R v Foster [2000] VSCA 187

5. These offences, which carried maximum penalties of 15 years' imprisonment and/or a fine of $100,000, one year's imprisonment and/or a fine of $3,000, a fine of $500 and 15 years' imprisonment respectively, were committed at Ballarat between 16 June 1998 and 15 June 1999.

8. The applicant's case had been set down for a contested committal hearing at the Magistrates' Court at Ballarat on 22 October 1999. On 27 September the Director of Public Prosecutions was advised by the (then) legal representatives of the applicant that he intended to plead guilty to all counts and sought an expedited plea hearing. A hand-up brief procedure then followed on 7 October when the applicant pleaded guilty to charges of the same character as those later included in the presentment. He was committed for trial and remanded in custody.

11. The presentment was filed in the County Court at Ballarat on 16 November. The applicant, who appeared before the judge, dismissed his counsel and sought an adjournment on the basis that there had been a change in legal representation and that he intended to reserve his plea. An adjournment was granted with a view to re-listing on 6 December before the same judge. On that date, in Melbourne, the matter was again listed before his Honour and different counsel appeared for the applicant. As I have earlier indicated, he then pleaded guilty to each of the counts on the presentment.

14. The applicant admitted many prior convictions incurred between February 1987 and November 1998. These included a number of convictions for offences of dishonesty including burglary, theft, handling stolen goods and other offences of intentionally causing serious injury and robbery. For the latter two crimes he was sentenced in March 1991 to a total effective sentence of 21 months' imprisonment with a non-parole period of 12 months' imprisonment. He had variously been sentenced to detentions in youth training centres, imprisonments, a community-based order and fines.

17. After hearing a plea for leniency, in which a number of exhibits were tendered on his behalf, the applicant was remanded in custody until 13 December 1999. These exhibits included a certificate from the "Get Smart Programme"; a welding and a general education certificate; a letter and a statement from a Dr Anderson to the effect that he had first seen the applicant about his heroin addiction on 11 March 1998; that he was considered a suitable candidate for a methadone programme and was put in this and remained on it until his arrest on 15 July 1999.

20. On 13 December, the applicant was sentenced to five years' imprisonment on count 1; three months' imprisonment on count 2; 12 months' imprisonment on count 4; making for a total effective sentence of five years and six months' imprisonment, his Honour having directed that six months of the sentence on count 4 be served cumulatively on the sentence on count 1. A fine of $500 was imposed for count 3. His Honour fixed a non-parole period of four years and six months.

23. A declaration was made of 162 days pre-sentence detention, but his Honour ruled that the applicant was not entitled to the benefit of time served between 16 November and 6 December 1999 as a consequence of the applicant's attempt at forum shopping.

26. On 17 December 1999 the applicant lodged notice of application for leave to appeal against sentence, pleading the sole ground that the sentence was manifestly excessive, and on 19 September 2000 the learned Registrar allowed additional grounds as follows:

(a) failing to have regard to the applicant's own addiction as a mitigating factor;

(b) diminishing the weight to be attributed to the addiction of the applicant on the basis that the applicant was not a street dealer.

3. The learned sentencing judge erred in ordering that the time spent in custody between 16 November and 6 December not be taken into account pursuant to s.18 Sentencing Act 1991 in that:

(a) a finding that the adjournment for this period was an attempt at 'judge shopping' was not a proper basis for the exercise of the discretion created by s.18 Sentencing Act 1991;

(b) the material before the Court did not support a finding that the adjournment was a deliberate attempt at 'judge shopping'."

37. It is now necessary to set out in summary form the facts of these matters, and I have had resort to the summary of evidence supplied to the Court.

40. As a result of a police operation targeting heroin trafficking in the Ballarat area, a warrant was obtained under the Drugs, Poisons and Controlled Substances Act 1981 to search the applicant's house at 22 Tarawa Drive, Ballarat North.

43. On Tuesday 15 June 1999, at 7.12 a.m., members from the "M" District Support Group executed the warrant at 22 Tarawa Drive, Ballarat North, where they forced entry into the house. The police spoke to the applicant and gave him a copy of the warrant. During the search, accoutrements relating to heroin trafficking were located (set of electronic scales, set of balance scales, two bags of balloons and $150 from the sales of the drug heroin) along with a quarter gram of cannabis. Also located during the search were seven bottles of "Sambucca" alcohol, which the applicant stated he believed were stolen. The applicant was arrested and conveyed back to the "M" District Support Group Offices in Sebastopol.

46. The applicant was interviewed in relation to trafficking in a drug of dependence, possession of drugs of dependence and handling stolen goods. The applicant made full admissions to all offences during the interview.

49. During the interview the applicant admitted to trafficking heroin in Ballarat over the previous 12 months. He stated that he travelled to Melbourne mainly daily or every second day (approximately 150 to 200 times) and purchased seven grams of heroin on each occasion (paying between $1800 and $2100 depending on availability of the drug). The heroin was purchased in rock form. The applicant would then return to Ballarat and divide each gram into 14 "deals" and sell each "deal" for $50.

52. The applicant stated that purchasers would call him on his mobile telephone to purchase the drug and he would then arrange the transactions at his address. The applicant stated he would sell approximately ten "deals" on a "quiet" day and would sell up to 50 "deals" on a "busy" day.

55. The applicant estimated that he would make $200 profit out of the sale of each gram (14 "deals"). Further, the applicant expressed the view that in the previous 12 months he would have made an estimated $40,000 profit.

58. The applicant stated that the $150 cash found in his wallet during the execution of the warrant was from the sales of heroin.

61. The applicant further stated that some of the heroin he purchased in Melbourne would be used to meet his own addiction - he used a quarter gram each time and up to four times a day.

64. The applicant gave as his reason for trafficking in a drug of dependence (heroin) - "just to support my own habit".

67. The applicant also admitted to possessing and using heroin about three hours prior to police conducting the search. The applicant further stated he had used cannabis the previous night.

70. The applicant was charged on 15 June 1999 and remanded in custody.

73. I now turn to the arguments of counsel. It is convenient to first consider those advanced with respect to ground 1. Counsel for the applicant submitted that the sentences imposed on counts 1 and 4 are each manifestly excessive, as was the cumulation direction of six months. It was also contended that the non-parole period fixed was manifestly excessive. In support of these submissions, counsel placed particular reliance on the following touching his client.

* Full admissions, plea of guilty and co-operation with the police, including naming his supplier. * No prior history for drug trafficking. * Street level trafficking to satisfy the applicant's own very heavy addiction. * Abusive personal background, raised in a broken home with an alcohol addicted and violent step-father. * Regularly drinking alcohol at 11, smoking marijuana at 13 and introduced to heroin at 15 or 16. * Father of two children and stepfather of two others, all left in the care of his wife who is handicapped by severe back pain. * Efforts at rehabilitation, including courses undertaken in custody and the reduction in methadone dose from 85ml. to 13ml.

77. Counsel further contended that it is "manifestly excessive" to imprison a man for 12 months for purchasing seven bottles of stolen alcohol valued at $210 in order to have a collection, and that it is "manifestly excessive" to order that a man just sentenced to five years' imprisonment for trafficking serve a further six months for having purchased the seven stolen bottles of alcohol. Finally, it was submitted that in the case of a severely drug addicted, first-time trafficker, who had undertaken steps towards rehabilitation whilst on remand, a non-parole period of four-and-a-half years is manifestly excessive in the setting of a total effective sentence of five-and-a-half years.

80. Mrs Quin, for the Crown, disputed the allegations of manifestly excessive sentence, pointing out that the learned judge acknowledged the applicant's candid record of interview; his plea of guilty; his personal circumstances and family history and his rehabilitation. She submitted that there were a number of aggravating features in relation to the offences. These included their commission while the applicant was undergoing a suspended sentence; their continuing nature, and the estimated profit of the drug business of some $40,000. She also pointed to the applicant's prior convictions and contended that, in relation to the trafficking charge, principles of general deterrence had a significant role to play[1].

83. It is also convenient to first address the sentence on count 4, and I turn to its circumstances. The police found, in their search under warrant on 15 June 1999, seven bottles of "Sambucca" alcohol, apparently of different colours. Interviewed as to these, the applicant said he had bought them "months ago", and that he thought he had paid $100 for them, which payment he considered cheap. He could not recall from whence they came. He did not drink Sambucca himself and was just keeping them for a collection. He thought their value was to the order of $210 He did not ask from whence they came. In stating that he had no reason for handling the Sambucca, he accepted that he believed it was stolen.

86. There is nothing to suggest that there was anything in the appearance of the bottles themselves to indicate that they were stolen or which would engender a belief that they were stolen. Accordingly, the applicant supplied out of his own mouth the evidence of a crucial element in this count. As has been noted, he pleaded guilty at the committal, reserved his plea at Ballarat and later repeated his plea of guilty. The applicant admitted some 22 prior convictions for crimes of dishonesty and several of them were for assistance or handling in the matter of stolen goods. His last conviction for a crime of dishonesty had been incurred in July 1996. For offences akin to count 4, the most severe penalty imposed on him would appear to be one month's imprisonment in March 1990. I have noted the maximum penalty available.

89. In my opinion, the above circumstances required the imposition of a sentence of imprisonment on the applicant for count 4, but I am satisfied they also show that the sentence imposed lay altogether outside the range of those properly available to the learned judge. Accordingly, I would uphold ground 1 in so far as it relates to the sentence on count 4. Should the other members of the Court agree, this conclusion vitiates the sentence imposed on the applicant in the County Court, having regard to its construction.

92. Again subject to agreement in the Court, it would fall to this Court to re-sentence the applicant.

95. Argument before us produced a number of criticisms on behalf of the applicant touching the sentence imposed on count 1. By reason of the foregoing, it is not necessary, I think, to proceed to the formal resolution of those criticisms, but I have had regard to them as a form of insurance against the imposition of an excessive sentence on the applicant.

98. The circumstances of the applicant's commission of count 1 have been thoroughly canvassed in argument. I do not intend here to set out each and every one of them, but they include the duration of the offending (nearly a year); the maximum penalty available; the applicant's prior convictions generally and those, particularly drug related (which appear to be some seven in number although none was for trafficking) and the applicant's admitted profit from his trafficking. (The applicant was not charged in relation to a commercial quantity (250 gms.) and therefore does not fall to be sentenced on that basis.)

101. In my opinion, it is not necessary that a finding be made as to whether or not the applicant was a "street level" trafficker. To my mind, the most significant aspect of the applicant's offending, as his counsel candidly admitted, was the volume of his trafficking. I here refer to my summary of the facts of this matter. This Court, as did the sentencing judge, had access to the depositions taken at the applicant's committal, as to which there has been no challenge. One witness, a young man named Beacham, has stated, "I have seen Terry [the applicant] sell at least 20 caps of heroin within minutes of arriving home. On some occasions, I have seen up to 12 people waiting in Terry's lounge room to score. I personally know of at least 25 people who have bought heroin off Terry." Other evidence showed that the applicant operated for some time what amounted to business premises and also performed home deliveries. I consider that matters personal to the applicant and relevant to a sentence on count 1 are sufficiently set out in paragraph 22 of these reasons.

104. The foregoing satisfy me that for count 1 a sentence of imprisonment is both warranted and necessary. As it happens, I agree that the sentence imposed by the learned judge in the Court below was appropriate in all the circumstances. As to count 4, I consider that a sentence of six months' imprisonment would be appropriate.

107. The question then arises whether there should be a cumulation direction and, if so, its amount. I believe the commission of count 4 did add to the total criminality of the applicant. Accordingly, I would propose that two months of the sentence on that count be served cumulatively upon the sentence on count 1.

110. I now turn to the appropriate declaration as to pre-sentence detention. As to this, the learned judge furnished a report dated 21 September 2000. When I first read the report, I obtained the impression that the learned judge was indicating that he had concluded in the sitting at Ballarat that the applicant had been involved in an attempt at "judge shopping". It would be most unfortunate if this were so, because the transcript shows that the applicant, at Ballarat, was never told that his Honour was then and there intending to make such a finding and was never given any opportunity to explain his conduct. However, I think doubt attends this matter. His Honour, as his report shows, did not have before him the transcript from Ballarat when he made his report. That transcript, to my mind, does not reveal that his Honour there reached a concluded view on the matter.

113. In Melbourne, on the plea, counsel for the applicant attempted explanations of his client's conduct, but these were, if I may say so, ill received by the learned judge, who interrupted, saying, "Judge shopping, Mr Drake; let us be realistic, judge shopping." His Honour proceeded, in his reasons for sentence, to reject the explanations counsel had offered, describing the applicant's conduct at Ballarat as "a blatant attempt at judge shopping, an attempt doomed to failure". His Honour also added, obviously addressing the applicant, "It seems to me that offenders who know that imprisonment is inevitable, and that the time spent in custody is usually deducted, ought not be able, without risk, to attempt to manipulate the system to the inconvenience of the community." The time served by the applicant between 16 November and 6 December was disallowed. It may be debated whether the finding that at Ballarat the applicant "knew" imprisonment was inevitable was justified. He probably strongly suspected it. But it is clear that there was no evidence before the judge that the applicant "knew" at Ballarat that time spent in custody was usually deducted. Indeed, what his Honour said to the applicant as to this at Ballarat presumes ignorance in him as to this knowledge:

"... and I want you to understand that a judge has a discretion as to whether he gives credit for the time a person has spent in custody. If the judge comes to the conclusion that the accused was just simply trying to muck everyone around, then the judge has the right not deal with the matter by allowing the credit. Do you understand that?"

117. Accordingly, I think his Honour erred in the process of concluding that the applicant had indulged at Ballarat in "judge shopping". But the matter does not end there, for in my view there was no evidence before the court in Melbourne which would show that the innocent explanations of the applicant's conduct proffered by his counsel were untrue. Certainly, the Crown Prosecutor never gainsaid them. Nor did he suggest the Crown had information or evidence which cast doubt upon them.

120. I would propose that on re-sentencing the sentence of the applicant on counts 1, 2 and 3 be confirmed; that he be sentenced to six months' imprisonment on count 4; that the Court direct that two months of the sentence on count 4 be served cumulatively upon the sentence imposed on count 1, making for a total effective sentence of five years and two months. I would further propose that a non-parole period of four years and two months be fixed and that, in any declaration of pre sentence detention, the applicant be allowed the days between 16 November and 6 December 1999.

124. I concur with the Chief Justice, but desire to make some observations relating to ground 3. In my opinion, a court might, other things being equal, properly "otherwise order" within s.18(1) of the Sentencing Act 1991 as to a certain period where an offender had, through his or her own deliberate and obstructive action, caused himself or herself to be detained in custody longer by the length of that period than he or she need have been. The extra detention would be, as it were, self-inflicted. I do not think that that proposition is contrary to any of the strong cautions to be found in the unreported cases collected in Fox & Freiberg_, Sentencing - State_ and Federal Law in Victoria, 2nd edition, 743, to which may be added R. v. McGrath (unreported, Court of Criminal Appeal, 1 October 1992), R. v. Sidea (unreported, Court of Criminal Appeal, 21 October 1993) and Wright v. Marten (unreported, Beach, J., 25 November 1993). The offender's action which I have postulated would be a "compelling circumstance", to use the criterion suggested by O'Bryan, J. in R. v. Fordham (unreported, Court of Criminal Appeal, 1 March 1988). But I can see no evidence here on which the sentencing judge could have been satisfied of such action whether on the balance of probabilities or (as, in view of s.18(7) in particular, I am inclined to think is requisite) beyond reasonable doubt.

128. I also agree that, for the reasons given by the learned Chief Justice, the application should be granted and the applicant be re-sentenced as proposed by his Honour. On the question of the learned sentencing judge not taking into account for relevant purposes the whole of the applicant's pre-sentence detention, in my view, had there been material on which his Honour could have properly concluded that the applicant had sacked his legal representatives for the purpose of forum shopping and had misled the court as to his real reason for seeking the adjournment, his Honour might have been justified in not taking into account for the purposes of s.18(1) of the Sentencing Act 1991, the period of the adjournment. In those circumstances, that period of detention would have been brought about solely by the applicant's own wrongful conduct and thus, it might have been appropriate not to deduct that time from the sentence. But, as the Chief Justice has explained, there was no basis on which his Honour could have objectively concluded that the applicant engaged in such wrongful conduct. Hence, in the circumstances, it was not open to the learned sentencing judge to exclude the period of the adjournment from the sentence.

The application for leave to appeal against sentence is granted, the appeal treated as instituted, heard instanter and allowed.

The sentence imposed on the applicant in the court below is in part set aside. The sentences imposed in the court below on counts 1, 2 and 3 are confirmed. The sentence imposed on count 4 is quashed and in lieu thereof the applicant is sentenced to be imprisoned for six months. The cumulation direction made in the court below is set aside and in lieu thereof the Court directs that two months of the sentence imposed on count 4 be served cumulatively upon that imposed on count 1, making for a total effective sentence of five years and two months. The Court fixes a non-parole period of four years and two months.

The Court declares that the period of 472 days is the period of pre-sentence detention already served by the applicant as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.

[1] See R. v. Pantsis [1998] VSCA 134 at para 12 per Tadgell, J.A.