R v Rae [2001] VSCA 64

5. The appellant pleaded guilty and admitted six prior convictions from four court appearances many years ago. The judge proceeded upon the footing that none of them was presently relevant. A plea in mitigation was made on behalf of the appellant by counsel during which certificates were tendered of his having completed drug courses while in prison and viva voce evidence was led from the brother of his partner of 14 years. The appellant's partner was herself a co-offender: her trial was listed for the April sittings in Ballarat, and we were informed from the Bar table this morning that she is to be sentenced shortly.

8. On 30 June 2000 the appellant was convicted of the offence charged and sentenced to be imprisoned for a term of five years, with a non-parole period of three years. The appellant had been in gaol since his arrest and a declaration was made of 282 days of pre-sentence detention. On 14 July 2000 the appellant gave notice of application for leave to appeal against sentence and, a few days ago, on 1 May last, the grounds of appeal were amended. Three grounds were substituted for the earlier grounds and of these only two are now pursued: the first that the sentence was manifestly excessive and the second that the sentencing judge erred in treating the fact that the applicant had trafficked in the drug to children as an aggravating feature.

11. In early 1999, the appellant and his long-term partner (the alleged co-offender) set up a "new age" gift shop in Bendigo. In mid-July 1999 the police established an operation in the Bendigo area targeting drug trafficking. The shop soon fell under suspicion and between 22 July and 22 September 1999 police undercover operatives on seven occasions purchased cannabis from the appellant in his shop. Between 14 September and 23 September 1999 the shop was under electronic surveillance with listening devices. Recorded conversations included a statement by the appellant, one Wednesday, that since the preceding Friday he had earned $10,000 and, on another day, the statement that on most days he would be making between $1,500 and $2,000. On 23 September police simultaneously executed warrants at the appellant's shop and his home and seized more than $7,000 in cash hidden in a water-bed and a total of more than 609 grams of cannabis at the two locations. If sold in one-gram lots on the streets of Bendigo, that amount of cannabis would sell for about $12,000.

14. The appellant was interviewed by the police on 23 September 1999 and in the course of the tape-recorded interview he made full admissions, stating that some of the cannabis was for his own personal use but most of it was for sale. He admitted that he had been regularly purchasing from a Melbourne supplier, having commenced purchasing in quarter-pound lots, moving to pound lots and then, on four or five occasions, purchasing in two-pound lots for just under $8,000 each. He admitted selling most of this cannabis to buyers who attended the shop. He said that he took the cannabis to the shop every day for the purpose of trafficking, the income of the shop being itself insufficient to support him. The appellant further admitted that he sold cannabis to a number of school children, some of whom were in school uniform and from none of whom he ever sought any identification or verification of age. The depositions contained statements from six children who had purchased cannabis from the shop, ranging in age from 14 to 17. They stated that it was common knowledge around schools in the area that cannabis could be bought easily from the appellant's shop and that, between them, they knew up to 30 other school children who regularly purchased cannabis from the appellant.

17. The foregoing, which is taken from the careful and comprehensive sentencing remarks of the judge, was the basis upon which the appellant was sentenced. In referring to the maximum penalty, the judge said this:

"The offence to which you have pleaded guilty is a very serious offence. It attracts a maximum penalty here, as I say, of 20 years' imprisonment because of the involvement of children. A few years ago Parliament increased the maximum penalty from 15 to 20 years for trafficking such as this, where children were involved."

After then quoting a passage from Pastras[1] about the harmful effects of marijuana, the judge continued:

"Here, as I say, your criminal behaviour was aggravated by the fact that school children were involved. Apart from the harmful effect of marijuana use as referred to in Pastras you introduced these children to the drug culture. We regularly see in these courts that users of harder drugs such as heroin, commence their drug usage with cannabis and then move up the scale to harder drugs. Our Court of Appeal has stated on many occasions over the past few years that drug trafficking deserves condign punishment."

23. I have set this out in full because it is the genesis of the second ground of appeal which was argued before us: that the judge erred in treating the fact that the appellant had trafficked in the drug to children as an aggravating circumstance. According to the outline of argument that was submitted the other day, the appellant's submission was that in creating the offence for which he was convicted and then sentenced, Parliament had itself identified trafficking in the drug to a child as one of the elements of the offence and so, it was said, it could not also be, for the purpose of sentencing, an aggravating feature. So to treat it was (it was contended according to the outline) to penalise the appellant twice for the same factor. This morning, however, as the argument developed, it was no longer pressed that the involvement of children was an element of the offence. Rather it was accepted that, much as in Kingswell[2], s.71(1) created that factor an aggravating feature relevant to penalty but not as an element of the offence itself. In those circumstances the error sought to be identified in the outline of argument was not shown, nor, in my opinion, was any error shown at all. What his Honour said was correct, and I do not accept the submission that his Honour, in saying what he did, in some way "counted the aggravating feature twice". In the passage which I have quoted his Honour, on the second occasion when he referred to trafficking to children, simply recapitulated what he said on the first. Accordingly, in my opinion, ground 2 fails.

26. That leaves ground 1, that the sentence is manifestly excessive. Counsel conceded that this ground does not permit of much argument. A sentence either is or is not manifestly excessive. Counsel submitted that there were in this case many significant mitigatory factors, but he could not contend that they were not considered by the sentencing judge. The appellant's plea of guilty as evidencing genuine remorse and, of course, saving the community the expense of a trial and the ordeal for young witnesses of giving evidence; the early time at which that plea was indicated; his co-operation with police; his age, and the inconsequential nature of the prior offending were all matters in his favour. Counsel mentioned the appellant's history as a hard-working family-oriented man (although, on the other hand, that work did involve the shop and the shop involved trafficking). Counsel relied too on what he called the difficult personal circumstances of the appellant, and particularly the tragic death of a nine-year-old child which has had long-term consequences. In referring to these matters I do not mean to be exhaustive. The judge himself seems to me to have considered fully and adequately the personal circumstances of the offender, while at the same time not losing sight of the seriousness of the offending.

29. Given that the maximum sentence of imprisonment for an offence like this is 20 years, I cannot see five years as manifestly excessive, even though imposed on a man with no relevant prior convictions. The appellant is now 45 years old: he can scarcely be regarded as youthful, and the offending, as charged, took place over a period of months and, as the facts disclose, through a sustained operation during which the trafficking to children was apparently regular. In my opinion ground 1 also fails.

32. 10 For these reasons I think that this appeal should be dismissed.

37. I agree. Although the quantities of individual sales were small, it is clear that for nearly six months the appellant conducted a substantial business of trafficking by retail in cannabis, including to children, from which he derived considerable profits. This offending was serious. Allowing for the mitigating circumstances relied on before us, the sentence is within range. Director of Public Prosecutions v. Sullivan[3] is, in my view, distinguishable on several scores.

40. The second ground proceeds on a misconception. The offence was trafficking, and involvement of children was an aggravating circumstance: Freckleton, Indictable Offences in Victoria, 4th edn., 567-8_._ In the impugned passages his Honour simply emphasised that circumstance.

45. I agree that the appeal should be dismissed for the reasons given by the learned presiding judge.

[1] (1993) 65 A.Crim.R. 584.

[3] [2000] VSCA 99.