R v Zaydan; R v Bava; R v Su; R v Belikov [2004] VSCA 245

R v Zaydan; R v Bava; R v Su; R v Belikov [2004] VSCA 245 - VSCA 2004 case summary — Zoe

[21]

Under this ground Mr. Holdenson presented what he had called a "very narrow" parity argument as between Zaydan and Bava in relation to the ephedrine counts. The point of departure for the submission was that Bava's criminal conduct concerning ephedrine was much more limited than that of Zaydan, as was shown by the separate counts against them and as indeed his Honour had recognised in two passages in his sentencing remarks summarised earlier[28] and by the substantially differing individual sentences he imposed on them for trafficking in ephedrine of 3 years' imprisonment and 1 year's imprisonment respectively. The submission was that, assuming the correctness of the respective individual sentences for trafficking in ephedrine imposed on Zaydan and Bava with their substantial difference of 2 years, that difference was not reflected in the final sentences they received in circumstances where on the two Commonwealth counts they received the same sentence, as regards the individual sentences, the cumulation directions and the Commonwealth non-parole period. Thus, Zaydan ultimately had a total effective sentence of 11 years with an effective overall non-parole period of 9 years, whilst Bava ultimately had a total effective sentence of 10 ½ years with an effective overall non-parole period of 8 ½ years. There was in the ultimate a difference in the total effective sentences and the overall non-parole periods of a mere 6 months. That difference was manifestly inadequate and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice had not been done: R. v. Taudevin[29] and Lowe v. The Queen[30]. His Honour had failed to have any, or sufficient, regard to the sentencing principle of parity and the exercise of the sentencing discretion was thereby vitiated. In short, the application of the principle of totality in respect of Zaydan had triggered a manifest want of disparity between Bava and him in relation to the ephedrine offending.

[52]

That last submission would have force if one were considering the total effective sentences or the non-parole periods, but that, in my opinion, is not the appropriate comparison. It is possible, and appropriate, to isolate sentences where other considerations have little effect and to compare them. I speak of the individual sentences imposed in respect of the Gaga parcel, which was the only heroin in respect of which the three were co-offenders. In respect of it his Honour sentenced both Zaydan and Bava to a term of imprisonment for eight years for being knowingly concerned in its importation (count 3 in their case) and sentenced the applicant to a term of imprisonment for seven years for attempting to traffick in a commercial quantity of heroin (count 1). Although I have called the three applicants co-offenders, it was true that, strictly, their offences were different. However, the maximum custodial penalty was the same and the factual material was essentially the same. One has, then, a difference of one year between the sentences imposed on Zaydan and Bava and that imposed on Su. But that difference is not to be attributed solely to Su's plea of guilty (and any difference that might have existed in their respective personal factors), for he had no prior convictions, whereas Zaydan had prior drug offences and Bava a prior conviction which, though not drug-related, was serious. Accordingly, the discount for the plea of guilty must have been not insignificantly less than a year. In saying that I have not accepted the respondent's submission that it had been open for the sentencing judge to view the applicant's offending as more serious than that of the other offenders: whilst I recognise the real importance of the part Su played, his Honour does not appear to me to have differentiated between the roles of the three offenders, for, having a little earlier stated that he did not regard the involvement of Zaydan and Bava as sufficiently dissimilar to warrant distinction in terms of criminality, he said in respect of Su, "As with Zaydan and Bava, I am satisfied that your role was that of a merchant or principal, not that of some subsidiary officer".[35] In considering whether a difference of somewhat less than a year in Su's sentence betokened a failure to give sufficient weight to his plea of guilty, it must be remembered that the sentence under comparison is one for a substantial term, eight years, and not, say, three or even five years. In that circumstance, I consider that the discrimen was too small, so that the applicant has, perhaps unusually, succeeded in the task of showing that insufficient weight was given to a sentencing consideration, here the plea of guilty, and that the sentencing discretion thereby miscarried.

[53]

Although it is not necessary for me to do so in view of my conclusion on ground 3, it is, I think, desirable to comment briefly on the other grounds. Under parity (ground 2) it was submitted that, there being a relationship between the sentences imposed on the applicant and his co-offenders Zaydan and Bava, if either of the co-offenders had his sentence reduced by this Court, then, so that the sentencing principle of parity (presumed in this case to have been applied by his Honour) was not breached, this Court should reduce the sentence imposed upon the applicant. The respondent conceded that, perhaps more as an application of the principle of equal justice, it would be appropriate in such a case for this Court to give re-consideration to the applicant's sentence. I shall say something generally about parity later. On the present point, however, I should state my view here. It is that the ground on which I would reduce Bava's sentence is peculiar to him (or him and Zaydan) and does not have any consequences for Su. The applicant's argument concerning totality (ground 4), as I understood it, was that the sentencing judge did not, after imposing the individual sentences and making the direction for cumulation, "stand back" and check or review the total effective sentence and minimum term thereby produced in order to determine whether that sentence was "just and appropriate" because he did not say that he was doing that. It is clear, in my opinion, that a sentencing judge does not have to state that he or she is taking that step. Of course, the sentence produced by the judge may be such as to show that the judge did not take that step or that, if the judge did, he or she erred in carrying it out. That cannot, in my opinion, be shown here. In support of the contention that the elements of the sentence were each manifestly excessive (ground 5), counsel, besides incorporating by reference the earlier arguments, adopted the submission of counsel for the applicant before his Honour that, in view of the applicant's previous good character, employment and self-employment history and strong family support, the applicant was capable of being rehabilitated, but that this was not reflected in the total effective sentence or the non-parole period. I do not repeat the general observations I made earlier[36] about a ground of manifest excessiveness or about the facts of the drug offences in which Su was involved. In my opinion, when regard is had to the quantity of heroin, the period of ephedrine trafficking, the role of the applicant and the respective maximum penalties for the offences, this ground fails.

[83]

Mr. Holdenson's written outline of submissions on behalf of the applicant began by summarising with clarity the two sentences imposed on Su. He pointed out that the effect of the County Court judge's declaration as to pre-sentence detention was that the sentence he imposed "commenced" on 19 March 2001, whilst the effect of the Supreme Court sentence, which contained no declaration as to pre-sentence detention, was that it commenced on 17 November 2003. Thus, that sentence was imposed in circumstances where the applicant had already served two years and eight months in custody. In those circumstances, in respect of the two sets of offending, the latter sentence superseded that of the County Court and the applicant had been sentenced, in effect, to 18 years and 8 months' imprisonment with a non-parole period of 13 years and 8 months. Then attention was drawn to the reference made by the sentencing judge in the Supreme Court to the sentence being served by the applicant and to his statement that, in imposing the sentence, he had regard to and made allowance for the time (two years and eight months) already served by the applicant in custody. It was clear, therefore, it was submitted, that his Honour had had regard to both the actual sentence imposed in the County Court and the period of time already served. As a consequence, it was submitted, if this Court re-sentenced the applicant in respect of the two drug offences, then it would be necessary for it further to set aside the sentence (or, more precisely, the two individual sentences) imposed in the Supreme Court and sentence the applicant afresh. This is because the time served becomes a greater proportion of the County Court sentence if the latter is reduced. The two years eight months should be less if the criminality in the drug offending is reduced (that is, held to be less). The submissions made under the various grounds set out in paragraph [79] above were made on the hypothesis that the applicant failed in his challenge to the County Court sentence. I shall consider them first, leaving until later what I might call the applicant's "introductory submission".

At a glance

Court

Decision date

Before

Source

Judgment (133 paragraphs)

Cases Cited (4)