Smith v The Queen
[2011] VSCA 185
•9 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0102
| ALLAN JOHN SMITH |
| Appellant |
| v |
| THE QUEEN |
| Respondent |
---
| JUDGES | MAXWELL ACJ and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 June 2011 |
| DATE OF JUDGMENT | 9 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 185 |
| JUDGMENT APPEALED FROM | R v Smith (Unreported, County Court of Victoria, Judge M P Bourke, 18 March 2010) |
---
CRIMINAL LAW – Appeal against sentence – No point of principle – Appeal dismissed – Leave to appeal on further ground refused.
---
| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Martin Irwin & Richards Lawyers |
| For the Respondent | Mr M I Roper | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P:
I will invite Lasry AJA to deliver the first judgment.
LASRY AJA:
On 18 March 2010 the appellant was sentenced in the County Court on three counts of trafficking in a drug of dependence. Count 1 was that between 8 November 2005 and 10 February 2006, he trafficked in a drug of dependence namely amphetamine. Count 2 was that between the same dates he trafficked in a drug of dependence namely Cannabis L. Count 3 was that between the same dates he trafficked in a drug of dependence, namely MDMA.
The appellant had been presented on the basis that these offences were committed jointly with Aaron James Starr as well as others who came to the attention of police during their investigation.
The sentence imposed on the appellant was an aggregate sentence on the three counts of three and a half years' imprisonment. The sentencing judge set a minimum term of two years before the appellant would be eligible to apply for parole. Pre‑sentence detention was declared at 17 days and pursuant to s 6AAA of the Sentencing Act1991 (Vic), his Honour indicated that without the plea of guilty, the appellant would have been sentenced to a total effective aggregate term of five and a half years with a minimum term of four years.
On 12 April 2010 the appellant gave notice of application for leave to appeal against the sentence imposed on the ground that the sentence was manifestly excessive. A notice of appeal dated 14 April 2010 set out three grounds of appeal, the substance of which were:
(1) that the sentences were manifestly excessive;
(2) that the sentencing judge was in error in imposing the same aggregate sentence on the appellant and Starr; and
(3) that there was a manifest disparity in the sentence imposed on the appellant with that imposed on the co‑offender, Donna Gay Pierson.
On 10 December 2010 the appellant applied for leave to appeal. After consideration, pursuant to s 315 of the Criminal Procedure Act 2009, Nettle JA granted leave in relation to what was then ground 2 of the appeal on the particular basis that the sentencing judge may have been in error in the manner in which he dealt with the effect that a physical injury may have on the appellant in making his time in custody more burdensome. His Honour concluded that grounds 1 and 3 were not reasonably arguable and leave was not granted in respect of those grounds.
On 19 January 2011, a full statement of grounds of appeal was filed. The grounds stated are as follows:
(1) the learned sentencing judge erred in failing to impose a lesser sentence on the appellant than on the co‑offender Starr and;
(2) the sentence imposed on the appellant is so manifestly disparate from that imposed on the co‑offender Pierson as to give rise to a legitimate sense of grievance.
It follows that the grant of leave by Nettle JA on 10 December 2010 applied to ground 1 but not to ground 2.
Circumstances of offending
This matter arose out of an investigation by police into drug trafficking activities in the Mildura area. Between 8 November 2005 and 10 February 2006, telephone intercepts were monitored in relation to the mobile phones of the appellant and Starr who were the principal targets of the operation. The result of that investigation was to establish that the appellant and Starr were dealing in street level quantities of amphetamine, cannabis and MDMA and that the customers of the operation were end users of the drug and other people described as ‘low level’ drug dealers.
Another person involved at the higher end of the operation was Donna Gay Pierson and it appears common ground that Smith, Starr and Pierson, together with others, were heavy users of amphetamine themselves.
The investigation extracted a significant amount of detail about the manner in which drugs were sold and the way in which codes were being used in order to facilitate the sale. The codes were used on the basis that it was suspected that phone conversations were being monitored. The codes had a connection with the painting industry which was a business in which both the appellant and Starr had been previously involved.
According to the material before the sentencing judge, the appellant and Starr spent most of their time arranging the collection of outstanding drug money, which was described as ‘rent’, and organising supplies of amphetamines and other drugs to use and traffic. They used a variety of vehicles and a number of mobile telephones to conduct their business.
On 10 February 2006, after the arrest of the appellant, an interview was conducted. He answered ‘no comment’ in response to all questions asked of him by police but consented to the police taking his fingerprints.
Parity and the sentence imposed on Starr
The accomplice, Aaron Starr, presented a plea before the sentencing judge on 20 January 2010. He pleaded guilty to counts 1 and 2 on a presentment concerning trafficking amphetamines and cannabis and, on 2 February 2010, his Honour sentenced Starr to an aggregate term of three and a half years' imprisonment, directing that two years be served before he would become eligible to apply for parole. He thus received the same sentence as the appellant.
With respect, and for the reasons given by the sentencing judge, I agree with him that, ‘the centrally important sentencing considerations and factors are the same’ in respect of both the appellant and Starr. I propose to deal with this ground on the basis of the qualification to that view raised by Nettle JA on the application for leave, that is, whether because of the injuries to the appellant, prison would be a greater burden for him than for Starr and that therefore he should have received a significantly lesser sentence.
During the course of the plea the judge was informed that whilst on bail for this matter on 27 July 2007, the appellant was involved in a motor vehicle accident. Counsel told his Honour that as a result of the accident the appellant had had his spleen removed. All but one of the appellant's ribs were broken and he had a number of fractures in the thoracic region of his spine. Whilst hospitalised he developed a first generational golden staph infection and was placed in quarantine. As a result of that infection, 20 per cent of one of his lungs was removed. He was hospitalised for about a month.
In answer to a question from the sentencing judge, counsel for the appellant said he was now in some pain but was stoic about it and gets on with his life. As to the effect of these injuries on the sentence he would serve, counsel's submissions were to the following effect:
HIS HONOUR: What do you say about his personal circumstances? Do they very significantly make gaol more difficult for him?
COUNSEL: Well, in a sense they would, Your Honour. He's ambulant, but he's unable to stay in one position for very long. Interestingly in his last sentence, his industriousness was rewarded. He got his tickets in rigging and so on, which he didn't have time to do when he was at liberty, because he was working so hard as a painter and decorator.
HIS HONOUR: So to an extent, gaol will be more difficult because of his health difficulties.
COUNSEL: Yes.
HIS HONOUR: There's no requirement for medication but he's limited, physically limited.
COUNSEL: To differentiate from Starr, Your Honour ‑ ‑ ‑
HIS HONOUR: Yes. Do you argue disparity?
COUNSEL: In a sense, Your Honour, only because of personal circumstances, and that is this: that Mr Starr has an extensive - well, in comparison, extensive criminal history. He's on bail for armed robbery.
It is apparent that no evidence in the form of medical witnesses, records or reports was presented to his Honour in order to identify in detail the continuing consequences of these injuries.
In imposing sentence and dealing with the issue raised by counsel, his Honour said:
You have health problems. You carry hepatitis C which is not symptomatic. In July 2007 you were involved in a serious motor vehicle collision suffering the loss of your spleen and 20 per cent of a lung, broken ribs and a fracture to your thoracic spine. You still suffer pain and discomfort but you do not use medication. These injuries and very likely drug use have affected your ability to work.
At one time you owned a number of properties, you have no assets left, the main cost having been your divorce and legal expenses particularly related to criminal proceedings against you in 2000 to 2002. It was not suggested to me that your health could not be properly managed in prison. However, it is probable that because particularly of your injuries and their aftermath, imprisonment, to some extent, will be more difficult for you.
In Sumner v The Queen, [1] this Court noted:
The question was not simply whether the applicant's ailments could be treated appropriately in prison. As King CJ made clear in R v Smith:
Ill health is a mitigating factor when it appears that imprisonment will be a greater burden on the offender by reason of his state of health are when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health. [2]
The sentencing judge in the present case had regard only to the second matter. It is settled that there are indeed two different ways in which ill health may be a factor mitigating punishment.[3] The question is not whether imprisonment will make it more difficult for an offender to cope with his illness or disability, but whether the offender’s ill health will make imprisonment a greater burden. The ailments from which the applicant suffered in my view were likely to render imprisonment more burdensome to the applicant. His Honour gave no reason to saying that he could not conclude that the applicant’s ill health would make imprisonment a greater burden. The very nature of the conditions from which the applicant suffered would normally lead to the conclusion that imprisonment would weigh more heavily upon him.[4]
[1][2010] VSCA 298 [35].
[2]R v Smith (1987) 44 SASR 587, 589.
[3]See, eg, R v McDonald (1988) 38 A Crim R 470, 475; R v Morgan (1996) 97 A Crim R 104, 107.
[4]See R v Van Boxtel (2005) 11 VR 258, 267-8 (Callaway JA).
In my opinion by that part of his Honour's sentencing remarks to which I have already referred, where his Honour noted that it was probable that, particularly because of the appellant's injuries and their aftermath, imprisonment, to some extent, would be more difficult for him, he had taken the matter into account in the manner in which he was required to do so. Bearing in mind that there was no detailed medical evidence containing an expert prognosis of the likely effect of being in custody on the residual effect of these injures, little more could be expected of his Honour than what he actually said.
Imposing the question under this ground as to whether or not in the circumstances a lack of disparity between the sentence imposed on the appellant and the sentence imposed on Starr would result in the conclusion that the sentence which was imposed on the appellant was not reasonably open, the answer must surely be no.
Parity and the sentence imposed on Donna Pierson
Ground 2, on which leave was not granted, asserts that there is a manifest disparity on the sentence imposed on the appellant and that imposed on the co‑offender Pierson such as to require a reduction in the sentence of the appellant.
Donna Gay Pierson was sentenced by his Honour on 31 March 2010, some 13 days after the appellant. Pierson pleaded guilty to one count of trafficking and drug of dependence, being amphetamine, and one count of possession of cannabis. On the first count she was sentenced to 12 months' imprisonment. On the second count, which is of no significance, she was fined $100.
In the course of his Honour's reasons, he noted that Donna Pierson was an indigenous woman and drug addicted. It was common ground that she sold amphetamine at street level quantities to her friends. She was already undergoing a sentence in Melbourne. She had three young children and two older children. Her youngest child at the time of being sentenced was five months old. Some of her prior convictions relate to drug offences and there were also subsequent offences concerning dishonesty, driving offences and drug offences.
Based on evidence from a drug and alcohol withdrawal nurse at the Sunraysia Community Health Service, Ms Pierson had sought an opportunity to enter a residential drug rehabilitation program in Melbourne. His Honour originally regarded such a program as a potential alternative to immediate custody and the matter was adjourned for that purpose. However, the alternative failed and Ms Pierson committed further offences for which she was sentenced.
Those matters were finalised in an appeal in the County Court on 4 March 2010. On that date she was sentenced to 17 months' imprisonment with a minimum to be served of 11 months before eligibility for parole. His Honour effectively consolidated the sentences and fixed a new parole period which was 12 months commencing on 31 March 2010.
His Honour found that Pierson's role was significantly less than the appellant's or that of Starr. He also paid attention to the delay in sentencing and in particular, as relevant to Pierson, the principle of totality. His Honour quite properly concluded that given the difficulties that flowed for Ms Pierson's young children, some mercy was justified. He concluded that he should impose a sentence that would result in a minimum term to be served before Ms Pierson was eligible for parole of 12 months. The appellant's minimum term was two years.
In my opinion, this ground of appeal is without foundation since it also requires the appellant to establish that the sentence imposed on him was, in all the circumstances, not reasonably open. As Nettle JA observed in the application for leave, the role of the appellant was significantly greater and the sentencing judge appropriately reached that conclusion. In addition, the hardship flowing to Ms Pierson from her family circumstances would also inevitably lead to a significantly lesser sentence.
I would dismiss the appeal on ground 1 and I would refuse leave to appeal on ground 2.
MAXWELL ACJ:
I agree.
As is apparent from the reasons of Lasry AJA, this appeal and application give rise to no point of principle. When the proposed new arrangement for non-publication comes into force, a decision of this kind will no longer be published generally but only to the parties. The intent of the new arrangement is to reduce the volume of fact-specific decisions which judges and practitioners are obliged to review. A decision which is stated as involving no point of principle will not be able to be cited without leave of the Court.
It is expected that those arrangements will come into force, with proper notice to practitioners, in the near future.
The orders of the Court are that:
(1) The appeal is dismissed; and
(2) The application for leave to appeal is refused.
‑ ‑ ‑
0
0
0