R v Matei
[2001] VSCA 119
•26 July 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 214 of 2000
| THE QUEEN |
| v. |
| MARIUS MATEI |
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JUDGES: | BROOKING, ORMISTON and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25, 26 July 2001 | |
DATE OF JUDGMENT: | 26 July 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 119 | |
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Criminal law - Sentence - Trafficking in drug of dependence (heroin) - Reckless conduct endangering person - Parity among five co-offenders - Five and a half years with non-parole of four not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D.McArdle, Q.C. | Solicitor for Public Prosecutions |
| For the Applicant | Mr R.J.Bourke | Galbally Rolfe |
BROOKING, J.A.:
I will ask Phillips, J.A. to deliver the first judgment.
PHILLIPS, J.A.:
This is an application for leave to appeal against sentence. Leave was refused by a single judge of appeal on 3 November 2000 and his Honour's careful reasons for judgment relieve me of the need to canvass much of the background. The applicant, who was born on 11 January 1978 and was 21 years old at the time of the offending, pleaded guilty in the County Court to one count of trafficking in a drug of dependence (heroin) and one count of reckless conduct endangering a person. He admitted one prior court appearance in July 1997 when charged with theft: on that occasion he was ordered, without conviction, to pay a fine of $100.
After a plea in mitigation by counsel on his behalf, the applicant was sentenced, for trafficking, to imprisonment for five years and three months and on the other count to imprisonment for one year and three months, three months of which was to be served cumulatively on the former. Thus the total effective sentence was of five years and six months' imprisonment and of this the applicant was directed to serve four years before being eligible for parole. There was pre-sentence detention of 16 days.
The notice of application for leave to appeal as filed contains seven grounds but in argument they have been grouped into three. By reference to grounds 2, 3 and 4 the applicant now challenges the factual basis upon which the judge sentenced him, alleging that the judge proceeded upon a basis which was not open to him on the evidence. By reference to ground 1, it is argued that the sentence imposed on the applicant was manifestly disparate when compared with those imposed on his co-offenders. And by reference to grounds 5, 6 and 7, it is argued that the sentences imposed were manifestly excessive, reference being made in particular to the applicant's youth, the absence of any relevant prior convictions, his background, the
early plea of guilty and the serious injuries he suffered in the car accident which brought the offending to an end.
The ground of parity may be dealt with first. The applicant pleaded guilty to counts 3 and 4 on a presentment which named him as one of five co-offenders, all of whom were engaged in what the sentencing judge colloquially called a "drug ring", the activities of which within the period from 12 May to 8 July 1999 led to these prosecutions. The level of participation of each accused varied somewhat. Thus Trinh was the one who, it appears, was dealing fairly regularly with undercover police operatives seeking to arrange deal after deal, while at the other end of the scale Lordachescu appears physically on the scene only with Matei on the night of 8-9 July, when Matei drives with him to the car park assigned for the large deal which was stopped by the intervention of the police and from which Matei drove away at desperately high speed, seeking to avoid capture. In the accident that followed both passenger and driver were seriously injured, but fortunately nobody else was.
On this presentment Trinh and Phakasy were charged with trafficking in heroin between 12 May and 8 July 1999 (count 1); Curelusa with trafficking in heroin between 25 May and 29 May 1999 (count 2) and Lordachescu with trafficking in heroin on 8 July 1999 (count 5). The applicant himself was charged with trafficking in heroin between 11 June 1999 and 8 July 1999 (count 3) and with recklessly driving a motor vehicle in a manner that placed Lordachescu in danger of serious injury on 9 July 1999 (count 4). There can be little doubt that the applicant's driving down a public highway at speeds of up to 150 kilometres per hour was reckless and placed his passenger in danger of serious injury. One need mention only that he drove on the wrong side of the highway for three kilometres and went through three sets of red lights at about 150 kilometres per hour to underline that. The maximum penalty prescribed under s.23 of the Crimes Act 1958 for reckless conduct endangering a person is five years' imprisonment, and plainly the sentence here imposed of 15 months was appropriate; no complaint is now made in that respect. If anything the cumulation ordered of only three months was lenient.
The complaint based on parity focuses only on the sentence of five years and three months' imprisonment imposed on count 3, for trafficking in a drug of dependence, the offence with which all five co-offenders were charged, although, as I have indicated, not all in respect of dealing on the same dates. Trinh, 20 years old at the time of sentencing, was subjected to a total effective sentence of four years, with a non-parole period of two years; Phakasy, 23 years old, to a total effective sentence of three years, with a non-parole period of 18 months; Curelusa, 20 years old, to a total effective sentence of three-and-a-half years, with a non-parole period of 18 months; and Lordachescu, 42 years old, to a total effective sentence of three years, with a non-parole period of two years. Mr Bourke, counsel for the applicant, drew the obvious contrast between these sentences and the sentence imposed upon Matei of five years and three months on the count of trafficking. The non-parole period of four years too, he pointed out, exceeded the non-parole period of any of the co-offenders and on both scores he submitted the sentences gave rise to an unjustifiable sense of grievance.
Arguments of parity are always fraught with difficulty, for sentencing must have regard, not only to the circumstances of the offending but also to the personal circumstances of the offender. Not uncommonly any difference in sentence as between co-offenders can be ascribed to differences in their personal circumstances, or, it may be, in the role which each is seen to have played in some common enterprise. And so it is here. The judge regarded the applicant Matei as playing a role which was higher up the drug-dealing chain and so distinguished his part in the affair from that played by the others. If that is correct, the difference in sentences is justified and there is nothing in the parity point.
Despite Mr Bourke's submissions, I do not see that the difference in the amount trafficked, as between Trinh and the applicant, was such as to prejudice that conclusion. Moreover, Trinh, to whose sentence Mr Bourke directed particular attention, had been addicted to heroin and there was uncommonly strong evidence of his efforts to rid himself of his addiction. He was paid in small amounts of heroin for his own use. His sister gave evidence on the plea about his addiction and steps to rid himself of it. Two reports from a clinical psychologist were put in evidence and there was remarkably strong evidence from a drug and alcohol clinician that he was the most impressive man he had met in his 14 years of work. The applicant was not an addict and was said by his counsel not to be an intravenous user of heroin.
The critical question on this application is whether the judge was justified, on the evidence before him, in concluding that the applicant Matei played the greater role when his participating was compared with that of the others. The applicant contends that the judge went beyond the basis - sometimes referred to by counsel as the agreed basis - upon which the parties were all proceeding before the sentencing judge and, moreover, did so without warning. Hence grounds 2, 3 and 4. They read:
"2.The learned sentencing judge erred in sentencing the applicant on the count of trafficking , either expressly or by inference, on findings of fact which were not open to him on the evidence.
3.The learned sentencing judge erred in sentencing the applicant on the count of trafficking, either expressly or by inference, for offences with which he was not charged.
4.The learned sentencing judge erred in sentencing the applicant on the count of trafficking, either expressly or by inference, on the basis of facts falling outside the prosecution summary and the "Agreed Statement of Facts" without permitting the applicant a sufficient opportunity to challenge the material on which he proposed to rely for the purpose of sentence."
Ground 2 is no longer argued, and, as to ground 4, I say immediately that there was no "agreed statement of facts": contrast Mielicki[1] to which Mr Bourke was wont to refer. The outline of argument also refers to an "agreed statement of facts", but there was none, and the basis on which the parties were proceeding before the sentencing judge, and thus the basis upon which his Honour was expected to proceed, was by no means so clear as this expression suggests.
[1](1994) 73 A.C.R.72 at 75.
There can be no doubt but that all parties were proceeding upon the basis, at least in large part, of the police summary, and so much was accepted in argument before us. This set out in some detail the circumstances attending the offending of all five co-accused, but each to a greater or lesser extent. Trinh for example was involved at all stages, dealing in varying amounts, and then in what turned out to be the final deal in more than seven ounces of heroin. In contrast, the police summary does not name the applicant, save for one relatively minor and inconsequential mention, until on 8 July he drove into the car park where that final deal was to be made - although in two paragraphs near the end it records that telephone intercepts placed on the mobile telephones of both Trinh and Matei disclosed that from 9 June onwards there were many conversations between Trinh, Lordachescu and Matei over the sale and purchase of drugs, and also (on Trinh's phone) involving Phakasy and Curelusa.
Despite the differences in treatment of the five accused, it may be accepted that this police summary provided an important part of the basis on which the sentencing was to proceed. This was subject, however, as prosecuting counsel pointed out at the outset, to objection which from time to time he expected would be made by particular accused about certain small portions which, it would be said, were inadmissible against them: but subject to that it appears that the parties were well content with the police summary. Thus, in commencing his own plea for Matei, applicant's then counsel said that "the prosecution summary in respect of Mr Matei is a fair one".
That is not to say that the police summary formed the only basis for sentencing: far from it. In respect of Matei, reading of the police summary had to be qualified, his counsel said at the outset, by the brief statement put to the magistrate at the committal hearing by way of preamble to the plea of guilty. Immediately before the applicant pleaded, the magistrate was told this by counsel then acting for Matei:
"This is a brief preamble to my client's plea of guilty. It's an agreed set of facts between the prosecution and myself as to the basis upon which Matei pleads guilty to trafficking, and if I could just read this brief statement: 'Marius Matei pleads guilty to trafficking heroin, or will plead guilty to trafficking I heroin between the 11th of June 1999 and the 8th of July 1999. The offence is made up of two episodes. Firstly, above street level trafficking to a group, including using friends and associates between the 11th of June 1999 and the 22nd of June 1999; and secondly, the possession or [which we were told in argument was a mistake and should read "for"] sale of heroin on the 8th of July 1999."
In the County Court, as soon as the prosecutor opened the police summary and told the judge of "small issues to be raised where they [the accused] disagree with the summary", counsel for the applicant Matei interrupted to tell the judge of the "preamble" just quoted. Speaking of this, counsel said that it "could be taken on board in conjunction with the summary that's been provided to you by the Crown". It is of course quite obvious that the two had to be read together, for the brief "preamble" given to the magistrate could scarcely have provided in itself the basis for sentencing in the County Court: it was far too brief. It did little more than divide up the period of offending by Matei - which, as charged, was "between the 11th day of June 1999 and the 8th day of July 1999 - into two episodes, no doubt because on 23 June the applicant went overseas for a time and did not return until 6 July (or it may be 3 July). Hence the first episode ended on 22 June, that constituting, it was said in the preamble, "above street level trafficking to a group, including using friends and associates" and, quite distinctly, there was the sale of heroin arranged, but never completed, on 8 July when the police intervened. Perhaps it was important to Matei that this division should be made because, as will be seen, so far as he was concerned at least, the quantities of heroin involved during the first episode and that involved in the second episode were very different. Moreover, the "preamble" served to confine what otherwise would have been the unrestricted period of offending alleged in the presentment.
None of this, I think, provides much difficulty. The difficulty arises only because there was a good deal of further material before the sentencing judge. All the depositional material was before him and that included transcripts of the telephone intercepts, which were referred to quite often in the police summary and which, we were told, were voluminous. This was a complex police operation and there was a great number of these intercepts. What happened, apparently, was that the judge - very properly, if I may say so - went away and read the depositions, including the transcripts, and from them drew out certain facts to supplement what was set out in the summary itself. But, it must be said immediately, counsel did much the same thing. For example, the prosecutor opened in relation to Matei:
"As a result of a telephone intercept warrant being issued on a particular mobile phone belonging to a female, and Your Honour will see that there are two warrants in volumes 2 and 3 of the depositional material, telephone calls were recorded which showed Mr Matei dealing in street level transactions, half gram, something of that order, between the friends and associates which the police have not been able to identify or necessarily quantify other than to say that it is indicative of that level of trafficking."
The prosecutor's addition of these facts by reference to the telephone intercepts passed without comment from defence counsel; the parties were obviously proceeding upon the footing that reference could be made to these transcripts to supplement the police summary. It is true that Mr Matei's dealing in street level (or "above street level") transactions was something mentioned in the brief "preamble" given to the magistrate, but the prosecutor's description of such dealings as involving "half gram, something of that order", came only (as I understand it) from the telephone intercepts. Indeed when it came the turn of counsel for the applicant to make the plea in mitigation, counsel immediately mentioned that "the evidence reveals that Mr Matei was involved in selling half grams and grams to a small circle of friends and associates", thereby expanding on the use so far made of the depositional material. Indeed, as pointed out from the Bench in the course of argument yesterday, it seems to have been quite common during these pleas for defence counsel to refer to facts found not in the police summary but drawn from the depositions (and not only from the intercept transcripts). Counsel for Mr Matei plucked facts out in this way when addressing, and counsel for Lordachescu even adverted expressly to the role of his client by reference to the depositions.
The focus of counsel's complaints on this application for leave to appeal is to be found in the conclusion of the judge, drawn by him from the record of the telephone intercepts, that Matei played a role at a higher level than his co-offenders in that he was the one who had the ability to supply large amounts of heroin. In his sentencing remarks the judge said this:
" A perusal of the transcript of telephone intercepts indicates that between 9 and 13 June 1999 there were approximately 35 conversations between Trinh and the co-accused Matei, during which the ability of Matei to supply 16 ounces of the drug for $60,000 is discussed. The transaction for the supply of this large amount of heroin continued to be discussed between Trinh and the covert operatives. There were other discussions about the supply of small amounts, and ultimately arrangements were made for the supply of nine ounces of heroin for an agreed price of $45,000."
The judge then continued:
" On 8 July, following a meeting between Trinh and Phakasy, the two operatives and Trinh and Phakasy went to a number of different locations before deciding that the transaction would be concluded in the car park of the Highway Tabaret in Corrigan Road, Noble Park. Matei and Lordachescu attended at the car park, where they collected Trinh, and returned to the Tabaret car park about 15 minutes later. A police operative was called to the Magna sedan, where he was shown a quantity of white powder in clear plastic bags by Trinh. The police then moved in to arrest the offenders. The vehicle driven by Matei exited the car park at a fast rate of speed and then proceeded to travel east in the west-bound lanes of the Princes Highway. It passed through two traffic signals at intersections and then ultimately Matei lost control of the car and it collided with a pole on the median strip at the Heatherton Road intersection. During that chase Matei threw out a bag of white powder from the vehicle. This was found to contain 206.16 grams of substance which was 15% pure heroin."
I add that 206 grams of heroin is equal to more than seven ounces.
The second of these quotations is, in brief, what is described in the police summary. As Mr Bourke pointed out to us in argument, no reason is given in that summary for Matei and Lordachescu first driving into the car park to collect Trinh, then departing for about 15 minutes and returning to the car park where the deal was to be done. Such was consistent, he submitted, with Matei being but a driver who was engaged to transport Trinh to another place in order for Trinh to collect the drug which then was shown to the undercover operative by Trinh himself. That may be so, but it was Matei who threw the bag of powder out the window of the car as he sought to evade arrest, and, no other explanation having been proffered for his having so much of the drug in his possession, the inference remains that it was he who was in control of the heroin itself, for the purpose of this deal. Be that as it may, the police summary did not stand alone; it was supplemented by the depositions, as I have sought to describe, and in the transcripts of the telephone intercepts the judge had found enough to infer that Matei was indeed the supplier - a role very different from, and greater than, the role played by the others.
In my opinion, in all the circumstances as I have described them, it cannot be said that the judge fell into error simply by drawing upon the telephone intercepts. It is not said that the conclusions that he reached were not open on the depositions: at one stage, it appears, that was to be argued by reference to ground 2, but no longer. What is submitted is that, having arrived at the conclusion about Matei's being a supplier, the judge should not have proceeded to sentence upon that footing without first alerting counsel to what he was proposing to do. I must say that I am not much taken by this proposition. It is true that the depositions, including the transcripts, were voluminous, but it cannot be the case that a sentencing judge, required to sentence upon all this material, must first form his views on the facts and then in some way alert counsel to his views in case they wish to make submissions to the contrary: that is too absolute a proposition, and in the end I did not understand Mr Bourke to put the case so high.
None the less counsel did submit that, as a matter of natural justice, the judge, having distilled the role of Matei from the depositions, should have alerted his counsel to that fact so that that topic might have been addressed in submissions. But why? The role of Matei was something on which his counsel had apparently chosen not to address in the course of the plea in mitigation; it was an obvious enough consideration, especially given the curious and unexplained (in the police summary) arrival of Matei with Lordachescu into the car park on 8 July and then their temporary departure with Trinh and return after 15 minutes. But counsel said nothing about that. Nor was the judge's conclusion that Matei was supplying contrary to anything in the police summary: it went simply to supplement and to explain. Nor, I add, was it contrary to the "preamble" that was put to the magistrate before the applicant pleaded guilty. Mr Bourke was driven, I think, to contend that the judge was entitled to rely only upon what was stated on the pleas in amplification by counsel, albeit that they were speaking by reference to the depositions. But if that was to be the limit of all reference to the depositions, nothing was said to the judge to that effect; indeed what was said seemed to me to imply the opposite. As I observed at the outset, the police summary was not an "agreed statement of facts" which in certain circumstances might import exclusivity: that was simply not the case here.
There is no need on this application to dilate in any general way upon the function of a judge in sentencing if he or she chooses to proceed upon facts which have not been explored with counsel on the plea. For the Crown, it was submitted that the facts that were stated in the police summary fully justified the view of the judge about the role played by Matei: and that submission was accepted by the single judge who determined this application on 3 November 2000. But in my opinion we do not have to go into that either. That is because even if the sentencing judge was obliged in this particular instance to advise counsel before passing sentence of the view which he had formed about the role played by Matei, that is what he did, and the criticism levelled in argument at his Honour's conduct cannot be made out. As it happened, his Honour did give adequate warning to the parties of the basis upon which he was proceeding.
The pleas in mitigation, on behalf of all five accused, were heard by the judge on Wednesday 26 July. By Monday 7 August, the judge had obviously become concerned to sentence without any further delay; for his Honour took the unusual course of sitting to sentence despite his having a trial that was running. To accommodate his obligations in relation to that trial, his Honour sat early in the day, saying at the start, addressing the accused:
"I have a trial that is running at the moment, and I want to make some broad sentencing remarks which apply to each, I think, [about] the operation that was in question, and then at half-past three this afternoon I will sentence each of the accused. So far as [concerns] my general remarks, on the plea hearing I stated that it appeared that this particular police operation revealed the existence of what could be described as a drug ring, and having had the opportunity to fully read the depositional statements and the transcript of telephone intercepts, I do not resile from that somewhat colloquial description of your activities."
The judge went on to describe the activities of the five accused seriatim, and after canvassing what had been happening in May (the more general course of trafficking), the judge turned to June, commencing thus:
"In June, Trinh made contact with operatives and indicated that he could supply a 16-ounce block of heroin for $75,000. Negotiations about this purchase continued, and once again Trinh mentioned the existence of more than one supplier."
With this introduction, his Honour then referred in more detail, as already quoted in paragraph [17] above, to his "perusal of the transcript of telephone intercepts" and what that indicated, and then to what happened in particular on 8 July "following a meeting between Trinh and Phakasy". Having set that out already, I do not repeat it. The judge then added:
"They are the facts upon which the sentencing is to proceed."
Nothing could have been plainer; and, after adding a quotation from a judgment of the Court of Criminal Appeal in 1990 about "the blight on this community that is heroin trafficking", his Honour adjourned until 3.30 p.m..
Upon the hearing being resumed at 3.30, the judge made specific inquiry of the prosecutor about the days spent in custody. He discussed with the prosecutor the value of the amounts of the drug in question, and, before pronouncing "further reasons for sentence", made certain orders under s.464ZF of the Crimes Act. Then, and only then, did his Honour turn to the completion of his sentencing remarks by reference to the individual cases of the five accused, prefacing what followed with this:
"I now move to the sentencing remarks which I want to make, which are an addendum to what I mentioned this morning."
His Honour dealt first with Trinh, the circumstances of the offending and his personal circumstances, and sentenced him. He then dealt with Phakasy, Curelusa, Matei and Lordachescu in turn. When dealing with Matei he said:
"A perusal of the transcripts of the telephone intercepts satisfies me that over the period covered in the presentment you were a person whom Trinh knew to contact for the supply of significant quantities of the drug. Whilst it is clear that some of the discussions did not produce a sale, you were obviously the supplier of the substance, which was 15% pure and which was to be sold for $45,000 on the night you were arrested. You, I believe, have been revealed as a person very close to the apex of a drug distribution scheme and were the person prepared to supply the large amount of heroin in one transaction which was destined for the streets of this community. Fortunately, the transaction was nipped in the bud by the arresting officers on the night in question. Your counsel referred to the agreed statement of facts which was the subject of cross-examination at the Magistrates' Court, and consistent with the existence of that agreement, it is, I believe, open to the court to conclude, from the evidence of the telephone intercepts in particular, that that material supplies the context in which your trafficking activities should be seen, and also to supply the context in which the incident of 8 July is to be seen."
The judge referred next to the attempt to avoid arrest by the wild driving down Princes Highway, which he described as "an outrage". After dealing with the applicant's personal circumstances, he passed sentence as already described.
I have dwelt in some detail on the course of proceedings on 7 August because it is plain beyond argument, in my opinion, that the judge gave warning of what he deduced from the telephone intercepts. What is critical is that the transcripts of those telephone intercepts indicated to his Honour the ability of Matei to act the supplier of a large quantity of the drug heroin. Whether or not he was the ultimate supplier does not matter: vis a vis the other offenders on this occasion, Matei was the source of supply. In that sense he was "very close to the apex of a drug distribution scheme" - or, at all events, he was close enough to be able to see to the supply of such a large quantity as was involved in the transaction of 8 July (or was to be involved had it proceeded). The judge gave warning of what he had seen in the intercept transcripts when he commenced his sentencing remarks early on 7 August, and before the break, which was not of insignificant length. Yet upon the resumption of the sentencing process at 3.30 p.m., there was not one word by way of objection from any counsel at the Bar table, notwithstanding the judge's own diversion at that point into side issues. The judge did not go beyond the material to which he could properly make reference, and to which he plainly said that he had made reference; and in so far as the complaint is really that he did not alert counsel to what he had seen in the intercept transcripts, the complaint is not sustainable, because of the course actually taken, even if not by design, on 7 August.
For these reasons, expressed perhaps at too great a length, I see nothing in the grounds which complain that the judge went beyond the basis upon which the parties were proceeding when they appeared before him for sentencing; and I see nothing in the ground which complains that, in proceeding by reference to the transcripts of the telephone intercepts, the judge should have done more than he did to alert counsel to what he considered those transcripts indicated. The ground that procedural fairness was denied has not been made out, nor the ground that in some way the judge dealt with Matei for uncharged acts. As explained in argument, this last depends upon a construction placed by Mr Bourke upon that passage in the judge's sentencing remarks (quoted in paragraph [23] above) which mentions Matei as "a person whom Trinh knew to contact for the supply of significant quantities of the drug". As I indicated during argument, I do not regard the construction he suggested as appropriate: in my opinion, the judge was referring in the impugned passage only to the applicant's capacity to deliver the drug in the quantity required for that last deal on 8 July. He did not thereby indicate that he was treating Matei as the supplier of all the drug otherwise trafficked by the co-offenders.
That leaves only the ground of manifest excess. Despite the matters relied upon in mitigation, I cannot see that the sentences imposed upon this offender were outside the range of sentences reasonably open in the proper exercise of the sentencing discretion. The sentence for trafficking may be stern but it was not excessive, despite the applicant's youthfulness, his plea of guilty, his record and the other matters that were put in his favour. These were grave offences and, given his role in the offending, this ground of appeal is not made out.
Despite Mr Bourke's able argument, I think that this application for leave to appeal was rightly dismissed by the single judge. In my opinion we should now do likewise.
BROOKING J.A.:
I agree.
ORMISTON, J.A.:
I agree, essentially for the reasons stated by Phillips, J.A., that this application should be dismissed.
As contended in the applicant's outline of submission and at the beginning of oral argument before this Court, it was asserted that the learned judge made a number of pertinent and prejudicial findings of fact relating to the applicant's role in his admitted trafficking in heroin, which were "not contained in the agreed statement of facts". After much discussion between the Court and counsel for the applicant as to what in fact was the "agreed statement of facts" - there was considerable confusion between a short agreed basis for the plea of guilty and a document called a "police summary" - eventually counsel conceded that there was indeed "no strictly defined agreement as to the facts" and that the judge was "always entitled to go beyond those documents".
If there had been any true agreement, or even understanding, then the judge, on the basis of accepted authority, could not have departed from that agreement or understanding without telling the applicant or counsel of his intention. No authority was cited for the proposition that the judge was bound to give notice or inform of a proposed unfavourable finding not explicitly raised during a plea hearing, where there has been no such agreement or understanding. Procedural fairness cannot, of course, be trammelled by elaborate verbal formulations, but one must be careful not to confine the sentencing judge, when no restriction has been placed, by agreement or by concession, on the evidentiary materials which the judge may, indeed in most
cases ought to, read. Nor in the conventional case, where submissions in some detail have been made necessitating the judge to reserve his or her sentencing decision, should one impose the impractical burden on the judge of recalling counsel and spelling out each adverse finding he or she proposes to make, before ultimately passing sentence. I say nothing of cases where the prosecution has conceded a factual basis, or the judge has indicated a proposed basis, for sentence, or of cases where the offender or counsel has been lulled by either into a false belief about a basis for sentence which, if it is altered, may call for some notice of that alteration. Those are matters for another day. But none of these possible examples is analagous to the present case: prosecuting counsel, counsel then appearing for the applicant and counsel for the other offenders here each sought to draw the judge's attention to different parts of the depositions, including the transcripts of recorded conversations, all beyond, though referred to in, the police summary. Moreover, each appeared to assume that the judge was going to read the depositional materials, including the transcripts, for himself.
Secondly, this Court has no basis for knowing whether or not the applicant’s role as supplier, or close to the apex of the chain, was obvious from a reading of the transcripts of the intercepts, which were directly referred to in the "police summary", doubtless for the purpose of drawing the judge's attention to them, but they were not in fact provided to this Court. It would be one thing to draw an inference from doubtful materials, but quite another to recognise and make findings as to facts which in the end could not be disputed. It was for the applicant to show that the judge wrongly drew such an inference. As he did not, there would be no purpose to be served in re-sentencing the applicant.
Finally, it was for counsel to raise with the judge such matters as he thought appropriate. His failure to deal with the applicant's role in these dealings did not deny the judge's right to consider the issue, especially when parity was relevant to the proper sentences, not only for the applicant, but also for the other four offenders.
BROOKING, J.A.:
The application is dismissed.
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