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[2005] VSCA 276
Court of Appeal (Vic)
2005-11-10
MAXWELL, P., CHARLES and NETTLE, JJ.A.
Original judgment source is linked above.
Criminal law - Sentencing - Trafficking in a drug of dependence - Pre-sentence detention - Sentencing judge obliged to consider period served while remanded in custody on unrelated count - Parity - Co-offender pleaded not guilty and found by sentencing judge to be the leader of the criminal enterprise - Appellant pleaded guilty with no prior convictions Both sentenced to two years' imprisonment with a non-parole period of 15 months - Appellant's sentence would engender justifiable sense of grievance - Appeal allowed.
Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
1 The appellant, who is 31 years of age, pleaded guilty in the County Court at Bairnsdale on 13 April 2005 to one count of trafficking in a drug of dependence, contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981. As the learned sentencing Judge said at paragraph [19], the plea of guilty covered two aspects of trafficking. The first and major component of the offending was the selling of methylamphetamine over a period of two months between July and September 2003; that falls, of course, within paragraph (c) of the definition of "traffick" in s.70. The second, and much lesser, component of the offending was Mr Wade's having played a part in the manufacture of methylamphetamine on the day in question, being 3 September 2003. Under s.71AC of that Act the maximum penalty for trafficking is 15 years' imprisonment.
2 Mr Wade has no prior convictions. On 27 April this year he was sentenced by the learned sentencing Judge to two years' imprisonment with a non-parole period of 15 months. His Honour determined that 59 days of pre-sentence detention had to that time been served. On 9 September this year Mr Wade was granted leave to appeal against sentence under s.582 of the Crimes Act 1958.
3 I turn now to the circumstances of the offending. On 3 September 2003 a police investigation uncovered the manufacture of methylamphetamine in a shed located within a property in Nungurner. The property was owned by one of the co-offenders, David Willowhite. The police executed a search warrant on the premises which uncovered what the sentencing Judge described as a clandestine laboratory, containing methylamphetamine and other chemicals and equipment used in the manufacture of methylamphetamine. Police arrested the appellant and the co-offenders Willowhite, Taylor and Faragher. Police also arrested the appellant's partner, but she was later released without charge.
4 Mr Wade was arrested when leaving the property with his partner in order to purchase some food. He had in his possession three pseudo-ephedrine tablets and eight small plastic bags each containing a substance which he identified at interview as "speed", which was later tested, revealing 10.3 grams of methylamphetamine. He admitted to trafficking methylamphetamine. He said at the police interview on 3 September that he sold the drug to support his own habit and that he used about seven grams himself per week at a cost of $1,000. He estimated that he sold a couple of grams per week for a return of somewhere between $200 and $400 to support his habit. He admitted that he had been selling "for a couple of months", hence the "between dates" charge.
5 His co-offenders Taylor and Faragher pleaded not guilty. Each was convicted at trial of one count of trafficking a drug of dependence and one count of possessing a substance, material or equipment for the purpose of trafficking in a drug of dependence. As to the trafficking count, Taylor and Faragher were manufacturing on 3 September and their possession of equipment was relevantly a contravention of s.71A of the 1981 Act. That offence carries a maximum of 10 years' imprisonment. On 27 April, Taylor, who was described by the sentencing Judge as a reluctant chauffeur, was sentenced to a total effective sentence of nine months' imprisonment with all but 45 days served to be suspended for a period of two years. On the same day Faragher was sentenced to two years' imprisonment with a non-parole period of 15 months. In his case 190 days of pre-sentence detention was determined as having been served. As I will refer to later, Faragher was described by the sentencing Judge as having been "the organiser and the ringleader of this enterprise", meaning the manufacturing enterprise.
6 The co-offender Willowhite pleaded guilty to one count of trafficking a drug of dependence (in all cases the drug was methylamphetamine). He gave evidence on behalf of the Crown at the trial of Taylor and Faragher and on 28 April was sentenced to 15 months' imprisonment, wholly suspended for 30 months.
7 On 31 October 2003, Mr Wade was released on bail. On 17 December 2004 he was arrested on another matter and remanded in custody. That matter has not yet been dealt with by the courts. His bail on the charge with which this case is concerned was not revoked, so he remained on bail on the charge which was dealt with by the sentencing Judge.
8 In sentencing Mr Wade the sentencing Judge expressly took into account the 59 days served between 3 September 2003 and 31 October 2003 and ordered that the period be deemed pre-sentence detention under s.18 of the Sentencing Act 1991. A submission was made to his Honour that he should take into account the period served by Mr Wade while on remand on the unrelated charge, the period between 17 December 2004 and the date of his sentence on this charge, being 27 April 2005. The submission made on the appellant's behalf is that that period of pre-sentence detention, while not able to be considered under s.18 of the Sentencing Act (as it was not time in custody in relation to proceedings for this relevant offence) ought to have been considered in the exercise of the discretion as to the proper sentence, and that the learned Judge apparently failed to do so. Counsel for the Crown contends that the Court should be satisfied that that matter was taken into account and that there was no error.
9 The appellant separately submits that, having regard in particular to the sentence imposed on the co-offender Faragher, the sentence imposed on him offended against the principle of parity. Further or alternatively, he submits that the sentence was manifestly excessive.
10 In my opinion, the appeal should be allowed and the appellant should be re-sentenced. The appeal, I consider, succeeds on the two grounds first advanced, that is, the pre-sentence detention ground and the parity ground.
11 In R. v. Renzella[1] in 1996, this Court said in relation to pre-sentence detention not covered by s.18 of the Sentencing Act, that a court is "not only empowered but obliged as a matter of justice to take [such] pre-sentence detention into account". I pause to point out that the language of obligation is unambiguous. Since Renzella, it has been a matter which a sentencing Judge is bound to take into account in the way the Court there said. The Court went on to say in Renzella:
"Pre-sentence detention to which s.18 does not apply is to be taken into account in the exercise of the court's discretion. It should ordinarily be taken into account at the first opportunity and not left to the court imposing a later sentence."
12 More recently, in R. v. Chimirri[2], this Court adopted just that approach. As the judgment of the Court records, the prosecutor conceded that the Judge had not taken into account, for the purpose of exercising his sentencing discretion, the fact that the applicant in that case had spent some six months in gaol awaiting trial. In that case, as in this, the relevant period of custody was a period spent on remand on an unrelated charge. The applicant remained on bail in relation to the charge the subject of the sentencing appeal. In exercising the sentencing discretion afresh, the Court in Chimirri (per Winneke, P., who delivered the judgment of the Court) said this:[3]
"Remand in custody in the circumstances that we have described counts as time served, in a general sense, awaiting trial on this charge, and it falls to us to consider, in fixing a sentence which we think is appropriate both to the circumstances of the crime itself and to the circumstances that we have been describing, and to fix a sentence which we think fits all the necessary components of this offence."
Although both in Renzella[4] and in Stares[5] the Court said that the matter to which we referred and to which those cases refer is not a mathematical exercise, it is nevertheless a matter that ought to be taken into account generally in determining what the appropriate sentence ought to be. In all the circumstances, we think that some account ought to be taken of 189 days, but not the whole of the 189 days, and in our view it would be appropriate in all the circumstances of this case to allow three months in respect of that time spent in custody."
13 In the present case, it is apparent from the transcript of the argument on the plea that the learned sentencing Judge had his attention drawn to that line of authority. His Honour was asked by counsel for Mr Wade to take into account the time spent in custody on remand in relation to the unrelated offence - unrelated in the sense that it was not a matter before that Judge. As I have pointed out, it has been clear since the decision in Renzella that this is a matter which, where it arises, the sentencing Judge is obliged to take into account.
14 In my opinion, persons standing for sentence are entitled to expect that, where a submission is made that an amount of pre-sentence detention should be taken into account, the sentencing Judge should clearly state that the matter has been considered, whether or not it affects the final result. If, as in Chimirri's Case, something less than the full amount of the relevant pre-sentence detention is taken into account in the sentencing, it is important that the sentencing Judge state to what extent it has been taken into account. The necessity for that specification is to inform the court which will be dealing with the unrelated offence on a later date (assuming the person to have been convicted of it). The later court needs to know that there is a part of that detention period which was not taken into account on the previous occasion, such that it remains to be taken into account in accordance with s.18.
15 Mr Southey submitted that there was sufficient in the reasons for judgment to indicate that the sentencing Judge did take the pre-sentence detention into account as he was asked to do. He refers to paragraph [28] of the sentencing reasons. I do not accept that submission. With respect to Mr Southey, I think, on a fair reading of paragraph [28], that all his Honour was there referring to was the personal circumstance that Mr Wade was then in custody. There is nothing in the language of that paragraph to suggest that any attention was paid to the length of the period of pre-sentence detention - something in excess of four-and-a-half months - which had been the subject of the submission.
16 It follows, in my opinion, that his Honour fell into error in failing to take that matter into account. That was a relevant consideration which he was bound to take into account. His not having done so, it follows, in accordance with the well-known principles for review of an exercise of discretion, that the exercise of the discretion miscarried and that it falls to this Court to re-exercise it.
17 Further, in my opinion, the ground of appeal based on disparity is also made out. Mr Southey for the Crown very properly conceded that, apart from the length of time during which Mr Wade was trafficking, the position of Faragher was in every respect more serious than that of Mr Wade. As his Honour records, Mr Faragher was the organiser and the ringleader of the manufacturing enterprise discovered by the police on that day. Unlike Mr Wade, who pleaded guilty, Mr Faragher pleaded not guilty and the Judge made a point of noting Mr Faragher's lack of remorse. As already noted, Mr Wade has no prior convictions, whereas Mr Faragher has previous convictions for assault, damaging property and threatening to kill. The distinction between them in relation to their past history is a very material one, in my opinion.
18 As to the comparison between their trafficking conduct, it seems to me that, at worst for Mr Wade, one would regard them as being on an equal footing, one being the ringleader of a manufacturing enterprise, the other having engaged in a sustained period of trafficking by sale, at a low level and for his own use. Making that assumption, for them to have had exactly the same sentence imposed must mean that no account was taken of Mr Wade's plea of guilty. It is to be expected, as has often been said, that a real and significant discount will be given for a plea of guilty. Another material distinction was that Faragher was convicted of a second and separate offence, that is, of possessing equipment for the purposes of trafficking. In my opinion, a comparison of their respective positions - Wade's on the one hand and Faragher's on the other - would be likely to engender "a justifiable sense of grievance", in the sense described in R. v. Taudevin[6].
19 In the circumstances, it is unnecessary to deal with the submission as to manifest excess.
20 In my opinion, having regard to considerations of parity and taking into account the pre-sentence detention served on remand on the unrelated charge, the appropriate sentence would be a sentence of 18 months' imprisonment on the count of trafficking, with a non-parole period of 10 months. In arriving at that decision in the exercise of the sentencing discretion, I have thought it appropriate to take into account two months of the period served between 17 December 2004 and 27 April 2005.
22 I agree that the learned sentencing Judge erred in failing to take into account the number of days of pre-sentence detention served on the unrelated count and that that re-opens the sentencing discretion. I further agree with the learned President's re-sentencing disposition, both in respect of the head sentence and non-parole period.
2. The sentence imposed on 27 April 2005 is set aside. In lieu thereof the appellant is sentenced to 18 months' imprisonment on count 1.
3. The Court fixes a non-parole period of 10 months.
4. The Court declares that as at this day the period to be reckoned as already served under the sentence is 257 days and directs that the fact of the making of this declaration and its details be noted in the records of the Court.
R
Wade [2005] VSCA 276