R v Ritter [2000] VSCA 135

Court of Appeal (Vic)|2000-07-19|Before: PHILLIPS, CHARLES and BUCHANAN, JJ.A.

Criminal law - Sentencing - Trafficking in heroin - Co-offenders - Co-operation with prosecuting authorities - Guilty plea - Parity principle - Effect on sentencing disposition.

I will ask Charles, J.A. to deliver the first judgment.

On 9 September 1999 the appellant pleaded guilty to count 2 and a plea was heard. The appellant admitted 29 previous convictions from 14 court appearances between 9 January 1974 and 3 April 1997. They included convictions for larceny of a motor car, two charges of assaulting police, obtaining a financial advantage by deception, recklessly causing injury, making a false report to police, wilful damage and possession of a drug of dependence. The appellant is now aged 43. During the plea, two witnesses were called on behalf of the appellant, Detective Senior Constable Martin Wilde and James Richard Pollard. On 15 September 1999 the appellant was sentenced on count 2 to be imprisoned for three years, the judge fixing a non-parole period of 18 months.

On 8 September 1999 Van Dung Hong pleaded guilty to count 1 on the same presentment and admitted four previous convictions from two court appearances on 3 March and 21 April 1994. A plea was heard and two witnesses, Than Son Nguyen and Bernard John Healey, were called on his behalf. On 15 September 1999 the judge (who had also sentenced the appellant) sentenced Hong to be imprisoned on count 1 for three years and also fixed a non-parole period of 18 months.

On 14 March 2000 the appellant made application under s.582 of the Crimes Act 1958, and the President granted leave to appeal against sentence.

The appellant now appeals on the grounds, first, that the sentence was manifestly excessive, secondly that the judge erred by failing to take into account or give appropriate weight to relevant circumstances in relation to the conduct of the appellant both prior and subsequent to the commission of the offence, and thirdly that the judge erred in that he failed to apply the principle of parity when sentencing the appellant and the co-accused.

The facts giving rise to these offences were as follows. Between 1 June 1998 and 1 October 1998 the Victoria Police Drug Squad conducted a covert operation centred upon a drug trafficker, Justin Clive Rodda, who then resided with the appellant at 22 Belford Road, Kew East. The appellant was identified as an active trafficker of drugs of dependence and became the subject of further investigation. These premises were in fact owned by the appellant's mother, Mrs Elizabeth Ritter. He shared them with his de facto wife, Shannon McNamara, who had pleaded guilty on 7 June 1999 in the Magistrates' Court at Melbourne to two charges of using a drug of dependence (heroin) and a second charge of using a drug of dependence (cocaine). Upon those charges being found proven the further hearing of the matter was adjourned to 7 June 2000. McNamara was released without conviction upon entering into an undertaking to be of good behaviour and was ordered to pay $100 into the court fund.

The premises at 22 Belford Road were used as the principal location for the appellant's drug-trafficking activities. From 6 July 1998 until 29 September 1998 the police intercepted the appellant's home telephone number and evidence obtained by this means established that he actively engaged in the sale and distribution of cocaine and heroin. The material established that he had a large network of suppliers of drugs and of purchasers of drugs either for distribution or for personal use. Over the three-month period of monitoring of the appellant's telephone, he dealt with in excess of 50 persons to whom he supplied heroin and/or cocaine.

The total amount of heroin sold over the relevant period by the appellant was not more than 50 grams and the total amount of cocaine was not more than 14 grams. Heroin was sold by him to various customers in amounts of not less than a quarter of a gram and up to three grams. A quarter of a gram of heroin would be sold for approximately $130, half a gram for $250 and one gram for $450. Cocaine was sold less frequently for approximately $250 a gram.

The appellant said that he and McNamara were very heavy users of heroin and they spent approximately $2,000 per week to support their habit.

On 1 October 1998 a search warrant was executed on the premises at 22 Belford Road, McNamara being there at the time. When the premises were searched, numerous hypodermic syringes, armbands and empty snap-seal plastic bags were found. Also found were two notebooks containing the telephone numbers of the appellant's associates, including customers and suppliers, whose telephone calls with the appellant had been intercepted. The notebooks also contained records of persons' names and of amounts owing for drug purchases. The appellant and McNamara were conveyed to the Drug Squad offices and interviewed and at the time the appellant answered "no comment" to relevant questioning.

The Crown case against the co-accused Hong was that between 1 July and 2 October 1998 he sold heroin to the appellant. In that time the co-offender had approximately 143 telephone calls to the appellant or McNamara relating to the delivery of drugs. On 2 October officers of the Drug Squad conducted a search of Hong's car. Located in the driver's side door compartment were 23 deal bags of heroin and one larger plastic bag containing a quarter of an ounce of heroin. A subsequent search of Hong's house led to the discovery of another plastic container containing half an ounce of heroin. In total 22.16 grams of heroin were found in Hong's possession with a purity of 70 to 80%.

A significant element of the plea on behalf of the appellant before the sentencing judge was the evidence of Detective Senior Constable Wilde. Wilde said that the appellant had been entirely co-operative with the police once he had been detained and then gave evidence of information and assistance that the appellant had given the police thereafter. That evidence was that the information the appellant had given had uncovered large-scale drug dealing, leading to there being then some eleven people in custody in consequence of those investigations and an estimated street value of half a million dollars in drugs having been seized. The appellant's involvement was said to have been an essential part in these operations and the appellant had voluntarily placed himself in life-threatening situations in doing so.

In support of the submission that the judge failed to apply the principle of parity as between the appellant and the co-offender, Mr Dealehr, for the appellant, submitted that the fact that both the appellant and the co-accused had been given the same sentence resulted in manifest disparity engendering a justifiable sense of grievance on the part of the appellant, the disparity giving the appearance in the mind of an objective observer that justice had not been done. Reliance was placed on Lowe v. The Queen[1]; and R. v. Taudevin[2]. It was submitted that the judge had placed too much emphasis on the appellant's prior convictions in sentencing him to the same term of imprisonment as his supplier, the co-accused. Taking into account the need to make a suitable adjustment for the objective seriousness of their participation and their subjective circumstances, it was submitted that the personal circumstances of the appellant were markedly different to those of the co-accused.

In support of the other ground Mr Dealehr submitted that the judge had given insufficient weight to the co-operation and assistance given by the appellant to the police as a mitigating factor. The appellant, through the evidence of Detective Wilde, had established on the balance of probabilities the nature and value of the assistance he had given to the police. It was submitted that unreserved assistance to police calls for a significant sentencing discount; R. v. Duncan[3]; R. v. Tuhi[4]. In sentencing reasons the judge said he had taken into consideration the need for a discount, but nevertheless imposed an identical sentence upon the appellant and the co-accused, notwithstanding that the co-accused gave no assistance to the police, nor indeed initially accepted the charges against him. In a very helpful report to the Court, the sentencing judge confirmed that he had given a considerable discount for the information and assistance the appellant had provided to the police in other matters and that this was reflected in the sentence imposed with the court having taken into account the principle of parity.

It is well-established that where a prisoner has given assistance to the prosecuting authorities this factor is to be weighed in favour of leniency. The authorities are set out in R. v. Rostom[5]. As Callaway, J.A. said in Duncan[6], significant assistance to the authorities will usually justify some mitigation of punishment, and in appropriate circumstances the discount for assistance may be very considerable indeed. As Hampel, A.J.A. said in Tuhi[7], such discounts are particularly important in cases where significant assistance is given to the police in the investigation and prosecution of drug cases. See also per Batt, J.A. in Tuhi[8]. The assistance given in the present case was, on the evidence of Detective Wilde, unquestionably significant and given by the appellant at considerable personal risk to himself. Moreover the consequences of the assistance he gave were themselves considerable and indeed may well have been such as now to warrant his serving any sentence imposed in protective custody. It must follow from the judge's reasoning that the sentence he would have imposed on the appellant, absent a discount for assisting the authorities, would have been significantly more severe than that imposed on the co-offender.

In this Court, Mr Ryan for the Crown, in a submission that was characteristically fair, put it that having regard to the issue of parity and the assistance given by the appellant to the police, it was hard to see that the findings made by the judge were reflected in the sentence which was imposed upon the appellant. Mr Ryan reminded us that the co-offender was higher in the scale of distribution of drugs than the appellant. Ordinarily the closer a trafficker is to the source of the drugs, the more serious the offence. Having regard to the fact that the co-offender was dealing for profit, it would in his submission have been an error for the judge to have taken as a starting point before discounting, a sentence that was higher than Hong's. Mr Ryan accepted that the assistance given by the appellant plainly justified a very substantial discount. If the judge had taken as the starting point a head sentence of, say, four-and-a-half years, that would, he submitted, have been a very stern sentence indeed for an addicted street-level trafficker, dealing in the comparatively small quantities proved to have been trafficked by this appellant.

The sentence imposed by the judge on the co-offender was, in my view, lenient for the very serious offence of trafficking in heroin. Putting to one side the assistance given to prosecuting authorities, there was, I think, little difference in the culpability of the offenders when viewed in the light of their personal circumstances. The appellant had a substantial number of prior convictions (though none for trafficking in drugs), and his record showed some contempt for the law. He had engaged in trafficking in heroin for three months, and also in cocaine which he had not obtained from the co-offender, to some 50 drug users. He and his partner were both using heroin, and his trafficking was conducted to enable them to do so. The appellant had pleaded guilty, and at an early stage, but in his initial interview with the police he made "no comment" answers to police questioning. The co-offender also had some prior convictions, none relevant to drugs. He was sentenced on the basis that he was supplying only to the appellant, although the judge plainly had doubts on this issue having regard to the quantity of heroin found in his possession. The co-offender was higher in the distribution chain than the appellant, he did not himself use heroin, and his offence was committed purely for profit. The co-offender also pleaded guilty, although much later than the appellant.

In all the circumstances I am compelled to the conclusion, having regard to the penalty imposed on the co-offender and the argument of parity, that the findings made by his Honour, particularly in relation to assistance given, are insufficiently reflected in the sentence imposed and that the appeal must be allowed.

I would allow the appeal and re-sentence the appellant to two years' imprisonment. I would fix a non-parole period of 12 months.

This case plainly should not be taken as a precedent for the sentences appropriate to be imposed on those trafficking in heroin or cocaine.

I agree. As I see it, the result in this case is driven by considerations of parity. The sentence imposed on Hong may well have been lenient, but, when parity is invoked, that other sentence is then the touchstone against which we must weigh the sentence of the appellant. As Mason, J. said in Lowe[9]:

"It [the correct principle to be applied] is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate."

I do not say that the sentence now proposed in this case must be regarded as inadequate. I refer to Lowe, and, indeed, to Postiglione[10], to explain why I too think that this case cannot be regarded as any useful precedent.

The sentence imposed in the County Court on 15 September 1999 is set aside and in lieu the appellant is sentenced on the count charged to two years' imprisonment, 12 months of which is to be served before the appellant becomes eligible for parole.

It is declared that the period of 323 days be reckoned as having been served to this day, 19 July 2000, under the foregoing sentence. It is directed that the making of that declaration and its details be noted in the records of the Court.

[4] unreported, Court of Appeal, 30 October 1997.

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