R v Maguire

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 168 of 1998

THE QUEEN

GARY DAVID MAGUIRE

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JUDGES:	WINNEKE, P., CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	23 and 24 November 1998
DATE OF JUDGMENT:	24 November 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 124

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Criminal law - Sentence - Trafficking in a commercial quantity of amphetamine on large scale - Sentence of 15 years’ imprisonment manifestly excessive having regard to applicant’s age and state of health - Sentence of 12 years substituted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Saunders	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. P.G. Priest and	Leanne Warren &
Ms. E.M. Gaynor	Associates

WINNEKE, P.:

I will invite Buchanan, J.A. to give the first judgment.

BUCHANAN, J.A.:

On 9 February 1998 the applicant pleaded guilty to a charge of trafficking in a commercial quantity of amphetamine contrary to s.71(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981 and to a charge of possession of cannabis L contrary to s.73(1)(c) of the Act. The maximum terms of imprisonment for the offences were respectively 25 years and 5 years. A plea on behalf of the applicant was made on 29 June 1998. The plea was delayed to enable the applicant to donate a kidney to a man suffering renal failure. On 1 July 1998 the applicant was sentenced to a term of 15 years' imprisonment on the trafficking charge and six months' imprisonment on the possession charge. The sentencing judge directed that the applicant serve a minimum term of eight years before he was to be eligible for parole.
The amphetamine operation of which the applicant was part was one on a very large scale. In February 1995 a huge quantity of amphetamine, some 178 kilograms, was seized in a police raid on a laboratory in Queensland. The laboratory was the factory supplying a distribution network in which the applicant occupied the position of Victorian distributor. In October 1994 the police seized 15 kilograms of amphetamine at the premises of one Sonny Otene. The applicant had left the premises shortly before it was raided. Otene was also involved in the distribution of the drugs. It appears that his position was subordinate to that of the applicant. Otene seems to have been engaged in the distribution of the drug to outlaw motorcycle gangs, while the applicant, according to his counsel at the plea, intended to deal principally with truck drivers.
A number of persons were charged as a result of the breaking up of the amphetamine operation. Most of them were dealt with in Queensland. One Barrow, who was in charge of the manufacturing of the amphetamine in Queensland, was dealt with in Queensland. A man called Vinall was described by the applicant's counsel as "the top distributor". Barrow was sentenced in a Queensland court to a term of imprisonment of 20 years and was eligible for parole after serving 10 years' imprisonment. Vinall was sentenced to 12 years with a minimum of five years, receiving a substantial discount for acting as an informer. His term also will be reduced by remissions. Otene, who had prior convictions, was sentenced to a term of nine years' imprisonment and a non-parole period of seven years was set. Otene was something like half the age of the applicant.
The applicant is 60 years of age. He has no prior convictions. Most of his working life has been spent in trucking, operating as an owner-driver or as an owner of a fleet of trucks. A large business with some 40 trucks run by the applicant failed in the 1980's. The applicant began again with a couple of trucks in partnership with his daughter and her husband. That business failed in the early 1990's and as a result his daughter and son-in-law lost their house.
The applicant's family has always been important to him. He has been happily married for almost 40 years and has four children.
The opportunity to participate in the amphetamine operation came at a time when the applicant needed money for himself and his family. However, he participated in it willingly, indeed wholeheartedly. The applicant was brought up as a Roman Catholic, but became a devout Baptist. While he was on remand he met a man who was dying from kidney failure. The applicant donated a kidney in an entirely altruistic gesture, which I take to signify the applicant's changed attitude to his fellow citizens.
Evidence was led on the plea of the profound effect which imprisonment and separation from his family had on the applicant, and of his intense shame. One witness, a member of the Prison Fellowship, said:
"When I first met Gary Maguire I would say he was the most
shattered, devastated person I had ever met in my life.
She spoke of:
"His devastation of being separated from his family, the grief that he caused his family, being very close - I would gather a very, very close family ..."
Other witnesses gave similar evidence. Dr Burden, a respiratory physician who treated the applicant, gave evidence that the applicant suffered from asthma and emphysema. He said the applicant's condition was serious and that the stress of being incarcerated would aggravate his condition.
The applicant seeks leave to appeal against his sentence. There was originally but one ground of appeal, that the sentence was manifestly excessive. Recently the grounds of appeal were amended. It is now said that the sentences were not merely excessive but crushing, and insufficient weight was given to the applicant's state of health, his pleas of guilty, his remorse and prospects of rehabilitation, that the sentencing judge erred in taking into account the road safety implications of amphetamine use by truck drivers when there was no evidence of any adverse effect, that the sentencing judge gave too much weight to general deterrence and that the sentence offended the principle of parity.
I put to one side the sentencing judge's reliance on the effect of amphetamines on truck drivers because the plea was conducted on the basis that the use of amphetamines by truck drivers posed a danger to other road users. Counsel who then appeared for the applicant said the practice was dangerous and when the sentencing judge remarked, "When I drive up the Hume Highway and see one of these behind me [referring to truck drivers] I hope he hasn't been taking the stuff", counsel rejoined: "As do we all". I do not think that in the light of those concessions the applicant can now complain that the sentencing judge proceeded on the basis that the applicant's chosen market posed a threat to the safety of other road users.
However, I do consider that the sentence imposed on the applicant was excessive, if not crushing, having regard particularly to his age and the effect of imprisonment upon him.
As I have said, the applicant is 60 years of age. If he serves his full term of 15 years he will emerge from prison at the end of what is likely to be his useful life. As Winneke, P. said in R. v. Revell (unreported, Court of Appeal, 19 February 1996), at p.11 of the reasons:
"The fixing of a non-parole period does not diminish the full impact of the head sentence. This Court has frequently said that the head sentence is to be calculated on the basis that the prisoner will serve the full measure of punishment."
See also R. v. Bolton and Barker [1998] 1 V.R. 692, at p.696; R. v. Yates [1985] V.R. 41, at pp.45-6. In the latter case the majority of the Court said, at p.48, of a sentence of ten years with a minimum of eight years imposed on a 68-year-old man:
"The word 'crushing' in this context connotes the destruction of any reasonable expectation of useful life after release. Acting upon the principle that he might have to serve the whole of the term imposed, the sentence is in our opinion clearly crushing."
I think the same can be said of the sentence imposed on the applicant.
In my view the minimum period of eight years set by the sentencing judge is also excessive, indeed crushing, when the health of the applicant is taken into account. He is and is likely to remain chronically ill. It is unlikely that, on emerging from prison at the age of 66 with a respiratory condition that sees him puffing at the slightest exertion, he will have any useful life left to him.
It appears that the sentencing judge imposed a sentence which punished the applicant as the Victorian distribution manager of the amphetamine operation in the light of the sentences imposed on Barrow, Vinall and Otene. I would not dispute that the sentence is in conformity with those other offences. However, the sentence does not take into account circumstances peculiar to the applicant - his age, his state of health, his pleas of guilty and his lack of prior convictions. In my view those circumstances require that he be dealt with in a manner which does not simply treat him as the Victorian manager of the operation.
The crime itself calls for a significant term of imprisonment, for the applicant played a major role in an enterprise that brought, or at least had the potential to bring, a huge quantity of drugs on to the market and also had the potential to deleteriously affect the health and lives of a large number of people. The age and state of health of the applicant cannot remove the need for general deterrence. An appropriate balance has to be kept between the criminality in question and considerations personal to the applicant. See R. v. Sopher (1993) 70 A.Crim.R. 970.
In the exercise of the re-sentencing discretion I would impose a term of 12 years' imprisonment for the offence of trafficking. The sentence for possession imposed by the sentencing judge was concurrent, and for this reason I would not interfere with it. I would fix a minimum term of six years before the applicant is to be eligible for parole.

WINNEKE, P.:

I agree.

CHARLES, J.A.:

I agree.

WINNEKE, P.:

The formal order of the Court will be that the application for leave to appeal against sentence is allowed. The appeal will be treated as having been instituted and heard instanter and it too will be allowed.
The sentence imposed by the learned judge below is quashed. In substitution for that sentence this Court imposes sentence as follows. On the offence of trafficking in a commercial quantity of amphetamine, the applicant is sentenced to a period of 12 years; for the offence of possessing a drug of dependence, the sentence imposed by the learned judge below of six months' imprisonment is confirmed. The total effective sentence is therefore 12 years' imprisonment. The Court directs that the applicant serve a minimum of six years' imprisonment before becoming eligible for parole.
The Court declares pursuant to s.18 of the Sentencing Act that a period of 778 days has been served by the applicant pursuant to the sentence imposed and the Court directs that that declaration and its details be noted in the records of the Court.

[1998] VSCA 124

24 November 1998