R v Mulovski [2001] VSCA 244

10. The applicant was refused leave to appeal by a single judge on 15th June 2001 but has elected to have his application determined by the Court. He seeks leave to appeal on four grounds: first, that the sentence is manifestly excessive; secondly, that the learned judge imposed a disparate sentence relative to that imposed on Carmody; thirdly, that his Honour erred in failing to place any, or any sufficient, weight on the applicant's plea of guilty; and, fourthly, that he erred in failing to place any, or any sufficient, weight on the applicant's prospects of rehabilitation.

13. During the period pleaded on the presentment the police intercepted approximately 3,000 telephone calls, an analysis of which revealed 190 sales and purchases of heroin by the applicant apart from transactions involving Carmody. There were, in addition, approximately 50 sales and purchases relating to both men. The intercepts thus disclosed a total of approximately 240 sales and purchases of

heroin during the relevant period, in addition to transactions involving a covert operative "Cathy Ashbrook". The total quantity of white powder containing heroin purchased by her from the applicant during the period was 18.8 grams for a total of $5,900. The summary of evidence prepared by the Crown speaks volumes for the intensity of the operation in which the applicant was engaged. An edited version of the relevant part of the summary appears as a schedule to these reasons.

17. Mr Tehan argued ground 2 first. The sentence imposed on the applicant was said to be appellably disparate from the sentence imposed on Carmody for two main reasons: first, that his Honour had extended undue leniency to Carmody and, secondly, that he had taken insufficient account of the applicant's plea of guilty.

20. Carmody was 15 years younger than the applicant and had no previous convictions. True it is that youth and a clean record are often of less significance for this offence, but the applicant was the person who obtained the heroin and organized the business. Carmody acted under his orders and was described by the judge as "a foot-soldier" It is only when regard is had to the second part of Mr Tehan's submission that the force of the argument begins to appear. The applicant pleaded guilty on arraignment. The utilitarian value of his doing so was considerable. It also made it easier for the judge to accept, as he did, that the applicant had prospects of rehabilitation. The sentence imposed implies that, but for the plea, it would have been of the order of eight-and-a-half or nine years' imprisonment.

23. The comparison to be made, with due caution, is therefore between that notional sentence and the sentence of four years' imprisonment imposed on Carmody, to whom leniency was extended even to the extent of permitting the sentences on the additional counts to be served concurrently.[1] He may have been a foot-soldier but, as his Honour expressly found, he played a vital role in the applicant's business, well knowing the risk that he ran by flouting the law.

26. Appellable disparity, like manifest excess, is ultimately a matter of impression, but I am persuaded that the applicant is entitled to feel a sense of grievance by reason of the differences in the two dispositions and that that sense would be shared by an objective observer. The objective observer would agree with the judge that trafficking of this kind deserves condign punishment but would be aware of the importance of giving due weight to a plea of guilty and of its being seen that such weight was given.[2] I would uphold ground 2 and re-sentence the applicant, taking into account counsel's submissions on the other grounds in the process of doing so.

29. In addition to his plea, Mr Tehan reminded us that the applicant had expressed shame and regret for his offending, that he had had a difficult family upbringing and youth but now enjoyed a stable marriage. Over the years he had built up a mobile phone business but had lost it as a consequence of this conviction. His previous convictions were old and of a different character.[3] I have already referred to, and I accept, his Honour's view that the applicant has prospects of rehabilitation.

32. Mr McArdle rightly stressed the seriousness of the offending, for which the motive was purely financial, the period of some seven weeks over which it extended and the applicant's role in the business. General deterrence was an important consideration and the plea was not entitled to the same weight as if it had been entered at the earliest opportunity. So much may be accepted, although I do not regard this as an "eleventh-hour" plea of the kind referred to by Crockett and Southwell, JJ. in R. v. Hall[4].

35. I propose that the applicant be re-sentenced to six years' imprisonment.

38. It by no means follows that a corresponding reduction must be made in the non-parole period. It is for this Court to form its own estimation of the minimum time that justice requires the applicant to serve having regard to all the circumstances.[5] They include Carmody's non-parole period and the relation it bears to his head sentence. The applicant's prospects of reformation are an important consideration, but it is not to be forgotten that a minimum term has a penal element, as well as contributing to general and specific deterrence.[6] I would fix a non-parole period of four years.

In September 1999 police began a drug investigation concerning the applicant. A telephone intercept authorized by warrant was placed on the applicant's mobile telephone number 0418 521 581 between 24 September 1999 and 17 November 1999, resulting in transcripts of calls that the Crown alleges relate to the sale or purchase of heroin (diacetylmorphine). These include calls to and from the co-offender Levi Richard Carmody on telephone number 0412 695 591 between 24 September 1999 and 16 November 1999 which the Crown alleges relate to the sale and purchase of heroin.

In addition, an undercover police officer (covert operative Cathy Ashbrook) purchased heroin from the applicant, which evidence is corroborated by tape recordings of conversations between the undercover officer and the applicant and also conversations recorded on the telephone intercept between the undercover officer and the applicant as follows -

(a) On 1 October 1999 covert operative Cathy [Cathy Ashbrook] was introduced to the applicant and had a taped conversation with him during the course of which she purchased 0.6 grams of white powder for $200, which was later analysed and found to contain 50% diacetylmorphine.

(b) On each of 6 October 1999 and 12 October 1999 covert operative Cathy purchased 0.4 grams of white powder for $200 from the applicant, which contained 50% diacetylmorphine.

(c) On 4 November 1999 covert operative Cathy again purchased 0.4 grams of white powder for $200 from the applicant, which contained 70% diacetylmorphine.

(d) On 7 November 1999 covert operative Cathy had a telephone conversation with the applicant which was tape recorded in which she made an arrangement to purchase 3.5 grams of heroin for $1,100. On 8 November 1999 covert operative Cathy purchased 3.3 grams of white powder for $1,100 from the applicant, which contained 50% diacetylmorphine. The applicant removed the white powder from a black briefcase, which he obtained from a vehicle registered PBN 975 parked nearby. During the taped conversation covert operative Cathy discussed with the applicant the possible purchase of a quarter ounce of heroin for $2,000.

(e) A further telephone conversation between covert operative Cathy and the applicant took place on 10 November 1999 concerning the purchase of "two big ones". On 11 November 1999 covert operative Cathy purchased 13.7 grams of white powder in two bags for $4,000 from the applicant, which contained 70% diacetylmorphine. The applicant removed the white powder from a black briefcase, which he obtained from his vehicle registered CAT 005.

(f) The total quantity of white powder containing diacetylmorphine purchased by covert operative Cathy from the applicant during this period was 18.8 grams for a total of $5,900. The trafficable quantity of a substance containing diacetylmorphine under Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 is 3.0 grams.

The Crown says that the co-accused Carmody was acting in concert with the applicant in the business of trafficking in heroin. During the period in which the telephone intercept was in place on the applicant's phone, 281 calls related to Carmody were intercepted, he being the person identified as "Ricky" on telephone number 0412 695 591. The Crown says that Carmody trafficked heroin on behalf of the applicant.

In addition to the telephone calls between the applicant and the co-accused Carmody, the Crown relies on a number of telephone calls that had taken place between the applicant and other persons which the Crown says are related to the sale of drugs (approximately 190).

A police officer, Senior Detective Millar states that he has viewed the transcripts of a number of the telephone calls and is able to translate the code used by the people thereon. Millar concludes that the applicant and Carmody sell heroin in a number of different weights and cash quantities, being 14 gram, seven gram, through to single gram, half gram and fifty, one hundred and two hundred dollar quantities. The following are some of the telephone calls which the Crown relies upon to establish that the co-accused Carmody was trafficking heroin on behalf of the applicant:

* Call 42 between Jodie and the applicant is a call in which Jodie requests "a small one" and says she has not fixed a third person up "the fifty". Millar states that the term "small one" is commonly used slang for a small deal of a drug of dependence and the term "fifty" often relates to the price of the drug. He concludes that the term "small one" and "fifty" refer to a cap of heroin for $50. Call 42 is followed by call 44, which is a call in which the applicant tells Carmody that Jodie will call him for a "small one".

* Then there are calls 62 and 64 between Jodie and the applicant regarding wheels, which the Crown says refer also to a drug transaction. This is followed by call 68 between the applicant and Carmody in which the applicant tells Carmody to go look at Jodie's wheels and give them "the big one" which the Crown says refers to one gram of heroin (evidence of Millar). This is followed by call 69 in which the applicant asks Carmody if he has seen them and if they are worth it, to which Carmody replies "No" and the applicant says "Well don't worry about it then, give `em no tick either". Millar says the term "tick" refers to credit. Then call 70 which involves further discussions between the applicant, Carmody and Jodie about the value of the wheels.

* Call 97 is a conversation between the applicant and a female Sarah in which the applicant asks her if she wants the "one" or the "two". Sarah replies that she wants the "one". Millar says that the term "one" or "two" are commonly used terms in the drug trade for one or two hundred dollar deals of heroin. This call is followed by call 98 in which the applicant and Carmody discuss who will deal with Sarah and call 103 is a call in which the applicant arranges to meet Sarah.

* Call 141 is a conversation between the applicant and Carmody in which the applicant asks Carmody how many he has left, which the Crown says refers to heroin deals. Carmody tells the applicant that he has enough to last the night and will have to collect money that evening.

* Call 148 is a conversation between the applicant and Peter in which the word "hammer" is used in a foreign language and there is a reference to deals done up in "fifties". Millar states that "hammer" is commonly used in the drug trade as a slang name for heroin and the reference to "fifties" is a reference to $50 deals of heroin.

* In call 158 the applicant asks Carmody how many "monkeys" missed out. The applicant and Carmody refer to their heroin customers as "monkeys".

* In call 178 the applicant speaks to Peter and the word "hammer" is used again together with a reference to giving someone "400" for "a whole". Millar states this is a reference to the sale of a whole gram of heroin for $400. He says that the current price for a street deal of heroin is between $350 to $500 depending on the purity.

* Call 188 is a conversation between the applicant and Carmody about how many deals Carmody has left and whether it is "three big and two small" because Carmody is not sure. Millar gave evidence during Carmody's trial that the difference between a "big one", being one gram of heroin, and a "small one", being half a gram of heroin, is hard to visually see.

* Call 321 is a call in which the applicant appears to be angry with Carmody for not answering his phone and the applicant says that being out of touch for four hours "in our business, it's a fucking hell of a lot". Carmody says he missed 25 calls of which five were "new" numbers, being five people, to which the applicant says "Five people, that's a fucking gram". However, during the trial of the co-accused Carmody, Millar conceded that the correct translation may have been "...that's a fucking grand", referring to five deals at $200 each. Also during this call the applicant says he wants a key to the car in case anything happens to Carmody, which the Crown says refers to the car where the drugs are stored. Prior to this call Jodie speaks to the applicant and says "How come that other phone's not answering" and "I just wanna small one" to which the applicant says "Well you gotta ring him for that". The applicant immediately makes a telephone call to Carmody's number and leaves a message on his answering machine to ring him urgently.

* Call 358 is by Jodie to the applicant saying "that other phone's not answering, can I come and see you somewhere?". The applicant immediately calls Carmody's number (call 359) and says "How come you're not answering the other phone" and then there is discussion that the call he missed was Jodie, and the applicant tells him to go to the Sphinx Hotel to meet her. Carmody says "Yeah well I've only got a little thing left" and the applicant replies "Oh all right then I'll go do her up and I'll come and see you". Then there is call 360 where Carmody tells the applicant that he gave Jodie $50 "tick last night. So jut give her a little one ... like take her $200 ... and give her a little one and give her fifty bucks back and put fifty bucks in your pocket from what she owes you ...".

* In call 441 the applicant tells Dianne "I'll get one dropped off to you", "I'll phone him now for you". The applicant rings Carmody four minutes later (call 444) and tells him to go and see Dianne for him and "... give her one ... of the twoey. She's gonna give you a hundred and fifty ...". Then there is call 445 between the applicant and Carmody which discusses the fact that she has no money and wants to go to the bank and Carmody says "I'll just give it to her and you work it out with her" and the applicant says "No ... she owes too much ...". Call 446 is again between the applicant and Carmody and they briefly discuss the bank.

* Call 371 is a conversation where the applicant tells Carmody about Sarah's boyfriend swapping a 68 centimetre television for a half, which Millar says relates to half a gram of heroin costing $200. This follows a call from Sam to the applicant about the television.

* In call 531 Carmody tells the applicant that he received a call from someone's father who said his son is close to death "from something that he got from me today ... which I haven't even fucking seen him ... and he knows the car ... he knows everything, he knows about you and if his son fucking goes down tonight we all go down". This is then followed by a series of calls between the applicant and Matt and others about the matter referring to Sam being the person whose father had rung Carmody. These calls result in Carmody getting a new mobile phone number 0410 784 118 and using the name Jack.

* A number of calls between the applicant and Carmody, and the applicant and Aaron, which lead up to call 1602 when the applicant says to Carmody "I want me fucking monkey money tomorrow. All right? Well I want the fucking monkeys back, I want the phone back, I want the monkeys back, fuck it, I'm sick of this shit. Right?" to which Carmody replies "What the fuck did I do to you? ...". In call 1607 the applicant and Carmody discuss whether the applicant was serious about wanting "them" back and the applicant says "I'm fucking serious about business" and "... just fucking put yourself back into fucking business ...".

On 17 November 1999 a search warrant was executed at the Mobile Phone Clinic at 76 Mercer Street, Geelong, being premises from which the applicant conducted a business. At that premises the applicant was arrested and a search of the premises conducted. Items seized included a mobile telephone, documentation relating to the applicant and amounts of cash in bags marked with larger sums. Police then located the applicant's vehicle registered NBK 089 and searched it. Inside a briefcase in the vehicle, police located papers in the name of the applicant, a mobile telephone battery containing five bags of white powder (which were subsequently analysed and found to contain diacetylmorphine (70%) weighing 1.6 grams) and a set of electronic scales.

A search warrant was also executed at the applicant's residence at 12 Laverton Court, Corio, and a vehicle registered CAT 005 was seized together with items located inside the vehicle.

72. I agree for the reasons advanced by Callaway, J.A. in his judgment.

[1] The applicant and Carmody were not co-offenders with respect to those counts and the parity argument does not apply to them directly. The direction for concurrency, or more correctly the concurrency permitted to have effect by operation of law, is simply another indication of leniency extended to the offender who went to trial but denied to the offender who pleaded guilty.

[2] Compare R. v. Brooks [2000] VSCA 188 at [11]- [13] and R. v. Gillick [2001] VSCA 201.

[3] Counsel mentioned other factors to which, in my opinion, rather less weight should be given. They included the applicant's having experienced a financial setback in the conduct of his business shortly prior to the commission of the offence and his being involved in the care of his elderly and ill father.

[4] (1994) 76 A.Crim.R. 454 at 470. See, generally, Fox and Freiburg, Sentencing (2nd ed. 1999) at para. 3.816.

[5] Compare Power v. R. [1974] HCA 26; (1974) 131 C.L.R. 623 at p.629; Deakin v. R. [1984] HCA 31; (1984) 58 A.L.J.R. 367 and Bugmy v. R. [1990] HCA 18; (1990) 169 C.L.R. 525 at pp.531, 536 and 538.

[6] See, for example, R. v. VZ [1998] VSCA 32 at [15] and the cases there cited.