R v Williams [2008] VSCA 95

4 The appellant's plea was entered in unusual circumstances. He was initially charged with the offence of trafficking in a large commercial quantity of a drug of dependence, but agreed to plead to the present charge as part of an arrangement reached between the Office of Public Prosecutions and those representing not only himself but also his son Carl. That agreement is evidenced by an email sent by the prosecutor to counsel for Carl Williams which provided in part:**

1. George Williams will plead to a "commercial quantity". On the basis that he demonstrates ill-health we will say a suspended sentence is within the range. He will agree to a PPO of $108,000.[1]

5 When the matter came on for plea the prosecutor made the following submission to the sentencing judge.

Your Honour, I need to say this. As you know Carl Williams ultimately pleaded guilty to a number of offences; the murders of Jason Moran, Mark [Mallia], Lewis Moran and the conspiracy to murder Mario Condello.

And Your Honour was told at the time of that plea by Mr Ross, senior counsel appearing for Williams, that the Crown conceded that that cleared the slate as far as Carl Williams was concerned and that's so. There were discussions with lawyers representing Carl Williams that led up to that plea as Your Honour will appreciate. At that time, that is in February or so of 2007, the Crown conceded in relation to the prisoner that should he be able to demonstrate significant ill health, the Crown would submit to the court in all the circumstances, that is, in relation to [witness "X"] in his position in relation to what would happen to Carl Williams, in that a wholly suspended sentence was within the range relation to the sentence Your Honour might impose. Now to that end, the Crown has been supplied with four medical reports on behalf of the prisoner. The learned prosecutor went through those reports, being one from Dr Dyna, of 1 June 2007, one from Dr Norman Lewis and two from a cardiologist, Dr Leanne Balding, dated 12 and 27 July 2007. At the conclusion of that he stated:

It's the Crown's submission, Your Honour, that the prisoner has demonstrated significant ill health and that in those circumstances the Crown is bound by the concession it made in February of this year to make the submission that a fully suspended sentence is within Your Honour's sentencing discretion.

There is no doubt that it is important that the court uphold, if possible, any concessions or so called "deals" that are made between the Crown and the defence, if they are proper and appropriate concessions. Here there is no doubt that the Crown were extremely anxious to conclude the potentially lengthy and costly series of trials that were being conducted in respect of these underworld murders, and there is no doubt that those involved in the prosecution of those matters determined that it was appropriate to make the concession.

6 In turn, her Honour observed in her sentencing remarks:

That concession of course means no more than the Crown would not appeal a sentence of imprisonment imposed in respect of George Williams and his involvement in the charge of trafficking that was wholly suspended. The Crown also reduced the quantity involved from large commercial quantity to commercial quantity.

However it is ultimately for the court to determine what sentence is appropriate. The court is not bound, in any way, by the negotiations between counsel as to the appropriateness or otherwise of a sentence. That is clearly the role and function of the court. It is, however, extremely important that the court take heed of what has been agreed and if possible, within the proper principles of sentencing, to give effect to, or at the minimum to give considerable weight to such agreements.

As indicated whilst it is important, it is also to be noted as Coldrey J stated in R v. Kenneth Charles Jarrett delivered on 30 June 1994, when the Crown had submitted that a wholly suspended sentence was appropriate for Mr Jarrett, his Honour said:

It is however only one aspect of the broader sentencing considerations to which the court must have regard.

I agree with his Honour's comments. It is an aspect to which I will pay, in this case, significant regard, but there are many other aspects of sentencing that equally have to be considered. For reasons that I shall set out shortly, I do not agree with the Crown and defence submission that a wholly suspended term of imprisonment would be appropriate in this case.

**7 It is her Honour's refusal to accede to the proposition that a suspended sentence is appropriate, which lies at the heart of this appeal.

8 Her Honour sentenced the appellant to imprisonment for 4½ years and directed that he serve a period of 20 months' imprisonment before being eligible for parole.

(1) That her Honour failed to properly assess the implications of the appellant's ill health in relation to the burden of imprisonment upon him.

(2) That her Honour had inadequate regard to the Crown's submission that a wholly suspended sentence was within the appropriate range.

(3) That her Honour gave inadequate weight to the appellant's guilty plea.

(4) That her Honour erred in respect of relevant findings of fact.

(5) That her Honour erred in sentencing on the basis that there is a '... normal minimal term'.

(6) The head sentence and the non-parole period are manifestly excessive.

1. The learned sentencing judge erred in her assessment of the implications of the appellant's ill health to the burden of imprisonment, by:-

(a) finding that, although the appellant was at serious risk of death from chronic heart disease, he "... may well have a better chance of survival in a prison with ready access to medical staff, than alone in [his] room at home" (reasons for sentence at T 84 [49]); and

(b) failing to find that the severity of the appellant's chronic heart disease had worsened since the commission of the offence (cf: reasons for sentence at T 81 [37] and [39]).

**11 There was evidence before the Court that the appellant suffered from a chronic heart condition. As a result of successive heart attacks he had undergone coronary arterial bypass grafts in 1984, 1994 and 2006. He no longer has any revascularable arteries and if he were to suffer further heart attack, the only treatment option open would be a heart transplant. This is a procedure for which he is not a good candidate. Her Honour accepted that there was no doubt the appellant suffered from severe heart problems with associated angina, diabetes, hyperlipidemia and hypertension. Her Honour also accepted psychiatric evidence that the appellant suffered from ongoing depression originally precipitated by the heart attack in 1984, although she was not satisfied that the depression could be related causally to the appellant's offending.

12 The ill health of a prisoner may be relevant to sentencing if it results in a situation of increased risk of ill health as a result of imprisonment, or if it increases the burden which a prisoner may suffer as a result of imprisonment.[2]

13 Ground 1 of appeal is directed to the burden of imprisonment.

14 It is clear that her Honour directed herself to the relevant principles. The complaint is that she failed to apply them properly to the facts.

15 The onus was on the appellant to establish on the balance of probabilities that imprisonment would place a special burden upon him.

16 Her Honour expressly accepted that the sentence 'must be moderated due to [the appellant's] and the hardship that may occasion [the appellant] in the prison system'.

17 The conclusion of specific fact first referred to in ground 1 of appeal responded to a submission of increased risk to health. That submission was rejected on the evidence before her Honour. It was rejected on the basis of evidence as to the health care available to the appellant in prison on the one hand and the circumstances in which he would live outside prison on the other.

18 The evidence before her Honour was that the appellant had stated to his psychiatrist that he lived with a lady but in separate rooms. This state of affairs was not the subject of contest when the appellant himself gave evidence. In turn, her Honour found that the appellant may well have a better chance of survival in prison with ready access to medical staff than he would have alone in a room at home. These conclusions were not only open to her Honour but accorded with the weight of the evidence.

19 Likewise, the second specific error alleged by ground 1 has no proper basis. Her Honour clearly recognised the severity of the appellant's current health condition in expressly acknowledging the relevance of that condition to the burden he would suffer as a result of imprisonment.

20 The fact that she made observations as to the existence of underlying conditions of angina, diabetes, hyperlipidemia, hypertension and depression at the time of the appellant's offending, does not detract from her ultimate conclusion that the appellant's sentence must be moderated having regard to both his mental and physical health. The observations as to the long term nature of the appellant's underlying health problems related quite properly to the issue of general deterrence to which I shall return. It follows that neither of the specific factual considerations raised by ground 1 can be regarded as somehow invalidating her Honour's consideration of the question of ill health.

21 The real issue arising on the evidence as to the appellant's health was what allowance should be made for the increased burden occasioned by his ill health which would be suffered upon imprisonment. It is apparent that her Honour took account of this factor and it may be seen as reflected in the relatively extensive parole period for which she made allowance. I am not persuaded that the sentence imposed demonstrates of itself that her Honour failed to give adequate weight to the appellant's ill health.**

1. The learned sentencing judge gave inadequate regard to the Crown's submission that a wholly suspended sentence was within the range, by finding that "[t]hat concession of course means no more than the Crown would not appeal a sentence of imprisonment imposed in respect of [the appellant]" (reasons for sentence at T 73 [5]).

**23 It is submitted that the finding referred to understated the context and significance of the Crown's submission.

24 As to context it is submitted that the Crown's concession was an integral part of the decision by both Carl Williams and the appellant to plead guilty to serious offences.

25 There was no evidence this was so in the case of Carl Williams and whether it was 'integral' or not to his plea is entirely speculative.

26 In the case of the appellant it is to be noted that quite apart from the concession as to appropriate sentence, he achieved agreement by the Crown to proceed with a lesser charge than that originally laid.

27 The real question is whether the reasons of the sentencing judge demonstrate that she failed to have proper regard to the Crown's concession. When her Honour's reasons are read as a whole they demonstrate:**

(a) that she accepted that it was 'extremely important that the Court take heed of what has been agreed', and that she indicated she would pay it 'significant regard';

(b) she carefully evaluated the evidence as to significant ill health, which was the issue identified by the Crown as fundamental to its position with respect to sentence;

(c) she decided this issue on the basis in large part of evidence not foreshadowed in reports prior to the making of the concession, but called viva voce before her; and

(d) her Honour approached the ultimate question of sentence independently as she was bound to do.

**28 It is plain from the sentencing judge's remarks that she did take the appellant's guilty plea into account. Further, she examined the background of that plea by elaborating the history of Operation Droil which led to the discovery of the offending, and by acknowledging the arrangement pursuant to which the appellant pleaded guilty.

29 It was never submitted to her Honour that the appellant's plea was an early plea and it is plain that she had regard to the sequence of events in which it occurred.

30 Insofar as remorse is concerned, her Honour had before her the history of offending disclosed by Operation Droil, evidence as to the appellant's age and background and evidence from the appellant himself. No submission of remorse was put to her Honour and she was entitled on the evidence before her to draw the conclusion of lack of remorse.

31 Indeed, a principal contention advanced on behalf of the appellant and rightly rejected by her Honour, was that the death of the appellant's first son somehow excused continuing drug trafficking with his second son.

32 There is no basis for concluding either from the sentence itself or from her Honour's reasons that she failed to give due weight to the appellant's plea of guilty.**

1. The learned sentencing judge erred in her findings of fact as to the circumstances of the offence by sentencing the appellant on the basis that:-

(a) he had trafficked in a large commercial quantity of amphetamine, rather than a commercial quantity as alleged on the presentment; and

(b) finding that the appellant and his son had been supplying the witness X with amphetamines for "... a period of approximately two and a half years" (reasons for sentence, T 75 [13]) when the presentment was confined to the period 11 December 2002 to 27 July 2004.

**34 At the outset of her sentencing remarks her Honour expressly recorded that the appellant pleaded to one count of trafficking between 11 December 2002 and 27 July 2004 of not less than a commercial quantity of methylamphetamine.

35 She went on to summarise the circumstances of the offending, and to refer to evidence of dealings extending to a large commercial quantity. It had been agreed before her by the appellant's counsel that the prosecutor's summary of events in this regard was an accurate statement of the situation.

36 I do not infer from her Honour's remarks, that she did other than sentence the appellant in respect of the offence charged.

37 Likewise, although in the course of sentencing, her Honour at one point referred to a period of 'approximately 2½ years' of trafficking', it is plain from a reading of her Honour's reasons as a whole that her Honour had in contemplation the period between December 2002 and 27 July 2004.

38 The nature of trafficking in issue was not disputed before her. In turn, I do not infer the slip now relied on with respect to the period of 'approximately 2½ years', was material to her Honour's reasoning or to the sentence ultimately imposed.

39 At best from the appellant's point of view, the agreed evidence showed the trafficking in which he was involved was at the upper limit in terms of quantity, of an offence bearing a maximum penalty of 25 years. Neither the sentence ultimately imposed, nor her Honour's sentencing remarks, read as a whole, suggest that she misapprehended the relevant extent of the offending.**

1. The learned sentencing judge erred in sentencing on the basis that there is a "... normal minimum term" (reasons for sentence at T 85 [57]).

I intend to impose a lower than normal minimum term, in all the circumstances relating to your health, both physical and mental, and the other factors to which I have referred.

42 There is nothing inappropriate in this observation. Her Honour was simply saying that the appellant was in her view entitled to a larger parole period by reason particularly of his personal circumstances, than she would normally have regarded as appropriate to the offence.

1. The head sentence and non-parole period are manifestly excessive.

**44 There was no manifest excess in the sentence imposed. It is true that the appellant had only one prior conviction of relevance and as her Honour recorded this was of 'very minor relevance'. It is also true that he was not the head man involved in the trafficking. Nevertheless, the appellant was a mature individual who engaged in ongoing trafficking of methylamphetamine over an extended period of time and solely for the purpose of gain. As her Honour held, he was involved in decision making and played a significant assisting role to his son Carl.

45 Further, as her Honour held, the appellant's physical infirmity could not outweigh the need for a sentence imposing punishment reflective of the seriousness of the offence and the need for general deterrence. Indeed it raised an issue of particular sensitivity with respect to general deterrence. The Court could not be seen to send a message that drug trafficking by the physically infirm would be excused.

46 This said, her Honour accepted the appellant was unlikely to offend again. She paid due regard to the appellant's plea of guilty and the pecuniary penalty order which had been made against him. She also took express account of the probability that by reason of his physical and mental infirmity the burden of imprisonment would be a heavier one upon the appellant than it would otherwise be. In my view the sentence imposed cannot be characterised as manifestly excessive and was in fact appropriate in all the circumstances of the case.

1. Your client will give information relating only to Dale;

1. We will not charge Roberta or George Williams in relation to any matter of which we have knowledge;

6. This will clear the slate as far as your client is concerned;

1. As to sentence neither side will suggest to the judge an appropriate term of years.

[2] R v Smith (1987) 44 SASR 587; R v Verdins [2007] VSCA 102; (2007) 16 VR 269.