R v Sotiriadis

[2005] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 100 of 2005

THE QUEEN

v.

PETER SOTIRIADIS

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JUDGES:	MAXWELL, P., CALLAWAY and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 August 2005
DATE OF JUDGMENT:	3 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 193

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Criminal law – Sentencing – Trafficking in methylamphetamine – Applicant sentenced on related counts, and re-sentenced by Court of Appeal, in 2004 – Delay in dealing with this count through no fault of applicant – Whether one month’s imprisonment to be served immediately was manifestly excessive or gave rise to appellable disparity – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr K.T. Armstrong	Victoria Legal Aid

MAXWELL, P.:

1. I will invite Callaway, J.A. to deliver the first judgment.

CALLAWAY, J.A.: 

1. The applicant, who is now aged 57, was presented in the County Court on two counts of indecent assault (counts 1 and 3) and one count of trafficking in methylamphetamine (count 2).  He pleaded guilty to count 2 and the Crown entered a nolle prosequi in relation to the other two counts.  The maximum custodial penalty for trafficking was 15 years' imprisonment.  The applicant admitted 38 previous convictions from 27 appearances in Courts of Petty Sessions or the Magistrates' Court between December 1966 and November 1997.  They included several counts of possession or use of a drug of dependence, but only one charge of trafficking.  The applicant was convicted of trafficking in amphetamine in 1983 and sentenced to pay a fine.

1. After hearing a plea for leniency on his behalf, the learned judge sentenced the applicant on 13th April 2005 to one month's imprisonment.  The applicant was granted bail pending appeal on 18th April 2005.  There are four grounds of appeal:

"1.That the learned sentencing judge erred in failing to give sufficient weight to the circumstances and delay occurring between the date of the applicant's entry of his plea of guilty and the date of his sentencing herein.

2.That the learned sentencing judge erred in imposing a sentence which gave rise to disparity with sentences imposed by the County Court on 21st May 2004 and referred to by this Honourable Court in the matter of R. v. Sotiriadis [2004] VSCA 171.

3.That the learned sentencing judge imposed a sentence that was manifestly excessive in all the circumstances, particularly having regard to -

(a) the circumstances and delay occurring between the date of the applicant's entry of his plea of guilty and the date of his sentencing herein;  and

(b)      the applicant's personal circumstances.

4.That the learned sentencing judge erred by infringing the principle of totality."

1. In July 2001 the police began Operation Renegade, which culminated in a series of arrests and searches in November of that year.  The applicant and six co-offenders were sentenced by Judge Strong on 21^st May 2004.  The applicant was sentenced to nine months' imprisonment, of which three months were suspended for two years.  This Court allowed his appeal and substituted a sentence of six months' imprisonment, of which all but the time already served (123 days) was suspended for the same operational period.  Much of the background that I should otherwise have set out in these reasons appears from the judgment of Buchanan, J.A. on that occasion.[1]  These reasons should be read together with that judgment.

   [1]R. v. Sotiriadis [2004] VSCA 171.

1. The facts relating to the count with which we are concerned may be briefly described.  At about 3.30 p.m. on 25th July 2001, the applicant met with police undercover operative "Jane" in the car park of a Pizza Hut restaurant in Campbellfield.  She handed him $200 in cash and he left, ostensibly to collect the seven grams of methylamphetamine that she wished to purchase.  Although he drove away, he did not leave his car.  He was observed counting the money that he had been given.  He returned to the Pizza Hut car park some twenty minutes later and gave "Jane" a plastic bag containing 6.5 grams of white powder containing methylamphetamine.  He told her to telephone him if she wanted more and gave her a telephone number.

1. When the applicant was interviewed in November 2001 he denied that any drug transaction had taken place on 25th July 2001, but by the time the matter came before Judge Strong he was willing to plead guilty to the present count and did so on a previous presentment.  The only reason it was not dealt with at that time was the counts of indecent assault.  This count and the indecent assault counts were, in effect, hived off from the other matters.  A nolle prosequi having been entered in relation to the counts of indecent assault, the applicant should not be disadvantaged by the fact that all the offences were not dealt with at the same time.

1. Mr Armstrong understandably put that consideration at the forefront of his submissions, adding that the delay in having this matter resolved not only denied the applicant the opportunity to have all matters dealt with at the same time, but also left it hanging over his head until he was sentenced in April of this year.  He submitted that the judge failed to give sufficient weight to those considerations.  In particular, it was said that her Honour erred when she said, at [15] of the sentencing remarks: 

"I do not accept that your sentence would have been no different had you been dealt with for this matter at the same time as you were dealt with for the other."

The relevant period of delay, counsel said, was between the date on which the applicant pleaded guilty before Judge Strong, 5th May 2004, and the date on which he was sentenced for this offence.

1. The question whether his sentence would have been different if all matters had been dealt with at the same time is an important issue to which I shall refer again later;  but, as the learned President pointed out in the course of the argument, the delay as such was expressly dealt with by the judge in her sentencing remarks.  To that degree, the complaint is one of weight, to which the observations in R. v. Bernath[2] apply. 

   [2][1997] 1 V.R. 271 at 277.

1. Counsel also submitted that the sentence of one month's imprisonment effectively reinstated the disparity that was corrected by the Court of Appeal.  He drew attention, among others, to the sentences imposed on Daniel Hutchinson and Alfredo Labozzetta and submitted that, when considerations of parity were taken into account, if Judge Strong had sentenced the applicant for all offences, the additional criminality revealed by this count would have made no difference.

1. Counsel turned next to ground 4.  He submitted that the principle of totality was infringed because the two trafficking offences were connected in time and circumstances and were, to a degree, part of the same course of conduct.  Accordingly, as I understood the submission, the sentence should have been made concurrent with the sentence imposed by this Court and suspended for the same operational period. 

1. Finally, it was contended that even a sentence of one month's imprisonment to be served immediately was manifestly excessive having regard to the delay in sentencing, considerations of parity, the small amount of amphetamine involved, the fact that the applicant trafficked to fund his own use, his having no subsequent convictions, his personal circumstances and his willingness to plead guilty at an early stage. His personal circumstances are described in Buchanan, J.A.'s reasons at [5].

1. I can detect no error in the exercise of the judge's discretion.  Her Honour gave careful consideration to the unusual circumstances in which the matter came before her.  She imposed the sentence that she did and declined to suspend it because this offending was significantly different from the trafficking for which the applicant had been sentenced by the Court of Appeal.  The sentence of six months' imprisonment that we imposed was for trafficking methylamphetamine between 25th September and 13th November 2001.  As Mrs Quin pointed out, the applicant's role then was solely to act as a driver for Gary Hutchinson.  This offence was committed two months earlier and was a different kind of offending.  The methylamphetamine was supplied by Hutchinson's wife, but the applicant did more than act as a driver.  He was actively engaged in a sale. 

1. For these reasons, contrary to counsel's submission, this count did add significantly to the applicant's criminality.  If it had been dealt with at the same time, in conformity with the views expressed by the Court of Appeal, it cannot be assumed that a sentence of only six months' imprisonment with approximately two months suspended would still have been imposed.  The appeal to this Court would have had a different complexion.  The sentence we imposed was lenient, moderated, as it had to be, by the sentences imposed on some of the co-offenders.  The applicant would have been revealed as, on this occasion, a more direct participant.  The passage in my brother Chernov's judgment in R. v. Wilson[3], to which Buchanan, J.A. referred, is relevant again to the task we have to perform this morning.  I am not persuaded that further appellate intervention is required, and I would dismiss the application.

MAXWELL, P.:

[3](2000) 116 A.Crim.R. 90 at 97 [22].

1. I agree, and I wish to add a few remarks of my own.

1. The Court has been much assisted by the thorough argument presented on behalf of the applicant, both in writing and orally.  As occurs when counsel know their brief and understand the case, concessions were properly made about the limits of the argument which counsel for the applicant was able to advance.  As Callaway, J.A. has already said, the argument for the applicant was essentially that her Honour had failed to accord sufficient weight to various considerations, and counsel properly conceded that the matters upon which he placed reliance were all, on the face of her Honour's reasons, matters that had been considered.  As I suggested to counsel in argument, the essential thrust of the applicant's submission, as it seemed to me, was that, taking those same factors into account, we should arrive at a different result.

1. Taking counsel's final submission first, the list of matters set out under the "manifestly excessive" submission makes that point eloquently.  It is the very checklist of matters which was put before her Honour in the plea and which, in all relevant respects, was considered by her Honour in arriving at the decision she reached.  As Callaway, J.A. said in Bernath, to which he has already referred, a ground of appeal which complains that inadequate weight was given to a relevant factor stands in contrast with a ground that asserts that the judge disregarded such a factor altogether or took an irrelevant factor into consideration.  No submission to the effect of either of those propositions was advanced before us, and properly so.  I

want for my own part to re-affirm what his Honour said in Bernath[4], that where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error.  As his Honour said, the underlying concept pervades the law relating to discretionary judgments and is not limited to the criminal law.

[4]At 277.

1. Sentencing is a matter of discretion.  For my part, where an argument is advanced that, as here, insufficient weight was given to a matter of delay, or the wrong conclusion was reached about whether the sentence would have been any different had this matter been before the sentencing court the first time, I would require considerable persuasion that the conclusion arrived at in relation to that matter was so obviously wrong that this Court would be entitled to conclude that the discretion had miscarried.  Callaway, J.A. has already noted, and I will not take time to repeat, that the issue of delay was squarely addressed by her Honour, as was the issue of whether there would have been a different sentence had this count been before the sentencing judge, and I have, for my part, no doubt that it was open to her Honour to conclude, as she did, that the sentence would not or would not necessarily have been the same.

1. In my opinion, the reasons for decision in relation to sentencing reflect a careful consideration by the sentencing judge of all the relevant matters and, like Callaway, J.A., I see nothing that would suggest error of the kind which would justify appellate intervention, and accordingly I agree in the conclusion that the application should be dismissed.

CHERNOV, J.A.:

1. I also agree that the application should be dismissed, for the reasons given by Callaway, J.A.

MAXWELL, P.:

1. The order of the Court is that the application be dismissed.

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