R v Pantsis [1998] VSCA 134

5. The applicant now seeks leave to appeal against sentence. Three grounds are specified in the notice of application. Mr Holdenson, who appeared this afternoon on the applicant's behalf, formulated his submissions around the third ground, namely that the sentence was manifestly excessive. He invited the Court to treat the first and second grounds as in effect particulars of the third. These were that the judge failed to give sufficient weight to the fact that the applicant was trafficking in order to feed his and his wife's addiction to heroin, and that the judge placed excessive weight upon specific and general deterrence and denunciation when the applicant was not motivated by greed, and he said that the judge placed insufficient weight on matters of mitigation.

8. The applicant is now 34 years of age, having been born in this country on 22 July 1964 to parents who were Greek immigrants. He is and evidently has been for many years a heroin addict, as is his wife, with whom he lives in a house at Abbotsford with their two very young children. The house is owned by the applicant's elderly parents, who also live there with his mentally retarded younger brother.

11. The applicant was arrested on 19 November last year, after police surveillance on that and the two preceding days had revealed extensive drug trafficking at the Abbotsford house. He admitted to police during an interview on the day of his arrest to selling 30 to 50 caps of heroin per day for about $30 to $35 each. He conceded that he habitually purchased heroin from his supplier daily for about $200 to $250 per half gram, and that from a half gram he would, by breaking it down, derive 12 to 15 caps. The police put to the applicant, based on what he had told them about sales and the cost of heroin, that his profit would be at about the rate of $1,400 a week, to which he replied, "Yeah, well, I haven't seen no profit like that, though". There was no evidence discovered by the police of any enrichment by the heroin sales.

14. There can be no doubt, it seems, that the applicant engaged in the activity of trafficking in heroin in order to feed his own addiction to the drug and the addiction of his wife to it. Dealing with that, the learned sentencing judge said that, although he accepted that the trafficking was not -

"for the purpose of making profit but rather in order to feed the addiction of you and your wife, none the less I am of the view that your trafficking was on a reasonably significant scale. By no means is it at the upper end of the scale of heroin trafficking, but one is accustomed in this court to seeing cases of a much smaller magnitude than the degree of trafficking engaged in by you."

18. On behalf of the Crown this afternoon, some figures were put to us based upon the figures admitted by the applicant to the police, which tended to demonstrate that the applicant might very well have been making a profit of many thousands of dollars per week. That, however, was gainsaid by Mr Holdenson, relying upon other passages in the applicant's record of interview to the effect that he was left, out of each half gram of heroin that he collected, with a profit of no more than about $50 after having fed himself and his wife their drug requirements and having sold the rest. For myself, I do not know quite what to make of this matter - profit or merely break even. There was, of course, minimal evidence on which to base any reliable calculation. All I can say, looking at the material available, is that the applicant evidently conducted an appreciable business at the premises in Abbotsford and that his turnover was by no means insignificant, but that his business efficiency was perhaps suspect. Nevertheless, although the learned judge treated the applicant as though his trafficking "was not for the purpose of making profit", I do not necessarily treat that finding as having wrapped up with it a finding that no profit was being made beyond that which enabled the applicant to operate his treadmill by which he supplied himself and his wife with their heroin requirements.

21. The learned judge was obviously very much influenced by the principle of general deterrence in fixing the level of sentence that he imposed for the trafficking offence. It was said today that his Honour over-emphasised that principle and that it should have been tempered by matters personal to the applicant to produce a lesser sentence than that awarded.

24. Mr Holdenson, in the course of a very fair submission, referred to the applicant's extensive co-operation and frank and complete admissions made upon his arrest. The time-frame by reference to which he was charged was formulated upon the applicant's own admissions. Without the extensive admissions that were made the police task would no doubt have been more difficult than it became. Nevertheless there was quite extensive evidence of observations by the police over the three-day period leading to the applicant's arrest. These enabled evidence to be provided of a trade between the applicant and people who came to his parents' house daily and regularly by appointment made by telephone. So far as appears, the business would, had it not been intercepted by the police, have continued. The judge took into account in formulating his sentencing remarks the co-operation and frankness displayed by the applicant.

27. Mr Holdenson referred to the applicant's background, his wife and children, his parents, who are supporting him even today, and to his brother. It appears that the condition of the applicant's brother was, summarising it, such as to engender certain disharmony within the household, and the applicant took to the use of cannabis by way of an escape from the consequences of that. It was said that these kinds of personal circumstances might have contributed to the offending to which the applicant ultimately pleaded guilty. The judge made a similar kind of remark but appears not to have placed great weight on it. Nor, in my opinion, can he be criticised for that. The thing was altogether too flimsy in order to be given any substantial weight. Had there been some evidence of any kind available to add verisimilitude to that kind of tale, one would have expected it to have been called.

30. Reference was made by Mr Holdenson to attempts made by the applicant's wife to tame her addiction to heroin, which apparently had had a degree of success. Again, reference was made to attempts some time ago, without much success, by the applicant to loosen the grip in which he is held by the drug. Since he has been in custody he has, so it is asserted, made further attempts, with more success.

33. The judge sentencing the applicant took into account, so far as I can see, all the matters to which Mr Holdenson referred. It was not contended otherwise. What was said was that the sentence awarded demonstrates on its face a failure by the judge to give sufficient weight to these factors.

36. I think the sentence awarded was within the range open to the judge, and in particular that the judge was entitled, as he did, to place considerable emphasis upon the principle of general deterrence. A very, very high proportion of the criminal cases that we see in this Court is drug related, whether or not they are cases of offences against legislation relating to drugs of addiction. The fact is that drugs breed crime of all kinds, and heroin is one of the more pernicious of them. It truly poisons society. It is the responsibility of the courts to do what they can - and I fear that it is little enough - to curb this menace. One way open, one of the very few open to the courts, is to emphasise to the community at large, by reference to the principle of general deterrence, that, if legislation is infringed in the way in which the applicant infringed it, the consequences will be dire.

43. In my view the applicant was entitled to have the fact that he trafficked to feed his and his wife's addiction treated, as indeed it was, as a mitigating factor of some weight. But there must be taken into account against that factor the extensive, repetitive and business nature of the applicant's trafficking over a period of some two months; the damage which that trafficking no doubt caused or will in due course cause to his purchasers or, it may be in some cases, sub-purchasers; the need for the sentence to give effect to the purposes of specific deterrence and particularly general deterrence; the applicant's prior convictions, eleven of which were drug related; and his failure to take advantage of the leniency hitherto extended to him by the courts in respect of those prior convictions. When those other factors are taken into account, I do not consider that the sentence imposed here, with its disparate non-parole period, was manifestly excessive.

46. I do not find it necessary to try to solve the conundrum whether the applicant made any, and if so what, profit each week or each day.

49. For these reasons and those given by Tadgell, J.A., with whose concluding remarks I wish to associate myself particularly, I would dismiss this application.

53. I agree. I do not think it is necessary to conclude that the applicant was making any particular level of profit in order to uphold the sentence. What is far more important is the size of the business which he conducted, for the reasons stated by the learned presiding judge.