DPP (Cth) v Vestic [2008] VSCA 12

Court of Appeal (Vic)|2008-02-07|Before: VINCENT and NEAVE JJA and COGHLAN AJA

Criminal law - Appeal by Commonwealth Director of Public Prosecutions - Importation of a border-controlled precursor, namely, pseudoephedrine - Sub-s 307.12(1) of the Criminal Code (Cth) - Sentence of twelve months' imprisonment to be released after six months - Whether sentence was manifestly inadequate - Co-accused being the principal offender received a very lenient sentence due to having a terminal illness - Principle of double jeopardy - Imposition of an immediate custodial term on a respondent who has already been released from prison - Sentence found to be manifestly inadequate but appropriate for the court to exercise discretion against re-sentencing the respondent.

2 On 10 July 2007, the respondent pleaded guilty in the County Court at Melbourne to one count of importing a substance intending to use or believing that another intended to use, any of the substance to manufacture a controlled drug; the substance being a border-controlled precursor, namely, pseudoephedrine, and the quantity imported being a marketable quantity (contrary to sub-s 307.12(1) of the Criminal Code (Cth)).

3 He was said to have committed that offence by aiding and abetting the commission of the offence by his co-accused, John Anthony Giannarelli.

4 He admitted one prior conviction, which for present purposes is of no consequence.

5 The offence related to the importation by courier of 16,923 tablets containing pseudoephedrine.

6 The maximum penalties for the offence are imprisonment for 15 years and a fine of $330,000 or both.

7 On the same day, his co-accused, John Anthony Giannarelli, the principal, pleaded guilty to the importation of a total of 34,310 tablets. The difference in the amounts between the two accused was that Giannarelli took responsibility for the importation of six packages, while the involvement of the respondent related to only three. Giannarelli's offence became the more serious one of importation of a commercial quantity of a border-controlled precursor. The maximum penalties were 25 years and a fine of $550,000 or both.

8 The respondent was sentenced to be imprisoned for 12 months, to be released after serving six months of the sentence upon entering into a recognisance in the amount of $5,000 with a condition that he be of good behaviour for a period of six months. Ten days was reckoned as being already served. He was released pursuant to that order on 30 December 2007.

9 The co-accused Giannarelli was sentenced to three years' imprisonment, but released on entering into a recognisance in the sum of $5,000 to be of good behaviour for three years. He was also fined $55,000. The very lenient sentence imposed upon Giannarelli was imposed in the exercise of mercy because he has been diagnosed with the terminal illness mesothelioma and has a very substantially reduced life expectancy.

10 By Notice of Appeal dated 31 July 2007, the Director of Public Prosecutions (Cth) appeals against the sentence imposed on the respondent on the basis that it was manifestly inadequate. The particulars of the grounds of appeal are set out as follows:**

2. In imposing the sentence and in ordering the release of the respondent after serving six months' imprisonment upon him giving security by recognisance of $5,000 to be of good behaviour for six months, the learned sentencing judge -

(a) failed to give sufficient weight to the seriousness of the offence;

(b) failed to give sufficient weight to the principle of deterrence.

11 The general principles for appeals brought by the Director of Public Prosecutions are set out in R v Clarke.[1] The sole complaint of the Director in this case is manifest inadequacy. He seeks to bring the appeal within the principles set out in R v Clarke (supra) stated as follows:

Occasions may arise for the bringing of a Crown appeal -

(a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standard as to constitute error in principle. (Everett at 300).[2]

**12 It has been argued on behalf of the Director that the sentence is manifestly inadequate. Reliance was placed upon the well known authorities which point out that the importation of drugs is to be regarded very seriously.[3]

13 As part of that argument, Mr Gurvich pointed out that the Commonwealth legislature had introduced this offence and other drug offences into the Criminal Code in 2005. He has provided the Court with copies of the Explanatory Memorandum of the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005. There is no doubt that the legislature regards conduct such as that of the respondent as being very serious.

14 Mr Gurvich also placed great emphasis on the need for general deterrence in offending of this kind and the fact that the present sentence appears to carry very little weight in that regard. The seriousness of the offending and the leniency of the sentence are clear. The question is whether or not a manifestly inadequate sentence has been imposed.

15 The importation of pseudoephedrine which gave rise to this offending was planned in some detail but lacked sophistication. In the result, it was somewhat foolhardy. The co-accused, John Anthony Giannarelli, left Australia on Saturday 14 January 2006 to travel to Kunming in China. He had a return ticket to Melbourne on Sunday 22 January 2006. The respondent and Giannarelli both arrived in Kuala Lumpur on 22 January and departed on 24 January; their passports record that activity.

16 When Giannarelli was leaving Australia he was questioned and searched by Customs. He had with him $A8,815. He was carrying a large amount of documentation that would readily give rise to the suspicion that he was preparing to import pseudoephedrine into Australia. Among the documentation was a list of seven names and addresses, one of which had been crossed out.

17 On Thursday 26 January 2006, customs officers intercepted six packages which had arrived in Australia from Kuala Lumpur via a courier company. The packages were addressed to the six persons on Mr Giannarelli's list. Each package had a consignment note indicating they had been sent from Kuala Lumpur. The consignment notes were in Giannarelli's handwriting. The packages contained the pseudoephedrine tablets in bottles marked 'Zinc/Magnesium'.

18 The respondent had arranged to pick up one of the parcels, which was to be delivered to Fuss Beauty and Laser Clinic at Unit 3, 255 Flinders Street, Melbourne. He and his partner ran that business.

19 Evidence gained by telephone intercept indicated that the two accused were in contact and discussing the collection of the package or packages.

20 On 1 February 2006, the respondent collected the package from Fuss Beauty and Laser Clinic and delivered it to Giannarelli near the Cricket Club Hotel, South Melbourne. In a later search of the hotel, the contents of the 'Fuss Beauty' package were located.

21 When he was arrested the respondent made a 'no comment' record of interview.

22 It follows that his role was an important and significant one. The Director of Public Prosecutions accepted his plea to the offence relating to a marketable quantity. His plea related to three of the six packages and therefore to 16,923 tablets (containing 854.7 grams of pure pseudoephedrine), as against 34,310 tablets (containing 1740 grams of pure pseudoephedrine). The value of the tablets relating to the respondent was $84,165 in Australia.

23 The prosecution proceeded against the respondent 'in that he did aid and abet, counsel and procure the commission of the offence by John Anthony Giannarelli (sic)'. There may not be a major distinction for sentencing purposes, but he was not the principal in the importation. How his role was to be assessed was not set out on the plea or adverted to in the sentence.

24 The respondent is 42 years of age. Apart from one minor prior conviction, he has been of good behaviour. He operates a business called Melbourne Beauty from the Flinders Street address. His background is in the hospitality industry. He has worked in and operated hotels, nightclubs and restaurants. He was a part-owner of the Cricket Club Hotel, but that was financially disastrous. Witnesses gave evidence that his conduct was out of character, that he was a good father and partner and that he had been generous in the support of good causes. He had suffered a major brain injury in 1993 and that injury had some effect on his behaviour over the years. In the eighteen months since the offending, he has got on with his life and has been in no further trouble. He pleaded guilty somewhat late in proceedings but was entitled to some credit for that. He appeared remorseful.

25 In his very brief sentencing remarks, the learned sentencing judge found that there was a low likelihood of him offending in the future.

26 He has served the custodial portion of the sentence imposed on him.

27 There are two particular features of Director's appeals which must be considered. The first is that, if the respondent fell to be re-sentenced, then he would have the benefit of what has come to be known as double jeopardy. In R v Clarke (supra), in another passage at page 522, Charles JA said:**

When, in response to a Crown appeal, the Court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed in the first instance.

Second, that principle, taken together with considerations of mercy, has led appellate courts to be loath to impose an immediate custodial term where such a term has not been imposed, or to return a respondent to prison after he has been released.[4] Although that matter is an important consideration, it will not, of itself, prevent the Court from re-sentencing in an appropriate case.[5]

**28 It is true that the respondent could have had his appeal heard at an earlier date, 1 November 2007, and when he sought the adjournment of it, the significance of the adjournment was pointed out to him. However, his decision to try and obtain representation can hardly be held against him in circumstances where the provisions of the Appeal Costs Act 1998 are not available to him.

29 The final consideration arises out of the sentencing of the co-accused Giannarelli. Giannarelli received a very lenient sentence in circumstances where he has a significantly lowered life expectancy, perhaps only a year or so. In the first Outline of Submissions filed on behalf of the respondent, an argument based upon parity was put on his behalf. A matter which is so personal to the co-accused which gives rise to a lenient or very lenient sentence based on a call for mercy cannot give rise to the application of principles of parity.

30 The only question is whether or not it is of any relevance. The question came before this Court in Director of Public Prosecutions v Downing.[6] That was a Director's appeal. Downing was the co-accused of a man named Laurie Allen. Allen was the financier and the boss. He was a C4 quadriplegic who had chronic problems which would lead to his term of imprisonment being particularly onerous. Nettle JA, (with whom Buchanan JA and Kaye AJA agreed), said:**

It seems to me, however, that the judge was in a difficult position when sentencing Allen, in that his Honour was faced with an offender whose physical condition and consequent suffering were bound to make life in prison almost unbearable. Rightly, the judge very substantially reduced the sentence imposed on Allen for that reason. Having done that, his Honour had also to deal with the demands of parity when it came to sentencing Thomas and the respondent. So, while allowing that the special circumstances applicable to Allen were not applicable to the other two offenders, it was perhaps inevitable, or at least likely, that some of the leniency shown towards Allen had reflected in the sentences imposed on the others.

Generally speaking there are unlikely to be many cases of offending of this scale where it will be necessary or appropriate to show the sort of leniency that Allen received. Further, it may be that, if there is any other case in which one offender qualifies for special lenience, it will not be viewed as necessary or appropriate to maintain the sort of parity in relation to the co-offenders that was observed in this case.

**31 Similar circumstances have arisen somewhat sooner than his Honour anticipated.

32 It may well be that in the exercise of mercy the learned sentencing judge did have some regard to the proposition that in this case the principal offender would serve no actual custodial sentence. If that is what occurred in this case, it may be wrong in principle, but considerations of mercy always have a part to play in the sentencing process.[7]

33 A sentence of twelve months for deliberate and calculated offending of this kind is manifestly inadequate. That conclusion opens the question of re-sentencing the respondent, which in turn raises the questions of double jeopardy and the fact that the respondent has been released.

34 The Court has an 'overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown.'[8] In the circumstances, I am satisfied that the Court ought to exercise that discretion in this case. That is the result of the combined effect of double jeopardy and the fact that the respondent has been released. These reasons should not be taken as supporting the proposition that a sentence such as the present one would be adequate for like offending.

36 As Coghlan AJA stated in his judgment, the proper exercise of sentencing discretion in this case required the imposition of a more substantial sentence than that handed down upon the respondent. However, I also agree that, in view of the considerations to which he referred and in the exercise of discretion, this appeal should be dismissed.

37 In my opinion the sentence imposed by his Honour in this case was exceptionally lenient having regard to the nature and gravity of this offence. The 15 year maximum term of imprisonment reflects the seriousness with which the legislature views it. The respondent's offending behaviour was premeditated, although the importation plan was executed ineptly, and was solely motivated by the offenders' desire to make a profit. Offences of this kind are often difficult to detect. Those who contemplate the importation of pseudoephedrine should know that they run the risk of incurring a substantial sentence if they are apprehended. General deterrence was therefore a very important consideration in sentencing the respondent. In my opinion, the sentence imposed indicates that his Honour could not have given sufficient weight to general deterrence.**

**38 For these reasons I would have been inclined to allow the Director's appeal and re-sentence the respondent. However, like Vincent JA and Coghlan AJA, I consider that the Court should exercise its discretion against re-sentencing the respondent, having regard to the fact that the respondent has only one prior conviction, to the principle of double jeopardy and to the fact that the respondent has now been released.

39 The order of the Court is that the appeal is dismissed.**

[2] At 522, (Charles JA with whom Winneke P and Hayne JA agreed).

[3] R v Tait and Bartley (1979) 24 ALR 473, 485; R v Perrier (No. 2) [1991] VicRp 38; [1991] 1 VR 717, 721.

[4] See Director of Public Prosecutions v Douglas [2006] VSCA 160; Director of Public Prosecutions v Coley [2007] VSCA 91; Director of Public Prosecutions v Feveleaki [2006] VSCA 212; (2006) 165 A Crim R 524.

[5] See Director of Public Prosecutions v Best (1998) 100 A Crim R 127.

[7] See R v Osenkowski (1982) 30 SASR 212.

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