Scott v The Queen
[2011] VSCA 108
•20 April 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0084
| ANTHONY SCOTT | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES | ASHLEY and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 12 April 2011 |
| DATE OF JUDGMENT | 20 April 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 108 |
| JUDGMENT APPEALED FROM | R v Scott (Unreported, County Court of Victoria, Judge Howard, 23 March 2010) |
---
CRIMINAL LAW – Application for leave to appeal against sentence – ‘Operation Jedi’ – Giretti trafficking in 210.2 grams of methylamphetamine in mixed substance – Sentenced to three years’ imprisonment with a minimum of two years – Lengthy criminal record – Offending occurred shortly after release on parole – Sentence not manifestly excessive – Open to find offending ‘wholesale, sophisticated and energetic’ – Criticism of observation that as an addict ‘so much the worse is your offending’ – Past injuries sustained by applicant not ignored or overlooked – Time served for breach of parole considered – Open to find applicant’s offending for profit and greed – Leave to appeal against sentence refused.
---
| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr S A Moglia | C Marshall & Associates |
| For the Crown | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I have had the advantage of reading the reasons of Weinberg JA in draft. I agree with his Honour that leave to appeal should be refused
The applicant could make legitimate complaint about some aspects of the judge’s sentencing remarks. So much is revealed by Weinberg JA’s discussion of grounds 2, 3 and 8. But in this case that does not mean that the application should be granted and the appeal allowed. I am not satisfied that a different sentence should be imposed.[1]
[1]See s 281(1)(b) Criminal Procedure Act 2009.
WEINBERG JA:
The applicant pleaded guilty in the County Court at Melbourne to one count of trafficking in a drug of dependence, namely methylamphetamine. After plea hearings on 30 June 2009 and 9 September 2009, he was sentenced some months later, on 23 March 2010, to a term of three years’ imprisonment. A non-parole period of two years was fixed. The maximum penalty for trafficking in a drug of dependence of less than the commercial quantity is 15 years’ imprisonment.[2]
[2]Drugs, Poisons and Controlled Substances Act 1981 s 71AC.
The applicant was originally scheduled to be sentenced on 19 November 2009, along with his wife, Michelle Scott, and one Cheryl Beckerton. On that day he failed to appear. A warrant was issued for his arrest, and the applicant was eventually apprehended on 18 March 2010.
The circumstances surrounding the applicant’s offending were set out in an agreed summary of facts. Put simply, the applicant was involved in what can be described as ‘Giretti’ trafficking of methylamphetamine between 5 December 2005 and 16 January 2006. This, of course, meant that he was engaged in the business, between dates, of selling methylamphetamine for gain.
It seems that while the applicant was in prison in 2005, for previous offences,
his wife had been trafficking in drugs in the Ballarat area. The applicant was eventually released on parole on 3 December 2005, and almost immediately took control of the drug selling business from his wife.
The applicant’s supplier was a man named John Waters. Waters was a principal in a major drug dealing ring, and he, along with many others, were sentenced for their involvement in what the police described as ‘Operation Jedi’. The applicant’s offending was disclosed as a result of ‘Operation Jedi’.
In all, the applicant trafficked some 210.2 grams of methylamphetamine in a mixed substance. He sold 112 grams himself in four separate lots. In addition, he aided and abetted Waters in supplying Beckerton with some 63 grams of methylamphetamine. When he was eventually arrested on 18 January 2006, police found, in his possession, 35.2 grams of methylamphetamine hidden in his underwear, ranging in purity from 8 per cent to 12 per cent
The various transactions in which the applicant engaged were evidenced by 55 telephone intercepts. It is of some significance to note that coded language was used during the course of these conversations.
According to his Honour, the agreed value of the applicant’s sales was approximately $48,000 at street level, or $24,000 wholesale.
The sentencing judge noted that the applicant had trafficked, in his view, at a ‘low level of the trafficking simpliciter category’. His Honour went on to say that, nevertheless, this was ‘wholesale, sophisticated and energetic conduct’. I interpolate to say that exactly this same description was used by the sentencing judge in relation to Beckerton, when his Honour sentenced her in November 2009.
The applicant was aged 42 at the time he was sentenced, and 38 at the time of the offending. He was born and brought up in Papua New Guinea, his father having been an architect employed on a project in that country. His parents separated when he was about five, and he returned to live in Ballarat with his mother and three siblings. His mother suffered from a mental illness. She was also an alcoholic. At times, she had to be hospitalised for these conditions. On those occasions, the applicant went into foster care. He reported having been sexually abused by a family friend when he was aged about ten.
The family split up again when the applicant was aged about 13. His mother moved to Bendigo to live with a new partner. She took the applicant’s younger sister with her but left him in Ballarat with his two brothers. Apart from some occasional care from his grandmother, the applicant essentially lived on his own for about six months. Eventually, he joined his mother and sister in Bendigo. It appears that the applicant had managed to maintain a good relationship with his mother, but he hardly ever saw his siblings.
The applicant had many difficulties at school. He left school part way through year 10 when he was aged 15. In a psychologist’s report, which was prepared by Mr David Ball and tendered on the plea, the applicant was assessed as having an IQ in the ‘[b]orderline range’.
The applicant held various jobs in the Ballarat area, eventually working as a spray painter and panel beater repairing cars and motorbikes. It was in that capacity that, in 2004, he met Waters.
The applicant met his wife some 20 years earlier. By the time of the plea they had been married for about 12 years. However, there had been a number of separations as a result of the applicant’s frequent incarceration. He and his wife had three sons, one aged 18 and twins aged 16 at the time of the plea. Two of those sons were in court on the plea, and were said to be supportive of the applicant. The applicant’s boys had their own difficulties which made looking after them a particularly onerous task.
The applicant had a terrible criminal record. He had been addicted to drugs, mainly amphetamines, from a very young age. Over some 20 years, from 1985 when he was just 18, to 2005 when he was 37, the applicant had been convicted of no fewer than 107 offences from 23 separate court appearances. Significantly, on 10 of those occasions over a 16 year period, he had been convicted of 28 offences involving drugs and another four for trafficking offences. The applicant had also been convicted many times of offences of dishonesty. On a number of occasions, he had received lenient treatment. For example, he had on more than one occasion been given a wholly suspended sentence. Nonetheless, he had served at least eight separate terms of actual imprisonment.
Of particular relevance, so far as the present offence is concerned, was the applicant’s conviction in the County Court in October 2002 of trafficking amphetamine. On that occasion, he was sentenced to a term of three years’ imprisonment. A non-parole period of two years was fixed.
In November 2004, within about a month or so of the applicant’s release from prison, he was convicted of further drug offences. On that occasion, he was sentenced to a total effective sentence of two years and one month’s imprisonment, and a non-parole period of 15 months was fixed. It was in relation to that last sentence that he was released on parole almost immediately before committing the current offence.
As I understand the position, the applicant’s current offending led to his parole being cancelled on 1 March 2006. On 4 May 2006, he was ‘claimed’ by the Parole Board and obliged to serve one year, nine months and 29 days as time owing. That figure is arrived at by including both the year owed in relation to the sentence imposed in October 2002, and the 10 months owed in relation to the sentence imposed in November 2004. The total period of one year and 10 months that was owed to the Parole Board concluded on 1 March 2008. From that time on, the applicant was on bail in relation to the current offences, at least until he absconded.
The sentencing judge noted that the applicant had sustained a number of serious injuries arising out of several road accidents. These occurred in July 2004, August 2004 and February 2006. He had suffered spinal and leg fractures, broken ribs, a torn lung, and two fractured spinal discs. He also suffered from ongoing memory problems.
Furthermore, whilst awaiting his plea hearing, the applicant was involved in yet another motor vehicle accident. On that occasion, he suffered multiple pelvic fractures.
As a result of the accidents, the applicant was left with both a walking disability and significant ongoing pain. He required the use of crutches from time to time. It was noted that, as at the date he was sentenced, he was using a walking stick. The applicant took Oxycontin, a narcotic analgesic, in order to manage his pain. It was anticipated that he would require surgery at some future time.
In that regard, the sentencing judge observed at [19] of his sentencing remarks that ‘[i]t is not suggested that service of a prison term would be significantly onerous because of these difficulties’.
The psychological report prepared by Mr Ball, to which I have already referred, described the applicant as immature, and as someone who had difficulty exercising good judgment. Mr Ball observed that the applicant had limited insight into his offending behaviour, and that the applicant reported that he still felt addicted to amphetamine. Somewhat ‘ominously’, to use his Honour’s term, Mr Ball proffered the opinion that the applicant, having spent so much time in prison, no longer regarded it as a deterrent.
His Honour set out in his sentencing remarks a number of mitigating circumstances that he regarded as having been established. These included the applicant’s dysfunctional childhood, low IQ, good work record, and the genuine attempts that he had made to deal with his drug problem. His Honour also found that the applicant’s injuries would ‘make imprisonment more burdensome’. He referred specifically to the plea of guilty (and an accompanying element of remorse). He also referred specifically to delay.
The sentencing judge then went on to describe other relevant sentencing considerations. He said that he would have regard to the principle of totality, and that he would reduce the applicant’s sentence to give some weight to the period that he had served for breach of parole. He noted that that breach arose out of the current offending.
The sentencing judge then referred to the general principles that governed sentencing for offences of this nature. He referred to the need for deterrence and denunciation in any sentence imposed. He also referred to the maximum sentence available for this offence. He considered, at some length, the applicant’s criminal record, and then sentenced him as earlier indicated.
The applicant originally relied upon seven grounds in support of his application for leave to appeal. During the course of argument, counsel for the applicant sought leave to amend by adding an eighth ground. The grounds that are pressed are as follows:
1. The sentence is manifestly excessive.
2. The learned sentencing judge erred by finding that the appellant’s offending was ‘wholesale, sophisticated and energetic’ and a ‘significant wholesale business over a lengthy period’.
3. The learned sentencing judge erred by not mitigating sentence in light of the circumstance in which the appellant became addicted to drug use and its nexus to his subsequent offending.
4. The learned sentencing judge made inconsistent findings as to whether imprisonment would be more burdensome for the appellant in light of his physical disabilities.
5. The learned sentencing judge erred in applying the totality principle.
6. The learned sentencing judge erred by finding the appellant offended for profit and greed.
7. Abandoned
8.The learned sentencing judge erred by finding that the applicant’s offending was worse because as an addict he understood the disabilities caused by addiction.
In my opinion, none of these grounds can be sustained for the following reasons.
Ground 1
A sentence of three years’ imprisonment for an offence of this gravity, committed by an offender with this applicant’s appalling record, cannot conceivably be said to be manifestly excessive.
Ground 2
The description of the applicant’s offending as ‘wholesale, sophisticated and energetic’, whilst perhaps not wholly apt given the applicant’s low IQ, did not vitiate the sentencing discretion. It can be said that the coded conversations with Waters in which the applicant participated had about them something of the flavour of ‘sophistication’.
Of more concern is his Honour’s use of precisely the same language to characterise various offenders whose individual actions, and backgrounds, differed widely. It is undesirable to use what may be seen as formulaic expressions when dealing with multiple offenders, each of whom should be accorded individual consideration and attention. In the particular circumstances of this case, nothing of consequence flows from the way in which his Honour expressed himself.
Grounds 3 and 8
The sentencing judge recognised the applicant’s drug addiction. He referred specifically in his sentencing remarks to this factor under the heading ‘Mitigating [C]ircumstances’. There is nothing to suggest that he failed to give the applicant’s addiction any, or sufficient, weight.
His Honour’s comment at [47] of his sentencing remarks that to the extent that the applicant was himself an addict, he better understood the effects of the drugs that he was selling upon those who purchased them, and therefore ‘so much the worse is [his] offending’, was somewhat poorly expressed. I have set out my own views,[3] and considered those of a differently constituted Court,[4] in relation to that observation, and there is little point in repeating the criticisms that have been made of it. It is sufficient to say that, in the context of this case, it does not vitiate the exercise of the sentencing discretion.
[3]Beckerton v The Queen [2011] VSCA 107.
[4]Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32.
Ground 4
The observations that his Honour made as to whether imprisonment would be more burdensome for the applicant in light of his physical disabilities were not, in my view, inconsistent. The comment at [19] of the sentencing remarks, that it was ‘not suggested’ that service of a prison term would be significantly onerous, can be reconciled with the finding at [26] that these disabilities would make imprisonment more burdensome for the applicant.
There are two ways to view these statements as being not inconsistent with each other. The first is to treat the comment at [19] as merely a summary of the way the applicant’s case was put, rather than as a finding. A reading of the transcript lends some force to that interpretation, since any reliance upon Verdins[5] by the applicant’s counsel on the plea was expressed diffidently, and with little attention to detail. The second is to give weight to the word ‘significantly’ in [19], and treat his Honour’s finding at [26] as one that accepts the Verdins contention, but to a limited degree only.
[5]R v Verdins ( 2007) 16 VR 269.
In my opinion, his Honour’s inclusion of the applicant’s disability as a result of his injuries among the list of mitigating factors to which he had regard puts paid to the suggestion that this was wrongly ignored or overlooked.
Ground 5
As regards the weight to be given to the time served for breach of parole, this was fully noted and considered by the sentencing judge. The sentence ultimately imposed was moderate and, in my view, reflected adequately the weight to be given to totality.
Ground 6
It cannot be contended that his Honour erred in finding that the applicant offended for profit and greed. Plainly, his motive in selling this significant amount of methylamphetamine was to make money. The fact that he needed money to assist the family was of little consequence. The reference to greed, rather than need, may be viewed as little more than rhetoric.
I should add, for the sake of completeness, that the applicant sought to rely, in this application, upon fresh evidence as to his current medical condition. He was diagnosed in January 2011 as having a hyper-vascular right renal lesion, which was thought to be a renal cell carcinoma. That diagnosis was later confirmed, and led to a partial kidney removal in late March of this year. Fortunately, pathology showed that the tumour appeared to have been completely excised, and that it had not invaded other areas. Subsequently, the applicant complained of recurrent pain in his lower right side, and had some swelling in the right flank but no other abnormal signs. The medical records disclose good post-operative recovery and satisfactory renal function.
It was conceded, on behalf of the applicant, that this evidence could only be received if the Court determined to allow this appeal and therefore proposed to re-sentence him. That concession was properly made. Self-evidently, the applicant’s carcinoma was not addressed during the course of the plea, and it is clear, in those circumstances, that evidence of his hitherto unknown medical condition cannot be considered on appeal.[6]
[6]R v Eliasen (1991) 53 A Crim R 391.
In my opinion leave to appeal should be refused.
- - - - -
0
2
0