R v Goodwin; R v McGregor [2003] VSCA 120

2 The first appellant, Jason Goodwin, who was aged 29 at the time of sentencing, pleaded guilty to two counts of trafficking in a drug of dependence contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981. On the first count the drug was heroin and on the second methyl-amphetamine. The offence carried a maximum sentence of imprisonment of 15 years. Goodwin also pleaded guilty to one count of assisting an offender to avoid apprehension for an offence, namely, theft, contrary to s.325(1) of the Crimes Act 1958. That offence carried a maximum term of imprisonment of five years.

3 The second appellant, John Duncan McGregor, who was aged 57 when sentenced, pleaded guilty to one count of trafficking in a drug of dependence, the drug being heroin, and to one count of possessing a drug of dependence, being methyl-amphetamine, contrary to s.73 of the Drugs, Poisons and Controlled Substances Act. The offence of possession of a drug of dependence carried a maximum sentence of imprisonment of five years.

4 On 11 November 2002 a judge of the County Court sentenced Goodwin to four years' imprisonment on the count of trafficking heroin. On the count of trafficking methyl-amphetamine he was sentenced to nine months' imprisonment and on the count of assisting an offender he was sentenced to three months' imprisonment. A total effective sentence of four years' imprisonment was thereby imposed and the learned sentencing judge fixed a non-parole period of two years nine months for Goodwin.

5 McGregor was sentenced to four years' imprisonment on the count of trafficking heroin and six months on the count of possessing methyl-amphetamine, and a non-parole period of two years was fixed.

6 Goodwin had been jointly charged with Leanne Vaughan, who has not appealed against the sentences imposed on her, and on the same presentment McGregor was jointly charged with Philip Cocking as to the offence of trafficking in heroin. Cocking also pleaded guilty to other offences, and he too has not appealed.

7 Leave to appeal, on limited grounds, was granted to both appellants by a judge of this Court on 21 March 2003.

8 Only one ground of appeal relates to the appellant Goodwin and that is that the judge gave insufficient weight to the principle of parity, with respect to the sentence imposed on McGregor.

9 The grounds of appeal with respect to the appeal by McGregor are as follows:

"1. The learned sentencing judge erred in taking into account in assessing the appellant's culpability the admissions made by Philip Stephen Cocking in his record of interview with police.

1. 2. The learned sentencing judge erred by failing to properly take into account the fact that the appellant suffered from post traumatic stress disorder that was sustained as a result of having served in combat in Vietnam.
2. 3. The learned sentencing judge erred by imposing sentences and a total effective sentence that were manifestly excessive in all the circumstances."

10 These offences arose as a result of covert surveillance conducted by police on Goodwin and Vaughan, who was Goodwin's de facto partner. The offence of assisting an offender was a discrete matter and related to Goodwin and Vaughan's presence in a motor car outside the Croydon post office when an associate, notwithstanding their attempts to discourage him doing so, committed a robbery in the post office and ran to the car and was then driven away by them. The notice of appeal does not refer to this sentence and no argument was addressed concerning it.

11 As to the trafficking offences, between 5 July 2001 and 16 August 2001 Goodwin and Vaughan had been using their vehicle to traffic heroin to users in the suburbs of Ringwood, The Basin, Bayswater, Mooroolbark and other eastern areas. Predominantly the drug trafficked was heroin but to a limited extent they were trafficking also in methyl-amphetamine. Their supplier of heroin was McGregor and the Crown case against McGregor was that he supplied heroin to Vaughan and Goodwin between 17 July 2001 and 16 August 2001. Sometimes he delivered the drug himself but Cocking was also utilised by McGregor as his sometime courier to deliver heroin to Goodwin and Vaughan. Cocking was rewarded for his efforts by the provision of drugs from McGregor for his own use.

12 It was accepted by the Crown that Goodwin and Vaughan were street dealers and were themselves users of heroin. They dealt with a fixed customer base of users within their area of operation. In the court below the prosecutor referred to a written Crown opening which had been provided to counsel for the appellants and he read that opening to the judge. The prosecutor said it was impossible to quantify with certainty the total quantity of drugs which had been purchased by Goodwin and Vaughan, whether from McGregor directly or else purchased from McGregor but delivered via Cocking. A chart of intercepted telephone communications was tendered which provided some evidence of the modus operandi of Goodwin and Vaughan and their dealings with McGregor and their customers. The evidence disclosed that McGregor had made direct contact with Goodwin and Vaughan on fifteen occasions during the relevant period. Goodwin and Vaughan made purchases of heroin from McGregor in amounts of up to $1750 at a time, for resale purposes. His Honour noted that the heroin sold by Goodwin and Vaughan was consistently of about 15 per cent purity. Although the quantity of drugs sold was somewhat uncertain the judge found that as to one occasion, on 16 August 2001, 1.8gms had been purchased from McGregor and that would have realised 22 deals which Goodwin and Vaughan could have thereby effected, with takings between $1000 and $1125, and with a gross profit of about $300 to $325.

13 The practice of Goodwin and Vaughan was to drive around the suburbs whilst receiving phone calls from customers with whom they would then make arrangements for delivery of the drugs. When they were arrested the motor vehicle being used by them had within it four silver foils, each of which contained heroin. A search of Goodwin's vehicle also revealed a crossbow, a black-handled knife and a radio scanner, which was used to monitor police activity.

14 When McGregor was arrested he was found to have $800 in notes in the breast pocket of his jacket. McGregor's vehicle was found to contain 21 foil packages containing heroin and when his home was searched police found $23,600 in cash and 0.1gm of methyl-amphetamines secreted in a film canister. In submissions to the judge it was contended that the cash was a loan from McGregor's sister and the judge did not make a finding adverse to McGregor save to have regard to the fact that although he had access to such funds he nonetheless contended, through counsel, that his motivation in engaging in drug trafficking was to escape a life of financial deprivation.

15 When interviewed by police Goodwin denied buying heroin from McGregor and denied selling heroin. He also denied selling amphetamines. McGregor was interviewed by police but made no admissions. He declined to name the person from whom he purchased the drugs which he on-sold to Goodwin and Vaughan.

16 The sentencing judge was one of the most experienced judges in the County Court. He heard very lengthy submissions on penalty then reserved his decisions on sentence. In his report to the Court of Appeal the judge said he gave very careful thought to all of the submissions that had been made to him and to the findings of fact that he would make. His long and comprehensive sentencing remarks demonstrate the degree of care that his Honour gave to the sentencing process in this case. As will emerge, it is my view that far from the sentencing remarks betraying error they were an example of a careful and appropriate sentencing process.

17 The appellant Goodwin admitted 55 previous convictions from ten court appearances. Many of those were drug offences but none was for trafficking. In October 1989 he was sentenced to detention in a youth training centre for twelve months with respect to offences of dishonesty and a year later was further sentenced to imprisonment, to be served on a community-based order, with respect to further dishonesty offences and driving offences and also to two counts of using a drug of dependence, namely, cannabis. He was sentenced to imprisonment for dishonesty offences in June 1991, the sentence being wholly suspended, and sentenced for possession and using offences concerning cannabis in February 1992. In May 1993 he was sentenced to seven years' imprisonment with a non-parole period of five years for manslaughter. On four further occasions between April 1998 and May 2000 he was sentenced for offences ranging from theft to unlawful assault and possession and use of cannabis.

18 McGregor admitted four previous convictions from one court appearance. On 17 January 2000 he was convicted of trafficking in a drug of dependence, namely cannabis, and of possession and cultivation of the same drug, and also theft, and was sentenced to an aggregate term of imprisonment of six months being wholly suspended for 18 months. He was also fined. It is significant that although he was before the courts on only the one previous occasion the offending in the present case commenced the day after the expiry of the 18 months' period of suspended sentence which the court had earlier imposed.

19 On behalf of Goodwin, Mr Thomas submitted that when regard was had to the respective roles of Goodwin and McGregor the imposition of the same head sentence for both is inexplicable, and would give rise to a justifiable sense of grievance and an appearance of injustice to an objective observer. Mr Thomas accepted that the personal circumstances of McGregor were far more likely to excite sympathy and to favour an amelioration of sentence than was the case for Goodwin. He submitted, however, that it would have been inappropriate to reduce the sentence to be imposed on McGregor on account of such factors. Mr Thomas submitted that the courts had made it clear that in cases of drug trafficking considerable emphasis must be placed on the need for general deterrence as opposed to mitigatory factors personal to the accused: see R. v. Pantsis[1]. Furthermore, he submitted, the judge would not have been entitled to make any significant allowance on sentence for the mental illness suffered by McGregor. The condition of post-traumatic stress disorder which had been emphasised on the plea on McGregor's behalf, did not carry the same significance as the mental illness discussed in R. v. Tsiaras[2] and R. v. Anderson[3]. Those were cases where the accused was suffering schizophrenia or similar serious and delusional illness, which obscured the mental intent to commit the crime charged. By contrast, Mr Thomas submitted, the condition suffered by McGregor was, at its highest, akin to that discussed by Winneke, A.C.J. in R. v. Yaldiz[4]. Having regard to the symptoms and consequences of the particular psychiatric condition, and the nature and severity of the symptoms and the effect of the condition on the mental capacity of McGregor, general deterrence would not have been removed or reduced to any significant extent as a relevant factor, Mr Thomas submitted.

20 Thus, counsel further submitted, one is left with the situation that Goodwin, who was a drug user, who had no prior convictions for trafficking, whose trafficking was at street level, and was not of a major order, received the identical head sentence to McGregor who was a supplier of drugs to street level traffickers, who was not a user and who had a prior conviction for trafficking in a drug of dependence. The disparity was manifest, Mr Thomas submitted.

21 The Court would only intervene on grounds of disparity where the disparity, or, as may be more appropriately expressed for this case, where the lack of disparity between the two sentences was manifest and would engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done: see R. v. Taudevin[5], Lowe v. The Queen[6]. Equal justice is said to require an identity of outcome in cases that are relevantly identical and to require different outcomes in cases that are different in some relevant respect: see Wong v. The Queen[7]. Where such disparity was disclosed the Court may intervene even though the sentence does not otherwise disclose error in the sentencing process: see R. v. Wilson[8].

22 Mr Thomas conceded that no complaint was made that the sentence imposed on Goodwin was manifestly excessive. The sole complaint was that he should have received a lesser sentence than McGregor, whatever sentence, within range, McGregor received. As he acknowledged, his complaint of disparity would collapse if the sentence imposed on McGregor was to be regarded as being unduly lenient or could be explained by factors which pertained to McGregor, but not to Goodwin.

23 I turn then to McGregor's sentence. Grounds 1 and 2 asserted sentencing error by the judge. Mr Boyce said that ground 3, the complaint of manifest excess, could really only be made out if the errors in principle addressed by grounds 1 and 2 were made out. He could not otherwise assert that the sentence was manifestly excessive.

24 Ground 1 asserts that when sentencing McGregor the judge took into account statements made to police by Cocking in his record of interview as to the extent of his drug dealing with McGregor. Mr Boyce highlighted one passage in the judge's 40 pages of his remarks on sentence. The passage appears at a time where the judge was dealing solely with the sentencing of Cocking. The judge accepted, and it was not disputed by counsel then appearing for McGregor, that Cocking acted as McGregor's agent and courier. In the course of what was a finding by his Honour that Cocking had exaggerated the amount of drugs that had been supplied to him by McGregor, the judge said of Cocking "your admissions are not appropriate for the drawing of any inferences against McGregor, at least, in respect of admissions of activity which was said to have taken place outside the period of trafficking to which McGregor has pleaded".

25 His Honour might have better expressed himself in that passage, but in my view what is very clear is that his Honour, as one would expect of so experienced a judge, was well aware that he could not use the admissions of Cocking against McGregor. His Honour said that he was so aware, and expressly said that he would not fall into that error. When the sentencing remarks concerning McGregor are examined, there is not one finding of fact made by his Honour which refers to or relies on any statement made by Cocking. In my opinion, there is no substance in ground 1.

26 Ground 2 complains that the judge failed to properly take into account the post traumatic stress disorder which the appellant suffered in consequence of his military service in Vietnam.

27 Mr Boyce conceded that his Honour did indeed have regard to the post traumatic stress disorder of the appellant. The complaint is really twofold. First, that his Honour did not treat that condition as justifying the extent of amelioration of sentence that the court in Tsiaras thought appropriate for the condition there described. Secondly, it was submitted that the judge's remarks unduly diminished the seriousness of the condition and its impact on the appellant and also mis-stated or undervalued the medical and psychiatric evidence which was before him.

28 The judge had an abundance of material before him concerning the appellant's condition. He referred to that material in some detail and noted that the condition of post traumatic stress disorder had been accepted by the Department of Veterans' Affairs as war-related and as rendering the appellant totally and permanently incapacitated.

29 Mr Boyce in his written outline referred to some passages in his Honour's reasons and submitted that his Honour made unjustified findings that the appellant had exaggerated the effect of his condition. In considering his Honour's remarks it is important to understand the submissions which had been made to the judge based on the post traumatic stress disorder. A psychologist, Mr Cummins, had contended that the decision to sell heroin had to be understood as being one taken by a person whose mental state was chronically compromised. But as the judge noted, the appellant was not disputing that he knew what he was doing was wrong and the appellant advanced as an explanation for his conduct that he saw the only way of bettering the accommodation and life style of himself and his family was for him to engage in the heroin trade. This was a person who had only just completed a period of a suspended sentence imposed by a court for drug trafficking, and no doubt the post traumatic stress disorder was a matter emphasised to the court on that occasion also.

30 In detailing the complaints which the appellant had made to the psychiatrist, Dr Parekh, the judge observed that his complaints about how his life had been changed by his war service were tinged with what he said was self-pity and self-indulgence. Mr Cummins himself had noted that the appellant engaged in a degree of self-pity. The observation by the judge that the complaints were "tinged" in that way was open to his Honour and did not constitute a complete rejection of the relevance of the condition, but merely reflected a balanced appreciation of its importance. Other passages about which complaint was made in fact also demonstrate this balanced approach. It was open to his Honour to conclude that the appellant in his consultations with Mr Cummins and Dr Parekh was seeking to avoid all responsibility for the offences by attributing his conduct solely to his war service. In the passages below of which complaint is made the words emphasised by me are important. Thus, his Honour said of the appellant that he:

"cannot take further refuge behind his war service and acquired physical and psychiatric conditions as a matter of total mitigation for his serious anti-social behaviour";

"a profound, albeit somewhat exaggerated, effect upon him of his war service".

31 His Honour was entitled to qualify the evidence before him in those ways.

32 This was not a case akin to Tsiaras. His Honour accepted that the condition would make the sentence imposed on the appellant more difficult than for persons without that condition. He expressly tempered sentence on that account. He agreed that the decision to traffic in drugs was to be judged in the context of the appellant's mental state but rejected the suggestion that it was the sole explanation for what was not only a calculated decision to further engage in the drug trade, but a decision to advance from cannabis trafficking to heroin trafficking.

33 In my opinion ground 2 is not made out, nor is there any basis on which the sentence could be regarded as being manifestly excessive.

34 In my opinion, the sentence imposed on McGregor was a very merciful one, indeed it borders on being manifestly inadequate. That the head sentence imposed on McGregor was the same as that imposed on Goodwin is to be explained by the fact that he was given substantial allowance for factors which were not available to be called in aid by Goodwin. The post traumatic stress disorder was merely one of the factors relating to the health and antecedents of McGregor on which his counsel had relied in mitigation of sentence. It is unnecessary to detail those additional matters, but among them were the fact that McGregor was married with two children, had a good work history prior to the onset of his mental illness, and had not been convicted of any offence until he was in his fifties. Mr Thomas, for Goodwin, conceded that whilst the mitigatory factors relied on by McGregor may have had less weight in a case involving drug trafficking the sentencing judge was nonetheless entitled to have regard to them when determining the appropriate sentence for him. The combination of such mitigatory factors, in my opinion, explains why no justifiable complaint on grounds of parity can be maintained by Goodwin.

35 In my opinion, the appeals of both Goodwin and McGregor should be dismissed.

36 At the end of argument in these appeals, counsel for one of the appellants told the Court that, during the s.582 application made by both appellants on 21 March 2003, the learned judge, upon granting leave to appeal, stated his opinion that both appeals were bound to fail. With respect, I entirely agree.

37 I also agree with Eames, J.A. that both appeals should be dismissed, for the reasons given by his Honour.

38 I also agree that the appeals should be dismissed, for the reasons given by Eames, J.A.

[1] [1998] VSCA 134, at 12, per Tadgell, J.A.

[2] [1996] VicRp 26; [1996] 1 V.R. 398.

[3] [1981] VicRp 17; [1981] V.R. 155.

[4] [1998] 2 V.R. 376, at 383.

[5] [1996] VICSC 7; [1996] 2 V.R. 402, at 404.

[6] [1984] HCA 46; (1984) 154 C.L.R. 606.

[7] [2001] HCA 64, at [65].

[8] [2000] VSCA 202; (2002) 116 A.Crim.R. 90.