Court of Appeal (Vic)|2011-04-20|Before: Weinberg JA, Ashley JA

Beckerton v The Queen [2011] VSCA 107 (20 April 2011)

R v Scott & Ors (Unreported, County Court of Victoria, Judge Howard, 19 November 2009)

1 I have had the advantage of reading the reasons of Weinberg JA in draft. I agree with his Honour that the application for leave to appeal should be refused.

2 Notwithstanding that conclusion, I consider that the judge's sentencing remarks, fairly read, contained a number of errors.

3 First, for reasons discussed in other cases in which his Honour employed similar language, what he said about the significance of delay as a sentencing consideration was inconsistent with principle.[1]

4 Second, in this case, for reasons described by Weinberg JA, it was not apt to say of the applicant that 'to the extent that you better understood [the disabilities of consumers and addicts at street level] so much the worse is your offending.'

5 Third, the judge's remarks at his [82], which Weinberg JA discusses at [46]-[50] in his reasons, in my opinion can only sensibly be read as meaning that the judge treated an accumulation of circumstances as bearing upon the applicant's moral culpability, prospects of rehabilitation and dangerous propensity from which the community must be protected. But several of the identified circumstances could not have borne upon moral culpability.

6 The judge's sentencing remarks were extensive. Most of what his Honour said was apt to explain why he imposed the sentences which he did. Nonetheless, one would infer, had he not erred in the manner which he did, that he would have imposed somewhat lesser sentences. But that does not avail the applicant. This Court must still think that a different sentence should have been passed;[2] and, like Weinberg JA, I am not so satisfied.

7 The applicant, Cheryl Beckerton, pleaded guilty in the County Court at Melbourne on 23 February 2009, to one count of trafficking in cannabis (count 1), one count of trafficking in methylamphetamine (count 2), one count of possession of methylamphetamine (count 3) and one count of possession of cannabis (count 4).

8 Count 1 involved a total of 7.65 pounds of cannabis that was sold, or offered for sale, between September and December 2005. Count 2 concerned the sale of 238 grams of methylamphetamine between August 2005 and January 2006. Counts 3 and 4 concerned the possession of small quantities of methylamphetamine and cannabis, respectively, and it was accepted that the possession of these drugs was for the applicant's personal use.

9 After a plea that was heard on 5 June and 11 June 2009, the applicant was sentenced on 19 November 2009 as follows:

10 Count 2 was treated as the base sentence. Six months of the sentence on count 1 was ordered to be served cumulatively upon the sentence on count 2. That made a total effective sentence of three years and six months' imprisonment with total fines of $500. A non-parole period of two years and six months was fixed.

11 The maximum sentence available for trafficking in a drug of dependence is 15 years' imprisonment.[3]

12 The applicant was one of a number of offenders whose involvement in trafficking drugs came to light as a result of a major investigation by Victoria Police between August 2005 and January 2006. The investigation bore the name 'Operation Jedi', and involved the covert recording of thousands of hours of intercepted telephone conversations, the surveillance of numerous suspects, and the seizure of substantial quantities of drugs.

13 Counts 1 and 2 were 'Giretti' counts. By that, I mean that the applicant's offending involved her having engaged in an ongoing business, between dates, of supplying cannabis and methylamphetamine for gain.

14 In relation to count 1, the applicant aided and abetted the sale of three pounds of cannabis to one John Waters, a principal, and perhaps the major player, in the drug ring investigated as 'Operation Jedi'. She supplied him with the cannabis which was sourced from a unidentified third party. She also offered for sale, to an unidentified person, two pounds of cannabis. Finally, she sold to yet another unidentified person some 2.65 pounds of cannabis.

15 The sentencing judge noted that a commercial quantity of cannabis consists of not less than 25 kilograms. That led his Honour to say that the applicant had engaged in 'trafficking at a low level of the trafficking simpliciter category'. His Honour added that, nevertheless, this was 'wholesale, sophisticated and energetic conduct and it involved considerable worth'. He noted that the agreed value of selling that amount of cannabis at street level was somewhere between $68,540 and $102,810, if sold on a per gram basis, or somewhat less if sold on a per ounce, or per pound, basis.

16 Count 2, which, as I have said, involved the sale of 238 grams of methylamphetamine, arose out of nine separate transactions. The general arrangement was that Waters would supply the applicant on a regular basis with the drug, and she would collect the proceeds of sale for him from downstream customers.

17 Once again, the applicant was described by the sentencing judge as having trafficked 'at a low level of the trafficking simpliciter category'. Nonetheless, her involvement in this offence was designated as 'wholesale, sophisticated and energetic conduct concerning drugs worth a lot of money'.

18 The street value of the methylamphetamine that the applicant sold was said to be about $42,000 to $83,000 if sold on a per gram basis, or somewhat less if sold in one ounce or 28 gram lots.

19 The Crown case in relation to count 2 was that the applicant generally sold the methylamphetamine for $200 per gram, or $1,400 per seven gram lots. If that were correct, the applicant received a total of about $47,600 for the drugs that she sold. The difference between that amount, and the amount that she paid Waters, from whom she bought the drugs, meant that she made a profit of somewhere between $10,000 to $20,000 in respect of the methylamphetamine that she sold.

20 The applicant was aged 40 at the time of sentencing, and about 36 or 37 at the time of her offending. She was born in England, and immigrated to Australia at about the age of five. Her father was in the Royal Australian Navy. This meant that the applicant had a disrupted childhood, as the family moved home many times. In spite of that dislocation, she had maintained a close relationship with her parents, and with most of her siblings.

21 When the applicant was aged about 16, she began using drugs. She left home and soon fell pregnant. She had her first child, a daughter, in 1986 when she was 17. That daughter now has two young children of her own. The applicant had her second child, a son, in 1989, and a third child, a daughter, in 1998. All three children were the product of different relationships. Essentially, the applicant had cared for them as a single parent. By all accounts, she had been a good mother to her children.

22 Sadly, the applicant had continued using drugs throughout a good part of her adult life. This involved use of amphetamines and cannabis, such use extending over the period of the current offences. She had not, however, used either heroin or Ecstasy. Nor, it seemed, had she used any other drug of dependence.

23 The applicant had accumulated a lengthy criminal record. Over an 18 year period from 1988, when she was 18, to 2005, when she was 36, she had sustained 23 convictions from 11 court appearances. Putting to one side offences of dishonesty and motor traffic offences, she had been convicted of 13 drug offences from six of those court appearances. More specifically, and importantly for present purposes, she had been convicted of trafficking drugs on three separate occasions, in 1991, 2002 and 2005. She had also been convicted at various times on 10 counts of possession and use of both amphetamine and cannabis.

24 The sentencing judge noted that, in relation to the previous drug convictions, the applicant had been accorded considerable leniency. She had been put on a bond to be of good behaviour. She had been given three community based orders (two of which she subsequently breached). She had also, on one occasion, been given a wholly suspended sentence. Nonetheless, the applicant had been imprisoned on no fewer than five occasions, three of them for drug offences.

25 On 26 August 2002, the applicant had been convicted, in the County Court at Ballarat, of trafficking in a drug of dependence. On that occasion, she had been sentenced to a term of two years' imprisonment with a non-parole period of 12 months.

26 To make matters worse from her perspective, on 21 February 2005 the applicant was convicted at the Ballarat Magistrates' Court of, among other things, trafficking in amphetamine, and of possession and use of amphetamine and cannabis. She was sentenced on that occasion to six months' imprisonment, of which three months were suspended for a period of two years. She was released from custody on 20 May 2005, after serving that three month term.

27 The current offending took place during the period of that suspended sentence. In his Honour's view, that was plainly a significant aggravating feature of the present offences.

28 The sentencing judge found that, having been released on bail in respect of the current matters, the applicant made a significant and life-changing decision. She moved away from Ballarat and left behind her entrenched drug lifestyle and associates.

29 The applicant gave evidence on the plea. She described her attempts to overcome her problems with drug addiction. That evidence was supported by a psychological report prepared by Elizabeth Warren, dated 4 June 2009. That report described the applicant as lacking in self-confidence, but noted her attempts to overcome her reliance upon drugs.

30 His Honour had regard to the applicant's background as 'a caring and devoted mother'. He noted, in particular, her commendable and genuine attempts at rehabilitation. He then said this:

I am guarded as to your prospects for rehabilitation, particularly given your enduring drug addiction and long criminal history and the fact that you committed these offences whilst on a suspended sentence. On the other hand, you have displayed positive signs since being charged and without doubt, are moving in the right direction. I think it is open to say that you have average to reasonable prospects for rehabilitation, but the true test in that regard will come upon your ultimate release from prison.
There is no dispute that your offending on counts 1 and 2 is serious and enduring. It is accepted that I should impose a sentence of immediate imprisonment on those counts. Indeed, so realistic was your attitude in this regard that after your plea was part-heard on 5 June last, you did not apply for bail in the interim but accepted that you should go immediately into custody. Accordingly, you have now served 167 days pre-sentence detention up to, but not including, today.
That attitude on your part also reflected, I think, your acknowledgement of the serious position that you are in. You were an important identity in the Ballarat region to whom drug dealers turned for their supply of methylamphetamine and cannabis. You were a wholesale trafficker involved with significant amounts of those two drugs and significant sums of money. And, your offending is aggravated by its commission within three months of your release on a suspended sentence. You were given an important opportunity or chance on that occasion and failed properly to accept it.
The prosecution submitted the appropriate sentence range on count 2, as the base sentence, was 2 to 3 years' imprisonment; and the same sentence on count 1 with 12 months cumulated. The range for the total effective sentence was put at 3 to 4 years' imprisonment with a minimum of two to three years plus fines on counts 3 and 4.
You submitted that the appropriate range for count 1 should be much lower than the prosecution submitted because the trafficking of cannabis was less serious than that of methylamphetamine. That was because, it was put, you transported 3 lbs of cannabis for Waters with no evidence of reward, you offered 2 lbs for sale with no evidence of any actual sale, and you only sold on your own account 2.65 lbs of the drug to an associate for your cost price. You do concede there should be some degree of cumulation but you say it should be modest because both trafficking activities are interrelated and similarly motivated, the cannabis count is not as serious as the other, and there is a need to avoid a disproportionate sentence. In all, it was submitted that a low minimum should be fixed to reflect your efforts towards, and prospects of, rehabilitation.

31 His Honour took into account the applicant's plea of guilty which, he said, was indicative of remorse. He said that the plea of guilty would lead to a significant reduction in the applicant's sentence.

32 His Honour then dealt with the question of delay. He said:

The second point concerns delay. I do take into account, favourably to each of you, that you have had your matters hanging over you awaiting resolution for a considerable time. That consideration is the stronger where there has been rehabilitation in the meantime, as is the case for each of you.
But the issue of delay must be placed in its proper context. It cannot be said that the two of you made early pleas. As I have explained, you made no admissions to police and conducted contested committals. As I understand it, there was a good deal of time taken in the preparation of the trial concerning Waters and Trajkovski, and other cases, including your own, before they were resolved in about late 2008 or early 2009. It should have been possible to have then had your pleas heard and sentences passed but the view was taken, by all parties, that the pleas should await the trial, which was held between 23 February and 25 May this year. Then it was accepted that I should hear all the pleas before passing sentence so that there might be achieved, if possible, consistency and proportionality as between the different offenders and sentences to be imposed.
Regrettably, there has now been further delay since the completion of all the plea hearings due to a multiplicity of other commitments I have had, none of which is of your own making. This additional delay is also a factor to be taken into account in favour of you.
In all cases I must also have regard to the important principles of totality and proportionality. I have done that.[4]

33 As against these mitigating factors, his Honour noted that sentencing for cases of this type required regard to be had to principles of denunciation, protection of the community, just punishment, general deterrence, and sometimes specific deterrence as well. He referred to the decision of this Court in DPP v McInnes[5] where it was said that sentencing judges should take into account 'that drugs of dependence represent a significant social evil: they damage lives, families and society as a whole'. [6]

34 The sentencing judge also referred to the maximum penalty which, being 15 years, was substantial. He cited authority for the proposition that the maximum penalty invites comparison between the worst possible case and those before the Court,[7] and stated that it provides a 'guide or yardstick' as to the seriousness with which trafficking in a drug of dependence should be viewed.

The drug addiction suffered by you Ms Beckerton, carries little weight overall in the present sentencing process. Yours is not solely the case of a person who trafficks drugs so as to support their drug addiction. And you, Mrs Scott had no addiction at all. Both of you trafficked for profit. To adopt the words of one judge, you trafficked in drugs "... for reasons of greed and in callous disregard of the grave harm that the offence does to its victims." You both knew exactly what you were doing, particularly that the drugs you were transacting would eventually be on-sold to consumers and addicts at a street level. To the extent you better understood their disabilities because of you own drug use, or that of a partner, so much the worse is your offending.[8]

36 Finally, the sentencing judge referred to the applicant's criminal history which, he accepted, did not necessarily call for the imposition of a greater penalty than would otherwise be warranted. He added:

... But in your case, Ms Beckerton, the combined effect of the lenient treatment which you have received from the courts, including for drug offences; your drug use at the time of offending; the lengthy period over which you offended; the trafficking for profit beyond what you needed to service your own drug addiction; and your commission of offences whilst on a suspended sentence means that you have increased moral culpability, lower prospects of rehabilitation and a dangerous propensity from which the community must be protected. To those considerations should be added the conduct by you Ms Beckerton, of two businesses involving wholesale trafficking in two different drugs.
In your case, Ms Beckerton, for the reasons I have just noted, there is a need for a sentence which will specifically deter you from offending in the future and which will properly protect the public. That sentence will involve appropriate parole support for you when you are ultimately released from prison.[9]

37 There are two grounds in support of this application for leave to appeal. They are as follows:

The learned sentencing judge erred by weighing, in the exercise of his discretion, and in a manner adverse to the interests of the Applicant:

(a) the purportedly lenient treatment the Applicant had received by Courts in the past for drug-related and other offending; and

(b) her drug use at the time of her offending.

The learned sentencing judge erred by finding, and synthesizing in a manner adverse to the interests of the Applicant, that "[t]he drug addiction suffered by [the Applicant] carried little weight... except in so far as it, "[t]o the extent [the 2 Applicant better understood the disabilities [suffered by those addicted to drugs because of [herj own drug use,... so much the worse was her offending."

38 It was submitted in support of ground 1 that, in listing the relevant features that adversely affected the applicant's position, the apparently lenient treatment afforded to her by courts in the past, and her drug use at the time of the offending, ought not to have been so regarded.

39 Plainly, neither of these two features could be regarded as 'aggravating' factors, in the true sense, in assessing the gravity of this offending.

40 However, the fact that the applicant had been shown leniency in the past but had repeatedly, and almost immediately, re-offended was, in my view, a relevant matter for his Honour to take into account. Past leniency, which had no effect upon the applicant's continual offending, went directly to both her prospects of rehabilitation, and the need for specific deterrence. His Honour did not err if, as I consider was the case, he regarded that matter in that way.

41 The relevance of the applicant's use of drugs at the time of the offending is another matter. The sentencing judge was entitled to say, as his Honour did at [79] of his sentencing remarks, that, in the particular circumstances of this case, that addiction carried little weight. That was because the applicant was not solely engaged in trafficking drugs in order to support or maintain her own addiction. Rather, his Honour stated (and it was conceded on the plea) that she had used the money that she had made from selling drugs on 'clothes, household items, gambling and caring for her children'. Any use of that money to sustain her habit seems to have been somewhat marginal.

42 His Honour's observation that the applicant's offending was 'so much the worse' because of her past experience with drugs, and her knowledge of the harm they did to those who used them was, in my opinion, problematic. This Court was highly critical of that same expression when used by his Honour in an unrelated case that came before it earlier this year.[10] On that occasion, Maxwell P had this to say about that expression when applied by this judge in a Commonwealth matter involving the importation of a large quantity of drugs:

There is, however, more substance to the complaint about the judge's comment that [the appellant's] offending was 'so much the worse' because he had personal experience of the 'disabilities' affecting drug-addicted people. His Honour's statement conveys the clear impression that he regarded [the appellant] as more morally culpable, and hence deserving of more severe punishment, because of his personal experience of drug addiction. As the prosecutor readily conceded on the appeal, this was not a contention advanced by the prosecution on the plea, and the judge was therefore bound to invite submissions from the defence before he could have decided to treat it as an aggravating factor. This is particularly so given the novelty of the proposition that a person's drug addiction should be treated as aggravating the seriousness of that person's participation in an offence involving the manufacture or distribution of drugs.

At the same time, for a sentencing judge to treat a matter as aggravating the seriousness of an offence is, in the absence of agreement between the parties, a significant step to take. This experienced sentencing judge gave lengthy and careful reasons for sentence, dealing in turn with all the relevant sentencing considerations. He did not, in terms, characterise this as an aggravating feature.[11]

43 It should be noted, however, that in Nguyen, despite the President's criticisms of his Honour's reasoning regarding the weight to be given to addiction in the context of offences such as importation, the sentence imposed in that case stood.[12]

44 Nguyen needs to be understood in context. There are, in my opinion, some circumstances in which it can fairly be said that a past history of drug addiction not only does not mitigate an offence such as trafficking, but may be viewed as a factor that worsens the applicant's level of culpability. I have in mind the admittedly unusual case of an offender who, having been an addict for much of his or her adult life, and therefore fully appreciates the devastating consequences that addiction can have, then overcomes his or her habit, and subsequently decides to sell drugs purely for profit, and out of a sense of greed. In such a case, comments such as 'so much the worse is your offending' may be entirely apt.

45 The present case does not quite fall into that description. The applicant was still addicted to drugs throughout the period that she engaged in trafficking. Nonetheless, it is fair to say that her primary motivation seems not to have been to obtain money or drugs to maintain her habit, but rather to generate profit which she spent on various personal items, as previously discussed.

46 The criticism levelled at his Honour's observations at [82] of his reasons for sentence, set out at [36] above, can also be understood. He said that the combined effect of:

(a) the lenient treatment that the applicant had received in the past, including for drug offences;

(d) the trafficking for profit beyond what she needed to service her own drug addiction; and

(e) her commission of offences whilst serving a suspended sentence,

(iii) a dangerous propensity from which the community had to be protected.

47 It was submitted on behalf of the applicant that at least the matters set out as (a) and (b) above could not, as a matter of basic principle, lead to the conclusion that the applicant had, among other things, 'increased moral culpability'.

48 That submission seems to me to be partly correct. I do not think that past leniency for drug offending can be used, as such, as a barometer for the moral culpability of the instant offending. As I have previously indicated, there are special circumstances in which drug addiction can, it seems to me, lead to that conclusion. However, those circumstances should be narrowly circumscribed.

49 It might be possible to avoid criticism of his Honour's observations in [82] by reading his remarks as distributive in nature, such that not all of the matters set out in paragraphs (a) to (e) have all of the effects set out in paragraphs (i) to (iii). In that event, his Honour's discussion of these issues would be seen as deficient only in the language used, rather than the correctness of the principles stated. It is fair to say, however, that the applicant's construction of what his Honour said at [82] is entirely tenable, and may, indeed, be correct.

50 Even assuming error on his Honour's part, it does not follow that the intervention of this Court is warranted. This Court will not allow an appeal against

sentence, in the circumstances of this case, unless it thinks that 'a different sentence should have been passed'.[13]

51 There is no ground in support of this application alleging that the individual sentences imposed or the total effective sentence were manifestly excessive. That is hardly surprising. Such a ground could not, in my opinion, sensibly be maintained. When one has regard to the gravity of the offending, and the applicant's lengthy criminal record, it seems to me that she was accorded a considerable degree of leniency. It follows that, even if legitimate criticism can be levelled at some aspects of his Honour's remarks, there is no basis upon which this Court should reduce an already modest sentence.

[1] In each of Reilly v The Queen [2010] VSCA 278 [57]-[64], Briggs v The Queen [2010] VSCA 279, [7]-[13] and Bennett v The Queen [2010] VSCA 280 [18]-[21] the judge used the same formula. In each instance, the formula was criticised. It was held not to be productive of a successful appeal in Reilly and Bennett, the contrary in Briggs.

[2] The language of s 568(4) Crimes Act 1958, which applied in this case.

[7] Markarian v R [2005] HCA 25; (2005) 228 CLR 357, 372 (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[10] Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32 (in the context of the appeal by Phommalysack) ('Nguyen').

[11] Ibid [90]-[91] (footnotes omitted).

[12] That is, the sentence the subject of the appeal in respect of Phommalysack.

[13] Crimes Act 1958 s 568(4), applicable here because the applicant was sentenced before 1 January 2010 when the Criminal Procedure Act 2009 came into force and adopted a similar, but not identical, formulation.

Poisons and Controlled Substances Act 1981

Beckerton v The Queen [2011] VSCA 107

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Beckerton v The Queen [2011] VSCA 107 (20 April 2011)

Parties

Legislation Cited (2)

Cases Cited (1)