R v Ilic [2003] VSCA 82

Court of Appeal (Vic)|2003-06-25|Before: WINNEKE, A.C.J., CALLAWAY and BUCHANAN, JJ.A.

Criminal law - Sentencing - Trafficking in MDMA, methylamphetamine and cocaine and possession of cocaine - Sentence on count of possession manifestly excessive - Hardship to appellant's parents not exceptional but taken into account as making service of sentence more onerous - Appellant re-sentenced to two-and-a-half years' imprisonment of which 18 months suspended for three years.

For the reasons given by Callaway, J.A., I agree that the appeal should be allowed and that the orders which his Honour proposes should be made by this Court.

The appellant, who is now aged 32, pleaded guilty in the County Court to one count of trafficking in a methylamphetamine compound known as "MDMA" (count 1), one count of trafficking in methylamphetamine (count 2), one count of trafficking in cocaine (count 3) and one count of possession of cocaine (count 4). He had no previous convictions. After hearing a plea for leniency and taking time for consideration, the learned judge sentenced the appellant on 21st February 2003 to two years' imprisonment on each of counts 1 and 2, 18 months' imprisonment on count 3 and six months' imprisonment on count 4. His Honour directed that four months of the sentence imposed on count 2 and two months of the sentence imposed on count 3 be served "cumulatively upon the sentence imposed on count 1", but he intended them to be served cumulatively upon each other as well, because the total effective sentence was declared to be two-and-a-half years' imprisonment. A non-parole period of 14 months was fixed and a declaration made regarding three days' pre-sentence detention. Leave to appeal against sentence was granted on 11th April 2003.

There were seven grounds of appeal set out in the notice of application for leave to appeal:

"1. The learned sentencing judge erred in failing to accord sufficient weight to the following factors in mitigation, either alone or in combination: (a) the fact that the applicant had no prior convictions; (b) the evidence of rehabilitation demonstrated by the applicant; (c) the illness of the applicant's father and his role in caring for both his father and his mother; (d) the applicant's early plea of guilty; (e) the applicant's remorse and regret for his involvement in criminal activity; and (f) the applicant's prospects for rehabilitation. 2. The learned sentencing judge erred in failing to give sufficient weight to the principle of parity having regard to the sentences imposed upon co-accused: (a) Thorburn; and (b) Zaitshek. 3. The learned sentencing judge erred in taking into account the evidence of a significant amount of money located at the time of the applicant's arrest. 4. The learned sentencing judge erred in imposing cumulation on counts 2 and 3. 5. The learned sentencing judge erred in failing to give sufficient weight to the evidence of the applicant's rehabilitation. 6. The learned sentencing judge erred in failing to have sufficient regard to the principle of totality. 7. The learned sentencing judge erred in imposing a sentence that is manifestly excessive having regard to the applicant's personal circumstances and by reason of his criminality compared to that of his co-accused."

Amy Louise Thorburn pleaded guilty to one count of trafficking in methylamphetamine (count 1), one count of possession of methylamphetamine (count 2) and one count of possession of cannabis (count 3). On 31st October 2002 the same judge who sentenced the appellant sentenced her to two-and-a-half years' imprisonment on count 1, 12 months' imprisonment on count 2 and three months' imprisonment on count 3. There being no direction for cumulation, that made a total effective sentence of two-and-a-half years' imprisonment, which was wholly suspended for an operational period of three years. Henry Zaitshek pleaded guilty to one count of trafficking in methylamphetamine (count 1) and one count of trafficking in a drug called ketamine (count 2). Six days before sentencing Thorburn his Honour sentenced Zaitshek to two-and-a-half years' imprisonment on count 1 and 18 months' imprisonment on count 2. As no direction for cumulation was given, that made a total effective sentence of two-and-a-half years' imprisonment. Service of 21 months of that term was suspended for an operational period of two-and-a-half years. They are the co-offenders referred to in ground 2.

Before turning to counsel's submissions, I shall say something briefly about the facts. In April 2000 the police began an operation targeting the distribution and sale of illicit drugs, primarily by Alex Beraun, Joseph O'Shea and Ariel Silman. On 24th July 2000 a warrant was obtained to intercept Beraun's telephone calls. Calls and text messages on a telephone he maintained in a fictitious name were monitored from that date until 25th August 2000. During the period between 24th July and 16th August 2000 about 18 calls were made between Beraun and the appellant relating to the sale and purchase of what were understood by the police to be cocaine and tablets referred to by Beraun and the appellant as "ecstasy". It emerged that the appellant was one of Beraun's sources for ecstasy and Beraun was supplying cocaine to the appellant both for personal use and for re-sale.

On 25th August 2000 the appellant's premises and motor vehicle were searched. The following were located in the house: $130,500 cash in $100 notes located under the house in a locked cash tin; $8,750 cash in $10, $20, $50 and $100 notes hidden behind the television set in the appellant's bedroom; 160 coloured tablets in four small bags hidden in a pair of socks; two bags of white powder found in a vitamin container in the appellant's bedroom; a set of scales, two mobile phones and a diary containing a record of drug transactions. Ninety-eight small plastic bags and another diary recording transactions were located in the vehicle.

The trafficking in ecstasy between the appellant and Beraun was both in samples and larger quantities. The 160 coloured tablets referred to above, if sold as ecstasy, would have had a street value of about $8,000. On 16th August 2000, in the course of one of the intercepted telephone calls, Beraun ordered 700 tablets from the appellant at $22 per tablet. In that quantity, and at that price, that transaction would have had a value of $15,400. Beraun and the appellant trafficked cocaine in gram deals. For example, on 4th August 2000 they discussed the supply of seven grams of cocaine to the appellant.

The trafficable quantity of methylamphetamine (mixed) is six grams. The trafficable quantity of MDMA and cocaine (mixed) is three grams. The methylamphetamine content of the tablets found at the appellant's premises was 43.1 grams and the MDMA content was 5.9 grams. The cocaine transaction discussed in the course of the telephone conversation on 4th August 2000 itself involved more than twice the trafficable quantity for cocaine.

The two bags of white powder found in the vitamin container in the appellant's bedroom weighed approximately 0.8 gram and tested positive for cocaine. They were the subject of count 4. The amount was small, being valued at approximately $200, and was in the appellant's possession for his own use.

In response to questions from the Bench, Mr McArdle conceded that the sentence of six months' imprisonment imposed on count 4 was manifestly excessive and agreed that, at least in the circumstances of this case, that re-opened the discretion. Whether or not the sentence imposed on count 4 infected the sentences imposed on the other counts, it may well have affected the learned judge's instinctive synthesis when he fixed the non-parole period. The latter is, after all, the minimum time that the judge determines justice requires that the prisoner serve having regard to all the circumstances.[1] If the judge takes an unduly stern view of one of the offences, even if the sentence imposed for that offence is wholly concurrent, that is likely to make the judge think that justice requires a longer rather than shorter time to be served.

In those circumstances the Court invited Mr Holdenson to confine his submissions to matters that he contended that we should take into account in re-sentencing. It was unnecessary to consider an affidavit that had been filed on behalf of the appellant in support of one of the grounds of appeal but, the discretion being re-opened, counsel was permitted to tender a letter dated 7th April 2003 from St John of Kronstadt Russian Welfare Society Inc. concerning the appellant's father's medical condition on that date and to inform us, on his instructions, that Mr Ilic's condition has since worsened.[2]

Counsel adopted and supplemented the submissions in mitigation that had been made on the plea. They were summarized by his Honour as follows in the course of his sentencing remarks;

"Your counsel, Ms Gobbo, told me of your background. You are a man now aged 32 years, born in Melbourne in August 1970. You are a boilermaker by trade. You obtained an apprenticeship with the SEC in that trade and worked with it for five years. You then took a retirement package and obtained a licence in security and crowd control work. You worked in a nightclub environment with this licence until your arrest. You accept that your conviction on these charges will prevent you working in this field again. I was told that you do not intend to attempt to retain your licence. Following your arrest on these charges you worked as a painter for about one year but for the last 12 months you have been working as a concreter. Your current employer gave evidence in the course of the hearing. He spoke highly of your work ethic and reliability. He made it clear that he was more than prepared to keep you in employment even if that is interrupted by a term of imprisonment. I have no doubt that this is hard physical work and that you have done well. A report from Mr Cummins, the clinical psychologist, was tendered. He records that you told him that you enjoyed the work. You claimed to Mr Cummins, and I have no doubt this is true, that you were introduced to both cocaine and ecstasy in your work at nightclubs. You started using both drugs about 12 months prior to apprehension. You said that initially your use was sporadic but gradually increased to the stage when you were using weekly. Following your apprehension you had stopped using the drugs. You obtained very different employment and are no longer part of the nightclub scene. You have always been physically active and are now attending a gym about five or six days per week. You claim that you have been drug free since apprehension. I accept that claim. It is consistent with your lifestyle and change of employment and was confirmed by the evidence of Mr Joe Lamberti who has conducted random urine analysis of 23 occasions. All tests have been clear. Not surprisingly, your counsel emphasised the complete change of lifestyle since your apprehension. Her point was that you have done everything you could have done to take yourself away from the environment that led you to developing a drug habit which, it was claimed, you ultimately financed by the trafficking that forms the basis of the principal charges here. Ms Gobbo told me that it was in the nightclub scene that you met Beraun. He introduced you to cocaine which he could provide.

...

I accept that what you have done since apprehension has been impressive. You got yourself away from the scene that was obviously so damaging and have been working hard in a physical job. Your personal position is complicated by reason of the severe illness of your father. He is now a permanent resident in a nursing home. Your mother visits him daily and is dependent upon you for being able to do so. Your relationship with your parents, particularly your father, has not been straightforward in the past but the crisis caused by your father's illness seems to have brought you and your parents much closer. I accept that if a non-custodial sentence was imposed it would be likely that you would continue to lead the life that you are leading now. You have been in a six year relationship with a woman whose name was given to me only as Cynthia. You have a daughter now aged 18 months. You and Cynthia have lived together but have been living apart for the last 12 months. You see her daily but this seems to have a lot to do with you keeping in contact with your daughter. Your counsel did emphasise the mitigating features that apply. They were, firstly, your plea of guilty and the stage when it was entered and, most significantly, the effective self rehabilitation that you have achieved together with your record."

Mr Holdenson particularly emphasized his Honour's finding that, if a non-custodial sentence were imposed, the appellant would be likely to continue to lead the reformed life that he was leading at the time of sentence. He submitted that this Court should, in re-sentencing, give limited weight to specific deterrence and impose a sentence that does not undermine the rehabilitation that the appellant has achieved and facilitates his further rehabilitation. The offences were committed in the last month of a 13 month period of drug use which, the evidence showed, had now wholly ceased. The appellant was sentenced two-and-a-half years later.

Counsel also referred to the position of the appellant's father. The letter of 7th April 2003 showed that he had become more depressed since his son's imprisonment. The appellant's visits had helped him greatly. Mr Ilic cannot speak but communicates his needs by pointing at photographs and sometimes writing words on a communication board. As I mentioned earlier in these reasons, his condition has worsened since that letter. The appellant's continued incarceration will undoubtedly work hardship on his father and, to a significant but lesser extent, his mother. We were informed that there are other children but that they are unwilling to assist their parents. The problem naturally engenders sympathy but, in my opinion, the hardship to the appellant's parents is not exceptional within the meaning of the authorities.[3] I would nevertheless take it into account as a factor that makes the appellant's service of a custodial sentence more onerous, deprived as he is of the opportunity to support and comfort his parents. That is no different from taking into account a parent's separation from his or her children as a matter bearing on the severity of an immediate custodial sentence.

Sentencing is not, however, determined wholly by circumstances of mitigation. The offences the subject of counts 1, 2 and 3 were of a kind which the courts have often said warrant condign punishment. The Crown did not contend that the $130,500 were related to trafficking but, as his Honour pointed out, there were other indications that the trafficking was conducted at a significant level. They included the $8,750 in cash located in the course of the search, the scales, the plastic bags, the ecstasy tablets and the diaries recording transactions. I do not overlook that the precise quantity trafficked could not be ascertained or the submission made on the plea, and adopted in this Court, that the amounts trafficked were well below the amounts discussed in the course of the telephone intercepts.

The sentences imposed on the co-offenders referred to in ground 2 are of little assistance in deciding a just and appropriate sentence for the appellant. Thorburn was 22, 19 at the time of the offending, and much of the leniency extended to her is explicable by her youth. Zaitshek was 24 and suffering badly from Krone's disease. There is really only one way in which those sentences are helpful. Thorburn and Zaitshek were given dispositions which entitled them to be released as of right, in her case immediately and in his case after service of nine months' imprisonment. The appellant was given a disposition which left his release, after 14 months, at the discretion of the Parole Board. In my opinion, it would be better if his sentence were partly suspended.

There was some discussion below as to the structure, in terms of concurrency and cumulation, of the sentences to be imposed, especially the sentences on counts 1 and 2, but, as I read the transcript, counsel for the appellant was content to leave that matter to the judge. In those circumstances, because I consider that two-and-a-half years' imprisonment properly reflects the total criminality disclosed by the first three counts and that that is so notwithstanding the appellant's early plea of guilty and the other mitigatory factors referred to in grounds 1 and 5, I am content simply to affirm the sentences that the judge imposed and to give the directions for cumulation that his Honour intended to give. I would intervene only in relation to count 4. I propose a sentence of one month's imprisonment on that count.[4]

The low non-parole period shows that the judge was well aware of the need to recognize and facilitate the applicant's rehabilitation and to take his family position into account to the extent that that could properly be done. I am far from saying that 14 months' imprisonment would be an inappropriate minimum term even with a sentence of only one month's imprisonment on count 4, but, as we must take responsibility for the sentence, I propose that 18 months of the total effective sentence be suspended for an operational period of three years.

19 Should the other members of the Court agree, the Court would make orders in accordance with the following minutes:

2. Set aside the sentence imposed on count 4 and, in lieu thereof, impose a sentence of one month's imprisonment on that count.

3. Affirm the sentences imposed on each of counts 1, 2 and 3.

4. Set aside the directions for cumulation and, in lieu thereof, direct that four months of the sentence imposed on count 2 and two months of the sentence imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of two-and-a-half years' imprisonment.

5. Order that 18 months of that sentence be suspended for an operational period of three years.

Those sentences would be deemed to have been imposed, and the operational period to have begun, on the date on which the appellant was sentenced in the County Court.[5] A new declaration of pre-sentence detention should be made.

In my opinion the appeal should be allowed for the reasons stated by Callaway, J.A. and orders made as his Honour proposes.

[2] R. v. Carroll [1991] VicRp 87; [1991] 2 V.R. 509 at 511; R. v. Christie [2000] VSCA 183 at [12]- [13]; D.P.P. v. WJW. [2000] VSCA 170; (2000) 115 A.Crim.R. 217 at [15].

[3] R. v. Holland [2002] VSCA 118 and the cases there cited.

[4] We were not asked to consider a non-custodial disposition on count 4.

[5] R. v. Patniyot [2000] VSCA 55 at [61]; R. v. Nguyen [2001] VSCA 139; (2001) 124 A.Crim.R. 477 at [21]; D.P.P. v. Middlebrook [2002] VSCA 169 at [19]. See generally R. v. Jennings [1998] VSCA 69; [1999] 1 V.R. 352.

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