R v Wall [1999] VSCA 88

Court of Appeal (Vic)|1999-05-20|Before: PHILLIPS, C.J., CALLAWAY and BUCHANAN, JJ.A.

The applicant, who is now aged 37, pleaded guilty in the County Court to one count of trafficking in cannabis L between 1st September 1996 and 28th May 1997, one count of possession of cocaine, one count of possession of LSD and one count of handling stolen goods, contrary to ss.71, 73(1)(b) and 73(1)(c) of the Drugs, Poisons and Controlled Substances Act 1981 and s.88 of the Crimes Act 1958. The maximum custodial penalties having regard to the dates of the offences were 15 years' imprisonment, 12 months' imprisonment, 5 years' imprisonment and 10 years' imprisonment respectively.

A plea for leniency on behalf of the applicant was heard on 4th December 1998. The learned sentencing judge took time for consideration and on 15th December 1998 sentenced the applicant to two years' imprisonment on count 1, two months' imprisonment on count 2, six months' imprisonment on count 3 and 12 months' imprisonment on count 4. His Honour directed that six months of the sentence imposed on count 4 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of two-and-a-half years' imprisonment, of which 15 months were suspended for two years. A declaration was made regarding pre-sentence detention, together with a forfeiture order, a disposal order and an order pursuant to of the .

On 26th February 1999 the Registrar granted the applicant an extension of time within which to seek leave to appeal against sentence. There are two grounds of appeal in the notice of application, namely that the learned judge erred in not accepting that hardship in the applicant's case was exceptional and that the sentence imposed was in all the circumstances manifestly excessive. Mr Holdenson invited us to treat ground 1 as a particular of ground 2.

Before turning to counsel's submissions I shall say something briefly about the circumstances of the offences and the circumstances of the offender bearing on the question of hardship. On 26th February 1997, following a covert search a week earlier, the police executed a search warrant at a factory in Candlebark Court, Research. They found 91 cannabis plants ranging from immature seedlings to fully mature flowering plants, together with a quantity of dried and drying cannabis material, hydroponic equipment, tubs, lights, piping and nutrients. The factory was partitioned into several sections. Three rooms contained the cannabis plants that were being grown. The estimated value at wholesale prices of the cannabis found was between $60,000 and $75,000. The lessee of the factory, one George Benov, and his wife were present. They were arrested, as was their son who arrived whilst the warrant was being executed. The applicant had attended with Benov in September 1996 to arrange the leasing of the premises. (The first date in count 1 on the presentment is the date of commencement of the lease.) Thereafter on numerous occasions she was observed entering and leaving the factory but no legitimate business was ever carried on in it.

A further search warrant was executed on 28th May 1997, but this time at the applicant's home in Wantirna South. Approximately eight kilograms of packaged cannabis and six seedling plants were found. The packaged cannabis was divided into seven small resealable plastic bags marked with initials or names. The applicant's diary organiser and other documents that were seized set out figures and initials or names, in some cases corresponding with those on the packages. The figures referred to amounts in hundreds and thousands of dollars. Hydroponic equipment was also located in the garage and downstairs in the main area of the house, the equipment being of the same brand as that located at the factory at Research. The estimated wholesale value of the cannabis found on this occasion was approximately $64,000. Also located were approximately a quarter of an ounce of cocaine, 111 tablets of LSD and a quantity of jewellery with price tags on the various items totalling some $30,000. They were the foundation for counts 2, 3 and 4 on the presentment.

The applicant, whose marriage broke up five or six years ago, has two children, a boy who was aged 13 at the time of sentence and a girl who was aged 10. At the hearing of the plea a deal of attention was focussed on the effect on them of a sentence of immediate incarceration imposed on their mother. It was submitted that the applicant would lose custody or residence and evidence was led to show that it might take up to two years to reverse the position once she was released from prison. It was also likely that the children would be taken out of the private school that they were attending and transferred to schools in the State system in the suburb where their father lives. He and his wife were said to be people with deep, if not fanatical, religious beliefs, to such an extent that a consent order was made by the Family Court in 1996 restraining the children's father from discussing any type of religion or religious matter in their presence.

A report by Mr Jeffrey Cummins was in evidence before the learned judge. He also gave viva voce evidence, of which we have his Honour's note, the transcript of the plea being incomplete. Mr Cummins interviewed both children on their own on 19th November 1998. The girl said that she was uncomfortable in the company of her stepmother and did not want to live with her father, but there was some childish excitement on her part regarding the prospect of relocation. She was not tearful and had some understanding of her mother's position. Her brother by contrast was tight-lipped, distressed and hard to put at ease. It appeared that he gets on reasonably well with his father, although he appreciates that he is obsessed with religion. The boy has no friends in the area where his father lives.

The learned judge expressed his conclusion on this branch of the plea by saying that he did not accept counsel's submission that the hardship that would be suffered by the children was to be regarded as exceptional in accordance with the authorities; but his Honour did take into account that a sentence of imprisonment would be harder for the applicant to bear because of her separation from her children and her concern for their wellbeing. He also said that there was some merit in the submission that had been made that again risking her relationship with her children would be a strong deterrent against re-offending.

It will be apparent from what I have already said that Mr Holdenson conceded that his Honour was right in not regarding the hardship to the children as exceptional. In my opinion that concession was properly made. These children are more fortunate than those of many prisoners, who are often either younger or without another parent with whom they may reside.

Some of the authorities on this subject are set out in the Victorian Sentencing Manual at paragraphs 17.535 to 17.540. In his written outline of submissions Mr Hillman referred also to Director of Public Prosecutions v. Day (1998) 100 A.Crim.R.275 at 277-279. That was a case of a single parent with three teenage children who pleaded guilty to supplying heroin and was sentenced to 18 months' imprisonment to be served by way of periodic detention. A Crown appeal against sentence was successful. Among other authorities referred to is R. v. Edwards (1996) 90 A.Crim.R.510 where, at 516, Gleeson, C.J. pointed out that justice will not be seen to be administered even-handedly if exceptions are made in cases which are not truly exceptional. It is not that the court does not feel sympathy for the children of offenders. It is rather that the court would fail to carry out its own responsibilities if it allowed such sympathy to deflect it in unexceptional cases. As Walters, J. said in Tame v. Fingleton (1974) 8 S.A.S.R.507 at 511, if a person's feelings for his or her family are those of genuine concern and affection, it behoves the person to avoid crime.

Mr Holdenson's submission laid emphasis on two aspects of the case, each of which was said to demonstrate that the sentence was manifestly excessive in the limited sense that I shall identify later. First, the applicant had pleaded guilty after a contested committal. Counsel submitted that that plea was entitled to weight because it had saved court time and expense and inconvenience to witnesses, and also, it was submitted, because the plea showed remorse. Mr Cummins had said in evidence that the applicant "has remorse to some extent". The learned judge expressly said in the course of his sentencing remarks that he took the plea of guilty and the time at which it was entered into account in favour of the applicant. Immediately before doing so his Honour referred to Mr Cummins's evidence. Counsel submitted that that was but a recital of the material, but in my opinion it shows that both factors were present to his Honour's mind and taken into account.

Secondly, there was the effect of a custodial sentence having regard to the position of the applicant's children. We were reminded of the evidence that had been led in that regard. I referred earlier to the prospect that their father would be likely to obtain custody. Other witnesses testified to the applicant's devotion to her children and to her concern for them, a matter to which reference is also made in Mr Cummins's written report. I have already mentioned the way in which the learned judge dealt with those matters, not as showing exceptional circumstances but as leading to the conclusion that service of a sentence of imprisonment would be harder for the applicant by reason of her separation from her children and her concern for their wellbeing.

The gravamen of Mr Holdenson's submission was that insufficient weight had been given to this factor, as with the plea of guilty and the remorse that it was said to evince. It was submitted that that conclusion appeared from a consideration of the 15-months term of immediate imprisonment. No criticism was made of the individual sentences or the measure of cumulation. The contention was that more of the total effective sentence should have been suspended.

I bear in mind that even a wholly suspended sentence of imprisonment is a very significant punishment: see ss.7(c) and 27(5) of the Sentencing Act 1991. But counsel essays a difficult task in trying to persuade a court that, although a partially suspended sentence was within the range, more of it should have been suspended. It was not suggested in this Court or in the court below that a wholly suspended sentence would have been appropriate.

Mr Hillman referred to the circumstances of the offences and especially the trafficking the subject of count 1. He pointed out its scale and the degree of the applicant's involvement. As the learned judge said, she was part of a sophisticated drug operation with substantial sums of money passing hands or, in the absence of money, jewellery. The trafficking was wholesale, not at street level.

The applicant had no relevant prior convictions, but general deterrence was rightly recognised by his Honour as an important sentencing consideration. To have suspended too much of the sentence would have undermined that objective as well, it might be thought, as some of the other sentencing purposes to which he was bound to have regard. Bearing those purposes in mind, and giving full weight to the matters on which Mr Holdenson laid stress, I am not persuaded that appellate intervention is warranted. His Honour took all the relevant factors into account and it is not shown that he failed to give them due weight. In my opinion, not only were the sentences and the direction for cumulation within the range but so too was the decision to suspend only 15 months of the total effective sentence.

For these reasons I would dismiss the application.

I agree with the conclusions of Callaway, J.A. and I would subscribe to his Honour's reasons. In this case the relevant circumstances made a custodial sentence inevitable. The same circumstances warranted an order for some suspension. The learned judge decided to suspend half the sentence. I am unpersuaded that involved error or that the result was to produce a sentence altogether outside the range of those properly available. In my opinion the application should be dismissed.

The order of the Court is that the application for leave to appeal against sentence stands dismissed.

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