R v Pavlov - [2001] NSWCCA 13

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Pavlov [2001] NSWCCA 13

FILE NUMBER(S):
60219/00

HEARING DATE(S): 12/02/01

JUDGMENT DATE: 12/02/2001

PARTIES:
Regina v Peter Andres Pavlov

JUDGMENT OF: James J Whealy J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0001

LOWER COURT JUDICIAL OFFICER: Blanch CJ/DCJ

COUNSEL:
M. Grogan - Crown
Ms R. Burgess - Applicant

SOLICITORS:
S. E. O'Connor - Crown
D. J. Humphreys - Applicant

CATCHWORDS:

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985

DECISION:
Leave to appeal be granted, appeal be allowed, the sentence be quashed. In lieu therefof the applicant be sentenced as follows: The applicant is sentenced to 3 years and 6 months imprisonment with a non parole period of 2 years 6 months. The applicant will be eligible to be relased on parole on 4 February 2002. The sentence would date from 3 August 1999.

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL
60219/00
JAMES J
WHEALY J

MONDAY 12 February 2001

REGINA V Peter Andres PAVLOV
JUDGMENT

WHEALY J: This is an application for leave to appeal against a sentence imposed by the Chief Judge of the District Court Justice Blanch. The sentence was imposed on 12 April 2000. The applicant on 21 December 1999 at Central Local Court had entered a plea of guilty to one count of supply prohibited drug contrary to s 25 (1) of the Drug Misuse Traffic Act 1985. That offence carries a maximum penalty of 15 years imprisonment or a fine of $5,000 or both (s 31(1)). The applicant was committed for sentence to the District Court under s 51A. His Honour imposed a sentence of six years with a non parole period of four years to date from 3 August 1999. The applicant is eligible for parole on 2 August 2003.
The offence was committed between 13 July 1999 and 14 August 1999. During this period the applicant supplied an undercover police officer with heroin on five occasions. The written submissions suggested that in total 7.2 grams of heroin were supplied, although it seems it may more accurately have been 7.05 grams, from the matters which were put to the court this morning.
Originally the only ground of appeal relied on by the applicant is that the sentence was manifestly excessive, although there has been added to that ground a parity argument today arising out of the published decision of Judge Patten in the District Court on 26 May 2000 of reasons for sentence in relation to a Mr Nguyen. I shall return to that matter later.
The facts were as follows. The five occasions of supply occurred in circumstances where the applicant, himself a heroin addict and former alcoholic, was approached by a police undercover officer at his home, Unit 1, 584 Elizabeth Street Redfern. As a consequence of these approaches, the applicant supplied the heroin in question.
His Honour noted, in this regard, at p 1 of his reasons: -
"That should be taken into account because it is always relevant to consider when there is a police undercover operation and the police officer acts undercover that the police officer may encourage the commission of an offence or offences which might not otherwise have been committed."
On 14 July 1999 the undercover police officer spoke with the applicant in relation to the purchase of 0.01 gram of heroin in the sum of $50 and a purchase was made. On 20 July 1999 the same undercover officer attended the Redfern address and spoke with the applicant in relation to the purchase of an amount of heroin. The applicant stated he was out of heroin, but was waiting to be supplied and would be able to sell him heroin within half hour. The police officer returned about an hour later and he then spoke to the applicant and the applicant's son, in relation to the purchase of heroin. He purchased 0.06 grams of heroin for $50.00 from Andre Pavlov, who was the son.
On 27 July 1999 the police officer went back to the applicant's premises and spoke to him in relation to the purchase of heroin and he purchased again 0.08 grams of heroin for the sum of $50. On Tuesday 3 August 1999 the same police officer went to the applicant's premises and spoke with the applicant and his son. He purchased 0.02 grams of heroin for $100.
The undercover police officer began negotiating about the purchase of a larger amount of heroin. The sale of the 0.02 grams of heroin occurred between 6.30 pm and 8.05 pm and the undercover operative returned and spoke with the applicant. The son left the unit and went to the police officer's vehicle and there the police officer showed the applicant $8,000 and there were further negotiations entered between the police officer, applicant, and Andre.
The latter was instructed to contact their supplier. They waited for a period of time for the supplier, whose name is Nguyen. He was in fact the same man sentenced by Judge Patten on Friday 26 May 2000. He attended the location and entered the vehicle with the applicant and the police officer and there were further discussions in relation to the purchase of heroin. Apparently, Andre had made a mistake and ordered cocaine instead of heroin. Nguyen was only able to supply half the amount of heroin. He made phone calls which went on in another car and returned later. There was a further conversation between the applicant, the undercover police officer, and the man Nguyen. The latter produced two white balloon wrapped packages and gave them to the applicant. At that stage the police went to the car, the applicant was arrested, and the packages were found to contain heroin which on analysis weighed 6.67 grams.
His Honour had already dealt with the applicant's son on a charge of supply prohibited drugs. He had been sentenced on one offence to a fixed term of six months and another offence to a bond to be of good behaviour for a period of three years. His Honour said those sentences were imposed bearing in mind his age, prior record, and his participation in the offences with which he was involved.
Chief Judge Blanch had this to say at p 5: -
"In my assessment of the material before me in relation to him (Andre), he was clearly acting to assist his father, this prisoner, in what the father was doing in his negotiations with the undercover police officer.
That of course is a major distinguishing feature in relation to this matter, not only because the son was acting to assist his father, but it is also relevant in the overall surrounding circumstances of this case that the father was using the services of his son for those purposes."
It is clear in my opinion that no argument based on parity arising out of the son's sentence can be successful in the present application, nor, as I understand the submissions put by Miss Burgess, is that precisely what is said.
Generally, in relation to the supply, his Honour made these comments at p 6: -
"It should be borne in mind too that although he was able to supply quantities of heroin, the fact of the matter is that he, the prisoner himself, had been a heroin addict over a very long period of time and was a user of heroin. Accordingly, there is nothing surprising about the fact that he knew heroin suppliers or that he could negotiate with them to supply to somebody else. On the other hand, he did in fact do that."
Early in his reasons his Honour had rejected any suggestion that claims could be made that the applicant, because of certain statements he had made in the listening device tapes, was more involved in the supply of heroin than the facts in relation to the individual charges showed. His Honour had, in effect, rejected such a suggestion and he had said that he would not be prepared to make a finding or act in any way on the assumption that the applicant was in fact supplying large quantities of heroin or supplying heroin consistently over a long period of time. Those remarks of course are important in assessing, as his Honour had to do and as this Court has had to do, the overall criminality of the applicant in the particular venture.
His Honour went on to consider the subjective circumstances of the case. The applicant he noted was about 50 years of age, he had very little criminal history, he had some convictions over the last 30 years, and he had convictions for the possession of or using drugs. His Honour, specifically, noted that although he had two convictions for supplying prohibited drug, namely, heroin, he was sentenced in both cases to the rising of the court.
The applicant gave evidence before his Honour, and his Honour accepted, that these supplies were merely supplies between two heroin addicts for personal use. The acceptance of this fact amply explained the sentences which had been imposed. None of his convictions in the past had ever resulted to his going to gaol and the last conviction was in February 1998, when he had been given a recognisance to be of good behaviour for twelve months, and plainly he had abided by the terms of that recognisance.
The applicant was born in Prague. He fled Czechoslovakia after the Russian invasion in 1968, came to Australia the next year. At an early age it appears he was a heavy drinker and alcoholic and he became addicted to heroin. It appears, indeed, that he used heroin as a release from the severe states of drunkenness that were induced as a consequence of his drinking problem. He formed a relationship in Australia with Mary Henderson and their son was born in 1977. Mary was also addicted to heroin and was on a methadone maintenance programme for a long period of time.
The applicant lived in a housing department flat at Redfern and had been generally unemployed. There was sympathetic evidence to show that he had a lot to do with the raising of his son and that Mary Henderson suffered from nervous and mental problems. The applicant had informed the probation service people and the psychiatrist (and evidence to the same effect was before his Honour) that he supplied the drugs on these occasions only because of the approaches of the undercover police officer and because he believed that the police officer was himself a user of heroin. He also said that in order to obtain heroin for himself he had a group of friends who had clubbed together to buy larger amounts of heroin which they used amongst themselves. But he denied to the probation service and the psychiatrist and denied before his Honour in his evidence on oath that he profits from selling heroin. As I read his Honour reasons for decision it appears to have been accepted that this was the position.
There was in the subjective case put for the applicant a report from Dr Lucire, a psychiatrist, dated 25 January. She said that from her observations of and discussions with the applicant she was satisfied that he had a mental disorder. She said it was a narcissistic personality disorder of considerable magnitude and it accounted for much of his behaviour.
She went on to point out that because of this mental disorder no-one has in the past had been able to engage in any meaningful treatment for the applicant's addiction and that is why it was that at the age of almost 50 he remained an addictive person.
In determining the sentence to be imposed, his Honour remarked on the seriousness of the offence and the need to impose a sentence which has a significant element of general deterrence. His Honour said: -
"The offence itself is a serious offence made up as it is of the activities which I have set out. It is true that the supply of the drug was as a result of undercover operations and there is an element therefore of an invitation or an encouragement to commit the offences. On the other hand, the circumstances surrounding the case clearly indicate that this prisoner knew precisely what he was doing and knew precisely how to go about the business of obtaining and selling heroin.
It is perfectly clear from the authorities that the courts in imposing sentences on people who sell heroin must impose sentences which have a significant element of general deterrence. It has been said that the distribution of heroin on the street could not proceed without persons who might be described as middle men, even persons like this prisoner, who might be described as middle men of the lower order."
His Honour went on to say that the criminal activity involved should be punished in accordance with those statements and the principles which had been expressed by appellate courts. His Honour then proceeded to impose the sentence which is the subject of this application for leave to appeal.
The submissions made on behalf of the applicant may be - without doing any disservice to the careful manner in which they had been fully expressed - summarised briefly as follows. First of all, there is a statistical argument in support of the assertion that the sentence was manifestly excessive. In the written submissions statistics were examined to indicate that the sentence imposed was at the very top of the range. It was said that only six per cent of the 435 offenders in the data base had imposed the same, or slightly more than had been imposed on the applicant.
Today some more updated figures were provided to the Court. It appears from those statistical figures that of the 448 cases for all offenders approximately two per cent or 10 cases were greater than six years; and six years was the sentence in only four per cent of the cases. The statistics showed that the minimum term of four years is in the top seven per cent, with only three per cent of offenders being sentenced to a greater sentence in respect of a minimum term. There were similar statistics for those who had pleaded guilty.
The Court’s attention was then drawn to a number of cases, including Regina v Burton (unreported NSWCCA 14 November 1996) and Regina v Matty Morrigan (unreported NSWCCA 4 December 1998) (a two member constitution of this Court). The point, as understand it, of the matters argued arising out of these decisions was that it could be seen that in those cases, where sentences of a similar level to the sentence imposed here or, indeed, perhaps slightly less, were imposed in circumstances where the level of criminality could be said, objectively viewed, to be considerably higher than the level of criminality displayed by the applicant in this matter. Those examples, it is said, particularly when allowance must be made for the plea of guilty which was made by the applicant here at the earliest possible time, prima facie suggest that the sentence imposed by his Honour was manifestly excessive.
I interrupt to say that his Honour noted that the applicant had pleaded guilty in the Local Court. He was of the view that the applicant was entitled to a maximum concession for his plea of guilty not only as an expression of contrition but also because of its utilitarian value.
The next submission made on behalf of the applicant may be again summarised briefly. A number of matters were pointed to which either suggest that the level of criminality involved in the applicant's commission of the offence was at a sufficiently low level to pose the question as to whether the sentence, being itself at the top of the range, was manifestly excessive. Secondly, as part of this submission, it was urged that a number of these subjective matters which were found in the applicant's favour by his Honour were of such significance as to pose the same question, namely, whether the sentence was manifestly excessive. Those matters are set out, essentially, in written form. Miss Burgess, on behalf of the applicant, has elaborated on each of those matters and referred to the court to a number of authorities which it is said support the force of the submissions.
The first matter elaborated upon is the fact that the offence and the various supplies were committed against the background of a police undercover operation. In particular, reference was made to the principles mentioned in Regina v Chan (1999) NSWCCA 103 at paras 14 to 16. At para 16 of that decision, there is a citation from the decision of Badgery-Parker J in Regina v Taouk (1993) 65 A Crim R 387 where his Honour said: -
"The real thrust of the decision is that even where the conduct of the police was regarded by the court as within the bounds of acceptable procedures, nevertheless if there was a possibility that the offence might not have been committed had the police not in some way facilitated it, that might be regarded as one which diminished he culpability of the offender."
It was argued that was essentially the situation here. The applicant was entitled to a significant reduction in this aspect of the sentencing process. At the very least it again raised the question as to whether the sentence was manifestly excessive, since it appears that his Honour did accept that the facts evidenced that type of situation. A corollary of the point is that, as Chan illustrates, it is also necessary to take into account that the prohibited drugs, by virtue of their being supplied to an undercover police officer, would not to be released into the community.
The next matter related to the subjective situation arising out of the fact that the applicant was an heroin addict and that there was clearly a link between the addiction and the crime. In that regard, reference was made to the decision in Regina v Selim (unreported NSWCCA 19 May 1998), and to two other cases, Regina v Mason [2000] NSWCCA 82, and Regina v Markarian (unreported NSWCCA 16 October 1998).
His Honour accepted in this case that the applicant was an heroin addict; that the supply in the present case arose out of his own addiction and that it was not done for gain. So once again the question is posed, if that be right, whether this sentence may be said to be manifestly excessive. For completeness, I should also refer to the reference made by counsel for the applicant to the remarks of Sully J in Regina v Kalache (2000) 111 A Crim R 152 at para 8.
There then was, without repetition of all the matters in the written submissions, a general submission that the Court should take into account all those subjective matters referred to in the submissions, including the fact that the applicant had recently been diagnosed, for the first time, as having a mental disorder. The submission was made, as I understand it, that the last matter was a matter which, in all the circumstances of the case, made it undesirable that the applicant be used as a vehicle for a sentence which reflected, to a large degree, aspects of general deterrence.
The last subjective matter relied upon was the strong bond between the applicant and his son, including the history of the manner which the applicant had endeavoured, so far as he could in the light of his own rather difficult circumstances, to raise his son and look after him over a lengthy period of time. This, it was said, was a powerful subjective matter which again raised the question as to whether the sentence was manifestly excessive.
I return then to the final submission. This was in relation to what has been described as the parity issue. In the District Court on 26 May 2000, as I have said, Judge Patten came to sentence Mr Nguyen. His Honour sentenced Nguyen to imprisonment for a term of three years and he set a non parole period of nine months to expire on 1 February 2001. He directed that the prisoner Nguyen be released on parole on 1 February 2001.
In the course of his remarks on sentence his Honour noted that and apparently accepted that Nguyen was an heroin addict, that the instance of supply that he was involved in, was the one instance of the supply of the larger amount of heroin on or about 3 August 1999.
As I say, his Honour apparently accepted that Nguyen committed the offence to fund his heroin addiction. In addition to this, he has a gambling problem and he had expressed remorse. On the other hand, it is quite clear that unlike the applicant here, Nguyen did not enter a plea at the earliest possible time and initially he was of no assistance to the authorities in that he was rather misleading in his interview with them and less than frank.

At p 6 his Honour said the following: -
"It is, I think, fair to conclude in the prisoner's favour that his involvement was much less than of Peter Pavlov who was charged and sentenced in relation to criminal activity of a period during which there was some five acts of supplying heroin whereas the prisoner is before the Court for one discrete offence. Moreover, Pavlov had criminal antecedents in relation to illegal substances."
After making this rather startling finding, his Honour went on to impose the sentence to which I have referred.
The submission in relation to this aspect of the matter is that there is a justifiable sense of grievance on the part of the applicant arising out of the disparity between the sentence he received before Chief Judge Blanch and the sentence imposed by Patten DCJ on Mr Nguyen on 26 May 2000. (See Postiglione v Regina (1997) 189 CLR 295 at 301 in the joint judgment of Dawson J and Gaudron J).
It is necessary for me, having set out at some length these submissions, to turn now to the way in which they should be treated by this Court. First, it should be recognised that his Honour found that the applicant was entitled to the maximum concession for his early plea of guilty, as I have set out earlier.
Secondly, it cannot be said that his Honour failed to take into account at all the subjective features which have been stressed in both written and oral argument. The applicant's age, serious criminal history, long term addiction, the fact that he had not been to gaol before, the fact that he had complied with the terms of an earlier recognisance were taken into account. So were the reasons for his involvement in the supply and the possession of heroin and the need for his own continued supply.
His Honour also referred to Dr Lucire's description of the applicant's mental disorder and the relationship between his previously undiagnosed and untreated condition and the applicant's continued addiction to heroin at the age of almost 50. Indeed, in relation to the last matter, it was plainly an important reason leading to his Honour's decision to find special circumstances so as to vary the statutory ratio between the head sentence and the non parole period.
Thirdly, I believe his Honour did take into account the nature of the approach to the applicant by the police officer undercover agent.
In relation to the sentence imposed, having regard to the statistics, it is towards the very top of the range. Some caution needs to be exercised in relation to those statistics. First, they do not involve a significant number in terms of a sample. Second, the statistics include, no doubt, instances of single supply and deemed supply. Nevertheless they do provide a guide to suggest that this sentence was towards the top of the range and that much is conceded by the Crown.
It is perfectly clear why his Honour imposed the sentence he did. The seriousness of the crime and the need for the sentence to reflect the general deterrence were the stated reasons which led to the sentence imposed on the applicant. I would not wish for myself in any way to detract from the relevance of the matters which his Honour saw as generally significant in determining the sentence, particularly in relation to an assessment to its overall objective seriousness.
There is, however, one matter in particular which leads me to believe this Court should intervene in the present matter. This is because I do not believe that the applicant was an appropriate vehicle for sentence which reflected general deterrence to the extent this sentence did. This is because of the applicant's mental disorder. A number of authorities in relation to this matter are set out in a decision of mine in Regina v John Alexander (2000) NSWCCA 458 at paras 41 to 43 - (see especially R v Fahda (1999) NSWCCA 267; R v Sconamiglio (1991) 56 A Crim R 81; R v Letteri (unreported NSWCCA 18 March 1992) and R v Henry (1999) 46 NSWLR 346 per Wood CJ at CL at 394). It is clear from these authorities that the existence of a mental disorder will not lead necessarily to the imposition of a sentence which ignores the aspect of general deterrence. Far from it. Such a condition may, normally be a factor which has the capacity, however, to influence the extent to which the aspect of general deterrence will be operative in a particular sentence.
In the present case, the relationship between the applicant’s medical condition, his continued addiction and the circumstances of supply revealed in the evidence, persuade me that it was not appropriate, for reasons of general deterrence, to place this applicant’s sentence towards the top of the range.
Secondly, having heard the elaboration of the arguments today, I am also persuaded that the applicant's general level of criminality did not fall into the higher category warranting the imposition of penalty at the level it was imposed. The applicant's addiction to heroin, the fact that he was not supplying for gain, the fact that supplies were made to an undercover policeman who importuned the supply, the fact that the supplied drugs were very much less than commercial quantity and would not find their way into society generally for the purposes of consumption, are all matters which lead me to believe that the sentence imposed by his Honour was at too high a level.
Thirdly, again having heard the arguments advanced today, I am persuaded that the subjective matters, although they were taken into account and given weight by his Honour, in their totality pose a real question as to the appropriateness of the sentence imposed.
For all those reasons, in my opinion this Court should find that the sentence was manifestly excessive and should intervene in the sentencing process.
As to the argument that there is a disparity between the sentence imposed by the Chief Judge and Patten DCJ, I would only say this, erroneously or not, Judge Patten's view was that the criminality of Mr Nguyen was much less than that of the applicant. The parity argument of course centres on this sentence and contrast it with the sentence imposed by Mr Justice Blanch. In my view it is apparent that his Honour Judge Patten misapprehended the nature of the criminality of the applicant and misapprehended the nature of his criminal history.
As a consequence, it is my opinion that any sense of grievance which the applicant would have in relation to the sentence imposed on Nguyen by Judge Patten would not legitimately, be a justified sense of grievance. Nor would there be engendered such a sense of grievance in the mind of an objective observer that, in the case of the applicant, justice had not been done (Postiglione v Regina (supra) at 323). For the reasons I have already indicated, it is necessary to re-determine an appropriate sentence. After taking into account a discount for the early plea of guilty, and all the other matters relied upon by the applicant in the written and oral submissions as to circumstances which mitigated the objective criminality of the offence, and taking into account further the subjective circumstances which were relied upon in those submissions, it is my opinion that an appropriate head sentence would be three and a half years. I determine that a non parole period of two and a half years should be set.
I propose therefore that leave to appeal be granted, that the appeal be allowed, the sentence of his Honour Justice Blanch be quashed. In lieu thereof the applicant be sentenced as follows: The applicant is sentenced to three and a half years imprisonment with a non parole period of two years six months. The applicant will be eligible to be released on parole, according to my calculations, on 4 February 2002.
JAMES J: I agree with the judgment of Whealy J and the orders proposed by his Honour. The sentence would date from 3 August 1999. The orders of the court are as proposed by Whealy J.

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LAST UPDATED: 15/02/2001