R v Stantchev
[2002] VSCA 178
•8 November 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 316 of 2001
| THE QUEEN |
| v. |
| NADKA STANTCHEV |
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JUDGES: | WINNEKE, P., CHERNOV, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 October 2002 | |
DATE OF JUDGMENT: | 8 November 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 178 | |
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CRIMINAL LAW - Sentencing - Trafficking in two drugs of dependence (heroin and methylamphetamine) - Possession of drugs of dependence (cannabis and morphine) - Conspiracy to handle stolen goods - Further offending of the same kind whilst on bail - Whether individual sentences, cumulation order and non-parole period manifestly excessive - Sentences of four years for two counts of trafficking and for handling and a cumulation order producing a total effective sentence of six years not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | David Tonkin & Associates |
WINNEKE, P.:
I agree with O'Bryan, A.J.A.
CHERNOV, J.A.:
I also agree with O'Bryan, A.J.A.
O'BRYAN, A.J.A.:
This appeal is concerned with sentences imposed upon the appellant in the County Court on 18 December 2001 for offences of possession of a drug of dependence, namely cannabis and morphine (counts 1 and 2), trafficking in a drug of dependence, namely heroin and methylamphetamine (counts 3 and 4) and conspiracy to handle stolen goods (count 5). The appellant who is now aged 53 was sentenced to be imprisoned on each of counts 1 and 2 to three months' imprisonment and on each of counts 3, 4 and 5 to four years' imprisonment. A cumulation order was made that 12 months of the sentences on counts 4 and 5 should be served cumulatively on each other and on count 3. The total effective sentence was six years and four years was fixed as the minimum term before the appellant could become eligible for parole.
The appellant had a relevant criminal history. Between 1986 and 1999 she was convicted of 11 offences from five court appearances. Those offences included trafficking in heroin, cultivating and possessing cannabis, and handling stolen goods (two charges).
The possession counts carried a maximum penalty of five years' imprisonment and/or a fine of $40,000. The trafficking counts carried a maximum penalty of 15 years' imprisonment. The conspiracy count also carried a maximum penalty of 15 years' imprisonment.
The initial ground of appeal was:
"That in all the circumstances the sentence imposed was manifestly excessive."
By leave granted by the Registrar, three further grounds were added:
"2.The sentences on counts 3, 4 and 5, the total effective sentence and the non-parole period are manifestly excessive.
3.The learned sentencing judge erred in imposing the same sentences upon counts 3, 4 and 5.
4.The learned sentencing judge erred -
(a)in ordering cumulation, or as [to] the extent of cumulation ordered among counts 3, 4 and 5;
(b)in imposing a total effective sentence and a non-parole period that infringe totality."
Leave was granted to the appellant to appeal the sentence on 5 April 2002.
The circumstances of the offending are described in the Crown Opening on Plea, a document accepted as accurate by counsel representing the appellant on the plea. I shall endeavour to précis the document.
Following an investigation carried out by police, a search warrant was issued and executed in respect of premises in East St Kilda owned and occupied by the appellant on 19 November 1999. During the course of the search conducted in the presence of the appellant, police located in the pantry of the premises a quantity of 157.2 grams of heroin with an approximate purity of 50%. A further quantity of 5.3 grams of heroin with an approximate purity of 50% was located in 55 small "deal" bags hidden in a cavity in the fascia of the oven in the kitchen of the premises. The heroin became the subject of count 3. Also in the pantry, the police found two bags containing 26.3 grams of methylamphetamine with an approximate purity between 20% (16.1 grams) and 3% (10.2 grams). Inside a bread box on the kitchen bench was a knotted plastic bag containing .5 grams of methylamphetamine with an approximate purity of 2%. The methylamphetamine became the subject of count 4. In a cupboard in the kitchen of the premises, police located a package containing 1.6 grams of morphine. The morphine became the subject of count 2. A quantity of cannabis was found in the kitchen and the laundry. The cannabis became the subject of count 1.
During the search the police located cash money totalling $4,600 and a variety of paraphernalia commonly used for trafficking in heroin and methylamphetamine. Paper writing located in the kitchen linked the appellant to a heroin transaction with a prisoner being held in custody at the Melbourne Assessment Prison. On 24 November prison staff located a plastic bag containing 5.4 grams with a purity of 50% hidden in the waist band of clothing left at the prison for the prisoner.
During the search on 19 November, police located 86 packets of bed linen which were unopened and housed in their original packaging. Most of the linen was identified as belonging to Myers Grace Bros. The bed linen was alleged by the Crown to have been received by the appellant knowing the property to be stolen pursuant to a conspiracy. This was the subject of count 5. The appellant stated to the police that she had purchased the linen legitimately.
The appellant was charged with a number of offences and later released on bail.
In April 2000, the police engaged in a further undercover surveillance operation of the appellant and other persons. On 14 July 2000 the appellant and a number of other persons were arrested and the premises of the appellant in East St Kilda were again searched pursuant to a warrant. The evidence gathered by the police included telephone intercepts, listening device material and information provided by a number of persons allegedly associated with the appellant. It is enough to say that Jacqueline Balabin informed the police that, between 19 November 1999 and 14 July 2000 (the charge period for counts 3 and 4), the appellant supplied her with heroin pursuant to an agreement or arrangement whereby she would steal goods from department stores for which she would receive one-third of the retail value of the goods in heroin. Similar information was provided to the police by Shane McDonald. In June 2000, the appellant with Balabin engaged in stealing a variety of Manchester items from a number of stores at Chadstone Shopping Centre on various dates. These counts were a Giretti[1] type alleging that a business of trafficking was conducted between the dates specified.
[1]R. v. Giretti (1986) 24 A.Crim.R. 112.
During the search of the appellant's premises on 14 July, a quantity of methylamphetamine and heroin was located and paraphernalia commonly used for trafficking drugs. $16,500 cash money was found in the premises together with a large quantity of Manchester items and a Wedgwood clock allegedly stolen.
As a result of the second investigation and the evidence obtained therefrom, the Crown charged the appellant on counts 3 and 4 with trafficking in a drug of dependence between dates.
At the committal hearing on 13 February 2001 the appellant reserved her plea. The appellant indicated that she would plead guilty to the five counts in the presentment on 28 November and the presentment was filed two days later.
During the plea hearing in December a report from Bernard Healey, a psychologist was tendered. The history gathered by Mr Healey from the appellant revealed that she was born in Bulgaria and migrated to Australia in about 1970 with her husband. The marriage broke down in 1977 and the appellant was left to support a son of the marriage. During the next 20 years the appellant formed several relationships which led her into using morphine, heroin and cannabis from time to time. The history was otherwise unremarkable. She exhibited symptoms of depression and anxiety when interviewed in December 2001.
The trafficking offences are serious forms of trafficking in hard drugs and the conspiracy count involved a large-scale and apparently well-planned operation of dishonesty. There were aggravating features of the offending: first, the resumption of offending in the same manner and on the same scale after being released on bail; second, importuning drug addicts to perform thefts from business stores with drugs as the medium of payment for services rendered. As the judge correctly observed in his sentencing remarks:
"Each trafficking offence was prolonged and extensive and grave, as was the conspiracy. Such offences have been condemned by courts frequently and there is no need for me to add to a litany of condemnation. The sentencing factors of general deterrence and, in this case, specific deterrence, given your prior conviction for trafficking and the fact of its continuation whilst you were on bail, are prominent factors in this case."
Mr Croucher for the appellant argued grounds 2 and 3 together. The substance of his argument was that the judge erred in imposing the same sentences on counts 3 and 4. He submitted that trafficking in methylamphetamine for which the legislation has prescribed six grams as the traffickable quantity is less serious than trafficking in heroin for which the legislature has prescribed three grams as the traffickable quantity. I do not consider there is any merit in that argument. The difference in the traffickable quantity prescribed for each drug bears no relationship to sentencing in my opinion. Both drugs are listed in Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 and are regarded as "hard drugs" for sentencing purposes. Whilst the traffickable quantity is different the penalty prescribed by s.71AC for trafficking in a drug of dependence, whether heroin or methylamphetamine, is the same, 15 years' imprisonment. The circumstances of the offending, whether it be quantity, period of offending or method of offending will dictate the appropriate sentence for each drug. In the present case the circumstances did not require the judge to impose different sentences for counts 3 and 4. Whilst the evidence indicated that the appellant's business in hard drugs was orientated more towards heroin her business was by no means small in relation to methylamphetamine. Each drug is known to have very pernicious and harmful qualities and courts have said time and again that serious drug offenders, as was this appellant, must be punished severely with imprisonment.
Mr Croucher submitted that the amount of stolen property detected was insufficient to attract a sentence of four years' imprisonment. The submission overlooks the evidence that a customer, perhaps more than one, was observed taking away from the premises a quantity of Manchester. The conspiracy was charged between November 1999 and July 2000. In that period the appellant spent some time in custody. When she was released from custody, she resumed her illegal arrangement with Balabin and others. This was ongoing offending of a contumacious kind by a person with prior convictions in 1995 for handling stolen goods. In my opinion the sentence chosen by the judge was within range.
Finally, Mr Croucher submitted that the total sentence of six years was manifestly excessive and the judge was in error in ordering cumulation, for to do so amounted to double counting.
In my opinion cumulation was appropriate in the circumstances. The conspiracy, although it involved drugs as a mode of payment, was of an entirely different nature of offending to the trafficking counts. The handling of stolen property calls for general deterrence to be reflected in the sentence in a significant way, for without the handler the thief would find it more difficult to profit from his or her thieving.
The sentence included a moderate order for cumulation and an appropriate non-parole period. The appellant had to be made aware that the penalty for her offending was severe, firstly, because she had a criminal record and, secondly, because she resumed offending after she was released on bail. This was an appropriate case for specific deterrence to be reflected in the sentence.
I would dismiss the appeal.
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