R v Wyllie [1998] VSCA 123

Court of Appeal (Vic)|1998-11-24|Before: WINNEKE, P., CHARLES and BUCHANAN, JJ.A.

The applicant seeks leave to appeal against his sentence on a number of grounds.

The applicant is aged 47 years. He has 21 convictions from five court appearances between 1968 and 1991. Seven of those prior convictions were for dishonesty and two related to drug offences.

The charge of trafficking alleged that it took place between 1 July 1994 and 17 January 1997 and concerned a business in which the applicant and one Lambert were partners. Lambert and other persons concerned with the business gave evidence against the applicant at his committal.

In 1994 the applicant was out of work. He had left school in the United Kingdom at the age of 15 and had immigrated to Australia two years later. He became a rigger and worked at that trade until 1994, when he was retrenched, and after that date he had only obtained part-time work. The offence of trafficking occurred after the applicant had lost full-time work.

The specific acts of trafficking which the Crown were able to prove consisted of the sale of a couple of grams of amphetamine to one Garzoli twice a week for some six months from July or August 1994. The other acts arose from a partnership entered into between the applicant and Gary Lambert at the end of 1996. Lambert had been retrenched from his employment with Visy Board and had received a redundancy payment of $55,000. He paid the whole of that money to the applicant and became the applicant's partner in the business of dealing in amphetamine. The applicant supplied the knowledge to conduct the business, dealt with suppliers, found customers and showed Lambert how to prepare uncut amphetamine for sale. Between September 1996 and November 1997 the applicant on four occasions supplied quantities of uncut amphetamine to Lambert - one delivery weighing two ounces and the other three one ounce each.

Lambert gave evidence at the applicant's committal. He said:

"As soon as I gave him the money he started to introduce me to the people I would be dealing with. I met a few people at Pot Black and the rest of the people like Laurie and Debbie would come to my house while John was there. This took about two weeks. In that time John was always present when we dealt. We would sell anything from an ounce for between $700 and $750 down to half a gram for $25.00. I remember being introduced to Fletch by John at Pot Black one time. John introduced me and gave Fletch my mobile phone number. John gave him the ounce and I think Fletch said he would owe the $700. This then became the norm. John would do most of the dealing from Pot Black and I would receive phone calls on my mobile phone from people wanting to score. Most of the time I would deal from my house."

The charge of receiving arose from the theft of a Ford station wagon from RGS Motors. The applicant took part in altering the appearance of an older Ford owned by his son to resemble that of the stolen car. The registration and compliance plates were switched from the son's car to the stolen car, and the son's car was crushed in a wrecker's yard.

The basis of the applicant's application is that the sentence is excessive having regard to the applicant's plea of guilty, the quantity of amphetamine in which he dealt and the sentences imposed on his co-offenders, principally Lambert.

The plea of guilty occurred at a late stage, and the applicant points out that that was due to the Crown altering the charges so that the charge of trafficking to which he eventually pleaded guilty was available only shortly before he entered his plea. That was a matter of which the learned sentencing judge was informed and which he appeared to accept.

The quantity of amphetamine the subject of direct evidence was relatively small. However, the circumstances surrounding the transactions proved by the Crown were eloquent of a wider business being conducted by the applicant. That business may not have been one dealing with sales of very large amounts, but it seems to have been far more than insubstantial, trivial or ad hoc. Rather, it was a steady, well-planned and efficiently conducted business specialising in small amounts of amphetamine.

The other participants in the applicant's business were dealt with more leniently than the applicant. However, they received discounts for acting as informers. Lambert was sentenced to a term of three years and six months' imprisonment with a minimum term of 12 months. I do not regard his treatment as requiring a different sentence to be imposed upon the applicant. Apart from his role as an informant, Lambert was not the creator of the business: Lambert lent his house and gave his money, but the idea and its execution were the work of the applicant. The business was not insignificant. It was one in which the applicant's only interest was profit. He did not use amphetamine or other drugs himself.

In all the circumstances, I am of the opinion that the sentence was well within the range open to the sentencing judge.

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

Mr Wyllie, do you understand what we have said?

Drugs, Poisons and Controlled Substances Act 1971

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