R v Doherty [2009] VSCA 93

1 I have read the judgment of Nettle JA and agree that the application for leave to appeal against conviction on Count 20 should be allowed and that the sentence on that count be set aside. I also agree that the application for leave to appeal against sentence be allowed and with the orders proposed by Nettle JA.

2 This is an application for leave to appeal from a total effective sentence of two years and eight months' imprisonment with a non-parole period of twenty months imposed on the applicant on pleading guilty in the County Court at Geelong to one count of trafficking in methyl amphetamine (Count 19), one count of possessing amphetamine (Count 20) and one count of possessing cannabis (Count 21).

3 The judge sentenced the applicant on the count of trafficking amphetamine (Count 19) to two years and six months' imprisonment, on the count of possession of amphetamine (Count 20) to six months' and on the count of possession of cannabis (Count 21) to two months' imprisonment. His Honour ordered that two months of the sentence imposed on Count 20 be served cumulatively on the sentence imposed on Count 19, making a total effective sentence of two years and eight months, and set a non-parole period of 20 months.

4 There is also an application for leave to appeal against conviction on Count 20, which we granted leave to file out of time, on the ground that the act of possession which comprised Count 20 was one of the acts which constituted the count of trafficking the subject of Count 19.

5 The circumstances of the offending are described in the sentencing judge's sentencing remarks, as follows. Late in 2006, police commenced an investigation into a drug ring operating in the Geelong area. An extensive network of people was

involved using mobile telephones to organise the supply and delivery of amphetamine and other drugs. Methyl amphetamine, cannabis, ecstasy, LSD and steroids were all trafficked. One Steven Dare was found to be at the centre of the drug ring. He was a large scale street level retailer, who purchased his stocks of drugs from a number of disparate suppliers The applicant, who was the proprietor of the Rompin Rastas Bong Shop in Geelong, was one such supplier who supplied Dare with amphetamine during the period between 5 May 2007 and 5 June 2007.

6 Between 4 December 2006 and 10 June 2007, police intercepted over 15,000 calls to Dare's mobile and home telephones and during that period the applicant spoke to Dare by telephone on more than 100 occasions. In a number of those calls, the applicant could be heard making arrangements to meet Dare at various locations and it is apparent from the content of the conversations that the applicant and Dare spoke in code in relation to their drug dealing activities.

7 On 5 May 2007 the applicant and Dare discussed the purchase of three and a half grams of amphetamine, although ultimately only a little in excess of one gram was able to be provided. On 17 May 2007 the applicant and Dare discussed the provision of $100 worth of amphetamine. That transaction did not proceed but subsequent telephone intercepts established that the applicant supplied at least 5.9 grams of amphetamines to Dare (Count 19).

8 On 5 June 2007, the police executed a search warrant at the Rompin Rastas Bong Shop and also at the applicant's home address. They located a clear snap-lock bag containing white powder that the applicant was attempting to flush down the toilet, and also $940 which was in the applicant's trousers. The snap-lock bag contained 23 grams of amphetamine. Other snap-lock bags containing four and five grams respectively of amphetamine were also located (Count 20). So too was a small quantity of cannabis mixed with other green vegetable matter (Count 21), together with other drug paraphernalia. When interviewed by police, the applicant answered 'no comment' in relation to drug trafficking allegations.

9 Following committal hearings, the applicant was presented with three co-accused, Steven Laurence Dare, Cameron Scott Matthews and Jason Waugh on a 26 count presentment. Another offender involved with Dare, James Bidmade, was separately presented.

10 The applicant had 23 prior convictions from six court appearances between October 1989 and December 2006. In October 1989 he was convicted of possessing, using and trafficking cannabis. In April 1991, he was convicted of cultivating cannabis, possessing cannabis and using cannabis. In September 2000 he was convicted of trafficking cannabis, attempting to traffic cannabis, using and possessing cannabis and possessing proceeds of crime, for which he was sentenced to be imprisoned for six months. On 16 June 2003 he was fined in relation to possession and use of cannabis. On 12 December 2006, he was convicted of trafficking amphetamine, possessing cannabis, and using amphetamine and cannabis, for which he was sentenced to six months' imprisonment suspended for 12 months and released on a community based order. The subject offending occurred during the currency of that suspended sentence and community based order.

11 The judge referred at length to the applicant's personal circumstances. He was born in Melbourne on 14 January 1972 and grew up in the Collingwood area. His parents separated before he was born, although both are still alive and his father was in court at the plea to support him. The applicant resided with his mother as a child but suffered from rheumatic fever for some eight years. He did not see his father until he was 13 years of age. He attended ten primary schools and eight secondary schools because of the transient nature of his mother's work obligations. Nonetheless, he completed the HSC at Dandenong High School before commencing a biology course at Deakin University, Geelong, and he completed three years of that course, and was only one year short of its completion, when he dropped out of university in 1995.

12 The applicant began using cannabis when he was 13 years of age and used drugs regularly. He began on amphetamines in his twenties and after his release from gaol in 2001 he started to use them heavily. In 1995 after dropping out of university he began to work for the then owner of the Rompin Rasta Bong Shop and later bought the business for $15,000. The business was sufficiently profitable to cover expenses and provide the applicant with an income. Part of the applicant's bail conditions, however, was that he absent himself from the business and at the time of sentencing it was run by an associate. By the time of sentencing the applicant had amassed $40,000 in indebtedness to various financial institutions.

13 The applicant had previously been in relationship with a woman and had one child by her. But the relationship failed after some years and he lost both his partner and the custody of his daughter.

14 The judge referred in his sentencing remarks to the sentences he had previously imposed on Dare and others involved in Dare's drug trafficking activities, and his Honour said that he had regard to the sentences imposed on those other offenders. The judge also noted that it had not been submitted and that there was anything before him to establish that the quantities of amphetamines of which the applicant was found in possession were for a purpose other than trafficking. Contrastingly, his accepted that the cannabis found at the applicant's shop on 5 June 2007 was for personal consumption.

15 The first proposed ground of appeal is that the judge made a mistake as to the maximum penalty for the offence of possessing cannabis (Count 21). The judge stated that the maximum penalty for that offence was 12 months' imprisonment. But as the judge had earlier observed, the amount found was only a 'small quantity' and, while it does not appear that the quantity was ever weighed, it seems that what his Honour had in mind was a 'small quantity' as defined, which is to say of less than 50 grams. The maximum penalty for a 'small quantity' as defined is five penalty units.[1] The higher maximum penalty of 12 months' imprisonment applies only to a quantity not coming within that description where the court is satisfied that it was not for any purpose relating to trafficking in that drug.[2] Hence, as the Crown now accepts, it appears that the judge made an error in imposing a term of imprisonment.

16 To that extent, the appeal must be allowed, the sentence imposed on Count 21 should be set aside, and the applicant should be re-sentenced on that count.

17 The second proposed ground of appeal is parity. The argument is that, in view of the respective quantities of amphetamines trafficked by the applicant and his co-accused, his sentence of two years and six months' imprisonment on the count of trafficking in a drug of dependence gives rise to a justifiable sense of grievance. Counsel relied in particular on the following facts and circumstances in support of that contention:

a) the Crown was unable to prove that the applicant supplied Dare with any more than 5.9 grams of amphetamine;[3]

b) of the 100 intercepted telephone calls between the applicant and Dare, only five contained any reference to drugs or a quantity of drugs;

c) the applicant and Dare were friends, and in the intercepted telephone calls they discussed, among other things, going fishing and sharing Christmas dinner together, with the result that the fact of the other telephone contacts between the applicant and Dare between December 2006 and June 2007 were insufficient to support an inference, beyond reasonable doubt, that the applicant supplied Dare with a significantly greater quantity of amphetamine than the 5.9 grams;

d) Dare was sentenced to only four years and yet Dare trafficked 400 to 500 grams of amphetamine;

e) the co-accused, Bidmade, was sentenced to only two years and six months' imprisonment and yet he supplied Dare with 80 grams of amphetamines; and

f) the co-accused Matthews was sentenced to only two years' imprisonment and yet he had telephone contact with Dare 89 times during the period of the intercepts and the majority of those calls were alleged to be drug-related.

18 I do not accept that the relativities between the sentences in this case are such as to offend the principle of parity. When I dealt with the applicant Waugh,[4] I referred to what is meant by 'parity' in sentencing and to the observations of Tadgell JA in Tien that it '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'.[5] As I said then, appellate intervention on the ground of disparity is not warranted unless there is a difference (or lack of difference) between two sentences which is manifestly excessive and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done.[6] In this case, as in Waugh's case, I am not satisfied that there is disparity of that kind.

19 The judge sentenced all four offenders, and in each case expressed himself to be conscious of the requirements of parity. It thus appears to me that his Honour was particularly mindful of the need to formulate sentences which took account of all relevant factors. In addition to those mentioned by counsel, they included that:

a) The sentence imposed on Dare was significantly reduced because of character and courage considerations which were unique to Dare.

b) Bidmade had less significant prior convictions than the applicant and was a youthful offender in relation to whose sentencing the judge correctly observed that rehabilitation was the primary consideration, with the consequence that the sentence which he received was justifiably lower than one would otherwise have expected;

c) Matthews had far less serious prior convictions than the applicant and as the Crown submitted a far more problematic and tragic background.

20 The applicant's position was also different to that of his co-offenders in that he had a more extensive and relevant past criminal history involving trafficking in drugs of dependence. As the Crown submitted, correctly, and the judge no doubt had in mind, that had the effect of elevating the importance of specific deterrence as a sentencing factor relative to the weight to be attributed to rehabilitation, and thus added to the length of sentence necessary to be imposed.

21 All things considered, it seems to me in this case, as it did in Waugh's case, that the differences between the circumstances of each offender warranted degrees of relativity which are more or less accurately reflected in the sentences which the judge imposed.

Cumulation of the sentences imposed on Counts 19 and 20.

22 Under the heading of the application for leave to appeal against conviction on Count 20, counsel argued that, because the act of possession occurred on the last day of and therefore within the Girretti period the subject of Count 19, the acts which comprised Count 20 were all comprised within Count 1 and thus that the applicant should not have been convicted of Count 20.

23 I accept that submission. Despite the fact that the applicant pleaded guilty to Count 20, it seems to me clear that it was part and parcel of Count 19 and that to allow the conviction to stand in those circumstances would be productive of an injustice.[7] As Buchanan JA observed in R v Ahmed:[8]

An appeal against conviction by an offender who has pleaded guilty will be entertained if it appears that upon the admitted facts the accused could not in law have been convicted of the offence charged[9] or otherwise it appears that there has been a miscarriage of justice.[10] In my view there has been a miscarriage of justice in this case.[11] The applicant stood convicted of more offences than he had committed. That is apparent from the circumstances which emerged at the hearing of the plea. It is not necessary to investigate the events which induced the applicant to plead guilty.

24 In my view, the conviction on Count 20 should be quashed and the sentence on that count set aside.

25 I would, therefore, allow the application for leave to appeal against conviction on Count 20, treat that appeal as instituted and heard instanter and allowed, quash the conviction on that count and set aside the sentence passed below on that count.

26 For the reasons earlier given under Ground 1, I would also allow the application for leave to appeal against sentence, treat that appeal as instituted and heard instanter and allowed and set aside the sentence passed below on Counts 20 and 21.

27 I would confirm the sentence of two years and six months' imprisonment imposed below on the count of trafficking amphetamine (Count 19) and re-sentence the applicant on the count of possession of cannabis (Count 21) to a fine of $100.00. I would set a new non-parole period of 18 months.

28 I agree that the application for leave to appeal against conviction on Count 20 should be allowed.

29 I agree that the application for leave to appeal against sentence should be allowed and with the orders proposed by Nettle JA.

[1] Drugs Poisons and Controlled Substances Act 1981, s 73(1)(a).

[2] Drugs Poisons and Controlled Substances Act 1981, s 73(1)(b).

[4] R v Waugh [2009] VSCA 92.

[5] R v Tien & Ors [1998] VSCA 6, [39] (Tadgell JA).

[6] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, [404] (Callaway JA).

[7] R v GJB [2002] VSCA 54; (2002) 4 VR 355, 362 [15] (Winneke P).

[8] [2007] VSCA 270; (2007) 17 VR 454, 450 [20] (Buchanan JA).

[9] R v Forde [1923] 2 KB 400, 403 (Avory J); cf R v El-Kotob [2002] VSCA 109; (2002) 4 VR 546, 548 [3]-[5] (Callaway JA).

[10] See R v Coffey [2003] VSCA 155; (2003) 6 VR 543, 545-6 (Callaway JA); R v Murphy [1965] VicRp 26; [1965] VR 187.

[11] Cf R v GJB (2000) 4 VR 355, 362 [15] (Winneke P).