R v Berisha, Elmazovski & Rizmani [1999] VSCA 112

Court of Appeal (Vic)|1999-07-23|Before: TADGELL, CHARLES and BUCHANAN, JJ.A.

CRIMINAL LAW - Sentence - Trafficking in commercial quantity (2 pounds) of heroin - Drug addiction - No prior criminality - Reasonable prospects of rehabilitation - Deterrence, protection of community and denunciation - Sentences of 10 years' and 8 years' imprisonment not manifestly excessive - Observations on sentencing practice for trafficking in drugs of addiction.

I invite Charles, J.A. to deliver the first judgment.

Isa Berisha, Vergim Elmazovski and Amet Rizmani were presented at the County Court at Melbourne on 4 November 1998 on a presentment alleging one count of trafficking in a drug of dependence between 29 January 1998 and 8 February 1998 contrary to s.71(1)(a) of the Drugs Poisons and Controlled Substances Act 1981. The quantity alleged was greater than a commercial quantity, and the maximum penalty was 25 years' imprisonment and a penalty of 2,500 penalty units. At the time of the alleged offences, Berisha was aged 41, Elmazovski 27 and Rizmani 43. Berisha pleaded guilty. Elmazovski and Rizmani pleaded not guilty and were both directed to stand trial at the County Court on 15 February 1999.

The trial of Elmazovski and Rizmani commenced on 18 February 1999, both again pleading not guilty. After a trial during which each of them gave evidence in their own defence, on 5 March the jury found them both guilty.

A plea was heard on 9 March during which evidence was called for all three prisoners, and on 11 March the judge sentenced Berisha to eight years' imprisonment, fixing a non-parole period of six years; Elmazovski and Rizmani were both sentenced to ten years' imprisonment, and in each case a non-parole period of seven-and-a-half years was fixed.

Berisha, Elmazovski and Rizmani all now seek leave to appeal against sentence, in each case on the ground that the penalty imposed was manifestly excessive. Berisha also applies on the grounds that the learned judge failed to give appropriate weight to his heroin addiction, his prospects of rehabilitation, his lack of prior convictions and prior good character, and his early plea of guilty as an indication of remorse. Berisha also claims that the sentence imposed on him is disproportionate in that the judge failed properly to distinguish the part he played in the commission of the offence from the part played by the co-offenders, and that his Honour placed too great weight upon specific and general deterrence and on punishment. Berisha also claims that the judge erred in finding as a fact that he had been involved in trafficking on a small scale prior to the commission of the offence for which he was sentenced, and in his assessment of his work history.

The Crown case was that between 29 January and 8 February 1998 Berisha, acting as the agent of Elmazovski and Rizmani, negotiated with one Cafferkey (who was actually a Federal agent of the National Crime Authority) for sale of an amount of heroin in exchange for cash. At first Berisha offered Cafferkey five pounds of heroin at a price of $460,000 but later the offer was for only two pounds of heroin at a price of $180,000. The sale was originally to take place on 6 February, but, after further discussions and negotiations, the date was finalised at 8 February.

On the morning of 8 February Berisha drove his white Nissan van to the home of Rizmani in Noble Park. Elmazovski also drove to Rizmani's home on the same morning in his own blue Commodore. Berisha and Rizmani entered the garage at the home separately and shortly afterwards Berisha left on his own carrying a package to his van. The trio then travelled to a market in Laverton, Berisha in his van and Elmazovski and Rizmani in the Commodore. At the market Berisha got into the Commodore with Elmazovski and Rizmani. Berisha was then dropped off in Hoppers Crossing near to the settled point of sale. After further negotiations, Berisha was arrested in Hoppers Crossing. Elmazovski and Rizmani returned to the market in Laverton where they too were arrested. A package containing 860.9 grams of heroin was later found in the white Nissan van, which was located in the carpark of the market.

Some indication of the value of the heroin involved may be gained from Berisha's admission to police that he paid $200 for half a gram in order to feed his addiction. On this basis, 860 grams would have a value of in the vicinity of $350,000, and five pounds would have a value of approximately $900,000. The street value of the heroin would have been substantially greater.

By its verdict, the jury concluded that Berisha was acting as the agent of Elmazovski and Rizmani in offering the drug for sale. As the judge said in sentencing reasons, the verdict of the jury also indicates that Berisha took delivery of the package of heroin at Rizmani's house while Rizmani and Elmazovski were present and the jury must have rejected the defence of Elmazovski and Rizmani that they knew nothing of any heroin deal and that they had been used and deceived by Berisha.

I shall deal with the claim of all applicants that the sentences are manifestly excessive together, after first reviewing the facts relevant to each applicant and the arguments bearing upon them separately.

It is convenient to take first the case of Elmazovski. During the plea evidence was given for him by Anthony Hitchman, who had been secretary to the Dandenong South Soccer Club and who had known Elmazovski for 12 years. Mr Hitchman said that Elmazovski was a role model for juniors in the club and had become one of the star players. He said that he had been an excellent citizen in all respects and was everything that a young man should be. He said that this offence was completely out of character for Elmazovski. Evidence was also given by Samson Elmazovski, the applicant's brother, that he had employed him as an account executive in his insurance business, that he was exceptionally good in his work and that his position would be available to him upon his release. The case made for Elmazovski was that he came before the court denying the charge, as someone with no prior convictions. He was then 28 years old, having been married at the age of 16 and now having three children. His counsel accepted that he faced a sentence of immediate imprisonment, but asked the judge to take into account that Elmazovski was a young man with a young family who had taken on responsibilities at an early age and who had very good prospects of rehabilitation.

The judge however said that Elmazovski had exhibited no remorse and that he had formed the view that he was a "selfish narcissistic individual who I suspect is still basking in the glow of the adulation he received when playing soccer for the Dandenong South Soccer Club". The judge said he was not the least impressed by the character evidence called and did not place much emphasis on the absence of prior convictions. He found Elmazovski to be an intelligent but unscrupulous young man who had been prepared to commit a most serious crime for pure and simple greed.

In this Court Mr Holdenson on his behalf submitted that it had not been challenged that the applicant had previously conducted himself in a mature and proper manner, had been a role model for young members of the community and in his employment had been trustworthy, honest and reliable. He submitted that the commission of the offence was out of character and that the evidence showed the applicant to be a member of a close and supportive family, who had held a position of responsibility in his brother's business. Accordingly he had good prospects of rehabilitation and the sentence imposed ought not to be so great as to prejudice his prospects of rehabilitation. The submission was that the judge had not found the applicant not to have good prospects of rehabilitation and that factor was a matter which ought to have been given weight in the exercise of the sentencing discretion. Accordingly the sentence imposed was objectively out of all proportion to the applicant's misconduct and beyond the range of penalties open to the judge.

For Rizmani, one Bequir (known as Bill) Gani, the President of the Australian Albanian Community Association, gave evidence. He said that Rizmani had been one of the first to activate the Albanian Community Organisation. His father had suffered a severe stroke and, although not physically incapacitated, was now mentally unstable and had a memory problem. He also said Rizmani's mother now found it difficult to get around, having a bad case of arthritis in her legs. Rizmani's marriage had broken down and his wife now lives away from him, with the children. Rizmani himself has formed a relationship with a woman not of the Albanian community. Mr Gani said that Rizmani's involvement with drugs was definitely not in character and that he had supported his parents and received a carer's pension. Rizmani's counsel maintained before the judge his innocence of the charge, saying that Berisha to all outward appearances had seemed to Rizmani to be a good man. It was submitted that Rizmani had contributed to the community in giving up a lifestyle to look after his parents; and that he lived at his father's house, had no assets to speak of, had worked hard all his life and had no prior convictions. The principal submission was that having regard to his previous history, Rizmani should be regarded as a very good prospect for rehabilitation.

The judge said of Rizmani that he also had exhibited no remorse. Although it had been suggested that the applicant was of low intelligence, the judge said he had formed the view that Rizmani was of average intelligence, a man wise in the ways of the world. He did not give much weight to Rizmani's activity in assisting in the formation of the Albanian Community Association. The judge said -

"You also seem to me to be a man devoid of conscience when it comes to the matter of heroin. Your motive was solely to make money. The stakes were high, you were prepared to run the risk and now you must pay the penalty. I see no compelling reason to differentiate in terms of sentence between you and Elmazovski."

The case made by Mr Van de Wiel in this Court was that the sentence was an extremely high one for an offence of this nature, given that it was not part of an ongoing business. He submitted that the applicant's role had never been categorised in the judge's findings, that the offence was not sophisticated, with no aggravating features and that the material did not allow for Rizmani to be cast as a significant player in the offence; and that his role should rather have been accepted as passive. Mr Van de Wiel submitted that the applicant was able to rely on impressive character evidence, was a member of a close-knit family, had a history of constant employment and working as a carer for his parents, and that his prospects of rehabilitation should be regarded as excellent. Insofar as the trial was concerned, although a plea of not guilty was entered and his innocence maintained, none the less all the necessary concessions had been made and the Crown was not required to produce all its witnesses (an argument which was later adopted also by Mr Holdenson). Accordingly the conduct of the trial had been such as to allow for some discount in sentence, especially taken with the applicant's excellent prospects of rehabilitation.

The Crown's response was that Rizmani also had, by the jury's verdict, been found to be in the position of principal in the transaction. He and his premises were central to the trafficking alleged and the jury had rejected the view that Rizmani was an innocent dupe of Berisha. The evidence showed numerous telephone contacts between Berisha and Rizmani between 29 January and 8 February, and in particular telephone contact between Berisha and Rizmani after each occasion that Berisha had contact with Cafferkey, the undercover police officer. The videotapes of the surveillance of the three participants which were exhibited and which I have viewed, do, I think, support the Crown's argument that little or no distinction can be made between the roles played by each of the applicants in the commission of this offence.

I turn then to Berisha's case. During the plea his counsel called Detective Sergeant Bretton Randall who had been involved in the investigation of the offence and who had arrested Berisha. Randall said that Berisha was a user of heroin and an addict and gave evidence which supported the view that Berisha had been actively trying to contact a hospital in Footscray to get into a drug treatment programme. He had no assets apart from his early 1980s van, which would have been worth not more than $3,000 or $4,000. He lived in premises owned by his girlfriend, Mary-Anne Zerafa. Ms Zerafa was herself then called and gave evidence of having lived with Berisha for approximately 12 years. He had been employed as an electrical fitter by a company known as Kennedy-Taylor from 1991 to 1993. She said that the applicant had been a nice person, good-hearted and gentle until October 1996, when she discovered he was on heroin and he began doing things out of character. She said that he had attempted to free himself from his addiction by undergoing a six-day detoxification programme and was due to go into the Western General Hospital on 9 February 1998, but was of course arrested on 8 February. In cross-examination Ms Zerafa said the applicant had been addicted to heroin for 12 months or so in which time he had spent $12,000 or more of her money on heroin, although he had paid back what he owed her. Ali Etemi, a retired electrical fitter who had worked as a supervisor for Kennedy-Taylor and who had been responsible for Berisha obtaining work with that firm, was the third witness called for Berisha. Mr Etemi said that Berisha was a very good worker and reliable; and that Berisha had given help to refugees from Bosnia and, as far as he knew, was doing well in his second-hand shop business. The applicant's counsel also placed reliance on a psychological assessment by Gina Cidoni. Ms Cidoni said in that report that Berisha was clearly troubled by his predicament and like many others had grossly under-estimated the destructive effects of heroin. He had however demonstrated remorse and self-reproach about his involvement in the offences and seemed genuine in his resolve to remain drug-free.

During the plea his counsel put to the sentencing judge that Berisha had not been and would not have been involved in a commercial trafficking had it not been for the approach made to him by the police informer. It was submitted that he was a man without assets with no trappings of wealth as a consequence of large-scale dealing, that he was a drug addict who had been grappling with this problem of addiction, with no prior convictions and that he was entitled to credit for having been for a significant period of time a worthy contributor to the community with good prospects of rehabilitation.

In sentencing reasons, the judge said of Berisha that he was satisfied that he expected to gain financially from his involvement in this offence, and that part of his financial gain would have been used to pay off his debts. His Honour said -

"However, I find it impossible to believe that you did not intend to keep some of the proceeds for your own use. It is clear enough that you were an addict and that prior to this offence you were dealing in small amounts of heroin. In my view, the extent of your addiction was not such that you were helpless and/or in such a parlous state as to be easy prey for other drug traffickers."

The judge said of Berisha that he was heavily in debt and saw the opportunity of making money from a large transaction. His position was, according to his Honour, to be distinguished from that of a non-addict who coldly and deliberately engages in trafficking for his own personal gain. His Honour did not accept the submissions made by Berisha's counsel as to his good prospects of rehabilitation, stating that he had failed to rehabilitate himself, instead using the savings of his partner in order to maintain his habit. His Honour continued -

"Nevertheless I do take into account that since you have been in prison you have been drug-free and have participated in a number of courses and treatments aimed at overcoming your addiction. I do not place much emphasis on the fact that you have no prior convictions but I nevertheless take that matter into account. Further whilst I am a little sceptical about your working history over the past few years, I note that you do possess the skills of an electrical fitter."

The judge concluded that Berisha's prospects of rehabilitation were reasonable but the prognosis must be guarded.

In this Court Mr Tehan for Berisha argued that the sentencing judge had made two errors of fact in his sentencing reasons; first that the judge had said that Berisha had been guilty of trafficking in small amounts of heroin before the occurrence of the present offence, and secondly that his Honour had erred in his analysis of Berisha's work history. The relevant passages of the sentencing reasons have already been quoted, although I should add that in relation to the second alleged error reliance was also placed on an exchange with counsel during the plea in which his Honour said that the applicant "effectively hadn't worked since 1993 as an electrical fitter, and that he was just running some sort of secondhand shop and tinkering around with repairing goods". Later the judge said that since 1993 Berisha had "done little". In my view there is nothing in either of these points. By the statement that Berisha was "dealing in small amounts of heroin" before the present offence, his Honour may have meant no more than that Berisha was purchasing small amounts for his own use. But even if the judge meant that Berisha was selling small amounts of heroin, that conclusion was, as Mr Tehan conceded, open on the materials since the applicant had said to Cafferkey on 29 January 1998 - "I've been in this business for 15 years. I promise you, you will make money from this". As to the second point, there was very little evidence as to the activities of Berisha in running a secondhand shop and repairing goods after 1993. No evidence was given on this matter by the applicant himself, and I should emphasise (as this Court has so often done in the past) how much better placed on this and other issues the applicant would have been had he himself given evidence in the course of the plea. Neither Ms Zerafa nor Mr Etemi was able to give evidence of any consequence as to the applicant's activities after 1993 and in my view the judge was perfectly entitled to express some scepticism about Berisha's working history over the past few years.

Mr Tehan next submitted that the judge had not given sufficient weight to the applicant's heroin addiction, in saying that "The extent of [his] addiction was not such that [he] was helpless and/or in such a parlous state as to be easy prey for other drug traffickers". It was submitted that there was overwhelming evidence that Berisha was a drug addict of strong proportions, and that all the evidence demonstrated a heavy addiction.

There is nothing in this point. The learned judge accepted that Berisha was an addict and distinguished his position from that of "a non-addict who coldly and deliberately engages in trafficking for his own personal gains". The judge's comments were, I think, no more than a fair assessment of all the evidence before the court and did not amount, contrary to Mr Tehan's submission, to a complete under-estimate of the applicant's heroin addiction.

Mr Tehan's next submission was that the judge had undervalued the applicant's prospects of rehabilitation, together with his lack of prior convictions. It was submitted that notwithstanding that lack of prior criminality is of less than usual significance in drug trafficking cases, nonetheless lack of prior convictions remains important especially in determining whether a person's prospects for rehabilitation are good. As to those prospects, it was submitted that the judge had ignored the applicant's valiant attempts to overcome his addiction, his good work history, his stable relationship with Ms Zerafa, the support available to him in the community, his remorse, and the various courses he had undergone during a lengthy period of pre-trial custody.

That lack of prior criminality is of less than usual significance in drug offence cases is well-established, as all counsel accepted in argument. The Court of Criminal Appeal in New South Wales said in Leroy (1984) 13 A.Crim.R.469, at 474:

"This Court and other criminal courts have said on many occasions that in the drug traffic in particular the circumstances that the accused has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to place themselves in the chain of drug trafficking ... are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take, in the case of drug trafficking, a view which does not extend the same degree of leniency being extended to first offenders."

Although the judge did not place much emphasis on the lack of prior convictions, his Honour nevertheless took that matter into account and, as already recorded, assessed Berisha's prospects of rehabilitation as being reasonable although guarded. Here again it seems to me that no error is shown in his Honour's reasoning.

On the ground of manifest excess, Mr Tehan submitted that the judge had, in effect, given Berisha a reduction of two years in the head sentence for pleading guilty. The sentence, and the non-parole period, did not, he argued, properly reflect the fact that the offence was committed when Berisha was vulnerable, his long-standing relationship with Ms Zerafa being then broken; nor did it accommodate his addiction and his excellent prospects of rehabilitation demonstrated by his endeavours, now successful, to free himself of his addiction.

The response made by Mr Morgan-Payler for the Crown to the case made by all the applicants on this issue was that the magnitude of the transaction of which they were all guilty was such that matters personal to them were greatly outweighed by questions of deterrence (both general and specific), the protection of the community and manifestation of the denunciation of conduct of this kind. No specific error had been asserted in the applications by Elmazovski and Rizmani, and no error had been established in Berisha's case. The Crown submission was that there was no basis for distinguishing between the situations of Elmazovski and Rizmani, nor in the roles played by all three in the commission of the offence. Insofar as Berisha was concerned, all that could be said was that he pleaded guilty and was an addict, which together accounted for the difference in sentence. Having regard to all these matters and in particular to the maximum penalty, the sentences imposed were, Mr Morgan-Payler submitted, well within the permissible range.

The question whether the sentences are manifestly excessive is a difficult one. All the applicants have no criminal history, and the offence was to be treated as a single transaction and was not of a sophisticated nature. Even though two of them pleaded not guilty, the trial was conducted responsibly and a number of concessions were made which must have reduced the length of the hearing, a matter which in an appropriate case would, I think, be at least relevant to the exercise of the sentencing discretion. There was in each case a basis for arguing that rehabilitation was a reasonable prospect. In all the circumstances the sentences imposed were severe and, I think, at or near the top of the appropriate range.

On the other hand, there is an abundance of authority stressing that trafficking in heroin is a very serious crime. The courts have repeatedly stigmatised the offence in the strongest terms. Offenders play for high stakes and persons detected in the business of trafficking in heroin can expect condign punishment and little mercy from the courts. As Tadgell, J.A. said in R. v. John Pantsis [1998] VSCA 134 at par.12 -

"The fact is that drugs breed crime of all kinds, and heroin is one of the more pernicious of them. It truly poisons society."

Nowadays many of our citizens are sadly aware of examples among their own young friends and acquaintances who have been entrapped by heroin, some of whom have died from overdosing or other consequences of the abuse of this evil drug.

In considering this issue it is necessary to keep clearly in mind that the question for a judge of this Court is not whether a lesser sentence might have been thought appropriate by that judge. It is whether sentencing error has been shown, or the sentence imposed is beyond the range appropriate to the particular offence and the circumstances of the offender.

Notwithstanding the able arguments advanced on behalf of each of the applicants, in my view it cannot be said that the sentences were beyond the appropriate range. In each case, therefore, the ground claiming manifest excess must fail.

After the hearing was completed, Mr Tehan informed the Court that the sentencing judge had made an order after announcing the sentences that 369 days be reckoned as time already served by Berisha. Mr Tehan informed us, with the consent of Mr Morgan-Payler, that this declaration was in error and that the correct declaration should have been that, when sentenced on 11 March 1999, the time already served by Berisha was 396 days. In my view it is not necessary to grant the application and allow the appeal in order to correct the declaration. I have recorded the correct figure for calculation of time served as at 11 March 1999 and the fact that the Crown accepts this calculation, to enable the information to be conveyed to the prison authorities. If the applicant's advisers regard this as unsatisfactory the matter can be brought on again before the sentencing judge to enable correction of the records of the County Court.

I agree. I would merely add some remarks on the question whether these sentences should be seen to have been manifestly excessive.

For about the last 20 years, within my own experience, and no doubt for longer, the courts have been faced with an exceedingly difficult task in dealing with drug offenders. Drugs of addiction, wantonly distributed and abused, present to a modern civilised society an increasing burden that is both monstrous and intolerable. It is a monstrous burden in the sense that it is unnatural and evil. Moreover, it begets further evil, which anyone who cares to sit as an observer in this Court for a week could not fail to realise. It is no exaggeration to say that the vast majority of serious criminal activity in this State, and in the country generally, is traceable to the production, distribution or use of illicit drugs. The burden is intolerable because the modern civilised society simply cannot sustain its crushing weight and yet remain civilised. One by one the civilising props must give way.

As Charles, J.A. has observed, year by year we see decent standards warped. They do not suddenly fail, but noticeably they are upheld by progressively fewer members of society as soft options fostered by addictive drugs become acceptable. Community life then tends to be supported less and less upon robust natural attitudes and more and more upon artificially derived drug-engendered values. I had occasion to make remarks along those lines a dozen years ago in the case of R. v. Moran and Byrnes in a judgment of the Court of Criminal Appeal delivered on 15 October 1987, and judges have been saying much the same thing from that time to this. One fears that they will have to continue to do so. What else are they to do?

A decade ago the sentences that were respectively imposed on these three applicants would, I suspect, have been regarded as sufficiently excessive to warrant interference by a court of appeal. In the meantime the community's attitude to drug-related anti-social behaviour has hardened.

In properly performing their task, consistently with what the Parliament has prescribed and society deserves, the courts are bound to acknowledge that they have the community in their charge and care - and I mean the whole of the community. Accordingly, in dealing with serious infringements of the law of the kind with which we are now concerned, the courts do not consider only those malefactors who are brought to attention. We consider everyone, including the kind of unfortunate people of whom Charles, J.A. has just spoken. It is our task to strive to preserve what is decent and to do what we can to improve and increase the respect of all citizens for the law, and therefore for one another.

An inflation in the extent of custodial sentences for offences of the kind now in question must be recognised. The learned sentencing judge here, in his carefully expressed reasons for his sentences, evidently had considerations of this sort much in mind. He gave full weight to such mitigating factors affecting each applicant as there were, as Charles, J.A. in his reasons has indicated. Having done so, he was, in my opinion, well entitled to impose the sentences he did.

I agree, therefore, that each application should be refused.

The judgment of the Court is that the application for leave to appeal against sentence by each of Isa Berisha, Vergim Elmazovski and Amet Rizmani is dismissed.

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