R v Reed; R v Shortis [2007] VSCA 67

R v Reed; R v Shortis [2007] VSCA 67 - VSCA 2007 case summary — Zoe

[7]

The Background

5 The appellant Reed was, from late 2002, employed by Australian Pharmaceutical Industries as a storeman at its warehouse in Rowville. He met Shortis at around the middle of 2003 and, in the early part of the following year, commenced to live with her and her two children at her house in Cranbourne. Later that year, Shortis commenced a relationship with a man named Peter Roth and, during that period, the two appellants and Roth resided in the same house, but occupied separate rooms. Later again, Ms Shortis resumed her relationship with Reed and they married.

6 During October 2004, Reed commenced stealing drugs, marketed under the names Zyrtec and Telfast, from the warehouse. When, in late December, it was discovered that a large quantity of tablets was missing, investigations were conducted in the course of which Reed was detected removing boxes of Zyrtec from a restricted area.

7 The products, Zyrtec and Telfast, contain a drug of dependence, pseudoephedrine, which can be converted by a chemical process into amphetamine. Approximately 14,440 tablets were ultimately found to have been stolen. This represented an amount of between 1.2 and 1.7 kilograms of pseudoephedrine[1] and was sufficient to produce approximately 650 to 1000 grams of amphetamine, depending upon the method of manufacture.

8 After stealing the boxes of tablets, Reed handed them to Shortis, who then conveyed them to Roth. Both appellants were aware that they were destined for the illegal trade in drugs, although neither had any further role in that activity. When subsequently interviewed, on 8 February 2005, Reed made full admissions, stating that he engaged in this conduct because, believing that Roth had assaulted and threatened Ms Shortis and her children, he had formed the view that, unless he did so, they would be in significant danger.

9 Shortis was interviewed on the same day and she too made full admissions as to her involvement. She asserted that she had participated out of fear of Roth, who had earlier assaulted and raped her and had threatened her children and herself.

10 The sentencing judge was sceptical concerning the assertions of Ms Shortis and concluded that he was not satisfied that she was motivated to commit the offences as a consequence of any such threats or apprehensions. Similarly, his Honour was unpersuaded that there was any substance in the claim by Reed that he had become involved by reason of his desire to protect her, pointing out that there was nothing in the material to support this claim other his own assertions to this effect, and bearing in mind that, although possessing the opportunity to do so, he gave or adduced no evidence to support it.

11 In this Court, the argument has been advanced that his Honour did not, in his sentencing remarks, address the possibility that, whilst the claims of Ms Shortis may have been untrue, they were nevertheless believed by Reed. I will return to this aspect.

The Grounds

Reed - Ground 1

Shortis - Ground 1

12 Although expressed in slightly different terms, ground 1 of the appeal of each the appellants raises the same issue and I will therefore deal with them together.

13 In the course of imposing sentence, the judge stated -

[20]

"... [I]n this State, it is the invariable practice to place the depositions before the judge and from them he broadly determines the nature of the offence. It is not incumbent upon the judge at this stage to scrutinise the depositions closely so as to exclude materials such as hearsay comments which might, in the mouth of the witness in whose evidence they appear, have been inadmissible. Secondly, his Honour's statement as to the procedure to be followed if the accused disputes the facts is, I believe, representative of the practice in Victoria, although in the working experience of Victorian courts I would think that the hearing of an issue raised in this fashion by the defence is comparatively rare. Thirdly, and this is the point at which Victorian practice appears to differ from his Honour's description, it is not the Victorian practice to distinguish as rigidly as his Honour distinguishes between material in the depositions which is sworn, and materials which do not represent evidence which has been given on oath. I have already referred to the situation upon ex officio presentment and to the use of notices of additional witnesses. In the case of committal upon hand up briefs, the resulting material is used by the judge in substitution for the traditional depositions. In some States, I believe that it is not the practice to use statements or records of interview made by fellow offenders of the accused, and it may be that practice varies from judge to judge in Victoria. In my opinion, subject to the right of the accused to raise an issue in the way which has already been mentioned, such documents may be used. They should, I think, be regarded as being in the same area as unsworn witness statements. Even in the case of a sworn deposition, it is never possible to say with certainty that the contents of the deposition will be given in evidence at trial. At most, there is a possibility or probability that the witness will be available and will repeat his evidence. It is similarly a possibility, and a real one, that the accused at trial may be faced with sworn evidence to the effect of his co-offender's statement or record of interview.

In general, where the defence wishes to challenge matters appearing in the depositions or in documents accompanying them or documents used in substitution for them, it should raise the issue so that it can be dealt with by evidence."[9]

[21]

23 The respective motivations for the involvement of each of the appellants in the present case was the subject of considerable attention in the course of the plea. In accordance with the normal practice and, in order to clarify the position, his Honour requested counsel to identify the material upon which he could proceed; expressing doubts as to whether he could have reference to their interviews for the purpose of showing consistency between them. One of the counsel responded that their statements could not be used "against each other".[10] This proposition was not only correct, but was accepted without demur by all present. No one suggested that advantageous parts of the interviews could be called in aid in the fashion proposed in this Court.

24 In a situation in which, for what appear to me to be good forensic reasons, counsel made clear that they did not want the judge to take into account the respective co-offenders statements and in which, without their consent, it would have been inappropriate, if not wrong, to do so, the contention that his Honour fell into error lacks merit at any level.

25 In any event, even if the interviews were taken into account, the various substantial internal inconsistencies in the respective appellants statements and conduct, to which his Honour directed attention in the course of the plea, remained, and I fail to see how the situation would have changed. It must be borne in mind that the appellants had engaged in serious criminal activity. Each wanted the sentencing judge to have regard, as a significant mitigating factor, to the motivation proffered for their involvement for a number of reasons. He was entitled to be sceptical about their explanations. He invited counsel to address his concerns. This would presumably have required them to adduce some supporting evidence which was not forthcoming. Ultimately his Honour concluded that he could not accept the submissions advanced.

26 Error has not be disclosed.

Reed - Ground 3

27 I have earlier referred to the complaint made under this ground when setting out the factual background to the appeals. It is clear that his Honour did address the question of Reed's belief that Shortis had been assaulted or threatened by Roth as he specifically adverted to this possibility in the passage -

[24]

" ... Essentially you have had steady employment during the course of your working life.

Leading up to these offences you were working two jobs and you were financially secure, I was advised, and not using drugs or drinking to excess. It was put and I accept that you had a lonely life, moving from one place to another. Your health has been problematic. In 2001 you were diagnosed with diabetes and in a report that was tendered from Dr Dass it stated that you were recently diagnosed with dysphemia, low-grade depression, adjustment disorder, borderline personality traits and back pain. A shoulder injury has recently required surgery and you are currently receiving WorkCover. You have no prior convictions, although a minor theft matter was disclosed to me which occurred when you were 17 years old, but I do not place any significance on that in this matter.

I propose to treat you as a person of previous good character. Further, you have been in no further trouble since these offences. Evidence was led on your behalf in the form of a number of reports. A report of Pamela Matthews, forensic psychologist, dated 27 July 2006 was tendered, which sets out your history, and I have taken her report into account; in particular, her opinion that you are likely to be a low risk for re-offending, and you have begun to stabilise and make progress whilst on bail.

A report of the Alfred Health Care Group was also tendered in proof of the fact that since this offence you were tempted to commit suicide in April 2005. Also tendered on your plea was a final progress report from Credit Bail Support Program which further evidenced the difficulties you have experienced since these offences and your efforts to try and rehabilitate yourself and cope with your depression, for which you are receiving medication. Further reports were tendered from Wise Employment Limited as to your efforts to get employment, and I was informed that you have in fact had three different periods of employment since being arrested for these matters.

Finally Mr Lee Settle, chartered accountant, gave evidence of your efforts at rehabilitation that he has observed as your mentor through the Wise Organisation. I accept this evidence and the submissions by your counsel that your chances of rehabilitation are very good."[12]

[25]

" ... You have pleaded, and you are also entitled to have that fact taken into account in your favour, and I propose to do so. As I said earlier, a plea of guilty spares the community the cost of a trial and the witnesses the ordeal of giving evidence. The offer to plead guilty was made on 28 September 2005, and although there was a contested committal that only related to the quantities of the drugs that were involved, and the Crown have reduced the quantity that was originally alleged. I do not regard this as detracting at all from the benefit you should get for pleading guilty. Without admissions in your plea there was little or no evidence against you, and therefore I accept that your plea does indicate remorse and contrition.

You are now 36 years of age. Your personal history and circumstances are set out in some detail in the report of Kate Earl, psychologist, dated 18 July 2006 which was tendered on the plea. It is a sad and disturbing personal history. You were severely sexually abused in your formative years, and the adults in your life, who should have been responsible for you, effectively abandoned you. As a result you have little education or training, attending some 22 primary schools because your mother was moving about and changing partners. You were expelled from secondary school during year 7, which effectively terminated your education.

Whilst still very young you led a nomadic existence and soon learnt to fend for yourself, often relying on prostitution to provide an income. At the age of 16 you became pregnant to a man called Tony and your son Anthony, now aged 20, was born. Despite an abusive relationship you remained with this man, and at the age of 19 you had another child called Bobby Joe. Tragically that child died when he was only 13 months old. After leaving that relationship you commenced a relationship with Alan Butera which also proved abusive. You had your daughter, now aged 14, as a result of that union.

...

In recent times you have tried to remove yourself from the world of prostitution and attempted other work, but because of your limited education and skills you have not been completely successful. I accept that you are devoted to your children and it is the main focus of your life. Kate Earl, psychologist, in her report stated as follows:

'Ms Shortis appears to be of average intelligence and is literate. Her responses to mental status questions were within normal range. She had difficulty giving a clear chronological history, although her concentration was adequate. Her affect was flat and unmoved when relating incidents which must have been extremely traumatic. She had characteristics of dissociative disorder, a likely consequence of childhood trauma and subsequent violent assaults. Her description of her violent relationships indicate she has an acceptance of violent behaviour towards her.'

Later in a summary the psychologist stated:

'Ms Shortis has had an emotionally traumatic and disadvantaged life. Her education has been severely interrupted and her social development has been seriously affected by gross assaults by her father. The subsequent assaults by her mother's partners have probably re-traumatised her.'

...

You have no prior convictions and have been in no further trouble since these offences, and I will sentence you as a person of previous good character. I accept that although you have resorted to abuse of alcohol in the past you have not resorted to drug abuse, and I agree with your counsel that in light of your tragic background this is something which should be regarded in your favour. I have also taken into account all the material provided in the psychologist's report and am satisfied on balance that your chances of rehabilitation are very good."[13]

At a glance

Court

Decision date

Before

Source

Judgment (35 paragraphs)

Cases Cited (1)