R v Togay
[1998] VSCA 80
•15 October 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 104 of 1998
THE QUEEN
v
YAVUS TOGAY
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| JUDGES: | WINNEKE, A.C.J., BROOKING and BATT, JJ.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 October 1998 |
| DATE OF JUDGMENT: | 15 October 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSCA 80 |
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Criminal Law - Sentencing - Drug trafficking - Heroin - Mid-range dealer over 10 months - Guilty plea - 10 years’ imprisonment with eight year non-parole period disproportionate and manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. C.J. Ryan | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. O.P. Holdenson | Melasecca Zayler |
WINNEKE, A.C.J. (delivering the judgment of the Court):
On 8 April 1998 the applicant, who was born on 11 July 1960, pleaded guilty on arraignment in the County Court at Geelong to one count of trafficking in a drug of dependence, namely heroin, between 1 September 1996 and 4 July 1997, contrary to s.71(1)(b) of the Drugs Poisons and Controlled Substances Act 1981. The offence carried a maximum penalty of 15 years' imprisonment or a fine of $100,000 or both. The applicant admitted 11 prior convictions from four previous court appearances. They included three convictions sustained for trafficking in a drug of dependence in the Magistrates' Court at Melbourne on 10 September 1992, for each of which the applicant was fined $250, and convictions sustained in the Supreme Court of Western Australia at Perth on 21 May 1985 for robbery in company and armed robbery, for which he was sentenced to be imprisoned for 3 years and 4 years and 6 months respectively with a minimum term of 3 years and 3 months before being eligible for parole. The armed robbery, the judge was told, was upon a totalisator agency.
Three co-offenders pleaded guilty on the same date, 8 April 1998, to one count of the same offence, though in respect of portions only of the period in respect of which the applicant pleaded guilty, but, since the ground that the applicant's sentence was manifestly disparate from those of his co-offenders is no longer relied on as an independent ground, it is unnecessary to refer directly to the roles of the co-offenders, their personal circumstances or the sentences passed upon them.
His Honour heard evidence from the informant as to the nature and history of the offences and then heard a plea in mitigation of penalty on behalf of each offender, commencing with the applicant. Joseph Lamberti, the foundation executive director of Odyssey House and an experienced rehabilitation consultant, gave evidence for the applicant to the effect that he had a compulsive gambling addiction, which leads to severe anti-social behaviour, such as the commission of crimes to obtain money, drug trafficking being amongst the six crimes most frequently engaged in by gambling addicts. The applicant gave evidence on his own behalf, particularly about his work with intellectually disabled prisoners, helping them with everyday life skills and in the management of their anger, which he found he could do well. His Honour also received a report by Dr Kenneth Byrne, a psychologist, relating to the applicant's psychological state (based, however, upon a consultation held before the applicant's arrest for the present offence) and a letter from an officer of the Department of Human Services as to the applicant's employment as a unit stabiliser in the Marlborough Unit, Port Phillip Prison, which houses intellectually disabled prisoners. The officer stated that the applicant "was doing a wonderful job". In the plea it was stressed that the applicant had pleaded guilty at the earliest possible opportunity, the committal mention, when, it was said, the prosecution did not have a confession since the applicant had answered "no comment" when interviewed by police.
The Crown applied for a pecuniary penalty order, but that application was adjourned and has not yet been dealt with.
On 23 April 1998 his Honour sentenced the applicant to be imprisoned for a term of 10 years, fixed a non-parole period of 8 years and declared that a period of 177 days was to be reckoned as a period of imprisonment already served under the sentence.
By notice filed 6 May 1998 the applicant has applied for leave to appeal against sentence on four grounds, of which the following only were argued:
"3. The Learned Sentencing Judge erred by failing to accord any or sufficient
weight to the Applicant's rehabilitation.3(bis)The sentence imposed was manifestly excessive."
The facts of the offence are set out in detail in his Honour's sentencing remarks, with citation of specific instances. We shall not take time to repeat all the facts that his Honour found but shall content ourselves with a compendious summary. Over the period of 10 months which was the subject of the count, the applicant supplied heroin, some at least of which he procured from Sydney, to four heroin users whom he recruited in succession to traffic it (except for the amounts they were allowed to use personally in return for their trafficking services) to drug consumers in the Geelong area or (in the case of at least one of the four users) to secondary sub-vendors to be trafficked by them to drug consumers in that area. The applicant has never been a user of heroin. His motive was simply that of financial gain. Throughout the period, except when he was overseas, the applicant travelled from Melbourne to Geelong almost every day to deliver heroin to the relevant middle person in Geelong and to collect in cash the proceeds of the sales which the latter had effected. Sometimes, it seems, the proceeds, rather than being handed over in cash, were paid by the relevant seller into bank accounts of or controlled by the applicant. The meeting places were arranged by the applicant with the middle persons by telephone from Melbourne. The applicant constantly changed his pattern of movement, vehicles and locations. The applicant paid for a flat in Newcomb to be occupied by a middleman and to be used in connection with the trafficking. Video surveillance of the flat revealed heavy foot traffic to it, and intercepts of the telephones of some of the middle persons showed them to be receiving up to 50 drug-related telephone calls a day. It appears that there were sales of about 20 caps per day in January 1997, rising perhaps to 70 caps a day. The original sale price was $50 a cap, but this was later reduced to $35. The total quantity trafficked by the applicant over the period was calculated, rather approximately, as 600 grams of pure heroin, with proceeds of about $350,000.
His Honour accepted the informant's assessment that the applicant was a mid-range drug dealer in the scheme of drug dealing. The applicant's operation was clearly a business one.
As regards factors personal to the applicant, it is sufficient to say that, besides accepting evidence which we have already mentioned, his Honour noted the applicant's strong attachment to his family and his serious personality limitations, particularly his difficulty in controlling his temper.
His Honour stated, correctly in our view, that in sentencing for this offence a major purpose was general deterrence. He acknowledged, too, the importance of rehabilitation and that he had to have regard to the maximum penalty "prescribed at the time by statute".
In substance, Mr Holdenson, for the applicant, advanced four propositions under the two grounds argued. He submitted that, having regard to the magnitude of the sentence and especially the non-parole period, his Honour had not given sufficient weight to the applicant's plea of guilty or, secondly, to his prospects of rehabilitation evidenced by his work with handicapped prisoners. He thirdly submitted, as we understood him, that, notwithstanding the enactment with effect from 1 September 1997 of s.5(2AA)(b) of the Sentencing Act 1991, R. v. Paramboukis [1998] 2 V.R. 194 showed that his Honour had, in sentencing the applicant to imprisonment for 10 years, imposed a penalty beyond that "prescribed" as a matter of practice. Finally, he contended that in the light of the first two submissions and the other matters relied on in the plea, the sentence imposed was manifestly excessive, being out of proportion to the applicant's misconduct and outside the range of sentences appropriate to an offence of this nature.
We do not find it necessary to deal with the third submission. As to the first two submissions, his Honour clearly took the factors referred to into account. Whether he gave them sufficient weight is best considered in connection with the final submission, to which we now turn.
Because of its pernicious effects, trafficking in heroin is a very serious offence, warranting condign punishment to act as a general deterrent. By reason of the drug in question, the quantity trafficked, the period covered, the business nature of the applicant's operation, and the amount of the proceeds received, this was a serious instance indeed of the offence. We accept Mr Ryan's submission that when the applicant's plea of guilty was entered the Crown case against him was overwhelming by reason of the availability of evidence from the two main co- offenders, from physical and video surveillance, from telephone intercepts and listening devices, and from forensic examinations, and that accordingly his Honour was entitled to give the plea limited weight. However, his plea of guilty did save the community a lengthy trial. We also accept Mr Ryan's submission that, in view of the nature and extent of the applicant's offending, the sentencing purpose of rehabilitation was overwhelmed by that of deterrence, particularly general deterrence.
None the less, after anxious consideration of all the material before his Honour and of the submissions which have been made to us in this Court, we have concluded that Mr Holdenson's final submission ought to be upheld. First, although very serious, in our view this was, as his Honour himself said, not the worst type of offending against the relevant prohibition. His Honour did, it is true, say that he thought it was "not far removed" from it, but we are not sure what his Honour meant by that. Secondly, whilst we acknowledge the seriousness of the prior convictions sustained by the applicant in Western Australia, it is clear from the sentences imposed for them that the three prior drug trafficking convictions were minor. Thirdly, since his Honour allowed the applicant credit for pleading guilty, his Honour must have treated the offence as worthy of about 11 years' imprisonment but for the plea. When those three considerations are borne in mind it seems to us that a head sentence of 10 years' imprisonment is disproportionate to the criminality of the applicant's conduct and thus outside the range of sentences legitimately open to his Honour. The sentence was accordingly, in our view, manifestly excessive and the application must succeed.
This Court must therefore re-sentence the applicant. Having regard to everything that we have said, we would quash the sentence imposed below and substitute for it an order that the applicant be imprisoned for a term of 8 years and we would fix a non-parole period of 6 years and declare that a period of 352 days is to be reckoned as a period of imprisonment already served.
The formal order of the Court will therefore be that the application for leave to appeal against sentence is allowed. The appeal is treated as having been instituted and heard instanter; it too will be allowed.
The sentence of the learned sentencing judge is quashed and in lieu of that sentence we order as follows: that the applicant be sentenced to a period of imprisonment for a term of 8 years. We fix a period of 6 years as the period to be served before he becomes eligible for parole.
Pursuant to s.18 of the Sentencing Act we declare that the period of 352 days is to be reckoned as time already served pursuant to the sentence imposed and we direct that the declaration and its details be noted in the records of the Court.
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