R v Tiburcy & Ors [2006] VSCA 244

2 These applications raise in stark terms the question of the sentencing implications of delay between apprehension and sentence, in circumstances where all three applicants were on bail for substantial periods. During that time, as I will elaborate, each made commendable progress in getting his life back together, moving from drug-taking and drug-dealing to abstinence from drugs, and staying away from those with whom they associated while involved in trafficking.

3 In my opinion, the sentencing of each applicant called for the application of the principles eloquently stated by Chernov, J.A. in R. v. Cockerell[1], where his Honour said:

"The courts have ... recognised that such delay which, as here, cannot be attributed to the offender, constitutes a powerful mitigating factor at a number of levels - see, for example, Miceli[2], Todd[3], Schwabegger[4], MWH[5], Blanco[6]. First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. ... As Wood CJ at CL said in Blanco:[7]

' ... it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account in sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly, particularly where there is a strong case available against them.' "[8]

4 In my opinion, the learned judge fell into error, first in failing to address the consequences of the very significant delay between apprehension and sentence, and secondly in failing to give any separate consideration to the credit to be given for early pleas of guilty. The applications for leave should therefore be granted, the appeals should succeed and each of the applicants should be re-sentenced.

5 In 2002, each of the applicants was involved in the supply of drugs (methylamphetamine, cannabis and ecstasy) in the Ballarat area. Tiburcy was the central figure in the operation. Gardner and Zeuschner assisted Tiburcy in the supply and distribution of the drugs. That is, Tiburcy was the operator of the trafficking business, and Gardner and Zeuschner were subordinates who played an essential part in the conduct of that business, by assisting in the supply and distribution of drugs, in some instances to other suppliers who on-sold the drugs. Four others - Karslake, Fisher, Kaesar and Bone - were also involved, to different degrees, in the trafficking operation. They were separately presented in the County Court and were sentenced in August 2004.

6 The offences the subject of counts 1 and 2 were committed between 1 August 2002 and 20 December 2002. Count 3 related to trafficking between 1 October 2002 and 20 December 2002. The remaining counts related to trafficking during the period 21 October 2002 to 20 December 2002. The charges were laid following a covert operation conducted by police, involving physical surveillance, telephone intercepts and covert drug purchases by police.

7 On 5 March 2004, Gardner and Zeuschner were committed for trial on eight and nine counts (respectively), including two counts of trafficking in a commercial quantity of a drug of dependence, three counts of trafficking simpliciter (to which they ultimately pleaded guilty), and three counts of possession of a drug of dependence. Zeuschner was committed on an additional third count of trafficking in a commercial quantity of a drug of dependence.

8 On 25 June 2004, after a short committal hearing, Tiburcy was committed for trial on four counts, namely:

• one count of conspiracy to traffick a drug of dependence (cannabis);

• one count of trafficking in a commercial quantity of a drug of dependence (ecstasy);

• one count of trafficking in a drug of dependence (methylamphetamine); and

• one count of possession of a drug of dependence (cannabis).

9 Ultimately, each of the applicants pleaded guilty to three counts of trafficking in a drug of dependence - methylamphetamine, cannabis and ecstasy respectively. The sentencing took place in the County Court on 25 November 2005.

10 Tiburcy was sentenced on the methylamphetamine count to five years' imprisonment, on the cannabis count to two years, and on the ecstasy count to five years. It was directed that six months of the sentence for cannabis be served cumulatively on the sentence for methylamphetamine, and two years of the sentence for ecstasy also be served cumulatively on that sentence, giving a total effective sentence of seven years and six months. The non-parole period was fixed at five years.

11 In the case of each of Gardner and Zeuschner, the sentence on the methylamphetamine count was three years, on the cannabis count one year (of which six months was to be served cumulatively) and on the ecstasy count three years (of which one year was to be served cumulatively), producing a total effective sentence of four years and six months. The non-parole period was fixed in each case at two years and six months.

12 The bare facts on delay speak for themselves. The applicants were arrested in November 2002, but they were not sentenced until November 2005. They were all free on bail for the whole of 2004 and, in the case of Gardner, from as early as May 2003. Each applicant made an early offer to plead guilty to trafficking simpliciter. In the case of Tiburcy, the offer was made in December 2003; in the case of Gardner, April 2004; and in the case of Zeuschner, not later than May 2004.

13 Each of these was, in my opinion, to be characterised as an early plea of guilty for the purposes of that sentencing criterion. Mrs Quin for the Crown conceded that this was so. The mitigating effect of an early plea of guilty is quite distinct from the mitigating effect of delay, and separate credit ought to have been given. Although it was acknowledged as an issue by the Crown Prosecutor, his Honour did not take it into account separately as a factor in favour of the applicants.

14 What is striking about the material relied on before his Honour last November, and before this Court today, is that each of the applicants used the time between his release on bail and the passing of sentence last November wisely and productively. Each applicant, and his family and his employer or employers, must be congratulated on making that such a productive period.

15 As Chernov, J.A. made clear in Cockerell, the sentencing court looks to the future as well as to the past. What has occurred cannot be undone, and appropriate penalties must be imposed. But there is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided.

16 I consider this Court should support sentencing judges who recognise and reward efforts at rehabilitation. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution in much of the public comment on sentencing is understandable, but it focuses only on one part of what the sentencing court does.

17 Each of the applicants can regard himself as very lucky to have had such good support from his family and from employers prepared to give him a chance, even when it was known that he was to be sentenced on serious charges. It is very much to be hoped that what was demonstrated in the period up to November 2005 signifies that each has a bright future ahead of him. Needless to say, any return to drug-taking, let alone drug-trafficking, would warrant a strikingly different prognosis.

18 The evidence called on behalf of Mr Zeuschner at the plea painted an impressive picture. One of the witnesses described Mr Zeuschner's progress as "unique", in that he had committed from the outset of his drug counselling to complete abstinence from drugs. In that witness's view, Mr Zeuschner could not have done more to rehabilitate himself. At the time he was sentenced, he was employed and was said to be a very good employee. We were told in court this morning that the employer would, even now, take him back.

19 Mr Tiburcy was in employment almost continuously through 2004 and 2005. We were taken this morning to a very strong reference about him from his employer, who said in May 2005:

"Steven has been employed for approximately 17 months, on a fulltime casual basis.

In the time he has worked under me I have found him to be a valuable employee to the company. I have found Steven to be an honest and reliable employee with good work ethics, and he will be hard to replace."

The evidence led on the plea, unchallenged, was that Mr Tiburcy's attitude to drugs had changed radically. His counsel said he now realised how harmful drugs were. He has been drug-free since January 2004. Clearly, those two years of reform and rehabilitation had to be taken into account.

20 In the case of Mr Gardner, the court was told on the sentencing hearing that he had been mostly employed in the period of release on bail; that he was aware that he had done the wrong thing; that he had given up drug-taking entirely for a period of two-and-a-half years, and had made good progress with a drug counsellor; that he no longer associated with the same people; and that he had complied with his bail conditions.

21 It is clear that the learned trial judge appreciated the point that counsel were endeavouring to make on behalf of their clients. During submissions, his Honour said:

"The evidence I've heard today in relation to Mr. Zeuschner would seem to establish that his rehabilitation's a significant matter to rely on, that he's got a good work record, turned himself around, strong evidence. The big problem is, of course, they're crimes of which general deterrence must take priority, and the reason in a case such as this where you have got issues of general deterrence and the risk of sending somebody back to gaol who's rehabilitated themselves is - if I can state the obvious not in the interests of the accused or the public, but nevertheless that's the way the law's framed."

And again:

"There's a harshness about this case, or about delay. That is that in Zeuschner's case and in Tiburci's [sic] case, from what you're telling me, they've come to their senses, they've matured, they've got jobs. It's to their credit and I suspect the very great credit of both their employers, to take on people who they know have been in custody on serious charges and given them a chance to rehabilitate themselves, but the fact remains that they're liable for a significant penalty, and whatever you say that can't be avoided, it seems to me."

His Honour referred to an entitlement to discount, and the Crown prosecutor, Mr Cordy, very properly conceded that Zeuschner would "get substantial credit for the steps that he has taken in the interim".

22 His Honour did, however, raise a concern which it is important to address, namely that there was a risk of disparity between the offenders sentenced in August 2004 - who stayed in custody and were sentenced and then served their sentences - and the present applicants who, having had bail and rehabilitated themselves, might be treated more favourably.

23 In my opinion, the considerations of delay and rehabilitation - the Cockerell principles - are not productive of disparity in sentencing. The position of those sentenced in August 2004 is materially different from that of the present applicants, sentenced in November 2005, and the difference is the result of that time lapse. One of the consequences of the delay is that the sentences imposed in August 2004 are now 14 months closer to being served than the sentences imposed in November 2005. The real answer, however, to the disparity concern is that the Cockerell principles, when applicable, identify a distinct mitigating factor which must be taken into account.

24 When his Honour came to deal with the issue of delay in the reasons, he said:

" ... [O]ne of the reasons as to why this matter did not settle earlier was the failure by the DPP to accept the offers of settlement to a plea of trafficking simpliciter compared with trafficking a quantity not less than a commercial quantity.

While it was said by the prosecutor, Mr. Cordy, at the hearing of the plea that some confusion might well have been caused by the negotiations as to whether Zeuschner would give evidence against the other accused or not, it seems to me hard to follow.

While each of the accused is entitled to sentencing discounts to be represented by the fact that they have pleaded guilty, considerations relating to whether that plea was late or not is somewhat blurred by the earlier offers to plead guilty to trafficking. Consequently at this stage I am not in a position to give weight for the delay as being a matter solely brought about by each of the accused." (emphasis added)

25 The statement in the last sentence appears, with respect, to misapprehend how the question of delay and rehabilitation had to be approached. There was no suggestion that the delay was solely or even partly the fault of the accused. Of course, if the delay had been the result of their obstruction or lack of co-operation, the position would likely have been different. Likewise if, as was suggested in Cockerell, the conduct of the matter by the prosecution had been "leisurely". Neither characterisation is appropriate here.

26 It was common ground at the Bar table that this Court did not need to investigate whether the delay was justifiable or not. Suffice it to say that the explanation given by the Crown - that pleas of guilty to the lesser charge could not be accepted until the evidence as to quantity had been carefully reviewed - seems perfectly acceptable. As the decision in this case indicates, however, where such an investigation results in such a lengthy delay it will inevitably have consequences. If the delay reflects a lack of resources, then there is an obvious public interest in sufficient resourcing for the Crown to ensure that such an investigation can be completed expeditiously.

27 His Honour appears to have regarded himself as compelled to treat general deterrence as the overriding consideration, even though - as he noted - sending back to gaol a person who had rehabilitated himself was not in that person's interests nor in the interests of the public. In my respectful opinion, his Honour was right to give prominence to general deterrence. I endorse, with respect, what his Honour said about the message which needs to be sent, by sentencing, about drug trafficking of a commercial kind, which this plainly was. That is, the sentence imposed must be such as will send a message to those who might contemplate getting into that illegal trade that they will be severely punished if they do.

28 But according appropriate significance to general deterrence did not preclude giving appropriate weight to the lengthy delay in this case and the very significant efforts made by the applicants in the meantime. Mrs Quin argues that his Honour was clearly alive to the delay issue, as the transcript reveals, and we should not doubt that the matter was properly factored in. In my opinion, the sentences imposed show that delay and rehabilitation were not treated as a "powerful mitigating factor", as they should have been. The misapprehension about delay, to which I have referred, appears to have resulted in the Cockerell principles effectively being ignored.[9]

29 A separate ground advanced on behalf of the applicants was that his Honour had insufficiently taken account of the significance of police involvement through covert operatives. The argument was put, both below and in this Court, that the ordinary course of this trafficking business was to deal in small amounts of drugs and that the increase - from amounts of three, seven and 10 tablets up to 1000 tablets - was the result of police operatives expressing interest in buying such a large quantity. As his Honour rightly said, the fact that that offer was not rejected out of hand demonstrated that there was a preparedness on the part of Mr Tiburcy to respond to an extraordinary order of that kind.

30 Because of the view I have reached in relation to the Cockerell point, it is unnecessary to decide this question. Suffice it to say that I respectfully agree with the approach enunciated by Buchanan, J.A. in the course of argument, namely, that the nature and extent of police involvement in provoking trafficking activity is simply a factor relevant to the characterisation of the conduct in question. The one very large transaction is said here to have been atypical. In my opinion, that is how a sentencing judge should approach the issue, not as aggravating or mitigating the conduct but simply as bearing on the true scope and nature of the activity in respect of which the charges were laid.

31 In relation to parity, there have to be appropriate differentials between Tiburcy on the one hand and Zeuschner and Gardner on the other. His Honour made a clear differentiation in that respect. Because we have to re-sentence, we must likewise ensure an appropriate differential. The position of Mr Tiburcy is markedly different, in three significant respects. First, he was the principal in an operation in which the other two were subordinates. Second, he had prior convictions which included a prior conviction for trafficking in drugs of dependence. Thirdly, he had been fortunate to receive a suspended sentence on that charge of trafficking. The trafficking now under consideration was carried on, in a sustained way, while he was on that suspended sentence. Such conduct is as inexplicable as it is inexcusable.

32 At the same time, as Mr Priest pointed out, while Mr Tiburcy appears to have been triumphant when the suspended sentence was imposed, his first taste of gaol was a very sobering experience. It is to be hoped that the lesson was well and truly learned. Accordingly, I disregard for present purposes the cocky attitude revealed by the transcript to which we were referred. I take into account what was said about his change of demeanour and his much more serious approach to life after he had experienced gaol.

33 Attention was drawn to the fact that the head sentences imposed in each case were much lower for cannabis than for methylamphetamine and ecstasy. In the case of Zeuschner and Gardner, the difference was three years as against one; in the case of Tiburcy, the difference was five years as against two. Mr Priest submitted that it was difficult to see any basis in the material for that kind of differential, save possibly that there was a lower frequency of dealings in cannabis than in the other two drugs. He rightly drew attention to the possibility that the differential was to be explained by an implicit assumption on the part of the Judge that cannabis was less harmful than the other drugs.

34 It has been the conventional approach of sentencing courts to differentiate where appropriate between drugs of dependence by reference to their respective harmfulness. As this Court said recently in Pidoto[10], however, that is not how the statute is to be construed. Parliament did not intend judges to attempt what is, for a sentencing judge, an impossible task.

35 It follows that, for the purposes of re-sentencing, we must treat methylamphetamine, cannabis and ecstasy uniformly. In each case the count is of trafficking simpliciter. The maximum penalty is set on a quantitative basis. There is no evidence on which we could properly differentiate between the respective counts by reference to the quantity of the drug trafficked.

36 As to cumulation, Mr. Priest submitted that there was no justification for cumulation given that each applicant was charged with three counts, each count representing one of the drugs which formed part of the trafficking business. I am not persuaded by that submission. In my opinion, there is a difference between someone who trafficks in only one drug and someone who sells a range of drugs. Each is an offence in itself, and in my opinion a degree of cumulation is not only correct but, in the ordinary case of this type, will be necessary.

37 Before re-sentencing, I wish to acknowledge the assistance received from the work Mr Hutton (for Gardner) had done in researching sentences passed for offences of this kind. In the event, it has not been necessary for us to decide the "manifest excess" ground, but the research effort was much appreciated. If this Court is to make an informed assessment of what is within and without the relevant range, we need assistance of that kind. I accept to some extent Mr Priest's argument that earlier decisions on trafficking may be rendered less relevant because of the decision in Pidoto, but I do not accept that they are wholly irrelevant.

38 Taking into account the various matters in mitigation to which I have referred, the age of the offenders and, in the cases of Gardner and Zeuschner, the fact that they are first offenders, I would propose that they be re-sentenced as follows.

39 Each applicant should have leave to appeal against sentence. I would order that the appeal be heard instanter and allowed, the sentences below set aside and the appellants re-sentenced as follows:

In the case of Tiburcy -

on count 4 - four-and-a-half years' imprisonment;

on count 5 - four-and-a-half years, of which one year would be cumulative on the sentence on count 1;

on count 6 - four-and-a-half years, of which one year would be cumulative on the sentence on count 1.

That would give a total effective sentence of six-and-a-half years. I would fix a non-parole period of four years.

In the case of each of Zeuschner and Gardner (on the different counts respectively) -

on count 1 (4) - two years' imprisonment

on count 2 (5) - two years' imprisonment, of which six months would be cumulative on the sentence on count 1;

on count 3 (6) - two years' imprisonment, of which six months would be cumulative on the sentence on count 1.

That would give a total effective sentence of three years. I would fix a non-parole period of one year and six months.

40 For the reasons stated by the learned President, the error made by the sentencing judge with respect to the treatment of delay makes out error in each application and, accordingly, the applicants fall to be re-sentenced. It is unnecessary to consider the other grounds.

41 In view of the pleas of guilty at a reasonable stage, the ages of the applicants, their individual efforts at rehabilitation, combined with delay, and allowing for specific and general deterrence, all lead me to conclude that each of the applicants should be re-sentenced as proposed by the learned President. I would grant the applications, treat the appeals in each instance as heard instanter and allowed, and re-sentence each of the applicants accordingly.

The sentence below is set aside and in lieu thereof the following sentence is substituted:

count 4 - 41/2 years' imprisonment;

count 5 - 41/2 years' imprisonment;

count 6 - 41/2 years' imprisonment.

The Court directs that one year of the sentence imposed on count 5 and one year of the sentence imposed on count 6 be served cumulatively upon each other and upon the sentence imposed on count 4, making a total effective sentence of six years and six months' imprisonment.

A pre-sentence period of 713 days is declared and it is ordered that that declaration and its details be entered in the records of the Court.

count 4 - 2 years' imprisonment;

count 5 - 2 years' imprisonment;

count 6 - 2 years' imprisonment.

The Court directs that six months of the sentence imposed on count 5 and six months of the sentence imposed on count 6 be served cumulatively upon each other and upon the sentence imposed on count 4, making a total effective sentence of three years' imprisonment.

A non-parole period of one year and six months is fixed.

A pre-sentence period of 510 days is declared and it is ordered that that declaration and its details be entered in the records of the Court.

count 1 - 2 years' imprisonment;

count 2 - 2 years' imprisonment;

count 3 - 2 years' imprisonment.

The Court directs that six months of the sentence imposed on count 2 and six months of the sentence imposed on count 3 be served cumulatively upon each other and upon the sentence imposed on count 1, making a total effective sentence of three years' imprisonment.

A non-parole period of one year and six months is fixed.

A pre-sentence period of 504 days is declared and it is ordered that that declaration and its details be entered in the records of the Court.

[1] [2001] VSCA 239; (2001) 126 A Crim R 444. Winneke P and Buchanan J.A. agreed.

[2] [1997] VSC 22; [1998] 4 VR 588 at 591; [1997] VSC 22; (1997) 94 A Crim R 327 at 329-330.

[3] [1982] 2 NSWLR 517.

[4] [1998] 4 VR 649 at 659 per Vincent AJA.

[5] [2001] VSCA 196.

[6] [1999] NSWCCA 121; (1999) 106 A Crim R 303 at 306 per Wood CJ at CL, with whom Bell J and Smart AJ agreed.

[7] Ibid.

[8] [2001] VSCA 239; (2001) 126 A Crim R 444 at 447.

[9] cf. R v Bernath [1997] 1 VR 271 at 277 per Callaway JA.

[10] R v Pidoto & O'Dea [2006] VSCA 185.