Court of Appeal (Vic)|2013-09-11|Before: Mr P, Osborn JA

Falzon v The Queen [2013] VSCA 246 (11 September 2013)

The Queen v Falzon (Unreported, County Court of Victoria, Judge Barnett, 26 June 2008)

1 I will ask Osborn JA to deliver the first judgment.

2 On 28 May 2008 the applicant pleaded guilty to trafficking in a drug of dependence, namely Cannabis L, in a quantity not less than a large commercial quantity.[1]

3 On 26 June 2008 the applicant was sentenced by Judge Barnett to 11 years' imprisonment with a non-parole period of eight years.[2]

4 Since 1986 the applicant has merited the description of a large-scale drug trafficker. In 1995 he was sentenced in the County Court to a total effective sentence of seven years' imprisonment with a non-parole period of five years in respect of trafficking in cannabis, amphetamine and heroin between 1986 and 1992. That sentence was upheld in the Court of Appeal on 15 February 1996.

5 After completion of his sentence the applicant at some point recommenced drug trafficking and between June 2005 and November 2005 his activities were the target of a police undercover operation known as 'Operation Tabby'. The investigation showed that the applicant was conducting a business involving the regular purchase of cannabis plants and dried cannabis for the purposes of resale. He used a number of false names and telephone numbers and attempted to conceal his trafficking by speaking in code to his customers on the telephone.

6 The cannabis was obtained from two different suppliers, Malcolm Brown-Kerr and Paul Reivers. The resale operations were conducted by the applicant but on occasion he arranged for his suppliers to make deliveries. The sales were made to a number of drug dealers who were also charged as a result of Operation Tabby.

They were also made to undercover police in the course of the operation. The quantity of drugs involved in the operation was put in issue on the plea. After hearing evidence from the informant as to the conduct of the applicant's business the sentencing judge found that the applicant fell to be sentenced on the basis that the trafficking proved beyond reasonable doubt was constituted by:

• the sale of a total quantity of 8 pounds of dried cannabis to an undercover police officer. The cannabis was delivered by and large through Reivers;

• the sale of a total of 181 cannabis plants for $30 per plant to the undercover operative; and

7 In sentencing the applicant Judge Barnett had regard, amongst other things, to the maximum penalty of life imprisonment applicable to the offence, the fact that the applicant was the architect and manager of the drug trafficking operation, and the seriousness of the applicant's prior convictions.

8 In turn he took into account the applicant's plea of guilty, the applicant's age of 57 (born 7 August 1952), the delay which had occurred since the offending in 2005, the applicant's personal history including the emotional consequences upon him of the loss of his son as a result of murder in 2007, and the ongoing effects of a back injury suffered by the applicant in 2007. His Honour specifically accepted that the applicant was now remorseful for his offending.

9 In turn Judge Barnett sentenced Browne-Kerr on 27 June 2008, the day after sentencing the applicant. He imposed a sentence of eight years' imprisonment with a minimum non-parole period of five and a half years. On appeal this sentence was reduced to six years' imprisonment with a minimum non-parole period of four years.[3]

10 Leave to appeal is now sought on the basis that the sentence of Browne-Kerr raises significant issues of parity both with respect to the head sentence and the non-parole period. It is submitted that the two offenders had a number of matters in common:

• Both were of relatively mature age. Browne-Kerr was 64 at the time of sentence and, as I have said, the applicant was 57.

• Both had difficult family circumstances. Browne-Kerr's wife was suffering bipolar disorder and his family circumstances were impoverished.

• Both had relevant prior convictions and both had previously served terms of imprisonment.

11 Thus, whilst accepting that the level of culpability involved in Browne-Kerr's offending was substantially less than that of the applicant, it is submitted that the disparity between Browne-Kerr's sentence and the applicant's sentence is such as to give rise to a legitimate sense of grievance on the applicant's part.[4]

12 I should interpolate that Judge Barnett himself acknowledged that the overall sentencing task with which he was confronted as a result of the charging of a series of individuals following Operation Tabby was a difficult one. Indeed he identified the question of parity between sentences as being the most difficult issue to overcome. Nevertheless he observed that the course of the plea proceedings had highlighted vast differences between each individual, in regard to the timing of their guilty pleas, the relevance of their previous offending, and relevant circumstances personal to each offender.[5]

13 In my view the disparity between the sentences of the applicant and Browne-Kerr is such as to raise seriously arguable issues relating to the question of parity. In consequence the hearing of the application for leave to appeal has been treated as the hearing of the appeal.

14 Despite the view I have reached on the preliminary issue, however, I am not persuaded that the applicant's sentence should be reduced. First it must be recognised that the applicant was the architect, director and manager of the scheme in which Browne-Kerr played a relatively minor role. The dominance of the applicant's role was exemplified by the following matters:

• The applicant imposed upon Browne-Kerr to become involved in the operation.

• Browne-Kerr's essential role was to grow cannabis plants in an unsophisticated backyard operation.

• Browne-Kerr was an underling held in contempt by the applicant.

• The applicant had other suppliers and in particular the evidence disclosed that Reivers produced young plants and dried cannabis for him.

• The applicant sold his plants to a network of purchasers.

• The applicant organised the participation of others for the purposes of sales on his part, including Browne-Kerr and Reivers.

The Court of Appeal characterised Browne-Kerr's offending as being of an unusually low degree of seriousness when compared with other cases of the same offence.

15 Secondly, the applicant's prior convictions were considerably more serious than those of Browne-Kerr. When the applicant came before the Court of Appeal in 1996 Southwell AJA, with whom Brooking and Charles JJA agreed, said of the offending then in issue as follows:

The Applicant was a large-scale drug trafficker from 1986 until his arrest in May, 1992. I regard as correct the description given to his activities by the Director of Public Prosecutions when he said that, 'A substantial commercial enterprise was carried on by the Applicant over a period of six years'. He dealt with large quantities of cannabis in its various forms and, to a lesser extent from time to time, in amphetamines and heroin. He operated his business from his home in Laverton where his wife assisted him. The scale of trafficking may be demonstrated by these references: In the latter months of 1986 the Applicant was selling three to four pounds of cannabis per week to one Peter Wooles, whose later defection to become a police informer assisted in the detection of the Applicant.

In April 1987 the Applicant provided Wooles with a sum of between $50,000 to $100,000 in cash for the purchase of compressed cannabis heads, at the rate of $8,300 per kilogram. I use the imperial and metric measures which were variously adopted in the Court below.

There was a number of sales by the Applicant for quantities of up to two kilograms of hashish, the price of which gradually rose to some $18,000 per kilogram. At one point in 1989 the Applicant claimed to have available some 40 kilograms of cannabis. Between March and August 1989 one dealer purchased from the Applicant an estimated 50 kilograms with a total value of some $585,000. From March to August 1990, about 15 kilograms grams were trafficked with a value of between $120,000 and $150,000.

In July 1990, the Applicant boasted he was profiting in heroin sales at the rate of $27,000 per ounce, although the specific sales of heroin the subject of the counts do not involve such large quantities. The same may be said of the counts involving amphetamines.

When the Applicant was arrested he had in his possession $95,000 in cash. A further $120,000 or thereabouts was seized from a house in Sunshine, these sums being the subject of the earlier mentioned consent forfeiture order made by the sentencing judge. The Department of Taxation has obtained a judgment against the Applicant in the sum of about $385,000.

The Crown case was that the Applicant had from his drug trading profited in the sum of not less than about $675,000. [6]

16 I note in passing that the 1996 appeal was put on the basis that the applicant was genuinely remorseful and had good prospects of rehabilitation.[7] The reality is that the offence now before the Court constituted the resumption of large-scale drug trafficking despite the previous imposition of a substantial period of imprisonment for like offending. Whilst his remorse now may again be genuine, the prospects of rehabilitation must be guarded.

17 Although Browne-Kerr had relevant prior convictions he was by comparison a petty criminal. The most relevant prior convictions were for two counts of trafficking for which in 1995 he received a total effective sentence of 30 months with a minimum non-parole period of 12 months.

18 In my view, when these differences in criminal history are coupled with the fundamental difference in roles played in the drug trafficking operation now under consideration the disparity between the sentences imposed is entirely explicable.

19 Whilst the circumstances are sufficiently unusual to warrant the grant of leave to appeal, I would dismiss that appeal.

[2] The Queen v Falzon (Unreported, County Court of Victoria, Judge Barnett, 26 June 2008) ('Sentencing Remarks').

[3] Browne-Kerr v The Queen [2011] VSCA 35.

[4] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301; R v Farrugia [2011] VSCA 24; (2011) 32 VR 140, [25]-[32].

[6] Falzon v DPP (Unreported, Court of Appeal, Supreme Court of Victoria, Brooking, Charles JJA and Southwell AJA, 15 February 1996), 4-5.

Poisons and Controlled Substances Act 1981

Falzon v The Queen [2013] VSCA 246

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Falzon v The Queen [2013] VSCA 246 (11 September 2013)

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