R v Karafilowski [2007] VSCA 156

Court of Appeal (Vic)|2007-08-15|Before: VINCENT and NETTLE JJA and HABERSBERGER AJA

CRIMINAL LAW - Sentencing - Trafficking in a commercial quantity of a drug of dependence - Comments by sentencing judge regarding harmfulness of drug - R v Pidoto and O'Dea [2006] VSCA 185 - R v D'Aloia [2006] VSCA 273 - Whether judge erred in finding that the appellant had trafficked "well in excess of 2 kilograms of methylamphetamine" - Concession by prosecution that evidence only established, by virtue of plea of guilty, that the amount trafficked was at least 1.25 kilograms and not more than 2.5 kilograms -Appeal allowed - Appellant re-sentenced.

2 I agree with Habersberger AJA that the appeal should be allowed and the appellant re-sentenced in the manner proposed by his Honour.

**3 On 10 March 2006 the appellant, Les Karafilowski, pleaded guilty before the County Court at Melbourne to one count of trafficking, between 31 May and 23 September 2004, in a drug of dependence, namely methylamphetamine, in a quantity that was not less than a commercial quantity applicable to that drug of dependence. After hearing a plea in mitigation of penalty, the learned judge, on 22 March 2006, sentenced the appellant to imprisonment for 6 years and 6 months, with a non-parole period of 4 years and 6 months.

4 Karafilowski was granted leave to appeal against sentence by a single judge of this Court on 29 September 2006.

5 The appellant was born in Greece in 1947. His father was killed during the Greek Civil War. His family fled to Poland when he was two years old. They emigrated to Australia in 1961. The appellant started working virtually straight away. He was employed in a variety of jobs. In 1970, he married. He has three adult children, two sons and a daughter, from that relationship. He was divorced in 1996. For some years Karafilowski was in a de facto relationship with his co-offender, Sonia Basic, with whom he had two sons who were aged eight and six at the time of sentencing. That relationship ended at the time of their arrests. There was evidence before the learned sentencing judge which showed that Karafilowski was suffering from a number of medical problems, including serious head injuries as a result of being assaulted in June 2003.

6 From about 1970 Karafilowski successfully ran a number of pizza shops. Following the sale of his last pizza shop in about 1985, he purchased a coffee shop in Dandenong. This new occupation involved him in illegal gaming and drugs. Since March 1989, he had recorded 36 convictions from 12 court appearances, most of which were gaming house and unlicensed liquor convictions. However, some of the prior offences were drug related. In July 1994 Karafilowski was released on a bond without conviction in relation to the possession of cannabis. In March 1997 he was convicted and fined in relation to the possession and use of cannabis. In May 1998 he was again fined in relation to similar charges. In November 1998 the appellant was sentenced to 18 months' imprisonment, wholly suspended for 3 years, for trafficking cannabis. In November 2000 he was sentenced to 2 years' imprisonment, with 18 months suspended for 3 years, for trafficking in a drug of dependence, namely amphetamine. It should also be noted that in September 2003, Karafilowski was sentenced to 3 months' imprisonment, wholly suspended for 12 months, in relation to dishonesty offences, so that he was serving a suspended sentence at the time of the offending in question.

7 The evidence tendered on behalf of the prosecution established that, in the four month period in 2004, Karafilowski on numerous occasions sold methylamphetamine in different quantities to a covert police operative "Rick". In addition, the police intercepted numerous telephone calls in which he discussed the supply and sale of amphetamine to other persons. It was conceded by the prosecution that an appendix to an exhibit which suggested that the total amount trafficked by Karafilowski exceeded 3.3 kilograms was "not necessarily reliable" as it relied on interpretation and surmise as to the meaning of particular telephone calls. The prosecution was therefore unable to establish to the requisite standard that the appellant had trafficked a large commercial quantity of methylamphetamine, namely 2.5 kilograms. Karafilowski agreed, however, to plead guilty to trafficking not less than a commercial quantity, or at least 1.25 kilograms. At the time of his arrest, Karafilowski was found to be in possession of three ounces of methylamphetamine and over $1,000 in cash.

9 It is convenient to commence with ground 2, which was that "the sentencing judge erred in making findings as to the harmfulness and effects of methylamphetamine and having regard to those findings as a relevant factor in the exercise of his sentencing discretion." In his sentencing remarks, the learned judge said:

Clearly, general deterrence must be the principal sentencing consideration for offences of this kind. Those minded to traffic in a commercial quantity of methylamphetamine should be aware that significant gaol terms await those detected for such offences. Methylamphetamine is clearly an extremely dangerous drug. All too often the courts see the result of ingestion of that drug where frenzied and violent attacks often occur. Methylamphetamine is an extremely dangerous drug and those who deal in the poison of methylamphetamine should expect condign punishment. [Emphasis added]

**10 Mr Johns of counsel, who appeared on behalf of Karafilowski on the appeal, submitted that it was clear that his Honour had imposed a higher sentence than he otherwise would have as a result of the weight he placed upon an irrelevant factor, namely the harmfulness and effects of methylamphetamine. Counsel referred to the italicised part of his Honour's reasons for sentence, set out above. He correctly submitted that it was decided in R v Pidoto and O'Dea[1] that this question was irrelevant to the exercise of the sentencing judge's discretion. Mr Johns further submitted that, in any event, because the issue was not raised on the plea, counsel for Karafilowski had not been given the opportunity of responding to or informing his Honour's view.

11 The reasons for sentence under consideration in this appeal were, of course, delivered in March 2006, more than five months before the reasons of the Full Bench of the Court of Appeal were published in Pidoto and O'Dea. In that case it was stated in the joint judgment of Maxwell P and Buchanan, Vincent and Eames JJA that:**

Ultimately, the question to be considered is not whether trafficking in one drug is to be viewed more seriously than trafficking in another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed for dealing in the material involved. Of course, not all examples of trafficking are equally serious and it is obvious that discrimination between offences and offenders is required, based upon a wide range of considerations, in order to ensure that the sentences handed down in individual cases are appropriate in the particular circumstances relating to the offences and offenders concerned.

But in the fixing of the sentence for the particular offence of trafficking, there is no place - as the law stands - for any consideration of the (relative) harmfulness of the drug involved.[2]

**12 In the respondent's outline of submissions it was conceded that, in referring to and taking into account generalised harmful consequences of the drug trafficked, his Honour had erred by bringing to bear on the sentencing question his assessment of the harm associated with using methylamphetamine.

13 Although this means that the sentencing discretion is re-opened, it does not necessarily mean, in my opinion, that the sentence imposed by his Honour was inappropriate. As Nettle JA stated in R v D'Aloia[3]:**

If the sentencing discretion is re-opened, as I think to be the case, it will be necessary to re-sentence the applicant. All things, considered, however, I see no reason why he should not be re-sentenced on substantially the same terms as before. Apart from the judge's references to the effects of cannabis and MDMA, I am with respect in agreement with her Honour's analysis. And so far as the effects of cannabis and MDMA are concerned, the matter may still be approached on the basis that all of the drugs which are proscribed have deleterious consequences of anti-social proportions and that trafficking in any of them is therefore properly to be regarded as a serious criminal offence.[4] In effect that is the conclusion to which the judge came, albeit by another and now prohibited path of reasoning, and therefore it is appropriate that the result should be the same.

This approach may well be apposite in the present case. Certainly, Mr McArdle QC, who appeared for the respondent on the appeal, submitted that it should be followed. It is appropriate, however, to consider one other ground of appeal before dealing further with the question of re-sentencing.

**14 Ground 1 was that "the sentencing judge erred in making a finding upon the materials that the appellant trafficked well in excess of 2 kilograms of methylamphetamine in circumstances in which it was not open to him to do so." This statement by his Honour followed immediately after he had noted that "the exact total of methylamphetamine trafficked by you cannot be exactly determined, however, your plea acknowledges that you trafficked in excess of 1.25 kilograms."

15 Mr Johns submitted that, on the material available to the learned sentencing judge, it was not open to him to make a finding that Karafilowski had trafficked "well in excess of 2 kilograms of methylamphetamine", and certainly not without hearing submissions on the matter.[5] He further submitted that the extent to which the quantity trafficked exceeded the statutory level set for a commercial quantity was perhaps the single most relevant factor in placing an offender in a sentencing range. Mr Johns submitted that, in making his finding about the quantity trafficked, his Honour had clearly taken a more serious view of the offender's conduct than was justified, namely that he was close to the large commercial quantity of 2.5 kilograms.

16 Counsel for the respondent submitted that the judge had not erred in finding that Karafilowski had trafficked "well in excess of 2 kilograms of methylamphetamine". It was submitted that it was open to the judge on the evidence before him to find that the amount trafficked exceeded 2 kilograms. The offending included sales to other persons apart from the covert operative Rick, to whom the appellant had sold a total of 252 grams with a purity ranging between 20% and 70%.

17 In my opinion, the material before the learned sentencing judge was simply not adequate to enable him to be satisfied beyond reasonable doubt that Karafilowski had trafficked "well in excess of 2 kilograms of methlyamphetamine". The prosecution conceded that it could only establish, by virtue of the plea, that the amount trafficked was at least 1.25 kilograms (and not more than 2.5 kilograms). Thus, his Honour was not taken through the evidence by the prosecution because it could not show the amount trafficked, if any, in excess of 1.25 kilograms. In the circumstances, his Honour's conclusion cannot be allowed to stand as it undoubtedly was an important part of his Honour's reasons for sentence. Accordingly, I consider that this ground of appeal also succeeds.**

18 Given that the appellant now falls to be re-sentenced by this Court it is neither appropriate nor necessary to deal with the three remaining grounds of appeal. They were that there was a lack of parity between the sentence imposed on the co-offender Basic and the sentence imposed on the appellant; that insufficient weight had been given to the appellant's age and medical condition; and that the sentence was manifestly excessive. The issues underlying these grounds will need to be considered in the task of re-sentencing, to which I now turn.

19 The offence to which Karafilowski pleaded guilty is a very serious one. It carries a maximum penalty of 25 years' imprisonment. Nettle JA in R v Tabone[6] summarised the proper approach to be taken to such an offence.

The course of authority is plain. In cases of commercial cultivating and trafficking in prohibited substances, an immediate custodial sentence will be imposed unless exceptional circumstances can be shown.

... The detrimental effects of drug trafficking upon society are so grave that, absent exceptional circumstances, it is necessary to impose an immediate term of imprisonment.

**20 As discussed above, the amount trafficked by the appellant was at least 1.25 kilograms (44.6 ounces). Evidence before the Court established that, sold as one lot, this amount could realise a street value of between $170,000 and $270,000, although Karafilowski's preferred method of sale was in ounce lots at a cost of $3,500 per ounce. It was said that, on that basis, the amount in question would have realised a street value of $156,100. However, it was submitted on the plea that Karafilowski was a "small time wholesaler" and that any financial gain he obtained as a result of his trafficking was significantly less than the wholesale value of the drugs sold - about $100 an ounce. There was no evidence that Karafilowski had accumulated any assets.

21 Karafilowski's offending was aggravated by his numerous prior convictions extending over a 14 year period, including two previous convictions for drug trafficking, and by the fact that the offending occurred at a time when he was serving a suspended sentence for some dishonesty offences. Clearly, there is a need for both specific and general deterrence, and for denunciation of the conduct in question.

22 Given the strength of the evidence against Karafilowski and his prior history, his plea of guilty cannot, in my opinion, be regarded as evidencing genuine remorse or any prospect of rehabilitation. Nevertheless, the appellant is still entitled to some discount as his plea has saved time and expense.[7]

23 An important factor in the re-sentencing of the appellant is the penalty imposed on his co-offender Basic. She pleaded guilty, at the same time, to one count of trafficking, between 15 June and 23 September 2004, in a drug of dependence, namely methylamphetamine and was sentenced to 3 years' imprisonment with a non-parole period of 15 months. The evidence disclosed that Basic had trafficked in approximately 800 grams of methylamphetamine and that she had actively participated by telephone in assisting to arrange other drug deals. At the time of sentencing Basic was 32 years of age. She had no prior convictions As well as her two sons, Basic had a mother and grandmother who required her assistance. The learned sentencing judge found that her plea of guilty indicated genuine remorse. He also found that there was no evidence of any betterment by Basic as a result of her criminal activity. Finally, his Honour accepted that as a result of the psychological abuse which she had suffered at the hands of both her father and her de facto husband, she was in need of ongoing intensive psychological assistance. The relevant differences between the appellant and his co-offender in terms of quantity, role and antecedents were therefore significant. In the circumstances, the appellant could have no legitimate sense of grievance, in my opinion, were he to receive a considerably heavier sentence than Basic. In particular, the short non-parole period imposed on her was a reflection of the unusual aspects of her situation and her prospects of rehabilitation, which were simply lacking in the case of Karafilowski.

24 At the time of sentencing, Karafilowski was 58 years of age. It was submitted that his age and ill-health were factors which should be taken into account in moderating both the head sentence and the non-parole period. I accept that to some extent these are matters of mitigation. Nevertheless, one comes back to the fact that this was a case of trafficking in a commercial quantity, that the appellant had recent prior convictions for trafficking in drugs and that this offence was committed in breach of the suspended sentence.

25 In the circumstances, I would re-sentence the appellant to a term of imprisonment of 6 years. I would order that the appellant serve not less than 4 years before being eligible for parole.**

[4] R v Pidoto and O'Dea [2006] VSCA 185, [45].

[5] Brand v Parson [1994] VicRp 17; [1994] 1 VR 252; R v Young (1996) 85 A Crim R 104, 110 (Charles JA); R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

[6] [2006] VSCA 238, [21]-[22].

[7] R v Duncan [1998] 3 VR 208, 215 (Callaway JA).

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