Court of Appeal (Vic)|2010-10-22|Before: ASHLEY and WEINBERG JJA

Briggs v The Queen [2010] VSCA 279 (22 October 2010)

R v Briggs (Unreported, County Court of Victoria, Judge Howard, 2 June 2009)

2 The applicant pleaded guilty in the County Court at Melbourne to having, between 1 September and 29 December 2005, trafficked in a drug of dependence, namely MDMA ('Ecstasy') (count 1), and having, on or about 27 August 2005, trafficked in a drug of dependence, namely Cannabis L (count 2). Count 1 involved the applicant having trafficked 1,750 Ecstasy tablets, and count 2 involved the sale of 1.33 kilograms of cannabis. The maximum penalty for each offence was 15 years' imprisonment.

3 He was sentenced to three years' imprisonment on count 1, and 12 months' imprisonment on count 2. Six months of the sentence on count 2 was to be served cumulatively upon the sentence imposed upon count 1, making a total effective sentence of three years and six months. His Honour fixed a non-parole period of two years and six months. He indicated that, but for the applicant's pleas of guilty, he would have imposed a total effective sentence of four years and six months, with a non-parole period of three years and six months.

4 The applicant was sentenced on the same day as two co-offenders, Dalibor Vasic and Mario Kapetanovic. Vasic received exactly the same individual sentences, total effective sentence and non-parole period in respect of two counts of trafficking, one involving 1,810 Ecstasy tablets, and the other involving 2.24 kilograms of cannabis. Kapetanovic was dealt with for a single count of trafficking involving the sale of 1,500 Ecstasy tablets. He was sentenced to three years' imprisonment, with a non-parole period of two years.

5 The applicant is one of a number of offenders whose criminality was brought to light as a result of an investigation into major drug dealing carried out by Victoria Police between August 2005 and January 2006. That investigation was code-named

'Operation Jedi'. The sentencing judge observed that it involved the time and effort of many police officers and forensic and drug experts, the covert recording of thousands of hours of telephone intercepts, surveillance of suspects, and the seizure of substantial quantities of drugs. His Honour commented, when sentencing the applicant, that he had recently sentenced three of the principal offenders, John Waters, Boris Trajkovski and Tomislav Samac to lengthy terms of imprisonment.

6 The applicant now seeks leave to appeal against the individual sentences imposed, the total effective sentence and the non-parole period. He relies upon three grounds in support of that application. These are as follows:

The learned judge erred in giving insufficient weight to delay; and in particular he erred [in] qualifying the mitigating effect of delay by reason of the size of the brief, the (erroneous) belief that the applicant's case did not resolve until shortly before trial and the desirability of having all sentences determined after the trials of all co-accused.
The sentences imposed on the applicant offend principles of parity amongst co-offenders and/or reveal error in the judge's approach to matters in mitigation when regard is had to the sentences imposed on Dalibor Vasic and Mario Kapetanovic and the applicant's earlier indication of pleas of guilty than both co-offenders, his greater remorse then Mr Kapetanovic, his better prospects of rehabilitation than Mr Kapetanovic and his less serious offending than Mr Vasic.
The sentence on Count 1, the extent of the direction for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive.

7 The sentencing judge dealt with the issue of delay as one of a number of mitigating factors common to the applicant, Vasic and Kapetanovic. His Honour said:

The second point concerns delay. I do take into account favourably to ... you that you have ... had your matters hanging over you for a considerable time whilst awaiting resolution. That consideration is the strongest where there has been rehabilitation in the meantime, as is the case for ... you.
But the issue of delay must be placed in its proper context. As I understand it, there was a good deal of time taken in the preparation of the trial concerning Waters and Trajkovski, and for other cases which remained unsettled. It is not disputed that there was significant delay due to the time required to compile hand-up briefs which involved, in particular, the transcription of hundreds of hours of telephone intercepts and prosecution analysis as to the identification of various persons involved in these conversations and the need to reach a conclusion as to the level of trafficking in any particular circumstance. In all, police had to grapple with something in the order of 20,000 telephone intercepts. Waters alone accounted for over 10,000 of those.
Your [case] did not ultimately resolve until shortly before the trial. It should have been possible to have then had your [plea] heard and [sentence] 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 your favour.

8 His Honour's comments regarding delay mirror closely the observations made when sentencing other offenders arising out of the Operation Jedi arrests. I have already indicated, in judgments dealing with applications for leave to appeal brought by David Reilly[1] and Craig Bennett[2] that I have concerns about the manner in which his Honour dealt with that issue at [101] and [102]. I shall not repeat those concerns here.

9 The applicant's case differs from that of Reilly and Bennett because the sentencing judge fell into specific factual error in dealing with the applicant's situation. His Honour seems to have overlooked the fact that, unlike Reilly and Bennett, and unlike Vasic and Kapetanovic, the applicant offered to plead guilty at the earliest practicable opportunity.

10 The offences occurred between September and December 2005. The applicant was not interviewed by police until September 2006. He was not charged until July 2007. He indicated, at a mention in August 2007, that he would plead guilty. However, the prosecution was not in a position to consider the offer at that time. In January 2008, the applicant again formally offered to plead guilty. In April 2008, there was a committal hearing, but no witnesses were required for cross-examination, and the applicant did, on that day, plead guilty. Regrettably, the matter could not be dealt with in the County Court until June 2009, and the plea was heard at that time. The applicant was not sentenced until December 2009.

11 There was evidence that the delay had imposed considerable strain upon the applicant. There was also evidence, and it was accepted, that he had not offended in the interim, and had taken considerable strides towards rehabilitation.

12 The sentencing judge, of course, addressed the issue of delay, and acknowledged that the matter had been hanging over the applicant's head for a considerable period. However, he went on to say that the applicant's case 'did not ultimately resolve until shortly before the trial'. That statement was perhaps accurate in a literal sense, and certainly could have been applied to Vasic and Kapetanovic. However, it was not applicable in any meaningful sense to the applicant's situation. It implied that, in some way, he was guilty of indecision, or that there had been an unwillingness on his part to plead guilty. That was simply not the case.

13 Unlike the position taken in relation to Reilly and Bennett, the Crown expressly conceded error on the part of the sentencing judge in relation to the applicant. Moreover, counsel for the Crown fairly and properly conceded that the error was material, and vitiated the sentencing discretion. Accordingly, the applicant falls to be re-sentenced.

14 Having regard to the fact that ground 1 is made out, it is not necessary to say a great deal about ground 2. It is sufficient to note simply that each of the applicant, Vasic and Kapetanovic, pleaded guilty to trafficking in Ecstasy. The amounts trafficked were very similar (1,500 tablets in the case of Kapetanovic, 1,810 tablets in the case of Vasic, and 1,750 tablets in the case of the applicant). However, the applicant had returned 900 of the tablets to his supplier, Waters. Accordingly, unlike his co-offenders, he did not sell all of the tablets which were the subject of the trafficking count to dealers or others, but only about half of them.

15 Moreover, the amount of cannabis trafficked by the applicant was just over half that trafficked by Vasic. Yet the applicant received exactly the same sentence on that count.

16 Having regard to the fact that the applicant offered to plead guilty well before either Vasic or Kapetanovic, there is force in the parity argument. Vasic reserved his plea at committal, and filed a defence response in the County Court in which he denied any involvement in the offences. Kapetanovic ran a contested committal hearing and indicated his intention to plead not guilty until very late in the piece. Curiously, the applicant received a lesser discount in percentage terms than did Kapetanovic, when one has regard to what his Honour said in relation to s 6AAA of the Sentencing Act 1991 (Vic). Importantly, his Honour found that the applicant had better prospects of rehabilitation than did Kapetanovic.

17 If it were necessary to do so, I would uphold this ground.

18 The total effective sentence of three years and six months' imprisonment, with a non-parole period of two years and six months could properly be described, in my view, as severe. However, if this ground stood alone, I would not have allowed this appeal. The sentence, though heavy, could not be said to be outside the range reasonably open to the sentencing judge.

19 The applicant, of course, pleaded guilty. He offered to do so at the earliest possible opportunity, and repeated that offer on a number of occasions. The sentencing judge found genuine remorse. Although there were some prior convictions for unrelated matters, they were of a minor nature, and irrelevant. There was evidence of positive good character, close family support, and a solid work history.

20 The applicant has long supported various charitable causes. He is regarded by his staff as an exemplary employer, and his business associates speak of him as having an ethical and proper approach to his business activities. All in all, the applicant has excellent prospects of rehabilitation. As the sentencing judge found, he has displayed insight and awareness with regard to the seriousness, and stupidity, of his offending.

21 It must be remembered that there was a delay of almost four years between the offending and the date of sentence.

22 The applicant was 47 years of age when sentenced in December 2009. He was one of six children born to working class parents. It is sufficient to say that he came from a severely disadvantaged background, the details of which were outlined by the sentencing judge in his reasons for sentence. He was made a ward of the State at the age of nine. Institutional care worsened matters and he became involved in juvenile petty offending.

23 Despite effectively discontinuing schooling at the age of ten, the applicant succeeded in obtaining a traineeship with the Gas and Fuel Corporation. He worked his way up through the organisation, eventually achieving supervisory responsibilities. Later, he developed his own excavation business. It grew to have a sizeable turnover and employed five people.

24 The applicant has had a stable relationship with his partner since 1981 when he was 19. They have three adult children, the youngest of whom was 18 at the time of sentencing, and still lives at home.

25 In re-sentencing the applicant in these circumstances, there is room for greater emphasis than might otherwise be given to matters of rehabilitation. I would grant leave to appeal, set aside the sentences imposed below and re-sentence the applicant as follows: on count 1, two years and six months' imprisonment, and on count 2, nine months' imprisonment. I would cumulate six months of the sentence on count 2 on count 1, making a total effective sentence of three years' imprisonment. I would suspend two years of that sentence, leaving the applicant with 12 months' imprisonment to serve.

26 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I should indicate that, but for the applicant's plea of guilty, I would have imposed a total effective sentence of four years and six months' imprisonment, with a non-parole period of two years and six months.

27 These reasons involve no novel principle, nor the extension or qualification of established principle. They are without any value as precedent.

[1] Reilly v The Queen [2010] VSCA 278.

[2] Bennett v The Queen [2010] VSCA 280.

Briggs v The Queen [2010] VSCA 279

At a glance

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Judgment (35 paragraphs)

Briggs v The Queen [2010] VSCA 279 (22 October 2010)

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