Salera v The Queen
[2011] VSCA 368
•8 November 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0250
| PETER SALERA | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
---
JUDGES: | BUCHANAN and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 November 2011 | |
DATE OF JUDGMENT: | 8 November 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 368 | |
JUDGMENT APPEALED FROM: | DPP v Salera (Unreported, County Court of Victoria, Judge Patrick, 12 July 2010) | |
---
CRIMINAL LAW – Sentence – Attempt to traffick in not less than a commercial quantity of methylamphetamine and trafficking in methylamphetamine – Plea of guilty – Total effective sentence of imprisonment for four years with a non-parole period of two years and six months – Parity – Significance of attempt to traffick in a commercial quantity – Difference in maximum penalty set by Parliament – Appeal dismissed – No point of principle.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D A Dann | Michael J Gleeson & Associates |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I will invite Harper JA to deliver the first judgment.
HARPER JA:
The appellant has pleaded guilty to two drug‑related offences. The first is that he attempted to traffic in not less than a commercial quantity of methylamphetamine. The second is that he trafficked in that drug. It is not an element of the second charge that a commercial quantity was involved.
The first offence attracts a maximum penalty of 25 years’ imprisonment. The sentence in fact imposed upon the appellant on 12 July 2010 was that he be imprisoned for 4 years. The maximum penalty for the second offence is 15 years’ imprisonment. The appellant was, however, required to serve only 12 months. There being no cumulation, the total effective sentence was 4 years’ imprisonment. The appellant was ordered to serve 2 years and 6 months before becoming eligible for parole.
On 15 April 2011, Redlich JA granted the appellant leave to appeal against the sentence. His Honour was of the view that it was arguable that there was an inappropriate disparity between, on the one hand, the sentences imposed upon the appellant and, on the other, those imposed upon the co‑offender, named David Dicecco. His Honour also allowed the appellant to argue on appeal that there was a like disparity between the punishment to which the appellant was subjected and that given to another co‑offender, a man named Christopher Ross.
As is apparent from the above, the appellant did not operate alone. There were, indeed, at least five other members of his drug‑dealing consortium, of whom two were Dicecco and Ross. In all, the consortium operated from five locations. Of these, the appellant provided and operated out of two – a property owned by his parents at Safety Beach, and his workplace. The latter was a factory located at Fawkner. Dicecco was one of those who also used the Safety Beach premises as the centre for the manufacture of methylamphetamine. He also used, for like criminal purposes, his factory at Hallam, and another – in which he did not have a proprietary interest – in Oak Park.
Unlike the appellant, none of his co‑offenders were convicted of an offence which involved a commercial quantity of a drug. The appellant therefore stands alone in that respect. Dicecco was convicted of attempting to traffic (simpliciter), although he was also convicted of two counts of possession of articles for the purpose of trafficking. Ross was convicted of trafficking, as well as of possession of cannabis. He was, on 23 October 2009, sentenced to 21 months’ imprisonment on the charge of trafficking, and 2 months’ imprisonment on the charge of possession of cannabis. These were to be served concurrently. The total effective sentence was therefore 21 months’ imprisonment, 12 months of which was suspended for 12 months.
David Dicecco was on 12 October 2010 ordered to serve 2 years in prison on the charge of attempting to traffic in methylamphetamine, with a further 8 months for one of the two charges of possessing articles for the purpose of trafficking. Yet another 8 months was imposed in relation to the second such charge. All three sentences were to be served concurrently. The total effective sentence imposed upon Dicecco was therefore 2 years’ imprisonment. He was required to serve 12 months’ imprisonment before becoming eligible for parole.
It is the appellant's contention that both Dicecco and Ross received more lenient sentences than did he, and that in his case, therefore, the sentencing judge ‘erred in the application of the parity principle’.
The judge who sentenced the applicant also sentenced Dicecco. Her Honour found that Dicecco's involvement ‘was greater than Mr Salera's in that [Dicecco was] more active’. As against this, however, the appellant was charged with attempting to traffic in not less than a commercial quantity of methylamphetamine, while the charge proffered against Dicecco did not involve a commercial quantity of that drug. Hence it could not, in her Honour's opinion, ‘be proved that Dicecco had an expectation that the amount of drugs that would be produced would be at least a commercial quantity’.
Given the different charges faced by each offender and, more particularly, given the different guilty pleas entered by each, her Honour’s conclusion about the differing expectations was inevitable. The appellant nevertheless argues that, for sentencing purposes, the difference is of very little relevance. More importantly, he maintains, both men had to be sentenced on the basis that no methylamphetamine was actually produced from the clandestine laboratory at Safety Beach from which both operated.
It is true that the Safety Beach premises did not produce any product before the police moved in. It does not follow, despite the appellant’s assertion to the contrary, that the greater maximum penalty for the appellant’s offence (involving a commercial quantity of the drug) ‘should have very little significance in the parity/disparity analysis’. Parliament has said that there is an important difference between the two offences. In the one case (that of the offender attempting to deal in a commercial quantity) Parliament clearly envisages the possibility of a significantly more severe punishment than in the other. It follows that, where a difference in the attempt to traffic is, as between the appellant and Dicecco, that the former attempted to traffic in a commercial quantity while the latter did not, and where otherwise the gravity of their offending is equal, any failure to differentiate in sentence would amount to a failure to give effect to the will of Parliament. And, in the absence of some appropriate reason to the contrary, the differentiation would necessarily have to reflect – in a way that was proportionate to the gravity of the offending – the difference of 10 years in the maximum penalties prescribed by Parliament.
The appellant accepts that Dicecco’s total effective sentence was reduced by 18 months for reasons which are sufficient to explain the reduction, but which do not apply to the appellant. When, for the purposes of the parity/disparity comparison, one adds those 18 months to the sentence imposed upon Dicecco, the difference is 6 months’ imprisonment.
The appellant maintains that that (small) difference cannot be justified on the basis that the appellant pleaded guilty to the more severe charge. In support of this submission, the appellant points to passages in the judge's reasons for sentence in the case of Dicecco, and like passages in her reasons for the sentence imposed upon the appellant, where her Honour made clear that, as she found the relevant facts, Dicecco was more actively involved in the drug dealing consortium than was the appellant. Not only that, but Dicecco was also the more senior in the hierarchy of the consortium and the appellant was, in the words of the appellant’s written submissions, ‘to some extent’ subservient to him.
In my opinion, the distinction – while it was undoubtedly one of which the sentencing judge properly took note – was not in either set of sentencing reasons delineated with such precision as to enable this Court to conclude that her Honour gave it insufficient weight. In her reasons for sentence the sentencing judge, when addressing the appellant, described the offending as part of a ‘relatively sophisticated operation’ and ‘a very serious attempt over a period of time to manufacture a significant quantity of illegal drugs’. Moreover, his role ‘was significant in that [he] provided the venue, transported chemicals and equipment, regularly visited the site, and [was] overheard discussing the progress of operations with others, including the accused … Dicecco’.
In short, there appears to be no clear evidence of the appellant’s position in the drug‑dealing hierarchy, save that (as the sentencing judge concluded) the appellant was ‘subservient’ to others, including Dicecco, and that the latter was, while the appellant was not, among the ringleaders of the operation. What is clear is that the sentencing judge was aware of the distinction, and must be supposed to have taken it into account when she came to her sentencing decisions. There is, in my opinion, nothing in those decisions themselves to indicate that her Honour fell into error in this respect.
The appellant submits that significance should be given to the fact that the appellant operated out of the Safety Beach and Fawkner premises, whereas Dicecco used not only Safety Beach, but also Hallam and Oak Park. But without evidence of the comparative extent of usage, one must return to the fact that the appellant pleaded to attempting to traffic in a commercial quantity of the drugs, while Dicecco pleaded to attempting to traffic simpliciter.
Dicecco has a more significant criminal history than the appellant. The latter had never before been punished by imprisonment. By contrast, Dicecco was in 1997 sentenced to three years’ imprisonment for cultivating cannabis.
Her Honour was aware of this difference in the circumstances of the two offenders. In my opinion, it cannot be said that, having taken it into account, the sentencing judge must nevertheless have somehow fallen into error. While her Honour ought to have fashioned the appellant's sentence, and that imposed upon Dicecco, with that in mind, there is, in my opinion, nothing in the sentences themselves to indicate that she failed in this respect.
Appellate intervention on the basis of a failure to accord parity where parity is appropriate is warranted only where the difference between the two sentences is manifestly unjustifiable, and thus is such as to engender a justifiable sense of grievance, or to give the appearance in the mind of an objective observer that justice has not been done.[1] That, in my opinion, is not the case here.
[1]R v Taudevin [1996] 2 VR 402, 404 (Callaway JA).
There is another consideration. Even if the principle of parity has been infringed, it cannot justify the imposition of a sentence that is manifestly inadequate. In my opinion, any sentence much less than that imposed upon the appellant in this case would fall into that category. In my view, the sentences imposed upon him were merciful. There is no reason to doubt the accuracy of her Honour’s conclusion that the appellant was involved in ‘a very serious attempt, over a period of time, to manufacture a significant quantity of illegal drugs’. He faced a maximum penalty of
25 years’ imprisonment and received but four.
The issue of parity as between the appellant and Ross was but faintly pressed. In essence, the offending of each was of similar order of gravity, save that the appellant attempted to traffic in a commercial quantity of methylamphetamine whereas Ross trafficked in the drug, but in less than a commercial quantity. The difference in sentences as between the two can be justified on that basis.
In my opinion, for these reasons, the appeal should be dismissed.
BUCHANAN JA:
I agree.
The order of the Court is that the appeal is dismissed.
---
0
0
0