Cardona v The Queen [2011] VSCA 58

1 I invite Redlich JA to deliver the first judgment.

2 The applicant pleaded guilty in the County Court to one count of trafficking in a drug of dependence (pseudoephedrine) in not less than a commercial quantity (count 1), one count of trafficking in a drug of dependence (methylamphetamine) (count 2) and one count of cultivation of a narcotic plant, Cannabis L (count 5).[1]

3 The facts of the applicant's offending are not disputed, and given the ground of appeal on which the applicant seeks to rely and the concessions made by the Crown, it is unnecessary for the disposition of the present application and the appeal itself to consider those facts in any detail. Suffice to say, the applicant controlled a sophisticated drug manufacture and distribution network through which pseudoephedrine was obtained and either sold or used to manufacture methylamphetamine. He also organised a hydroponic set-up for the cultivation of Cannabis L in two bedrooms at a property in Lancefield.

4 The applicant was sentenced to four years and six months' imprisonment on the count of trafficking in pseudoephedrine, to 18 months' imprisonment on the count of trafficking in methylamphetamine, and 15 months' imprisonment on the count of cultivation of a narcotic plant. The sentencing judge directed that four months of the sentence imposed on the count 2 and two months of the sentence imposed on the count 5 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of five years' imprisonment. A non-parole period of three years' imprisonment was fixed. These sentences were all moderated because of the medical prognosis as to the applicant's health.

5 On 14 February this year, the applicant was granted an extension of time in which to file for leave to appeal against sentence. The sole ground of appeal on which he seeks to rely is that there is fresh evidence which demonstrates that a different sentence should now be imposed.

6 The respondent, however, first raises a preliminary point as to whether the sentencing judge was correct to sentence the applicant on count 1 as a 'serious drug offender' within the meaning of s 6B of the Sentencing Act 1991 ('the Act'). An offender is to be classified as a serious drug offender if he or she has been convicted of a 'drug offence' for which he or she had been sentenced to a term of imprisonment.[2] A 'drug offence' for the purpose of that definition is an offence listed in clause 4 of schedule 1.[3] Clause 4 only includes offences involving the trafficking of a drug of dependence in a commercial quantity.

7 Although the parties below appear to have accepted, as did the sentencing judge, that the applicant was to be sentenced as a serious drug offender in respect of the first count, the respondent submitted that it was unable to identify in the applicant's criminal history any prior conviction for a 'drug offence' which would so qualify the applicant. On the plea, counsel for the applicant had stated that it was 'by virtue of the previous drug conviction of Mr Cardona in 1995' that the applicant could fall to be sentenced as a serious drug offender. However, the only offence appearing on the further presentment to which his counsel could have been referring was a conviction for trafficking in a drug of dependence on 20 December 1996 which, as is apparent from the judgment of this Court dismissing an appeal against a sentence imposed for that conviction, was only a conviction for trafficking in less than a commercial quantity.[4]

8 The respondent accordingly acknowledged that this conviction was not a qualifying 'drug offence' for the purpose of s 6B. The fact that count 1 itself was a drug offence which could qualify the applicant as a serious drug offender did not mean that the applicant could be sentenced as such in relation to that count. The definition of 'serious drug offender' contained within s 6B requires the offender to have been convicted and sentenced in relation to the qualifying offence or offences before he or she could be sentenced for a further offence as a serious offender.[5]

9 The respondent, relying on R v Arnautovic,[6] submitted that the sentencing of the applicant as a serious drug offender on count 1 was a material error which vitiated the exercise of the sentencing discretion. In that case the sentencing judge had stated that he intended to utilise the power in s 6D to impose a sentence greater than that which would be proportionate to the gravity of the offending.[7] In the present case the sentencing judge expressly stated that it was not necessary that he impose a disproportionate sentence. However, s 6D(a) of the Act provides that when sentencing a serious drug offender, the sentencing judge must regard protection of the community as the principal purpose for which the sentence is imposed. As it must be assumed that his Honour gave effect to that directive, the error that has been made may have been material to the sentence imposed. This is one reason therefore why the sentencing discretion must be reopened.

10 The applicant also seeks to adduce fresh evidence which establishes that his life expectancy is drastically lower than that which was put before the sentencing judge.[8] The applicant submitted that this fresh evidence demonstrates that a different, lesser sentence ought to be imposed.

11 In sentencing the applicant, the sentencing judge took into account medical reports from various doctors which established that the applicant had been diagnosed with lung disease (called Chronic Airways Disease or Chronic Obstructive Airways Disease), with the result that he had a life expectancy of between three to five years. His Honour accordingly took into account the fact that imprisonment would be more burdensome for the applicant than a person without his medical condition, and said that he moderated the weight to be attached to deterrence in accordance with the principles set out in R v Verdins.[9]

12 The sentencing judge also noted the risk of the applicant developing lung cancer.[10] Letters from an Oncology Registrar and Oncology Resident exhibited to affidavits sworn by the solicitor for the applicant on 10 and 11 February 2011 and filed in this appeal show that in November 2010, three months after he had been sentenced, the applicant was diagnosed with obstructing rectal cancer with metastases in his liver and lungs. This condition is incurable, and the two experts are of the view that the applicant now only has a life expectancy of between three to six months.

13 The respondent conceded that these more recent reports are admissible as fresh evidence as they shed new light on facts in existence at the time of sentencing,[11] namely that the burden of imprisonment in light of the applicant's ill health was greater, and the need for specific deterrence less, than the sentencing judge could have appreciated given the medical reports then before his Honour. Thus the Crown accepts that the applicant's appeal should be allowed and a lesser sentence imposed.

14 In the cases of R v AGM[12] and the R v Williams,[13] this Court accepted similar fresh evidence demonstrating that the applicant's life expectancy in those cases was drastically different to that understood at the time of sentencing, which required the Court to consider whether the sentence imposed remained appropriate in the light of

such evidence.[14] Both parties submitted that the comments of Charles JA in R v Williams[15] were applicable to the present application:

In these circumstances...it has been established that the applicant will be serving his sentence in prison in greater discomfort than would otherwise be the case. In particular he will be deprived of the support of his family at a time when he is dying of cancer and inevitably will have to face the prospect that his last days will be spent in prison rather than in his own home with his family.

...

[I]t is clear that the new medical evidence establishes a situation which was not before the judge at the time of sentencing. That the applicant is terminally ill and with a life expectancy of approximately twelve months was not then in evidence. It produces the consequence that imprisonment will be more burdensome to the applicant than would be the case if he had remained in remission. Specific deterrence becomes irrelevant to the sentence to be imposed on the applicant by reason of these factors. He is, in my view, entitled therefore to be treated with greater leniency than would otherwise be the case.

15 The applicant submitted that in light of the above, his sentence should be reduced so as to enable him to be released and spend his final days at home with his family. As the respondent accepts that the appeal should be allowed and a lesser non-parole period fixed, I propose in accordance with the submissions made by both parties that the applicant's non-parole period be reduced to two years and six months. The applicant has already served in excess of this period in prison. Consequently he will be eligible for immediate release if re-sentenced in this manner. I therefore would make the orders proposed.

16 I agree with my brother Redlich and in the orders that he proposes.

1. The application for leave to appeal against sentence is granted.

2. The appeal is treated as instituted and heard instanter and is allowed in part.

3. The sentences imposed below are affirmed, but the non-parole period is set aside. In lieu thereof a non-parole period of two years and six months is fixed.

4. It is declared that the period of 939 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

5. The order made pursuant to s 6F of the Sentencing Act 1991 is quashed.

6. All other ancillary orders of his Honour Judge Coish made 16 August 2010 are confirmed.

19 Pursuant to sub-s 2 of s 6AAA of the Sentencing Act 1991, it is declared that but for the applicant's plea of guilty, we would have imposed a total effective sentence of seven years, but in the events which have occurred, we still have set a non-parole period of two and a half years.

20 Pursuant to sub-s 4 of s 6AAA, it is directed the fact that that declaration and its details be entered in the records of the Court.

[1] The applicant pleaded not guilty to a further two counts of trafficking in a drug of dependence (counts 3 and 4), but no evidence was led in relation to these grounds and acquittals were entered on the record for both those counts.

[2] Sentencing Act 1991 (Vic) s 6B(2).

[3] Sentencing Act 1991 (Vic) s 6B(1).

[4] R v Cardona [1998] 2 VR 126, 127.

[5] R v Arnautovic [2001] VSCA 34; (2001) 121 A Crim R 412, 415 (Brooking JA).

[6] [2001] VSCA 34; (2001) 121 A Crim R 412, 414 (Brooking JA).

[8] On 26 November 2010 the solicitor for the applicant made a petition for mercy to the Attorney-General. On 10 February 2011 she was informed that this had been denied.

[9] [2007] VSCA 102; (2007) 16 VR 269.

[10] R v Cardona [2010] VCC 1110 [23].

[11] R v Nguyen [2006] VSCA 184 [36]-[37].

[12] [2004] VSCA 202 [41]-[45].

[13] (Unreported, Supreme Court of Victoria, Court of Appeal, Charles JA, Crockett AJA and Southwell AJA, 18 September 1995).

[14] See also Carr v R [2010] VSCA 200.

[15] (Unreported, Supreme Court of Victoria, Court of Appeal, Charles JA, Crockett AJA and Southwell AJA, 18 September 1995).