DPP v Phillips [2005] VSCA 112

The first summary offence (possessing proceeds of crime) :

three months' imprisonment;

The second summary offence (possessing proceeds of crime) :

three months' imprisonment;

The third summary offence (possessing prohibited weapons) :

$250 (with a nine-month stay).

His Honour cumulated one month of the sentence imposed on the second summary offence upon the sentence which he had imposed on count 1. The total effective sentence was therefore one of 13 months, six months of which his Honour suspended for three years. His Honour declared that the respondent had served 47 days of the sentence imposed by way of pre-sentence detention.

3 The Director's appeal is directed to his Honour's total effective sentence; but basically targets the sentence of 12 months' imprisonment imposed on count 1, that is, the offence of trafficking in a commercial quantity of methylamphetamine, which is said to be in itself manifestly inadequate; and to have produced a total effective sentence which is similarly manifestly inadequate.

4 Before turning to the arguments addressed to the Court, it is necessary to briefly summarise the circumstances of the offending as his Honour found it to be. The offending was identified as a result of a widespread police operation which targeted trafficking by a number of people in a variety of drugs in the Dandenong/Noble Park area. The police, correctly as it would seem to me, identified a person named Levant Alparslan as the person directing and in charge of the trafficking; and the person who was effectively using some of the other offenders to work his will. The respondent's premises at 25 Jennings Street, Noble Park were regarded by the police as a depot for the storage and delivery of drugs at Alparslan's direction. Phone calls were intercepted at the premises and sufficiently revealed the purposes of their use.

5 Following the "police swoop" on 19 November 2002 on those whom they believed to be involved, some 13 people were arrested and taken into custody. These people were all charged with offences which had been revealed by the adequate but limited information which the police had secured. Most of these people have now been dealt with in the Magistrates' or County Courts on a variety of matters. It was submitted to his Honour, and I think accepted by him, that the sentencing of other accused was of little relevance to the sentencing of this respondent, first because of the individual roles which the various offenders had been identified as "playing", and secondly because their pleas were made to a variety of discrete offences. The respondent, so far as this Court is aware, is the only person so far to have been dealt with for trafficking in a commercial quantity of methylamphetamine, although Alparslan and others have been charged with such an offence but are still awaiting trial. Furthermore, those who have been currently dealt with possess a variety of criminal histories. Three of the offenders have already appealed to this Court, as I understand it, but the results of those appeals are still pending.

6 The police had a view of the role played by the respondent in this offending which became apparent during the course of the record of interview which they had conducted with him on the night of his arrest. In questions recorded at 267 and following of the record of interview, the following appears:

Question: "I totally agree, but in fairness to you ... we are not alleging that you're receiving any type of benefit from the sale of amphetamine."

Answer: "You can tell that by the way I live."

Question: "I totally agree, but in fairness to you I have to ask you what benefit you do receive from storing amphetamines at your house."

Answer: "I usually get a couple of bills paid or just 400, 500 for minding my own business."

Question: "And so is that, so does Luke [that is Alparslan] pay your bills, or does he give you some cash?"

Answer: "I've got no comment on that."

Question: "It's obvious by the difference in expenditure levels of Mr Alparslan and yourself that you're not making a lot out of this, this deal."

Answer: "I live like a bum, mate."

Question: "What you've got to understand, what we're trying to allege isn't that you're a high-flying amphetamine trafficker, but maybe we're being ... You know what I'm trying to say? Certainly it appears to us that your premises and your services were utilised to help him to traffic drugs rather than you benefiting from trafficking as such."

Answer: "I wasn't benefiting at all."

Question: "That's what I'm saying. Rather than you directly benefiting from trafficking, he was using you as a medium for ... "

Answer: "Like I said, mate, I was just naïve about things. I let things go on without taking too much notice."

7 Although these answers did not adequately disclose the level of benefit which the respondent received from the enterprise, it would appear from the material that he was no "free agent" in the sales which were made of methylamphetamine from his house; and whatever benefit he received was "measured" by Alparslan. One thing, however, was clear; and was accepted by his Honour. By allowing his house to be used for storage and trafficking of drugs by Alparslan, the respondent will effectively lose his house to the State. Already a restraining order has been made pursuant to the Confiscation Act, restraining its sale.

8 Towards the end of the plea hearing, his Honour was told by the prosecutor that the Director would regard it as an error if the respondent was not sentenced to "an actual term of imprisonment", which prompted his Honour to ask the Crown what the police had to say about the view put on behalf of the respondent, namely, that he was vulnerable to the predations of Alparslan and was "taken advantage of" because of his psychological state. The prosecutor, having received instructions, told the judge that it was the informant's view that the respondent's physical circumstances "made him convenient for Alparslan", but that the police were not in a position to say what the respondent's state of mind or motivation was.

9 It would seem that his Honour's enquiries were pertinent because there had been put before him medical reports from the respondent's general practitioner, Dr McCawley, and Mr Joblin, forensic psychologist, which tended to confirm that the respondent's general psychological state at the time of the offending was such as to make him vulnerable to impositions placed upon him. The general practitioner's report revealed that the respondent had been under his care for some three years for a variety of problems which had manifested themselves in a continuing state of anxiety and agoraphobia, which effectively "tied him" to his house. He had been on a variety of psychotropic drugs upon which he had become dependent. His daily functioning and memory were poor. Mr Joblin's assessment was similarly gloomy. It was his opinion that the respondent's decision to "let these individuals into his house" had to be placed into the context of his intellectual state at the time. In this respect Mr Joblin said:

"There is no doubt in my opinion that Mr Phillips's psychological state at the time of the offending was affected by several factors. He was on a considerable amount of medication. He would use amphetamine when he wanted to go out on rare occasions. Basically he was reclusive and would simply stay at home watching television. That psychological state initially was somewhat relieved by the presence of these other individuals in his house, and he allowed them to come to his house. However, when he realised what was actually occurring it became extremely negative for him. He felt that at that point he could not extricate himself from the difficulties. He indicated some degree of relief when police finally attended on 19 November 2002."

In the course of his assessment of the respondent, Mr Joblin went on:

"Mr Phillips presented as a very uncomplicated, unsophisticated man. He is in my opinion limited socially. He is not to be considered to be above average in intellect. He is virtually illiterate. He has had medical problems. He has only one eye. His history is outlined above and indicates that he was apparently progressing reasonably well until his wife left him. Since then he has had serious problems."

10 In the course of his sentencing remarks, his Honour made a number of findings about the reasons of the respondent for becoming involved in the trafficking operation. His Honour said:

"Your involvement in this enterprise will have catastrophic consequences for you. First of all, your counsel concedes that you will be unable to resist automatic forfeiture of your home, valued at $180,000, which is your only asset. This will occur not because it represents the proceeds of crime, but because of the trafficking activity which was there carried out. In the event, the loss you will suffer will far exceed the benefit you obtained as a result of your criminal activity. This is a relevant sentencing circumstance to be taken into account and has resulted in me reducing the sentence I would otherwise have imposed. When you are released from prison you will be penniless and homeless, dependent on the assistance of family members and charity. This is a very significant punishment for a man of your age."

11 The judge said that, in fixing appropriate sentences, he regarded the pleas of guilty as of significant utilitarian value that would have to be reflected in the sentences which he imposed. He then noted that the respondent's state of psychological health was relevant in fixing the appropriate sentence because of its bearing upon the respondent's moral culpability. His Honour took the view, in the light of the authorities, that the respondent's state of mind at the time of the offending was such that it was appropriate to modify the principles of general deterrence in fixing an appropriate sentence.

12 In support of his appeal, the Director of Public Prosecutions submitted that the sentence of 12 months imposed on count 1 was manifestly inadequate to reflect the gravity of the crime of trafficking in a commercial quantity of this type of drug. In that respect I think that he accepted that proof of the offence depended largely upon the fact that the quantity of drugs found by police "stored" in the house upon raid was itself in excess of the commercial level. Thus the Crown relied upon the statutory definition of "trafficking" as including "possession for sale". Just how much of the substance the respondent had participated in "trafficking" during the month alleged in the charge was not able to be accurately calculated. The Director could not point to any specific error that his Honour had made in the exercise of his discretion. Indeed there was, as it seems to me, an abundance of evidence to support the findings to which he had come. Mr Coghlan's submission was that the sentence imposed on count 1 was itself reflective of error because the sentence of 12 months' imprisonment, partially suspended, was just far too low for an offence of "commercial trafficking" and, if left to stand, will create an inappropriate precedent.

13 Mr Priest, on behalf of the respondent, correctly pointed out that the Crown, in cases where it relies upon manifest inadequacy of sentence as its primary ground of appeal, faces substantial obstacles. It is not sufficient, he submitted, that this Court is of the view that, if it was exercising the discretion for itself, it would have imposed a different, and higher, sentence. Rather, Mr Priest said, it must be shown that the inadequacy of the sentence imposed is so clear and egregious that the error is apparent on its face. He referred in this regard to Director of Public Prosecutions v. Johnston[1]. In other words, the inadequacy complained of must be so obvious as to "shock the public conscience".[2] Mr Priest pointed to the facts of this case as presented before the judge and the prosecutor's statement to the judge to the effect that he would be in error unless he imposed a sentence of imprisonment to be actually served. He did not suggest, so Mr Priest submitted, a sentence of any particular length; and it was put that the submission had been made in the context of the material which was before the judge, demonstrating that this was - on any view - a very unusual case of "commercial trafficking". In such circumstances, Mr Priest submitted, the judge having done as he was bidden by the prosecutor, the Director, on an appeal of this nature, should be precluded from now contending that the sentence was less than adequate. Particularly was this so, it was put, when the judge had clearly fixed a penalty which had taken into account the fact that the respondent was bound to suffer the punitive loss of his home. That loss, in the circumstances of this case, will, as the judge found, be "grossly punitive"; and the judge was entitled to come to that view, so Mr Priest contended.

14 In my view, in the very peculiar circumstances of this case, the respondent's submissions are to be preferred. The facts of this case, to which I have earlier referred, demonstrate that this was an unusual example of commercial trafficking. Of course, a sentence of the order imposed by the judge would - in normal circumstances - be wholly inappropriate and inadequate to punish an offence of trafficking in a commercial quantity of methylamphetamine. A sentence such as the one here imposed should not therefore be regarded as setting any form of appropriate standard - even for a Crown appeal. But the circumstances of the offending were - as I have said - sui generis, involving as they did the taking of advantage of a man who had little capacity to make reasoned decisions and defend his own interests; and who received benefits of a type and size inconsistent with a person who was consciously and deliberately involving himself in commercial trafficking for his own benefit. It would seem that even the investigating police took a similar view, and understood that the respondent and his house were convenient utilities for the purposes of those who were controlling the operation. His Honour correctly appreciated, I think, that the respondent would eventually be heavily punished by the loss of his house; a fact that he had been unable to apprehend because of his depreciated mental state. In my view, his Honour was entitled to come to that conclusion.

15 In the very unusual circumstances demonstrated to his Honour, and bearing in mind the principles which apply to Crown appeals, I am not prepared to conclude that his Honour's discretion was erroneously exercised. It has often been said by superior courts that prosecution appeals should not be allowed to unduly circumscribe the sentencing discretion of trial judges. There must always be a place, (as King, C.J. said in Osenkowski[3]) for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. I agree with Mr Coghlan that it will be a most unusual case of trafficking in commercial quantities of drugs where the judge's sympathies could be so excited. But I am disposed to the view that this was such an unusual case, that the judge was entitled to display the leniency which he did. But, even if I am wrong about that, this is the type of appeal where I would have been inclined in any event to exercise the overriding discretion which this Court has on a Crown appeal to decline to intervene, even if I concluded that an error had been disclosed.

16 For these reasons I would dismiss the appeal; but in doing so emphasise once again that the decision to which I have come in the peculiar circumstances of this case sets no precedent for other cases of trafficking in commercial quantities of drugs.

18 I also agree that the appeal should be dismissed for the reasons stated by the President.

19 The formal order of this Court is that the appeal is dismissed.

[1] [2004] VSCA 150 at [19].

[2] Cf. R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522.

[3] (1982) 30 S.A.S.R. 212 at 212-3.