Reivers v The Queen; Carnovale v The Queen; Georgeallis v The Queen [2010] VSCA 159

3 The applicants Joseph Reivers, Antonio Carnovale and George Georgeallis each seek leave to appeal against sentences imposed in the County Court.

4 They were each found guilty of identical counts of trafficking in not less than a commercial quantity of cannabis between 24 June 2005 and 11 November 2005. They had been presented separately and were sentenced separately as follows:

5 years with a non-parole period of 2 years 6 months

5 years with a non-parole period of 2 years 6 months

5 In relation to the applicants Carnovale and Georgeallis, confiscation and pecuniary orders were made.

6 The case against each of the applicants arose from their involvement with a number of other accused in the cultivation and distribution of cannabis.

7 The applicant Reivers cultivated a large number of cannabis plants. The plants were produced by cloning other cannabis plants and growing them utilising a

hydroponic system, set up in a bedroom of his house. When the applicant's house was raided by police on 11 November 2005, officers found 673 small plants, 4 large 'mother' plants which weighed 7.95kgs (total or each?), 23g of dried cannabis, and a bong. Additional hydroponic equipment was also recovered.

8 The applicant's practice was to sell the plants to his uncle, Paul Reivers (a co-accused), when they reached a height of 20 to 30 cm, who in turn on-sold them to others. The plants were sold to the end user for $20 to $30 each and the applicant received $10 per plant. The applicant had sold a number of plants to his uncle in the months prior to the raid, and while the actual number was not obtained on the plea, defence conceded the amount to be in the vicinity of 200 plants. It was not less than 118.

9 The applicant's uncle had assisted the applicant in growing the plants. It was Paul Reivers who was principally responsible for on-selling the plants to another of the co-accused, John Falzon.

10 Counsel for the applicant argued that the sentence imposed indicated that insufficient regard had been paid to the question of delay. He emphasised the steps which the applicant had taken in his rehabilitation and the extent to which he had matured and settled down.

11 The question of delay gives rise to consideration of the sentencing principles of both rehabilitation and fairness.[1] In this case delay was a powerful mitigating factor because of the ultimate effect it has had upon the applicant. The applicant had taken the opportunities afforded by bail, and had taken steps toward his rehabilitation. In particular, he had: stopped using cannabis, refrained from further offending, been employed, fathered two children and had commenced counselling for his depression.

12 The question of delay had been strongly emphasised on the plea, and by the sentencing judge, one of the most experienced judges of that Court. His Honour made his views regarding the topic of delay clear during argument. In sentencing the applicant he said:

For whatever reason it took the best part of a further year for the matter to come on for a hearing which enabled you to formally plead guilty to a presentment containing those allegations. Why it took a year from the date of your arrest to get the matter before the Chief Judge of the County Court is really beyond my ability to understand. Of course further time has since elapsed between those events and today's date.

Since your arrest your partner Pann Barnes was charged and pleaded guilty to possession of cannabis and has given birth to two children. You have given up your addiction to drugs. You have undergone a long course of treatment with Mr Newton and as I have already mentioned his prognosis is favourable. You are a person, of course, without prior conviction.

One of the important aspects of sentencing persons such as yourself in respect of offences such as trafficking in a not less than a commercial quantity of Cannabis L, is to denounce such activity on behalf of a community as being totally unacceptable and of course reflect considerations of general and specific deterrence.

It seems to me, however, that those purposes are best served when the accused is brought before a court for sentencing within a reasonable time following his arrest. The purpose is very much discounted when you are brought before a court certainly like two and a half years after your arrest, when your life has been substantially changed and you have rehabilitated yourself and taken upon yourself the parenting role of two children.

In all the circumstances I propose to give weight to those considerations. Obviously, however, for a crime that carries the maximum penalty of 25 years' imprisonment, as this crime does, you are liable to nevertheless be sentenced to a significant term of imprisonment that needs to be imposed to reflect considerations of denunciation and general and specific deterrence.

13 In my view, his Honour could not have been more clear, ensuring all matters related to delay were taken into account when sentencing; having done so in accordance with the proper principles. The fact that his Honour did not specifically refer to the applicant's fulltime employment is of little consequence in this regard.

14 The maximum term of imprisonment for this offence is 25 years, and the present case might be considered a reasonably serious example of the offending. There is nothing apparent in the sentence itself which would lead to the conclusion that his Honour did not give delay its due weight in the intuitive synthesis.

15 The particulars of Ground 2 were as follows:[2]

8. The applicant indicated a guilty plea at an early stage; there was no contested committal proceeding.

9. Further, the applicant's conduct since the offending demonstrated remorse. In the opinion of Mr Newton the applicant's shame and remorse for the offending had been consistently expressed and was genuine.

10. His Honour does refer to the applicant's entitlement to a sentencing discount and refers to earlier indications by Judge Strong as to a significant sentencing discount. Despite these remarks, the complaint of specific error is pressed because His Honour does not state that he is himself awarding a significant sentencing discount and there is no finding that the applicant's guilty plea indicated and was supported by evidence of, remorse.

16 His Honour did have regard to the guilty plea and said:

Consequently, I have been given the task of sentencing you in a way that not only reflects parity but does justice to the nature of your guilty plea and the matters raised therein. In this matter comparison between the individual sentences of your co-accused may or may not prove useful. However, as I have already said, if read as a whole each sentence stands in its own stead reflecting those considerations as I have already noted relevant to each particular case.

17 His Honour did not specifically advert to remorse. Given the nature of the offending that is hardly surprising.

18 This complaint was further relied upon as an aspect of manifest excess.

19 Although the applicant had a history of depressive illness coupled with a cannabis addiction, the part that those matters played in relation to the offending was limited. The principle applicable to the sentencing of an offender suffering from mental illness is set out in detail in R v Verdins[3], to which his Honour made reference.

20 Mr Patrick Newton, the Forensic Psychologist whose report was tendered on the plea, concluded that during the relevant period the applicant was addicted to cannabis. He suffered from an underlying depression which was probably exacerbated by his cannabis use.

21 His Honour dealt with the findings of Mr Newton in detail:

As time went by the cannabis use took over many aspects of your life and consumed your family's financial resources. This led you to cultivateing cannabis as a means of supporting your own habit.

In 2003 you participated in a short term drug counselling and attended at a residential detoxification program but nevertheless relapsed into cannabis use again. Mr Newton was of the view that you have suffered from a moderately severe state of depression and anxiety.

You have undergone a course of treatment to alleviate your depressive symptoms with Mr Newton. This has helped you build insight and understand your reasons for offending and lowered the risk of your re-offending in the future. Mr Newton described your participation as co-operative and diligent in the program he placed you on. As I understand it, you had regular urine tests which confirmed that you have now put your problems with cannabis behind you. Mr Newton's ultimate opinion was at the time the offence was committed you were cannabis dependent, which not only meant that you had clear physical symptoms of addiction to the drug but also you lacked control over your intake.

22 There is no reason to assume that his Honour failed to have regard to these matters when forming an appropriate sentence, and there is nothing about the sentence itself that indicates that to be so.

23 It was submitted before the sentencing judge, in addition to the matters set out above, that the offending of the applicant was limited and a suspended sentence was within the range, taking all of the circumstances into account.

24 Although the plants were not large in size, it is worth noting that the very nature of this commercial enterprise was to grow and sell small plants. The set up was reasonably sophisticated and it was obviously intended to be an ongoing arrangement.

25 A total of 673 plants were found and about 200 had been disposed of in the preceding six weeks. The relevant requirement for 'commercial quantity' is 100 plants. As I have already noted, the maximum term of imprisonment is 25 years.

26 In order to suspend the sentence, the sentencing judge would have been obliged to fix a sentence of three years or less. In the circumstances, I consider a sentence of three years was not within the range.

27 Complaint is also made with regard to the non-parole period fixed. A non-parole period of two years (50%) is at the lower end of the range and reflective of his Honour's favourable view of the matters pressed on behalf of the applicant on the plea.

28 The application for leave to appeal should be refused.

29 The applicant conducted a business from his home which supplied hydroponic equipment and chemicals. In the course of conducting that business, he sold 473 cannabis plants which he had purchased from the co-offenders, Falzon and Browne-Kerr. When the transactions commenced in June 2005, he was purchasing plants which had been supplied by Browne-Kerr from Falzon. In October 2005 the applicant began dealing directly with Browne-Kerr. The arrangement came to an end when police intervened in November 2005.

30 The evidence against the applicant was largely obtained by use of authorised telephone intercepts. He was ultimately sentenced to be imprisoned for a period of five years with a non-parole period of two years and six months.

31 The applicant admitted prior convictions, including convictions for possession of cannabis, and for the possession and trafficking of cannabis and theft in 1998. He was sentenced to 20 days' imprisonment for possession and a total of nine months imprisonment for trafficking and theft. The later sentence was fully suspended for two years.

32 The matters pressed on this ground are set out in the particulars. It is true that the applicant received only a modest profit. He consented to a pecuniary penalty for $11,825 which represented a sale price of $25,000 for 473 plants trafficked. The applicant's profit was said to be $5 per plant. There was, however, argument on the plea about the actual number of plants. His Honour found:

The view I take it, may well be difficult to establish beyond reasonable doubt, the exact number of plants that were delivered to you. I am satisfied that by your guilty plea that more than 100 plants, and that you had intended to traffic during the period of something like 473 plants, if they could be delivered to you. The figure trafficked was closer to 473 than 130.

33 This was an ongoing commercial enterprise which the applicant had willingly undertaken to join. The applicant was ideally situated, through his hydroponic business, to act as a distributor in the way in which he did.

34 The applicant's health problems were outlined in detail before the sentencing judge who gave substantial consideration to them. His Honour said:

Clearly the matters relating to your health are of some real concern. You are on a number of different medications which have been taken on a daily basis to control your cholesterol, your blood-pressure, your diabetes, insulin and medication for pain. You are at an age which would make your experience in gaol difficult. Most prisoners are likely to be younger and fitter and may not be very sympathetic towards a person approaching their 60s who has a significant medical condition such as yours, and indeed limited in terms of agility.

I have read with care the reports of Dr Rametta, your cardiologist, who stresses that a number of drugs need to be taken on a regular basis. I note his caution that missing a single dose could be fatal. I also note his advice that each of your conditions needs to be monitored very carefully. Hopefully the Office of Corrections or other penal institutions that have been privately run in this State have the services that can cater for a person with your health problems.

35 Taking the health of the applicant and other factors in mitigation into account his Honour imposed a lower non-parole period than he otherwise would have.

That is lower than a minimum sentence that I would ordinarily impose in a situation that would relate to circumstances such as yours where you have a prior conviction for trafficking in cannabis that resulted in a significant term of imprisonment. That, as I have already indicated, limits the degree of leniency that can be extended to you.

36 The applicant's liability to automatic forfeiture was known to the learned sentencing judge and his Honour understood how it was put. No calculation of the actual financial disadvantage was put. There is no reason to assume that his Honour did not take that matter into account.

37 His Honour specifically adverted to the question of plea and remorse in his sentencing remarks. His Honour said:

You have, as Mr Hartnett stressed, expressed feelings of remorse. You have understood that you have let your wife and family down, and all of those matters can be taken in your favour as they require some recognition by way of sentencing discounts.

38 This was a reasonably serious example of offending of this kind. In my view, the sentencing judge made the appropriate findings in relation to the matters in aggravation and the matters in mitigation. The applicant had a particularly relevant prior conviction, for which he had been sentenced to a term of imprisonment which was to be served. A head sentence of five years is within the range and the non-parole period of two years six months might be considered merciful in the circumstances. It appears to be so in this case.

39 As I have already observed, there was a significant volume of material placed before his Honour on the plea in relation to the applicant's health. On appeal, counsel sought to argue that the applicant's health had deteriorated and his medical treatment was unsatisfactory. In support of that argument two affidavits were tendered. The first was from Michelle Gardiner, who is the Director of Justice Health. That affidavit was provided to explain the medical treatment available to the applicant at Dhurringle Prison whilst he is custody.

40 A further affidavit sworn by the applicant's solicitor, Patrick Dwyer, was provided. Exhibited to that affidavit was a statement prepared by Dr John Andrew Gall, an expert in forensic medicine with particular reference to 'custodial medicine'.

41 I have carefully considered all of that material. I am not satisfied that there has been such significant or sufficient change in the health of Mr Carnovale as to constitute fresh evidence.

42 Change in medical condition is capable of amounting to fresh evidence as was recognised in R v Eliasen.[4] Before matters amount to 'fresh evidence' for the purpose of sentence they will ordinarily need to be unrealised at the time of sentence. Alternatively, they must be matters which are capable of causing what was realised by the sentencing court to be seen in a new light. See R v Eliasen, R v WEF,[5] and R v Babic.[6]

43 As adverted to earlier, his Honour was alert to the applicant's medical condition. He said:

Clearly the matters relating to your health are of some real concern. You are on a number of different medications which have been taken on a daily basis to control your cholesterol, your blood-pressure, your diabetes, insulin and medication for pain. You are at an age which would make your experience in gaol difficult. Most prisoners are likely to be younger and fitter and may not be very sympathetic towards a person approaching their 60s who has a significant medical condition such as yours, and indeed limited in terms of agility.

I have read with care the reports of Dr Rametta, your cardiologist, who stresses that a number of drugs need to be taken on a regular basis. I note his caution that missing a single dose could be fatal. I also note his advice that each of your conditions needs to be monitored very carefully. Hopefully the Office of Corrections or other penal institutions that have been privately run in this State have the services that can cater for a person with your health problems.

However the view I take is that your ill health and problems that a prison sentence would impose upon you does not allow me to pass a sentence that is inappropriate in all the circumstances of your offending conduct. In saying that I take into account and make allowance for the considerations of personal hardship over and above those usually experienced by prisoners not troubled by considerations of ill health and the need for medical care. I note your health problems are much greater than those of your co-accused, for example, Paul Reivers and Brown Kerr, and indeed Falzon.

...

In your case I have made allowance, in particular to your poor state of health, but on the other hand you have a significant prior conviction. Consequently what I have hoped to do was fix a sentence that reflects not only parity but does justice to the nature of your guilty plea and the matters raised, and that is a matter that should be borne in mind when the individual sentences each co-accused are read. It might well be that comparisons are helpful or unhelpful between each co-accused. However, if sentences are read as a whole each sentence stands in its own stead reflecting considerations relating to each co-accused as well as considerations relating to parity across the board.

44 Although Dr Gall expressed the view that the applicant's health had deteriorated, on the whole of the evidence it cannot be said to have deteriorated in a way which was not anticipated, understood and dealt with by the sentencing judge in his reasons.

45 Another consideration is the placement of the applicant at Dhurringle Prison, which does not allow for the optional management of his medical condition, and his possible relocation to Port Phillip Prison. The applicant prefers his present placement for a number of reasons apart from his health and does not seek transfer to Port Phillip. Dr Gall is of the view that as a matter of the applicant's general wellbeing, he is better off where he is.

46 In those circumstances the matters put do not amount to fresh evidence.

47 The learned sentencing judge was faced with a difficult and complex task in sentencing the applicant and his co-offenders. His Honour said:

I would like to add, as I have with the other co-accused, in relation to all co-accused sentenced in relation to these matters, the task has been difficult and the question of parity between sentences has been most difficult to overcome. The course of the plea proceedings has highlighted differences between each individual in relation to the timing of the guilty plea, the relevance of prior offending and circumstances and relevant circumstances personal to each accused.

In your case I have made allowance, in particular to your poor state of health, but on the other hand you have a significant prior conviction. Consequently what I have hoped to do was fix a sentence that reflects not only parity but does justice to the nature of your guilty plea and the matters raised, and that is a matter that should be borne in mind when the individual sentences each co-accused are read. It might well be that comparisons are helpful or unhelpful between each co-accused. However, if sentences are read as a whole each sentence stands in its own stead reflecting considerations relating to each co-accused as well as considerations relating to parity across the board.

48 It was submitted that the applicant Georgeallis was a close comparator to the present applicant. Georgeallis received an identical sentence to the applicant. He had prior convictions for the possession of cannabis. Those prior convictions are not comparable with those of the present applicant, who had been sentenced to a term of imprisonment for trafficking cannabis.

49 It is rare for any two co-offenders to be in identical circumstances. There is no significant disparity between the applicant and Georgeallis. I am not persuaded that the applicant could entertain any justifiable sense of grievance as a result of the sentences imposed on his co-offenders.

50 None of the applicant's grounds having been made out, his application for leave should be refused.

51 The applicant admitted prior convictions including one for trafficking cannabis and two for the possession of cannabis. On the charge of trafficking the applicant was sentenced to be imprisoned for four months and the whole sentence was suspended for 12 months. On each charge of possession he had been fined.

52 The applicant purchased 700 cannabis plants from the co-offender Falzon between 24 June 2005 and 11 November 2005, that is, over a period of about 18 weeks. The applicant was a weekly customer of Falzon's. A pecuniary penalty in the sum of $17,500 was not contested. That order related to sale by the applicant of 700 plants for $25 each. The applicant claimed to make a profit of $5 per plant.

Ground 1 - weight given to Pecuniary Penalty Order

53 It is true that the sentencing judge did not directly refer to having taken the pecuniary penalty order into account, however did refer to it. It follows that he was aware of the order. The mere fact that his Honour did not specifically set out the matter in his reasons does not, by necessary implication, mean he failed to take it into account. When looking at the sentence imposed, it is not possible to say one way or another whether the sentencing judge did have regard to it. It seems to me extremely unlikely that his Honour went to the trouble of setting out the orders in his reasons and then ignored the pecuniary penalty when imposing the sentence. It is much more likely that his Honour referred to it because he was aware of its significance.

54 Given the degree of seriousness of the offending overall, such a feature, namely $17,500 would not on its own carry much weight. The ground has not been made out.

55 It was argued given that the mitigating factors put on behalf of the applicant had been accepted by the learned sentencing judge, the sentence imposed was outside the range. Those matters were

- the fact that the applicant was unlikely to re-offend

56 His Honour did have regard to all these matters.

57 Some of the prior convictions which the applicant had were particularly relevant. His Honour said:

Nevertheless, trafficking in a commercial quantity of cannabis is a serious offence and carries a maximum penalty of 25 years' imprisonment. Ordinarily a proper sentence will reflect strongly the considerations of general and specific deterrence as well as the need to denounce in very strong and unambiguous terms the community's desire to denounce such activity as being totally unacceptable.

Whilst there is, I think, reasons to differentiate the type of trafficking that you indulged in as compared with commercial trafficking quantities of narcotic substances, the latter often carries greater reward by way of illicit profits than perhaps you had in mind. Nevertheless, it seems to me an appropriate sentence must be a significant immediate custodial sentence.

58 When all relevant matters are considered, particularly the applicant's prior convictions for trafficking and the fact that the number of plants involved was seven times the 'commercial quantity', it cannot be said that the sentence is outside the range.

59 As neither ground is made out, the application for leave to appeal should be refused.

[1] R v Merrett and others [2007] VSCA 1; (2007) 14 VR 392 [35]-[38].

[3] [2007] VSCA 102; (2007) 16 VR 269.

[4] (1991) 53 A Crim R 391.

[5] [1998] 2 VR 385.

[6] [1998] 2 VR 79.