New South Wales Court of Criminal Appeal CITATION: Shaun Joseph Vlismas v Regina [2006] NSWCCA 270 HEARING DATE(S): 2 August 2006 JUDGMENT DATE: 2 August 2006 JUDGMENT OF: Beazley JA at 1; Hulme J at 28; Hislop J at 29 EX TEMPORE JUDGMENT DATE: 08/02/2006 DECISION: Leave to appeal granted; appeal dismissed. CATCHWORDS: SENTENCING – appeal against sentences – whether manifestly excessive – role of appellant more serious than that of co-offender – sentences appropriate given seriousness of offences - SENTENCING – parity – sentencing judge gave same effective sentence to appellant and co-offender – sentencing judge erred in not considering additional offence committed by co-offender separately – regard must be had to questions of parity in determining sentences – no interference with sentences LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) s 33 Drug Misuse and Trafficking Act 1985 (NSW) s 23(2)(a), 25(1), 29 CASES CITED: R v Mangano (2006) NSWCCA 35 PARTIES: Shaun Joseph Vlismas (Appellant) Crown (Respondent) FILE NUMBER(S): CCA 2006/1145 COUNSEL: G Wendler (Appellant) J Dwyer (Crown) SOLICITORS: R van Houten (Appellant) S Kavanagh (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/1109; 05/21/1110; 05/21/1111 LOWER COURT JUDICIAL OFFICER: English DCJ LOWER COURT DATE OF DECISION: 13 December 2005 - 7 - IN THE COURT OF CRIMINAL APPEAL CCA 2006/1145 BEAZLEY JA HULME J HISLOP J Ex tempore 2 August 2006 SHAUN JOSEPH VLISMAS v REGINA Judgment 1 BEAZLEY JA: The applicant seeks leave to appeal against sentences imposed upon him by her Honour Judge English on 13 December 2005 at Penrith District Court. 2 The applicant was charged with four counts on indictment. Two counts (counts 1 and 3 on the indictment) were of 'cultivate prohibited plants of not less than the commercial quantity' in the one case at premises at Blacktown, and in the other case at premises at Chipping Norton. Those offences were charged under the provisions of s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Drug Misuse and Trafficking Act) and carry a maximum penalty of 15 years imprisonment. 3 The other counts (counts 2 and 4 on the indictment) were 'supply prohibited drug', namely cannabis leaf, contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act, again, at premises at Blacktown and Chipping Norton respectively. The maximum penalty under s 25(1) is, relevantly, ten years imprisonment. The charge was laid under s 25(1) because of the 'deemed supply' provisions of s 29. 4 The charges related to a joint criminal enterprise with two other persons, a Mr Langdon and a Mr Walsh. Mr Langdon was charged with the same four offences as was the applicant. In addition, he was separately charged with an offence under s 23(1)(a) of the Drug Misuse and Trafficking Act of cultivating prohibited plants at Carlingford. The maximum penalty under that section is, relevantly, ten years imprisonment. 5 Mr Walsh who was found by her Honour to be a lesser player in the joint criminal enterprise, was charged with two offences, one of 'knowingly take part' in the cultivation of prohibited plants at the Blacktown premises contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act and one charge under the same section in relation to the premises at Chipping Norton. 6 Her Honour sentenced the applicant to concurrent terms in respect of the four counts with which he was charged. The sentences were as follows: in respect of count 1, which related to the cultivation of prohibited plants at Blacktown, her Honour sentenced the applicant to a non-parole period of four years commencing on 17 August 2004, to expire on 16 August 2008, with an overall term of imprisonment of eight years, commencing on 17 August 2004 and expiring on 16 August 2012. 7 In respect of count 2, relating to the supply of a prohibited drug at Blacktown, the applicant was sentenced to a fixed term of imprisonment of two years and six months commencing on 17 August 2004 and expiring on 16 February 2007. No non-parole period was set as the sentence was to be served concurrently with that arising from the more serious Blacktown offence and hence was subsumed by it. 8 As regards count 3, the offence of cultivate prohibited plant at Chipping Norton, the applicant was sentenced to a non-parole period of three years commencing 16 February 2005 and expiring 15 February 2008 with a fixed term of imprisonment of six years commencing on 16 February 2005 and expiring on 15 February 2011. 9 Finally, the applicant was sentenced in respect of count 4, supplying a prohibited drug at Chipping Norton, to a fixed term of imprisonment of two years and six months to commence on 16 February 2005 and to expire on 15 August 2007. Again, no non-parole period was set as the sentence was to be served concurrently with that arising from the more serious Blacktown offence and hence was subsumed by it. 10 Her Honour imposed the same sentences on Langdon in respect of the common counts. In respect of the separate charge of cultivating prohibited plants at Carlingford, her Honour sentenced Langdon to a fixed term of eighteen months, commencing on 16 February 2005 and expiring on 15 August 2006. 11 The result of the sentences imposed upon the applicant was to sentence him to an overall effective term of imprisonment of eight years with a non-parole period of four years. Special circumstances were found. 12 The overall effective sentence imposed upon Langdon in respect of the five charges, being the four common charges and the one additional charge, was also eight years, with a non-parole period of four years, and in the manner in which her Honour structured the sentences, they were also effectively wholly concurrent. It is not necessary for me to deal separately with the sentencing in relation to Walsh. 13 The applicant complains that her Honour erred in the sentencing process by finding that the roles played by the applicant and Langdon were "on par". He contends that this was not correct in the sense that the offender Langdon had committed an additional and separate serious offence, but nonetheless ended up with the same effective sentence. 14 The context in which her Honour remarked that the roles of the offenders were "on par" came in that part of her Honour's judgment where her Honour was assessing the roles of each of the offenders, including the offender Walsh. In relation to the offender Walsh, she said of him that the role played was of a very different nature, and the issue of parity therefore did not arise in respect to him. No objection is taken to that by the applicant and that was clearly correct on all the facts. 15 In respect of the applicant and Langdon, however, she said this: "The roles played by the offenders Langdon and Vlismas I find are on par. Whilst Vlismas owned the property at Blacktown and the premises at Chipping Norton were leased in his name, the offender Langdon had a plantation of his own under cultivation at his residence in Carlingford." 16 Her Honour then immediately went on to deal with the sentences which she considered ought to be imposed, stating that sentences of imprisonment were required to satisfy general and specific deterrence. She said that she had had regard to the principles of totality and looked at questions of partial accumulation. She then separately sentenced Mr Langdon, Mr Vlismas and Mr Walsh. 17 In my opinion there was error in the way that her Honour dealt with the offending of the applicant as compared to that of Langdon. It is also likely that her Honour erred in the way that she dealt with the offender Langdon in not giving an additional sentence reflected in the way her Honour accumulated sentences, so as to take account of the Carlingford offence. 18 What her Honour should have done was to have compared the roles of the applicant and Langdon in respect of those offences, which formed part of the joint criminal enterprise, which were the four offences with which the applicant was charged. She should then have dealt separately with the Carlingford offence in respect of Langdon. 19 Had she done so it is undoubted that the role played by the applicant in relation to the four offences with which he was charged was greater than the role played by Mr Langdon. He, after all, owned the premises at Blacktown and had leased the premises at Chipping Norton, it would seem for the specific purpose of engaging in a criminal enterprise. That, in my opinion, would require his objective criminality to be viewed in a more serious light than that of Mr Langdon in respect of the four joint criminal enterprise offences. That is not to say that Mr Langdon's role was not extremely serious in respect of those offences. However, the point is that in determining the sentences to be imposed, she was required to have regard to questions of parity and then was required to make the comparison to which I have referred. 20 It is difficult to know whether, if her Honour had approached the matter in that way, the end result would have been different, given the additional offence by Langdon. However, for myself, I would not interfere with the ultimate result of her Honour's sentencing process in relation to the applicant, for the reason that I consider that his role was more serious, as observed above. 21 The applicant contends additionally that the sentences imposed upon him were manifestly excessive. It was submitted on his behalf that the objective level of the applicant's criminality was erroneously inflated because the sentencing judge took into account the Carlingford crop when sentencing him, which was manifestly unfair to the applicant. 22 I have already indicated the manner in which I consider her Honour erred in relation to her comments about the respective roles of the parties. I do not think, however, that it meant or resulted in the objective level of the applicant's criminality being erroneously inflated. 23 The applicant also complains that when sentencing Langdon her Honour merely gave lip service to the fact that there was to be taken into account in respect of the Carlingford offence another offence pursuant to the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Again, for the reasons that I have given in relation to what I consider to be the objective criminality of the applicant, as compared to that of Mr Langdon in respect of the four offences with which the applicant was charged, I do not think that this particular complaint has been made out either. 24 The applicant's counsel has referred the Court to a number of cases in respect of which it is said that the manifest excessiveness of the sentences imposed upon the applicant is apparent when a comparison is made with sentences imposed in those cases. 25 There is a danger in using isolated cases to make those types of comparisons. Indeed, the danger is perhaps obvious in one of the cases to which reference was made, that is, R v Mangano (2006) NSWCCA 35. It is not necessary to go into that case in detail, but what is obvious is that one of the reasons for what would appear to be a significantly lower sentence finally imposed in Mangano was that there, there was a 50 per cent discount for a guilty plea and assistance. 26 In my opinion these offences were serious. They were clearly part of an ongoing operation. The quantity involved, particularly in relation to the Blacktown premises, was in respect of 1,008 cannabis plants, which is slightly above the maximum for that charge. In my opinion the sentences are not manifestly excessive, but rather, are an appropriate penalty, given the seriousness of the offences involved. 27 Accordingly, I would reject the second ground which is advanced on behalf of the applicant. It follows in my opinion that whilst I would grant leave to appeal, I would propose that the appeal be dismissed. 28 HULME J: I agree with the orders proposed by the presiding judge. I also agree substantially with her Honour's reasons. 29 HISLOP J: I agree with Beazley JA. 30 BEAZLEY JA: The order of the Court is, leave to appeal is granted, but the appeal is dismissed. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.