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[2009] VSCA 120
appellant. Appeal allowed; the original sentences were set aside and Bassie was resentenced to three years and six months on count 1 and 12 months on count 2, with six months cumulative, for a total effective...
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Bassie and Jones had jointly trafficked heroin, but Jones’s sentence was reduced on appeal. Because that reduction narrowed the difference between their sentences, the Court of Appeal reconsidered Bassie’s sentence under the parity principle. It also reduced the sentence for Bassie’s separate methylamphetamine offence. The Court replaced the original five-year total effective sentence with four years’ imprisonment and fixed a new non-parole period of two years and six months.
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In R v Bassie [2009] VSCA 120, the Victorian Court of Appeal considered an appeal against sentences imposed after Troy Bassie pleaded guilty to trafficking heroin and methylamphetamine. The reasons were delivered jointly by Vincent, Nettle and Neave JJA. The Court had allowed the appeal on 12 May 2009 and gave its reasons on 5 June 2009 ([1]).
The heroin offending involved Bassie and Barry Jones acting jointly to obtain 500 grams of heroin from Theodosis Koumis over 30 transactions during a period of five and a half weeks. They paid more than $125,000 in total. Jones was responsible for two-thirds of the purchases and Bassie for the remainder ([7]). Most of the heroin was on-sold to customers who combined contributions to enable larger purchases at lower prices ([8]). Bassie’s second count concerned a separate purchase of 28 grams of methylamphetamine ([9]).
The sentencing judge imposed four years’ imprisonment on the heroin count and two years on the methylamphetamine count. One year of the second sentence was cumulative, producing a total effective sentence of five years. The non-parole period was three years and six months ([3]).
Jones had initially received five years’ imprisonment, with a four-year non-parole period. On his appeal, the Court reduced that to four years and six months, with a three-year non-parole period ([10]). That change prompted reconsideration of Bassie’s sentence. The Crown accepted that the change raised a parity issue and that the sentence for Bassie’s methylamphetamine offence was, in the circumstances, at least heavy and arguably excessive ([4], [11]).
The Court allowed Bassie’s appeal. It set aside the original sentences and imposed three years and six months on the heroin count and 12 months on the methylamphetamine count, with six months of the latter sentence cumulative. The result was a total effective sentence of four years, with a non-parole period of two years and six months. The Court also declared that 1,073 days had already been served under the sentence ([14]).
The central reason was parity between co-offenders. The Court explained that Jones’s reduced sentence had narrowed the sentencing distinction previously made between him and Bassie for their joint heroin offending. It described Bassie’s resulting sense of unfairness as legitimate and noted that the Crown acknowledged the issue ([11]).
Parity did not mean that the two men had identical offending or backgrounds. The Court expressly identified differences: Jones was responsible for a larger share of the heroin purchases, while Bassie had also trafficked a small amount of methylamphetamine ([7], [9], [12]). The Court also recognised differences in their personal backgrounds and situations. But it assessed those differences as not requiring significant discrimination between them for sentencing purposes ([12]).
The Court’s assessment of their circumstances was specific. Bassie and Jones were of roughly similar age, each had a long history of drug abuse, and each had appeared in court on a number of occasions for dishonesty offences. Neither had convictions for serious drug offending. The Court identified the main relevant differences as their respective levels of heroin offending and Bassie’s separate involvement in the methylamphetamine count ([12]).
On that combination of circumstances, the Court stated that proper application of the parity principle “necessitated reopening of the sentencing discretion” ([13]). This was the express basis for reconsidering the sentence. The judgment does not set out a broader test in abstract terms. Its reasoning is tied to the changed sentence for the co-offender, the joint nature of the heroin offending, and the Court’s assessment of the differences between the offenders.
The separate methylamphetamine sentence was also reconsidered. The Crown accepted that a two-year term, with 12 months cumulative, was at least heavy and arguably excessive in the circumstances ([11]). The judgment does not separately elaborate on a general sentencing method for this offence. The order reducing the term to 12 months, with six months cumulative, records the outcome of the Court’s reassessment ([14]).
The judgment’s principal legal contribution is its application of the parity principle to a changed co-offender sentence. Before Bassie’s appeal was determined, Jones had already succeeded in reducing his sentence. The Court treated that appellate reduction as significant because it altered the practical comparison between the sentences imposed on the two participants in the heroin activity ([10]–[11]).
The judgment does not claim to create a new sentencing doctrine or announce a general rule that every reduction in a co-offender’s sentence reopens another offender’s sentence. Rather, it records the Court’s conclusion that, “in the circumstances”, parity required reopening the sentencing discretion ([13]). The qualification matters: the reasoning depends on the relationship between these offenders, their joint heroin offending, their personal circumstances and the relative seriousness of their involvement.
The case refers to R v Koumis and Ors [2008] VSCA 84; (2008) 18 VR 434. The Court notes that the Crown conceded that, in light of that judgment, a question concerning the treatment of co-offenders had arisen ([4]). It also refers to the reasons in Koumis when recounting Jones’s appeal, but expressly says it is unnecessary to repeat the considerations underlying that decision ([10]). Accordingly, Bassie’s reasons do not provide a detailed account of the doctrine or reasoning in Koumis.
The “after” position shown by Bassie is narrow and case-specific: the Court reopened Bassie’s sentencing discretion and substituted lower sentences after finding that the change to Jones’s sentence had materially narrowed the distinction between them. The reasons do not describe later doctrinal developments or state that the outcome automatically follows in other cases.
At [11], the Court says the practical effect of Jones’s sentence reduction was “to reduce the distinction” between the two men on the heroin count. In plain English, the comparison between their sentences had changed. The original sentencing distinction could no longer be considered in isolation from the later reduction of Jones’s sentence.
At [12], the Court identifies both similarities and differences. The offenders were roughly similar in age, had long histories of drug abuse, and had prior court appearances for dishonesty. Their main differences were how much heroin each was involved in purchasing and Bassie’s separate methylamphetamine offending. In plain English, the Court considered whether those differences justified treating Bassie substantially differently, and concluded that they did not require significant discrimination.
At [13], the Court states that parity “necessitated reopening of the sentencing discretion”. In plain English, the Court considered it necessary to reconsider Bassie’s sentence because the altered sentence of his co-offender had made the existing sentencing comparison unfair in the circumstances.
At [14], the Court sets out the replacement sentences and total effective sentence. The practical result was a reduction from the original five-year total effective sentence to four years, with a non-parole period reduced from three years and six months to two years and six months.
The features expressly present in Bassie were:
The decision should not be read as saying that any difference between co-offenders’ sentences is necessarily unjustified, or that a co-offender’s successful appeal automatically changes another person’s sentence. The Court framed its conclusion as one reached “in the circumstances” ([13]). A comparison with Bassie would therefore need to account for the relationship between the offending, the timing and effect of the co-offender’s sentence change, and the relevant similarities and differences between the offenders. The judgment itself does not specify a comprehensive checklist for future cases.
The separate sentence for methylamphetamine is an additional feature, but the Court’s reasons attribute reopening principally to parity in the heroin offending. The Crown’s concession about that second sentence supported its reconsideration, without the judgment setting out a general rule about sentences for separate drug counts ([11]).
The supplied judgment identifies R v Koumis and Ors [2008] VSCA 84; (2008) 18 VR 434 as an earlier authority. It does not identify or discuss any later decisions applying, distinguishing, or limiting Bassie. On the material provided, it is therefore not possible to describe how later courts have treated this decision.
The judgment’s own description of Koumis is limited. It says the Crown conceded that, in light of that case, a co-offender treatment issue required consideration ([4]). It then notes that Jones’s sentence was reduced in Koumis, but declines to recount the reasoning underlying that reduction ([10]). No additional account of Koumis should be inferred from Bassie’s brief references.
The reasons do not specify a general threshold for when a change to a co-offender’s sentence is sufficiently material to justify reopening another sentence. The Court describes the practical effect in this case, namely that the sentencing distinction between Jones and Bassie was reduced ([11]), and concludes that parity required reconsideration on these facts ([13]). It does not formulate a universal test.
The judgment also does not explain in detail how the Court calculated each replacement term or the precise balance between the heroin and methylamphetamine offending. It records the Crown’s concession that the latter sentence was heavy and arguably excessive, then states the substituted sentences ([11], [14]). It does not provide a general method for calculating cumulation in comparable cases.
Finally, the reasons do not address how parity should be assessed where co-offenders have substantially different personal circumstances, markedly different roles, or different procedural histories. The Court states that Bassie and Jones had differences but that these did not call for significant discrimination in this case ([12]). It leaves the treatment of more divergent circumstances open.
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R v Bassie (County Court of Victoria, Judge Duckett, 5 June 2007)
CRIMINAL LAW - Sentence - Trafficking heroin - Trafficking methylamphetamine - Parity - R v Koumis and Ors [2008] VSCA 84; (2008) 18 VR 434 - Appeal allowed - Appellant re-sentenced.
1 The Court, on 12 May 2009, allowed the appeal brought by the appellant against sentences imposed upon him in the County Court on 5 June 2007. We indicated at the time that a statement of our reasons for so doing would be delivered at a later date.
2 The appellant pleaded guilty to one count of trafficking heroin (count 1) and one of trafficking methylamphetamine (count 2) admitting also 58 prior convictions arising from 15 court appearances between January 1994 and March 2005. These other appearances related to offences of dishonesty and violence for the most part, but they included one for a drug offence, that is, using a drug of dependence (heroin) in 2004 for which he was sentenced to pay a fine of $100.
3 After hearing a plea in mitigation of penalty, the judge imposed upon the appellant -
His Honour directed that one year of the sentence on count 2 be served cumulatively upon that imposed on the other count, thereby creating a total effective sentence of 5 years in respect of which he fixed a non-parole period of 3 years and 6 months.
4 The appellant then sought and was granted leave to appeal. There is no need to set out the grounds upon which he proposed to rely as the Crown appropriately conceded that, in the light of the judgment of the Court in R v Koumis and Ors,[1] a question of treatment of co-offenders has arisen which compels parity re-examination of the sentence in any event. Specifically the re-sentencing of a co-offender Barry Jones by this Court, to a total effective sentence of four years and six months with a non-parole period of three years necessitated reconsideration of the sentence imposed upon the appellant.
5 In January 2006, police commenced an investigation into heroin and amphetamine trafficking in the western suburbs of Melbourne by a man named Theodosis Koumis. As a result of the use of telephone intercepts, covert surveillance and the execution of search warrants, a number of persons, including the appellant and Jones, were charged with drug offences.
6 Jones and the appellant, were in due course presented together and both entered pleas of guilty - Jones to one count of trafficking heroin and the appellant to the two counts already mentioned.
7 With respect to the heroin trafficking, his Honour sentenced the two men on the basis that they acted jointly to obtain, in 30 separate transactions, a total of 500 grams of this drug from Koumis in the charged period of five and a half weeks. They paid a total of more than $125,000 for it, with two thirds being purchased by Jones and the remainder by the appellant.
8 His Honour found that most of the heroin was on-sold to a number of their respective customers who had combined contributions so that larger purchases could be made with a consequent reduction in price.
9 Count 2 related to a separate purchase by the appellant of 28 grams of methylamphetamine from Koumis.
10 Jones was sentenced by his Honour to five years' imprisonment with a non-parole period of four years for his part in this activity. He appealed and, on 22 May 2008, the Court reduced his sentence to four years and six months' imprisonment with a non-parole period of three years. There is no need to recite the considerations which the Court took into account in doing so. They are to be found in the joint judgment in R v Koumis and Ors.[2]
11 The practical effect of the reduction of his sentence, as far as the appellant was concerned, was to reduce the distinction that the sentencing judge had properly made between them on the heroin count. This understandably gave rise to a legitimate sense of unfairness in the appellant which, as we have indicated, was acknowledged by the Crown. It was also accepted that the sentence of two years' imprisonment for the amphetamine offence, of which 12 months was to be served cumulatively was, in the circumstances at least heavy and arguably excessive.
12 Although there were, of course distinctions that could be made between the personal backgrounds and situations of Jones and the appellant, they were not of a kind or extent that required any significant discrimination to be made between them for sentencing purposes. They were of roughly similar age and each had a long history of drug abuse. Both had appeared before the Courts on a number of occasions for offences of dishonesty and neither had convictions for serious drug offending. The major relevant differences arose from their levels of offending with respect to heroin and the separate involvement of the appellant in trafficking in a small amount of amphetamine.
13 The Court formed the view that the proper application of the principle of parity, in the circumstances, necessitated reopening of the sentencing discretion.
14 Against this background we allowed the appeal and made the following orders:
The appeal is allowed.
The sentences imposed in the court below are set aside and in lieu thereof the appellant is sentenced on count 1 to a term of three-years and six months' imprisonment, and on count 2 to a term of 12 months' imprisonment.
It is directed that six months of the sentence on court 2 be served cumulatively upon that imposed on count 1, making for a total effective sentence of four years' imprisonment, in respect of which the Court fixes a non-parole period of two years and six months.
It is declared that the period of 1,073 days has already been served under the sentence hereby imposed and it is ordered that the fact of that declaration and its details be entered in the records of the Court.
R
Bassie [2009] VSCA 120
(2008) 18 VR 434
Appeal allowed; the original sentences were set aside and Bassie was resentenced to three years and six months on count 1 and 12 months on count 2, with six months cumulative, for a total effective sentence of four years and a non-parole period of two years and six months; the Court declared that 1,073 days had been served and ordered that the declaration and its details be entered in the Court’s records.