R v Zaydan

[2004] VSCA 245

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN

No.104  of 2003

v.

YAHYA ZAYDAN

THE QUEEN

No.105  of 2003

v.

JOHN DAVID BAVA

THE QUEEN

No.94 of 2003

v.

ALEXANDER YANG SU

THE QUEEN

No.98 of 2003

v.

VICTOR BELIKOV

THE QUEEN

No. 340 of 2003

v.

ALEXANDER YANG SU

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JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	26 and 27 July 2004
DATE OF ORDER: (BELIKOV) DATE OF JUDGMENT:	21 September 2004 21 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 245	First Revision:  22 February 2005

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CRIMINAL LAW – Sentencing – Various drug offences by four offenders – Kidnapping and perverting course of justice by one of them – Whether sentences manifestly excessive or crushing or infringed totality or parity – Whether general deterrence to be moderated for post-traumatic stress disorder – Whether double punishment where three years’ cumulation between two factually separate successive heroin importations – Whether error when disparity between two offenders in individual sentences for one offence virtually eliminated in total effective sentence – Whether factual error material – Whether one year sufficient deduction from 8-year sentence for plea of guilty by offender without prior convictions – In the kidnapping and perverting justice offences rehabilitation held subordinate to general deterrence and denunciation – Reduction in that offender’s drug sentence held not to necessitate re-sentencing for kidnapping and perverting justice – But new single non-parole period required.

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APPEARANCES:	Counsel	Solicitors
For the Crown (Cth)	Mr. J.R. Champion SC With Ms M. Tittensor	Commonwealth Director of Public Prosecutions
For the Crown (State)	Mr. B. Kayser	Ms K. Robertson, Solictior for Public Prosecutions
For the Applicant Su	Mr. O.P. Holdenson QC	Lewenberg & Lewenberg
For the Applicant Bava	Mr. O.P. Holdenson QC	Ellinghaus & Lindner
For the Applicant Zaydan	Mr. P.F. Tehan QC	Issac Brott & Co.
For the Applicant Belikov	Mr. G.P. Mulally	McNamaras

BATT, J.A.:

Introduction

1. The court heard together over two full days applications by Yahya Zaydan, John David Bava, Alexander Yang Su and Victor Belikov for leave to appeal against the respective sentences imposed on them by a judge in the County Court at Melbourne on 7 April 2003 for drug offences and immediately after the conclusion of argument in those applications the court heard an application by Su for leave to appeal against the sentence imposed on him by a judge of the Trial Division on 17 November 2003 for kidnapping and attempting to pervert the course of justice.  That course was taken because the several applications had one or more common features with one or more of the other applications, such as some co-offending by applicants or some common, though non-applicant, co-offenders.  The full details of the related offending and the proceedings in respect thereof make for complexity, if not confusion, and so it seems better to give a summary statement at the expense of some detail. 

1. Between 21 March 2000 and 18 March 2001 Australian Federal Police (“AFP”) officers arrested eight persons as a result of their investigation into eight importations into Australia of prohibited goods, being heroin and ephedrine, from China between 16 July 1999 and 17 March 2000.  Those arrested were the applicants, Zaydan, Bava, Su and Belikov, as well as one Timothy Ma, his sister Elena Ma[1], who was the wife of Su, Victor Su, who was the brother of the applicant Su, and one Shaun Goerlitz.  The applications by Zaydan and Bava relate to the second and third importations of heroin (known respectively as the Yaja and Gaga parcels) and trafficking in the fourth and fifth importations, into Broadbeach, Queensland, of ephedrine.  The application of Zaydan also relates to trafficking in the seventh and eighth importations of ephedrine, into Carlton and South Yarra in Victoria.  The drug-related application of Su concerns the third importation of heroin (the Gaga parcel) and trafficking in the fourth, fifth, seventh and eighth importations of ephedrine, while the application of Belikov relates to trafficking in the sixth importation of ephedrine.

   [1]Ultimately the Crown entered a nolle prosequi against her.

The Essential Facts of the Drug Offending

1. Although the appeal book contains much more material, it is largely sufficient to summarise his Honour’s already abbreviated statement of the facts.[2]  I start with some facts relevant to the applications generally.  Su left Australia for China in March 1998 and returned on 22 June 1999 and left again for China on 7 September 1999[3], returning in March 2000.  Zaydan left Australia for China on 6 March 1999, returning on 22 June, the same day as Su returned.  Bava left for China on 13 May 1999 and returned a week later.  In his recorded police interview Bava admitted that he had met Su and Zaydan in China.  Belikov left Australia for China on 3 July 1999 and returned nine days later.  Timothy Ma left Australia for China on 23 May 1999 and returned on 27 July 1999.  He left Australia again for China on 21 August, returning on 5 October 1999.  The drugs the subject of the offences with which his Honour dealt were despatched from China.  Heroin was despatched in July 1999 and ephedrine in August 1999 and March 2000.

   [2]Some additions to his Honour’s narrative are put in brackets.

   [3]Not 2 September 1999, as stated by his Honour.

1. The heroin in respect of which Zaydan and Bava were convicted was sent in two parcels, one purporting to be addressed to Mr. Lee Yaja and one to Mr. Leigh Gaga, which were despatched to addresses in Melbourne.  Each contained hollowed out books.  In the hollows heroin was secreted.  The Yaja parcel, which arrived in Melbourne on 16 or 17 July 1999, contained 284 grams of powder, of which 208.9 grams were pure heroin, and ephedrine weighing 1.3 grams.  His Honour said that unchallenged evidence at the trial was that, if sold in one ounce lots, the heroin had a value of between $60,000 and $100,000.  If it were sold at street level it had a value of between $312,000 and $521,000.  The Gaga parcel, which arrived in Melbourne on 21 July 1999, contained 700.8 grams of powder compressed into two blocks, of which 449.2 grams were pure heroin.  If sold in one ounce lots, its value, according to the unchallenged evidence at trial, was between $150,000 and $250,000 and, if sold at street level, its value was, his Honour stated, in the order of $672,000.[4]  His Honour noted that counsel for Bava had tendered a statement by a member of the AFP which suggested that the values recited above were overstated by up to one-third, but said that the weight of that evidence was considerably diminished by the failure to cross-examine the evidence of value that was given but in any event, overall, the difference was of no great significance. 

   [4]The evidence, however, suggested an upper limit of $1.1m.

1. Ma posted the Yaja parcel from China.  He later pleaded guilty to trafficking in the heroin in it, as discussed below.  The Gaga parcel was posted (by a person unknown) through the agency of Su, as also discussed below.  Neither parcel was in fact delivered.  Both were seized by police after delivery was attempted.[5]

   [5]His Honour’s statement that one was seized before seems erroneous, but the error is immaterial.

1. It was abundantly clear from the observations of surveillance police and numerous intercepted telephone conversations that both parcels were expected by Zaydan and Bava, and clear from the jury verdict that both knew that each contained heroin.  (Zaydan was sighted at or in the vicinity of the addresses to which the parcels were later posted.)  On the basis of their attempts to trace the parcels after their arrival in Australia and the tone of their conversations, his Honour found that, although the extent of Zaydan’s and Bava’s stakes could not be precisely identified, it was clear that their purpose was to re-sell the heroin at a profit.  He was satisfied that both had arranged to import heroin for that purpose and that the two intercepted parcels were despatched pursuant to that arrangement.  Although it was not possible to define their precise roles, his Honour was satisfied that Bava sought to obtain heroin and invested substantially in its purchase.  (He was ready to traffic it.)  He was not persuaded by the argument that Zaydan was “a mere foot soldier”.  It was plain from his conversations with Ma, Su and Bava that Zaydan was from the outset playing a significant part, both in fund-raising and management.  Referring to various intercepted conversations, his Honour said it was clear that Zaydan and Bava were “both acting in the role of merchant and not merely in some subordinate role”.  Further, he did not regard the involvement of each of them in the importation as sufficiently dissimilar to warrant distinction in terms of criminality. 

1. Turning to Su in respect to heroin, his Honour stated that the detailed and unchallenged Crown summary had it that it was he who procured the content of the Gaga parcel and its dispatch from China.  (He knew the number of its consignment note and was seen in the vicinity of the address to which it was later posted.)  He had an interest in the proceeds of its sale in Australia.  He took active steps with Zaydan and Bava to trace and secure the parcel after its arrival.  Intercepted telephone conversations showed his role as the financier of the venture and his part in marketing.  His Honour was satisfied that Su’s role, too, was that of a merchant or principal, not that of some subsidiary officer.

1. Turning to the question of ephedrine his Honour pointed out that Bava’s role was lesser than those of Zaydan and Su.  Basing himself on the detailed statement of facts summarising the Crown case on ephedrine, which was not challenged, his Honour said that the Crown case was that between August 1999 and March 2000 Su, Zaydan and Goerlitz and others were engaged in a venture of trafficking ephedrine in Melbourne.  Ephedrine was a component in the manufacture of methylamphetamine.  At the time the price of ephedrine on the black market was between $10,000 and $12,000 a kilogram.  The venture involved the importation of ephedrine in parcels which were dispatched to private mail boxes, two in Queensland, one in Carlton and one in South Yarra.  At least four parcels were sent.  One (that addressed to Carlton) was seized by the AFP and the rest were collected and lost to sight.  The documents associated with the two parcels dispatched to Queensland were, however, traced and they recorded the weights of those parcels as being .8 of a kilogram and 1 kilogram.  The Carlton parcel contained 1,974 grams of ephedrine powder of which 1.596 kilograms was pure.  What became of the parcel addressed to South Yarra was not known, but it seems highly likely that the 494.6 grams of ephedrine (yielding 404 grams pure) found in Zaydan’s home at the time of his arrest a few days after the parcel’s arrival came from that parcel.  The intercepted telephone conversations made it clear that Su was responsible for negotiating the supply of ephedrine and had in large part the responsibility of obtaining the necessary finance to pay for it.  Zaydan’s role was to market the drug after its arrival.  He was not above cutting it so as to increase his own profit.  It was clear that the venture was neither short term nor small scale.  Bava’s role, however, was limited to seeking to obtain purchasers for the imported ephedrine between 28 August and 1 September 1999, a period of 4 days.  The attempt was made at the request of Zaydan.  Bava took ephedrine and showed it to potential customers but they rejected it because of its poor quality. 

1. Belikov’s trafficking in ephedrine was unconnected with that of Su, Zaydan and Bava.  His involvement was with Ma and one Frank Barbaro.  The trafficking was alleged to have taken place between July and October of 1999.  In July 1999 Belikov was in China at the same time as Ma and Barbaro.  Basing himself upon the unchallenged summary of the Crown case, from which I have taken some additional facts, his Honour stated that in August 1999 Belikov, Ma and Barbaro and others not known to the police agreed to import a sample of ephedrine to test it for quality as an ingredient in the manufacture of methylamphetamine.  The intercepted telephone conversations indicated that the plan was to import large quantities of ephedrine for the manufacture of amphetamines by what were described as “bikie gangs”, who would receive one third of the proceeds for their pains.  His Honour continued, “… The matter never got to that point because you [that is, Belikov] were arrested shortly after the parcel containing the sample arrived.”  The parcel had been sent from Beijing, China, by Ma (who had left Sydney for China on 21 August 1999) to an address in Dandenong that Belikov had provided by telephone to Ma in China.  On its arrival in Australia on 14 September 1999 the parcel was intercepted by Customs, seized by the police and tested.  It was found to contain 195.6 grams of powder of which 142 grams were pure ephedrine.  Thereafter, on 16 September,  a controlled delivery was made to the Dandenong address provided by Belikov, where it was received by Belikov’s uncle.  Belikov collected the parcel at that address and passed it on to Barbaro.  Subsequently Barbaro informed him that the test results were good.  The Crown accepted that Belikov’s role was a lesser one than that of either Ma or Barbaro, but it was, the Crown said, nonetheless significant.  It included playing a part in raising the necessary finance.  The AFP arrested Belikov on 23 November 2000. 

Ma’s Sentence

1. In November 1999 Timothy Ma pleaded guilty before Judge Barnett in the County Court to three counts of trafficking in a drug of dependence.  The maximum penalty applicable to these counts of trafficking, as also to the other counts of trafficking mentioned in these reasons, was imprisonment for 15 years or a penalty of $100,000 or both.  Counts 1 and 2 related to heroin, count 3 to ephedrine (in excess of 20 grams).[6]  Count 1 related to a parcel sent by post from China to an address in Berwick containing 227 grams (the first importation).  Count 2 concerned the Yaja parcel, the subject of count 2 in the indictment against Zaydan and Bava.  In counts 1 and 2 the dates of offending alleged were between 23 May and 27 July 1999.  The trafficking in ephedrine the subject of count 3 was based on the same facts as were alleged in the case of Belikov.  The dates of offending alleged were between 3 July and 18 October 1999.  Judge Barnett was satisfied that Ma knew that the drug of dependence in the parcels the subjects of counts 1 and 2 was heroin.  Judge Barnett sentenced Ma to imprisonment for 5 years on each of counts 1 and 2 and 2 years on count 3.  He made 1 year of the sentence on count 2 and 6 months of the sentence on count 3 cumulative upon each other and upon the sentence imposed on count 1, making a total effective sentence of 6 ½ years’ imprisonment.  He fixed a non-parole period of 4 ½ years.  In the course of his sentencing remarks Judge Barnett said that he gave limited weight to the fact that Ma had made a statement indicating that he was prepared to assist the prosecution in implicating others in the importation of ephedrine, although naturally enough the prosecution would not call him as they did not accept that his purpose was to import ephedrine.

   [6]This qualification applies to all ephedrine trafficking counts or offences mentioned in these reasons, but I do not repeat it.

Other Offenders’ Sentences

1. On 7 September 2001 Judge Anderson sentenced Victor Su, who pleaded guilty to one count of trafficking at Melbourne in a trafficable quantity of a drug of dependence, namely, ephedrine, between 4 August 1999 and 15 December 1999.  The offence related to the fourth and fifth importations of ephedrine into Broadbeach, Queensland.  His co-offenders were Zaydan, Bava, Su and Goerlitz.  The precise quantity of ephedrine in each parcel is unknown.  Victor Su was sentenced to 18 months’ imprisonment with a non-parole period of six months. 

1. On 12 March 2004 the judge from whom the present drug-related applications for leave to appeal are brought sentenced Goerlitz to imprisonment until the rising of the Court on one count of trafficking in a drug of dependence, namely, ephedrine, having regard to the length of time he had been held in detention on the ephedrine matter and unrelated charges which by then could not be redeemed.  His Honour stated that, but for that detention, he would have sentenced Goerlitz to imprisonment for 2 years with a non-parole period of 14 months.  Goerlitz’s trafficking was alleged to relate to importations 4, 5, 7 and 8.   (He had been acquitted of being knowingly concerned in the importation of a traffickable quantity of heroin and, in the alternative, attempting to traffick in a commercial quantity of heroin.)

Zaydan and Bava:  Convictions and Sentences

1. On 21 March 2003 Zaydan and Bava were found guilty by a County Court jury of two counts of being, contrary to s.233B(1)(b) of the Customs Act 1901 (Cth), knowingly concerned in the importation of not less than a trafficable quantity of heroin between 6 May and 5 August 1999 at Melbourne. The counts in question were counts 2 and 3 on the relevant presentment/indictment and related respectively to the Yaja parcel and the Gaga parcel. Their co-accused on count 3, Goerlitz, was, as already mentioned, acquitted on that count and on an alternative charge. Zaydan admitted 16 prior convictions from six court appearances. They were principally for possession and use of drugs, including heroin and amphetamine. Bava admitted four prior convictions from three court appearances. They included aggravated armed robbery, for which he was sentenced to 3½ years’ imprisonment. The maximum penalty for the offence of being knowingly concerned in the importation of a prohibited import, being heroin, was, in the circumstances of this case, a fine of $500,000 or imprisonment for 25 years or both.

1. On 31 March 2003 Zaydan and Bava each pleaded guilty to one count of trafficking in a drug of dependence, namely, ephedrine, contrary to s.71(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 in the form in force before 1 January 2002. The counts to which they pleaded guilty were different. In the case of Zaydan the offending was alleged to have occurred between about 7 August 1999 and about 21 March 2000 (being trafficking in importations 4, 5, 7 and 8), whilst in the case of Bava the offending was alleged to have occurred between about 27 August 1999 and 1 September 1999. The maximum penalty for trafficking has been stated earlier. Goerlitz was named as a co-offender with Zaydan and pleaded not guilty. Much later he pleaded guilty and was sentenced on 12 March 2004, as already stated.

1. The judge sentenced Zaydan to be imprisoned for the following terms:  on count 2 (the Yaja parcel), 7 years, to commence on 7 April 2004; on count 3 (the Gaga parcel), for 8 years, to commence on 7 April 2006; and for trafficking in ephedrine for 3 years.  His Honour directed that 3 years of the sentence imposed on count 3 and 1 year of the sentence imposed for ephedrine trafficking be served cumulatively upon the sentence imposed on count 2, so that the total effective sentence was 11 years.  He directed that Zaydan was to serve a minimum period of 2 years of the sentence for trafficking and 8 years of the Commonwealth sentence before becoming eligible for parole. 

1. His Honour sentenced Bava to be imprisoned for the following terms, namely:  on count 2, for 7 years, to commence on 7 October 2003; on count 3, for 8 years, to commence on 7 October 2005; and for ephedrine trafficking for 1 year.  His Honour directed that 3 years of the sentence imposed on count 3 and 6 months of that imposed for trafficking be served cumulatively upon the sentence imposed on count 2, so that the total effective sentence was imprisonment for 10 years and 6 months.  He ordered that Zaydan serve a minimum term of 8 years of the Commonwealth sentence before becoming eligible for parole. 

1. In his sentencing remarks relating specifically to Zaydan, his Honour, after referring to his age (he was born on 12 October 1959) and his prior convictions, said that Zaydan was by birth Lebanese and that the civil war in that country, which erupted when he was 12, had had a disruptive effect upon Zaydan’s family and that he himself had been taken prisoner at the age of 16 and brutally tortured and had witnessed the torture of others.  Following his release, he had come to Australia with his family but the experience of torture had remained with him.  As a result he had mental problems.  He had a history of drug abuse.  His work history was very poor.  His Honour set out a passage from Zaydan’s treating psychiatrist, Dr. Illesinghe, in which the writer stated, amongst other things, that Zaydan’s life appeared to have been destroyed following traumatic war experiences in his teenage years and that he was suffering severe and unremitting post traumatic symptoms in the form of auditory and visual hallucinations.  He had been prescribed anti-psychotic medication by, it would seem, Dr. Illesinghe recently.  His Honour noted that Mr. Bromhead, a counsellor advocate of the Victorian Foundation for Survivors of Torture Inc., had expressed concern for Zaydan’s mental state if he re-experienced a period of detention.  In 1993 Zaydan had been admitted to Larundel Psychiatric Hospital as an involuntary patient for two days, but his Honour had not been told why.  His Honour noted the death of the applicant’s first wife and the failure of his re-marriage.  He noted, too, another matter going in mitigation of penalty.

1. His Honour had no doubt, notwithstanding Zaydan’s psychiatric problems, that he was well aware of the criminality of his actions and what would be the likely consequences if caught.  It could not be said that he was not a suitable candidate for general deterrence or indeed specific deterrence.  His conduct warranted a substantial term of imprisonment.  As regards trafficking in ephedrine, his Honour had made allowance for the plea of guilty, which, if nothing else, certainly saved the community the cost of a lengthy trial. 

1. In his sentencing remarks relating specifically to Bava, his Honour, after referring to his age (he was born on 22 January 1959) and his prior convictions, said that the conviction for armed robbery in 1994 disclosed a lawless disposition.  Bava had, however, a good work history.  He had had a long and stable marriage, though his wife’s health was now seriously suspect.  His Honour had received two conflicting reports concerning Bava’s drug use, that of Mr. Simpson of the Windana Society and that of Mr. Cummins, forensic psychologist.  They differed as to alcohol dependency and the duration of Bava’s cocaine habit.  His Honour did not know which was accurate but the difference was not overall significant.  What was clear was that he went into the drug trade with his eyes open and knowing what to expect if he were caught[7].  As in the case of Zaydan, his Honour had given Bava credit for his plea of guilty in relation to the ephedrine matter. 

   [7]In an intercepted telephone call with Zaydan on 26 July 1999 (call 472 at pp. 7, 8 and 15) Bava spoke of being “lumbered with”, “doing” and “risking” 20 years (scil., in prison).

Zaydan’s Application

1. The grounds on which Zaydan has applied for leave to appeal against sentence, after amendment granted by the Court at the commencement of the hearing of his application, are that the sentencing judge failed to take into account or adequately into account the personal history and circumstances of the applicant (ground 1); that the individual sentences, the total effective sentence and the non-parole period are manifestly excessive (ground 2); and that the judge erred in failing properly to apply the principle of parity (ground 3) and the principle of totality (ground 4) and in failing properly to ameliorate the application of principles of punishment and general and specific deterrence (ground 5). 

Zaydan Grounds 1, 2, 4 and 5

1. These grounds were argued together.  It was submitted that the individual sentences were unusually high for an importation of heroin that was not a commercial quantity and for trafficking in ephedrine, and that the non-parole period (effectively 9 years) was unusually high.  It was then submitted that, largely for reasons of totality, the total sentence was manifestly excessive.  In that regard it was submitted that the order for cumulation of 3 years of the sentence on count 3 of the heroin indictment was very heavy having regard to the fact that both heroin counts, whilst separate, were part of the one criminal enterprise.  In oral argument, however, Mr Tehan said he did not press that it was a case of one transaction.  Cumulation in the order of that made by Judge Barnett in the case of Timothy Ma – 1 year – would, it was submitted, have been more appropriate.  Similarly it was submitted that there should have been a lower period of cumulation of the sentence for trafficking in ephedrine.  Reference was made to Kirby, J.’s statement in Postiglione v. The Queen[8] as to there being a dual aspect to the totality principle.  First, it requires a sentencer, having passed appropriately proportionate individual sentences, to review the aggregate sentence and consider whether it is “just and appropriate”, that is, not in excess of the overall culpability of the offender.  Secondly, it requires the sentencer to examine whether the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved and also whether its effect is to impose on the offender “a crushing sentence” not in keeping with his record and prospects.  I may say immediately that I cannot accept that it is a proposition of universal application that the aggregate sentence not be substantially above the normal leave of a sentence for the most serious of the individual sentences.  The validity of the proposition could be affected by the number of additional offences charged.  Thus, if one took a case of aggravated burglary, armed robbery, rape (2 counts) and associated lesser offences, it would not surprise one to find that the aggregate sentence was “substantially” above the “normal” level of a sentence for the most serious of those offences.  It is to be noted that the author from whose work it is taken[9] simply stated that, in the circumstance under consideration, a cumulative sentence “may” offend the totality principle.  Further, there is a real question as to what is meant by “normal”.  Is it the mean figure over a period of years for all instances of the offence or is a set of facts postulated as “normal” and the “usual” sentence for that adopted?  Are factors personal to the offender to be taken into account?  Counsel also referred to Kirby, J.’s statement in Postiglione[10] that adjustments for totality will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed.  In drawing together the argument on totality counsel relied on the personal and other circumstances referred to under grounds 1 and 2 and mentioned below, and in particular Zaydan’s prior convictions for drug offences as being consistent with past drug abuse; his significant mental problems (the subject of ground 5) and the fact that there was a real chance that he would have to spend imprisonment in protective custody.  In those circumstances, it was submitted, the total sentence of 11 years with a non-parole period of 9 was “crushing” in that it held out little hope and encouragement to rehabilitation and reform.  It was simply too high.

   [8](1997) 189 C.L.R. 295 at 340.

   [9]Ruby, Treatise on Sentencing, 4^th edn. (1994) pp. 44-45.

   [10]At 341.

1. In addition to the matters referred to under ground 5, the following particular matters were urged under grounds 1 and 2.  The applicant’s prior drug offences were treated by the judge as being “relatively minor”.  The applicant did have dishonesty prior convictions, which resulted in a suspended sentence in 1995 and probation over 20 years ago in 1983.  The applicant’s background was particularly tragic, his first wife having died in a motor car accident and he himself being estranged from his second wife and likely to lose contact with his children.  Counsel made a further point.

1. Ground 5 was based on Zaydan’s mental condition.  Besides the material from Dr. Illesinghe and Mr. Bromhead (a counsellor/advocate with The Victorian Foundation for Survivors of Torture Inc.) that was before his Honour, Mr. Tehan relied upon affidavits by Mr. Issac Brott, his instructing solicitor, and Mr. Cahill, a law clerk of Issac Brott & Co., both sworn 27 July 2004.  Mr. Brott’s affidavit contains no admissible material as to Zaydan’s mental condition and may be put aside.  Mr. Cahill’s affidavit contains hearsay evidence that Dr. Prasanna had referred Zaydan to Dr. Illesinghe; that Zaydan had been an in-patient at Larundel Psychiatric Hospital in 1993 for a period; that Dr. Illesinghe confirmed his opinion that Zaydan was suffering from a post-traumatic stress disorder and experiencing auditory and visual hallucinations; and that Zaydan had been under Dr. Illesinghe’s care from October 2002 to March 2003 and that Dr. Illesinghe had prescribed for him anti-psychotic medication.  All that was stated in, or to be inferred from, the material before his Honour.  Mr. Tehan also relied on Mr. Cahill’s affidavit in applying for an adjournment to ascertain the availability of records as to Zaydan’s admission to Larundel Hospital and to add to the medical material.  The application was refused, but without prejudice to its renewal during the hearing, supported by affidavit.  It was renewed at the commencement of the second day of hearing, after renewal had been foreshadowed at the overnight adjournment.  Mr. Tehan relied on the above affidavits, referred to certain instructions and stated that an authority from his client had been obtained.  After some debate and a brief adjournment the application was withdrawn. 

1. Reliance was then placed on the material that was before his Honour.  I have sufficiently summarised that earlier, and need only add that Dr. Illesinghe went on to state that Zaydan had not been able to establish social networks or engage in gainful employment and had been driven to substance abuse and that Mr. Bromhead stated that Zaydan had informed him that he was afflicted by nightmares.  Mr. Tehan’s submission was that, although his Honour referred to both reports, he gave them no weight and did not ameliorate or “sensibly moderate” the principles of just punishment and general and specific deterrence, as he should have done in accordance with the latter part of the third proposition and the fifth proposition in R. v. Tsiaras[11].  His Honour, it was argued, could not have given any weight to Zaydan’s mental illness at least at the time of trial because he received the same sentence as Bava on the heroin counts. 

   [11][1996] 1 V.R. 398 at 400.

1. It may be granted that his Honour did accept the statements of Dr. Illesinghe and Mr. Bromhead.  He was, nevertheless, in my opinion, fully entitled to find that Zaydan was well aware of the criminality of his actions and the likely consequences if he was caught.  That was because of the extensive part which the evidence showed Zaydan played in the secretive planning and execution of the offences and in endeavouring to trace the parcels with Australia Post.  Thus, he travelled to China shortly before the commission of the offences; he was party to a large number of telephone conversations over some months with co-offenders concerning arrangements surrounding the offending; and he sent to Ma in China addresses to which the heroin should be sent and engaged in discussions concerning the ultimate trafficking in the drugs.  In addition, he moved to trafficking in ephedrine for some six months, in which he played a significant part.  Accordingly, no error is disclosed by his Honour’s finding in the impugned passage.  So Zaydan’s moral culpability was not reduced nor, correspondingly, was the significance of deterrence and punishment. 

1. But a number of other comments should be made.  First, the passage which his Honour quoted from Dr. Illesinghe’s report speaks mainly in the present and present perfect tenses, though there is a reference to the symptoms having existed for 25 years or so.  I am by no means sure that his Honour is to be taken as having accepted the latter point, but, if he did, in my view it was an unduly favourable finding since Dr. Illesinghe could not speak, solely on the basis of the history given to him when he commenced treating Zaydan in December 2002, as to the date when Zaydan’s “psychological symptoms” commenced.  (I note that Dr. Mian’s letter of 10 February 2003 suggests that it was some time after 2000-2001 that Zaydan was diagnosed as suffering from post traumatic stress disorder).  It is for that reason, no doubt, that Mr. Tehan was anxious to find any notes of Dr. Prasanna or notes relating to Zaydan’s admission to Larundel Hospital in 1993, a time which well pre-dated the offending.  Significantly, neither the applicant nor any medical expert was called on the plea.  There was no evidence as to for what illness or disorder the anti-psychotic medication was prescribed or as to the effects, if any, of post-traumatic stress disorder in respect of the offending.  Secondly, it is difficult to say that his Honour erred when, as Mr. Champion pointed out, it was not put to him for Zaydan below that general or specific deterrence should be moderated.  Certainly there was no submission based on Tsiaras in counsel’s opening address on the plea.  His response in reply, after the omission had been pointed out by the prosecution, is very vague, particularly in response[12] to a direct question from the judge seeking agreement that Zaydan’s mental condition did not necessarily mean he was not a suitable candidate for general deterrence.  The highest the response rose, as I read it, was that the applicant might suffer “a peculiar hardship” from imprisonment, which is possibly a reference to the fifth proposition in Tsiaras.  Finally, in R. v. Yaldiz[13], post-traumatic stress disorder was held not to constitute a “serious psychiatric illness not amounting to insanity” within the principles stated in Tsiaras because the offender was well aware of the nature and quality of his offending and well knew that what he was doing was wrong.  Yaldiz[14] and cases there cited show that the second part of the third proposition, that is, the part relating to supervening illnesses and illnesses that play no part in the offending (which was not, as I read it, part of the ratio of the decision) has not been accepted as universally applicable in subsequent decisions of the Court of Appeal.

   [12]At T1284-1285.

   [13][1998] 2 V.R. 376, especially at 382-383 per Winneke, A.C.J., with whom Hampel, A.J.A. agreed.

   [14]At the pages cited and also at 380-381.  See also R. v. Lewis (unreported, Court of Appeal, 20 April 1998).

1. There remains the question of the fifth proposition in Tsiaras, relating to the effect of imprisonment upon the applicant in light of his mental condition.  There was no expert evidence about this.  Mr. Bromhead’s statement was, strictly, inadmissible.  But his Honour was aware of the applicant’s mental condition and, as I read his remarks, would have taken it into account as a background fact.  He did make some allowance for the fact that the applicant might have to serve his incarceration in protective custody.  In the overall picture, the point is a small one and I am not persuaded that specific error on his Honour’s part has been shown.  The point is to be borne in mind again when deciding whether the sentences were manifestly excessive. 

1. The question then is whether, having regard particularly to the contentions in grounds 1, 4 and 5 and the numerous subsidiary points made, any of the contentions in ground 2 (that is, that the various sentences were manifestly excessive) is made out.  Now, sentencing is par excellence a discretionary exercise.  There is no one correct sentence.  Rather, there is a range of sentences open to a judge in the exercise of a sound discretionary judgment.  Whether a sentence is outside that range and so manifestly excessive (or inadequate) is a conclusion not admitting of much amplification.  Here, I have come to the conclusion, in light of considerations I mention, that, although the sentences on the heroin counts are substantial, none of the sentences is outside the range that was available to his Honour.  Because the arguments challenging the sentences as manifestly excessive in essence allege that his Honour had overvalued the seriousness of the offending, undervalued mitigating factors, misunderstood relationships or roles and mis-ordered relativities, it may be useful to begin by referring to Mr. Champion’s opening submissions - which in fact bear on all the drug-related applications.  He made it clear, to me at least, that after a 27-day trial, the first day of which was spent in taking the judge closely through the telephone intercepts and like matters, his Honour became closely familiar with the details of the case and the roles, relativities and relationships of and between offenders.  Counsel pointed out (without objection)[15] that during the trial, even though Su and Ma were not on trial, his Honour had heard Su’s voice as well as evidence as to the role of Ma in the first importation of heroin, in respect of which Zaydan and Bava were in fact acquitted.  It was submitted, with considerable force, that his Honour was in a unique position as regards knowledge of the offending of all offenders and the ability to form a view of Ma’s sentence. 

   [15]The submissions now made had been made to the County Court judge on 6 February 2003 in support of a submission that he, not Judge Barnett, hear Su’s plea.  He so decided, but he ordered that  a transcript of the trial be supplied to Su’s counsel.

1. Now, it must not be overlooked that these offences were serious.  They, and particularly the heroin counts, carried very substantial maximum penalties.  So far as the individual sentences are concerned, the following considerations show them to be within range.  There were two separate importations of heroin, and the trafficking in ephedrine extended over a lengthy period and concerned the product of four importations.  The Gaga parcel was heavier, worth about $1 million at street value, and was the second of the two importations proved against Zaydan and Bava.  There were two illicit substances.  The trafficking in ephedrine occurred after the failure of the two importations of heroin to come to fruition.  That shows that the applicant was prepared to be involved in the business of importing and trafficking in drugs generally with other persons.  There could be no discount for pleas of guilty or remorse in relation to the heroin counts after the lengthy contested trial.  His Honour’s unchallenged findings show that the applicant played a significant part in the heroin offending and in the ephedrine trafficking from four importations to four different locations.  There is no need to dilate upon the pernicious effects of the drugs in which the applicant saw fit to deal.  In respect of all three offences, His Honour was bound to give paramount effect to the sentencing purpose of general deterrence.  As the street value of the heroin in question here showed, the applicant played for big stakes.  Being caught, he must expect condign punishment.  The judge took into account the plea of guilty to the ephedrine trafficking count and had regard to all the factors enumerated for the applicant under grounds 1 and 2 and ground 5. 

1. As to whether the total effective sentence was manifestly excessive (that is, whether the directions for a cumulation coupled with the base sentence were manifestly excessive), the Gaga parcel contained much more heroin and involved further criminality, so that some cumulation between the heroin offence sentences was required and because each offence was serious the amount of cumulation could, provided the totality principle was not infringed, properly be substantial.  That the heroin offences were separate from each other is shown by the fact that Ma was the originator of one parcel, whilst Su was the originator of the other, by the fact that the importations occurred at different times and that the parcels were addressed to different addresses.  The applicant’s involvement was in the importation of the parcels, not simply in the trafficking of two amounts of heroin once they had arrived in Australia.  The applicant’s involvement in the trafficking of ephedrine was even more strongly separate, so that cumulation was called for.  The foregoing considerations lead me to conclude that the total effective sentence neither was “crushing” [16] for a man of 43 nor infringed the totality principle by being in excess of what was appropriate to the applicant’s overall culpability, nor was it outside the range available to the judge.

   [16]In the sense of provoking a feeling of hopelessness when released (R. v. Cowie, unreported, CCA, 2 February 1978) or destroying any reasonable expectation of useful life after release (R. v. Young [1985] V.R. 41 at 48). See generally Fox and Freiberg, Sentencing – State and Federal Law in Victoria, 2^nd edn, 722-4; R. v. Saunders [2000] VSCA 58 at [26]; and R. v. Cumberbatch [2004] VSCA 37 at [12].

1. As to whether the differential between a total effective sentence of 11 years’ imprisonment and an effective non-parole period of 9 years was manifestly excessive, the differential, whilst it might have been greater, was, I think, within the range open to the judge.  It must be remembered that, whilst prospects of rehabilitation receive greater weight in the determination of the non-parole period than of the head sentence, a non-parole period reflects all sentencing considerations, including deterrence.

1. For the foregoing reasons I am of the opinion that none of the above four grounds is made out. 

Zaydan Ground 3

1. It was said in the outline for Zaydan that the principle of parity in the instant case concerned three propositions.  First, the promotion of consistency and fairness in punishment demanded that like co-offenders not be left with a justifiable sense of grievance by comparison of sentences passed upon them and upon others.[17]  Secondly, the principle is as applicable to a case of punishment of like offenders receiving the same sentence where there should have been disparate sentences as to a case where there are disparate sentences passed upon offenders where it is alleged such disparity was not justified.[18]  Thirdly, the avoidance of a justifiable sense of grievance does not mean that a wholly inadequate sentence which is said to be a benchmark should be imposed;  but it does mean that unacceptable disparity should be avoided by giving such weight to the alleged benchmark as the circumstances permit.[19]

   [17]R. v. Taudevin [1996] 2 V.R. 402 at 404, applying Lowe v. The Queen (1984) 154 C.L.R. 606.

   [18]Postiglione v. The Queen (1997) 189 C.L.R. 295 at 338.

   [19]Pecora v. R. [1980] V.R. 499 at 503-4; see also R. v. Capper (1993) 69 A.Crim.R. 64.  To these cases might be added R. v. Wilson (2000) 116 A.Crim.R. 90 at 96-98 [21]-[23].

1. It was said for the applicant that those propositions led to three conclusions.  First, he should have received a lesser sentence than that of 7 years imposed on count 2 on the heroin indictment having regard to the sentence of 5 years imposed on Ma.  The latter had dispatched the very heroin.  No weight could be attached to the fact that he pleaded to a different charge.  Whilst the applicant did not plead guilty, Ma’s criminality occurred in the context of his guilty plea to trafficking in respect of the earlier (first) importation, of which the applicant was acquitted.  Secondly, the applicant should have received a different and lesser sentence than that imposed upon Bava in respect of the two counts of heroin importation principally because of the considerations referred to under ground 5, discussed earlier.  Thirdly, the applicant should have received a lesser sentence than that imposed on the count of trafficking in ephedrine having regard to each of the sentences imposed on the other offenders and the considerations referred to under ground 5.  It was said that the judge seemed to have had regard to the sentence passed upon Ma only in the sentencing of Su.  (He certainly discussed it, critically, when sentencing Belikov.)  A submission that the applicant should have received a lesser sentence than that imposed on him in respect of the second heroin charge (count 3) having regard to the sentence of 7 years passed upon Su was not pressed. 

1. For the reasons which follow, I am not persuaded that his Honour erred in regard to parity.  As regards Ma, the sentencing judge was aware of his role in the heroin offending and of the sentence passed upon him.  The two offenders were not in like case and it was open to his Honour to impose a sentence of 7 years’ imprisonment on Zaydan on count 2 (the Yaja parcel) when Ma had been sentenced to 5 years’ imprisonment in respect of that parcel.  First, and importantly, Ma had pleaded guilty at an early stage. The forensic reasons for Zaydan’s pleading not guilty advanced by Mr. Tehan cannot overcome the fact that Ma, by pleading guilty, earned a considerable discount.  I find no need to consider the adequacy of Ma’s sentence.  Secondly, Ma had been given some limited credit for offering to assist the authorities.  Thirdly, totality considerations may have operated to reduce Ma’s sentences a little.  Fourthly, although Mr. Champion disavowed this, it seems to me that the considerable difference in applicable maximum penalties is of some significance.

1. As regards Bava, my non-acceptance above of ground 5, which, though described as the principal reason, was really the sole reason in support of the parity argument, means that it must fail. 

1. All offenders pleaded guilty to counts of trafficking in ephedrine.  Ma was involved with Belikov and one Barbaro (but not Zaydan) and for a shorter period than Zaydan, so that his offending is not comparable to Zaydan’s.  He may therefore be put aside.  Zaydan and Su were involved in the trafficking of four importations and received the same sentence (as will later appear in the case of Su), imprisonment for three years.  Bava was involved with them for only four days and his sentence is simply not comparable.  Victor Su, who received a sentence of 18 months, was involved with them for a shorter period than they were and in two importations only.  That leaves only Goerlitz.  He was concerned in the trafficking of the four importations and, but for the service of pre-sentence detention that could not be redeemed, would have been sentenced to imprisonment for two years.  As it was, he received no real sentence of imprisonment.  No specific submissions about him and his sentence were made.  Though he was one of the venturers, I am left with the impression that he played a lesser role than Zaydan.  At any rate nothing has been advanced to persuade me that his offending and circumstances are like to those of Zaydan and that the one year difference in sentence gives rise to a grievance which is justified.  So far as reliance was placed in relation to the sentences on co-offenders in the ephedrine trafficking upon the considerations referred to under ground 5, since I would not uphold that ground those considerations do not assist Zaydan on ground 3. 

Conclusion on Zaydan’s application

1. For the reasons given, none of the grounds, in my opinion, succeeds.  The application should be dismissed. 

Bava’s application

1. The grounds on which Bava has applied for leave to appeal against sentence, after amendment by leave of the Registrar granted on 21 April 2004, are that the sentences imposed in respect of all counts are manifestly excessive (ground 1); that the 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 (ground 2) or that of totality (ground 3); that he erred in the exercise of his discretion in that he imposed sentence upon the two heroin counts without any, or sufficient, regard to the sentencing principle which prohibits the imposition of double punishment (ground 4) and in that he failed to impose a sentence which avoided some element of double punishment arising out of the conduct of the applicant which was common to both heroin offences (ground 5). 

Bava grounds 3, 4 and 5

1. The point sought to be made by these grounds, which were argued together, was, as Mr. Holdenson informed the court in argument, that there had been too much cumulation.  It was submitted that much of the conduct of the applicant relied on by the Crown in proof of count 2 and count 3 on the heroin indictment could not be dissected so that some was only referable to the Yaja parcel and in no way referable to the Gaga parcel and vice versa.  In those circumstances the conduct of the applicant which was solely referable to either one of the two counts was very limited.  Consequently there ought to have been limited cumulation between the two individual sentences imposed on these two counts.  Reliance was placed on the following passage from the judgment of McHugh, Hayne and Callinan, JJ. in Pearce v. The Queen[20]: 

   [20](1998) 194 CLR 610 at 623, [40].

“To the extent to which the two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common…[T]he punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn.  Often those boundaries will be drawn in a way that means that offences overlap.  To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”

Reliance was also placed upon passages in Johnson v. The Queen[21], said by Mr. Holdenson to be “our case”, and particularly the following statement of Gummow, Callinan and Heydon JJ.[22]:

“It is true that the appellant pleaded guilty to two offences, but they had much in common:  one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant.  This commonality did require that careful regard be had, in deciding the appellant’s appeal, to the totality principle.”

When regard was had, however, to the manner in which his Honour had imposed sentence on the heroin counts, there had been, it was submitted, excessive cumulation between the two individual sentences such that the applicant had been punished twice for some of his criminal conduct referable to both counts.  The manner in which the sentencing judge had cumulated the two individual sentences thereby offended the proscription of double punishment.  The applicant did not complain against some cumulation, but, if the conduct was the same for both counts, substantial cumulation would mean double punishment.

[21](2004) 78 A.L.J.R. 616.

[22]At [33].

1. These submissions cannot be accepted.  Their success would, as it seems to me, be far reaching in sentencing practice.  The proposition cited from Pearce concerns a situation that did not exist here.  That situation was - (1) a single incident or episode, (2) for which two charges were laid that had in their definitions common elements.  The same act or acts constituted the element or elements common to both charges.  Here, (1) there were two episodes or sets of acts, and, whilst the two elements or offences were definitionally identical in their elements, factually they were not, for (2) the importations in which the applicant was knowingly concerned occurred in series, though some of the facilitating conduct for each was the same or at least contemporaneous. 

1. The present case was, however, as Mr. Holdenson submitted, in the same category as Johnson.  There the proposition concerning double punishment stated in Pearce was applied to a different fact situation.  There, as here, there were two offences (viz, attempting to obtain possession of a commercial quantity of ecstasy and attempting to obtain possession of a trafficable quantity of cocaine) and there the elements of each were definitionally different in one respect as the offences concerned different drugs.  Factually, however, they had much in common.  As Gummow, Callinan and Heydon, JJ. said[23],

   [23]At [33].

“It is true that the appellant pleaded guilty to two offences, but they had much in common:  one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant.  This commonality did require that careful regard be had, in deciding the appellant’s appeal, to the totality principle.  The error in relation to the number of packages and the failure to refer to numerous common elements strongly suggests that this did not occur”.

Whilst the present case is in the same category as Johnson, the commonality is factually much less.  In Johnson the only non-common facts seem to have been the identity and quantity of each drug in the one parcel.  Here, there were features of the case, and therefore of the applicant’s offending, which were discrete to each count, namely, that to his knowledge the importations were:

·consigned from China by or on behalf of different people, who acted as competitors with each other in the drug trade, namely, Su and Ma;

·sent to Australia from China on different dates, and from different places;

·consigned to different false addressees, and to different addresses in Melbourne;

and that the Yaja parcel, as well as containing heroin, contained a sample of ephedrine destined for the applicant.  In his recorded conversations with Zaydan Bava regarded the two importations, as represented by the Yaja and Gaga parcels, as separate importations.  He acknowledged and well understood their different origins.  He was provided by Zaydan with consignment details of the Yaja parcel and the Gaga parcel at different times.  Further, he was kept up to date about, and gave advice and encouragement to, the continuing efforts to gain possession of each of the parcels, which involved different considerations due to their separate circumstances.  Whilst, as paragraph 16 of the Summary of Evidence makes clear, some of the discussions (and perhaps actions) to which Bava was a party in which arrangements were made or facilitation was agreed were common to the two offences, there were two discrete importations to which Bava lent his hand and the degree of commonality was of a quite different order from that in Johnson.  The point of relative lack of commonality was indeed made by Mr. Holdenson’s statement in the course of his submissions that “the point would be better for Bava if there had been two parcels (scil. in Johnson)”.  It was therefore open to his Honour to order a significant degree of cumulation.  The cumulation in fact ordered did not constitute in part double punishment. 

1. In the alternative to his “double punishment” submission, Mr. Holdenson submitted that the sentencing judge, having to sentence for three offences, was required to apply the principle of totality but had not complied with what he called the third requirement of that principle, in that he had not checked or reviewed the sentence (that is, the total effective sentence and the non-parole period) produced by his individual sentences and directions for cumulation in order to determine whether the sentence was “just and appropriate” as required by Mill v. The Queen[24]; Director of Public Prosecutions v. Grabovac[25]; and Johnson[26].  His Honour had not looked back at the total effective sentence of 10 ½ years’ imprisonment with a minimum term of 8 years and asked “whether it was too much”[27].  The submission concluded by claiming that, by reason of that failure, the exercise of the sentencing discretion was vitiated and must be re-exercised by this court.

   [24](1988) 166 CLR 59 at 62-63.

   [25][1998] 1 V.R. 664 at 676, 680 and 683.

   [26]At 623, para [18].

   [27]R. v. Faulkner (1972) 56 Cr. App. R. 594 at 596, cited in R. v. Knight (1981) 26 SASR 573 at 576, in turn cited in Mill at 63.

1. It will be recalled that his Honour was unable to distinguish between Zaydan and Bava in terms of criminality in respect of the heroin counts.  That conclusion was not, as I understand it, challenged on behalf of Bava.  In any event I am not persuaded that it is not substantially correct.  In light of that view and of Bava’s role described earlier and substantially for the reasons given in paragraph [30] in respect of totality on Zaydan’s application, I consider that neither the total effective sentence nor the effective minimum term in the case of Bava, each of which is 6 months shorter than the corresponding periods in the case of Zaydan by reason of Bava’s lesser criminality in respect of the ephedrine trafficking count, infringes the principle of totality.  To put the matter in other words and positively, to my mind, as I stand back and look at them, they are fair and appropriate and “not too much”.  In so far as the submissions for Bava contended that a sentencing judge had to state that he or she was applying the principle of totality or going through the process which it ordains, I disagree.  The making of, or failure to make, such a statement does not determine, one way or the other, whether the total effective sentence or non-parole period infringes the principle. 

Bava ground 2

1. Under this ground Mr. Holdenson presented what he had called a “very narrow” parity argument as between Zaydan and Bava in relation to the ephedrine counts.  The point of departure for the submission was that Bava’s criminal conduct concerning ephedrine was much more limited than that of Zaydan, as was shown by the separate counts against them and as indeed his Honour had recognised in two passages in his sentencing remarks summarised earlier[28] and by the substantially differing individual sentences he imposed on them for trafficking in ephedrine of 3 years’ imprisonment and 1 year’s imprisonment respectively.  The submission was that, assuming the correctness of the respective individual sentences for trafficking in ephedrine imposed on Zaydan and Bava with their substantial difference of 2 years, that difference was not reflected in the final sentences they received in circumstances where on the two Commonwealth counts they received the same sentence, as regards the individual sentences, the cumulation directions and the Commonwealth non-parole period.  Thus, Zaydan ultimately had a total effective sentence of 11 years with an effective overall non-parole period of 9 years, whilst Bava ultimately had a total effective sentence of 10 ½ years with an effective overall non-parole period of 8 ½ years.  There was in the ultimate a difference in the total effective sentences and the overall non-parole periods of a mere 6 months.  That difference was manifestly inadequate and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice had not been done:  R. v. Taudevin[29] and Lowe v. The Queen[30].  His Honour had failed to have any, or sufficient, regard to the sentencing principle of parity and the exercise of the sentencing discretion was thereby vitiated.  In short, the application of the principle of totality in respect of Zaydan had triggered a manifest want of disparity between Bava and him in relation to the ephedrine offending. 

   [28]At para [8].

   [29][1996] 2 V.R. 402 at 404.

   [30](1984) 154 C.L.R. 606.

1. For the respondent it was accepted that it was open to conclude that the extra 6 months that Zaydan was to serve in respect of ephedrine trafficking in comparison to Bava was set as a result of the application of the principle of totality.  It was submitted that, given Bava’s offending by way of trafficking in ephedrine and the sentence of 12 months imposed for that, it would have been unrealistic to order that less than an additional 6 months’ imprisonment be actually served in respect of that offence.  There had to be a meaningful sentence.  It was pointed out that the assessment of an appropriate sentence was not a precise mathematical calculation and it was submitted that in respect of the applicant’s case, if a disparity (or, rather, a want of disparity) was identified, it could not be said to be manifest or to give rise to a justifiable sense of grievance to the extent that intervention by this court is warranted. 

1. In my opinion, the submission of the applicant is correct.  Whilst the sentence ultimately passed on Bava is (subject to consideration of ground 1) unexceptionable when considered in isolation, when it is compared with that passed on Zaydan a manifest lack of disparity is apparent and a justifiable sense of grievance is engendered.  Although at one stage Mr. Holdenson said that 3 months of Bava’s ephedrine sentence could have been directed to be served cumulatively Mr. Champion did not seem to embrace that as a fall back submission.  Subject to consideration of ground 1, I would, on reflection, in re-exercising the sentencing discretion make Bava’s ephedrine sentence wholly concurrent on the sentence on the heroin count 2. 

Bava ground 1

1. It was submitted for the applicant that, by reason of the submissions under all the other grounds and in the light of the other matters relied upon on the plea by counsel then appearing, each of the individual sentences imposed on the heroin counts and the sentence on the ephedrine count was manifestly excessive, being beyond the range of sentences open to the sentencing judge.  The same submission was made in respect of the total effective sentence and the non-parole period.  As to the latter, it was submitted that the effective overall non-parole period of 8 ½ years was close to the total effective sentence of 10 ½ years and the argument for Zaydan that the gap was manifestly too small was adopted.  Particular reliance was placed upon the plea of guilty to the ephedrine count. 

1. I have in the course of considering a similar ground in Zaydan’s application made some comments[31] about the discretionary nature of sentencing and the nature of the inquiry required by a ground alleging manifest excessiveness or manifest inadequacy.  I do not repeat any of that.  Bava’s criminality in relation to ephedrine was much less than Zaydan’s and, accordingly, he received a considerably lower head sentence for trafficking in ephedrine.  Substantially for the reasons given earlier in relation to Zaydan[32], but with the qualification just mentioned relating to ephedrine trafficking, I am of the opinion that none of the individual sentences passed on Bava, nor either direction for cumulation nor the non-parole period was outside the range of sentences available to his Honour in the exercise of a sound discretionary judgment.  Accordingly, I consider that this ground fails. 

   [31]At para [28].

   [32]At paras [29] – [31].

Conclusion on Bava’s application

1. For the reasons I have given, I would uphold ground 2, but no other ground.  Ground 2 affects directly only one cumulation direction and the effective overall non-parole period.  It may be said to re-open the whole sentencing discretion.  However, I do not otherwise think that a different sentence should have been passed or a different order made.  I have already indicated that I would not make any direction for cumulation of the sentence on the ephedrine trafficking count.  The terms of the sentence pronounced by the County Court judge, in compliance with the Commonwealth legislation relating to sentencing for federal offences, mean that it will be necessary to re-sentence the applicant entirely to achieve non-cumulation of the ephedrine trafficking sentence.  That will make it clear that on any view the non-parole period is solely that fixed in relation to the federal offences, namely 8 years.  Consistently with my reasoning, there is no justification for altering that figure, which will now commence from 7 April 2003.  Since the sentence for the State offence is less than 2 years it is not obligatory to fix a non-parole period and there is no point in doing so because the whole term has already been served.  I would therefore allow Bava’s application for leave to appeal against sentence and re-sentence him as indicated. 

Belikov:  Allowance of application and pronouncement of orders

1. It is convenient to take next the application by Belikov.  On 21 September 2004 the Court, having formed a clear view as to the outcome of the application for leave to appeal against sentence by Belikov, whose earliest possible release date was 30 January 2005, pronounced orders by which it allowed his application and consequential appeal, quashed the sentence imposed on him in the County Court at Melbourne on 7 April 2003 and in substitution for it sentenced him to be imprisoned for a term of two years and three months and fixed a non-parole period of 18 months calculated from 7 April 2003.  I joined in the making of those orders specifically for the reasons relating to Belikov that follow and, generally, for the other reasons contained in this judgment.

Belikov:  Conviction and sentence

1. On 12 December 2002 Belikov pleaded guilty to one count of trafficking between 3 July 1999 and 30 October 1999 in a drug of dependence, namely, ephedrine, contrary to s.71(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 in the form in force before 1 January 2002. That count was contained in a presentment that contained counts against other offenders as well. On 31 March 2003 a presentment containing only a count in the same terms against Belikov was substituted and he pleaded guilty to the substituted count.[33] Belikov admitted four prior convictions, including in 1985 possession of Indian hemp, for which he was fined $500, and in 1993 trafficking in cannabis, for which he was fined $5,000.

   [33]T1015-6.

1. His Honour sentenced Belikov to be imprisoned for two years and nine months and directed that he serve a minimum period of 22 months before becoming eligible for parole.

1. In his sentencing remarks relating specifically to Belikov, his Honour, after referring to his age (he was in fact born on 7 June 1961) and his prior conviction for trafficking, which his Honour said was obviously significant, traced briefly Belikov’s life since arriving in this country from China at the age of 15.  He noted that through being a plasterer he had met Ma, who owned a plastering business, in which Belikov became one of his supervisors.  He noted, too, that Belikov’s marriage had been troubled and ended after ten years in divorce in 2001, contributing in part to his suffering from depression, as he still did.  His Honour referred to the various reports of psychologists, psychiatrists and Belikov’s general practitioner concerning his depression.  On the question of the state of Belikov’s mental health at the time of offending, his Honour found the report of Dr Walton, a psychiatrist, of 27 March 2003 of most help.  Dr Walton reported that Belikov had been suffering from a fairly long-standing depressed mood which was certainly aggravated by his arrest and marriage breakdown.  He was diagnosably mentally ill with a depressive disorder and at the time of offending was depressed, at least to some extent.  His Honour recorded that four witnesses had been called on Belikov’s behalf, all of whom spoke of his reliability and honesty, three of his marital difficulties and concern for his children and one of his remorse.  His Honour said that in the context of honesty it was to be noted that he had been less than frank in describing to the psychologist and psychiatrist who examined him the extent of his involvement in the ephedrine venture. 

1. His Honour turned to the submissions made on the plea.  He accepted that Belikov’s plea of guilty had saved the community the cost of a substantial trial.  It had been further urged that there should be parity with the sentence imposed upon Ma and indeed that, given Crown’s concession concerning their respective degrees of involvement, Belikov’s sentence should be less.  It was also said that his Honour should take into account the degree of concurrency allowed by Judge Barnett with the other sentences passed by him upon Ma.  That last submission his Honour did not accept.  It was also argued that the venture in which Belikov was involved was smaller and less sophisticated than that in which Su was involved and that the sentence should reflect that.  His Honour was far from persuaded by that submission as a matter of fact.  Finally, it was urged that he had not offended since his arrest and had continued to work and gone far towards rehabilitating himself. 

1. His Honour said that he was mindful of the desirability of parity.  However he could not, while he was of the opinion that a sentence was inadequate, adopt it as a yardstick.  He did regrettably so regard the sentence imposed on Ma, given the nature of the crime, the extent of the enterprise and his role, but he had nevertheless reduced what he believed would otherwise have been an appropriate sentence to some extent to allow for the disparity. 

Belikov’s Application

1. The grounds on which Belikov applied for leave to appeal against sentence were that the sentencing judge erred in failing to apply or have sufficient regard to the principle of parity, particularly with respect to the sentence imposed by Judge Barnett on the co-accused Timothy Ma (ground 1);  in concluding that that sentence was inadequate (ground 2);  in finding as a fact that plans for larger scale trafficking were not put into effect because the applicant was arrested shortly after the ephedrine the subject to the count arrived in Australia (ground 3);  by not giving any or sufficient weight to the applicant’s prospects of rehabilitation (ground 4);  by not giving sufficient weight to the plea of guilty (ground 5) and by not giving sufficient regard to the applicant’s depressive disorder and thereby not moderating the application of general deterrence (ground 6), and that the sentence was manifestly excessive (ground 7).

Belikov Ground 3

1. It is sufficient, in my opinion, to decide this case by reference to ground 3.  It will be recalled[34] that his Honour stated that the matter never got to the point of the carrying out of the plan to import large quantities of ephedrine because Belikov was arrested shortly after the parcel containing the sample arrived.  That parcel  arrived on 14 September 1999.  Belikov was not arrested until 23 November 2000.  Although these dates had been drawn to his Honour’s attention more than once during the plea, it is clear that his Honour made the factual error alleged in the ground, as indeed counsel for the respondent accepted. 

   [34]See para. [9].

1. It was submitted, however, for the respondent that the error was “not so significant” and did not vitiate the sentence because a correct statement of the facts revealed a merely neutral situation.  There was no evidence of demonstrated rehabilitation in that period and indeed the evidence tended, it was submitted, to the opposite conclusion, reference being made to some incriminating conversations in September and October 1999 after the delivery of the parcel. 

1. But Mr Mullally for Belikov took as the period to be considered the period commencing immediately after the end of the period of offending alleged by the respondent in the presentment, as he was well entitled to do.  The terminal date alleged was 30 October 1999.  No offending after that date was demonstrated despite apparently continuing police investigations, and it could be inferred on the balance of probabilities that there was none.  Thus, there was a period of almost 13 months before arrest during which Belikov did not engage in any criminal conduct.  (Nor, it may be safely inferred, did he do so while on bail after his arrest.) 

1. As I have indicated, it was submitted for the respondent that the error of fact could not be said to have had any impact on the sentence passed on Belikov sufficient to warrant intervention.  In other words, it was argued that the error was immaterial.  I do not agree.  Whether or not the error bore, as submitted for the applicant, upon his Honour’s decision concerning parity, it plainly bore, in my opinion, on rehabilitation.  His Honour noted the submission that Belikov had not offended since his arrest and had continued to work and had gone far towards rehabilitating himself, but expressed no view about the submission.  In fact, however, the submission was (and should have been understood by his Honour as) stronger, in that he had not offended since 30 October 1999.  In short, his Honour considered the questions of rehabilitation and (by implication) specific deterrence on an incorrect factual basis.  Further, it seems to me that the applicant was entitled to have the 13-month crime-free period taken into account, for what it might have been worth, in moderating the case put by the Crown.  That case was that the 142 grams of ephedrine was a sample procured with a view, if its analysis was favourable, to further, larger, importations, and indeed it was conceded for the applicant on the plea that the material revealed bigger plans.  His Honour appears to me to have used against Belikov the fact (as he thought) that the plan was not carried into effect because of his arrest.  The plan would or might have been of less significance if his Honour had had regard to the fact that, being free to do so, the applicant did not during a period of 13 months take steps to put the plan into effect.

1. For these reasons, I considered that ground 3 was made out. 

Conclusion on Belikov’s Application

1. Since an error material to the sentencing discretion was shown, that discretion fell to be re-exercised.  In joining in the order already pronounced, by which it was re-exercised, I had regard to all the facts and considerations set out earlier and to the arguments of the parties on the grounds with which I have not dealt.  I concluded that the appropriate sentence was a term of imprisonment of two years and three months with a non-parole period of 18 months.

Su:  convictions and sentence (drug offences)

1. On 6 February 2003 Alexander Su pleaded guilty to two counts of a substituted presentment alleging that between 6 April 1999 and about 2 August 1999 he attempted to traffick in a commercial quantity of a drug of dependence, namely, heroin, contrary to s.71(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981 in the form in force before 1 January 2002 (count 1) and that between 7 August 1999 and 22 March 2000 he trafficked in a drug of dependence, namely, ephedrine, contrary to s.71(1)(b) of the same Act in the same form (count 2). A commercial quantity of heroin was defined as any amount of heroin where it was in a mixture which exceeded 500 grams and otherwise 250 grams. The maximum penalty applicable to the first count was imprisonment for 25 years and a penalty of not more than $250,000. No prior convictions were alleged against Su.

1. His Honour sentenced Su to be imprisoned on count 1 for a term of seven years and on count 2 for a term of three years.  He directed that two years of the term of imprisonment imposed on count 2 be served cumulatively upon the term of imprisonment imposed on count 1, with the result that the total effective sentence was imprisonment for nine years.  His Honour fixed a non-parole period of seven years. 

1. In his sentencing remarks relating specifically to Su, his Honour stated that Su had been born in China in 1969 (the actual date of birth was 28 January 1969) and had immigrated to Australia with his family at the age of 15.  He had become a businessman, first in the motor trade and then in the construction industry.  The report of Mr. Cummins, psychologist, indicated that his business interests were considerable and that he was successful.  His psychological profile was unremarkable.  He had the support of his family, which was law abiding, the Melbourne China Association and a building project manager called on his behalf as a witness.

1. It was urged on his behalf before the judge that his was the only unequivocal plea of guilty to a heroin-related charge.  The argument pressed most strongly on Su’s behalf was that there should be parity between his sentence and Ma’s sentence and that his should be no greater than Ma’s.  It was said that the total quantity of pure heroin in his case and Ma’s case was very similar, that the ephedrine trafficking operation in which Su was concerned was relatively unsophisticated by comparison with that of Ma, that they came from similar backgrounds, that they had common business problems and that neither had prior convictions.  His Honour was not satisfied that Su had significant business problems.  He may have had, but, even if he did, that did no more than provide an explanation, not an excuse. 

1. His Honour stated that he did not accept that the principle of parity applied.  First, Su and Ma pleaded guilty to different crimes:  drug trafficking carried a maximum penalty of 15 years’ imprisonment, whereas trafficking or attempting to traffick in a commercial quantity of a drug was more serious and carried a maximum penalty of 25 years’ imprisonment.  Secondly, Su was not a co-offender with Ma, either in the importation of heroin or the importation of ephedrine.  The parcel of heroin for which Su was concerned appeared to have no connection with Ma and the two business ventures in ephedrine were not connected.  That was not to say that Judge Barnett’s sentence was simply to be disregarded.  It was a contemporaneous sentence imposed in circumstances of some real similarity and his Honour took note of it.  It was not, however, in his opinion an appropriate sentence for the particular circumstances with which he must deal.

1. All the indications were that Su was a drug merchant in a significant way of business and his attempt to traffick in heroin in an amount almost twice that prescribed by Parliament as the minimum for a commercial quantity must be dealt with accordingly. 

Su’s application (drug offences)

1. The grounds on which Su has applied for leave to appeal against sentence, after amendment by order of the Registrar made on 30 June 2004 and with the omission of a ground no longer relied on, are that the sentencing judge erred in  that he failed to impose a sentence on Su which was duly proportional to the sentences imposed on Zaydan and Bava according to the principles of parity (ground 2); in that he failed to give sufficient weight to the applicant’s plea of guilty (ground 3) and in that he failed to have sufficient regard to the principle of totality (ground 4), and that the individual sentences, the total effective sentence and the non-parole period are each manifestly excessive. 

Su ground 3 (drug offences)

1. It was submitted for the applicant that his pleas of guilty to the two counts were of much consequence entitling him to a substantial discount in sentence which was “real” and not merely illusory, but that, when regard was had to the sentence actually imposed, the sentencing judge had failed to grant the discount to which the applicant was entitled, with the result that the exercise of the sentencing discretion was vitiated.  Alternatively, should his Honour be held to have intended to grant a substantial discount by reason of the pleas of guilty, examination of the actual sentence imposed made it clear that he had failed to achieve his intention and again the exercise of the sentencing discretion was vitiated.  Counsel referred to the submission on this point below, where counsel then appearing was able to contrast the course taken by Su with that taken by Zaydan.  His Honour had expressed reservations as to remorse arising from the plea when it was made as a result of plea bargaining negotiations. 

1. For the respondent it was submitted that his Honour had acknowledged and given sufficient weight to the applicant’s plea of guilty.  His Honour, having presided over the trial of the co-offenders, was very familiar with the role played by the applicant.  As with Zaydan and Bava, the applicant had a financial interest in the sale of the drugs and participated in discussion as to their marketing.  However, the applicant’s role as a principal offender included his having spent extended periods in China and his negotiating the supply of heroin.  In this respect, it was submitted, it had been open to his Honour to view the applicant’s offending as more serious than that of the co-offenders.  Further, it was open to conclude that the periods of imprisonment imposed, both head sentences and non-parole periods, had been affected by other sentencing considerations such as the principle of totality so as to render strict comparison impossible. 

1. That last submission would have force if one were considering the total effective sentences or the non-parole periods, but that, in my opinion, is not the appropriate comparison.  It is possible, and appropriate, to isolate sentences where other considerations have little effect and to compare them.  I speak of the individual sentences imposed in respect of the Gaga parcel, which was the only heroin in respect of which the three were co-offenders.  In respect of it his Honour sentenced both Zaydan and Bava to a term of imprisonment for eight years for being knowingly concerned in its importation (count 3 in their case) and sentenced the applicant to a term of imprisonment for seven years for attempting to traffick in a commercial quantity of heroin (count 1).  Although I have called the three applicants co-offenders, it was true that, strictly, their offences were different.  However, the maximum custodial penalty was the same and the factual material was essentially the same.  One has, then, a difference of one year between the sentences imposed on Zaydan and Bava and that imposed on Su.  But that difference is not to be attributed solely to Su’s plea of guilty (and any difference that might have existed in their respective personal factors), for he had no prior convictions, whereas Zaydan had prior drug offences and Bava a prior conviction which, though not drug-related, was serious.  Accordingly, the discount for the plea of guilty must have been not insignificantly less than a year.  In saying that I have not accepted the respondent’s submission that it had been open for the sentencing judge to view the applicant’s offending as more serious than that of the other offenders:  whilst I recognise the real importance of the part Su played, his Honour does not appear to me to have differentiated between the roles of the three offenders, for, having a little earlier stated that he did not regard the involvement of Zaydan and Bava as sufficiently dissimilar to warrant distinction in terms of criminality, he said in respect of Su, “As with Zaydan and Bava, I am satisfied that your role was that of a merchant or principal, not that of some subsidiary officer”.[35]  In considering whether a difference of somewhat less than a year in Su’s sentence betokened a failure to give sufficient weight to his plea of guilty, it must be remembered that the sentence under comparison is one for a substantial term, eight years, and not, say, three or even five years.  In that circumstance, I consider that the discrimen was too small, so that the applicant has, perhaps unusually, succeeded in the task of showing that insufficient weight was given to a sentencing consideration, here the plea of guilty, and that the sentencing discretion thereby miscarried.     

   [35]Emphasis added.

Su other grounds (drug offences)

1. Although it is not necessary for me to do so in view of my conclusion on ground 3, it is, I think, desirable to comment briefly on the other grounds.  Under parity (ground 2) it was submitted that, there being a relationship between the sentences imposed on the applicant and his co-offenders Zaydan and Bava, if either of the co-offenders had his sentence reduced by this Court, then, so that the sentencing principle of parity (presumed in this case to have been applied by his Honour) was not breached, this Court should reduce the sentence imposed upon the applicant.  The respondent conceded that, perhaps more as an application of the principle of equal justice, it would be appropriate in such a case for this Court to give re-consideration to the applicant’s sentence.  I shall say something generally about parity later.  On the present point, however, I should state my view here.  It is that the ground on which I would reduce Bava’s sentence is peculiar to him (or him and Zaydan) and does not have any consequences for Su.  The applicant’s argument concerning totality (ground 4), as I understood it, was that the sentencing judge did not, after imposing the individual sentences and making the direction for cumulation, “stand back” and check or review the total effective sentence and minimum term thereby produced in order to determine whether that sentence was “just and appropriate” because he did not say that he was doing that.  It is clear, in my opinion, that a sentencing judge does not have to state that he or she is taking that step.  Of course, the sentence produced by the judge may be such as to show that the judge did not take that step or that, if the judge did, he or she erred in carrying it out.  That cannot, in my opinion, be shown here.  In support of the contention that the elements of the sentence were each manifestly excessive (ground 5), counsel, besides incorporating by reference the earlier arguments, adopted the submission of counsel for the applicant before his Honour that, in view of the applicant’s previous good character, employment and self-employment history and strong family support, the applicant was capable of being rehabilitated, but that this was not reflected in the total effective sentence or the non-parole period.  I do not repeat the general observations I made earlier[36] about a ground of manifest excessiveness or about the facts of the drug offences in which Su was involved.  In my opinion, when regard is had to the quantity of heroin, the period of ephedrine trafficking, the role of the applicant and the respective maximum penalties for the offences, this ground fails.

   [36]In paras.[28] and [29] -[30] respectively.

Conclusion on Su’s drug offences application

1. Because I uphold ground 3, I consider that the sentencing discretion must be re-exercised.  In the light of the facts which I have stated and the observations that I have made, I would propose that the only variations from his Honour’s sentence that should be made in re-sentencing the applicant are that on count 1 the term of imprisonment should be six years (so that the total effective sentence would be imprisonment for eight years) and that the non-parole period should be six years. 

Su:  convictions and sentence (kidnapping and perverting course of justice)

1. On 21 July 2003 Su and Shaun Goerlitz pleaded not guilty on arraignment in the Trial Division of the Supreme Court at Melbourne to one count of kidnapping contrary to s.63A of the Crimes Act 1958 (count 1) and also, in the case of Su, one count of attempting to pervert the course of justice contrary to the common law (count 2).[37]  On 30 July 2003 a jury was empanelled.  The applicant and Goerlitz were arraigned, pleaded not guilty and the trial proceeded.  On 11 August a separate trial was ordered in respect of Goerlitz and the applicant’s trial proceeded in Goerlitz’s absence.[38]  On 29 August the jury returned a verdict of guilty in respect of the applicant on both counts.  As already mentioned, the applicant had no prior convictions though he had in the meantime pleaded guilty to and been convicted of the two drug offences.

   [37]On the same day one Robert Fernandez pleaded guilty on arraignment before the same judge to one count of kidnapping contrary to the common law.  He was sentenced on 17 November 2003 to a term of five years’ imprisonment with a non-parole period of two years and six months. 

   [38]On 17 November 2003 a nolle prosequi was filed in relation to Goerlitz.

1. On 12 September 2003 the Supreme Court judge commenced hearing a plea in mitigation.  The prosecutor tendered victim impact statements by the principal victim, members of his family and his girlfriend.  In the course of his submissions for the applicant counsel tendered the plea and sentence of the applicant in relation to the drug offences and a copy of the report of Mr. Cummins tendered in the County Court and called one witness. 

1. On 17 November 2003 his Honour sentenced the applicant to 14 years’ imprisonment for kidnapping and four years’ imprisonment for attempting to pervert the course of justice, of which he directed two years to be served cumulatively upon the sentence on count 1.  The total effective sentence was thus 16 years’ imprisonment.  His Honour fixed a new single non-parole period of 11 years.  Both the aggregate term of imprisonment and the non-parole period were to commence from 17 November 2003.  No declaration was made as to pre-sentence detention, no doubt  because the applicant’s detention had been in pursuance of the sentence of the County Court. 

1. Su has applied for leave to appeal on the following grounds (omitting one not relied on):

1.The learned sentencing judge erred in that he failed to have sufficient regard to the principle of totality in sentencing the applicant, particularly but not limited to:

a)the fixing of the head sentence,

b)the fixing of the new non-parole period,

c)the pre-sentence detention referable to sentences imposed on the applicant on 7 April 2003,

d)the period of time spent undergoing sentence since 7 April 2003,

e)the degree of cumulation imposed in respect of count 2, and

f)the need to avoid the imposition of a crushing sentence on the applicant. 

2.The learned sentencing judge erred in that he placed too much weight on:

a)general deterrence and

b)denunciation.

3.The learned sentencing judge erred in finding that the offending behaviour the subject of count one was a “grave example of this type of offence”.[39]

[39]This ground is as it stood after amendment by leave during the hearing. 

...

5.The learned sentencing judge erred in that he failed to give sufficient weight to the applicant’s prospects for rehabilitation particularly but not limited to:

a)the applicant’s previous good character,

b)the applicant’s capacity for constructive contribution to the community and

c)the applicant’s family support.

6.That the sentence imposed is, in all of the circumstances, manifestly excessive.

The essential facts of the kidnapping and perverting course of justice

1. The facts of the offending are fully and carefully set out in the sentencing remarks of the Supreme Court judge and no suggestion of error has been raised against his Honour’s recitation.  I see no reason to burden these already lengthy reasons with a repetition of the details.  Rather, the reasons are to be read in the light of his Honour’s recitation and I shall content myself with a bald summary.

1. Shortly after 1 a.m. on 3 March 2001 the applicant kidnapped John Chao Chou Lin outside his home by forcing him into a car with the help of two others, one of whom was the powerfully built Fernandez.  Lin was bound and a hood was placed over his head.  He was taken to a garage where he was kept for about a day in this condition and then removed to an unidentified type of residence and later to rooms in different motels.  Over a period of time the applicant induced Lin to believe that, although he was working for a gang in kidnapping Lin, in fact he was protecting him from the members of the gang, who wanted to kill Lin.  He advised Lin to co-operate and warned him against trying to escape or engaging the police.  By statements he made the applicant  brought psychological pressure to bear upon Lin.  The applicant made telephone calls to Lin’s mother and, after earlier hints of demands, on 6 March explicitly demanded $1.5m from her for the safe return of her son.  He had Lin make calls to members of his family.  Later the sum demanded was reduced to $800,000.  Money never changed hands and on 17 March 2001 police located Lin in a motel safe and sound.  The applicant was arrested at 6 o’clock the following morning and has been in custody since then.  The foregoing is the essence of the offence the subject of count 1. 

1. On 23 March 2002, after the applicant had been served with the statement of John Lin as Crown witness as part of the brief of evidence for the kidnapping charge, an unknown Australian male attended the home of Lin’s girlfriend.  He produced a letter purporting to be from Lin to the authorities correcting his witness statement in such a way as to exonerate the applicant, and told the girlfriend to copy it and to give the copy to Lin for him to send one copy of it to the Port Phillip Prison addressed to the applicant by a different name and one copy to the police in five days.  The unknown male also produced another letter signed “from the old man” containing instructions to Lin and assertions designed to put him in fear for himself and his family.  The letter also advised Lin to go into hiding for three months, which would have had him absent from the applicant’s committal proceedings for kidnapping.  The judge had no doubt that the jury were satisfied that the applicant was the source of both documents.  The foregoing constituted the offence the subject of count 2, the detailed allegation in which was that Su on 23 March 2002 with the intent to pervert the course of justice did an act which had a tendency to so pervert the course of justice in that he arranged for the delivery of a message to Lin’s girlfriend with the intention of dissuading Lin from giving truthful evidence in the impending committal and trial of Su. 

Sentencing remarks concerning Su’s kidnapping and perverting course of justice

1. In his sentencing remarks his Honour stated that in Su’s defence much emphasis had been placed on the fact that Lin made no attempt to seek help or to escape from Su when he appeared to have the opportunity to do so and that it had been suggested that he had somehow staged his own kidnapping.  The jury, his Honour said, rightly rejected this preposterous suggestion.  Letters and notes written by Lin to his family and girlfriend during his ordeal clearly indicated his fear of death and his belief that only Su could protect him from the gang.  Whilst Su was not, of course, to be punished for the type of defence he mounted, he had not exhibited the slightest remorse for his actions.  There was not a skerrick of credible evidence to suggest that there was any gang to whom Su was answerable.  Rather, he had created a gang as a psychological device.  Motive might perhaps be found in the money Su’s construction business owed its workers.  His Honour was satisfied that the desire for money, and large amounts of it, was a motivating force.  In this regard it had similarities with the offences to which Su had pleaded guilty before the County Court judge earlier in the year.  His Honour described those offences and the sentence imposed and said that the fact that Su was serving such a sentence must be taken into account in the sentence he must ultimately impose. 

1. The offence of kidnapping had always been regarded as very serious, his Honour said.  No doubt its capacity to create great psychological trauma, both for the victim and the victim’s loved ones, is occasioned reason for this.  In this case, the lengthy period of time Su detained Lin, the fear he engendered in Lin and the trauma he occasioned Lin’s mother, siblings and other loved ones made it “a grave example of this type of offence”.  As regards the offence itself, about all that could be said in Su’s favour was that he did not physically harm Lin.  Whilst it might be argued that the offence of kidnapping was still relatively rare in this country, it was important that courts by the sentences they imposed should denounce its commission and seek to deter people within the community who might be minded to engage in it.

1. On the second offence, his Honour said that it was a particularly vicious endeavour to intimidate the key witness against Su by reviving the fears he had previously induced in him.  The inclusion of the girlfriend’s family added a further dimension to the applicant’s threats.  He ruthlessly singled out a person whom Su knew from his dealings with Lin he would be particularly anxious to protect.  The offence of attempting to pervert the course of justice struck at the very basis of our legal system and the due administration of justice.  It was essential that witnesses were able to give their evidence honestly and frankly without interference and without fear of reprisal.  What Su attempted to do to avoid his criminal liability was a grave example of this offence, warranting severe punishment, his Honour stated.  A sentence for that offence must also reflect the need for denunciation and general deterrence. 

1. His Honour then referred to the contents of the victim impact statements.  It is unnecessary to repeat his Honour’s summary of them beyond saying that they showed the applicant’s conduct engendered in Lin a fear not only for himself but for members of his family and his girlfriend; and that they showed the fear and extreme insecurity caused by the applicant’s offending.  Lin and his family and his girlfriend and her family underwent the restrictions of police protection following upon the second offence. 

1. His Honour then turned to matters personal to the applicant, referring to Su’s age at the time (34), his childhood in China, his migration to Australia, his education, his employment, his marriage in 1992 and separation in 1998 and his successful businesses in car importing and construction and plastering.  He next referred to the applicant’s failed business venture in north-west China, which was said to have led to his drug dealings and his domestic problems.  At the time of his arrest the applicant was employing 30 plasterers and carpenters on a 13-storey apartment block in South Melbourne.  Some three months later the applicant’s company went into liquidation, as had his Oz Asia Trading and Construction Company earlier.  During the time when his business enterprises were functioning successfully, Su apparently was a highly regarded employer, providing work for newly arrived Chinese migrants. 

1. Mr. Cummins was of the view that the applicant did not suffer from any psychiatric or psychological problems and was of reasonable intelligence. 

1. His Honour said that the applicant’s past dedication to hard work, the level of his business acumen and workplace leadership, his lack of any criminal activity for the first 30 years of his life, and the courses he had undertaken while in prison, all indicated a capacity on his part to rehabilitation.  This must be accorded weight.  His Honour noted in this regard the continuing support the applicant had from his immediate family.  His Honour said that he was obliged to observe the principle of totality, which necessarily involved allowing a significant measure of concurrency in arriving at the appropriate total effective sentence.  In doing so his Honour had regard to, and made allowance for, the period of time already served under the sentence imposed in the County Court, including the pre-sentence detention declared by the County Court judge. 

Su’s introductory submission as to Supreme Court sentence

1. Mr. Holdenson’s written outline of submissions on behalf of the applicant began by summarising with clarity the two sentences imposed on Su.  He pointed out that the effect of the County Court judge’s declaration as to pre-sentence detention was that the sentence he imposed “commenced” on 19 March 2001, whilst the effect of the Supreme Court sentence, which contained no declaration as to pre-sentence detention, was that it commenced on 17 November 2003.  Thus, that sentence was imposed in circumstances where the applicant had already served two years and eight months in custody.  In those circumstances, in respect of the two sets of offending, the latter sentence superseded that of the County Court and the applicant had been sentenced, in effect, to 18 years and 8 months’ imprisonment with a non-parole period of 13 years and 8 months.  Then attention was drawn to the reference made by the sentencing judge in the Supreme Court to the sentence being served by the applicant and to his statement that, in imposing the sentence, he had regard to and made allowance for the time (two years and eight months) already served by the applicant in custody.  It was clear, therefore, it was submitted, that his Honour had had regard to both the actual sentence imposed in the County Court and the period of time already served.  As a consequence, it was submitted, if this Court re-sentenced the applicant in respect of the two drug offences, then it would be necessary for it further to set aside the sentence (or, more precisely, the two individual sentences) imposed in the Supreme Court and sentence the applicant afresh.  This is because the time served becomes a greater proportion of the County Court sentence if the latter is reduced.  The two years eight months should be less if the criminality in the drug offending is reduced (that is, held to be less).  The submissions made under the various grounds set out in paragraph [79] above were made on the hypothesis that the applicant failed in his challenge to the County Court sentence.  I shall consider them first, leaving until later what I might call the applicant’s “introductory submission”. 

Su’s grounds relating to kidnapping and perverting course of justice

1. In relation to rehabilitation (ground 5) it was submitted that evidence on the applicant’s previous good character, capacity for constructive contribution to the community and family support had been placed before his Honour and had clearly been accepted by him.  As a result the judge concluded that the applicant had a capacity to be rehabilitated and stated that that finding was to be given weight in the exercise of his discretion.  When regard was had, however, to the manner in which he exercised that discretion, the sentencing judge had simply failed to achieve his intention and the sentencing discretion was vitiated.  In the light, however, of his Honour’s statement, made right at the end of his sentencing remarks, that the finding of a capacity to be rehabilitated “must be accorded weight” it cannot be said that his Honour gave it no weight.  Whether he gave it sufficient weight is best considered under the ground alleging that the sentence was manifestly excessive.

1. In relation to totality (ground 1) it was submitted for the appellant that, although his Honour recognised the necessity for him to have regard to the principle, the applicant’s “end result” showed that the judge had erred in the checking or reviewing of the sentence produced:  a sentence for both sets of offending, in effect, of imprisonment for 18 years and 8 months with a non-parole period, in effect, of 13 years and 8 months simply infringed the principle.  The submission was, in essence, that the aggregate was simply “too much”.  Again, I think that this is best considered with the ground of manifest excessiveness, to which it is closely related and to which I now turn.

1. Grounds 2, 3 and 6 were argued together.  Counsel stated that his Honour had avoided partial cumulation by imposing one sentence with no declaration of pre-sentence detention and that this was a commonsense approach.  But it was submitted that, bearing in mind the submissions on grounds 1 and 5 and the matters put on the plea, both the total effective sentence and the non-parole period were manifestly excessive as being outside the range of sentences open to a sentencing judge in such a case.  Stress was placed upon the fact that the victim of count 1 was found “safe and sound”, not having been physically harmed during his ordeal (as his Honour accepted). 

1. I may say immediately that I reject ground 3, which challenges his Honour’s description of the kidnapping offence. It is true that his Honour found that Lin was not physically harmed. Against that, however, a number of powerful considerations must be taken into account. First, the offence of kidnapping contrary to s.63A is inherently a very serious offence, as shown by the maximum penalty fixed by Parliament. Then, this case involved the application of enormous psychological pressure to Lin and his mother in particular, as well as the other members of the family, and the effect on all of them was very great indeed, especially by way of creating a feeling of extreme insecurity. Moreover, the abduction occurred right outside the victim’s house. In effect the sanctity of his home was breached. Further, the detention of the victim lasted a fortnight and involved the subtle duping of him.

1. As to ground 2, the judge was justified, indeed bound, to place at the forefront of the applicable sentencing considerations general deterrence and the denunciation of the conduct constituting each of the offences, the first of which is foreign to the way of life in Australia and particularly Victoria and the second of which strikes at the heart of the administration of justice.  As regards rehabilitation (ground 5), it is to be noted that his Honour said that the matters he mentioned all indicated “a capacity ... for rehabilitation”.[40]  His Honour could not have been unaware when he made that remark that the second offence for which he was sentencing the applicant had been committed from prison while the applicant was awaiting a hearing for the drug offences and also that, whilst the drug convictions were not strictly prior convictions, their earlier commission meant that the two offences for which the applicant was before his Honour were not the only offences he had committed.

   [40]Emphasis added.

1. As regards totality, whether the sentence was “crushing” (as claimed in ground 1(f)) is, strictly, a separate question and I take it first.  “Crushing”, as I have already mentioned,[41] has been said to connote the destruction of any reasonable expectation of useful life after release[42] or to describe a sentence that would provoke a feeling of hopelessness in the applicant if and when released.[43]  The applicant was 34 at the time of sentence.  The sentence does not fall within the first exposition of the word “crushing” nor, I think on balance, the second.  In any event, it is to be remembered that extreme length of a sentence alone does not necessarily allow it to be characterised as crushing and that a richly deserved sentence, not manifestly excessive, is not to be disturbed because the offender may feel crushed by it.[44]

   [41]See fn.[16].

   [42]R. v. Yates [1985] V.R. 41 at 48.

   [43]R. v. Cowie, unreported, Court of Criminal Appeal, 2 February 1978.

   [44]R. v. Vaitos (1981) 4 A.Crim.R. 238 at 301 per O’Bryan, J.; R. v. Saunders [2000] VSCA 58 at [22]; and R. v. Cumberbatch (2004) 8 V.R. 9 at 13-14 [12]. See generally Fox and Freiberg, Sentencing – State and Federal Law in Victoria, 2^nd edn, 722-4.

1. It must be remembered that this was a case where the applicant had no remorse and no plea of guilty operating in his favour.  On the question whether the sentence is manifestly excessive, I do not repeat the general observations I have made earlier.  I have no doubt that neither the sentence on count 2, nor the cumulation direction in relation to it, nor the recognition of two years and eight months’ imprisonment in respect of the drug offences is manifestly excessive.  The real question in relation to manifest excessiveness is as to the sentence on count 1.  It is true that that exceeded one-half of the applicable maximum, but, whilst it was stern, I am not persuaded that it was outside the range of terms of imprisonment open to his Honour in the exercise of a sound discretionary judgment in relation to this very serious offending in the circumstances which I have described and discussed. 

1. That leaves for consideration the question of totality in relation to the overall sentence.  Here, it is necessary to consider the time served separately for the drug offences.[45]  A period of 18 years and 6 months might suggest a sentence for a murder of a less serious kind as murders go.  But it must be remembered that three of the four offences committed by the applicant carried a maximum penalty of 25 years’ imprisonment and the other 15 years’ imprisonment.  After much reflection I consider that the total effective sentence which his Honour imposed for the offences that were before him and the aggregate term to be served, by virtue of his Honour’s sentence, for those offences and the drug offences were “just and appropriate” as the respective periods which justice according to law prescribed for the respective offences committed by the particular offender, to adapt the language of Jenkinson, J. in R. v. Morgan and Morgan[46] and that the non-parole period of 11 years or (counting the time already served for the drug offences) 13 years 8 months was “just and appropriate” as the period before the expiration of which release of the applicant would be in violation of justice according to law notwithstanding the mitigation of punishment which mercy to him and benefit to the public might justify, to adopt again Jenkinson, J.’s language in Morgan and Morgan.[47]

   [45]Mill v. The Queen (1988) 166 C.L.R. 59.

   [46](1980) 7 A.Crim.R. 146 at 154.

   [47]Ibid.

1. I turn now to Mr. Holdenson’s “introductory submission”. Whilst it is obvious that, if Su is re-sentenced for the drug offences as I propose, s.14(1) of the Sentencing Act 1991 will require this Court to fix a new single non-parole period in respect of all the sentences Su is to serve or complete, I have, after much reflection and after consulting the President and a senior Judge of Appeal as well as the other members of the court hearing this application, come to the conclusion that the appropriateness of each of the two sets of sentences is separate and apart and that no automatic adjustment requires to be made to the Supreme Court judge’s individual sentences or cumulation direction to take account of Su’s success in relation to the County Court sentence. It is true that the later judge did have regard to the sentence imposed by the earlier judge and to the time already served under it in formulating his own sentence. It therefore seems necessary to consider whether, if the drug sentence is reduced, some change in the individual sentences or cumulation direction in the Supreme Court sentence is required. But it is unclear what actual effect his Honour’s regard to the County Court sentence and the time served under it had upon his own sentence. It might be said that his Honour’s having regard to those matters could only have worked (by reason of the totality principle) in reduction of the sentence he himself would otherwise have imposed, so that the reduction of the drug sentence on appeal could only work to increase the sentence he

was imposing.  The matter is imponderable.  As I have indicated, I regard the sentences imposed in the Supreme Court as appropriate to the crimes in question and accordingly I would not interfere in the individual sentences or the cumulation direction on the basis of the totality principle. 

1. In all the circumstances I would propose a new single non-parole period of ten years. 

Conclusion on Su’s application concerning kidnapping and perverting the course of justice.

1. I would allow the application and allow the consequent appeal solely for the purpose of substituting a new single non-parole period of ten years. 

Parity:  general  

1. I have considered whether any of the variations in sentence which I propose require other sentences of any of the applicant’s to be modified for reasons of parity.  Each of the variations proposed, however, depends on a special consideration applicable only to a particular sentence on a particular offender and not upon general considerations of manifest excessiveness or relativities in criminality between different offenders.  Thus, no consequential change is required. 

VINCENT, J.A.:

1. I agree with the disposition of these applications as proposed by Batt, J.A. in his judgment for the reasons given by him.

EAMES, J.A.:

1. I have had the considerable advantage of reading in draft the reasons of Batt, J.A., and, for the reasons given by his Honour, I agree with the disposition of these applications proposed by him.

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