Ridge v The Queen [2013] VSCA 203

2 On 18 October 2012 the applicant pleaded guilty to the offences set out below and on 26 November 2012 he was sentenced accordingly.

Trafficking in a drug of dependence (methylamphetamine) [s 71AC Drugs,

Possession of a drug of dependence (ketamine) [s 71(1)(c) Drugs, Poisons

6 years' imprisonment with a nonparole period of 3 years 6 months.

Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958

Disposal Order pursuant to s 77(1) of the Confiscation Act 1997

3 The sentencing judge set out the circumstances of the offending in her sentencing remarks and I adopt those remarks:[1]

You and another man, Daniel Francis Brown, were the targets of a major drug operation called Operation Refife conducted by police in May 2011 into the sale and distribution of crystal methylamphetamine, that is ice, in and around the Bendigo region.

From March 2011, you and Brown lived together in a unit in Golden Square until August of that year when Brown moved into a house he bought in Bendigo and you moved to a serviced apartment. Between 7 September and 25 November 2011, telephone intercepts revealed that you regularly bought - obtained ice and other drugs from Brown which you would sell to others and then pay Brown later in advance of obtaining more drugs. These facts underlie charge 1, trafficking in a drug of dependence, that is methylamphetamine. In that time you and Brown contacted each other over 1000 times, the vast majority of those calls clearly relating to drug trafficking. It was ascertained that most of the conversations were related to ice.

On two occasions the purchase of ketamine was arranged. These actions underlie charge 3 on the indictment, possession of a drug of dependence, namely ketamine. On average you purchased drugs from Brown a couple of times a week and records kept by you showed you bought it in amounts of between three and a half to 14 grams, usually the latter. You paid Brown $6000 for 14 grams of ice. In the 79-day period covered by the indictment, when amounts of cash were discussed between the two of you, the amount you agreed to provide Brown totalled over $40,000. It is said that in that time you sold most of what you brought from Brown to other people but consumed the remainder yourself and the $40,000 referred to by the Crown is said to be money received from the sale of drugs by you.

Police searched your home on 25 November 2011 where they discovered ziploc bags containing white crystals and a container of white paste amounting to a small quantity of methylamphetamine in your pantry and next to your bed which facts underlie charge 4 on the indictment, possession of a drug of dependence. They also found a bag of seven pills which you later told them was ecstasy you had available for use and sale. Records you kept showed four dates where you had ecstasy pills available for sale and you agreed you had sold pills two weeks before. These facts underlie charge 2 on the indictment, trafficking in a drug of dependence, MDMA, and also to charge 5 on the indictment, possession of a drug of dependence, MEDMA.

Drug paraphernalia including cutting agents, scales and deal bags were discovered, you telling police that scales obviously were used to check drug weights when you bought and sold. Numerous documents were located under a false floor of a cupboard, together with financial records which you agreed indicated you were trafficking over the relevant period, showing 13 occasions where Brown supplied you with amounts of ice, generally in half ounce purchases of $6000 and revealing 15 payments made by you to Brown of amounts ranging between 900 and 4500 dollars in respect of the ice supplied by Brown to you in that time. Those records also revealed at lease 19 different customers who made at least 82 purchases from you and that 83 payments were received by you. During the time period in the indictment you were unemployed but sustained weekly living expenses of about seven to eight hundred dollars a week and a drug habit, 300 to 2000 a week whilst on a Centrelink Income. In what was a fairly frank interview with police, you agree you had been purchasing and selling these drugs, mainly ice, as well as using amphetamines on a regular basis and that admission underlies the summary charge, using amphetamine. You have been remanded in custody since your arrest on 25 November 2011.

4 By notice dated 7 June 2013 the applicant seeks leave to appeal against sentence on the sole ground that:

There is new evidence now available to the Court which entitles the Court to reconsider the Sentence imposed in the Lower Court.

5 That ground arises in circumstances that the applicant has been diagnosed with incurable oesophageal cancer and has a significantly reduced life expectancy.

6 The matter first came before this Court in June of this year. However, the hearing was adjourned so that material could be obtained to demonstrate whether or not the applicant was likely to have been suffering from that condition at the time of plea and sentence.

7 It is important that such existence of the medical condition or at least the likelihood of it having existed at the time of sentence be established. This is because this Court could not intervene if the medical connection was one which had arisen some time after sentence and any intervention on sentence would have to be at the hands of the executive.[2]

8 In R v Nguyen[3] Redlich JA (with whom Maxwell P and Neave JA agreed) set out what has been taken, in more recent times, to be the statement of the law applicable to fresh evidence in these circumstances:[4]

(i) the new evidence must relate to events which have occurred since the sentence was imposed;

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;

(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.

9 The applicability of the principles set out above is clear in this case.

10 Redlich JA also set out the approach to be taken on resentencing:[5]

The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.

11 The fresh evidence is covered by what Dr Raymond Snyder said in his letter dated 2 July 2013:

This man has incurable carcinoma of the oesophagus proven at biopsy. Although he has had a good response to his initial treatment, this is likely to last between 3-18 months approximately. When the disease becomes active again it may respond to further treatment. Because of some uncertainty as to the timing of progression of his disease and response to further treatment, it is difficult to be very precise in his prognosis. At best, he is unlikely to live longer than 2-3 years and may survive a much shorter time. It is possible to be more definite about his prognosis at a time when his disease is progressing and there is no further chance of tumour control.

The initial development of this cancer probably occurred some years ago. It would have grown at a silent state until large enough to cause symptoms. I note that he complained at a nurse clinic on 18 January2 013 that he had difficulty swallowing. It is therefore highly likely that his cancer was present in a sub-clinical state much earlier than October 2012.

12 The respondent concedes that the evidence is fresh evidence and that the applicant falls to be resentenced.

13 Both the respondent and applicant submit that the applicant should be resentenced by s reduction of the nonparole period so as to provide for the opportunity of his immediate release.

14 The proposed course is an unusual one because it deals only with the nonparole period. This was, however, relevantly serious offending of which the objective nature of the offending merited the head sentence.

15 Her Honour must have regarded the prospect of rehabilitation of the applicant as very good because she fixed a relatively low nonparole period in any event. Any reduction in the nonparole period will mean that the nonparole period represents a very low proportion of the head sentence given. In the very unusual circumstances of this case, it is appropriate to resentence the applicant as submitted.

16 In particular, it was submitted on behalf of the respondent that such a significant portion of the nonparole period has already been served as to warrant the proposed course.

17 I would grant leave to appeal and allow the appeal. I would resentence the applicant to be imprisoned as set out by the learned sentencing judge. I would fix a new nonparole period of 621 days and I would declare 621 days as already served pursuant to this sentence.

[1] DPP v Ridge (Unreported, County Court of Victoria, Judge Gaynor, 26 November 2012) [1]-[5].

[2] R v Babic [1998] 2 VR 2; R. v Eliasen (1991) 53 A Crim R 391; R v WEF [1998] 2 VR 385.

[3] [2006] VSCA 184.