R v Arnautovic [2001] VSCA 34

21. The Crown, having led the judge into error, has now, in the person of Mr Coghlan - by no means for the first time if I may say so, having regard to Mr Coghlan's invariably very fair and helpful submissions - invited us to correct it. The Crown concedes that a material error has been made, vitiating the judge's exercise of the sentencing discretion, and that accordingly we must consider for ourselves what sentence is appropriate. Mr Coghlan goes on to submit, however, that we should dismiss the application on the footing that we are not of opinion that a different sentence should have been passed.

24. The first of the substituted grounds of appeal is not sufficient to raise the point that the judge wrongly treated the applicant as a "serious offender", but we have allowed the point to be argued without any amendment to the grounds. It has not been possible to give the judge the opportunity of reporting to us on this point, but I do not think that we should for this reason defer disposing of the application. For it is clear that his Honour did err in the respect suggested and that the error was a material one so as to vitiate his exercise of discretion, with the result that the other grounds of appeal need not be considered as such, although some of the questions raised by them will still have to be considered by us in asking ourselves whether a different sentence should have been passed. The materiality of the error is made clear by the fact that the judge, regarding himself as empowered to impose a sentence greater than that which was proportionate to the objective gravity of the offence, said that he would do so, and also by the fact of his reference to his being required to regard the protection of the community as the principal sentencing purpose. The judge made it plain that he intended to sentence the applicant as a "serious offender", and counsel then appearing for the applicant never suggested to him that to do so would be wrong. But the submission made by the Crown, and evidently accepted by the judge, was unsound. As the Crown now points out, it runs counter to the well established view that before a person can be dealt with as a "serious sexual offender", where the statute requires conviction of not one but two or more offences, the offender must have already sustained at least two convictions of the necessary kind. If there are no convictions other than those recorded by the sentencing judge, then it will only be when two convictions of the necessary kind followed by imprisonment have been recorded by the judge that the offender will fall to be dealt with as a "serious sexual offender" on the next appropriate count. If one appropriate conviction has already been sustained before the offender comes before the judge, it will only be after the judge has recorded one appropriate conviction that the offender will fall to be dealt with as a "serious sexual offender" on the next appropriate count. It is rather like a game of cards: a pair must be found and, once the pair is found, then, if the Crown can make up a three, the statutory consequences ensue. The pair may be found in convictions sustained before the sentencing judge, or in convictions sustained elsewhere, or by combining two convictions, one plucked from each of those places. See Geisler[1]; Cowburn[2]; Crofts[3]; Robertson[4]; Higham[5]; Lomax[6]. The rules of the game are the same with serious drug offenders save that, by reason of a difference in the definition of the category of offender, the Crown needs to find only a single conviction, not a pair, before it can have the offender specially regarded for the purposes of any other appropriate count.

27. Part 2A proceeds on the basis that the character or category of a person, ("serious offender" vel non?) is to be determined before he or she is sentenced for a "relevant offence", in other words, that the character or category of "serious offender" cannot be established in relation to a person by having regard to the sentence about to be passed. It makes no difference that a sentence of imprisonment may in rare cases, of which the present is one, be mandatory. Section 6C(1) requires the court to consider whether an offender being sentenced "is" a "serious offender", not whether he or she will become one in consequence of the sentence about to be passed. Similarly, s.6D speaks of the court's "sentencing a serious offender for a relevant offence" showing that characterisation or categorisation is to precede sentence. The same may be said of s.6E, with its reference to "every term of imprisonment imposed by a court on a serious offender for a relevant offence". Section 6F is perhaps even stronger; sub-s.(1) shows that the person being sentenced must already be a "serious offender".

30. I turn now to the circumstances of the offending in the present case. The trafficking was, as I have said, between 11 September and 18 November 1997. The total quantity trafficked could not be established with accuracy by the judge. Unless I indicate otherwise, in mentioning weights, I am speaking in terms of heroin, not substance. The actual amount recovered by way of quantities sold, recovered or taken as samples totalled about 700 grams. The judge found that on a conservative estimate the applicant was shown to have trafficked in at least 1,000 grams. In street value, the judge found, the heroin trafficked was worth, as a minimum, a little less than $1 million. A commercial quantity of heroin is 250 grams of that drug, or 500 grams of a substance containing heroin.

33. I do not think it necessary to state in any detail the effect of the summary of the applicant's proved activities with which we have been provided. He had been the subject of a considerable police investigation, which included police surveillance, covert photography and videotaping, undercover police officers posing as drug purchasers, and the covert recording of telephone calls. The applicant kept a stock of heroin hidden in different places beneath rocks and broken roofing tiles in a paddock in Altona. He also kept a supply hidden in the grooves of the corrugated iron wall of a shed at a baseball centre in that suburb. He was a frequent visitor to both sites. The heroin found ranged in purity from 47% to 90%, but most of it was between 75% and 90%. Conversations had by the applicant and covertly recorded show him discussing quantities in ounces and large sums of money and offering to sell ounces. On 12 November a co-offender named Darren Michael Jackson agreed to supply an undercover police officer, "Jack Jones", with twelve ounces of heroin, three ounces to be supplied on 13 November and the remaining nine ounces on 18 November. After meeting the applicant on 12 November, Jackson told Jones he would supply twelve ounces at $7,000 an ounce. On 13 November the applicant supplied Jackson with three ounces of heroin. Jackson met Jones and told him the price was $7,500, not $7,000, an ounce. Since Jones had brought with him only $21,000 in cash, he bought two ounces for $15,000. The applicant was nearby when that transaction was carried out. On 18 November Jackson sold the further nine ounces of heroin to Jones for $67,500. The applicant had supplied this heroin to Jackson and was close at hand at the time of this transaction also.

36. Jackson and the applicant were arrested shortly after the nine-ounce sale, near the baseball centre shed. A search of the shed wall revealed - and this is of some significance, I think - a further nine ounces of heroin hidden inside the outer wall. A search of the applicant's van, which he used on these occasions, revealed a secret compartment under it containing another three ounces of heroin. On the execution of a search warrant at the home of the applicant's mother in St Albans the police found scales, plastic bags, Glucodin and other paraphernalia of the trafficker. Similar paraphernalia were found on the execution of a search warrant at premises occupied by the applicant in Ocean Grove. Interviewed by police, he gave false accounts and denied that he was a drug trafficker. He gave evidence on his trial, denying that he was a trafficker. He said that he was an occasional drug user, supplied by Jackson. He told what can only be regarded as a cock-and-bull story. Really, his position was indefensible.

39. He was 45 years of age at the time of the offence. Imprisonment was mandatory for the offence of trafficking in a commercial quantity of heroin, and the maximum penalty was 25 years' imprisonment.

42. Jackson was 32 at the time of his offences. He was charged with trafficking in a commercial quantity of heroin between 22 October and 18 November 1997, with handling eight television sets or similar items, and with possession of eight ounces of cannabis. He received sentences of imprisonment: four years eight months, four months and three months respectively, all concurrent, with a non-parole period of two years eight months. These sentences were passed on 8 October 1998 by a different judge to the judge by whom the applicant was, after numerous adjournments, tried and sentenced.

45. Jackson had pleaded guilty at the committal stage. I deal with his position at some length because of what is said about parity in the outline of submissions. He had trafficked 252.7 grams of heroin and so had only just reached a commercial quantity. The case against him was that on 22 October 1997 he sold an ounce of heroin, of a high degree of purity, to the undercover police officer Jones for $7,500. Next, there was the arrangement between Jackson and Jones made on 12 November for the sale of three ounces of heroin, followed by the actual sale on 13 November of only two ounces because Jones had brought only $21,000 in cash with him. This was, of course, part of the trafficking alleged against the applicant. The three ounces agreed to be supplied on 12 November, of which two ounces was actually supplied on 13 November, was part of a larger quantity, twelve ounces, which Jackson had, on 12 November, been asked to supply. The other transaction as regards Jackson was the supply of the further nine ounces on 18 November in return for $67,500, which had been followed by the arrest of both men. On his arrest, Jackson was found in possession of a loaded pistol. The heroin in which he trafficked was of a high degree of purity. The agreed statement of facts placed before the judge who sentenced Jackson described him as acting on behalf of the applicant and in that sense as not being the principal. It was said in that agreed statement that, nevertheless, he was a participant at a mid-level in the trafficking of significant amounts of heroin of the highest quality. According to the agreed statement, the availability of large quantities of very high grade heroin was shown not only by the actual transactions but also by a discussion on 18 November between Jackson and Jones of the availability, for the sum of $180,000, of two twelve-and-a-half-ounce blocks of heroin, stamped with two red lions. Jackson told Jones he would try to arrange this sale by speaking to his supplier.

48. In sentencing Jackson the judge had before him a number of other agreed facts which are important for present purposes. They included the fact that Jackson was a user of heroin at the relevant time, that as a result of that drug use he came into contact with a man named John Rigon, that as a result of his drug use he ended up owing money, that he was subjected to threats to induce him to repay that money, that he was introduced by Rigon to the police undercover operative as a purchaser of drugs, that he did not receive the bulk of the moneys paid by the undercover operative and that instead he was receiving a small quantity of cash and some heroin for personal use and the reduction of a debt. That is the agreed statement of facts, in part. Jackson was a married man with children. He had early convictions for street offences, which the judge rightly regarded as of no significance. He had no history of drug offending. Character evidence was put before the judge. The judge found that Jackson's early plea of guilty was accompanied by genuine remorse and regarded these as constituting a substantial matter in his favour. A considerable number of reports relating to Jackson's medical and psychological condition were put in evidence. The judge found that his very painful back condition, as a result of two industrial accidents, would persist indefinitely and would make imprisonment more onerous for him. As to psychological condition, the judge accepted that Jackson had suffered from severe depression and anxiety, had made three suicide attempts and was still receiving psychiatric treatment. This, too, the judge said would make imprisonment more burdensome for him. The judge was favourably impressed by Jackson's attempts to combat his drug addiction since his arrest and thought that it was most unlikely that Jackson would become involved with drugs again.

51. Mr Tehan has emphasised parity, but rather in his written outline than in his oral submission. As to parity I think the Crown is right when it submits that, quite apart from the by no means insignificant differences between the criminal acts of the two offenders, their personal circumstances are so different that it is not appropriate to compare the sentence for trafficking received by one man with that received by the other. For example, the applicant, instead of pleading guilty at the first opportunity, chose to contest his guilt. He had, the judge thought, done nothing to display remorse. He was a mere casual user of heroin, who had trafficked, the judge found, simply for greed and self-enrichment. He had prior convictions which certainly could not be regarded as insignificant, even putting to one side the drug convictions. He had seven convictions for drug offences, including those which had brought the effective sentence of nine years with a minimum of seven in 1990. A prison sentence had been imposed upon him for a further trafficking conviction in 1997. When that had been committed does not, I think, appear. The applicant's parole period had expired, it was estimated, in about December 1996. The second trafficking offence for which the applicant was dealt with in 1990 was committed while he was on bail. The heroin the subject of that offence, indeed the offences dealt with in 1990, was high grade, especially by the standards of the time of those offences. The judge in 1990 found that the applicant was not a heroin user at the relevant times.

54. I turn now to the present sentencing judge's reasons. His Honour took a poor view of the applicant's prospects of rehabilitation. It is clear from his Honour's reasons for sentence that, if he had not mistakenly believed that the applicant fell to be sentenced as a "serious offender", he would have passed a lesser

sentence upon him, and that he viewed the sentence he actually passed as disproportionate to the gravity of the offence, considered in the light of its objective circumstances. This must make an appellate court pause and give very serious consideration to the matter before reaching the conclusion that it is not satisfied that a different sentence should have been passed, and I have given the matter earnest consideration. After that consideration I am, however, of opinion that, having regard to the circumstances of the present offence, including the fact that at least four times a commercial quantity was trafficked, and the circumstances of the present offender, including his previous convictions for drug offences, it should not be said that a different sentence to that passed ought to have been passed, and I would in substance dismiss the application. I would allow it only for the purpose of setting aside the erroneous direction given by the judge that it be recorded that the prisoner was sentenced as a "serious offender" within the meaning of the Sentencing Act.

60. I have the misfortune to disagree in the ultimate disposition of this application with that which has been foreshadowed by his Honour Brooking, J.A. notwithstanding that many of the things that Brooking, J.A. has said about the applicant's personal circumstances I entirely agree with.

63. It is accepted on this application that his Honour has made an error in treating the applicant as a serious offender and as a consequence has sentenced the applicant to a term beyond that which he regarded as proportionate to the gravity of the offence for which he was sentencing the applicant. The fact that such a sentencing error has been made clearly re-opens the sentencing discretion and enables this Court to pass such other sentence warranted in law if it thinks that a different sentence should have been passed. Mr Tehan, who appeared on this

application for the applicant, has referred us to statements previously made by this Court suggesting that the error made in this case is a fundamental one which should, usually, drive the appellate court to the view that a different sentence ought to have been passed, and that as a matter of fairness. I must say that I am attracted to that submission, largely because, in this case, the experienced County Court judge had himself believed that the sentence that he was imposing was disproportionate to the gravity of the offence which fell to be punished. Furthermore, his Honour was minded to impose a sentence which was very much disparate to the sentence which had been imposed on a co-offender, whom the judge described as of "almost equal culpability", because of, as the judge said, "importantly, the applicability of the serious offender legislation". The co-offender, of course, had many factors personal to him which could be brought into account in his favour on the sentencing process that this applicant could not call into account in his favour in the matter before the learned judge, but I cannot lose sight of the view that his Honour, in imposing sentence upon this applicant, regarded the co-offender's culpability as similar to that of the applicant and was minded to differentiate the sentence which he was imposing upon the applicant because he took the view, wrongly as it now appears, that the applicant was a serious drug offender.

67. Whilst I agree with Brooking, J.A. that very little can be said to mitigate the offence of which the applicant was convicted and to which he had pleaded not guilty, I have come to the view that the application should be allowed, because in the circumstances I am of the opinion that the sentence imposed is beyond that which ought to have been passed, particularly when it is compared with the sentence imposed upon the co-offender. I would, myself, quash the sentence and in lieu substitute a sentence of 10 years' imprisonment, and I would order that a non-parole period of 8 years should be served before the applicant becomes eligible for parole. In any event, I agree with Brooking, J.A. that the direction made by the

judge that the applicant is to be sentenced as a serious drug offender ought to be quashed.

73. I have found this case a particularly difficult one. On the one hand, the Crown accepts that the sentencing judge made a fundamental error in treating the applicant as a serious drug offender. It was on this basis that his Honour imposed a sentence which was disproportionate to what his Honour thought was the gravity of the offence. Furthermore, his Honour treated the offender as not more culpable than a co-offender, Jackson, who had been sentenced to a much lower term of imprisonment - four years and eight months, with a non-parole period fixed of two years and eight months. On the other hand, the applicant committed an offence very serious in itself, for which the maximum available penalty was 25 years' imprisonment. He had a long history of prior convictions dating back to 1980, including three convictions for trafficking - two in 1990 and a third in March 1997. Those in 1990 were serious enough to warrant a total effective sentence of nine years' imprisonment with a non-parole period fixed of seven years. It was forcefully argued by Mr Tehan that in these circumstances fairness, in effect, compelled this Court to make an appropriate reduction in the sentence imposed below. There was, as the sentencing judge said, really very little put before the court by way of mitigating factors. There was, his Honour said, absolutely nothing before him to suggest that the applicant had any remorse at all for his actions. There was little to suggest, his Honour said, that there was any great likelihood of eventual rehabilitation. The applicant chose to stand his trial, thus not becoming entitled to the discount for a plea of guilty to which Jackson, who had no prior convictions for trafficking, was entitled.

76. I have no doubt that the sentence imposed by the judge, absent sentencing error, was within the appropriate range. The only question is whether this Court should now impose a different sentence, either because it is in the Court's view the appropriate sentence in all the circumstances or on the basis that the judge's error should lead us, in fairness, to make some reduction to the sentence imposed. I agree with the submission made by Mr Coghlan for the Crown that there were such substantial differences between the personal matters of the co-accused Jackson as against this applicant that no real question of parity arises. There was, as the judge said, very little to be said in mitigation for the applicant's actions. There was no evidence of remorse. The offending was very serious and there were significant prior convictions for trafficking in heroin.

79. In my view, the sentence of 12 years' imprisonment, with a non-parole period of 9 years fixed, is the appropriate sentence in all the circumstances. Notwithstanding the force of the matters which have led the President to a different view, I do not think that any consideration of fairness arising out of the sentencing judge having wrongly characterised the applicant as a serious drug offender, or of his Honour having taken the view that a lesser penalty was appropriate to the gravity of the offence, should now lead this Court to impose a penalty less than the Court would, itself, otherwise find to be appropriate.

82. Accordingly, I would dismiss the application, save to the extent that Brooking, J.A. has indicated.

86. The formal order of the Court will be as follows: Save for correcting the record of the Court by deleting from that record the sentencing judge's direction that the applicant fell to be sentenced as a serious drug offender, the application for

leave to appeal against sentence is otherwise dismissed and the sentence imposed by his Honour below, by which he ordered that the applicant serve 12 years' imprisonment with a non-parole period of 9 years, is confirmed.

[1] Court of Criminal Appeal, 30 September 1994, unreported. Vic CCA 157/94.

[2] (1994) 74 A.Crim.R. 385.

[3] Unreported, Court of Criminal Appeal, 8 May 1995. Vic CCA 19/95.

[4] (1995) 82 A.Crim.R. 292 at 295.

[5] [1997] 1 V.R. 280 at 281.

[6] [1998] 1 V.R. 551 at 553.