“QUOTEWORTHY” 2007

1. “37. The object and purpose of the conspiracy for which you have both been convicted, the trafficking of heroin in more than a commercial quantity, is itself a most serious criminal offence, the maximum sentence for which is 25 years’ imprisonment. As I stated when sentencing Ferguson earlier this year, illicit drugs of dependence such as heroin are an unmitigated social evil. They have a cruel and devastating impact on lives, on families and on society. Our courts are all too familiar with the tragic consequences of the abuse of drugs of dependence. The shattered lives, broken families, violence and associated criminality, all spawned by the abuse of drugs of dependence, are commonly part and parcel of offending which comes before our courts.

38. The trafficking of drugs of addiction is, as I have stated, a most serious criminal offence. It preys on the young, the weak and the vulnerable. It is a twisted and contemptible enterprise, conducted by greedy, callous and ruthless individuals. It offends the fundamental norms of a decent civilised society.

39. The crime of conspiracy to traffick a drug of dependence such as heroin is equally serious as the crime of trafficking itself. The legislation prescribes the same maximum penalty for a conspiracy as it does for the act of trafficking. At the heart of the conspiracy lies the secret combination between you and your fellow conspirators to achieve your criminal purposes.” per Kaye J in R v Cox and Sadler [2006] VSC 443, Vic Sup. Court, 24 November 2006.

2. “37. I turn to consider the question of general deterrence. Unfortunately, violence arising from the use of so-called “party drugs”, particularly in the nightclub and dance party scenes, is an all-too-common problem. People need to understand the risks associated with such drug usage, particularly amphetamine usage, and be deterred from using them.

38. It is well-established that psychiatric illness not amounting to mental impairment may be relevant to sentencing in several ways, including by reducing the moral culpability of the offence and by reducing or eliminating general deterrence as an appropriate purpose of punishment. However, it is seldom that a self-induced condition will in itself result in a significant lowering of sentence or reduce the level of moral culpability (R v Sebalj [2006] VSCA 106 per Vincent JA with whom Maxwell P agreed; R v Piket [2006] VSC 238). In this case, I do not regard the moral culpability or need for general deterrence as significantly reduced only by reason of your having acted in some sort of drug-induced state.

39. However, there is a further factor which is very relevant here, particularly to the issue of general deterrence, and that is your age. It is well-established that, in sentencing youthful offenders, the following general principles are relevant (R v Mills [1998] 4 VR 235; see also R v Jones [2000] VSCA 204 and R v Connolly [2004] VSCA 24):

(1) The youth of an offender, particularly a first offender such as you, should be a primary consideration for a sentencing court where the matter properly arises;

(2) In the case of such an offender, rehabilitation is usually far more important than general deterrence. Rehabilitation benefits the community as well as the offender;

(3) A youthful offender should not be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of the past criminality.

40. You are now 22 years old. You were 21 at the time of offending. There is no dispute that it is appropriate to treat you as “youthful” in terms of those principles, although how far they apply must vary from case to case.

41. The evidence before me supports a finding that you have greatly matured since the events in question and are and will continue to be a hard-working, contributing member of the community. No long term harm has been caused by your actions and the principal victim is fully supportive of you. You are remorseful, have co-operated with the police and pleaded guilty at the earliest opportunity. I am satisfied that there is little risk of you repeating your stupid and dangerous youthful drug-taking. In my opinion, the interests of the community will not be served by your being sent to an adult prison, even for a short time.

42. An element of mercy has always been regarded, and properly regarded, as running hand in hand with the sentencing discretion. A sentence may be both just and merciful. In this context, mercy must be moved not merely by sympathy, but by considerations supported by the evidence after careful consideration. In the circumstances of this case, were it otherwise thought appropriate to sentence you to immediate imprisonment in respect of any of the charges, I would be moved to exercise mercy and not to impose a custodial sentence.

43. I think you deserve to be given a chance. I will not send you to jail. Do not let the court or yourself down, Mr Lidonnici.” Per Hollingworth J in R v Lidonnici [2007] VSC 3, Vic Sup Ct, 24 January 2007.

3. “23 Whilst it is true that sentencing remarks should not be read as if they are the terms of a constructive trust or a will, and whilst appropriate regard needs to be given to the pressure under which trial judges are working when giving reasons for sentence, the words which were used by his Honour are clear and unambiguous. True it is that his Honour is a most experienced sentencing judge and it may well be that he intended to say that it was not unusual for there to be a non parole period fixed at a level of approximately two thirds of a head sentence. However if the plain meaning of the words do reflect his Honour’s approach then it is apparent that he fell into sentencing error in using as a benchmark his “usual practice”.

24. It is apparent from a consideration of the above authorities that although there is a range into which many cases fall for the fixing of a non parole period, it is not by reason of any standard practice. Rather, it is after consideration of all of the relevant factors which may vary from case to case. In such circumstances the use of the term “my usual practice” does not appear to me to be merely a semantic infelicity but an incorrect statement of principle. In such circumstances the sentencing discretion is reopened and it falls to this Court to re-sentence the appellant.”
Per Kellam AJA in R v Alparslan [2007] VSCA 3; (2007) 170 A Crim R 205, Court of Appeal, Vic Sup Ct, 18 January 2007.