R v Markovski; R v Moir; R v Sheen
[2009] VSCA 65
•2 April 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No 407 of 2007 |
| v | |
| VELIMIR MARKOVSKI | |
| and | |
| THE QUEEN | No 807 of 2007 |
| v | |
| DAVID MOIR | |
| and | |
| THE QUEEN | No 931 of 2007 |
| v | |
| ANTHONY SHEEN |
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JUDGES: | DODDS-STREETON and WEINBERG JJA and WILLIAMS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 March 2009 | |
DATE OF JUDGMENT: | 2 April 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 65 | 1st Revision 7 April 2009 page 1, [1]. |
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CRIMINAL LAW – Sentencing – Co-offenders – Trafficking in drugs of dependence – One co-offender a supplier at significant level (retail and wholesale) – Whether sentencing judge erred in imposing identical sentences for counts involving different quantities of drugs – Whether cumulation and non-parole period excessive – Relevance of possessing significant quantity of a substance containing undetermined amount of methylamphetamine – Other co-offenders trafficking in partnership above ‘street level’ – Whether cumulation excessive – Relevance of perception of risk due to threats while in custody – Parity – Mitigating factors – Appeals allowed – Appellants re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell SC | Mr S Ward, Acting Solicitor for Public Prosecutions |
For the Appellant Markovski | Mr M J Croucher | Rob Melasecca |
For the Appellant Moir | Mr D A Dann | C Marshall and Associates |
For the Appellant Sheen | Mr S A Moglia | Lewenberg & Lewenberg |
DODDS-STREETON JA:
In three related appeals[1], David Moir (’Moir’), Anthony Sheen (‘Sheen’) and Velimir Markovski (‘Markovski’), appeal against the sentences passed when they pleaded guilty and were convicted in the County Court on a number of counts of drug trafficking. Moir and Sheen trafficked as partners supplying methylamphetamine and small amounts of cocaine and cannabis in various Melbourne suburbs on a daily basis in late 2005 and/or January 2006.[2] Markovski supplied Moir and Sheen with some of the drugs they trafficked. The appellants’ operations were uncovered by a covert investigation conducted by Victoria Police.
[1]Each appellant sought leave to appeal, which was granted and the appeals were heard instanter.
[2]Moir was charged with trafficking drugs of dependence between 4 January 2006 to 13 January 2006. Sheen was charged with trafficking drugs of dependence between 30 November 2005 to 14 January 2006.
MAXIMUM PENALTY
The maximum penalty for trafficking in a drug of dependence is, pursuant to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’), level 4 imprisonment for up to 15 years.
CIRCUMSTANCES OF THE OFFENDING
In November 2005, Victoria Police commenced a covert investigation into the trafficking of illicit drugs in the Werribee area. The focus of the police operation was on Sheen. The investigation involved the use of telephone intercepts, surveillance, drug purchases by covert police officers and ultimately, the execution of search warrants and seizure of drugs and related material. In the course of the investigation, the police learnt that Sheen and Moir, in partnership for at least some of their activities, had been trafficking in amphetamines, cocaine (some of which had been supplied by Markovski) and cannabis on a daily basis in Werribee, Moonee Ponds, Geelong and Melbourne.
The telephone intercepts revealed that Sheen had approximately 15 customers between 30 November 2005 and 14 January 2006. There were 19 intercepted telephone calls between Sheen and Markovski between 9 December 2005 and 14 January 2006, which indicated that Markovski supplied both methylamphetamine and cocaine to Sheen between 4 January 2006 to 14 January 2006.
Telephone intercepts indicated that Moir trafficked methylamphetamine and cocaine with Sheen on various occasions between 4 January 2006 to 14 January 2006 (including on 13 January 2006, when there were two transactions involving cocaine and three involving methylamphetamine).
A telephone intercept revealed that Sheen sold half a gram of cocaine to his son on 8 December 2005 and agreed to pick up one-and-a-half ounces of cannabis from Moir to deliver to his son on 12 January 2006. A telephone intercept of two calls on 12 January 2006 involving Sheen, Moir and Markovski was the basis for the charges of trafficking cannabis.
Between 30 November 2005 and 12 January 2006, a police undercover operative made six purchases of illicit drugs at Sheen’s premises at Werribee. Most of the purchases were from Sheen, although some involved Moir or other persons. The purchases were as follows:
1.30 November 2005: 1.1 grams of methylamphetamine for $300 from Sheen.
2.2 December 2005: 3/10ths of a gram of methylamphetamine for $100 from one Cope (arranged by Sheen).
3.11 December 2005: 2.2 grams of methylamphetamine for $400 from Sheen (Moir and another person were present).
4.15 December 2005: 6/10ths of a gram of methylamphetamine for $200 from one Simpson.
5.4 January 2006: 0.36 of a gram of cocaine from Sheen and 1.71 grams of amphetamines from Moir.
6.12 January 2006: 7 grams of methylamphetamine for $1000 from Moir (Sheen was present).
In summary, Sheen trafficked a total of 12.91 grams of methylamphetamine (of purity ranging between 2.5 per cent to 25 per cent) and 3/10ths of a gram of cocaine to an undercover operative. Moir trafficked a total of 8.71 grams of methylamphetamine and 3/10ths of a gram of cocaine. Moir was also involved in a further transaction on 12 January 2006.
On 14 January 2006, Sheen and Moir travelled to Markovski’s apartment to buy amphetamines. They took at least $3000 which they had pooled for that purpose. They met Markovski in the foyer. It seems that Sheen went up to Markovski’s apartment, while Moir remained in the car. During the course of the meeting, the police maintained surveillance of the vehicle. Sheen and Moir were subsequently arrested at 2.00 pm. They were in possession of 28 grams of methylamphetamine in two 14 gram packets. The methylamphetamine had been purchased from Markovski at a meeting on 13 January 2006 that had been arranged, and was monitored by police.
At approximately 3.15 pm, police executed a search warrant on Markovski’s apartment. Although Markovski was not present, his partner, Ms Momcilovic, was. The sum of $165,900 cash was found in the apartment, along with quantities of methylamphetamine, cannabis and plastic bags containing ‘brown powder’ and ‘white powder’. Other drug paraphernalia was located.
The sentencing judge stated that 719 grams of methylamphetamine was located in the premises in plastic packing. He stated that the police located a coffee jar containing 325.8 grams of methylamphetamine.
Before us, an Analyst’s Certificate was tendered in relation to the methylamphetamine located in the apartment. It recorded the different quantities and purities of methylamphetamine (which totalled 114 grams of pure methylamphetamine) as follows:
Item Number
Quantity of substance (grams)
Approximate purity (%) of methylamphetamine
1 (combined) 1.1 2.5 2 0.3 5 3 2.8 Not determined 4 (combined) 0.6 4 6 0.9 25 7 0.8 12 8 7.0 10 9 64.6 50 11 (combined) 48.2 40 13 (combined) 21.0 20 15 3.6 16 17 4.2 40 19 0.9 50 21 27.9 18 23 98.6 20 25 96.9 20 27(combined) 27.3 20 29(combined) 28.0 18 36 325.8 Not determined Total 760.5
The contents of the coffee jar is Item 36, with a quantity of 325.8 grams of methylamphetamine, the approximate purity of which was not determined.
MARKOVSKI
On 11 May 2007, Markovski pleaded guilty to two counts of trafficking in a drug of dependence (methylamphetamine and cocaine). He was sentenced on 15 November 2007 as follows:
·Count 1 – four years’ imprisonment.
·Count 2 – four years’ imprisonment.
Two years of the sentence imposed on count 2 were ordered to be served cumulatively with the sentence imposed on count 1, resulting in a total effective sentence of six years’ imprisonment, with a non-parole period of four years. A period of 21 days pre-sentence custody was declared as time already served under the sentence.
On 16 January 2006, Markovski participated in a police record of interview. During the interview, he admitted ownership of the $165,900 cash located at his apartment, but he did not answer questions about trafficking or the drugs located there.
Markovski’s background
The sentencing judge noted that Markovski was born in 1951 in Macedonia. He was 54 years of age at the time of the offences and 56 at the time of sentence. In Macedonia he completed four years of secondary schooling, a motor mechanic’s apprenticeship and national service. In the 1970s, he worked as a chauffeur, mechanic and driver. From the age of 21, he lived in Australia and worked as a mechanic and fitter and turner. He was married and had two sons. In 1984, Markovski was involved in a car accident which left him in a coma and with spinal injuries. After the accident, he obtained employment as a bus and truck driver, through which he eventually met the appellant Sheen in about 1993. In 1991, he separated from his wife and the following year, lost his driver and truck licences due to a series of drink driving convictions. Not long after the separation, he met his current partner, Ms Momcilovic, who, like Markovski, was a significant user of alcohol. More recently, Markovski’s life had been marked by alcohol abuse (with convictions for drink driving), gambling problems, health problems and an ill-timed investment.
Markovski’s criminal history
In 1996, Markovski was convicted and sentenced in the County Court to four years’ imprisonment for trafficking in a drug of dependence (heroin) and two years’ imprisonment for possession of a drug of dependence. The offending occurred in 1994. One year of the sentence imposed for the possession offence was ordered to be served concurrently on the four year term of imprisonment imposed for the trafficking offence. All sentences were suspended for an operational period of two years.
Medical reports
The sentencing judge considered the reports of a clinical forensic psychologist, Mr Patrick Newton, and a rehabilitative consultant, Mr Joseph Lamberti, as well as other medical reports. Mr Newton noted that the three appellants had developed alcohol and gambling problems within the context of their friendship. Mr Newton referred to Markovski’s problems with depression and anxiety. He considered that Markovski had reactive depression and anxiety, but did not have a personality disorder. Mr Lamberti (who had assisted Markovski with his addiction problems prior to his convictions for the 1994 drug offences) noted that he had responded well to counselling.
Reasons for sentence
His Honour observed that Markovski had pleaded guilty relatively early, indicating a degree of remorse. He accepted Mr Lamberti’s opinion that Markovski felt some ‘degree of responsibility for [his] co-offenders’. His Honour noted Markovski’s compulsive behaviour and addictions, including his alcoholism and gambling which were bonds in his friendship with Sheen, and his difficulties, including the motor accident and breakdown. His Honour also noted Markovski’s adjustment disorder with mixed anxiety and depressed mood, which were nevertheless reactive, rather than a primary psychological disorder. His Honour stated:
Nevertheless, it is appropriate in the circumstances to bear in mind that your symptoms were sufficiently severe to warrant the diagnosis as expressed in Mr Newton’s opinion.
His Honour noted that while Markovski had a 30 year history of substance abuse, was anxious and had reported depressive symptoms, he was not suffering from any physical condition relevant to sentencing.
The sentencing judge observed that Markovski’s relatively recent convictions for drug offences were ‘highly relevant’ and enlivened the need for specific deterrence.
His Honour found that Markovski’s chances of rehabilitation were as good as those of Sheen.
Grounds of appeal
Markovski appealed on the following grounds:
1.THAT the Learned Sentencing Judge erred in the cumulation of the sentence in Count 2, having regards to the principles of totality.
2.THAT the Learned Sentencing Judge erred in imposing a sentence of 4 years in respect of Count 2 having regard to the sentence of 4 years that was imposed in Count 1 and having regard to the facts of the trafficking upon which the counts were based.
3.THAT the Learned Sentencing Judge erred in assigning similar periods of imprisonment in respect of the drug alleged to be trafficked in Count 1 and the drug alleged to be trafficked in Count 2 despite the facts of each trafficking being dissimilar.
4.THAT the Learned Sentencing Judge did not correctly apply the principles of parity in the sentence of the Applicant and co-accused.
5.THAT the Learned Sentencing Judge erred in assigning a greater role to the Applicant than to the co-accused;
6.THAT the Learned Sentencing Judge erred in the application of the principles of parity having regards to the relationship between the parties and the roles played in the offending by each of the offenders and having regards to their respective antecedents and the undisputed facts before the court;
7.THAT the Learned Sentencing Judge imposed a too high minimum sentence having regards to the personal factors of the Applicant and the attitude of the prosecution and his own findings in respect of the Applicant’s potential for rehabilitation;
8.THAT the Learned Sentencing Judge erred in taking into account irrelevant and yet to be undecided matters;
9.THAT the Learned Sentencing Judge erred in his interpretation of the facts of the case on which his sentence was based having regard to the agreement between the parties;
10.THAT the sentence is manifestly excessive.
11A. The learned sentencing judge erred in failing to pay any or sufficient regard to counsel’s submission that, of the powder seized, “352 [scil., 325] grams is just powder with nothing in it” (T 19).
11B.The applicant seeks to lead fresh evidence – namely, parts of the transcript in the subsequent trial of a co-accused – demonstrating that the learned judge sentenced on an incorrect factual basis as to the quantity of methylamphetamine involved in the offence in Count 1.
Due to certain concessions made by the respondent, the submissions at the hearing of the appeal did not entirely coincide with, but nevertheless assumed, the written submissions filed by the appellants.
Written submissions
Markovski contended that the judge erred in imposing the same period of imprisonment for count 1 (methylamphetamine) and count 2 (cocaine) when the amounts trafficked were significantly different. Count 1 involved significant quantities of the illicit drug methylamphetamine located in Markovski’s apartment. In contrast, the quantity of cocaine the subject of count 2 was necessarily small because, based on his phone intercepts, Moir and Sheen sold relatively small amounts.
Markovski submitted that both his total effective sentence and the non-parole period were manifestly excessive.
First, the two years’ cumulation of the sentence on count 2 on the sentence on count 1 was too great, and did not sufficiently reflect the overlap in time and circumstance between the two offences, and the fact that count 1 was far less serious.
The non-parole period was also excessive, given that the sentencing judge acknowledged Markovski’s good prospects of rehabilitation and the Crown accepted that a larger than usual parole period would be appropriate. Markovski was nevertheless ordered to serve two-thirds of the total effective sentence, which gave no weight to his guilty plea or prospects of rehabilitation. Further, it failed to reflect his remorse, age, addictions and history of hard work.
Markovski also contended that his sentence offended the principles of parity, in that the judge erred in failing to give weight to the likelihood that the coffee jar contained a mere trace of methylamphetamine and that new evidence to that effect should be considered.
Submissions on appeal
Before us, the respondent conceded that four years’ imprisonment on count 2 could not be justified, given the small quantity of cocaine involved.
As error was conceded, the sentencing discretion was reopened. The respondent nevertheless submitted that despite the acknowledged structural error in Markovski’s sentencing, the total effective sentence of six years imprisonment with a non-parole period of four years imposed by the sentencing judge was within the range and appropriately reflected the criminality involved.
In view of the respondent’s concession of error, counsel for Markovski approached the matter as a plea. He relied on the following general matters in mitigation.
First, Markovski’s prior conviction was relatively old. He pleaded guilty at an early stage and was remorseful. His prospects of rehabilitation were found to be good and Mr Lamberti, the rehabilitative consultant assisting with Markovski’s alcohol addiction, considered that he would be (as the Crown conceded) receptive to counselling and would benefit from a period of parole which was longer than usual.
Markovski was also of mature years and had demonstrated a strong work ethic. While in custody, he had conducted himself well, had performed a considerable amount of community work (amounting to approximately 1,000 hours) and had completed many courses for self-improvement.
Count 2
In relation to Count 2, counsel submitted that the sentence should be modest, as only a small amount of cocaine was involved. No cocaine was found in Markovski’s premises and the amount trafficked by Sheen and Moir was small. The cumulation should also be small, as if the subject matter of count 2 were methylamphetamine, given the quantity involved, it would add little to the sentence on count 1.
While acknowledging that Markovski (as both a retailer and a wholesaler) merited a longer total effective sentence than his co-accused, counsel submitted that he supplied only a proportion of their drugs and did not warrant a longer sentence on count 2 than that imposed on his co-accused.
Error was conceded in relation to the sentence passed on count 2. The amount of cocaine trafficked was relatively small and the sentence on count 2 should therefore be reduced. A sentence identical to those of Sheen or Moir for the cocaine trafficking would nevertheless, in my view, be inappropriate as it would not sufficiently reflect Markovski’s greater criminality in trafficking on a different and more serious scale. Markovski’s operations as both a retailer and a wholesaler of illicit drugs were at a much more significant level than those of his co-accused. The trafficking in cocaine also indicated a willingness to expand or diversify his operations. In my opinion, the sentence imposed on count 2 should be set aside and Markovski should be re-sentenced on count 2 to two-and-a-half years’ imprisonment, 18 months of which should be served cumulatively with the sentence on count 1.
Count 1
In relation to count 1, counsel submitted that Markovski should be re-sentenced on the basis that there was, in essence, no more than a trace of methylamphetamine in the coffee jar located in his apartment. Although the sentencing judge found that the coffee jar contained 325.8 grams of the total of 719 grams found in Markovski’s possession, the Analyst’s Certificate stated that the percentage of methylamphetamine contained in the coffee jar was not determined, indicating that there were, at most, mere traces which could not be measured.
Markovski relied, in that context, on the Prosecutor’s concession at the trial of Markovski’s partner, Mrs Momcilovic, that the contents of the coffee jar should be ‘entirely disregarded’.
At Ms Momcilovic’s trial, the following exchange between the Prosecutor and the judge occurred:
MR SILBERT: Your Honour, the statement of H refers to the items in that admission of fact. What I must tell Your Honour is that the final item on p.11, Item 36, which relates to the Moccona coffee jar should be entirely disregarded.
Your Honour will recall that that related to 325.8 grams of a substance containing methylamphetamine but with no analysis of purity and it’s effectively impossible to say what was contained within that jar so in coming to a value as to the various items seized - - -
HIS HONOUR: So what, Item 36 just gets deleted does it?
MR SILBERT: Your Honour, I’ve had a discussion with my learned friend about this yesterday and effectively I’m not going to take Your Honour through the values but the value roughly of the material seized ranges from roughly $100,000 at a wholesale value to somewhere near $300,000 at retail value. I don’t know that I need to particularise it any more than that. I think my learned friend is content that that range is specified.
When sentencing Ms Momcilovic, the judge stated:
… in the kitchen cupboard above the sink was a Moccona coffee jar containing 325.9 grams of a substance that included an indeterminate amount of methylamphetamine.
In the course of Markovski’s plea hearing before the sentencing judge, his counsel observed that the powder in the coffee jar was for mixing purposes or was ‘powder with nothing in it’.
Before us, counsel for Markovski submitted that he should be sentenced on the basis that the cash in the apartment (being the subject of a separate charge) must also be disregarded.
In his sentencing reasons, his Honour did not refer to the quantity of pure methylamphetamine found in Markovski’s apartment, but only to the total quantity (719 grams) of separate amounts of substances containing methylamphetamine of various purities located in the apartment, including the 325.8 grams contained in the coffee jar. In my opinion, the analyst’s statement that the purity of the contents of the coffee jar was not determined indicated that it contained mere traces of methylamphetamine.
The Act defines ‘drug of dependence’ as follows:
drug of dependence means a substance that is—
(a) a drug—
(i) specified in column 1 of Part 1 of Schedule Eleven; or
(ii)included in a class of drug specified in column 1 of Part 1 of Schedule Eleven; or
(b)any fresh or dried parts of any plant specified in column 1 of Part 2 of Schedule Eleven; or
(c) a drug—
(i) specified in column 1 of Part 3 of Schedule Eleven; or
(ii)included in a class of drug specified in column 1 of Part 3 of Schedule Eleven—
and includes—
(d)any form of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic, and the salts, derivatives and isomers of that drug and any salt of those derivatives and isomers; and
(e) any—
(i)drug specified in, or drug included in a class of drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven, whether natural or synthetic; or
(ii)salts, derivatives or isomers of a drug specified in column 1 of Part 1 or column 1 of Part 3 of Schedule Eleven; or
(iii)salt of any derivative or isomer mentioned in subparagraph (ii)—
contained in or mixed with another substance;
While even a small trace of methylamphetamine in the coffee jar would thus render his Honour’s conclusion correct, the possibility arises that he sentenced Markovski on the basis of an exaggerated perception of the quantity of methylamphetamine in his possession. However, the impact of any such unfounded assumption on the sentence below is irrelevant, the respondent having already conceded sentencing error.
Before us, the respondent contended that the concession made by the Prosecutor at the sentencing of Markovski’s partner was simply that the substance in the coffee jar should be entirely disregarded for the purpose of determining its wholesale and retail value. Save in relation to that limited question, the substance in the coffee jar, which was a drug of dependence within the statutory definition, remained relevant to sentencing.
More particularly, the respondent relied on the Analyst’s Certificate’s breakdown of the different amounts of methylamphetamine into varying purities, totalling 114 grams. Some of the quantities of the methylamphetamine had a purity of fifty per cent. From that, and the equipment, including cutting implements, it could be inferred that Markovski was not just a retailer, but also a wholesaler who was ‘higher up’ in the chain of supply than his co-offenders. The respondent conceded, however, that the large sum of cash found in his apartment must be effectively disregarded as it was the subject of other charges which were defended and not yet finalised.
In my opinion, the probability that the coffee jar contained no more than a trace of methylamphetamine does not justify any reduction of Markovski’s sentence on count 1, given that 394 grams is itself a very significant quantity of a drug of dependence as statutorily defined and 114 grams of pure methylamphetamine is likewise a significant amount. The quantities involved, the purity of some amounts and surrounding circumstances evidence Markovski’s role as a wholesale and retail trafficker in a reasonably large way, in a relatively high position on the scale of distribution of illicit drugs. The maximum sentence of 15 years prescribed by the legislature reflects the gravity of the offence.
In my opinion, given the nature and scale of Markovski’s operations, his prior conviction for drug trafficking (which while not very recent was very significant) and taking into account in mitigation his early plea, remorse, prospects of rehabilitation, good conduct in custody and the sentences now to be passed on his co-offenders, the term of four years’ imprisonment imposed by the sentencing judge on count 1 was appropriate, and should be reimposed.
In conclusion, in my opinion, the appeal should be allowed. The sentence imposed on count 2 and the order for its cumulation on count 1 are excessive. Nevertheless on count 1, Markovski’s sentence of 4 years’ imprisonment should be affirmed. On count 2, in lieu of the sentence passed below, Markovski should be re-sentenced to two years’ and six months’ imprisonment, 18 months of which should be served cumulatively on that on count 1, resulting in a total effective sentence of five years and six months imprisonment. Although the prosecutor at plea observed that a longer than usual period of parole might assist in rehabilitation, a non-parole period of three-and-a-half years is, in my opinion, appropriate.
SHEEN
On 5 March 2007, Sheen pleaded guilty to one count of trafficking in a drug of dependence – methylamphetamine (count 1), one count in trafficking in a drug of dependence – cocaine (count 2), and one count of trafficking in a drug of dependence – cannabis (count 3). He was sentenced on 10 December 2007 as follows:
·Count 1 – two years’ imprisonment.
·Count 2 – 18 months’ imprisonment
·Count 3 – one month imprisonment
Twelve months of the sentence imposed on count 2 and the entire sentence imposed on count 3 were ordered to be served cumulatively with the sentence imposed on count 1, resulting in a total effective sentence of three years and one month imprisonment, with a non-parole period of two years and one month. A period of 58 days was reckoned as time already served under the sentence imposed.
Sheen appeals on the following grounds:
1. The sentence is manifestly excessive.
2. The non-parole period is manifestly excessive.
3. The order for cumulation in relation to count 2 is manifestly excessive.
4. The learned sentencing judge erred by failing to take into account the likelihood that the applicant would serve his sentence or part thereof in protective custody.
5. The learned sentencing judge erred by failing to take into account the risk of the applicant being threatened or assaulted whilst in custody.
6. The sentence does not reflect appropriate parity with that of the co-offender Moir.
On 14 January 2006, a police record of interview was conducted, in which Sheen was largely uncooperative.
Sheen’s background
Sheen was born in England in 1957. He was 50 years of age at the time of sentence. His mother left the family when he was five. His childhood was marked by abandonment, institutionalisation in orphanages and familial separation. He emigrated to Australia when he was 13 years of age. He was, and remains, largely illiterate. After leaving school at around age 14, Sheen worked in the floor polishing industry and in a car yard. From 1980, he worked in the trucking industry, initially as an employee driver and ultimately running his own trucking business. By 2000/01, he was in a good financial position, owning his own home, an investment property and a take away shop. He was married with two sons, aged 24 and 12, one of whom has Downs Syndrome. His marriage ended in late 2005. Sheen’s former wife suffers from a psychiatric illness and is currently institutionalised.
Sheen’s criminal history
Sheen has seven previous convictions and six findings of guilt from five court appearances. In 1990, he was convicted and fined in relation to trafficking, cultivating and using cannabis. On 31 October 2005, he was convicted and sentenced in the Magistrates Court to three months’ imprisonment to be served by way of an Intensive Correction Order and fined in relation to trafficking in a drug of dependence (MDMA/MDA/MDEA – (ten tablets)) being in possession of methylamphetamine, dealing in property suspected of being proceeds of crime and going equipped to steal.
At that stage, he regularly used amphetamines, and continued to do so until early 2006.
His Honour acknowledged Sheen’s relatively early guilty plea, and accepted that it indicated a degree of remorse.
He acknowledged Sheen’s poor health including high blood pressure, sugar diabetes, sleep apnoea and heart problems, for which he received medication, including insulin. According to the report of Ms Northey, a consultant psychologist, Sheen was coping well in custody and his various medical conditions were being attended to. The sentencing judge did not consider that the effect of imprisonment posed a serious risk of ‘a gravely adverse’ effect on Sheen’s health.
The sentencing judge referred to the report of Ms Northey. She stated that Sheen had average intelligence and high levels of verbal and cogitative functioning, although he was virtually illiterate. His background was one of deprivation, dislocation, parental separation and horrific experiences in an orphanage. Following his migration to Australia, Sheen nevertheless achieved prosperity and was married for 25 years with two sons, one of whom (now 12) had Downs Syndrome.
Ms Northey stated that when his wife developed psychiatric problems and the marriage broke up, Sheen lost all the property he had accumulated and the care of his disabled son passed to the Department of Human Services. That led to Sheen’s decline into drug use and his teaming up with other desperate people. He nevertheless commenced a new relationship and got his son out of care, but his new relationship had now stalled and the son was being cared for by his older brother.
Ms Northey stated that Sheen had had a hard life and became demoralised after suffering a ‘matrix of losses’. He was a devoted father to his disabled son. Sheen had acknowledged his offending and anger problems and that he had become ‘unstuck’. He wished to move on, take up new employment and re-establish a more stable life with the help of counselling. He was, in Ms Northey’s opinion, resigned to incarceration, but planned to turn over a new leaf and, provided he used the resources available in custody and did not receive a crushing sentence, he had prospects of rebuilding his life.
Protective Custody
Sheen was threatened prior to being sentenced by a group of prisoners against whom his son was to give evidence at their trial. Sheen was held in protective custody for some weeks prior to his sentencing on 10 December 2007.
The sentencing judge noted that the threats were made before the trial in which Sheen’s son was to give evidence, which had now concluded. The relevant persons had been convicted and sentenced. They were now held in ‘a different prison separate from [Sheen]’, Sheen’s son had been released and there had been no further threats. His Honour concluded that the risk of harm to Sheen was too remote and speculative to be taken into account in sentencing.
Written submissions
Sheen contended that both the total effective sentence of three years and one month and the non-parole period of two years and one month were manifestly excessive, in circumstances where he had not previously been gaoled; the quantities of methylamphetamine, cocaine and cannabis were small; the trafficking occurred over a relatively short period of six weeks; Sheen was not ‘high up’ in the trafficking operation; he lived in poor circumstances; he pleaded guilty early; he had good rehabilitation prospects; and the offending could be viewed as a temporary relapse into personal use.
Moreover, although the non-parole period was ‘standard’, (two thirds of the head sentence), it was excessive in the present case, because Sheen had a risk of harm in custody and was serving a more onerous sentence. The non-parole period did not accord with the sentencing judge’s recognition that Sheen’s good prospects for rehabilitation should be maximised, as his risk of re-offending was ‘not significant’, and the factors which had caused his relapse into drug use and trafficking had been resolved by the time of sentence.
Further, the cumulation of one year for trafficking cocaine on the two year head sentence was excessive, because the amount of cocaine was small and the circumstances of the trafficking were effectively the same as for count 1. Count 2 did not relate to different operations, yet Sheen received a large cumulation of two-thirds, increasing his total sentence by 50 per cent.
Sheen submitted that the sentencing judge erred in failing to give sufficient weight to the likelihood that his sentence would be served in protective custody and that he was at risk of assault. He was liable to be moved both between prisons and into protective custody within prisons, which would necessarily render his imprisonment more onerous.
Further, it was submitted that the judge erred in finding that the associated risk of harm to Sheen was too remote and speculative to take into account. Rather, there should be a very low threshold for disregarding the risk of assault and harm to prisoners, which is inherently difficult reliably to evaluate.
Sheen submitted that a sentence 50 per cent longer than that of Moir was unjustified. They were partners trafficking together at the same level, both had similar histories of offending and their personal circumstances were not materially distinguishable.
Submissions on appeal
Before us, the respondent conceded that the cumulation of the sentence on count 2 on the sentence on count 1 was high, but contended that it was, at most, a structural error and that given his level of criminality, the sentence imposed on Sheen was appropriate and should be affirmed.
Counsel for Sheen contended that although there was no evidence that Sheen had served his sentence in protective custody, had been moved within the prison system, denied any privileges due to perceived risks associated with the threats or had been subject to violence, assault or further threats, the very fact that threats were initially made against Sheen founded a subjective fearfulness, which itself increased the burden of his imprisonment.
Counsel submitted that his Honour erred in failing to give weight to the threats, which remained relevant to re-sentencing.
In my opinion, as the sentencing judge concluded, the likelihood of protective custody or harm was too remote or speculative to constitute a relevant sentencing consideration, given the absence of any evidence of further threats or any continuing impact of the threats on Sheen. That conclusion was fortified by the concession before us that Sheen’s incarceration had proved uneventful. There was no evidence of the nature and duration of Sheen’s subjective reactions (if any) to the threats made at the outset of his experience of incarceration. In such circumstances, no weight should be attributed to the likelihood of his serving the sentence in protective custody or his perceptions of risk.
Further, the imposition of a higher sentence on Sheen than on Moir was justified. Although Sheen and Moir trafficked as partners at the same level, Sheen’s criminality was somewhat greater. He trafficked in a larger quantity, featured more prominently in the undercover transactions, conducted the sales from premises he controlled and he had a more recent and significant prior conviction.
In my opinion, the cocaine trafficking the subject of count 2, while small, in terms of quantity, was not insignificant, in that Sheen was willing to diversify his illicit business and commence an expansion of the range of drugs trafficked. Nevertheless, given the quantum involved, the sentence imposed, and its cumulation on count 1 was, as the respondent conceded, too high.
In contrast, the sentence of two years’ imprisonment imposed below on count 1 was justified. As the respondent contended, Sheen was involved in medium level ‘Giretti’[3] trafficking and conducted a business which involved greater criminality and warranted a higher sentence than street trafficking.
[3]Giretti v R (1986) 24 A Crim R 112.
The relevant sentencing tables indicate that the sentence was within the range. The sentencing statistics in relation to trafficking drugs of dependence for the period revealed an average sentence ranging from two years and 11 months to four years and one month, with a median sentence of two-and-a-half to three-and-a-half years. Sheen had a number of convictions, one of which was very significant and recent. He was convicted in October 2005 of possessing methylamphetamine and trafficking (MDMA/MDA/MDEA) about 29 days prior to the offending the subject of count 1. That, as the respondent submitted, must, somewhat temper the confidence in Sheen’s prospects of rehabilitation, although the problems which inspired his offending were said to have now largely resolved.
The appeal should be allowed. Taking into account the above, the mitigating factors, including Sheen’s early plea, remorse, working history, family circumstances and prospects for rehabilitation, in my opinion, the sentence of a term of imprisonment for two years on count 1 should be affirmed. On count 2, the sentence imposed below should be set aside and in lieu thereof a term of imprisonment for one year should be imposed. On count 3, the sentence of one month imprisonment should be affirmed. Six months of the sentence on count 2 and the entire sentence on count 3 should be served cumulatively on the sentence imposed on count 1, resulting in a total effective sentence of two years’ and seven months’ imprisonment. I am not persuaded that a longer than usual period of parole is appropriate and in my opinion, a non-parole period of 20 months should be fixed
MOIR
On 5 March 2007, Moir pleaded guilty to three counts of trafficking in a drug of dependence (methylamphetamine, cocaine and cannabis). He was sentenced on 15 November 2007 as follows:
·Count 1 – 18 months’ imprisonment.
·Count 2 – 12 months’ imprisonment.
·Count 3 – one month imprisonment.
Six months of the sentence imposed on count 2 and the entire sentence imposed on count 3 were ordered to be served cumulatively with the sentence imposed on count 1, resulting in a total effective sentence of 25 months imprisonment, with a non parole period of 19 months. A period of 24 days pre-sentence custody was declared as time already served under the sentence.
The appellant Moir appeals on the following grounds:
1. The Learned Sentencing Judge erred in imposing the minimum possible gap between the head sentence and non-parole period in circumstances where:
a. the Applicant had not previously served a term of immediate imprisonment;
b. the Applicant had not previously been placed on parole;
c. the Applicant was found to have reasonably good prospects of rehabilitation;
d. the Learned prosecutor had submitted that a longer than normal parole period was appropriate; and
e. no reasons were provided for the unusually small gap between the head sentence and non-parole period.
2. The sentence imposed was in all the circumstances manifestly excessive.
On 14 January 2006, Moir was interviewed by police. He also did not provide police with any assistance in relation to allegations of drug trafficking.
Moir’s background
Moir was born in Scotland in 1963. He was 44 years of age at the time of sentence. He emigrated to Australia when aged four. He left school at the age of 16 and worked as a tow truck telephone operator, a tow truck driver, a truck driver and trucking company manager. In 1995, he was involved in a truck accident which left him with substantial injuries. Prior to his convictions for the current offences, Moir resided with his de facto partner of 14 years and their two teenage children. The accident in 1995 had a deleterious effect on his health. He gained a considerable amount of weight and was diagnosed with diabetes. After 1995, he weighed 200 kilograms and was scheduled for lap band surgery. He had prostate and bowel problems. The sentencing judge accepted that Moir had had a good work history in the two years leading up to the sentencing for the present offences.
Moir’s criminal history
Moir had 12 previous convictions from three court appearances between 1989 and 2004. Significantly, on 28 September 2004, he was convicted and sentenced in the Magistrates Court as follows:
1. Trafficking in a drug of dependence (Amphetamine).
2. Trafficking in a drug of dependence (MDMA/MDA/MDEA).
3. Being in possession of a drug of dependence (Amphetamine).
4. Being in possession of a drug of dependence (MDMA/MDA/MDEA).
5. Dealing in goods suspected of being proceeds of crime.
Moir was sentenced to eight months’ imprisonment to be served by way of an Intensive Correction Order.
Reasons for sentence
The sentencing judge accepted that the present offending occurred during a period (from May 2004 to January 2006) of personal turmoil and unemployment, when Moir’s life had ‘fallen off the rails’. His Honour accepted that Moir had turned his life around and was in a stable relationship.
His Honour acknowledged Moir’s relatively early guilty plea, indicative of some remorse.
His Honour referred to the report of Mr Cummins, a clinical and forensic psychologist, who noted that Moir had lived with his de facto spouse for 14 years, and, despite a recent separation, they had resumed cohabitation for the past 18 months.
After a period of emotional turmoil due to an affair, which resulted in the loss of his job, the breakdown of his partnership and the loss of his home, Moir attempted suicide twice and was offered accommodation by Sheen. Moir attributed his offending to a mid-life crisis. He was not an alcoholic and was not currently a drug user.
Mr Cummins stated that Moir was not psychotic or schizophrenic and did not have a personality disorder. He was nevertheless suffering from a chronic adjustment disorder which was relevant to the offending. It was accompanied by mixed disturbance of emotions (anxiety and depression) and conduct. Moir was remorseful and felt that he had acted stupidly. Mr Cummins concluded that Moir had been able to turn his life around and was earning a good income.
His Honour noted the various medical conditions suffered by Moir. There was, however, no medical report or evidence to justify the conclusion that imprisonment would amount to a greater burden.
Written submissions
Ground 1
The Crown conceded, correctly in my opinion, that the sentencing judge erred in ordering a minimum possible gap between the head sentence and the non-parole period, because Moir had not previously served a term of immediate imprisonment nor been placed on parole. The Prosecutor below had acknowledged that a shorter than usual non-parole period was appropriate, but that was not reflected in the sentence. The sentencing discretion was consequently reopened.
Ground 2
The appellant contended that a sentence of two years and one month imprisonment was manifestly excessive, as Moir’s trafficking could be characterised as ‘low level’, and he essentially ‘joined up’ with Sheen. Further, he had debilitating physical illnesses and some psychological conditions, which entitled him to a degree of moderation. He had taken substantial steps towards rehabilitation and his prospects were reasonably good.
Ground 3
The appellant contended that the sentencing judge erred in failing to take due account of Moir’s physical health problems.
Submissions on appeal
Before us, counsel for Moir principally submitted that in re-sentencing, a significant gap between the head sentence and the non-parole period should be fixed. He submitted in that context that Moir had not been imprisoned previously, and had neither benefited from nor breached parole. Further, he had previously demonstrated significant stability in his life and despite an interval of about one and a half years during which he offended, had managed to re-establish stability prior to sentence. The material established that he had come to terms with the problems underlying his offending and had not offended during the period between his apprehension and sentence.
While in custody, Moir had completed a number of educational courses on drugs and alcohol, and had completed satisfactory drug tests. He had letters of support from prospective employers and was making an effort to restore his life.
Further, Moir suffered from significant health problems. While there was no evidence that incarceration would gravely or adversely affect Moir’s health, it was relevant that his medical problems would increase the burdens of imprisonment.
In my opinion, while error was conceded in relation to the non-parole period, the individual and total effective sentences imposed on Moir were justified, given the level of his trafficking, which exceeded mere low level or street trafficking and clearly constituted a business, rather than a one-off instance. Further, Moir had a prior relevant conviction. Moir’s ill health, while of general relevance, cannot, without evidence, be held to increase the burden of imprisonment.
The appeal should be allowed. Taking into account Moir’s significant efforts towards, and prospects of, rehabilitation, his early guilty plea and remorse, and the sentences passed on his more culpable co-offenders, in my opinion, the sentences imposed in relation to counts 1, 2 and 3, the orders for cumulation and the total effective sentence of 25 months made below should be affirmed. A reduced non-parole period of 15 months should, however, be fixed.
WEINBERG JA:
I agree, for the reasons given by Dodds-Streeton JA, that this appeal should be allowed, and the appellants re-sentenced as proposed.
WILLIAMS AJA:
I agree with Dodds-Streeton JA that the appeal should be allowed and that the appellants should be re-sentenced as she proposes, for the reasons she gives.
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