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]: