R v Alparslan [2007] VSCA 3

"It is my usual practice to fix a non parole period representing two thirds of the head sentence, and I see no reason to do otherwise in this case."

5 The appellant now appeals against the sentence on the following grounds:

Ground 1 "That in fixing the non parole period the learned sentencing judge erred in improperly fettering his discretion by placing reliance on his usual practice as to the fixing of a non parole period".

Ground 2 "That the learned sentencing judge erred in failing to place sufficient weight on the prospects of the appellant's rehabilitation".

6 The facts of the matter may be stated briefly. Between 4 October 2002 and 20 November 2002, a lawful telephone intercept was placed upon a mobile telephone service operated by the appellant. During this period, over 7,400 telephone calls to and from the telephone service were monitored as a result of which a number of persons were identified as having purchased drugs from the appellant.

7 The prosecution case in relation to Count 1 was that the appellant trafficked in a quantity of methylamphetamine that was "near to 2.5 kilograms".

8 Count 2 related to a sum of $84,135.17 which was supplied to the girlfriend of the appellant and laundered through the business bank account of a beauty salon operated by her. The prosecution case was that this sum was the proceeds of the appellant's drug trafficking activities.

9 Count 3, a count of trafficking in a drug of dependence, related to two transactions; the sale and purchase of one and a half ounces of heroin.

10 Count 4, a count of possession of a drug of dependence, ecstasy, related to 21 tablets found to be in the possession of the appellant upon his arrest.

Ground 1 - That the discretion of the sentencing judge was fettered by placing reliance upon his "usual practice" of fixing a non parole period

11 The appellant contends that by the learned sentencing judge having stated "It is my usual practice to fix a non parole period representing two thirds of the head sentence", he improperly fettered his discretion.

12 It is argued that by the application of a "starting point" being the "usual practice" of the sentencing judge, he fell into the error of applying a "formulaic or mechanical approach in the fixing of a non parole period".

The determination of a non parole period

13 Section 11(1) of the Sentencing Act 1991 provides that if a court sentences an offender to a term of life in prison, or a term of two years or more, the court must fix a period during which the offender is not eligible for parole unless it considers that "the offence or the past history of the offender" makes the fixing of such a period inappropriate.

14 Section 11(2) of the Act provides that a court may fix a non parole period in respect of a term of imprisonment of less than two years but not less than one year, and s.11(3) provides that any non parole period must be at least six months less than the term of the sentence.

15 Apart from s.11 of the Act there is no statutory direction as to relevant matters to be taken into account in fixing a non parole term. However, this Court has given consideration to the nature of the exercise on a number of occasions. In R v Morgan & Morgan[1] Jenkinson J (with whom Kaye J agreed) said:

"The term of the sentence is the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender. The 'lesser term', or minimum term, is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify."

16 The use of the words "particular offence" and "particular offender" by Jenkinson J in the above passage highlights the necessity for consideration of the particular circumstances of the case under consideration in fixing a non parole period.

17 In R v Mulvale[2] Winneke P said:

"The fixing of a minimum term is no sinecure but requires discreet consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision."

18 In R v VZ[3] the Court of Appeal gave consideration to the process to be adopted by a sentencing judge in the fixing of a non parole period. Callaway JA said[4]:

" ... a non parole period cannot be fixed unthinkingly by some such method as taking two years, or one third or one quarter, off the head sentence. All the relevant factors have to be taken into account. They are many and varied. I mention only three of them, because they bear on this case. The first is that a non parole period has a penal element. The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non parole period. The third, which requires no citation of authority is that a prisoner's prospects of rehabilitation are almost always a significant consideration."

" ... no mechanistic or formulaic approach could be taken to the fixing of a non parole period. Because it is the minimum time that the judge determines justice requires that the prisoner serve having regard to all the circumstances (see Power [1974] HCA 26; (1974) 131 CLR 623 at 629; Deakin [1984] HCA 31; (1984) 11 A. Crim. R. 88 and Bugmy [1990] HCA 18; (1990) 169 CLR 525 at 531, 536 and 538; [1990] HCA 18; 47 A. Crim. R. 433 at 437-438, 441 and 442-443), it cannot be fixed automatically by taking two years, or one third or one quarter, off the head sentence: see also Saunders [2000] VSCA 58 at [28]. All the relevant factors have to be taken into account and they may be many and varied."

20 The respondent argues that although the expression used by the learned sentencing judge relating to his "usual practice" is not "particularly felicitous" it should not be taken as indicating that he had not given full regard to the matters which go to the fixing of an appropriate non parole period. The respondent submits that the expression used by his Honour needs to be considered in the context of the submissions made to his Honour by counsel for the appellant.

21 Counsel for the appellant said[6]:

"In other words, these submission (sic) are all orientated to persuading your Honour that a lower non parole period than usual ought to be fixed to adequately reflect the three years and two months of demonstrated commitment to rehabilitation that is before this Court."

Such a submission was based primarily upon what was argued to be the accepted successful efforts of the appellate to rid himself of drug addiction in the long period between the commission of the offences and the hearing of the plea, and the fact that he had not re-offended during such time.

22 Counsel for the respondent submits that in reality, in referring to his usual practice, the sentencing judge did little more than deal with the submissions which had been put to him and that the use of the phrase "usual practice" did not indicate that his Honour was not aware of his responsibilities in that regard. It is submitted that his Honour's remarks do not demonstrate error.

Conclusion relating to Ground 1

23 Whilst it is true that sentencing remarks should not be read as if they are the terms of a constructive trust or a will, and whilst appropriate regard needs to be given to the pressure under which trial judges are working when giving reasons for sentence, the words which were used by his Honour are clear and unambiguous. True it is that his Honour is a most experienced sentencing judge and it may well be that he intended to say that it was not unusual for there to be a non parole period fixed at a level of approximately two thirds of a head sentence. However if the plain meaning of the words do reflect his Honour's approach then it is apparent that he fell into sentencing error in using as a benchmark his "usual practice".

24 It is apparent from a consideration of the above authorities that although there is a range into which many cases fall for the fixing of a non parole period, it is not by reason of any standard practice. Rather, it is after consideration of all of the relevant factors which may vary from case to case. In such circumstances the use of the term "my usual practice" does not appear to me to be merely a semantic infelicity but an incorrect statement of principle. In such circumstances the sentencing discretion is reopened and it falls to this Court to re-sentence the appellant.

25 It should be observed that Ground 2 of the appeal is that the learned sentencing judge erred in failing to place sufficient weight on the prospects of the appellant's rehabilitation. Although if my conclusion above is correct, this ground no longer falls to be considered on this appeal, the issue of rehabilitation was a matter which it was submitted by the appellant to his Honour to be a significant sentencing factor.

26 The offences with which his Honour was concerned took place between 4 October and 20 November 2002. The count of trafficking in a commercial quantity of methylamphetamine involved 2.3 kilograms of the mixed drug; 1.25 kilograms being the commercial quantity which was applicable. The maximum term of imprisonment for that count is 25 years.

27 As the sentencing judge observed "although the period of Count 1 trafficking is relatively short, the extent of the trafficking activity was frenetic and all revolved around (the appellant)". After a careful analysis of the evidence before him, his Honour found as a fact that the value of the benefit the appellant derived in relation to Count 1 was $159,678. The circumstances surrounding the offence the subject of Count 1, were a serious example of a serious offence.

28 In the course of the plea before the sentencing judge, relatives and others who knew the appellant gave evidence. A number of medical and psychological reports relating to the issue of rehabilitation were tendered before the sentencing judge.

29 In summary the material put before the Court was that although the appellant had been a heroin user from approximately 1992, it was not until he suffered serious injuries in a motor car accident in early 1998 that he became addicted to heroin. Between 1999 and 2000 he decided to undergo rapid detoxification which failed. At the time of the commission of the offences the appellant was actively seeking treatment by means of a naltraxone implant which was put in place on 11 October 2002. After his arrest on 20 November 2002 he was bailed on 24 February 2003. However, by reason of a positive urine test his bail was revoked on 17 April 2003. The appellant was re-bailed on 27 June 2003 on condition that he undertake a residential rehabilitation program at Raymond Hayden Clinic. Unfortunately, whilst attending that clinic in July 2003 he was a passenger in a motor car involved in an accident whereby the driver was killed and he, the appellant, suffered further serious injuries. The evidence before the Court was that thereafter the appellant had not used illicit substances.

30 In his comprehensive reasons for sentence his Honour took into account the fact that he was making a pecuniary penalty order on sentence as well as the facts relevant to the appellant's age and background. He observed that the appellant had been engaged in full time employment in a family business until 1998 when he had had a motor car accident in New South Wales and had sustained serious injuries. He noted that although he had used heroin periodically prior to the accident the appellant thereafter found that heroin helped to relieve the pain associated with his injuries and that thereafter he became involved in heavy heroin use. He referred to the attempt of the appellant to detoxify in 1999-2000. He observed that early in 2001 the appellant commenced using amphetamines to help with his reduction in the use of heroin but instead he developed a severe amphetamine addiction. His Honour remarked upon the fact that it was asserted that in the period leading up to October 2002 the appellant's heroin use was "rampant". He accepted that at the time of the trafficking offence, the subject of Count 1, the appellant was addicted to both heroin and amphetamine. However, taking into account the scale of the trafficking by the appellant, he concluded that his addiction had little bearing upon his moral culpability.

31 It should be observed that by reason of the appellant's challenge to the prosecution contention that many of the transactions of trafficking on Count 1 were in quantities of one ounce of amphetamine rather than one gram thereof, his Honour carefully analysed the evidence relating to the precise nature of many of the transactions. It is apparent from that evidence that the trafficking by the appellant was conducted at a high level of culpability, both in the number and nature of transactions, and in the fact that the appellant was a central figure in distributing the drug to others.

32 Mr Holdenson in his submissions this morning referred to his Honour's consideration of the issues relevant to rehabilitation, but submits that notwithstanding the fact that such issues were referred to in his Honour's sentencing remarks, insufficient weight was taken of those matters in handing down the final sentence.

33 In my opinion it is clear that particular attention was paid by his Honour to the possibility of the appellant's rehabilitation. He observed that the appellant had had a close family and that that family would be supportive of the appellant whilst he was in custody. He referred to testimonials which had been provided to him and which spoke positively about efforts of the appellant to get his "life back together". He noted that the strong family support of the appellant was a "positive indicator for rehabilitation" although he noted that the appellant had also had strong family support at the time of the commission of the offences. He paid careful attention to the pleas of guilt and noted the entitlement of the appellant to a reduction in the sentence which would otherwise have been imposed. He gave careful and appropriate consideration to the issues of parity.

34 Each of these matters to which the learned sentencing judge referred is relevant to our consideration of the appropriate sentence.

35 In my opinion, his Honour's cumulation upon Count 1 of three months of the sentence imposed on Count 2 which related to a significant sum exceeding $84,000 which was laundered and of three months on the sentence imposed on Count 3 being a count of trafficking in heroin on at least two occasions and involving one and a half ounces of heroin, was both reasonable and modest in all the circumstances.

36 Notwithstanding all that might be said in mitigation in this matter, general deterrence in particular is an issue of importance. As I have said the maximum

penalty for trafficking in a commercial quantity of amphetamine is imprisonment for 25 years. The quantity trafficked by the appellant was at the upper limit of the range of 1.5 kilograms to 2.5 kilograms, a commercial quantity as defined by the Drugs, Poisons and Controlled Substances Act.

37 Taking into account that matter and the number of actual transactions established by the evidence, and notwithstanding the mitigatory evidence put before the Court, a head sentence of six years' imprisonment for Count 1 strikes me as an entirely appropriate sentence which balances fairly the requirements of general and specific deterrence with the particular personal circumstances of the appellant.

38 I do not understand Mr Holdenson to argue otherwise in relation to the head sentence, but he contends that the non parole period inadequately reflects the matters put before the sentencing judge. Likewise, I consider that the sentences imposed previously on Counts 2, 3 and 4 are appropriate in all of the circumstances. In my opinion a cumulation upon Count 1 of three months of the sentence imposed on Count 2, which related to a significant sum exceeding $84,000 which was laundered, and of three months on the sentence imposed on Count 3, being a count of trafficking in heroin on at least two occasions and involving one and a half ounces of heroin, is both reasonable and modest in all the circumstances.

39 Notwithstanding the fact that there is the evidence of rehabilitation from drug abuse by the appellant during the period between arrest and sentence and that there are indeed reasonable prospects for his rehabilitation, I do not consider that an appropriate non parole period is other than that fixed by the sentencing judge. I conclude that the sentence should be re-imposed in accordance with the sentence imposed originally by his Honour.

VINCENT JA:

40 I agree.

REDLICH JA:

41 I also agree.

VINCENT JA:

42 The orders of the court are that the appeal is allowed.

The sentences imposed in the court below are quashed and re-imposed, that is:

On Count 1 - six years' imprisonment;

On Count 2 - two years and six months' imprisonment;

On Count 3 - six months' imprisonment;

On Count 4 - one months' imprisonment.

The Court directs that three months of the sentence imposed on each of Counts 2 and 3 be served cumulatively upon each other and upon the sentence imposed on Count 1, making a total effective sentence of six years and six months' imprisonment, in respect of which the court fixes a non parole period of four years and four months.

It is declared that the period of 568 days is to be reckoned as already served under the sentence hereby imposed and it is ordered that there be noted in the records of the court the fact that this declaration was made and its details.

43 The court otherwise confirms the orders made pursuant to the Confiscation Act 1997 and s.464ZF(2) of the Crimes Act 1958 on 20 January 2006.

[1] (1981-3) 7 A. Crim. R. 146 at 154-155.

[2] Unreported 20 February 1996.

[3] (1998) 7 VR at 693.

[4] At 697-698.

[5] [2000] VSCA 108; (2000) 112 A. Crim. R. 588 at 597.

[6] T 237.