R v Pilarinos [2001] VSCA 9

Court of Appeal (Vic)|2001-02-13|Before: CALLAWAY, BUCHANAN and CHERNOV, JJ.A.

CRIMINAL LAW - Sentencing - Admissibility of evidence of post-sentence events explaining circumstances present at date of sentence - Burden of imprisonment materially increased - R. v. Eliasen - Whether manifest disparity in sentences - Sentence, non-parole period reduced.

I shall ask Chernov, J.A. to deliver the first judgment.

The appellant, who is now aged 46, pleaded guilty in the County Court at Melbourne to one count of theft (count 1), one count of burglary (count 2), one count of bribery (count 3) and one count of trafficking in a drug of dependence (count 4). After hearing a plea in mitigation made on his behalf, the appellant was sentenced on 30 May 2000 to the following terms of imprisonment:

His Honour ordered that one year of the sentences imposed on Counts 1 and 2 be served cumulatively upon the sentence imposed on count 3 and that two years and six months of the sentence on count 4 be served cumulatively upon the sentences on counts 1, 2 and 3. Thus, the total effective sentence imposed was eight years and six months' imprisonment. The non-parole period fixed by his Honour was six years.

His Honour also sentenced on the same day the appellant's co-accused, Kevin John Hicks, a former policeman, in respect of the offences of theft, burglary and bribery, to which Hicks also pleaded guilty. The sentences of imprisonment imposed upon Hicks were as follows:

His Honour ordered that 2½ years of the sentence on counts 1 and 2 be served cumulatively upon count 3, making a total effective sentence of seven years and six months' imprisonment. The non-parole period was fixed by his Honour at five years.

On 17 November 2000 the appellant was given leave by Buchanan, J.A. pursuant to s.582 of the Crimes Act 1958 to appeal against sentence. His Honour had before him the affidavit of the appellant's treating surgeon, Mr Gaby Reisner, sworn 15 November 2000 to which I will refer later. Mr Grace, who appeared for the appellant, sought to rely on this and other affidavit material in support of his contention that the presence of cancer in the appellant's bladder which was diagnosed after the date of sentence, will make the sentence of imprisonment imposed upon him more burdensome and that there is a risk that imprisonment will have a detrimental effect on his health, justifying intervention of this Court to reduce the term of imprisonment.

It is established that this Court, when considering the adequacy of a sentence, has the discretion to admit evidence of events that have occurred after the date of sentence if that evidence throws a different light on facts which were in existence at the date of sentence - R. v. WEF[1]. See also R. v. Smith[2]; R. v. Eliasen[3]; R. v. Rostom[4]; R. v. Babic[5]; R. v. Spagnolo[6]. Mr Coghlan, who appeared for the Crown, did not object to the admissibility of the proposed evidence. This Court, having read the affidavits and being satisfied that the matters contained in them were not challenged, were relevant and were admissible in accordance with the principle to which I have referred, ruled that Mr Grace could rely on the new evidence. Before proceeding to examine it, I should refer briefly to the facts which were common to both offenders and which were not in dispute before the learned sentencing judge.

In 1988 the Drug Squad established a storage facility at Attwood which consisted principally of locked containers which were used to store chemicals and other items seized from illegal amphetamine laboratories and some semi-completed and completed amphetamine. In January 1992 Hicks, a long-serving policeman, was the assistant property officer at the Drug Squad who had access to, and was responsible for, these containers. Between approximately April 1992 and 1997 the Drug Squad conducted a number of investigations into alleged drug manufacture during which the activities of the appellant and others came under notice. He and his premises were placed under surveillance and telephone intercepts were made. Hicks took an interest in the investigation and frequently obtained information from various members of the Drug Squad about its progress, particularly in so far as it related to the appellant, while at the same time dishonestly maintaining that he did not know him. In fact, Hicks regularly met the appellant and visited his house. From early 1992 there were a number of meetings of a group of people including Hicks, the appellant and his wife. The production of amphetamine was discussed at those meetings as was the difficulty of obtaining chemicals. In that context, the removal of such chemicals from the Attwood compound was discussed. Later, Hicks provided the keys which opened the gate and the containers and, as a result, 150 litres of methyl-amphetamine were siphoned into containers and removed. There were a number of thefts at which the appellant was present.

The manufacture of amphetamine commenced with a laboratory being set up at the appellant's home. As the manufacture continued, Hicks was given money for providing access to the store and advising the group about the investigation. For instance, Hicks informed the appellant that he (the appellant) was under investigation which led to him going overseas. Furthermore the laboratory was moved from place to place, but continued to operate. In about mid-1992 an investigation disclosed that the contents of the containers had been interfered with and substantial amounts of amphetamine had been removed by dilution or substitution.

The appellant and Hicks were arrested in May 1997 and were ultimately presented for trial on the counts to which I have referred. When the trial was about to commence in February 2000, the appellant and Hicks pleaded guilty to the counts on the presentment.

I now turn to summarise the new material which comprised two affidavits sworn by Mr Reisner on 15 November 2000 and 7 February 2001, two affidavits sworn by the appellant's solicitor, Mr James Valos, on 8 and 9 February 2001 and one affidavit sworn by the appellant's brother, Jerry Pilarinos on 8 February 2001. The affidavits of Mr Reisner and his correspondence and statements which are exhibited to his affidavits and the affidavit of Mr Valos of 9 February 2001 establish the following:

(a) The appellant was first diagnosed as suffering from cancer of the bladder in about mid-June 2000. In Mr Reisner's opinion, that cancer was present at the date of sentence.

(b) Mr Reisner commenced treating the appellant in respect of that illness in September 2000.

(c) In November 2000 a new treatment was prescribed by Mr Reisner which was thought to offer the best chance of controlling the cancer and avoiding the need for total bladder removal. Ordinarily, there is an 80 per cent chance that such treatment will produce a good result. As a result of the treatment the appellant experienced pain and discomfort including low abdominal pain, frequent urination with an accompanying burning sensation in the urinary passages.

(d) A cystoscopy performed on the appellant by Mr Reisner on 17 January 2001, however, disclosed that the treatment had not been successful, that the appellant's condition had worsened and that the cancer had spread to the four quadrants of his bladder. The opinion of Mr Reisner was that the stress to which the appellant was subjected in the confined environment of the prison "has almost certainly caused the deterioration in his cancer".

(e) On 6 February 2001 the appellant's bladder was removed during an eight-hour operation. It is anticipated that he will be hospitalised until about the end of this month. The appellant's urine stream has been diverted into an external urinary bag. The pathology tests conducted subsequent to the operation disclosed that the cancer had not spread into the depths of the wall of the bladder but, as was apparently expected, the surface of the bladder was affected by carcinoma.

(f) The state of the appellant's health and the treatment which he has received in relation to it, will make it more burdensome for the appellant to serve his term of imprisonment. Moreover, the prison environment will adversely affect his health in the sense that the incarceration will impose stress on the appellant which, in turn, is likely to impair his immune system which plays an important role in the defence against cancer and its consequences.

It is also plain from Mr Reisner's affidavits that the appellant's state of anxiety from which he suffered at the time of sentence has been heightened by the cancer and its treatment. Hence, Mr Reisner (and the appellant's relatives) have sought to persuade the prison authorities to leave open the interconnecting door to an adjacent cell which would apparently calm the appellant's anxiety. It seems that, as a result of Mr Reisner's intervention on the appellant's behalf, the prison authorities have agreed to leave open the interconnecting door when prisoners are bedded down. I mention for completeness that the affidavit of the appellant's brother and that of Mr Valos of 8 February 2001 deal with problems encountered by the appellant in having the prison authorities dispense medication to him as prescribed by his doctors and about their refusal to leave open the interconnecting door.

I am satisfied that the new evidence establishes that the burden of the sentence to be served by the appellant will be materially increased by reason of the cancer of the bladder which was present, but not diagnosed, at the date of sentence. I am also satisfied on the new evidence that there is a serious risk that imprisonment will have a materially adverse effect on the appellant's health. Consequently, in my view, the appeal should be allowed, the sentence quashed and the appellant re-sentenced by this Court having regard to the material that was before the learned sentencing judge and the new evidence which establishes a mitigatory factor which must be taken into account in the sentencing process - see R. v. Smith per King, C.J.[7] As Crockett, J. explained in Eliasen[8]:

" ... once the evidence is admitted the question no longer is one as to whether the sentencing judge has erred in the exercise of his sentencing discretion. The question then which is for this Court to determine is whether on the material then before it a different and, if so, what sentence should be substituted for that passed by the sentencing judge. It is for that reason that I think this Court is relieved from the task of having to examine the various allegations made as to error on the part of the judge when selecting the sentence that he thought appropriate in the circumstances."

In support of his submission that, in re-sentencing the appellant, this Court should impose significantly lower sentences and non-parole period, Mr Grace particularly relied on the following matters. First, he referred to the appellant's plea of guilty, the detrimental effect on him and his family of the "continuing extensive and sensationalist publicity" as his Honour explained in his sentencing remarks and to the trauma suffered by the appellant as a result of the proceedings, culminating in his hospitalisation. In my view, it is appropriate to take these matters into account (as his Honour did) for the purposes of determining the appropriate sentencing disposition. The plea of guilty, although late, saved the cost to the Crown and witnesses of a long trial. Similarly, the sensationalist publicity and the trauma suffered by the appellant as a result of the proceedings imposed hardship on him.

Mr Grace then submitted that there was evidence before his Honour that the appellant had shown remorse and that this should be taken into account when re-sentencing the appellant. Mr Grace was critical of his Honour for not accepting the evidence of the psychologist, Mr Watson-Munro, that the appellant had expressed remorse to him during the consultation; his Honour merely noted in his sentencing remarks that the appellant had expressed to the psychologist "profound regret" for his criminal activities. Whatever may be the true characterisation of the evidence of Mr Watson-Munro on this issue, it is appropriate for sentencing purposes to have regard to the expression of remorse by the appellant for his past criminal conduct. It is, however, necessary to recognise (as his Honour did) that, notwithstanding such expression of remorse, the appellant provided no information to the authorities or to the court as to either the amount of money which was paid to Hicks by way of bribes or the extent, duration and earnings from the appellant's trafficking activities. Moreover, the plea of guilty was made late. In the circumstances, the remorse expressed by the appellant cannot be regarded as a significant mitigating factor.

As to the appellant's co-operation with the police, which Mr Grace claimed was another mitigating factor, his Honour found that there was no evidence that, apart from his plea of guilty, the appellant co-operated with, or assisted, the authorities in relation to the matters before the court. This finding was accepted by Mr Grace. His Honour, however, did take into account in his sentencing considerations that the appellant provided to the authorities some useful information and in doing so put himself at risk of reprisal. In my view, it is appropriate to have regard to this as a mitigating factor.

Another fact which Mr Grace submitted went to mitigation was the appellant's lower level of criminality as compared with Hicks in respect of the offences. Mr Grace submitted that this difference in the level of criminality should be reflected in materially lower sentences imposed on the appellant when compared with Hicks. Mr Grace argued that Hicks was a police officer of long standing in a position of trust in respect of the relevant information pertaining to the Drug Squad investigation and the chemicals and that, therefore, the appellant's sentence in respect of each count should be materially less than that imposed on Hicks. In sentencing the appellant in relation to the counts of theft and burglary, his Honour took into account that he was not in the same position of trust as Hicks was in relation to the property that was stolen from Attwood. Recognition of this is reflected in the different sentences imposed by his Honour on the two offenders in relation to counts 1 and 2. In my opinion, it is appropriate to distinguish between the criminality of Hicks and the appellant in respect of those counts as his Honour did, principally for the reasons given by him. Mr Grace contended, however, that the different levels of criminality of the two offenders in respect of counts 1 and 2 is not sufficiently reflected in the different sentences imposed upon them by his Honour. In my view, however, the difference in the sentences, being 25 per cent in relation to the theft count and 30 per cent in relation to the burglary count, sufficiently reflects the different levels of criminality of the two offenders.

Mr Grace further submitted that any sentence imposed on the appellant in respect of the bribery count should also be substantially less than the five years' imprisonment that his Honour imposed on Hicks. It is convenient to mention at this point that there is much to be said for Mr Coghlan's submission that, on any view, the sentence of five years' imprisonment imposed in relation to this offence was remarkably low given the very serious nature of the crime. Be that as it may, Mr Grace emphasised that, in accepting the bribe and providing the appellant with the relevant information and access to the Attwood drugs, Hicks breached his oath of office and the trust that was reposed in him by the police force. Thus, Mr Grace submitted, Hicks should be viewed as the more culpable of the two offenders and that this should be reflected in a lower sentence being passed on the appellant in respect of count 3. Mr Grace relied on R. v. Wright (No.2)[9]. The applicant in that case was convicted of robbery in company and sentenced to a term of imprisonment. In considering his application for leave to appeal against sentence, the Full Court (Winneke, C.J., Gillard and McInerney, JJ.) considered[10] that the sentencing judge did not err when he took into account for sentencing purposes (but without giving undue weight) to the fact that the applicant was a member of the police force. Their Honours rejected the claim made on his behalf that he should have been regarded for sentencing purposes just like any other felon. In R. v. Whelan (Court of Appeal, Phillips, Hayne and Callaway, JJ.A.)[11], a case on which Mr Grace also relied, the applicant had pleaded guilty to a presentment containing one count of burglary. He sought leave to appeal against sentence. At the time of the offence the applicant was a serving member of the police force who, as Callaway, J.A. said in that case, "betrayed one of his own operations". He was sentenced to a greater term of imprisonment than his two co-offenders. In rejecting an attack on the sentence based on lack of parity, Callaway, J.A., with whom Phillips and Hayne, JJ.A. agreed, explained[12] that the difference in the sentences was explicable by the difference in the moral culpability of the co-offenders which indicated that different weight should be given to general deterrence in respect of each of the sentences. At the relevant time the applicant was a serving policeman, one of his co-offenders was a former policeman and the other co-offender had no connection with the police force, and had good prospects of rehabilitation.

In the two cases relied upon by Mr Grace, the court was aware not only of the status of the relevant offender but also knew what role he and his co-offenders played in the commission of the offence. Thus, it was able to distinguish between the levels of criminality of the offenders. A like situation prevailed in relation to counts 1 and 2 in this case. In respect of count 3, however, as his Honour explained, there was no evidence as to which of the two offenders initiated the bribery and which of them had the greater influence over the other. As Mr Coghlan submitted in relation to this issue, what distinction is to be drawn between the participants in the offence for the purposes of determining their respective levels of criminality must depend on the known circumstances of the case. In some situations it may not be possible to say which of the two offenders had the greater moral culpability. In my view, there is much to be said for his Honour's conclusion that, in the circumstances, the level of criminality of Hicks and the appellant was essentially the same. In particular, in my opinion, it could not be sensibly said that, given the situation, the imposition of the same sentence on the appellant and Hicks in respect of count 3 would engender a sense of grievance in the appellant.

Mr Grace further submitted that there should be no cumulation in respect of any of the sentences because, according to him, the acts giving rise to the offences in question were so closely related to one another that they could be properly regarded as arising out of the one transaction. I do not accept that submission. I agree with Mr Coghlan that, although the acts which constituted the offences were inter-linked (thereby calling for a significant amount of concurrency), they were discrete and some cumulation is appropriate in order to reflect the gravity of the appellant's conduct.

In my view, absent the new evidence, the individual sentences, the cumulations leading to the total effective sentence and the non-parole period as imposed by his Honour were well within the range when one balances the mitigating factors which were put before him against the seriousness of the offences, their duration, the level of the appellant's criminality and his criminal history and the principle of general deterrence which must be a significant factor in the sentencing disposition in this case. The appellant bribed a senior police officer to obtain information about the existence or progress of any police investigation into his conduct, obtained access to chemicals which were stored as potential exhibits and stole them for the purpose of using them to manufacture drugs.

Taking account of the new evidence, it is nevertheless appropriate to moderate the sentences to reflect the fact that imprisonment will be more burdensome for the appellant and that there is a real risk that imprisonment will detrimentally affect his health. Both factors are relevant to the mitigation of punishment (R. v. Smith per King, C.J.[13]) Mr Coghlan agreed, rightly I think, that in light of the new evidence some alteration is warranted in respect of the head sentence as well as the non-parole period. Thus, I would propose that, in the circumstances, the appellant be re-sentenced as follows:

I would also propose that the Court should direct that one year of the sentence imposed on count 1 and two years of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 3, making a total effective sentence of seven-and-a-half years' imprisonment. Given the uncertainty of the appellant's prognosis and all the circumstances of this particular case, I am of the view that a non-parole period of four years should be fixed.

I agree. There are only two points I wish to add.

First, Mr Grace submitted that count 4 added little or nothing to count 1. He acknowledged that that submission, which depends on a conceptual analysis of the two offences, had not been made below. Had the point been taken earlier it may, if accepted, have resulted in a different structure to the total effective sentence, but that is all.

Secondly, the effective reduction of the non-parole period by twice as much as the head sentence is partly a reflection of the seriousness of the offences but also of the peculiar exigencies of a case of this kind[14].

I agree that the appeal should be allowed and the appellant re-sentenced as proposed by Chernov, J.A.

The formal orders of the Court will be as follows:

The sentences imposed below are quashed and in lieu thereof the appellant is sentenced on count 1 to three years' imprisonment, on count 2 to two years' imprisonment, on count 3 to four-and-a-half years' imprisonment and on count 4 to three-and-a-half years' imprisonment.

The Court directs that one year of the sentence imposed on count 1 and two years of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 3, making a total effective sentence of seven-and-a-half years' imprisonment.

It is declared that the period of 309 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that such declaration was made and its details.

[1] [1998] 2 V.R.385 per the President at 388-9.

[3] (1991) 53 A.Crim.R.391 per Crockett,J. at 394-6.

[4] [1996] 2 V.R.97 per Charles,J.A. at 99.

[5] [1998] 2 V.R.79 per Brooking,J.A. at 81-82.

[6] [2000] VSCA 126 per Callaway,J.A. at [10].

[14] See and compare R. v. Morgan (1996) 87 A.Crim.R.104 and R. v. Spagnolo (2000) 114 A.Crim.R.98.

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