R v Mundy [2008] VSCA 184

2 Mr Mundy was sentenced in the County Court having pleaded guilty to four counts: Counts 1, 2 and 3 concerned trafficking in a drug of dependence; count 4 concerned being a prohibited person in possession of an unregistered firearm. Mr Mundy was sentenced to a total effective sentence of four years and nine months' imprisonment, with a non-parole period of two years and nine months.

Count 1 Being a prohibited person in possession of a firearm

Count 2 Trafficking in a drug of dependence (Cannabis - L)

Count 3 Trafficking in a drug of dependence (Cocaine)

Count 4 Trafficking in a drug of dependence (Cocaine)

Trafficking in a drug of dependence (Pseudoephedrine)

4 years and 9 months' imprisonment; non-parole period of 2 years and 9 months.

5 years' imprisonment; non-parole period of 3 years.

6 years' imprisonment; non-parole period of 4 years.

3 Set out below are the sentences on the individual counts and the sentences imposed on Mr Mundy's relevant co-offenders, Messrs Kokkinos and Hortis. The parity argument concerns, relevantly, the sentence imposed on Mr Kokkinos in relation to the matter the subject of Count 2 on the presentment against Mr Mundy; and the sentences imposed respectively on Mr Kokkinos and Mr Hortis in relation to the trafficking the subject of Count 3 on this presentment.

4 The argument that Mr Mundy had a justifiable sense of grievance about the sentencing relativities was built on a number of propositions. I shall deal with those propositions in turn.

5 The first was that in the cocaine trafficking the subject of count 2, Mr Mundy had 'a lesser role' than did Mr Kokkinos. The submission was based - as a similar submission on the plea was based - on the following statement from the reasons for sentence of the judge who sentenced Kokkinos and Hortis:

It's clear that the jury accepted that you, Ulysses Kokkinos, were Mundy's supplier in relation to this purchase that took place.

On the plea it was submitted for Mundy that this finding meant that Mr Kokkinos was 'the source of the cocaine'.

6 In fact, an examination of the full sentencing reasons shows that - other than in the strictly factual sense that Mr Kokkinos gave the cocaine to Mr Mundy - he was not the source of the cocaine. The sentencing judge on that occasion accepted the defence submission that Messrs Kokkinos and Hortis were not the originators - that is, they were not the 'original source' of the cocaine - but were 'conduits' in its supply. His Honour continued:

...[T]his is not to underestimate the importance of your roles in the distribution of this drug. The actual suppliers rely on people such as yourselves to get the drug into the hands of the ultimate consumer and no doubt both of you expected to be handsomely rewarded for the risks you were taking in this operation.

7 In my opinion, what his Honour said about the roles of Kokkinos and Hortis was equally applicable to Mr Mundy. Like them, he was a conduit. He was no more an 'actual supplier' than either of them was. As the judge said in relation to Kokkinos and Hortis, the actual suppliers rely on people such as Mr Mundy to get the drug into the hands of the ultimate consumer.

8 There is nothing in the materials to suggest that there was anything about Mr Mundy's role which would bear on his relative culpability, and Mr Croucher was unable to point to any aspect of his client's conduct which made it less blameworthy than that of the co-offenders. He did submit that Mr Kokkinos was somehow 'shielded' from the ultimate transaction but I consider that, for the purposes of parity, some very clear factual differentiation would be required before one 'conduit' could be regarded as more blameworthy than another.

9 I further note, in this regard, that the sale the subject of Count 3 concerned 16 ounces of cocaine of the highest purity, for which a payment was made by the undercover agent of $97,500. The sale was arranged at a meeting between Mr Mundy, Mr Kokkinos and the undercover agent. The supply of the cocaine was arranged through Mr Hortis, who in turn asked someone by the name of Enache for the supply. This might be said to be a good example of one 'conduit' turning to another for supply.

10 The second proposition relied on by counsel for the appellant was that his client's rehabilitation over eight years 'should have put him in an even more favourable position than Mr Kokkinos'. In my opinion, that argument is untenable. If it were accepted, it would have the paradoxical consequence that Mr Kokkinos would feel a justified sense of grievance. How, he would be entitled to ask, could Mr Mundy be better off in this respect than himself, when Mundy absconded following the laying of the charges while he, Kokkinos, faced his trial and was convicted?

11 I accept, as Mr Croucher submitted, that the sentencing court must deal with the offender as he or she appears before the court at the time of sentence. As I said in R v Merrett,[1] rehabilitation during the period between the laying of charges and sentence is a very important sentencing consideration. But in this case (in contrast to Merrett) it is not suggested that the judge made any specific error in relation to Mr Mundy on the issue of delay. Nor is there any submission of "manifest excess", which would make it necessary for us to consider to what extent the principles identified in Merrett would have to be moderated in a case where the delay was created by the offender having absconded.

12 My present view is that the mitigating effect of rehabilitation during a period of delay must be greatly reduced in a case such as this, where it is the offender's absconding which has created the delay and enabled him to demonstrate a period of law-abiding activity in the intervening period. As I say, the full consideration of that question can be left for another day. It is sufficient for present purposes to say that, as between co-offenders, rehabilitation during a period of self-created delay could not advantage the absconder over those who turned up for trial.

13 Even if, contrary to my view, there was a relevant comparison to be drawn regarding the respective degrees of rehabilitation, I am not persuaded that there was any significant difference for parity purposes between Mr Mundy and Mr Kokkinos. The sentencing remarks in relation to Mr Kokkinos show that, in the much shorter time available to him for rehabilitation between charge and sentence, he had succeeded in drug rehabilitation and had assisted his son in achieving the same. The judge also found that Mr Kokkinos, in the period before sentence, had involved himself in the establishment of a chicken cafe in Brighton, which he hoped would provide a legitimate source of income. He had also involved his son in that business. The judge said to Mr Kokkinos that it was to be hoped that this was 'a good indication of your attempts to rehabilitate yourself'. Although nothing turns on it for present purposes, it seems to me that Mr Croucher's comparison is further weakened by the fact that his client was yet again charged with a cannabis offence after he had absconded, that being the occasion for his arrest in New South Wales after his eight years on the run.

14 The next proposition advanced for the appellant was that his criminal record was no worse than that of Mr Kokkinos and was better than that of Mr Hortis. As I said in Merrett,[2] the task for a sentencing judge (and for this Court) is exceptionally difficult when the question of parity involves comparing criminal records. The Court knows the details of the offending the subject of the sentencing hearing (or appeal) but rarely has much detail, if any, concerning the circumstances of the prior offence(s).

15 In the present case, a comparison of the respective criminal records does not persuade me that either of the appellant's contentions is made out. So far as Mr Kokkinos is concerned, he and Mr Mundy each had a conviction in the late 1970s for dishonesty, each of them being sentenced to jail for that offence. Thereafter, as appears from the table below, Mr Kokkinos had only one further conviction, in 1998, for attempting to obtain heroin, for which he received a total effective sentence of four years with a minimum of three. By contrast, Mr Mundy was convicted and sentenced on four separate occasions in the period 1989 to 1998. Moreover, as senior counsel for the Crown pointed out, whereas Mr Kokkinos had one prior drug conviction for which he was jailed, Mr Mundy had three for which he was jailed: cultivation of a narcotic plant in 1989; trafficking and cultivation of a narcotic plant in 1994; and possession of a drug of dependence in 1994.

1989: Convicted of cultivation of a narcotic plant; sentenced to 3 months imprisonment, which was wholly suspended for a period of 12 months.

1994: Convicted of trafficking in a drug of dependence - cannabis L and cultivation of a narcotic plan - cannabis L. Sentenced to a total effective sentence of 4 years with a non-parole period of 3 years.

1994: Convicted of possession of a drug of dependence - cannabis L. Sentenced to 4 months' imprisonment.

1998: Convicted of obtaining property by deception (2 Counts) and attempting to obtain property by deception (2 Counts). Sentenced to a total effective sentence of 2 years with 18 months of that sentence partially suspended for 2 years.

1998: Convicted of attempting to obtain prohibited imports. Sentenced to 4 years' imprisonment with 3 years to be served before release and entering a $100 good behaviour bond for 12 months.

1991: Convicted of being in possession of a drug of dependence (Cannabis L); using a drug of dependence (Cannabis L); and cultivating a narcotic plant (Cannabis L). Fined a total of $1,000.

1992: Convicted of trafficking in a drug of dependence (2 counts). Sentenced to 8 months' imprisonment on the 1st count, 6 months' imprisonment on the 2nd count, to be served concurrently with the 1st count. All sentences suspended for 24 months.

16 The notion of 'relevant priors' - that is, prior convictions for similar offences - might in some contexts be of assistance but here, in my opinion, the key consideration is that the prior convictions reveal a continued attitude of disobedience to the law.[3] By that criterion, Mr Mundy's priors were much worse.

17 Nor do I accept that Mr Mundy's record was better than that of Mr Hortis. Each of them had a cannabis offence around 1990, but after that their criminality appears (on the basis of the record) to have been broadly equivalent. It is noteworthy that when Mr Hortis was convicted in 1997 of trafficking in a drug of dependence and possession of a drug of dependence, his total effective sentence was three years with a minimum of two years. Mr Mundy was given a longer prison term in relation to similar offences in 1994. It is also to be noted that, unlike the position with Mr Hortis, the offending the subject of this sentence was engaged in by Mr Mundy in breach of a suspended sentence.

18 The last proposition I need to deal with specifically is what were said to be 'comparative matters of mitigation' favouring Mr Mundy. I have already rejected the notion that he gets any comparative advantage as a result of the delay created by his absconding. That apart, the only real matter in his favour (and it was a very significant matter) was the plea of guilty. There was also to be brought to account the six months detention in New South Wales. On the other hand, there were important mitigating factors which applied to the co-offenders but not to Mundy. Both Kokkinos and Hortis had been affected by involuntary delay. The charges were, as the judge said, 'hanging over [their] heads' for three years.[4] Mr Kokkinos had serious health problems, as did Mr Hortis, and in respect of each of them, the Judge made the finding that those health problems would make life in prison harder.

19 A further very significant distinguishing feature is that Mr Kokkinos faced no equivalent count to the cannabis trafficking count which was Count 1 on the presentment against Mr Mundy. Trafficking in cannabis is just as serious as trafficking in cocaine[5] and this was a representative count.

20 Senior counsel for the Crown drew attention to two passages from the transcript of the plea made by senior counsel on behalf of the appellant. The first passage reads as follows:

Counsel: So, therefore, what's it worth? Well, at the end of the day [Kokkinos] got five with a three so we say he's worth a little bit less than that. However, in addition to - he's also got supplying the cannabis. Now, he's obviously not the instigator of the cannabis and over a two month period he's involved in supplying on one occasion, collecting some money and giving him two handfuls because the matter was short on one of the son's deliveries. So there has got to be something there which we say would really, Your Honour, after this period of time, could easily have regard to the principles of totality.

In relation to the firearm, that's tied up with the cannabis and the son.

Counsel: ...We would suggest, with the greatest of respect, that the starting point probably has to be five with a three and then the sentence should be - and then a bit less because of his role, we say that there should be perhaps parallel with that - the gun and the cannabis add to that a bit, so it all sort of, he should get less than [Kokkinos] but then he's got to get a bit more because of the other things, so if I can be as bold to say that it's sort of - round there is sort of the target zone, I would have thought.

Senior Counsel: And then, Your Honour, he's got the period of time which Your Honour should take into account.

21 The plea argument on parity was thus in short compass. The contention was that the starting-point should be five years with a minimum of three years (that being Kokkinos' sentence), but that the sentence should be less than Mr Kokkinos' because of Mr Mundy's lesser role. At the same time, 'he's got to get a bit more because of the other things', a reference to counts 1 and 4. It is obvious from a reading of the plea transcript, and from the matters I have already dealt with, that a very much more refined parity argument has been advanced on this appeal than was advanced on the plea. The brevity of argument on the plea does not preclude the arguments being raised on appeal, but it does seem to me that this Court should be slow to permit a re-arguing and elaboration of detailed aspects of parity. In this case, experienced counsel on the plea had the opportunity to make reference to all relevant points of comparison, and the issue of parity was squarely addressed by the judge in his reasons for sentence. An appeal of this kind is not, and cannot be permitted to become, a rehearing on the merits.

22 In my opinion, for these reasons, there is no justification for Mr Mundy to have a sense of grievance about the sentencing relativities. As it turns out, he had the undeserved advantage on the plea that his role was described - and accepted - as having been a lesser role than that of Kokkinos. In my opinion, therefore, the parity argument fails.

23 I would dismiss the appeal for the reasons stated by the President.

24 I agree that this appeal should be dismissed for the reasons given by the President. I specifically wish to associate myself with the views expressed by him concerning the significance of delay in a case of this kind, both with respect to the weight to be attributed to evidence of rehabilitation and the application of the principle of parity.

[1] R v Merrett, Piggott and Ferrari [2007] VSCA 1; (2007) 14 VR 392, [35]-[45].

[3] Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.

[4] See R v Merrett, Piggott and Ferrari [2007] VSCA 1; (2007) 14 VR 392, [35].

[5] R v Pidoto and O'Dea [2006] VSCA 185; (2006) 14 VR 269.