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[2007] VSCA 68
Court of Appeal (Vic)
2007-03-21
MAXWELL, P, EAMES, JA and KELLAM, AJA
Original judgment source is linked above.
CRIMINAL LAW - Sentencing - Appeal - Manifest excess - Family hardship - Offer of assistance to authorities - Appeal dismissed.
MAXWELL, P:
1 I will ask Kellam, AJA to deliver the first judgment.
2 This is an application for leave to appeal against sentence. The application comes before this Court upon the applicant electing to apply for leave under s582 of the Crimes Act 1958, a single judge of appeal having previously refused leave to appeal.
3 On 23 March 2006, the applicant pleaded guilty before the County Court at Melbourne to one count of trafficking in ecstasy in not less than the applicable commercial quantity (count 1). That count carries a maximum penalty of 25 years' imprisonment. In addition, and at the same time, he pleaded guilty to one count of trafficking in a drug of dependence (methylamphetamine), which offence carries a maximum penalty of 15 years' imprisonment (count 2).
4 On 6 April 2006, the sentencing judge sentenced the applicant to two years and six months' imprisonment on count 1 and to 12 months' imprisonment on count 2. She directed that three months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of two years and nine months. A non-parole period of 15 months was fixed and a declaration made regarding eight days pre-sentence detention.
Background Facts
5 The background facts may be stated briefly. In the course of the year 2003, Victoria Police commenced an investigation into alleged trafficking in various drugs of dependence, which investigation was targeted particularly at one Shane Waters. The method used by police in the course of that investigation included the interception of telephone conversations and text messages on mobile telephones, as well as surveillance and the use of a police covert operative. In September 2003, the
police conducted a number of raids and arrested Shane Waters and the applicant, as well as other persons. The applicant had been introduced previously to Waters by Waters's then girlfriend, Cheryn Osborne.
6 Count 1 on the presentment is a "rolled-up" Giretti count encompassing five separate transactions in which the applicant was involved between 23 June 2003 and 6 October 2003. The first transaction took place on 23 June 2003, when the applicant made a purchase from Waters of 486 ecstasy tablets at a cost of $20 per tablet - a total cost of $9,720. The second transaction took place on 15 July 2003, when, through Cheryn Osborne, the applicant purchased from Waters 2,000 ecstasy tablets at a cost of $19 per tablet - a total price of $38,000. The third transaction took place on 22 July 2003 and involved the purchase by the applicant from Waters of another 2,000 ecstasy tablets, the cost of which was not revealed by the telephone intercepts. The fourth transaction took place on 10 August 2003 and involved the applicant purchasing 900 tablets from Waters at a cost of $19.50 per tablet - a total cost of $17,500. The final occasion relevant to count 1 on the presentment took place on 6 October 2003, when upon arrest the applicant was found to have in his possession 98 tablets of ecstasy. The applicant told police that he had purchased these tablets from a person at a night club the previous evening for the price of $20 each.
7 Count 2 involved the trafficking of methylamphetamine between 16 July 2003 and 6 October 2003. On 16 July 2003 the applicant purchased 112 grams of methylamphetamine from Waters for a purchase price of $16,000. Upon arrest on 6 October 2003 the applicant was found to have in his possession 3.6 grams of methylamphetamine. The total amount of methylamphetamine encompassed by this count is 115.6 grams.
8 The applicant is now aged 39 years and was aged 36 years at the time of offending. He has no prior convictions. The material put before the learned sentencing judge set out the applicant's history in some details. His family came to Australia in 1982 when he was 14 years of age, after civil unrest in Poland. His upbringing was an unhappy one. His parents were practising Jehovah's Witnesses and were of the belief that the end of the world was imminent and did not encourage their son's education. As a young man he was socially isolated. That feeling of isolation was exacerbated by the fact that he found it difficult to cope with speaking English at school. After leaving school the applicant worked in a number of menial positions before enrolling in a surveying and mapping course at RMIT, which course he did not complete. At the age of 20 he met a young woman from the Polish community whom he subsequently married. After working in a bank for a period of time he opened a business with his younger brother. The business engaged in damp-proofing, floor-sanding and house repairs. Regrettably, his brother was found to be suffering from schizophrenia, which, together with other matters, caused difficulties for the business. The applicant was engaged in floor-sanding as a business when he was arrested, whereupon he became depressed, his brother relapsed into symptomatic schizophrenia, and the business collapsed. Unfortunately, in the early 1990s, the applicant's wife became ill with a brain cyst requiring treatment with radiation. The side effects of this treatment triggered chronic schizophrenia, which was diagnosed formally in 1998. The applicant's wife proved to be not compliant with medication, which fact the learned sentencing judge accepted had caused the applicant enormous problems. At times thereafter the applicant's wife lived with him and at other times in rented accommodation or with her parents. In the course of this marital unhappiness, the applicant entered into a sexual relationship with Cheryn Osborne, who later introduced him to Shane Waters. The applicant first used ecstasy at approximately 28 years of age and, in addition, at various times prior to that, had used amphetamines and cocaine.
9 The sentencing judge accepted that at the times that the offences took place the applicant was using the drugs that he trafficked, namely, ecstasy and methylamphetamine. She accepted that the applicant attended night clubs and became involved in the drug scene as an escape from his domestic problems and as a way of overcoming his shyness. The sentencing judge accepted that the applicant's association with Waters occurred as a result of Cheryn Osborne having introduced him to Waters for the purposes of purchasing drugs, and that Shane Waters's role in the transactions was higher than was the applicant's in the hierarchy of those close to the manufacture. In this regard she accepted that the applicant was a middle man. She accepted that the applicant had shown insight into his drug-related lifestyle and that there were reasonable prospects for his rehabilitation. She further took into account in favour of the applicant the fact that there was a delay in the hearing of the offences between June 2003 and April 2006.
Ground 1, Manifest Excess
10 The first ground of appeal upon which the applicant relies is that of manifest excess. The applicant submits that the individual sentences and the head sentence are manifestly excessive in the light of his age, good prior history and plea of guilty at an early stage. In addition, it is submitted that the significant delay in the matter being dealt with by the court, together with the personal factors relevant to the applicant, including his depression and his marriage difficulty, are relevant. The fact that the applicant was a drug user at the time that he committed the offences and the fact that his drug use arose from problems associated with his difficult personal history are relied upon by the applicant, as is the lack of evidence as to any profits derived by him. The fact that imprisonment is difficult for the applicant by reason of his concerns for his mentally ill wife and the fact that the learned sentencing judge found that he had good prospects for rehabilitation are argued as matters of relevance in relation to the question of whether the individual sentences and/or the head sentence are manifestly excessive.
11 Count 1 was a most serious offence, carrying a maximum penalty of 25 years' imprisonment. In the circumstances of this case, count 1 was a "rolled-up" Giretti count referring to five separate transactions on separate dates, involving a total number of 5,485 ecstasy tablets, which, on any view, were of substantial value. Notwithstanding the applicant's previous good character, his age, his plea of guilty, the delay and other mitigating factors referred to by the judge in her sentencing remarks, it simply cannot be said that a sentence of two years and six months' imprisonment in respect of the trafficking of a commercial quantity of such drugs is wholly outside the range of sentences which were open on the facts before her. The sentence imposed on this count was one tenth of the applicable maximum. Likewise, the sentence on count 2 cannot be said to be manifestly excessive in any way, nor can the modest cumulation of three months of that sentence upon count 1. The minimum term of 15 months' imprisonment fixed by the learned sentencing judge, being less than 50% of the head sentence, clearly reflects the findings of her Honour that the prospects of the applicant in terms of rehabilitation were reasonable.
12 In my view, ground 1 must fail.
Ground 2 - Parity
13 The second ground raised upon the appeal is the question of parity with the sentences imposed upon the co-accused. This ground was withdrawn by the applicant this morning upon his now understanding that Cheryn Osborne was not charged with commercial trafficking. The abandonment of this ground by the applicant was undoubtedly appropriate, as the differences between the applicant and his co-offenders and the offences committed by the applicant are such that the issue of parity does not arise.
Ground 3 - Family Hardship
14 Before us, the applicant sought leave to rely upon a further ground, that being hardship suffered by his brother and wife. As stated above, the learned sentencing judge noted the difficulties that the mental illness suffered by both the brother of the applicant and by his wife caused him. Although no medical evidence was put before us, the applicant informed us that his brother continued to suffer from schizophrenia. He informed us of circumstances where a CAT team (a community assessment treatment team) and police had been called to the home of his parents, where his brother lives. The applicant argues that he is the only member of the family who has an understanding of the effects of schizophrenia upon his brother, and that his assistance is required for the safety of his brother and for his parents. Likewise, the wife of the applicant, as stated by the learned sentencing judge, suffers from schizophrenia. The applicant informs us that at present she lives with her brother. The evidence of the schizophrenia suffered by the brother and the wife of the applicant was before the learned judge, although the applicant informed us that his brother has continued to deteriorate since the time of sentencing.
15 Sad as those circumstances may be, I do not consider that they are so exceptional as to justify our interference with the sentence imposed by her Honour. The applicant has told us that both his wife and his brother are well known to the community mental health services and one can expect that they will be provided with appropriate treatment by reason thereof. I accept that the presence of the applicant may well be beneficial to both his wife and to his brother, and I accept that he is concerned about their welfare, but in the end result I do not consider those circumstances to be so exceptional as to justify further mitigation of the sentence imposed by the sentencing judge.
16 As Winneke, P. said in Panuccio[1]:
"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 in one form or another upon the person in prison. 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 would have upon the members of a prisoner's family unless exceptional circumstances have been so demonstrated. The principle has been so often stated that it does not need repeating, - but I refer to, amongst other cases, R v Matthews (1996) 130 FLR 230 at 233, R v Lynch and Ratcliffe (Court of Appeal), unreported, 16 April 1996), particularly the judgment of Charles, J.A. at 5, R v. Yardiz (Court of Appeal, unreported, 4 December 1996), particularly per Hayne, J.A. at 12; R v. Yates (Court of Appeal, unreported, 17 February 1998); R v. Kim (Court of Appeal, unreported, 18 March 1998)."
17 The question of hardship has been recently considered by this Court in R. v. Nagle[2], when Chernov, J.A. said:
"It is plain enough, I think, that in almost every case the imprisonment of the offender imposes some hardship on others and typically wreaks havoc on other family members. Thus, the courts have effectively said that, other than in exceptional circumstances, hardship to family members of the imprisonment of the offender by reason of the incarceration is not a factor relevant to the sentencing disposition."
18 Chernov, J.A. in that case observed that, in some cases, where hardship to the offender's family cannot be taken into account for sentencing purposes because of absence of exceptional circumstances, hardship may be taken into account in the exercise of the discretion of mercy to the offender. However, in the present case, I am of the view that the circumstances of hardship do not warrant the exercise of mercy so as to reduce the head sentence or the already merciful non-parole period fixed by the sentencing judge. It should be remembered that the fact that both the applicant's wife and brother suffered schizophrenia was well known to him long before he committed the offences in question. The circumstances of the offending and the applicable sentencing principles are such as to leave no room for any reduction in sentence by the extension of mercy. In particular, the principle of general deterrence requires the imposition of a sentence that reflects the gravity of the offending, but, of course, in the context of the mitigating circumstances.
Ground 4 - Assistance to Authorities
19 Furthermore, in the course of his application before us, the applicant, who was not represented, stated that he sought to rely upon a further ground being the fact that he had provided assistance to the authorities. As this was not a matter which had been raised before the sentencing judge, we adjourned the hearing of the appeal to enable the respondent to provide an affidavit as to the facts of the asserted assistance. Subsequently, the informant filed an affidavit sworn on 20 February 2007, which was served upon the applicant. In summary, the affidavit and the exhibit thereto, being a transcript of a discussion which occurred on 1 November 2006 between the informant and the applicant, revealed the following facts. Following the refusal of leave to appeal by a single judge of appeal on 4 August 2006, and following notice of election being filed by the applicant to have his application for appeal against sentence determined by the Court of Appeal, the applicant, through his brother, contacted the informant. An interview took place on 1 November 2006. The transcript of the conversation exhibited to the affidavit before us reveals that the applicant said: "The reason I am talking to you, I want to appeal my sentence." He then asserted that he held the view that he should not have been charged with commercial trafficking and that it should just have been trafficking. The applicant said that his application for leave to appeal was refused because there was nothing new. The applicant then advised police that the transaction which took place on 15 July 2003 involving the sale of 2,000 ecstasy tablets for a sum of $38,000 was partly for the benefit of himself as to $1,000 and partly for the benefit of another person. However, no new evidence has arisen to support the applicant's assertion. In particular, all of the telephone intercepts in relation to the transactions in question have again been listened to by the informant and nothing arises of any consequence from those tapes.
20 There can be no doubt that the decision of the applicant to now provide assistance to police is self-serving, it being provided to enable him to rely on new evidence upon his appeal. It may also be based upon some bitterness on the part of the applicant that he is serving a sentence while a third person, who he says was somewhat implicated, is not. Of course, as to this matter, the applicant's contention to police that he is not guilty of commercial trafficking by reason of the possible
involvement of another has no basis, even if all his assertions are true. Nevertheless, the motive of the applicant would be of no relevance if the level of assistance provided was useful, in the sense that it provides information which is effective in combating criminal activity or in apprehending and prosecuting criminals. It is in the public interest that those who might provide assistance to the authorities be encouraged to do so by a degree of leniency in sentencing which would otherwise be unjustifiable. However, in the circumstances before the Court, the assertions made by the applicant are no more than that. Even if there is any basis to say that his assertions have some veracity, which in my view cannot be said, they arise so late and are so limited that the prospect of them being of any assistance at all to police is remote indeed. In my view, and notwithstanding the strong public interest in encouraging assistance to be provided to authorities, there is nothing in the applicant's assertions to police which justifies them as being accepted as new evidence and which would justify any interference with the sentence imposed by the sentencing judge.
21 A further issue raised by the applicant is that the methylamphetamine was not as pure as he had expected it to be when he purchased it, it being mixed with salt. There is nothing in this assertion of any relevance to this appeal, in my view.
22 I would refuse leave to appeal.
23 I also would refuse the application for leave, for the reasons which his Honour has given. I add some brief additional remarks of my own.
24 The first is really for the benefit of Mr Jaross as an applicant in person. A review of a sentence delivered by a judge, as this one was, is not an opportunity for this Court to reconsider all of the merits of the primary decision. This Court will only interfere in a sentence imposed by a judge where it can be demonstrated that the judge really failed in his or her task of fairly sentencing the person who stands to
be sentenced. In my respectful opinion, the judge discharged her function admirably, and imposed - for reasons clearly stated - a sentence which was entirely fair in the circumstances. Her Honour was right to emphasise the very grave harm associated with trafficking in drugs, which of course is the explanation for the maximum sentence of 25 years for trafficking in a commercial quantity. Her Honour carefully considered all the matters which Mr Jaross advanced before us - as he was entitled to expect - and took them into account in imposing a shorter term of imprisonment than she otherwise would have and ordering a lower minimum term than she otherwise would have, having regard in particular to matters of rehabilitation.
25 Secondly, her Honour expressed the view that the applicant had good prospects of rehabilitation, based on what she knew of his history, but also on a report which was before the court. It seems to me that the optimism was well founded. It is unusual to have a person in Mr Jaross' position appear on his own behalf in an application like this. Typically, these applications are done through legal representatives. (That was done on the first occasion, when leave to appeal was refused, and Mr Jaross has elected to renew his application and to do it himself.)
26 I was very struck by the high quality of his presentation of argument to us. Particularly for someone for whom English is not the first language, to have been able to convey so powerfully his concern for the welfare of his wife and his brother was, in my opinion, most impressive. While I join in the decision that the application should be refused, the way the application has been dealt with by Mr Jaross gives every reason to think that, when his non-parole period ends and on the assumption that there is a grant of parole, he will be able to make good what was stated to the trial judge, that he has moved on from the drug-related lifestyle.
27 It is clear from the submissions Mr Jaross made that his wife and his brother badly need him to do just that. I simply conclude by expressing my hope that the obvious capacity which he has demonstrated, the obvious intelligence which he
shows, and the obvious loyalty to family members in distress, will all mean that he can, as soon as he is released, begin the task of again being a useful, productive and law-abiding member of the community.
28 For the reasons given by Kellam, AJA., I agree that the application for leave to appeal should be refused.
29 The order of the Court is: Application refused.
[1] 4 May 1998.
R
Jaross [2007] VSCA 68
(1996) 130 FLR 230