R v QMN; R v WD [2004] VSCA 32

Court of Appeal (Vic)|2004-03-17|Before: VINCENT, J.A., SMITH and O'BRYAN, A.JJ.A.

Criminal law - Sentence - Trafficking in heroin - Disparity between sentences of co-offenders.

I agree in the disposition of these appeals as proposed by Smith, A.J.A. I do so for the reasons advanced by him in his judgment.

Both appellants pleaded guilty to the charges when presented in the County Court on 11 February 2003. WD received a sentence of seven years imprisonment with a non-parole period of five years. QMN received a sentence of four years and six months imprisonment with a non-parole period of three years. The learned sentencing judge also ordered that the appellants pay a pecuniary penalty of $17,400.00.

2. the learned sentencing judge erred in his finding concerning the scale of the applicant' s drug trafficking.

QMN was also given leave at the hearing of the appeal to advance a further ground, namely, that the head sentence and non-parole period infringed the principles of parity when regard is had to the sentences imposed on LD and JW, people involved in the same broad trafficking exercise as QMN and WD.

WD raised the same first two grounds of appeal as those raised by QMN. He also advanced a third ground, namely, that the sentence imposed on him was

manifestly disparate in comparison with that imposed on QMN. Leave was given at the hearing of the appeal to add to that ground the names of three other persons; VN, LD & JW. Prior to the hearing of the appeal, WD sought, and was given, leave to add a further ground which sought to rely on evidence not placed before the learned sentencing judge, about assistance given by him to the police.

I will consider initially the first three grounds relied upon by each appellant. I turn, therefore, to the facts relating to the offences committed by the appellants and the other persons named above and other matters relevant to the sentences imposed as revealed primarily in the reasons for sentence.

The learned sentencing judge held, on the basis of intercepted telephone calls, that the home of the appellants was the focal point for a lively trade in heroin. It was conducted on a regular and continuous basis. The drug was always available in half gram and one gram lots. But a 28 gram (one ounce) lot could be quickly organised. One gram sold for $ 300 and 28 grams for $6000. Purity of the heroin ranged between 40 and 60 percent. His Honour noted that WD, an unemployed person, had $3500 in cash on his person when arrested. It was put on their behalf, and they gave evidence to like effect, that he and QMN trafficked to fund their addiction. His Honour, however, rejected that contention. He concluded that each was engaged in trafficking substantially, if not entirely, for profit.

As to the roles played, His Honour found that WD was a supplier and dealer with immediate access to LD who could and would supply 28 gram lots. His Honour found that QMN played a lesser but important role. His Honour found that he had engaged in sales, assisting WD in arranging them and facilitating them. His Honour noted, however, that QMN was not engaged in trafficking for the entire period in that he was in Vietnam between 9 December 2000 and 17 February 2001. He then returned and resumed his assistance with the trafficking.

WD is aged 51 and was 48 at the time of the offence. He had prior convictions for trafficking in heroin on 16 June 1997 and on 6 February 2001. For his first offence he received a suspended sentence. On his second conviction, he received an aggregate term of four months imprisonment to be served by way of Intensive Correction Order. On both occasions he was also convicted of using a drug of dependence - heroin. During this period, he was also twice convicted of failing to answer bail. In sentencing WD, his Honour took into account WD's plea of guilty and the resulting saving to the community of time and expense. He also took into account the hardships he had experienced in the past as a refugee. His Honour, however, rejected WD's assertion that he was sorry for what he had done. His Honour stated that he was "firmly of the opinion that you could not care less, being quite insensitive if not indifferent to the plight of those who provided you with income". His Honour expressly stated that WD was "demonstrably a man of poor character". He concluded that general and specific deterrence were important sentencing factors. His Honour said nothing about rehabilitation prospects.

QMN is aged 25 years and was 21 at the time of the offence. He is the son of WD and JW. He has a prior conviction, on 6 July 1999, for trafficking in heroin and being in possession of money suspected of being proceeds of crime for which he received concurrent suspended sentences of three months imprisonment. They were suspended for two years. On 6 August 1999 he was placed on a community-based order for being in possession of property suspected of being proceeds of crime. He was later convicted on 10 February 2000 of breaching sentencing orders and required to pay fines of $400.00 and $100.00. In sentencing QMN, His Honour noted the prior convictions, expressing the conclusion QMN was a person of poor character and that general and special deterrence were of importance in his case. His Honour expressed a lack of confidence in his prospects for rehabilitation but said that he took into account that there were some prospects of rehabilitation. His Honour stated that he took into account the plea of guilty, the fact that he was a relatively young man and that he had experienced hardship in his youth. QMN has a child who was living with him and his parents. It had been put that the child would suffer if QMN went to gaol. His Honour rejected that submission. He made some allowance, however, for the fact that separation from his child for a lengthy period would cause QMN considerable distress.

VN, LD & JW were not sentenced until 8 December 2003 and were sentenced by another judge.

* VN - Reasons for sentence. VN pleaded guilty to one count of trafficking in heroin between 23 January 2001 and 9 March 2001. The learned sentencing judge sentenced her to be imprisoned for two years but directed that the sentence be wholly suspended for two years. His Honour found that she had assisted J W in trafficking in heroin between 23 January 2001 and February 2001 by providing a safe house for her in which to store heroin and money made from trafficking. She would produce to J W, on request, heroin and money. His Honour described her role has limited. He also held that she ceased participation voluntarily when she realised fully the significance of what she was doing. His Honour attached considerable significance to that fact.

His Honour described her history as "unfortunate". He also referred to her co-operation with the police and willingness to give evidence against JW. JW having subsequently pleaded guilty, her evidence was no longer needed but His Honour accepted that it would have been important and that the decision to give evidence was difficult and courageous and that a significant discount for that was warranted. He also saw as a significant mitigating matter the fact that some three years had elapsed since the offending. His Honour noted also that VN had no prior convictions and had pleaded guilty. He accepted that VN was remorseful and was unlikely to offend again. He said that VN had solid family support. Finally, His Honour noted that VN had, at that time, one child aged 12 months and the birth of the second child was expected in January 2004. His Honour noted that the Crown did not suggest that a suspended sentence would be inappropriate.

* JW - Reasons for sentence. JW was aged 46 years at the time the offence and is now aged approximately 50 years. She is the wife of WD and mother of QMN. She pleaded guilty to one count of trafficking in heroin between 2 December 2000 and 13 March 2001. His Honour imposed a sentence of imprisonment of three years and fixed a non-parole period of one year nine months. As to her role, His Honour found that she was dealing with LD, as were her husband and son. They had their customers and she had hers. While they were not in partnership, or investors together, there was a cooperative arrangement between them from which all benefited from time to time. His Honour noted her use of VN's home as a safe house for storing, and retrieving, heroin and money. His Honour also found that from time to time she dealt in quantities of heroin of up to one ounce. His Honour concluded that she was not addicted to heroin and that the purpose of trafficking was monetary gain.

His Honour noted that she had no prior convictions and noted her plea of guilty, albeit at a late stage. He accepted that her plea had resulted in a considerable saving in time and expense. He noted that she came to Australia from Vietnam via a ten-year stay in a refugee camp. His Honour noted that she was caring for her grandson, the son of QMN, the mother having disappeared. He rejected an argument that her absence would cause extreme hardship for the young boy who was then 3 ½ years old. His Honour said he was not satisfied that that would be so. He indicated that he was satisfied that there were other members of the extended family, whom he identified, who would be able to care for the grandson. Nonetheless, His Honour indicated that he took into account "that issue" in the concept of mercy in sentencing. He accepted that she had given "limited assistance" to the police and stated that he took that into account. He also took into account as a significant mitigatory factor the delay of three years since the offending. After noting that he accepted that she had learnt a lesson from the investigation and the proceedings which would encourage her not to re-offend, he indicated that he would have regard to the sentences imposed on her husband and son and those that he had and would impose on LD and VN. Prospects of rehabilitation were not discussed. I proceed on the basis that his Honour concluded there were prospects she "having learned her lesson".

* LD - Reasons for sentence. LD was aged 36 years at the time of the offences and 39 when he was sentenced. He pleaded not guilty to 1 count of trafficking in heroin between 22 November 2000 and 11 March 2001 but was found guilty by the jury. His Honour sentenced him to be imprisoned for a period of six and a half years. He fixed a non-parole period of four and a half years. His Honour found that LD had been trafficking as part of a commercial business for some four months between 22 November 2000 and 11 March 2001. He described LD as the supplier to WD, QMN and JW, although on occasions they shared supplies when needed. His Honour held that LD was able to supply quantities of one ounce or less. His Honour described the trafficking as frequent and regular. The prices and purity levels were as described above. During the period in question approximately one pound was traded. His Honour concluded that the trafficking was for profit.

LD had no prior convictions. His Honour accepted that, both in Australia and in Vietnam, LD had a good work record. His Honour noted that he was divorced and that there were three young children from the marriage in respect of whom he was satisfied that he was a responsible parent. His Honour also accepted that he had given time and effort voluntarily to the community as president of the Parents' Council at the local school for some three or four years. His Honour also noted that LD came to Australia as a refugee after experiencing considerable hardship.

His Honour stated that he could find no remorse on the part of LD who he said continued to deny offending. He also stated that he was not able to say that he had prospects of rehabilitation or that he was unlikely to offend again notwithstanding his previous good conduct.

His Honour then turned to a consideration of the sentences imposed on the others involved in the same enterprise. In relation to WD and QMN, he referred to their sentences, their prior convictions and their pleas of guilty. In relation to QMN he noted that the sentencing judge had assessed him as having some prospect of rehabilitation. His Honour then stated in relation to LD "in my view, as the supplier of heroin you stand on the rung above them, so to speak, in the hierarchy". His Honour noted that the three-year delay since the offending was a significant mitigatory factor.

Counsel for QMN raised a number of matters relevant to the first two grounds of appeal concerning the alleged excessiveness of the sentence. A major issue raised was the question of the scale of QMN's offending. Counsel challenged the applicability to QMN of the finding of the learned sentencing judge that the evidence revealed a lively, continuous and regular trade in heroin. Counsel submitted that that finding was not open against QMN. Counsel also submitted that despite His Honour's finding that QMN played a lesser role and was absent for more than two months of the four month trafficking period, those findings were not reflected in the sentence imposed. Counsel identified six transactions in which QMN acted as a go between between WD and an undercover operative. He submitted that the telephone intercepts reveal that QMN was involved in only 21 of thousands of telephone calls in relation to which about ten concerned trafficking. He submitted that the vast majority of calls involved mainly WD, JW and LD. He also submitted that QMN was involved at most for two months out of the 4 ½ months of the period charged and the telephone intercepts disclose involvement on only one day after he returned. Counsel also relied upon His Honour's finding that QMN played a subordinate role below that of WD. Counsel submitted that the learned sentencing judge was compelled to conclude that the appellant had only a sporadic involvement in the trafficking at a very subordinate level and for a relatively short period and, in not doing so, was in error. In relation to the argument that the sentence was manifestly excessive, counsel also referred to the relative youth of QMN, the plea of guilty and the separation from his son. He also referred to the very difficult early life of QMN. For 10 years, from the age of three he was separated from his parents who were held in a holding camp in Macau. Counsel also submitted that QMN's moral culpability should be considered in the light of the fact that it was not surprising that he would become involved in the illegal activities of his parents bearing in mind his age, his wife's desertion of him and their child, his and his child's dependence on them and his separation from his parents for ten years in his early life. Counsel submitted that the sentence did not reflect consideration of these matters which at the very least should have been balanced against his prior conviction for the drug trafficking.

In my view, a lower sentence could properly have been fixed but it cannot be demonstrated from His Honour's sentencing reasons and the evidence before him that His Honour inappropriately assessed the scale of QMN's offending or that the sentence was manifestly excessive. His finding of a lively regular and continuous trade at the home of his parents cannot be challenged. It was relevant as background and His Honour did not find that QMN was so engaged. On the contrary, he found that he played a lesser, but important role. He was involved in trafficking in heroin for some two months at the very least and had a prior conviction for that offence. His Honour also took into account the guilty plea entered at an early stage - at the case conference. His Honour, quite properly, however, had some reservations about his prospects of rehabilitation.

It is necessary therefore to turn to the third ground raised - that of disparity with the other sentences imposed, particularly that of LD and JW.

(a) Comparison with LD.[1] Counsel submitted that although LD had no prior convictions and QMN had the above-mentioned convictions:

* LD had pleaded not guilty and contested his trial but QMN had pleaded guilty at the case conference and was entitled to a significant discount for that;

* LD had offended for nearly four months as compared to the sporadic involvement of QMN over two months;

* LD was a supplier to WD and JW but, QMN was subordinate to WD and the telephone intercepts reveal his role was minor;

* QMN should be regarded as a youthful offender whereas LD was aged 39 at sentence.

Counsel submitted that the disparity is demonstrated when it is realised that if LD had pleaded guilty he might have expected his head sentence to be significantly reduced.

(b) Comparison with JW.[2] Counsel submitted that QMN should not have received a heavier sentence than JW but should have received a shorter one - despite his prior convictions and her limited assistance to the authorities. He pointed to the following matters:

* JW offended over a longer period - three months compared with the sporadic involvement of QMN over approximately two months and his involvement was minor;

* the prosecutor had placed QMN below the others, and in particular JW;

* QMN pleaded guilty at the case conference, but JW pleaded guilty at a "late stage";

* QMN should be regarded as a youthful offender whereas JW was 48 at the time of sentence;

* QMN's dependency on JW and WD, and the trafficking occurring from the family home, rendered his moral culpability substantially less than their moral culpability.

Counsel for QMN submitted that the principle to be applied is that there should not be such a marked disparity in sentence between co-offenders that it would give rise to a justifiable sense of grievance in the offender and be seen to be unjust be an objective observer.[3] Counsel submitted that this was such a case. He submitted that the sentence should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.[4] Counsel also relied upon the proposition that even if the sentence of the co-offender is thought to be low or inadequate:

"it is preferable to err on the side of leniency and eliminate or diminish the sense of grievance by reducing the more severe penalty in appropriate cases."[5]

Comparing the offence seriousness of the conduct of QMN and JW, the assessment of QMN's breach of the law would rate significantly below that of JW. His culpability should be seen as significantly less than that of JW, notwithstanding his prior convictions, because of his dependence on her and WD and much lesser involvement. A similar distinction should be drawn on the issue of general deterrence. Both pleaded guilty but QMN was entitled to a larger discount because of his early guilty plea. On the other hand, JW could point to her assistance to the police and the greater delay (3 years instead of 2). As to rehabilitation, QMN's rehabilitation prospects were assessed as poor and therefore, less than those of JW - in her case, the learned sentencing judge said she had "learned her lesson". In addition, special deterrence would probably loom slightly larger in the sentencing of QMN. These matters, however, are insufficient to justify the disparity between their sentences. I note that I assume that both would suffer a similar burden in being separated from the child.

Turning to the comparison of his sentence with that of LD, consideration of offence seriousness and general deterrence would place QMN significantly below LD on those issues. After all LD was the supplier to WD and JW. Another significant point of difference is the substantial discount required for QMN's plea of guilty. While LD has no prior convictions, QMN has. It might be thought that specific deterrence was a more significant factor in the case of QMN because of his prior convictions and dependence on his parents. But His Honour's findings about LD showing no remorse and his inability to make any positive findings about his rehabilitation prospects and possible future offending point to specific deterrence as at least an equally important factor in the sentencing of LD. The delay experienced by LD was not experienced by QMN but again that is not a source of major difference - three years as compared to two years.

Having regard to the above comparison with LD, QMN would be entitled to feel a justifiable sense of grievance because, when regard is had to all the relevant factors, the sentences imposed effectively appear to treat the seriousness of their breaches of the law as similar and that is plainly not so. Accordingly the disparity ground is made out.

Turning to WD, it cannot be demonstrated that his sentence was manifestly excessive or that the learned sentencing judge erred in his assessment of the scale of WD's trafficking when regard is had to the sentence imposed upon him, in isolation from that imposed upon the others, and the relevant facts and factors. A comparison with the other offenders, however, raises real issues of disparity.

Comparing him with LD[6], LD was a supplier above WD in the supply chain. He supplied not only WD but also JW. He was involved for an overlapping but similar period. He was found to lack remorse and like WD did not attract a favourable finding as to prospects of rehabilitation. WD did have prior convictions, for trafficking and breaches of sentences which increases his culpability but it is difficult to suggest, for example, that specific deterrence was not an equally significant issue for both. If there had been no other factors to be considered, it might have been expected that WD would have received the same or a slightly lesser sentence than LD. WD, however, pleaded guilty at an early stage and LD did not. WD was entitled to a significant discount for his plea of guilty. Accordingly, he would be entitled to a justifiable sense of grievance for receiving a heavier sentence than LD. The differences in delay would not justify the difference.

Turning to the comparison with JW[7], the offence seriousness was virtually identical. General deterrence was identical as a factor. He, however, had prior convictions and she did not. He also showed no remorse. She had "learnt her lesson". Specific deterrence required greater attention in his case than JW. Her rehabilitation prospects were superior. He, however, was entitled to a larger discount for his early plea of guilty. JW on the other hand was entitled to a discount, to which WD was not then entitled, on the evidence at the time of sentencing, for her assistance to the police. Weighing these matters up he could not complain about receiving a sentence that was heavier than JW's but the disparity in this case is so great that it gives rise to a justifiable sense of grievance. Accordingly, the disparity ground is made out.

The appeals of both WD and QMN should be allowed and they should be re-sentenced.

WD seeks to have taken into consideration in his re-sentencing evidence of assistance to the police which could have been produced for the learned sentencing judge but was not. The Crown opposes the receipt of this evidence. In my view, however, the evidence should be received to avoid a miscarriage of justice.[8] It is understandable that WD, as he asserts, could have assumed that the authorities would make sure that the sentencing judge would be made aware of his assistance and that he would have been reluctant himself to make it public because of the potential risks in doing so. It also appears from Mr Healey's report that WD suffers from some premature intellectual deficits.

I have read the affidavit of the Detecive Sergeant filed in this matter. It reveals that not only did WD give information for a considerable time, it was significant and produced results. He was paid money on occasions but often would not accept payment. Bearing in mind the closeness of the community to which he belongs, the risk to which he has exposed himself is considerable. He should receive a significant discount for his assistance.

Having regard to the matters relevant to WD and his sentence, I have come to the conclusion that a sentence of four years six months imprisonment with a non-parole period of two years six months would be appropriate. Revisiting the parity issue, a lower sentence than that of LD of that order is appropriate. A greater sentence than that imposed on JW is warranted because of WD's prior convictions and JW's lack of convictions and better rehabilitation prospects and a lesser need for her sentence to address specific deterrence. WD's earlier plea of guilty might be said to reduce the difference required but it does not eliminate the need for a difference. Both gave assistance to the police.

As to QMN, a consideration of the relevant matters to which reference has already been made would warrant a sentence of three years imprisonment with a non-parole period of 2 years. Re-visiting the parity issue, the sentence is appropriately less than that of LW and WD. It is similar to that of JW. While QMN played a significantly lesser role than JW, he has prior convictions and JW has none and, on the findings made, she has better rehabilitation prospects and less need for her sentence to address specific deterrence. In addition, she gave the police assistance. 28 In conclusion, the task of determining the appropriate sentences for the offenders involved in the trafficking was difficult and ensuring parity an even more difficult task. This case highlights the desirability of one judge sentencing all co-offenders. The task is then made less difficult and disparate sentences less likely.

I am grateful to Smith, A.J.A. for his helpful summary of the facts. I agree in his conclusions as to the sentences to be imposed on WD and QMN.

I find it necessary to write something about ground 4 in WD's grounds of appeal. It is sentencing principle that an informer is entitled to an informer's discount when the circumstances of assistance given to the police are made known to the sentencing court. A substantial discount should be given to an offender who volunteers useful information about offences not known to the police.[9]

Leniency is extended to an informer, firstly because it is in the interests of the community to encourage informer's, secondly because the informer is exposed to a risk in prison and within the community when the informer's conduct becomes known.[10]

That the appellant became an informer in January 2003 is not disputed by the respondent. Details were provided in an affidavit sworn by Detective Sergeant Linehan on 17 December 2003. There was no attempt on the plea to make anything of the appellant's role as an informer.

On behalf of the appellant it was said that his lawyers were unaware of the appellants' role as an informer. On 10 February 2004 the appellant made an affidavit in which he deposed as to his role as an informer. He deposed that Sergeant Linehan told him the day before he was sentenced that the police would assist him,

that he did not understand how the system worked and did not tell his lawyers. He deposed that he believed "that the police would do something to tell the judge and that I would not have to do anything. It occurred to me that the police would place information on my file".

Now the appellant wishes to rely upon his conduct as an informer prior to sentence in order to obtain an informer's discount in this court. The new evidence is not fresh evidence, but the court may receive it on appeal in order to avoid a miscarriage of justice.[11] The appellant does not rely upon evidence of events after sentence such as, threats or intimidation in prison, or the need for high security on account of apprehension of violence. Apparently nothing of that kind has occurred.

What has happened is that the appellant has recently disclosed to his lawyers facts known to him before sentence, but which were not disclosed to the sentencing judge, for the purpose of obtaining a lower sentence than that imposed upon him. To disclose, or not to disclose, at the time of sentencing that you are an informer is a two-edged sword for obvious reasons. If the disclosure had been made in the course of the plea the sentencing judge would have been obliged to discount the sentence the judge regarded as appropriate. The discount will vary depending upon an appreciation of the risk that imprisonment will be a greater burden on the offender by reason of his being known as an informer. In the present case, it was contended that the risk might not become apparent until the appellant is released from gaol, for he lives in a community generally unsympathetic to informers.

As I earlier indicated the new evidence provided in the affidavits is not fresh evidence and cannot be admitted under the fresh evidence rule. Nor does the evidence show that some subsequent event has made the sentence imposed more burdensome on the appellant. The risk the appellant took for his own safety has not materialised. Nevertheless I consider that this court should intervene now to reduce the sentence. But the court is entitled to moderate the discount in this case since the court is aware that 12 months since the sentence was imposed nothing has happened to the appellant in gaol related to his being an informer.

I agree that the appeals of WD and QMN should be allowed substantially for the reasons given by Smith, A.J.A.

[1] The sentences were: LD 6 ½ years with a non-parole period of 4 ½ years; QWN 4 ½ years and a non-parole period of 3 years.

[2] The sentences were: JW 3 years and non-parole period 1 year 9 months; QWN 4 ½ years, non-parole period of 3 years.

[4] Postiglione v The Queen [1997] HCA 26; (1997) 189 C. L. R. 295,301.

[5] Lowe v The Queen [1984] HCA 46; (1984) 154 C. L. R. 606, and 612; R. V. Spizzeri [2001] V. S. C. A. 49 and R v. William [2001] VSCA 130.

[6] The sentences: LD 6 ½ years with non-parole period 4 ½ years; WD 7 years non-parole period of 5 years.

[7] JW sentence: 3 years and non-parole period 1 year 9 months. WD sentence: 7 years and non-parole period of 5 years.

[8] R v. Babic (1998) 2 VR 79.

[9] R. v. Macedo, Court of Criminal Appeal, 4 February 1993 (unreported) at 7.

[10] R. v. Shane Anthony Pividor and Bruce Alan Dale [2002] VSCA 174 at 7.

[11] R. v. Babic [1998] 2 V.R. 79 at 80.

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