R v Lacey [2007] VSCA 196

2 On 2 March 2006, the appellant pleaded guilty before the County Court at Melbourne to one count of trafficking, between 4 June and 4 August 2005, in a drug of dependence, namely diacetylmorphine (heroin). The maximum penalty for this offence is 15 years' imprisonment. After hearing a plea in mitigation of penalty, the learned judge, on 19 May 2006, sentenced the appellant to imprisonment for 4 years, with a non-parole period of 2 years.

3 The appellant was born on 26 February 1975. He was aged 31 at the time of sentencing. Although the appellant had a stable family upbringing, he left home at 15 so as to be closer to his workplace, where he was employed as a chicken boner. His father worked as a boner in a butcher's shop. In a report dated 27 September 2005, a consulting psychologist, Warren Simmons, stated that Lacey's composite IQ score put him at the 4th percentile, meaning that 96% of people would do better than him. He described Lacey as being "in the below average range of intellectual functioning although not within the intellectually disabled range". Mr Simmons also noted that Lacey had said that, as a child, he had been diagnosed with Attention Deficit Hyperactivity Disorder for which he was placed on medication.

4 There was evidence, which the learned sentencing judge apparently accepted, that the appellant commenced smoking cannabis at about the age of 13, that he began using heroin and benzodiazepines at the age of 17 and that he had been addicted to heroin since about the age of 20. The appellant has a history of regularly offending since 1992. From 17 previous court appearances, 60 prior convictions have resulted, three of them for trafficking heroin and virtually all of them drug-related in some way. He has been sentenced to several short terms of imprisonment. In the five or so years before his arrest, the appellant had worked only irregularly in casual employment.

5 The appellant and his partner, Crystal Ingham, pleaded guilty to the same charge. The evidence tendered on behalf of the prosecution established that in the period between 4 June 2005 and 4 August 2005, the two were living together in a squat. Neither were employed and both were regularly using heroin. Others, including a co-accused Glen Wills, also lived at the house.

6 Telephone interception of a mobile phone belonging to the appellant indicated that out of approximately 3,400 recorded calls, 386 calls were received from customers seeking to purchase varying amounts of heroin. The vast majority of these calls were answered by Lacey. Only 41 calls were answered by Ingham, with a lesser number by Wills. During her telephone calls, Ingham arranged the details of the purchases, including amount, cost and place of sale. On one occasion, she was heard to say that the heroin was half hers and half the appellant's, and that all the customers talked to her.

7 Prices discussed on the intercepted calls received by the appellant ranged from $50 to $700, indicating supplies of heroin in quantities ranging between 0.1 grams and 3.5 grams. The worth of transactions where an actual amount of money or a quantity of heroin was specifically mentioned in the telephone calls was approximately $38,160. Presumably, this underestimated the total amount of sales. A further 26 monitored calls were made by the appellant to people believed to be his heroin suppliers. The appellant bought up to 7 grams per day, which would be used by Ingham and himself or would be on-sold to other users. During the two months of surveillance, at least $37,700 worth of heroin was purchased by the appellant.

**9 It is convenient to commence with ground 2, which was that "the learned sentencing judge erred by not treating the fact that the appellant's trafficking was motivated by drug addiction as reducing his moral culpability".

10 At the hearing of the plea, counsel submitted on behalf of the appellant that his offending was undertaken to support his drug addiction. In response, the learned sentencing judge said:**

I accept that there is a line of authority which suggests that if the drug is being used by the offender and the trafficking is done for the purpose of providing funds to enable more of the drugs to be purchased for their own use that, in some respects, restricts the limits [sic] of seriousness of the offending but I must say I have a lot of difficulty with that proposition ... [M]y view is it may mitigate the seriousness of the offence slightly but it's only a very, very slight matter.

11 In his reasons for sentence, his Honour said, apparently in respect of all three co-accused:

Whether or not you were trafficking, as it would appear, substantially to feed your own drug habits or to make easy money by exploiting the vulnerability of other members of the community to drugs does not, in my view, make a substantial difference to the seriousness of the offending. The damage such activities cause to other members of the community remains the same.

**12 There is clear and binding authority that in Victoria drug addiction may constitute a significant mitigating factor. In our view, in the circumstances of this case the learned sentencing judge was in error by, in effect, putting to one side the appellant's addiction in holding that it did not make "a substantial difference to the seriousness of the offending".

13 In R v Nagy,[1] McGarvie J stated that:**

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.

14 In R v Bouchard,[2] Callaway JA commented that:

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.

15 In R v McKee,[3] Buchanan JA summarised the position as follows:

The motive for the commission of the crimes was the appellants' need of money with which to buy heroin to feed their addiction. According to the Court of Criminal Appeal in New South Wales it has been "said on countless occasions that addiction to heroin is not to be considered as effective reduction of what would otherwise be an appropriate sentence". While the existence of an overwhelming physical craving may explain the commission of a crime to obtain money to purchase heroin to still the craving, the courts' refusal to take it into account may be due to the view that the decision to begin to use drugs is said to be voluntary and the commission of crimes to feed an addiction is a likely consequence of that choice. In R v Henry, Spigelman CJ said:

"[S]elf-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice."

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, as Spigelman CJ acknowledged. 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.

**16 The offender's addiction will only call for mitigation of punishment where it is established on the balance of probabilities that there was a link between that addiction and the commission of the offences. Sentencing error will only arise where it can be shown that, on the material presented on the plea, the sentencing judge was bound to find the requisite link between the offender's addiction and the offences.[4]

17 In the present circumstances, there was a strong case for the appellant's drug addiction to be considered in sentencing. Relevant matters to be taken into account were that the appellant's drug taking had started when he was still only a child, that he had become addicted at a young age, that his long criminal history was drug-related, that part of the drugs he purchased were for his own personal use and that of his partner, that the charges against him arose out of street level operations and that there was no evidence of enrichment. Moreover, the appellant's history, as recited in the psychologist's report, indicates that his use of heroin may no longer be one of choice, but rather compulsion and as a result of addiction. To adopt the words of the Queensland Court of Appeal, addiction in this case is a factor that helps the offender:**

to the extent of showing that his ... descent into the crime in question was a secondary consequence of desperation produced by a human weakness rather than a primary choice.[5]

18 In our view, the material required the learned sentencing judge to find that the appellant's addiction was linked in the requisite way to the commission of the offences. The sentencing discretion is therefore reopened.

**19 These grounds are related. They were that the learned sentencing judge erred "in his assessment of the relative roles" of the appellant and his co-accused Ingham and "in the application of the parity principle by imposing on the appellant a manifestly disparate sentence" to that imposed on Ingham.[6] It was submitted for the appellant that, viewed objectively, the sentence given to the appellant compared with the co-accused, Ingham was "such as to engender a justifiable sense of grievance."[7]

20 Relevant points of comparison between co-accused are their age, background, previous criminal history, character and the roles played in the commission of the offence.[8]

21 Ingham pleaded guilty to the same offence as the appellant. She was sentenced to imprisonment for 12 months, with a non-parole period of 3 months. (Initially, his Honour sentenced her to a term of 9 months' imprisonment, with a non-parole period of 3 months, but increased the head sentence when reminded that he could not fix a non-parole period unless that sentence was not less than one year.[9]) The learned sentencing judge noted Ingham had a most unfortunate background. She was born, heroin dependent, on 28 August 1984 and spent most of her young life with her grandmother, after her drug addicted mother disappeared. The relationship with her grandmother was a violent one. As a teenager she commenced living with her father who was a cannabis user and later went to live with her mother and her mother's boyfriend, both heroin users. By the age of 15, Ingham had developed a heroin habit and, at 16, she commenced to live in squats. Her criminal history dated back to 2001. She had a record of 35 prior convictions from five previous court appearances.

22 His Honour held that Ingham's involvement in the trafficking was "at a low level" and that the only purpose of her participation was to obtain her daily dose of heroin. He found that she did not have any direct dealings with suppliers of the heroin but that, by answering Lacey's telephone and taking calls from customers, she "facilitated the trafficking in the drug". Otherwise, his Honour said, there was no evidence that she was actively involved in the trafficking.

23 It was submitted on behalf of the appellant that even allowing for the differences in personal circumstances between the appellant and Ingham, and for the more significant role played by the appellant in the offending, the disparity between their sentences was too great. It was pointed out that Ingham's term of imprisonment was one quarter the length of the term given to the appellant and her non-parole period was one eighth the length of the appellant's.

24 The respondent submitted that there were differences between the appellant and Ingham which justified the disparity between their respective sentences. In particular, the respondent noted that the appellant was the only one who dealt with the suppliers of the heroin, that it was his mobile phone that was used to arrange the transactions, that it was he who received the most calls and that the appellant personally delivered some of the orders. The appellant's age and his history of offending were also contrasted with that of Ingham and cited as a reason for the difference in the sentence.

25 There is no doubt that, in terms of most of the points of comparison between Lacey and Ingham referred to above, such as their age, their previous criminal history and the roles played in the commission of the offence, the appellant had to receive a heavier sentence than his co-accused. Nevertheless, in our opinion, the appellant was not deserving of a head sentence and a non-parole period so many times greater than those imposed on his co-offender. In reaching that conclusion we have taken into account the evidence that, on occasions, Ingham was engaged in drug trafficking negotiations, including her telling comment in one of the recorded telephone calls with a potential purchaser that the heroin was half hers and half the appellants. Further, while the appellant is nearly 10 years older than Ingham, she was not a minor at the time of the offending. Moreover, there was no evidence of a power imbalance in the relationship between the appellant and Ingham that would lead an objective observer into thinking that his culpability was that much greater than hers. It is our view, therefore, that the sentence imposed was sufficiently disparate as to give rise to a justifiable sense of grievance in the objective observer. Once again, the sentencing discretion is re-opened.**

26 In the circumstances, it is unnecessary to deal with the remaining ground of appeal, which was that the sentence was manifestly excessive. The issues underlying this ground were considered when we came to re-sentence the appellant.

27 In our view, bearing in mind the appellant's early plea of guilty, the matters referred to above relating to his drug addiction, his successful undertaking of three drug-related education programmes during his term of imprisonment, the fact that his family remained supportive of him and that he had some prospect of employment once he was released and taking into account the sentences imposed on his co-accused Ingham and Wills, the appropriate sentence in respect of the appellant was one of imprisonment for 3 years, with a non-parole period of 18 months. Accordingly, the orders made by the Court at the hearing were as follows:

The sentence imposed in the court below is set aside and in lieu thereof the appellant is sentenced to a term of three years imprisonment, in respect of which a non-parole period of 18 months is fixed.

It is declared that the period of 567 days that has already been undergone is reckoned as having been served under the sentence imposed and it is ordered that the declaration and its details be entered in the records of the Court.

[1] R v Nagy [1992] VicRp 45; [1992] 1 VR 637, 640.

[2] (1996) 84 A Crim R 499, 501. Winneke P and Hampel AJA agreed with Callaway JA.

[3] R v McKee, R v Brooks [2003] VSCA 16, [12]-[13]. Vincent and Eames JJA agreed with Buchanan JA. In New South Wales, "drug addiction is a relevant circumstance but is not, of itself, a mitigating factor": R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, [193] (Spigelman CJ).

[4] R v Bernath [1997] 1 VR 271, 276 (Callaway JA).

[5] R v Hammond [1996] 2 Qd R 195, 199-200 (Thomas, Dowsett and White JJ).

[6] The appellant did not pursue the parity ground in respect of Wills, who was sentenced to a term of imprisonment of 12 months, with a non-parole period of 6 months.

[7] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 404 (Callaway JA).

[8] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 403 (Hampel AJA).

[9] Sentencing Act 1991, s.11(2).