DPP v Stevens [2004] VSCA 34

12. This appeal is brought by the Director of Public Prosecutions pursuant to section 567A of the Crimes Act 1958 in respect of a sentence passed upon Samantha Rita Stevens on 7 September 2001.

"the sentence imposed was of lesser severity because of an undertaking given by the respondent to assist after sentencing law enforcement authorities in the investigation and prosecution of an offence, and the respondent has failed to fulfil the undertaking."

19. On 31 August 2001, the respondent pleaded guilty in the County Court to one count of trafficking in a drug of dependence of not less than a commercial quantity and one count of breach of a suspended sentence. In the course of her plea she gave an undertaking to assist law enforcement authorities in the investigation or prosecution of an offence. On 7 September 2001, she received a sentence of 18 months' imprisonment on the trafficking charge and was required to serve the original suspended sentence of 12 months imprisonment. The total effective sentence passed was 2 years imprisonment and a non-parole period of nine months was fixed.

22. To understand the issues raised in this appeal it is necessary to refer in some detail to the plea hearing and the undertaking that was given and the events said to constitute the breach of that undertaking.

25. 7 In the course of the hearing of her plea, heavy reliance was placed by the respondent's counsel upon her willingness to give evidence in proceedings the Crown wished to bring against one Daena Simonds. The respondent was a heroin addict. She had apparently been collecting from a wholesaler and using funds provided by Ms Simonds to pay for heroin for Ms Simonds. Ms Simonds was dealing in the heroin with others. An issue in the plea was the extent of the amount of heroin collected and delivered to Ms Simonds by the respondent. The prosecutor submitted to the learned sentencing judge, on the basis of her admissions in the record interview and a later formal statement, that the quantity ranged from 566.5g to 1022g - both more than a commercial quantity, which was 500g. The figure of 566.5g was put forward as a low estimate by her counsel who argued that His Honour should conclude that the lower figure was the proper figure to rely on. Her counsel submitted that the higher amount was calculated from off the cuff answers in the record of interview as opposed to "a settled statement that was prepared for her by the police and which she was happy to adopt".

28. In the course of her plea , the respondent gave evidence in which she said that what she said to the police in her record of interview on 22 December 2000 was true and correct. She also said that the formal statement that she signed on 9 March 2001 was true and correct. She confirmed that she would, if required, give evidence against Daena Simonds and that the evidence she was prepared to give would be "in accordance with what she had told the police" in her "record of interview" and in her "statement". She was then asked to give an undertaking in the following terms -

"Miss Stevens, do you undertake to His Honour to assist after your sentencing law enforcement authorities in the investigation or prosecution of an offence concerning Daena Simonds?"

She replied in the affirmative to that question. She was then asked whether

"That offence being her involvement with you in the trafficking of heroin for which you are currently before this court?"

35. Plainly the respondent's plea proceeded on the basis that the respondent accepted and admitted that she had been involved in trafficking a total quantity of at least in 566.5g and her counsel addressed the sentencing judge on the basis that that was the amount to be arrived at from her statement and to be preferred over those answers in the record of interview which could be interpreted as suggesting a higher amount.

38. Her counsel also put to the learned sentencing judge that the offer to give evidence against Ms Simonds was of "a very high order indeed" and that the benefit to the Crown of her evidence would be that she "actually quantifies the amount of the dealing and puts it into the commercial quantity itself in relation to Ms Simonds". The prosecutor interrupted the submissions of counsel for Ms Stevens at that point to confirm the value of the evidence - particularly the fact that it quantified "the case as being a commercial quantity against Simonds" and that "the evidence would be of significance to a Crown case against Simonds" and was worthy of a discount.

41. In his reasons, the learned sentencing judge noted that the prosecutor

"agreed that the value of the prisoner's evidence in the trial of Miss Simonds would be particularly significant as to the quantity of drugs dealt with by Miss Simonds"

and referred to threats that had been made and fear of reprisals from Ms Simonds because of her co-operation with police and willingness to give evidence. His Honour also stated

"In her police interview the prisoner co-operated fully and significant credit must be given for this, particularly as there was limited independent evidence against her and certainly it has been by her own admissions that she has been charged with the offence of trafficking in not less than a commercial quantity. Similarly the undertaking to give evidence against Miss Simonds must attract significant discount in respect of any sentence. "

47. His Honour also noted that in determining that there should be partial cumulation of the sentence for trafficking, he took account amongst other things of her admissions and co-operation and "her undertaking as to continued assistance to the authorities."

50. Before turning to the circumstances of the alleged breach of the undertaking, I should refer in more detail to precisely what the respondent did say in her record of interview and statement.

53. In her record of interview, she gave general descriptions of how she met Ms Simonds and how the relationship developed. She described how initially she used to drive Ms Simonds when the latter collected heroin from her supplier. Then was asked by Ms Simonds to collect the heroin herself and hand over the money, being supplied with amounts each time of "about $2,600". She gave descriptions as to how meetings were arranged by Ms Simonds for her on her own to meet with Ms Simonds' suppliers and that she would pick up roughly half an ounce of heroin. She spoke of the progress of dealing with one of the dealers in the following terms:

"To start off with it wasn't a block, and it was - I mean, I was getting about five, 1.7 blocks, and they'd come wrapped up in foil, and I probably - that went on for about, maybe about a month I'd say, and then she started to buy half an ounce blocks, it was just one block, one big block of heroin after that."

Then later when asked how long she had been driving Ms Simonds, and later herself, picking up the heroin for Ms Simonds she said

"Gosh, and it wouldn't be - I suppose 2, 3, yeah, probably about three months max. I don't think it was any longer than that."

When pressed to agree that the relationship had gone on for 2 ½ to 3 months she initially agreed but then suggested that over a period of three weeks she maybe started to spend more and more time with Ms Simonds and said she could not be exact on the timeframe. She said that "it probably wasn't even 2 months, I'm just guessing". She appeared to accept in response to leading questions that within about three weeks of meeting Ms Simonds she started taking her to Collingwood (about five weeks after Ms Simonds' release from prison). Later she started doing the pick-ups herself. Finally, I note that she said that she went to pick up for Daena everyday and maybe on three or four occasions she might have gone a couple of times "over the whole two-months". She again stated that when Ms Simonds was purchasing 1.7 blocks she started to go over a couple of times a day and then she started to purchase ½ ounce blocks so that she only had to go over once a day.

60. These answers to questions are to be contrasted with the contents of her statement which had been prepared by police, and which she read and swore was true and correct. The critical passage in her sworn statement was the following:

"I started picking up the heroin for Daena in mid October 2000. Daena would give me $2,400 to purchase a half ounce of heroin and then send me to either a block of Housing Commission flats in Collingwood or to the Highpoint Shopping Centre to meet with either Phuong or Kenny who was also Vietnamese. I was asked to go and see these males at least five days a week and I would usually purchase the same amount of heroin for Daena on each occasion. Daena would usually give me $15 to cover my fuel costs and also a $100 deal for picking up the heroin for her. I would pick up 2.5 ounces of heroin for Daena each week and I did this for about seven weeks. After purchasing their heroin, I would return to Frankston, go to Daena's house in 31 Glenelg Avenue and hand her the block of heroin."

64. I turn to the subsequent events said to constitute the breach of the undertaking.

67. On 26 May 2003, the proceedings against Ms Simonds came on for hearing. The respondent attended court to give evidence for the Crown against Ms Simonds. A Basha inquiry was held, at the outset of which she was asked to look at her sworn statement and say whether there was anything she wished to add to it. She said that there was nothing that she wished to add and was about to qualify her statement when she was asked whether the statement was correct. She responded that she had a "slight problem with the statement". Asked what the problem was she referred counsel to the passage quoted above and indicated that before the figure 2.5 should be added the words "up to". She said the figure was not an average but the maximum. She was then cross-examined by counsel for Ms Simonds. She stated she could not say how many times during the seven weeks she had collected 2.5 ounces of heroin but said:

"maybe just over half the times I went there would have been the maximum, two and a half, but the other half the time maybe just under half. It would have been a lot less than that."

"I'd pick up, up to 2.5. If I - I couldn't have worked out an average, to be honest with you. That was the maximum, that was all I was told to give at the time. I wasn't told to give an exact average of what I was picking up on a daily basis".

She was questioned further. She said that maybe 15 times she would pick up the maximum and the remaining 20 times a couple of 1.7's. Under further questioning, she said that the lowest could have been an ounce but that she was guessing. She later agreed that the minimum in a week would have been one ounce. That would have occurred in more than one week but she could not tell exactly. She said she did not know the exact amount. Pressed further for more precise evidence about amounts and times, she did not give it. She denied that the 2.5 figure in her statement was a complete guess; she had picked up knowledge of the cost. Under further cross-examination she accepted the proposition that four of the weeks were only about one ounce and three weeks were more than one ounce and she was relatively sure that one of the three weeks was 2.5 ounces - but she was going on the money being talked about. She repeated that she could not be sure, that she was only going on the size of the blocks and never weighed them herself. She said that what she said she believed to be true but she couldn't dispute the suggestion that the weight could have been less than 2.5 ounces, 2 ounces or less than ½ ounce, but she thought the latter was getting "sort of unlikely". In the end she accepted propositions put to her by counsel for Ms Simonds that her best estimate was that there were four weeks where she collected one ounce a week, three weeks where she thought she would have picked up at least 1.5 ounces and that beyond that she was guessing. In re-examination, counsel for the Crown questioned her about the money she was given for the task. She agreed that she was paying $2,400 when she went over there but could not say that that occurred every time. She said she went with a satchel with the money in it and the drugs would go into the satchel. She said she did not count the money every time and it wasn't the same amount every time - something she could tell from the thickness. There was further vague evidence on the issue. I turn to the submission on this appeal.

74. The appellant submitted that the Crown and the learned sentencing judge proceeded on the basis that the evidence the respondent would give would be that a minimum of 566.5g was trafficked during the period of the offence. The Crown submitted that in not giving evidence of a minimum quantity of 566.5g being trafficked during the relevant period, the respondent breached the undertaking.

77. The question to be determined is identified in section 567 A (4A). It is stated as follows:

"(4A) On an appeal under sub-section (1A) the Court of Appeal may, if it thinks that the respondent has failed wholly or partly to fulfil the undertaking, quash the sentence passed and pass such other sentence warranted in law as it thinks fit."

81. A comparison of the evidence the respondent was willing to give with the record of interview and the statement raises a number of interesting issues bearing in mind the inconsistencies between the record of interview and the statement and the vagueness generally in the record of interview and as to the period of the alleged trafficking in the statement. These issues were discussed in the course of the appeal as were the issues of whether there was any onus of proof - given that the test is, what this Court "thinks" - and, if so, what was the standard of proof. It is not necessary, however, to resolve these issues. The Crown has, properly, not sought to argue that the undertaking was breached for failure to give evidence in accordance with the precise terms of the statement. The issue raised by the Crown is whether the respondent breached the undertaking by declining to give evidence of a minimum of 566.5g of trafficking during the relevant period. While plainly that was the expectation of the Crown and the respondent's counsel, and may well have been understood by the respondent to be their expectation, it cannot be said that the undertaking was in those terms, either literally or in substance. At its highest, the undertaking that was given was to give evidence in the terms of both the record of interview and the statement - accounts which were vague and inconsistent.

84. For the foregoing reasons, I have come to the conclusion that by declining to give evidence of a minimum of 566.7g of heroin trafficking the respondent did not breach her undertaking.

87. The appellant faces a further difficulty in light of the report of the learned sentencing judge in his report to this Court. His Honour stated inter alia:

"I have re-read the reasons for sentencing. I do not have a complete recollection of the matter. I consider that the undertaking given by the respondent was taken into account by me in setting the sentence on the drug charge, the extent of cumulation and the minimum term. However, I did consider at the time that my rejection of the submission that exceptional circumstances[1] had arisen since the date of the earlier order and the fact that the Respondent was sentenced to a significant term of imprisonment would put the Respondent under some personal pressure because she had apparently previously been threatened as a result of the co-operation offered to authorities. Also, having heard the Respondent briefly in the witness box and having dealt with her previously, I was not confident that any evidence given by her in later proceedings would be particularly compelling. The most significant factors in sentencing the Respondent were her efforts to rehabilitate herself and the assistance she had given police after she was arrested. In the circumstances, I do not believe the undertaking given by the Respondent assumed the same importance it might ordinarily have had in the sentencing process."

91. In making his report, the learned sentencing judge would have had a copy of the notice of appeal and whatever material he had retained in relation to the sentencing process. There is nothing before the Court to suggest that he would have been made aware that the complaint of the Director was that the respondent had failed to give detailed evidence supporting the conclusion that an amount in excess of 556.5g had been trafficked. His report reveals, however, that while he gave a discount for the undertaking given he did not do so in the expectation that any evidence she gave would be particularly compelling. This assessment was realistic. An analysis of the record of interview and the statement should not have caused His Honour to think it likely that the respondent would be able to give any evidence of real use to the Crown as to quantity. Whatever proposition she had been prepared to accept about quantities for the purposes of her statement and her sentencing, the record of interview provided fertile ground on which to cross-examine her as to quantity in any later proceeding. There was also scope for Ms Simond's counsel to reduce the quantity set out in the statement because of the vagueness of Ms Simond's description of the period. In those circumstances, the specific evidentiary aspect sought to be relied upon by the Director did not in fact have any impact on the sentence imposed. Rather, it was the undertaking to assist generally and the risks to the respondent in doing so, together with the assistance she had given in other ways through the record of interview and statement to the police, that contributed to any discount.

94. If I be wrong in the above analysis, His Honour's report would in any event be relevant to the exercise of the discretion vested in the court in these proceedings. The report makes it reasonably clear that the subsequent conduct of the respondent in the Basha inquiry accorded with the assumptions His Honour made about her possible future evidence and therefore, even if there was a breach of the undertaking, no alteration should be made to the sentence imposed.

97. For the foregoing reasons the appeal should be dismissed.

[1] A reference to s 31(5) Sentencing Act 5