R v Carmody [2006] VSCA 139

1 I will ask Nettle, J.A. to deliver the first judgment.

2 On 15 November 2005 the applicant pleaded guilty before a judge of the County Court at Melbourne to one count of trafficking in a commercial quantity of a drug of dependence, namely, 3, 4-Methylenedioxy-N-Methylamphetamine (count 1); one count of trafficking in a drug of dependence, namely, Methylamphetamine (count 2); one count of possessing a drug of dependence, namely, Cannabis L (count 3); and one count of cultivating a narcotic plant, namely, Cannabis L (count 4). After hearing a plea in mitigation of penalty, the judge sentenced the applicant on count 1 to four years' imprisonment; on count 2, to 15 months' imprisonment; on count 3 to pay a fine of $500; and on count 4, to pay a fine of $750. The judge further ordered that three months of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1, thereby making for a total effective sentence of four years and three months, and set a non-parole period of two years and six months.

3 The applicant now applies for leave to appeal against sentence on grounds that the judge erred in failing to give sufficient weight to delay between the commission of the offences and the date of sentence, in respect of both rehabilitation achieved by the appellant in that period and as a mitigatory factor per se, and that the sentence was manifestly excessive taking into account the matters put on the plea and in particular the mitigatory factors associated with the delay; the effect of the long period of imprisonment on the applicant's business and his employees; and the nature of the applicant's prior offences.

4 The facts of the matter sufficiently appear from the prosecutor's opening before the sentencing judge, about which there is no issue. The applicant is 35 years of age, having been born on 1 July 1970, and was 31 years of age at the time of the offences. Between July 2001 and July 2002 the Victoria Police Organised Crime Squad conducted an investigation called Operation Backwards into the importation and distribution of commercial quantities of MDMA and ecstasy. Police identified a group of persons involved in the distribution of numerous drugs including MDMA and ecstasy. They intercepted the mobile telephone calls of one of those persons, one Quinten Miller, and ascertained that Miller was purchasing ecstasy from the applicant on a regular and recurring basis. Police later intercepted telephone calls made by the applicant and thereby ascertained that he was dealing in drugs of dependence, including ecstasy, with numerous people, using coded telephone messages and the supply of drugs at various pre-determined locations. Over time, investigators established that between October 2001 and January 2002 the applicant sold approximately 2000 ecstasy tablets to Miller, in quantities varying between 100 and 500 tablets per week, at a price of $28 per tablet.

5 As a result of that intelligence, at 5.15 am on 25 January 2002 police executed a search warrant at the applicant's business premises in Richmond. The applicant was at that time asleep in the second bedroom of the premises and on hearing police at the front door he threw out of the window into the rear yard a black eco bag containing a large quantity of ecstasy tablets and cash. The applicant was later arrested on site and police recovered the bag and found in it 1031 ecstasy tablets (which are the subject of count 1); 159 grams of methylamphetamine (which is the subject of count 2) and $11,610 in cash. When interviewed, the applicant admitted that the ecstasy, methylamphetamine and cash belonged to him.

6 The ecstasy tablets were found to weigh a total of 223.1 grams and to be approximately 60% pure, giving a total pure MDMA weight of 133.8 grams. The commercial quantity of MDMA as defined in the Drugs Poisons and Controlled Substances Act 1981 is 100 grams. Consequently, there was more than a minimum commercial quantity in the bag, let alone the amounts which the applicant had sold to Miller and other customers the subject of the telephone intercepts.

7 The methylamphetamine was found to weigh 159.6 grams and to be approximately 40% pure. The trafficable quantity of methylamphetamine as defined in the Drugs Poisons and Controlled Substances Act is six grams. The amount in the bag was therefore considerably more than the minimum trafficable quantity.

8 On the same day, police executed another search warrant at the applicant's home and found there another bag containing 21.2 grams of cannabis (which is the subject of count 3) and $1,000 in cash. When later interviewed by police, the applicant asserted that he grew the cannabis in the rear yard of his home in January 2001. That is the subject of count 4.

9 Until at least shortly before the sentencing hearing, the applicant denied any involvement in trafficking in drugs of dependence and denied ever selling or buying drugs. He claimed that he had been given the drugs that were found in his possession.

10 On 9 February 2005, at the Magistrates' Court at Melbourne, the applicant was committed for trial on six charges: one count of traffick in a drug of dependence (ecstasy); one count of traffick in a drug of dependence (commercial quantity - methylamphetamine; one count of traffick in a drug of dependence (methylamphetamine); one count of possess a drug of dependence (melthylamphetamine); one count of possess a drug of dependence (cannabis); and one count of cultivate a narcotic plant (cannabis). The applicant reserved his plea to all charges upon which he was committed for trial.

11 On 17 June 2005 the Director of Public Prosecutions filed a presentment preferring only counts 1 to 4 and, as has already been noticed, on 15 November 2005 the applicant was arraigned and pleaded guilty to those four counts on the presentment as filed.

12 In his sentencing remarks the judge noted the long period of delay between the applicant's arrest and the plea (which the judge found was in no way due to the applicant) and that in that period the applicant had achieved a notable level of rehabilitation. In particular, his Honour accepted the opinion of Ms Carla Lechner, a forensic psychologist, in her report dated 8 November 2005, that the applicant had very good rehabilitation prospects and was unlikely to re-offend in offences of a similar nature. His Honour noted as well the evidence of Mr Richard Smith, a programme director of a drug and alcohol rehabilitation programme into which the applicant had entered himself, that the applicant had obtained insight into himself and the damage caused by drug abuse, that the applicant was used as a role model as a person who had been rehabilitated from drug use and whose prognosis was excellent (an opinion which the judge said that he accepted), and that the applicant was a tenacious worker whose involvement with the police had been a watershed from which he was unlikely ever to return to drugs. His Honour also referred specifically to evidence given by Mr Marshall Hewett, the director of the NOISE Festival, which is a Commonwealth Government initiative to showcase the creative work of young Australians, that the applicant had continued efforts at hard work since his arrest and was persistent in his business dealings despite the prospect of gaol, and that the applicant's offending was completely out of character.

13 The judge found on the basis of that evidence that the applicant had turned his life around and used the time since his arrest to engage in what his Honour accepted was genuine rehabilitation.

14 It is submitted on behalf of the applicant that where, as here, there has been a significant period of delay between arrest and sentencing, and in that period the prisoner has made real progress towards rehabilitation, that factor must be given significant weight in mitigation of penalty. Further, it is contended, when one has regard to the individual sentences and total effective sentence imposed by the judge in this case, it is apparent that his Honour cannot have given that factor sufficient, if any, weight.

15 I do not accept that contention. No doubt the judge was bound to take into account the delay between arrest and sentencing and in particular the way in which, as the judge found, the applicant had turned his life around during that period. As Tadgell, J.A. said in R. v. Miceli:

"There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced. The remarks of Sir Laurence Street in R. v. Todd [1982] 2 N.S.W.L.R. 517 at 519 and 520 have not infrequently been adopted by this court upon the point. Again, the remarks to a similar effect of the Court of Criminal Appeal in R. v. Kane [1974] VicRp 90; [1974] V.R. 759 at 767 have not infrequently been applied. Most particularly is the matter of delay between the commission of an offence and the imposition of a sentence to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life ... "[1]

16 Similarly, as Chernov, J.A., with whom Winneke, P. and Buchanan, J.A. agreed, put it in R. v. Cockerell[2]:

"The courts have recognised that such delay which, as here, cannot be attributed to the offender, constitutes a powerful mitigating factor at a number of levels ... First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. Further, as Vincent AJA has pointed out in Schwabegger[3], there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely progress of the prosecution on the other, leading to a justified sense of unfairness in the offender."

17 At the same time, however, as Ormiston, J.A. explained in R. v. Nikodjovic[4], one should be cautious about recognising the time between offending (as such) and sentencing, except for the specific purposes analysed by Callaway, J.A. in MWH[5]. As his Honour said, reformation of character over a significant period may be of a kind which makes rehabilitation largely irrelevant and greatly reduces, if not extinguishes, the need for specific deterrence. But it does not give an automatic right to a reduction or discount in sentence. Depending upon the crime and the circumstances of the case, other considerations may dictate that a significant reduction in sentence is plainly unacceptable. Such, for example, may well be the case with serious sexual and drug offences.

18 In any event, however, in this case I think it plain that the judge did take into account the long delay between arrest and sentencing and the improvement in the applicant's approach to life and prospects of rehabilitation. The matter was the subject of detailed consideration on the plea. The applicant's counsel made specific submissions on the point and drew the judge's attention to relevant authorities. It is apparent that the judge was familiar with the topic because of its application to other offenders charged as a result of Operation Backwards. And the judge expressly noted in his sentencing remarks that he had taken into account the fact of delay and its consequences.

19 Furthermore, given the brazen commercial character of the applicant's offending, and the nature of the crime, the sentence imposed on count 1 and the non-parole period were nothing if not lenient. As his Honour observed, correctly, he would have been failing in his duty as a judge and to the community if he had not imposed an immediate custodial sentence which paid proper regard to the abysmal deleterious effects of drug trafficking on society and so put general deterrence at the forefront of the sentencing synthesis. Moreover, this was a case of regular and recurrent drug trafficking over a sustained period in more than a commercial quantity. Whatever the mitigatory considerations, therefore, it called for stern punishment and denunciation. But for the delay between detection and sentencing and the apparently remarkable advance of the applicant towards rehabilitation, the applicant could surely have expected to receive a much severer sentence than was imposed.

20 As to ground 2, counsel for the applicant again stressed the mitigating factors associated with delay and the rehabilitation achieved by the applicant since arrest, the effect which a long period of imprisonment is likely to have on the applicant's business and its employees, and the relatively innocuous proportions of the applicant's prior offending, in support of the submission that the sentences which were imposed were manifestly excessive. She contended that assessed in light of those considerations a total effective sentence of four years and three months and a non-parole period of two years and six months was manifestly beyond the range.

21 In my view, the answer to all that is the answer which is offered by the Crown. The applicant's pleas of guilty to counts 1 and 2 came only after initial denials of involvement in any form of drug trafficking and a reservation of his plea at the committal. The case against him was a strong one. On any analysis, the seriousness of the offending comprising counts 1 and 2 demanded an immediate term of imprisonment, no matter how significant may have been the matters of mitigation upon which he relied. Given the nature and gravity of his offending, the individual sentences were well within the range. The degree of cumulation between counts 1 and 2 was modest. And the modesty of the non-parole period - set at 60% of the head sentence - demonstrates that the judge did recognise the progress of the applicant towards rehabilitation and that his Honour modified the sentence accordingly.

22 It follows, in my judgment, that the application for leave to appeal should be dismissed.

25 The order of the Court is that leave to appeal against sentence is refused.

[1] [1997] VSC 22; [1998] 4 V.R. 588 at 591.

[2] [2004] VSCA 239 at [10].

[3] [1998] 4 V.R. 649 at 659.

[4] [2004] VSCA 222.

[5] [2001] VSCA 196 at [18].