DPP v S

Court of Appeal (Vic)|2009-06-05|Before: VINCENT, NETTLE and REDLICH JJA

CRIMINAL LAW - Sentencing - Crown appeal - Cultivation of a narcotic plant in not less than a large commercial quantity - Breach of undertaking to give evidence against co-accused - Breach of implied obligation to give truthful evidence - Respondent sentenced to six years' imprisonment with a non-parole period of three years and six months - Appeal allowed - Respondent re-sentenced to a term of eight years' imprisonment with a non-parole period of six years.

1 This is an appeal by the Director of Public Prosecutions under s 567(1A) of the against a sentence of six years' imprisonment with a non-parole period of three years and nine months imposed on the respondent upon pleading guilty in the County Court at Melbourne to one count of cultivation of a narcotic plant, namely, cannabis in not less than a large commercial quantity.

2 The total weight of plants and other cannabis was 1,511.83 kg which is over six times a large commercial quantity of cannabis.[2] According to the Crown opening on the plea, the yield estimate was between approximately $843,500 and $5,061,000 depending on whether the cannabis was sold in kilograms or grams. The offence was, therefore, a serious example of a serious crime. The judge, however, allowed a substantial discount on the sentence, pursuant to s 5(2AB) of the Sentencing Act 1991, in view of undertakings given by the respondent on 30 August 2005 to:

• assist the prosecution of offences against the two co-accused;

• give evidence at the committal and the trial of both co-accused; and

• give evidence in accordance with two sworn statements dated 23 May 2005 and 9 June 2005.

3 On 10, 11 and 12 March 2009 the respondent gave evidence before Judge Howie in the County Court at the trial of Athanasiou and Cozzi. His testimony was, however, demonstrably evasive and untruthful.

4 Among other sections of his testimony which may properly be so described were the following:

How long had you now that person Peter [Athanasiou]? - - - Several years.

Do you see that person that you know as Peter in this court? - - - I'm not sure.

I'll ask you that question again. Do you see that person that you knew as Peter in this court? - - - I can't be positive.

In respect to the person that you knew as Sam [Cozzi], how long had you known him? - - - Only a matter of months.

Do you see that person in this court? - - - No.

...

Do you say that Peter at the coffee shop is this gentleman Mr Athanasiou here? - - - I looked at that gentleman before and his appearance seems to have changed.

Changed? Do you recognise him at all? - - - I don't quite understand what you mean do I recognise him?

...

Was the Peter that you saw at the coffee shop on that occasion this gentleman, Mr Athanasiou sitting in the back of the court? - - - I'm not sure. He looks different to the Peter that I knew back then.

5 That evidence led the prosecutor to apply for and be granted a voir dire on which to examine the respondent in accordance with the practice, sanctioned in Thynne's case,[3] of placing the respondent's statements in his hand and then asking him leading questions limited to the contents of the statements:

...

I am asking you now is the man who turned up at Chris Davatzis flat the man you see sitting in the dock there? - - - I'm not sure.

You're not sure? When you say you're not sure, what do you mean by that? - - - Four years, people change in four years. He certainly looks familiar but I couldn't be 100 per cent positive it's the same person. He could have a twin brother, he could have a second, I don't know.

...

Was that person the same Sam that you had seen at the property seven days before? - - - Yes. Now I'm with you, yes.

I want to suggest to you that that man was this man, Sam Cozzi.

HIS HONOUR: Pointing to the man on the right of the dock?

Pointing to the man on the right, thank you, Your Honour? - - - I don't know, just not familiar, the man on the right.

He is not familiar to you? - - - Not at all.

But seven days later you saw a man called - that you'd - it was the same Sam, that you'd seen at the property the week before? - - - Yes.

But you don't recognise him now? - - - No.

...

... Do you remember being at a committal proceeding in the Melbourne Magistrates' Court on 19 January 2006? - - - I remember being at the committal, yes and I'm aware of the date, because it was on the papers that I received the day that I left my permanent job, before I came to Melbourne.

Do you remember that there were two defendants in that courtroom, Mr Athanasiou and Mr Cozzi? - - - At the committal?

Yes? - - - Yes.

I suggest to you that they were the same two men, do you agree with that? - - - No.

What, you had no recollection? - - - It's like I said before, the gentleman by the name of Peter, I'm not sure if it's the same man and the guy on the right, referred to as Sam by you, I don't know him.

...

Let me be more precise. You were wearing the [recording] device that the police gave you? - - - Yes.

...

I understand. But your purpose in going there with this device was to see if you could elicit admissions from the man known as Peter that they were involved in the cannabis crop? - - - Yes.

When you finished that conversation [with Peter] you came out and you in fact said on the tape to the police, 'Come and get me I'm leaving now,' words to that effect? - - - When I got in my car, prior to turning the device off I spoke into it to say that I was just leaving the shop and to meet them back at the location where they connected the wiring to me.

...

Did you tell them that you had spoken to the man known as Peter? - - - Yes.

Who you've nominated in the crop?- - - Yes.

Do you still say that that man's not this man Peter Athanasiou? - - - I'm not saying that at all. I'm not sure.

You're not sure? But you could identify the man in January 2006? - - - Yes.

And you were positive about that identification because you made it on oath, correct? - - - Yes.

...

Did you understand when you were being asked about giving evidence against the co-accused what was meant by that? - - - Yes.

Did you know the two men who you were going to give evidence against? - - - I was aware of the two men that I was giving evidence against, yes.

Had you been told their names? - - - Was I told their names? When was this I was told their names.?

Before you gave an undertaking to her Honour Judge Sexton to give evidence on the plea did your counsel go through the fact that you had to give an undertaking to get a sentencing discount? - - - I gave an undertaking to give evidence against the co-accused by two people that I knew with the name of Peter and Sam.

...

You say here on your oath, neither of them was by any other name? - - - Not that I recall, no.

...

Are you saying to this court that at the time when you gave the undertaking before her Honour Judge Sexton you didn't know the name of your co-accused as Panagiotis Athanasiou? - - - I clearly remember saying on oath at my trial that I would be giving evidence against the co-accused. I'm not saying that I wasn't aware of their name at the time but I'm of the opinion today that I'm sure I would have only known them as Peter and Sam but that doesn't mean that their real names or their surnames weren't put to me on that particular date. I don't recall but maybe they did, if they did I would have taken it on board that that's who these people are but I don't recall.

6 On the basis of the respondent's earlier evidence before the jury and those and other answers to questions on the voir dire, the judge declared the respondent hostile and granted leave to the prosecutor to cross-examine the respondent. In the course of argument before so ruling, the judge said this:

My judgement is that [the respondent] was demonstrably evasive and being untruthful.

...the whole of the evidence is that he had a significant association with each of these men. He saw them on a consistent basis over a period of time, between August and the following March. He saw them in meetings, he saw them at the property and as far as [the accused Athanasiou's] concerned he went to him at his café and he [sic] was accused with them. They were co-accused. He was present at their committal when [Athanasiou's] counsel nominated and named Mr Athanasiou in the Magistrate's Court and he gave an undertaking in this court to her Honour Judge Sexton to give evidence with respect to the co-accused. Now it just defies belief to hear him saying that they're not the men in the court.

...I agree with [the prosecutor], that the manner in which he gave that evidence in the presence of the jury of looking around the jury and at other members of the court and hardly looking at the two accused men, was just a form of theatre.

Towards the end of his evidence-in-chief, the witness S said that he was not sure whether he could see the person he had referred to as 'Peter' in the court and that he could not see the person he had referred to as 'Sam' in court.

In the absence of the jury, the prosecutor Mr Saunders applied to have the witness declared hostile. Counsel agreed that it was an appropriate course to examine S further in a voir dire, before having the issue as to whether or not he was adverse, decided pursuant to s 34 of the Evidence Act. In the voir dire, Mr Saunders put a number of matters to S, including the following five matters.

(1) S kept a directory of telephone numbers in which the telephone number of 'Peter Coffee Shop' and 'Sammy' were recorded.

(2) On 17 May 2005, S was directed by Detective Sergeant Coburn, who was accompanied by Detective Senior Constable Dickinson and Senior Constable Richardson, to a coffee shop at 73 Warrigal Road, Oakleigh, where he was to attempt to engage Panagiotis Athanasiou in a conversation, which would be covertly recorded.

(3) S was present at a bail hearing at the Melbourne Magistrates' Court approximately one week after his arrest, that is, approximately the end of March 2005, at which the person he called 'Sam' was also present.

(4) At the sentencing hearing before her Honour Judge Sexton, which I understood took place on 30 August 2005, in response to questions asked by his counsel Mr Lindner, S undertook to assist in the prosecution of offences against both co-accused and to give evidence at the committal and at the trial of both co-accused.

(5) S was present as a witness at the committal hearing for the two accused on 19 January 2006. Both of the accused were present at the hearing. Panagiotis Athanasiou was represented by Mr Hill, QC. Sabino Cozzi was represented by Mr Van de Weil, QC. In the course of his cross-examination of S, Mr Van de Weil expressly directed his attention to his client, who he described as: 'This man seated behind me in the grey suit, whose name is Panagiotis Athanasiou.' S said that he was the man involved with the crop.

...

Having regard to the five matters I have mentioned and to the evidence of the witness that he had been with the two men on a number of occasions, I am firmly of the opinion that S, in giving evidence that he was unable to see the men with whom he had been involved in cultivating the cannabis crop in court, was deliberately withholding material evidence and was unwilling to tell the whole truth. I am satisfied that he is an adverse witness.

8 Thereafter, the prosecutor cross-examined the respondent, as follows:

... Firstly, do you remember being in committal proceedings in the Melbourne Magistrates' Court on 19 January 2006? - - - I do.

...

Do you remember that there were two defendants in the court room at that stage? - - - That's correct.

Mr Athanasiou and Mr Cozzi? - - - Sorry?

Mr Athanasiou and Mr Cozzi? - - - They're the people that I understand are to be today [sic], yes.

I want to suggest to you that those two men are the same two men that you know as Peter and Sam? - - - Correct.

The people that you refer to in your evidence as Peter and Sam? - - - That's correct.

In the course of the cross-examination, I want to read to you a passage of the transcript that was put to you at that committal. I want to read this and then I'm going to ask you some questions and answer them. I want you to listen to the questions and answer them, if you would be so kind. This was put to you. Question: 'He was associated with the crop, was he not?' 'He was.' He was the Peter who was involved with you in establishing the crop, isn't that right?' Answer: 'I don't know about establishing a crop, I work under instructions from Peter.' 'The Peter that we've just been discussing?' Your answer: 'Yes.' 'This is the man seated behind me in the grey suit whose name is Panagiotis Athanasiou, do you know that?' 'No.' Question: 'Let me suggest this to you. That he had nothing to do with the cultivation of cannabis at Old Cape Schanck Road, did he?' Your answer: 'With respect, I'm having a lot of difficulty hearing you.' The Magistrate then interjects. 'The suggestion is the gentleman sitting with the grey suit behind Mr Van der Wiel who is asking the questions is not involved with the crop. That's what (indistinct) suggesting to, that he is not.' Your answer: 'He is.' Were you asked those questions at the committal? - - - Was I asked those questions?

Yes? - - - Clearly I was, yes.

Were your answers to those questions true and correct? - - - They were.

...

Were the matters that you told the police on your record of interview true and correct? - - - To the best of my knowledge, yes.

...

Do you remember in the course of the plea proceeding, Mr Lindner asked you this question. Question from Mr Lindner: 'S, do you undertake to assist in the prosecution of offences against both co-accused in this matter?' Your answer: 'Yes, I do.' Question: 'I'm going to put these three questions and three answers that I will ask you about it.' Question: 'Do you undertake to do that by giving evidence at the committal and trial of both co-accused?' Answer by you: 'I do.' Question: 'Do you undertake to give such evidence in accordance with the statements to the police?' Answer: 'Yes.' Question: 'Were you present when' and the rest of that is somewhat irrelevant. You were present on the plea, you were on oath when you gave those questions and answers? - - - Clearly I was, yes.

Were you asked those questions? - - - I was.

Did you give those answers? - - - I did.

Were they true and correct? - - - They were.

Thank you. Did you know the names of your co-accused at that time? - - - I'm not sure, maybe, maybe not, I don't know.

Did you know that the names of your co-accused at that time were Panagiotis Athanasiou and Sam Cozzi - Sabino Cozzi" - - - I'm not sure when I became of their full names [sic].'

9 In effect the substance of the respondent's evidence was that the co-accused were equally complicit with him over an extended period of time in the offence charged. Therefore, unless the jury entertained a reasonable doubt about the respondent's evidence, a verdict of guilty was virtually inevitable. Having regard to the manner in which the respondent gave his evidence, however, it is not at all surprising that both co-accused were acquitted of the counts of cultivating a narcotic plant with which they were charged.

10 The Director initially contended that it was implicit in the respondent's undertaking to give evidence against his co-accused that he would identify them. But in the course of oral argument, senior counsel for the Director resiled from the submission that the implied term was so narrow. He contended that there was a broader implied term that the respondent would give truthful evidence at the trial in compliance with his undertakings, that he would 'assist in the prosecution of offences against both co-accused' and that he would give such evidence in accordance with his statements to police. Counsel further submitted that the respondent wilfully breached those undertakings by deliberately refusing to identify either or both of the co-accused when called upon to do so and by giving his evidence in a manner which, as the judge said, was demonstrably evasive and untruthful - just a form of theatre.

11 The respondent relied on an affidavit dated 19 May 2009 in which he deposed that he was not at any time asked by police to identify Peter or Sam by way of photo-board or otherwise, although his recollection is that he did identify Panagiotis Athanasiou as being the person referred to as Peter in the respondent's statements to the police. He also stated that he had not read his statements before the trial, since neither the informant nor the solicitor for the Director had provided him with copies; and that, although his own solicitor arranged for him to be given copies, he was unable to read them at the Melbourne Remand Centre where he was housed for fear of being seen by other inmates. He said that he was then given copies of his statements after beginning to give evidence before Judge Howie and that he thereafter gave evidence in accordance with his statements but in which he said that he was not sure whether he could see the person called Peter in court, because the man pointed out in the dock as possibly being Peter had a moustache and was thinner than he recalled Peter being, and that he could not see the man called Sam in court because the person he recalled as Sam had been half shaven and scruffily dressed and always wore a hat whereas the person in the dock pointed out as possibly being Sam was clean shaven and bald. The respondent further prayed in aid that eventually, after the voir dire and cross-examination by the prosecutor, he did say before the jury that the men in the dock were his co-accused whom he knew as Peter and Sam and that, when cross-examined by counsel for the co-accused, he denied that Peter and Sam were not involved with him in the cultivation of the cannabis. According to the respondent, therefore, he believed that he did answer all questions put to him honestly and did not believe that he failed to honour the undertaking which he gave before Judge Sexton.

12 It was rightly conceded by the Director that the affidavit was admissible. It contained evidence that was additional to the material relied upon by the Director. The respondent wished to rely upon that evidence to rebut the Director's primary submission that he had wilfully breached his undertaking. Such evidence was admissible as evidence relevant to the Director's appeal brought pursuant to s 567A (1A). If it is necessary to so find, we are also satisfied that it was evidence that fell within the fresh evidence rule as throwing further light upon matters relied upon at the plea, namely, the respondent's willingness to co-operate with the prosecuting authorities.[4] Evidence bearing upon a breach of such an undertaking has been so viewed in this and other jurisdictions.[5] In our view, however, the affidavit was not at all persuasive.

Respondent's evidence was demonstrably evasive

13 If it matters, we have little doubt that the respondent knew that the names of his co-accused were Panagiotis Athanasiou and Sabinon Cozzi. But whether or not he did know their names, we have no doubt that he well knew that the two men in the dock were the Peter and Sam with whom he was involved in the cultivation of the cannabis crop. As the judge observed in his ruling, the evidence was clear that the respondent spent many days over many months with the men he knew as Peter and Sam working together in setting up and then tending to the cannabis plants. To that may be added that there was evidence that the respondent had known Peter for some years before the offences were committed. It was also clear that, after the respondent was first arrested, he consulted with the other two men repeatedly and that he was sufficiently concerned that they suspected him of informing as to be on constant alert. In those circumstances, he is bound to have been familiar with his co-accuseds' appearances and it defies credulity that such supposed distinctions as a moustache, hair cut or weight loss would cause him any doubts. Furthermore, as he pointed out in his affidavit, when he ultimately condescended to tell the truth at the trial, he was able to identify the men in the dock as his co-acussed Peter and Sam.

14 We also entirely agree with the judge's description of the respondent's manner of giving evidence at the trial as demonstrably evasive and untruthful - just a form of theatre. Enough has already been said of the questions and answers concerning the identity of the co-accused to make that point. But in addition there were a large number of questions, as to how the respondent came to be involved in the cannabis project with Peter and Sam, and as to who did what and when about it, which the respondent answered with a degree of hesitation and uncertainty so pronounced that it was surely calculated to cast real doubt on the credibility of his testimony. Careful study of the transcript of his evidence is sufficient to reveal the nuances. But the video recording of the evidence makes the point vividly. One sees a witness striving by means of affected hesitation, feigned lack of comprehension and artful responses to say as little as possible inimical to the co-accused, particularly in relation to the question of identification, while pretending to comply with his undertaking to give evidence in accordance with his statements.

15 It is true, as the respondent observes that, ultimately after the voir dire and sustained cross-examination by the prosecutor, the respondent gave some answers which complied with his promise to give evidence in accordance with his statements. But by then the damage had been done. By then he had so much hesitated and created uncertainty that the jury were almost bound to doubt him; as we infer, beyond reasonable doubt, he intended.

16 The respondent submitted that his undertaking did not extend to identifying either of his co-accused but that if it did, he had identified them anyway. Further or alternatively, it was said, if he had been untruthful at any stage of his evidence about his capacity to identify his co-accused, that did not constitute a breach of his undertaking because the implied term that he give truthful evidence was confined to the matters set out in his statements to police; and in support of that submission, counsel for the respondent referred to the decision of this court in Director of Public Prosecutions v Stevens.[6]

17 Each aspect of that submission must be rejected. An undertaking to the court is a solemn engagement for breach of which the offender is liable to punishment for contempt and, at least as much as an undertaking inter partes, it imports an implied obligation of co-operation and good faith to do all such things as are reasonably necessary to carry it into effect. Where, therefore, an undertaking is given to give evidence in accordance with a statement, it imposes an implied obligation of co-operation and good faith to give such evidence honestly, fairly and to the best of one's ability.[7] Thus, even if his undertaking did not extend to identifying his co-accused, to feign ignorance and uncertainty in the face of questions asked in pursuance of such an undertaking was per se a breach of the undertaking. Thus, by his performance in the witness box, the respondent repudiated his undertaking.

18 The decision in Stevens is readily distinguishable. In that case the undertaking was one which, at its highest, was to give evidence in the terms of a record of interview and statement. Both of those were vague and neither of them said anything at all about the precise quantity of the drugs alleged to be involved. It also appeared that the offender may not have known the exact quantity of drugs alleged to be involved. Consequently, as Smith AJA observed,[8] it could not be said that the undertaking, was in terms or substance, one to identify the precise quantity involved and, in those circumstances, there was no breach of the undertaking in failing to give evidence which identified the precise quantity involved. Contrastingly here, the respondent's undertaking was both to co-operate with the Crown and to give evidence against the two accused, whom it appeared from the respondent's record of interview and statements he well knew and had known for a considerable period of time; and to give evidence in accordance with his statements, in which he described his association and face to face activities with the co-accused over a considerable period of time. Here, therefore, the undertaking was both in terms and substance an undertaking to give evidence against identified individuals who were well known to the respondent. Hence, therefore, it was a breach of the undertaking to refuse, at least initially, to identify the co-accused as such.

19 We also do not accept that the obligation to give truthful evidence was confined to the matters referred to in his statements.[9] As counsel for the respondent was in the end compelled to acknowledge, to so confine the undertaking would permit the respondent to lie about any matter not expressly referred to in the statements and which might have had the effect of undermining the prosecution case. It would also permit the respondent to so damage his credibility by the giving of other false evidence that the jury would not be prepared to act upon such evidence as he did give about matters referred to in his statements. In our view, the failure to tell the truth about matters not included in the statements was a breach of the undertakings and we are strengthened in that conclusion by the similar view taken by Simpson J (with whom Hidden J agreed) in Hodges.[10]

20 The respondent having been sentenced on the basis of his undertaking to give evidence against his co-accused in accordance with his statements, and he having now repudiated the undertaking, the sentencing discretion is in a sense re-opened. Contrary, however, to submissions advanced on behalf of the respondent, it is to be doubted that the question of the appropriate sentence is tabula rasa. The purpose of the introduction of ss 567A(1A) and (4A) was not punitive but to enable this court to adjust a sentence to an appropriate extent where a sentencing process can be seen, with benefit of hindsight, to have miscarried by reason of the circumstances set out

20 in those sub-sections.[11] The language and purpose of those provisions does not readily accommodate the contention that Parliament intended that, upon a breach of the undertaking being established, this court should re-exercise the sentencing discretion afresh so as to achieve a more favourable sentence than was initially imposed. Consistently with the absence of such a purpose, s 567(4A), unlike s 567(4) and s 568(4), does not confer any express power to impose a 'less severe' sentence than that which was passed. This appears to have been the view of Batt, J.A., with whom Vincent and Eames JJA agreed in DPP v Akkari.[12]

21 The fact that the respondent made an application for leave to appeal against sentence which was refused[13] in the face of grounds which included the contention that the sentence was manifestly excessive would not preclude this court from making a new determination of the appropriate sentence. But the only facts in existence at the time of the plea which were the subject of any mention on the appeal were the respondent's role as a 'caretaker', and the extent of his co-operation with investigating police. The submission otherwise focussed upon the events since the plea.

22 Counsel for the respondent accepted in the course of argument that the onus was upon him to show by way of exceptional circumstances why the sentence should not be increased to reflect all or part of the discount which the judge had allowed.[14] He was, however, unable to point to any extraordinary matters that should disincline the court from adjusting the sentence to reflect the fact that the respondent had made 'a bargain with the Crown from which he had resiled. He had received a benefit in exchange and at least some part of that benefit had to be taken back.[15]

23 Counsel for the respondent submitted that the breach of undertaking did not contribute to the acquittal of the co-accused and that this was a mitigating factor. But the hypothesis that the acquittal resulted for some reason unrelated to the jury's assessment of the respondent's credibility is most unlikely. And even if the respondent had discharged his burden of showing that it was so, it would be a consideration of little weight. The sentence is to be increased because the respondent gained a benefit by way of a reduced sentence to which he was not entitled.

24 We are mindful that the respondent is not to be punished for his departure from his undertaking or the nature or circumstances of that departure, but only for the count for which he stood for sentence in the County Court and which is the subject of appeal.[16] That said, the respondent falls to be sentenced for his role in the cultivation of an extremely large crop and in circumstances where he played a key role in locating the land and setting up the facility to grow the crop, and in maintaining it over a lengthy period. The sentencing judge expressed some doubt as to the extent of the share that he would have received from its sale but, at best, that may be treated as the absence of an aggravating circumstance.

25 Bearing in mind the time which the respondent has spent in prison since he was first sentenced, his age, state of health, and the fears which we infer he harbours as a consequence of giving evidence against his co-accused, we do not consider that the sentence now to be imposed should be as great as that which the judge is likely to have imposed were it not for the undertaking.[17] Despite the respondent's breach of undertaking, there is room here for a measure of mercy.

26 But it remains that the respondent received a large discount in sentence, which in the end he did not earn, and it is necessary now for a significant part of that to be brought to account.

27 All things considered, we have determined that the respondent should be re-sentenced to a term of imprisonment of eight years with a non-parole period of six years.

[1] The maximum penalty for the offence is life imprisonment and in addition to imprisonment, a penalty of not more than 5,000 penalty units: Drugs, Poisons and Controlled Substances Act 1981, s 72.

[3] R v Thynne [1977] VicRp 10; [1977] VR 98; see also R v Lamb (Ruling No 9) [2005] VSC 283; R v Shalala [2007] VSCA 199; (2007) 17 VR 133.

[4] R v Duy Duc Nguyen [2006] VSCA 184, [36].

[5] DPP v Burgess [2001] VSCA 135; (2001) 3 VR 363, [15] and [16]; R v J [1992] SASC 3639; (1992) 59 SASR 145; R v Stanley [1998] 7 Tas R 357, 369-370.

[7] Hodges v R (1997) 95 A Crim R 85, 95-96 (Simpson J).

[11] R v O'Brien (NSWCCA, unreported, 10 June 1993, per Gleeson CJ); R v Hocking [2000] NSWCCA 339 [33]

[14] DPP v DJT [2005] VSCA 270 [12] (Callaway JA).

[16] DPP v Akkari [2003] VSCA 98, [12] (Batt JA).

[17] Cf DPP v Mann [2006] VSCA 228, [8].

Poisons and Controlled Substances Act 1981

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