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

Reed

1. The learned sentencing judge erred in taking into account an irrelevant consideration in a material manner in imposing sentence. In particular his Honour took into account the harmfulness of pseudoephedrine/methylamphetamine when sentencing the appellant.

2. The learned sentencing judge erred in imposing the same sentence on the appellant and the co-offender Shortis for the offence of trafficking.

3. The learned sentencing judge erred in failing to find as a fact in mitigation matters raised by the appellant in his record of interview explaining his motivation for committing these offences.

4. The learned sentencing judge erred -

(a) In imposing sentence without having proper regard to the principles relating to double punishment (See Pearce v R (1998) 194 CLR 610)

(b) Failing to pass sentences which avoid a double punishment arising out of the commonality of the offending disclosed on the counts to which the appellant pleaded guilty.

(c) In ordering cumulation to the extent that his Honour did as between counts 1 and 3.

5. In all the circumstances the total effective sentence, non-parole period, and individual sentences imposed are manifestly excessive.

Shortis

1. The learned sentencing judge erred in having regard to the harmfulness of pseudoephedrine/methylamphetamine when imposing sentence upon the appellant.

2. The learned sentencing judge erred in failing to have regard to the record of interview of the co-accused Reed when determining the issue of whether the appellant had acted under some form of duress.

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 -

"These are serious offences. The charge of theft carries a maximum penalty, as I have mentioned, of ten years. In your case, Mr Reed, it involved a gross breach of trust in that you were stealing from your employer, and the items that you were stealing were drugs from a restricted area, and it continued over a period of three months, albeit the thefts and the method you employed in stealing was not terribly sophisticated. Application for compensation for the loss of the goods stolen has been made in the sum of $8470.

Trafficking in a drug of dependence is also very serious criminal conduct, again reflected by the maximum penalty which is 15 years' imprisonment. Pseudoephedrine is a key chemical precursor in the production of methylamphetamine, which is a dangerous drug. It can create psychotic episodes in those who take it, and is frequently blamed by people convicted of offences involving violence for their conduct. The use of drugs produced from pseudoephedrine has become prevalent, and detection of offenders remains difficult.

General deterrence must play a predominant role in sentencing on this matter. As mentioned earlier, this must be regarded as a reasonably serious example of trafficking in pseudoephedrine because of the period of time over which it occurred, together with the volume, being between 1.2 and 1.7 kilos of pseudoephedrine which was trafficked into the community as a result of your activities, ..."[2] (my emphasis).

14 It is apparent from these remarks, counsel argued, that his Honour had regard to his personal perceptions concerning the level of dangerousness of pseudoephedrine/methylamphetamine when assessing the seriousness of the appellants' offending and, accordingly, took into account an irrelevant consideration in a material way. In this context, reliance was placed upon the recent decision of the Court in R v Pidoto and O'Dea.[3]

15 Save for the italicized passage there has been no argument that any of his Honour's statements in this extract is incorrect or inappropriate. However as counsel emphasized, in Pidoto and O'Dea the Court held that -

"Ultimately, the question to be considered is not whether trafficking in one drug is to be viewed more seriously than trafficking in another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed for dealing in the material involved. Of course, not all examples of trafficking are equally serious and it is obvious that discrimination between offences and offenders is required, based upon a wide range of considerations, in order to ensure that the sentences handed down in individual cases are appropriate in the particular circumstances relating to the offences and offenders concerned.

But in the fixing of the sentence for the particular offence of trafficking, there is no place - as the law stands - for any consideration of the (relative) harmfulness of the drug involved."[4] (my emphasis)

16 On one view, counsel for the appellants accepted, in the impugned passage in the present case, his Honour may have been intending to convey nothing more than his understanding of some of the reasons why the legislature has imposed very substantial penalties for trafficking in this material. However, they argued, it is more likely that he took into consideration his personal, but irrelevant perceptions, concerning the dangers associated with amphetamine use in the determination of the sentences to be imposed upon their clients.

17 There is some substance to this claim, although the matter is not beyond doubt, as the views expressed by the judge are remarkably similar to those of the sentencing judge in Pidoto and O'Dea who commented that:

"One does not have to be in this Court very long to appreciate the magnitude of the drug problem in the community generally and its association with the commission of crime. Virtually every offence that comes before this Court, with the exception of sexual offences and white collar crime offences, have some drug connection in them, even if the offence is not on its face a drug offence. The drug involved here, an amphetamine-based drug, commonly known as ecstasy, is in my opinion emerging as a very significant community problem. On so many occasions one experiences really adverse behaviour, whether it is violence or some other type of adverse behaviour attributed to the use or abuse of this drug, and even more so, significant mental health problems being attributed to long-term abuse of this drug. Accordingly, this offence must be seen as trafficking in a very significant drug at a very significant level."

18 His Honour's statements are also similar to those which were found to demonstrate the adoption of an incorrect approach in R v D'Aloia[5] where the sentencing judge said of MDMA -

" ... Ecstasy is a mind altering drug which unhappily has been increasingly abused in our society over recent years. It is know to cause harm particularly to vulnerable and/or susceptible young person who are often engaged in poly-substance abuse. The level of harm which it is known to case can vary from those who lead feckless party lifestyles and remain awake for days on end, to darker effects where there have been recorded instances of death associated with Ecstasy use, particularly in combination with other substances. The harm which occurs can involve susceptible persons who may be dependent upon it or other substance being drawn into trafficking in the drug and this appears to have occurred in this case with the number of the offenders before the court who are lower than yourself in the hierarch of offending."

True it is that, in Pidoto and O'Dea, the judge continued -

"Accordingly, this offence must be seen as trafficking in a very significant drug at a very significant level",

and thereby made explicit that regard was being had to the dangerousness of the drug concerned, but it is distinctly possible that the judge in the present case adopted the same approach and thereby fell into error.[6]

19 Nevertheless, as Nettle JA concluded in D'Aloia -

"the matter may still be approached on the basis that all of the drugs which are proscribed have deleterious consequences of anti-social proportions and that trafficking in any of them is therefore properly to be regarded as a serious criminal offence. ... In effect that is the conclusion to which the judge came, albeit by another and now prohibited path of reasoning, and therefore it is appropriate that the result should be the same."[7]

20 That reasoning is certainly apposite to the present situation. When regard is had to all of the relevant principles and factual circumstances, the sentences imposed on the appellants do not suggest that the judge attributed an inappropriate degree of seriousness to trafficking in the amount of pseudoephedrine involved, either generally or in comparison with an equivalent quantity of any other prohibited substance. Nor does it follow from his Honour's remarks that he erred in his assessment of the seriousness of the appellants' conduct in the particular circumstances. The error, if his Honour's remarks be so regarded, cannot be seen to have resulted in the imposition of an inappropriate sentence upon either of them. Accordingly no miscarriage of justice can be seen to have occurred.

Shortis - Ground 2

21 The contention is made under this ground that the appellant had asserted in her interview, and through her counsel on the plea, that the reason that she became involved in the offending was her fear of Roth, who had threatened and intimidated her. There was, it was argued, considerable support for that version in Reed's record of interview and, accordingly, this was a circumstance in which his Honour should have taken into account those parts of Reed's interview in which the matter was addressed.

22 The practice adopted in Victorian Courts in this regard was considered by the Court of Criminal Appeal in R v Halden.[8] Although judgment in that case was given in 1983, to my understanding the situation has not changed. Lush J put the position as follows -

"... [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]

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 -

"Your counsel submitted that in considering your culpability for these offences I should accept your claim in your record of interview that you only acted as you did because you believed that Ms Shortis and her children were being threatened by Mr Roth and that Ms Shortis had been assaulted by Mr Roth."[11]

He was justified on the material before him in adopting the view that he did and in concluding that the appellant had not established the presence of the mitigating factor asserted, in accordance with the relevant standard, that is, proof on the balance of probabilities.

Reed - Ground 2

28 In support of this ground, it is pointed out that the sentencing judge did not accept Shortis' claim that she had been threatened, assaulted and raped by Roth. However, he did conclude that Reed was "a lonely and vulnerable man" at the time and that he had been emotionally manipulated by her into participating. In these circumstances, it was contended that Shortis should be seen as more culpable, and accordingly, a lesser sentence should have been imposed upon him.

29 His Honour's sentencing remarks evidence the careful consideration that he gave to the respective roles, motivations and personal circumstances of each of the appellants not only in the determination of proper sentences in each case, but in effecting an appropriate balance between them. Obviously, there were factors personal to one or the other which could be called in aid as militating in favour of the imposition of a lower sentence in his or her case, and each such factor was addressed, as the following relatively lengthy extracts from those remarks demonstrate.

30 In the case of Reed, who was 35 years of age at the time of sentencing, his Honour stated:

" ... 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]

" ... 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]

32 Mindful that a judge who quotes himself may well be relying upon extremely poor authority, I will repeat some remarks that I made only recently in the matter of R v Schaefer and Tran[14] -

" ... It is fundamental to any just system of sentencing that similarly circumstanced persons are dealt with in the same fashion. However, as a practical proposition, seldom are offenders identically positioned. Differentiation can almost always and very often must be made between co-offenders in a criminal enterprise by reference to their respective roles, relationships, personalities, criminal histories, levels of intellectual functioning, states of health, ages, backgrounds, pleas of guilty, motivations and prospects of rehabilitation, to list a few of the matters to which regard may be required. Often the mitigatory factors operating in one case will be of a quite different kind and, in more than one sense, incomparable with those operating in that of a co-offender. Very different considerations may impact upon the sentences to be imposed upon separate offenders and assume significance in effecting an appropriate balance between them. True parity of treatment is often not to be achieved by the imposition of the same sentence on co-offenders; but through the making of appropriate distinctions between them and bearing in mind that more often than not there can be no precision in the weighting process or the relative significance to be attributed to the quite different factors that may bear upon the determination of appropriate sentences in the separate cases. The most that a sentencing judge can be required to do in such situations is to impose sentences that cannot be seen to have given rise to a legitimate sense of grievance in the mind of one or some that they have been dealt with unfairly when compared with one or more co-offenders and avoid the appearance of injuctice to an objective bystander."

I am far from persuaded that in arriving at the same sentence for the separate offenders in the present trafficking offence, that the judge fell into error. There is nothing in his remarks which could reasonably be interpreted as suggesting this and, when the mitigating factors operating in their separate cases are taken into account, the fact that the same sentence was imposed on each does not of itself bespeak error.

Reed -Ground 4

33 Under this ground, it is claimed, that there was such an overlap between the offence of theft and the offence of trafficking that cumulation of half of the sentence imposed for the theft upon that imposed for the trafficking, offended the proscription against double punishment, the rationale for which was considered by the High Court in Pearce v R[15] -

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

The short answer to the contention in the present matter is that not only do the legal elements of theft and trafficking at common law differ, but the handing over of the tablets to Shortis constituted a further significant criminal act separate from the theft. Indeed it would have been inappropriate for the different forms of criminality to be effectively merged in this fashion. The obvious relationship between the two offences was accommodated by the order for partial cumulation only and, in my opinion, no breach of principle has occurred.

Reed - Ground 5

34 The judge directed attention to all of the sentencing principles and considerations relevant to the determination of appropriate sentences in the case of this appellant as the extracts from his sentencing remarks earlier set out make patently clear. Concerning the theft of the drugs, he stated that this offence -

" ... involved a gross breach of trust in that you were stealing from your employer, and the items that you were stealing were drugs from a restricted area, and it continued over a period of three months, albeit the method you employed in stealing was not terribly sophisticated."[16]

He properly drew attention to the seriousness of trafficking in a drug of dependence and the importance of general deterrence as a sentencing consideration in cases of this kind.

35 His Honour made specific reference to the various mitigating factors present , including the appellant's plea of guilty and the stage at which it was entered, accepting that it indicated remorse. He addressed the appellant's background and personal circumstances and treated him as a person of previous good character. He made reference to the difficulties that Reed had experienced since the commission of the offences and his endeavours to rehabilitate himself, concluding that this appellant's prospects of rehabilitation were very good.

36 I am unable to detect any error in his Honour's approach to the sentencing of either of the appellants and the sentences themselves are well within the range of

those available in the proper exercise of the sentencing discretion.

37 It follows that these appeals should be dismissed.

38 I agree with Vincent JA, for the reasons he has given, that the appeals should be dismissed.

39 I agree, for the reasons given by Vincent JA, that the appeals should be dismissed.

[1] A trafficable quantity of pseudoephedrine is 100 grams.

[2] Sentence T132-133.

[3] [2006] VSCA 185. See also R v Yacoub [2006] VSCA 203, R v Duncan [2006] VSCA 239.

[4] [2006] VSCA 185 at [62]-[63].

[5] [2006] VSCA 237.

[6] It must also be borne in mind that the sentences under consideration here were imposed before judgment was delivered in Pidoto and O'Dea and at a time when such assessments were regularly made by sentencing judges.

[7] [2006] VSCA 273 at [56]

[8] (1983) 9 A Crim R 30.

[9] (1983) 9 A Crim R 30 at 34-35.

[10] Their respective versions, I should mention, were not identical and, in some aspects, did not assist the other.

[11] Sentence T135.

[12] Sentence T134-135.

[13] Sentence T136-138.

[14] [2007] VSCA 36 at [33].

[15] (1998) 194 CLR 610 at 623 per McHugh, Hayne and Callinan JJ.

[16] Sentence T132.