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[2010] VSCA 278
Court of Appeal (Vic)
2010-10-22
ASHLEY and WEINBERG JJA
Original judgment source is linked above.
R v Reilly (Unreported, County Court of Victoria, Judge Howard, 9 June 2010)
CRIMINAL LAW - Drug offences - 'Operation Jedi' - Conspiracy to cultivate cannabis -Possession of methylamphetamine - Fresh evidence - Whether sentencing judge incorrectly characterised applicant's role in offending - Whether sentence should have been wholly suspended - Parity - Manifest excess - Delay - Leave to appeal refused.
2 The applicant pleaded guilty in the County Court at Melbourne to one count of conspiracy to cultivate a narcotic plant, namely Cannabis L, and one count of possession of a drug of dependence, namely methylamphetamine. His offending came to light as a result of 'Operation Jedi', an extensive investigation into major drug trafficking carried out by the police between August 2005 and January 2006. The operation involved the covert recording of thousands of hours of intercepted telephone conversations, surveillance of suspects, and the seizure of substantial quantities of drugs. A number of offenders were arrested and charged.
3 Prior to sentencing the applicant, the sentencing judge had already dealt with the three principals in the operation, John Waters, Boris Trajkovski and Tomislav Samac. He had sentenced them each to very lengthy terms of imprisonment. The applicant was one of ten other offenders associated in various ways with Operation Jedi, all of whom pleaded guilty to various, less serious, drug offences.
4 The facts surrounding the commission of the applicant's offences can be briefly stated. Count 1 concerned the cultivation of cannabis, hydroponically grown, in what was described as a 'grow-house' at a property located at 6 Scott Street, Melton. Waters had purchased that property from his former wife, who happened to be the sister of one Craig Bennett. Bennett was the third member of the conspiracy to cultivate, the subject of count 1.
5 The conspiracy began in November 2005. On 18 November, the applicant took part in a telephone conversation with both Bennett and Waters which, although conducted in code, reflected his awareness of the precise nature and purpose of the scheme.
6 In about mid-December 2005, Waters took possession of the property. The
applicant was assigned the task of installing the hydroponic equipment. Waters' role was to finance the entire scheme, and to procure some 16 cannabis plants with which to begin the operation. The applicant's role was to watch over the premises, and to monitor the growing of the plants.
7 On 18 January 2006, police executed a search warrant at the property. They discovered a number of black plastic tubs, some water tubing and a quantity of electrical equipment. In addition, electrical wiring had been installed to enable cannabis to be grown hydroponically. However, the scheme had not yet become operational. There was still work to be done, including setting up a more efficient irrigation system, and putting in growth tubs, potting mixture and the like. Nonetheless, considerable effort had already been expended. For example, the carpet had been taken up and replaced with black and white plastic flooring. Four large light shades had been hung from the ceiling over the black plastic tubs, three of which had 1000 watt heat lamps attached to them. There was further cultivation equipment found in the garage.
8 At the time of the commission of this offence, the applicant was working occasionally with Bennett in his plumbing business. His Honour described the applicant as effectively 'camping' at the property.
9 Earlier on the day that the search warrant was executed, the applicant was seen to have visited Waters' home. However, he drove away without going inside. Shortly afterwards, he was arrested by police. He accompanied them to the Melton property. He had the key to the front door in his possession. He told the police that he was paying Waters $100 per week rent, but later acknowledged that that was not true. He admitted his involvement in the planned cultivation, but said that he had not yet completed the work assigned to him. For example, it was his task to arrange for the electricity meter to be bypassed so that electricity could, in effect, be stolen, and its use remain undetected.
10 When subsequently interviewed by the police, the applicant gave a no comment record of interview.
11 The sentencing judge noted that the conspiracy had been evidenced by a large number of coded telephone intercepts, a number of which had involved the applicant. His fingerprints were found on the three light shades, and also on a power board associated with the hydroponic setup. It was obvious that the scheme was highly organised, and the conspirators intended to grow a significant quantity of cannabis. It was a sophisticated commercial venture.
12 While it was true that the conspiracy ultimately came to nothing (in the sense that no cannabis was actually grown), it was only the intervention of the police that thwarted its success.
13 Count 2 concerned the possession by the applicant of .05g of methylamphetamine which was located by police in the kitchen drawer of his home. It was common ground that his possession of that small quantity of the drug did not relate to trafficking.
14 The maximum penalty for conspiracy to cultivate this amount of cannabis is 15 years' imprisonment. The Crown submitted that a sentence of between two and three years' imprisonment should be imposed in respect of count 1. The maximum penalty available for possession of this amount of methylamphetamine is 12 months' imprisonment. The Crown accepted that a fine would be an appropriate punishment for that offence.
15 The applicant was sentenced to two years and six months' imprisonment on count 1. 15 months of that sentence was suspended for a period of 15 months, meaning that the applicant would have to serve a term of 15 months actual imprisonment. He was fined $250 on count 2. The sentencing judge indicated that, but for the applicant's plea of guilty, he would have imposed a sentence of four years' imprisonment with a non-parole period of two years and six months on count 1.
16 The applicant now seeks leave to appeal against his sentence on the following grounds:
1. Fresh evidence concerning:
a. a deterioration in the health of the applicant's mother; and
shows that a different sentence should be passed and gives rise to considerations of mercy.
17 In support of this ground, the applicant relied upon an affidavit sworn on 12 April 2010 by his partner, Francesca McMillan. In that affidavit, she described what she claimed to be the adverse effect that the applicant's imprisonment had had upon their infant son, Aidan, who was born in March 2009. She also commented upon what she claimed to be the effect upon the applicant of her son's visible distress whenever he accompanied her to the prison to visit his father.
18 It was submitted on behalf of the applicant that this was fresh evidence which shed significant new light upon his family circumstances, and upon the nature and extent of the burden of his imprisonment. It was further submitted that this Court should reconsider the applicant's sentence in light of this new material. Initially, the written submissions sought to invoke the principles regarding 'mercy' discussed by this Court in R v Carmody.[1] However, for reasons that will shortly become apparent, that submission was abandoned.
19 In my opinion, the applicant's contention should be rejected. Fresh evidence can be received on an appeal against sentence, but only if it throws a different light upon circumstances that were known to exist at the time of the plea.[2] However, the cases where this Court will admit such evidence are exceptional, and likely to be rare.
20 The principles which govern the reception of fresh evidence on an appeal against sentence are well established. They are helpfully set out in R v Eliasen.[3] Put simply, the evidence must demonstrate the true significance of facts that were in existence at the time of sentence. Fresh evidence will not be admitted if it relates only to events which have occurred after sentence, and which arguably support the conclusion that the sentence has turned out to be more harsh than might have been anticipated.
21 Of course, if fresh evidence is received, it will not be necessary to determine whether the original sentence was subject to specific error. Nor indeed will it be necessary in such a case to determine whether the sentence was manifestly excessive. The question will be whether, on the material now before the Court, a different sentence should be imposed in order to avoid a miscarriage of justice.
22 In my opinion, the sentencing judge in this case had available to him at the time he sentenced the applicant all relevant material regarding the applicant's personal circumstances. This included the fact that the applicant and his partner had a son who was seven months old at the time of sentencing. His Honour was aware that the applicant's partner cared for the child on a full-time basis, and that the applicant's incarceration would result in a measure of hardship. There is nothing in the material now proposed to be led as fresh evidence to suggest that the situation presented to his Honour has changed in any significant way.
23 His Honour expressly took into account the applicant's family situation when he considered what sentence to impose. The new material, taken at its highest, adds nothing of any real consequence to what would ordinarily be expected when an offender is separated from his family by being imprisoned. It is scarcely surprising that the applicant's young son is missing his father. Nor could it have been unanticipated that there would be a level of distress for both father and son arising out of the emotional upheaval associated with prison visits.
24 I would make one additional point. It is now clearly established that third party hardship is not to be taken into account as a mitigating factor unless it can be shown that the circumstances are 'exceptional'.[4] The present case falls short of that description. Had family hardship been invoked on the plea as the basis for a more merciful disposition than would otherwise be warranted, his Honour would have been bound to reject that submission. The applicant's counsel recognised the futility of seeking to persuade this Court that some residual 'mercy' should be accorded, having regard to the current state of the law.[5]
Ground 2 - Misdescription of applicant's role in the offending
26 It was next submitted on behalf of the applicant that the sentencing judge had erred by characterising his offending in terms which were apposite to high-level drug traffickers.
27 In support of that submission, it was accepted that, in his sentencing remarks, his Honour had referred to all relevant mitigating factors upon which the applicant had relied. However, his Honour said that these mitigating factors were 'outweighed by the gravity' of the offending on the conspiracy count. He emphasised the commercial nature of the cannabis-growing venture. He commented that offenders such as the applicant play 'for high stakes'. He also referred to recent judgments of this Court in which it was said that in serious cases of trafficking in drugs, even allowing for relevant mitigating factors, principles of denunciation, protection of the community, just punishment and deterrence required the imposition of sentences of substantial length.[6]
28 Counsel for the applicant submitted that, in truth, his client was not a significant player in this cannabis growing venture. Rather, he was nothing more than a minor participant. In support of that contention, we were reminded that, immediately before he joined this conspiracy, the applicant was living in modest circumstances in a caravan park. Although he played a not insignificant role in preparing the property for hydroponic cultivation, his ultimate responsibility essentially was to 'sit on the crop'. In exchange for his participation, he stood to gain little. He would be permitted to occupy the property rent-free, and would also be given some marijuana, whether for his own use or not was not clear. It was submitted that there was no evidence to suggest that he stood to make any real profit out of his involvement in this venture.
29 It was next submitted that each of the applicant's co-conspirators, Waters and Bennett, had played a greater role in implementing the scheme. It was said that they were both considerably further up the hierarchy than the applicant, particularly Waters, yet that was not reflected in the applicant's sentence. It should be noted, in that regard, that the sentencing judge characterised Bennett as less culpable in this enterprise than the applicant.
30 In my view, the sentencing judge did not err in describing the applicant's role in this conspiracy as he did. Not surprisingly, his Honour was satisfied that the applicant was, at all times, well aware of the nature and purpose of the scheme. Moreover, the applicant was directly involved in its implementation throughout the whole of the conspiracy. From about mid-December 2005, he was responsible for installing much of the hydroponic equipment. He was a party to discussions about electrical cabling. He took part in a number of coded telephone conversations. Even if he stood to gain little personally from his involvement, he played an integral role in what was to be a sophisticated commercial drug trafficking operation.
31 In my opinion, the sentencing judge was entitled to approach the matter in this way. Although the authorities to which his Honour referred, when seeking to distil the general principles governing sentencing for drug trafficking, involved considerably more serious offending than that engaged in by the applicant, it was the principles that were relevant, and not the particular facts of those cases. In referring to what the Court has said with regard to commercial dealing in drugs, his Honour did no more than reflect the seriousness with which cultivation of cannabis for significant commercial gain is viewed.
32 There is nothing to suggest that his Honour lost sight of the need to have regard to the various mitigating factors upon which the applicant relied, and to which he referred at considerable length throughout his reasons for sentence.
34 Ground 3 contends that although a term of imprisonment may well have been warranted, it ought to have been wholly suspended. On the plea, counsel who then appeared pointed to the following matters in support of that submission:
• the fact that his mother had been diagnosed with cancer, and his role in caring for her;
• the fact that, since the offending, the applicant had established a committed relationship, purchased a house, and fathered a child;
• the substantial delay of about three years and ten months between the applicant's arrest and his sentence; and
• the Crown's supposed 'concession' on the plea that a wholly suspended sentence 'would be appropriate'.
35 His Honour rejected the submission that he should wholly suspend any term of imprisonment. In doing so, his Honour put particular weight on the gravity of the applicant's offending, the need for general deterrence, and emphasised again the commercial nature of the venture.
36 Before this Court it was submitted that the sentencing judge had fallen into error in declining to wholly suspend this sentence. It was submitted that his Honour had approached the question of a suspended sentence from an erroneous perspective. He ought to have regarded a wholly suspended sentence as significant punishment, and not as a mere exercise in leniency.[7] That submission was supported by reference to his Honour's finding that the applicant had 'very good' prospects of rehabilitation, and that it was unlikely that he would re-offend in this manner.
37 In addition, it was submitted that his Honour's discretion had miscarried in this respect because he failed to give sufficient weight to the matter of delay. The written submissions filed on behalf of the applicant mention delay only briefly, but the issue assumed some importance during the course of oral argument. I shall return to that matter when I come to deal with ground 5 which complains that the sentence is manifestly excessive.
38 Some reliance was placed upon the fact that the sentencing judge did not fix a non-parole period. That was presumably because his Honour considered it unnecessary that the applicant undergo supervision after his release from prison. In these circumstances, so it was submitted, a wholly suspended sentence, with its emphasis upon rehabilitation, would have been entirely appropriate.[8]
39 The Crown submitted, in response, that all of the matters identified by the applicant as mitigating factors had been fully and comprehensively addressed during the course of the reasons for sentence. His Honour had spelled out precisely, and in terms, why, despite giving anxious consideration to the possibility of wholly suspending this sentence, he had felt unable to give effect to that submission.
40 In my opinion, the applicant has failed to demonstrate that his Honour's discretion miscarried when he concluded that only partial suspension was warranted.
41 The prosecutor who appeared on the plea conceded that a wholly suspended sentence would be 'within range'. In making that concession, he told his Honour that the Crown had had regard to current sentencing practices, and added, unsurprisingly, that the plea had been the subject of negotiation. He clarified the concession as being that, 'ultimately, it will be a matter for the Court'. He added, 'the Crown is calling for a custodial sentence but what form it takes is a matter for the Court'.
42 When the sentencing judge sought further clarification and asked specifically whether it meant nothing more than that a wholly suspended sentence would be 'within range', the prosecutor answered affirmatively. He added that the reason why the concession was offered was that no cannabis had actually been grown.
43 The sentencing judge described the concession as 'surprising', and indicated, quite clearly, that he did not regard it as in any way binding. His Honour noted that the only reason that no cannabis had been grown was that the police had uncovered what was happening, and had prevented the plan from going ahead. In his Honour's view, but for that discovery, significant quantities of cannabis would have been cultivated and marketed.
44 In that context, counsel for the Crown repeated the concession as being that it was 'a matter for the Court' as to whether any custodial sentence imposed should be wholly suspended. His Honour then asked counsel for the applicant whether he wished to add anything, and was told that there was nothing more to be said.
45 A concession that a particular disposition would be 'within range' is not to be taken as a concession that that disposition would necessarily be 'appropriate'. It may mean nothing more than an acknowledgment that a judge adopting that disposition would not fall into appealable error. That does not mean that such a concession should be given less than due weight. However, as his Honour rightly said, a concession in these terms can be in no way binding.
46 The sentencing judge stated that he had given anxious consideration to what the prosecutor had said. However, in the end, he decided for reasons that were comprehensively set out that a wholly suspended sentence would not be appropriate. That conclusion was reasonably open in this case.
48 The applicant complains in ground 4 that, while he received a sentence of two years and six months' imprisonment for his role in the conspiracy, Waters, who was the principal behind the entire scheme, was imprisoned for only three years on that count. Unlike the applicant, Waters had extensive prior convictions. Moreover, he was heavily involved in drug trafficking at large, including MDMA and methylamphetamine. In addition, his offending took place while he was serving a suspended sentence.
49 As regards Bennett, it was submitted that the applicant had been treated unfairly when considerations of parity were applied to his sentence as well. It was noted that Bennett pleaded guilty, in addition to the conspiracy count, to trafficking 5.89 kilograms of cannabis. It was submitted that Bennett was closer to Waters, and therefore must have been higher up the hierarchy than the applicant. Yet Bennett received a sentence of only two years' imprisonment on the conspiracy count, compared to the applicant's two and a half years.
50 In my opinion, the parity submissions, in whatever form they are considered, should be rejected. In order to succeed on this ground, the applicant must establish that any disparity between the sentence he received, and that of his co-offenders, was manifest, and such as to engender a 'justifiable sense of grievance'.[9]
51 The sentence of three years' imprisonment imposed on Waters must be understood in context. In his case, the conspiracy to cultivate was count 1 on a presentment that contained a large number of counts. Waters was ultimately sentenced to a total effective sentence of 21 years' imprisonment, with a minimum term of 15 years. As a result, any sentence imposed on Waters in respect of the conspiracy to cultivate cannabis had to reflect considerations of totality. That sentence had to fit within a framework whereby the base sentence given to Waters was a term of 16 years. In truth, Waters' position cannot sensibly be compared with that of the applicant.
52 As regards Bennett, it needs to be understood that in addition to the two years' imprisonment he received for the conspiracy to cultivate, he was also sentenced to a term of two years' imprisonment for trafficking in cannabis. With orders for cumulation, his total effective sentence was two years and six months, with a non-parole period of one year and eight months. That is to be contrasted with the applicant's sentence, requiring him to serve an actual period of imprisonment of one year and three months.
53 As previously indicated, the sentencing judge considered Bennett to have played a lesser role in the conspiracy to cultivate cannabis than either Waters or the applicant. That finding was reasonably open on the evidence. It alone accounts for the lighter sentence given to Bennett for his involvement in this offence.
54 There is nothing in the parity point. This ground should be rejected.
55 Finally, the applicant contends, in ground 5, that the sentence imposed was manifestly excessive. In my view, that contention cannot be accepted. It was well open to the sentencing judge to fix a term of two years and six months' imprisonment for this offence, and to suspend 15 months of that sentence.
56 As has been said many times, a ground of this nature does not admit of much argument. Nor does its rejection necessarily require lengthy reasons. His Honour's sentencing remarks reveal a careful consideration of all relevant factors, both mitigating and aggravating.
57 There is only one point that needs to be addressed. When his Honour came to consider the mitigating factors that the applicant could properly call in aid, he referred to his plea of guilty (entered at an early stage at his committal in April 2008) and the matter of delay.
59 Although delay did not feature heavily in the applicant's written, or oral, submissions, these remarks were the subject of some discussion during the course of argument in related matters. The sentencing judge, who also sentenced Bennett, Michelle Scott and Darryl John Briggs, each of whom sought leave to appeal against the sentences imposed upon them, used essentially the same formula as that set out above when dealing with the issue of delay in their cases.
60 It was submitted that his Honour fell into error when he made the comments that he did regarding delay at [69] and [70] above. It was contended that he had diluted the weight to be given to delay by referring to the need to place delay 'in its proper context'.
61 The Crown responded by submitting that these paragraphs should be read as being nothing more than explanatory in nature, merely providing 'context' so that the nature and extent of the delay could be understood.
62 For my part, I have difficulty with the Crown's submission. The word 'but' which prefaces the reference to context suggests that his Honour did consider that the weight to be given to delay in this case should be reduced to some degree by reason of the matters subsequently identified. If that was his Honour's view, he was mistaken.
63 In R v Merrett,[10] Maxwell P (with whom Chernov JA and Habersberger AJA agreed) commented upon the significance of delay as a sentencing factor in the following terms:
On a proper analysis, however, the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. There is, of course, a strong public interest in criminal conduct being investigated and prosecuted as quickly as is reasonably practicable. But the absence of an explanation for the delay could not, by itself, justify any greater reduction in the sentence than would be made in a case where the delay was satisfactorily explained.
The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes "a powerful mitigating factor". In particular, it focuses attention on issues of rehabilitation and fairness. As the Court of Criminal Appeal of Western Australia said in 1983 in Duncan v R:
... where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
... The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.[11]
64 None of the matters to which his Honour referred at [69] and [70] were properly to be taken as reducing the weight to be accorded to delay as a mitigating factor, particularly having regard to the evidence of rehabilitation in the interim, which his Honour accepted.
65 Nonetheless, the sentencing judge did indicate at [68] and [71] that he had given significant weight to delay, in terms that were unexceptionable. If he did fall into error by diluting the mitigatory effect of delay, the error was not, in my view, of sufficient significance to warrant interfering with this sentence. I do not think that a different sentence was warranted. There is nothing, apart from what seems to me to have been an incautious remark regarding the effect of delay, to suggest that the sentencing discretion in any way miscarried. Plainly, the argument that the sentence was manifestly excessive cannot succeed. I would reject ground 5.
66 It follows, in my opinion, that leave to appeal should be refused.
[1] (1998) 100 A Crim R 41, 45 and 47.
[2] R v W.E.F. [1998] 2 VR 385, 388-9; and R v Nguyen [2006] VSCA 184, [36] (Redlich JA).
[3] (1991) 53 A Crim R 391, 394.
[4] Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105.
[6] R v D'Aloia [2006] VSCA 237, [56]; R v Ahmed [2007] VSCA 270; (2007) 17 VR 454, 460; and DPP v McInnes [2009] VSCA 144, [34].
[7] DPP v Carter [1998] 1 VR 601, 607-8; and DPP v Buhagiar and Heathcote [1998] 4 VR 540, 547.
[8] See generally R v MWH [2001] VSCA 196, [18] (Callaway JA).
[9] R v Taudevin [1996] VICSC 7; [1996] 2 VR 402, 404.
# Reilly
The Queen \[2010\] VSCA 278
(2007) 17 VR 454
(2007) 14 VR 392