R v Sotiriadis
[2004] VSCA 171
•20 September 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 125 of 2004
| THE QUEEN |
| v. |
| PETER SOTIRIADIS |
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JUDGES: | CALLAWAY, BUCHANAN and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 September 2004 | |
DATE OF JUDGMENT: | 20 September 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 171 | |
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Criminal law – Sentence – Trafficking in a drug of dependence – Parity – Sentence of nine months' imprisonment of which three months were suspended – Appellant acted as chauffeur to ringleader – Co-offenders more deeply involved received wholly suspended sentences – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G.J.C. Silbert | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Robert Stary & Associates |
CALLAWAY, J.A.:
I shall invite Buchanan, J.A. to deliver the first judgment in this case.
BUCHANAN, J.A.:
The appellant has appealed against a sentence of nine months' imprisonment, three months of which was suspended for two years, which was imposed upon him when he pleaded guilty in the County Court to a charge that between 25 September 2001 and 30 November 2001 he trafficked in a drug of dependence being methylamphetamine.
The appellant was one of seven persons who were all engaged in trafficking methylamphetamine and who pleaded guilty at the same time. Gary and Teresa Hutchinson obtained supplies of the drug from a house in Steiglitz. The drugs were taken to the Hutchinsons' house in Fawkner where they were on-sold. Hutchinson and his wife had prior convictions for drug offences, including trafficking in drugs of dependence. The Hutchinsons' daughter, Anne-Marie, who lived in her parents' house, was also involved in the trafficking by passing on telephone messages about the trafficking and on a very few occasions receiving money and delivering drugs. The Hutchinsons' son, Daniel, obtained amphetamine from another source which was sold with the drugs from Steiglitz and also from Daniel Hutchinson's apartment. The police found $8,000 in cash, scales and plastic bags of amphetamine in the apartment. Daniel Hutchinson had prior convictions for offences of violence and dishonesty. Mark McDermott, a friend of Gary Hutchinson, was also involved in the trafficking in that he permitted Gary Hutchinson to use his house as a selling outlet. Another man, Alfredo Labozzetta, a wholesale fruiterer, purchased amphetamine from Gary Hutchinson and supplied the drug to others working at the wholesale fruit market, who used it to enable them to work long hours from early in the morning. The trafficking ring was broken after an investigation lasting some four months, in the course of which evidence was gathered by telephone intercepts, surveillance and two undercover members of the police force.
Gary Hutchinson, the ringleader, had no motor car and used the appellant and another man as his drivers. The evidence disclosed that the appellant drove Hutchinson to Steiglitz and back on 12 occasions. His reward was one gram of amphetamine per trip for his own use. Hutchinson left the appellant and his car before reaching the supplier's house and returned after collecting the drugs. The appellant did not see and was not involved in any of the acts constituting the purchase or re-sale of the drug. Nonetheless the appellant knew that the purpose of the journeys was to collect amphetamine.
The appellant is now 56 years old. He was born in Greece and came to Australia at the age of nine years. He left school after fourth form and commenced work as an apprentice cabinetmaker, although he did not complete his apprenticeship. He was later employed in a series of jobs principally in clothing factories. His working life ended some ten years ago when he hurt his back. The appellant is now dependent upon an invalid pension and the proceeds of casual work in the clothing industry. The appellant has two children, a son aged 7 who is blind and another son aged 4 years. His elderly parents were dependent upon him when he was imprisoned. The appellant is separated from the mothers of his children, although he assists the mother of his blind son in the care of the child. The sentencing judge accepted that the appellant played "an active and important role" in caring for his son, and that separation would be difficult for father and child.
The sentencing judge was apparently impressed by the appellant's record of prior convictions, although he said that it was more notable for its persistence than the severity of any of the individual charges. The appellant had 38 prior convictions from 27 court appearances. The appellant has committed offences ranging from offensive behaviour to discharging a missile, escaping from custody, assault, theft and stalking. He has a number of convictions for drug offences, principally possession, for which he was fined. There was one conviction for trafficking in a drug of dependence which attracted a fine of $500.
The principal ground of appeal was that the sentence imposed on the appellant breached the principle of parity. I have briefly described the role played by the appellant's co-offenders. Gary Hutchinson and his wife each received a total effective sentence of 27 months' imprisonment with a non-parole period of 18 months. Anne-Marie Hutchinson was sentenced to be imprisoned for a term of six months, wholly suspended. Daniel Hutchinson was sentenced to be imprisoned for a term of 12 months with a non-parole period of eight months.[1] Alfredo Labozzetta was sentenced to be imprisoned for a term of six months, wholly suspended. Mark McDermott received the same sentence as Labozzetta.
[1]The non-parole period is in breach of the provisions of s.11(3) of the Sentencing Act 1991. See also s.13.
In my view the sentence imposed on the appellant, when compared with the sentences imposed upon others who were deeply involved in the Hutchinsons' trafficking business, was markedly disparate so as to give rise to a justifiable sense of grievance. See Postiglione v. R.[2] Daniel Hutchinson, described by the sentencing judge as a "regular distributor of high quality methylamphetamine", who sold by retail to users and by wholesale to his mother, received a comparatively lenient sentence. His sentence was only three months longer in all than the sentence imposed upon the appellant and only two months longer in terms of immediate custody. Labozzetta was more heavily involved in trafficking than the appellant, yet received a wholly suspended sentence of only six months' imprisonment. It is true that the appellant's history reveals a larger number of prior convictions than his co-offenders, but I do not think that this explains or justifies the marked difference in terms of the treatment the sentencing judge meted out to the appellant and his co-offenders having regard to their roles in the trafficking enterprise.
[2](1997) 189 C.L.R. 295 at 301 per Dawson and Gaudron, JJ.
I would moderate the sentence imposed on the appellant, but I do not think that he should receive a wholly suspended sentence simply because the sentences imposed upon Labozzetta and McDermott were wholly suspended. Those dispositions appear to me to be lenient indeed for active participation in a steady and not insubstantial trafficking enterprise. I adopt the approach of Chernov, J.A. in R. v. Wilson when he said:
"Another approach adopted by the courts in dealing with the injustice engendered by the discrepancy in the sentences where the second sentence is regarded as being excessively low, is not to seek to match the applicant's sentence to the lenient one, but to re-sentence the applicant and, in the course of constructing the new sentence, have regard to the sentence that was imposed on the co-offender, thereby taking it into account in the broad sense in the course of exercising the sentencing discretion … "
I am, however, of the opinion that the sentencing discretion has been reopened by the breach of the principle of parity. The appellant has now spent some four months in prison. I would re-sentence the appellant to a term of six months' imprisonment and wholly suspend for a period of two years all that term save the period which the appellant has already served.
CALLAWAY, J.A.:
I agree.
EAMES, J.A.:
I also agree.
CALLAWAY, J.A.:
Mr Sotiriadis, the effect of the order we are about to make is to reduce your sentence to six months and to suspend the part of it that you have not already served. That will give you one last opportunity to avoid serving the rest of the sentence. The suspended part of the sentence will hang over your head for two years beginning on the date on which you were sentenced in the County Court, which was 21st May of this year. That is the “operational period” that will be referred to in the order. If you commit another offence punishable by imprisonment during that period of two years you will be brought back before the County Court. It does not matter whether you commit the offence in Victoria or outside Victoria. It does not matter whether you are in fact imprisoned for that offence or not. If you commit another offence that could be punished by imprisonment, you will be brought back before the County Court. That court may punish you for breach of the suspended sentence, but, far more importantly, you will almost certainly be ordered to serve the rest of the six months sentence of imprisonment. You only get one last chance. Do you understand that?
APPELLANT: Yes, your Honour.
CALLAWAY, J.A.:
The formal orders of the Court will be as follows:
The appeal is allowed.
The sentence imposed below on count 1 is quashed and, in lieu thereof, the appellant is sentenced to six months' imprisonment.
The Court orders that all but 123 days of that sentence be suspended for an operational period of two years.
The sentence is deemed to have been imposed, and the operational period to have begun, on 21st May 2004.
It is declared that the period of 123 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.
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