R v Williams [2005] VSCA 274

1 I agree with Nettle, J.A., for the reasons he has stated, that the appeal should be allowed only for the purpose of reducing each of the head sentence and the minimum term by 32 days. Otherwise the appeal should be dismissed.

2 I agree with Nettle, J.A., for the reasons given by him, that the application to lead fresh evidence should be refused and the appeal should be dismissed, save to the extent referred to by his Honour.

3 This is an appeal by leave[1] from a total effective sentence of seven years' imprisonment with a non-parole period of five years' imposed on the appellant on his conviction on one count of between 12 April 2001 and 19 May 2001 trafficking in drugs of dependence, namely, 3, 4-Methylenedioxy-N-Methylamphetamine ("MDMA"), and Methylamphetamine in quantities that were not less than the commercial quantity applicable to those drugs of dependence (count 1); and one count of between 12 April 2001 and 19 May 2001 trafficking in a drug of dependence, namely, Cocaine, (count 2); to both of which the appellant pleaded guilty.

4 Two grounds of appeal are advanced. First, it is alleged that the sentences imposed were manifestly excessive having regard to the appellant's pleas of guilty, the delay between commission of the offences and sentencing; the onerous circumstances in which it is said that the appellant's sentence is likely to be served; and the adverse effects of the circumstances of imprisonment upon the appellant's mental health. Secondly, it is contended that, by reason of matters that have arisen since the date of sentencing (concerning the onerous nature of the appellant's imprisonment), and upon which it is sought to adduce fresh evidence, the true significance of relevant circumstances extant at the time of sentencing is to be put into greater perspective, calling for the intervention of this court to avoid a miscarriage of justice.

The facts

5 The facts of the matter appear from the sentencing remarks. Early 2001 in police began an operation designed to target drug trafficking in the western suburbs of Melbourne. They used a range of methods including covert surveillance and the electronic interception of telephone calls. As part of the operation an undercover police officer known as "Jimmy" was introduced to the appellants' co-accused, Walter Foletti, and thereafter there was a series of meetings between Jimmy and Foletti in the car park at a McDonald's restaurant in Sydenham. Each meeting was tape recorded by police.

6 The first relevant meeting took place on 12 April 2001. On that occasion Foletti sold Jimmy 500 Ecstasy tablets at a price of $8,500 and provided Jimmy with a free sample of cocaine (which was later found to be 35% pure). During the meeting Foletti also told Jimmy that he could supply up to 50,000 Ecstasy tablets and cocaine and amphetamine. After that meeting Foletti was followed covertly by police and was observed to meet the appellant at the Water Gardens Shopping Centre.

7 The next relevant meeting between Foletti and Jimmy was on 22 April 2001. During that meeting, Foletti agreed to supply Jimmy with an ounce of cocaine for $5,000 and told Jimmy that he was expecting another shipment of imported Ecstasy tablets, which would contain MDMA, and that they would be available for purchase by Jimmy for the sum of $13 per tablet, provided he purchased a minimum of 25,000 tablets.

8 The sale of the ounce of cocaine was completed on 24 April 2001 (for the sum of $5,000 as agreed) and immediately after that transaction Foletti drove to the Water Gardens Shopping Centre where he collected a female companion and then drove with her to the appellant's home.

9 On 2 May 2001 Jimmy telephoned Foletti and arranged to purchase 2,000 Ecstasy tablets the following day and, on the following day, Foletti met Jimmy as arranged and sold him the 2,000 Ecstasy tablets for the sum of $26,000. Those tablets alone contained a commercial quantity of MDMA and a commercial quantity of methylamphetamine.

10 On that occasion Foletti also provided Jimmy with samples of four differently coloured and embossed tablets. Foletti told Jimmy that they were Ecstasy, and he offered to sell Jimmy tablets of that kind at a price of $8.00 per tablet. Foletti produced a bag with 1,000 blue tablets embossed with the letters XTC, and claimed that they were the best Ecstasy available, and Jimmy replied that he would like to purchase 2,000 of those tablets. Foletti next used his mobile telephone to call his supplier, the appellant, and spoke in terms which made it clear that he was placing an order for a further 1,000 Ecstasy tablets. Foletti then sold Jimmy the first 1,000 blue XTC tablets for $13,000 and told Jimmy that he would be able to get the further 1,000 tablets in an hour once his boss had obtained them.

11 Foletti next telephoned the appellant and said: "Can you go and grab it for me?", to which the appellant replied: "I'll go now, okay mate". Immediately after that call, police observed the appellant leave his home and drive to the Yarraville area and then later to return to his home. Some time after that Foletti was seen to leave the appellant's home and to drive to the McDonald's car park at Sydenham. He was carrying a further 1000 blue ecstasy tablets obtained from the appellant. He met Jimmy at the car park and sold him the second batch of 1,000 tablets and also told him that if given sufficient notice he could obtain 26,500 Ecstasy tablets and store them in his house ready for sale without delay. At the end of the meeting he drove back again to the appellant's home.

12 On 13 May 2001 Foletti had another meeting with Jimmy at the McDonalds car park at Sydenham at which they further discussed the sale of 26,500 Ecstasy tablets.

13 On the afternoon of 14 May 2001, Foletti agreed to sell two ounces of cocaine to Jimmy and following that meeting Foletti telephoned the appellant and asked him to obtain "two soccer balls" (meaning two ounces of cocaine). The appellant agreed but said that it would take him up to an hour to get them. Later that afternoon Foletti attended at the appellant's home and then returned to the McDonald's car park at Sydenham where he completed the sale of the two ounces of cocaine to Jimmy for $8,600.

14 On that occasion, Jimmy told Foletti that he also required 27,500 Ecstasy tablets and Foletti, quoted a price of $316,500 for the full 27,500 tablets and said that he would need only a day's notice to fill the order.

15 On 18 May 2001, Jimmy telephoned Foletti, and ordered "ten soccer balls" (meaning 10 ounces of cocaine). Foletti said that there would be no problem about that (although as events transpired that transaction was not completed before Foletti's arrest). Jimmy also asked Foletti if he could supply the 27,500 Ecstasy tablets the next day and Foletti said there would be no problem about that. That evening Foletti and Jimmy had a further telephone conversation in which Foletti told Jimmy that the sale of 27,500 tablets was confirmed and could proceed the next day.

16 The next day, Saturday 19 May 2001, Jimmy telephoned Foletti and arranged to meet him in the course of the day. Jimmy said, however, that he did not want to do the full deal for the 27,500 tablets all at once. So it was agreed to proceed with the sale of 8,000 tablets for $100,000 with the balance of the sale to take place later in the day. Foletti met Jimmy as planned shortly after 2.30 p.m. in the McDonalds car park. He got out of his car and sat in Jimmy's car and they spoke for some time. Foletti had his nephew, Pablo Foletti, with him in the car and asked him to go and get the tablets. Pablo went as requested to Foletti's home and retrieved 8,000 Ecstasy tablets while Foletti remained with Jimmy. Pablo returned and handed the 8,000 Ecstasy tablets to Foletti and Foletti then sold them to Jimmy for $100,000 in cash. Those 8,000 tablets alone contained commercial quantities of both MDMA and methylamphetamine. After that sale had been completed Jimmy confirmed with Foletti that he wished to purchase the remaining 19,500 tablets. Police then observed Foletti and his nephew drive back to Foletti's home.

17 A short time later police watched as the appellant's wife left Foletti's home carrying a backpack. She was followed to the Water Gardens Shopping Centre in Sydenham where she met the appellant. She and the appellant then walked around the shopping centre before heading to a car which the appellant had driven to the shopping centre. As they stepped into the car, police approached and observed the appellant to be holding the back pack. When police examined the contents of the back pack, they found the $100,000 cash that Jimmy had paid Foletti for the 8,000 Ecstasy tablets. At that point the appellant and his wife were arrested.

18 Immediately after that arrest, Jimmy telephoned Foletti and arranged to meet to conclude the purchase of the remaining 19,500 Ecstasy tablets. Foletti and his nephew then drove back to the McDonalds car park in Sydenham where Jimmy was waiting in his car. Before they could meet, however, there was a series of phone calls by which Foletti was advised that the appellant and his wife had just been arrested at the Water Gardens Shopping Centre. Immediately thereafter, police arrested Foletti and his nephew.

The nature and gravity of the offences

19 As the sentencing judge observed, the offences of trafficking MDMA and methylamphetamine in commercial quantities were particularly serious. Over a period of five weeks a total of 10,500 Ecstasy tablets were sold to the undercover operative Jimmy for the sum of $134,500. It was apparent that on 19 May 2001, a further 19,500 Ecstasy tablets, stored at Foletti's house, were intended to be sold for $218,000 and that it was only Foletti's arrest on that date that circumvented that sale. The offences involved trafficking in quantities that greatly exceeded the then applicable commercial quantity of 1.25 kilograms of mixed substances under s.71 of the Act [2] and, as the judge said, there could be no argument but that the trafficking of such substances does enormous harm to the youth of the community. The fact that the tablets of Ecstasy contained MDMA was a clear example of the great danger that the criminal sale of such substances creates for the young people who are usually the end purchasers of the product.

20 The judge found that the appellant had ready access to substantial quantities of drugs which were able to be supplied at short notice, and that he did in fact supply the drugs in question to Foletti. Foletti in turn acted as a wholesaler. According to the judge, the two men were not in partnership. The appellant stood in the chain of supply at a level above Foletti. But, as his Honour found, both of them played an active and important part in an extensive and repetitive business of trafficking dangerous drugs of addiction. Their motive was commercial profit and, as the judge said, their offending was in cynical disregard of the welfare of those who would finally purchase and use the pernicious goods in which they traded.

Mitigatory considerations

21 In his sentencing remarks the judge also paid attention to a number of mitigatory factors which were mentioned in the course of the plea:

• First, his Honour referred to the appellant's plea of guilty and said that he accepted that, but for the plea, the appellant's trial would have been complex and lengthy and thus, because of the plea, the community had been saved considerable time and inconvenience and cost. His Honour said therefore that he took the plea into account in the appellant's favour.

• Secondly, his Honour noted that, although the plea was entered only shortly before trial, the fact that the appellant was being tried consecutively in relation to drug charges arising out of his arrest in 1999 was also to be taken into account. His Honour observed that the appellant had pleaded guilty to the presentment before the Court in effect as soon as the prosecution decided not to proceed with the 1999 charges. His Honour added, however, that whilst he intended to discount the sentence by reason of the plea, the matter did not appear to be overwhelming as a matter of mitigation or as an explanation for the appellant's relatively late decision to plead.

• Thirdly, his Honour referred to the delay in the matter being brought to trial. What were described as the 1999 allegations and the trial of these matters were first listed for trial in the County Court in September 2002. In July 2002, however, the Director of Public Prosecutions applied to adjourn the trials, principally because of an investigation into police corruption. His Honour accepted therefore that the delay had been caused by factors outside the appellant's control and that it meant that the appellant had had to live with the uncertainty which prolonged delay inevitably causes, for a period of approximately two years beyond the time at which one would have expected the matters to be resolved. It was therefore to be taken into account as a mitigatory consideration.

• Fourthly, his Honour noticed the hardship of the conditions in which the appellant would serve the period of imprisonment to be imposed on him. His Honour received as evidence a letter from the Commissioner of Corrections dated 28 September 2004 in which the Commissioner stated that for the foreseeable future the appellant was likely to be retained in a particular security unit at a prison which he identified. The judge said that he accepted that the circumstances under which the appellant would be held in that unit would be oppressive indeed, with significant consequences for the appellant's freedom of movement, and that at least for the foreseeable future it was unlikely that the appellant would proceed into the mainstream prison environment (which would give the appellant the opportunity to reduce his classification and engage in work and other activities). The judge further noted two psychological reports, the first from Mr Jeffrey Cummins, dated 21 September 2004, and the second from forensic psychologist, Mr Ian Joblin, dated 22 September 2004. Mr Cummins expressed the view that the appellant was reporting symptoms indicative of an adjustment disorder with mixed anxiety and depressed mood, the principal trigger for which appeared to Mr Cummins to be the circumstances of the appellant's incarceration in the security unit; about which the appellant was said to be obsessed and preoccupied. Mr Joblin expressed a similar opinion. He had reviewed the research in relation to the confinement of prisoners in maximum security conditions and noted that the appellant described a psychological state "entirely consistent with that outlined in the material". Mr Joblin concluded that the appellant's psychological state might deteriorate under a continuation of the then present conditions of detention.

• Fifthly, the judge took into account pre-sentence detention resulting from the fact that the appellant had been arrested on 25 November 1999 and bailed on 27 January 2000 in relation to matters which were later the subject of a nolle prosequi. Thus, the appellant had been held in custody for a period of two months on matters which would no longer proceed and the judge said that he took that matter into account in a global sense together with all the other circumstances relevant to the sentence.[3]

Sentencing considerations

22 As the judge observed, he was called upon by the Sentencing Act 1991 to manifest the community's denunciation of the appellant's conduct and generally to impose a just punishment. His Honour noted, correctly, that he was required also to take into account specific deterrence and the appellant's prospects of rehabilitation. But as his Honour put it, general deterrence was of greater significance because, as this court has said repeatedly, those who take the risk of trafficking in drugs should expect to be punished, and those, like the appellant, who play for high stakes and are detected conducting a business of trafficking in drugs of addiction for commercial profit must understand that they will receive severe punishment.

23 On that basis the judge sentenced the appellant on count 1 to seven years' imprisonment and on count 2, to one year imprisonment, with the sentences to be served concurrently, and his Honour directed that the appellant be imprisoned for a period of five years before being eligible for parole.

Ground 1

24 I turn to Ground 1 of Appeal. Contrary to the submissions made on behalf of the appellant, I do not consider that the judge failed to give sufficient weight to the appellant's pleas of guilty, or to the delay between the commission of the offences and sentencing or to the onerous circumstances in which it was said that the appellant's sentence is likely to be served, or to the adverse effects of the circumstances of the appellant's imprisonment on his state of mental health.

25 The maximum sentence for trafficking in a commercial quantity of a drug of dependence is 25 years imprisonment and, as the judge observed, the offences of which the appellant was convicted were serious examples of the offence committed with callous disregard for the persons likely to be affected by the offences and for no better reason that profit. Moreover, as the judge also said, in cases of trafficking in drugs of dependence, general deterrence is of the first importance. The individual sentences and the total effective sentence and the non-parole period which the judge imposed were calculated to give effect to that precept.

26 Close to twenty years ago Tadgell J observed in Moran & Byrnes [4] that drugs of addiction which are wantonly produced, distributed and used present to a modern civilised society an increasing burden that it is unnatural, evil and intolerable. Consequently, as Beach, J. said only a few years later in Sfintean,[5] society looks to the courts to act resolutely to afford it some measure of protection by the imposition of punishment, of a salutary, deterrent nature, both general and specific. In the fifteen years which have since elapsed, the position has never varied. It has remained society's expectation and it has remained the view of this court that offenders like the appellant who traffic in drugs of dependence in commercial quantities for commercial profit should be sternly punished indeed. In this case there was also a particular need for specific deterrence. The appellant had a prior conviction for attempting to traffic in amphetamines for which he was gaoled for 12 months of which 6 months was suspended for two years.

27 In the result I consider that a sentence of approximately 25% of the maximum penalty for offences of this type is anything but excessive. But for the mitigatory considerations urged on behalf of the appellant, the appellant could have and should have expected a significantly longer term of imprisonment. In view of the lesser term of imprisonment which was in fact imposed it is evident that the judge gave full weight to the mitigatory considerations to which his Honour referred (which were all of and more than those which are now asserted). I see nothing in the judge's consideration of the mitigatory considerations or his Honour's sentencing disposition to suggest that his Honour's analysis or conclusion was in any way affected by error.

Ground 2

28 That brings me to Ground 2 of Appeal and thus to the appellant's application to rely upon what is said to be fresh evidence of the hardship to which the appellant is and will continue to be subjected by reason of the nature of his imprisonment. It is in the form of two further reports of Mr Cummins, dated respectively 11 May 2005 and 12 September 2005.

29 In the report of 11 May 2005 Mr Cummins refers to his report of 21 September 2004, which was taken into account by the sentencing judge, in which Mr Cummins summarised a visit on 12 September 2004 to the prison where the appellant is incarcerated and his observations of the prison and its effect upon the appellant. He also records answers to a number of questions which he asked of the appellant in the prison on a further visit on 7 May 2005. The thrust of them was that the appellant was kept in his cell, to begin with for 23 hours of the day, and later for 21 hours a day, with little opportunity for exercise or relaxation, except for brief periods in two small exercise yards, and with restricted visiting privileges. His existence was therefore confined, mindless and boring, with few opportunities for social interaction with other prisoners and with little else to do except watch television. Mr Cummins opinion as expressed in that report was that the appellant:

"...is currently talking in a manner and now presenting in a manner consistent with the sort of changed mental state which is described in the clinical literature and in the research literature as representing the psychological impact of the phenomena described as 'stimulus deprivation'..."

" , it is inevitable any time [the appellant] spends under the current regime in [the prison he is in] will have an additional adverse psychological impact on him as opposed to if he were spending an equivalent amount of time in a normal Protection Unit or in mainstream."

30 In the report of 12 September 2005, Mr Cummins sets out large parts of conversations which he had with the appellant during a further visit to see him in the security unit on 10 September 2005. Apparently, the appellant expressed concern that he was not permitted to receive any visits from his father, for security reasons; that he had not been able physically to touch his mother or his wife during visits; that he was not permitted to receive visits from his daughter; that he was not permitted to have a personal computer, but only to make use of one of the two which are made available for the use of 15 prisoners in the unit; that he was not permitted Xanax tablets for sleeping difficulties, but only Imovane tablets two or three days per week; that he feared that his conversations including his conversations with legal advisers were being listened in on; and that he felt powerless and persecuted in the security unit. Mr Cummins stated that:

"Based upon [the appellant's] comments at interview I again assess Mr Williams as suffering from and Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-IV-TR, code 309.28). In my opinion a significant trigger for the development of the Adjustment Disorder has been the circumstances under which he is incarcerated within [the security unit]."

"Based upon my assessment of Mr Williams even if consent were granted for him to receive ongoing psychiatric or psychological treatment whilst he is in the [security unit] - it is most improbable that this treatment could proceed under confidential circumstances which, in my opinion, would significantly compromise the efficacy of any such treatment. In expressing this opinion, though, I emphasis it is my opinion Mr Williams should be receiving ongoing psychiatric or psychological treatment - based upon my assessment of his mental state. Certainly, Mr Williams' level of suspicion and paranoia has been observed to have increased in the time he has been held in [the security unit]."

31 In addition to this so-called fresh evidence, however, there is also an affidavit sworn on 28 October 2005 by Roderick John Wise, who is the Director of Prison Services, concerning the appellant's conditions of imprisonment. That affidavit deals in sequence with the appellant's complaints about his conditions and among other points it explains that all prisoners in the security unit are permitted to make 25 personal telephone calls a week of 12 minutes duration; that the appellant is routinely out of his cell for six hours a day; that he spends three hours in the exercise yard and three hours in the day room each day; and that his lunchtime and evening meals are delivered to him wherever he is at the relevant time. He has access to the prison library every Tuesday. There are also some employment and educational opportunities available to him but in which he has expressed a lack of interest stating that he wished to concentrate on his legal matters. It is also deposed that since December 2004 all prisoners in the security unit have been permitted a one hour contact visit per month with children under 16 years of age and that adults and children over 16 years can visit at weekends. Contact visits are currently restricted, but an additional contact visit facility is being constructed and the position will therefore improve by the end of December 2005. Personal computers are not permitted in the security unit because of the risk that they will be misused. But prisoners in the unit may book time on the computers which are made available for their use and the appellant has indeed booked the use of such a computer on 6 February, 14 February, 19 February, 12 March, 29 April, 7 June and 13 June and 27 August 2005. There has been no request from Mr Cummins or anyone else that the appellant receive psychiatric or psychological treatment. The only mention of it has been in the reports upon which the appellant now relies for the purposes of this appeal. But when and if such a request is made the appellant will be assessed by the psychiatrist nurse who attends the security unit daily or by the general practitioner who attends the unit weekly and on as needed basis.

32 Procedural fairness and common sense dictate that, if the so-called fresh evidence were admitted, the affidavit of Roderick John Wise should also be admitted, as well as yet a further affidavit, sworn by the appellant himself on 19 November 2005, in which he disputes some of the things deposed to by Mr Wise. In order to make sense of the conflict of testimony, it might also be necessary to permit cross examination and then to receive submissions on the results of that process. On an appeal such as this that would not be an appealing prospect. The capacity of this court to receive and deal with fresh evidence is limited at the best of times, even if not as limited as is sometimes imagined.

33 In the event, however, I do not consider that the so-called fresh evidence ought to be received. The law is that evidence of an event occurring after sentence is admissible in the court's discretion, in order to avoid a miscarriage of justice, if it shows the true significance of a relevant circumstance that existed at the time of sentence, even though its existence was then not known.[6] But just as plainly evidence of events occurring after sentence is not admissible merely to show that the sentence imposed is excessive or has turned out to be excessive.[7] As it appears to me the contents of both of Mr Cummins' reports fall into the latter category. Neither report throws light on or explains the circumstance that existed at the time of the sentence. Each does no more than show the working out of matters that were, in general terms, recognised and taken into account by the judge in his Honour's consideration of the effects on the appellant of being confined to the security unit. The sentencing judge's great experience as criminal trial judge and as a member of the parole board was such that he can have been in no doubt about the effects of incarceration in the security unit, and he took it into account in formulating his sentencing disposition.

34 It is also well to bear in mind the observation of Street, C.J. in R v Vachalec[8] that it is not the function of a court of criminal appeal and it is not equipped to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. As his Honour put it:

"Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government. Administrative miscarriage in the working out of a sentence cannot be remedied by this Court as it has no jurisdiction to enter the administrative field."

35 It is different in cases where significant miscarriage was so plainly foreseeable at the time of sentence as to justify a court of appeal finding error in the sentencing decision of the sentencing judge. But such cases will be rare and in my judgement this is not one of them.

Pre-sentence detention

36 Finally, however, it is necessary to record that during the course of oral argument counsel for the appellant drew to our attention that for 32 days between 28 September 2004 and 29 October 2004 the appellant was in custody after being charged with other offences. Evidently, it was not open to the judge to count those 32 days as pre-sentence detention within the meaning of s. 18 of the Sentencing Act 1991, but it was submitted on behalf of the appellant and conceded by the Crown that the judge should have taken those days into account in the exercise of his Honour's discretion in accordance with the practice followed in R v Renzella,[9] R v Stares[10] and R v Chimirri.[11] The judge was not at fault, because he was not made aware that the appellant was in custody during that period. But, technically, the fact that the judge did not take those days of detention into account is an error which re-opens the sentencing discretion. On that basis only, I would allow the appeal and vary the sentence the subject of appeal by reducing the sentence of imprisonment imposed on count 1, from seven years to six years and 333 days, and by reducing the non-parole period, from five years to four years and 333 days. Otherwise, the sentence should be affirmed.

[1] Leave was granted by Winneke, P., pursuant to s.582 of the Crimes Act 1958, on 13 May 2005.

[2] Drugs Poisons and Controlled Substances Act 1981

[3] R v Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123 at [42].

[4] (1987) 31 A Crim R 248 at 254.

[5] R.v. Sfintean 22/3/1990 CCA Vic, Beach J, Crockett J agreeing

[6] R v Eliasen (1991) 53 A. Crim. R. 391; R v Babic [1998] 2 V.R. 79 at 81; R v WEF [1998] 2 V.R. 385 at 388-9.

[7] R v McLachlan [2004] VSCA 87; (2004) 8 V.R. 403 at 407.

[8] [1981] 1 N.S.W. L.R. 351 at 352-3.

[9] [1997] 2 V.R. 88 at 96.

[10] [2002] VSCA 70; (2002) 4 V.R. 314.

[11] [2003] VSCA 45 esp. at [3] and [4], per Eames, J.A.