Ramezanian v The Queen
[2013] VSCA 71
•4 April 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0035
| JAVAD RAMEZANIAN | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | HARPER and PRIEST JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 April 2013 | |
DATE OF JUDGMENT: | 4 April 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 71 | |
JUDGMENT APPEALED FROM: | DPP v Ramezanian (Unreported, County Court of Victoria, Judge Parrish, 8 March 2013) | |
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CRIMINAL LAW − Sentence − Application for leave to appeal − One charge of importing a marketable quantity of a border controlled substance (morphine (198.9 grams), codeine (77.5 grams) and thebaine (52.7 grams)) contrary to s 307.2(1) of the Criminal Code (Cth) − One charge of possessing a border controlled drug reasonably suspected of having been unlawfully imported (opium) contrary to s 307.10(1) of the Criminal Code (Cth) − Plea of guilty − Total effective sentence of 12 months’ imprisonment, to be released after serving three months and upon giving a recognizance of $2,000 to be of good behaviour for two years − Fresh evidence − Exceptional circumstances − Applicant’s 11 year old son diagnosed with leukaemia on the day the applicant sentenced − Exercise of residual discretion − Leave granted and appeal allowed − Date for release on recognizance varied to equate with time already served − Markovic v The Queen [2010] VSCA 105 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Respondent | Mr J Gullaci | Commonwealth Director of Public Prosecutions |
HARPER JA:
This is an application for leave to appeal against sentence. The applicant is presently serving a total effective sentence, imposed as recently as 8 March this year, of 12 months’ imprisonment, to be released after serving three of those 12 months and upon his giving a recognisance of $2,000 to be of good behaviour for a period of two years.
There is one ground of appeal. It is, in effect, that as the result of fresh evidence, not available at the plea, concerning the subsequently diagnosed serious illness of the applicant’s elder son (a boy aged 11) and the consequential exceptional family hardship − and the increased hardship of imprisonment to the applicant himself − the applicant should be re-sentenced.
This is not an easy ground to make good, especially given that the applicant pleaded guilty to serious offences and the sentence imposed upon him was merciful.
The applicant had on the day of his conviction pleaded guilty to two charges. The first was that of importing on 14 March 2012 marketable quantities of each of morphine, codeine and thebaine. Section 314.4(1) of the Criminal Code (Cth) provides that a marketable quantity of each of morphine and of thebaine is two grams, and a marketable quantity of codeine is 10 grams. By comparison, the applicant imported 198.9 grams of pure morphine, 77.5 grams of pure codeine and 52.7 grams of pure thebaine. In doing so, he exposed himself to a maximum penalty of 25 years’ imprisonment.
The second charge to which the applicant pleaded guilty was that of being in possession of opium that was reasonably suspected of being unlawfully imported. The maximum penalty for this offence is two years’ imprisonment.
Despite the undoubted seriousness of the offending, the sentencing judge was justified in being merciful. His Honour took into account a number of factors:
· The hardships of the applicant’s early life in Iran, to which were added (i) nasal fractures which inhibit normal breathing, (ii) spinal stiffness which first became symptomatic at the age of 14 and was exacerbated by his Iranian military service, and (iii) a knee and back injury following a motorcycle accident in Teheran which has ever since resulted in chronic low back pain.
· His arrival in Australia with his wife in 2000 when both were refugees and he was 27 years of age (he was granted citizenship in 2005 or 2006).
· He and his wife have had two children together, both sons and both born in Australia. The elder, Soheil, was born on 22 November 2001 and is now 11. The younger, Souroush, is almost 5, having been born on 25 May 2008.
· He and his wife separated in late 2011. The sons were, until his incarceration, in his full time care.
· Although their mother has contact with her sons, no arrangements about their care during his incarceration were made between her and the applicant or otherwise.
· The applicant’s back pain has impacted upon his work history, at least in that it caused him to cease work as a taxi driver in 2004 and now renders him unfit for any work.
· The applicant’s parents visited him after his separation from his wife. His mother has returned to Iran, but his father remains in Melbourne. However, his father is elderly, cannot speak English, and cannot drive.
· The applicant’s medications to ease his back pain include OxyContin, Mersyndol Forte, Panadeine Forte and Oxychodone-Hydrochloride. A spinal specialist, Dr Brian Lovell, is of the opinion that the applicant suffers from chronic, severe, discogenic pain (‘seven out of ten’) which requires multi-disciplinary pain clinic management (which has a waiting period of 12 months).
· The applicant has no prior convictions.
· A small proportion of the drugs, the subject of the charges, were given to a friend in return for assistance given by that friend to the applicant. It is not known whether the friend distributed his proportion for commercial gain or otherwise. The balance of the drugs were used by the applicant to control his pain.
· The applicant suffers from ‘some degree of depression and psychological problems, and some application of the principles set out in R v Verdins[1] is appropriate’.[2]
· The applicant pleaded guilty at an early stage, and ‘there are clearly rehabilitation prospects’.[3]
[1](2007) 16 VR 269.
[2]Reasons for sentence, [37].
[3]Ibid, [39].
Importantly for present purposes, his Honour did not accept that there were ‘exceptional circumstances’ in relation to the effect which the applicant’s incarceration would have on his family, and in particular his sons, such as to warrant a reduction in the sentence which would otherwise be appropriate. The judge added:
In this respect, there is no evidence before me as to the mother of [the applicant’s] children and whether she could care for them if [he] were imprisoned.[4]
[4]Ibid.
On the facts outlined above, there is strong evidence for the proposition that the sentence imposed upon the applicant was merciful, albeit that the mercy was justified by the applicant’s very serious back pain as his principal inducement to become illegally involved with opium-base analgesics. It follows that the applicant must make out an exceptionally strong case for any reduction in his sentence. His application for leave to appeal must be seen in this light.
I am nevertheless of the opinion that leave to appeal should be granted, that the appeal should be heard instanter, and that it should be allowed. My reasons follow.
The Court now has before it affidavit evidence from the applicant’s wife, Zainab Tehrani, and from his solicitor, Sarah Westwood. That of his wife was affirmed 11 days ago, on 25 March 2013. Her evidence is crucial to the success of this application, although the evidence of Ms Westwood is important too.
Ms Tehrani trained in Iran as a dentist. She is now a full-time student at The Victoria University of Technology, where she is in the final year of an undergraduate course in dermotherapy. She supports herself, and contributes to the support of her sons, through casual work as a dermotherapist. I accept that her spare time is rare.
After separating from the applicant, she found accommodation which she could afford, but which was too small to include the children. They therefore remained living with their father, of whom both are very fond, until his imprisonment; but their mother had and has daily contact with them. This included taking Soheil to school each day.
The applicant’s imprisonment came as a shock to his wife, and is something of which his sons are not yet aware. She was only told by her husband on the morning of the day on which he was sentenced that imprisonment was the likely outcome of his plea. He asked her to take care of his visiting father and the two boys.
8 March, the day of sentence, was also a day on which Soheil was too ill to attend school. Indeed, on collecting him from school the previous day, his mother realised that he had such a high fever, accompanied by headaches and a heart pounding to the extent that she could hear it, that an immediate visit to a doctor was necessary. Meningitis was the first tentative diagnosis.
Over the next 24 hours Soheil’s symptoms worsened. Armed with a letter of referral from the family’s general practitioner, Ms Tehrani took her son to the Austin Hospital, where he was admitted into an emergency ward. Blood tests indicated very low white and red blood cell counts. A transfusion was given on 12 March, but further tests on 18 March revealed that the transfusion was unsuccessful. As a consequence, the patient was, on 20 March, admitted to the Royal Children’s Hospital. Bone marrow testing done at that hospital that day confirmed that Soheil suffers from leukaemia.
Immediate, radical treatment for this illness became imperative. On 21 March, following consultation with the applicant and the giving of his approval, Soheil underwent further bone marrow testing, this time under general anaesthetic, together with the first of what will be 28 days of aggressive chemotherapy. The further course of his medical and home care is described by Ms Westwood in an affidavit sworn by her today, 4 April 2013. Ms Westwood deposes as follows:
4.Ms Tehrani told me that Soheil had been discharged by the Royal Children’s Hospital into her care on 25 March 2013 and was subject to regular re-admission as a day patient. He was admitted in this capacity at 7 am on 28 March 2013 where he underwent medical procedures under general anaesthetic including a bone marrow biopsy, the implantation of a port into his chest for delivery of medication and blood transfusion. He received intravenous chemotherapy treatment while under anaesthetic and was discharged home at 6.30 pm having been treated with Endone, a pain killer.
5.Soheil is required to be re-admitted as a day patient to the Royal Children’s Hospital on 4 April 2013 for further medical procedures including intravenous chemotherapy treatment and blood tests and a doctor will consult with Ms Tehrani regarding the bone marrow biopsies taken the week previous.
6.Between the day admissions to Royal Children’s Hospital Ms Tehrani informed me that she is required to administer chemotherapy treatment orally morning and night by tablet. In addition to the chemotherapy Ms Tehrani is required to administer antibiotics to Soheil as prescribed and administer mouthwashes 7 times per day to prevent bacterial infection and ulceration in the mouth. She is also required to administer prescribed pain relief medication including Endone and OxyCodeine and Coloxyl to treat constipation which she has been informed is a known side effect of chemotherapy.
7.Ms Tehrani informed me that Soheil experiences weakness, including loss of sensation in his legs which causes him to be unable to walk unassisted and severe nausea for approximately three days after each intravenous chemotherapy treatment is administered at hospital. For these periods she informed me that she must administer Soheil an anti nausea medication called Zofran Zyeis every few hours to prevent continuous vomiting and she must monitor his fluid intake.
8.Ms Tehrani informed me that as a result of the care she must provide Soheil and her youngest son Soroush, she has no opportunity to undertake paid work and she believes that is likely to result in her losing her employment. She informed me that she is now in receipt of a carer’s allowance from Centrelink, which is a slightly higher payment than the parenting payment.
Exhibits to earlier affidavits sworn by Ms Westwood included a report dated 25 March prepared by Dr Sarah Curnow, Senior Resident Medical Officer at the Royal Children’s Hospital. In that report, Dr Curnow said, among other things:
The treatment for [the form of leukaemia from which Soheil suffers] involves chemotherapy … over approximately two and a half years, the first six months of which is extremely intense and involves significant amounts of time in hospital either as an inpatient or as a day patient.
The disease and treatment course will have a significant impact on Soheil and his family and as such, family support is extremely important and valuable during this time..
Another exhibit included in the material put to the Court by Ms Westwood was a ‘To whom it may concern’ letter written by Helen Stewart, a senior social worker in the Children’s Cancer Centre of the Royal Children’s Hospital. In that letter, which is dated 27 March 2013, Ms Stewart said in relation to Soheil:
Having a child diagnosed with cancer is a very stressful event for all parents and places significant demands on a parent both physically and emotionally. As well as caring for Soheil, his mother … must also care for Soheil’s four year old brother. The family do not have ongoing family support in Melbourne to assist.
The stress of Soheil’s diagnosis is compounded by the absence of his father, Javad. A return of Javad to the family home would relieve [his wife] of the pressure of being the sole carer for her two sons and would offer practical and emotional support to [his wife] and their two sons as Soheil commences his chemotherapy.
The evidence available to this Court also discloses, unsurprisingly, that both boys are puzzled and upset at the absence of their father. They have been told only that he is in Iran.
This, of course, is evidence which was not and could not have been available to the sentencing judge on 8 March. The principles to be applied upon a ground relying upon fresh evidence of the kind relied upon here were conveniently set out by Redlich JA (with whom Maxwell P and Neave JA agreed) in Nguyen:[5]
[5]R v Nguyen [2006] VSCA 184, [36] (citations omitted). See also R v Babic [1998] 2 VR 79; R v Palmieri [1998] 1 VR 486; R v WEF [1998] 2 VR 385; R v Yaldiz [1998] 2 VR 376; R v Zehir (1998) 104 A Crim R 109; R v Mitchell (2000) 112 A Crim R 315; R v Spagnolo (2000) 114 A Crim R 98; R v Ta [2002] VSCA 142; R v McLachlan (2004) 8 VR 403; R v Ahmed [2005] VSCA 279; R v SH [2006] VSCA 83; Cardonav The Queen [2011] VSCA 58; AWP v The Queen [2012] VSCA 41.
It is common ground that this Court may, in limited circumstances – sometimes described as ‘rare and exceptional’ – permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i) the new evidence must relate to events which have occurred since the sentence was imposed;
(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
It will be readily observed that the fresh evidence deposed to by Ms Tehrani and Ms Westwood demonstrates the true significance of facts in existence (the arrangements for the care of the children) at the time that the applicant was sentenced. Thus the question for the Court is whether a different sentence should be substituted so as to avoid a miscarriage of justice. In my opinion it should.
There must always be a place in sentencing for the exercise of mercy ‘where a judge’s sympathies are reasonably excited by the circumstances of the case’.[6] This is a proposition of long standing and high authority, repeatedly affirmed in this Court.[7]
[6]R v Osenkowski (1982) 30 SASR 212, 212–3 (King CJ).
[7]Cobiac v Liddy (1969) 119 CLR 257, 269; R v Kane [1974] VR 759, 766; R v Clarke [1996] 2 VR 520, 523 (Charles JA, with whom Winneke P and Hayne JA agreed); Director of Public Prosecutions (Cth)v Carter [1998] 1 VR 601, 607 (Winneke P); R v Miceli [1998] 4 VR 588, 592 (Tadgell JA), 594 (Charles JA). For a recent example, see DPP v Najjar [2009] VSCA 246, [11].
It has, however, long been the position at common law that, unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration. That position was reaffirmed by this Court in Markovic v The Queen.[8] The Court summarised its reasons as follows:
1.Reliance on family hardship – that is, hardship which imprisonment creates for persons other than the offender – is itself an appeal for mercy.
2.Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.
3.Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.
4. The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.[9]
[8][2010] VSCA 105.
[9]Markovic v The Queen [2010] VSCA 105, [5].
The ‘exceptional circumstance’ test
As this Court said in Markovic, the case law reveals that the ‘exceptional circumstances’ test was developed in response to several considerations. First, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependants. Secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime.[10] Thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less.[11] Fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would ‘defeat the appearance of justice’[12] and be ‘patently unjust’.[13] Hence it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.[14]
[10]R v Polterman (Unreported, Court of Criminal Appeal Victoria, 2 August 1974) (‘Polterman’); R v Panuccio (Unreported, Court of Appeal Victoria, 4 May 1998).
[11]Professor Richard Fox, When Justice Sheds a Tear: The Place of Mercy in Sentencing (1999) 25 (1) Monash University Law Review 1, 17.
[12]R v Pozvek (Unreported, Court of Criminal Appeal, Victoria, 2 September 1983); Yates v The Queen (1998) 99 A Crim R 483, 487.
[13]R v Boyle (1987) 34 A Crim R 202.
[14]R v Wirth (1976) 14 SASR 291, 294 (Bray CJ).
The exceptional circumstances test has been adopted throughout Australia as governing the position at common law.[15] There is likewise a uniform national position in relation to sentencing for Commonwealth offences. The requirement in s 16A(2)(p) of the Crimes Act 1914 (Cth) – that the Court consider ‘the probable effect’ of the sentence on family and dependants – has been construed as being subject to the exceptional circumstances test.[16]
[15]R v Wirth (1976) 14 SASR 291, 295–6 (SASCFC); Boyle v The Queen (1987) 34 A Crim R 202, 205–6 (WACCA); R v Edwards (1996) 90 A Crim R 510, 516–7 (NSWCCA).
[16]R v Carmody (1998) 100 A Crim R 41, 45; R v Togias (2001) 127 A Crim R 23, 25–6 and the cases there cited.
But that test will, where appropriate, accommodate itself to differing degrees of criminality. This important rider to the general position was referred to by Winneke P (with whom Brooking and Charles JJA agreed) in R v Panuccio.[17] In response to a submission that the sentencing judge had failed to give proper weight to the effect that the applicant’s incarceration would have upon his elderly and disabled parents, his Honour said:
It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances, because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration.[18]
[17](Unreported, Court of Appeal Victoria, 4 May 1998).
[18]Ibid 6-7 (emphasis added); see also Holland (2002) 134 A Crim R 451, 452, 454, 460–1.
In one sense, the mercy already shown to the applicant is a basis for examining with especial care a further application for mercy. But the sentencing judge’s application of mercy in this case was warranted by the applicant’s problems with severe pain. This circumstance was one about which his Honour had evidence given by a forensic psychologist, Mr Jeffrey Cummins. His Honour referred to it in his reasons for sentence. The judge quoted[19] Mr Cummins as saying:
In my opinion, at the time of offending [the applicant] was suffering from an adjustment order and a pain disorder. At the time of offending [he was and] currently he is dependant on opiate analgesia.
In my opinion it is reasonable to conclude on clinical grounds his perception and judgment were compromised because of his chronic back pain and associated pain disorder and depression. … Strictly speaking as a clinician it is my opinion that there was a nexus between his offending and his mental health in the sense he committed the offending to facilitate the use of opiate analgesia to manage chronic pain and anxiety and depression.
[19]Reasons for sentence, [28].
Reliance on family hardship is indeed properly to be understood as a request for mercy, since it concerns neither the offender nor the offence.[20] As Professor Richard Fox said in an article entitled ‘When Justice Sheds a Tear: The Place of Mercy in Sentencing’,[21] and which this Court in Markovic described as ‘illuminating’:
The true privilege of mercy is to be found in the residual discretion vested in each sentencing [judge or magistrate] which allows a downward departure from the principle of proportionality outside the principles of mitigation. It can be utilised in exceptional circumstances to allow weight to be given to factors which are ordinarily not regarded as relevant mitigating considerations.
[20]R v Berlinsky [2005] SASC 316, [72].
[21](1999) 25 (1) Monash University Law Review 1.
In my opinion, the fresh evidence to which Ms Tehrani and Ms Westwood depose forms a proper basis for the exercise of the residual discretion vested in this Court to allow an exceptional departure from the principle that family hardship is to be disregarded as a sentencing consideration.
The applicant also relies upon the fresh evidence as indicating that imprisonment will be harsher on him than the sentencing judge could have
anticipated. Although there is no direct evidence of the impact upon him of the crisis in which his family now finds itself, the Court is I think justified in accepting that he cannot but be very distressed by the change in circumstances which has come about since his incarceration.
In this context, I turn again to the judgment of this Court in Markovic. The Court there said:
The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. The offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor – for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially affects the assessment of the need for specific deterrence or of the offender’s prospects of rehabilitation.[22] These are conventional issues of mitigation, and they are not subject to the ‘exceptional circumstances’ limitation.[23]
[22]See R v Williams [2004] VSC 429, [16].
[23]Markovic, [20].
It seems to me that this consideration is of itself sufficient to warrant this application for leave to appeal being allowed, the appeal being heard instanter and allowed, and the applicant re-sentenced. He is in my opinion entitled to be released from imprisonment immediately. His sentence should otherwise stand.
PRIEST JA:
I agree.
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