R v D'Aloia [2006] VSCA 237

2 On 8 August 2005 the applicant pleaded guilty before a judge of the County Court at Melbourne to one count of trafficking in a drug of dependence (Cannabis L) (Count 1); one count of cultivating a commercial quantity of a narcotic plant (Cannabis L) (Count 2); a further count of trafficking in a drug of dependence (Cannabis L) (Count 3); and one count of trafficking in a large commercial quantity of a drug of dependence 3, 4-Methylendioxy-N-Methylamphetamine (MDMA) (Count 4). After hearing a plea in mitigation of penalty, the judge sentenced the applicant on Count 1 to a term of imprisonment of five years, on Count 2 to a term of imprisonment of four years, on Count 3 to a term of imprisonment of eight months, and on Count 4 to a term of imprisonment of nine years. The judge cumulated two years of the sentence imposed on Count 1 and two years of the sentence imposed on Count 2 on the sentence imposed on Count 4 and on each other, thereby making for a total effective sentence of 13 years imprisonment and ordered that the applicant serve not less than nine years before being eligible for parole.

3 The applicant now seeks leave to appeal against sentence. There are 17 grounds of appeal.

Ground 1

4 Under cover of Ground 1 it was submitted that a sentence of five years' imprisonment for trafficking in 300 cannabis plants was manifestly excessive in light of the applicant's lack of significant prior convictions, his middle age, his medical history involving significant trauma, the fact that he was suffering from depression, the fact, it is said, that there has been no further offending, the fact that the offence was committed in or about April 1996 and therefore, as it is put, was stale or old, and the fact that the applicant pleaded guilty to the offence.

5 I reject that submission. The offence the subject of Count 1 involved the harvesting of a crop of 300 pounds (not 300 plants) and at the time the value of the crop was in the order of between $3,500 and $4,500 per pound. This was a large crop of great value, for the cultivation of which the maximum penalty was 25 years' imprisonment. In the circumstances, a term of only five years' imprisonment was not a remarkable sentence.

6 Middle age is not a mitigatory consideration with offences of this kind. A man of middle age knows enough of the world to know the consequences of cultivating a commercial quantity of a cannabis. Despite his middle age and the knowledge with which it may be supposed to have imbued him, this applicant went ahead and engaged in serious criminal conduct motivated by greed. So far from his middle age amounting to some sort of mitigatory consideration, I consider that his age and concomitant knowledge exacerbated the degree of his moral culpability. Other things being equal, he might well be given a greater sentence than a younger man and I consider that he is fortunate that the sentencing judge did not approach the matter in that fashion.

7 In the particular circumstances of this case, I also am not much impressed by the suggestion that the applicant should be dealt with leniently because he was suffering from depression or other ailments. A person who engages in criminal offences for profit cannot expect a great deal of leniency in sentencing, even if they are suffering from ill health, and in any event there was not sufficient evidence to establish that the applicant's ailments would result in gaol being any more onerous for him than for anybody else.[1]

8 I am not persuaded by the contention that the judge was required to give more weight to delay. As Ormiston, J.A. said in R. v. Nikodjevic,[2] delay may be a significant sentencing consideration where it has resulted in an offender reorganising his or her life upon an acceptance of guilt for the matters charged. But it is otherwise where the offender has simply used the period of delay to progress to more serious criminal activity. As Ormiston, J.A. put it, one should be cautious about asserting that there is a right to some automatic discount in every case of asserted delay:

"The most that can be said is that where the prosecuting authorities have in fact unduly delayed bringing the matter to court, there is much more likely to be such a discount, without the need to have regard to its particular consequences."

9 The applicant did not reorganise his life after committing the offence in 1996 and put criminal conduct behind him. To the contrary, it is apparent that he set himself on a course towards greater criminality which resulted in the offences which are the subject of the other counts. In the circumstances, it appears to me that the question of delay was largely irrelevant. In any event I see no reason to think that the applicant was entitled to any more discount for delay than that which the judge gave him.

10 I also see no reason to doubt that the judge gave an adequate discount to reflect the fact that the applicant pleaded guilty. Her Honour referred expressly to the fact that the applicant had pleaded guilty and was entitled to a tangible discount as a consequence. A sentence of only five years imprisonment for a crime for which the maximum sentence is 25 years' imprisonment plainly reflects the tangible discount which the judge allowed.

11 It was contended under cover of Ground 1 that the sentence imposed on Count 1 was improperly inflated as a consequence of the judge unjustifiably supposing the ill-effects of the consumption of cannabis, including the effects on persons pre-disposed to psychiatric disorder and other complaints, without evidence of those effects and without affording counsel an opportunity to deal with the possibility.

12 Apart from very recent authority, I should be inclined to reject that contention too. As at present advised, it strikes me that the deleterious effects of cannabis are now so well known as to be regarded as notorious. These days the dangers of the substance are something about which secondary school children are taught as a matter of routine and educated members of society are bound to be familiar with the dangers of it by virtue of their everyday reading. To continue in those circumstances to require expert evidence to establish the point is a little like requiring expert evidence to establish that cigarette smoking is productive of lung cancer and cardio-vascular disease.

13 That said, however, the recent decisions of this court in Pidoto and O'Dea[3] and Yacoub,[4] do appear to have altered the position. Until they were decided, it was commonplace for sentencing judges to take into account the properties of prohibited substances when imposing sentence for trafficking in those substances. But in Pidoto and O'Dea the court held that the nature and extent of the harm caused by a drug of dependence is not a relevant sentencing consideration. The point was reiterated in Yacoub.

14 One possible view of Pidoto and O'Dea is that it was confined to the impropriety of a sentencing judge seeking to form views about the relative harmfulness of the particular drug of dependence the subject of the charge. If so, there would be nothing necessarily improper about a sentencing judge taking into account that the drug of dependence was harmful; put aside just how harmful relative to other drugs and substances. But, despite my initial inclination to read Pidoto and O'Dea in that fashion, upon reflection I am persuaded by Mr Priest's argument[5] that it is not permissible to do so.

15 To begin with, as Mr Priest pointed out, the court in Pidoto and O'Dea expressly posed the question for decision in that case in the terms:

"When a person is being sentenced for the offence of trafficking in a drug of dependence, is it relevant for the Court to consider...the nature and extent of the harm which the particular drug causes, both directly to users of the drug and indirectly to the community as a whole..."

The court said that the question "should be answered in the negative".

16 Secondly, the court added later that:

"This does not, of course, prevent the sentencing court from taking into account evidence as to the harm caused by the particular conduct of which the offender has been convicted. The harm attributable to the conduct in question is as relevant as any other factor peculiar to the offending or the offender. What the legislation precludes, in our view, is the sentencing court bringing to bear any view, about the general tendency of the drug in question to cause harm, whether to users of it or to the community at large."

17 Thirdly, and perhaps most convincingly, as Mr Priest submitted, the court referred to the sentencing judge's observations that:

"One does not have to be in this Court very long to appreciate the magnitude of the drug problem in the community generally and its association with the commission of crime. Virtually every offence that comes before this Court, with the exception of sexual offences and white collar crime offences, have some drug connection in them, even if the offence is not on its face a drug offence. The drug involved here, an amphetamine-based drug, commonly known as ecstasy, is in my opinion emerging as a very significant community problem. On so many occasions one experiences really adverse behaviour, whether it is violence or some other type of adverse behaviour attributed to the use or abuse of this drug, and even more so, significant mental health problems being attributed to long-term abuse of this drug. Accordingly, this offence must be seen as trafficking in a very significant drug at a very significant level." (Emphasis added.)

"For the reasons we have given, his Honour erred in bringing to bear on the sentencing question his assessment of the harm associated with using ecstasy. That was an irrelevant consideration."

"As far as your offences concerning cannabis are concerned, it is well known that cannabis can have a very deleterious effect on health particularly for those who are predisposed to certain psychiatric disorders. If heavily abused it reduces motivation, may mask or exacerbate psychological conditions such as depression and adversely effect an individual's ability to successfully relate to those around him..."

19 As a court of three,[6] I consider that we are bound by Pidoto and O'Dea and Yacoub to hold that the judge thereby erred by "bringing to bear on the sentencing question [her] assessment of the harm associated with using [cannabis]."

20 I would uphold Ground 1 of the appeal on that basis.

Ground 2

21 I turn to Ground 2. As the judge found, the circumstances of Count 2 were as follows:

"Count 2 relates to your involvement in the cultivation of hydroponically grown cannabis plants at two properties... Another of the offenders before the court, Anthony Tabone, used [to] tend these crops. Police intercepted multiple telephone conversations between yourself and Tabone and also Robert Jordano, who lived at the ... In essence, it has been agreed between the prosecution and the defence that at least 135 Cannabis L plants were present between the two premises and that you had been involved in their cultivation between 7 December 2002 and 23 January 2003.

...

As far as Count 2 and Count 3 are concerned, I am satisfied beyond reasonable doubt that you were the principal of the sophisticated hydroponic cultivation set up at the properties. Although Tabone played a crucial role in cultivating the plants I find that he was subject to your direction. This is apparent from transcripts of various intercepted calls..."

22 Under cover of Ground 2, it was submitted that the sentence of four years imprisonment which was imposed on Count 2 for the cultivation of 130 plants was in the circumstances manifestly excessive.

23 I do not accept that submission. Despite the considerations urged on behalf of the applicant in support of Ground 1, and emphasised again in support of Ground 2, I consider that a sentence of four years imprisonment for an offender convicted as the principal of a sophisticated hydroponic cultivation set-up of cultivating a commercial quantity of a narcotic plant was within the range.

Ground 3

24 Under Ground 3 Mr Richter submitted that a sentence of 8 months imprisonment for trafficking 18 cannabis seedling was manifestly excessive. As he would have it, any term of imprisonment would be outside the range.

25 Other things being equal that might be so. Taken at face value, a sentence of imprisonment for trafficking in only 18 cannabis seedlings could be seen as a stern sentence. But other things were not equal. As the decision in Pidoto and O'Dea makes plain, trafficking in cannabis is not to be regarded as less serious than trafficking in other prohibited substances[7] and trafficking in cannabis seedlings is at least as serious as trafficking in cannabis. The offending must also be seen against the background of the other offences and as closely related in point of time and by reason of the dramatis personae.

Ground 4

26 Under Ground 4 it was contended that a sentence of nine years imprisonment for trafficking in a large commercial quantity of MDMA is manifestly excessive and the factors urged in support of Ground 1 were repeated in support of this ground.

27 Subject to the Pidoto and O'Dea point, I reject that contention too. The judge found that Count 4 involved 9,500 ecstasy tablets which were the subject of four separate transactions or events, most of which were detected by means of conversations picked up by listening devices. The first transaction involved 5,000 ecstasy tablets supplied by the applicant to one of his co-accused, Duncan, who gave them to another of the co-accused, Finn, who in turn gave them to another of the co-accused, Rodda. Rodda was pursued by police while driving his vehicle in Kew. He tried to dispose of the tablets by throwing them out of the window of his car. But the parcel hit a guard rail and police were able to recover 4,993 of the tablets. Analysis showed the tablets had a combined purity of MDMA of 35% and a total weight of 1.37 kg. The total quantity of MDMA in the tablets was therefore 479.5 grams. Thus, even without the other transactions, the supply of the 5,000 ecstasy tablets constituted trafficking in a large commercial quantity of the drug. The second transaction involved the applicant selling 1,000 ecstasy tablets to an undercover policeman "Matt" at a price of $18,500 on 15 November 2002. Those tablets were identical to the ones discarded by Rodda. The judge said that the third transaction occurred on 22 November 2002 when the applicant sold 2,500 ecstasy tablets to the undercover policeman "Matt" for $46,250. Those tablets were also identical to the ones discarded by Rodda. The fourth transaction involved an intercepted conversation on 11 January 2003 in which the applicant was heard to say that he had supplied 1,000 tablets to an unnamed male.

28 The judge also found that as far as the offences went the applicant was at the top of the tree of offending and was engaged in the activity of trafficking in a large commercial quantity of ecstasy for personal profit in which the sums of money changing hands were substantial.

29 Bearing in mind that the maximum penalty for an offence of trafficking in a large commercial quantity of MDMA is life imprisonment and a fine of 5,000 penalty units, and considering the nature and gravity of the applicant's offending, I regard a term of imprisonment of nine years in the circumstances of this case as well within the range.

30 I shall deal separately with the Pidoto and O'Dea aspect of the matter under the heading of Ground 12.

Ground 5

31 The thrust of Ground 5 was a complaint that the judge cumulated too much of the sentences imposed on Counts 1 and 2 upon the sentence imposed on Count 4. It was contended that Count 1 was a stale or old offence and that the sentence imposed on Count 2 was at the top of the range, if not excessive, and therefore that to cumulate the sentences as the judge did was excessive; particularly, it is said, given that Counts 2 and 4 were concerned with illegal drug activity albeit in respect of different drugs over virtually the same period.

32 For the reasons already given, I do not regard Count 1 as having been a stale offence or an old offence and therefore I do not accept that it was inappropriate to cumulate a significant portion of the offence imposed on Count 1 on the sentence imposed on Count 4. Given that Count 1 represented a separate and discrete period of criminal offending, it was not excessive to cumulate two of the five years imposed on Count 1 on the sentence imposed on Count 4.

33 The cumulation of the sentence imposed on Count 2 raises different considerations. It was closer in point of time to Count 4 and it may properly be said that it represented part of a continuing stream of criminal conduct at that later time. On the other hand, however, the applicant fell to be sentenced on Counts 2 and 4 as a "Serious Drug Offender" and thus, as the judge rightly said, she was required by s.6E of the Sentencing Act 1991 to cumulate the sentences imposed on Counts 2 and 4 on the sentence imposed on Count 1 unless persuaded that there was good reason not to do so.[8]

34 In point of fact, there was no good reason not to do so. It could not be said that Counts 2 and 4 "formed part[s] of one criminal episode".[9] In truth they were separate episodes, albeit close in point of time and by reason of the dramatis personae, and it was not suggested that there was any other reason to rebut the presumption created by s.6E that the sentences imposed on each count should be served cumulatively. Furthermore, the judge recognised that the principle of totality required a degree of restraint and she allowed for a significant degree of concurrency. I see no error in that aspect of her Honour's analysis.

35 In my view Ground 5 fails.

Grounds 6 and 7

36 Under cover of Ground 6 it was contended that the total effective sentence of 13 years is manifestly excessive when one considers the totality of the offending and personal circumstances of the applicant and, under Ground 7, it was contended that the non-parole period is too long having regard to the applicant's prospects of rehabilitation and the hardship which he will suffer in prison as a consequence of the depression by which he is afflicted.

37 Based upon what I have said already about the individual sentences, I do not accept that the total effective sentence of 13 years' imprisonment was manifestly excessive in the circumstances of this case. And plainly a non-parole period of nine years as a proportion of a total effective sentence of 13 years was also unremarkable.

38 It is true that the judge did not give separate reasons for imposing a non-parole period of nine years. But she was not requried to do so.[10] The judge did however refer to evidence that the applicant may have been suffering from clinical depression, and concluded that it was not such that she could draw any explicit conclusions as to whether that would make time in gaol more onerous for the applicant than for other prisoners. Her Honour also mentioned the fact that the applicant was suffering from Hepatitis C, and said that she took that factor into account. There is no reason to doubt that she did.

39 The judge referred elsewhere in her sentencing remarks to considerations which suggested that the applicant's chances of rehabilitation were fair and to the need to provide mitigation of punishment in order to avoid a sentence that was crushing. It is implicit in her Honour's sentencing synthesis that she gave weight to those matters as relevant considerations in the formulation of the non-parole period.

40 I reject Ground 7.

Ground 8

41 Ground 8 is directed to the fact that the offence comprising Count 1 was remote in point of time from the other offences, and it is said that the judge gave insufficient consideration to that fact.

42 I have dealt with that contention under the heading of Ground 1. For the reasons there given, I reject it.

Ground 9

43 Under Ground 9 it is contended that there was a substantial period of delay between the applicant's offending and the time of sentencing - a period of 2 1/2 years - which was occasioned by the circumstance that a number of the investigating police became subject to allegations of corrupt behaviour, and that the judge should have given greater allowance for those facts.

44 I have already dealt with the subject of delay and I observe that the judge had regard to the submission put on behalf of the applicant that he had used such delay as there had been to change his ways and thereby to improve his prospects of rehabilitation.

45 In my view Ground 9 fails.

Grounds 10, 11 and 16

46 Grounds 10, 11 and 16 were effectively abandoned in the course of oral argument.

Ground 12

47 In the course of her sentencing remarks, the judge stated that:

"Mr D'Aloia, as I have said in sentencing others of the offenders before me, Ecstasy is a mind altering drug which unhappily has been increasingly abused in our society over recent years. It is know to cause harm particularly to vulnerable and/or susceptible young person who are often engaged in poly-substance abuse. The level of harm which it is known to case can vary from those who lead feckless party lifestyles and remain awake for days on end, to darker effects where there have been recorded instances of death associated with Ecstasy use, particularly in combination with other substances. The harm which occurs can involve susceptible persons who may be dependent upon it or other substance being drawn into trafficking in the drug and this appears to have occurred in this case with the number of the offenders before the court who are lower than yourself in the hierarch of offending."

48 The thrust of Ground 12 is that the judge thereby improperly took into account the effects of MDMA, contrary to the rule laid down in Pidoto and O'Dea and Yacoub.

49 MDMA is by definition "a centrally active phenethylamine derivative related to amphetamine and methamphetamine, with central nervous system excitant and hallucinogenic properties".[11] Accordingly, before Pidoto and O'Dea and Yacoub, it was normally thought of as being appropriate for a sentencing judge to take into account that MDMA is a dangerous psychogenic substance of which the consumption may be productive of deleterious consequences for the individuals involved and for society in general. It was, for example, commonplace for this court to sentence offenders for trafficking in MDMA on the basis that it is a harmful and pernicious drug which is a danger to the health of young members of the community even when taken in small doses[12] and that involves substantial harm physically, psychologically and socially;[13] and that it brings about devastation in the community.[14]

50 That must now be read subject to Pidoto and O'Dea and Yacoub, and I would, for that reason, uphold Ground 12. But plainly there is no way in which the judge could have foreseen that possibility.

Ground 15

51 Under Ground 15 it is contended that the judge gave insufficient discount to reflect the applicant's plea of guilty.

52 I have dealt with that contention under the heading of Ground 1. For the reasons there given, I reject it.

Ground 17

53 The thrust of Ground 17 is that the judge erred in finding and sentencing the applicant on the basis that he was "at the top of the tree" as far as the ten offenders before the court were concerned. The argument centres on the fact that the applicant was charged on Count 4 in relation to only 9,500 ecstasy tablets whereas his co-accused, Duncan, was charged with having trafficked in 23,000 tablets. The burden of the argument is that Duncan should be regarded as at least equally culpable if not more culpable than the applicant.

54 The answer to that, in my view, is that the judge found as a fact that Duncan got the 23,000 tablets in which he dealt from the applicant and was therefore at a lower level of dealing than the applicant. It follows that, although he was charged with 23,000 tablets compared to the 9,500 tablets with which the applicant was charged, Duncan was less culpable than the applicant and deserving accordingly of a lesser sentence.

55 The applicant contends that so to reason was in effect to sentence the applicant on the basis of offences with which he was not charged. But I do not think that is so. The applicant was charged, convicted and sentenced on the basis of having trafficked in 9,500 tablets. Duncan was charged convicted and sentenced on the basis of having trafficked in 23,000 tablets. But Duncan received a lesser sentence in respect of 23,000 tablets than the applicant received in respect of 9,500 tablets because evidence admissible on Duncan's plea demonstrated that in relation to the 23,000 tablets with which he was charged he was operating at a significant lower level in the distribution chain than the applicant was operating in relation to the 9,500 with which he was charged. So to reason does not impute liability to the applicant for anything with which he was not charged. It simply recognises that compared to the applicant, Duncan was at a lower level in the chain.

Re-sentencing

56 If the sentencing discretion is re-opened, as I think to be the case, it will be necessary to re-sentence the applicant. All things, considered, however, I see no reason why he should not be re-sentenced on substantially the same terms as before. Apart from the judge's references to the effects of cannabis and MDMA, I am with respect in agreement with her Honour's analysis. And so far as the effects of cannabis and MDMA are concerned, the matter may still be approached on the basis that all of the drugs which are proscribed have deleterious consequences of anti-social proportions and that trafficking in any of them is therefore properly to be regarded as a serious criminal offence.[15] In effect that is the conclusion to which the judge came, albeit by another and now prohibited path of reasoning, and therefore it is appropriate that the result should be the same.

57 In the result, I would re-sentence the applicant on Count 1 to a term of imprisonment of five years, on Count 2 to a term of imprisonment of four years, on Count 3 to a term of imprisonment of eight months, and on Count 4 to a term of imprisonment of nine years. I would cumulate two years of the sentence imposed on

Count 1 and two years of the sentence imposed on Count 2 on the sentence imposed on Count 4 and on each other, thereby making for a total effective sentence of 13 years imprisonment and I would order that the applicant serve not less than nine years before being eligible for parole.

58 I agree that this appeal should be allowed and the applicant re-sentenced in the manner proposed and for the reasons advanced by Nettle, J.A.. in his judgment.

[1] R. v. Van Boxtel [2005] VSCA 175; (2005) 11 V.R. 258 at 266[29] et seq.

[2] [2004] VSCA 222 at [22].

[3] R. v. Pidoto and O'Dea [2006] VSCA 185.

[4] R. v. Yacoub [2006] VSCA 203.

[5] Which Mr Richter adopted on behalf of the applicant.

[6] Pidoto and O'Dea and Yacoub were both decided by five member courts.

[7] R. v. Pidoto and O'Dea [2006] VSCA 185 at [44]- [45].

[8] R. v. Natoli [2001] VSAC 243 at [9], applying R. v. Mantini [1998] 3 V.R. 340 at 346-348.

[9] Cf. R. v. Mantini supra at 349.

[10] R. v. Josefski [2005] VSCA 265 at [43].

[11] On-line Medical Dictionary, University of Newcastle upon Tyne http://cancerweb.ncl.ac.uk/omd/index.html

[12] R. v. Carey [1998] 4 V.R. 13 at 18 et seq. per Winneke, P.

[13] R. v. Duong [2005] VSCA 71 at [11], per Cummins, A.J.A.

[14] R. v. Tan [2005] VSCA 54; (2005) 152 A. Crim. R. 397 at 402[13], per Chernov, J.A.

[15] R. v. Pidoto and O'Dea [2006] VSCA 185 at [45].