Sikaloski v The Queen
[2012] VSCA 130
•22 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2010 0398
| ROBERT SIKALOSKI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG JA and CAVANOUGH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 31 January 2012 |
| DATE OF JUDGMENT | 22 June 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 130 |
| JUDGMENT APPEALED FROM | R v Sikaloski (Unreported, County Court of Victoria, Judge Dean, 1 November 2010) |
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CRIMINAL LAW – Appeal against sentence - Trafficking in a commercial quantity of a drug of dependence – Appellant found to have acquired brain injury – R v Verdins (2007) 16 VR 269 – Relevance of premeditation, planning and implementation – Need for cogent evidence of causal relationship between offending and mental condition – Appeal dismissed
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms E McKinnon | Cameron Marshall & Associates |
| For the Respondent | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I agree with Cavanough AJA.
CAVANOUGH AJA:
On 26 October 2010 the appellant, Mr Robert Sikaloski, pleaded guilty in the County Court to three counts of drug trafficking and one count of theft. The offences had occurred in 2009.
On 1 November 2010 Mr Sikaloski was sentenced by his Honour Judge Dean as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Trafficking in a commercial quantity of a drug of dependence (methylamphetamine) [s 71AA Drugs Poisons and Controlled Substances Act 1981 (Vic)] 25 years’ imprisonment
[s 71AA Drugs Poisons and Controlled Substances Act 1981]4 years’ imprisonment Base Sentence 2 Trafficking in a commercial quantity of a drug of dependence (Cannabis L) [s 71AA Drugs Poisons and Controlled Substances Act 1981 (Vic)] 25 years’ imprisonment
[s 71AA Drugs Poisons and Controlled Substances Act 1981]3 years’ and 6 months’ imprisonment 1 year 3 Theft [s 74 Crimes Act 1958 (Vic)] 10 years’ imprisonment [s 74(1) Crimes Act 1958 (Vic)] 3 months’ imprisonment 3 months 4 Trafficking in a commercial quantity of a drug of dependence (MDMA) [s 71AA Drugs Poisons and Controlled Substances Act 1981 (Vic)] 25 years’ imprisonment
[s 71AA Drugs Poisons and Controlled Substances Act 1981]3 years’ imprisonment 1 year Total Effective Sentence: 6 years’ and 3 months’ imprisonment Non-Parole Period: 3 years’ and 6 months’ imprisonment Pre-sentence Detention Declared: 139 days 6AAA Statement: 7 years’ and 6 months’ imprisonment with a non-parole period of 5 years Other orders:
Sentenced as a serious drug offender on Charges 2 and 4
Compensation Order
Pecuniary Penalty Order
Forensic Sample Order
Forfeiture Order
Mr Sikaloski sought leave to appeal on two grounds. On 3 June 2011
Neave JA granted him leave on only one of those grounds, namely that
The sentencing judge erred in failing to give any or any sufficient weight to the appellant’s intellectual impairment and/or mental illness at the time of the offending, and subsequent.
Her Honour refused leave in relation to the other proposed ground, namely manifest excess. The appellant has not challenged that refusal.
The Crown did not submit before us that the ground on which leave to appeal was given was not an available ground or was not appropriately expressed. However this Court has held in several recent cases that, absent a complaint of specific error, a complaint which goes only to weight given to a sentencing factor cannot constitute an independent ground of appeal and falls to be treated as no more than a particular of a ground of manifest excess or manifest inadequacy.[1] Here, no ground of manifest excess has been pressed.
[1]See Pesa v R [2012] VSCA 109 at [8]-[14] (Maxwell ACJ and Hansen JA) and cases there cited; OPQ v R [2012] VSCA 115 at [33] (Maxwell ACJ and Neave JA) and cases there cited.
Nevertheless, having regard to the reasons given by Neave JA for granting leave, and to the way in which this appeal has been argued on each side, I am prepared to treat the appeal as having been brought, in effect, on the ground that the learned sentencing judge misunderstood or misapplied the principles stated in R v Verdins.[2] That would amount to a complaint of specific error.
[2](2007) 16 VR 269.
The circumstances of the offending
The offences were committed between July and October 2009. It is common ground that during that period of approximately 11 weeks, until his arrest, the appellant was in the business of drug trafficking; that he was trafficking in a variety of drugs, including methylamphetamine, cannabis and ecstasy; and that he was motivated by the prospect of financial gain. The scale of his drug trafficking during the period in question was considerable.
Count 1 related to trafficking 644 grams of methylamphetamine, valued by the prosecution at $81,500. On three separate occasions, Mr Sikaloski sold between 27.5 and 28.4 grams of the drug to an undercover police officer for $3500. Between 23 July and 26 September 2009, police intercepted nine telephone calls and SMS messages relating to the sale of methylamphetamine to others in quantities ranging between 28 and 112 grams. When he was arrested on 7 October 2009, Mr Sikaloski was found in possession of 2.3 grams of methylamphetamine.
Count 2 relates to the trafficking of 27 kilograms of cannabis valued by the prosecution at over $500,000. Between 7 and 16 August 2009, police intercepted a number of phone calls between Mr Sikaloski and a John Taouk, a resident of Darwin. Mr Sikaloski agreed to supply 50 pounds of cannabis to Mr Taouk. Mr Taouk paid $9000 into three bank accounts controlled by Mr Sikaloski. Mr Taouk then travelled to Melbourne to collect the cannabis. Mr Sikaloski met Mr Taouk in Melbourne and they packed the cannabis into tool boxes in a vehicle that was to be delivered to Darwin by freight. Police executed a search warrant at the freight depot and seized the cannabis.
Police also intercepted telephone calls that revealed further trafficking transactions. The telephone conversations led police to execute a search warrant at premises in Reservoir where they discovered a mature cannabis crop weighing 20 kilograms, of which between 3.8 and 6.4 kilograms was in leaves and flowering heads.
Count 3 relates to electricity Mr Sikaloski stole through an electricity bypass installed at the Reservoir premises.
Count 4 relates to trafficking 6000 ecstasy tablets containing MDMA and another 5000 tablets that Mr Sikaloski believed to contain MDMA but which in fact contained either Benzylpiperazine (BZP) and Trifluoromethylphenylpiperazine (TMP). Telephone intercepts revealed that Mr Sikaloski sold these tablets for $12 each, making a total of $132,000.
Mr Sikaloski sold a further 1000 ecstasy tablets to an undercover police officer for $12,000. Those tablets contained BZP and TMP.
Mr Sikaloski also agreed to sell 4000 tablets to a Mr Litris. Police arrested Mr Litris shortly after leaving Mr Sikaloski’s home and discovered 3916 tablets in his possession. Those tablets contained BZP and TMP.
At the plea hearing, the informant gave evidence that Mr Sikaloski arranged drug trafficking transactions by telephone and that, to facilitate his trafficking, Mr Sikaloski opened bank accounts in the names of musicians hired to perform at a restaurant where he worked without their knowledge or consent.
Mr Sikaloski’s personal circumstances
Mr Sikaloski migrated with his then wife from Macedonia to Australia in 1995. They have six children. He was involved in the cleaning industry for around ten years and owned and operated his own sub-contract cleaning business. He did this through two companies, successively[3]. He also owned and operated the ‘New Europe’ restaurant in Preston for some time, and following the sale of that business he part-owned and operated another restaurant nearby called ‘The Millenium’. Sometime between 2005 and 2008 there was a period of overlap between the cleaning business and the restaurant businesses.[4]
[3]Plea hearing transcript, 99.
[4]Ibid.
In 2008, Mr Sikaloski became bankrupt due to a $340,000 debt to the Australian Taxation Office.
In 2004, Mr Sikaloski had been injured in a car accident that resulted in hospitalisation for a period of seven days. His injuries included a whiplash-type injury to his neck, with subsequent headaches. However a CT scan taken at the time showed ‘No significant damage’. According to his former wife and other witnesses who gave evidence on the plea, his behaviour changed after the car accident. They described him as becoming disorganised and unreliable. His former wife described his behaviour after the accident as ‘reckless’. On the other hand she also said that the cleaning business failed due to competition in the market.[5]
[5]Ibid.
In June 2009 Mr Sikaloski assaulted his wife in front of their children.[6] In September 2009 he was convicted of this assault in the Magistrates Court and placed on a community based order for 12 months. In part, his drug trafficking activities occurred while he was on this community based order.
[6]Ibid 96.
Mr Sikaloski and his former wife separated in 2009 and divorced in 2010. The trial judge found that the marriage failed as a result of Mr Sikaloski’s financial difficulties.[7] The offending occurred in the context of this deterioration in Mr Sikaloski’s financial and personal affairs.[8] His counsel told the sentencing judge that Mr Sikaloski had used illegal drugs himself but this was not said to be a reason for his offending.
[7]Reasons for sentence, [31].
[8]Ibid [32].
At the time of the plea, Mr Sikaloski and his former wife were attempting, not for the first time, a reconciliation. He had moved back to stay with her and the children.[9] She had sold her home and was using the proceeds in part to fund his legal representation.[10] Mr Sikaloski had taken steps towards going back into the cleaning industry.[11]
[9]Ibid [26].
[10]Plea hearing transcript, 104.
[11]Ibid 93-94, 103.
His Honour’s findings on intellectual impairment and mental illness
His Honour found that Mr Sikaloski’s offending ‘was motivated by financial gain’ and was ‘driven by the substantial profits that may be made’ from illegal drug trafficking.[12] Mr Sikaloski’s counsel had accepted at the plea hearing that the offences were committed for financial gain.[13]
[12]Reasons for sentence [20].
[13]Ibid [32]; Plea transcript, 115; Written case for the appellant, [7].
His Honour appears to have accepted the evidence that after the car accident in 2004, Mr Sikaloski became disorganised, unreliable and reckless.[14]
[14]Reasons for sentence, [29]–[30].
His Honour considered an assessment report dated 27 October 2010 from a neuropsychologist, Dr Lindsay Vowels; a report dated 23 October 2010 from a treating psychologist, Dr Alan Fox; and two reports dated 4 September 2009 and 22 September 2009 from Mr Sikaloski’s treating general practitioners at the Furlong Medical Centre.[15] No viva voce medical or like evidence had been called. Mr Sikaloski’s counsel had placed principal reliance on the neuropsychological assessment by Dr Vowels. In the light of the evidence, his Honour accepted that Mr Sikaloski suffered from ‘significant cognitive disabilities’ which resulted in the deterioration in his capacity to manage his financial and personal affairs.[16] He also accepted that Mr Sikaloski suffered from an acquired brain injury, depression and anxiety, that his memory was poor and that his ability to master new skills was poor.[17]
[15]Ibid [33]–[38]. His Honour also had before him certain other written evidence tending to confirm that Mr Sikaloski had been suffering from depression and anxiety, at least.
[16]Ibid [36].
[17]Ibid [37], [38] and [41].
However, his Honour made the following observation about Dr Vowels’ report:[18]
It is clear, however, that Dr Vowels was not prepared to conclude that your cognitive disability did, in fact, contribute to your offending.
[18]Ibid [37].
His Honour noted that Mr Sikaloski’s counsel had submitted that Mr Sikaloski’s acquired brain injury and depression called for the application of the principles stated in R v Verdins[19] so as to both moderate general and specific deterrence and to reduce moral culpability. His Honour’s response was as follows:
[19](2007) 16 VR 269.
The principles in R v Verdins may be applicable in a case where the offender is suffering from a mental disorder or abnormality or impairment of mental function. The principles cover a wide range of conditions and I accept that a person suffering from an acquired brain injury and depression may fall within them. Accepting, as I do, that you suffer from an acquired brain injury and depression, it is, nevertheless, necessary for me to determine the nature and severity of your condition and its effect on your mental capacity. It is also necessary to determine how your condition affected your mental capacity at the time of the offending in question.
During the course of the plea hearing the Informant referred me to a number of intercepted telephone conversations in which you discussed trafficking in drugs of dependence. The conversations demonstrated that your role was managerial in nature. In one such conversation you stated you needed 5000 to 10,000 ecstasy tablets per week. You engaged other persons to assist you in your activities. You were involved in the transport of a commercial quantity of cannabis to Darwin, and you used innocent parties to open bank accounts that were to be used in your activities. You gave directions to another person to harvest the cannabis growing at the premises in Reservoir.
I am not satisfied that your mental condition affected you in a way that should reduce your moral culpability for your offending. Your offending was on-going and the result of planning and implementation by you. It was not an isolated event or incident.
In the formulation of a sentence, in a case of trafficking in a commercial quantity of an illegal drug of dependence, general and specific deterrence are significant sentencing factors.
The courts have also repeatedly stated that offending of this type necessitates the imposition of significant penalties. Illegal drugs of dependence cause enormous damage to the society in which we live. It is necessary for the courts to deter persons like you, and others, who may consider offending in the way you have by the imposition of significant terms of imprisonment.
I do not accept that the evidence before me regarding your condition is such that the considerations of general deterrence and specific deterrence should be moderated in your case.
I do not accept that you are not an appropriate person for these considerations to be given proper weight in the formulation of the sentence I must impose.
Nevertheless, I do accept that your personal circumstances have deteriorated since your car accident in 2004 and regrettably your business and marriage failed as a result of that deterioration. I have taken this into account in your favour, in mitigation of the sentence that I must impose.
His Honour did not err in determining that the appellant’s moral culpability was not reduced
Before this Court, Mr Sikaloski submits that his Honour erred in failing to regard his moral culpability as lessened on account of his mental condition. He submits that the sentencing judge was wrong to take into account in this regard that the offending was ongoing and the result of management, planning and implementation. He submits that planning and premeditation are irrelevant and that R v Verdins is capable of applying to premeditated offending.[20]
[20]Written case for the appellant, [1.6], citing BBA v R [2010] VSCA 174, [34].
While I accept that the principles stated in R v Verdins can apply to premeditated offending,[21] it does not follow that evidence of management, planning and implementation are irrelevant to their application. Premeditation is one thing. Extensive, intricate and ongoing planning and management may be another. Evidence of intricate planning and management can be relevant in at least two ways. First, such evidence can help to indicate the level of severity of an individual’s mental condition and the extent to which it affects their capacity to function. Second, it can be relevant in assessing the existence or the strength of any causal link between the condition and the offending.
[21]BBA v R [2010] VSCA 174, [34].
In my view, it was open to his Honour to use the evidence of planning and implementation in the way he did and to conclude that Mr Sikaloski’s mental condition was not such as to indicate any reduction in moral culpability. It follows that it was open to his Honour to give weight to the factors of denunciation and just punishment without moderation.[22] In doing so, his Honour was correctly applying the principle that where R v Verdins is relied upon to reduce moral culpability[23]
the question for the Court is whether the evidence establishes – on the balance of probabilities – that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?
[22]R v Verdins (2007) 16 VR 269, [32, point 1]; R v McIntosh (2008) 191 A Crim R 370, [90], [99]-[101].
[23]R v Carroll [2011] VSCA 150, [20].
In R v Vuadreu this Court emphasised the need to establish a realistic connection between an offender’s mental condition and their offending:[24]
It must be emphasised that Verdins has no application in respect of a condition postulated to have existed at the time of offending unless the condition relied upon can be seen to have some realistic connection with the offending. The Verdins principles are, and should be regarded as, exceptional.
[24][2009] VSCA 262, [37].
In R v Zander this Court explained that cogent evidence of the posited relationship was necessary:
The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters.[25]
[25][2009] VSCA 10, [29].
More recently in R v Mune, this Court again underlined the importance of these considerations:[26]
Verdins must not become that which it was never intended to be: a refuge for those who seek to deny the import of the words which Shakespeare put in the mouth of Cassius: ‘The fault, dear Brutus, is not in our stars, but in ourselves’. It has been held by this Court that the principles of Verdins should be applied only after careful scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other matters.
[26][2011] VSCA 231, [31].
It is trite to say that the burden of establishing a causal link between the offending and any mental condition rests squarely on the defence.[27] Having considered any medical evidence presented by the defence, a trial judge may be entitled to conclude that the offender’s mental condition did not sufficiently contribute to the offending such as to warrant any mitigation of the sentence otherwise appropriate.[28]
[27]R v Acar [2012] VSCA 8, [36].
[28]R v Walker [2011] VSCA 230, [10].
In this case, Mr Sikaloski submits that there was ‘cogent and compelling evidence to link’ his mental impairments and his offending. He points particularly to Dr Vowels’ report which refers to poor thinking and slowed and illogical decision making, difficulties in recognising likely implications of actions and choices, impulsive and self-destructive actions, poor judgment and a reduced ability to grasp the seriousness of actions and likely consequences.[29]
[29]Written case for the appellant, [1.7].
In my view, for three main reasons, Dr Vowels’ report can hardly be described as ‘cogent and compelling’ evidence of the requisite relationship between Mr Sikaloski’s mental condition and his offending.
First, the language Dr Vowels uses to describe the relationship is tentative at best, and I would agree with his Honour’s view that she was not prepared to conclude that Mr Sikaloski’s mental condition did, in fact, contribute to his offending.
Under the heading ‘Relationship between the identified acquired brain impairment and the offending behaviour’, Dr Vowels begins her discussion as follows:[30]
It is possible that his acquired brain impairment, in combination with other negative factors as noted above, could have contributed to his offending behaviours and the crimes he is charged with committing. It could be considered that the onset of his poorer cognitive function with very poor judgment and behaviour out of character with his previous life, coincided with the time of the head injury and how that, combined with the pain and distress from the neck injury would make him vulnerable to making foolish decisions (compromising his business and making him vulnerable to undue influence from others wanting his co operation in illegal activities)…
[30]Neuropsychological Assessment Report of Dr L M Vowels dated 7 October 2010, 5 (emphasis added).
Dr Vowels goes on to posit that Mr Sikaloski’s drug trafficking ‘might be explained (although not excused)’ by his poorer thinking, slowed and illogical decision making and newer difficulties in recognising the likely implications of his actions. Mr Sikaloski’s ‘failure to consider better ways to address his failing business could be argued to be consistent with his reduced ability to see other viewpoints or change his actions’. Mr Sikaloski’s ‘disregard for his own traditional values…could be suggested as part of his impulsive reacting and failure to plan and organise to address his situation in a more sensible way’.
She concludes by noting that:
I suspect that his poorer cognitive function would also have prevented him addressing his depression and anxiety more effectively and hence led to an exacerbation of the emotional distress making him more vulnerable to inappropriate suggestions and pressure from others who involved him in the illegal activities.
Second, many of the links Dr Vowels draws between Mr Sikaloski’s offending and his mental condition stem from the observation that Mr Sikaloski is ‘very poor at planning and organisation with unreliable self monitoring’. Dr Vowels suggests that these impairments prevented him from addressing his financial difficulties in other, legal, ways. However, in light of the uncontested finding that Mr Sikaloski’s offending involved significant planning and organisation, his Honour was entitled to conclude that this aspect of Dr Vowels’ opinion should be given less weight.
Third, Dr Vowels refers more than once to Mr Sikaloski being influenced or pressured by others to enter into drug trafficking activities. It was not put on Mr Sikaloski’s behalf on the plea that he was unduly influenced or pressured by others, nor was there any or any substantial evidence to that effect. In those circumstances, there is no basis for a conclusion that a propensity to be influenced caused or directly contributed to his offending.
The report of Dr Alan Fox does not go far to establish any relevant causative link. Dr Fox does not directly address the relationship between Mr Sikaloski’s mental condition and his offending. Dr Fox states that Mr Sikaloski’s ‘judgment and
thinking are likely to have been impaired to some degree by his depressed thoughts and paranoid thinking/anger’[31] but does not explain with any precision the degree of the impairment or the way in which it contributed to the offending.
[31]Psychological report of Dr Alan Fox dated 22 October 2010, under the heading ‘Diagnosis’.
In my view, on the evidence presented by Mr Sikaloski, it was open to his Honour to find that there was no sufficient causal connection reducing moral culpability.
His Honour did not err in failing to moderate general and specific deterrence
Mr Sikaloski also submits that his Honour erred in failing to moderate general and specific deterrence by reason of his mental impairment. In R v Muldrock[32] the High Court has recently reaffirmed that a mentally impaired offender is often not an appropriate vehicle for deterrence. However, as with reduction in moral culpability and the associated factors of denunciation and just punishment, a diagnosis of mental impairment does not automatically mean that the importance of deterrence as a sentencing factor is reduced. In some cases, such as in Muldrock, moderation of the sentencing factor of deterrence may be called for because the offender’s impairment makes them unable to appreciate the wrongfulness of their conduct. In other cases, it may be called for because the impairment renders the offender unable to understand the consequences of their conduct or limits their ability to resist engaging in unlawful activities.
[32]R v Muldrock [2011] HCA 39, [53]–[55].
In this case, the sentencing judge was entitled to conclude that Mr Sikaloski had not established any sufficient reason to moderate general or specific deterrence as sentencing factors. Whilst Mr Sikaloski’s impairment may have made him reckless about the situation he was getting himself into, there was no evidence that he did not understand the wrongfulness of his conduct or its likely harmful consequences for others. His ‘convincing remorse and shame’ points in the opposite direction.[33] His offending was motivated by financial gain and by the considerable profits to be made through drug trafficking. As the learned sentencing judge said:[34]
In the formulation of a sentence, in a case of trafficking in a commercial quantity of an illegal drug of dependence, general and specific deterrence are significant sentencing factors.
The courts have also repeatedly stated that offending of this type necessitates the imposition of significant penalties. Illegal drugs of dependence cause enormous damage to the society in which we live. It is necessary for the courts to deter persons like you, and others, who may consider offending in the way you have by the imposition of significant terms of imprisonment.
[33]Neuropsychological Assessment Report of Dr L M Vowels dated 7 October 2010, 6. See also Dr Fox’s report in which it is recorded (at p 3) that Mr Sikaloski ‘is not proud of the past and is sorry for any distress or trouble his actions may have caused’.
[34]Reasons for sentence, [44]-[45].
The learned sentencing judge having taken Mr Sikaloski’s impairment and personal circumstances into account as general mitigating factors, it was well open to his Honour not to moderate the factors of general and specific deterrence.
His Honour did not err by not finding that Mr Sikaloski’s mental condition would make his imprisonment more burdensome
Mr Sikaloski further complains that his Honour ‘did not expressly state that he had taken into consideration that a sentence would weigh more heavily on [him] than on a person of normal health, and that a term of imprisonment would be more onerous because of the [his] vulnerability’.[35]
[35]Written case for the appellant, [1.8].
Mr Sikaloski accepts that a failure to refer to a matter does not necessarily indicate that a sentencing judge has failed to consider it but submits that where an acquired brain injury and depression were significant features of the plea, one would expect the sentencing judge to refer to the present point.
This Court has often emphasised that a sentencing judge is not obliged to tick off each of the principles referred to in R v Verdins irrespective of their applicability
on the evidence and where counsel has not specifically relied on them.[36]
[36]R v Zander , [2009] VSCA 10, [33]; R v Davey [2010] VSCA 346, [101]; Azzopardi v R [2011] VSCA 372, [19]; R v Taha [2011] VSC 642, [43].
Mr Sikaloski’s counsel did not distinctly submit that his condition would make his sentence more burdensome. He submitted that “any term of imprisonment would have a fairly great effect on him, given what you’ve heard”.[37] However, this was said mainly in the context of Mr Sikaloski’s family and financial situation and the steps he had taken towards rehabilitation. Counsel did go on to say that the reports spoke for themselves and that there was ample material in Dr Vowels’ report ‘to at least activate the provisions of Verdins’ case’, but counsel qualified this by tying it to Dr Vowels’ ‘conclusion’ about the relationship between the identified acquired brain impairment and the offending behaviour, and by saying that he relied “specifically” upon that conclusion. The question whether the existence of the acquired brain impairment would make prison more burdensome was a substantially different question, and counsel did not squarely raise it.
[37]Plea hearing transcript, p 119-120.
Further, there would have been little evidence to support a submission of the relevant type. Mr Sikaloski relied before this Court on the following remarks by Dr Vowels:[38]
Given his convincing remorse and shame at his actions, I think he would find the inevitable custodial sentence extremely distressing and one wonders how his depressed and devastated mood will be able to be continued to be treated in such a situation.
[38]Neuropsychological Assessment Report of Dr L M Vowels dated 7 October 2010, 6.
Imprisonment is likely to be a distressing experience for most prisoners. Apart from this comment of Dr Vowels (and a statement tending in the opposite direction by the witness Trajkov to the effect that Mr Sikaloski had said that he was not afraid of going to jail for his own sake but only because of his wife and children[39]), there was no evidence before the sentencing judge about the particular effect that imprisonment might have on Mr Sikaloski’s condition, nor about the extent to which his condition might make prison more burdensome. Nor has any attempt been made to adduce fresh evidence in that regard.[40] Dr Vowels’ concern seemed to be that Mr Sikaloski would not be able to access medical treatment in prison. Whilst a prison may not be an ideal environment for those suffering mental illness or impairment, it has not been submitted that mental health treatment is not available to prisoners. It should also be noted that Mr Sikaloski’s acquired brain injury has never been diagnosed by a neurologist. There was no evidence about any particular treatment it may require nor that any such treatment would be unavailable to Mr Sikaloski.
[39]Plea hearing transcript, 87. It appears that Mr Sikaloski said this after actually experiencing 139 days of pre-sentence detention.
[40]Cf AWP v R [2012] VSCA 41, [6]-[13], [57]–[59].
In those circumstances, his Honour did not fall into error in failing to specifically refer to the additional burden that prison might impose on Mr Sikaloski.
Other matters: No different sentence should be imposed
Before us, the Crown acknowledged that it had accepted below that ‘Verdins applied’; and counsel stated that the Crown did not depart from that position on the appeal. However, provided there is no denial of natural justice or procedural fairness,[41] neither the sentencing judge nor this Court is bound by the submissions of the Crown, at least in relation to matters of law or mixed fact and law or discretion, including sentencing range.[42]
[41]And none is suggested here.
[42]Raccosta v R [2012] VSCA 59, [23] and cases there cited; Violatzi v R [2011] VSCA 424, [25]; Park v R [2010] NSWCCA 151, [54]; Palmer v R [2007] NSWCCA 308, [13]; Tarrant v R [2009] NSWCCA 124 [41]-[44]; R v Sullivan [2010] NSWSC 755, [37] (Fullerton J).
What the prosecutor below actually reported to the learned sentencing judge was that a Crown Prosecutor, after forming the view that the Verdins principles should be invoked and that the sentence should be sensibly moderated accordingly, had recommended a total effective head sentence of 5-6 years’ imprisonment and a non-parole period of 3-4 years’ imprisonment.[43] The prosecutor could not say to what extent moderation had occurred in arriving at that range.[44]
[43]Plea hearing transcript, 128.
[44]Ibid.
It will be observed that the total effective head sentence actually imposed was only 3 months greater than the top of the Crown Prosecutor’s range and that the non-parole period fell exactly in the middle of the corresponding range.
Notwithstanding the Crown’s position, and even if specific error could be found amongst the matters relied on by the appellant, I would not be satisfied that this was a case where a different sentence should be imposed.[45]
[45]Criminal Procedure Act 2009, s 281(1)(b).
The maximum sentence for each of counts 1, 2 and 4 was 25 years’ imprisonment. The appellant fell to be sentenced as a serious drug offender on counts 2 and 4.[46] As the learned sentencing judge said, Mr Sikaloski’s trafficking in commercial quantities of drugs of dependence may properly be described as “extremely serious”.[47] The non-parole period imposed represents only 56% of the head sentence. The appellant no longer suggests that the sentence or any element of it was manifestly excessive. In my view, having regard to all of the material before the Court, the sentence imposed should not be disturbed in any event.
[46]Sentencing Act, s 6A, 6D, 6E.
[47]Reasons for sentence, [18].
Conclusion
I would dismiss the appeal.
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