R v Stirling [2000] VSCA 8

[2000] VSCA 8

Court of Appeal (Vic)|2000-02-03|Before: WINNEKE, P., BATT, J.A. and HAMPEL, A.J.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2000-02-03

Before

WINNEKE, P., BATT, J.A. and HAMPEL, A.J.A.

Source

Original judgment source is linked above.

Judgment (46 paragraphs)

[1]

The applicant, Sharon Heather Stirling, who was born on 24 October 1959, pleaded guilty on arraignment in the County Court at Melbourne on 18 March 1999 to one count of trafficking in a drug of dependence, namely heroin, and one count of possession of a drug of dependence, namely cannabis L, contrary to ss.71(1) and 73(1) respectively of the Drugs, Poisons and Controlled Substances Act 1981. The first count was a "between dates" count, the offence being alleged to have occurred between 24 July 1997 and 23 March 1998. At the time of the offences the maximum penalty, having regard to the amount of drug involved, was (in the case of trafficking) imprisonment for 15 years and a fine of $100,000 or both and (in the case of possession) a fine of $500. The applicant admitted four prior convictions from three previous court appearances in 1981, 1988 and 1990. None was for an offence against drug legislation.

[2]

On the same day his Honour heard a plea in mitigation of penalty, during which three witnesses besides the applicant herself were called. The informant, Constable Anderson, gave evidence about the extent of the assistance provided by the applicant in respect of her principal supplier, Georgeta Mardale, who was arrested on the same day as the applicant, though not with her. Constable Anderson stated that, although information provided by the applicant "certainly assisted with the investigation", it was "not the backbone" of the brief. He assented to the judge's suggestion that there was plenty of other evidence. He did, however, say that there were some things obtained through the applicant that police were unaware of, including the habits of Mardale and the consistency and ease of obtaining heroin from Mardale. The statement by the applicant which was included in the hand-up brief given to Mardale's lawyers was made of the applicant's own free will, he said. Daniel Popper, a hospitality consultant, said that he had worked with the applicant almost 75 per cent of the 23-year period from when he first met her in 1976. She worked as a cook for functions for which he was asked to organise the catering. The work was casual, but the applicant seemed from Popper's evidence to have worked during most months in recent years and for two, three and four weeks a month, averaging at the time of the plea 20 hours per week. The applicant was a "major link" in his business. He was aware that she used drugs but the only physical indication of that was that she had occasionally been late to work. At the time of the plea her punctuality was perfect and her presentation and mental acuity were much better than they ever had been. The third witness was a drug and alcohol counsellor with The Bridge Program, which is run by the Salvation Army. She said that she had been working with the applicant since March 1998. (That was the time of the applicant's arrest.) She was impressed by the applicant's decidedly above-average dedication to the program over 12 months and by the fact that the applicant had done voluntary kitchen work with the program. She stated that the applicant was trying to achieve total abstinence from drugs and for that purpose was on a methadone program, which a doctor's report showed was under medical supervision. The applicant herself undertook on oath before his Honour to give evidence at the committal hearing and trial of Mardale.

[8]

Before substituted ground 1 can be considered, it is necessary to summarise the facts of the applicant's and Mardale's offences, so far as they are revealed in the material before this Court, and the circumstances personal to each of them. In January 1998 police, suspecting that sales of heroin were being made from the premises at 29 Crimea Street, Caulfield North, commenced an investigation into the activities of persons residing at those premises. Those persons were the applicant and Parsons. Preliminary surveillance revealed that people would attend the premises during the day or night, stay for a short time and then leave. In February, a covert police operative, going under the name "Emma Brown", was introduced to the applicant. At 9.20 a.m. on 13 February 1998, "Emma" telephoned the applicant and arranged to purchase two "caps" of heroin for $100. "Emma" came to 29 Crimea Street half an hour later and, after a brief conversation, was handed by the applicant two pieces of folded paper in exchange for $100. The conversation was recorded by a concealed tape recorder. "Emma" then met some members of the police force, who took possession of the pieces of folded paper, the contents of which were shown by subsequent examination to be .09 grams of heroin that was approximately 50 per cent pure. Substantially similar transactions occurred between "Emma" and the applicant on three other days over the next six weeks or so, save that on one occasion six "caps" were purchased for $300. Substantially similar, but by no means identical, results were revealed by analysis after each of those other transactions. In one of the recorded conversations between "Emma" and the applicant, the latter said that she could supply a half-gram for $300, but in the conversation during "Emma's" next visit "Emma" asked whether the applicant could "still" supply her with a "quarter" of a gram for $300 and the applicant said that she could. I find it unnecessary to decide whether the submission put for the applicant that the two women were in fact speaking of half a gram on the second occasion as well as the first is correct. Telephone intercept material, gathered pursuant to warrant, coupled with surveillance, showed that a short time after calls were made to the applicant people would arrive at her home, stay a short time and then leave and that the applicant was purchasing heroin from Mardale, who lived in Mulgrave.

[36]

Mr Gyorffy contended that for two reasons Mardale's criminality was lower in degree than the applicant's. First, she was only a go-between or conduit between Bacalja and the applicant. Linked to that was the fact that she sold to one person, whereas the applicant had a "broadly based clientele" and was entrepreneurial. Secondly, she did not know, as I noted it, "the consequences of heroin". For that, he relied upon the evidence of Mr Cummins set out earlier. Neither contention should be accepted. As to the first, Mardale was more than Bacalja's instrument or conduit. She paid him some, indeed most, of the proceeds of her sales but she retained some, thereby making a profit. The amount retained is not, on the available material, to be characterised merely as an agent's commission. The fact that Mardale sold to one person only is of no significance: many a company sells its product to one distributor only, which sells on to dealers or the public. As to the second contention, the cross-examiner's question related to two matters - Mardale's knowledge of the "on-selling" of the applicant and her knowledge of the effects of heroin upon users of it. It is far from clear that Mr Cummins's answer denied the first matter. His reference to "what she had been told at the direction of Mr Bacalja" suggests that Bacalja told her something about the heroin's ultimate consumption and in turn that necessarily implies distribution by the applicant, even if Bacalja did not expressly tell her of such distribution, which may be thought unlikely. In any event Mr Cummins' qualification upon her naïvete introduced by the words "apart from" makes the main statement vague and unreliable because Mr Cummins did not vouchsafe to state what Bacalja told her. Although the second judge's recollection is that he accepted "the various opinions" expressed by the witnesses, including Mr Cummins, it may be thought very doubtful that he intended that statement to extend to a view expressed only incidentally in cross-examination. But, even if he did, I respectfully consider that it was not open to find on the balance of probabilities, as was required, from indirect opinion evidence, in the absence of direct evidence from Mardale and in the face of the obvious inferences arising from her almost daily sales to the applicant over 35 weeks or so of about one gram of 50-60 per cent pure heroin, that Mardale was ignorant of either matter.