R v Hughes [1998] VSCA 98

Court of Appeal (Vic)|1998-10-19|Before: TADGELL, ORMISTON and CHARLES, JJ.A.

The applicant seeks leave to appeal from a sentence imposed on him in the County Court, where he pleaded guilty in May of this year to one count of conspiring to traffic in a drug of dependence, namely methylamphetamine, for which the maximum penalty was 15 years' imprisonment, but for which, on this occasion, the applicant was sentenced to three years' imprisonment, of which he has to serve 18 months before becoming eligible for parole.

Two grounds of appeal are relied upon in support of the application, namely, (1) that the sentence was manifestly excessive; (2) that the learned judge erred in imposing the sentence "in comparison to the sentences which were imposed on the applicant's co-offenders", thereby raising the issue of parity. The latter ground requires the Court to have regard to the other sentences imposed that day on four other persons involved in the conspiracy, who also pleaded guilty to a number of other offences, including trafficking and being in possession of drugs of dependence, as well as one count of cultivating a narcotic plant.

At least four of the five offenders had been observed at or near a shed rented by one of the accused, Neville, in which a laboratory had been set up to manufacture amphetamines. One of the co-offenders, Darrell James Burton, seems to have been the principal person involved in getting the scheme under way, although one Sheales, who was not before the sentencing judge and in fact has not yet been tried, may also have had a significant role: of him it is unnecessary to say anything. Certainly in August 1996 they purchased some chemical glassware for the proposed laboratory, as police surveillance of their activities revealed, primarily of conversations on the telephone of Darrell Burton. The surveillance then revealed discussions in September 1996 between Darrell Burton and his son Michael about obtaining books from America describing methods to be used in the manufacture of amphetamine, obtaining finance from the applicant, using a TAB account in the name of Darrell Burton, and about the obtaining of chemicals.

From 21 September 1996, meetings were organised between Darrell and Michael Burton and the applicant, usually at Michael Burton's house. It seems that Michael Burton was aware that his father planned to undertake the manufacture of methylamphetamine and agreed to assist him in organising access to finance, chemicals and glassware. The applicant seems at this stage to have agreed to provide finance for the venture. From discussions between Darrell and Michael Burton monitored in October 1996, it appears that Sudafed tablets were being obtained, as well as a heating mantle and more laboratory glassware. Darrell Burton also advised that the books from America had arrived and that a further meeting would be set up with the applicant. Stephen Beswick, also sentenced by the judge, was shown to have been in possession of many items of glassware which could be used in the manufacture of amphetamine, which he had offered for sale by placing advertisements in a newspaper. Darrell Burton had responded, and from this point on Beswick continued to have contact with Darrell Burton in relation to the provision of chemical glassware. On 11 October 1996 Beswick telephoned Darrell Burton in relation to the glassware and a hotplate. By 7 November Beswick was in possession of a book describing the method of manufacturing amphetamines and was in fact reading it. They then had a discussion as to their understanding of the process to be undertaken, and arrangements were made for Beswick to be present when the laboratory was in operation. Beswick knew from at least this point that the glassware he had provided was to be used in the manufacture of methylamphetamine.

On 15 November 1996 the applicant was seen to arrive at Darrell Burton's house. It had been arranged that the applicant provide the transport to the premises where the laboratory was set up, and he had obtained his father's car. The applicant and Darrell Burton then went to Beswick's house, where they picked him up and drove off to a property at Hunter, near Bendigo. This was about a three-hour trip from Beswick's house. The three men in the car entered the premises, which were at Lot 2, Coghlan's Road, Hunter, and were rented from one Gregory Neville, who lived there with his family and who was also sentenced on this occasion by the learned judge. About one month earlier, Neville had been approached by the applicant to use a shed at the back of his property in return for the payment of $3,000, for what period does not appear clear. Neville later admitted that he knew there was a laboratory set up in the shed on his property for the purpose of drug manufacturing. During the course of that weekend, 15 and 16 November, Neville was seen to enter the shed where the laboratory had been set up on a number of occasions to supply Darrell Burton, the applicant and Beswick with food. He was also seen to tend his marijuana plants, which were located at the rear of the shed and which were the subject of a separate count against him, so that Neville had been able to see the laboratory in operation. One may infer that the applicant and the Burtons were there engaged in either manufacturing the amphetamines or in manufacturing materials necessary for the purpose of manufacturing amphetamines and that the applicant had had an important role in setting up and carrying out the scheme.

On 16 November, Neville went to Rochester and purchased eight litres of mineral turpentine and twelve litres of distilled water, both of which substances may be used in the manufacture of amphetamines. During that weekend the applicant, Darrell Burton and Beswick were seen around and entering the shed, which was later found to have the laboratory set up in it, and Darrell Burton was overheard referring to keeping a close eye on temperatures.

On 17 November, members of the Drug Squad executed a search warrant at the Hunter address. The applicant, Darrell Burton, Beswick and Neville were all arrested inside the residential dwelling located on the property. The shed was searched and the laboratory was found in the shed, as well as a hydroponic cannabis crop, and there were assorted chemicals, apparatus and the like scattered around the property. The four men were arrested on the property and conveyed to the police station and interviewed. Similarly, Michael Burton was arrested at his home on that day.

When interviewed by the police, the applicant agreed that he had been at the shed at Hunter on a number of occasions, but otherwise gave a "no comment" interview. The other co-accused gave some more informative answers when interviewed. From those it may be seen that Darrell Burton had played a prominent part in setting up the scheme. He had not as yet sold any amphetamines but hoped to make a profit in due course of $10,000. Michael Burton was at home during the raid on the shed. He was, of course, separately arrested and a small quantity of tetrahydrocannabinol found. Beswick admitted his part in procuring the glass and his presence at the factory. Neville's role seemed much smaller in that he had merely agreed to the use of his shed, for which the applicant had paid him $3,000 rent. He was also charged with cultivation of cannabis found on the property behind the shed.

The evidence also revealed that the applicant had advanced money to Darrell Burton, that he had participated in the planning and carrying into effect of the scheme, and that he had stored the chemicals at his own home for two weeks before he helped to take them by car to the shed at Hunter. Although Darrell Burton was the "cook", as he was described, in the process, the applicant had been present keeping an eye on things throughout that process. Finally, there was expert evidence as to the material recovered from the site - some 1,072 grams of psdeudoephedrine, from which at least 500 grams of methylamphetamines could have been produced, worth, as it was said, $38,500 and considerably more in street value. There was also found some hydriodic acid on site, for use in the manufacturing of amphetamines.

There was a plea on behalf of each of the accused before the learned County Court judge, and the following sentences were passed by him. As already noted, the applicant was sentenced to be imprisoned for three years and the judge fixed 18 months to be served before the applicant became eligible for parole. In addition his Honour made a declaration that he had served 34 days in custody in the customary way. The learned judge sentenced Darrell Burton to be imprisoned for three years six months on the first count, to be imprisoned for three years on count 2, which was a charge of trafficking in drugs of dependence including methylamphetamine, cannabis L and tetrahydrocannabinol, and three months on a third count, being in possession of a drug of dependence, namely heroin. His Honour ordered that six months of the sentence imposed on count 2 be served cumulatively on the sentence imposed on count 1, which made a total effective term of four years. The judge then fixed three years as the period to be served by Darrell Burton before becoming eligible for parole and made a declaration as to his time in custody.

As to Michael Burton, the judge sentenced him to be imprisoned for two years six months on count 1 and two years on count 2. He ordered that six months of the sentence on count 2 be served cumulatively on the sentence to be served on count 1, making a total effective sentence of three years' imprisonment, but that was wholly suspended for a period of three years. His Honour sentenced the co-accused Beswick on count 1 to be imprisoned for three years, and that sentence was likewise wholly suspended for a period of three years.

As to the accused Gregory Neville, he was sentenced to be imprisoned for 18 months on count 1, which again was suspended wholly for a period of three years. Neville was also sentenced to pay a fine of $450 on count 4 relating to the cultivation of cannabis by him, and also was fined on a summary offence under the Firearms Act.

The learned judge's reasons dealt in detail with the facts and each of the accused. It is clear that he referred to each of the matters to which emphasis might fairly be given. No complaint was really made as to any specific fact findings. The learned judge, in his carefully worked out reasons, was clearly aware of his obligations in applying the principles of parity and dealt with the many common and the distinguishing factors: for example, the fact that the applicant admitted 22 prior convictions from eight court appearances for a variety of offences, although one only related to drugs, whereas Darrell Burton, now aged 44, admitted 38 prior convictions from ten court appearances, many of which were related to drug dealings, including amphetamines. By contrast, his son Michael, aged 21, had no prior convictions at all, nor did Neville, aged 37, have any prior convictions. Beswick had three prior convictions but they were for summary offences in 1989, for which he was then fined. Otherwise it is not practicable to set out all the matters carefully described by the sentencing judge.

As already stated, there are two grounds of application: (1) that the sentence was manifestly excessive and (2) that it was erroneous in comparison with the sentences on the various co-offenders. On the first ground counsel relied on a number of factors: (1) his less significant role in the conspiracy; (2) the fact that too great weight had been placed on his prior convictions; (3) the failure to have due regard to his recent behaviour and rehabilitation; and (4) a delay of 18 months before the sentencing hearing.

In my opinion, even if they could all be established, none of these matters, either singly or in combination, appear to me to justify any conclusion that the sentence was manifestly excessive. Indeed, if anything, it might be thought to be modest, having regard to the significance of the part played by the applicant and the seriousness of conspiracies which have as their aim the manufacture of drugs such as amphetamines. It was not a small scale venture, and the applicant was involved in almost every aspect of it. The delay was minor and, although to be regretted, ought not to have affected the sentencing discretion any more than it did, as the learned judge expressly said that he took it into account. As to the applicant's prior convictions and his recent rehabilitation, each of those was carefully acknowledged, but nothing has been shown which would establish that either his record had been unduly emphasised or that his rehabilitation had been unduly down-played. Although, as was pointed out in the careful argument of his counsel, it was some time since the applicant had served a sentence in gaol, regrettably he has had a consistent record of breaking the law in a variety of ways, and this charge was not inconsistent with a failure to comply with the law whenever he chose to do so and whenever it suited him. His recent behaviour, although entitled to weight, cannot, in the totality of things, persuade me that a lesser sentence should have been imposed. Having regard to the significance of the applicant's role, I do not consider the application should succeed on this ground.

As to the judge's failure to apply the rules of parity, this is but another example of the difficulties when there are a significant number of co-offenders. In my opinion, the judge made a serious, careful attempt to grade the seriousness of his offending as against the offending of each of the other offenders. Perhaps some might have been dealt with either slightly more severely or some slightly less so, as in the case, possibly, of Michael Burton. The question of parity is always a matter of degree as to what creates a justifiable sense of grievance. In each case that must be looked at carefully, but, of course, all convicted accused persons think that they are hardly done by unless they get particularly lenient sentences. It is important to recall that the factors of every case are different, even in the case of conspiracies, and this is but another example where the role of the conspirators has been significantly different. There were differences which existed as to the conspirators' antecedents and other factors which might fairly have been taken into account. Here, the judge gave the applicant a lesser sentence than that of the person he described as the principal party, Darrell Burton. Not merely was the head sentence less but the time to be served before becoming eligible for parole was only one-and-a-half years as opposed to the three years to be served by Burton, although he there took into account, of course, two other less significant offences. Likewise, Michael Burton was clearly to be treated less severely. He was a first offender, and that, in the exercise of the judge's discretion, might fairly call for a suspended sentence, which in fact he received. The same argument goes for Beswick. Although in his case he had some minor convictions, they were for summary offences, and the judge was properly persuaded that in dealing with him, and in relation to an offence committed as long ago as 1989, he should have a second opportunity in the sense that a suspended sentence should be passed upon him. No comparison was sought to be made with the other persons in the conspiracy and I shall not deal with them.

It may be argued that, perhaps, the difference between the sentence imposed on the applicant and that on the principal offender, Darrell John Burton, might have been greater, but the sentences here were modest and the differences hard to express except in small ways. In my opinion the differences were justified, or at least they cannot be shown not to have been justified, by the manner in which each of the accused was dealt with. I am not satisfied that the principles of parity have not been observed. The learned judge appears to have carefully weighed each of these matters, and he is the person best able to assess the whole of the evidence, having regard to the manner in which the cases on behalf of each accused had been put to him, and responsibility attributable to each of them.

I am not persuaded that this second ground has been made out and I would therefore dismiss the application.

I agree, essentially for the reasons assigned by Ormiston, J.A., that this application should be dismissed.

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