R v Arnautovic [2001] VSCA 34

R v Arnautovic [2001] VSCA 34 - VSCA 2001 case summary — Zoe

The judge who passed the sentence of 12 years now complained of took the view that he was sentencing a "serious offender" for a "relevant offence" within the meaning of Part 2A of the Sentencing Act 1991, dealing with "serious offenders". This was on the basis that the applicant was to be characterised as a "serious drug offender", that being one of the categories of "serious offender" established by s.6B(3) of the Act. The result of the definitions of "drug offence" and "serious drug offender" in s.6B(1) and (2) is that a "serious drug offender" includes a person who has been sentenced to a term of imprisonment for trafficking in heroin, but only if the trafficking was in a commercial quantity. None of the three prior trafficking convictions of the applicant related to a commercial quantity, and it was, rightly, not suggested by the Crown to the judge that any of those prior convictions was a conviction of a drug offence for the purposes of s.6B. The contention put by the Crown to the judge, as part of a written submission, was that the conviction which the judge was himself recording, being a conviction of trafficking in a commercial quantity, was a conviction of a "drug offence" - so much is plainly correct - and would, once a sentence of imprisonment was passed for the offence, make the applicant a "serious drug offender" and hence a "serious offender". So much is also plainly correct. Attention was then drawn by the Crown to s.6C(1)(a), which requires the court to have regard to a conviction for a "relevant offence" recorded in the current trial or hearing. Then it was submitted that, since s.71(2) of the Drugs, Poisons and Controlled Substances Act 1981 made a sentence of imprisonment mandatory for trafficking in a commercial quantity of a drug of dependence, the applicant "accordingly ... falls to be sentenced as a 'serious drug offender' ". It is at this last point, however, that the argument, which seems to have been accepted by the judge, breaks down. I say that the argument seems to have been accepted by the judge because his Honour seems to have relied in the end not on the prior convictions but on the conviction which he himself was about to record.

[5]

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.

[12]

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.

At a glance

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Before

Source

Judgment (33 paragraphs)

Parties

Cases Cited (1)