R v T L T
[2000] VSCA 120
•15 June 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 329 of 1999
| THE QUEEN |
| v. |
| T.L.T. |
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JUDGES: | PHILLIPS, C.J., CALLAWAY and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 June 2000 | |
DATE OF JUDGMENT: | 15 June 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 120 | |
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Criminal law – Sentencing – Future co-operation with law enforcement authorities – Contrast between Commonwealth and State provisions – Discretion on re-sentencing if error shown – Seriousness of trafficking in heroin – Crimes Act 1914 (Cth.), s.21E – Crimes Act 1958, ss.567A(1A) and (4A), 568(5) to (7) – Sentencing Act 1991, s.5(2AB) and (2AC)
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. B. Kayser | P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant | Mr. R.J. Bourke | Valos Black & Associates |
PHILLIPS, C.J.:
I shall ask my brother Callaway to give the first judgment in this matter.
CALLAWAY, J.A.:
The appellant, who is now aged 35, pleaded guilty in the County Court to one count of trafficking in heroin. The maximum custodial penalty for that offence was 15 years' imprisonment.[1] She had no previous convictions. After hearing a plea for leniency on her behalf, the learned sentencing judge sentenced the appellant to three years' imprisonment, of which his Honour ordered that two years be suspended for an operational period of three years. A declaration was made regarding pre-sentence detention, together with a forfeiture order, a pecuniary penalty order and an order pursuant to s.464ZF of the Crimes Act 1958.
[1]Drugs, Poisons and Controlled Substances Act 1981, s.71(1)(b)
The appellant was granted leave to appeal against sentence on 5th June 2000. The grounds of appeal as amended by order of the Registrar made on 2nd June 2000 are, first, that the learned judge erred in failing to have regard to the appellant's commitment to co-operate with law enforcement authorities in future proceedings and, secondly, that the sentence is manifestly excessive. The second ground was, rightly, not pressed.
Before turning to counsel's submissions I shall say something briefly about the circumstances of the offending. The count to which the appellant pleaded guilty alleged that she trafficked in heroin between 26th April and 24th June 1999. The evidence was gathered in the course of a police operation codenamed Operation Hollick. A covert operative using the name Dale Perry made four purchases of heroin from one Sue Linton. By 7th June 1999 he had won her confidence and she agreed to introduce him to her supplier. They travelled together to a location in Prahran. Perry gave Linton $1,850 and Linton went and joined the appellant in her vehicle. After a short conversation Linton returned to Perry and handed him a newspaper, inside which was a package the size of a golf ball. Four further deals with the appellant, with Linton performing a similar intermediary role, took place on 9th, 11th, 15th and 17th June 1999, the amounts paid by Perry being $1,850 on the second and third occasions and $3,500 on the fourth and fifth occasions.
On 11th June 1999 Perry spoke directly to the appellant in Linton's presence. The appellant quoted $7,000 as the price for an ounce of heroin. Ten days later Perry telephoned the appellant directly. On that occasion she quoted a price of $6,800. He arranged to meet her the following day, when he gave her $6,800 and received in exchange four golf ball-sized packages. He telephoned the appellant again on 24th June 1999 and arranged to meet her the following day to purchase two ounces of heroin. On that day the appellant was arrested in the vicinity of the arranged meeting place. Her keys were taken from her and, when a search of a flat of which she was the occupier was conducted, a small quantity of white powder was found, together with a pair of scales and other drug paraphernalia. Investigators characterised the flat as a "safe house".
The material supplied by the appellant and purchased by Perry was later examined and analysed. The packages were found to contain foil packets, which in turn contained compressed white powder of various degrees of purity. The total quantity of powder trafficked was 129.6 grams. The depositional material before his Honour also included a statement from an experienced investigator, analysing the appellant's standing in terms of value and level of trafficking. He expressed the opinion that, if the heroin seized was broken down into gram lots, it would realise between $45,360 and $64,800, but that, if it were broken down into 20 "deals" per gram, the return would be between $77,760 and $129,600. He classified the appellant as a mid-level heroin trafficker supplying smaller dealers lower in the chain of distribution. That was accepted on the plea. It was conceded that the appellant was Linton's supplier throughout the period alleged in the count.
The ground that was argued arises in this way. Towards the end of the plea, after counsel for the appellant had completed his submissions, the prosecutor reminded the learned judge of s.5(2AB) of the Sentencing Act 1991, which reads:
"(2AB)If, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details."
but said that that provision need not be complied with because no undertaking of the kind it contemplated had been given.
I think that that submission, which was common ground below, was right. The statute contemplates not just an undertaking but an undertaking the details of which are to be noted in the records of the court. Even if it does not have to be expressed in any particular fashion or given in any formal way, it must be plainly given and in clear terms.[2] In the present case there was simply evidence to which counsel referred later when he said that the appellant was continuing to indicate that she would assist the police and had made a statement that she would give evidence if called upon.
[2]Compare R. v. Burns (unreported, Court of Criminal Appeal, 9th November 1992) at 11-12, speaking of the Commonwealth provisions.
The prosecutor added that the appellant's "indication of intention to assist the authorities" was still a matter to be taken into account in the exercise of the sentencing discretion. The learned judge responded as follows:
"Because she has already demonstrated her co-operation; is that what you mean? ... [I]n this case I don't have to get an undertaking from her because she has demonstrated that she's already co-operated."
After some discussion of how an undertaking would be enforced,[3] his Honour said:
"But anyway, I don't have to worry about it here because I've got clear evidence before me that she has co-operated to the point where a high level drug trafficker has been arrested and charged."
[3]Crimes Act 1958, s.567A(1A) and (4A).
Sentence was passed after a short adjournment. At the beginning of the sentencing remarks his Honour said:
“The facts and circumstances relating to the commission of this offence have been adequately summarised during the course of the plea. I have considered the many submissions in mitigation made by your counsel Mr Crisp. These include:
1. Your plea of guilty and your actual expressions of remorse.
2. The absence of prior convictions.
3. Matters personal to you, more particularly described in the report of Mr Healey.
4. Your actual cooperation with police, resulting in the apprehension and charging of high-level drug traffickers.
5. The unlikelihood of your re-offending.
6. Your prospects of rehabilitation.
7. The risk to your future safety whether in or out of custody."
Reference was then made to circumstances of aggravation and to counsel's submissions concerning the appellant's motivation.
In the course of the plea evidence had been given of the very substantial assistance the appellant had given, referred to in point 4 of his Honour's summary, but also of her willingness to give evidence at the trial of those other traffickers. Mr Bourke submitted that the latter fact had not been taken into account at all by the judge.
On careful consideration I do not think that that submission is sustained by the passages of transcript on which it is based or by the sentence actually passed. What his Honour said that he did not have to worry about was obtaining an undertaking. He did not say, and it would have been surprising if he had said, that he did not have to take into account the appellant's willingness to co-operate in future. The sentencing remarks were very brief, following as they did almost immediately on the plea, but the judge said that he had taken into account the many submissions made in mitigation and that they included the seven points that he enumerated. I do not infer that his Honour overlooked future co-operation. It was plainly relevant. It had been the subject of evidence that same day and counsel for the appellant had mentioned it towards the conclusion of his address.
For these reasons, in my opinion, the ground fails, but I add something further out of regard for Mr Bourke's characteristically thorough argument.
First, the State and Commonwealth provisions regarding future co-operation are different. In particular, in contrast with s.21E of the Crimes Act 1914 (Cth), s.5(2AC) of the Sentencing Act provides:
"(2AC) Nothing in sub-section (2AB) requires a court to state the sentence that it would have imposed but for the undertaking that was given."
Both past and future co-operation, if established, are to be taken into account, but that is all.[4]
[4]Compare, in relation to the Commonwealth provisions, R. v. Tan (1995) 78 A.Crim.R. 300 at 303 and R. v. Ngui [2000] VSCA 78 at 3.
Secondly, this would not have been a suitable case to remit the matter to the County Court if sentencing error had been shown. The new sub-ss.(5) to (7) of s.568 of the Crimes Act 1958 are for exceptional cases, of which this is not one.
Thirdly, if we had re-sentenced the appellant, she would not have been entitled to have the sentence below automatically reduced on the footing that a mitigatory factor had been overlooked. Where such a course has been followed, it has been because this Court considered a reduction in sentence to be the appropriate course in the exercise of its own discretion.[5] It is unsafe to build on a vitiated discretion. If a sentence is affected by error every part of it that is infected falls away. There are sound reasons not to increase the sentence unless it was manifestly inadequate,[6] but the appellant is entitled only to have the discretion re-exercised according to law.
[5]See, for example, R. v. Waters (unreported, Court of Appeal, 16th August 1996) at 9 and R. v. Jones (unreported, Court of Appeal, 3rd July 1997) at 6-7.
[6]R. v. Bolton and Barker [1998] 1 V.R. 692 at 697-698 and Director of Public Prosecutions v. Bulfin [1998] 4 V.R. 114 at 140, lines 23-25, and 141-142.
Finally, had error been shown, I might well have considered that no different sentence should be passed. In R. v. Berisha[7] Charles, J.A. said:
"[T]here is an abundance of authority stressing that trafficking in heroin is a very serious crime. The courts have repeatedly stigmatised the offence in the strongest terms. Offenders play for high stakes and persons detected in the business of trafficking in heroin can expect condign punishment and little mercy from the courts."
[7][1999] VSCA 112 at [32]
Very substantial clemency has already been shown to the appellant because of her co-operation with the authorities in circumstances of personal risk; but, having regard to the seriousness of the offence and her place in the chain of distribution, I doubt that further leniency would have been warranted.
I would dismiss the appeal.
PHILLIPS, C.J.:
I agree with the conclusions of Callaway, J.A. and I would subscribe to his Honour's reasons for them.
CHERNOV, J.A.:
I also agree, for the reasons given by Callaway, J.A., that the appeal should be dismissed.
PHILLIPS, C.J.:
The order of the Court is that the appeal stands dismissed.
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