the face of an overwhelming police case. In light of the appellant’s very relevant past criminal history, remorse should not be inferred.[8]
[8]Counsel cited R v Karafilowski [2007] VSCA 156, [22].
· The appellant had an appalling history of prior offending, involving repeated drugs offences.
· The appellant had learnt nothing from sentences passed for prior offences involving drug trafficking, nor had he taken advantage of leniency accorded him in the past.
· In all, although the sentence for trafficking was stern, it was within the permissible range. Further, no point could be made that the non-parole period which was imposed was manifestly excessive. Indeed, on one view, the appellant had been fortunate that the non-parole period had not been a greater proportion of the head sentence.
· Reference to sentence passed in other cases was of limited utility. The combination of the circumstances of the appellant’s case was unusual.
Resolution of the appeal
In my opinion the appeal should be dismissed. Given that the question whether a sentence is manifestly excessive does not admit of much argument, the following matters appear to me to be importance.
First, the offending was committed over a considerable period – some two and a half months - involved very many transactions, and was attended by considerable attempt to avoid detection.
Second, the seriousness of the offending was not much affected by the circumstance that the Crown was unable to prove more than an offence against s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.
Third, the appellant’s moral culpability was very considerable, notwithstanding that he himself was a drug user, and that drugs which he supplied for the most part at least, were at street level purity. Having multiple convictions for drug trafficking, and having been imprisoned for that offence, he had returned to such activity on a considerable scale.
Fourth, the learned sentencing judge was correct, in my respectful opinion, to emphasise the significance in this case, of both general and specific deterrence. The latter was emphasised by the fact that this was the appellant’s fifth conviction for drug trafficking; and that the appellant had on some nine previous occasions been sentenced to imprisonment, yet had offended once again.
Fifth, the learned sentencing judge was also correct to conclude, I consider, that the appellant’s prospects of rehabilitation were remote. He presented as a man with convictions for an array of offences spanning a period of 35 years, in respect of which offences a variety of sentencing dispositions had been exercised – all without success.
Sixth, the plea of guilty required a discount on sentence. But I do not think that it called for a substantial discount. The plea was made in the face of an indisputable Crown case. Moreover, I would not conclude that the plea was indicative of remorse. It is noteworthy that the appellant declined to identify his supplier.
Seventh, counsel for the appellant submitted, by reference to other particular sentences imposed for this offence, that the trafficking sentence, was a high one. But there was a concatenation of circumstances in the present case which, to my mind, renders the sentences to which reference was made of very limited utility.
Eighth, in my opinion the extent of the non-parole period was unexceptionable in the circumstances of this case.
I should add this. If the appellant had persuaded me that the sentence passed on the trafficking count was manifestly excessive, I doubt that I should have concluded that any different total effective sentence or non-parole period should have been imposed. I think that the appellant was fortunate that the sentences imposed on the many charges of unlicensed driving were made wholly concurrent with the sentence passed on the trafficking count. The appellant had past convictions for unlicensed driving - seven of them over a 30 year period- and it is not apparent that the occasions between February and May 2006 on which he was observed driving a motor vehicle were part and parcel of his drug trafficking activities.
MAXWELL P:
I too would dismiss the appeal, for the reasons given by his Honour.
The fact that we have been able to give judgment so soon after the conclusion of argument is not to be taken as signifying that the oral submissions have been overlooked. On the contrary, the opportunity we have had to explore and test the
arguments advanced on behalf of the appellant is an essential part of the appeal process. We have, of course, had the benefit of very good written submissions on both sides filed well in advance, and they have enabled us, as always occurs, to undertake thorough preparation and hence to be in a position to derive maximum benefit from the oral argument.
KELLAM JA:
For the reasons stated by Ashley JA, I agree that this appeal should be dismissed.
MAXWELL P:
The order of the Court is:
Appeal dismissed.
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