R v Starr & Smith [2002] VSCA 180

15. After hearing pleas in mitigation, the learned sentencing judge sentenced both offenders to be imprisoned for four years, with a minimum period of two years and nine months to be served before being eligible for parole.

18. By notice of application for leave to appeal dated 24 April, 2002, filed out of

time, Starr sought leave of this Court to appeal against the sentence imposed. Smith sought similarly by notice dated 12 April, 2002. Leave to appeal was granted to both applicants by Winneke P, pursuant to s.582 of the Crimes Act 1958 on 26 July, 2002.

22. Starr initially specified four grounds of appeal:

1. That the sentencing judge erred in giving insufficient weight to the plea of guilty and the early plea.

2. That the judge took an irrelevant circumstance into account, namely the early plea of guilty was only entered for a "forensic reason" in relation to the conspiracy to murder count.

3. That the judge erred in failing to give adequate weight to remorse.

4. That in all the circumstances, the sentence imposed was manifestly excessive.

The Registrar granted Starr leave to amend the grounds by substituting the following grounds:

1. That the sentencing judge erred in applying too narrow a test for evidence of remorse.

2. That the sentencing judge erred in giving no, or no adequate weight to remorse.

3. That the sentencing judge erred in giving insufficient weight to the plea of guilty, and the early entry of the plea.

4. That the sentencing judge erred in finding the appellant's motive was driven by greed not need.

5. That in all the circumstances the sentence imposed was manifestly excessive.

35. Smith appealed on the ground that the sentencing judge imposed a sentence which, in all the circumstances, was manifestly excessive.

38. Before dealing with these grounds, I shall set out briefly the circumstances giving rise to the offences.

41. The trafficking offences, the subject of these appeals, came to the notice of the Victoria Police when, early in 2000, they conducted an investigation into the activities of the appellants. The trafficking related to the drugs commonly referred to as amphetamine, ecstasy and cannabis. As part of the investigation, which took place over a two month period, the police utilised undercover operatives and authorised telephone intercepts in order to determine the extent of the appellants' drug activities.

44. During the investigation, police ascertained that in March 2000 Starr had sold amphetamine to one Jamin Miller and had recruited one James Davis to sell amphetamine in Mildura. In about April, Starr supplied cannabis to one Sharon Price.

47. On 1 April 2000, police covert operatives "Alex" and "Di" first arranged to purchase a gram of amphetamine from Starr via a third party for an agreed price of around $200-$250. On 12 April, they arranged to purchase a further $500 worth of amphetamine from Starr via the same third party, but only one gram was supplied for a price of $250. In early 2000, an undercover police officer named "Alex" first made direct contact with Starr when he was painting a house at Patterson Lakes, in Melbourne. "Alex" arranged with Starr to purchase $500 worth of amphetamine and on 14 April 2000 the transaction took place at the Patterson Lakes shopping centre. As a result of that meeting, police made application for a warrant to intercept calls to and from the mobile phone from which Starr used for organising drug transactions. On 18 April, 2000, "Alex" again telephoned Starr inquiring about further purchases and prices. Starr told "Alex" that he could supply him with a ¼ ounce of amphetamine at the rate of $4,500 per ounce and told him that he would get more for his money if he purchased more. On 25 April, 2000, Starr telephoned "Alex" and advised him that he had a "big bag of amphetamine" for sale. "Alex" responded that he would have to check out the finances. On 28 April 2000, "Alex" again contacted Starr who agreed to sell him one ounce of amphetamines for between $4,000 and $4,500. During the course of conversations relating to that transaction, Starr identified himself, gave his date of birth and provided "Alex" with his bank account number into which "Alex" was to deposit the money for the amphetamine.

50. Police activation of telephone intercepts on 28 April 2000, revealed first, that Starr was involved in trafficking in amphetamines, cannabis and ecstasy and secondly, that he was working in association with Smith. Smith provided finance for Starr's activities and contacts with drug dealers and they were in regular telephone contact discussing drugs, prices, quality and quantities. Smith left Starr with approximately $7,500 to complete deals on their behalf involving the purchase of amphetamines and ecstasy tablets, in Melbourne.

53. In late April, 2000, when Smith and Starr were looking to purchase $3000-3500 of amphetamines they were introduced to one Andrew Tsoungarakis, of Coburg. Tsoungarakis was a "middle man" whom, as his Honour found, obtained his supply from somewhere further up the distribution chain. Upon Tsoungarkis providing a sample of amphetamine, which Starr tested by self-injection, the appellants agreed to purchase one ounce for $3,000. The following day, Starr took delivery of the appellants' purchase of half an ounce of amphetamine for $1,500; Smith, having returned to Mildura, was in telephone contact. The appellants then sought to purchase $2000 worth of ecstasy tablets and another half an ounce of amphetamine. Smith was contacted to finalise the deal and later that evening, Starr took delivery of the ecstasy tablets at the agreed price from one, George Theodorelos.

56. Police telephone intercepts on 2 and 3 May, 2000, revealed that a dispute between the appellants and Theodorelos had erupted over the quality of the ecstasy tablets. In an effort to placate Starr, Tsoungarakis handed over half an ounce of amphetamine belonging to Theodorelos. It was the prosecution's contention, however, that Starr sought further restitution for the poor quality tablets and that the appellants conspired together to formulate detailed plans to kill Theodorelos. Both appellants were acquitted by jury verdict on that Count.

59. On 3 May 2000, Smith paid Starr's airfare to Mildura to meet with "Alex" to sell him one ounce of amphetamines, a cocktail of the amphetamines purchased via Tsoungarakis and drugs already in Smith's possession. Starr also carried hidden on his person, a quantity of ecstasy tablets. Smith collected Starr upon his arrival in Mildura, and they then met with "Alex" in the Mildura RSL car park where they sold him the ounce of amphetamine for $4,000 cash. Later, Smith also sold "Alex" 25 ecstasy tablets for $700.

62. The appellants were apprehended by Special Operations Group Police on 4 May, 2000, in the car park of the Keilor Hotel on a pretext, which had been arranged by "Alex", to purchase a firearm.

65. During the plea, Starr did not dispute that during the period 1 march 2000 and 4 May 2000 he engaged in an ongoing commercial operation in drugs funded by Smith. Starr engaged in purchasing cannabis, ecstasy tablets and amphetamines from a middle man, Tsoungarakis, and on-selling to "Alex", Miller, Davis and Price. The quantities of the drugs involved in the eight week period is uncertain, but the turnover of the business involved thousands of dollars. Starr accounted to Smith at completion of each sale. Smith became the employer of Starr in about 1987 when he took over a painting and decorating apprenticeship into which Starr had entered upon leaving school.

68. At the time of the offending, Smith, resided with his wife and their two young children in Mildura. Smith had been raised and educated in the Mildura area and was the director of a painting and decorating business which he operated in partnership with his wife. The business employed up to eight people at any one time, one of whom was Starr. Starr had worked as a painter for Smith for approximately 12 years and was a very close associate of Smith. In his sentencing remarks his Honour noted that Smith had sought to convey to the Court an impression that the drug selling operation to which he pleaded guilty, had very limited scope and had been undertaken only as a response to particular financial problems faced by Starr. His Honour, who was the presiding judge at the trial of the conspiracy to murder count, found that Smith's knowledge of the drug culture displayed in the course of his evidence at the trial rendered this explanation somewhat disingenuous.

71. His Honour found that Starr and Smith should be treated equally for sentencing purposes, notwithstanding that Smith was older than Starr and was his employer. His Honour considered that any difference in their roles was compensated for by Starr's considerable criminal history as against Smith's unblemished record.

74. Two reports from Mr B. Healey, a clinical psychologist were relied upon by Starr. Starr told Healey that he developed an addiction to intravenous use of amphetamines in the eight months prior to his arrest and used cannabis, steroids, ephedrine, ecstasy and speed since he was 15 years old. Mr Healey considered that Starr was remorseful since he remained drug-free after his arrest, severed all ties with former associates and was focused on his family which included his common law wife and a son of the relationship.

77. Starr's sister, Mrs Cogan, testified during the plea as to his activities and behaviour since he was released on bail in December 2000 and up to November 2001 when he pleaded guilty. During this period, as a condition of his bail, Starr was required to live with Mrs Cogan. She said that Starr was free of drugs and had no association with people who bought or sold drugs and was remorseful for his conduct. Mr Mahoney, who conducted a painting business in Mildura said in evidence that he had a high regard for Starr's skills as a painter and would employ him upon his release from custody.

80. During the plea, Smith relied upon his unblemished record and good prospects of rehabilitation in seeking the imposition of a lower minimum term than would normally be imposed for drug offending. Smith's counsel was prepared to concede that both offenders were equally involved in the offending. He said it was a partnership in which they were equal partners, one providing the finance and the other the contacts in the drug industry. His Honour rejected this explanation which had been proffered during the trial of the conspiracy count when Smith gave evidence. The judge said the explanation was so unlikely as to defy belief. His Honour's finding should be upheld, in my opinion, since he had the distinct advantage of hearing the evidence of Smith during the trial.

83. In his sentencing remarks, his Honour made observations about remorse as a mitigating factor in relation to both Starr and Smith. Counsel for Starr submitted that the judge erred because he confined too narrowly the concept of remorse as a mitigating factor and as a consequence gave inadequate weight to remorse.

86. It is convenient, therefore, to proceed first to consider grounds 1 and 2 of Starr's amended grounds of appeal. The following passage in the sentencing remarks contains the alleged error:

"You each pleaded guilty to this offence at an early stage of the proceedings. Whilst it would not be unduly cynical to regard those pleas of guilty as convenient forensic responses to the more serious charge of conspiracy to murder which you were facing I am required by law to take the fact that you pleaded guilty into account as well as the time at which you did so in fixing your sentence. Your counsel urged me to consider those pleas of guilty as expressions of remorse. However, as I said in the course of your pleas, the concept of remorse as it might apply to offences against the person or even offences against the property of other citizens is somewhat more difficult to apply to an offence where the illegal activity engaged in is directed towards profit making from persons who, at the point of which a sale is made, appear to be willing, if misguided, participants. I would have thought that remorse with respect to drug dealing would need to involve an acceptance and acknowledgment of the devastation which drug distribution wreaks upon a community. The tenor of your evidence, Smith, did not convey any remorse of this type. Listening to it, one might have thought that you were describing the events which lead to your arrest as an unfortunate interruption to an otherwise appropriate course of commercial activity. Likewise, Starr, you have expressed no remorse in the sense in which I have described it. You will each be entitled only to any mitigation based upon remorse (if any) as is inherent in your pleas of guilty." (My emphasis.)

90. Mr Lindner for Starr submitted that remorse can be found not only in the plea of guilty, but also in post-offence conduct indicating sincere repentance or regret for what one has done. Unarguably, a plea of guilty is usually evidence of some remorse on the part of the offender and is ordinarily a matter to be taken into account in mitigation.[2] In the majority judgment of the High Court in Siganto, their Honours observed:

"It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence."[3]

An extended meaning of remorse is also found in Shannon[4] in the judgment of King, C.J.

95. True remorse or genuine regret for wrongdoing is capable of being expressed in more ways than simply pleading guilty and thereby admitting all the elements of the offence. It may be evidenced in appropriate circumstances by recompensing the victim for loss, injury or wrong. If recompensing the victim is voluntary, considerable weight could be given to the remorse shown. Turning away from crime and severing contact with criminal associates could evidence repentance or regret for what one has done in the past. An exhaustive list of matters would be difficult to state. Mr Lindner submitted that the judge stated the requirement for remorse above the guilty plea too narrowly and in doing so fell into error. I can understand the difficulty his Honour had in extending the meaning of remorse in a drug trafficking case for drug trafficking is an offence which has been denounced by courts as an evil crime causing great harm to the victims and the community, and offenders usually receive stern sentences. It is enough to refer to a passage from the judgment of Tadgell, J.A. in Berisha[5], an appeal against a sentence for trafficking in a commercial quantity of heroin:

"For about the last 20 years, within my own experience, and no doubt for longer, the courts have been faced with an exceedingly difficult task in dealing with drug offenders. Drugs of addiction, wantonly distributed and abused, present to a modern civilised society an increasing burden that is both monstrous and intolerable. It is a monstrous burden in the sense that it is unnatural and evil. Moreover, it begets further evil, which anyone who cares to sit as an observer in this Court for a week could not fail to realise. It is no exaggeration to say that the vast majority of serious criminal activity in this State, and in the country generally, is traceable to the production, distribution or use of illicit drugs. The burden is intolerable because the modern civilised society simply cannot sustain its crushing weight and yet remain civilised. One by one the civilising props must give way."

99. Judges experienced in the criminal law would endorse these remarks. I would add a comment of my own based upon experience that genuine remorse indicating sincere repentance or regret for what has been done is rarely seen in the courts in drug offending cases beyond the plea of guilty. That is not to say that a drug offender cannot demonstrate remorse beyond the plea of guilty. Post-offence conduct such as co-operation with the authorities to expose the conduct of co-offenders will indicate evidence of repentance or regret, provided such conduct proceeds from an altruistic motive.

102. I am of the opinion that the judge stated the meaning of remorse narrowly because he had come to the conclusion that Starr had not expressed remorse beyond the plea of guilty since he was released on bail and did not intend this statement to be the definitive test for remorse in drug cases. The evidentiary basis relied upon by Starr evidencing remorse is to be found in the history Starr gave to Healey to which I have drawn attention in [20].

105. Mr Lindner submitted the judge was not entitled to reject the opinion of Mr Healey that Starr suffered from a serious amphetamine addiction in the eight months leading up to his arrest. Having made that finding, the judge said he would approach the rest of Mr Healey's reports and opinions with considerable caution. Mr Healey had expressed the opinion that Starr's remorse went beyond his plea of guilty and extended to his efforts to remain drug-free and removed from former associates after his release on bail. Mr Lindner argued that in so doing, the judge did not give adequate weight to the remorse demonstrated by Starr.

108. I am of the opinion that his Honour was entitled to reject the opinion of Mr Healey that Starr suffered from a serious amphetamine addiction before the drug offending began. It was open to Starr to give evidence on the plea as to his addiction, but he omitted to do so. It was contended by Mr Lindner that the history he gave to Mr Healey was verified by evidence at the trial by Tsoungarakis. Mr Lindner drew the Court's attention to passages in the evidence of Tsoungarakis regarding Starr's use of amphetamines. On the other hand, the history Starr gave was contradicted in the record of interview. When Starr was interviewed on 6 June 2000 he was asked:

Q.341: "Do you use any drugs yourself?" A: "Not really, no. I might have a casual smoke of marijuana, say, a few times a week. And I might have a little bit of speed, maybe once in a blue moon. That was all I ever did." Q.899: "What's your reason for possessing amphetamine?" A: "I only have a little bit, every now and again, myself. That'd be about it. Apart from that, I just sell it for Alan Smith."

The judge was entitled to find that Starr answered the police truthfully about his drug usage and he had no motive to lie at that stage. Mr Tsoungarakis was by no means a trustworthy witness. He was involved in drug dealing as a middleman and likely to be hostile to Starr during the trial. It is trite law that a medical history upon which an expert's opinion is based must be verified on oath or the opinion is worthless.

113. The impugned observation by his Honour "I would have thought that remorse with respect to drug dealing would need to involve an acceptance and acknowledgment of the devastation which drug distribution wreaks upon a community" was not a statement of sentencing principle in relation to remorse. His Honour's words read in context simply indicated that he did not consider the discount due for remorse extended beyond the plea of guilty in the case of each appellant. At the same time he was explaining that remorse for drug offending required something more than an acknowledgment of guilt.

116. Having found, as he was entitled to do in my opinion, that Starr was not a reformed drug user, the judge was entitled to limit the discount based upon remorse. I do not consider that the impugned words bespeak error when they are examined alongside the findings made by the judge. The findings he made limited considerably the discount appropriate for remorse.

119. The judge's finding that Smith did not convey any remorse in the extended sense was not challenged on appeal by Mr Holdenson.

122. His Honour said that he would give a discount for the early plea of guilty. The Court is entitled to assume that he did so. I would, therefore, not uphold ground 3.

125. Ground 2 of the original grounds asserted that the judge took an irrelevant circumstance into account, namely the early plea of guilty was only entered for a "forensic reason" in relation to the conspiracy to murder counts. This ground was not raised in the amended grounds of appeal. Ground 4 in the amended grounds of appeal was substituted. The error attributed to the judge is his finding: "Your trafficking in amphetamines was driven by greed not need and you will be sentenced upon that basis." Mr Lindner submitted the finding was not open because the evidence did not show that Starr had a lavish lifestyle or was enriched by selling drugs for Smith. The judge's finding was made in the context of not finding, as he was entitled to do, that Starr suffered from amphetamine addiction and was feeding his need. During the trial Smith gave sworn evidence that Starr told him he had debts and needed money and it was agreed they would both deal in drugs and share the profits to be made. Smith's evidence at the trial was admissible against Starr and could be used by the judge on the plea. It follows logically, if there was not need there was greed.

128. The findings were made by a sentencing judge who presided over the trial of the appellants for conspiracy to murder. I consider this Court should not conclude that his Honour made findings which were unfair or wrong. He had available to him the evidence given at the trial. It is highly improbable that Starr and Smith embarked upon drug trafficking, the essence of which is selling proscribed drugs of dependence, for altruistic reasons rather than for financial reward. That Starr made no profit out of his sales, if such was the case, in no way diminishes his culpability in the offending.

131. Both appellants contended that their sentences were manifestly excessive in all the circumstances, being disproportionate to the gravity of the offence and outside the appropriate range of sentences for the offence. Mr Holdenson for Smith submitted that the judge should have given more weight to his client's good character, success in business and prospects of rehabilitation. Since being released on bail, Smith had re-established his family life and business, evidencing a predisposition towards rehabilitation.

134. The head sentence of four years' imprisonment chosen by the judge was close to 25% of the maximum sentence prescribed for the offence. In my opinion, when regard is had to the nature of business operated by two men in partnership and the serous social effects drug-trafficking has on the community, general deterrence was an important element in the sentencing factor. I consider that the head sentence was within range and not manifestly excessive. Selection of an appropriate minimum term is a matter for judicial discretion. The gap of 15 months chosen by the judge might not have been chosen by another judge. The question is whether the gap chosen renders the sentence, whether as to head sentence or non-parole period, manifestly excessive. After careful consideration, I have concluded that the Court should not interfere with the sentence. I am unpersuaded that sentencing error has been shown.

[1] R. v. Giretti (1986) 24 A.Crim.R. 112.

[2] Siganto v. The Queen [1998] HCA 74; (1998) 194 C.L.R. 656 at 663.

[4] R. v. Shannon (1979) 21 S.A.S.A. 442 at 452. See also R. v. Gillick [2000] VSCA 127 at [20]- [22].

[5] R. v. Berisha [1999] VSCA 112 at [39].