R v Xeba [2009] VSCA 205

1 This is an application for leave to appeal against sentence imposed in the County Court on 29 June 2009. Ms Xeba pleaded guilty to two counts of trafficking in a drug of dependence. She was sentenced as set out in the table below.

Two years of sentence suspended for three years.

2 The application for leave to appeal was filed on 8 July 2009. In view of the family hardship issues raised by the application, it was arranged for the matter to be expedited, by having the application for leave to appeal and the appeal itself (if leave were granted) heard together. The hearing took place before a court constituted by two judges.[1]

3 The Crown conceded that ground 1, contending that the sentence was manifestly excessive, was reasonably arguable. In our view, that concession was properly made and we would grant leave to appeal. For reasons which follow, however, we would dismiss the appeal.

4 Between 4 July 2005 and 27 October 2005, Telemak Verdhi and his wife Zhuliana Verdhi were involved in the business of trafficking drugs, mainly in the Epping, Thomastown and Reservoir areas. Three others were involved. They were: the present applicant, Rovena Xeba (the niece of Zhuliana Verdi); Ahmet Xeba (Rovena Xeba's husband); and Margarita Verdhi (Telemak Verdhi's sister).

5 The respective roles played by the co-accused are referred to below, in relation to ground 5. It is sufficient for present purposes to say that the actual drug sales were made predominantly by Telemak Verdhi. Tasks such as mixing, packaging and storage occurred at the homes of Rovena and Ahmet Xeba and Margarita Verdhi.

That the Learned Sentencing Judge made a finding of fact inconsistent with the agreed evidence before him without giving the Applicant an opportunity to address this finding, namely the extent of her involvement in the criminal enterprise.

7 As the submission for the applicant acknowledged, the Crown summary, tendered at the plea hearing, stated that the four accused 'were involved in the business of trafficking heroin and amphetamines to drug users predominantly in and around the Epping, Thomastown and Reservoir areas.' In the course of the opening, the prosecutor relied on individual summaries of evidence relating to each of the co-accused. These were described as 'annexures' to the prosecution summary. The annexure relating to the applicant stated: 'This document is not exhaustive but intended to supplement the previously filed Summary of Prosecution Opening.'

8 According to the written submission for the applicant:

the Crown clearly accepted that the annexures were an accurate description of the involvement of the individual accused in the offending.

It is true that Counsel for the Applicant accepted that by her plea of guilty to the charges that she was involved in the business of trafficking in the Giretti sense. However the extent of the criminality accepted by her plea of guilty was limited to the allegations that were placed before the Learned Sentencing Judge by the prosecutor [in the relevant annexure].

It is often very difficult with group drug trafficking cases to be certain about roles or to draw definitive conclusions about culpability based on apparent roles. Sometimes one member of a criminal enterprise has a talent for a particular activity, the exercise of which benefits all members of the group. Sometimes a dominant member keeps in the background. So caution is needed before drawing adverse findings against a particular accused to the criminal standard.

In this case I intend to sentence each accused for the activities in which he or she engaged. But in my view, it is important to keep in mind that each of the accused joined in the business.

However, this conclusion is subject to findings I am prepared to make concerning the particular influence that Mr Verdhi exercised over his wife. These findings justify mitigation of penalty in Mrs Verdhi's case but they mean that Mr Verdhi's offending must be seen as more serious than it would be if he had not pressured his wife to offend. However, I also need to keep in mind Mr Verdhi's substance addiction and the state he was in generally at the time of offending.[2]

(We have included his Honour's reference to the sentence differentiation between Mr and Mrs Verdhi, as it is relevant to a later ground.)

10 In our view, it was entirely appropriate for the sentencing judge to approach the sentencing task in this way. The applicant, like each of her co-accused, had pleaded guilty to Giretti trafficking.[3] She had thereby admitted to having 'joined in' the business, regardless of the particular role she played. Contrary to what appears to have been assumed by her counsel on the appeal, her plea of guilty was not confined to the particular acts attributed to her in the annexure. Rather, she was pleading guilty to having been a willing and knowing participant in the trafficking business described in the Crown summary. And she was sentenced on that basis.

As far as your role in the offending was concerned, you were not personally selling but it was agreed that I should sentence you on the basis that you were involved in packing and mixing, perhaps preparation is an appropriate description, as well as facilitating the movement of drugs from one place to another. ...

He then said at paragraph 106:

As with your co-offenders, I intend to sentence you paying regard to the role you played. It was an important role in my view.[4]

12 There was no breach of natural justice. Defence counsel was on notice as to the way in which the Crown sought to attribute criminal responsibility to the applicant. In the course of the plea, the prosecution provided a document entitled 'Prosecution response to matters raised on plea' which contained the following relevant statement:

Ahmet and Rovena Xeba

Their role was referred to during the plea as the "constrained role of mixer and packager of drugs and facilitator of the movement of drugs from one place to another".

It is submitted that such a role is an important cog within the trafficking business wheel. In terms of criminality, it is as vital to the overall success of the business as the actuall selling to drug users. It is submitted that their role when compared with that of Telemak Verdhi does not allow for a disparate sentence.

That the Learned Sentencing Judge did not apply the principles of parity correctly having regard to the fact that a co-offender with greater culpability was given a sentence of imprisonment which was totally suspended.

15 Both the applicant and her husband were given a total effective sentence of 36 months. (In the case of Mr Xeba, the judge fixed a non-parole period of one year and 10 months.) Telemak Verdhi received a higher sentence than the Xebas (48 months on each count of trafficking; a total effective sentence of four years and four months and a non-parole period of three years). His wife, Zhuliana Verdhi, received a lower sentence (24 months on each trafficking count; and a total effective sentence of two years and three months, which was wholly suspended for three years).

16 The complaint advanced on behalf of the applicant is that Zhuliana Verdhi was more actively involved in the business than the applicant herself. According to the prosecution opening, the assistance of Zhuliana Verdhi took various forms including:

(b) arranging transport for her husband to meeting places;

17 As appears from the sentencing remarks set out above,[5] however, what was decisive in relation to the sentencing relativities was the judge's acceptance that Zhuliana Verdhi's participation was the result of coercion by her husband. The judge said:

I accept that the family dynamic was such that you were the victim of serious domestic abuse. ...[G]enerally speaking, you did what your husband requested. This was because of several reasons. You were culturally disposed to do so, but on occasions you were also threatened and beaten to obey your husband. The likelihood is that you joined in the business with considerable reluctance. I accept that you bitterly regret your involvement. Whatever the extent of the coercion, your plea accepts that it did not amount to duress or marital coercion sufficient to provide a complete defence.[6]

18 There was no suggestion that the applicant had been coerced by her husband. She was, as we have said, a willing participant in the trafficking business. In the circumstances, the parity ground is not reasonably arguable. It cannot be doubted that it was reasonably open to the sentencing judge to differentiate between Zhuliana Verdhi and the applicant in the way he did.[7]

That the Learned Sentencing Judge did not impose the correct sentence having regard to his finding that this was a case of very exceptional hardship.

Ground 4, which was argued in conjunction with ground 3, is in the following terms:

That the Learned Sentencing Judge having found that this was a case where mercy was warranted then did not accurately apply those principles.

20 These grounds concern the judge's consideration of the hardship which imprisonment of the applicant would impose on her children. We first set out what the sentencing judge said in this regard: [8]

Hardship to the family of an imprisoned offender usually can only be given weight when the hardship can be shown to be exceptional. That is because imprisonment usually results in hardship to the offender's family and often wreaks havoc on family members. Once the breadwinner is gone, the family will often suffer financially. [Counsel for Rovena Xeba] told me that if Mr Xeba is imprisoned the mortgage would not be serviced. Mr Dempsey conceded that this would not be unusual but submitted that a merciful sentence might pay regard to this, as I understood his submission.

Even if exceptional circumstances cannot be shown, the court still has a discretion to show mercy in appropriate cases. A central feature concerning hardship for Mr and Mrs Xeba is that if both of them are imprisoned there will be no-one to care for the children and I have been told they will go into care. Of course, Mrs Xeba is due to give birth to a third child in late August.

And at paragraph 108:

I accept that if you, Mr and Mrs Xeba, are both imprisoned this will have very profound consequences for each of you and for your children. The mortgage payments on your home will not be met, but much more importantly, I accept that your children will go into care. You, Mrs Xeba, will give birth in custody. I accept that these consequences qualify as exceptional hardship and must be considered. Even if they did not justify the description "exceptional" I would pay regard to the consequences in the exercise of mercy. It would be far too harsh not to do so.

And at paragraphs 122 and 123:

Rovena Xeba, you will be convicted on each count and sentenced to two years and nine months' imprisonment on each count. Count 1 is to be the base sentence. I order that three months of the sentence imposed on Count 2 is to be served cumulatively on Count 1. That makes for a total effective sentence of three years' imprisonment. I give greater weight to family hardship in your case than I did in the case of your husband. Obviously, your children are likely to be in care at least until one of you is free. Your offending must be met with some period of actual imprisonment, in my view. I have greater confidence in your rehabilitative potential than I do in your husband's. I am impressed by your educational pursuits. I accept the concession by your husband that you would have been unlikely to have offended were it not for his drug abuse.

I propose to suspend two years of the sentence I have imposed. That will mean you will have to spend the next year in custody. The period of suspension is to be for three years from today. ...

21 It has long been established that it is only in exceptional or extreme circumstances that family hardship can be taken into account as a mitigating factor.[9] At the same time, the decisions of this Court in R v Miceli[10] and R v Carmody[11] suggest that, even where the circumstances cannot be viewed as exceptional, there is a residual discretion in the sentencing court to exercise mercy. Moreover, there appears to be some uncertainty as to whether, absent specific error or manifest excess, a failure to accord 'sufficient mercy' of itself translates into a ground of appeal.[12]

22 In any event, and irrespective of whether there is a legally cognisable right to an appropriate measure of mercy, the judge did not err in his application of legal principle. He assumed, in the applicant's favour, that her children would be taken into State care if she were imprisoned. On any view, this was a very drastic consequence for the children. His Honour made clear that he took into account the 'very profound consequences' of the applicant and her husband both being imprisoned. He did so, he said, either because the circumstances were exceptional or because they called for an exercise of mercy.

23 On the appeal, counsel for the applicant sought to tender a supplementary psychologist's report relating to the applicant's daughter, now 11 years of age. Senior counsel for the Crown did not oppose the tender of the report, on the basis that it supplemented matters which had been debated on the plea.[13] Counsel made reference to the following parts of the report:

Presentation

5. Miss Stella Xeba (d.o.b. 24 April 1998) is an 11-year-old girl who participated in a psychological consultation at the request of her mother. While Stella was nervous initially, rapport developed quickly and she engaged easily in the discussion of her feelings and experience. Stella became distressed when discussing her separation from her mother and her current circumstances and manifested this through bouts of tearfulness. Similar expressions of emotion occurred when she discussed the death of her father and other losses she had experienced.

...

7. Stella has experienced a number significant losses during her childhood. The first of these occurred when she was aged three and her father was killed in a motorbike accident. Mrs Xeba told me that Stella had found his death very upsetting. Stella confirmed this saying: "It made me very sad. I used to cry and cry, but mum was there and that made me feel better. This is the first time we have not been together". Soon after Stella's father died, her maternal grandmother died too. She had played a significant role in Stella's early care and this loss deepened Stella's grief. Mrs Xeba told me that Stella had become quite "clingy" and dependant upon her in the aftermath of these deaths. She noted that Stella had been difficult to console and that she had manifested significant symptoms of separation anxiety which made it difficult for the family to adapt in the period immediately following these deaths.

...

10. Stella presented as a young girl experiencing noteworthy depressive symptoms. While she was able to engage in the assessment consultation, her affect was subdued and unresponsive and her mood was characterised by prominent sadness. Stella was tearful for much of our interview. She became especially tearful whenever the conversation turned to her separation from her mother and she expressed a deep sense of anxiety and distress at recent events.

...

Opinion

12. On the basis of a comprehensive evaluation of Stella's current mental status and review of her personal history the following conclusions were reached:

1. Stella's distress is sufficiently severe to meet diagnostic criteria for an Adjustment Disorder with Depressed Mood. This encapsulates my opinion that her current symptoms represent a direct response to the distress of her current separation from her mother.

2. Stella's history of repeated grief from an early age places her at some risk for developing more severe mood disturbances. This risk can be best ameliorated by the provision of stable accommodation and support. The maintenance of positive attachments and social bonds is also considered vital to Stella's further social and emotional wellbeing and to her psychological development more generally.

3. On the basis of observational assessment, Stella is estimated to be of above-average intelligence.

Recommendations & Prognosis

13. My assessment of Stella suggests that she is a young girl suffering marked distress in response to the separation from her mother. Building upon her prior history of loss and grief her distress has already reached the proportions where the diagnosis of an Adjustment Disorder is warranted, and I am concerned that she would be particularly vulnerable to developing more serious mood disturbances if she were to suffer further disruption in her social environment or family attachment. Such disruptions have a particularly powerful potential given that she currently stands at a formative stage of social and psychological development: on the verge of developmental transitions where having a stable and secure environment is particularly important. In this context the more that can be done to provide her with a stable and supportive environment the better her prognosis would be.[14]

...

24 Reliance was also placed (without objection) on an affidavit of the applicant's sister-in-law, Gerta Hauser.[15] According to the affidavit, since Rovena Xeba's incarceration her two daughters have been living with Mrs Hauser and her husband. Mr and Mrs Hauser arrived in Australia on tourist visas in 2006. They have applied for permanent residency, which has been refused. The matter is currently being considered by the Minister. Mrs Hauser was recently employed as a sandwich hand but had to cease this employment in order to look after the children. She is concerned that, if she returns to work or is deported, there will be no one to care for the children. She confirms the distress experienced by both daughters.

25 There was discussion during argument about the risk that Mr and Mrs Hauser would be deported. Counsel for the applicant accepted that, if the Minister's decision were adverse, there would be scope for challenge, especially given the circumstances under which the applicant's children were being cared for.

26 Counsel maintained, nevertheless, that because the sister-in-law could not work while looking after the child, their situation was one of uncertainty. Although the risk of the children going into State care was therefore less than it had appeared at the time of sentencing, the Court should regard the absence of the applicant as profoundly significant for the children.

27 As we said in argument, the reports of the effect on the applicant's children of her imprisonment are deeply affecting. Her counsel rightly emphasised the children's suffering. But the judge squarely addressed this issue, and we are not persuaded that any error has been shown. His Honour's findings regarding exceptional circumstances and mercy were very strong. The applicant was well served by counsel who represented her on the plea. The judge clearly understood the gravity of the consequences, as is evident from the plea transcript and the reasons.

28 Whether - and to what extent - to suspend a sentence is quintessentially a matter for the judge's discretion. For this ground to succeed, the applicant would have had to show that there was no disposition reasonably open to the sentencing judge other than to suspend the sentence fully. That has not been established. On the contrary, we consider that the decision to suspend only two years of the sentence was within the scope of a proper exercise of the sentencing discretion, for the reasons which his Honour gave.

That the Learned Sentencing Judge had insufficient regard to the lengthy and inordinate delay of this matter.

30 In our view, this ground is not reasonably arguable. The judge dealt with delay in conventional fashion:

I consider the passage of time since the offending to be a factor that should reduce the penalty in the cases of all accused. The period is substantial. You have all got on with your lives and none of you has offended in the interim although you, Mr Xeba, have continued to use drugs. Generally speaking, the fact that none of you has offended or offended seriously, suggests you can each put the offending behind you and go on to lead law-abiding lives. I expect you have all been under considerable stress awaiting trial, particularly given the prospect of lengthy imprisonment.[16]

The ground of manifest excess will only succeed where it can be shown that the sentence was "wholly outside the range of sentencing options available" to the sentencing judge.

The "range" for this purpose is the range within which it would have been reasonable for a sentencing judge to sentence this appellant for this offence in these circumstances. It follows that the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown. Where the ground of appeal is manifest excess, error will only be shown where it can be demonstrated that the sentence is obviously wrong in the sense I have described, that is, it is a sentence which no reasonable judge could have imposed in the circumstances.[18]

32 Counsel submitted that, when the other grounds of appeal were taken into account, and when full weight was given to the effect on the children, the role the applicant played in the business and her plea of guilty, the sentence imposed was manifestly excessive.

33 We disagree. For the reasons already given, it was open to the sentencing judge to impose an immediate custodial sentence. This ground must fail.

[1] See r 2.03.1A of the Supreme Court (Criminal Procedure) Rules 2008 (Vic) and s 567(d) of the Crimes Act 1958 (Vic).

[2] R v Verdhi & Ors (reasons for sentence) (unreported, County Court of Victoria, Judge Punshon, 30 June 2009) [21]-[23].

[3] See Giretti v The Queen (1986) 24 A Crim R 112.

[4] R v Verdhi & Ors (reasons for sentence) (unreported, County Court of Victoria, Judge Punshon, 30 June 2009) [101], [106].

[7] See R v Wolfe [2008] VSCA 284, [9] (Maxwell P).

[8] R v Verdhi & Ors (reasons for sentence) (unreported, County Court of Victoria, Judge Punshon, 30 June 2009) [103]-[104]; [108]; [122]-[123].

[9] R v Panuccio, (unreported, Supreme Court of Victoria Court of Appeal, Winneke P, Brooking and Charles JJA, 4 May 1998).

[10] [1997] VSC 22; [1998] 4 VR 588.

[11] (1998) 100 A Crim R 41.

[12] See R v Lane [2007] VSCA 222; (2007) 176 A Crim R 471 and compare R v Selcuk [2007] VSCA 143, [52]-[53] and R v NAD [2008] VSCA 192, [10]-[15] (Weinberg JA).

[13] See R v Nguyen [2006] VSCA 184, [36] (Redlich JA).

[14] Report prepared by Mr Patrick Newton of Central Melbourne Psychology, 17 July 2009. The report appears as Annexure A to an affidavit sworn by Roberto Melasecca on 20 July 2009.

[15] The affidavit (sworn by Gerta Hauser, on 15 July 2009) also states that if the Minister confirms the refusal, they are advised they must depart Australia immediately: see [26] below.

[16] R v Verdhi & Ors (reasons for sentence) (unreported, County Court of Victoria, Judge Punshon, 30 June 2009) [82].

[17] [2007] VSCA 32.

[18] Ibid [13]-[14] (references omitted).