Alexander Miller v The Queen
[2019] VSCA 108
•17 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0034
| ALEXANDER MILLER | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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| JUDGE: | WHELAN JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 17 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 108 |
| JUDGMENT APPEALED FROM: | DPP v Miller [2018] VCC 1426 (Judge Smallwood) |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Trafficking in a commercial quantity of a drug of dependence – Knowingly dealing with the proceeds of crime – Applicant sentenced to 6 years’ imprisonment with non-parole period of 4 years – Co-offender sentenced to 7 years 6 months’ imprisonment on charge of trafficking in a commercial quantity of a drug of dependence – Parity – Whether judge erred in application of parity principle – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| Determined on the papers. |
WHELAN JA:
On 29 August 2018 the applicant, Alexander Miller, pleaded guilty in the County Court to a charge of trafficking in a commercial quantity of a drug of dependence (methylamphetamine), a charge of knowingly dealing with the proceeds of crime, and a summary offence of dealing with property suspected of being the proceeds of crime. A plea hearing was held on that day.
On 30 August 2018 the applicant was sentenced to a term of imprisonment of six years on the offence of trafficking, three months’ imprisonment on the offence of knowingly dealing with the proceeds of crime, and he was fined on the summary offence.[1] The maximum penalty for the offence of trafficking was 25 years’ imprisonment. The maximum penalty for the offence of knowingly dealing with the proceeds of crime was 15 years’ imprisonment. The sentence on the trafficking offence was the base sentence. No order was made for cumulation. Thus, the total effective term of imprisonment imposed was six years. The sentencing judge fixed a non-parole period of four years.
[1][2018] VCC 1426 (‘Reasons’).
On the same day the same judge in the County Court sentenced one of the applicant’s co-offenders, Jasmine Bourne. Like the applicant, Bourne had pleaded guilty to an offence of trafficking in a commercial quantity of a drug of dependence (methylamphetamine). For that offence she was sentenced to a term of imprisonment of seven years six months. Ms Bourne also pleaded guilty to, and was sentenced on, a number of other charges on the indictment and a number of related summary offences. On those further offences she was sentenced to periods of imprisonment ranging between one month and twelve months, and she was fined. Orders for cumulation resulted in a total effective term of imprisonment of eight years. The judge fixed a non-parole period of five years three months.
The applicant now seeks leave to appeal his individual sentences and the total effective sentence on the basis that the sentences imposed did ‘not satisfy the principle of parity in relation to the co-accused and principal offender Jasmine Bourne and as a result the applicant has a justifiable sense of grievance’.
The applicant’s criminal history and personal circumstances
The applicant was born in December 1992. He grew up in Wangaratta. He left school in Year 8 and successfully completed an apprenticeship in his father’s business. The plea material relied upon on his behalf revealed that he comes from a supportive family, and that there was nothing remarkable about his childhood. References from family members tendered on the plea suggest he took a ‘wrong turn’ in his early adulthood and has since battled drug addiction.
The applicant appeared in the Wangaratta Children’s Court on four occasions between 2008 and 2010. On 23 October 2014, when he was 21 years old, he was sentenced at the Wangaratta Magistrates’ Court to a term of three months’ imprisonment on a charge of recklessly causing injury and a number of driving related charges including failing to stop a vehicle on police request. On that occasion a custody management issue was recorded, being ‘withdrawal from drug addiction’. On 3 August 2015, when he was 22 years of age, he was given a suspended sentence of imprisonment at the Wangaratta Magistrates’ Court on a charge of affray.
Between 1 June 2013, when he was 20 years of age, and 6 May 2015, when he was 22 years of age, the applicant committed an offence of trafficking in a drug of dependence. On 11 September 2014, when he was 21 years of age, he committed an offence of handling stolen goods, the goods in question being firearms. He pleaded guilty and was sentenced for those offences in the County Court on 13 May 2016.[2]
[2][2016] VCC 613.
The judge who sentenced the applicant on 13 May 2016 described his offending in relation to the trafficking charge as ‘making arrangements for the trafficking and movement, trading, exchanging and selling of ice and other drugs’.[3] The judge referred to the applicant’s ‘willingness to use force and threats from time to time to enforce payment’.[4] The judge said ‘large sums of money’ were involved,[5] and that the applicant had been ‘part of an ongoing business in Wangaratta, which in effect flooded that area with ice’.[6]
[3]Ibid [4].
[4]Ibid [5].
[5]Ibid [6].
[6]Ibid [7].
The sentencing judge on that occasion was persuaded that the applicant was remorseful.[7] Notwithstanding his criminal history, the judge observed that in the circumstances he did not consider the applicant’s prospects of rehabilitation to be ‘anything but reasonable’.[8] The judge commented positively on steps taken by the applicant while he had been on bail to rehabilitate himself, and he referred to plea material which attested to the applicant’s improved motivation and his attempts to reintegrate into the community.[9]
[7]Ibid [8].
[8]Ibid [9].
[9]Ibid [15]–[17].
For those 2013-2015 offences the judge imposed a combination of a prison term and a community correction order. The prison term imposed was equal to the pre-sentence detention of 403 days. The community correction order was for a period of 12 months with conditions requiring community work and drug treatment. When imposing the community correction order the judge said:
Mr Miller, I want to make you understand, without any confusion or misunderstanding, this order is really the only opportunity that you are going to get from this point on, because with a serious charge like trafficking, if you return to the Court, having committed further offences, a sentencing court really will have no choice in relation to any further matter … .[10]
[10]Ibid [40].
As is now apparent, the sentencing judge’s positive assessment of the applicant’s prospects, although soundly based on the material then before him, proved to be misplaced.
Circumstances of the relevant offending
The offence of trafficking in a quantity not less than a commercial quantity, which is now the subject of this application, was committed between 31 August 2016 and 16 November 2016. Thus, the applicant began offending three months and eighteen days after the community correction order was imposed on 13 May 2016. The nature of the offending was strikingly similar to that for which he had been sentenced on 13 May 2016.
The prosecution opening on the plea described the applicant’s offending in the following terms:
Miller is not alleged to be the instigator or main offender in operation Kursk, which the prosecution alleges to be Jasmine Bourne.
He has assisted her with trafficking, couriering, enforcement and debt collection, and has been Bourne’s closest confidante.
Miller has presented as Bourne’s most significant Wangaratta customer, with purchases through Bourne of usually between one and three ounces at a time.
The prosecution opening on the plea also set out relevant contents of a number of telephone intercepts between the applicant, Bourne and other associated drug traffickers. They discuss the movement and collection of drugs and of money. The sums of money involved are significant as are the amounts of methylamphetamine trafficked. In those intercepts the applicant makes numerous references to his use of violence or threatened violence in order to enforce drug debts. It is clear from the intercepts that the applicant is a drug user himself.
Commencing on 16 September 2016 both the applicant and Bourne expressed concerns that they were under police surveillance. On 17 September 2016 associates involved in the drug trafficking were arrested, and on 9 October 2016 there were further arrests, which the applicant and Bourne discussed. Notwithstanding their apprehension of police surveillance and the arrests, the applicant and Bourne continued their drug trafficking. The applicant himself was intercepted on one occasion by police in October 2016, as a result of which he was forced to discard a package of drugs from his vehicle. The applicant was eventually arrested on 16 November 2016.
Sentencing reasons in relation to the applicant and co-offender Bourne
In his sentencing reasons the judge referred at the outset to the applicant’s age (25) and to his plea of guilty.[11] He summarised the nature of the offending, highlighting the similarity between the offending which was before him and the offending in relation to which the applicant had been sentenced in May 2016.[12] The judge referred to relevant aspects of the Crown opening.[13] He set out the applicant’s personal circumstances, and the references and other material which had been relied upon on behalf of the applicant on the plea.[14]
[11]Reasons [2].
[12]Ibid [7].
[13]Ibid [9]–[10].
[14]Ibid [13]–[14].
The sentencing judge had heard a plea on behalf of Jasmine Bourne on 28 August 2018, the day before the applicant’s plea. Both the applicant and Bourne were sentenced on 30 August 2018.
In relation to the comparative nature of the applicant and Bourne’s offending, when sentencing the applicant, the sentencing judge said:
I accept in these circumstances that your role in all this is less than hers and in some respect, significantly less, over a much shorter period of time. And as I understand it, again, not holding anyone to precise figures, the amount of ice that you were said to have trafficked in some 1600 grams which is … significantly less than that of Bourne.[15]
[15]Ibid [8].
When sentencing Bourne the sentencing judge also referred to her age (28) and to her guilty plea.[16] Like the applicant, Bourne had also been on a community correction order at the time of her offending. The sentencing remarks indicate that she had been placed on that order on a charge of trafficking in August 2015, and that she had breached that order and it had been varied as a consequence in October 2016.[17] Thus, Bourne had offended whilst on a community correction order and had continued offending after she had breached that order and had its conditions varied. The sentencing judge referred to the fact that the relevant ‘organisation’ was hers, that her period of offending was eight months, and that her trafficking involved a quantity of methylamphetamine of approximately three kilograms and cash in excess of $800,000.[18] The judge made oblique references to abuse which she had suffered in childhood and to a condition of anxiety and post-traumatic stress disorder.[19] He expressly referred to the position of co-offenders, and the applicant in particular.[20]
[16]DPP v Bourne [2018] VCC 1429 [2].
[17]Ibid [3]–[4].
[18]Ibid [5].
[19]Ibid [12]–[13] and [18].
[20]Ibid [16].
Submissions
The sole proposed ground of appeal concerns parity between the sentence imposed on the applicant for the trafficking offence, six years’ imprisonment, and that imposed upon Bourne, seven years six months’ imprisonment. The applicant submits that there are significant differences between the role of Bourne and that of the applicant which mean that there should have been greater differentiation in the respective sentences. The relevant differences are submitted to be:
(a)Bourne was the principal offender and owned and controlled the syndicate.
(b)The applicant was acting on the instructions and directions of Bourne.
(c)Bourne was involved in trafficking for a period of around eight months.
(d)The applicant was involved in the trafficking for a period of two and a half months.
(e)The value of the drugs trafficked by Bourne was said to be in excess of $800,000.
(f)The value of the drugs trafficked by the applicant is unclear but is of a significantly lesser amount.
The applicant accepts that he had ‘more serious and relevant prior convictions than Bourne’. The applicant points out, however, that Bourne also offended whilst on a community correction order.
The applicant also relies upon the matters raised in mitigation on his behalf. He has a supportive family. He is the father of a young child. He has expressed significant and genuine remorse. He pleaded guilty at an early stage. He has been a model prisoner.
The applicant submits he has a justifiable sense of grievance given the ‘significantly different level of criminality and culpability’ between the applicant and Bourne.
The respondent submits that the sentences imposed were within the sound exercise of discretionary judgment.
Applicable principles
The principles applicable in relation to parity are well settled. The parity principle requires that like cases should be treated alike and that if there are relevant differences, due allowance should be made for them.[21] No justifiable grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between offenders in the way in which he or she did.[22]
[21]Postiglione v The Queen (1997) 189 CLR 295, 301.
[22]McCloskey-Sharp v The Queen [2015] VSCA 87, [17].
Analysis
In my opinion the applicant’s proposed ground of appeal is not reasonably arguable and leave to appeal should be refused.
The sentence imposed upon Bourne, seven years six months’ imprisonment, was 25 percent higher than that imposed upon the applicant, six years’ imprisonment, on the relevant offence. It cannot be said that the judge failed to make any significant differentiation.
Dealing specifically with the matters relied upon by the applicant in support of the submission that a greater differentiation was required, it seems to me that the position is as follows:
(a)Bourne’s offending was more serious than the applicant’s, as the ‘organisation’ was hers. The sentencing judge expressly recognised that fact.
(b)In my opinion it overstates the position to say that the applicant was acting on the ‘instructions and directions’ of Bourne. That is not borne out by the prosecution opening. The applicant was no mere factotum of Bourne. He was her enforcer, her confidante, and her customer.
(c)&(d)The period of Bourne’s offending was eight months, whereas the applicant offended over approximately two and a half months. The judge recognised that difference.
(e)&(f)The value of the drugs trafficked by Bourne was greater than the applicant. Again, the difference was recognised by the judge.
The applicant rightly concedes that his prior convictions were more serious than those of Bourne. It was, of course, most significant that, having spent more than a year in prison for drug trafficking, and having been given the opportunity of a community correction order, the applicant returned to the same kind of offending within a few months.
The sentencing judge imposed a more severe sentence on Bourne on the trafficking charge than that imposed upon the applicant. The sentence is 25 percent higher. This reflects the difference in the seriousness of the respective offending which the judge recognised, in circumstances where the applicant’s criminal history was worse. In my opinion, it is not arguable that it was not reasonably open to the sentencing judge to differentiate between the two offenders in that way.
Conclusion
Leave to appeal will be refused.
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