R v Tinti [1999] VSCA 20

Court of Appeal (Vic)|1999-03-02|Before: PHILLIPS, C.J., CHARLES and BUCHANAN, JJ.A.

Criminal law - Appeal against sentence - Grounds included allegation of manifest disparity of sentence with that of a co-offender - Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606, R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 and D.P.P. v. Bulfin C. of A. (Vic) judgment given 17 April, 1998 applied - Appeal dismissed.

After a plea for leniency, during which the applicant admitted some 38 prior convictions incurred between November, 1981 and April, 1994 and which involved offences of dishonesty, driving offences and street offences, the learned judge sentenced the applicant as follows. Count 1, 18 months' imprisonment; count 2, one month's imprisonment, making for a total effective sentence of 18 months' imprisonment. A non-parole period of 10 months was fixed. Some forfeiture orders were also made. The applicant later lodged notice of application for leave to appeal against sentence pleading the following grounds.

"1. The sentence was manifestly excessive in all the circumstances. 2. The learned sentencing judge failed to provide sufficient weight to the principle of parity. 3. The learned sentencing judge failed to give sufficient weight to my prospects of rehabilitation. 4. The learned sentencing judged failed to give sufficient weight to my plea of guilty. 5. The learned sentencing judge erred in fact by declaring me to be a principal in the criminal enterprise."

I now turn to the summary of the facts in this matter.

In June, 1996 the police became aware of a cannabis crop being grown hydroponically at 298 Barkly Street Brunswick, in an office/warehouse/factory complex. Video surveillance commenced and established in July that three people were concerned, namely the applicant, Michael Condos and Mario Katsoulos. Condos was in effect the owner of the property. He was seen throughout the fortnight to visit the premises 11 times for a total of some 11 hours, sometimes accompanied by Katsoulos and on three occasions by the applicant. Katsoulos visited eight times for a total of nearly 11 hours and the applicant visited eight occasions for a total of nearly ten hours. On 25 July the police entered under a warrant and Katsoulos and Condos were arrested.

The police discovered a large scale growing operation involving sophisticated equipment. It also involved the theft of electricity to the value of some $11,000 to which Condos pleaded guilty. The fingerprints of the applicant, Condos and Katsoulos were found on lightshades. The police conservatively valued the crop at $64,000 with a potential yield of $178,000 and they seized equipment valued at $27,000. The applicant was arrested in a car on the same day near his home at 24 Johnston Street Malvern. In the car were 319 grams of cannabis, some smoking equipment, four business cards of Condos and a cheque for $25,000 drawn against a company controlled by Condos. When interviewed, the applicant had no comment to make to the police.

Katsoulos pleaded guilty to a count of cultivating cannabis and a count of possession of the drug. He was sentenced by His Honour Judge Morrow on 9 February, 1998 to six months' imprisonment on the count of cultivation and was fined on the count of possession. His Honour suspended three months of the prison sentence for two years. Condos pleaded guilty to a count of trafficking in cannabis and to a count of theft of electricity. He was sentenced by His Honour Judge R. P. L. Lewis on 2 March, 1998 to 18 months' imprisonment on the trafficking count and six months' imprisonment on the theft count making for a total effective sentence of 18 months imprisonment. His Honour suspended one year and three months of that sentence for two years and made a reparation order.

I now turn to summarise the arguments of counsel on this application.

Mr Tehan of Queen's Counsel for the applicant began his submissions by indicating that ground 5 would not be argued and he did not proceed to address grounds 1 and 3. He declared that the application essentially raised what he called "a short point of parity". He submitted that his client had a justifiable sense of grievance as to the sentences imposed on the co-offenders and he stressed that as a result of the sentences the applicant's actual confinement was ten months in contradistinction to the three months imposed on the others.

Mr Tehan allowed that the applicant had prior convictions for driving offences and offences of dishonesty, but pointed out he had no prior convictions for drug related offences. Katsoulos, did have a prior conviction in 1994 for cultivation of cannabis. Mr Tehan submitted that the evidence showed that Condos had set up the hydroponic factory. Further, he said, Condos had pleaded guilty to the theft of electricity for which he was sentenced to six months' imprisonment. This offence, counsel contended, was indicative of Condos' role in organising the premises.

Mr Tehan submitted that the role of the applicant in the offence touching the growing of the crop was to be gleaned from the evidence of Condos upon his own plea. There, under cross-examination by the Crown prosecutor, he had said that the applicant's role was that of equal partner. He had also described Katsoulos as the "main organiser" and had added that the applicant had assisted in the setting up, potting plants and irrigation. In summary, Mr Tehan said the applicant had fallen to be sentenced on the evidence of Condos. As to this proposition, Mr Gyorffy for the Crown agreed.

Mr Tehan stressed that no complaint was made as to the head sentence imposed on the applicant, but submitted that the non-parole period fixed was such that, in most part for reasons of parity, this Court should intervene and replace it with a lesser term. I took Mr Tehan to be saying, in answer to me, that the applicant, who had been undergoing his sentence since 28 August last had already been adequately punished.

In all the circumstances a sentence which required the applicant to be actually confined for a period three times as great as that imposed on Condos exhibited manifest disparity, counsel continued. Although he conceded that the personal circumstances of Condos differed from those of the applicant, counsel submitted that manifest disparity remained. Mr Tehan cited the well known cases of R. v. Bellingham and Lambert C. of A. Vic. (Unreported) judgment given September, 1995 and R. v. Postiglione [1997] HCA 26; (1995-1996) 189 C.L.R. 295, particularly a passage from the judgment of Kirby, J. at p.341.

"It has been recognised by this Court that the adjustments for totality will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed. Whilst this is unfortunate, it is to be preferred to imposing a sentence which is excessive in its totality or unfair when tested by parity in the punishment of comparable offenders. The risks of unacceptable disparity will be lessened if it is remembered that the touchstone adopted by the law is the avoidance of a justifiable sense that an injustice has occurred."

Mr Gyorffy, for the Crown submitted that a difficulty in these series of sentences is that different judges took different views as to the overall criminality involved. The judges in the matter of the applicant and Condos judged it in terms of head sentences of 18 months, whereas Katsoulos had been "let off fairly lightly".

Mr Gyorffy submitted that the three months actual confinement of Condos as compared with the actual confinement of the applicant had been explained by his sentencing judge on the basis of different circumstances. A justifiable distinction had been drawn as to rehabilitation prospects and there were other matters.

Although Mr Tehan adverted on occasions to the sentence imposed on Katsoulos during his submissions, for the purpose of his parity argument he concentrated upon a comparison between the sentences of the applicant and Condos. This no doubt resulted from the combination of the following circumstances. Judge Lewis expressly stated that he considered the sentence imposed on Katsoulos to be manifestly inadequate. Judge Campbell noted this finding without demur. Judge Campbell considered that Judge Morrow had been misled and Judge Lewis thought an incomplete picture of Katsoulos' involvement was presented to Judge Morrow. In the light of the background to the Katsoulos sentence, Judge Campbell did not think "that slavish adherence to the principle of parity of sentence can be maintained in a situation such as this." No issue was taken as to that before us. So, too, counsel for the Crown indicated early in argument in this Court that the Crown position was that the applicant fell to be sentenced on the basis of the evidence given on his own plea by Condos. This gave to Katsoulos an entirely different role to that presented to his sentencing judge. The essence of Mr Tehan's argument is, I think, contained in the following passage from his written outline.

"It (the applicant's sentence) is certainly a manifestly disparate sentence to that imposed on Katsoulos. The question may well be that even if one accepts the Katsoulos sentence as manifestly inadequate, how can ten months as against three months be justified when comparison is made with the Condos sentence?"

Before this Court both counsel agreed that the three offenders were in fact, in terms of their common offending, equally culpable. But in my opinion, the personal circumstances of the applicant were markedly different to that of Condos. Condos had no prior convictions. The applicant had a number. Further, it appeared that on each of the three occasions he had been awarded a suspended sentence of imprisonment, he had committed a breach which resulted in his being ordered to undergo the suspended sentences. This had occurred with respect to sentences for traffic offences in August, 1991; burglary and theft in June, 1992 and sentences for burglary, theft and associated offences in April, 1994. Judge Campbell was alert to this circumstance noting in his reasons for sentence, "Your reaction to an increasing regimen of sentencing options have demonstrated that you do not respond to opportunities provided you for rehabilitation, and that penalties in the past have had no demonstrable effect upon you so far as specific deterrence is concerned." (His Honour was addressing the applicant.)

The further circumstance that the applicant had been placed on probation in 1981 and had been sentenced to pay fines on no fewer than seven occasions before being awarded a suspended sentence of imprisonment was doubtless in His Honour's mind.

In addition, Condos had, as Judge Campbell's judgment shows, reserved his plea on committal and thereafter indicated to the Crown that he would plead guilty. The applicant pleaded not guilty at committal.

Condos not only pleaded guilty on 2 March last but gave sworn evidence. He was cross-examined by the Crown prosecutor and gave details of the various roles played by the offenders including the applicant. He also promised to give evidence against the applicant. As he faced the likelihood of a term of imprisonment, this was a promise which doubtless would place him in a position of some danger.

The applicant did not offer to plead guilty until after Condos had given his incriminating evidence and his promise.

The principles relevant to the disposition of a ground of appeal pleading disparity of sentence may be distilled from the well known authorities of Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606, Postiglione v. The Queen (supra), R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 and DPP v. Bulfin C. of A. (Vic.) judgment given 17 April, 1998. They are that relevant disparity must be manifest and that the parity principle of sentencing is offended when disparity between sentences imposed on co-offenders is "such as to engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done." per Callaway, J.A. in Taudevin at 404. In Postiglione Dawson, Gaudron and Kirby, JJ. noted the need when assessing a sentence imposed on a co-offender for regard to be had to the different circumstances of co-offenders.

Applying the above principles to the instant case it is, in my opinion, beyond reasonable argument that a sentence, more severe than that imposed on Condos was warranted in the case of the applicant. Mr Tehan, with his usual candour, conceded as much in argument but contended that the difference in the actual custodial periods ordered in the two sentences evidenced manifest disparity. I am unpersuaded that it did having regard to the differences in the personal circumstances of Condos and the applicant which were, I think, correctly noted and assessed by Judge Campbell.

Mr Tehan did address some, but not a deal, of argument to the contention founded in ground 4 that the learned judge failed to give sufficient weight to the applicant's plea of guilty. I do not think there is any substance in this ground. His Honour noted the applicant's plea and its timing. He said that an expression of remorse could be inferred from it but that he noted that he was not aware, as was the case, of any other expression of remorse. These views were plainly open to His Honour and have not been subject to challenge. Clearly, the plea was in His Honour's mind and it was for him to give to it such weight as he thought proper. The face of the sentence does not suggest to me that he failed to give it proper weight. This ground must fail.

In my opinion, this application should be dismissed.

As I have noted, Katsoulos and Condos, as co-offenders, were dealt with by different judges on different occasions. Judge Lewis has opined that on the plea of Katsoulos, Judge Morrow was misled. Judge Campbell, referring to this plea in his reasons for sentence, has stated "...Katsoulos' counsel submitted, and the Crown acquiesced that the principals in the enterprise were yourself (Tinti) and Condos, and that he, Katsoulos, was merely `the gardener' persuaded by you (Tinti) to assist him. How that submission could be allowed to go unchallenged is a mystery to me, and the more so having now myself read all of the materials." Judge Campbell, in his report to this Court has been moved to complain about the frequency in which co-offenders are dealt with by different judges. From the material available to this Court it appears that arrangements for a separate plea for Katsoulos were made between his solicitor and someone from the Listing Directorate without the knowledge of the solicitor handling the matter in the Office of the D.P.P. and that

counsel for the Crown, on an arraignment before His Honour the Chief Judge, acquiesced in this arrangement. If the arrangements for a separate plea for Katsoulos were made in the manner suggested, that situation would represent a serious departure from acceptable practice which should not be allowed to recur. It is plainly desirable that co-offenders be dealt with by the same judge, and, unless good reason exists for some other arrangement, at the same time. But as I have not heard from the persons concerned I refrain from reaching any conclusions. I will, however, propose that a copy of this judgment be forwarded to the Director of Public Prosecutions and to the Director of the Criminal Trial Listing Directorate for their attention.

I agree that the application should be dismissed for the reasons stated by Phillips, C.J.

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