R v Waugh [2009] VSCA 92

Court of Appeal (Vic)|2009-05-14|Before: VINCENT and NETTLE JJA and WILLIAMS AJA

CRIMINAL LAW - Sentencing - Trafficking and possession of a drug of dependence - Applicant sentenced to a total effective sentence of four years' imprisonment with a non-parole period of two years and six months - Parity and disparity in cumulation - Totality - Application refused - R v Djukic [2001] VSCA 226 referred to.

1 I have read the judgment of Nettle JA and agree that the application should be dismissed.

2 This is an application for leave to appeal from a total effective sentence of four years' imprisonment with a non-parole period of two years and six months imposed on the applicant on pleading guilty in the County Court at Geelong to one count of trafficking in methyl amphetamine (Count 22), one count of trafficking MDMA (Count 23), one count of possessing methyl amphetamine (Count 24), a further count of possessing methyl amphetamine (Count 25) and one count of being a prohibited person possessing an unregistered firearm (Count 26).

3 Most of the circumstances of the offending are described in the judge's sentencing remarks, as follows. In November 2006 police investigated an extensive drug ring which was then operating in the Geelong area. One Steven Dare was identified as the focal point of the ring. He carried on business as a large scale street level retailer of drugs and sourced his stocks of drugs from a number of different suppliers. The applicant was one of the larger suppliers, and supplied Dare with significant quantities of amphetamines as well as other illicit substances.

4 Between 4 December 2006 and 10 June 2007, police intercepted many telephone calls to Dare's mobile telephone. During once such call on 22 December 2007 the police heard the applicant supplying Dare with five ecstasy tablets for $125 (Count 23). In other calls, the police heard the applicant seeking money from Dare for drugs which the applicant had supplied.

5 On 29 December 2006 the applicant was intercepted by police for a licence check and, when his vehicle was searched, police found four zip-lock bags

containing 14 grams of amphetamines in the glove box. The applicant was arrested and taken to the police station where he was interviewed. During that interview, he admitted trafficking (that is part of the trafficking which comprised Count 22) but claimed, falsely, that he was being coerced to do so and that he was merely holding or transporting drugs.

6 The applicant was remanded in custody from 29 December 2006 until 4 January 2007, when he was bailed. Shortly after his release, he made contact with Dare again. The call was monitored by police and they detected the applicant supplying further amphetamines to Dare for sale to his customers. An undercover policeman sought to purchase amphetamines from Dare on 25 January 2007. Dare then travelled to the applicant's home to obtain the amphetamine needed to supply the undercover policeman (that is a further part of the trafficking comprising Count 22).

7 On 14 February 2007, the applicant supplied Dare with two bags containing crystal methamphetamine ('ice'), which Dare then on-sold to an undercover policeman for $200. On analysis it was found to be 20% pure. A similar transaction involving another two bags of 'ice' took place on 22 February 2007. On analysis, it was found to be 30% pure. (Those supplies were a further part of the trafficking which comprised Count 22).

8 On 18 February 2007, the applicant told Dare that a male person had stolen $18,000 from him. As the judge observed, the applicant was unemployed at the time and the $18,000 is likely to have been the proceeds of drug sales.

9 On 20 March 2007, the applicant was intercepted by police again and his car was searched. Police found in his wallet a list of customers indicating that a number of persons owed the applicant sums of money ranging between $50 and $900. They also found three small bags of amphetamines on the applicant's person (Count 25) and a large meat cleaver secreted under the dashboard cover. The police then went to the applicant's home where they found quantities of amphetamines, some MDMA tablets, and a .177 calibre air rifle underneath an entertainment unit in the applicant's bedroom. At that time, the applicant was a prohibited person by reason of an earlier conviction for armed robbery (Count 26). The applicant was again taken to the police station and interrogated and he made admissions to trafficking in amphetamines (a further part of Count 22) and that the tablets found in his possession were ecstasy or MDMA (Count 24).

10 Police later executed a search warrant at the applicant's former home and located a quantity of amphetamines and some lists of debts. They also found a letter which the applicant had written to the occupiers seeking their assistance with the collection of those debts.

11 Following committal hearings, the applicant was presented with three co-accused, Steven Laurence Dare, Cameron Scott Matthews and Craig William Doherty on a 26 count presentment. Another offender involved with Dare, Anthony James Bidmade, was separately presented.

12 The judge dealt at some length with the applicant's personal circumstances. He was born on 18 March 1980 and thus was 27 years of age at the time of offending. His mother was 17 years old when he was born and he never knew his father. His mother later formed a relationship with another man and bore him two sons, but that man died when the applicant was six or seven years of age and the next man with whom she formed a relationship was extremely violent and aggressive. The applicant was unable to continue to live with his mother and moved to another town where he began his secondary education, and he continued with it until leaving school mid way through Year 11. Thereafter, he began an apprenticeship as a mechanic and almost completed it before suffering extensive injuries in a motor accident on 19 May 2001. As a result of those injuries, he began to abuse alcohol and drugs. He fell behind in payments for the drugs which he was using and then formed a relationship with Dare, providing him with amphetamines as a means of obtaining amphetamines for himself and as a means of making money to alleviate his debts.

13 These were not the applicant's first drug offences. He has 15 convictions from six court appearances including convictions for possession and using drugs of dependence, namely, amphetamine, possession of a regulated weapon, armed robbery, burglary and theft.

14 The judge sentenced the applicant on Count 22 (trafficking methyl amphetamine) to three years and six months' imprisonment, on Count 23 (trafficking MDMA) to 18 months' imprisonment, on Count 24 (possession of amphetamine) to three months' imprisonment, on Count 25 (possession of methyl amphetamine) to three months' imprisonment, and on Count 26 (being a prohibited person possessing an unregistered firearm) to three months' imprisonment. His Honour directed that six months of the sentence imposed on Count 23 be served cumulatively on the sentence imposed on Count 22, making for the total effective sentence of four years' imprisonment.

15 Under Ground 1A of the proposed grounds of appeal, counsel for the applicant contends that the sentence of three years and six months' imprisonment imposed on the applicant on Count 22 (the count of trafficking methyl amphetamine) ill-accords with the sentences imposed on his co-accused on comparable counts of trafficking in amphetamine: in the case of Dare, four years' imprisonment; in the case of Matthews, two years' imprisonment; in the case of Doherty, two years and six months' imprisonment; and in the case of Bidmade, two years and six months' imprisonment.

16 In counsel's submission, the applicant is entitled to have a justified sense of grievance that the sentence which he received for trafficking amphetamine was only six months shorter than the sentence imposed on Dare; 12 months longer than was given to Doherty and Bidmade; and 18 months longer than was given to Matthews. In addition, counsel emphasised that:

The quantity of the drug sold by the applicant between 4 December 2006 and 20 March 2007 is unknown.

Dare was the acknowledged centre of the drug ring who trafficked on a daily basis and was involved in eight transactions with covert operatives. While the amount which Dare trafficked is also unknown it stands to reason, counsel says, that it involved a combination of each of the amounts trafficked by the applicant, Matthews, Doherty and Bidmade. The duration of Dare's offending was also three months longer that the applicant's, from 6 December 2006 until 9 June 2007, and Dare made no admissions.

Matthews' trafficking involved 89 telephone conversations between 20 May 2007 and 9 June 2007, indicating involvement in the distribution of amphetamine and other drugs on an ongoing basis, which included one sale of five grams of amphetamine for $1,000.

Bidmade's trafficking involved daily transactions between 4 December 2006 and 10 June 2007 and it was estimated that he had trafficked a total of 80 grams, of which a sample when analysed was found to be 30% pure.

Doherty's involvement was based on over 100 telephone calls occurring between December 2006 and June 2007 with a number of specific transactions confirmed by telephone intercepts, including a particular transaction apparently of 5.9 grams. He also made a no comment record of interview.

17 I do not accept that the sentences imposed on the applicant offend the parity principle. Although the factors to which counsel referred are relevant and significant, the concept of parity in sentencing 'is not to be likened to a principle of physics or mathematics which is necessarily to be applied, or necessarily to be withheld from application, in a particular case'.[1] Appellate intervention on the ground of disparity is not warranted unless there is a difference (or lack of difference) between two sentences that is manifestly excessive and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done.[2] In this case I do not think that is so.

18 The judge sentenced all four offenders, and in each case expressed himself to be particularly conscious of the requirements of parity, and it is plain from his Honour's sentencing remarks that there were a number of factors, in addition to those mentioned by counsel, which bore profoundly on the relative lengths of the sentences to be imposed. They included that the sentence imposed on Dare was heavily discounted because of character considerations which were unique to Dare. The sentence imposed on Matthews was relatively lighter than the applicant's sentence because Matthews had a far less serious prior criminal history than the applicant and had a tragic personal background. The smaller sentence imposed on Doherty reflected the fact that he was guilty of trafficking in only 5.9 grams of amphetamine. Bidmade was dealt with separately and differently to the other offenders because he was a youthful offender to which different sentencing considerations applied. It seems to me that when all those factors are taken into account, there can be no justified sense of grievance as to what was done.[3]

19 As Vincent JA stated in R v Jovica Djukic:[4]

The concept of parity of treatment is fundamental to our notions of justice and is integral to both the procedures and substance of our legal system. It is regarded as inherently unjust to discriminate, in the sentences imposed upon them, between equally culpable and otherwise equally positioned co-offenders. It is also accepted that there is no justice in the imposition of the same penalty upon persons who are not equal in these senses.

Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.[5]

20 In this case, the differences between the circumstances of each offender in effect required his Honour to undertake a difficult task of formulating sentences sufficiently disparate to reflect those differences while at the same time retaining some semblance of parity, and with respect I am unable to detect any error in the exercise of his Honour's discretion in the discharge of that task.

Ground 1B - Disparity in relation to cumulation

21 Under Ground 1B, counsel for the applicant complained that whereas the judge took the view with both Dare and Matthews that there should be minimal cumulation between the sentences imposed on the counts of trafficking amphetamine and the sentences imposed on the counts of trafficking MDMA, in the applicant's case the judge cumulated six months of the sentence imposed on Count 23 (trafficking MDMA) on the sentence imposed Count 22 (trafficking methyl amphetamine), and in counsel's submission the judge thus impermissibly sentenced the applicant on a more serious basis in respect of his single episode of trafficking in a drug other than amphetamine than was the case with the other offenders.

22 I do not consider that the judge acted impermissibly in cumulating more of one sentence on the other in the case of the applicant than in the cases of the other offenders. As was noted during the plea, the applicant committed the subject offences while on release on parole from a sentence of three and a half years' imprisonment imposed on 26 September 2003 for armed robbery. The circumstances as between the three cases were thus sufficiently different to warrant some degree of cumulation in the case of the applicant not necessary in the other two cases and, as the Crown submitted, in any event the degree of cumulation was only moderate.

23 The complaint under Ground 2 was that the cumulation of six months' of the sentence imposed on Count 23 ill accorded with the proper application of principles of totality, given that the offence was committed during the early part of the offending which comprised Count 22 and involved what was said to be a relatively small amount of the drug for a relatively small amount of money, occurred on a single date and, in counsel's submission, should be seen as identical to the main activity which comprised Count 22.

24 I am not persuaded by that submission either. I accept that, if viewed in isolation, the cumulation of six months of the sentence might be thought of as excessive. But here that measure of cumulation is to be seen against the background of the applicant's other offending and the circumstance already mentioned that the offence the subject of Count 23 was committed while the applicant was released on parole from the sentence of three and a half years for armed robbery imposed on him on 26 September 2003. As the judge put it in the course of argument on the plea, this was a man who did not think much of authority.

25 In my view, the judge was entitled to take the view that such contumacious disregard of authority when coupled with the background of the applicant's other previous and subsequent offending necessitated a penalty adequate to provide general and specific deterrence against the prospect of further repetition. In the circumstances, I am not convinced that the cumulation of six months of the sentence imposed on Count 23 was any more than necessary to reflect the additional criminality which that count entailed.

27 Counsel for the applicant argued that the individual sentences of three years' imprisonment for trafficking amphetamines and 18 months' imprisonment for a single instance of trafficking MDMA were in the circumstances of this case manifestly excessive. Effectively, however, the complaint was a development of a submission advanced under cover of proposed ground 5 that the sentence did not give any or sufficient weight to the applicant's pre-existing injury and to the difficulty which the applicant will have in dealing with the disability which it imposes.

28 The problem here is that the applicant lost his thumb in the motor accident to which I earlier referred and a subsequent operation to graft one of his toes onto his hand as a replacement thumb was not a success. Thereafter, the prison authorities omitted on one occasion to get the applicant to hospital for a follow-up review and he suffered an antibiotic resistant infection in his hand which took a long time to quell. He had to undergo further surgery to remove titanium plates and screws from his hand in order to ameliorate the infection. Perhaps understandably, he became concerned as to what he perceived to be the adequacy of treatment available to him in gaol. It has been proposed that he undergo another transplant operation, although the chances of success are only about 30%, and he is reticent to subject himself to such a procedure while still in prison where the facilities for post-operative care are not as amenable as they are outside. Until and unless he has the operation, however, he cannot begin on rehabilitation programmes designed to restore the proper functioning of his hand.

29 The matter was the subject of discussion between defence counsel and the judge at the hearing of the plea as follows:

HIS HONOUR: Yes, but right now he's got no urgent need for medical intervention. He can wait until he's ready, he wants to wait until he's out of custody before he has it done?

COUNSEL: Yes, sir.

HIS HONOUR: And that might be some time...

COUNSEL: It's also a matter, sir, that it might be that Your Honour is prepared to have regard to how that matter is going to impact upon how he serves his sentence.

HIS HONOUR: But he could have it done now, couldn't he, if he wanted to?

COUNSEL: If he wanted to.

HIS HONOUR: He has a cynicism or fear about gaol medical services, is that what it comes down to?

COUNSEL: In my submission, on the basis of the material it's understandable....

...

COUNSEL: So the issue of his medical condition is a live one to the extent at least that he's dealt with it whilst he's been on remand, whatever might be the case now insofar as what further treatment might be required, assuming that it is stable at the moment, my instructions are that, yes, he would wait until he was released before having any further surgical intervention but what that means is that ultimately that is going to delay ongoing rehabilitation in the sense that if the transplant had been successful in the first place he'd be well on the way to have a functioning hand which might in turn then flow into his ability to take up opportunities in the future. As I say he was ten days off completing an apprenticeship as a mechanic and that's one of a series of significant events in his life where - Your Honour sees perhaps what I might call a negative view of the world that plays out of Mr Joblin's report.

30 Counsel for the applicant submitted before us that the applicant's experiences of missed appointments, failed treatment, absence of a working thumb whilst undergoing sentence, and potential for further medical complications are matters that should have been given more weight by the sentencing judge.

31 I do not accept that submission. It is clear that the judge was conscious of the applicant's medical condition. He referred to it at some length in his sentencing remarks[6] and there is no reason to doubt that his Honour took it into account in his sentencing synthesis. Although the injury and its sequelae are relevant sentencing considerations, they are not of such a gravity as to necessitate any greater leniency than has in fact been shown. It might be different if imprisonment prevented the applicant from having the further surgery which he requires. But that is not the case. It appears from the material which was before the judge on the plea that if the applicant chose to go ahead with the surgery while he is in prison it would be undertaken in the same public hospital and by the same consultant and other specialists who would perform the procedure if the applicant were not in prison.

Furthermore, although I accept that prison is hardly the most desirable environment in which to recover from surgery, all the indications from the material which was before the judge are that the applicant would be given all the medical care in hospital and post-operatively which he needs.

33 I agree that the application should be dismissed.

[1] R v Tien & Ors [1998] VSCA 6, [39] (Tadgell JA).

[2] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 404 (Callaway JA).

[3] Cf Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610-620 (Mason J).

[4] [2001] VSCA 226, [25]-[26].

[5] Citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 608, [65] (Gaudron, Gummow and Hayne JJ), my emphasis.

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