Spiteri v The Queen
[2011] VSCA 33
•21 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0538 | |
| MATTHEW RINO SPITERI | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE and NEAVE JJA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 2 February 2011 |
| DATE OF JUDGMENT | 21 February 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 33 |
| JUDGMENT APPEALED FROM | R v Spiteri (Unreported, County Court of Victoria, Judge Murphy, 19 February 2009) |
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CRIMINAL LAW – Sentence – Cultivating a large commercial quantity of a drug of dependence – Theft of electricity – Appellant sentenced to seven years and 11 months’ imprisonment with a non-parole period of four years and nine months – Whether judge erred in reducing the weight to be accorded to the appellant’s plea of guilty and remorse on the strength of the Crown case and on the basis of the appellant’s admissions – R v Pajic (2009) 23 VR 527 considered – Parity – Whether sentences infringed the principle of parity given the later sentencing of co-offender – Co-offender effectively sentenced to seven years and two months’ imprisonment for the same counts – Appellant pleaded guilty and made admissions, whereas co-offender pleaded not guilty and did not make admissions – Appeal allowed – Appellant re-sentenced to seven years’ imprisonment with a non-parole period of four years and two months.
CRIMINAL LAW – Sentence – Observations about the adequacy of current sentencing practices for offence of cultivating a large commercial quantity of a drug of dependence.
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Appearances: | Counsel | Solicitors |
| For the Appellant | Mr M J Croucher | Theo Magazis & Associates |
| For the Respondent | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
I have had the advantage of reading in draft the reasons for judgment of Kyrou AJA and I agree in substance with what his Honour says about Grounds 2 and 3 and in the orders he proposes.
For the sake of completeness, however, I should say that I do not share Kyrou AJA’s views concerning proposed Ground 1, and I would not uphold it. In my view, the sentencing judge did not err in his assessment of the strength of the Crown case – it was indeed a strong case – and I am not persuaded that his Honour erred in taking it into account in setting the discount to be allowed for the appellant’s plea of guilty.
Although this court held in Pajic[1] that the utilitarian value of a plea of guilty is not affected by the strength of the Crown case, authority makes clear that the strength of the Crown case may cast doubt on the extent of an offender’s remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice,[2] and thereby warrant a lesser discount than might otherwise be thought appropriate.[3]
[1]R v Pajic (2009) 23 VR 527, 532 [20].
[2]Cameron v The Queen (2002) 209 CLR 339, 346 [22].
[3]Siganto v The Queen (1998) 194 CLR 656, 663–4 [22]–[23]; R v Thomson; R v Houlton (2000) 49 NSWLR 383, 412 [118].
As I read the judge’s sentencing remarks concerning the discount to be allowed for the appellant’s plea of guilty, his Honour intended no more than that.
NEAVE JA:
I have had the advantage of reading in draft the judgment of Kyrou AJA and agree for the reasons he gives that the appeal should be allowed and the appellant resentenced. I also agree with Nettle JA's comments on ground 1 relating to his Honour's remarks on the discount to be allowed for the appellant's plea of guilty.
KYROU AJA:
The appellant, Matthew Rino Spiteri, pleaded guilty in the County Court to one count of having cultivated a large commercial quantity of a narcotic plant, namely cannabis L, contrary to s 72 of the Drugs, Poisons and Controlled Substances Act 1981 and one count of theft of electricity, contrary to s 74(1) of the Crimes Act 1958. The maximum penalty for count 1 is life imprisonment and 5,000 penalty units, and the maximum penalty for count 2 is 10 years’ imprisonment.
Following a plea in mitigation of penalty, on 19 February 2009, the appellant was sentenced to seven years and six months’ imprisonment on count 1 and nine months’ imprisonment on count 2. It was directed that five months of the sentence on count 2 be cumulated on the sentence on count 1, resulting in a total effective sentence of seven years and eleven months’ imprisonment. A minimum of four years and nine months’ imprisonment was to be served before the appellant would become eligible for parole.
Pursuant to s 6AAA of the Sentencing Act 1991, the sentencing judge declared that, had the appellant not pleaded guilty, he would have imposed a total effective sentence of 10 years and six months’ imprisonment with a non-parole period of six years and four months.
By consent, the judge also made ancillary orders dealing with compensation, forfeiture, disposal and the obtaining of a forensic sample.
On 9 October 2009, the appellant was granted leave to appeal against sentence.
Circumstances of the offending
The circumstances of the offending appear from the judge’s reasons for sentence.[4]
[4]R v Spiteri (Unreported, County Court of Victoria, Judge Murphy, 19 February 2009) [3]–[13].
On 26 February 2007, the appellant and his co-accused, John Grozdanov, entered into a lease of a factory at 1/65 Merri Concourse, Campbellfield (‘factory’). They used a false name, George Vella, as lessee and stated that the purpose of the lease was to operate a business known as ‘Essential Food and Juices’. The appellant gave a contact mobile phone number for Mr Vella, which number had been registered with Optus using a false name, Matthew Cowsan. After the appellant and Grozdanov took possession of the factory, monthly rental payments were made by electronic funds transfer to the lessor’s agent and the appellant would text the agent to confirm payment. A sign with the words ‘Essential Juices Pty Ltd’ was erected outside the factory.
Around 15 January 2008, the police commenced surveillance of the factory. They detected both the appellant and Grozdanov attending at the factory and using a rental truck to transport items to the Hume tip at Campbellfield. The appellant later told the police that he would mulch waste material and take it to the tip.
Grozdanov attended the factory on four occasions between 6 February 2008 and 16 February 2008. On these occasions, he either parked his car in the surrounding streets and walked the remaining distance to the factory or attended the factory in company with the appellant. The appellant attended the factory on five occasions between 6 and 16 February 2008, and parked his car in the factory car park.
On 16 February 2008, the appellant met Grozdanov at the Campbellfield shopping centre. The appellant took some plastic bags from the boot of Grozdanov’s car which were said by him to contain growth cubes to be used for propagation. He then travelled to the factory.
Later that morning, the police raided the factory. Three ‘grow’ rooms covered the bulk of the factory floor and an extensive hydroponic system was in operation, containing a large number of cannabis plants.
A botanist attended the factory and counted 1,025 cannabis plants growing hydroponically. An additional quantity of loose cannabis was collected. The total weight of cannabis located and seized was 268.9 kilograms. A large commercial quantity of cannabis is 1,000 plants or 250 kilograms.[5]
[5]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70(1), sch 11.
A quantity of cannabis cuttings that had been placed in a chemical solution in a sink was also located at the factory. These cuttings were to be inserted in the growth cubes and placed inside the three grow rooms to become individual cannabis plants.
An electronic bypass had been installed so that the power supply was directed to the hydroponic system without being recorded on the meter. An electrical inspector that attended the factory ascertained that an amount of electricity valued at $38,696.24 had been stolen from the electricity provider, AGL.
The appellant consented to the police searching his home, where they found a small quantity of cannabis and the mobile phone in the false name of Matthew Cowsan.
In the record of interview, the appellant stated that he and Grozdanov entered the lease and provided false details to the lessor’s agent; that he was in possession of the mobile phone in a false name; that he would pay the monthly rent into the bank account of the lessor’s agent and send a text message to the agent confirming payment; that the sign that was erected outside the factory was ‘our sign’; and that he and Grozdanov constructed one grow room in the factory about six weeks after taking possession of the property and subsequently added the other rooms.
In the record of interview, the appellant also stated that there had been two previous crops of cannabis that had been grown and harvested; that he and Grozdanov had split the proceeds equally; that each of the earlier crops had comprised about 50 plants at most; that he had sold his half share for about $1,800 per pound, but that he could not recall the amount harvested or how much money he had made; and that he had attended the factory on the day of his arrest to do maintenance work and to check that everything was running properly. He also stated that the electricity bypass had been installed by Grozdanov.
Grozdanov made a ‘no comment’ record of interview and pleaded not guilty to four counts, which included the two counts with which the appellant was charged. At the time that the appellant was sentenced, the charges against Grozdanov had not been heard. Grozdanov was subsequently found guilty on all four counts and he was sentenced by Judge Gullaci on 22 October 2010.[6] I will refer to Judge Gullaci’s reasons for sentence when I discuss the principle of parity upon which the appellant seeks to rely in this appeal.
[6]DPP (Vic) v Grozdanov [2010] VCC 1527 (22 October 2010).
The appellant’s personal circumstances
The appellant was 30 and 31 years of age when he committed the offences and 32 years of age when he was sentenced. After completing two years of a Bachelor of Arts degree, he discontinued his tertiary studies and held various jobs before entering the home renovation business. In the period leading up to his offending, the appellant was involved in a two-lot property subdivision in Brighton, which was financed by a bank loan. The project encountered financial difficulties at a time that the appellant had accumulated gambling debts. During the plea, the appellant’s counsel stated that the appellant became involved in the criminal enterprise as a means of overcoming his financial difficulties. As a result of the appellant’s arrest, the bank foreclosed on his property development and he was left with no assets.
The appellant’s parents had migrated to Australia from Malta. His mother died soon after he was remanded in custody. He continues to have the support of his father and his older sister, who is a social worker. The director of an import business where the appellant had worked informed the County Court that he was willing to re-employ the appellant. The appellant did not have any prior convictions.
At the time of the offending, the appellant was not suffering from any significant psychological disorder. At the time of the sentence, he was suffering from a significant reactive depression relating to his situation in custody, the death of his mother, remorse over his offending and confusion over the breakdown of a relationship with a young woman.
Grounds of appeal
The appellant has appealed against his sentence on two grounds. At the hearing of the appeal, the appellant sought leave to add a third ground alleging that the sentences imposed on him infringed the principle of parity.
Counsel for the appellant was not able to explain satisfactorily to this Court why an application for leave to amend the grounds of appeal had not been made well before the commencement of the hearing of the appeal. The Court informed the parties that it would decide the application at the time that it decided the substantive appeal.
It is convenient to deal with the two original grounds of appeal before discussing the proposed third ground.
Ground 1: Error in approach to plea of guilty and remorse
Ground 1 alleges that the judge erred:
(a)in concluding that the plea of guilty was made in the face of ‘a very strong Crown case’ and in failing instead to recognise that the appellant had a viable defence; and
(b)in reducing the weight to be accorded to the appellant’s plea of guilty and remorse on account of the strength of the Crown case and the appellant’s admissions.
The judge said the following on the weight to be accorded to the appellant’s plea of guilty and remorse:
The scale and sophistication of this cultivation operation, together with your admissions, are relevant to another submission on the plea; namely that you were entitled to the highest possible discount for the plea of guilty on the basis that you had a potentially viable defence as to the mens rea required to be convicted of this offence under the authority of cases such as R v Garlick [No 2] [2007] VSCA 23 and R v Nguyen [2007] VSCA 165.
While I accept that pleas of guilty are to be encouraged by an appropriate discount for facilitating the course of justice and as evidence of remorse and insight, here I am of the opinion that the plea was made in the face of a very strong Crown case constituted by the direct evidence as to the operation in the factory and your own admissions as [to] your involvement in the cultivation of the three crops. Further, while you made substantial admissions in the record of interview, you were evasive as to the costs associated with the operation and as to the yield and revenues from the first two crops.
I accept the submission that the plea of guilty was made at the earliest opportunity; that there was no contested committal and that you had done all you could to facilitate the course of justice.[7]
[7]R v Spiteri (Unreported, County Court of Victoria, Judge Murphy, 19 February 2009) [30]–[32].
Counsel for the appellant submitted that the judge’s conclusion that the plea of guilty was made in the face of ‘a very strong Crown case’ was not open because the appellant had a viable defence on the requisite mens rea on count 1. In reliance on R v Pajic,[8] counsel also submitted that the judge fell into error by reducing the discount for the plea of guilty and remorse on the basis of the strength of the Crown case. Further, counsel submitted that the judge erred by treating the appellant’s admissions as a distinct and additional reason for affording his plea less mitigatory weight.
[8](2009) 23 VR 527, 532–3 [19]–[23] (‘Pajic’).
In my opinion, in the circumstances of this case, any assessment of whether the appellant had a viable defence on the mens rea on count 1 would have been speculative. For this reason, his Honour was not required to make such an assessment in the exercise of his sentencing discretion.
In Pajic, Redlich JA, with whom Ashley JA agreed, held that the strength of the Crown case could have no bearing upon the discount which is to be allowed by virtue of utilitarian considerations, and that the strength of the Crown case could only warrant a reduction in the discount for a guilty plea if it could be concluded that the plea reflects only limited remorse.[9] His Honour also held that the fact that an offender has made admissions could not of itself provide a foundation for reducing the discount to be allowed for a plea of guilty.[10]
[9]Ibid [20].
[10]Ibid [22].
In my opinion, in the light of Pajic, the judge was wrong to take into account the strength of the Crown case by way of reduction of the discount to be afforded for the guilty plea. As the judge accepted that the appellant was remorseful, the strength of the Crown case could not affect the discount to be allowed for the plea of guilty.
Likewise, the judge was wrong to suggest that the discount to be afforded for the guilty plea could be reduced by virtue of the fact that the appellant’s admissions strengthened the Crown case. The making of admissions that facilitate the course of justice – particularly about matters that would otherwise remain undetected – would ordinarily provide a separate basis for discounting a sentence, in addition to that afforded by a guilty plea.[11]
[11]R v Ellis (1986) 6 NSWLR 603, 604; R v BF (2007) 177 A Crim R 331, 342-3 [53]; Pajic (2009) 23 VR 527, 531 [15]–[16].
These errors, however, do not justify appellate intervention. This is because the judge discounted by 25 per cent the sentence that he would have imposed had the appellant not pleaded guilty. Such a discount was appropriate in all the circumstances. The judge also acknowledged that the appellant ‘had done all [he] could to facilitate the course of justice.’[12] I am not satisfied that his Honour gave inappropriate mitigatory weight to the discount for the guilty plea on the basis of the appellant’s admissions.
[12]R v Spiteri (Unreported, County Court of Victoria, Judge Murphy, 19 February 2009) [32].
Ground 2: Judge’s assessment of the seriousness of the offence
Ground 2 alleges that, in assessing the seriousness of the offence in count 1, the judge made five errors. Each of these five alleged errors is considered below. In my opinion, none of them has any substance.
The first alleged error is that the judge sentenced the appellant for the two previous crops that he had admitted to cultivating, despite the absence of any counts in respect of those crops. Considered in context, the judge’s observations about the previous crops amounted to no more than a statement that the conduct that was the subject of the two counts on which the appellant was convicted was not isolated. The admissions relating to the previous crops were relevant to the appellant’s culpability on the counts on which he was sentenced.
The second alleged error is that the judge’s observation that count 1 involved ‘a large commercial crop cultivated for no other reason than sale’ meant that he treated the offence as one of trafficking rather than one of cultivation. The judge’s observation was a mere statement of fact about the purpose of the cultivation which was open to his Honour on the basis of the appellant’s admissions. His Honour did not sentence the appellant on the count of cultivation as if it were a count of trafficking.
The third alleged error is that the judge failed to take account of the fact that the decisions in R v Sibic[13] and R v Demaria[14] – decisions to which his Honour referred for the purpose of establishing current sentencing practices – concerned trafficking rather than cultivation. Those decisions were relied upon by counsel for the appellant at trial and the judge was well aware that they concerned trafficking rather than cultivation.[15] There is an overlap between the offences of cultivation and trafficking where possession for sale is the basis of the trafficking. Where a large commercial quantity is involved, the two offences carry the same maximum penalty. His Honour was entitled to have regard to Sibic and Demaria in the exercise of his sentencing discretion.
[13](2006) 168 A Crim R 305 (‘Sibic’).
[14][2008] VSCA 105 (16 June 2008) (‘Demaria’).
[15]During the plea, his Honour expressly referred to Sibic as a trafficking case.
The fourth alleged error is that, in assessing the seriousness of the offence, the judge erred in failing to give significant weight to the fact that the applicable large commercial quantity threshold was only just exceeded. In my opinion, the judge was correct to assess the weight to be given to that fact in the light of the other facts of the case, including the fact that the conduct that was the subject of count 1 was not isolated.
The fifth alleged error is that the judge erred in concluding that ‘this was a serious example of such offending’. In my opinion, the judge’s characterisation of the appellant’s offending was accurate.
Proposed ground 3: Parity
Proposed ground 3 alleges that ‘[t]he sentences imposed on the appellant infringe the principles of parity amongst co-offenders when regard is had to the sentences imposed on the co-offender John Grozdanov on 22nd October 2010.’
Grozdanov and the appellant were charged with the same offences, but Grozdanov was charged with an additional count of cultivating a commercial quantity of cannabis and an additional count of theft of electricity. The additional counts related to the cultivation of cannabis plants at another property with which the appellant had no connection.
As discussed at [23] above, Grozdanov pleaded not guilty to all counts. A County Court jury found him guilty on all counts. On 22 October 2010, Judge Gullaci sentenced Grozdanov to seven years’ imprisonment on the count of cultivating a large commercial quantity of cannabis at the factory; to four years’ imprisonment on the count of cultivating a commercial quantity of cannabis at the other property, with 12 months’ cumulation; to nine months’ imprisonment for theft of electricity at the factory, with two months’ cumulation; and to nine months’ imprisonment for theft of electricity at the other property, with two months’ cumulation. The total effective sentence was eight years and four months’ imprisonment, with a non-parole period of five years and four months.
If one disregards the sentences for the counts relating to the other property, the total effective sentence that Judge Gullaci imposed on Grozdanov for the same counts as those with which the appellant was charged was seven years and two months’ imprisonment. The appellant was sentenced to seven years and 11 months’ imprisonment for the same counts, notwithstanding that he pleaded guilty to those counts and made admissions, and that Grozdanov pleaded not guilty and did not make admissions.
In his reasons for sentence, Judge Gullaci said the following in relation to parity:
In considering the question of parity the court must take into account:
1)That Mr Spiteri had pleaded guilty and received a [significant] sentencing discount; and
2)That he pleaded guilty to Cultivation of Cannabis in not less than a large commercial quantity and theft in respect only to the premises at Merri Concourse.
However I wish to make it clear that there are matters referred to in the learned judge’s sentencing remarks that I must not take into account in your case and which were aggravating factors in the offending of Mr Spiteri, such as:
a)Mr Spiteri admitted that there had been two previous crops grown, harvested and sold.
b)That the grow capacity had been increased to expand the amount of cannabis that could be cultivated.
c)That the seedlings located in the solution in the factory when the police executed the warrant were to be inserted into growth tubes and placed inside the grow rooms.
d)That he had received half of the proceeds of the two previous crops.
e)That the large commercial quantity was cultivated for the sole purpose of sale and he expected to receive half of the proceeds.
f)That there was room in these premises to expand the number of plants [being] grown, which was an ongoing commercial cultivation.
I have specifically ignored a number of assertions made on behalf of Mr Spiteri by his counsel, Mr Dunn QC. These include the following:
1)That you were the ‘Mr Big’.
2)That he was, what Mr Dunn referred to as, the ‘Bunny’ or ‘Fall Guy’.
3)That you installed the electrical bypass.
4)That you had leased another factory before he became involved in the cultivation at Merri Concourse.
5)That he was not the principal in this criminal enterprise but that you were.
6)That you were the person who provided the hydroponic expertise and were the initiator of the enterprise to cultivate cannabis in a quantity not less than a large commercial quantity.
Although your counsel, Mr Dane, did not make submissions as to the absence of many of the aggravating features that were present in the circumstances of Mr Spiteri’s case, in my view, these are [significant] and must be reflected in the sentence to be imposed in your case in respect of Merri Concourse and these are the following:
1)There is no evidence in your case as to how this hydroponic setup was financed or who carried out the bypass.
2)There is no evidence that you were the brains or initiator of the enterprise or that you carried out, personally, the electrical bypass.
3)There is no evidence that you were involved in the cultivation, harvesting or sale of two previous crops.
4)There is no evidence you were involved in expanding the setup at Merri Concourse to increase capacity.
5)There is no evidence you have received money from previous sales or that you expected to receive half of the proceeds of the crop that was currently [being] cultivated.
These matters, in my view, are proper matters for the court to consider and call for a reduction in the sentence to be imposed on you in respect of Merri Concourse. Despite the fact that you pleaded not guilty and ran a trial and Mr Spiteri pleaded guilty. Another matter to take into account in determining an appropriate sentence in respect to Merri Concourse is that the number of plants is just over the large commercial quantity as is the weight of the plants.[16]
[16]DPP (Vic) v Grozdanov [2010] VCC 1527 (22 October 2010) [17]–[21].
Counsel for the appellant submitted that the disparity in the sentences imposed on Grozdanov and those imposed on the appellant was such as to give rise to a justifiable sense of grievance in the appellant. He submitted that the appellant’s sentences cannot stand having regard to the mitigating factors that were applicable to the appellant, but that were not applicable to Grozdanov. He referred, in particular, to the following mitigating factors:
(a)the appellant had pleaded guilty, whereas Grozdanov had pleaded not guilty;
(b)the appellant had made admissions which had facilitated the course of justice, whereas Grozdanov had not made any admissions;
(c)in relation to another property, Grozdanov had been convicted on an additional count of cultivating cannabis and an additional count of theft of electricity;
(d)Judge Murphy had found that no significant weight needed to be placed on specific deterrence in relation to the appellant, whereas Judge Gullaci had found that specific deterrence was relevant to Grozdanov;
(e)the appellant was remorseful, whereas Grozdanov was not remorseful; and
(f)the appellant’s offending was no more culpable than that of Grozdanov.
Counsel for the Crown submitted that Judge Gullaci had correctly taken into account the principle of parity in sentencing Grozdanov and that the sentences imposed on the appellant were justified.
Counsel for the Crown contended that, although the fact that the appellant had made admissions voluntarily was a mitigatory factor, his admissions – including the admissions about the two previous crops – formed part of the factual matrix that was relevant to the exercise of the sentencing discretion. As Grozdanov had not made similar admissions, it was said that the same factual matrix did not apply to him. Counsel for the Crown also emphasised that, at the appellant’s plea, his counsel had said on several occasions that the appellant was ‘in it up to his neck’, whereas statements of this kind were not made by counsel for Grozdanov at his plea.
In Postiglione v The Queen,[17] Dawson and Gaudron JJ described the principle of parity of sentencing in the following terms:
The parity principle … is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle … recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.[18]
[17](1997) 189 CLR 295 (‘Postiglione’).
[18](1997) 189 CLR 295, 301 (citations omitted). See also at 309, 323, 335, 338; Lowe v The Queen (1984) 154 CLR 606, 609-10, 612-13, 617-18, 623-4 (‘Lowe’).
It is not sufficient that an offender may subjectively feel a ‘sense of grievance’. The difference between his or her sentence and the sentence of a co-offender must be manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.[19]
[19]R v Taudevin [1996] 2 VR 402, 404, 405; Postiglione (1997) 189 CLR 295, 323, 338; Lowe (1984) 154 CLR 606, 610, 613.
Recently, in Fletcher v The Queen,[20] this Court observed that the High Court has not had to consider the application of the parity principle in circumstances where a marked disparity exists between a sentence given to an offender that, considered by itself, would be entirely appropriate and a sentence given to his or her co-offender that is manifestly inadequate.[21] The Court said that, in those circumstances, the manifestly inadequate sentence imposed on the co-offender should not be entirely ignored. Rather, ‘[w]here the disproportion between the sentences is manifestly, and not merely arguably, excessive, the sentence, though otherwise within range and appropriate, may be reduced to avoid the feeling of injustice felt by the co-offender’, provided that the sentence is not reduced to a point that it also becomes manifestly inadequate.[22]
[20][2011] VSCA 4 (20 January 2011) (‘Fletcher’).
[21]Fletcher [2011] VSCA 4 (20 January 2011) [30]. But see the opinions expressed by Mason J and Brennan J in Lowe (1984) 154 CLR 606, 613-14 (Mason J), 617-18 (Brennan J).
[22]Fletcher [2011] VSCA 4 (20 January 2011) [32].
In this case, the sentence that was imposed by Judge Gullaci on Grozdanov was lower than the sentence that was imposed by Judge Murphy on the appellant for the offence of cultivating a large commercial quantity of cannabis, notwithstanding that their culpability was not materially different and that the appellant pleaded guilty to that offence and made admissions, whereas Grozdanov pleaded not guilty to that offence and did not make any admissions. Moreover, the mitigatory circumstances that are set out at [49] above applied to the appellant, but they did not apply to Grozdanov. In my opinion, the disparity in the treatment of the two offenders is manifestly excessive and is such as to engender a justified sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.
As a matter of public policy, the law encourages offenders to facilitate the course of justice by pleading guilty and making admissions at the earliest possible opportunity. It provides an incentive for them to do so in the form of an appropriate discount on the sentence that would otherwise be imposed. In the circumstances of this case, an objective observer would be justified in thinking that, when the sentence that was imposed on the appellant is compared to the sentence that was imposed on Grozdanov, the appellant’s guilty plea and admissions had a detrimental, rather than a beneficial, impact on his sentence. Such an outcome would be contrary to principle.
In determining whether the disparity in the sentences of the appellant and Grozdanov justifies a reopening of the sentencing discretion in relation to the appellant, it is relevant for this Court to consider whether the sentences that were imposed on Grozdanov were consistent with current sentencing practices.
In ascertaining current sentencing practices, some assistance can be obtained from the Sentencing Advisory Council’s ‘Sentencing Snapshot’ for the offence of trafficking in a large commercial quantity of drugs.[23] A similar snapshot is not available for the offence of cultivating a large commercial quantity of drugs. The maximum penalty for both offences is life imprisonment and 5,000 penalty units.
[23]Sentencing Advisory Council, Sentencing Snapshot No 102: Trafficking in a Large Commercial Quantity of Drugs (2010) (‘Snapshot’).
According to the Snapshot, between 2004-05 and 2008-09, 70 people were sentenced for trafficking in a large commercial quantity of drugs. The median term of imprisonment for this offence was six years and six months, and the median total effective sentence for this offence and other offences for which the offender was sentenced at the same time was seven years. The most common length of imprisonment imposed for the offence was six years. The average length of imprisonment imposed for the offence ranged from six years in 2004-05 to eight years and one month in 2007-08.
Considerable care is required in relying on statistics of this type.[24] By themselves, they do not establish a sentencing practice.[25] They can, however, provide a broad overview of current sentencing practices and trends in sentencing.
[24]See DPP (Vic) v Maynard [2009] VSCA 129 (11 June 2009) [32]–[35] (‘Maynard’); R v Tran [2009] VSCA 252 (12 October 2009) [25].
[25]Maynard [2009] VSCA 129 (11 June 2009) [35].
Although I would regard the sentences that were imposed on Grozdanov by Judge Gullaci as lenient, it cannot be said that they were inconsistent with current sentencing practices.[26] Nor can it be said that the sentences were manifestly inadequate.
[26]I discuss the appropriateness of the current sentencing practices below.
It follows that I would grant the appellant’s application for leave to amend the notice of appeal to add ground 3 and that I would uphold ground 3.
Disposition of appeal
The question that now arises is whether this Court should intervene.
Counsel for the appellant submitted that, having regard to the principle of parity, the appellant should be re-sentenced to a term of imprisonment of between five and five and a half years on count 1, and six months’ imprisonment on count 2, with cumulation of one to two months’ imprisonment; that the total effective sentence should be between five years and two months and five years and eight months’ imprisonment; and that the non-parole period should be no more than three and a half years.
Counsel for the Crown submitted that the Court should not intervene as Judge Gullaci had taken into account the principle of parity and there were aggravating circumstances in the appellant’s offending which were absent from Grozdanov’s offending.
In my opinion, notwithstanding that the appellant’s sentences did not warrant appellate intervention at the time that they were imposed, in the light of the sentences that were subsequently imposed on Grozdanov, it would be unfair and contrary to the notion of equal justice to allow the sentences that were imposed on the appellant to stand.
Re-sentencing
I would set aside the sentences imposed below and, in lieu of those sentences, re‑sentence the appellant as follows:
(a)On count 1 (cultivating a large commercial quantity of cannabis) to six years and nine months’ imprisonment.
(b)On count 2 (theft of electricity) to seven months’ imprisonment.
I would order that three months of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1, making a total effective sentence of seven years’ imprisonment. I would set a non-parole period of four years and two months.
For the purposes of s 6AAA of the Sentencing Act 1991, I would declare that, but for the appellant’s plea of guilty, I would have imposed a sentence of nine years’ imprisonment on count 1 and 12 months’ imprisonment on count 2, and would have ordered that six months of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1, making a total effective sentence of nine years and six months’ imprisonment. I would have set a non-parole period of six years.
I would confirm all ancillary orders.
Adequacy of current sentencing practices
As this appeal has necessitated a consideration of current sentencing practices, it is appropriate that I make some brief observations about the adequacy of those practices.
The maximum penalty of life imprisonment and 5,000 penalty units for the offence of cultivating a large commercial quantity of drugs and the offence of trafficking a large commercial quantity of drugs clearly reflects the Parliament’s view that these are serious crimes and that those who commit them should receive a substantial term of imprisonment. As in this case, these offences usually involve highly organised, well resourced and sophisticated operations. While recognising that the circumstances of each offender are unique and that sentencing considerations must be applied in the light of the facts of each case, it seems to me that a median term of imprisonment in the vicinity of six years and six months for cultivating or trafficking a large commercial quantity of drugs does not adequately reflect the seriousness of these offences.
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