R v Koumis & Ors [2008] VSCA 84

Court of Appeal (Vic)|2008-05-22|Before: REDLICH and KELLAM JJA and OSBORN AJA

CRIMINAL LAW - Sentence - Principal offender trafficking heroin in a commercial quantity - Trafficking in methylamphetamine - Undertaking to co-operate with prosecuting authorities - Whether adequate discount allowed for cooperation - Whether sentence manifestly excessive.

Parity - Whether sentences sufficiently disparate to allow for differences between co-offenders and principal offender.

Absence of reasons for unusually high non parole period.

Trafficking at street level for purpose of satisfying addiction - Whether error in assessing relative seriousness of trafficking - Differentiation between trafficking for enrichment or to satisfy addiction - Relevance of drug addiction in relation to moral culpability and rehabilitation.

Adequacy of reasons for sentence - Whether matters in mitigation and prospects of rehabilitation given sufficient weight - Transparency of sentencing process.

1 In January 2006, police commenced an investigation into heroin and methylamphetamine trafficking in the western suburbs of Melbourne. The investigation, Operation Wahoo, concentrated upon alleged trafficking of such drugs by the applicant, Theodosis Koumis. Intercepts of telephone calls made to or from mobile telephones used by Koumis between 3 March 2006 and 11 April 2006, together with covert surveillance and the execution of search warrants in relation to the homes of Koumis and his associates, resulted in him and 10 other persons being charged with drug trafficking offences in April 2006. Koumis and four other persons convicted and sentenced have applied for leave to appeal against their sentence.

The application by Theodosis Koumis for leave to appeal his sentence

**2 On 15 February 2007 at the County Court at Melbourne, Koumis pleaded guilty to one count of trafficking heroin in a commercial quantity and to one count of trafficking in methylamphetamine. The maximum penalty for trafficking in a commercial quantity of heroin is 25 years' imprisonment. The maximum penalty for trafficking in methylamphetamine is 15 years' imprisonment.

3 The evidence against Koumis, derived from telephone intercepts, was that between 3 March 2006 and 11 April 2006, 1,007 telephone calls were identified as being related to his trafficking activities. Based upon those conversations, it was established that between those dates Koumis trafficked 'close to' one kilogram of heroin. The evidence was that he purchased that amount of heroin from his suppliers. There were approximately 32 transactions in which heroin was supplied to Koumis and approximately 57 total sales transactions by Koumis over the period in question. Although the precise amount of heroin trafficked could not be quantified, on any view of the evidence, the amount of heroin trafficked by Koumis well exceeded 500 grams, being the minimum quantity defined as being a 'commercial quantity' by Part III of Schedule 11 of the Drugs Poisons and Controlled Substances Act 1991. The evidence further disclosed that Koumis had trafficked in 'about' half a kilogram of methylamphetamine. The telephone intercepts revealed that there were approximately 32 such transactions during the relevant period, in which the applicant sold methylamphetamine to customers in Melbourne's western suburbs, Geelong, Portland, Hamilton, Ballarat and Mildura. The total amount was significantly in excess of the defined minimum trafficable quantity of methylamphetamine of six grams. The evidence before the sentencing judge was that the applicant's revenue from the sale of heroin during the relevant period was between $150,000 and $200,000 and between $50,000 and $60,000 in relation to the methylamphetamine.

4 A plea was made on behalf of Koumis on 17 May 2007. On 30 May 2007, he was sentenced as follows. On count 1, the count of trafficking in a commercial quantity of heroin, he was sentenced to six years' imprisonment. On count 2, the count of trafficking in methylamphetamine, he was sentenced to three years' imprisonment. One year of the term of imprisonment imposed on count 2 was ordered to be served cumulatively upon the term of imprisonment imposed on count 1, making a total effective sentence of seven years' imprisonment. The sentencing judge ordered that four years and six months' imprisonment be served before the applicant became eligible for parole.

5 In his sentencing reasons the sentencing judge noted that the applicant had not been a heroin addict. He had been a heavy gambler and his drug operations had been entered into to support a gambling addiction. However, the judge found that the 'lure of financial reward' was the primary motive of the applicant. The judge observed that the customers of Koumis, including the other applicants before us, were drug addicts who had 'offended to satisfy an addiction that threatened their lives'. On the other hand the applicant had 'exploited their addiction' and thus the sentencing judge assessed the criminality of the applicant 'as somewhat greater' than that of his customers.

6 The application by Koumis for leave to appeal his sentence is based on two grounds, the first being that the sentencing judge failed to have sufficient regard to the applicant's past and promised future cooperation with the prosecuting authority. The second ground upon which the applicant relies is that the sentence imposed is manifestly excessive.

7 It is appropriate to give consideration to both grounds at the same time, as indeed did counsel for the applicant in making submissions before us. There was evidence before his Honour that on 29 March 2006 that the applicant had delivered drugs to premises where the four occupants dragged him inside, threatened him with a knife and stole his drugs, money, jewellery and a mobile telephone. The applicant reported the robbery to police, although at first he did not inform police of the full circumstances, and in particular, did not report the theft of his drugs. Nevertheless, he agreed to give evidence against the four persons who had robbed him. In addition, in due course and two days before his plea, the applicant provided a statement to police relating to his dealings with one of his alleged suppliers. He declined to give information about other suppliers. Upon the hearing of his plea, the applicant gave undertakings on oath, to give evidence consistent with statements made by him to police in any trials of the four persons who allegedly had robbed him and of the person whom he said was one of his drug suppliers.

8 In his sentencing reasons the judge referred to the applicant's undertaking to give evidence in relation to the robbery. He said:**

Four suspects have been charged and you gave evidence undertaking to give evidence against them. As a consequence you have been placed in protective custody and it is anticipated that your sentence will be wholly served in such custody. Your undertaking is a reason to reduce your sentence.

**9 In relation to the undertaking made by the applicant to give evidence against one of his suppliers, the judge said: 'You have also given further undertakings to the authorities and those undertakings also warrant a reduction in your sentence.'

10 It should be noted that the evidence about these matters was given in the course of the hearing of the plea in camera. It is clear that the above somewhat opaque statement of the sentencing judge referred to the undertaking given by the applicant to give evidence against his alleged supplier. Furthermore, and after handing down his sentence, the judge said: 'I have reduced the immediate period of imprisonment as a result of the factors already mentioned. Given the overall serious nature and scale of your offending I have not reduced to the same extent the total sentence.'

11 The term 'immediate period of imprisonment' used by the judge in the passage above is infelicitous, but read in its full context it is apparent that the judge was referring to the non-parole period fixed by his Honour. Likewise, it is clear that his Honour had reduced the head sentence, although not to the 'same extent'.

12 It was submitted on behalf of Koumis that by reason of his undertaking to assist the authorities he 'should have received a substantial reduction in the sentence that was otherwise appropriate for his offending behaviour'. It was further submitted that the sentencing remarks do not reflect the fact that a substantial discount had been given, nor does the sentence imposed suggest that such a discount was given.

13 The fact that the applicant had agreed to assist the authorities in the prosecution of those allegedly responsible for robbing him must be seen differently from the assistance given by him to the authorities in respect of undertaking to give evidence against one of his alleged suppliers. Insofar as the alleged robbery is concerned, the applicant was the victim. There is no policy reason to say that a victim of an offence should receive a discount in relation to a sentence imposed upon him for entirely separate offending, merely by reason of the performance of his public duty to give evidence as a victim. That, of course, is not to say that by reason of giving such evidence the applicant is not entitled to have the fact that he may be under threat in prison and may require protection.[1] His Honour did take that matter into account and said that the applicant's sentence would be reduced by reason thereof.

14 It is clear, on the other hand, that the applicant was entitled to a discount on his sentence for having undertaken to give evidence against his alleged supplier. As stated by the Court of Appeal in R v Su:**

The courts have for long recognised that it is in the interests of a community to foster dishonour among thieves, in the sense that an offender should be encouraged to inform on others. That encouragement is seen to rely on the giving of "discounts" to those who provide, as best they can, information to police which may assist in the detection of other offenders. [2]

15 However, accepting that the public interest is served by encouraging offenders to supply information to the authorities, the weight to be given to this factor depends upon the circumstances of the case. In particular, the fullness and frankness of any disclosure to the authorities is a relevant matter. In R v Cartwright, Hunt and Badgery-Parker JJ said:

What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive. The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made. The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities. The discount will rarely be substantial unless the offender discloses everything which he knows. To this extent, the enquiry is into the subjective nature of the offender's co-operation.[3]

**16 It cannot be said that the applicant provided to authorities all possible assistance of which he was capable. He had at least three suppliers, about one of whom he was prepared to make a statement. Of course it is to be recognised as did Charles JA in R v Zoumbilis,[4] that there might be compelling reasons (such as concerns for his own safety or that of his family) why a prisoner might hold back information.

17 Nevertheless, the fact that the assistance given to authorities was limited does militate against full weight being given to the issue of cooperation.

18 It is true that the sentencing judge dealt with the issue of cooperation in brief compass. Nevertheless, he stated that the undertaking of the applicant to give evidence against the four suspects who had robbed him was a reason to reduce his sentence. He referred specifically to the fact that the applicant was in protective custody, and that by reason of his assistance to authorities he was likely to remain in such custody for the whole of this term of imprisonment. Furthermore, he referred to the 'further undertakings' given to the authorities and stated that he had 'reduced the immediate period of imprisonment' to be served by reason thereof. He said, however, that by reason of the 'serious nature' and 'scale' of the offending he had 'not reduced to the same extent, the total sentence'. As stated above, it is apparent that by these statements he was expressing his intention to reduce both the non-parole period and the head sentence by reason of the cooperation of the applicant with the authorities. In our view, the submission that the sentencing remarks demonstrate that the sentencing judge failed to have sufficient regard to the cooperation given by the applicant is not made out.

19 We turn to the question of whether the total effective sentence and the non-parole period can be said to be manifestly excessive. In this regard, attention was drawn to the fact that the applicant was 59 years of age at the date of sentence, had never served a sentence of imprisonment before and had good prospects for rehabilitation. He pleaded guilty at an early stage and had no relevant prior convictions. These factors, when considered in the context of the cooperation provided to authorities lead, so it was submitted, to the inevitable conclusion that the sentence imposed was manifestly excessive.

20 On the other hand, and as conceded by counsel for the applicant, the applicant's trafficking activity in both heroin and methylamphetamine was 'at a very substantial level'. The trafficking in which the applicant engaged between 3 March 2006 and 11 April 2006 was intensive and of high volume. It is a very serious example of commercial trafficking in heroin and of trafficking in methylamphetamine. The sentence of six years' imprisonment imposed on the count of commercial trafficking of heroin was less than a quarter of the maximum penalty. The sentence imposed in relation to the count of trafficking methylamphetamine was one fifth of the maximum penalty. The applicant was not a user of drugs. He engaged in the business of trafficking drugs for profit and for no other purpose.

21 The fact that the applicant trafficked in more than one drug of dependence is a relevant matter, and in the circumstances, the cumulation of one year of the sentence imposed in respect of on count 2 on the sentence imposed on count 1 was modest. In our view, were it not for the cooperation of the applicant, a substantially higher sentence than that imposed would have been open to the sentencing judge. In all of the circumstances we do not consider that a head sentence of seven years' imprisonment with a non-parole period of four years and six months can be said to be manifestly excessive. We refuse the application for leave to appeal.**

The applications for leave to appeal against sentence by Barry Jones, John Bota, Courtney Ellen McDonald and Blair Thomas Campbell

22 The police investigation into drug trafficking by Koumis, led to the conviction of these other applicants for trafficking in drugs of dependence supplied by Koumis. The second applicant, Jones, aged 44, pleaded guilty to one count of trafficking in heroin between 3 March 2006 and 11 April 2006. In his sentencing remarks the learned sentencing judge said:

The police concluded and you do not dispute that you [and] a co-offender bought almost 500 grams of heroin from Koumis during the charged period of five and a half weeks. That involved about 30 separate transactions. You and your co-offender paid Koumis a total of more than $125,000 for that heroin. Two-thirds of that heroin was bought by you and one-third was bought by Troy Bassie. You worked jointly to obtain and distribute that heroin. Most of that heroin was sold on to a variety of customers. Your customers combined contributions so that a single purchase could be made at a reduced price. ... You profited from the on-selling and as an addict you were able to satisfy your own need for the drug.

**23 His Honour referred to the applicant Jones acting jointly with his co-offender Bassie, but it was accepted on the appeal that the applicant had been sentenced on the basis that he had trafficked in approximately 320 grams of heroin representing two-thirds of the amount they had purchased from Koumis at a total cost of $125,000.

24 At the time of his arrest in 2005, he was using 3.5 grams of heroin a day. He had prior convictions for dishonesty and two prior convictions for relatively minor drug offences which threw little light on his moral culpability for the present offending.[5] Jones was sentenced to five years' imprisonment with a non-parole period of four years.

25 Material tendered on the plea showed that the applicant grew up in a dysfunctional family setting, living with grandparents, then his parents until they separated, and then his step father, in different locations around Australia while of primary and secondary school age. At the age of 17, he was introduced to heroin while living with his uncle who was a drug dealer. He was described in a psychologists report tendered on the plea as having lived in a 'drug haze' over the last 15 years.

26 After he was charged with the present offence he was released on bail in December 2006 and admitted to Odyssey House. He had received assistance from the Salvation Army and one of their officers testified on the plea as to his excellent progress. The evidence on plea pointed to the applicant being strongly motivated towards a drug free existence and having made significant gains in his drug rehabilitation since his release from custody. The only observation made by his Honour, in very brief sentencing remarks concerning rehabilitation, was that the period of five months was a short period in which to assess the applicant's prospects.**

Whether sentences imposed made sufficient allowance for differences between co-offenders

**27 It was contended that the applicant's head sentence was one more appropriate to a trafficker in a 'commercial quantity' of the drug, such as Koumis, and that there should have been a greater degree of differentiation between the applicant's sentence and that imposed on Koumis. A number of the other applicants also contended that a comparison of their sentence with the sentence imposed on Koumis engendered a justifiable sense of grievance and that the notion of 'equal justice' had been undermined.[6]

28 The sentencing principle of parity is an aspect of equal justice. It requires that like should be treated alike, but that due allowance must be made for relevant differences between co-offenders.[7] Here there were substantial differences in the degree of culpability of Koumis and the other applicants, and all other things being equal, Koumis would have received a much heavier sentence than the other applicants for trafficking. But as we have already said, there were factors peculiar to Koumis that entitled him to a substantial discount,[8] the effect of which was to significantly reduce the sentences imposed on him for individual counts. Where an aspect of the case of one offender has no counterpart in the case of a co-offender, a sentence may be justified which does not differentiate the role played by and circumstances of each offender to the same extent as would otherwise be the case.[9] As there were differences in circumstances between Koumis and the others which explained the differences in their sentences, the principle of parity was not violated. A comparison of the sentences of the other applicants and Koumis did not disclose that the differences were so inadequate as to engender a justifiable sense of grievance or that they gave the appearance in the mind of an objective observer that justice had not been done.[10]

29 Counsel for Jones emphasised that the applicant had pleaded guilty at the committal, and a significant discount was called for.[11] It was further submitted that the head sentence and minimum term did not reflect the fact that the level of the applicant's moral culpability should have been reduced, taking into account the fact that his motivation for the offending was to satisfy his addiction to heroin and that since he had been charged with this offence he had made a concerted effort to rehabilitate from his heroin addiction. It was submitted that the purpose of rehabilitation had been undervalued in the instinctive synthesis.

30 It was also submitted by the third, fourth and fifth applicants that, as the sentencing judge had done with the applicant Jones, he had also sentenced them for more serious trafficking than street level trafficking driven by their addiction. Accordingly, it was submitted, that his Honour had not reduced their moral culpability and had undervalued their prospects of rehabilitation. It is convenient to return to the substance of these submissions after considering the circumstances of the other applicants.**

Absence of reasons for unusually high non parole period

31 Counsel for Jones drew attention to the disposition which had been sought on behalf of his client on the plea. It had been submitted that a short minimum sentence should be imposed. Instead an unusually high minimum term had been fixed. As factors indicative of rehabilitation had been identified during the plea and it had been submitted that a lower than usual non parole period was appropriate, one would ordinarily expect some reasons to be given in the sentencing remarks for the very high minimum term. No reasons were given for doing so. The absence of reasons for something so unusual 'does not inevitably betoken error' but it 'invites appellate scrutiny'.[12] In R v Detanamo this court said:

A non-parole period which exceeds three-quarters of the length of the head sentence is not necessarily indicative of error as there is no fixed standard for the non-parole period. However, where a non-parole period is imposed which is unusual by comparison with other cases and having regard to the facts of the instant case and the course of the plea, reasons should generally be given, and an absence of reference to the sort of factors mentioned by Callaway JA in R v VZ invites appellate scrutiny and may reflect error.[13]

**32 Senior counsel for the respondent, with his customary fairness, conceded that in light of the of the applicant's plea and his prospects for rehabilitation, both the head sentence and non parole period were 'if within the range available, at the very outer limits of such a range'. He also acknowledged that the absence of reasons for the non parole period was of particular significance. That concession was rightly made. This was an unusually high non parole period unaccompanied by any explanation and where no obvious reason was present for its imposition. We have concluded that the learned sentencing judge fell into error in fixing the minimum sentence.

33 The third applicant, Bota, aged 33, pleaded guilty to trafficking in heroin between 3 March 2006 and 11 April 2006. During that period Bota purchased approximately 170 grams of heroin from Koumis at a cost of $41,000. In his sentencing remarks the learned judge said:**

Your counsel submitted that you used one-third of that heroin and the balance was sold. There is no material to support or challenge that assertion. You were then using 3½ grams of heroin every two days. Your customers combined contributions so that a single purchase could be made at a reduced price. On the basis of a price nominated by you in your record of interview those purchases would have cost you about $41,000. There was a shortage of supplies of heroin in 2006 and Koumis supplied a relatively reliable product. You profited from the on-selling. As an addict you were able to satisfy your own need for the drug.

**34 Bota had numerous prior convictions for drug related matters and dishonesty. He was sentenced to four years' imprisonment with a minimum term of three years. He had become addicted to methylamphetamines in 1992. In 1997 he had a motorcycle accident and sustained serious injuries requiring extensive rehabilitation. During the period of his convalescence, he became addicted to heroin. He had not previously been the subject of any coercive disposition involving drug treatment.

35 At the commencement of oral argument on appeal, counsel for the applicant sought leave to file 'fresh evidence' by affidavit which disclosed that the applicant is presently serving his sentence in protective custody and suffers from a painful back condition. We reserved the question of whether leave should be granted. As the matters raised in the affidavit do not throw any new light on circumstances that existed at the time of the plea, they as such do not constitute 'fresh evidence'.[14] As the evidence is inadmissible leave must be refused. During argument, however, we indicated that if the appeal was successful on other grounds and the sentencing discretion was reopened, we would have regard to such material.

36 In addition to the argument that the sentence was manifestly excessive, counsel for Bota submitted that the learned sentencing judge had failed to give any or sufficient weight to the fact that the applicant had not trafficked for enrichment, but to satisfy his own addiction. There were 13 transactions each involving small purchases which supported the applicant's contention.

37 It was further submitted that the sentencing judge, in his short reasons, gave insufficient or no weight to Bota's progress towards rehabilitation in attempting to end his addiction in the period between his arrest and his plea. Following his release on bail, the applicant had been placed on a Court Integrated Service Program involving methadone. Evidence on the plea showed that the applicant was 'highly motivated' 'cooperative' and 'possessing a good level of insight into his substance abuse issues.' During his release he had formed a stable relationship and had returned to live with his parents. His Honour described the evidence of the applicant's progress as 'commendable' but doubted that without long term residential treatment the applicant could become a responsible member of the community.

38 The sentence imposed was acknowledged by senior counsel for the respondent to be 'at the outer limit of the range available'. It was not disputed that the applicant's motivation for offending was to satisfy his own addiction nor was the strength of the evidence of the applicant's rehabilitation between sentence and plea challenged.

39 The fourth applicant, McDonald, aged 25, pleaded guilty to one count of trafficking in methylamphetamine between 3 March 2006 and 20 April 2006 (count 1) and one count of possession of heroin (count 2). During that period the applicant purchased 103 grams of methylamphetamine from Koumis at a cost of approximately $12,000. The learned judge in his sentencing remarks said:**

When arrested on 20 April 2006 you had possession of drug paraphernalia and the equipment usually associated with dilution of drugs for resale. In record of interview Q116 at p1634 you said that you used one gram of amphetamine per week. That would amount to the use of seven grams over seven weeks. It appears that a large part of your methylamphetamine purchases were sold to other users in Geelong. In Q107 you said that your income in April 2006 was $400 per fortnight paid by Centrelink. Those payments would not finance your substantial drug purchases. You profited from the on-selling and as an addict you were in that way able to satisfy your own need for the drug. ... Following arrest you had a difficult period of withdrawal from drugs. ... The quantity of drugs handled by you over seven weeks establishes that your role was more significant than that of an individual street vendor. Your role was a step higher. You were not as your counsel submitted "at the bottom of the food chain".

**40 The applicant, who had some prior convictions for dishonesty and one drug related conviction, was sentenced to three years' imprisonment with a minimum term of 18 months. On the second count she was fined $100. It was not in dispute that the applicant had become involved with drugs at a very early age because of her very difficult family circumstances, which included the death of her father, her diagnosis at age 12 of an attention deficit hyperactivity disorder for which she was prescribed dexamphetamine that had a very pronounced effect on her, and her subsequent placement in a foster home.

41 Reliance was placed upon the very early time, prior to the committal, at which the applicant pleaded guilty. It was submitted that it was not apparent from the very brief sentencing remarks spanning some two pages, that the applicant was given any credit for such an early plea. Counsel for McDonald contended that the learned sentencing judge had erred in rejecting the submission that she had engaged in trafficking at the lowest level. Reliance was placed on the evidence that had been given by police and a Salvation Army officer on the plea, which had not been challenged, which demonstrated that she was addicted and using at least one gram of methylamphetamine each day. That evidence supported the conclusion that she had trafficked only to finance her addiction. Thus it was contended that it was not open to the sentencing judge to be satisfied that the applicant's activities were 'more significant than that of an individual street vendor'.

42 On appeal, senior counsel for the respondent did not take issue with the submission that the evidence led on the plea demonstrated that the applicant's motivation for trafficking was only to feed her own addiction. In our view, that concession was properly made as the uncontested evidence supported the probable inference that the purpose of the applicant's trafficking was to use the proceeds to support her addiction.[15] We agree with the submissions of counsel that the views expressed by his Honour, as to the extent of the applicant's addiction and her level of offending cannot be sustained in the light of the unchallenged evidence on the plea.

43 As his Honour was said to have erred as to the extent of the applicant's addiction and its relevance to her offending, it was submitted that he had also failed to give sufficient weight to the fact that the applicant had made significant efforts to rehabilitate herself. The applicant had been released on CREDIT bail which involved the cessation of drug use and methadone treatment. The applicant, McDonald, had successfully completed programmes which addressed her drug addiction. She had committed no further offence. She had undertaken paid employment and performed volunteer work with a wild life shelter. Emphasis was placed on the fact that the applicant was still relatively young at the time of the plea. Counsel drew attention to the fact that these matters were not referred to in the limited sentencing remarks nor was there any evaluation of the applicant's prospects for rehabilitation or her moral culpability for her offending.

44 The fifth applicant, Campbell, aged 42, pleaded guilty to one count of trafficking in methylamphetamine between 12 October 2005 and 12 April 2006 (count 1) and one count of possession of heroin (count 2). During that period he purchased 52.5 grams of methylamphetamine from the first applicant Koumis. At the time of the applicant's arrest he and his partner, Sharon Knight, who was also charged with trafficking, were at home self-injecting. The applicant, who had numerous prior convictions for drug offences, was sentenced to two years' imprisonment on count 1 and one month's imprisonment on count 2 to be served cumulatively on the sentence on count one, with a minimum term of 18 months. In his sentencing remarks his Honour said:**

You had drug paraphernalia at home. You worked jointly to obtain and distribute amphetamine. Some of that drug was sold to a variety of customers. That is confirmed by the telephone exhibits in Exhibit B. You assert that most of the drugs were for your own use and I cannot accept or reject that claim. Exhibit B makes it clear that you were dealing with a number of other users. Your customers combined contributions so that a single purchase could be made at a reduced price. There was a shortage of supplies of methylamphetamine and heroin in 2006 and Koumis supplied a relatively reliable product. You profited from the on-selling and as an addict you were each able to satisfy your own and your partner's need for the drug.

**45 On the plea, considerable emphasis had been placed upon the applicant Campbell's long standing drug addiction and that of his de facto wife, Ms Knight. On appeal, counsel for Campbell, like counsel for other applicants, submitted that the learned sentencing judge had erred in finding that Campbell 'profited' from the selling of methylamphetamine, as the sole motivation for the applicant's trafficking was to feed his addiction. He further submitted, as had the other applicants' counsel, that although his Honour had accepted that the applicant was an addict, he had done so in the context of an impugned finding that they had made a 'profit' from their trafficking.

46 Counsel for the applicant Campbell submitted that the sentencing judge had failed to make a finding that the gravity of the offending was reduced by reason of the impact of the applicant's addiction on his level of moral culpability. He also submitted that the learned judge had failed to give any weight to the extensive evidence which pointed to the degree of rehabilitation achieved by the applicant since his arrest and prior to the plea. The applicant, who, together with his partner, were released on bail immediately following his arrest, completed a residential drug treatment programme at Odyssey House over a four month period and was then monitored by the Glenelg Southern Grampians Drug Treatment Service. That service provided a report, tendered on the plea, which showed that both the applicant and his partner had continued to be drug free over a nine month period and had been successfully reunited with their family comprising four children aged 18, 14, 8 years and 14 months. The applicant had maintained employment as a leading hand on a fishing boat during his period on bail. Considerable emphasis was placed upon the fact that this was the first time he had been successful in breaking his addiction despite several earlier attempts in his life and that he was highly motivated to remain drug free.

47 Senior counsel for the respondent described the evidence of the applicant's rehabilitation as 'impressive', and acknowledged that in the very brief sentencing remarks, no reference was made to the applicant's prospects for rehabilitation. He referred to the fact that the applicant had become an addict when he was a teenager growing up in a dysfunctional household and conceded that one would have expected some assessment of the impact of his drug addiction upon the issue of moral culpability for his offending to appear in the sentencing remarks.

48 Thus it can be seen that there were a number of submissions common to the second, third, fourth and fifth applicants. It was not in issue that the evidence in each case established that there was a link between their addiction and the commission of the offences.[16]**

Trafficking at street level and for the sole purpose of feeding a drug addiction

**49 The linkage of each applicant's drug addiction to the commission of the crime and the level at which the trafficking took place, were both relevant circumstances in the sentencing process.[17] Under s 70 of the Drugs Poisons and Controlled substances Act 1981, anyone who sells a drug of dependence, by definition trafficks. As Callaway JA observed in R v Bouchard, an offender is engaged in street level trafficking when he does so 'to gain the wherewithal to satisfy his own craving, rather than as a non-user acting purely for reasons of greed'.[18] The sentencing remarks in each applicant's case suggest that his Honour was of the view that the applicants made a 'profit' from the sale of the drug of dependence and their role should be viewed as more serious than that of a street vendor only selling to obtain funds to satisfy their addiction. If the learned sentencing judge did not intend to use the term 'profit' in each of his sentencing remarks to mean the receipt of funds in excess of those required to feed the applicant's addiction, he did not say so.

50 Whether the motivation of the drug addict who trafficks solely to feed their habit is viewed as the absence of an aggravating circumstance or as a mitigatory circumstance, one would ordinarily expect some differentiation between the sentence imposed on such an offender and one who is motivated purely by greed.[19] The authors of Sentencing: State and Federal Law in Australia identify a number of factors that may explain why the sentence of the addict will usually be lower.[20]

51 We agree with the submissions made in each applicant's case that the evidence warranted the conclusion that the likely motivation for their trafficking was only to satisfy their addiction and could not support a finding on the criminal standard of proof of an aggravating circumstance that it was for the purpose of enrichment.[21] The funds obtained by them from the sale of drugs were utilised for the sole purpose of acquiring drugs to feed their addiction.[22] Accordingly, we also accept the related submission that the learned sentencing judge erred in his assessment of the level of seriousness of their trafficking. Each applicant should therefore have been sentenced on the basis that they were trafficking at the lowest level.**

Relevance of applicants' drug addiction to moral culpability and rehabilitation

**52 In the present cases each applicant's drug addiction was directly linked to the commission of the crime.[23] Each of the applicants on their plea had sought to make a case for their drug addiction to be considered as a mitigating circumstance. In all but one case the applicants came from a dysfunctional family background and had become involved in drug taking from a young age.[24] The common submission advanced was that by not treating each of the applicant's trafficking as at the lowest level for the sole motive of satisfying their drug addiction, his Honour had failed to properly reflect each applicant's moral culpability. In each applicant's case it was also urged that their addiction had a particular significance in assessing their prospects for rehabilitation.

53 A number of general propositions may be stated about the relevance of addiction to the question of moral culpability and whether it should be viewed as a mitigating circumstance for the purpose of sentence. Drug addiction provides no justification for the purposes of sentencing. Drug addiction is not of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate.[25] The sentence to be fixed has to reflect the seriousness of the crime of trafficking in substantial quantities of a drug of dependence. Denunciation and general deterrence assume particular importance as the purposes to be effectuated by the sentence.[26] Generally speaking, addiction and any consequential impairment of judgment, will not have any significant mitigatory effect upon those sentencing considerations.[27]

54 But sentencing being a discretionary decision to be made by reference to the circumstances of the particular case, it would be erroneous to conclude that drug addiction will always be relevant in the same way to the fixing of a sentence and must always produce the same sentencing consequences.[28] There may be circumstances in which the offender's drug addiction will have a particular bearing upon moral culpability. It will usually be of relevance to the question of rehabilitation. In R v Lacey,[29] this court again referred to the passage from the judgment of McGarvie J in R v Nagy in which his Honour said:**

The law does not preclude a court in sentencing this applicant from regarding it as an important factor that he and his de facto wife were heroin addicts and that the crimes were committed with a view to obtaining heroin and money to enable their addiction to be satisfied. Such a factor has been regarded as important in the determination of a person's criminality: R v Voegeler (1988) 36 A Crim R 174 at p 175. The regard that is to be paid to this factor depends on the circumstances but there is no legal restriction on the extent of the allowance which can be made for it in determining a sentence.[30]

55 Similarly in R v Bouchard, Callaway JA said:

It may be conceded that it is a relevant and sometimes very significant factor in sentencing that an offender engaged in trafficking, especially at "street level", in order to gain the wherewithal to satisfy his own craving, rather than as a non-user acting purely for reasons of greed and in callous disregard of the grave harm that offence does to its victims.[31]

56 The general reluctance of courts to take drug addiction into account rests in part, at least, upon the view that the decision to begin to use drugs was voluntary and the commission of crimes to feed an addiction was a likely consequence of that choice.[32] The accountability of the addict for their addiction and questions as to their moral culpability and rehabilitation, were discussed in R v McKee.[33] Buchanan JA said:

The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question ... I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse. An addiction to heroin may also bear upon the question of rehabilitation , where the prospects of success will often depend upon the likelihood of the addiction being successfully treated. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.[34]

57 Vincent JA expressed a similar view and added the following:

[c]ounsel for the appellants placed considerable reliance on the fact that both of their clients had developed an addiction to drugs. Each did so at a relatively early age and each almost certainly became so enmeshed in consequence of the deprivation, abuse or disadvantage to which she had been subjected as a young person. I accept that such experiences and drug addiction itself are capable of producing serious corrosive effects that may continue to influence the conduct of the person concerned well into adulthood and from which, in some circumstances, they may never completely escape. That possibility is one which, in my opinion, must be seriously taken into account for a variety of sentencing purposes. These would include the assessment of the moral culpability of an offender with respect to the commission of a specific offence and therefore could assume relevance when considering the significance to be attributed to the notion of retribution for wrongdoing as a sentencing consideration. Of course, it does not follow that individuals who come before the court with the type of history to which I have referred do not make choices or that they cannot be held fully accountable for conduct in which they voluntarily engage or which may be the ultimate product of deliberate lifestyle choices made by them. However, and obviously, in the determination of an appropriate sentence in an individual case, regard must be had to the particular circumstances of the offender concerned. As Buchanan JA has pointed out, the background against which an offence was committed could also possess relevance when a sentencing judge came to consider the offender's prospects of rehabilitation. It may indicate the presence of a need to endeavour, through the sentencing process, to protect the public and affect the weight given to specific deterrence in the determination of an appropriate sentence.[35]

58 Drug addiction which has played a role in the commission of the offence, will often be relevant to the prospects of rehabilitation. Protection of the public and the rehabilitation of the offender are interlinked.[36] But the addiction may give rise to adverse conclusions about the offender's prospects for rehabilitation. In assessing those prospects of rehabilitation of a drug addict who has been charged and released on bail for drug related offences which are likely to carry with them a term of imprisonment, it must be recognised that there is a great incentive for the offender to demonstrate that he or she has addressed her addiction prior to sentence. As Doyle CJ observed in R v Proom:

Addiction to drugs may indicate that assurances by an offender of a desire to be rehabilitated are unreliable, or must at least be treated with caution, and sadly may mean that even a genuine wish to rehabilitate may have to be treated with caution. In the worst case, if there is no reason to think that the addiction will be broken, there will be no basis for leniency by reference to the prospect of rehabilitation.[37]

**59 Whether the offender's conduct on bail permits any conclusion to be drawn as to his or her long term prospects of rehabilitation must be assessed by the sentencing judge. Making due allowance for the caution with which this question is to be approached, the degree to which each of these applicants, between arrest and plea had successfully taken advantage of the opportunity afforded them to deal with their addiction was to be taken into account.[38]

60 The sentencing judge was thus faced with a difficult sentencing task. His Honour had to weigh up the sentencing imperatives of deterrence and denunciation in the context of a serious crime, the applicants' relative moral culpability, their individual prospects of rehabilitation and, in some cases, the relative youth of the offender.**

**61 The sentencing remarks for each applicant were, as we have mentioned, regrettably brief. They were inadequate. As a consequence, it was not possible to determine whether the learned judge had taken into account the specific matters raised by the applicants, and if he did, what view he took of those matters.

62 The requirements of the Sentencing Act 1991 and the range and complexity of sentencing principles make the role of sentencing a very demanding one. Consequently, reasons for sentence are today rarely delivered 'ex tempore' despite the burden of work of trial judges. It is no longer sufficient for the sentencing judge to deliver a few remarks to the prisoner relating to the circumstance of the offence and which inform the prisoner of the sentence to be imposed.[39] To ensure that the instinctive synthesis in the sentencing process is not unfathomable and does not conceal error, the 'law strongly favours transparency'.[40] Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts and the public.[41] Each must be able to understand, from the sentencing remarks what are the principal factors that have influenced the sentencing decision.

63 While reasons for sentence need not be extensive, one would usually expect the reasons to include certain matters. Without being prescriptive or exhaustive, one would generally expect the reasons to include the sentencing judge's findings as to the circumstances of the offence and any circumstances which the judge regards as aggravating or mitigating. Reference will normally be made to the impact of the offence upon the victims. The personal circumstances of the offender which bear materially upon the sentence should be identified. It is also desirable that conclusions reached by the sentencing judge as to the primary arguments advanced by the parties, particularly if they are in controversy, should be apparent from the reasons. That is not to suggest that the sentencing judge is obliged to address every argument advanced on the plea.[42] But the primary factors that have influenced the instinctive synthesis should be exposed during the course of the sentencing remarks. Where the sentencing remarks are deficient as to such material matters, transparency in the process is denied and interested parties are left to 'speculate' about the reasoning process.[43]

64 The absence of reasons on matters relevant to the sentencing disposition will not of itself vitiate the sentencing decision or provide a ground for review of the sentence. Where the reasons are silent as to a matter, it will be necessary to determine whether it was material to the exercise of the sentencing discretion.[44] If it was, the sentencing judge was obliged to take it into account. The conclusion that the sentencing judge has failed to do so or to give it sufficient weight, will then commonly depend upon whether it can be said that a markedly different sentence would have followed, had the matter been taken into account.[45] It is in that context that it is sometimes said that 'the failure to give reasons betokens an omission to take the factor into account at all.'[46]

65 We are unable to say from the reasons, what view his Honour formed, if any, as to the role played by each applicant's drug addiction in the commission of the crime. Similarly, in most cases, we cannot discern to what extent his Honour took into account the steps taken by each applicant to deal with their addiction before sentence or his Honour's view of their prospects for rehabilitation. In some cases they were not addressed at all and in others they were not adequately addressed. We do not stay to consider the relative significance of each of these matters to the instinctive synthesis as they were all, to varying degrees, material. The sentencing judge was obliged to take into account their cumulative mitigatory effect. They do not, in our opinion, appear to be reflected in any of the applicant's sentences. Accordingly, the absence of reasons supports the conclusion that in each applicant's case, these matters were not taken into account sufficiently or at all.

66 As we have already stated, the learned sentencing judge wrongly assessed the level at which the trafficking by each applicant took place. Because of these errors, common to the second, third, fourth and fifth applicants, and those specific errors which we have earlier identified with respect to the second and fourth applicants, leave to appeal should be granted in each applicant's case, the appeals allowed and the sentencing discretion reopened.

67 The applicants should be resentenced as follows:**

Barry Jones - Four and a half years' imprisonment with a non-parole period of three years.

John Bota - Three years' imprisonment with a non-parole period of two years.

Count 1 - Two years' imprisonment with a non-parole period of one year.

Count 2 - The sentence of a $100 fine is confirmed.

Count 1 - Two years' imprisonment with a non-parole period of one year.

Count 2 - The sentence of one month's imprisonment is confirmed and it is directed that it be served concurrently with the sentence imposed on count 1.

[4] (Unreported, Winneke P, Charles JA and Southwell AJA, 4 June 1996.)

[5] Veen v The Queen [No 2] [1988] HCA 14; (1987) 164 CLR 465.

[7] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).

[8] Koumis had offered significant assistance to authorities and was serving his sentence in protective custody.

[9] Postiglione v The Queen [1997] HCA 26; 189 CLR 295, 301 (Dawson and Gaudron JJ).

[10] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 404 (Hampel AJA); Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.

[11] R v Taing & Ly [2004] VSCA 46, [20].

[12] DPP v Josefski [2005] VSCA 265, [43] (Callaway JA).

[14] R v Duy Duc Nguyen [2006] VSCA 184, [36] (Redlich JA).

[15] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 280 - 281.

[16] R v Lacey [2007] VSCA 196, [17] (Vincent and Redlich JJA and Habersberger AJA); R v Bouchard (1996) 84 A Crim R 499, 501 (Callaway JA with whom Winneke P and Hampel AJA agreed).

[17] R v Nolan [1998] VSCA 135, [15] (Buchanan JA); R v Roberts & Urbanec [2004] VSCA 1; (2004) 9 VR 295, [142] (Batt JA); DPP v Rose; DPP v Miller [2005] VSCA 275, [2] (Nettle JA); R v Bosio; R v Clarke; R v Zogheib [2005] VSCA 209, [26] (Vincent JA).

[19] R v Fabian (1992) 64 A Crim R 365, 368 (Kirby P); R v Voegler (1988) 36 A Crim R 174, 175; R v Perrier [No 2] [1991] VicRp 38; [1991] 1 VR 717; Richard G Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria, (2nd ED, 1999) [12.908], [12.919].

[20] Sentencing: State and Federal Law in Victoria, (2nd ED, 1999) [12.919].

[21] Weininger v R [2003] HCA 14; (2003) 212 CLR 629; (2003) 77 ALJR 872; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 280-281 (Gleeson CJ, Gaudron, Hayne and Callinan JJ); R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking, Hayne, Callaway JJA and Southwell AJA).

[22] R v Lacey [2007] VSCA 196, [17].

[24] R v McKee; R v Brooks ([2003] VSCA 16; 2003) 138 A Crim R 88, [12]-[13].

[25] R v Proom [2003] SASC 88, [52] (Doyle CJ).

[26] DPP v Leach [2003] VSCA 96; [2003] 139 A Crim R 64, [3] (Batt JA).

[27] R v Grossi [2008] VSCA 51, [53] (Redlich JA).

[31] (1996) 84 A Crim R 499, 501 (Winneke P and Hampel AJA agreeing).

[32] R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 383 (Spigelman CJ).

[33] [2003] VSCA 16; (2003) 138 A Crim R 88, [12]-[13] (Buchanan JA).

[36] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, 305, 307 (McHugh J).

[38] DPP v Rose; DPP v Miller [2005] VSCA 275, [29] (Nettle JA).

[39] Compare Shrubsole v Rodriuez (1978) 18 SASR 233 (Wells J).

[40] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 375 (Gleeson CJ, Gummow, Hayne and Callinan JJ); Wong v R [2001] HCA 64; (2001) 207 CLR 584; Johnson v R [2004] HCA 15; (2004) 205 ALR 346, [41] (Kirby J); R v Nevermann (1989) 43 A Crim R 347.

[41] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 375.

[43] DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85, 91 (Maxwell P).

[44] R v Beary [2004] VSCA 229; (2004) 11 VR 151, 157-8 (Callaway JA).

[45] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); R v Okutgen (1982) 8 A Crim R 262.

[46] R v Nikodjevic [2004] VSCA 222, [1] (Ormiston JA).

Drugs Poisons and Controlled Substances Act 1991

At a glance

Court

Decision date

Before

Source

Judgment (141 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (18)