R v Whittle
[2001] VSCA 120
•25 July 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 245 of 2000
| THE QUEEN |
| v. |
| SANDRA CAROLINE WHITTLE |
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JUDGES: | BROOKING, ORMISTON and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 July 2001 | |
DATE OF JUDGMENT: | 25 July 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 120 | |
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CRIMINAL LAW - Sentence - Trafficking in drug of dependence (heroin) - Distribution business - Five and a half years with non-parole of four not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D.McArdle,Q.C. | Solicitor for Public Prosecutions |
| For the Applicant | Mr J. O'Sullivan (pro bono) |
BROOKING, J.A.:
Phillips, J.A. will deliver the first judgment.
PHILLIPS, J.A.:
This is an application for leave to appeal against sentence, leave having been refused by a single judge of appeal on 10 November 2000. The application relates to sentence imposed in the County Court on 24 August 2000 after the applicant pleaded guilty to one count of trafficking in a drug of dependence (heroin) between 1 July 1999 and 19 October 1999. Her co-offender was her son Mikeal Glen Whittle, who was charged both with trafficking in heroin and with possessing a drug of dependence, cannabis. For trafficking in a drug of dependence, the maximum sentence, so far as relevant under s.71 of the Drugs, Poisons and Controlled Substances Act 1981, is 15 years' imprisonment or a fine of $100,000 or both. For her offending, the applicant was sentenced to five-and-a-half years' imprisonment, and a non-parole period was fixed of four years. There was pre-sentence detention of 17 days. The applicant seeks leave to appeal on the one ground that the sentence imposed was manifestly excessive.
The applicant was born on 25 January 1944 and so was 55 years old at the time of the offending. She admitted nine previous convictions and one finding of guilt from nine court appearances. Most of these were offences of dishonesty and most brought fines rather than prison sentences. The only two matters in the last decade were a conviction for theft in January 1996 for which the applicant was sentenced to be imprisoned for one month although that sentence was wholly suspended for 12 months; and the second, on 23 June 1999, a charge of possession of a drug of dependence, heroin. That charge was found proven but the matter was adjourned for a year on the applicant's undertaking to be of good behaviour in the meantime. The applicant's son Mikeal was also before the Magistrates' Court on 23 June 1999, charged with trafficking in heroin: yet it was less than nine days later that the period of the present offending began. As the judge remarked in the County Court when sentencing the applicant and her son:
"Each of you failed to heed the warning or opportunity which you were given in June 1999 and each of you has now admitted that you trafficked in heroin between 1 July and 19 October 1999, that is over a period of some three and a half months and the operation only ceased by reason of the fact that the police executed a warrant at 19 Thornbill Drive, Werribee, on 19 October 1999."
The arrest came about after the police installed a surveillance camera to monitor the front door of the premises I have just mentioned on 1 October. It appears that between 1 October and 18 October, after eliminating family members and others apparently not concerned in the offending, some 1,255 people attended at the front door of the premises where, as the sentencing judge said, the applicant "ran a very successful business selling the evil drug heroin ... ". If 1,255 people were each sold one cap for $25 the gross selling price exceeded $31,000 over an 18-day period. As the judge remarked, the applicant was "the principal in and the organiser of a successful heroin distribution business, and as the main principal of the business was also the main recipient of the income which flowed from the operation".
The picture painted by some of the witnesses is almost bizarre. The premises were, I think, ordinary residential premises and we are told they were the premises where the applicant was living, but, as the police found when they executed the search warrant, the laundry was set up as what the prosecutor called a "shooting gallery" for use by the customers. One witness said this in her deposition:
"The Whittles in Thornbill Drive were popular with users because you could use it there. They had the laundry set up for it and they supplied the "fits" or "freshies". The house is like open to the users and it's much easier to go there than to travel to Footscray It's cheaper to buy from Footscray, it's only $20. Nan [that is, the applicant] charges $25 because she knew it was too much of a hassle for users to go to Footscray."
Sometimes, it seems, customers on the premises had to wait for the heroin to be obtained, but the same witness continued:
"If we were told to wait half an hour then by the time they got heroin, there would easily be about 20 people wanting to buy it. I remember lots of times when I had to line up to get into the laundry to use."
The applicant claimed, through counsel on the plea, that she hated drugs, but that claim was rejected by the sentencing judge. His Honour said:
"I am also satisfied that on occasions your nine year old grand-daughter, nine at the relevant time, collected money from some addicts at the door, obtained a cap of heroin and then supplied the addict with the cap."
The applicant is not herself a user of heroin. The judge remarked that the depositions show -
"very clearly that you were peddling heroin in gram lots to a steady stream of addicts who made their way to your front door. You calculatedly and deliberately engaged in trafficking for your own personal gain."
In the operation, the son acted as courier and sometimes acted in place of his mother if she was not available. It was generally the applicant, however, who cut the heroin and placed it into foils ready for sale.
In the circumstances I find the notion of this appeal quite bold. It may be that the trafficking was of low level, as counsel argued, but if so it was only in the sense that it involved selling to ultimate users in small quantities, presumably for own use. None the less the operation itself was considerable and persistent and, after the opportunity afforded by the undertaking to be of good behaviour, it called for stern punishment, if only by way of deterrence, both general and specific. The applicant now seeks leave to appeal, as I have said, on the sole ground that the sentence imposed, of five-and-a-half years' imprisonment, was manifestly excessive. Plainly it was not.
The applicant should understand that on this appeal we are entitled to interfere only if we find error below. It is not a question of what sentence we would have imposed had we been sentencing at first instance. We can interfere only if we find error in the sentence already imposed and, where the alleged error is manifest excess, that means that the applicant must establish that the sentence imposed was outside the range of sentences reasonably open to the sentencing judge in the proper exercise of the sentencing discretion. Given the size and regularity and persistence
of this operation, I have no doubt but that five-and-a-half years' imprisonment was well within range.
On this application, counsel relied in particular, as mitigating factors, on the applicant's plea of guilty at an early stage in the proceedings and suggested that the judge might have undervalued the plea because he saw the prosecution case as a strong one. Counsel relied, too, upon the fact that the applicant was 56 years old at the time of sentencing, so that she will be 62 at the conclusion of the sentence. He referred to the applicant's having had a disadvantaged upbringing and that she indicated remorse. The judge was prepared to accept that the pleas of guilty entered by both mother and son did indicate remorse, but, save for the fact that the son was no longer using heroin, he said that he was "unable to see any further evidence of genuine remorse on the part of either" of them. Although applicant's counsel put some argument to us that there was error in this, I found the argument unpersuasive.
In my opinion, one may have regard to all of the mitigating factors relied upon by counsel on the plea before the sentencing judge without in any way impinging upon the conclusion which seems to me to be plain. The sentence imposed was not on this occasion outside the range of sentences properly open: it was not manifestly excessive either as to the head term or the non-parole period. The application should in my opinion be dismissed.
BROOKING, J.A.:
I agree.
ORMISTON, J.A.:
I also agree.
BROOKING, J.A.:
The application is dismissed.
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