R v Reading [1998] VSCA 37

Court of Appeal (Vic)|1998-08-26|Before: WINNEKE, P., PHILLIPS and KENNY, JJ.A.

The applicant is now 52 years of age. He was born on 24 October 1945. On 16 February 1998 he pleaded guilty in the County Court at Melbourne to a presentment containing three counts. Count 1 was trafficking in a drug of dependence, amphetamine, between 1 July 1991 and 16 December 1991. The maximum penalty for that offence was 15 years and/or 1,000 penalty units. Count 2 alleged possession on 1 July 1992 of a drug of dependence, namely cannabis L. The maximum penalty for that offence was five penalty units. Count 3 alleges acting between 18 March 1994 and 13 May 1994 to pervert the course of justice in that he offered a bribe to a member of the Victoria Police force as an inducement to show him favour. Acting to pervert the course of justice is a common law offence for which the penalty is at large.

The applicant was first arraigned in the County Court on these counts on 28 June 1995. He pleaded guilty then to counts 1 and 2, and not guilty to count 3. The evidence in relation to count 3 consisted almost wholly of tape-recordings made of a conversation involving the policeman and the applicant, and in April 1997 a voir dire was conducted by a judge of the County Court to determine the admissibility of that evidence. The applicant first entered a plea of guilty to count 3 on 1 December 1997.

When the plea in mitigation was made on 16 February 1998, the applicant admitted 14 prior convictions from 12 court appearances between 7 March 1966 and 15 August 1978, the last being thus nearly 20 years ago. The applicant was represented by counsel and two witnesses were called to give character evidence on his behalf. A report was tendered from a clinical psychologist, and so were various medical reports, one relating to the health of the applicant's wife and the rest to the applicant.

On 26 March 1998, the applicant was sentenced. On count 1, trafficking in a drug of dependence, he was sentenced to three years' imprisonment. On count 2, possession of a drug of dependence (being some 25 grams only) he was fined $250. On count 3, perverting the course of justice, he was sentenced to two years' imprisonment, and one year was ordered to be served cumulatively on the sentence of three years imposed on count 1. The total effective sentence was thus four years and a non-parole period was fixed of two-and-a-half years. The pre-sentence detention was declared to be three days.

The applicant now appeals against sentence, and although the notice of application contains four grounds, only two were pursued and both of those allege manifest excess. The first, ground 1, alleged manifest excess in relation to the sentence imposed on count 1 in that only one incident of trafficking was proved beyond reasonable doubt, and, further, that insufficient weight was given by the sentencing judge to the delay of seven years between charge and sentence, insufficient weight was given to the plea of guilty and insufficient weight was given to personal circumstances, including the absence of relevant prior convictions, the applicant's health, his family commitments and the effect that lengthy incarceration would have on his business.

On this appeal, counsel was driven, I think, to reaffirm in substance much of the plea made below because, as the sentencing remarks disclose, his Honour was not unmindful of any of the matters set out in the ground of the notice of application. But Mr Tehan, Q.C., who appeared for the applicant, dwelt at some length upon the very words of the sentencing judge in respect of count 1, and so I set out what was said below in full:

"Count 1 relates to trafficking in amphetamine between 1 July and 16 December 1991. The material before me consists principally of transcripts and listening devices. In particular, the material evidence relates to listening devices installed by police officers in the Royal Melbourne Hospital and Bethesda Hospital where you were being treated following a motor vehicle accident. The material demonstrates that you were a drug trafficker in a substantial way. There was mention of large sums of money and involvement of numerous people. There was a reference to your cooks; that is people who you engaged or used to manufacture the amphetamine for on sale. However, much of the discussion on the tapes failed to elicit specific transactions on specific dates. Some of the discussions relate to transactions to be conducted in the future and the presentment refers to trafficking between 1 July 1991 and 16 December 1991. It was properly conceded by the prosecutor that most of the discussion about trafficking could not necessarily refer to drug transactions consummated between those dates. Although I am of the view that many did relate to transactions during that period, I cannot be satisfied of that fact beyond reasonable doubt, which is the test I am required by law to apply if I am to make adverse findings against you which would in turn increase your level of criminality. The end result is that the tapes prove beyond reasonable doubt that you sold three pounds of amphetamine to a drug trafficker, Farrell, for the sum of $20,000. The only use I can make of the other references to drug trafficking is this: it demonstrates that this transaction for which I am sentencing you is not a once-off transaction so that any concept of mitigation of the sentence based upon that consideration is not open, nor was it suggested by your counsel that I should treat it in such a way. I do, however, take account of the fact that in so far as trafficking is concerned you were in a position whereby you are, so to speak, close to the top of the tree in so far as the manufacture, supply and distribution of amphetamine is concerned."

Although not so identified in the notice of application, this last reference to the applicant's being "close to the top of the tree" was seized upon by Mr Tehan as signifying specific error. He contended that, having said he could find only one specific transaction proved beyond reasonable doubt, his Honour could not sentence on any other basis, for that would have been to ignore the authority of R. v. Storey [1998] 1 V.R. 359. But that is to misunderstand what his Honour said. As to the one specific transaction identified, that was the only transaction that the judge said could be identified with specificity. He did not say that nothing else of any relevance was established by the evidence before him beyond reasonable doubt. Quite the contrary; for at the outset in what I have just quoted, his Honour set out certain things that "the material demonstrates" and, in context, that must mean demonstrated beyond reasonable doubt. It seems clear, I think, that those findings, coupled with his Honour's wider consideration of all the material before him - which included not only the tape-recordings but also depositional material which is not before us - formed the basis for his Honour's conclusion that the applicant was "close to the top of the tree in so far as the manufacture, supply and distribution of amphetamine is concerned".

The respondent submitted that, in so finding, his Honour was doing no more than placing the one specific transaction identified by him in proper context; he did not thereby cease to be sentencing for that offending - and I agree. After all, the applicant had pleaded guilty to a charge of trafficking between 1 July and 16 December 1991, and, as the judge himself observed, applicant's counsel did not suggest that the applicant should be sentenced as if the one transaction, which counsel himself conceded could be specifically identified, was a "once off". Compare R. v. Giretti (1986) 24 A.Crim.R. 112, R. v. Te (Court of Appeal, 30 October 1997, unreported).

Mr Tehan submitted that much of what could be heard on the tapes related to persons other than the applicant and some of it to dealings that had nothing to do with drugs, and perhaps to dealings outside the period charged. So be it. This was all put to the judge below on the plea and the judge was well alive to it, as his sentencing remarks demonstrate.

In short, for the reasons I have attempted to state, I am of opinion that no error was established on this first point which was elaborated by Mr Tehan.

The second point he emphasised in relation to ground 1 concerned delay, and here counsel was perhaps on a sounder base. On any view, seven years between the commission of the offence charged in count 1 and the sentencing of the applicant in May 1998 is a very long time. The course of events attending the prosecution was outlined to us and I do not repeat it. It was, of course, a period during which the offence charged in count 3 was committed (in 1994), but it is not immediately apparent to me why that in itself should have delayed the sentencing of the applicant on counts 1 and 2 to which he pleaded guilty when first arraigned on 28 June 1995. In saying this I do not overlook the fact that there was a subsequent challenge to certain evidence that was determined on a voir dire conducted in April 1997 on the application of the accused. But, as I have indicated, that concerned the tape-recordings made of conversations between the applicant and the police officer who he attempted to bribe, which is the subject of count 3.

Mr Tehan's submission was that the delay was a significant sentencing consideration, not only in itself but also because of what had happened to the applicant during the seven years in question. During this period the applicant had seen his business collapse and had gone bankrupt; he had suffered significant litigation which the bank brought against his wife over default under the mortgage which he and she had given over the family home (litigation which they lost before Mr Justice Batt just after his trial had first been listed to commence before Judge O'Shea); he had been discharged from bankruptcy and had gone back into business, building up a reasonably successful demolition business; and throughout it all he had had continuing pain and suffering in consequence of the accident in 1991 which had put him into hospital (and which had led to the taping of the conversations which underpinned count 1) and at the same time had been experiencing considerable difficulty arising from the ill-health of both his wife and his eldest daughter. Mr Tehan's point was that none of this was mentioned specifically by the judge in his sentencing remarks and this was because, he submitted, the judge must have given it no weight or insufficient weight.

But, in my opinion, the conclusion does not follow. All of the various considerations mentioned by Mr Tehan were put by applicant's counsel to the sentencing judge in the course of the plea and his Honour must have been well aware of them when he sentenced. Moreover, it cannot be said that he ignored the delay of seven years in relation to count 1, and four years, it may be added, in relation to count 3, for his Honour mentioned both specifically as relevant to the sentence he imposed. That serves to distinguish this case from that of Taafe (Court of Appeal, 30 July 1998, unreported), on which Mr Tehan relied. In this instance the complaint about delay must (as is indicated by the way in which ground 1 is fashioned) depend upon whether or not the sentence imposed was or was not manifestly excessive. That is largely a matter of impression. In considering the question I have had regard to all of the circumstances of the offending and the offender, paying particular regard to those aspects emphasised in the notice of application and the arguments put by Mr Tehan, but at the end of the day I do not regard the sentence as outside the range of sentences properly available.

In all the circumstances, in my opinion, ground 1 is not made out.

Ground 2 is dealt with in the applicant's outline of submissions but was not further elaborated orally, and so I can deal with it more shortly. Ground 2 asserts that the sentence imposed on count 3 was manifestly excessive in that the police officer who the applicant attempted to bribe had held himself out as a corrupt police officer, so adding an element of entrapment to the circumstances of the offence; further, in that the police officer allowed the offence to continue rather than laying a charge when he first believed that an offence had been committed; and, thirdly, in that the applicant derived no benefit from the offence.

Again, the difficulty for the applicant lies in the fact that specific error cannot be demonstrated. His Honour was alive to the matters relied upon. Thus, in relation to count 3, so far as relevant, he said:

"I am satisfied that [the police officer] encouraged you to regard him as a corrupt police officer and you acted accordingly. The plan hatched between you and between [him] was that tapes which were incriminating to you would be wiped so that by the time they arrived at the office of the Director of Public Prosecutions they would be blank. ... In this case, [the police officer] was not corrupt and, indeed, he taped the conversations, collected the cash and delivered it to his superiors. You were then arrested and so derived no benefit from your activities. In my view, the offence is a serious one. The offer of a bribe of a substantial nature to a police officer is one which is capable of undermining the integrity of the criminal justice system. The fact that it did not produce a result does not diminish your criminality. Having said that, I accept that [the police officer] did encourage your activities. It is clear that he could have arrested you at an earlier point in time. There is a degree of entrapment which I have taken into account in determining an appropriate sentence."

As in the case of ground 1, ground 2 is framed as one of manifest excess. Again I have considered carefully the sentence of two years that was imposed on count 3, but, having regard to the circumstances of the offending and the offender, I cannot conclude that the sentence imposed was outside the range of sentences properly available to the sentencing judge. In my opinion ground 2 is not made out.

As these were the only grounds pursued on this application, it follows that the application should be dismissed.

I agree. I was initially inclined to the view that delay between the charging of the applicant and his ultimate sentence had not been sufficiently taken into account in imposing that sentence. The delay was, in this case, a significant one. However, the fact of that delay and the reasons for it were fully put to the judge by counsel below. His Honour specifically said that he had taken the delay into account in fixing an appropriate sentence. Although his Honour did not elaborate upon the way in which he had taken the lengthy delay into account, I cannot say that specific error has been demonstrated. Nor, in my view, can it be said that the sentence which was ultimately imposed was outside the range available to his Honour.

I therefore agree that this application should be dismissed, and substantially for the reasons given by Phillips, J.A.

I agree that the application should be dismissed, for the reasons stated by Phillips, J.A.

The formal order of the Court will be that the application for leave to appeal against sentence is dismissed.

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