R v Geraghty [2000] VSCA 42

Court of Appeal (Vic)|2000-03-23|Before: CHARLES and CALLAWAY, JJ.A. and COLDREY, A.J.A.

Two charges of possession of drugs for the purposes of trafficking - Cumulation of sentences by judge following contrary indication during plea - Denial of procedural fairness - Total effective sentence and minimum vitiated - Re-sentencing.

The appellant pleaded guilty in the County Court to two counts of possessing a drug of dependence, namely amphetamine, contrary to s,73(1) of the Drugs, Poisons and Controlled Substances Act .

After hearing a plea for leniency, the learned sentencing judge sentenced the appellant on 24 June 1999 to 2 years imprisonment on the first count and 3 months imprisonment on the second count and ordered that the sentences be served cumulatively; the total effective sentence was therefore 2 years and 3 months. His Honour directed that the appellant serve a minimum term of 18 months before becoming eligible for parole. A declaration was made that the appellant had served 28 days pre-sentence detention.

It was conceded that the appellant had possession of the drug for the purposes of trafficking. The maximum penalty for each count was 5 years imprisonment, a fine of $40,000 or both.

On 1 December 1999 the appellant was granted leave to appeal against sentence.

The offences may be briefly described. On 17 October 1997 members of the Australian Federal Police conducted a search of the appellant's premises at 11 Fourth Avenue, Rowville. In the course of this search two circular objects, one covered in grey tape, the other in clear plastic wrap, were found in a maroon sports bag in the bottom drawer of a work bench. In the garage the officers partially unwrapped the parcels which appeared to contain a white waxy substance. A preliminary drug test was conducted on the substance and the test indicated the presence of amphetamines. That search of the premises concluded at 2 a.m.

Earlier, at 12.31 a.m., a search had been conducted on a vehicle, registered number OCG 569, a green Ford station wagon, which was parked outside No. 54 Potter Street, Dandenong. This vehicle belonged to the appellant. During this search five silver foils were located in a clear plastic bag in the centre console of the vehicle. The foils were opened and contained a white powder with a total net weight of 2.5 grams. The powder tested positive for amphetamines.

Later that day, at 9.06 a.m., the two packages seized at the Rowville address were examined. One package was found to contain a number of layers. At the centre of the package was a white compressed powder. The net weight of the powder was 987.3 grams. The second package when unwrapped was also found to contain white compressed powder. The net weight of the powder was 980.5 grams. The five foil packages were found to contain white crystalline powder. The net weight of the bulk of the powder in the foil was 4.5 grams.

All items were subsequently examined by an analytical chemist at the Australian Government Analytical Laboratories in Sydney. In relation to the parcels located in the garage, one was found to contain 29.7 percent amphetamines, which was 293.23 grams pure of the amount of 987.3 grams; the other was found to contain 28.7 percent amphetamines, which was 274.5 grams pure of the quantity of 980.5 grams. The total purity of the amphetamines seized in the garage was, therefore, 567.77 grams.

The samples taken from the car were analysed and found to contain 2.9 percent amphetamines or 0.13 grams pure. This would indicate that these samples had been substantially cut.

The amphetamines found in the garage, if sold at street level and cut, would realise in excess of $1 million. The samples would have realised $240.

In a taped record of interview the appellant made no comment in relation to allegations put to him.

The plea made in mitigation before the learned sentencing judge placed emphasis on the plea of guilty made at the earliest realistic opportunity, which was said to demonstrate remorse.

The appellant's previous good character, his lack of prior convictions, his excellent work record as a piano restorer/cabinet-maker and health club operator, and his devotion to his family, were all advanced in submitting that the appellant had excellent prospects of rehabilitation. The appellant's wife, as well as a former employer and a friend were each called in support of these contentions.

In the course of the plea, counsel for the appellant also referred to a number of cases involving trafficking in amphetamines which, it was argued, provided guidance as to the tariff or sentencing range for the offence of possessing amphetamines for a purpose related to trafficking.

As to the offences themselves, it was asserted by counsel that the packages found in the garage had been deposited by a friend of the appellant's because of the appellant's contacts in the body building industry and the foils found in the car were a sample of what could be obtained by a potential purchaser. It was claimed that the appellant had not made up his mind whether to sell the amphetamines, but, if he did so, he would act as a wholesaler for someone within the body building industry and reap an expected profit of $10,000. No evidence was adduced in support of these contentions.

It was submitted on the plea that the appropriate sentence was a substantial fine or, if the demands of general deterrence required it, a sentence of imprisonment, wholly suspended.

Having heard the plea, the learned sentencing judge firstly indicated that he did not totally accept the assertion that the market for the drugs would be limited to the body building industry. However, he was satisfied beyond reasonable doubt that someone who knew and trusted the appellant had provided him with the drugs, because of his access to that market and that the appellant anticipated a profit of an indeterminate amount. He was similarly satisfied that the motive for these offences was greed rather than need.

Save that the learned sentencing judge accepted that the plea of guilty saved the community the cost of a trial, he did not regard it as evidence of remorse. His Honour also rejected the appellant's work record and credentials as a family man as evidencing excellent prospects of rehabilitation. It is clear that his Honour regarded the need for general deterrence and the gravity of the offences as outweighing personal factors. The sentence ultimately imposed reflected this view.

The first ground of appeal advanced by counsel on this appeal related to the sentencing judge's order for cumulation of the two sentences. One aspect of that ground was the failure of the learned sentencing judge to seek submissions upon that matter. Indeed, the impression was given by the learned sentencing judge that no order for cumulation was contemplated. In so far as the matter was the subject of comment by his Honour it is recorded in these terms:-

"You went awfully close at one stage to getting a bit of accumulation in relation to the second count but you backed off that".

It was submitted that this comment effectively deprived the appellant's counsel of the opportunity to make submissions in relation to cumulation, and consequently constituted a denial of procedural fairness. This was conceded by Mrs Morrish on behalf of the respondent. It may well be that his Honour, who is a very experienced judge, did not intend by this comment to indicate that cumulation was not an issue about which defence counsel needed to be concerned. Unfortunately what he said had that effect. It was also conceded by Mrs Morrish that this was an error which flowed through to the total effective sentence and the non-parole period. That, in itself, is sufficient to vitiate the exercise of the sentencing discretion and require this court to re-sentence the appellant. Accordingly, I do not propose to canvass the other grounds set out in the notice of appeal.

Earlier in my comments I referred to aspects of the plea in mitigation and portions of the learned sentencing judge's remarks. I did so because they encapsulate the major factors facing this Court in the exercise of its sentencing discretion.

On the credit side in this case was the appellant's previous good character at 39 years of age, evidenced by his excellent work record, his stable family life and lack of any prior convictions. The evidence of his wife that he felt "pretty lousy" about what occurred, may, on a benign view, be said to amount to some evidence of remorse.

As I indicated earlier, character evidence was called on his behalf.

The appellant's general antecedents, as I have described them, may be taken as indicative of at least a reasonable prospect of rehabilitation. Credit needs also to be given to the early plea of guilty.

It was also put on his behalf by Mr Priest that his absence at the birth of his second child was, of itself, an additional severe punishment.

On the other hand, the possession of the amphetamines, which were of a considerable quantity and value, were admittedly for the purpose of trafficking. It was conceded that the appellant hoped to garner a profit of $10,000 if he chose to wholesale them. In short, the appellant's motivation could be seen as greed, not need. In that regard it might be said that there is some role for specific deterrence in any sentence imposed. Whilst the immediate recipients of the drug may have been in the body building industry, there would, of course, be no control upon their ultimate destination.

In recent years appellate courts have frequently spoken about the condign punishment which may be expected by those who deal or traffick in drugs of addiction. Of course, this was not a case of trafficking, but it was a case where possession was for that purpose.

As to the nature of the amphetamines, it was put by the Crown that this was a dangerous drug, whether or not it is to be regarded as a mid-range narcotic or above. The fact that this is a dangerous drug was conceded on behalf of the appellant.

The amount and value of the amphetamines involved in the instant case, together with the motive for possession, made this a serious offence of its type. It is also the type of offence where an emphasis on general deterrence is required. Moreover, in these type of cases the authorities indicate that personal factors do not always loom as large as in other matters.

Balancing the gravity of the offence and the need for general deterrence with those factors personal to the appellant, I am led to the conclusion, and I propose, that the appellant be re-sentenced in the following terms:

On count 3 the appellant be sentenced to be imprisoned for 21 months; and on count 4 the appellant be imprisoned for one month.

Because I take the view that the samples were part of the larger transaction, I would propose that the sentences be served concurrently. That would result in a total effective sentence of 21 months.

I would propose that a minimum term of 15 months be set before the appellant is eligible for parole.

I also agree, but I should like to emphasise that the discretion is re-opened by the accident of a remark which the learned sentencing judge may have intended differently. It was at most an oversight, but cumulation carries through into the total effective sentence and thereby affects the non-parole period: cf. Attorney-General v. Kortum[1]. That is why it falls to us to re-sentence the appellant. The sentence imposed on count 3 was not manifestly excessive.

The sentences imposed on counts 3 and 4 are set aside. In lieu thereof the appellant is sentenced on count 3 to 21 months' imprisonment and on count 4 to 1 month's imprisonment. The total effective sentence is 21 months' imprisonment. A non-parole period of 15 months is fixed.

It is declared that the period of 297 days be reckoned as already served under the sentence and it is ordered that there be noted in the records of the court the fact that such declaration was made and its details.

[1] (Unreported) Court of Criminal Appeal, 23 September 1977 esp. at 4-5.

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