Zerafa v The Queen [2013] VSCA 42

2 On 14 December 2011, a plea was heard. On 23 January 2012, his Honour Judge Gucciardo sentenced the applicant as follows:

Trafficking in a drug of dependence (methyl-amphetamine)

3 The applicant seeks leave to appeal against the sentences he received. Of the grounds relied upon initially, grounds 2 and 4 have since been abandoned. The remaining grounds, with their original numbering retained, are:

(1) The learned sentencing judge took into account irrelevant and/or inadmissible material being the evidence of drug dealing outside of the period of the three counts of trafficking being 1 September 2008 to 29 October 2008.

(3) The learned sentencing judge erred in taking into account an alleged threat (post the offending) from the applicant to the informant.

(5) The sentences, being the individual sentences, the total effective sentence, and the minimum term, are all manifestly excessive.

4 The underlying circumstances giving rise to this application are as follows. Between 5 September and 29 October 2008, police monitored certain telephone calls and text messages, conducted surveillance of the applicant and executed search warrants at the applicant's address and other locations.

5 The applicant regularly travelled to Melbourne to collect cannabis, methylamphetamine and ecstasy, which he then distributed in Frankston, Laverton, Reservoir, Nagambie, Bendigo, Echuca and Kyabram. He was assisted by his co-accused, Bateman and Sutton. Bateman arranged collection and deliveries, tested drug quality, collected debts and was a conduit for communications with Sutton. Sutton was the applicant's source of methylamphetamine.

6 The applicant held meetings in sheds he owned regarding the trafficking operations. Business was also conducted by telephone and text messages, in which code words were used to refer to various drugs.

7 Intercepted telephone calls show that in the time leading up to his arrest, the applicant had been arranging for a replacement delivery of methylamphetamine because an earlier, poor quality delivery (for which the applicant paid $20,000) had to be returned. The applicant and Sutton made arrangements for the delivery of the methylamphetamine on 24 October 2008. Sutton was intercepted by police on that day, and a search of his vehicle located 148.7g of methylamphetamine (0.6-1.2% pure), 0.2g of MDMA and various drug paraphernalia.

8 The plea hearing occupied some part of three days in 2011 (19 September, 19 October and 14 December, although nothing of substance occurred on 19 October.) During the Crown opening on 19 September, the prosecution tendered without objection as exhibit 'A' a ten page document entitled 'Summary of Prosecution Opening on Plea'. This disclosed that between 10 September and 29 October, approximately 450 drug-related calls and text messages involving over 30 individuals were intercepted under warrants issued in respect of three telephones linked to the applicant. The exhibit also contained six précis of the contents of the statements of six individuals which those individuals had made to the police during which they gave evidence of drug transactions in which the applicant was involved. The names of those persons were Robert Fisher, Robert Watts, Joel Griffiths, Andrew Metzger, Jordan Hutchinson and Michael Jeanes.

9 On 29 October 2008, search warrants were executed at 18 different locations associated with the applicant. Police found, amongst other things, $2,840 in cash, a number of mobile telephones and SIM cards and a tin containing 15.4 grams of cannabis.

10 At one of the locations where a search warrant was executed, a Honda GXV 390 lawn mower was found. The applicant had agreed to supply a truck driver with 3.5 grams of methylamphetamine in return for the truck driver removing a lawn mower from the load he was transporting and giving it to the applicant. Count 4 on the presentment related to the applicant's possession of this stolen lawn mower.

11 The applicant was arrested on 29 October 2008. He participated in a record of interview on the same day and denied trafficking in drugs or possessing stolen property.

12 A contested committal took place in August 2009. The applicant was committed for trial on all charges and entered pleas of not guilty in respect of each of them. In February 2010, he indicated a willingness to plead guilty to the charges for which he was eventually sentenced. Despite this, he was not sentenced until January 2012. The sentencing judge examined the history of the proceedings and found that the delay between the applicant's offending and his being sentenced was not due to a lack of diligence on the part of the Crown but rather resulted from 'a series of manoeuvres designed to delay the inevitable, mostly on [the applicant's] part and on some other persons who advised [the applicant]'.[1]

13 The cases against the applicant and his co-accused, Bateman and Sutton, were listed for plea on 27 September 2011. Bateman and Sutton were arraigned that day and each pleaded guilty to one count of trafficking in a drug of dependence (methylamphetamine). Sutton also pleaded guilty to one count of possession of a drug of dependence (MDMA). They were sentenced on 17 October 2011. Bateman was sentenced to three years' imprisonment with a non-parole period of two years and two months. Sutton was sentenced to a total effective sentence of three years' imprisonment with a non-parole period of two years and two months.

14 When this application first came on for hearing (in Shepparton on 25 September 2012) the applicant applied for an adjournment on the basis that those representing him (who were not those who represented him on his plea) wished to investigate what was said to be a real possibility: namely, that the sentencing judge, in reaching his decision, relied upon material that was not in evidence. The Crown did not oppose the adjournment application, and the matter was adjourned to allow this investigation to proceed.

15 The query about the material to which his Honour had resort has its origin in paragraph 12 of his Honour's reasons for sentence. His Honour there said:

I have read through a bundle of depositions or summaries which outline the chronology of involvement, including a summary of relevant calls for the relevant dates. This comprehensively shows your involvement in the trafficking of drugs of dependence in the charged period. I have also noted a comprehensive summary of individual involvement which runs to some 180 pages and details your dealings with many suppliers, associates and customers, with particular reference to you as the central protagonist in this course of conduct. A list of code terms was also tendered.

16 As we then understood the applicant's position, it was that some or all of these documents had perhaps come into the judge's possession otherwise than through their being either tendered in evidence or by being received by him, with the parties' acquiescence, during the course of the plea.

17 On 16 October 2012, the applicant's solicitor affirmed an affidavit in which she deposed to being provided with documents from the applicant's former solicitors. The first of these (KSM1) was dated 3 November 2010, was of 19 pages, and was headed 'Summary of Prosecution Opening'. It is clear that this was not the summary of ten pages with the same heading which was read to the judge and then tendered as exhibit 'A' during the Crown's opening on 19 September 2011.[2] Exhibit 'A' is dated 18 September 2011; that is, the day before the plea hearing began and more than ten months after the 'Summary of Prosecution Opening' of 3 November the year before.

18 The second of the four documents to which the applicant's solicitor referred in her affidavit of 16 October (KSM2) consisted of two pages with the heading 'Drug Terms - Code'. The third (KSM3) was a 133-page document headed 'Chronology'. This document set out in a table a chronology of intercepted telephone calls - giving details of the date and time of the caller, the persons involved, the conversation and a summary of its alleged meaning or significance; and it must be the 'chronology of involvement' to which the judge referred in paragraph [12] of his reasons for sentence.

19 The fourth document (KSM4) was a 180-page document headed 'Individual Involvement'. Much of this document was in tabular form, detailing telephone intercepts in the same way as KSM3. There can be little doubt that this document is the document described by his Honour in paragraph [12] of his reasons for sentence as running 'to some 180 pages and [detailing the applicant's] dealing with many suppliers, associates and customers'.

20 In the supplementary written case of the applicant,[3] the applicant submits that an analysis of the reasons for sentence should satisfy the Court that the sentencing judge had available to him exhibit 'A' on the plea (the ten-page Summary of Prosecution Opening dated 18 September 2011), together with the depositions and each of 'the four documents attached to the [applicant's solicitor's] affidavit'. It is then submitted, correctly, that the first of these four (the Summary of Prosecution Opening dated 3 November 2010) (KSM1) incorporates by reference each of KSM2, KSM3 and KSM4. The applicant's supplementary written case then continued:

It is submitted that the mischief caused by the learned sentencing judge having recourse to these three documents in particular can be seen by his apparent reliance on the contents of the statements of the six identified witnesses in his brief summary of the nature and duration of the applicant's criminal conduct, which hardly departs from the description of activity contained within those documents.

21 It appears from the above, and from the fact that no documents were identified as being improperly before his Honour, that the applicant's concern as expressed when the application was called on in Shepparton on 25 September 2012, has no present basis. His Honour did not, when sentencing, have regard to materials not put in evidence.

22 In these circumstances, it is now apparent that no report from the judge was necessary. In the meantime, however, such a report was sought and obtained. It is dated 7 December 2012. In it, the judge said that he 'did not rely, for the purpose of imposing the sentence on Mr Zerafa on documents, or material, that was not officially put before the Court, and formally tendered in evidence.' In the course of oral submissions made on this application the Court was therefore properly informed that, to the extent that the second ground of appeal asserts reliance by the judge on 'materials not put before him on the plea', it is not pursued.

23 It was on that basis that Ground 2 of the original grounds of appeal was abandoned when the appeal came on for hearing this morning.

24 We turn now to the applicant's specific grounds of appeal as they remain.

Ground 1- taking into account the evidence of drug dealing outside the period covered by the three charges of trafficking

25 Each charge of trafficking was a charge of trafficking the relevant drug between 1 September 2008 and 29 October 2008. The applicant complains that in paragraphs 5, 6 and 7 of the trial judge's reasons for sentence, there is reference to and reliance upon the six précis of the six statements referred to above.

26 All of this material, however, either relates directly to the period included in the trafficking charges, or puts into context the applicant's drug-related activities. It was on this basis appropriately before the judge for the purposes of sentencing; and it was on this basis, one may assume, that no objection was taken on behalf of the applicant, to its being tendered.

27 Senior counsel for the applicant (who did not appear during the plea hearing) submitted this morning that, as condensed into the précis contained in exhibit 'A', at least three of the statements spoke about interaction between the applicant and the maker of the statement as if that interaction continued throughout the charged period. A reading of the statements themselves, however, disclosed that the relevant contact was discontinued before the charged period commenced. Accordingly, his Honour was innocently misled into relying on inaccurate material which was prejudicial to the applicant.

28 There are, we think, two answers to this submission. First, the exhibit, if inaccurate, was nevertheless put before his Honour without objection as part of the material the judge could properly use for sentencing purposes. Secondly, there was no doubt that, during the charged period, the applicant was not involved in isolated incidents involving drugs. He was in the business of drug trafficking. And while he must not be sentenced for offending with which he has not been charged, equally the offending the subject of the charges must for sentencing purposes be viewed in its context; and a business context is for sentencing purposes to be distinguished from a context in which isolated deals were being done. As was fairly conceded by counsel for the applicant this morning, whatever view may have been taken about the timing of individual transactions, the applicant fell to be sentenced in respect of the supply of three different drugs to multiple people over the two months in question.

29 The only remaining question, therefore, is whether his Honour, in fixing upon an appropriate sentence, inflated the penalties imposed because he took a more expansive view of the business than, given its two-month limitation, the period of offending allowed.

30 His Honour commenced his reasons for sentence with a statement that the applicant had pleaded guilty to three charges of trafficking between 1 September 2008 and 29 October 2008. Then, in paragraph 6 of the reasons for sentence, his Honour said, 'I must note that the charged period is the relevant period for our purposes and the sentence related to that alone'. This was followed by a description of further relevant matters 'during the specified period' and 'during the charged period', before reference was made to surveillance in October 2008 and a series of intercepted telephone calls, again, in October 2008.

31 The applicant submits that, notwithstanding these references, it is clear that factual matters outside the charged period had 'a significant influence on the sentences imposed'. We reject this submission. There is no basis for it. His Honour explicitly stated that he was sentencing only in respect of the charged period. Nothing in the sentences imposed suggests his Honour did otherwise. The additional material referred to by his Honour, and which was tendered without objection, was merely contextual detail capable (in the absence of objection) of being used as such. And it is to be noted that at no time during the course of the plea did counsel for the appellant object to his Honour receiving this material (either on the basis of relevance or otherwise). That said, there is nothing to suggest that his Honour sentenced the applicant for anything other than that which the applicant had pleaded guilty.

32 Our conclusion on the material are sufficient to dispose of this ground. We add for completeness that, in his report of 7 December last year, his Honour stated that he 'looked at this material strictly in relation to the charged period'. It is indeed plain, in our opinion, that this is so.

33 Ground 3 contends that '[t]he learned sentencing judge erred in taking into account an alleged threat (post the offending) from the applicant to the informant'. The matter the subject of ground 3 was raised by the prosecutor following a submission by counsel for the applicant as to the applicant's remorse. The prosecutor told the sentencing judge that on a monitored prison telephone call on 6 October 2011, the applicant said that if the police did not charge the informant, then '[w]hen I get out I am going to blow his head off. He is a fucking dog'. The prosecutor told the judge that he only put this matter forward as relevant to remorse.

34 The question of the extent of any remorse felt by the applicant was a matter of some significance on his plea and sentence. In careful and considered reasons, his Honour said:

1. Not only general but specific deterrence in your case is important. You have a prior criminal history some of which involves drugs. In 1994 you were placed on a community based order for two charges of causing injury intentionally or recklessly. In 2000 you were fined for possession of cannabis and resisting police. In 2005 you were placed on a bond for possession and use of cannabis. In 2007 you were placed on another community based order for possession and use of cannabis. You breached that order and you were imprisoned for ten days.
2. These encounters with the law in relation to drugs were obviously of little deterrent effect on you. It was said that your remand in custody has so far been salutary, not just that you have been able to stay clean and away from substances yourself, but you have been able to gain some insight which you did not previously have. I accept that this impact may be true, though true remorse is always difficult to distil. It may be that you are ready, after a period of punishment, to start the rehabilitative process which may reclaim you as a useful member of society.

35 His Honour then noted the assessment by, and the opinion of, Mr Watson-Munro, a consultant forensic psychologist. Specifically, his Honour noted Mr Watson-Munro's statement of the applicant's expression of remorse for his behaviour, which it was said had been 'galvanised by [the applicant's] remand into custody and exposure to imprisonment'.

36 At paragraph 26 of the sentencing judge's reasons, his Honour referred to the matter raised by the prosecutor in the following terms:

Of course this is a long road and the matters raised by the prosecution which involved you making threats about the informant, during a call made whilst in custody, is of concern.

37 We see no error in his Honour's reference to the threat referred to by the prosecutor. If it was to be contested that any such threat had been made by the applicant, then one would have expected the matter to be raised by his counsel at the plea hearing. However, it was not the subject of any denial, and no objection or complaint was made in respect of it by the applicant's counsel before his Honour. In these circumstances, it was clearly open to his Honour to take this matter into account when considering the issue of remorse and, more generally, when engaged in the process of instinctive synthesis at the heart of the sentencing exercise.

38 We were informed by counsel for both sides this morning that the applicant has since been acquitted in respect of a charge involving the threat in question. However, it does not follow from that acquittal that it was in the circumstances inappropriate for his Honour to take the uncontested threat into account.

40 At paragraphs [18] to [25] of his reasons for sentence, the sentencing judge set out the circumstances personal to the applicant. No complaint is made concerning his Honour's description of these matters. They included the death of the applicant's father and brother, the applicant's work history, the applicant's relationship history, a history of two motor vehicle accidents, injuries to the applicant's legs and relevant matters of a psychiatric nature.

41 This Court has repeatedly said that the ground of manifest excess can only succeed if the Court is satisfied that:

A sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although the error cannot be identified. To succeed on this ground the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must go so far outside the range of a reasonable discretionary judgment as to itself bespeak error.[4]

42 The short answer to ground 5 is that none of the sentences passed by his Honour on the applicant are capable of satisfying this test. Each of the sentences, including the total effective sentence and the non-parole period, are within the range of a reasonable exercise of sentencing discretion in the circumstances of this case. The sentencing judge considered all of the relevant circumstances personal to the applicant and the circumstances of his offending. The applicant was sentenced on the basis that his involvement in the trafficking was more serious than that of his co-offenders Bateman and Sutton. Indeed, on the plea, the prosecutor described the applicant (without objection) as being 'at the apex of this offending group'. Further, as his Honour's reasons for sentence disclose, his Honour reviewed the sentences of Bateman and Sutton and their circumstances, and took into account the applicant's relative position and involvement as it had been shown to be. His Honour's analysis in respect of all of these matters discloses no arguable error.

44 The application for leave to appeal must be refused.

[2] It is similarly clear that Exhibit 'A' was again before the judge on 14 December that year, the final day of a three-day plea hearing.

[4] Hanks v R [2011] VSCA 7, [22].