R v Sandford - [2006] VSCA 110

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 152 of 2005

THE QUEEN

BARRY LESLIE SANDFORD

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JUDGES:	MAXWELL, P., VINCENT and NEAVE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 May 2006
DATE OF JUDGMENT:	2 May 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 110

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CRIMINAL LAW – Sentence – Importation of not less than a traffickable quantity of heroin

– Manifest excess – Parity – Application for leave to appeal against sentence refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms W. Abraham, Q.C.	Solicitor to Commonwealth DPP
For the Applicant	Mr T. Kassimatis	Patrick W. Dwyer
MAXWELL, P.:

This matter began as an application for leave to appeal against conviction and against sentence. The conviction application was abandoned before coming on for hearing. Accordingly, all that is before the Court today is an application for leave to appeal against sentence. What that means is that, unusually for an application for leave to appeal against sentence, this matter was not considered by a single judge in the ordinary course on an application under s.582 on a Friday morning.
The applicant, Barry Sandford, was found guilty of one count of importing into Australia not less than a traffickable quantity of heroin, namely, 396.7 grams pure. The heroin was imported from Vietnam by another person in June 2002. As his Honour the learned sentencing judge records in his remarks, Mr Sandford was convicted on the basis that between May and June 2002 he counselled and procured the commission of that offence. As the judge said, what the jury accepted was that, knowing that the other person was in a vulnerable and depressed position both financially and matrimonially, Mr Sandford promised him some $35,000 if he would import prohibited goods. The applicant knew that the import was to be of heroin but was, to use his Honour's words, "somewhat coy" about telling the courier precisely what those goods were.
According to his Honour's sentencing remarks, the arrangements involved Mr Sandford telling the courier that he should stay at one of two nominated hotels, that he should remain in his room for the 24 hours preceding his return, that a woman would come and pack his bags. That is exactly what occurred. A woman did arrive and placed clothes on five coat hangers which she had brought, and in that sense packed his bags. The heroin was hidden in the coat hangers. Mr Sandford befriended the courier for the purpose of the importation and for the same purpose had him approved by an associate and helped him obtain his passport and visa and a ticket. Mr Sandford paid for the ticket, gave the courier money for a mobile phone which was needed and for his accommodation. Sandford generally gave the courier instructions.
His Honour found - and it is not suggested that this finding was not open - that Sandford did not act alone even in Australia and that he was acting as a recruiter for others placed above him in the criminal hierarchy. His Honour further found that, while Sandford was not the mastermind, he was on a level above the level of courier. He recruited couriers and he had access to one or more people above him, whereas the particular courier had access only to Sandford. His Honour reached those findings, expressing himself to be satisfied beyond reasonable doubt of those matters. Again there is no challenge to the factual basis of any of those findings, nor to the findings made by his Honour that the involvement of the applicant was principally if not entirely for gain, whether monetary gain or its equivalent. His Honour found, as he was clearly entitled to do, that the applicant's moral culpability was greater than that of the courier.
The quantity of heroin involved, as I have said, was 396.7 grams pure. The traffickable quantity of heroin is two grams, so that the amount imported was approximately 200 times the traffickable quantity. Its value was estimated at some hundreds of thousands of dollars, up to as much as $700,000. His Honour said, as many sentencing judges have had to say:
"Primarily because of the enormous harm that heroin can do and does directly or indirectly do to individuals, families, groups, businesses and the community as a whole, the courts have condemned its importation and those who import it sternly and frequently."
His Honour went on to say:
"Condign punishment is appropriate particularly when one considers the quantity in question and the breadth of potential penetration into the community of such a quantity. Denunciation, deterrence both general and specific, and especially general deterrence, along with just punishment, all in the interest of protecting the community, are prominent sentencing purposes."
With respect, his Honour there expressed eloquently and correctly the applicable sentencing principles.
His Honour noted various other matters, including what he described as matters personal to the applicant, specifically that he was aged 65, that he had health problems, starting with a triple arterial bypass in 1991, and that since his retirement on ill health grounds from work at age 55 Sandford has been a pensioner, first a disability pensioner and now an age pensioner. His Honour referred in detail, which I need not repeat for the purpose of these reasons, to a number of serious health conditions from which the applicant currently suffers. His Honour said:
"Given those medical problems, your age and the fact that this is your first time in custody and the inevitable stress which that involves, your time spent in custody will be more burdensome than for others and carries the risk of deterioration of your various conditions."
His Honour also noted that, as the evidence had shown, the applicant had led a solitary life and was now almost entirely alone, with few friends who would visit him in prison.
Taking all of the matters advanced on behalf of the applicant into account, his Honour the learned sentencing judge imposed a sentence of imprisonment for a period of six years, with a non-parole period of three-and-a-half years. It has been conceded in argument on this application that that was a lower than normal non- parole period.
The first ground of the application for leave to appeal against sentence is that the head sentence was manifestly excessive. For this Court to be satisfied that that ground was made out, it would have to be demonstrated that the term of imprisonment imposed was obviously outside the range of sentences reasonably open to the sentencing judge so as to demonstrate that the sentencing discretion had not been properly exercised.
In my opinion, that submission is untenable. There is nothing in the circumstances to suggest that this sentence was otherwise than well within the range reasonably open to a judge sentencing this offender for this serious offence. I would therefore reject that first ground.
The second ground advanced is that the learned judge fell into error in failing to ensure proper parity between the sentence imposed on this applicant and the sentence previously imposed on the courier who, as his Honour noted, had pleaded guilty. His Honour addressed the question of parity squarely and carefully in remarks which it is unnecessary to rehearse in these reasons. It is sufficient to say that I see nothing in his Honour's approach to the question of parity which is suggestive of error and I would also reject that ground of the application.
For these reasons, in my opinion, the application for leave to appeal against sentence should be refused.

VINCENT, J.A.:

I agree.

NEAVE, J.A.:
13	I agree.

MAXWELL, P.:

The order of the Court is that the application for leave to appeal against
sentence is refused.

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(R. v. Sandford)
CERTIFICATE

I certify that the preceding 4 pages are a true copy of the reasons for judgment of Maxwell, P., Vincent and Neave, JJ.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 2 May 2006.
DATED the day of 2006.

Associate