Ramadan v The Queen; Boca v The Queen
[2011] VSCA 50
•11 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| ISMAYEL RAMADAN | S APCR 2009 0977 |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
| S APCR 2009 0952 | |
| PAT BOCA | Applicant |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | ASHLEY and BONGIORNO JJA | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 11 February 2011 | ||
DATE OF JUDGMENT: | 11 February 2011 | ||
MEDIUM NEUTRAL CITATION: | [2011] VSCA 50 | ||
JUDGMENT APPEALED FROM | R v Bejjani & Ors (Unreported, County Court of Victoria, Judge Allen, 17 December 2009) | ||
---
CRIMINAL LAW – Sentencing – Drug offences – Manifest excess – Parity – Delay – Illness affecting harshness of incarceration – No point of principle.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Ramadan | Mr R F Edney | C Marshall & Associates |
| For the Applicant Boca | Mr P F Tehan QC | Mr P W Dwyer |
| For the Respondent | Mrs C Quin | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I will ask Bongiorno JA to deliver the first judgment.
BONGIORNO JA:
This judgment concerns two applicants seeking leave to appeal their sentences, both of which were imposed by Judge Allen in the County Court on 17 December 2009. Both of the applications were heard, together with two other applications,[1] in this Court on 11 February 2011.
[1]Rajic v The Queen; Jack v The Queen [2011] VSCA 51.
Each of the applicants was indicted on charges of trafficking in drugs of dependence. Those charges arose out of ‘Operation Kearns’, a police investigation which was conducted in the middle of 2006. As a result of that operation ten male persons were sentenced in the County Court by his Honour Judge Allen in December 2009. The applicants to which this judgment relates are two of those sentenced. They now seek leave to appeal those sentences.
The criminal activity uncovered by Operation Kerns in which each of the applicants played a part was not unusual. It involved drug dealing, principally, but not solely, in methylamphetamine. Each of the applicants, however, was involved in different aspects of the business and the criminality of each had its own particular characteristics. It is accordingly convenient to deal with them separately and on the facts that applied to them.
Ismayel Ramadan
Ramadan was 47 years of age when he was sentenced in respect of three counts of trafficking. These counts and his sentences were as follows:
Count 1 ‑ trafficking in methylamphetamine (800 grams) for which he received a sentence of six years’ imprisonment.
Count 2 ‑ trafficking in MDMA (350 grams) for which he received a sentence of three years’ imprisonment.
Count 3 ‑ trafficking in cannabis (five kilograms) for which he received a sentence of two years’ imprisonment.
With orders for cumulation, Ramadan’s total effective sentence was seven years and nine months upon which his Honour ordered a non‑parole period of four years. Each of these offences carries a 15 year maximum penalty.
Ramadan’s charges related to activities in the middle of 2006. The sentencing judge summarised his offending as follows:
77.As far as your offending was concerned, the Crown relied on a number of particular factors over and above those I have generally summarised at the outset. The Crown submitted that you should be sentenced as having been a prolific drug dealer involved in the continuous trade of dealing in a diversity of drugs, including methylamphetamine, MDMA and cannabis. You were operating your drug trafficking business on your own account, although frequently together with regular associates. Your business of dealing in methylamphetamine (Count 1) included the following features:
·A level of involvement in the manufacture of methylamphetamine with co-accused, such as Rajic and others, in about May 2006.
·Assisting Mr Mustica in obtaining material and substances for another proposed manufacture in June 2006.
·Selling approximately 800 grams of methylamphetamine in various quantities, and purities, to numerous people. The schedule attached to Exhibit A, the Crown opening, sets out in detail those transactions.
·The quantity of methylamphetamine that you sold had a wholesale value of approximately $185,000 and a street value of approximately $240,000.
·Your activity was consistent throughout the whole period covered by Count 1.
·On two separate occasions, you sold methylamphetamine to Peter Dart, the undercover police operative. On 10 March, as I have mentioned, 56.9 grams was sold for 8000 cash. On that same day, you provided samples to Mr Dart. Again on 24 March 2006, in conjunction with Mr Jack, you sold a further 27.2 grams of methylamphetamine at 35 per cent purity to Mr Dart for $7,500.
·You were apprehended by the police in a routine interception on 10 June 2006 and found to be in possession of a nine kilogram bottle of ammonia, 27 pages of documents relating to the manufacture of methylamphetamine, 3.1 grams of methylamphetamine and 11.4 grams of ephedrine.
·When you were arrested on 28 July 2006 you were in possession of 2.4 grams of methylamphetamine for sale.
78.As far as Count 2, trafficking in MDMA is concerned, you will be sentenced on the basis that you were engaged in the business of trafficking between the dates on the presentment - 22 March and 28 July 2006. This involved, amongst other things:
·Selling approximately 350 grams, or 1.750 MDMA pills, at a wholesale price of approximately $26,250 and a street value in the range of $52,000 to $87,500.
·During the course of your activities you offered to sell MDMA to numerous people including the police undercover operative, Mr Dart.
·On one occasion you and Mr Mustica discussed the possibility of obtaining 10,000 MDMA tablets for someone by the name of Ricky.
79.As far as Count 3 on the presentment is concerned, trafficking in cannabis, again you will be sentenced on the basis that this was a business conducted by you between March and July 2006. This included selling approximately five kilograms of cannabis with a wholesale value of $24,200 and a street value of approximately $100,000.
80.In addition to these matters the Crown also relied, as an aggravating feature of your offending, on the fact that you had implicated your second son, Adam, in your activities by directing him to do various things on your behalf in connection with your drug trafficking activities. This included acting as an intermediary between yourself and clients, collecting drug money on your behalf, chasing up drug debts and even discussing the proposed bashing of drug clients over debts. Your counsel took no issue with the contention that this is an aggravating feature. You told me in your evidence that you were deeply ashamed of having involved your son in that way.
81.In summary, in sentencing you, I will be taking into account the following circumstances of your offending: As the Crown have submitted, clearly your offending is at the upper end of trafficking per se in relation to each count. The implication of your teenage son is an aggravating feature. In relation to Count 1, your involvement in proposed manufactures is a significant feature, shedding light on the extent and nature of your activity.
82.In mitigation, I take into account your plea of guilty, which is significant. You pleaded guilty on 4 May 2009, which the Crown conceded was at "an early time." I take into account your personal circumstances at the time of the offending. Your serious drug addiction does not excuse, but explains and puts in context, your offending. In particular, it tends to explain how it was that someone like you, who had previously operated successful and profitable businesses and were well-regarded by decent people, had descended so profoundly into the mire of the drug culture. I also take into account your subsequent conduct: your overcoming your drug addiction, your stable employment, your acceptance of family responsibilities and the ongoing support from your friends. All of these matters, I accept, augur well in terms of your prospects of rehabilitation. Your prospects of rehabilitation are also assessed in light of the absence of any serious prior convictions at the age of 47 and any subsequent criminal conduct.
83.Finally, I take into account that there has been a three and a half year delay from the time you were apprehended until today, during which period this matter has been hanging over your head. I will to impose a sentence that reflects, particularly in the minimum non parole period, what I regard to be your good prospects of rehabilitation and the reduced need, in your case, given what I have heard from your counsel and from you, yourself, for emphasis to be placed on specific deterrence. That is all I have to say at this stage concerning you, Mr Ramadan.
Ramadan now seeks leave to appeal his sentence and only two grounds of three original grounds were argued before the Court. They were that the sentencing judge failed to have sufficient regard to delay and its consequences in his case and that the sentences were themselves manifestly excessive.
Counsel for Ramadan argued these grounds together. He referred to a number of the mitigating factors referred to by the sentencing judge in his sentencing remarks. He conceded that Ramadan’s offending was serious.
In written submissions on Ramadan’s behalf his then counsel, Mr Dann, concentrated particularly on the delay aspect of this case, noting that his client was released on bail on 19 January 2007 and was not sentenced until 17 December 2009, a period of almost three years. He submitted that this factor should have entitled Ramadan to the maximum sentencing discount for what he described as ‘this extraordinary period of delay’.
In his oral submissions to this Court, Mr Edney, who succeeded Mr Dann, emphasised the use Ramadan had made of the period of delay to re‑order his life whilst coping with having to support five children after his first wife’s death. He referred to the fact that although he had had 28 prior court appearances he had, by the time he was sentenced, substantially been rehabilitated.
Mrs Quin, for the Crown, conceded that the sentencing judge was impressed with Ramadan’s evidence as well as that of witnesses who gave evidence on his behalf and this was reflected in his sentencing remarks. However Mrs Quin submitted that neither anything he said nor the sentences he imposed suggested that he did not give full and appropriate weight to the question of delay. She submitted that there was no cause for this Court to intervene.
In his sentencing remarks the trial judge specifically noted the delay in finalising this matter and acknowledged during that period of delay, that Ramadan had improved his position considerably by working hard, supporting his wife and five children and not using drugs. He also referred to Ramadan’s clean record during this period and stated that he specifically took this delay into account and moderated the sentence he imposed on Ramadan, particularly the non-parole period which he was imposing.
Counsel referred to a number of cases in his written submissions where the effect of delay was discussed. They included R v Merrett, Piggott andFerrari[2] in which Maxwell P pointed out that the relevance of delay in sentencing lies not in there being either an adequate or an inadequate explanation as the cause of such delay and that what matters is whether the prisoner had demonstrated, during that delay period, that he had used the time profitably with respect to his rehabilitation. In this case the sentencing judge gave entirely appropriate consideration to Ramadan’s effective rehabilitation during the period of delay whilst not losing sight of the seriousness of his offending.
[2](2007) 14 VR 392.
It is impossible to conclude that the sentencing judge did not give appropriate and sufficient weight to this sentencing factor nor, having regard to the seriousness of the offences with which he was dealing, could it be said that he imposed a manifestly excessive sentence. I would refuse leave to appeal.
Pat Boca
Boca was 33 at the time of his offending and 36 at the time of sentence. He had no prior convictions. He pleaded guilty to one count of trafficking methylamphetamine (822 grams) for which he received a sentence of six and a half years’ imprisonment with a non‑parole period of three and a half years. He also faced one count of possession of 1.3 grams of cannabis, one count of possession of 0.4 grams of cocaine and one count of possession of a pressure washer in respect of each of which he was fined.
The sentencing judge summarised the case against Boca as follows:
100.Mr Boca, the case against you is that you were engaged, as an associate of Mr Mustica, in trafficking methylamphetamine between June 2006 and July 2006. Upon apprehension on 28 July you were also found to be in possession of a small quantity of cannabis, a small quantity of cocaine, and two pressure washers, which are the subject of Counts 2 to 4 respectively. They are very minor matters compared with Count 1, which is principally what this case is all about from your point of view.
101.At the time of your offending you were aged 33. You are now aged 36. You were an associate of Mr Mustica, however the Crown case is that your drug trafficking business extended beyond your dealings with Mr Mustica. Drug diaries and ledgers seized at your business and at your home reveal that you were also engaging in trafficking methylamphetamine with various other people. During the course of your plea in mitigation you challenged this second aspect of the Crown case and gave evidence, not very successfully. At the end of the day there was no doubt in my mind, and your counsel was forced to concede, that I would have to sentence you on the basis that you were in fact involved in trafficking not only with Mr Mustica, but with a number of other people whose names, details and codes were recorded in your diaries and ledgers.
102.In total, inclusive of your dealings with these other people and Mr Mustica, it was alleged that you trafficked in approximately 822 grams of methylamphetamine, which had a value of about $190,000. As far as Mr Mustica was concerned, on 9 July 2006, you were with him when he sold two ounces of what purported to be ice to the covert operative, Mr Nguyen, for $13,000. Again, on 16 July you and Mr Mustica sold a further two ounces of ice to Mr Nguyen, and you also provided a sample. And further, on 24 July, Mr Mustica sold two ounces of ice to Mr Hung for $13,000. You were the supplier of that ice. On 28 July $300 in cash was seized from your workplace, and $7200 seized from your home, which was identified by serial numbers as having been part of the money paid by Mr Nguyen to Mr Mustica. In addition to these particular transactions, Exhibit 2 contains the details of about 15 further separate transactions with Mr Mustica involving the trafficking of methylamphetamine. The independent dealings, not involving Mr Mustica, revealed in your notebook and diary entries disclosed sales of methylamphetamine over the relevant period totalling about 420 grams. The details of those transactions were set out in the Crown’s opening, which was tendered as Exhibit 1. There is no need for me to rehearse them now.
103.As far as Count 2 was concerned, 1.3 grams of cannabis was seized from your home on 28 July 2006. The police also located and seized .04 grams of cocaine, the basis of Count 3. Two Karcher pressure washers were also located on the premises, which forms the basis of Count 4. It was agreed that the value of those pressure washers was about $150 each.
Boca pleaded guilty at an early stage of this proceeding, although, as the sentencing judge noted, he unsuccessfully contested some of the facts of his offending by giving evidence before the sentencing judge. So unconvincing was this attempt, ultimately his counsel did not press it.
In sentencing Boca, Judge Allen took into account a large number of factors favourable to him including his stable family of origin, his proven intellectual capacity, his excellent work record, his diligent attendance at a drug and alcohol rehabilitation program and his willingness to re‑engage in previously abandoned sporting activities including becoming involved in the training of young softball and baseball players. His Honour accepted the opinion of Mr Jeffrey Cummins, the psychologist, that Boca had excellent prospects of rehabilitation.
Boca sought leave to appeal his sentence on three grounds; manifest excess, a failure to accord him parity in his sentence with co‑accused, Bayarni, Ibrahim and Vincent Mustica and the need to now take into account a medical condition, the seriousness of which was only recently realised and which, it is argued, will result in his imprisonment being more burdensome.
Manifest excess
To establish this ground the applicant would have to show that the sentence imposed on him demonstrated a error by its magnitude. In support of this ground his counsel pointed to the positive features of his case to which reference has already been made. But he trafficked 822 grams of methylamphetamine, a very significant amount and a very serious offence.
The sentence is not manifestly excessive having regard to the maximum sentence, the criminality involved in these activities and the potential harm to the community in releasing this amount of a dangerous substance on to the market.
Disparity
Boca’s counsel sought to demonstrate an unacceptable disparity between Boca’s sentence and that of Bayarni, Ibrahim and Vincent Mustica. He outlined the sentence and the circumstances of each of his chosen comparators and submitted that an unacceptable disparity was demonstrated.
Whilst it is true that each of those comparators had a drug habit, trafficked methylamphetamine and, in the case of two of them, had no prior convictions, the essential facts distinguishing them from Boca and accounting for differences in their sentences was the amount trafficked, their younger age and, with respect to two of them, their much earlier pleas of guilty – unaccompanied by an unsuccessful attempt to minimise their involvement, unlike Boca.
Boca trafficked 822 grams, whereas the others trafficked 558, 350 and 270 grams respectively. Accepting that each of the comparators also committed offences of trafficking in other drugs, none of the sentences they received for trafficking in methylamphetamine was so materially disparate so as to engender a legitimate sense of grievance in Boca or, for that matter, in each other.
The Crown’s written submission pointed also to other disparities between Boca and his co‑accused, including that he was a wholesale trafficker and higher in the tree of distribution and supply of methylamphetamine than any of his suggested comparators. Also, submitted the Crown, Boca’s plea of guilty must be seen in light of his false denials to police as to his offending and the false sworn evidence he gave to the sentencing judge that he only trafficked to Steven Mustica.
It does not need to be stated that the principle of parity in sentencing does not require identical sentences to be imposed even on co‑offenders. The differences between offenders are as important as their similarities.
Taking these matters into account, Boca cannot complain of a justified sense of grievance as to his sentence when compared to the others sentenced with him. This ground is not made out.
Illness
The final matter which was argued in support of Boca’s application for leave concerns his health and, in particular, his cardiovascular health. There were before the Court two medical reports of a Dr John Gall, a forensic physician who examined Boca in Loddon Prison on two occasions. The first was on 8 September 2010 when he took a history which included that Boca had suffered a myocardial infarct in 2000 and been treated at St Vincent’s Hospital. Boca was then only 26 years of age.
At the time he was seen by Dr Gall, Boca was complaining of recurrent chest pain and numbness in his left arm. The pain lasted up to 30 minutes at a time. Dr Gall also examined Boca’s prison medical record which noted an abnormal ECG on 13 February 2010 and an admission to hospital with chest pain in March of last year, 2010.
Dr Gall’s second report of 4 February 2011 notes that in November 2010 Boca collapsed and was taken to Castlemaine Hospital. The doctor who treated him then, a Dr Maze, and a doctor who had conducted a stress echocardiogram in December 2010 both recommended review by a cardiologist, as had Dr Gall after his earlier visit. These matters are all apparent from Boca’s medical records at Loddon Prison.
No explanation has been proffered as to why this referral has not been effected to date, despite the potential seriousness of Boca’s condition.
The Crown has conceded that Dr Gall’s reports have thrown light on Boca’s cardiac condition which, although it was known at the time of sentence, its significance was not fully appreciated. The Crown accepts that having to serve a term of imprisonment whilst suffering from a serious medical condition with potential life‑threatening consequences which is not being treated would render such imprisonment harsher. This is not only because of the physical symptoms described but also because of anxiety generated by being unable to do anything about the situation because of confinement.
In the circumstances, this situation warrants a grant of leave to appeal and an adjustment to the applicant’s sentence to reflect these matters. However, it should be pointed out that such a course in this Court is exceptional and brought about only because the reports of Dr Gall have uncovered the hitherto unrealised extent of Boca’s cardiac problems. The failure of the prison authorities to act on medical advice as to Boca’s need for review by a cardiologist is not only regrettable but a breach of duty as his lawful custodians. The legal custodians of persons serving a term of imprisonment have a legal duty to ensure that they are treated humanely and have access to the medical care and treatment reasonably available to members of the wider community. This punishment is deprivation of their liberty, not deprivation of the ordinary entitlements of a citizen to appropriate medical attention.
In the circumstances I would grant Boca leave to appeal against his sentence for trafficking methylamphetamine, quash that sentence and substitute a sentence of six years’ imprisonment with a non‑parole period of three years.
ASHLEY JA:
I agree in the disposition of these two applications as proposed by my brother Bongiorno and I agree with his reasons.
I add only that in respect of the applicant, Boca, it is, in my opinion, a close run thing whether the applicant, later appellant, ought to have been allowed to rely upon the uncovering of fresh information throwing light on a matter known, to an extent, at trial. It appears to me that with any sort of substantial inquiry, a good deal might have been learned before the plea was conducted concerning Boca’s cardiovascular health, or lack of it, and ought properly to have been the subject of submission on the plea.
The orders that the Court will make are as follows.
In the case of the applicant Ramadan, the application for leave to appeal against sentence is refused.
In the case of the applicant Boca:
1. The application for leave to appeal against sentence passed on 16 December 2009 is granted.
2. The appeal is treated as instituted, heard instanter and allowed in part.
3. The sentence passed on 16 December 2009 on Count 1 is set aside and in lieu thereof the appellant is sentenced on that count to six years’ imprisonment.
4. The other sentences imposed below are confirmed.
5. The Court fixes a non‑parole period of three years.
6. The other orders made below are confirmed.
It is declared that the period of 576 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that it be noted in the records of the Court the fact that declaration was made and its details.
‑ ‑ ‑
5