R v Taric; R v Sindik
[2008] VSCA 166
•28 August 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
THE QUEEN
No 85 of 2007
v
MUHAMED TARIC
THE QUEEN
No 101 of 2007
v
ANTE SINDIK
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JUDGES
VINCENT, ASHLEY and NEAVE JJA
WHERE HELD:
Melbourne
DATE OF HEARING:
28 August 2008
DATE OF JUDGMENT:
28 August 2008
MEDIUM NEUTRAL CITATION:
[2008] VSCA 166
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Criminal law – Sentencing – Trafficking and cultivation of marijuana in not les than a commercial quantity – Cultivation of marijuana – Theft of electricity – Whether error in passing the same sentence for dissimilar offending – Whether failure to allow any, or adequate, weight to circumstances of mitigation – Mental illness of one of appellants – Delay between charges being laid and pleas being heard – Appeals allowed and appellants re-sentenced.
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APPEARANCES: Counsel Solicitors For the Crown Mr T Gyorffy Mr S Ward, Acting Solicitor for Public Prosecutions For Appellant Taric Mr O P Holdenson QC Stephen Andrianakis & Associates For Appellant Sindik Mr N Hutton Mike Wardell VINCENT JA:
1 I will invite Ashley JA to deliver this judgment.
ASHLEY JA:
2 Before the Court are two appeals, brought by leave, against sentences imposed in the County Court on 3 April 2007. Ante Sindik, now aged 64, a man with two prior convictions of no present relevance, pleaded guilty to two counts of trafficking cannabis in not less than a commercial quantity[1] and two counts of theft of electricity.[2] The offences were committed at two properties in the Ballarat area. The trafficking and theft the subject of Counts 1 and 2 occurred at 365 Sago Hill Road, Haddon (conveniently, ‘the Sago Hill property’) in the period 3 May to 3 September 2003. The trafficking and theft the subject of Counts 3 and 4 occurred at 569 Ross Creek Haddon Road, Haddon (conveniently, ‘the Ross Creek property’) in the period 6 June to 4 September 2003. The sentence imposed on each of the trafficking counts was five years' imprisonment and on each of the counts of theft one year's imprisonment. With cumulation, and in the case of Count 3 – as was appropriate – concurrence, a total effective sentence of six years and six months' imprisonment was arrived at. The judge fixed a non‑parole period of four years and three months and made a declaration in respect of pre‑sentence detention.
[1]Drugs, Poisons and Controlled Substances Act 1981, s 71AA, maximum penalty 25 years’ imprisonment.
[2]Crimes Act 1958, s 72, maximum penalty 10 years’ imprisonment.
3 Muhamed Taric, now aged 32, a man with no prior convictions, pleaded guilty to one count of cultivating cannabis in not less than a commercial
quantity,[3] to one count of cultivating cannabis[4] and one count of theft of electricity. The offence comprehended by Count 1 was committed at the Ross Creek property. The offences comprehended by Counts 2 and 3 were committed at 580 Bells Road, Smythes Creek (conveniently, ‘the Bells Road property’). Taric was sentenced on Count 1 to 54 months' imprisonment, on Count 2 to three years' imprisonment and on Count 3 to one year's imprisonment. With cumulation, the total effective sentence was five years and nine months' imprisonment. The judge fixed a non‑parole period of three years and nine months and made a declaration in respect of pre‑sentence detention.
[3]Drugs, Poisons and Controlled Substances Act 1981, s 72, maximum penalty 25 years’ imprisonment.
[4]Drugs, Poisons and Controlled Substances Act 1981, s 72B, maximum penalty 15 years’ imprisonment.
Grounds of appeal
4 In the case of each appellant there were many grounds of appeal.
Sindik
1.The learned sentencing judge erred in failing to impose sentence on Count 1 on the factual basis that the physical conduct engaged in by the appellant was limited to that of ‘watchman’ or ‘babysitter’ and watering/tending plants only during the early phase of their growth and for no financial reward.
2.The learned sentencing judge erred in the exercise of his discretion in that he failed to accord sufficient weight to the assistance rendered by the appellant to the police.
3.The learned sentencing judge erred in the exercise of his discretion in that he failed to accord sufficient weight to fact that the appellant revealed to the investigating police his own offending which may not have otherwise been revealed.
4.The learned sentencing judge erred in the exercise of his discretion in that he failed to accord any weight to the fact that the appellant’s assistance to authorities was fully revealed to his co-accused and the public in general which may result in the appellant’s time in custody being especially burdensome or dangerous.
5.The learned sentencing judge erred in the exercise of his discretion in that he failed to accord any weight to the appellant’s advanced age (63 at the time of sentencing).
6.The learned sentencing judge erred in the exercise of his discretion in respect of Counts (1), (3) and (4) in that he failed to accord sufficient, weight to:
(a)the appellant’s pleas of guilty;
(b)the stage in the proceeding at which the appellant indicated his intention to plead guilty;
(c)the limited role of the appellant, particularly in respect of Count (1) and to a lesser extent in respect of Count (3) in the commission of the offences;
(d)the personal circumstances of the appellant;
(e)the otherwise good character of the appellant; and
(f)the appellant’s good prospects of rehabilitation.
7.The four individual sentences imposed, the Total Effective Sentence imposed and the non-parole period which was fixed are each and all, in all the circumstances of the case, manifestly excessive.
8. The sentence imposed in respect of each of Counts (1) and (3) is identical in circumstances in which it is impossible to justify the identical sentences. The appellant’s level of involvement in respect of each of these Counts is manifestly different and accordingly, the sentence imposed in respect of each should be vastly different.
9.The learned sentencing judge erred in the exercise of his discretion in imposing sentence on the basis that the offences of the type committed by the appellant ‘[had] become far too prevalent …’
10.The learned sentencing judge erred in the exercise of his discretion by failing to accord any weight to the delay in approximately 3.5 years in proceedings that were not due to the fault of the appellant.
Taric
1.The learned sentencing judge erred in failing to impose sentence on Count 1 on the factual basis that the physical conduct engaged in by the appellant was limited to assisting in the construction of the shed.
2.The learned sentencing judge erred in failing to properly take into account the mental disorders suffered by the appellant.
3.The learned sentencing judge erred in the exercise of his discretion in that he imposed sentence on the basis that the appellant was ‘not … an inappropriate vehicle for the application of the sentencing principle of general deterrence’.
4.The learned sentencing judge erred in the exercise of his discretion in that he failed to accord any, or sufficient, weight to the assistance rendered by the appellant to the police.
5.The learned sentencing judge erred in the exercise of his discretion in that he failed to accord any, or sufficient, weight to:
(a)the appellant’s pleas of guilty, the circumstances in which the appellant pleaded guilty and the consequences of same;
(b)the limited role of the appellant in the commission of the offences;
(c)the personal circumstances of the appellant;
(d)the otherwise good character of the appellant; and
(e)the appellant’s good prospects of rehabilitation.
6.The three individual sentences imposed, the total effective sentence imposed and the non-parole period which was fixed are each and all, in all the circumstances of the case, manifestly excessive.
7.The learned sentencing judge erred in the exercise of his discretion in that he failed to accord any, or sufficient, weight to the sentencing principle of parity in relation to the sentence imposed upon the appellant’s co-offender, Ante Sindik.
8.The learned sentencing judge erred in the exercise of his discretion in imposing sentence on the basis that the offences of the type committed by the appellant ‘[had] become far too prevalent .’.
5 In my opinion, as was frankly and correctly conceded by counsel for the Crown, each appeal must be allowed and the appellants must be re‑sentenced. In explaining why that is so it is unnecessary to deal with every ground of appeal.
Circumstances
6 It is necessary to describe the circumstance of the offending and the role of the appellants.
7 On 3 September 2003 police searched the Sago Hill property. They found 47 mature cannabis plants, 137 small seedlings and a mother plant. The total weight, at least of the mature plants and the mother plant, was a little over 160 kilograms. Police also found an electrical bypass. The plants were being grown hydroponically in two sheds within a larger shed. That set-up was apt to prevent light and smells emanating. It was described by the prosecutor as a very sophisticated cannabis growing system.
8 On 4 September 2003 police searched the Ross Creek property. They found 40 near mature cannabis plants weighing 73.5 kilograms and a power bypass. The plants were being grown with the aid of a computer system which was able to adjust the amount of light to which the plants were exposed from time to time.
9 On 4 September 2003 also police found 45 cannabis plants weighing 5.1 kilograms at the Bells Road property. Again, there was an electrical bypass and again a computer system had been installed to facilitate the growth of the plants.
10 The activities being undertaken at the Sago Hill and Ross Creek premises, it will now be appreciated, gave rise to the charges against Sindik, whilst the activities being undertaken at the Bells Road property gave rise to Counts 2 and 3 on Taric's presentment and the activities undertaken at Ross Creek Road gave rise to Count 1 on that presentment.
11 There was a fourth property, nearby, on which cannabis was being grown. It was at Wallaby Creek. The Crown's case was that the activities on the four properties were being run together. But no charges were brought against either appellant, at least at the stage when the pleas were heard, arising out of activities at the Wallaby Creek property.
12 I turn to the role of the appellants as it was accepted on the plea. But before doing so I should mention that each of the appellants had earlier been presented for trial, and had stood trial, on counts of having acted in concert in the trafficking and cultivation of cannabis on the four properties to which I have referred, and to theft of electricity at each property. Four times, as I understand it, trials had commenced. On each occasion the trial had aborted. The judge who eventually heard the pleas for the appellants on the more confined presentments had been exposed to evidence at one or more of the aborted trials. Counsel for the Crown submitted today, I think with some force, that the circumstance that the appellants pleaded guilty to more confined counts than those upon which they had earlier stood trial was not, in those circumstances, fully reflected in his Honour’s sentencing disposition.
13 Be that as it may, the plea material revealed that Sindik neither owned nor leased the Sago Hill property. The organisers of the overall offending ‑ it was accepted by all parties that there were such people – had offered him a place to stay rent-free in return for watering and tending the early stages of cultivation of the plants. He was then recently separated from his wife, and homeless. He took up the offer. He was involved at Sago Hill until about a month before the police searched the property. He did not build the cultivation sheds or set up the electricity bypass, but he knew that a bypass was in operation. He received no financial reward for what he had done. His trafficking in not less than a commercial quantity of cannabis was by reason of the amount of cannabis cultivated at the property.
14 Sindik's brother owned the Ross Creek property and rented it to Sindik. Sindik agreed with the organisers of the overall scheme to grow cannabis at that property. He acquired equipment to facilitate growth of the crop. He arranged for the electrical bypass, and he cultivated the crop. The plan was that he would sell it to the organisers when it was mature. That did not happen, but only because the police intervened.
15 Taric neither owned nor leased the Ross Creek property. His involvement was limited to building a shed on a property, being aware at the time of its purpose. On his account, he worked at the site for about two days and was paid $100 per day for his work. This limited role was not in dispute on the plea.
16 Taric neither owned nor rented the Bells Road property. He did, however, arrange for the electrical bypass and he often visited and stayed at the property - in effect as a watchman. He had no involvement in the actual cultivation of the crop, but he was paid $200 per night to be at the property. He was, I interpolate, then a man in receipt of social security benefits, these providing him with a modest income.
17 On no view, in the event, were either of Sindik or Taric men who were in the upper hierarchy in the overall criminal enterprise.
18 I should say that the greatest criminality in the various counts preferred against the two men was Sindik's criminality in respect of Count 3 on his presentment. Count 3 was a serious offence in its own right and its seriousness was emphasized by the fact that it was committed by a man whose nephew had been badly affected by drug use, and in circumstances where the son of a former lady friend, affected by drugs, had committed suicide. In short, this was a man who should have known better.
19 I should say further that Taric's greatest criminality was in respect of the offence comprehended by Count 2 on his presentment.
Why Sindik's appeal should be allowed
20 I agree with counsel for the appellant that, as was conceded by counsel for the Crown, it was wrong for his client to have been sentenced to identical terms of imprisonment on Counts 1 and 3. His criminality was substantially greater in respect of Count 3, although the amount of cannabis cultivated at Ross Creek was considerably less than at Sago Hill; for in respect of the Ross Creek property, Sindik had a profit motive. I should say as a corollary that Sindik's criminality in respect of Count 4 was somewhat greater than his criminality in respect of Count 2. At the least I consider that a different sentence should have been passed on Count 1.
21 What then of the sentence passed on count 3? Counsel for the appellant submitted that no or inadequate weight had been accorded by the learned sentencing judge to:
1.His client’s age. It was described as ‘advanced’ – although everything is relative.
2.The absence of relevant prior convictions.
3.The fact that the appellant had revealed further offending of his own which might not otherwise have come to the attention of the police.
4.The circumstances that the appellant had identified two other locations at which cannabis was being grown.
5.The prospect that the appellant would face a difficult time in gaol because he was, and was known to be, an informer.
6.His client's plea of guilty which had always been available, it should be concluded, at least in respect of Counts 1, 3 and 4.
7.The delay between charge on 3 September 2003 and sentence on 3 April 2007, particularly in circumstances where the appellant had conceded at the outset the substance of the offences comprised in Counts 1 and 3.
8.His client's good prospects of rehabilitation, as acknowledged by the learned sentencing judge.
22 As I read His Honour's sentencing remarks, he made no reference, in the context of mitigation of sentence, to considerations numbered 1, 3, 5 and 7 above, although each of them was drawn to his attention on the plea. Whilst sentencing remarks are not to be read as a statute, and whilst failure to mention some matter does not necessarily imply that it was not considered, in this instance, I consider, the circumstances which were not mentioned merited overt attention. I consider that His Honour's failure to mention them, taken in conjunction with the sentence actually passed, does show that at least inadequate weight was accorded them.
23 Beyond that, I consider it likely that His Honour in fact rejected the possible relevance of delay. That he did so is implicit in his remarks during the plea, taken together with his failure to say anything about delay when sentencing Sindik.
24 In all the circumstances, I would re‑sentence Sindik as follows: Count 1, two years' imprisonment; Count 2, nine months' imprisonment; Count 3, four years and six months' imprisonment; Count 4, twelve months' imprisonment. Taking the sentence on Count 1 as the base sentence because the appellant would fall to be re‑sentenced as a serious drugs offender in respect of Count 3, I would cumulate three months of the sentence on Count 2 and three months of the sentence on Count 4 on each other and on the sentence on Count 1. I would order that two years of the sentence imposed on Count 3 be concurrent with the sentence on Count 1. The total effective sentence would then be five years' imprisonment. I would fix a non‑parole period of three years and make a declaration in respect of pre‑sentence detention being, as we were told this morning, 727 days to and including this day.
25 I would note in respect of Count 3 that I would sentence Sindik as a serious drugs offender and I would state that I do not consider it necessary to impose a sentence on that count greater than is proportionate.
Why Taric's appeal should be allowed
26 Taric's appeal should be allowed at least because, in my opinion, a new and lesser sentence should be imposed upon Sindik on Count 3 of his presentment. Taric's involvement at the Ross Creek property was quite confined in time and activity. Even putting his mental illness, and other personal circumstances to which I will refer in a moment, to one side, any sentence passed upon him in respect of Count 1 on his presentment must be appreciably less than that imposed on Sindik in respect of Count 3 on his presentment.
27 There are other reasons why the appeal should be allowed. They bear upon the sentence which should now be imposed. I agree with the submission of counsel for the appellant that the magnitude of the sentences imposed, taken together with His Honour's sentencing remarks, reveal that no or inadequate weight was accorded by the learned sentencing judge to:
1.The appellant's significant and long‑standing mental disorder, which left open the prospect that imprisonment, using the words of the appellant's treating psychiatrist, ‘could easily’ have a serious effect upon his already damaged personality and mental state.
2.The prospect that imprisonment could have a detrimental effect not only on the progress of the appellant's mental illness, but also upon his rehabilitation.
3.The appellant's assistance to the police, although in some respects it had come to nothing.
4.The appellant's guilty plea, accepted by the learned sentencing judge as evidencing remorse.
5.The appellant's previous and subsequent good character, as evidenced by absence of any convictions and a number of testimonials. I further consider, although his Honour's sentencing remarks are not quite clear on the point, that it is probable that he declined to moderate general deterrence at all as a sentencing consideration in light of the appellant's mental illness. I agree with counsel for the appellant that some measure of moderation ought to have been accorded in light of the strong medical evidence which was before the judge.
28 Bearing in mind the matters to which I have referred and as well the fact that the maximum penalty on Count 2, the most serious offence committed by Taric, is 15 years' imprisonment - which may be contrasted with the maximum penalty of 25 years faced by Sindik on Count 3 on his presentment - and bearing in mind also the submission of counsel for the Crown that the learned judge below might properly
have sentenced Taric to be imprisoned for a total effective sentence of three years or even less, I would re‑sentence Taric as follows: Count 1, one year and three months' imprisonment; Count 2, two years and six months' imprisonment; Count 3, nine months' imprisonment. Taking the sentence on Count 2 as the base sentence, I would cumulate four months of the sentence on Count 1 and two months of the sentence on Count 3 on each other and on the sentence on Count 2. The total effective sentence would then be three years' imprisonment. I would fix a non‑parole period of 21 months. I would make a declaration in respect of the pre‑sentence detention being, we were told this morning, 570 days to and including this day.
VINCENT JA:
29 I agree that these appeals should be allowed for the reasons given by Ashley JA and the appellants be re‑sentenced as proposed by him.
NEAVE JA:
30 I also agree that the appeal should be allowed and the appellants re-sentenced in the manner proposed by Ashley JA.
VINCENT JA:.
31 In the matter of Sindik the appeal is allowed. The sentences imposed in the court below are set aside and in lieu thereof it is ordered that on Count 1 he serve a period of two 2 years' imprisonment; on Count 2 nine months' imprisonment; on Count 3 four years six months' imprisonment, and on Count 4 twelve months' imprisonment.
32 It is directed that it be entered into the records of the court that the appellant has been sentenced in respect of Count 3 as a serious drug offender pursuant to s.6F of the Sentencing Act 1991. It is ordered that three months of the sentence imposed
on Count 2 and three months of that imposed on Count 4 be served cumulatively upon each other and upon the sentence imposed on Count 1. It is further ordered that two years of the sentence imposed on Count 3 be served concurrently with the sentence imposed on Count 1. These orders create a total effective sentence of five years' imprisonment in respect of which a non‑parole period of three years is fixed.
33 It is declared that the period of 727 days is to be reckoned as having been served under the sentence and it is directed that this declaration and its details be entered in the records of the court.
34 In the case of Taric, the appeal is allowed and the sentences imposed in the court below are set aside. In lieu thereof it is ordered that on Count 1 he serve a imprisonment of one year and three months; on Count 2 imprisonment for two years and six months; on Count 3 imprisonment for nine months. It is directed that four months of the sentence imposed on Count 1 and two months of that imposed on Count 3 be served cumulatively upon each other and the sentence imposed on Count 2, making for a total effective sentence of three years in respect of which a non‑parole period of 21 months is fixed. It is declared in his case that the period of 570 days is to be reckoned as having been served under the sentence and it is directed that this declaration and its details be entered in the records of the court.
35 There are some other orders which were made in the court below. There were some forfeiture and confiscation orders. It is simply necessary to confirm those other orders. Is there anything else that needs to be done?
MR HOLDENSON:
36 In respect to the matter of Taric they ought be confirmed.
VINCENT JA:
37 Yes.
MR GYORFFY:
38 They should be confirmed, Your Honour, yes.
VINCENT JA:
39 The forfeiture and other orders made by the judge in the court below are confirmed.
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