Scott v The Queen
[2010] VSCA 290
•29 October 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2009 0921
| MICHELLE SCOTT | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 20 October 2010 |
| DATE OF JUDGMENT | 29 October 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 290 |
| JUDGMENT APPEALED FROM | R v Scott & Beckerton (Unreported, County Court of Victoria, Judge Howard, 19 November 2009) |
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CRIMINAL LAW – Drug offences – ‘Operation Jedi’ – Trafficking and possession of methylamphetamine – Whether characterisation of applicant as ‘wholesale trafficker’ supported by statement of agreed facts – Concession by Crown that applicant denied procedural fairness and that, arguably, this could have affected sentence imposed – Delay – Manifest excess – Leave to appeal granted – Applicant previously granted bail pending hearing of application for leave to appeal – Effect upon re-sentencing.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr J D Williams | Victoria Legal Aid |
| For the Respondent | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I have read in draft the reasons for judgment of Weinberg JA, and respectfully agree with them.
WEINBERG JA:
The applicant, Michelle Scott, pleaded guilty in the County Court at Melbourne to one count of having, between 6 April and 15 December 2005, trafficked in a drug of dependence, namely methylamphetamine, and one count of having, on 11 May 2006, possessed that same drug. On 19 November 2009, she was sentenced to two years’ imprisonment on count 1, 12 months of which was to be suspended for a period of 12 months. She was fined $250 on count 2.
Coded telephone intercepts revealed that the applicant trafficked a total of 224 grams, or approximately eight ounces, of methylamphetamine over two separate periods, through 11 separate transactions. She sold 28 grams between 6 and 21 April 2005 (the first period), and 196 grams between 13 August and 15 December 2005 (the second period).
The maximum penalty for trafficking simpliciter in methylamphetamine in an amount of 224 grams is 15 years’ imprisonment.
The applicant now seeks leave to appeal against the sentence of two years’ imprisonment imposed on count 1. The grounds upon which she proposes to rely are as follows:
1. The learned sentencing judge erred in sentencing the applicant on the basis that she was engaged in trafficking at a wholesale level rather than a retail level.
2. Alternatively, the learned sentencing judge failed to accord the applicant procedural fairness in sentencing her on the basis that she was engaged in trafficking at a wholesale level rather than a retail level.
3. The learned sentencing judge erred in his approach to the mitigating weight to be accorded to delay.
4. The sentence imposed is manifestly excessive in all the circumstances.
PARTICULARS
(a) In the context of the plea of guilty the learned sentencing judge failed to give sufficient weight to the following matters in mitigation:
(i) The concession by the Crown that a wholly suspended sentence was within the range;
(ii) The personal circumstances and background of the applicant;
(iii) The circumstances of the applicant’s involvement in the offending;
(iv) The delay;
(v) The prior good character of the applicant; and
(vi) The applicant’s prospects for rehabilitation.
(b) The learned sentencing judge placed too much weight on general deterrence in the circumstances.
Circumstances surrounding the offending
The sentencing judge observed that the applicant was to be sentenced for ‘wholesale trafficking of drugs of dependence in the Ballarat region’. His Honour commented:
2.Your particular offending was disclosed as a result of “Operation Jedi”, an extensive and most professional investigation conducted by Victoria Police between August 2005 and January 2006. The operation involved the time and effort of many police officers and forensic and drug experts; the covert recording of thousands of hours of intercepted telephone conversations; surveillance of suspects; the seizure of substantial quantities of drugs; and the charging of a large number of offenders. Following that, much time was occupied in preparing evidence for court cases.
3.I have recently sentenced three principal, high-level Jedi offenders, John Waters, Boris Trajkovski and Tomislav Samac, to very lengthy terms of imprisonment. Waters was connected with each of your offences. You … are in a group of ten other Jedi offenders who have pleaded guilty before me to various drug offences. Anthony Scott was due for sentence with you today for trafficking methylamphetamine but he has failed to attend and I have issued a warrant for his arrest. Although his offending is interrelated with yours Mrs Scott, all parties urged me to proceed with the sentence and I have agreed to do so.
The applicant’s husband, from whom she had separated some years earlier, had previously been sentenced, in November 2004, to a lengthy term of imprisonment. He had engaged in large-scale trafficking of drugs over a considerable period of time. Waters, one of the high-level Jedi offenders referred to above, had been his supplier.
When her husband was imprisoned, the applicant agreed to carry on his drug trafficking business. Waters continued to supply the drugs. The applicant sold methylamphetamine ‘to various customers’ in the Ballarat region.
The sentencing judge characterised the applicant as having trafficked at ‘a low level of the trafficking simpliciter category’.[1] Nonetheless, he described her offending as ‘wholesale, sophisticated and energetic’. He noted that the agreed value of the drugs sold was approximately $48,000 at street level, or $24,000 wholesale.[2]
[1]R v Scott (Unreported, County Court of Victoria, Judge Howard, 19 November 2009), [8]
[2]Ibid.
It appeared that, when her husband was released on parole, he returned to live with her, and once again took over running the drug business. At that point, the applicant ceased to have any further involvement in trafficking.
Matters personal to the applicant
In dealing with the applicant’s background, and her personal circumstances, the sentencing judge observed that she had been aged 37 at the time of the offending, and was aged 42 at the time of sentencing. His Honour accepted that she came from a close and loving family environment. She had no prior convictions, and no previous involvement of any kind with drugs.
It seems that the applicant had met her husband in 1989 when she was aged 22. They had married in 1997. There were three children of the marriage, a son who was aged 18 at the time of sentencing, and twin boys who were aged 16. Sadly, all three sons suffered from attention deficit hyperactivity disorder, or a variant thereof.
The marriage did not last very long. It came to an end when the applicant discovered that her husband had been having an affair with another woman. It seems that their relationship had been fraught throughout. They had frequently lived apart, if for no other reason than that her husband was constantly in and out of prison. Basically, the applicant had fended for herself, and raised her children alone.
Evidence was led on the plea that the applicant had, years earlier, developed a mild post-traumatic stress disorder. This was said to be as a result of her sons having been sexually abused by a foster child, aged in his mid teens, who had been living at the time with the applicant’s aunt. The psychiatric evidence suggested that the applicant had developed a chronic adjustment disorder, with some mild depression, as a result of her having discovered what this boy had been doing to her sons.
There was also evidence led before the sentencing judge regarding psychological counselling which the applicant had undergone between March 2007 and June 2009, at which time the plea was heard. Terry Charlton, a psychologist who prepared a report dated 9 June 2009, described the applicant as being in the ‘severe to extremely severe range for depression, anxiety and stress’. This was said to be accentuated by the role she had assumed as the main carer for her elderly mother who, unfortunately, was suffering from dementia as well as depression. In addition, the applicant had undergone a very stressful past few years, her brother having recently died of a congenital heart defect, and she having been diagnosed with the same condition.
The applicant told her treating psychologist that, after her husband was imprisoned in November 2004, she had been ‘forced’ to take over his drug trafficking business. She claimed that she felt ‘threatened and intimidated’ during that period. She insisted that, had she refused to carry on the business, she would have been personally at risk, as would her sons.
The sentencing judge firmly rejected that account of why the applicant engaged in this offending. He noted that there had been no evidence led to support any suggestion of coercion on the part of the applicant’s husband, or anyone else. He added that there was nothing in any of the coded telephone intercepts to suggest that the applicant had been acting under duress.
Mr Charlton reported that the applicant’s self esteem had improved since March 2007, when he first saw her, and expressed the opinion that she was now better able to cope with her life. She had for some time been on anti-depression medication prescribed for her by her general practitioner.
Mr Charlton stated that it was his belief that the applicant had engaged in this offending, not for personal gain, or for personal use, but rather to protect her family. He said that, in his opinion, she would not offend in this manner again. He added that he believed that a period of incarceration would be detrimental to her well-being, as well as the emotional well-being of her sons.
Evidence of previous good character was led on the plea. Two of the applicant’s close friends spoke in glowing terms of her devotion as a mother, and of the difficult time she had had in bringing up her sons alone, and coping with their shared condition. She was described as a kind-hearted, loving and caring person who was honest, reliable and trustworthy.
The sentencing judge commented that, regrettably, these qualities were not manifested in her efforts to sell drugs of dependence into the community.
The sentencing judge’s summary of relevant sentencing considerations
His Honour readily accepted that there were a number of significant mitigating factors present in this case. These included the applicant’s previous good character, her commitment to the well-being of her sons, her plea of guilty, offered at an early stage, and the extensive delay which had occurred between the commission of the offences and the date upon which she was sentenced.
Importantly, his Honour accepted that the applicant only became involved in trafficking drugs because her husband had been incarcerated, and she had unwisely agreed to conduct his drug trafficking business in his absence. The Crown had conceded that her trafficking activities had ceased once her husband had been released from prison and resumed operations.
The sentencing judge felt constrained to add:
30However, the distinct impression I have is that it was “business as usual” in your drug dealings. You demonstrated yourself to be an energetic drug trafficker and ever ready to facilitate the needs of your purchasers. However, it is to be noted that there were a number of occasions when Waters directed you as to how to most effectively conduct the business, including how to cut up and bag the drugs. Of course, he had every incentive to ensure your business was conducted as effectively as possible.
31At the end of the day, it cannot be ignored that you were an important identity in the Ballarat region to whom drug dealers turned and who would then on-sell to addicts and users for their supply of methylamphetamine. You were a wholesale trafficker involved with significant amounts of the drug and significant sums of money.[3]
[3]Emphasis added.
His Honour went on to add that, although there had been no family hardship submission as such, there were particular difficulties associated with having the applicant’s sons looked after, which he outlined as follows:
32.… At the time of your plea hearing it was clear that arrangements could be made for them to be cared for in your absence by their grandmother. I have been informed today that she is no longer willing or able to do that as her dementia and depression has worsened, as noted in an additional letter I have received today from your friend, Mr Bailey. Nevertheless, it is proposed that your 18 year old, who I note is in court today, will look after the 16 year old twins. It is not a wholly satisfactory situation and obviously, there will be hardship for you and them if you are to be incarcerated. This is an additional factor why mercy should be extended to you, given the special bond which you share and the importance of you being able to continue to care for them as soon as you are able.
His Honour went on to say:
33.I am satisfied that you have excellent prospects for rehabilitation and that it is highly unlikely that you would offend in this way again.
He added:
34.But there is, and can be, no dispute that your offending on count 1 is serious and enduring. It is accepted that I should impose a sentence of imprisonment on that count. The prosecution submitted that that sentence should be in the range of 18 months to two and a half years’ imprisonment, although it submitted that it would be open to the Court to fully suspend any such sentence. Alternatively, if such a sentence were not to be fully suspended, it submitted there should be a minimum of 12 to 18 months’ imprisonment. Your counsel submitted that the combined effect of the mitigating circumstances which I have set out justifies the full suspension of any sentence to be imposed. I will return to this important question shortly.
Ultimately, his Honour outlined the general sentencing considerations which he regarded as applicable:
75.… For many years now the Court of Appeal has repeatedly made the same point, that for serious cases of trafficking in drugs, even allowing for relevant mitigating factors, principles of denunciation, protection of the community, just punishment, general deterrence, and sometimes specific deterrence, require the imposition of sentences of substantial length.[4]
76.The Court has stressed that trafficking in drugs of dependence is a very serious crime to be stigmatised; that offenders play for high stakes; and such offending is a significant burden on our society which frequently begets other criminality. Most recently, the Court spoke in powerful terms when it said:
“Sentencing judges are not concerned with the harms attributable to particular drugs of dependence. Thus, they should not compare the ill effects of one drug of dependence with another; nor should they bring to bear their own perception of the harm wrought by a particular drug of dependence. It is, however, both necessary and appropriate for sentencing judges to take into account — as a general sentencing consideration — that drugs of dependence represent a significant social evil: they damage lives, families and society as a whole. Traffickers in drugs prey upon the young, the weak and the vulnerable. The high maximum penalties fixed by Parliament reflect the community’s abhorrence of this pernicious trade and a determination to punish severely those who profit from it.”[5]
77.This is the proper context in which your offending is to be viewed. You trafficked in significant wholesale businesses over a lengthy period.
[4]R v D’Aloia [2006] VSCA 237, [56] (Nettle JA); and R v Ahmed (2007) 17 VR 454, 460 (Buchanan JA) are but two examples.
[5]DPP v McInnes [2009] VSCA 144, [34] (Maxwell P, Buchanan and Ashley JJA).
The sentencing judge’s concluding remarks
His Honour considered it important to observe that the applicant was not herself addicted to drugs, but had trafficked solely for profit. He characterised her behaviour as ‘trafficking for greed’, and as having reflected a ‘callous disregard of the grave harm’ that her offending had done to addicts, and drug users. He commented that the applicant had known full well what she was doing, and that the drugs that she was selling would eventually be ‘on-sold to consumers and addicts at a street level’.[6]
[6]R v Scott (Unreported, County Court of Victoria, Judge Howard, 19 November 2009), [79].
When his Honour came to deal with the submission that he should fully suspend any sentence of imprisonment that he imposed upon the applicant, he said:
85.… It is clear there are powerful mitigating circumstances in your favour. But merely because the prosecution concedes a particular sentence is “within range” does not mean that some other sentence is not appropriate or within the same range which it says is appropriate. Here the prosecution says it would be within range to fully suspend the sentence or to impose immediate custody. Of course I am not bound by such a submission, but I am bound to give appropriate weight to it. I am not to disregard it lightly.
86.But ultimately, I must reach a decision as to the appropriate penalty and I have concluded that I should not accede to your submission for total suspension. I foreshadowed that conclusion to your counsel and the prosecution this morning so as to give either a chance to make further submissions on the point. …
His Honour then recorded the fact that the applicant’s counsel had not sought to add anything further, of substance, to what had previously been put in support of a wholly suspended sentence.
Finally, his Honour concluded:
88.I consider the combined effect of the mitigating circumstances in your favour are outweighed by the seriousness of the offence of trafficking committed by you and the paramount importance of the principles of general deterrence and just punishment. Others in our community who may be minded to traffick as you have must know they will face serious penalties if caught, including the real prospect of immediate imprisonment of some significance. You willingly engaged in the offence with the obvious purpose of selling the drug to others for profit with a view to it ultimately finding its way to addicts and drug users. Whether you were pressured to do that on behalf of your estranged husband or not, such conduct is to be condemned. In short, your offending is, in my view, too serious to permit a full suspension of the sentence to be imposed. Such a course is not desirable and not in the public interest.
Grounds 1 and 2 – ‘Wholesale trafficking’ and procedural fairness
Pursuant to ground 1, the applicant challenges the sentencing judge’s description of her as a ‘wholesale trafficker’. In support of that ground, her counsel first noted that there was nothing in the statement of agreed facts provided to the sentencing judge to support that characterisation. Nor, so it was submitted, was there anything in any of summaries of the coded telephone intercepts to suggest that she was trafficking at a level above street level.
The prosecutor referred to the statement of agreed facts in his opening of the plea to the sentencing judge. He noted that, in April 2005, Victoria Police had applied for, and been granted, authority to implement telephone intercepts on the applicant’s telephone service. A number of drug-related conversations were recorded between 6 and 20 April 2005. Most of these were between the applicant and various drug users, and concerned sales of relatively small amounts of drugs, essentially at ‘street level’. A person named ‘Maurice’ was said to have purchased one lot of 0.1 gram for a total of $60. Someone else named ‘Nick’ was quoted as saying that ‘Dave’ wanted ‘one for $50’. However, one conversation (call 262 on 12 April 2005) involved the applicant and Waters, and concerned the provision by Waters to the applicant of 28 grams of the drug.
From August 2005 onwards, Victoria Police intercepted and monitored over 10,300 telephone calls to which Waters was a party. Approximately 3,400 of those were considered to involve discussions by Waters about illicit drug activity. Over 100 of the intercepted calls were between Waters and the applicant, and 38 of that number were selected by the prosecution for inclusion in the statement of agreed facts as providing some indication of the nature and extent of the applicant’s offending.
I have considered carefully the summary of telephone intercepts between 13 August and 15 December 2005. Put simply, what that summary indicates is that the applicant, on seven occasions, purchased methylamphetamine from Waters in 28 gram lots. The calls in question were made on 13 August (call 85), 15 September (call 469), 29 September (call 227), 17 October (call 678), 24 October (call 797), 6 November (call 1046) and 30 November (call 1826). The discussions were coded, but what emerges tolerably clearly is that some of the applicant’s customers are unhappy with the quality of the drugs being supplied by Waters. At one point, in call 1046, the applicant tells Waters that ‘about ten people’ had come back, all wanting their money back.
In his opening, the prosecutor said that the general arrangement appeared to be that Waters would supply the applicant regularly with methylamphetamine, and would then follow-up by contacting her by phone encouraging her to collect money, and to discuss further orders. The prosecutor described the applicant as having ‘sold the methylamphetamine to customers in the Ballarat region’.[7]
[7]Emphasis added.
The applicant referred to the drugs that she purchased and sold in terms of fractions, or multiples of ounces. During April 2005, there were references by ‘her customers’ to ‘one’ or ‘stuff’ or ‘the other lot’ or ‘four bags’. Money was spoken of as ‘paper’, and ‘correct weight’.
During the course of the plea, the sentencing judge commented that the impression he had arrived at in relation to the applicant was that
she was the pivotal person in Ballarat to whom a large number of addicts were turning for supply of amphetamines, and that this happened over a substantial period of time, both in April and then later in August to December.[8]
Counsel for the applicant did not demur from that description. He acknowledged that this was ‘very serious offending’.
[8]Emphasis added.
His Honour went on to say:
Particularly in a – I won’t say a small community, because Ballarat’s a pretty big place, but to become known as the person to whom you can turn to and who will supply drugs is, I think, a very serious feature of the offending.
[Counsel for the applicant]: Yes. Your Honour, ultimately the way in which I ask you to sentence Mrs Scott is in relation to that limited period of trafficking in April of 2005, and then again picking up from August through to December. Now, the quantity is 220 grams of methylamphetamine. It’s not suggested that that’s a small amount. It’s accepted that this is [a] Giretti type form of trafficking, but when it comes to looking at Mrs Scott’s role in the overall syndicate, these are the submissions that I’d make. …
A little further on during the course of the plea, his Honour asked counsel for the applicant to provide him with an estimate of what the applicant’s profit had been from the trafficking in which she had engaged. Counsel replied:
I can’t answer that, sir. But I can tell you, with respect, your Honour, that Mrs Scott was not driving around Ballarat in a Lamborghini. What she admits by way of her plea is that she was purchasing one ounce of speed at a time, so 28 grams. And that was then being distributed to the network in Ballarat. That’s what’s been accepted. That’s the nature of the Crown opening. Now that does involve a turnover of a large amount of cash. $50 per point and quite a number if thousands to buy the ounce in the first place.[9]
[9]Emphasis added.
Before this Court, counsel for the applicant submitted, in support of ground 1, that there was nothing in the statement of agreed facts, or any of the other material placed before his Honour to support the conclusion that the applicant had been engaged in ‘wholesale trafficking’. It was further submitted that this factual error, or misdescription of the applicant’s role, vitiated the exercise of the sentencing discretion. All that could be concluded, it was submitted, was that the applicant had purchased relatively large quantities from Waters, generally 28 grams in a single transaction, and then sold the drugs in unspecified amounts to unspecified purchasers.
There is force in that submission. It is possible to engage in speculation, or conjecture, as to the actual amounts that the applicant was selling, and the identity of those to whom she was trafficking the drug. If one were to characterise the nature of her dealing based on suspicion, one might think, as the sentencing judge clearly did, that at least on some occasions, she was trafficking at perhaps one level above street level. The amounts purchased from Waters, the frequency at which they were bought, and the fact that the applicant was herself involved in ‘cutting’ the drugs, might tend to suggest that she was selling in more than street level amounts.
On the other hand, there are indications in the material that the sales that the applicant made were to ultimate users, and some of the sales made were of such small amounts as to render that conclusion inescapable.
In short, the material provided to his Honour did not make clear the nature and extent of the applicant’s dealing, and much was left to conjecture. If ‘wholesale trafficking’ is to be regarded as more serious offending than street level dealing, as his Honour plainly considered it to be, there ought to have been a firmer basis upon which to draw the conclusion that the applicant was a ‘wholesale trafficker’ than that which he fixed upon.
Ground 2 is largely an elaboration of ground 1. It contends that the applicant was denied procedural fairness by his Honour’s finding that she had trafficked at a ‘wholesale’ level.
In support of this ground, it was noted that the first time any mention had been made of ‘wholesale trafficking’ was when his Honour came to sentence the applicant. Had that matter been flagged at an earlier stage, counsel then appearing could have addressed it, and attempted to dissuade his Honour from reaching that conclusion. In its supplementary submissions on this matter, the Crown conceded that, by not having drawn that matter to the attention of counsel, the applicant ‘was not afforded an opportunity to make submissions or call evidence inconsistent with this finding’. The Crown further conceded that, arguably, this ‘could have affected the sentence imposed’.
A sentencing judge is not bound by any statement of agreed facts. It is perfectly open to arrive at a different view of what took place as the basis for any sentence that is to be imposed. In such circumstances, however, it is well established that procedural fairness requires that the judge inform the parties of his or her provisional view in order that they may be given a sufficient opportunity to challenge the basis upon which the judge proposes to proceed.[10]
[10]R v Duong [1998] 4 VR 68, 69 and 77-8. See also Chow v DPP (1992) 28 NSWLR 593; and R v Mielicki (1994) 73 A Crim R 72.
In Humphries v The Queen,[11] Maxwell P and Redlich JA said:
It is uncontroversial that an ingredient of the court’s duty to accord procedural fairness involves the giving of a fair opportunity to a party to correct or contradict any prejudicial or adverse finding which the judge may make, unless the risk of such a finding necessarily inheres in the issues to be decided. In the present case, there was no such “inherent risk” regarding this matter. The offender’s counsel could not reasonably have anticipated that the sentencing judge would treat his drug use as an aggravating factor. That being so, his Honour needed to draw the existence of the risk to counsel’s attention so as to afford counsel the opportunity to respond.[12]
[11][2010] VSCA 161 (‘Humphries’).
[12]Ibid [10] (citation omitted). See also R v Fisher (2009) 22 VR 343.
The question in the present case is whether the sentencing judge’s finding that the applicant was a ‘wholesale trafficker’ was a finding that necessarily inhered in the issues to be decided. Put another way, was it reasonably to have been anticipated that his Honour would arrive at that conclusion, and treat it as an aggravating factor for the purposes of sentencing?
After giving this matter careful thought, I am persuaded that the applicant’s role in this offending was of central importance, and that the conclusion that she was a ‘wholesale trafficker’ may well have operated to her detriment. I consider that the material put before his Honour did not, of itself, suggest that this was a proper characterisation of her role. The applicant’s counsel could not reasonably have anticipated that his Honour would characterise his client’s offending in that way. Accordingly, he was effectively deprived of the opportunity of seeking to dissuade his Honour from that view.
In my view, his Honour’s failure to invite comment as to whether the applicant should be viewed as a ‘wholesale trafficker’ constituted a breach of natural justice. Therefore, the sentencing discretion miscarried. In accordance with the approach taken in Humphries,[13] the question remains whether this Court is of the view that a different sentence should be passed.[14] I note that in Humphries,[15] despite the denial of natural justice found to have occurred in that case, the appeal against sentence was dismissed.
[13][2010] VSCA 161, [13] ff.
[14]The position is different in civil proceedings whereby an appellate court will order a new trial unless it concludes that compliance with the requirements of natural justice could not possibly have made any difference to the result. See generally Stead v State Government Insurance Commission (1986) 161 CLR 141, and note the careful discussion of this point by Redlich JA in Ucar v Nylex Industrial Products Pty Ltd (2007) 17 VR 492, 514-7.
[15][2010] VSCA 161.
I shall return to the question of re-sentencing after dealing with the remaining grounds of appeal.
Ground 3 - Delay
The sentencing judge said:
71.The second point concerns delay. I do take it into account, favourably to … you, that you have had your matters hanging over you awaiting resolution for a considerable time. That consideration is the stronger where there has been rehabilitation in the meantime, as is the case for … you.
72.But the issue of delay must be placed in its proper context. It cannot be said that … you made [an] early [plea]. As I have explained, you made no admissions to police and conducted [a] contested [committal]. As I understand it, there was a good deal of time taken in the preparation of the trial concerning Waters and Trajkovski, and other cases, including your own, before they were resolved in about late 2008 or early 2009. It should have been possible to have then had your [plea] heard and [sentence] passed but the view was taken, by all parties, that [your plea] should await the trial, which was held between 23 February and 25 May this year. It was accepted that I should hear all the pleas before passing sentence so that there might be achieved, if possible, consistency and proportionality as between the different offenders and sentences to be imposed.
73.Regrettably, there has now been further delay since the completion of all the plea hearings due to a multiplicity of other commitments I have had, none of which is of your own making. This additional delay is also a factor to be taken into account in favour of you.
It was submitted on behalf of the applicant that, although his Honour stated in his reasons for sentence that he had taken delay into account, he had erred by diluting the weight to be given to that factor on the basis that the applicant had not pleaded guilty at the earliest opportunity, had made no admissions to police and had conducted a contested committal.
It was submitted on behalf of the Crown that the sentencing judge had been alive to the issue of delay and that it was appropriate for him to have addressed that matter ‘contextually’, as he had. It was further submitted that the applicant had been given the full benefit to which she was entitled arising out of such delay as had occurred.
In my opinion, the applicant has not established any error arising out of his Honour’s discussion of delay.[16] The applicant did not offer to plead guilty at the earliest opportunity. She had made no admissions to the police. She conducted a contested committal. These were all relevant matters to take into account in assessing the weight to be given to delay. Accordingly, I would reject ground 3.
[16]See the discussion of the issue of delay in Reilly v The Queen [2010] VSCA 278; Briggs v The Queen [2010] VSCA 279; and Bennett v The Queen [2010] VSCA 280, all related cases to that of the applicant. In Reilly and Bennett, an almost identical challenge to the sentencing judge’s treatment of delay failed. The complaint regarding delay only succeeded in Briggs because the sentencing judge had, in that particular case, made a factual error as to when the applicant there offered to plead guilty.
Ground 4 – Manifest excess
Despite the mitigating factors that were present in this case, it is difficult to see how it can seriously be contended that a sentence of two years’ imprisonment, one year of which was suspended, can be characterised as manifestly excessive for this level of offending.
In effect, this ground amounts to a contention that it was not open to the sentencing judge to impose an actual custodial sentence. When one considers the scale of the trafficking engaged in by the applicant, and the fact that she was not herself a user of drugs, but was selling essentially for profit, the idea that a 12 month actual custodial term was outside the range available is plainly untenable.
Ground 4 must be rejected.
Re-sentencing
Grounds 1 and 2, having succeeded, the question arises as to what course should now be followed.
Some context is necessary. The applicant was sentenced on 19 November 2009. She was required to serve a term of 12 months actual custody. In early September 2010, she sought bail pending the hearing of her application for leave to appeal against sentence. The basis for that application was that, unless granted bail, she would have served virtually the whole of her sentence by the time this Court came to consider her case, thereby rendering her application for leave to appeal virtually nugatory.
On 16 September 2010, the applicant was granted bail pending the hearing of this application. It was made plain to her that, if her application for leave to appeal against sentence failed, she might find herself in the position of being returned to prison to serve out the remaining two months and three days of the actual custodial part of her sentence. Understandably, that was a risk that she was prepared to take. Otherwise, she stood to gain no benefit, in practical terms, from pursuing her application for leave to appeal against sentence.
As events have unfolded, the applicant has succeeded in establishing specific error, grounds 1 and 2 having been made good. That presents this Court with a difficulty. There was nothing wrong with the sentence of two years’ imprisonment, one year of which was to be suspended, irrespective of what view one might take of the applicant’s role in trafficking these drugs. If she was not a ‘wholesale trafficker’, as the sentencing judge found, she was certainly a significant street level dealer. In that capacity, she trafficked the same amount of drugs over the same period of time. If anything, she earned greater profits by selling at street level rather than wholesale, the evidence being that street level sales would have been worth about double the value of wholesale sales.
On either view, the applicant merited an actual custodial term of the order fixed by the sentencing judge. But for his Honour’s slip, in characterising her as a ‘wholesale trafficker’, I would not have interfered with this sentence.
On the other hand, it now seems somewhat pointless, and perhaps cruel, to require the applicant to be returned to prison to serve the remaining weeks of her actual custodial sentence. She has succeeded in two of her grounds of appeal, and one cannot say what the sentencing judge might have done had her counsel on the plea been afforded the opportunity to dissuade him from treating her as a ‘wholesale trafficker’. In addition, I take into account the Crown’s concession below that even a wholly suspended sentence would have been ‘within range’ for this applicant.
In the highly unusual circumstances of this case, I consider that there is scope for this Court to afford this applicant some measure of leniency. I would propose that leave to appeal against the sentence imposed on count 1 be granted, and the appeal allowed. I would set aside the sentence imposed on count 1 and, in lieu thereof, re-sentence the applicant to a term of 2 years’ imprisonment on that count. I would suspend 14 months and three days of that sentence for a period of 14 months and three days. The reason for arriving at that figure for the suspended component of the sentence is to ensure that the applicant be released forthwith, her sentence being, in effect, one of time served.
For the avoidance of doubt, I would not interfere with the fine imposed on count 2.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I should indicate that, but for the applicant’s plea of guilty on count 1, I would have thought a sentence of three years’ imprisonment was appropriate, 18 months of which would have been suspended.
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