R v Latina [2007] VSCA 78

2 The applicant, Roberto Latina, applies for leave to appeal against sentence imposed by his Honour Judge Barnett in the County Court on 13 February 2006. Before detailing the offences and sentences imposed on that occasion, it is necessary to give some background to the applicant's history of drug-related offences and of sentences that preceded those imposed by Judge Barnett. As will emerge, Judge Barnett was the last of three County Court judges who imposed sentences on the applicant for discrete episodes of offending conduct that occurred broadly over the same period in recent years.

3 The sole ground of appeal complains that when regard is had to the sentences imposed on all three occasions, that imposed on the last occasion by Judge Barnett, on which the primary offence was trafficking in methylamphetamine, can be seen to have offended the principle of totality. When reciting the history of the applicant's recent drug offences, it is to be kept in mind that the methylamphetamine trafficking on this last occasion occurred between May and August 2003.

4 At the time of sentencing by Judge Barnett on 14 February 2006, the applicant was aged 42 years. He admitted 17 prior convictions from seven court appearances between March 1983 and June 1996. Many of them related to drug offences. On 18 July 1989, he was released on a bond for possession of cannabis.

5 On 28 October 1991, he was sentenced to two years' imprisonment with a non-parole period of nine months for an offence of trafficking cocaine. On 15 December 1995, he was sentenced with respect to trafficking and possession of diacetylmorphine and received a total effective sentence of six years and six months' imprisonment with a non-parole period of four years and six months' imprisonment. He was released in 1999. Thereafter, his offending and sentencing for offences is relevant, specifically, to the present complaint about totality, with respect to the sentence imposed by Judge Barnett.

6 On 20 September 2002 Latina was arrested with two packages which contained a total of 11.8 grams of pure cocaine. He was charged with possession of a prohibited import, contrary to s 233B(1) of the Commonwealth Customs Act, and was released on bail. On that offence he was sentenced by her Honour Judge Nicholson on 18 September 2003. Before he was sentenced and whilst he was on bail, the applicant committed further offences.

7 He was arrested on 3 February 2003 and charged with the possession of 26.5 grams of amphetamines, 0.6 grams of ecstasy, 1.3 grams of heroin and 5.3 grams of cannabis. When apprehended he had a pistol, cannabis and methylamphetamine in his possession. When his home was searched, police found drug paraphernalia and also another pistol and a double-barrelled shotgun. For those offences the applicant was sentenced by her Honour Judge Wilmoth on 15 December 2004.

8 Whilst on bail, both for the cocaine importation offence and also for the offences which were later dealt with by Judge Wilmoth, the applicant committed the offences which were dealt with by Judge Barnett and which I now briefly summarise.

9 The applicant was one of a number of persons arrested in connection with a major drug operation conducted by police between May and August 2003. A leading figure in the drug operation was one Dominic Parisi and, upon monitoring his activity, telephone interceptions disclosed numerous telephone calls between Latina and Parisi and others concerning trafficking in methylamphetamines. When apprehended by police in August 2003, Latina was found to be carrying a loaded revolver in his car, together with 57.9 grams of methylamphetamine with a purity of 30%, a small amount of heroin, three mobile phones and $4,245 in cash. Upon searching his home, stolen goods were found, constituting counts 3 to 6. Also found was 28 grams of cannabis and $17,000 in cash. The applicant made no admissions when questioned by police.

10 The Crown was not in a position to establish the quantity of drugs trafficked by the applicant throughout the period covered by count 1. The evidence was sufficient to support the Crown's contention that he was a medium to high level drug trafficker.

11 In his sentencing remarks, his Honour found that conversations relating to buying and selling methylamphetamine sometimes occurred many times in a day and on other occasions there would be a gap of two or three days or perhaps a week or more between conversations. His Honour found:

"The inference that does arise from the evidence by way of frequency of these discussions that you had with Parisi relating to money and amphetamines is indicative that you were a person who [was] regularly trafficking in the drug, methylamphetamine."

As to quantities, his Honour said it was not possible to make precise findings, but he noted conversations between the applicant and Parisi in which quantities of two kilos of methylamphetamine were discussed, and on one occasion in July 2003 a discussion with Parisi about the price for the sale of an ounce of methylamphetamine being $3,500.

12 Upon his plea of guilty, the applicant was sentenced by Her Honour Judge Nicholson on 18 September 2003, on one count of possession a prohibited import, namely cocaine, involving not less than a trafficable quantity. Her Honour sentenced the applicant to three years' imprisonment with a non-parole period of two years.

13 On 15 December 2004, Judge Wilmoth sentenced the applicant with respect to one count of trafficking methylamphetamine, one count of trafficking diacetylmorphine, one count of having in his possession ecstasy, one count of having cannabis in his possession and one count of being a prohibited person possessing three firearms. Judge Wilmoth sentenced the applicant to a total effective sentence of four years, which was ordered to be served cumulatively upon the sentence imposed by Judge Nicholson, and Judge Wilmoth set a new non-parole period of two years and six months to commence on 15 December 2004.

14 The applicant pleaded guilty before Judge Barnett on eight counts. He was sentenced on 13 February 2006 as follows:

On count 1, trafficking a drug of dependence (methylamphetamine), which carried a maximum penalty of 15 years' imprisonment, he was sentenced to three years and six months' imprisonment.

On count 2, possession of an unregistered firearm as a prohibited person, which carried a maximum of 15 years' imprisonment, he was sentenced to one year's imprisonment, of which nine months was ordered to be served cumulatively with the sentence on count 1.

On counts 3, 4, 5 and 6, of dishonestly receiving stolen goods, each of which offence carried a maximum of 15 years' imprisonment, he was sentenced on each to six months' imprisonment, with three months on each count being ordered to be served cumulatively upon the other like counts and upon the sentence imposed on count 1.

On count 7, possession of a drug of dependence (cannabis), which carried a maximum penalty of a $500 fine, he was fined $100.

On count 8, possession of a drug of dependence (heroin), which carried a maximum penalty of one year's imprisonment, he was fined $200.

The sentences imposed by the learned sentencing judge produced a total effective sentence of five years and three months' imprisonment. Judge Barnett ordered that eight months of the sentence be served concurrently with the sentence imposed on the applicant by Her Honour Judge Wilmoth on 15 December 2004. His Honour set a new non-parole period of four years and declared 120 days pre-sentence detention.

15 There is only one ground of appeal relied on in the application for leave. In its terms, it is a complaint as to totality confined to the effect of the orders for cumulation made by Judge Barnett. In argument, however, the real thrust of complaint was that the head sentence imposed by Judge Barnett, when added to the head sentences imposed by the two other judges, resulted in an aggregate sentence with respect to the conduct on all three episodes that offended the principle of totality.

16 The convictions and sentences imposed by Judge Nicholson and Judge Wilmoth occurred after the offending dealt with by Judge Barnett. They are not, therefore, prior convictions. None the less, as I have said, the complaint concerning totality raised in this application is predicated upon analysis of the effect of aggregation of all three sentences.

17 The head sentences imposed by Judge Nicholson, Judge Wilmoth and Judge Barnett totalled eleven years and seven months' imprisonment. Although there was some initial uncertainty as to the total non-parole period which was imposed for offences on those presentments, it is now agreed that the total non-parole period imposed was six years five months and one day's imprisonment.

18 No complaint is made by reference to the aggregate non-parole period. The issue on the present application has been narrowed down to the contention that the aggregate sentence of eleven years and seven months' imprisonment offends the principle of totality.

19 Mr Grace submitted that when regard was had to the totality of the offending involved in the three presentments dealt with by Judges Nicholson, Wilmoth and Barnett, the head sentence of eleven years and seven months amounted to a crushing sentence which offended the principle of totality.

20 Mr Grace called in aid the statement of McHugh J in Postiglione v The Queen[1] that totality requires "an evaluation of the overall criminality involved in all the offences with which the offender is charged" and consideration of "the total criminality involved not only in the offences for which the offender is being sentenced but also in any offences for which the offender is currently serving a sentence".[2] Totality requires that the sentencer stand back to ensure that the sentence imposed as the last of a series provides in the aggregate "a just and appropriate measure of the total criminality involved".[3] But, as his Honour made clear, the necessity to reduce the final sentence in accord with that principle only arises where it must be done "in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences", citing R v Holder,[4] a New South Wales decision.

21 In the present case, the sentence of five years and three months' imprisonment imposed by Judge Barnett could not be described as "crushing", although that does not mean that the sentence might not still offend the totality principle when the aggregate of the sentences is considered. As to that distinction, see R v Barnes.[5] When, however, the totality of the criminality is considered, the sentences imposed on each of the three occasions can be seen to have been fair, in my opinion, and the principle of totality has not been offended by the sentence imposed by Judge Barnett.

22 For the purpose of assessing the complaint as to totality, it was necessary to consider the sentencing remarks by Judge Nicholson and Judge Wilmoth, and the hearing was adjourned in order for the court to obtain those, as we now have. In addition, counsel provided to us the reasons of Callaway JA in refusing an application for leave to appeal against the sentence imposed by Judge Nicholson.

23 Analysis of the three sentencing decisions reflects the seriousness and persistency of offending by the applicant since his release from prison after serving the sentence of six years and six months and the non-parole period of four years and six months which was imposed on 15 December 1995. Mr Grace submitted that the sentencing remarks of Judge Nicholson and Judge Wilmoth disclose their acceptance of the applicant as a drug addict, which counsel suggested resulted in him being "unable to deal with his addiction and adjust to life in the community" and to the "supporting of that drug addiction through trafficking in drugs". Mr Grace submitted that the reasons for sentence by Judge Barnett disclosed similar conclusions reached by his Honour, as did the reasons for decision by Callaway JA on the leave application.

24 Whilst it is true that each judge accepted that the applicant had a history of drug addiction and of attempts to wean himself off drugs, they all rejected the notion that the offending was merely that of an addict seeking to support his habit.

25 Judge Nicholson sentenced the applicant with respect to the trafficking of 11.8 grams of pure cocaine, the trafficable quantity being two grams. Her Honour noted that the applicant claimed to have committed the offences at a time when he and his family were struggling financially, as the applicant had no permanent employment after his release from custody in 1999. Her Honour noted that the applicant was a drug user at the time of these offences and had commenced using heroin again in late 2001, at a time of marital difficulty. A number of reports were tendered concerning the drug addiction of the applicant and, after a further hearing, a report of psychologist Mr Bernard Healey was tendered. Her Honour accepted that the applicant had tried to seek treatment for his heroin addiction and her Honour said that she took his efforts at rehabilitation into account. Her Honour, however, rejected the applicant's contention that his possession of the cocaine was for personal use and not in connection with the sale of the drug. Her Honour concluded that "there was nothing to support the fact that you had the narcotic substances for anything else but for the purposes relating to sale or commercial dealing". In sentencing the applicant as she did, her Honour noted that the maximum penalty for the offence was 25 years' imprisonment.

26 In her sentencing remarks of 15 December 2004, Judge Wilmoth noted that the offences which occurred on 3 February 2003 occurred while the applicant was on bail. He possessed multiple firearms. At his home, police found the keys to a Harley-Davidson motor bike, which he was licensed to drive, and drug paraphernalia. Her Honour noted that upon his release from prison in 1999 the applicant found it hard to get work and resumed drug use. Her Honour also noted attempts to overcome his addiction but observed that the offences were serious, as indeed they were.

27 Judge Barnett had regard to similar background factors urged in mitigation of sentence of the applicant as had been raised on the previous occasion. In particular, he noted that the applicant had suffered a serious injury to his arm in 1987 which restricted his employment as a carpenter. He noted the breakdown of his marriage. He noted, too, the applicant's self-medication with cannabis and subsequent expansion of his drug use to cocaine, methylamphetamines and heroin, and he noted that after his release in October 1999 the applicant had returned to drug use, having "difficulty of re-adjusting to post-incarceration life". His Honour noted that the applicant had undertaken programs to cure his drug addiction but without success, and accepted that the drug use "helped him cope with the psychological issues relating to four-and-a-half years in custody". His Honour paid proper regard to the material contained in a report of Mr Joblin. His Honour noted, however, that the trafficking matters with which he was concerned occurred whilst the applicant was on bail with respect to two separate episodes of offending for which he was due to be presented before the courts.

28 In sentencing the applicant, Judge Barnett expressly noted that he had taken totality into account in fixing both the head sentence and the new non-parole period.

29 Mr Grace submitted that particular weight should have been given to the factor of delay, the offence having been committed in 2003. He also submitted that the adverse and exponential impact of a lengthy sentence on the prospects of rehabilitation should be recognised. He cited West Australian authority, in particular Clinch v R[6] and Herbert v R.[7]

30 Insofar as the principles stated in those cases apply in this state, I am not persuaded that any error in those respects occurred in the sentencing process in this case. Given the distinct nature of the three episodes, the blatancy of the conduct involved on each occasion and the seriousness of each instance of offending, it is inevitable that significant orders as to cumulation would be made as between the sentences for each episode and that some order as to cumulation of sentences within each episode would also be appropriate.

31 In my view, no error has been shown in the cumulation orders that have been made by Judge Barnett, nor has the sentence imposed by him been shown to offend the principle of totality when regard is had to the offending over the three episodes and the sentences imposed by the three judges. Having regard to the range of prior convictions which existed at the time the sentences were imposed by Judge Barnett, the total effective sentence of five years and three months, of which eight months was ordered to be served concurrently with the sentence imposed by Judge Wilmoth, with a new minimum term of four years' imprisonment, should be regarded as modest rather than severe, in my opinion. His Honour properly weighed the factor of totality, in my view, and no error has been disclosed in the sentence imposed.

32 Accordingly, I would refuse the application for leave to appeal against sentence.

33 The hearing of this appeal was commenced on 15 February 2007 but was adjourned part heard so that the sentencing remarks of Judge Nicholson, who sentenced the applicant in relation to other offences on 18 September 2003, and the sentencing remarks of Judge Wilmoth, who sentenced him in relation to further and separate offences on 15 December 2004, could be obtained. The transcripts of both of those sentences have now been obtained and the contentions made on behalf of the applicant that a later sentence imposed by Judge Barnett on 15 February 2006 offended principles of totality can now be considered fully.

34 I have read the draft reasons for judgment of Eames JA and respectfully adopt his analysis of the factual circumstances and the issues relating to each of the three sentences upon which the argument of the applicant is based. Put simply, that argument is that, when regard is had to the totality of the offending involved in the three separate sets of offences dealt with by each of Judges Nicholson, Wilmoth and Barnett, the head sentence of eleven years and seven months is a crushing sentence which offends the principle of totality. It should be observed that no argument has been raised in relation to the total non-parole period to be served by the applicant, which, as is now agreed, is six years five months and one day's imprisonment.

35 Upon a consideration of the whole of the material now before the Court, it appears to me to be clear that none of the individual sentences imposed by any of the three judges can be said to be excessive. Each of the individual sentences relates to three distinct episodes of conduct, which by themselves warrant cumulation. Furthermore, as is submitted by the respondent, within each of the second and third presentments there were separate aspects of criminal conduct, which also warranted some level of cumulation.

36 The history of the applicant shows that on 15 December 1995 he was sentenced to a total effective sentence of six years and six months' imprisonment, with a non-parole period of four years and six months' imprisonment, in relation to drug trafficking offences. He was released in 1999. It is apparent that between 2002 and 2003 the applicant committed a significant number of criminal offences involving the possession and trafficking of a variety of illicit drugs, including cocaine, amphetamines, ecstasy, heroin and methylamphetamine. As Eames JA has observed, both the offences which were dealt with by Judge Wilmoth and the offences which were dealt with by Judge Barnett took place whilst the applicant was on bail in relation to the offences later dealt with by Judge Nicholson. Clearly, specific deterrence looms large in the circumstances of this case, as does appropriate punishment and general deterrence. The conduct revealed by the material and relevant to each of the three sentences demonstrates a total disregard for the law by the applicant, who, it should be observed, was 42 years of age at the time of sentence by Judge Barnett. I agree with Eames JA that, given the distinct nature of the three episodes, and his blatant disregard for the law as demonstrated by the conduct of the applicant involved on each of those occasions, and the seriousness of each instance of offending, it is inevitable that significant orders as to cumulation would have been made as between the sentences for each episode. However, it is apparent that Judge Barnett gave careful consideration to the issue of totality in fixing both the head sentence and in fixing a new non-parole period, the latter being, in my view, of merciful dimension in all the circumstances. The fixing of that period clearly reflects his Honour's concern to ensure that there be an appropriate opportunity for consideration of the rehabilitation of the applicant by the possibility of a lengthy period of conditional release.

37 I agree with Eames JA that no error is disclosed in relation to the sentence imposed by Judge Barnett and likewise I would refuse the application for leave to appeal.

38 For the reasons which their Honours have respectively given, I too would refuse the application. I add two short matters.

39 First, as Kellam AJA has noted, it was necessary for this Court to adjourn the hearing of the application, in order for the sentencing remarks made by the judges who sentenced the applicant on the two relevant previous occasions to be obtained and furnished to the Court. Having now had the benefit of reading those sentencing remarks, it is clear to me that in a case such as this the content of the sentencing remarks by previous judges is indispensable to the consideration of the totality question.

40 A judge sentencing a person in this applicant's position will have to consider, as this judge correctly did, the principle of totality. Where totality requires consideration of sentences previously imposed for other offences, it is essential that counsel for the Crown appearing on the sentencing hearing ensure that the judge have available to him or her the sentencing remarks from the earlier occasion(s). In the present case, we now know - as the sentencing judge did not know - that Judge Nicholson's sentence for the possession offence included a positive finding by her Honour that it was possession for the purposes of sale. That, it seems to me, is a material matter which ought to have been known to the sentencing judge in making the assessment, as he was bound to do, of the total criminality.

41 The second point is that, as noted by Eames JA, Mr Grace relied on a line of authority in Western Australia dealing with what the Court of Criminal Appeal there calls "the exponentiality point". It is a point first made by Malcolm CJ in Clinch, as follows:

"This case provides a graphic example of the fact that the severity of a term of imprisonment increases exponentially as it increases in length: ... In other words, the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation, where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences.[8]

The point was subsequently endorsed by a number of judges of the Western Australian Supreme Court, as noted by Malcolm CJ in Herbert.[9]

42 Although there is now a significant body of authority in Western Australia, the exponentiality point has not fallen for appellate consideration in this State. No

occasion arises for such consideration on this appeal. The notion of exponentiality would seem to raise quite difficult questions about how to measure the increased weight of years later in the sentence. If the exponentiality point is to be recognised in this State as an element of the totality analysis, it will require careful consideration by this Court on another occasion.

43 The order of the Court is:

[1] [1997] HCA 26; (1997) 189 CLR 295, at 308. See, too the discussion in R v Piacentino [2007] VSCA 49, at [32]- [37].

[2] At 308.

[3] At 307-8, per McHugh J.

[4] R v Holder [1983] 3 NSWLR 245, at 260.

[5] [2003] VSCA 156, at [31] per Callaway JA.

[6] (1994) 72 A Crim R 301.

[7] [2003] WASCA 61; (2003) 27 WAR 330.

[8] Clinch v R (1994) 72 A Crim R 301 at 306-7.

[9] Herbert v R [2003] WASCA 61; (2003) 27 WAR 330 at 351[73].