Walker v The Queen

[2011] VSCA 230

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0083

LEANNE ELIZABETH WALKER
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HARPER and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2011
DATE OF JUDGMENT:	2 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 230
JUDGMENT APPEALED FROM:	DPP v Walker (Unreported, County Court of Victoria, Judge Hampel, 23 March 2010)

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CRIMINAL LAW – Sentence – Two counts of trafficking in a drug of dependence – Plea of guilty – Applicant sentenced to total effective sentence of four years' imprisonment with a non‑parole period of 2 years – Election following refusal of leave to appeal – Whether sentencing judge erred in not finding a nexus between the applicant’s mental state and offending – Whether sufficient weight given to mitigating factors – Whether sentence manifestly excessive – Parity – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Valos Black & Associates
For the Crown	Mr M Roper	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

1. This application for leave to appeal follows an earlier refusal by Maxwell P to grant such leave. The earlier application was determined on the papers. Pursuant to s 315(2) of the Criminal Procedure Act 2009, the matter now comes before a bench of two.

1. The applicant pleaded guilty in the County Court to two charges of trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981.  The maximum penalty for this offence is 15 years’ imprisonment.  On 23 March 2010 she was sentenced to four years’ imprisonment on each count to be served concurrently.  The total effective sentence was therefore four years' imprisonment.  It was ordered that she serve two years before being eligible for parole. 

1. The trafficking occurred over a five month period between 7 April 2008 and the following 16 September in Warrnambool and the surrounding area.  The applicant ran the operation.  She not only negotiated with her drug supplier, a man based in Melbourne and named Bill Nikolakos, but also chose how the drugs were distributed, how the money was collected and the nature of the transactions.  In addition, she recruited those involved, three of whom were her daughters and their partners.  Two of those daughters are sufficiently young to have been dealt with in the Children's Court. 

1. The applicant also kept careful records of the trafficking transactions.  The amount found by the police to have been made by her over the five months of her offending totalled $128,000.  The judge was satisfied that it was a sophisticated operation.

1. The applicant raised three proposed grounds of appeal:

(a) the sentencing judge erred in not finding a nexus between the applicant’s mental impairment and the offending such that her moral culpability was reduced;

(b)the sentencing judge failed to give adequate weight to the mitigating factor of the applicant’s history of abuse and repeated trauma;  and

(c)the sentence was manifestly excessive having regard to the mitigating factors.

1. The applicant has now filed an application to add a ground not put before the President.  This raises a parity issue and is in the following terms: 

The sentencing judge erred by imposing terms of imprisonment on counts 1 and 2 which:

(a)disclosed insufficient disparity with those imposed upon her co‑offender, one Nikolakos;  and

(b)engendered in the applicant a justifiable sense of grievance.

1. In support of the first ground, the applicant submits that despite extensive evidence that her judgment was impaired by mental health problems, which evidence her Honour accepted, the judge’s conclusions were at odds with those findings.  Principal amongst the relevant evidence is the conclusion of Mr Jeffrey Cummins, a consulting, clinical and forensic psychologist, that the applicant's offending behaviour should be viewed as being reflective of her mental health problems.  The judge nevertheless could not find a causal connection between those problems and the applicant's offending conduct.

1. What the applicant must show is that on the balance of probabilities her moral culpability has been reduced by her impaired mental functioning.[1]  In deciding whether the burden of proof had been discharged, the judge was entitled to examine the offending conduct and set that against Mr Cummins’ opinion.  I have already noted that the applicant was in charge of a sophisticated operation involving negotiations with her Melbourne supplier (Nikolakos), the selection and distribution of the drugs, how the money was collected and the nature of the transactions.  She also, as I have said, recruited those involved in the Warrnambool operations.  The applicant was the bookkeeper for the business, a task which she undertook with apparent skill and dedication.  She also evinced a preparedness to take whatever steps she reasonably could to avoid the detection of the trafficking business.

   [1]R v Verdins (2007) 16 VR 269.

1. This conduct is very difficult to reconcile with reduced moral culpability.  The Crown's position is that the evidence given by Mr Cummins was, ‘vague, tenuous and speculative’.  According to the Crown, that evidence did not establish that the applicant's mental condition directly contributed to the offending.  Even if such a link were established, the moderation of the moral culpability must, the Crown submitted, be ‘slight at best’.

1. In my opinion, it was open to her Honour to hold that even if the level of planning and sophistication of the applicant's trafficking could be reconciled with Mr Cummins’ opinion that there was a causal connection between the applicant's mental health and her offending, it was nevertheless open to the judge to conclude that those problems were not such as to affect the applicant's moral culpability.  I respectfully agree with the President in concluding that this ground is not reasonably arguable.  The sentencing judge's application of the principles set out by this court in R v Verdins was exceptionally thorough and careful.  Her Honour's conclusion regarding the nature of the causal link, or lack thereof, between impairment and offending was well open on the medical evidence tendered.  As in R v Shafik-Eid[2] and R v Zander,[3] her Honour was entitled to conclude that the applicant’s mental impairment did not directly contribute to her offending behaviour.

   [2][2009] VSCA 217.

   [3][2009] VSCA 10.

1. The first ground of appeal is therefore not made out.

1. The second ground is that the sentencing judge failed to give adequate weight to the applicant's history of abuse and repeated trauma.  This ground, however, has the difficulty that her Honour spent much time and care in her examination of that abuse and trauma, as an examination of her reasons for sentence at [44], [48] to [55], [82], [88] and [96] reveals.  In the light of her Honour's clear demonstration of her understanding of this aspect of the applicant's history, and the care with which she analysed the evidence, this ground can only be made good if it can be demonstrated that the sentence was so far outside the appropriate range that, in arriving at it, her Honour must somehow have fallen into error; and this despite the care she took in discharging her task.

1. The second ground of appeal therefore merges with the third:  which is that the sentence was manifestly excessive having regard to the mitigating factors. 

1. According to the Crown, the non‑parole period was generous and reflected her Honour’s acceptance of the applicant's prospects of rehabilitation.  The Crown also contended that the total effective sentence and the non‑parole period fell within the permissible range.  This can be seen, it is submitted, when one considers the seriousness of the offending, the five month period involved, the quantities traded, the dominant role of the applicant, the impact of the offending upon the community, the involvement of the children and the need for deterrence.  The Crown submits that the sentence was lenient in all the circumstances.

1. In my opinion, the sentences imposed by her Honour cannot be regarded as lenient, but nor can they be said to be manifestly excessive.  In long and careful sentencing reasons, her Honour discussed all the mitigating circumstances about which there was evidence.  The sentence itself, although stern, cannot, in my opinion, be said to be so far beyond the range open to her Honour as to fall within the proper definition of being manifestly excessive. 

1. That brings me to the final ground which is the ground that the applicant has sought to add.  The application to add this ground was not opposed and we will give leave to add it.  It, as I have said, goes to the question of parity.

1. The first point to be made in relation to this ground is that the question of parity itself is not one that strikes the observer with the close and direct connection as between co‑offenders which sometimes obtains.  Nevertheless, I am prepared accept that the connection between the applicant and her supplier was, in the present circumstances, sufficiently close for the two to be capable of being dealt with as co‑offenders.

1. The disparity between the sentences was effectively six months’ imprisonment given that the total effective sentence was four years, in the case of the applicant, and four years and six months in the case of the co‑offender.

1. There are arguments which have force, it seems to me, in support of the proposition that a greater disparity ought to have been the ultimate result of the sentencing process when both sets of sentences are taken into account.

1. At the same time, however, two different judges were required to consider two different offenders and, necessarily, two different sets of circumstances surrounding their offending.  One important circumstance, it seems to me, was that the applicant recruited three of her daughters to the trafficking enterprise and that two of those daughters were sufficiently youthful to be within the jurisdiction of the Children's Court.  That segment of the applicant's offending is, in my opinion, of very great gravity;  such as to explain, what might otherwise be seen to be an unacceptably small difference between the sentences imposed upon one co‑offender and another.

1. In all the circumstances the discrepancy is not such as to induce me to conclude that there was here a breach of the so‑called principle of parity.  Accordingly the added ground also fails.

HANSEN JA:

1. I agree.

HARPER JA:

1. The order of the Court will be that the application for leave to appeal be dismissed.

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