R v Ognenov
[2001] VSCA 173
•5 October 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 339 of 2000
| THE QUEEN |
| v. |
| STASE OGNENOV |
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JUDGES: | ORMISTON and CALLAWAY, JJ.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22-23 August 2001 | |
DATE OF JUDGMENT: | 5 October 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 173 | |
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CRIMINAL LAW – Sentencing – Trafficking in heroin – Parity – Disputes as to facts on pleas – Different facts agreed or found in relation to role of each co-offender – Extent to which comparisons could be made with case of “exceptional” personal circumstances – Whether 4½ year term excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R. Carlin | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr O.P. Holdenson, Q.C. | Melasecca Zayler |
ORMISTON, J.A.:
The appellant seeks to overturn a sentence for trafficking in a drug of dependence, namely heroin, over the period 23 December 1997 to 1 May 1998, for which he was sentenced in the County Court to a term of 4½ years’ imprisonment of which he was directed to serve three years before becoming eligible for parole. The known facts as to his trafficking activities are not unusually complex but what in fact is complicated and confused are the factual bases on which both he and his co-offenders were sentenced. This is not only relevant to the sentence imposed on him but it is particularly so in relation to the circumstances in which the co-offenders were sentenced, the two of the principal grounds argued on his behalf being that the learned judge did not apply or give sufficient weight to the principles of parity. The plea hearings took place on two separate occasions separated by some 15 months and, although the appellant’s plea was ultimately presented at the later of those hearings, the first was notable for the hot and acrimonious dispute between counsel for the appellant and for one other co-accused named Laketa and prosecuting counsel which in fact led to the appellant (temporarily[1]) withdrawing his plea, by leave, at the end of that first hearing.
[1] See below paras [19] and [21].
Before turning to the sentences imposed on the co-accused, none of whom, it should be noted, pleaded to precisely the same offence, it is desirable to set out some further brief details of the appellant which were said to be relevant to this appeal. At the time of offending the appellant was 42 years old and had been previously found to have committed only one offence, namely in 1993 of being in possession of a drug of dependence, the charge being adjourned for two years. To put the matter in as neutral terms as practicable, since there was much dispute as to what was agreed and not agreed about the facts, the basis of the appellant’s plea of guilty to the “between dates” count was that he was involved as supplier of heroin to Laketa on six specific occasions from 23 December 1997 to 13 March 1998, which involved a total of 92 grams of heroin of average purity of 62% and which was said to be worth $32,050.
Then as to the co-offenders, one comes first to Laketa himself, who was charged with trafficking between 27 November 1997 and 19 March 1998 and was at the relevant time between 27 and 28 years of age. He purchased his supplies from the appellant and also from Ljiljana Olejar and his plea was based on his participation, at the “lowest level” in the chain, which was accepted as consisting of 19 transactions involving a total weight of 150.5 grams of average purity of 47% worth approximately $53,530. He admitted 22 previous convictions from five previous court appearances. However, her Honour said of Laketa that he was “an exceptional case in terms of rehabilitation” inasmuch as he was halfway through a 12 month program in which he was appearing to overcome successfully the drug addiction which had led to his offending and which, with the support of the Crown prosecutor at that hearing, was said to call for the imposition only of an intensive correction order for a 12 months period. In consequence, the learned judge, after obtaining an appropriate pre-sentence report, sentenced him to a 12 months’ term of imprisonment to be served by way of an intensive correction order at the Dandenong centre.
The next two offenders were sentenced at the same time as the appellant. Ljiljana Olejar was charged with trafficking between the period 27 November 1997 and 1 May 1998 when she was between 38 and 39 years of age. Her offence consisted of seven transactions in which she supplied Laketa with only some 24.5 grams of heroin of average purity of 48% worth approximately $9,150. She admitted one finding of guilt from a single court appearance in 1992 for a property offence and was sentenced by her Honour to 24 months’ imprisonment with a direction that she serve nine months before being eligible for parole. Veriliub Baloi also pleaded guilty to one count of trafficking, in his case between 13 March 1998 and 21 March 1998 when he was aged 33 years. His offending involved three transactions with users in total of slightly more than one gram of an unknown purity which was worth $535. Baloi admitted five prior convictions from two court appearances, including three for trafficking in drugs, and he was sentenced to 24 months’ imprisonment which was to be served concurrently with the sentence he was then undergoing for one of the earlier trafficking charges. Finally among the co-offenders one Zoran Djukic pleaded guilty to one count of trafficking in heroin at the Magistrates’ Court which involved two transactions involving two grams of unknown purity amounting to some $500 or thereabouts in value. He was 32 at the relevant time and was sentenced to six months’ imprisonment which was wholly suspended for 18 months.
The appellant sought leave to appeal originally on some 10 grounds but of these the last two grounds were not persisted in at the hearing before this Court. Ground 1 alleged that the sentence imposed was manifestly excessive but at the hearing that was made substantially to depend on the other grounds, together with two general assertions which shall be dealt with after dealing with the other grounds. Two grounds depended on what are called the principles of parity, ground 4 asserting that the learned judge did not give “sufficient weight” to the principles of parity and the second, ground 5, asserted that those principles were not applied accurately because of some six particularised failures relating to the co-accused but which was summarised in terms that, “in a case with the magnitude of offenders such as this, a disparate and artificial distinction of sentencing based on perceived differences does not reflect the reality of the situation and this would by necessity create a significant sense of injustice in the [mind] of the applicant and a sense of unfair and unexpected achievement in the minds of the co-accused.” The other grounds, namely grounds 2, 3, 6, 7 and 8 were argued together, although they raised a number of separate considerations. Ground 2 complained that the learned judge had not given sufficient weight to the significant rehabilitation and reform of the appellant which had taken place. Ground 3 asserted that, although the judge had indicated that she was taking rehabilitation, remorse, plea of guilty and other mitigating factors into account, the sentence imposed did not seem to reflect that. Ground 6 asserted that the judge did not give sufficient weight to the passage of time since the commission of the offence in the light of the fact that the appellant had participated in significant successful rehabilitation, and to the facts that his medical condition had worsened and that he had not been involved in further criminality. Ground 7 asserted that the judge should have given greater weight to the fact that the appellant had no prior convictions apart from one for possession and that, apart from his heroin use, he was a mature man of otherwise exemplary character. Finally ground 8 asserted that the judge did not give sufficient weight to the long passage of time between the offence and the sentence and his continued reform which took place during that period.
Summary of facts
It is difficult in the present case to be confident of the precise facts upon which the learned judge sentenced the appellant for there were, at various times in the sentencing process, at least two, and possibly more, versions of facts which were put forward on one side or the other. Not only that but there were different versions of facts relied upon by each of the co-offenders as apparently the basis upon which they themselves had pleaded guilty to the charges brought against them.
The background to the appellant’s offences was that on 27 November 1997 a police “covert operative” named “Mark” met Zoran Laketa in Endeavour Hills in order to buy heroin. “Mark” developed a relationship with Laketa whereby he would buy heroin from him but Laketa also came to sell heroin to another “covert operative” named “Paul”. The appellant and his co-accused Olejar were each involved in the supply of the heroin to the undercover operatives by reason of their separate sales to Laketa.
Although this was the subject of much disputation, Laketa was said to be “at the bottom of the food chain”, as it was described. Certainly Laketa’s plea was based on the fact that he had passed on the entire proceeds of the sales to the appellant and Olejar. He was a heroin addict at the time and was paid in heroin and small amounts of money from time to time for his involvement. It was put on behalf of the appellant that he did not receive all the proceeds of the transactions involving Laketa and that Laketa was paid small amounts of money as commission. It was agreed that there was no evidence as to how the profits were divided between the appellant and Laketa. The Crown case was that the appellant was one step up from Laketa and closer to the source of the drug supply. Olejar also supplied Laketa with heroin from her residence in Noble Park. The Crown was not able to exclude the possibility that her premises were used to store the drug for the purposes of trafficking. From 10 February to 22 March 1998 a telephone intercept commenced in relation to the phone service at the house at Noble Park and a little later a listening device was installed in the premises. Certain conversations were recorded involving Laketa Olejar, Baloi and Djukic, but not the appellant.
It is sufficient to give only a few details of the transactions in order to show the nature of the relationship between the appellant and Laketa. On 23 December 1997 the operative “Mark” telephoned Laketa requesting half an ounce of heroin. A short time later Laketa contacted “Mark” and offered him 14 grams for $5,100 which was accepted. He was told to meet Laketa in Dandenong and to call on his mobile phone. Both the appellant and Laketa then went to King George Parade, Dandenong where they made arrangements to place the heroin in a cigarette packet and put it into a rubbish bin in another Dandenong street. The appellant left while Laketa remained. At about twenty to one “Mark” arrived at King George Parade and met Laketa. Together they drove to the street where the rubbish bin was situated and “Mark” handed Laketa $5,100. Laketa pointed to the rubbish bin and told “Mark” the heroin was there. “Mark” retrieved the cigarette packet from the bin which contained some 14 grams of heroin analysed to show it to be 55% pure diluted with glucose. The next transaction on 7 January was similar except that on this occasion “Mark” handed Laketa $2,600 at King George Parade and then Laketa left “Mark” to meet the appellant in a car, from which Laketa returned shortly afterwards to hand “Mark” a package containing seven grams of heroin which was 85% pure. A further transaction on 19 January 1998, involving some 14 grams of heroin, was again carried out in a not dissimilar way.
On 30 January 1998 “Mark” again contacted Laketa wanting some 28 grams of heroin. The negotiations took somewhat longer on this occasion with “Mark” wanting to meet the appellant to discuss quality and price. In fact, after “Mark” handed over $4,500 Laketa introduced the appellant to “Mark” in Dandenong. Then “Mark” handed over another $4,650 to the appellant, which was followed by arrangements between the appellant and Laketa to provide the heroin to “Mark”. Laketa then handed over a package in the usual way, and on this occasion the 28 grams of heroin was 65% pure. A not dissimilar transaction involving 28 grams of heroin shown to be 75% pure was conducted on 15 February 1998, but “Mark” dealt with the appellant only over the telephone, before being told to pay the price of $9,600 directly to Laketa, which he did. Finally, on 13 March 1998 the covert operative “Paul” contacted Laketa in order to obtain one gram of heroin. They met in Endeavour Hills and the appellant drove past stopping some distance away. “Paul” handed over $500, after which Laketa obtained the drug from the appellant’s car and handed over the one gram which was shown to be 40% pure.
Some time later on 1 May 1998 a number of search warrants were obtained and executed at the homes of the five co-accused. Laketa was arrested in Endeavour Hills and the appellant was arrested at his home in Dandenong West. Various items were seized there including a mobile phone, metallic items associated with compressing heroin, glucose, a food processor and plastic bags and tapes. Both the food processor and the metallic items were found to contain traces of heroin. When interviewed each of the offenders including the appellant gave “no comment” answers to questions put to them.
The sentencing process
In order to gain a better understanding of what occurred in the course of sentencing the various co-offenders it is unfortunately necessary to relate some of the steps taken to that end. I say “unfortunately” because considerable time was spent, if not wasted, on disputes between counsel as to the precise basis upon which each person, and particularly the appellant, should be sentenced. The confusion was compounded by the fact that those disagreements between counsel took place between a group of counsel who did not appear when the appellant was in fact sentenced by the learned judge and those lawyers were, save for the appellant’s solicitor, different from counsel who appeared on this appeal.
One must also briefly refer to the proceedings in the Magistrates’ Court upon committal. On the same day, 3 March 1999, as Djukic pleaded guilty and was sentenced, the appellant and Laketa were committed for trial. At that time counsel for the appellant and the prosecution put forward and tendered a one-page statement of what was said to be the basis upon which the appellant pleaded guilty. On this appeal counsel for the appellant told us in effect to ignore it, but it is not unimportant inasmuch as it explains some of the difficulties which arose on the plea hearings. It stated that the appellant and Laketa and others were involved in supplying heroin to “Mark”, but on only five occasions. In particular, the Crown agreed: “There is no evidence of how the profits were shared between Ognenov and Laketa”. It was also agreed there was no mention of the appellant on any of the listening device or intercept tapes, nor any surveillance photographs of him. No marked money was found, nor any other evidence of enrichment.
It was this arrangement which first caused difficulties when the pleas of the appellant and Laketa came on for hearing on 15 June 1999. Prosecuting counsel then started to open the facts in a way which suggested that his opening would deal with both offenders, although the chronology of events required him to begin with Laketa’s trafficking. Counsel then stated that the prosecution accepted that Laketa was “the ultimate or the last person in the chain of supply … and he sourced his heroin elsewhere”, in effect that he was the last person in the chain who directly supplied the operative “Mark”. Prosecuting counsel turned to the case against the appellant and the agreement worked out at the committal proceedings. When he recited that there was no evidence as to how the profits were shared between the appellant and Laketa, counsel for Laketa said he was not aware of that agreement and that it conflicted with what had been agreed between his client and the Crown. More disagreements and inconsistencies between the cases against the two offenders became apparent. When counsel for Laketa, opening his plea, referred to his understanding that it had never been suggested that Mr Laketa received any profit or any payment except in heroin, there was further disagreement. The learned judge observed that there appeared to be some conflict about the basis on which each offender had pleaded. As related to the judge by Laketa’s counsel, there had been an agreement that in these transactions Laketa was “the bottom of the food chain”, that he used heroin in the presence of the undercover policemen, that he had access to suppliers, that he could not supply heroin “off his own bat” and that, being a user, he would never have been advanced any heroin on credit.
Counsel for the appellant then suggested that these facts were inaccurate, but it was agreed temporarily that they should be received only for the purpose of Laketa’s plea, which was therefore conducted on the basis that he was merely the “go between”, and this the Crown appeared to accept. Indeed Laketa’s counsel said that his client would not have pleaded guilty but for that understanding. Counsel then proceeded to deal in considerable detail with Laketa’s drug addiction, his willingness to undergo certain programs for rehabilitation, his success so far in weening himself from drug use and the considerable medical evidence put forward to support a contention that, because of his largely successful rehabilitation, he deserved special consideration. It was an exceptionally detailed plea with the evidence being sufficiently convincing in the end to persuade both prosecuting counsel to concede, and the judge to accept, that an intensive correction order was the most desirable way to sentence him.
When the learned judge then asked counsel for the appellant to present his client’s plea, reliant upon the agreement reached at the committal proceedings, further difficulties arose. Counsel for the Crown appeared to renege on the earlier agreement by saying there was no evidence as to certain matters, with the judge commenting that there would be difficulties in making the relevant findings. It is perhaps not very instructive to examine further precisely how the parties’ counsel and the judge found further and further difficulties. It is sufficient to say that on the following day counsel for the appellant saw his client’s position as so difficult that he sought leave to change the appellant’s plea to not guilty. After hearing certain evidence from the prosecution about the appellant’s role, the judge refused at that stage to grant leave.
The gist of the plea being made on behalf of the appellant remained that the appellant should be sentenced on the same level as Laketa. But when the plea resumed the prosecutor attempted to make a further summary of the basis of the plea but her Honour said that she was merely going to use it as a guide and that she would have to engage in a fact-finding exercise to the extent that that was necessary. Counsel for Laketa said then that, whatever was agreed between the Crown and the appellant, he was concerned that there were two different bases for sentencing the offenders in relation to some of the same transactions. At this stage the prosecutor intervened by saying that there was agreement between himself and counsel for Laketa but that was in effect inconsistent with the factual basis for the appellant’s plea. Consequently, he said, it was appropriate to adjourn the appellant’s plea to some later date when the question of the factual basis for it could be considered more completely.
The following morning the making of an intensive correction order in relation to Laketa was finally dealt with, both the Crown and the learned judge believing that that was the most appropriate disposition of Laketa’s case in the very particular circumstances there raised. Her Honour was greatly impressed by the evidence as to Laketa’s attempts at rehabilitation and to rid himself of his drug addiction. The matter was stood down so that an appropriate pre-sentence report could be obtained. It was at this stage that her Honour stated that the case appeared “to be an exceptional case in terms of rehabilitation”, especially in the light of the Crown’s concession on the subject.
Thereafter the prosecutor insisted that the Crown’s position was that the appellant was the supplier to Laketa and that was resisted by counsel on behalf of the appellant. It seemed likely that it would have to be resolved by the calling of evidence. Counsel then reiterated that his client had pleaded upon the basis of an agreement with the prosecution so that, in the light of the Crown’s insistence that evidence should be called, his client now had a proper basis for an application to withdraw his plea of guilty. Immediately the prosecutor supported that application and the judge agreed that, because there might be a miscarriage of justice in the circumstances, leave should be granted. In consequence the matter would have to go to trial and it was adjourned accordingly.
At this point a corrections officer’s pre-sentence report was received, to the effect that Laketa was a suitable person to be placed under an intensive correction order. The learned judge accepted the recommendation and, without elaborating further on her reasons in any way, then and there sentenced Laketa to a 12 months’ term of imprisonment to be served by way of an intensive correction order. There cannot be the slightest doubt, however, that the basis for that order was as had been discussed over the previous day or so, namely, that this was an exceptional case for rehabilitation, so justifying what would otherwise appear to be a very lenient sentence.
The appellant, Olejar and Baloi were therefore due to come on for trial some time later. However, over a year after the first plea hearing, the appellant eventually changed his mind again and indicated his willingness to plead guilty, as did both Olejar and Baloi. The learned judge was not then available to hear the pleas but all three came before the Chief Judge on 31 July 2000 for the purpose of formally taking their pleas. In the course of that hearing the appellant’s solicitor made brief mention of the history of the earlier plea and stated that the ideal time for the hearing of his client’s plea would be at the end of the pleas made on behalf of the other two accused, “rather than jointly, because there is no issue of parity or matters of that nature”. The appellant and Baloi then pleaded guilty, the taking of the other plea being deferred for a fortnight. The pleas were then adjourned to 28 August, the appellant’s solicitor again insisting that his client’s plea be heard after that of the other accused because, as he said “they are not co-accused, they appear on the same presentment simply because historically that’s the way it started out”.
When the matter in fact came on again before the learned sentencing judge, on 28 September 2000, new senior counsel then appearing for the appellant again insisted that, although his client was on the same presentment, the plea should be heard separately and after the other two offenders’ pleas, as his client’s matter was “a totally disconnected and different matter”. As he put it, the trafficking was not part of a wider exercise and the only thing that was similar was that “Mr Laketa plays a role in both”. Counsel did agree to the prosecutor opening all three at once, but, as it turned out, there was a separate opening in relation to the appellant’s plea. There was by this time a Crown summary in relation to each of the pleas, but in each case it was read out to the judge and transcribed. The learned judge recalled and referred to the one page of agreed facts tendered at the committal proceedings, but she then raised the fact that in the Crown summary relating to the appellant it was alleged that “he is one step up from Mr Laketa”. As to that both counsel accepted that that was the Crown’s position but it was not agreed. Likewise the Crown summary used the expression that the appellant “facilitated Laketa in heroin trafficking to the police undercover operative”, but it was said that the Crown contended that he had been “supplied”. Counsel contested that “supply is the appropriate way to describe the conduct” and it was also contested whether the appellant was above Laketa; rather counsel said that “he might be the one in front, but not the one above”. The judge seemed irritated at these convolutions of expression, especially when it was explained that the appellant was admitting only that he played a part in that supply. When she said she wanted to know what that meant and what part the appellant played, counsel nevertheless said that it was not a case where they were ready to go into evidence on the subject.
There followed the pleas of both Olejar and Baloi, each proceeded by the Crown opening the facts relating to the relevant plea. The only matter to be noted in the course of those pleas is that, when the question of Baloi’s plea of guilty was mentioned as saving the court and the community a great deal of time, her Honour intervened to say that that applied to each of the prisoners.
When those pleas had been completed, the appellant’s case was preceded by the prosecution reading the relevant summary. I mention at this point the opening paragraph in which it was stated:
“Ognenov has pleaded guilty to trafficking in heroin between 23 December 1997 and 1 May 1998. The Crown says that Ognenov facilitated Laketa in heroin trafficking to the police undercover operative.”
The facts relating to various transactions were then stated in moderate detail, substantially dealing with each transaction in the manner described above. In each case, however, the precise activities of Laketa and the appellant were described in language along the lines that they “made arrangements” to put the heroin into the hands of the “undercover operatives”. However, the details of the particular transactions were almost identical to those that I have stated. At the end of the summary counsel for the prosecution referred to the raid on the appellant’s home on 1 May 1998 and the finding of various items, also summarised above. Some formal matters were dealt with and then the prosecutor concluded his summary by stating:
“Ognenov and Laketa and others [were] involved in the provision facilitating[2] of heroin to “Mark” and Paul, the two undercover police operatives. Ognenov is a step up from Laketa, and the Crown accepts the statement of facts [previously referred to as the agreed statement tendered at the committal]. Ognenov’s involvement relates to six occasions between 23rd December 1997 and … 13 March 1998 concerning undercover purchases worth $32,050 of heroin. The Crown agrees that there is no evidence of how the profits were shared between Ognenov and Laketa.”
There was likewise repeated the agreement as to the absence of any mention of the appellant on the tapes or intercept transcripts or photographs taken during surveillance. Finally it was said that so far as any alleged conversations between the appellant and “Mark” were concerned, the tapes constituted the evidence rather than the summaries, and that for present purposes the appellant pleaded guilty at the first available opportunity at committal.
[2]Sic.
Counsel then appearing for the appellant at this stage opened the plea. He referred to the earlier disagreements as, in his words, “an unsavoury exercise”, but said that fortunately none of the relevant counsel were then appearing on that latter occasion. He then said that “the agreed statement of facts that essentially was presented to your Honour on the first instance, stands today”, whatever that might precisely have meant. His argument was that on the first occasion Laketa was presented as a drug-affected “pawn” at the end of the chain simply trafficking the heroin to the undercover policemen and “that somehow his culpability was markedly less than anybody else in the case”. Counsel then said that he would argue that the contention that Laketa was at the end of the chain or “hierarchically lower than anybody else” was nonsense. Moreover, he contended that Laketa was a drug trafficker in business independently of the appellant and that the latter was involved only in the six stated transactions. Now it is not necessary to examine the detail of these contentions further for the good reason that the Crown appeared to maintain its contention, while counsel for the appellant sought to dissuade the judge from making the findings which were apparently the basis for Laketa’s plea and sentence. Although at one stage counsel remarked that he had spent much time dealing with Laketa because he was concerned about those “findings”, the judge said that she had reread the transcript and sought to assure counsel that the present plea depended on “the matters put to me by both sides today”. Counsel did not suggest the contrary. Counsel then called two witnesses, one of whom was a director of a firm of drug rehabilitation consultants, who said that the appellant seemed to be a suitable case for rehabilitation. Amongst other matters put in argument counsel contended that the judge should have regard to the sentence imposed on Laketa and that there should not be disparity between the two offenders.
In response counsel for the prosecution said that the Crown maintained that the appellant was a step up from Laketa and that that could be determined on the examination of the whole of the material relating to the various meetings with the police operatives. Counsel for the appellant had submitted that a suspended term of imprisonment was appropriate with some time in fact to be served in custody. On the other hand prosecution counsel submitted that a term of imprisonment was appropriate but that the matter of service of the sentence was a matter for the judge. If the judge was minded to suspend it then the Crown submitted that some portion should be immediately served. On this appeal counsel submitted that that indicated that the prosecutor below conceded that a three year term or less was the only appropriate term of imprisonment, but I would not draw that inference from the statements then made.
The sentence
On 24 October 2000, after having reserved her decision, the learned judge passed the sentences which have been set out at the beginning of this judgment[3] and gave reasons separately before each of the sentences then passed on the appellant, Baloi and Olejar. So far as the appellant was concerned, she outlined the facts relating to his offending with a brief description of the six relevant transactions, after which she set out the substance of the matters which had been agreed to between the Crown and appellant’s counsel. As there remained some doubt as to precisely what had been agreed, I mention that the learned judge found: that the appellant was “not a Mr Big”; that there was no evidence of enrichment; that his criminality related to the period 23 December to 1 May 1998 and did not “reflect a continuing venture”; that Laketa had sold heroin to undercover police before the appellant’s involvement; and that there was no evidence as to how profits were shared between him and Laketa; and that his only involvement with Laketa was set out in what she called the “agreed statements of facts”, from which I would assume she intended to refer to the opening statement of the Crown and the facts originally agreed at the committal proceeding, though somewhat varied later.
[3]See paras.[1] and [4].
However, the learned judge did deal with the dispute between the Crown and the appellant as to whether or not he was “a step up from Laketa”. After briefly examining the arguments she said that, having examined the material which was admissible against the appellant alone, she was persuaded beyond reasonable doubt that he was the person who supplied Laketa and was not on his level, but was in fact a step up the chain from Laketa.
The learned judge then considered a considerable number of the matters relating to the appellant’s character and personal history but she concluded, contrary to contention made on his behalf, that she was not satisfied that the appellant was a heroin user nor that he was self-medicating on heroin. She concluded that he was therefore trafficking in heroin for profit. As to matters of parity she concluded that there were “important differences” between the appellant and Laketa, as follows:
“Your role was different to that of Laketa, in that you were one step up from him. Further, in relation to Laketa I found that at the time he took part in the transactions with the undercover police he was heavily addicted to heroin, and was desperate to obtain heroin for his own use from the various deals. You were not in that situation. I accepted that he had taken appropriate steps to deal with his drug addiction, and thus to rehabilitate himself. At the time of the plea he was on a naltraxone program, having been heavily addicted to heroin.”
The learned judge also for this purpose compared the appellant’s offending with that of Olejar, saying explicitly nothing as to the case of Baloi, for what might be thought to be the obvious reason that the amount of heroin in which he trafficked was considerably under two ounces in total. As to Olejar the judge said that there were significant differences despite the fact that she was also one step up from Laketa in the chain and had also committed the offence for profit. The principal differences were, however, that the amount of heroin involved in her case was less than a third of that traded in by the appellant and that special deterrence was not so appropriate, for she accepted that Olejar had rehabilitated herself for relevant purposes.
The judge then set out a number of matters in mitigation, including his plea of guilty and the benefits which would thereby result, the pecuniary penalty order, his back injury and his otherwise good character. Nevertheless, she had to give “a deal of weight” to general deterrence and also to the need to deter the appellant as a man of mature years who was not addicted to heroin but had trafficked in it for profit. She therefore imposed the term of 4½ years with the minimum to be served of 3 years.
I have gone through this far too elaborate examination of what occurred at the various plea hearings for the purpose of showing, if only in part, the great variety of factors which came into the sentencing of both the appellant and the other offenders. I add only one other fact, namely, that the appellant was present throughout all these plea hearings, so he would have heard the evidence and the arguments, so that it might be said, in so far as a lay person could be, that he was in a position to ascertain objectively whether the difference between the various sentences, and particular that imposed on Laketa, was such as might engender in him a justifiable sense of grievance, if that were at all possible.
Application of principles relating to disparity
As I perceive that parity was the principal matter relied upon by counsel now appearing for the appellant in this Court, I shall deal with it first. It should be said that, even for one reasonably familiar with arguments based on the so-called principles relating to disparity, I have found this an extraordinarily difficult exercise, taking many hours of analysis, to ascertain precisely what facts were relied upon for the purpose of each plea, more particularly the differences between them, and also to ascertain the various personal characteristics and other related factors which the learned judge took into account in sentencing each of the offenders. Of course there is a significant difference between the sentences. The question remains, however, whether having regard to all the relevant factors the appellant was entitled to feel a justifiable sense of grievance about the different sentences and in particular, since it was in the end the only one seriously pressed, as to the difference between Laketa’s sentence and that imposed on him.
For the purpose of applying these principles it is necessary, in order to make a fair comparison, that one is able to compare like with like. That does not mean that the offence must be an identical offence, nor that the facts must be identical, nor that the personal circumstances of each offender must be identical. Nevertheless, the more differences that can be perceived, the less easy it is to make a fair comparison and the harder it is for the offender to complain and have a justifiable sense of grievance as to the sentence imposed on him or her and on some other offender with which a comparison is sought to be made. In the present case, whatever personal sense of grievance might be felt by the appellant, there were a series of differences which make it hard for the argument to succeed that there was a relevant disparity of treatment which might fairly have led to a justifiable sense of grievance on the part of the appellant.
The first of a number of differences between the case of the appellant and that of Laketa is the difference in factual bases upon which they were sentenced. It is all very well for the Court to say that in fact-finding on pleas it is the judge’s responsibility ultimately to find the necessary facts, whatever prosecution and defence counsel may seek to put forward. Chow v. DPP[4], as adopted in Mielicki[5] and R. v. Duong[6], shows that there will inevitably be cases, as the latter two cases acknowledge, where the factual basis for one sentence will differ from another, because each plea has been heard either by a different judge or at a different time. Moreover, it is possible that the latter two decisions (to which I confess I was a party) may not have given sufficient recognition to the obvious desirability from both the public’s and the parties’ point of view that pleas of guilty should be accepted upon particular agreed bases, although it is not necessary to resolve that issue here. No authority on this issue was cited to the Court although it clearly had relevance and some questions were directed in argument to the issue. It seems, however, that Mielicki not only recognises that differences may exist but that in practical terms they make it almost impossible appropriately to apply the principles relating to disparity. So it was said in the latter case[7]:
“It would, in our view, be an extraordinary situation for a court to interfere to reduce the sentence for one offender which has been artificially confined by an agreed statement of facts by reference to sentences passed on co-offenders who have not received such a benefit. The concept of parity, which is designed to remedy perceived injustice where co-offenders have received excessively disparate sentences for the same criminal activities, would be totally distorted if it were to be applied to the artificial situation here confronting a sentencing court to confer yet further benefits upon an offender in the applicant’s position. It cannot be said that the interests of justice require such an approach.”
Here, the precise example given in Mielicki does not strictly apply, for in the present case, although the appellant sought to confine the basis for his plea to what was said to be agreed facts, the judge said she would not be so confined and in certain important respects she made findings contrary to the submissions of the appellant’s counsel. However the plea of Laketa may well be said to have been artificially confined by the agreement then made, although there was no real dispute then between the parties and thus at that time little basis for suggesting that the judge could have made any different findings. That might only have arisen if the parties had persisted in trying to hold the two pleas at the same time, which was of course the reason for the aborted plea hearing and the later listing of it.
[4](1992) 28 N.S.W.L.R. 593.
[5](1994) 73 A.Crim.R. 72 (C.C.A. of Vic.).
[6][1998] 4 V.R. 68.
[7]At 85.
Here, for better or for worse, the judge clearly took a view that the roles of the appellant and Laketa were significantly different, as she in fact stated in her reasons for sentencing the appellant. In this case the relevant agreement was in relation to Laketa’s participation, with the Crown in particular, agreeing that he was at the bottom of the distribution chain and that, because of his addiction, he was content to receive no payment other than the provision to him of heroin. In other words, he was treated merely as a go-between for the provision of heroin to the undercover police operatives. On the other hand, when the judge made findings as to the appellant’s role, she rejected a contention that Laketa played a much more significant part in the overall distribution of heroin and concluded therefore that the appellant was one step up that chain from Laketa and, just as importantly, that he was engaged in trafficking in heroin for profit, relying not merely on the transactions themselves but also on the finding of equipment used for drug trafficking. I see no reason to conclude that her findings were erroneous.
It followed, as the learned judge consequently found, that Laketa was at the relevant time heavily addicted to heroin and desperate to obtain it for his own use, whereas the appellant, was not even using heroin for self-medication purposes and was in trafficking purely for profit.
Then, as to personal characteristics and the like, there were again significant differences. There were a number of factors taken into account in favour of the appellant, which the judge recited, such as his formerly good reputation and that he had been off work because of continuous back pain for some time. Nevertheless, as I would understand her findings, the appellant was in essence to be treated as responsible for his participation in this very serious offence carrying at the time a maximum of 15 years’ imprisonment. He was therefore seen, properly, as a suitable case for both specific and general deterrence. On the other hand, the judge had seen the case of Laketa as “exceptional”, not so much because he was a heroin addict drawn into trafficking to satisfy his own addiction but, more importantly, she was greatly impressed by the quite extensive evidence of Laketa’s attempts to rehabilitate and of his actual successful rehabilitation to that stage. So she said that although she had originally thought it was a serious case calling for imprisonment served in custody, the evidence as to rehabilitation had persuaded her that it was proper, if a corrections officer thought Laketa a suitable candidate, to place him under an intensive correction order for what was the maximum period of 12 months. Moreover, in the case of Laketa the Crown supported the proposed sentence. Having reached those conclusions it is of course not surprising that what appears to have been a generous sentence was imposed on Laketa, but in circumstances which to my mind were clearly different from those applying to the appellant and which primarily depended on Laketa’s personal characteristics and history. To me that seems to be the very basis upon which there should be different approaches made to offenders in the sentencing process. If it were not so, if parity required some further narrowing of sentences, then there would be a strong incentive to trial judges to refuse to make orders, which perhaps would err on the side of generosity, but which would be designed to take some small risks to achieve one of the prime ends of sentencing, namely rehabilitation.
Counsel for the appellant placed great weight on factors which on his analysis showed that Laketa’s offending should have been treated as at least as serious as that of the appellant, namely the extent of their trafficking and their comparative criminal histories. So Laketa was involved in 19 transactions compared with the appellant’s six and the weight of heroin involved was 150 grams as compared to 92 grams in the appellant’s case. Likewise Laketa had 22 prior convictions from five court appearances to only one in the case of the appellant. These mathematical comparisons might on the face of it appear to point to the appellant’s receiving at least as lenient a sentence as Laketa or, conversely, requiring the judge to have imposed a more severe penalty on Laketa.
So one can see how, if one were required to apply the principles of disparity in this simplistic, mathematical way, the appellant might have felt a sense of grievance over their comparative sentences. But the question to be answered always is whether, objectively, in all the circumstances, the offender can have felt a justifiable sense of grievance. The mathematical calculation belies the real nature of the offending by both the appellant and Laketa and fails to take account of those personal factors, already described, which justified a more lenient approach to the sentencing of Laketa. If those matters had been properly understood by the appellant, then he would not have had the justifiable sense of grievance which must be avoided. In fact he was present throughout both at the hearings, so, with patience, he should have understood that Laketa’s case was “exceptional”, as was stated several times, and the reasons why both prosecution and judge took that view. Moreover, if he had been able to put forward a case for continued rehabilitation as compelling as the one earlier advanced for Laketa, then he might have had a sense of grievance if that had not been recognised, but he was not on the facts able to do so. He should have understood that he was properly considered as a trafficker engaged in that nefarious trade solely for personal gain and with only a few other redeeming factors, to which I have already referred. There was no case for rehabilitation put forward of the kind advanced for Laketa and he should have realised that highly significant difference in their cases. Again, he was unable to put forward any claim that he was merely engaging, as best he could, in trafficking in drugs merely to feed an addiction. No such view could or was taken of his case and that likewise was a significant difference which he should have recognised. There was no basis, therefore, for his having any justifiable sense of grievance at the outcome when comparing his own sentence with that of Laketa.
Finally I mention an argument put forward on behalf of the appellant that, even if it were thought that the two offenders deserved different sentencing treatment, the difference between the sentence imposed on the appellant and Laketa was so great as still properly to give rise to a justifiable sense of grievance on the appellant’s part. There may be cases where such an argument might succeed, but for obvious reasons it is a difficult argument to sustain. Once one accepts that the two subjects of the sentencing discretion may be dealt with differently, the precise manner in which each should be sentenced ought to depend on the application of recognised principles. That may well include, in appropriate circumstances, extending leniency to one offender because of his or her particular circumstances, the more so if they are exceptional. If that be so, it does not seem reasonable in the present case, where exceptional circumstances were in fact found, to require some other sentence to conform in some way to those circumstances or to be artificially reduced to overcome some perceived anomaly which in truth has no proper basis in fact. I would not accept this contention.
For these reasons neither grounds 4 nor 5 are made out.
Other grounds – weight to be given to mitigating factors
The remaining grounds, namely grounds 2, 3, 6, 7 and 8, were argued together in a way which raised various issues in a form not precisely reflecting the specific terms of those grounds. I propose to deal with those grounds in the way in which they were argued.
First it was said that the appellant’s plea of guilty was a significant mitigating factor which was not reflected in the sentence. It was pointed out that the plea was entered at a particularly early stage which resulted in much benefit by saving court time and costs generally, Each of these matters was stated in some detail by the judge who said that not only was the appellant entitled to have those aspects of the plea taken into account but also that she had done so. I cannot accept the contention that, when one has regard to the sentence in fact imposed, it was clear that she had failed to have sufficient regard to those matters. Having regard to the view that I have taken of the role played by the appellant, as well as the other relevant factors, the sentence was in fact less than might otherwise have been imposed but for the plea and was relatively modest, for what was in all relevant senses a serious offence.
Secondly it was said that there was evidence led as to the appellant’s reputation, which was accepted by the learned sentencing judge, but that when one had regard to the sentence imposed, her Honour had failed to accord sufficient weight to that factor. In support of this contention counsel pointed out that the offender was 45 at the time the sentence was imposed but had only one minor prior conviction and had not offended since the commission of the subject offence which had occurred some two years earlier. The judge clearly took account of the evidence led as to his reputation in the local community as a good family man and that he had assisted in the past in various local activities, including a local soccer team. I see no reason to believe that her Honour failed to give appropriate weight to these matters but, as counsel for the respondent pointed out, there was in fact only one character witness called. It is frequently pointed out in these drug trafficking cases that those who engage in this nefarious trade frequently take advantage of their reputation. That does not mean that it is irrelevant; only that one should be cautious about placing too heavy weight upon it in relation to the commission of a serious offence such as trafficking. I see no reason to believe that the judge failed to take this matter
into account as a mitigating factor.
As the other matters referred to in these grounds were not pursued further in argument, it is unnecessary to discuss them and in consequence none of the relevant grounds have been made out.
Manifest excess
For this purpose counsel for the appellant referred to and repeated his arguments in relation to grounds 2-8. In addition he added only that, in the light of the other matters relied on before the learned judge, the sentence was manifestly excessive being out of proportion to the appellant’s misconduct and outside the range of sentences appropriate for this offence. I have already explained why I have rejected the arguments based on the other grounds but, having read the whole of the plea and the sentence, I can find nothing in it which would justify the appellant’s contentions. This was a serious offence which was carried out for profit by a person deliberately engaged in an organisation distributing heroin. Whatever else might be said in his favour, I consider that the sentence imposed was well within range. The ground is therefore rejected.
For the reasons I have endeavoured to explain this appeal should be dismissed.
CALLAWAY, J.A.:
I agree with the learned presiding judge.
O'BRYAN, A.J.A.:
I have had the advantage of reading in draft the judgment of Ormiston, J.A. I agree in his reasons that the appeal should be dismissed.
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