R v Ienco [2008] VSCA 17

Court of Appeal (Vic)|2008-02-14|Before: VINCENT, NETTLE and KELLAM JJA

Criminal law - Sentencing - Trafficking in amphetamines - Appellant the manager of large family farming enterprise - Alleged failure by judge to conclude that circumstances of hardship suffered by appellant's family were 'exceptional' - Appeal dismissed.

1 I will invite Kellam JA to deliver the first judgment.

• Count 1 - trafficking in a drug of dependence - 21 months' imprisonment;

• Count 2 - handling stolen goods - nine months' imprisonment.

3 His Honour directed that three months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, thus producing a total effective sentence of two years' imprisonment. He directed that a non-parole period of nine months' imprisonment be fixed.

4 Before addressing the grounds of appeal, it is necessary to say something about the facts. The appellant, who was then aged 37 years, was arrested by police on 6 April 2006 at his home in Robinvale. On that date, police executed a search warrant of the appellant's home. In the kitchen refrigerator they located 1,413 tablets together with a foil packet containing powder. The appellant declined to tell police what the tablets were, but stated that they were his and that he used them to keep awake whilst he was driving trucks. Upon analysis, the 1,413 tablets were found to comprise 405.8 grams of substance which had an approximate purity of 1.6 per cent methylamphetamine. Thus, the total amount of methylamphetamine found in the tablets was slightly in excess of 6.5 grams. The foil packet was found to contain half a gram of powder with an approximate purity of six per cent methylamphetamine. There was evidence before his Honour that the street value of the tablets varied between $35 and**

$50 per tablet or between $49,455 and $70,650 in total. Presumably this evidence related to the street value of tablets containing methylamphetamine without any consideration of the actual amount of methylamphetamine contained in those tablets. These matters form the factual background to count 1.

**5 On the same day, a search warrant was executed at the nearby home of the appellant's parents. Police found a Stihl chainsaw. The police search of a nearby shed used by the appellant as a packing shed revealed the presence of a Lavor pressure washer. Both the chainsaw and the pressure washer had been stolen earlier from a nearby farm. The appellant told police that he had found those objects at premises which he had rented to tenants several months earlier. He admitted that he had suspected that they were stolen and had tried to hide them so that they would not be found. The tenants have since been charged with several counts of burglary and theft. Those matters are the subject of count 2.

6 The appellant is a man of Italian background. Although he was born in Sydney his family moved to Northern Victoria when he was a very young child. He had problems at school due to difficulties with the English language and he left school having failed year nine. Upon leaving school at the age of 15, he commenced to work on family properties. Since the age of 15, the appellant has worked on the rural properties operated by his family. He was involved in various aspects of farming but as he grew older his responsibilities increased. At the time of the plea he was the manager of his family's properties, having oversight of the operations of eight grape growing properties. He was involved in production, sales and distribution. However, the family properties had not always operated profitably, and as a result, over the years he had engaged in supplementing the family's income by undertaking work as a truck driver in the transport industry.

7 Evidence was given before his Honour by the family accountant, Mr Nair. Mr Nair has known the appellant since the appellant was aged approximately 19 years. As the family accountant, Mr Nair had a close association with the family farming operation. He gave evidence that the appellant was responsible for important decisions as to the timing of the irrigation, and the spraying of the crops. He was also responsible for the quality of chemicals used. Such matters, Mr Nair said, were crucial to the quality of the produce and to the yield of the crop. He gave evidence that the father of the appellant spent most of the year in Sydney, operating a 'market stand' associated with the sale of the family produce. He said that the appellant had been trained by his father to manage the properties and that there was no-one else who could undertake that task as effectively as did the appellant. Mr Nair gave evidence that the appellant's younger brother had never been trained in matters such as fertilising and that he was effectively a labourer who drove the trucks delivering grapes from the family properties to Sydney. He said that the appellant's father would no longer be able to run the properties.

8 Mr Nair stated that during 2006 a chemical used to spray the farm crops destroyed 80 to 90 per cent of the crop. He gave evidence that the farm debts of the appellant were in the order of $4 million. Mr Nair said that the allocation of irrigation water had been reduced significantly by reason of the drought and that water had to be purchased at a considerable expense. He said that drought conditions had never been as bad as they were at the time of his giving evidence.

9 At the time of his plea the appellant was married with four children under ten years of age.

10 The appellant had appeared in court on one occasion in the past. On 22 June 2000 he was found guilty of a number of log book offences, an offence of being in possession of ammunition without a licence and one charge of possession and one charge of use of cannabis. On the charge of being in possession of ammunition without a licence he was fined $500. He was fined $500 in relation to four log book offences. On the charges of possession and use of cannabis he was fined $100 in total, with no conviction being recorded.

11 Counsel for the appellant on the plea before his Honour submitted that there were exceptional circumstances of hardship which would be caused to the family of the appellant if he was imprisoned. Those circumstances, so it was submitted, justified the imposition of a non-custodial disposition. It was submitted that the circumstances of the appellant being, as he was, responsible for the administration of the family farm at a time of severe drought and with the loss of almost all the preceding year's crop, were such that a merciful disposition was justified. Indeed it was submitted by counsel for the appellant that a suspended sentence should be imposed.

12 His Honour accepted that 'the situation with regard to water, or lack of it, is indeed a crisis and that the Mildura economy is under threat due to the severe drought conditions and lack of available water'. However his Honour rejected the submission that the circumstances in which the appellant found himself were exceptional. He said as follows:**

While I accept that the high level of debt is a problem, these properties have not always been financially profitable or viable. While I accept that the present drought is severe, and that water is not only in very short supply but also very expensive, I do not regard those matters, whether taken in conjunction with other considerations that Mr Kassimatis raised, such as the loss of the majority of the previous crop and the high level of debt as exceptional.

Australia is sometimes referred to as the sunburnt country, and it is common knowledge to anyone who has lived in Australia for any length of time that dry and arid conditions, indeed drought, is a fact of life for those who live in certain areas of the country, which include parts of northern Victoria.

Your circumstances, Mr Ienco, are not in my judgment so exceptional as to be beyond reasonable contemplation or expectation. Whilst hardship cannot be taken into account for sentencing purposes, because I am not satisfied the circumstances are exceptional, it may as Chernov JA observed in R v Nagul[1] be taken into consideration in determining whether mercy should be extended to you, the exercise of mercy being part of the exercise of the sentencing discretion.

In your case Mr Ienco given the combination of circumstances on which Mr Kassimatis relied and to which I have referred in general terms, I am satisfied that hardship to the family's circumstances will make your imprisonment more onerous than would otherwise be the position.

**13 The appellant appeals on the following grounds:

Ground 1 - the learned sentencing judge erred by finding that:

(a) it was necessary that the appellant's circumstances were so exceptional as to be beyond reasonable contemplation or expectation so as to amount to exceptional hardship;

(b) the appellant's circumstances were not exceptional; and

(c) the accepted circumstance of hardship did not justify the exercise of mercy, such as to reduce the head sentence imposed.

Ground 2 - the learned sentencing judge's discretion ought to be re-exercised by this Court as a consequence of:

(a) evidence of events occurring subsequent to sentence but which are relevant to an appreciation of the true significance of facts which were in existence at the time of sentencing;

14 As stated above, in his sentencing remarks his Honour said that, in his judgment, the circumstances of the appellant were not so exceptional as to 'be beyond reasonable contemplation or expectation'. In R v Steggall[2] Nettle JA gave consideration to the meaning 'exceptional circumstances' in the context of a breach of a suspended sentence under s 31(5A) of the Sentencing Act 1991 (Vic). He referred to Owens v. Stevens[3] where Hedigan J said:

The use of the phrase "exceptional circumstances" is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.

Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning "unusual, special, out of the ordinary course". This does not mean any variation from the norm.

The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.

15 In R v Steggall Nettle JA concluded his consideration of the issue of exceptional circumstances in the following words:

Like the sentencing judge, I consider ... that if an offender breaches a suspended sentence he or she shall be compelled to serve the whole of the sentence unless the circumstances are so exceptional as to be beyond reasonable contemplation or expectation.

16 In R v Ioannou[4] Redlich JA, with whom Chernov and Vincent JJA agreed, referred to R v Steggall and the judgment of Nettle JA in the following terms:[5]

Steggall is not authority for the proposition that circumstances can only be exceptional if they are beyond reasonable expectation or contemplation.

This was clearly the thrust of the statements of both Hedigan J and Nettle JA who are not to be taken, in my opinion, save in a very general sense, as having attempted to identify the circumstances which would be regarded as exceptional for the purposes of the provision.

**17 By ground 1(a) it is submitted on behalf of the appellant that in using the words 'beyond reasonable contemplation or expectation' his Honour 'applied what he took to be the ratio' set out by this Court in R v Steggall. It is submitted that in so doing he fell into error.

18 In my view it is reading too much into his Honour's adoption of the phrase used by Nettle JA in Steggall to say that his Honour used that phrase as 'the ratio' of R v Steggall and that he concluded that circumstances can be exceptional only if they are beyond reasonable expectation or contemplation. His Honour's sentencing remarks demonstrate that his Honour, who is a most experienced judge, gave careful and detailed consideration to the circumstances put before him. He referred specifically to the evidence of the severe drought and the short supply of water. He said, however, that he did not regard 'those matters whether taken in conjunction with other considerations that Mr Kassimatis raised, such as the loss of the majority of the previous crop and the high level of debt as exceptional'. In my view it is clear from a reading of the whole of the transcript of the plea and his Honour's sentencing remarks that his Honour was fully aware of the relevant principles relating to hardship to family members. I consider that there is no basis to say that his Honour was in error in his consideration of the circumstances which would amount to exceptional hardship within the meaning of the authorities.

19 By Ground 1(b) the appellant contends that his circumstances were exceptional and that his Honour was in error in concluding that they were not. It is submitted that the severe drought which has affected the property owned by the appellant is of itself exceptional. In addition, it is submitted -

• That the appellant was principally responsible for the operation of the land which supported the livelihood of his and his parents' family.

• That in the 2006 year between 80 per cent and 90 per cent of the farm crop was lost as the result of chemical mistreatment.

• That the appellant's father, a man in his 60s, had moved to Sydney for two thirds of each year to sell the farm produce directly to the public.

• That the water allocation to the farm had dropped dramatically.

• That water had to be purchased at significant cost, thus compounding the substantial debts under which the property operated.

20 It is submitted that the above circumstances, when combined, extended well beyond a mere 'variation from the norm'. It is submitted that such circumstances are 'unusual, special, distinctly out of the ordinary and rare'.

As to the hardship material on which the applicant relies, it is plain enough, I think, that in almost every case the imprisonment of the offender imposes some hardship on others and, as Charles JA notes in Bulfin[7], typically wreaks havoc on family members. Thus, the courts have effectively said that, other than in exceptional circumstances, hardship to family members of the imprisoned offender by reason of the incarceration is not a factor relevant to the sentencing disposition. As Gleeson CJ[8] explained, "[t]here is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person."

22 As Winneke P said in R v Panuccio:[9]

Although the court is not, both as a matter of compassion and common sense, impervious to the consequences of a sentence upon other members of the family of a person in prison, such factors will need to be "exceptional" or "extreme" before the court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one, because the court's primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other close family members who are dependent on one form or another upon the person imprisoned.

Thus it has been often stated that it is a general principle of sentencing that the court should usually disregard the impact which the sentence will have upon the members of a prisoner's family unless exceptional circumstances have been demonstrated ... It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced the more difficult it will be to find exceptional circumstances, because the relief usually sought and generally necessary to alleviate the plight of the relevant family members affected will require absolution from incarceration.

**23 In my view it cannot be said that it was not open to his Honour to conclude that the circumstances before him were not so exceptional as to be taken into account as a factor relevant to the sentencing disposition. It should be observed that all of the factors which are now relied upon, with the possible exception of the loss of a substantial part of the crop in 2006, are factors which were well known to the appellant at the time of his apprehension by police. No doubt the long drought in Robinvale and Mildura and elsewhere is a most significant matter and is a circumstance which causes hardship to many Australians. However, the facts of the drought and the difficult circumstances it has imposed upon the family properties managed by the appellant are, in my view, not so exceptional that his Honour was compelled to find otherwise.

24 By ground 1 (c) it is submitted that the sentencing judge was in error in finding that the circumstances of hardship to the appellant's family which his Honour found would make the appellant's imprisonment more onerous than otherwise did not justify the exercise of mercy such as to reduce the head sentence from what would ordinarily be just and appropriate.

25 As stated above, his Honour accepted that hardship to the family would make imprisonment of the appellant more onerous for him than would otherwise be the case. He said that he would "apply mercy" to the non-parole period. However, he said that he did not consider that the circumstances of hardship justified the exercise of mercy, so as to "reduce the head sentence from what would ordinarily be just and appropriate".

The sentencing principles, which have particular relevance to the two counts to which you have pleaded guilty are such, and I borrow Chernov JA's words, "as to leave no room for the exercise of mercy in that regard".

27 Clearly his Honour was referring to the following statement of Chernov JA which appears in R v Nagul:[10]

In the present case, I am of the view that the circumstances of hardship do not warrant the exercise of mercy such as to reduce the period of the head sentence that would otherwise be appropriate. I consider that the aggravating circumstances of the offending and the applicable sentencing principles are such as to leave no room for the proper exercise of mercy in that regard. In particular, I think that the importance of the operation of the principle of general deterrence and the need for the Court to express denunciation of the offending conduct requires the imposition of a head sentence in respect of each count, and a total effective sentence, that properly reflects the gravity of the offending, obviously in the context of the mitigating circumstances. It is impossible not to sympathise with the applicant's family and recognise the hardship that they will bear because of his imprisonment, but in all the circumstances, as I have said, I consider that this does not justify the exercise of discretion to extend mercy in relation to the head sentence. It is important to bear in mind in this context the caution sounded by Callaway JA in Carmody,[11] namely that the sentencing judge will be failing in his or her duty of proper sentencing considerations where overwhelmed by an emotional response to the hardship that a sentence would impose upon the family of the offender. Similarly the exercise of mercy should not undermine the general principle that, save for exceptional circumstances, hardship to family members by reason of the offender's imprisonment is not a relevant consideration for sentencing purposes.

28 However, in fixing the non-parole period in Nagul, Chernov JA stated specifically that he took into account the extension of mercy. In the circumstances before his Honour, and taking into account that the offending conduct called for him to give weight to the principles of general and specific deterrence and denunciation, it cannot be said that his Honour was in error in failing to take the question of mercy into account in fixing the head term. It is apparent that his Honour did take the question of mercy into account in fixing a non-parole period. His Honour said so specifically and the fact that he fixed a non-parole period which represents only 37.5 per cent of the total effective sentence demonstrates that he did so take that matter into account.

**29 Ground 2 has been supported by two affidavits sworn by the solicitor for the appellant, the first dated 14 January 2008 and the second dated 13 February 2008. We have looked at the affidavits for the purpose of deciding whether we should receive them on the appeal.

30 The first affidavit refers to five matters which are relied upon as either fresh evidence or facts that shed light upon matters in existence at the time of the plea. The first of those matters is that the appellant's mother has been diagnosed with ovarian cancer. It would appear that a hysterectomy was undertaken in October 2007 and that she is undergoing chemotherapy on a three-weekly basis. The affidavit asserts that she is not able to perform the duties she ordinarily performed as part of her contribution to the maintenance of the family interests. As to this matter, first, it would appear that the diagnosis of ovarian cancer occurred after the plea and sentence in this matter. Clearly, evidence of an event occurring after sentence and which is said to make the sentence passed excessive, will not be received, it being inadmissible.[12] Secondly, (and whether or not that is so in the circumstances of this case), the fact is that there was no reference during the plea to the appellant's mother suffering from ill health or any physical condition which was relevant to the exercise of the sentencing discretion. More particularly, there was no suggestion made in the course of the plea that she made any contribution significant or otherwise to the family farming business. In my view, this evidence should not be admitted on the appeal.

31 The first affidavit refers further to the following matters:

• The appellant's father had to return from Sydney to Robinvale after the appellant's incarceration in order to assist with the daily running of the business, but has had to return to Sydney as the family business is dependent upon the income derived by his selling of the family produce.

• The family business is now being run with difficulty by the appellant's twin brothers, neither of whom, it is said, possesses the expertise to manage the properties in the manner that preceded the appellant's incarceration.

• One of the twin brothers has put aside his own business interests in Mildura and commutes to Robinvale on a daily basis.

• The appellant's wife has moved to reside with her family in Shepparton. She does not have a driving licence and requires assistance with tasks such as taking the children to school and going shopping.

32 In my view none of these matters can be said to show the true significance of a relevant circumstance that existed at the time of sentence, but was unknown.[13] They do no more than show 'the working out of matters that were, in general terms, recognised and taken into account by his Honour at the time of sentence'.[14] For instance, there was evidence before his Honour that one twin brother worked on the property and that the appellant's wife did not have a licence. There was evidence that the appellant's father spent a considerable amount of time in Sydney engaged in marketing the family produce.

33 Before turning to the second affidavit, it should be observed that the appellant was released on bail on 17 January 2008 pending the hearing of this appeal. The second affidavit is sworn by the appellant's solicitor. Save for formal matters its contents are almost entirely hearsay. The deponent asserts that the matters he refers to are based upon information and belief. There is no**

basis upon which the deponent could have any reasonable belief as to many of the matters referred to other than by reason of the assertions of the appellant. Furthermore, this appeal is not an interlocutory application in which affidavits are permitted to contain a statement of fact based upon information and belief if the deponent identifies the nature and source of the information giving rise to his belief.[15] In the circumstances before us, there is no reason why the appellant should not have been able to depose to the relevant matters himself. For these reasons alone, I consider that the affidavit should not be admitted into evidence. However, that said, the affidavit refers to the fact that the appellant, whilst on bail, has resumed management of the farm and his two brothers have resumed their former positions. The affidavit refers to the effect of the drought on productivity and quality of grapes and the likely production rate of the present crop. It is asserted, without the production of any documents or the provision of any detail, that the appellant has been "advised that $1.4 million dollars must be repaid to the bank by the end of April", on threat of forfeiture. The issue of possible foreclosure by the bank was the subject of evidence before his Honour. In my view none of these matters, does more than show the working out of matters that were recognised and taken into account by the sentencing judge. The contents of the second affidavit do no more than expand on matters which were the subject of submission on the plea before his Honour. The affidavits should not be admitted into evidence.

**37 I wish to add, however, that, having now read the judgment of Redlich JA in R v Ioannou[16], and with the benefit of reflection, it appears to me that I went too far in R v Steggall[17] in suggesting that 'exceptional circumstances' for the purposes of s 31(5A) of the Sentencing Act 1991 are limited to circumstances which are beyond reasonable expectation or contemplation.

38 As Redlich JA explained in R v Ioannou, that is not what the section requires.

39 The order of the Court is that the appeal is dismissed. It follows that the appellant will be returned to custody.**

[3] Unreported, Supreme Court Vic (Hedigan J), 3 May 1991.

[8] R v Edwards (1996) 90 A Crim R 510 at 515

[9] Unreported Court of Appeal Vic, 4 May 1998 at 6-7.

[12] R v Babic [1998] 2 VR 79 at 80.

[14] R v McLachlan [2004] VSCA 87 (Chernov JA), [11].

[16] [2007] VSCA 277, [17] and [18].

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