R v Spokes
[1999] VSCA 210
•16 November 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 11 of 1999
THE QUEEN
v
GLEN ADRIAN SPOKES
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JUDGES: PHILLIPS, C.J., ORMISTON and CALLAWAY, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 15 November 1999 DATE OF JUDGMENT: 16 November 1999 MEDIA NEUTRAL CITATION: [1999] VSCA 210
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Sentence – Trafficking in methyl-amphetamine, ecstacy, LSD and cocaine – Six years nine months with minimum term of four years three months not manifestly excessive.
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APPEARANCES: Counsel Solicitors For the Crown Mr. C.J. Ryan P.C. Wood, Solicitor for
Public ProsecutionsFor the Applicant Mr. S. Gillespie-Jones Paul A. Vale Pty.
PHILLIPS, C.J.:
I shall ask my brother Ormiston to give the first judgment in this matter.
ORMISTON, J.A.:
The applicant pleaded guilty in January this year to four counts of trafficking in drugs of dependence. He admitted 21 prior convictions from nine previous court appearances over the years 1984 to 1988, and drew to the attention of the learned County Court judge who heard the plea that he had been convicted and sentenced to three months' imprisonment in the Magistrates' Court some four months earlier, in respect of charges of possession and use of cannabis and amphetamines which had been found in his premises during an earlier raid, which could not be described as a prior conviction.
The four offences the subject of this application may be described as follows. The applicant was sentenced in respect of the four counts in this way:
Count 1: Trafficking in a commercial quantity of a drug of dependence, namely methyl-amphetamine (for which the maximum penalty for a commercial quantity is 25 years):- four years nine months' imprisonment.
Count 2: Trafficking in the drug of dependence known as ecstasy (for which the
maximum penalty is 15 years):- three years' imprisonment.
Count 3: Trafficking in a drug of dependence, namely lysergic acid diethylamide (LSD) (for which the maximum penalty is 15 years' imprisonment):- three years' imprisonment.
Count 4: Trafficking in a drug of dependence, namely cocaine (for which there is a
similar maximum penalty):- 18 months' imprisonment.
His Honour then directed that one year of each of the sentences on counts 2 and 3 be served cumulatively on count 1 and on each other, giving a total effective sentence of six years nine months, of which he directed that the applicant should serve four years three months before becoming eligible for parole. The judge also stated that the sentences allowed for the conviction in the Magistrates' Court in that that sentence would otherwise have been served concurrently with the sentences with which he was dealing and that he therefore had made allowance for that fact.
Originally the sole ground relied upon was that the sentences were manifestly excessive. Last Friday, leave was given to amend the grounds. In the end, the amendments were not significant inasmuch as a technical ground as to the pronouncement of the orders as to cumulation was abandoned when the matter came on for hearing before us. The remaining two new grounds read as follows:
"2. The learned trial judge erred in that he
(a) gave too little weight to the prospects of rehabilitation; (b) took into account (i) large untaxed profits that flow from trafficking in drugs
(ii) a risk of corruption arising therefrom (page 73);
(c) failed to give reasons for the cumulation imposed;
(d) imposing the cumulation of sentence that he did.
3. In all the circumstances
(a) the individual sentences on each count; (b) the total effective sentence; and (c) the non-parole period; are manifestly excessive."
The surrounding facts and circumstances may be briefly described. The four counts covered the period 24 April to 13 May 1998. At various times during that period, two police undercover operatives had a number of dealings with the applicant relating to amphetamines and on one occasion ecstasy and cocaine. The first operative went first to his house on 24 April seeking to buy those drugs from the applicant. He was sold one ounce of white amphetamine powder for $6,000 and was given also some small samples of ecstasy and cocaine. He was to try these with a view to making purchases of larger quantities of them in the future. The various drugs were immediately analysed by the Victorian Forensic Science Centre. The amphetamine powder was found to contain 40% pure methyl-amphetamine together with ephedrine and lignocaine. The ecstasy tablets contained a mixture of methyl- amphetamine, ephedrine, heroin, acetyl-codeine and cocaine. The cocaine powder was found to contain 70% pure cocaine.
On 6 May the undercover operative returned to the applicant's house where he bought two more ounces of white amphetamine powder for $12,000. They negotiated over a further sale of four pounds of amphetamine, the applicant offering to supply it in two pound lots at the rate of $72,000 per pound. He had two pounds of that drug in his house at the time but, as the quality was not good, so he said, he offered to blend it with a further quantity to make a reasonable batch. On analysis the two ounces were also shown to contain 40% pure methyl-amphetamine.
On 8 May the undercover operative returned to the applicant's house to make arrangements for the purchase of a large quantity of amphetamines and also the possible purchase of 1,200 ecstasy tablets at $20 a tablet. The applicant gave him a sample of amphetamine for the sale which was planned to take place five days later, on 13 May. Again this was analysed to contain 40% methyl-amphetamine.
On 13 May 1998 the police operative went for the last time to the applicant's house and reached agreement to buy three pounds of amphetamines at the price earlier offered for a total of $216,000, together with 1,000 ecstasy tablets for the sum of $20,000. Shortly afterwards the operative's ostensible colleague, another undercover operative, arrived with $240,000 in a backpack to be used to pay the agreed prices. The money was emptied on to a bench, and although they discussed removing the excess of $4,000, the applicant counted out the money and succeeded in placing the whole $240,000 into a plastic bag. The applicant then produced from his laundry a package in a white towel which when opened revealed a clear plastic bag with creamy-beige powder inside. After weighing out three pounds into a package, the applicant gave it to the second operative who took it away. The first operative then left with the 1,000 ecstasy tablets.
At 11.50 a.m. on the same day the applicant's house was raided by the Special Operations Group. The applicant ran out the back door, vaulted the side fence but broke both heels when landing on the next-door drive. He was found by the police attempting to hide in an alcove at the back of that next-door house, behind three large boxes. The bag containing $240,000 was next to him, but he was also found to be carrying a small bag of cocaine in his coat pocket. His house was then searched pursuant to a search warrant. The items seized which the applicant acknowledged were a further 1,595 ecstasy tablets, 823 tickets of LSD, an additional one-and-a-half pounds of amphetamines and one ounce of cocaine.
From this material it is to be inferred, as the counts alleged and the applicant by his plea admitted, that he was engaged in trafficking each of the drugs of dependence referred to in the four counts (other than the LSD) during the same period, namely from 24 April to 13 May 1998, and that in the case of the LSD it was to be inferred, as count 3 alleged and it was likewise admitted, that the applicant was engaged in trafficking it only on 13 May. In the case of the first count, the amount in question was derived from the four pounds eleven ounces traded or held by the applicant which it was agreed contained 616.5 grams of pure amphetamines, and which on any view amounted to a commercial quantity within the meaning of the relevant provisions now contained in the Drugs, Poisons and Controlled Substances Act 1982.
| 12 | The applicant refused to be interviewed in relation to these matters but indicated an intention to plead guilty at the time committal proceedings were heard. |
In the course of his plea before the learned County Court judge certain further matters relating to the applicant and his personal circumstances were relied upon. He was then 32 (and is now 33) years of age. As to his prior record, although six convictions involved possession, use or cultivation of drugs of dependence, none had involved trafficking and the last was some ten years earlier, in 1988. The judge correctly said that they were now of relevance only to show that in the past the applicant had disregarded the demands of society and had failed to heed the warnings given to him.
It appeared, primarily from a report from a forensic psychologist, that he had had a very unsettled and unhappy life in his youth. He had seen little of his parents, spending time in children's homes and having few educational opportunities, such that the judge concluded that he was "barely literate", a deficiency which in the last year or so he has sought to overcome, as was established by the production of numerous certificates showing his application to the gaining of new qualifications and capacities. Up to the age of 22 he had had few jobs and had been engaged in drug abuse. By 1988 he had met a female friend which led to a period of nearly ten years' stability. However, by 1997 the relationship had broken up for various reasons and the applicant had taken again to drug-taking and, as these proceedings demonstrate, drug-dealing. The forensic psychologist, having considered his attempts to rehabilitate himself while on remand, formed the view that there are positive signs of his attempts at rehabilitation, an opinion backed up by a therapist from Moreland Hall and by some other evidence called on the hearing of the plea. It seems that he obtained drugs from certain nightclubs, notionally for nothing, but afterwards he was asked to pay but had insufficient means to do so, so allowing the dealers to manipulate him and recruit him into trafficking as a wholesale dealer.
The argument before this Court took an unusual course. The ground relating to the failure to pronounce orders for cumulation was abandoned, though it was said that the actual orders were too harsh. The primary ground at first argued was that the sentence was manifestly excessive because it was outside the range of sentences appropriate to the criminality of the offences. To make out this argument counsel referred to a number of cases decided in recent years, in particular R. v. Charles and McConville [1998] VSCA 12. An attempt was made to contrast the facts of the case and the character of the applicants with those of the present, thus contending that the applicant here was treated unfairly in comparison. There were some similarities between the two cases, but the exercise was one which was in the end futile. In the first place, although the quantity of amphetamines there considered was somewhat greater than here alleged, the case seemed to be argued on the basis that only traffickable quantities were in issue, so that the maximum term capable of being imposed was in that case 15 years.
By reason of the amendments made to the legislation in 1997 altering the manner in which commercial quantities are defined and calculated, a maximum term of 25 years was open in the present circumstances, and in my opinion Parliament has thereby shown its intention that dealing in what are now so defined as commercial quantities of drugs such as amphetamines should be treated more severely. However, in any event, such comparative exercises are almost invariably misconceived, except when true issues of parity or lack of parity as between co- offenders require them to be conducted. The circumstances of each offence vary and, more importantly, the relevant personal circumstances, as defined by the courts, of the offenders vary so markedly that to compare one case with another throws up more questions than it answers: But cf., e.g., R. v. Berisha [1999] VSCA 112 and R. v. Howden [1999] V.R. 130. The exercise ought not to be confined to any single case but a statistical comparison of all relevant cases would, of course, be fraught with practical difficulties which the courts have almost invariably condemned.
In the end, counsel recognised the difficulties facing this argument, especially when further authorities were drawn to his attention in which somewhat more severe penalties were imposed than in Charles and McConville, and he sought not to argue manifest excess except by arguing that the decision to cumulate one year of each of counts 2 and 3 was excessive in itself.
Allowing for the addition of three months by reason of the effect of the convictions in the Magistrates' Court, the term of five years for trafficking this quantity of amphetamines could not, in my opinion, be said to be outside the relevant range. It was, it should be remembered, only one fifth of the now permitted maximum, and, although it was suggested that the operatives encouraged him to make larger sales than he could otherwise have expected, that proposition could not be made out, for the facts here spoke for themselves. Even after selling three pounds of amphetamines on the morning of 13 May 1998, the applicant still had one-and-a- half pounds left on his premises when raided later that day, apart from the not inconsiderable quantities of ecstasy and LSD then discovered. I shall return to the question of cumulation shortly.
The first ground of appeal (ground 2) raised a number of specific matters. Counsel referred first to the failure to give sufficient weight to the applicant's prospects for rehabilitation. As to this the learned judge clearly set out and recognised fairly the matters here relied upon, and I see no reason to believe that they were not given appropriate weight. The non-parole period set of four years three months seems to me to show that the judge recognised this aspect of the applicant's case and the attempts he had made in recent months to rehabilitate himself.
Then it was said that the judge wrongly took into account the fact, as it was expressed in the reasons, of "the large untaxed profits that flow from trafficking in drugs" and that there was "an associated risk of corruption". These comments in the reasons for sentence were not, as counsel suggested, specifically addressed to the activities of the applicant. They were general comments made as to the nature of drug trafficking and the consequences of dealing in the quantities here under consideration, namely on the first count, a commercial quantity. Moreover, the comments were in no way inappropriate and cannot in my opinion be the basis for any legitimate complaint.
The final aspect of ground 2 concerned two complaints made as to cumulation which was, as I have said, the aspect of excessiveness which counsel finally relied upon to support ground 3. As I understand it, counsel did not pursue the failure to give reasons for the cumulation imposed, as he conceded that there was a deficiency in the transcript as to what the judge said on this issue. Counsel contended that nevertheless, whatever might be said of the individual terms on counts 2 and 3, the decision to cumulate one year of each of them was excessive. He said that all the trafficking was part of a single enterprise which was short-lived and did not justify such a cumulation. In the end he conceded that some cumulation might have been justified, but that one year was far too great for each of the two counts in question, that is, counts 2 and 3.
In the circumstances I am not persuaded that the decision to cumulate one year of each count could not be justified. The applicant conducted, even in that short period, a not inconsiderable business and had available for sale a variety of drugs, those described in counts 2 and 3 being also available in substantial quantities. On the other hand, the amount of cocaine was small and so did not attract any cumulation. The ultimate decision as to the total effective sentence seems therefore not to have departed from the relevant principles of totality or from any of the other principles called in aid by the applicant. Neither the overall term nor the minimum term, therefore, was outside the range appropriate for this kind of trafficking, which was, as the judge stated in his reasons, to be greatly condemned.
I would dismiss the application.
PHILLIPS, C.J.:
I agree with the conclusion of Ormiston, J.A. and I would subscribe to his Honour's reasons for reaching it.
CALLAWAY, J.A.:
In the end counsel for the applicant accepted, expressly or by implication, that each of the individual sentences was within the range but submitted that the extent of the cumulation directed on counts 2 and 3 was manifestly excessive. In the circumstances Ormiston, J.A. has described, that submission is unsustainable.
In the passage at p.73 in which the learned sentencing judge referred to some of the social consequences of large-scale trafficking, his Honour was doing no more than explaining why such offences usually call for condign punishment.
Reference was made to the activities of a police undercover agent, but only in an attempt to differentiate this case from one of manufacture. It is therefore unnecessary to consider the authorities referred to in R. v. Bernath [1997] 1 V.R.271 at 277 or the observations of Kirby, P. in R. v. Rahme (1991) 53 A.Crim.R.8 at 11.
For these reasons and for those given by Ormiston, J.A., I, too, would dismiss
the application.
PHILLIPS, C.J.:
The order of the Court is that the application for leave to appeal against sentence stands dismissed.
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