R v Djukic [2001] VSCA 226

Court of Appeal (Vic)|2001-12-13|Before: BROOKING, PHILLIPS and VINCENT, JJ.A.

Criminal law - Sentence - Trafficking in drug of dependence (heroin) - Principle of parity - Mitigatory factors explain distinction between appellant and his co-offenders - Individual sentence manifestly excessive - Re-sentence - Total effective sentence not reduced - Wong v. R. [2001] HCA 64 - R. v. Tien & Ors. [1998] VSCA 6 - Lowe v. The Queen [1984] HCA 46; [1984] 154 C.L.R. 606.

The appellant pleaded guilty in the County Court at Melbourne on 10 November 2000 to a presentment containing three counts of trafficking in a drug of dependence (heroin) and one count of possession of a drug of dependence (cannabis). The heroin counts related to three separate transactions carried out on 16 March, 14 April and 23 April 1998 respectively and involved a total of 21.3 grams of material.

After hearing a plea in mitigation of penalty, the judge imposed a sentence of imprisonment for three years on each of the trafficking counts (counts 1, 2 and 3) and a sentence of three months' imprisonment on the possession count (count 4). As a consequence of orders for cumulation, a total effective sentence of four years' imprisonment was created with a non-parole period of 27 months.

A co-offender, Milos Momcilovic, who also came before his Honour but on a separate presentment, pleaded guilty to one count of trafficking, based upon his participation in continuous trafficking in a drug of dependence (heroin) between 3 April 1998 and 30 April 1998.[1] He was sentenced to imprisonment for three years with a non-parole period of 27 months.

A further co-offender, Zoran Ilic, on 25 February 1999 had pleaded guilty before a different judge to two counts of trafficking in heroin in respect of which he had been sentenced to imprisonment for periods of two years and five years respectively. The first of these counts related to a single transaction on 21 October

1997 involving the sale for $100 of .17 grams of heroin for which he was sentenced to imprisonment for two years. The second was based upon the conduct of the business of heroin trafficking, between 11 March 1998 and 30 April 1998, and involved 11 separate transactions and approximately 54.11 grams of the drug. For this offence a sentence of five years' imprisonment was imposed. As a consequence of an order for partial concurrency, he was sentenced to an effective term of five-and-a-half years' imprisonment in relation to which a non-parole period of four years' was fixed.

The appellant, having been granted leave pursuant to s.582 of the Crimes Act, seeks to overturn both the individual and effective sentences imposed upon him, relying upon 13 grounds, namely:

"1. The learned sentencing judge erred in failing to adequately and/or sufficiently apply principles of parity in that there is insufficient difference between the sentence imposed on the applicant and that imposed on Ilic. 2. The learned sentencing judge erred in concluding that co-accused Momcilovic was less criminally culpable than the applicant. The applicant's criminality and his circumstances required that a lesser sentence be imposed on him than that imposed on Momcilovic. 3. The learned sentencing judge erred in concluding that the applicant's counsel conceded that a term of imprisonment to be actually served was the appropriate sentence. Thus the learned sentencing judge failed to adequately consider other sentencing options. 4. The learned sentencing judge erred in sentencing the applicant on count 1 to three years' imprisonment, such sentence is manifestly excessive. 5. The learned sentencing judge erred in sentencing the applicant on count 2 to three years' imprisonment, such sentence is manifestly excessive. 6. The learned sentencing judge erred in sentencing the applicant on count 3 to three years' imprisonment, such sentence is manifestly excessive. 7. The learned sentencing judge erred in respect of counts 1, 2 and 3, in that he did not impose on each count a sentence appropriate to the individual count. 8. The learned sentencing judge erred in ordering cumulation of parts of the sentence imposed on counts 2 and 3 on the sentence imposed on count 1. 9. The learned sentencing judge erred in sentencing the applicant on count 4 to three months' imprisonment, such sentence is manifestly excessive. 10. The learned sentencing judge erred in respect of count 4 in that he imposed a sentence not open at law. 11. The learned sentencing judge erred in finding that the applicant generally had a role in the preparation of heroin for sale. 12. The learned sentencing judge erred in fixing a minimum term that is manifestly excessive. 13. The sentence is manifestly excessive."

On 30 June 1997, an investigation was commenced by members of the Victoria Police Drug Squad into the possible trafficking in heroin by Ilic, Momcilovic and the appellant.

On 21 October 1997, a covert police operative using the name "Jason King" commenced to purchase quantities of heroin from Ilic. Between that date and 30 April 1998, he obtained, in 12 transactions, 54.28 grams of material containing this substance, at a price of approximately $16,000. These transactions were the subject of the two counts upon which he was later sentenced.

The following relatively brief summary outlines the transactions involving the appellant.

On 16 March 1998, "Jason" attended at a service station in Dandenong Road, Dandenong. He there met Ilic who was in a vehicle with the appellant to whom he was introduced. "Jason" purchased a small plastic-wrapped block of a white powder substance for $100. The material, when later analyzed, was found to weigh .23 grams and contained heroin. (Count 1 - Djukic presentment.)

On 14 April 1998, "Jason" , as part of the police operation, again contacted Ilic who indicated preparedness to sell heroin to him. The appellant and Ilic were then observed to leave a factory occupied by the appellant in Dandenong and travel to premises in Larbert Road, Harrisfield at which Ilic and Momcilovic both resided at that time. A listening device, installed a week earlier in the unit that they occupied, enabled the recording of a conversation, conducted in both Serbian and English, regarding drugs. Noises consistent with the preparation and packaging of heroin were heard after which the men left in the appellant's Toyota vehicle. They travelled to Heatherton Road, Noble Park where Ilic was dropped off. Ilic met "Jason" as arranged outside a swimming centre a short distance away and sold him 7.04 grams of a white, hard, rock substance for $2000. Later analysis revealed the presence of heroin in this material. The appellant was observed by other police members as he drove around the immediate vicinity watching the progress of the transaction. He then collected Ilic and drove him back to the Larbert Road premises. (Count 2 - Djukic presentment.)

On 23 April, "Jason" again attended in Heatherton Road by arrangement with Ilic for the purpose of purchasing heroin. On this occasion, the appellant was observed by watching police as he left his factory in his Toyota vehicle with Ilic as passenger. They went to the Larbert Road unit and then to Heatherton Road in the vicinity of the meeting place. As on the earlier occasion, the appellant dropped off Ilic and then drove around the area, passing the meeting place and watching the progress of the transaction between "Jason" and Ilic. "Jason" handed $4,000 to Ilic from whom he received in return a clear plastic bag containing 14.03 grams of material containing heroin. (Count 3 - Djukic presentment).

Turning to the involvement of Momcilovic: on 3 April 1998, "Jason" met Ilic in Through Road, Harrisfield. They travelled together in "Jason's" vehicle to the Larbert Road premises at Ilic's instruction and parked in the driveway. "Jason" handed $2,000 to Ilic who then directed Momcilovic, who was crouched down nearby, to throw the purchased material to him. Ilic then handed a ball covered by grey masking tape to "Jason", the contents which, when analyzed, weighed 6.92 grams and contained heroin.

Momcilovic was sentenced on the basis that he assisted Ilic in the preparation of heroin for sale in the period between 3 April and 30 April 1998 in addition to his involvement in this transaction. As I have earlier mentioned, on 7 April 1998 a listening device was installed at the Larbert Road premises which remained operational until 30 April. During this period Ilic and Momcilovic were heard openly and on numerous occasions to discuss drug trafficking. Momcilovic's involvement was the subject of the single count previously mentioned.[2]

The three men were arrested during the evening of 30 April 1998.

A search was conducted at the appellant's home during which 2 grams of cannabis was located and seized. (Count 4 - Djukic presentment.)

In due course, as I have indicated[3]

, Ilic pleaded guilty to two counts of trafficking. Importantly for present purposes, the prosecutor advised the judge before whom Ilic appeared that the Crown accepted that he had operated under instructions received from and was subordinate to the appellant. His Honour, accordingly, identified the role of Ilic, in his sentencing remarks, as follows:

"The Crown does not put it that you were acting on your own account. Rather, it says, you were preparing the drug for ongoing sale, packing it and selling it on behalf of a principal, one Djukic, and that is accepted by your own counsel. Nevertheless, it is clear from the material that you had considerable authority to enter into transactions on your principal's behalf. It is also clear that the business in which you were so employed was a considerable business, as you must have known."

Subsequently, in a letter, dated 17 August 2000, sent to the Office of Public Prosecutions, the appellant conveyed the offer:

"The accused Djukic is, on an `without prejudice' basis prepared to plead guilty on the following bases. 1 That he is presented on 3 discrete counts of trafficking namely - (a) trafficking on 16 March 1998; (b) trafficking on 14 April 1998; (c) trafficking on 23 April 1998. 2. That the basis of each count be that he was assisting the co-accused Zoran Ilic on each of the three occasions. 3. That it will be conceded that Djukic played some role in the preparation of the substance ultimately sold on each of the second and third occasions. 4. That the three counts embody the totality of Djukic's criminality. In other words, that no `Giretti' type involvement will be suggested or alleged."

Notwithstanding the reversal of roles involved, and the obvious inconsistency between the position adopted by the Crown with respect to Ilic, and that proposed in the case of the appellant, this offer was accepted. The letter was tendered in the course of the plea hearing and the prosecution stated:

"the way the Crown puts it [is] that Momcilovic and Djukic are involved and assisting Ilic, as I have outlined to Your Honour in these transactions that he was conducting."

The explanation proffered to this Court, that is, that a different view of the situation must have been formed by the prosecutor who dealt with the cases of Momcilovic and Djukic to that adopted by the prosecutor who dealt with that of Ilic, is in my opinion, quite unsatisfactory. I should add that the change in position was not the subject of any discussion before or comment by the judge who imposed the sentences presently under consideration.

Although a number of grounds of appeal have been advanced, at heart they raise two contentions. First, it is claimed that the sentencing judge failed to discriminate in a proper fashion between the role and culpability of the appellant and his co-offenders and second, and to some extent in consequence, that the individual and effective sentences imposed upon him were manifestly excessive.

This ground raises each of these claims. Ilic, it was pointed out had received a sentence of two years' imprisonment for the first trafficking of heroin in October 1997, whilst the appellant was sentenced to three years imprisonment for his part in the sale of only a slightly larger quantity for the same purchase price, a few months later. There was a manifest disparity between these sentences for which no reasonable explanation could be seen, counsel for the appellant contended. Each of the offenders concerned had been sentenced for his involvement in a discrete transaction and on the basis that he had been assisting the other. At worst, Djukic should have received no greater penalty than Ilic for what, it was argued, must be regarded as an almost identical criminal act performed in almost identical circumstances.

On the curious and unreal foundation that Djukic must, for present purposes, be regarded as the underling of Ilic whose sentence constitutes the touchstone[4] against which his sentence falls to be considered and who was, in turn, sentenced on the foundation that he was the underling of Djukic, this submission clearly possesses considerable force.

The concept of parity of treatment is fundamental to our notions of justice and is integral to both the procedures and substance of our legal system. It is regarded as inherently unjust to discriminate, in the sentences imposed upon them, between equally culpable and otherwise equally positioned co-offenders. It is also accepted that there is no justice in the imposition of the same penalty upon persons who are not equal in these senses.

"Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect."[5]

These propositions, so expressed are simple and straightforward. However, in practice it is often difficult to identify the relevant similarities or differences. Seldom, I suggest, would co-offenders be identically positioned in every respect. There will almost always be aggravating and mitigatory factors singular to one or another of them, to which attention can be drawn and often it will simply not be possible to make fine distinctions between them. In the present case, for instance, and I will return to this matter, an argument was advanced on behalf of the appellant that a person who was at the relevant time subject to a suspended sentence for trafficking should be more harshly regarded than one who had two prior convictions for the same offence. What might be described as "line ball" distinctions of this kind cannot be sensibly used to differentiate between co-offenders.

It must not be forgotten that the principle of equal treatment which involves consideration of the need for disparity in result is being considered in the context of the sentencing process. Obviously, where there is manifest and inadequately explained disparity, the inference that there has been unequal treatment may be relatively easily drawn.

"Although it is no doubt convenient as a matter of shorthand expression to refer to `the principle of parity', the concept is not to be likened to a principle of physics or mathematics which is necessarily to be applied, or necessarily to be withheld from application, in a particular case. As I understand it the concept simply is that, when two or more co-offenders are to be sentenced, any significant disparity in their sentences should be capable of a rational explanation. In the absence of such an explanation a more lenient sentence imposed on one of them will be likely to engender a justifiable sense of grievance in the other or others, and a justified sense of grievance is inconsistent with a fair system of justice."[6]

The situation becomes more difficult where, as in the present case, the sentencing of the various offenders is undertaken by more than one judge. Often very different images will be presented of the circumstances of the offence concerned and the respective levels of culpability of the various offenders. Sometimes this will occur, as here, with the agreement of the prosecution. This creates a serious problem and introduces a sense of unreality into the process. It is, for more than one reason, highly desirable that, where possible, the sentencing of co-offenders should occur at the same time and be carried out by the same judge in order to avoid the situation that has arisen in this case.

Mason, J. stated with respect to the role of the Court of Appeal in circumstances where sentences were imposed by different judges:

"This brief review of the authorities raises two questions. The first is: is discrepancy a ground for intervention in itself or is it merely indicative of undisclosed error in the sentencing process? Logic and reality combine to compel an answer in favour of the first alternative. The undisclosed error, as we have seen, may have occurred in the sentencing process as it affected the co-offender. The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander. What I have already said provides an answer to the second question: what is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate."[7]

I must confess to the possession of serious doubt concerning the notion that the "impassive representative of the community, the objective bystander" would perceive greater injustice in the imposition of two or more inadequate sentences in order to maintain parity of treatment of the offenders involved, than that created by the acceptance of a measure of disparity to avoid the handing down of an inadequate sentence on one of them. The fairness and justice of such a result would, I suspect, be more easily perceived and accepted by its beneficiaries than by those who were the victims of the offence or offences concerned. I also query the idea that a person, appropriately sentenced, would be entitled to a justifiable sense of grievance because he had not received an inadequate sentence in such circumstances.

Be that as it may, there is, in my opinion, no rational basis in the material before the Court for the imposition of a different sentence upon the appellant for his involvement in the transaction on 16 March 1998 to that given to Ilic for his role in the 12 October 1997 transaction. I would allow the appeal against the sentence imposed upon the appellant in relation to this count.

The second limb of the argument with respect to ground 1 rested upon what was argued to be inadequate disparity between the total effective sentence imposed on Ilic and the appellant and raised a number of different considerations.

In support of this claim, reliance was placed on the fact, inter alia, that the second count to which Ilic pleaded guilty was based upon a continuous period of drug trafficking and involved 11 separate transactions.

A considerable measure of unreality exists in attempting to apply notions of parity of treatment to support the argument that there should have been greater disparity, between the appellant and Ilic, on this basis. Not only was Ilic sentenced on the foundation that he was the underling of Djukic, it was also accepted by the sentencing judge that he was a drug addicted person who had become so involved in order to support his habit. There was no explanation offered as to the circumstances under which Djukic became implicated or as to the character of his relationship with Ilic. The two men were sentenced for different offences and on the basis of different factual circumstances.

In the present case there were other obvious differences between Ilic and the appellant, which were reflected in the different sentences imposed upon them. Even as the supposed underling of Djukic, Ilic was still sentenced to a significantly greater term and on the foundation of more substantial involvement in drug trafficking. For this conduct a sentence of five years' was imposed which, with an order for the cumulation of six months of the sentence imposed on the first count, created an effective head sentence of five-and-a-half years. On the other hand, the effective head sentence imposed on Djukic was significantly less, reflecting his accepted lesser involvement. Similarly a substantial degree of disparity can be seen in the minimum terms fixed. The degree of disparity reflected in the effective sentences imposed upon them is not only capable of rational explanation but could not, in my view, provide the foundation for a justifiable sense of grievance in the appellant.

Reliance was also placed on the fact that Ilic was at the time of his offending subject to a suspended sentence for trafficking in heroin. Counsel for the appellant contended that Ilic's situation and outcome had to be compared with that of his client who should have been more favourably regarded by the sentencing judge as he was not subject to a sentencing order at the time the offences were committed, although it was conceded that the appellant had been twice before convicted of heroin trafficking.

This contention lacks force in my opinion. As I indicated in the course of discussion with counsel, it makes little sense to attempt to place into some hierarchy of seriousness two prior convictions within the relatively recent past on the one hand, and a then current suspended sentence on the other. Even if it were possible to distinguish between them on the basis of some moral or legal precept, it is difficult to see how any such distinction could result in the need to impose different sentences upon the respective offenders in the circumstances.

This ground involved a comparison between the effective sentence of four years imposed upon the appellant for his offences and the period of three years imposed upon the co-offender Momcilovic for his participation in an ongoing fashion for a period of approximately one month. There was insufficient distinction drawn between these two offenders in terms of their respective levels of criminality, counsel argued, and therefore the individual sentences and the total effective sentence imposed upon the appellant could be seen to be not only manifestly excessive but to breach the principles of parity applicable in the circumstances. The proper application of those principles, it was said, necessitated the imposition of a lesser sentence upon the applicant than that given to Momcilovic or at least a sentence of no greater length.

In my view this ground lacks substance. The respective situations of these two offenders differed in a number of significant respects. These differences included evidence that Momcilovic functioned intellectually at a borderline level and that he became involved in the drug trafficking activity by reason of a long-standing problem of alcohol abuse and gambling. The sentencing judge accepted that in the period following the commission of his offence he had returned to his parents' home in Alexandra where he assisted in the family business and had made serious endeavours to reconstruct his life. The sister of Momcilovic expressed the opinion, which his Honour appeared to accept, that he was unlikely to re-offend. There was in that situation perceived to be some basis for hope with respect to his eventual rehabilitation. Apart from the assertion that he was assisting Ilic, there was virtually nothing put forward to explain the circumstances under which the appellant became involved or which might be perceived as mitigatory of his level of culpability. It was clearly open to the sentencing judge to reflect these differences in the sentences imposed in the manner and to the extent that he did.

This ground also lacks substance. Whilst it is true that his Honour incorrectly referred in his sentencing remarks to a concession by counsel for the appellant that a term of imprisonment actually served was the only appropriate sentence in the circumstances, it is evident from the transcript of the plea that he understood at the time that the submission was made and considered by him, that the imposition of a suspended sentence or an intensive correction order was being sought. The judge made it quite clear at that stage that he did not regard either of those dispositions as appropriate and, in my view, quite properly rejected the submission. His later incorrect statement of what had occurred did not alter that situation nor could it reasonably be perceived as possibly leading him into error.

Save with respect to the sentence imposed upon the appellant on count 1 which has already been addressed, these grounds also must fail in my view. Counts 2 and 3 did involve different quantities of material but it does not follow as a matter of course that different sentences should have been imposed in consequence. Recognizing that, as a general proposition, sentencing in drug trafficking cases does require consideration of the amounts of material trafficked, there is no mathematical adjustment of the sentences according to the quantity of drug trafficked.[8] Of course, Parliament has established different sentencing frameworks based on the quantities of the various drugs involved, but that is a different matter.

In the present case, each of the sentences imposed upon the appellant for counts 2 and 3 fell within the range of those available to his Honour. No error can be perceived simply because there were different quantities of heroin trafficked.

His Honour did impose sentences which were substantially concurrent, reflecting the fact that the offences were linked in time and circumstances but the effective sentence also reflected, as it properly should, the fact that more than one discrete criminal act was involved and that they did not occur in the course of, and as part of a single transaction. Indeed, the appellant in the letter sent on his behalf was concerned to emphasize this point. I am unable to detect any error in the manner in which this aspect was approached by the sentencing judge. This ground must fail.

No reference appears to have been made in the course of the plea to the circumstances surrounding the possession by the appellant of the very small quantity of cannabis located in his possession, nor was any attention given to the provisions of s.73(1) of the Drugs, Poisons and Controlled Substances Act.[9] It was never suggested that his Honour should address the question raised by section 73(1) whether he was satisfied on the balance of probabilities that the applicant's possession was not for any purpose related to trafficking in this material. There was simply no evidence before the judge other than the very small quantity located that bore upon this question. I do not consider in that situation that it has been demonstrated that he fell into error in not making the finding that was never requested but which it is now asserted should have been reached. Section 73(1) has no application in the circumstances and ground 10 must fail. Nevertheless, I am of the view that a sentence of three months' imprisonment for the mere, although unexplained, possession of a very small quantity of this material was manifestly excessive.

No reliance was placed upon these grounds which need not be further addressed.

Although, as I have indicated when dealing with grounds 1, 4 and 9, in my view, his Honour fell into error with respect to the sentences imposed on counts 1 and 4, I do not consider that the effective sentence imposed upon the appellant could be described as manifestly excessive in the circumstances. In other words, I am not persuaded that the effective sentence imposed was outside the range properly available to his Honour. Nor is it my view that his Honour can be perceived as having fallen into error in fixing the non-parole period that he did.

It follows from what I have said that I am of the view that the appeal against the sentence imposed on count 1 should be allowed and that in lieu of the sentence of imprisonment for three years, a sentence of two years' imprisonment should be substituted. I would also allow the appeal against the sentence imposed on count 4 and substitute a period of 14 days' imprisonment for the period of three months ordered in the court below.

In that situation, I would also vary the orders for cumulation and direct that six months of the sentences imposed on counts 1 and 3 be served cumulatively upon the sentence imposed on count 2 and upon each other. The sentence imposed on count 4 would be served concurrently with the sentence on count 2. In other words, the effective total sentence would remain unchanged as would the non-parole period fixed.

[1] See The Queen v. Giretti (1986) 24 A. Crim. R. 112.

4] See R. v. Ritter [2000] VSCA 135 at para 22 per Phillips, J.A.

[5] Wong v. R. [2001] HCA 64 per Gaudron, Gummow and Hayne, JJ. at para. 65.

[6] R v. Tien & Ors. [1998] VSCA 6, at paragraphs 39, 40.

[7] Lowe v. The Queen [1984] HCA 46; [1984] 154 C.L.R. 606 at 613-4.

[8] See Wong v. R. supra at paras 67 et seq per Gaudron, Gummow and Hayne, JJ.

[9] 73(1) A person who without being authorized by or licensed under this Act or the regulations to do so has or attempts to have in his possession a drug of dependence is guilty of an indictable offence and liable -

(a) where the court is satisfied on the balance of probabilities that -

(i) the offence was committed in relation to a quantity of cannabis or tetrahydrocannabinol that is not more than the small quantity applicable to cannabis or tetrahydrocannabinol;

(ii) the offence was not committed for any purpose related to trafficking in cannabis or tetrahydrocannabinol -

(b) subject to paragraph (a), where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in that drug of dependence - to a penalty of not more than 30 penalty units or to level 8 imprisonment (1 year maximum) or to both that penalty and imprisonment; or

(c) in any other case - to a penalty of not more than 400 penalty units or to level 6 imprisonment (5 years maximum) or to both that penalty and imprisonment.

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