Labaro v R [2004] ACTSC 109 (12 August 2004)

Last Updated: 29 October 2004

MICHAEL LABARO v THE QUEEN [2004] ACTSC 109 (12 August 2004)

EX TEMPORE JUDGMENT

No. SCA 26 of 2003

Judge: Crispin J

Supreme Court of the ACT

Date: 12 August 2004

IN THE SUPREME COURT OF THE )

) No. SCA 26 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHAEL LABARO

Appellant

AND: THE QUEEN

Respondent

ORDER

Judge: Crispin J

Date: 12 August 2004

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be allowed and the orders of the magistrate be set aside;

2. in relation to the offence of participating in the sale of heroin to another person, he be sentenced to a term of 18 months' imprisonment but that, in lieu of the non-parole period imposed by the learned magistrate, that sentence be immediately suspended upon the condition that he enter into a recognizance himself in the sum of $1,000 to be of good behaviour for a period of two years. That recognizance is subject to the following conditions: firstly, that he accept the supervision of the Director of ACT Corrective Services or his or her nominee; secondly, that he comply with all reasonable directions that he may be given by the Director or nominee, including directions as to participation in rehabilitation programs, whether involving full-time residence or not, and in programs of mentorship or counselling within the community, including drug and alcohol counselling, and programs relating to vocational or occupational development, including programs involving Year 10 studies, if so advised;

3. in relation to the offence of possessing money, to wit $1,280, reasonably suspected of having been proceeds of crime, the sentence of four months' imprisonment imposed by the magistrate is confirmed. The order that it be served concurrently with the other sentence is confirmed;

4. both sentences are to be backdated to 29 February 2004 to allow for the fact that the appellant had been in custody for 78 days prior to the sentence that was actually imposed upon him;

5. the respondent is to pay the appellant's costs of the appeal.

1. This is an appeal against the perceived severity of sentences imposed upon the appellant on 17 May 2004. The appellant had pleaded guilty to two charges, one alleging that on 8 April 2003 he possessed the sum of $1,280 reasonably suspected of having been the proceeds of crime. That offence carried a maximum penalty of 100 penalty units and/or imprisonment for a period of 12 months. The second offence alleging that between 25 March 2003 and 8 April of that year he participated in the sale of a prohibited substance, to wit, heroin to another person. That offence carried a maximum penalty of a $10,000 fine and/or imprisonment for a period of 5 years.

2. The offences occurred in a rather tragic incident on 8 April 2003 when a young woman bought some heroin from a co-accused, Mr D'Ambrosio, in the presence of the appellant and she proceeded to inject herself with it in the presence of the appellant. She was driven away by a third party and subsequently died. It was not suggested that the appellant had been aware of her death until informed by police, or indeed, that he had been aware that she had been in a state of extremis, although he did tell the police that he had been aware that she was extremely affected by the heroin.

3. As the learned magistrate observed, there is no doubt that dealing in heroin is a most serious offence and one in relation to which the community rightly expects that condign punishment is likely to be imposed. Like most offences, however, there is a range of gravity ranging from transactions entered into by very small time dealers who are essentially trying to support their own habits to, at the other end of the scale, large scale commercial transactions entered into by wealthy people in the hope of making extremely large profits.

4. In R v Crocker (1992) 58 A Crim R 359 at 360 Higgins J (as he then was) said:

It is well established that the seriousness of these offences is to be judged by reference to the quantity possessed, the purpose of that possession, the position of the offender in the drug distribution chain, the reason for any distribution, whether that distribution was to young persons or to persons inexperienced in drug use or otherwise and the harmful nature or attributes of the drug in question.

5. With respect, I agree with those observations which were quite properly cited by the learned magistrate.

6. The magistrate had the benefit of pre-sentence reports prepared in May 2003 and January 2004 and also the benefit of a psychological report by a Mr Nomchong. It should be observed that the appellant was born on 11 November 1983 and at the time of the offence was still only 19 years of age. Mr Nomchong said:

I do not think Mr Labaro is intellectually handicapped, but I suspect that his intelligence is below the average. It would be reasonable to assume, given his medical history, that he may have suffered intellectual damage as a result of his natural mother's attempt to abort him. Unfortunately, his history of heroin abuse would only have augmented the situation.

I also believe that Mr Labaro may suffer Dependent Personality Disorder (DSM4-F60.7). This condition engenders a pattern of dependence on others. The sufferer relies heavily upon others for support, everyday decisions, do not often disagree with others for fear of being abandoned, and can go to great lengths to create situations where others have to look after them or care for them. Mr Labaro's handing in of his accommodation, and then living with various friends for several months is an example of this.

In his history it is apparent that Mr Labaro has been under the influence of many people over his life. He got into the drug scene early and has persisted with it because of his addiction and the psychological needs of his condition, that is he needed to be with people who would take care of him, control him and tell him what to do.

Mr Labaro's statement to me that he wants to reform is very encouraging. It is clear that he is disappointed in the lack of loyalty from his friends and was surprised at how quickly they abandoned him once he had been apprehended by police. It has obviously been a shock to him, and this may be the turning point that he needs to change his life.

Mr Labaro's Dependent Personality Disorder would benefit from treatment and such treatment would make him less susceptible to returning to drugs. In this regard he would also need vocational guidance and a lot of support to make the necessary changes and adjustments to becoming a productive member of society.

7. The earlier of the two pre-sentence reports stated, inter alia:

Given the indications of possible developmental delay, a concern that he may have some difficulty completing a conventional residential rehabilitation seems realistic, and finding a suitable placement may prove difficult. A CADAS assessment conducted on 22 April 2003 recommended referral to ACT Community Care Alcohol and Drug Program for case-management, including counselling, education and possible residential rehabilitation. Assessment by the DODA panel for suitability for a DODA Treatment Order may also be appropriate. If the [sic] Mr Labaro is released into the community it is recommended that the Court direct him to attend CADAS to arrange another referral. It may also be helpful to refer him to the Mental Health Forensic Service in order to obtain a fuller picture of the offender's level of functioning to ensure that treatment and referrals are appropriate.

8. The more recent pre-sentence report referred to the appellant's history of developmental difficulties, noted that birth and perinatal issues arise frequently in criminological literature, and added that there are other classic environmental risk factors that the offender appears to possess which might be suitable for interventions. Amongst these were drug use, lack of a suitable male role model, delinquent peer association and poor attachment to conventional values, activities or beliefs. The author of the report commented that over time these factors appear to have imbued him with an "emotional skill" set below his peer group. The author said:

It also seems that when the offender was introduced to the discipline, responsibility and routine that accompanied having a `father-figure', he appears to have responded with adjustment issues. He is otherwise closely attached to and dependent on his mother. These issues are likely to be best addressed through a therapeutic relationship of some kind and are likely proximate criminogenic factors that are both contributing to and maintaining his risk.

9. It should be noted that in January 2004 the appellant breached his bail by not attending for supervision and continuing to use illicit substances, and as a consequence bail was revoked. By the time he appeared before the learned magistrate he had spent some 78 days in full-time custody.

10. He had no previous convictions for drug offences, though he did have some offences for minor theft and for possession of stolen property, and had been released on a recognizance to be of good behaviour for a period of two years on 30 June 2003. The offences with which the present appeal is concerned, of course, pre-dated that sentence. Indeed, it appears by the time he committed these offences he had a conviction only for one count of shoplifting, though I note that the offence of possession of stolen property for which he was released on a recognizance in June 2003 had been committed in August of the previous year.

11. The learned magistrate ordered that on the charge of participating in the sale of heroin he be convicted and sentenced to a period of 18 months' imprisonment with a non-parole period of 18 months, that period to date from the date the sentence was imposed, notwithstanding the fact that he had then been in prison for more than 11 weeks in relation to the pending charges. Her Worship imposed a concurrent sentence of four months' imprisonment in relation to the other offence.

12. Standing alone, I would not have thought that these offences were excessive. On the contrary, I completely agree with her Worship's observations about the gravity of the offence of selling heroin and the fact that heroin has become a scourge upon contemporary societies. However, Mr Doig who appears on the appellant's behalf has pointed out that this sentence is in marked contrast to the sentences which her Worship imposed on the three co-offenders.

13. Mr Kasani, who pleaded guilty to similar offences was 18 years old at the time of the commission of the offences and he received a sentence of 18 months' imprisonment which was wholly suspended. It should be noted that Mr Kasani was more than a year younger than the appellant, that his previous record consisted of nothing more serious than attempting to enter a bar room using another person's identity and that he had committed that offence as a juvenile.

14. Mr Klemperer, who also pleaded guilty, received effective sentences of eight months' imprisonment which were again wholly suspended. Mr Klemperer at the time of the offences was 21 years and 6 months old, and was therefore more than two years older than the appellant. He had previous convictions for minor theft and a conviction for burglary as a juvenile. He had, however, indicated a willingness to give some assistance to the authorities and that was a factor which her Worship no doubt properly took into account.

15. Mr D'Ambrosio was almost 24 years old at the time of the offence, some 4½ years older than the appellant. He had a previous conviction for attempted burglary as a juvenile, and he received a sentence of 18 months which was suspended after six months, with that six month period to be served by periodic detention.

16. During the course of his submissions, Mr Doig compared the position of the appellant with that of Mr D'Ambrosio, who, according to the police statement of facts, the appellant had nominated as the leader of the group involved in the sale of heroin and the person who actually sold heroin to the woman who later died. Mr Doig argued that in the light of this comparison the appellant was entitled to feel a legitimate sense of grievance at having been treated more harshly. Firstly, he was not directly involved in the sale; secondly, he was much younger; thirdly, he was not the leader of the enterprise; and fourthly, the psychological evidence in the case reveals that he was inclined to be a follower rather than a leader and a person who was likely to have been very dependent upon others who were inclined to take the lead.

17. There is nothing in the record of the appellant, to which I have referred, that would adequately explain the disparity in sentencing and his sense of grievance would no doubt have been aggravated by the fact that, unlike the others who had remained substantially on bail, the appellant had previously spent some 78 days in custody which the Crimes Act required to be taken into account when he was sentenced

18. Accordingly, if I were to dismiss the appeal, the end result would be that two of the four participants would spend no time in prison, the person identified as the participant in the sale and the ringleader of the group would be effectively let off with six months' periodic detention, and this intellectually damaged person with a dependent personality disorder, influenced by the others, and younger than Mr D'Ambrosio would be required to serve at least 11 months in full-time custody. On a comparative basis, at least, Mr Doig maintains that this would plainly be unfair.

19. The court is always faced with a dilemma when confronted by situations of this kind, especially when of the view that the sentences imposed upon co-accused have been, if anything, excessively lenient. Nonetheless, the authorities make it clear that even if such an approach results in a sentence that is less than that which a judge might have thought appropriate, disparity of sentencing may warrant a reduction to ensure that one offender singled out and treated differently from the others is placed in a position of substantial parity with them.

20. It seems to me that, notwithstanding the gravity of these offences, this is such a case. The position would of course be entirely different had there been evidence that this offender had been guilty of any offence directly relating to the tragic death of this young woman. It might also have been different had there been evidence that he had been the ringleader of the group, or that he had played a dominant part in the offence. However, the evidence appears to be that the ringleader of the group was Mr D'Ambrosio and that it was he who sold the heroin. There is certainly no evidence to suggest that the appellant was the leader of the group or the prime mover in the commission of these offences and, having regard to the evidence of his dependent personality, that seems most unlikely.

21. It is now clear that even if I allow the appeal today and order his immediate release he will still have been treated more harshly than any of the other three.

22. In the circumstances, I think it is appropriate to allow the appeal and to take a course which will provide for the appellant's immediate release, but at the same time ensure that he remains under supervision and that the Parole and Probation Service have adequate authority to ensure that he participates in courses of rehabilitation, and that something is done to address the problems to which I have already referred.

23. The order I make is that the appeal be allowed and the orders of the magistrate be set aside. Instead, I order that in relation to the offence of participating in the sale of heroin to another person, he be sentenced to a term of 18 months' imprisonment but that, in lieu of the non-parole period imposed by the learned magistrate, I order that that sentence be immediately suspended upon the condition that he enter into a recognizance himself in the sum of $1,000 to be of good behaviour for a period of two years. That recognizance is subject to the following conditions: firstly, that he accept the supervision of the Director of ACT Corrective Services or his or her nominee; secondly, that he comply with all reasonable directions that he may be given by the Director or nominee, including directions as to participation in rehabilitation programs, whether involving full-time residence or not, and in programs of mentorship or counselling within the community, including drug and alcohol counselling, and programs relating to vocational or occupational development, including programs entailing Year 10 studies, if so advised.

24. In relation to the other offence, I confirm the sentence of four months' imprisonment imposed by the magistrate. I confirm the order that it be served concurrently with the other sentence, but backdate both sentences to 29 February 2004 to allow for the fact that the appellant had been in custody for 78 days prior to the sentence that was actually imposed upon him.

25. If there is any quibble about my arithmetic, gentlemen, you can apply under the slip rule, but it follows that that sentence has now expired.

26. I order that the respondent pay the appellant's costs of the appeal.

[Further discussion ensued and the orders were varied to make it clear that the longer sentence was to be suspended with effect from noon on 12 August 2004 and that the recognizance could be taken before a justice of the peace or an officer of the NSW Department of Corrective Services.]

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 25 October 2004

Counsel for the appellant: Mr A Doig

Solicitor for the appellant: Darryl Perkins Solicitor

Counsel for the respondent: Mr J Lawton

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 12 August 2004

Date of judgment: 12 August 2004