R v Semaan [2003] VSCA 163

5. After a plea was made on behalf of the applicant, he was sentenced to be imprisoned for a term of ten years on count 1, a term of eight years on count 2 and a term of two years on count 3. Two years of the sentence on count 2 were cumulated on the sentence on count 1, producing a total effective sentence of 12 years' imprisonment. A non-parole period of nine years was fixed. The sentencing judge subsequently ordered the applicant to pay a pecuniary penalty in the sum of $282,228.

8. The applicant sought leave to appeal against the sentence and the pecuniary penalty order. The latter application has now been abandoned.

11. The Crown case was based upon the evidence of a woman who commenced to live with the applicant in July 2000 and some of the applicant's customers, together with intercepted telephone conversations and police surveillance, which were the product of a covert operation which began in January 2001. The applicant was arrested on 20 March 2001.

14. The applicant conducted a wholesale business selling ecstasy, amphetamine and ketamine. The scale of the business was significant. Matters which indicated the size of the business included the sale of drugs worth between $20,000 and $25,000 over a period of three months by one customer of the applicant, the regular supply by the applicant to another customer of up to 200 ecstasy tablets at a time, a large number of recorded conversations evidencing sales of drugs over a period of days, and agreements to sell to an undercover policeman drugs for between $15,000 and $76,000. The police estimated that the street value of the drugs which the applicant agreed to sell to the undercover policeman and sold to others in transactions detected by electronic surveillance and intercepted telephone conversations as between $486,000 and $608,000. The applicant and his partner lived well on the proceeds of his trafficking.

17. The applicant is now 28 years of age. He comes from a very large family. He left school at the beginning of Year 7 and worked for approximately four years in his brother's fruit store, for 18 months as a floor sander and has also worked in a fast food restaurant, as a panel-beater and a general labourer. The applicant began using cannabis at the age of 11 years and amphetamine at the age of 13 years. The applicant had 13 prior convictions from seven court appearances. The convictions included offences involving violence and dishonesty.

20. There were a large number of grounds of the application for leave to appeal. The notice of application was drawn up by the applicant. Counsel for the applicant did not pursue certain of the grounds and, in my view, properly treated others as a re-statement of earlier grounds.

23. The applicant made a "no comment" record of interview. He reserved his plea at the committal and pleaded guilty when he was arraigned in the County Court. Despite the strength of the Crown case, the pleas did merit a discount. Although the sentencing judge said that he discounted the sentence he would otherwise have imposed by reason of his plea of guilty, counsel for the applicant submitted that he could not have done so having regard to the length of the sentence which he did impose. The submission requires a conclusion that the sentence was manifestly excessive having regard, inter alia, to the pleas of guilty.

26. The offence of trafficking in a commercial quantity of a drug of dependence was punishable by a maximum sentence of 25 years' imprisonment. The maximum sentence for trafficking in a drug of dependence was 15 years' imprisonment. There can be no doubt that the applicant was engaged in a major operation of wholesale dealing in drugs. The Crown was able to make an estimate of the street value of part of that trade. Its estimate was necessarily limited to the short period during which the police monitored the applicant's activities. He carried on the business for some six months before the covert operation and the monitoring took place. Having regard to the well known blighting effects upon the community of drugs, a factor reflected in the maximum sentences fixed by Parliament for offences of trafficking, and the scale of the applicant's trade, I do not regard a head sentence of 12 years' imprisonment or the individual sentences on each count as sentences which demonstrate a failure to take the pleas of guilty into account. I think they were within the range available to the sentencing judge after due weight was given to the pleas of guilty.

29. In the course of the plea considerable emphasis was placed on the applicant's mental condition. It was submitted to the sentencing judge that the applicant suffered from a psychotic illness which reduced the applicant's moral culpability and rendered the objectives of specific and general deterrence of less significance. See R. v. Tsiaras[1].

32. The applicant's illness was diagnosed by a psychiatrist, Dr Walton. Dr Walton recounted a history of drug and alcohol abuse, paranoid delusions and hallucinations and a suicide attempt, which had led to the applicant's admission to the Early Psychosis Prevention and Intervention Centre, where a diagnosis of "schiziform disorder, cannabis use and anti-social personality traits" was made. Dr Walton found it difficult to choose between a diagnosis of schizophrenia complicated by drug abuse and a diagnosis of drug-induced psychosis. He noted that the applicant had enjoyed "a comprehensive reversal of his symptoms, which would be unusual in schizophrenia". He said:

"Indications are that this man is suffering from a medication-responsive psychotic illness and clearly whether or not he remains drug-free is also highly significant regarding his mental health in the future."

Dr Walton said that at this stage the applicant had been restored to normal mental health, although he did say that the applicant had been afflicted by a major psychotic illness "which might be seen as having some relevance in respect of general deterrent aspects of sentencing".

37. The sentencing judge said that he was satisfied that the applicant was not psychotic at the time he committed the offences, and that his trafficking was undertaken for financial and personal gain and not dictated by paranoia. His Honour said:

"You do not present before the Court with a psychiatric illness of sufficient seriousness to warrant reduction of sentences otherwise appropriate on such account."

41. Counsel for the applicant pointed out that the prosecutor in the course of the plea did not dispute that the applicant had exhibited psychotic behaviour and submitted that it was not open to the sentencing judge to rule that the applicant's mental state should not reduce the sentences. I do not agree. A diagnosis of psychosis does not entail an absence or reduction of moral culpability or necessarily require moderation of the aims of personal and general deterrence. R. v. Tsiaras is not to be construed to produce such a result. The mental illness which is relevant to sentencing is one which has one or more of the effects described by the Court in that case. In the present case, the sentencing judge analysed the medical evidence and the evidence of the conduct of the applicant. That evidence disclosed that the business conducted by the applicant required rapid decision-making and no small degree of organisation and co-ordination. The applicant apparently dealt with the needs of that business calmly and competently. The effects of the applicant's psychosis were intermittent and were obviously related to his ingestion of drugs. The psychosis had not played a part in the offending conduct, according to the sentencing judge, and did not affect the applicant at the time of sentencing. In my opinion, his Honour was entitled to reject the submission that the applicant's mental condition required lesser sentences than otherwise would have been appropriate.

44. A further argument advanced on behalf of the applicant was that as the applicant sold three types of drugs, all in tablet form, his offending was to be properly characterized as a single multifaceted course of conduct, which should have led to the result that the individual sentences imposed on each count would be wholly concurrent with the other sentences, and the sentencing judge erred in directing that there was to be partial cumulation in respect of the sentences imposed on counts 1 and 2.

47. In my view, the sentencing judge was not required to make the sentences concurrent. The effects and potency of each of the drugs differed. They represented discrete sections of the applicant's business. The question is rather whether the cumulation ordered by the sentencing judge resulted in an overall sentence which infringed the principle of totality. For the reasons I have stated, I am of the opinion that the sentence was not beyond the range of sentences that appropriately reflected the circumstances of the offending, which was serious indeed, and the applicant's character, antecedents and future prospects.

50. 16 In his oral submissions today, counsel for the applicant emphasised the eight-year sentence imposed in respect of count 2, which concerned methylamphetamine. Counsel added up the quantities of methylamphetamine which were identified as such in the evidence, and said that the total simply did not warrant eight years' imprisonment. It is not to be forgotten, however, that the applicant pleaded guilty to trafficking in a commercial quantity of methylamphetamine. The evidence disclosed a high-volume business. Methylamphetamine was traded separately and formed part of the mixture of elements that constituted the ecstasy tablets that were traded. The evidence simply did not permit the extraction of precise quantities of each drug. In those circumstances, I do not regard eight years, against a maximum of 25 years, as manifestly excessive.

53. Counsel for the applicant submitted that the applicant's prospects of rehabilitation were reasonable. Dr Walton said that "his rehabilitation [was] already in hand". Mr Holdenson said that the sentence, and in particular the non-parole period, did not take account of the applicant's prospects of rehabilitation. Even having regard to Dr Walton's opinion, I consider that the applicant's history, the circumstances of the offending and the relationship between that offending and his use of drugs rendered his rehabilitation far from a foregone conclusion. I think that the sentence and the non-parole period were both appropriate.

56. In my view, Mr Holdenson has said all that can be said on behalf of the applicant. Notwithstanding his able and comprehensive submissions, I do not consider that it has been demonstrated that the sentencing judge erred. I would refuse the application.

60. I agree that this application should be refused. I do so for the reasons advanced by the learned presiding judge. Specifically, I endorse the comments that he has made with respect to the approach to be adopted to the evidence that at one stage the applicant was subject to a psychotic illness. The learned sentencing judge found, as he was entitled to do, that the criminal conduct of the applicant was in no way brought about or influenced by the presence of any such illness. There was no suggestion that the applicant was other than psychiatrically normal at the time of sentence. Nor was there any material before his Honour which indicated that his period of incarceration might in some way be rendered more difficult by the presence of any such illness.

64. I also agree with the analysis of the learned presiding judge and with his conclusions.

The application for leave to appeal against sentence is refused.

[1] [1996] VicRp 26; [1996] 1 V.R. 398 at 400.