R v Bosio; R v Clarke; R v Zogheib [2005] VSCA 209

2 The three applicants were presented together before the County Court, on 15 February 2005, for various offences involving the trafficking or possession of a drug of dependence. The applicants Bosio and Clarke were charged on two counts of trafficking (counts 1 and 2 on the presentment) and the applicant Zogheib on one count of possession of a drug of dependence (count 3) and three counts of trafficking (counts 4, 5 and 6).[1] All entered pleas of guilty and, after hearing submissions advanced in mitigation of penalty, the learned sentencing judge, on 21 February 2005, imposed the following sentences upon them:

The applicant Bosio:

On count 1 - four years' imprisonment

On count 2 - four years' imprisonment.

There was no order for cumulation. This created a total effective sentence of four years' imprisonment, in respect of which his Honour fixed a non-parole period of two years.

The applicant Clarke:

On count 1 - three years' imprisonment

On count 2 - three years' imprisonment.

Again his Honour made no order for cumulation. This created a total effective sentence of three years' imprisonment. He directed that the service of 27 months of that sentence be suspended for an operational period of 27 months, leaving a period of immediate incarceration of 9 months.

I should point out at this stage that his Honour did not indicate when the operational period of suspension was to commence, but it has been accepted by Ms Carlin, who

appears for the Crown, and Mr Holdenson, who appears for the applicant Clarke, that he can be taken to have intended that it would begin on the expiration of the period of immediate incarceration. This not only involves a departure from what I understand to be the ordinary practice adopted in such cases, which is to fix the period from the date of the commencement of the sentence, but is unsatisfactory in that it excludes from that operational period the time that the individual is in custody under the sentence. This deficiency will need to be addressed.

The applicant Zogheib:

On count 3 - six months' imprisonment

On count 4 - three years' imprisonment

On count 5 - three years' imprisonment

On count 6 - six months' imprisonment.

Once more there was no order for cumulation and accordingly a total effective sentence of three years' imprisonment was imposed in the case of this applicant. His Honour directed that Ms Zogheib serve a period of 18 months and that the remaining 18 months be suspended for an operational period of 18 months.

A similar problem to that just mentioned arises with regard to his Honour's order concerning the operational period of the suspended sentence in the case of this applicant. It will also need to be addressed.

3 Each of the applicants seeks leave to appeal against the sentences imposed upon them, relying on a number of grounds that in the circumstances need not be set out.

4 A police investigation, appropriately named Operation Lexicology, was conducted between January and June 2003 into a drug trafficking operation with which it was believed the applicants were associated. Part of this investigation involved surveillance being conducted on the home of the applicants Bosio and Clarke, who were partners, at that time, in a de facto relationship. Telephone intercepts were placed on various mobile phones and a listening device was installed in the house. The investigation revealed that they were engaged in the selling of both methylamphetamine and MDMA, commonly referred to as ecstasy. The latter drug was sold in tablet form in multiples of 100 at an average price of $20 per tablet. They secured their supplies of both types of drug from a man named Housan Zayat, now deceased.

5 The counts of trafficking preferred against these applicants encompassed a continuing engagement in that activity, between 11 January and 26 May 2003. The quantity of drugs involved is unknown but, in respect of each of the substances, was clearly substantial. Some indication was provided by the number and content of intercepted communications and the acceptance by the sentencing judge that the applicant Bosio was engaged in trafficking to feed his own addiction. According to Bosio, this addiction was costing him approximately $1,800 per week. As I understand the position, the two applicants were operating, in the chain of distribution, one step above street level dealing. They sold to street dealers and directly to drug users as well.

6 The applicant Zogheib (who is referred to in the material before us as the girlfriend of Zayat, the supplier to the other applicants) was involved in the same drug trafficking operation between 28 April and 11 June 2003. She took instructions from Zayat and acted as his courier in drug sales. She would pick up and deliver money and, on occasions, drugs. However, she rarely dealt with customers directly. That involvement was the subject of counts 4 and 5. Count 3 related to the finding in her possession when arrested of a single ecstasy tablet, and count 6, a trafficking count, was based upon the sale of 0.2 grams of heroin to a drug-using friend called Emma.

7 The applicant Bosio was aged 41 to 42 years at the time of offending. He had 19 prior convictions from five court appearances. For the most part they related to offences of dishonesty. However, it is important to note that the last such appearance was on 21 July 1980 and that none of them were concerned with drugs. In my view, his limited criminal history can be disregarded for present purposes. This applicant was addicted to both amphetamine and ecstasy.

8 The applicant Clarke was aged 20 years at the time of the offences and she had no prior convictions. She also was addicted to both amphetamine and ecstasy.

9 The applicant Zogheib was 23 years of age. She has a criminal history of 19 findings of guilt and 26 convictions arising from three court appearances. They relate to offences of dishonesty and driving offences. She was addicted to heroin.

10 As I have indicated, save for one matter to which I will return, there is no need to address the various grounds upon which the applicants have placed reliance. It is conceded by the Crown that, in the cases of Bosio and Clarke, the sentencing judge misapprehended the factual foundation of the trafficking involved in count 2, and which he also misdescribed as count 1. In his sentencing remarks his Honour stated:

"As to count 1, it concerned 901 ecstasy tablets. The trafficable quantity in so far as such tablets is concerned pursuant to the Act is 3 grams. The weight of the 901 tablets was 21 grams. There were certain other accoutrements associated with drug dealing involved in count 1, in particular the possession of a .38 calibre hand gun."

11 He incorrectly approached the ecstasy trafficking count on the basis that it was limited to a single occasion and involved 901 tablets. The particular transaction to which he referred was only one of a number encompassed by count 2 and did not involve a sale by the applicants, but rather the handing over by Bosio to Zayat of drugs and other items belonging to Zayat. His Honour was also in error in ascribing a weight of 21 grams to those tablets, but in the circumstances that would not matter a great deal. However, it seems that he confused the amount involved in that transaction with a quantity of 79 tablets, weighing 21.2 grams, located in the applicants' premises at the time of his arrest. Be that as it may, the trafficking encompassed by count 2 was of a Giretti[2] variety, involving many separate transactions, with the transcripts of intercepts from the applicant Bosio's mobile telephone revealing discussions as to the sales of batches of hundreds of tablets.

12 These misapprehensions, Ms Carlin properly conceded, were material to the determination not only of the appropriate sentences to be handed down on each of these applicants on the particular count, but in his Honour's assessment of the overall criminality of their conduct, and accordingly both the total effective sentence and the minimum period of incarceration required. In consequence, the exercise by his Honour of his sentencing discretion has miscarried, and the applicants Bosio and Clarke fall to be re-sentenced by this Court.

13 I have adverted briefly to the nature of the offending underlying count 2. Something must be said with regard to the trafficking in methylamphetamine, mistakenly described by his Honour as count 2. Whilst it is not possible to be precise as to the amount of drug trafficked over the period, there is no dispute that intercepted conversations reveal discussions as to the sale of ounces of methylamphetamine totalling several thousand dollars.

14 I should add, at this point, that I do not consider that there is any substance in the contention advanced on behalf of the applicant Clarke that different sentences should be imposed on the separate counts. On the material before the Court, the extent of trafficking in the respective drugs is unclear, both in terms of quantity and value. What can be seen is that during the period involved the applicants actively engaged in trading in both substances.

15 The applicant Bosio was, as his Honour found, a mature person at the time that he entered into the enterprise. With Ms Clarke he was, over a period of several months, involved in the selling, storage and delivery of significant quantities of drugs. His motivation for doing so was related to his addiction to drugs and the lifestyle that he pursued, both of which were associated with his involvement in the nightclub industry. He entered that industry in his late thirties, and he could hardly be viewed as unaware of the seriousness of the conduct in which he was engaging, given his experience in it, and in life generally.

16 Notwithstanding the matters advanced in mitigation of penalty in his case, which include:

(a) his plea of guilty entered at an early stage;

(b) his previous excellent work history;

(c) the substantial endeavours that he has made to achieve rehabilitation subsequent to his arrest; and

(d) the sentencing judge's finding concerning his good future prospects in that respect;

it is obvious that sentences of imprisonment of at least the order of those handed down in the court below should be imposed. In my view, he has by no means been harshly dealt with. There is no need to recite any of the statements made by judges of this Court concerning the seriousness with which engagement in the trafficking of drugs, at whatever level in the chain of distribution it occurs, will be viewed, and, in particular, the importance of general deterrence as a sentencing consideration in such cases. I have little doubt that had his Honour not attributed full weight to the factors operating in mitigation of penalty in this applicant's case, including his acceptance that the applicant's behaviour was motivated by the need to secure the funds necessary to support his own addiction, more substantial penalties on each count would have been imposed. I would grant his application, but I would dismiss the appeal on the ground that no other sentence was required in the circumstances.

17 Some distinction for sentencing purposes must, however, be made between the applicant Bosio and the applicant Clarke, bearing in mind, however, that their involvement was similar in a number of respects. Clarke, understandably, was regarded by the sentencing judge as having played a lesser role than the older and more experienced Bosio. It was not, however, suggested that he had pressured her to become involved. She was, nevertheless, involved in a relationship with him, and it is reasonable to assume that, in view of their respective ages and experience, it was not by any means an equal one. However, she was an active and willing participant in the operation, providing assistance to Bosio and engaging in trafficking on her own behalf. Her conduct was very serious.

18 She was, as I have mentioned, only 20 years of age, and without prior convictions. There is material before the Court which indicates that she was a talented young person who had little idea of the dangers to which she was exposing herself until things became totally out of hand. In her case, she is entitled to consideration as a youthful offender, whose conduct may be, to some extent, attributed to immaturity, and the consequent greater emphasis that is then placed upon rehabilitation as a consideration in the determination of an appropriate sentence. His Honour accepted that she derived no gain from her activities, save that she was able to feed her addiction and to survive without employment. In describing her state at the time, he said in his sentencing remarks:

"It would also appear that within the haze or whatever is the mental state of a person addicted as you were, you appreciated that the time would eventually come when you would have to face serious consequences."

19 Whilst most people, including myself, would, I believe, feel great sympathy for a young person who became enmeshed in the drug sub-culture, and who viewed her situation in this way, it cannot be forgotten that it is precisely because this can occur that the legislature and the courts have adopted the stances reflected in the available maximum penalties and the judicial decisions with respect to the sentences to be imposed.

20 Subsequent to her release on bail, the applicant Clarke obtained employment and resumed living with her family from whom she had become estranged by reason of her addiction and lifestyle. She ceased drug abuse and commenced a course of tertiary study. Against that background, his Honour accepted that her prospects of rehabilitation were such that she was "at low risk of breaches of the law".

21 When regard is had to all of the circumstances, the differentiation made by the learned sentencing judge in relation to the individual sentences, the total effective sentence and the order for partial suspension made in her case, the sentence imposed upon her appropriately reflected the differences between Bosio and herself. I would allow the appeal in her case in order to correct the error concerning the operational period, but I would affirm the sentences.

22 Turning then to the application by Sharon Zogheib, there is need to refer to only one of the grounds. Counts 4 and 5 relate to Giretti type trafficking in methylamphetamine and ecstasy during the period 28 April and 11 June 2003. Count 6 relates to a single incident of trafficking in heroin. Her role encompassed by counts 4 and 5, as I have earlier mentioned, was limited to the provision of assistance to Zayat, with whom she was involved in an intense and difficult relationship. His Honour described her situation as follows:

"Clearly, as the material showed, she was a person who did his bidding. For her to do individual dealing was somewhat unique, as is shown. She was, however, the collector of what was described in the tapes as paperwork, which is the phrase for money."

23 Count 3, however, was based upon the possession by her, at the time she was arrested, of a single ecstasy tablet. For that offence, his Honour imposed a sentence of six months' imprisonment. However sternly the matter could be viewed, that sentence must be regarded as manifestly excessive. Although it was to be served concurrently with the other sentences handed down, the fact of its imposition and the length of the period of imprisonment ordered cannot be regarded as immaterial to his Honour's assessment of the overall seriousness of the applicant's conduct and the minimum period of incarceration required.

24 In consequence, it is apparent that the exercise of sentencing discretion should be regarded as re-opened in respect of all counts. I do not understand that the prosecutor before us has contended to the contrary.

25 The involvement of this applicant arose directly from her relationship with Zayat and the strength of her addiction to drugs. She had been described as "a runner" for him, delivering drugs and collecting money. Save for the single incident the subject of count 6, there is nothing to suggest that at any stage her role was more significant.

26 In common with the applicant Clarke, Zogheib was quite young - 23 years of age. She had been addicted to heroin from the age of about 19 years and had a number of prior convictions which his Honour regarded as essentially indicative of the lifestyle of a person who was living with such an addiction. It appears that subsequent to her arrest for these matters, she appeared before Judge King in the County Court on another matter and had been released on parole by the time of sentencing for these offences. In the interim she had, as his Honour accepted, made serious endeavours towards her rehabilitation, although her future remained uncertain. She had, by the time of sentencing, enrolled in a business management course at Victoria University and had undertaken employment. She had, he accepted, effected a remarkable change in her life and had become calmer. She was, by that stage, able to have supervised access to her child, who had been taken from her and placed in the care of his paternal grandparents as a consequence of her drug addiction. As in the case of Clarke, the rehabilitation of this applicant must assume substantial significance in the determination of an appropriate sentence. It is also important to bear in mind the limited role that she played in the major drug trafficking operation.

27 In her case, I would allow the appeal, set aside the sentences imposed in the court below and in lieu thereof substitute the following:

On count 3 - 1 month's imprisonment

On count 4 - 2 years and 6 months' imprisonment

On count 5 - 2 years and 6 months' imprisonment

On count 6 - 3 months' imprisonment.

I propose that these sentences be served concurrently and I would suspend the service of 21 months of the total effective sentence of 30 months as from 21 February 2005.

29 I agree that the applications should be disposed of as my brother Vincent proposes and for the reasons given by him.

30 I would only add this. In relation to Ms Clarke, I consider that the material in support of her plea was impressive in the sense that it shows that she has extricated herself from the pernicious world of drugs which she had entered, in large part by reason of her strength of character and, importantly, due to the support she has received from her family and others who care for her. Although I felt compelled to agree with the disposition proposed in respect of her by my brother Vincent and for the reasons given by his Honour, I think that Ms Clarke has a sound prospect of leading a useful life and hope that she will take advantage of the support she has in order to attain that end.

31 I think that not unlike considerations apply to Ms Zogheib.

32 I also agree. There are three points that I wish to add.

33 The first is to record that it was common ground at the Bar table that the operational periods of the partially suspended sentences imposed on Clarke and Zogheib should run from the date of sentence and thereby include the time spent in custody. The point was not argued. I am content to act on the concession, which accords with the practice that has usually been followed.

34 The second point arises from Mr Holdenson's reliance on R. v. Hickey[3] in support of his submission that a lesser sentence should be imposed on count 1 than

on count 2. As Ms Carlin pointed out, the submission fails on the facts. Both counts involved substantial trafficking over a period of some four-and-a-half months. I wish only to add that, in any event, precision is not required and even a broad-brush approach is often justified.[4] Structural arguments do sometimes succeed, as in R. v. Van Boxtel[5], but they are usually without merit, for the reasons given in R. v. Albanus[6] and R. v. Ash[7].

35 The third point is that, although it would have been open to the Court simply to dismiss (or, more correctly, to refuse) Bosio's application for leave to appeal[8], and that has often been done, the course we propose to adopt[9] is fully warranted by authority.[10] It is particularly appropriate in this case, the discretion being reopened and Mr Dann having argued the case so well.

36 The formal orders of the Court will be as follows:

In R. v. Bosio:

The application for leave to appeal against sentence is granted.

The appeal is treated as instituted and heard instanter and is dismissed.

Before passing to the other two cases, I record that counsel have again explained to the applicants Clarke and Zogheib the nature of a suspended sentence and the consequences of breach.

In R. v. Clarke:

The application for leave to appeal against sentence is granted.

The appeal is treated as instituted and heard instanter and is allowed in part.

The sentences imposed below are affirmed, resulting in a total effective sentence of three years' imprisonment.

The order partially suspending that sentence is set aside. In lieu thereof, the Court orders that 27 months of the sentence be suspended for an operational period of three years.

The operational period is deemed to have begun on 21st February 2005.

It is declared that the period of 183 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

In R. v. Zogheib:

The application for leave to appeal against sentence is granted.

The appeal is treated as instituted and heard instanter and is allowed.

The sentences of imprisonment imposed below are quashed and, in lieu thereof, the appellant is sentenced as follows:

Count 3 - one month's imprisonment

Count 4 - two-and-a-half years' imprisonment

Count 5 - two-and-a-half years' imprisonment

Count 6 - three months' imprisonment

That results, by operation of law, in a total effective sentence of two-and-a-half years' imprisonment.

The Court orders that 21 months of that sentence be suspended for an operational period of two-and-a-half years.

The sentence is deemed to have been imposed, and the operational period to have begun, on 21st February 2005.

It is declared that the period of 191 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

[1] A fourth person, Michael Delios, was presented at the same time on three counts of trafficking and one count of possession of a drug of dependence.

[2] R. v. Giretti (1986) 24 A.Crim.R. 112.

[3] [2001] VSCA 75; (2001) 119 A.Crim.R. 68.

[4] R. v. Nikodjevic [2004] VSCA 222 at [44].

[5] [2005] VSCA 175.

[6] [2004] VSCA 236 at [9] and [11].

[7] [2005] VSCA 43 at [30].

[8] See, for example, R. v. Gray [1977] VicRp 27; [1977] V.R. 225 at 235.

[9] See [16] above and the orders in R. v. Bosio below.

[10] Bailey v. Director of Public Prosecutions [1988] HCA 19; (1988) 78 A.L.R. 116 at 117 per Mason, C.J., Brennan, Dawson and Toohey, JJ.