R v Malceski [2004] VSCA 138

9. There are a number of grounds of appeal. For present purposes it is necessary to refer to only one, that the sentencing judge erred by recording on the return of prisoners a non-parole period of two years, after announcing a non-parole period of 18 months when passing sentence in court. The respondent concedes that the error vitiates the sentence. Accordingly, this Court should proceed to re-sentence the appellant.

12. Although the count in the presentment was framed as a Giretti count, the Crown alleged but two transactions. In late 2001 the appellant was introduced to one Ali Kheir, who, with his sons, manufactured and sold amphetamine. The appellant agreed to sell two kilograms of pseudoephedrine to Kheir at a price of $20,000. Pseudoephedrine is an ingredient used to manufacture amphetamine. The following day the appellant asked Kheir for money before he delivered the pseudoephedrine. Kheir took the appellant's car keys and refused to return his car until the appellant supplied the drug. Two days later the appellant supplied Kheir with one kilogram of pseudoephedrine. Kheir, however, refused to honour his promise to return the car. The appellant was unable to supply the balance of the drug, and on 21 December 2001 he was kidnapped by Kheir and others, who assaulted him over the course of a number of hours, before releasing him. Later the appellant supplied Kheir with more pseudoephedrine.

15. In June 2002 the appellant was arrested and interviewed by the police. He made no comment to the questions asked by the police. On 10 October 2002 the appellant provided a detailed statement to the police of his dealings with Kheir and subsequently gave evidence in the County Court when Kheir pleaded guilty to a charge of trafficking but asserted that the trafficking was limited to sharing the drugs with his friends. On the basis of the evidence given by the appellant and others, the sentencing judge concluded that Kheir had been involved in trafficking which was not limited to street sales or to sharing drugs with friends.

18. The appellant is now 34 years old. He grew up in a family of four brothers. His father died when the appellant was 12 years old. His mother became very depressed. She was unable to cope with her grief or with running the home, and an elder brother effectively became the appellant's guardian. The appellant resented his brother's control and rebelled against it.

21. The appellant left school at the age of 13 years and went to work with a brother in the family furniture business. At the age of 17 years he worked for a greengrocer. He married his employer's daughter when he was 21 years old. A daughter was born of the marriage. The appellant and his wife conducted an artificial plant shop. He separated from his wife in 1994 and later commenced his own artificial plant business. The appellant's business failed as a consequence of the appellant's heavy drinking, which descended into alcoholism.

24. During the course of the plea a report by a psychologist, who interviewed the appellant, was tendered. Intellectual testing revealed that the appellant had a low intelligence quotient. The psychologist diagnosed depression and mild paranoia. A psychiatric report was prepared at the request of the sentencing judge pursuant to s.96 of the Sentencing Act 1991. The psychiatrist said that he did not think the appellant suffered from a major mental illness. He experienced hallucinations and persecutory thinking, but these were probably the result of significant substance abuse. The psychiatrist said:

"His personality is one clearly characterized by impulsivity, anxiety, a limited ability to learn from his mistakes and limited personal resources."

28. The appellant has some 84 prior convictions from 22 court appearances. A large number of those convictions were for driving offences, often associated with his drinking. He has also been convicted on charges of theft, burglary, robbery, obtaining property by deception, assault, firearms offences and drug offences. On 17 occasions he has been sentenced to terms of imprisonment, and he has spent nearly six years of his life in prison.

31. The appellant is entitled to rely upon mitigating factors of some significance. After an initial reticence, he made admissions to the police and entered an early plea of guilty. The appellant was entitled to a further discount as an informer who gave evidence which assisted the court in determining Kheir's culpability. As a consequence of his co-operation with the authorities the appellant will spend his sentence in protective custody. He has already been assaulted by fellow prisoners while in a prison van. Account should also be taken of the appellant's low intelligence, lack of education and the absence of parental support when he was young, as well as the mental and behavioural problems identified by the psychiatrist and psychologist.

34. 11 The appellant has a number of prior convictions for drug offences. Upon analysis, however, they are of limited relevance. Most of the offences were for possession of drugs in respect of which fines were imposed. There was one conviction on a charge of trafficking in a drug of dependence for which the appellant received a sentence of imprisonment of two months, and charges of cultivating a narcotic plant for which he received a sentence of seven days' imprisonment and a fine.

37. The sentence imposed upon Kheir is a factor limiting the sentence that may be imposed upon the appellant. Kheir was sentenced to a term of three years' imprisonment on a charge of trafficking in amphetamine. He was also sentenced to a term of three years' imprisonment on a charge of trafficking in cannabis. A year of the sentence on the latter count was cumulated on the sentence on the first count, making a total effective sentence of four years. A minimum term of three years was fixed. Kheir did not make full admissions and contested the facts alleged by the Crown at his plea. His trafficking involved manufacture and was on a much larger scale than that of the appellant. He was not entitled to a discount for co-operation with the police. He had previously been convicted of trafficking in heroin.

40. On 13 November 2003, the date upon which the sentence now under appeal was imposed, the appellant was undergoing a sentence imposed by the Magistrates' Court. After 13 November 2003 that sentence was varied on appeal and further sentences for other offences were imposed upon the appellant. Under those sentences the appellant will not be entitled to be released from prison until at least June 2005. I would propose that the appellant be re-sentenced to a term of 18 months' imprisonment. That term will date from 13 November 2003[1] and is to be served concurrently with any other sentences being served by the appellant. Accordingly, it will end in May 2005. There is no pre-sentence detention as the appellant has been serving other sentences.

55. The formal order of the Court is that the appeal is allowed. The sentence below is quashed and in lieu thereof the appellant is sentenced to 18 months' imprisonment. The sentence is deemed to have been imposed on 13 November 2003 and is to be served concurrently with any other sentences that the appellant was or is undergoing.

[1] See R. v. Jennings [1998] VSCA 69; [1999] 1 V.R. 352.