R v Gillick [2001] VSCA 201

Court of Appeal (Vic)|2001-11-01|Before: CHARLES, BUCHANAN and CHERNOV, JJ.A.

CRIMINAL LAW - Sentence - Parity - No sufficient difference in culpability of co-offenders - Plea of guilty - Desirability of sentencing judge stating plea of guilty has been taken into account.

I will ask Buchanan, J.A. to give the first judgment.

A plea was made on behalf of the appellant and on 17 January 2001 he was sentenced to a term of five years' imprisonment on the count of cultivation of a narcotic plant, to a term of two years' imprisonment on the count of theft, to a term of three years' imprisonment on each of the counts of bribery and to a term of three months' imprisonment on the count of possession of a firearm. The sentencing judge directed that 18 months of the sentence imposed in respect of one of the counts of bribery was to be served cumulatively upon the sentence imposed in respect of the offence of cultivation of a narcotic plant, producing an effective total term of six years and six months' imprisonment. His Honour fixed a minimum term of four years' imprisonment before the appellant was to be eligible for parole.

On 10 May 1999 the appellant was arrested leaving a dwelling house at 505 Nicholson Street, Carlton. The house was devoted to the cultivation of cannabis by a sophisticated hydroponic operation, utilizing plant fertilizer, wading pools and exhaust systems. The rooms of the dwelling house were used for different aspects of the production of the crop. The electricity required to conduct the hydroponic

operation was obtained by by-passing the electricity meter, which accounted for the charge of theft. The sentencing judge heard evidence as to the value of the crop from both the Crown and the appellant and concluded that the retail value of the crop to be produced by the plants was in excess of $750,000. A loaded semi-automatic pistol was found in the premises.

In February 1999 the appellant was concerned to obtain the adjournment of criminal proceedings against him. He discussed the matter with a man called Robinson who was then a prisoner at Barwon Prison. Robinson suggested that the appellant contact Detective Senior Sergeant Boyle and pay him money in order to obtain the adjournment. The appellant followed Robinson's advice and gave Boyle an envelope containing $3,000 as a bribe to arrange an adjournment of the appellant's case. The appellant was also concerned that at the hearing of the criminal proceedings against him it would be found that he had breached the terms of a suspended sentence. The appellant arranged to give Boyle $30,000 to "forget about the suspended sentence."

The appellant is now 30 years of age. He had ten previous convictions from three court appearances, including convictions for burglary, theft, resisting arrest and, significantly, cultivation of a narcotic plant. Indeed, he was on bail for an offence of cultivation of a narcotic plant at the time of the commission of these offences. In the course of the plea on his behalf the only information given to the sentencing judge as to the appellant's antecedents was this statement by his counsel:

"His history is one of a man who originally had a background, a family background where they were involved in various types of businesses, small types of businesses. He worked for them in certain things. He worked in various jobs. He always held good jobs.".

The burden of the plea was that the appellant was a very heavy user of cannabis, and that his principal interest in the crop, the subject matter of the offence, was to obtain cannabis for his own use.

The grounds of appeal are that the sentence was manifestly excessive and that the sentencing judge failed to place any or any sufficient weight upon totality and the appellant's prospects of rehabilitation. As a result of a recent amendment a ground was added that the sentence infringed the principle of parity by being manifestly disparate with the sentence imposed upon the appellant's co-offender Robinson.

As to parity, Robinson was sentenced to be imprisoned for a term of two years on a charge of bribery. Twenty-one months of that term was suspended for a period of three years. Robinson was sentenced on the basis that he had aided and abetted the crime committed by the appellant by giving him advice. The purpose of the adjournment sought by the appellant was to enable him to be at large until Robinson finished serving a sentence of imprisonment, for the appellant was handling Robinson's business interests whilst he was in custody. Robinson was 48 years of age when he was sentenced. He had 51 prior convictions from 32 court appearances. In the course of his plea, unlike the plea conducted on behalf of the appellant, evidence was led as to the work and interests of Robinson in indigenous affairs and as to his general character.

The fact that Robinson's sentence was one year less than that imposed upon the appellant is not to be explained by ascribing a lesser role to Robinson in the bribery of Boyle. His advice was not disinterested, for he stood to gain by the adjournment of the appellant's case. It appears from the summary of evidence before the sentencing judge that Robinson was the instigator of the bribery scheme and kept in close contact with the appellant, in effect, stage managing the commission of the offence. The appellant raised the money for the bribes and negotiated with Boyle independently of Robinson: of course, Robinson could not do that. It was to be readily inferred that Robinson did know of the intention of the appellant to bribe Boyle in order to hide the appellant's suspended sentence from the authorities concerned with the offence that would activate the suspended sentence. In my opinion, the appellant and Robinson were equally guilty of bribery. The limitations upon Robinson's role resulting from his imprisonment do not warrant the disparity in the sentences imposed upon him and the appellant.

The appeal in respect of the second count of bribery depends upon reducing the sentence imposed on the first count, and as I am of the view that the sentence on the first count infringed the principle of parity, the sentence on the second count must also be set aside.

Turning to the ground of manifest excess, which principally concerns the count of cultivation of a narcotic plant, the principal mitigating factor relied upon on behalf of the appellant was his plea of guilty. Section 5(2) of the Sentencing Act 1991 provides that in sentencing an offender a court must have regard to whether the offender pleaded guilty and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so. In the present case the plea was made at the earliest opportunity and the appellant had indicated even earlier his readiness to plead guilty. Counsel for the appellant submitted that the plea required a discount and the failure of the judge to state that he was taking the plea of guilty into account constituted an error.

I acknowledge the importance of a sentencing judge expressing the fact that a plea of guilty has reduced the sentence which would otherwise have been imposed, for the failure to do so dilutes the utility of the discount. Every judge sentencing an offender who has pleaded guilty should state that he has taken the plea into account and also the manner in which and the reasons for which the plea has been taken into account. The failure of the judge in this case to deal expressly with the plea is regrettable.

In a case in which a sentencing judge does not state that he has made allowance for a plea of guilty, it may be more readily inferred that he has not done so. I am not, however, persuaded that failure to state that a guilty plea has been taken into account necessarily and in every case is an error that vitiates a sentence. Mr Tehan asked us to go so far. I decline the invitation. In every case it will be necessary to determine whether an appropriate discount has been given. If the judge has not said that he has done so, it may nonetheless be inferred in an appropriate case.[1]

Mr Tehan said that Mr Justice Crockett's judgment in R v. Elvy, unreported, Court of Criminal Appeal, 18 April 1991, was the high watermark of the decisions dealing with the need to take into account a plea of guilty, but even in that case His Honour acknowledged that it was not a sentencing error to fail to state that that was being done. At p.4 of his judgment Mr Justice Crockett said, speaking of s.4 of the Penalties and Sentences Act 1985:

"That section enables a sentencing judge to take into account when fixing sentence the fact of a person's plea of guilty and furthermore to take into account the stage in the proceeding in which an indication was given of the accused's person's intention so to plead. Sub-s.(2) provides that if a court pursuant to sub-s.(1) reduces the sentence that it would otherwise impose, the court must state that fact when passing sentence. However, the failure of the court to comply with that sub-section does not invalidate any sentence imposed by it."

Mr Justice Crockett went on to say that it could not be inferred in that case that the sentencing judge did have regard to the provisions of s.4. His Honour contemplated that such an inference could be drawn in an appropriate case.

Other cases similarly stress the importance of taking a plea of guilty into account, but stop short of supporting a proposition that failure to record that fact necessarily vitiates a sentence. See, for example, Siganto v. R[2]; R v. Gray[3]; R v. Donnelly[4]; R v. Duncan[5].

18 In the present case I am of the view that it can be inferred that the sentencing judge did take the plea of guilty into account. I reach that conclusion from a

combination of circumstances. The sentencing judge began his sentencing remarks by noting, "Robert Anthony Gillick, you have pleaded guilty" to particular offences. The pleas of guilty were heavily relied upon by counsel during the course of the plea. The sentencing remarks on the whole were laconic, even terse. The sentencing judge made no attempt to canvass all or most of the factors relevant to sentence. Finally, I do not consider that the length of the sentence itself indicates that no discount was given to the plea of guilty.

For the foregoing reasons I am of the opinion that the appellant must be re-sentenced. I would impose a sentence of 18 months' imprisonment in respect of each of the counts of bribery. I would confirm the sentences imposed in respect of the firearm count and the count of cultivation of a commercial quantity of a narcotic plant. In respect of the latter, I observe that the operation conducted by the appellant was of considerable size and sophistication. The crop was worth a substantial amount of money. The gravity of the offence is reflected by the maximum sentence fixed by Parliament. I have earlier observed that the appellant at the time he committed this offence was on bail for a similar offence.

I have taken into account the pleas of guilty. The appellant indicated at the outset that he would plead guilty and he has thereby saved the State considerable time and resources.

I would cumulate three months of each of the sentences on the bribery counts on each other and on the count of cultivation of a narcotic plant, producing an effective total term of five and a half years' imprisonment. I would fix a minimum term of three and a half years' imprisonment before the appellant is to be eligible for parole.

22 A sentencing judge is obliged by s.5(2)(e) of the Sentencing Act 1991 to have regard to whether the offender pleaded guilty to the offences for which he is to be

sentenced, and, if so, the stage in the proceedings at which the offender did so, or indicated an intention to do so. The significance of a plea of guilty in relation to sentencing was considered in detail by Callaway, J.A. in R v. Duncan.[6]

In the present case the plea of guilty was important in that it was entered at the earliest possible time. During the plea counsel stressed this fact and that at the case conference and all the preliminary hearings of the matter the appellant indicated a preparedness to plead guilty, the only matter in dispute being the quantum of cannabis involved. The judge however made no mention of the plea as a consideration in the reasons for sentence. This may not matter in cases where, for example, the guilty plea is stressed by counsel and commented on by the judge during the hearing of the plea, and the prisoner is sentenced a comparatively short time afterwards. But in the present case nearly three months had elapsed between plea and sentence, and the judge had made no comment during the plea bearing upon the prisoner's guilty plea, or its consequences for sentencing.

In my view it is highly desirable, particularly where the plea of guilty is entered early, evidences genuine remorse or for any other reason carries special significance in sentencing, that the judge should at least record in sentencing remarks that the plea has been taken into account. In other jurisdictions, the failure to do so of itself betokens sentencing error.[7] But that has never yet been held to be the position in Victoria.

I agree with Buchanan, J.A. that error has been demonstrated under grounds 2 and 3 relating to parity. The structure of the judge's reasons also leaves me with some concern that his Honour did not, with respect, pay any regard in sentencing consideration to the pleas of guilty or the early time at which the appellant's willingness to plead was made known, in which case there would be further error

established. Cf R v. Elvy.[8] But it is not necessary for me to reach a conclusion upon this question because, for the reasons stated by Buchanan, J.A., I should not in any event have imposed a lesser sentence upon Counts 1, 2 and 5, even after taking into account the guilty pleas. The quantity of cannabis under cultivation was very substantial, the appellant was, at the time of the offence, on bail for similar offending, and he gave an explanation of his offending both through his counsel and on oath in the witness box which was highly improbable and which was not accepted by the judge.

I agree that the appeal should be allowed and the appellant re-sentenced in the manner proposed by Buchanan, J.A. For the reasons he has given, subject to the comments I have made.

In my view the appeal should be disposed of as proposed by Buchanan, J.A. for the reasons given by His Honour. I wish to associate myself with the observations of the other members of the Court that, where the applicant has pleaded guilty, it is desirable that the sentencing judge state in the sentencing remarks the extent to which the plea of guilty has been taken into account in the sentencing disposition.

(At this stage discussion ensued re pre -sentence detention.).

The appeal is allowed. The sentences on Counts 3 and 4 are set aside. The sentences on Counts 1, 2 and 5 are confirmed. On Counts 3 and 4 the appellant is sentenced in each case to be imprisoned for 18 months. The Court orders that three months of the sentences imposed on Counts 3 and 4 be served cumulatively upon

the sentence imposed on Count 1 and upon each other, making a total effective sentence of five years and six months. Pursuant to s.14(1) of the Sentencing Act the Court fixes a new non-parole period of three years and six months.

29 The Court declares that 303 days be reckoned as the period already served to this day under the sentence and orders that this declaration be noted in the records of the Court and its details.

[1] See R. v. Brooks [2000] 188 VSCA; R. v. Roy [2001] VSCA 61; (2001) 119 A.Crim.R. 147.

[7] Cf R v. Thomson (2000) 49 NSWLR 383 at [53] and [160]; Penalties and Sentences Act 1992 (Queensland) s.13(3); and Sentencing Act 1995 (Western Australia) s.8(4).

[8] Unreported, Court of Criminal Appeal, 18 April 1991, at pp.4-5.

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