R v Doble [2007] VSCA 47

1 I have had the considerable advantage of reading in draft the reasons for judgment of Eames JA. For the reasons given by his Honour, I too would refuse the application for leave to appeal.

2 The applicant applies for leave to appeal against sentence imposed by a judge of the County Court on 2 March 2006. The applicant was one of some 16 members of a major drug syndicate controlled by one Dominic Parisi, all of whom pleaded guilty and were sentenced by the same judge, in a series of hearings. Before setting out the details of Doble's offences and sentence it is appropriate to summarise the nature of the evidence concerning the drug ring and the applicant's involvement.

3 A covert investigation by police led to the identification of the applicant as a person who obtained heroin and methylamphetamine from Parisi which was then onsold. There was a large number of telephone interceptions which produced substantial evidence against the applicant who during the time of the offences was running a used car business.

4 The applicant became involved in the drug syndicate through a friend, one Mike Harper, who was subsequently charged with and pleaded guilty to drug offences.

5 Harper had injured himself and was in hospital when the applicant took over Harper's drug trafficking business in order - as the judge accepted - to help out Harper during the time of his convalescence. His Honour found that after initially trafficking on Harper's behalf, the applicant "began to traffic to a limited degree on your own account." His Honour summarised the evidence from the telephone intercepts, in which the applicant held discussions with Parisi about the raising of large sums of money to pay for drug deals. The applicant offered to put up cash for such deals. Telephone intercepts also disclosed the applicant exchanging telephone calls with Harper and Parisi arranging for the purchase of methylamphetamine. The quantity of drugs involved was difficult for his Honour to determine but he concluded as follows:

"By and large the amounts that seem to have been discussed with Parisi and other associates are seven to 14 grams of methylamphetamine. Often the price of $2000 to $3000 is mentioned. On 21 July 2003 there is a conversation between you and Parisi about cocaine. In the course of that conversation you tell Parisi that you, 'bought a big one', that is one ounce, 'on Friday for 7000; it's nearly all gone'. The Crown submits in terms of the evidence to be led in relation to that count, possess cocaine, that I should conclude that your purpose of possession was one of trafficking.

You were subsequently arrested on 13 August 2003 and found to be in possession of a small bag that contained the residue of ecstasy, being Count 4, a foil containing .01 grams of amphetamine, Count 5, and, when your car was searched, a further bag containing 1.8 grams of cocaine was found. You told the police that the amphetamine found was for your own personal use. On 30 May 2003, in a conversation after Harper had ordered methylamphetamine, he also ordered heroin, and following those conversations an arrangement was made for you to pick up the order together with, it seems, seven grams of heroin. There were further calls between you and Parisi and Harper to indicate that you met Parisi and did pick up the methylamphetamine and heroin."

6 Harper pleaded guilty to one count of trafficking in a drug of dependence and four other similar counts. In addition, he pleaded guilty to two counts of handling stolen goods. The Crown submitted that the role played by the applicant was "a little below that of Harper". Harper had already been sentenced by his Honour when he came to sentence the applicant. Harper had been sentenced to a total effective sentence of four years six months' imprisonment with a minimum term of two years and six months.

7 The applicant pleaded guilty to the following offences under s 71AC and s 73 of the Drugs, Poisons and Controlled Substances Act 1981, and was sentenced as follows:

Count 1 Trafficking in a drug of dependence (methylamphetamine) - for which there is a maximum penalty of 15 years' imprisonment - three years' imprisonment.

Count 2 Trafficking in a drug of dependence (heroin) - which carried a 15 year maximum sentence - 18 months' imprisonment.

Count 3 Possession of a drug of dependence (cocaine) - which carried a maximum of five years' imprisonment - one year's imprisonment.

Count 4 Possession of a drug of dependence (ecstasy) - which carried a maximum of one year's imprisonment - one month's imprisonment.

Count 5 Possession of a drug of dependence (amphetamine) - which carried a maximum imprisonment of one year - one month's imprisonment.

Eight months of the sentence on count 2 and six months of the sentence on count 3 were ordered to be served cumulatively with the sentence on count 1, and with each other. The total effective sentence was four years and two months' imprisonment and the learned sentencing judge fixed a non-parole period of 25 months' imprisonment. He declared 134 days' pre-sentence detention.

8 The applicant seeks leave to appeal on four grounds, as follows:

"Ground 1: The individual sentences, the orders for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive.

Ground 2: The sentence on count 3 and the order for cumulation of the sentence on that count are inconsistent with the sentences imposed upon the other counts.

Ground 3: The learned judge erred:

• (a) in sentencing on count 3 on the basis that the applicant had the cocaine in his possession for a purpose of or related to trafficking;

• (b) in failing to sentence on the basis simply that, absent satisfaction that the possession was not for a purpose of or related to trafficking, the lower maximum penalty for possession did not apply.

Ground 4: The sentences imposed on the applicant infringe the principles relating to parity among co-offenders."

9 It is convenient to deal first with ground 3.

Ground 3

10 Count 3 related to possession of cocaine. Mr Croucher submitted that the sentence imposed on count 3 was imposed on an erroneous basis, it being assumed not only by the judge but also by both counsel for the applicant and by the prosecutor, that it had been positively established that the applicant possessed the cocaine for trafficking.

11 The maximum penalty for possession of this drug of dependence is subject to the terms of s 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981, which reads:

"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 that is not more than the small quantity applicable to cannabis;

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

to a penalty of not more than 5 penalty units;

(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 imprisonment for a term of not more than one year 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 imprisonment for a term of not more than five years or to both that penalty and imprisonment."

12 At the outset of submissions on the plea the effect of that sub-section was discussed between the judge and counsel. As is apparent from the discussion, the terms of the sub-section were known to this very experienced judge.

13 It is clear from the transcript of the submissions on the plea that it was understood on both sides that the applicant was not contending that he could satisfy the judge on the balance of probabilities that the offence was not committed for any purpose relating to trafficking. Notwithstanding that, counsel argued that some at least of the 28 grams of cocaine which was involved under this count was for personal use. The Prosecution did not concede that the applicant was a user of cocaine, at all.

14 In the course of submissions the prosecutor submitted that it was clear that the applicant had trafficked the cocaine, rather than used it personally. His Honour said that "you don't have to prove that". That comment followed discussion in which the judge said that "the Act says unless you can show it is for your own use, that [trafficking] is reckoned to be the primary purpose ... that you've got it for a purpose relating to trafficking and the criminality is about having that quantity of drug for the purpose of trafficking, isn't it? It doesn't matter whether there is evidence he sold it or otherwise".

15 In his reasons for sentence, his Honour said this:

"The Crown submits that you were a mid to high level methylamphetamine trafficker. They do so by reason of the frequency of the calls and the content of the various conversations relating to quantity and price. In relation to the amount of heroin trafficked, it is hard to estimate because there are only small references to heroin, including an order for seven grams. Again, in respect of you having in your possession cocaine for a purpose relating to trafficking, [counsel] urged upon me to conclude that it was used in a circle of friends that you mixed with, that is that they indulged in cocaine and that it was for your own use. The Crown submits that there is no evidence of you using cocaine, however, again the amount of cocaine is perhaps of a limited quantity, something like an ounce to purchase for $7000, as the evidence would disclose." [my emphasis]

16 In R v Wylie[1] the Court held that a sentencing judge's failure to find on the balance of probabilities that the possession of a drug was not for a purpose relating to trafficking would not amount to a positive finding that it was in the offender's possession for the purpose of trafficking. Were the judge to sentence the offender on that basis then, by virtue of the definition of "traffick", under s 70(1), that would be to sentence him for trafficking a drug of dependence, a more serious offence, and one with which he was not charged. That would constitute sentencing error[2]. On the other hand, as Tadgell, J. held[3], if the evidence proved to the judge beyond reasonable doubt that the offender had the drug in his possession for a purpose "relating to trafficking", rather than solely for personal use, the judge could regard that as an aggravating factor (if proved beyond reasonable doubt), but if the purpose relating to trafficking actually amounted to trafficking then the judge could not increase the sentence on that basis as to do so would be to sentence him for the more serious offence[4].

17 As Tadgell, J. held[5], during submissions on a plea of guilty facts are sometimes admitted directly or by implication, the critical factor being that the judge could not sentence the offender as though he had committed an offence for which he was not charged.

18 Mr Croucher submitted that, both in the above passage in his Honour's sentencing remarks and in the passage, above, from the discussions on the plea, his Honour demonstrated that, in breach of the principle stated in Wylie, he was sentencing the applicant, in effect, for the more serious offence of trafficking cocaine.

19 In my opinion, counsel and the judge did not fall into the error identified by Mr Croucher. It is usually inappropriate to point to a passage from submissions on a plea as reflecting sentencing error or as disclosing a concluded view of a judge. Quite apart from the fact that a judge during a plea is often expressing merely tentative views or is simply testing propositions, the discussion might involve a good deal of "shorthand" in the articulation of principles and in the language used by the judge and counsel. This was such a case.

20 The prosecutor drew a clear distinction between "the trafficking of heroin and methylamphetamine", on the one hand, and, on the other hand, "possession of cocaine, which the prosecution says was for the purpose of trafficking". In using the latter expression the prosecutor was adopting the shorthand of describing the cocaine offence as being one on which the applicant could not discharge the onus under s 73(1)(b). Defence counsel did not seek to argue that the drug was not in possession for a purpose relating to trafficking, but contended that personal use was the primary purpose. Counsel submitted that:

"It was in his possession for the purpose of trafficking in that people within his social circle who used cocaine, yes, you want a gram, well give me a 28th of what I paid for it type, thing, so in that sense he's trafficking in the cocaine, your Honour."

21 Later the prosecutor said "I understand my learned friend concedes it was for the purposes of trafficking". Defence counsel subsequently confirmed that he did concede that "it was in his possession for the purposes of trafficking, to some extent. He was a user, but he didn't use it all, obviously".

22 It was at a later point in the submissions when his Honour made the comments earlier quoted, that "the Act says that unless you can show its for your own use, that [trafficking] is reckoned to be the primary purpose . . . that you've got it for a purpose relating to trafficking and the criminality is about having that quantity of drug for the purpose of trafficking isn't it? It doesn't matter whether there is evidence he sold it or otherwise". Taken against the background of the earlier discussion it is clear, in my opinion, that on all sides it was understood that the applicant was not being sentenced as a trafficker of cocaine but, at the highest, merely as someone who held the drugs in his possession for a purpose relating to trafficking, rather than merely for personal use, a proposition which had been conceded by defence counsel.

23 The passage in his Honour's sentencing remarks referred to in [15] above was followed by a concluding paragraph in which, as Mr Croucher concedes, his Honour correctly applied s 73(1)(c), as explained in Wylie:

"In the circumstances, I am not satisfied that your possession was not for a purpose relating to trafficking pursuant to section 73(1)(b)(c) of the Drugs Poisons and Controlled Substances Act. I have of course taken into account, when sentencing Harper, his intention to plead guilty at a much earlier time, and that sentencing discount cannot be extended to you to the same extent as to Harper. I have also taken into account the question of parity between you and the other co-accused who have pleaded guilty. I have also noted and examined the evidence according to the Crown concession, that your role was less than Harpers." [my emphasis]

24 The sentence which his Honour imposed, of twelve months' imprisonment, in itself reflects the fact that his Honour could not have sentenced the applicant on the basis that he was trafficking the cocaine. Furthermore, even though it was open to his Honour to have found beyond reasonable doubt, as a positive and aggravating fact, that the cocaine was in the applicant's possession for a purpose relating to trafficking, I am not persuaded that he did in fact make a finding that he was satisfied that there was a circumstance of aggravation, namely, possession for a purpose relating to trafficking.

25 In my opinion, in using the expression "in respect of you having in your possession cocaine for a purpose relating to trafficking" in his sentencing remarks, as set out in paragraph [15], above, his Honour was merely setting out the contentions of the prosecutor. His Honour did not say he made such a finding, and the sentence imposed does not suggest that he did. However, even if I were wrong about whether that finding was made, then there was ample evidence which would have supported it (not least, the concessions by the applicant's counsel during the plea). So long as it was properly treated only as a circumstance of aggravation of the count of possession and did not result in a heavier sentence being imposed on the basis that he had actually committed the offence of trafficking, then no error would have occurred. The sentence does not indicate that any such error occurred.

26 This ground of appeal is not made out.

Grounds 1 and 2

27 The applicant admitted six prior convictions from three court appearances between 16 August 1978 and 19 October 1992. When sentenced, the applicant was aged 47 years. His prior convictions included three offences of dishonesty and counts each of cultivate, possess and use cannabis. Those cannabis offences resulted in a bond for a period of 12 months which was imposed in April 1991. The most recent of the prior convictions were two counts of obtaining property by deception, for which he was sentenced to a total effective sentence of four months' imprisonment, wholly suspended for a period of 12 months and he was also released on a community based order for 12 months.

28 At the time of the offences, the applicant was living with his wife. His Honour accepted that he was a user of cocaine, and had been for a number of years. Since his arrest, he had ceased use of cocaine. The applicant had interceded with Parisi on behalf of Harper because Harper owed money to Parisi. Parisi gave Harper time to pay the debts as a result of this intervention. Upon Harper being injured, the applicant then took his part in dealing with drugs, through Parisi.

29 The applicant had commenced work at the age of 15 and from the age of 22 had worked in the motor industry as a salesman and manager and had then developed a clothing business in Queensland which failed after the death of his business partner, and he returned to Melbourne. A number of character references were tendered on behalf of the applicant.

30 Mr Croucher submitted that the sentences on the individual counts and in the orders for cumulation were manifestly excessive. He submitted that 18 months' imprisonment on count 2 - which he submitted involved the applicant "simply picking up seven grams of heroin from Mr Harper" - was excessive, as was the sentence of 12 months' imprisonment on count 3 for possession of seven grams of cocaine. The sentences on count 4 and 5 were also said to be excessive, on the basis that the quantities of drugs involved were so small that a sentence of imprisonment was inappropriate in either case.

31 Counsel submitted that the sentences reflected inadequate weight having been given to the circumstances in which the applicant came to offend, his pleas of guilty, the loss of his business after his arrest, his role in the offending, his limited criminal history, his otherwise good character, his prospects of rehabilitation and his good work history.

32 Mr Croucher submitted that trafficking in methylamphetamine did not merit a sentence of three years' imprisonment on count 1, the most severe of all of the sentences. In my view, even allowing for all of the mitigating factors, the sentence on count 1 was well within range. Furthermore, I am not persuaded that any of the other sentences imposed were manifestly excessive, nor was the order as to cumulation inappropriate. Indeed, given the nature of the offending I consider that the sentences were, in fact, lenient.

Ground 4 - Parity

33 Mr Croucher sought to substantiate this ground by comparing and contrasting the sentences imposed on Doble with those imposed, for particular offences, on other offenders. For example, he compared Doble's sentence of 12 months' imprisonment on count 3 (for possession of cocaine) with the sentence imposed on Harper by his count 4 (of trafficking in ecstasy) for which Harper was sentenced to 12 months' imprisonment. Mr Croucher submitted that on its face there is disparity, in that a trafficking offender received the same sentence as a person convicted for the mere possession of cocaine. Furthermore, the quantity of cocaine was only seven grams, whereas Harper trafficked in 70 ecstasy tablets.

34 Similar submissions were made about the comparison between Harper's sentence of two years' imprisonment on count 1 (with respect to trafficking 320 grams of methylamphetamine) and Doble's sentence of three years' imprisonment on count 1 (for trafficking in methylamphetamine).

35 Again, complaint is made that Harper was sentenced to "only" three years' imprisonment for the sale of 400 grams of heroin whereas the applicant was sentenced to 18 months' imprisonment on count two, which involved seven grams of heroin, and to three years' imprisonment on count 1 for what counsel said was "an indeterminate amount of methylamphetamine and a lesser role". (I note that his Honour ordered that one year of Harper's sentence on count 1 be served cumulatively with his sentence of three years' imprisonment on count 2, for trafficking in 400 grams of heroin).

36 Furthermore, Mr Croucher compared Harper's sentence of 12 months' imprisonment on each of his counts 3 and 4, which involved the sale of 30 grams of amphetamines and 70 ecstasy tablets, with the applicant's sentence of 1 month's imprisonment for possession of seven grams of cocaine.

37 In my view this is a completely unrealistic approach to the issue of parity. In the first place, a simple comparison of one of a number of counts on one person's presentment (and the sentence imposed for that count) with an "equivalent" count and sentence relating to another person on a separate presentment, provides no indication of the nature of the overall criminality or the criminality of the particular count as it may have been perceived by the sentencing judge. By way of example, the applicant's offence under count 3, of possession of cocaine, was the subject of the following summary by the prosecutor, based on the telephone intercepts:

" . . . Doble tells Parisi that he'd appreciate if he could get the licence number and asks Parisi how much of that white stuff, referring to cocaine, he has. Parisi states that he has seven or eight for sure, maybe nine. Doble asks how much Parisi wants for it. Parisi tells Doble that he'll see what it costs him and work it out and let him know when he calls him. Doble tells Parisi that he's been buying it from Williamstown and he's been paying seven for an O, that is an ounce. Parisi states 700 for an O. Doble states no, seven grand. Parisi tells Doble that the one he's got cost him seven and a half for an O, that is seven and a half thousand for an ounce. Doble tells Parisi that if it's as good as Parisi says it is, then it's better than what Doble has, but Doble says that what he's got is absolutely the best."

38 Furthermore, as his Honour made clear in his sentencing remarks with respect to Harper, he was extending particular leniency to Harper because at the age of 32 he had no prior convictions, had pleaded guilty at an early stage, was heavily addicted to amphetamines and was trafficking solely to keep his own habit going. In addition, his Honour accepted that Harper's addiction had been so severe as to cause "mental disturbance", and to require treatment. It is unrealistic to isolate the sentence for one offence out of a range of offences relating to one offender and to then seek to compare it with one sentence imposed on a co-offender for a similar offence, out of a range of sentences imposed on that offender. All sentences arose out of different facts, even if they were similar, and even if the offenders were engaged in the same drug ring. This approach effectively ignores the fact that different head sentences and non-parole periods were imposed, and ignores the differences between the offenders and their offences.

39 Mr Croucher next compared the sentencing for Daniel Smith on his count 2 (a count of trafficking heroin), for which he was sentenced to 12 months' imprisonment, with the sentence of 12 months' imprisonment, for possession of cocaine, which was count 3 on the applicant's presentment. Once again, a simplistic comparison between the sentences provides no assistance in comparing the two offenders. Smith was found by his Honour to be the driver for Parisi, and he was also convicted on count 1 of trafficking in a commercial quantity of methylamphetamine. His Honour, however, found many factors in his favour. He was aged only 25, had one prior appearance only in a court, which his Honour described as being of little relevance, and which did not result in a conviction. He was a habitual user of amphetamines and was directly controlled by Parisi. His Honour found that he got little out of the offending apart from financing his own addiction. He found it was impossible to ascertain how much heroin was trafficked to which count 2 related. He concluded that Smith was well on the road to rehabilitation and that pathology reports indicated that he had used no drugs since his release on bail. All of those factors were highly pertinent to a discrimination in sentencing between the applicant and Smith. In addition, his Honour said he was granting all offenders who pleaded guilty at an early stage a "substantial sentencing discount". That did not apply to the applicant.

40 Continuing these comparisons, Mr Croucher submitted that the offender David King, who pleaded guilty to trafficking heroin (being 350 grams), was sentenced to two years' imprisonment, whereas Doble was sentenced to three years' imprisonment on count 1 for trafficking methylamphetamine. King, Mr Croucher pointed out, had three prior convictions for trafficking.

41 King, however, was sentenced to a total effective sentence of nine years and four months with a non-parole period of seven years and two months. Among the range of offences dealt with were 15 counts of trafficking and one count of trafficking in a commercial quantity of methylamphetamine, and he had an extensive criminal history. It is, in my view, meaningless to simply extract one of those counts and to attempt to make a direct comparison between the two year sentence on one count for King with a three year sentence on one count for Doble.

42 Likewise, a comparison between the sentence of Parisi and the applicant is equally unhelpful. Parisi was sentenced to a total effective sentence of 15 years and six months' imprisonment with a non-parole period of 11 years. He pleaded guilty to one count of trafficking in a large commercial quantity and eight counts of trafficking. Mr Croucher highlighted count 6 for Parisi, a count of possessing cocaine for which he was sentenced to 12 months' imprisonment, the same as Doble for possession of cocaine. On counts 2 and 3 Parisi was sentenced for trafficking heroin and cannabis respectively for which he was sentenced to two years' imprisonment whereas Doble was sentenced to three years' imprisonment for trafficking methylamphetamine. His Honour accepted that notwithstanding that he was the main figure in the enterprise, Parisi had offered to plead guilty at a very early stage.

43 Once again, the approach adopted in arguing disparity as between Parisi and the applicant simply fails to have regard to the many distinguishing factors which applied in their sentencing exercises.

44 These are only some of the offenders dealt with by his Honour. Mr Croucher did not refer us to the sentences or the sentencing remarks relating to the other offenders, so it may be assumed that the instances addressed above were the cases deemed the most appropriate comparators for the argument as to disparity.

45 As an examination of each of the sentencing remarks in the above cases reveals, his Honour, who was the sentencing judge for every one of the offenders related to the Parisi syndicate, brought to each sentencing exercise a comprehensive awareness of the totality of the offending conduct undertaken by players either on the periphery or at the centre of the trafficking operations. His Honour also displayed a very keen understanding of the principles of parity and the necessity to carefully weigh the situations of each offender against that principle.

46 In my opinion, in no instance would the sentences imposed on other offenders have led an objective bystander to conclude that justice had not been done to the applicant, nor would they generate in the applicant a justifiable sense of grievance[6], once the differences in the respective cases were appreciated.

47 This ground fails.

48 The application for leave to appeal against sentence should be dismissed.

49 I have had the opportunity to read in draft the reasons of Eames JA. I gratefully adopt his analysis of the background facts and the issues raised on this appeal.

50 I agree with Eames JA that it is clear from all the circumstances, that in sentencing the applicant on Count 3, a charge of possession of cocaine, the learned sentencing judge sentenced him not as a trafficker of cocaine, but at the highest as someone who held the drugs in his possession for a purpose related to trafficking. That circumstance was conceded by counsel who appeared for the applicant before the sentencing judge. The sentencing judge in my view correctly applied s 73(1)(c) of The Drugs Poisons and Controlled Substances Act 1981.

51 The applicant had failed to discharge the onus under s 73(1)(b) of the Act to prove on the balance of probabilities that his possession of the cocaine was not for any purpose relating to trafficking. Having failed to discharge that onus the appropriate maximum penalty for the possession of cocaine was five years' imprisonment.

52 I agree with the conclusion of Eames JA as to Grounds 1 and 2.

53 As to Ground 4 which complains of lack of parity, I respectfully agree with the opinion of Eames JA that the approach taken to the issue of parity by the applicant on this appeal is unrealistic. The learned sentencing judge had a difficult sentencing task before him. The applicant was one of some 16 persons who played various parts in the conduct of a major drug distribution syndicate controlled by one Dominic Parisi. Over a period of months the same judge sentenced all 16 offenders. The judge had to weigh up the various parts played by each party in the syndicate and the many personal factors relevant to each sentence. Counsel for the applicant, in his submissions before us, referred to sentences imposed on three of those offenders and made comparisons of sentences imposed on individual counts of such sentences. I respectfully agree with Eames JA that the approach to the issue of disparity, as argued before us, failed to have appropriate regard to the many distinguishing factors relevant to each such sentence. There is no basis for any sense of genuine grievance on the part of the applicant.

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[1] [1989] VicRp 3; [1989] VR 21, at 31-33, per Tadgell, J. and at 28-9, per O'Bryan, J.

[2] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, at 389.

[3] Wylie, at 33, O'Bryan, J. agreeing.

[4] At 33.

[5] At 31.

[6] See R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, at 404, per Callaway, J.A.