R v Schmidt
[2010] VSCA 5
•1 February 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| THE QUEEN | No 604 of 2009 |
| v | |
| PALETASALA SCHMIDT |
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JUDGES: | NETTLE and NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 February 2010 | |
DATE OF JUDGMENT: | 1 February 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 5 | |
JUDGMENT APPEALED FROM: | R v Schmidt, Unreported 21 April 2009, County Court of Victoria (Judge Lawson) | |
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CRIMINAL LAW – Sentencing – Trafficking in a drug of dependency – Breach of a Commonwealth recognisance order – Total effective sentence of three years and six months with a non-parole period of two years and nine months imposed – Parity – Whether judge failed to accord sufficient parity in relation to co-offender – Fresh evidence – Medical evidence of dramatically reduced life expectancy – Applicant re-sentenced to three years’ imprisonment suspended for two years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Commonwealth Director of Public Prosecutions | Mr D D Gurvich | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Applicant | Mr L C Carter | Garde-Wilson Lawyers |
NETTLE JA:
This is an application for leave to appeal against a total effective sentence of four years and six months' imprisonment with a non-parole period of two years and nine months, imposed on the applicant on pleading guilty to one count of a state offence in trafficking in a drug of dependence (methamphetamine), for which the applicant was sentenced to an individual sentence of three years and six months' imprisonment with a non-parole period of one year and nine months, and one count of breaching a Commonwealth recognisance order, for which the applicant was sentenced to two years' imprisonment (to commence one year before the expiration of the state non-parole period of one year and nine months). The applicant also pleaded guilty to possession of a drug of dependence (Cannabis L), for which he was fined $250.
The offences were committed between 26 December 2003 and 10 November 2006 beginning during the operational period of a total effective suspended sentence of two years and nine months' imprisonment imposed on the applicant on 30 April 2003 on conviction on counts of possession of a drug of dependence (Cannabis L), and importation of a trafficable quantity of cocaine, contrary to s 20(1)(b) of the Crimes Act1914 (C’th).
The facts as found by the sentencing judge were that during December 2003 the applicant became acquainted with one Tan Nguyen, and Nguyen’s girlfriend, Lauren Brown, and supplied them both with drugs for personal use. The applicant became a regular visitor to their home in Glenroy and, when Nguyen expressed interest in manufacturing methamphetamines, the applicant introduced Nguyen to one Adam Khoury, whom the applicant knew to be a drug trafficker; reached agreement with them that the applicant would receive a share of the product which Nguyen was to cook for Khoury; assisted Nguyen by sourcing the required chemicals and equipment necessary for the manufacture of the amphetamines; and assisted Khoury by sourcing customers and distributing the amphetamines to customers.
The Crown case was that Nguyen cooked small amounts of the drug in his home laboratory on approximately ten occasions of which seven were successful.
As a result of a covert police operation begun in March 2006, telephone intercepts were obtained which revealed a regular pattern of calls between the applicant and Khoury commencing on 10 May 2006 and continuing until September 2006. They showed that Nguyen, the applicant, and a third man, Charbel Attalah (since deceased), were key identities in Khoury's drug manufacture and trafficking syndicate. A warrant was executed in November 2006.
The trafficking to which the applicant pleaded guilty consisted in both the assistance which he gave Khoury in sourcing customers and distributing the illicit drugs, and the other acts of trafficking over the period of three years referred to.
Ground 1 – Parity
In the course of argument, several grounds of appeal were abandoned. Of those which were pressed, the first was that the judge erred by failing to accord any or sufficient weight to the sentencing principle of parity. More specifically, it was contended that, because Khoury's role in the trafficking and the gains he reaped from the enterprise were greater than the applicant's role and rewards, and because Khoury was sentenced to only three years for trafficking, the applicant's sentence of three years and six months for trafficking failed to reflect the disparity of Khoury's and the applicant's criminality. Reference was also made to the fact that Nguyen, whose role as cook was said to be central to the operation, avoided an immediate term of imprisonment. Counsel for the applicant argued that the proper application of the parity principle should have resulted in the applicant being sentenced to a term of imprisonment considerably less than Khoury and considerably closer to the penalty imposed on Nguyen, or at least to a sentence no more than was imposed on Khoury.
I do not accept the argument. It is apparent that the judge considered the issue of parity at length. As her Honour observed, neither Khoury nor Nguyen had any prior criminal history and, while Khoury was the most deeply involved in the later offending, the applicant's role was also plainly significant. Moreover, the applicant was involved in trafficking over a period of three years, whereas Khoury was presented on a count alleging trafficking only over a five month period.
Importantly, too, the applicant began offending in December 2003 during pendency of the suspended sentence of imprisonment imposed on him on 30 April 2003 (for a possession of a drug of dependence and importation of a trafficable quantity of cocaine); a factor which substantially aggravated the offending. As the sentencing judge discerned, the applicant's evident disregard of the conditions of the suspended sentenced reflected adversely on his prospects of rehabilitation and necessitated a greater sentence to provide adequate specific deterrence.
It is true that Khoury later offended and re-offended whilst on bail, and to some extent that may be said to balance the score. But these are questions of fact and degree on which views may reasonably differ.
Reference was also made by counsel for the applicant to the way in which the judge treated Khoury's drug addiction as a mitigating factor but was not persuaded to treat drug addiction as a mitigating factor in the case of the applicant. I see no error in that. The judge explained why she was not persuaded that the applicant's level of addiction was sufficient to be regarded as a mitigative of his offending and her Honour's analysis was supported by Mr Newton's opinion, of which more later.
In any event, this Court will not intervene on the ground of parity unless the disparity relied upon is such as to engender a justified sense of grievance on the part of the offender or is otherwise such as to give the appearance that justice has not been done in the eyes of an objective observer.[1] Here, in my view, the background, previously criminal history and character of the applicant, combined with the part which he played in the trafficking for which he was sentenced,[2] meant that it was well open to the judge to impose the sentences of relative lengths which she did.
[1]R v Taudevin [1996] 2 VR 402, 403.
[2]Lowe v The Queen (1984) 154 CLR 606, 609.
Ground 4 – Need for custodial sentence
Under cover of Ground 4, it was contended that the sentence was manifestly excessive, the consequence of the judge failing sufficiently or at all to consider why a custodial sentence was the only proper disposition.
I am not persuaded that the sentence was manifestly excessive. The applicant pleaded guilty to a count of trafficking in a drug of dependence committed over a period of three years for which the maximum penalty was 15 years' imprisonment and which, as has been observed, he began committing while still serving a suspended sentence of imprisonment for previous drug-related offences. Other things being equal, he was bound to receive a substantial immediate custodial sentence, no matter what his level of remorse or prospects of rehabilitation, in order to provide adequate general and specific deterrence and just punishment.
Admittedly Mr Newton, a consultant psychologist, whose report was tendered on the behalf of the applicant, was of opinion that the applicant's limited intellectual capacity reduced his moral culpability. But the judge rejected that opinion as, in my view, her Honour was entitled to do. The evidence was clear that, although the applicant's capacity to exercise appropriate judgment was limited, he had a clear understanding of the wrongfulness of his actions. He was able to appreciate the nature and quality of his actions and he was capable of forming the specific intent to commit the offence of trafficking of which he was convicted.[3] As the judge put it:
Whilst I accept what [Mr Newton] says in relation to your intellectual capacity and ability to process things, the facts of this matter suggest that at the time of this offending that occurred over a number of years, you were well organised and fully aware of what you were doing. You set up your garage arrangement so that you effectively monitored the comings and goings to your premises. You had an established association with Adam Khour[y] whereby you were actively sourcing drugs and distributing them through his business.
In those circumstances, I do not consider that your moral culpability was reduced.[4]
[3]Report of Patrick Newton, MACCP, MAPS, dated 20 October 2008, [38]–[47].
[4]Reasons [59]–[60].
Like the judge, I do not consider that the extent of the applicant's intellectual limitations or otherwise were enough to avoid the need for an immediate custodial sentence or that the sentence was otherwise excessive.
In written submissions in support of the contention that the sentence was manifestly excessive, it was contended that the judge placed too much emphasis on the need for general and specific deterrence and too little emphasis on the applicant's prospects of rehabilitation, and thereby imposed a total sentence and non-parole period which in all the circumstances were manifestly excessive.
I do not accept that contention either. The judge was right to emphasise the need for general and specific deterrence for the reasons already explained and to impose a substantial immediate custodial sentence, as her Honour did. She also paid due regard to the prospects of rehabilitation and specifically ordered a longer than usual non-parole period to take maximum advantage of them. There is, therefore, nothing in her Honour's reasoning or in the sentence or non-parole period which she imposed which is suggestive of error. If anything, it appears to me that, given the nature and gravity of the applicant's offending and his previous convictions for drug-related offences, the sentence and non-parole period were to some degree lenient.
Ground 5 – Fresh evidence
At the time of sentencing, there was seemingly no reason to doubt the health of the applicant. Since then, however, in October 2009 he was diagnosed as suffering from metastatic oesophageal cancer and undifferentiated adenocarcinoma consistent with liver metastases, for which the only treatment is palliative, and his life expectancy has dramatically reduced to something less than 12 months.
Counsel for the Director of Public Prosecutions for the State of Victoria accepted on the basis of that evidence that it was likely that the applicant was suffering from the cancer at the time of sentencing. Counsel for the Director of Public Prosecutions of the Commonwealth contended to the contrary. He submitted that the evidence went no further than that it was possible the condition existed at the time of sentencing, but equally possible that it was not then in existence.
In part, the medical evidence is that it is impossible to know how long the carcinoma has been present. Dr Danielle Ferraro, Oncology Registrar at St Vincent's Hospital, has opined that it could have been in existence ‘for months or years’. But there is also evidence in the form of Dr Wen-Sim's report of 11 November 2009 that the applicant had a large lymph node mass adjacent to the stomach consistent with liver metastases at the time of diagnosis in October 2009. Given that advanced stage of development of the carcinoma, I am prepared to infer that it is more likely than not that the carcinoma was present, even if only nascent, at the time of sentencing.
In the circumstances, I consider that the evidence of the applicant's diagnosis may be regarded at fresh evidence which relates to events which have occurred since sentencing but which demonstrates the true significance of facts in existence at the time of sentencing and, as such, that it is admissible under the principle adumbrated in R v Eliasen,[5] that:
this Court may if it considers the case an appropriate one so to do, permit evidence of matter or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court’s reconsidering the matter in the light of that additional evidence.
And:
if the court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge’s sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.
[5](1991) 53 A Crim R 391, 394.
It follows, as Redlich JA remarked in R v Nguyen,[6] that it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive. The question is, whether in light of the fresh evidence any different sentence should be substituted to avoid a miscarriage of justice. In other words, the Court must determine was is the appropriate sentence on the basis of all the material now before the Court.
[6][2006] VSCA 184 [30]–[38].
Re-sentencing
In this case, as I have said, I do not consider that the sentencing judge committed any error or that the sentence which her Honour imposed is manifestly excessive. But her Honour did not have available to her the evidence of the applicant's suffering which is now available to us. On the basis of all the material now before the Court, and in view of the brief time remaining for the applicant to live, I consider that the appropriate sentence to be a term of imprisonment of three years suspended, save for the time already served, for a period of two years. The circumstances of the applicant's ill health are exceptional and in my view it is in the interests of justice that the sentence be so suspended in recognition of those circumstances.
Counsel for the Director of Public Prosecutions of the Commonwealth submitted that, even if the state sentencing discretion was so re-opened, it did not affect the Commonwealth sentence which, in his submission, remained unaffected by the fresh evidence. He relied in support of that submission upon the observations of Perry J in Sweeney v Corporate Security Group.[7]
[7](2003) SASR 425.
I do not accept that submission. It appears to assume that the fresh evidence is not admissible as such under the Eliasen principle. In my view it is.
More generally, however, when the sentencing judge imposed the Commonwealth sentence, her Honour was bound by s 16B of the Commonwealth
Crimes Act1914 to have regard to the State sentence and thus, if her Honour had known of the applicant's state of health at the time, she is likely to have imposed a different State sentence to that which was imposed and thus to have imposed a different Commonwealth sentence. If so, it appears to me inevitable that once the state sentencing discretion is reopened, the sentencing discretion in relation to the Commonwealth offence is re-opened, and thus that it falls to this Court to re-sentence for that offence as much as for the State offence.
Conclusion and orders
In the result I would allow the application for leave to appeal, allow the appeal and quash the sentences passed below. In lieu thereof, I would re-sentence the applicant on the count of trafficking in a drug of dependence to three years' imprisonment but order that save for the days already served, namely 475 days not including this day, the sentence be suspended for a period of two years.
On the charge of possession of a drug of dependence, I would re-sentence the applicant to a fine of $250.
Finally, on the Commonwealth offence of breach of the Commonwealth recognisance order, I would take no action; consistently with the submissions advanced by the Director of Public Prosecutions for the Commonwealth that, if it were found that the new medical evidence was properly to be treated as fresh evidence in accordance with the Eliasen principle, it was appropriate that no action be taken.
NEAVE JA:
For the reasons given by Nettle JA, I also consider the application for leave to appeal against sentence should be allowed, that the appeal should be allowed and that the applicant should be re-sentenced in the manner his Honour proposes.
NETTLE JA:
Subject to any submissions which counsel may make, the orders we propose are as follows:
1. The application for leave to appeal against sentence is allowed;
2. The appeal is treated as instituted and hear instanter and is allowed;
3. The sentences passed below are quashed and in lieu thereof the applicant is to be re-sentenced as follows:
· On the count of trafficking in a drug of dependence to 3 years' imprisonment, which save for the days already served, namely 455 days not including this day, is suspended for a period of 2 years;
· On the charge of possession of a drug of dependence, the applicant is to be sentenced to a fine of $250; and
· On the Commonwealth offence of breach of Commonwealth recognisance order, it is to be ordered that no action be taken.
It is to be declared that the number of days already served under the sentence is 455 days not including this day and directed that the fact of the declaration and its details be entered in the records of the Court. And we would also confirm the orders made below pursuant to sub-s 464ZF(2) of the Crimes Act and sub-ss 32(1) and (77) of the Confiscation Act1997.
(DISCUSSION RE SUSPENDED SENTENCE ENSUED.)
NETTLE JA:
Upon counsel for the applicant undertaking to ensure that the prisoner
understands the purpose and effect of the suspended sentence of imprisonment and the consequences that may follow if he commits another offence punishable by imprisonment during the operational period of the sentence, the Court orders that:
1. The application for leave to appeal against sentence is allowed;
2. The appeal is treated as instituted and heard instanter and is allowed;
3. The sentences passed below are quashed and in lieu thereof the applicant is re-sentenced as follows:
· On the count of trafficking in a drug of dependence to 3 years' imprisonment which save for the days already served, namely 455 days not including this day, are suspended for a period of 2 years commencing on 2 February 2010;
· On the charge of possession of a drug of dependence, to a fine of $250; and
· On the Commonwealth offence of breach of Commonwealth recognisance order, no action is to be taken.
It is declared that the number of days already served under the sentence is 455 days not including this day and it is directed that the fact of the declaration and its details be entered in the records of the Court.
The orders made below pursuant to s 464ZF(2) and the Crimes Act1958, s 32(1) of the Confiscation Act1997 and s 77 of the Confiscation 1987 are affirmed.
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