R v E D B [2008] VSCA 18

3 The appellant now appeals against sentence with leave, on grounds:

2. In respect of Count 2, that the judge erred by using a figure inflated by a large taxation component when determining the seriousness of the offence, rather than a figure which reflected the loss to the victim.

3. That the judge erred by imposing a sentence which offended the principle of parity when regard is had to the sentence imposed on the appellant's co-offenders.

4. That the judge failed properly to take into account delay between the commission of the offence and sentence.

5. That the judge erred by failing properly to record the sentences referable to each count, such error vitiating the order for cumulation.

6. That a miscarriage arose by reason that the judge was not properly informed of the extent of the appellant's assistance to the police.

7. That the judge erred by failing properly to take into account the extent of the appellant's assistance to the police.**

**4 It is convenient to begin with Ground 5. In his report to the Court, the judge has disclosed that he did indeed make an error by imposing in respect of Count 1 the sentence which he had intended to impose on Count 2 and imposing in respect of Count 2 the sentence which he had intended to impose on Count 1; and that, since the error was not picked up at the time, it has since passed into record in the return of prisoners and presentment.

5 In those circumstances it is debateable whether this court has power to correct the record. But reference to the sentence itself is enough to show that because of the error the sentence passed at trial was not appropriate and that a different sentence should have been passed. The proper course, therefore, is to quash the sentence and pronounce sentence afresh pursuant to s 568(4).[1]**

**6 The bulk of the facts appear in the judge's sentencing remarks. The appellant was born on 20 May 1971 and so at the time of the commission of the offences in mid-2003 he was 32 years of age. He worked as a yard foreman at P&O Ports and he lived in West Meadows. Some time before April 2003, his relationship with his partner broke down and he became depressed, and he took ecstasy to enliven his mood. He obtained the ecstasy from one AB who worked as a driver delivering cargo to and from the wharves and lived close by to the appellant in West Meadows.

7 Unbeknown to the appellant, AB was under police investigation in relation to other matters and his telephone calls were being covertly intercepted and recorded. Eight such calls between 3 May 2003 and 15 May 2003 revealed that appellant purchased ecstasy in small amounts on several occasions throughout that period: for example, on 3 May 2003 two grams; the next day a couple of grams for the 'girls'; and on 15 May 2003 some which the appellant was to sell to a female. But the only quantity specifically identified was the two grams purchased on 3 May 2003 and the Crown accepted that the appellant's dealing was minor: in the order of only three or four grams, and that the balance of his purchases were for personal consumption. Those are the facts which comprised Count 1.

8 Count 2 related to the theft of two twenty foot shipping containers containing 41,350 cartons of cigarettes variously branded Marlboro, Peter Jackson, Alpine and Longbeach. The Crown contended that, if the cigarettes could have been sold on the Australian market, they would have had a retail value of $3,145,620. But, as the judge observed, that figure was of little significance. The cigarettes were packaged without mandatory Australian Government health warnings and so could not be sold lawfully in this county. They were in fact destined for Vanuatu and Kiribati where the selling price would have been approximately $1,771,000, and of that something between $1 million and $1.6 million would have been exigible as duties and taxes.

9 The evidence against the appellant in relation to Count 2 included some more recordings of telephone calls between the appellant and AB. At 14.35 hours on 21 June 2003 a listening device recorded one such conversation in which AB referred to the purchase price as having been agreed at $800,000, then varied to $450,000 and then of an attempt being made to reduce it to $300,000. The judge found that it was a reference to the negotiated sale price of the cigarettes.

10 Further conversations recorded between 19.54 hours on 19 June 2003 and 02.53 hours on 21 June 2003 revealed that the appellant was in the dock area immediately before and after the theft in order to keep watch over traffic, and that he received reports from AB as to the approach of the vehicle which was used to carry away the containers and made reports to AB as to the movement of security personnel in the dock area.

11 In a further conversation recorded shortly after 1600 hours on 22 June 2003, AB was heard to say to his wife [CD]: 'He just won 500, he just won 250 and hon, he owes us that money he's dropped off. Come watch us count it in there, come here, [CD] help us count it, come on'. The judge found that the first two references to 'he' were references to the appellant.

12 The judge accepted that the appellant severed his relationship with AB in or about August 2003. His Honour also accepted that the appellant was not paid any money for his participation in the theft and did not receive any benefit other than the forgiveness of debts of $1,000 and $2,000 which he owed AB for drugs supplied. But not surprisingly, the judge found that the appellant had been motivated by a desire to profit from the theft. They are the facts which comprised Count 2.

13 The judge noted that the appellant had co-operated with the authorities and his Honour said that he allowed a sentencing discount because of that assistance. The Crown concedes, however, that the judge was not informed of the full extent of the assistance and that it is necessary that we take it into account in order to avoid a miscarriage of justice.[2] As now appears, in part from material which was before the judge below[3] and in part from further material which we have viewed,[4] the appellant not only assisted investigators with the offences with which he was charged but also became a true informer as to the involvement of other persons in other offences. As events turned out, such assistance as he was able to provide did not greatly advance police investigations or lead to a conviction. Nevertheless, he is entitled to an additional sentencing discount for his efforts in that regard.[5]

14 A report from Warren Simmonds, psychologist, was tendered below and contains details of the appellant's family, education, employment and domestic history. The appellant's parents are in their late 50s and he has a sister who is aged 34. He attended primary school and later high school where he completed Year 11. He commenced an apprenticeship as a cabinet maker but abandoned it after about a year. Then he worked for four years as a glazier and later for about five years managing a sports centre part time. He sought to work on the docks and he obtained some part time work there. Later, he obtained full time employment there for about five years, eventually rising to the position of yard foreman. He enjoyed the work but was ultimately forced to leave once his role in the theft of cigarettes was discovered. Thereafter, he worked for his cousin for a couple of years and then as a fencer until towards the end of 2006. At that point he injured his hand in a sporting accident and that necessitated surgery over a period of several months. He pleaded guilty in August 2006 (when his defence response was filed), but because of his injury his plea was delayed until 15 January 2007.

15 Mr Simmonds reports that both the appellant's sister and to a lesser degree his father suffer from depression. The appellant's mother also gave evidence below that the extent of the appellant's sister's depression made the appellant's growing up period very difficult and with the more recent illness of the appellant's father, the appellant and his mother have been subjected to very difficult times. Both the appellant's father and sister have been admitted to psychiatric in-patient care on several occasions. According to Mr Simmonds, the appellant suffers from a depressive order which is not unusual for someone of the appellant's family background.

16 IQ testing conducted by Mr Simmonds reveals that the appellant has a verbal IQ of 79, which puts him in the eighth percentile where 92 per cent of people would do better in verbal tasks, and a non-verbal IQ of 83 which puts him in the thirteenth percentile where 87 per cent of people would do better in non-verbal tasks. Mr Simmonds concludes that the appellant is in the lower average range of intellectual functioning.

17 The appellant was 27 when he met his former partner. The relationship lasted some three to four years and together they had a son who at the time of sentencing was seven years old. But the break-up of the relationship was traumatic for the appellant and the judge concluded that that and the resulting loss of daily contact between the appellant and his son led to the appellant becoming severely depressed and so to taking drugs.

18 The appellant is an accomplished sportsman in cricket and football and evidence as to the appellant's character was given before the judge by the president of the appellant's cricket club. He had known the appellant for 10 years, and closely for the last five of those, and he assessed the appellant as a private person who worked extremely hard, was very loyal and was generous and passionate about his family and the people that he was close to. He described the appellant's offending as totally out of character. Other similarly laudatory testimonials were offered by X, who was a retired school principal and captain of the third eleven of the appellant's cricket club; Y who was a young cricketer; and Z, the appellant's cousin, who spoke of the appellant turning to drugs at a time when he was particularly vulnerable following the break up of his relationship with his former partner.

19 In Mr Simmonds' opinion, the appellant does not have any significant anti-social personality traits. He considers that the appellant was depressed and that his judgment was impaired at the time of offending, but not to the degree that the appellant did not understand right from wrong. In Mr Simmonds' view, the appellant's ongoing depressive symptoms will require long term treatment and it will be necessary to establish whether medication is appropriate, although in Mr Simmonds' opinion, it is unlikely that the appellant will re-offend.

20 It is, however, to be noted that the appellant has prior convictions for two counts of causing injury intentionally or recklessly, for which he was sentenced before the County Court at Melbourne on 10 July 1992 to be released on a Community Based Order for two years with a special condition that he perform 100 hours of unpaid community work; one count of unlawful assault which was found proven before the Magistrates' Court at Melbourne on 18 February 1998 but adjourned for 12 months; and two charges of unlawful assault, using threatening words in a public place, destroying or damaging property, driving a motor vehicle whilst his authorisation was suspended, exceeding the speed limit and driving an unregistered motor vehicle, for which he was sentenced before the Magistrates' Court at Broadmeadows on 18 February 2000 to fines totalling $1,250 and to be imprisoned for one month to be suspended for a period of 12 months.

21 The maximum penalty for the offence of theft is 10 years' imprisonment[6] and, as the judge said, this was a brazen and audacious theft committed in breach of the trust put in the appellant by his employers. The appellant used his knowledge of the security arrangements operating at the wharves in order to facilitate the successful execution of a crime that might not otherwise have been committed. The value of property involved was also very significant. As already observed, the cigarettes would have been worth approximately $1,771,000 in the countries for which they were destined, and in my view it is hardly to the point that a large part of that amount was referable to taxes. It is true that the appellant did not receive a great deal of return from the enterprise, indeed none except for the release from the debts of $1,000 and $2,000 which he owed to AB. But, again as the judge said, there is really no doubt that the appellant was motivated by financial reward and he was prepared to put it before the trust which had been shown him by his employers.

22 I allow that the appellant was suffering from clinical depression and was indebted to AB for the supply of the illicit drugs which the appellant had chosen to take to alleviate his depression. But it is not established that his depression was causative of the offences or that it otherwise so affected his ability to exercise appropriate judgment as to lessen his moral culpability.[7] And as the judge observed, it was not put that the appellant committed the offence of theft because he was dependent on AB for the supply of drugs.[8]

23 The appellant's co-offender, CD, who drove the vehicle used to steal the containers of cigarettes, pleaded guilty to two counts of theft (the prime mover and the cigarettes) and was sentenced to a term of three years' imprisonment on the count of theft of the cigarettes and a concurrent term of nine months' imprisonment on the count of theft of the prime mover. As the judge observed, however, the appellant's offending involved a breach of trust which CD's did not and CD pleaded guilty at the first available opportunity (the committal in June 2005) whereas the appellant did not plead guilty until August 2006 when his defence response was filed. Both men had prior convictions but neither had prior convictions for the type of offences to which they pleaded guilty. The appellant's other co-offenders, EF and AB, were each sentenced to two years and nine months on the count of theft.

24 The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment.[9] It is therefore a serious offence and it is one in the punishment of which general deterrence is ordinarily of principal concern. Given that the appellant only trafficked in small quantities of ecstasy, and that most of the drugs which he procured were for his own consumption, I accept that the gravity of his offending was towards the lower end of the scale. But, as to his culpability, there is no evidence that he was addicted to the drugs in which he trafficked, still less that he trafficked in those drugs because he was addicted. Further, in view of his previous offending, there appears to be some need for a measure of specific deterrence.

25 All things considered, including in particular the discounts in sentence to which the appellant is entitled for the assistance which he showed to police, and the delay which occurred between the commission of the offences and sentencing, I consider that the appellant should be re-sentenced on Count 2 to a term of imprisonment of two years and on Count 1 to a term of imprisonment of three**

months of which one month should be served cumulatively on the sentence imposed on Count 2. That makes for a total effective sentence of 25 months' imprisonment and bearing in mind Mr Simmond's observations as to the need for long terms treatment of the appellant's depressive symptoms, I would set a non-parole period of 15 months.

The sentences imposed in the court below are set aside and in lieu thereof the appellant is sentenced as follows:

The Court directs that one month of the sentence imposed on count 1 be served cumulatively upon the sentence imposed on count 2, making a total effective sentence of 25 months' imprisonment.

It is declared that the period of 395 days, which does not include this day, is reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration has been made and its details.

[1] R v Saxon [1998] 1 VR 503, 508-9; R v Foster [2007] VSCA 85, [25].

[2] R v Babic [1998] 2 VR 79, 80 (Brooking JA); DPP v Burgess [2001] VSCA 135; (2001) 3 VR 363, 368 [12].

[3] A letter of 12 January 2007 from a senior police officer to the judge.

[4] A letter of 23 January 2008 from the same police officer to the presiding judge of this court.

[5] R v Cartwright (1989) 17 NSWLR 243, 252-3 (Hunt J) and 256 (Badgery-Parker J); R v Rostom [1996] VicRp 60; [1996] 2 VR 97, 103 (Charles JA); R v Su [1997] 1 VR 1, 78-9; R v Kokkinos [1998] 4 VR 574, 578-9 (Buchanan JA).

[6] Crimes Act 1958, s 74(1).

[7] Cf R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 274-275 [23]-[26].

[8] Cf R v Nagy [1992] VicRp 45; [1992] 1 VR 637, 640 (McGarvie J); R v Bernath [1997] 1 VR 271, 276 (Callaway JA); R v McKee, R v Brooks [2003] VSCA 16, [12]-[13] (Buchanan JA). R v Lacey [2007] VSCA 196, [12]-[15].

[9] Drugs Poisons and Controlled Substances Act 1985, s 71AC.