Abdullayev v The King
[2022] VSCA 225
•19 October 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0117 |
| RUSLAN ABDULLAYEV | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | KYROU JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 19 October 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 225 |
| JUDGMENT APPEALED FROM: | [2022] VCC 735 (Judge Dalziel) |
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CRIMINAL LAW – Appeal – Sentence – One charge of attempted trafficking in drug of dependence and 2 charges of possession of drug of dependence – Total effective sentence 3 years, non-parole period 2 years – Whether judge erred in making factual finding – Whether sentence manifestly excessive – Application for extension of time to file notice of application for leave to appeal – Extension of time granted – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr J O’Connor | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | Milides Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KYROU JA:
Introduction and summary
On 10 February 2022, the applicant pleaded guilty to the charges set out in the table below and, on 13 May 2022, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Abdullayev [2022] VCC 735 (‘Sentencing remarks’).
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Attempted trafficking in a drug of dependence [s 71AC(1) Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’)] 15 years 3 years Base 2 Possession of a drug of dependence [s 73(1) DPCSA] 1 year 7 days — 3 Possession of a drug of dependence 1 year 7 days — Total Effective Sentence: 3 years Non-Parole Period: 2 years Section 6AAA Statement: 4 years, 6 months; Non-Parole Period 3 years
The applicant now seeks leave to appeal on the following grounds:[2]
1The learned sentencing judge erred in finding that by the time the Applicant had placed the boxes in his van, he ‘must have been aware that there was a significant quantity of drug involved’.
2The sentence imposed on charge 1 and the non-parole period are manifestly excessive.
[2]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
As the notice of application for leave to appeal was filed outside the 28 day time limit prescribed by s 279(1) of the Criminal Procedure Act 2009 (‘CPA’), the applicant also seeks an extension of time under s 313(1) of the CPA.
The delay in the present case was not excessive. Accordingly, I will grant the application for an extension of time. However, for the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending, arrest and bail
In 2018 and 2019, police conducted an investigation into the importation of border‑controlled substances and trafficking in drugs of dependence. The individuals whose activities were ultimately the subject of the investigation included the applicant, Richard De Luca, Mathew Gray and Domenic Luzza. As part of the investigation, various individuals were the subject of lawful intercepts. Through these intercepts, the police became aware that Luzza was tracking a consignment on the Direct Freight Express website.
This consignment had been ordered from a business in Altona and was addressed to a Peter Davies at an address in Pascoe Vale. It was established that the latter address was of a defunct business and that no person named Peter Davies was linked to the consignment.
On 12 August 2019, police executed a search warrant at the Direct Freight Express warehouse where the consignment was being held. They found that the consignment consisted of eight 25 litre plastic drums containing a clear liquid substance, with the drums each packaged in a cardboard box. The substance was 1,4-Butanediol, which is a drug of dependence listed in the DPCSA. It is a solvent which, when consumed, is metabolised by the body to become GHB. The weight of the 1,4-Butanediol in the drums was 200.2 kilograms. At the time of the offending, a commercial quantity of 1,4‑Butanediol was 2 kilograms and a large commercial quantity was 20 kilograms. The police substituted the substance in the drums with water and repackaged the drums in their original boxes, and then arranged a controlled delivery of the drums.
On 13 August 2019, Gray went to the delivery address. A police covert operative, acting as the driver of a delivery truck, called the number on the consignment and spoke with someone who identified himself as Peter Davies and who said that he was at the delivery address. One minute later, the applicant contacted De Luca by telephone. Seconds later, De Luca tried to call Gray and, when that call was not answered, he immediately called again. Gray answered the telephone and had a short conversation with De Luca. Mobile phone towers placed the applicant and Gray in the Pascoe Vale area and De Luca in the Prahran area. A short time later, Gray left the delivery address, approached the delivery truck and asked if the driver was there to deliver to the address. He told the driver that the driver would have to help him carry the items inside. Gray assisted the driver to unload the eight boxes.
The prosecution case was that the applicant answered the call from the delivery person using the pseudonym ‘Peter Davies’ and that he then called De Luca who in turn called Gray so that Gray would meet the delivery driver.
Police maintained surveillance on the delivery address.
In the minutes after the boxes had been delivered, Gray called De Luca, who in turn called the applicant. Two minutes later, the applicant pulled up outside the delivery address in a van and called Gray using the consignment phone number to tell Gray he was there. A short time later, the applicant reversed the van into the delivery address, and he and Gray loaded the boxes into the van. As the applicant drove away with the boxes, he called De Luca’s number three times. De Luca’s phone was registering at phone towers in Prahran and Richmond.
At 3:05 pm, around an hour after the consignment had been delivered, the applicant pulled up outside De Luca’s home in Kew East. At that time, De Luca was using a stolen black Volkswagen Golf vehicle. Around 10 minutes later, De Luca came outside and approached the applicant’s van. De Luca put an item in the Volkswagen, returned inside his house and came out again carrying a white box. He showed the white box to the applicant and then put it in the Volkswagen. He then entered the van with the applicant. A few minutes later, De Luca left the van and got in the Volkswagen.
At 3:55 pm, Gray contacted De Luca by phone. Following that call, De Luca and the applicant drove in their respective vehicles to the applicant’s home in Reservoir. The applicant parked his van in the driveway and De Luca parked in the street. They both went to the side and rear doors of the van, before entering the applicant’s home. De Luca then drove away, but returned five minutes later. The applicant called De Luca’s mobile phone. Around 10 minutes later, De Luca and the applicant each took a box from the van inside the house. The prosecution case was that, when De Luca and the applicant were inside the house, they discovered that the drums in the two boxes contained water. They placed the two boxes with the two drums back in the van, got into their respective vehicles and drove to another street in Reservoir, where the applicant entered De Luca’s car.
The police arrested De Luca and the applicant. Upon being searched, the applicant was found to be in possession of a receipt for the consignment from Direct Freight Express.
The events described at [8] to [14] above constitute charge 1 (attempted trafficking in a drug of dependence).
The mobile phone which had been used for the consignment phone number — an OPPO phone — was found by the police in the Volkswagen. Later that evening, the applicant’s home was searched. Police found 0.5 grams of cocaine (charge 2). They also found 25.4 grams of stanolozol and 5.7 grams of testosterone (charge 3). Police also searched the van and found a Blackberry phone and the eight drums containing the water which had replaced the 1,4‑Butanediol.
Information stored on the applicant’s mobile phone showed that, on 9 August 2019, he had searched Direct Freight Express on the internet and visited the delivery address in Pascoe Vale.
Following his arrest on 13 August 2019, the applicant was remanded in custody. He was released on bail on 19 March 2020 and spent more than two years in the community until he was sentenced on 13 May 2022.
The applicant’s personal circumstances
The applicant was 32 years of age at the time of the offending and 35 at the time of sentencing.
The applicant was born in Azerbaijan. His father was violent towards him, his mother and older brother. The applicant’s parents’ marriage ended when he was around 10 and, three years later, he migrated to Australia with his mother and brother.
The applicant completed VCE in 2004. He commenced but did not complete an accountancy course and later completed an apprenticeship as an electrician. He set up his own business as an electrician. His business performed well and the applicant trained two apprentices. The van that was used for the offending was his electrician’s work van. After the van was seized due to the offending, his electrician’s business suffered and he resorted to working in other roles.
The applicant started abusing amphetamine from the age of 14. He first tried methylamphetamine when he was 16. His abuse of drugs fluctuated until around the age of 25, when his drug use increased. He abused GHB and sometimes cocaine, LSD and heroin.
In January 2015, the applicant was sentenced to a total effective sentence of 16 months’ imprisonment, with a non-parole period of 5 months, for offences including possession of chemicals used in the manufacture of drugs, possession of drugs, possession of a prohibited weapon and dishonesty offences. After he was released on parole in July 2015, he remained drug free until about three weeks before the current offending, when he recommenced using methylamphetamine.
Plea hearing
A joint plea hearing was conducted for the applicant and De Luca.
The prosecutor said the following in relation to the knowledge of the applicant and De Luca regarding the nature and quantity of the contents of the eight drums:
They didn’t know the precise nature of the drug or the precise quantity. [T]hey were aware of a real and significant risk that what was contained in the consignment, or in the boxes, was a drug of dependence, but the Crown is unable to establish to the requisite standard that they knew that it was 1,4-Butanediol and likewise unable to establish to the criminal standard that they were aware of the precise quantity. If the Crown was able to do so, particularly in relation to the latter, they would be facing far more significant charges.[3]
[3]Transcript of Proceedings (10 February 2022) 15.24–16.4.
The judge asked the prosecutor whether the fact that the applicant and De Luca knew that there was a substantial amount of liquid in the drums was relevant to her assessment of the gravity of the offending. In response, the prosecutor referred to a hypothetical example of an individual attending a post office to pick up a parcel and being able to form an impression of the quantity of its contents based upon whether the parcel was placed in the individual’s hands or was a box that required carriage in a trolley. The prosecutor then said:
So here [the applicant and De Luca] were well aware that it was a significant quantity. It wasn’t a small quantity which could be just simply picked up and just walked away with but, as I say, the Crown have settled this on the basis that they did not know the precise quantity, so it’s relevant to that extent.[4]
[4]Transcript of Proceedings (10 February 2022) 16.25–16.30.
Defence counsel for the applicant accepted that the weight of the consignment was a relevant consideration in assessing the objective gravity of the offending. However, counsel added:
[I]t’s difficult to simply say because these men were reckless as to the nature of the substance they were dealing with, they were aware of the real and substantial risk that they were dealing with a drug of dependence, that the weight necessarily means that they must have known it was a great quantity …[5]
[5]Transcript of Proceedings (10 February 2022) 20.17–20.22.
The judge arranged for the applicant to be assessed for suitability for a community correction order (‘CCO’). The applicant reported to the assessor that he had been diagnosed with severe depression. However, no report from a psychologist or psychiatrist was tendered.
A report dated 16 February 2022 prepared by Forensicare’s Mental Health Advice and Response Service was also obtained. That report stated that the applicant displayed insight into the need to create a meaningful, structured routine for himself and that he appeared genuine about working towards achieving his stated life goals, including not reoffending and participating in psychological counselling.
Judge’s sentencing remarks
The judge accepted a submission by the prosecutor and defence counsel for the applicant on the plea that the offending the subject of charge 1 was a ‘mid-range’ example of the offence of attempted trafficking in a drug of dependence.
In assessing the applicant’s moral culpability, the judge took the following matters into account:
(a)The applicant was not the person who placed the order for the drug or who was to sell it.
(b)The applicant took an active role in the collection of the drug, being the holder of the phone receiving the calls on the consignment contact number, and part of the chain of contact between the delivery service and the receiver, Gray.
(c)The process of taking delivery of the drug was sophisticated. It was intended to insulate the applicant and De Luca from identification and involved the use of false names, addresses and multiple phones.
(d)The applicant’s activity on 9 August 2019 indicated that he was not involved in the collection of the drug at the last minute.
(e)Although the applicant’s use of his own van to collect the eight boxes increased his risk of detection, he and De Luca had attempted to create a chain of communication so that they were not in direct contact with the delivery person.
(f)Whilst the applicant was using the OPPO phone on 13 August 2019, the box in which it had been packaged was found at De Luca’s house, suggesting that he provided the phone to the applicant.
(g)The applicant had a limited role in the criminal enterprise and he was to be sentenced on the basis that, if he was going to receive a reward for the offending, it would be for the specific job rather than sharing in any of the proceeds of sale.
(h)Whilst the applicant’s offending occurred on one day, it had elements of sophistication, notably the efforts to protect his identity and that of De Luca from detection. The use of the applicant’s own van did not detract from this, in view of the use of Gray as an intermediary for collection of the drug.
(i)Even if the applicant did not initiate the offending but was asked to participate by De Luca or some other person, he did agree and was thus involved in ‘serious offending’.[6]
[6]Sentencing remarks, [54].
In relation to the applicant’s knowledge of the nature and quantity of the drug in the eight drums, the judge said the following:
24The prosecution do not allege that [the applicant] knew the precise nature of the drug or the precise quantity, but [he was] aware of the real and substantial risk that what [he was] dealing with was a drug of dependence and that it was to be possessed by others for sale and subsequently sold by others. By the time [he] had put the boxes in [his] van [he] must have been aware that there was a significant quantity of drug involved.
25[The applicant is] charged with trafficking simpliciter, but it is relevant in assessing the gravity of the offending that the amount of drugs [he was] attempting to collect was 100 times [the] commercial quantity threshold and 10 times the large commercial quantity threshold.
…
53… Relevant here is the very significant amount of drug, although [the applicant is] not to be sentenced on the basis that [he] knew the precise nature of the drug or quantity.[7]
[7]Sentencing remarks, [24]–[25], [53].
In relation to the applicant’s prospects of rehabilitation, the judge stated that she was reluctant to use a label such as ‘guarded’ or ‘fair’. However, she accepted that the applicant had ‘the capacity to remain free of drugs and out of trouble, but that [he needs] to make better choices in future’.[8] She added that specific deterrence was also a real factor in the sentencing mix.
[8]Sentencing remarks, [46].
The judge described the applicant’s plea of guilty as ‘[a] powerful factor in mitigation’.[9] She stated that the utilitarian value of the plea was significant, particularly in the context of the COVID-19 pandemic.
[9]Sentencing remarks, [47].
The judge referred to this Court’s observation in Director of Public Prosecutions (Cth) v Maxwell[10] that the fact that the drug dealt with by an offender has a low value compared to other drugs may be relevant to sentencing considerations such as the gravity of the offending and general and specific deterrence because of the lower profits to be made from the sale of a low value drug.[11] However, the judge added that people must be deterred from taking any role in drug trafficking, whether as a receiver of the profits, or for lesser roles in the trade and that, whilst less weight was to be given to general deterrence in view of the nature of 1,4‑Butanediol, general deterrence still carried ‘real importance’ in sentencing the applicant.[12]
[10](2013) 228 A Crim R 218, 223 [21], 226–7 [34]–[36]; [2013] VSCA 50 (‘Maxwell’).
[11]It was common ground that 1,4-Butanediol has a lower value than some other drugs such as methylamphetamine.
[12]Sentencing remarks, [52].
The judge decided not to impose a combination sentence involving a CCO because such a sentence ‘would be inadequate to meet the sentencing purposes and principles, and in view of the gravity of the offending the subject of Charge 1’.[13] The judge added that, in sentencing the applicant, she took into account that returning him to prison ‘will be stressful for [him] and that prisons are still being affected by the pandemic’.[14]
[13]Sentencing remarks, [57].
[14]Sentencing remarks, [57].
Ground 1: Erroneous factual finding
The applicant submitted that the judge’s finding in para 24 of her sentencing remarks — which is set out at [32] above — attributed to the applicant actual awareness that the boxes contained a ‘significant quantity of drug’ from the time he put the boxes in his van. According to the applicant, such a finding was not open to the judge, as it was inconsistent with the agreed facts upon which he was sentenced. He contended that the prosecutor had accepted on the plea that the applicant had no actual awareness, at any relevant time, of the contents of the consignment — as opposed to an awareness of a ‘real and significant risk’ that what he was dealing with was a drug of dependence — or the quantity of any drug contained within the consignment.
In my opinion, ground 1 is not reasonably arguable.
The prosecutor’s submission on the plea was, in substance, to the following effect:
(a)whilst the applicant was not aware of the precise contents of the drums, he was aware that there was a real and significant risk that the drums contained a drug of dependence; and
(b)whilst the applicant was not aware of the precise quantity of the substance in the drums, based upon the size and weight of the drums, he was well aware that it was a significant quantity.
In my opinion, the prosecutor’s submission was clearly correct. It was also well open to the judge to conclude from all the circumstances that, having physically handled the boxes and obtained an appreciation of their size and weight, the applicant must have known that the quantity of the substance in the eight drums was significant. Importantly, notwithstanding this finding, para 53 of the judge’s sentencing remarks — which is set out at [32] above — makes it clear that she did not sentence the applicant upon the basis that he knew the precise nature of the drug or its quantity. The judge was also aware that the applicant was charged with attempted trafficking simpliciter and was to be sentenced upon that basis, rather than for the more serious offences of attempted trafficking in a commercial or large commercial quantity of 1,4-Butanediol.
Even if ground 1 had been reasonably arguable, I would not have granted leave to appeal on that ground because, for the reasons set out under ground 2 below, I am firmly of the opinion that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the judge.[15]
[15]CPA, s 280(1)(a).
Ground 2: Manifest excess
The applicant submitted that he was to be sentenced on the narrow basis that: he did not know the precise nature of the drug or its quantity, although he was aware of the real and substantial risk that what he was dealing with was a drug of dependence which was to be possessed by others for sale and sold by them; he was neither the buyer nor the seller of the drug; and he had merely acted as a ‘courier’ in the progress of the contents of the eight drums towards the ultimate consumer, while in contact with others involved in that task. He contended that, in these circumstances, the actual weight of the drug could not have been a significant factor in the sentencing exercise.
According to the applicant, the considerations referred to at [42] above and the following additional considerations meant that the sentence imposed on him for charge 1 was manifestly excessive:
(a)He had committed no further offences while on bail and ‘remained clean’.
(b)The judge found that he had the capacity to remain free of drugs and out of trouble, provided he made better choices in the future.
(c)The judge accepted that the nature of the drug involved in charge 1 and the applicant’s ‘limited role’ had to be taken into account in assessing the gravity of the offending.
(d)He had remained drug free until weeks before the current offending after his release on parole in July 2015.
(e)His plea of guilty, in the context of the pandemic, was a powerful factor in mitigation with significant utilitarian value.
(f)The offending the subject of charge 1 was confined to a single day.
The applicant referred to this Court’s review of sentences for trafficking in 1,4‑Butanediol in Ellis v The Queen and the Court’s finding that, for cases involving trafficking in a commercial quantity, ‘sentences range from 2½ years to 5 years’ imprisonment’.[16] The applicant highlighted the sentences in the following cases that were considered in Ellis: Director of Public Prosecutions v Webb:[17] 4 years and 6 months; Director of Public Prosecutions v Hassan:[18] 3 years and 6 months; Director of Public Prosecutions v Khalil:[19] 4 years; Director of Public Prosecutions v Donaldson:[20] 5 years; Director of Public Prosecutions v Bowden:[21] 2 years and 6 months; Director of Public Prosecutions v Rheinberger:[22] 4 years and 6 months; and Director of Public Prosecutions v Vo:[23] 3 years and 6 months. The applicant also referred to: Roach v The Queen:[24] 3 years and 3 months; Arici v The Queen:[25] 4 years reduced to 3 years on appeal solely due to parity; and Al-Dimachki v The Queen:[26] 4 years and 2 months. The applicant contended that, as the sentence of 3 years for trafficking in a non-commercial quantity in the present case fell within the range of sentences for trafficking in a commercial quantity, that sentence was manifestly excessive.
[16][2018] VSCA 221, [29] (‘Ellis’).
[17][2015] VCC 171.
[18][2015] VCC 1383 (‘Hassan’).
[19][2016] VCC 764.
[20][2016] VCC 1692.
[21][2016] VCC 708 (‘Bowden’).
[22][2014] VCC 1152.
[23][2018] VCC 450.
[24][2020] VSCA 205.
[25][2019] VSCA 228, [42]–[44].
[26][2021] VSCA 98.
In my opinion, ground 2 is not reasonably arguable.
Although the applicant was sentenced on the basis that he was not aware of the precise nature or weight of the drug he attempted to traffick, nevertheless the quantity of the drug was substantial and, for the reasons set out at [40] above, the judge was entitled to find that the applicant must have been aware at the time he physically handled the boxes that the quantity of the drug in the drums was significant. In these circumstances, a sentence of 3 years’ imprisonment for attempted trafficking in a significant — though non‑commercial — quantity of 1,4‑Butanediol, in the context of a maximum penalty of 15 years, cannot be regarded as wholly outside the range of sentences reasonably available. The analysis in Maxwell does not detract from this conclusion.
My conclusion at [46] above is supported by the fact that the parties’ agreed position on the plea was that the applicant’s moral culpability for the offending the subject of charge 1 was within the mid-range. That agreed position was clearly correct, having regard to the matters set out at [31] above.
I accept that the applicant was able to rely upon weighty mitigating factors including, in particular, his plea of guilty in the context of the pandemic. However, the judge’s finding concerning the applicant’s prospects of rehabilitation does not instil much confidence that the applicant will not reoffend. This is reinforced by her observation that specific deterrence was a real factor in the sentencing mix. When these matters are considered in the context of the applicant’s prior criminal history, the need for general deterrence and the absence of other mitigating factors such as the principles in R v Verdins[27] and a favourable finding of remorse, the sentence of 3 years’ imprisonment for charge 1 cannot sensibly be described as manifestly excessive.
[27](2007) 16 VR 269.
I have considered all of the cases referred to at [44] above. Those cases do not detract from my conclusion that the sentence of 3 years’ imprisonment for charge 1 in the present case was not wholly outside the range of sentences available to the judge. It is not necessary for me to analyse each of the cases. It suffices for me to make three observations. First, in all of the cases that this Court reviewed in Ellis, other than Bowden, the offender was sentenced to more than 3 years’ imprisonment. Secondly, in Bowden, the quantity of 1,4‑Butanediol that was trafficked (18.5 kilograms) was significantly less than the quantity in the present case. Thirdly, none of the cases can be regarded as truly comparable to the present case. Each case turned upon its own circumstances of offending (including the quantity of the drug involved) and the offender’s personal circumstances. For example, in Hassan, which involved 14.8 kilograms of 1,4‑Butanediol, the offender had a limited criminal history, with no relevant priors, had made significant admissions to the police and had ‘good, perhaps very good’ prospects of rehabilitation.[28]
[28]Hassan [2015] VCC 1383, [27].
The non-parole period fixed by the judge was 67 per cent of the total effective sentence. In my opinion, it is not reasonably arguable that it is manifestly excessive.
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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