R v Spagnolo [2000] VSCA 126

9. The appellant was granted leave to appeal against sentence on 20th March 2000. It is only the sentence imposed on count 1 of which complaint is made. The maximum custodial penalty for the offence the subject of that count was 15 years' imprisonment.[1]

4 The grounds of appeal were amended by order of the Registrar made on 17th March 2000. The first three grounds are:

1. That the learned sentencing judge imposed a sentence which is manifestly excessive in all the circumstances.

2. That his Honour erred in failing to place any, or any sufficient, weight on -

(b) the hardship that would be caused by the appellant's imprisonment; and

3. That his Honour erred in finding that there were not exceptional circumstances relating to the hardship that the incarceration of the appellant would cause to his parents.

19. Ground 3 was not pursued, but Mr Tehan said that ground 2(b) was to be understood as encompassing a contention that insufficient weight was given to the hardship that the appellant's incarceration would cause his parents. At the time of sentence his mother was 76 and suffering major heart problems. His father was 82, paralysed as the result of a stroke and affected by a speech impediment and senility. It was said on the plea that they were solely dependent on the appellant, but I observe that they have two adult grandsons living nearby.

22. Ground 4 is to the effect that there is new material relating to the ill health of the appellant which places in a different light a matter the subject of evidence and submissions below and warrants appellate intervention. The new material consists of two affidavits, one sworn by Dr Eugenie Tuck, the Director of Medical Services at Port Phillip Prison, and the other by Dr Lefkovits, a consultant physician from Cabrini Medical Centre. I shall refer to them in more detail later.

25. As part of a police operation that began in June 1998 a covert operative visited the appellant's home in Deer Park on 30th September, 8th October and 15th October of that year. On each occasion she posed as a drug dealer from the country and purchased quantities of amphetamine from the appellant. (It is so described in the appeal book despite the specification of methyl-amphetamine in the presentment.) Her access to him was facilitated by a person referred to in the materials as "Daryl". Rather than summarise further I shall set out the judge's description of what happened on each occasion, including his Honour's comments:

"On the occasion of the first sale to the operative you provided her with two bags of powder in exchange for $200 cash. Those two bags contained 3.42 and 3.5 grams of amphetamines respectively and which are said to have been analysed as being at 3 per cent purity. On the second visit on 8 October 1998, the operative enquired of you as to the availability of product of a greater purity. According to her statement in the materials, which was not challenged before me, you left the room and returned with a small plastic jar containing three or four small 'deal' bags containing powder, which you asserted was 95 per cent pure. Again, according to her statement, there ensued a conversation about the degree to which the product could be 'cut'. Pausing there, I was not directed to any evidence which suggested you yourself were involved in what are called 'cutting' operations. However, the conversation I have referred to suggests to me that you, apart from plain dealing, were a merchant, knowledgeable about your product. On this occasion the operative purchased for $600 six bags of the lesser purity drug, indicating that she would return the following week for a purchase of the higher quality drug. You then gave her a mobile telephone number to facilitate direct contact if necessary without the medium of 'Daryl'. That fact again bespeaks an intention to further your role as a dealer. On the third occasion, on 15 October 1998, upon arrival at your house in company with 'Daryl', the operative told you that she was after a bag of good stuff. You then led her to the back yard, and from what she described as a bird type cage, you retrieved a plastic bag of white powder which you described as the 'pure stuff'. She paid you $700 for that bag which, upon analysis, was found to contain 3.34 grams of 25 per cent pure amphetamine. You indicated that she should ring you for further supplies later. On 27 October 1998 police raided your home. In one of your shoes that you were then wearing, there was located a small bag of powder, amphetamine. In the cage previously referred to and hidden in bags or drums of feed, were located two jars containing plastic bags in which were quantities of powder. Analysis showed that the contents were 24.2 grams of amphetamine of an average purity of 25 per cent. Upon being questioned by police as to the origins and contents of the jars you denied any knowledge of them at the scene. That of course was a false denial. Also discovered at your home on this raid was a quantity of cannabis seeds. They were hidden in a book and are the subject of Count 2. Amongst a quantity of firearms found on the premises, some of which were said to belong to other members of your family, was located an air rifle which is the subject of Count 3. By reason of prior convictions for being in possession of a prescribed weapon and an unregistered pistol, you were a prohibited person under the Firearms Act. Obviously the air rifle was not registered and it was said to have been an old one about which you had given no thought, particularly as it was unusable."

Counsel will observe that I have said nothing about the large amount of cash found on the premises. Rightly or wrongly, I have followed the same counsel of prudence as the judge and ignored it, as it is the subject of unresolved proceedings in the Magistrates' Court.

30. In the light of the foregoing it will be more readily understood that count 1 was a "between dates" count alleging that the appellant was engaged in trafficking between 30th September and 27th October 1998.

33. Mr Tehan did not abandon ground 1 or 2. He collected in his written outline everything that could sensibly be said in support of them. In oral argument he particularly elaborated a submission to the effect that, although this was a serious offence, the character of the trafficking was limited to three sales of relatively small quantities, together with the 24.2 grams discovered in the two jars. To my mind it is clear that the judge took into account the matters specifically referred to in ground 2 and gave them appropriate weight. On the material before his Honour in November last year there was, in my view, no error in the sentence and it is not manifestly excessive.

36. I turn to ground 4, which counsel conceded was the main ground of appeal. So far as the applicable law is concerned, it is sufficient for present purposes to refer to the following passage in R. v. W.E.F.[2] Winneke, P. said:

"The court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence."

His Honour then referred to a number of authorities. Later cases in this Court include R. v. D.H.M.[3], R. v. Zehir[4] and R. v. Ngo[5].

41. We were not asked, under cover of this ground, to reduce the head sentence but only the non-parole period. That is the course that was taken by the South Australian Court of Criminal Appeal in R. v. Smith[6] and by this Court in R. v. Nora Morgan[7]. Before we can accede to that invitation the evidence must, however, be shown to be admissible.

44. Dr Tuck deposes that the appellant was admitted to St Vincent's Hospital on 20th March 2000 with uncontrolled hypertension. He was discharged five days later and admitted to St John's, the in-patient unit of St Vincent's Correctional Health Service at Port Phillip Prison. In the days that followed his blood pressure was consistently elevated and his medication was increased. His case was reviewed by a consultant physician (not the deponent of the other affidavit), who found evidence of end organ damage resulting from hypertension. Dr Tuck refers to further increases in the appellant's medication, the details of which are set out. She concludes by saying that on 17th April 2000 the appellant's blood pressure was 160/100, that he has severe hypertension, that his blood pressure is difficult to control, that he has evidence of end organ damage and that he is required to take maximal doses of hypertensive medication.

47. Dr Lefkovits deposes that the appellant was referred to him by his general practitioner, Dr Moussa, in February 1999. At that time his blood pressure was 140/100 and, in the deponent's words, was "reasonably controlled" on two tablets per day. (That accords with the evidence Dr Moussa gave on the plea.) Dr Lefkovits further deposes that on 20th March 2000 he conducted a further examination of the appellant, who complained of headaches, chest pains, numbness in the legs and shortness of breath. At that time his blood pressure was consistently above 200/120, a state of affairs of sufficient concern to lead to an increase in his daily dosage from two to eleven tablets. Dr Lefkovits then refers to the evidence he gave on the application for leave to appeal to the effect that the appellant was at high risk of heart attack, stroke or sudden death and should immediately be hospitalised. As we know from Dr Tuck's affidavit, the appellant was admitted to hospital on that day. Dr Lefkovits reviewed the appellant on 7th April 2000 at Port Phillip Prison and found him to be suffering from left chest pains, dizziness, severe frontal headache, nausea, poor appetite and some shortness of breath and on moderate exertion. His blood pressure was 190/140. In Dr Levkovits's opinion, the appellant's blood pressure is readily controllable out of the prison environment. The medications that he is taking cause severe side effects but are not yet controlling his blood pressure to any significant degree. Dr Lefkovits expresses the opinion that prison is more burdensome for the appellant because, by reason of his severe hypertension, he is unable to engage in normal activities, being confined to a ward for four patients as the result of his illness. That is perhaps more a matter of submission than expert opinion, but the same may not be said of the concluding paragraph of his affidavit, which I shall read:

"10. That in my opinion the [appellant] will never have controlled blood pressure in the prison environment. Further, should he stay in prison for the full 18 months [sic] he has a very high risk of stroke, heart attack or sudden death despite his multiple medications. In my opinion he will remain symptomatic and suffer multiple side effects as it will be incumbent on the prison medical staff to push the anti-hypertensive agents in light of his uncontrolled blood pressure."

51. The position disclosed by those two affidavits is in striking contrast with the appellant's medical condition as it was understood at the time of sentence. Dr Moussa, the general practitioner to whom I have referred, gave evidence that the appellant's blood pressure had recently been under control through medication. He gave the impression that it was not a serious problem and acknowledged in cross-examination that it was a common problem. Against that background and the submissions made on the plea, it is not surprising that the judge said this in the course of his sentencing remarks:

"[Dr Moussa] testified to your high blood pressure condition existing since 1984 and the problem with high cholesterol levels, which make you, at least statistically, at risk of suffering heart disease. The former two conditions are controlled by medication. For present purposes I do not think that, other than taking them into account in the sentencing procedure, they are of such gravity as warranting any special significance."

55. In his written outline of submissions Mr Hicks said that, whilst it was a matter ultimately for the Court, the respondent did not object to our receiving the affidavits of Dr Tuck and Dr Lefkovits, but that what was said to be the very volatile nature of high blood pressure was something that the judge would no doubt have taken into account. Questions from the Bench dispelled the apparent tension between those two statements. The respondent's position was that the material was admissible in accordance with the authorities to which I have earlier referred, but that the appellant's hypertension had already been factored into the sentence. It appeared to have arisen as a result of his incarceration and that was a possibility which, counsel submitted, his Honour would have had in mind. I think that that submission is difficult to sustain in the light of the passage in the sentencing remarks that I have just read.

58. The evidence we are asked to receive does throw a very different light on circumstances which existed at the time of sentence and were the subject of evidence and submission on the plea. Not every change in circumstances will justify the reception of new evidence. It has often been said that such evidence is sparingly received by a court of criminal appeal. In R. v. Zehir there had not, for example, been such a deterioration in that applicant's hypertensive condition as to warrant the reception of the proffered medical evidence[8]. In this case, however, in my opinion, the position advised is of sufficient gravity and significance for sentencing to make the medical information and opinions expressed in the affidavits admissible. I would, therefore, receive them on that basis, allow the appeal and accede to the appellant's request to re-fix his non-parole period.

61. In doing so I bear in mind what King, C.J. said in R. v. Smith[9]:

"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

65. Both the factors to which his Honour referred at the end of that passage are present here, but the leniency that can be extended must take into account all the relevant circumstances, including the seriousness of the offence[10]. Weighing up all these matters, I propose that we substitute a non-parole period of 15 months for the period of two years fixed by the judge.

69. I agree, and I desire to add the following. In this matter there was evidence that a large sum of money, to the order of $190,000 according to the

court summary, was found in the appellant's premises during the police raid on 27 October 1998. The Crown did not make an application touching this money to the sentencing judge pursuant to s.32 of the Confiscation Act 1997. On the plea the judge was told by counsel that with respect to this money, or part of it, the Crown had instituted summary proceedings, contested and as yet unresolved, in the Magistrates' Court. Counsel appear to have been jointly of the view that this circumstance shut out the judge from consideration of the money and its origins in the composition of a sentence for the appellant. This Court has been informed that the Crown view may be connected to its reliance on three specified sales in relatively low amounts by way of the prosecution of count 1. I must be circumspect in what I now say, because we have not heard from those concerned, but I would beg to doubt the correctness of the Crown's position. The learned judge thought the situation presented to him in this respect was unsatisfactory and protested it in his reasons for sentence. However, in the light of the indication by Mr Hicks for the Crown that he will make a report to the Director of Public Prosecutions so as to ensure that this situation is not repeated unless particular circumstances compel it, I will say no more as to this matter.

74. I also agree that, for the reasons given by Callaway, J.A., the appeal should be allowed and the appellant be re-sentenced as proposed by his Honour.

77. I merely wish to add, in relation to the principal point that was argued, that it may be said that the appellant's evidence does not deal directly with whether, and if so how, the prison environment was a material cause of his serious medical condition as that was disclosed by the new evidence. Nevertheless, it seems clear enough that the seriousness of his medical condition was not known to the learned sentencing judge and that it will result in imprisonment being a materially greater burden on the appellant than was contemplated by his Honour. In all the circumstances, this warrants the reduction of the non-parole period as proposed by Callaway, J.A.

84. The appeal is allowed. The sentence imposed on the appellant in the court below is set aside as to part. In lieu of the non-parole period there fixed, the Court fixes a non-parole period of 15 months. The said sentence is otherwise confirmed.

87. The Court declares that the period of 222 days is the period of pre-sentence detention already served by the appellant as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.

[1] Drugs, Poisons and Controlled Substances Act 1981, s.71(1)(b).

[2] [1998] 2 V.R. 385 at 388-9.

[3] [1998] VSCA 11.

[4] [1998] VSCA 119; (1998) 104 A.Crim.R. 109.

[5] [1999] VSCA 222, especially at [57].

[6] (1987) 44 S.A.S.R. 587 at 590.

[7] (1996) 87 A.Crim.R. 104 at 108.

[10] See, for example, R. v. Bailey (1988) 35 A.Crim.R.458 at 463.