Arici v The Queen

[2019] VSCA 228

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0250

AKIN ARICI	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2019
DATE OF JUDGMENT:	15 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 228
JUDGMENT APPEALED FROM:	DPP v Arici [2018] VCC 1744 (Judge Condon)

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CRIMINAL LAW – Appeal – Sentence – Trafficking not less than commercial quantity of a drug of dependence – Quantity of 74.5 kilograms of 1,4-Butanediol – Pleas of guilty – Total effective sentence of 6 years’ imprisonment with non-parole period of 4 years imposed on appellant – Total effective sentence of 4 years and 9 months’ imprisonment with non-parole period of 3 years imposed on co-offender – Characterisation of appellant as a ‘sitter’ and co‑accused as a ‘courier’ – Parity raised as issue at plea –Unclear statement by sentencing judge that ‘measure of parity’ required between appellant and co-offender – Lower moral culpability of appellant – Significant mitigating circumstances in support of appellant –Appeal allowed – Appellant resentenced to total effective sentence of 5 years’ imprisonment with non-parole period of 3 years and 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Grace QC	Melasecca Kelly & Zayler
For the Respondent	Mr C T Carr	Mr J Cain, Solicitor for Public Prosecutions

BEACH JA
WEINBERG JA:

1. On 5 July 2018, the appellant pleaded guilty in the County Court to a number of drug trafficking and drug possession offences.  He also pleaded guilty to possession of a firearm while a prohibited person, and negligently dealing with proceeds of crime.  On 25 October 2018, he was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Trafficking in not less than a commercial quantity of a drug of dependence (1,4‑Butanediol) [s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981]	25 years’ imprisonment	4 years	Base
2.	Trafficking in not less than a commercial quantity of a drug dependence (Methylamphetamine)	25 years’ imprisonment	4 years	2 years
3.	Possession of a drug of dependence (MDMA) [s 73(1)(c) of the Drugs, Poisons and Controlled Substances Act]	400 penalty units or 5 years’ imprisonment	12 months	—
4.	Possession of a drug of dependence (Cocaine)	400 penalty units or 5 years’ imprisonment	3 months	—
5.	Possession of a drug of dependence (Cannabis L)	400 penalty units or 5 years’ imprisonment	3 months	—
6.	Possessing a firearm while a prohibited person [s 5(1) of the Firearms Act 1996]	1200 penalty units or 10 years’ imprisonment	18 months	—
7.	Negligently dealing with proceeds of crime [s 194(4) of the Crimes Act 1958]	5 years’ imprisonment	6 months	—
Total Effective Sentence:		6 years’ imprisonment
Non-Parole Period:		4 years’ imprisonment
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:		123 days
6AAA Statement: 8 years’ imprisonment with a non-parole period of 6 years.
Other relevant orders: Pursuant to s 6B(2) of the Sentencing Act 1991 sentenced as a serious drug offender in relation to Charge 2. Forensic Sample Order and Disposal/Forfeiture Orders made.

1. A co-offender, Constandinos Raptis, who also pleaded guilty, was sentenced by the same judge on the same day, and for the same offence listed as charge 1 above (along with another drug possession offence).  He was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Trafficking in not less than a commercial quantity of a drug of dependence (1,4‑Butanediol) [s 71AA(1) of the Drugs, Poisons and Controlled Substances Act]	25 years	4 years	Base
2.	Possession of a drug of dependence (Anabolic and androgenic steroidal agents) [s 73(1)(c) of the Drugs, Poisons and Controlled Substances Act]	400 penalty units or 5 years’ imprisonment	3 months	—
3.	Negligently dealing with proceeds of crime [s 194(4) of the Crimes Act 1958]	5 years’ imprisonment	2 years	9 months
Total Effective Sentence:		4 years and 9 months’ imprisonment
Non-Parole Period:		3 years’ imprisonment
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:		220 days
6AAA Statement: 7 years’ imprisonment with a non-parole period of 5 years.
Other relevant orders: Forensic Sample Order and Disposal/Forfeiture Orders made.

1. On 18 March 2019, following an oral hearing, leave to appeal against sentence was granted on the following ground:

The learned sentencing judge erred in law in imposing a sentence on the charge of trafficking in 1,4-Butanediol (Charge 1) that ought to have been disparate and lower than the sentence for that charge imposed on the co-accused Constandinos Raptis, giving rise to a justified sense of grievance and a miscarriage of justice.

Background facts

1. On 19 April 2016, police executed a search warrant at the appellant’s home in Fawkner.  In the garage, they located a loaded firearm, 74.5 kilograms of 1,4‑Butanediol, 442.7 grams of methylamphetamine (352 grams pure), 849 ecstasy tablets (4% purity) and small quantities of amphetamine, cocaine, and cannabis.  Cash in the amount of $19,950 was found in the kitchen.  The firearm was unregistered and had no identifying marks.  At the time of the search, the appellant was not licensed to possess a firearm.  There were also various items typically associated with the preparation of drugs for sale located on the premises.  Police also seized a hard drive that contained CCTV footage of the property.

1. When interviewed by police, the appellant claimed that he had only come into possession of the 1,4-Butanediol and methylamphetamine the previous day, the firearm the previous week, and the ecstasy tablets three weeks earlier.  However, he acknowledged that he had prepared 14 one ounce bags, which he had weighed up and placed into a blue freezer bag.  He claimed that these items had been dropped off by a number of third parties, but refused to identify them.  When asked about the amount of cash, he stated that it would have been between $15,000 and $20,000, but claimed that he had merely been minding the money on behalf of others.

1. CCTV footage from the seized hard drive indicated that Raptis had attended the appellant’s home on a number of occasions in the month or so preceding the execution of the warrants.  In particular, he had been at the property on the day before the search.  The footage depicted Raptis opening the boot of his vehicle.  Inside, there were three cardboard boxes visible.  Raptis removed two of them from the boot, and the appellant removed the third.  They were all placed in the garage. Shortly afterwards, Raptis left the premises carrying a black travel bag.

1. The CCTV footage also depicted a number of unidentified men attending the garage.  During these encounters the appellant would disappear out of the camera frame, but would return shortly thereafter, place shopping bags into his vehicle and leave.  He would then return with a quantity of cash.  He was also seen carrying a quantity of 1,4-Butanediol into the garage.

1. On 13 September 2016, Raptis’ premises were searched and the various drugs which he was convicted of having trafficked and possessed were located.  So too was the sum of $105,705 in cash, as well as a number of Rolex watches valued at about $58,000.  Like the appellant, police seized a number of items typically associated with the preparation of drugs for sale.

The plea hearing

1. At the commencement of the plea hearing for the appellant, the prosecution addressed the appellant’s role in the offending by way of the ‘Crown Plea Opening.’  It relevantly stated:

The evidence herein cannot exclude the fact that where the Butanediol is concerned[,] that Arici was not the primary organiser or distributor of the same but the prosecution otherwise maintains that he was actively involved in trafficking methyl amphetamine and prepared to traffic MDMA in the quantities located.

1. The sentencing judge noted that there was an agreed characterisation of the appellant’s role as a ‘sitter’, while Raptis was described as a ‘courier.’  She sought clarification of that distinction, and raised the question of parity between the co-accused as to the charge of trafficking the 1,4‑Butanediol.

1. In respect of that issue, on 13 August 2018 the prosecution filed a written submission as regards the matter of parity.  The submission spoke of a negotiated settlement having been reached with both the appellant and Raptis.  It noted that Raptis had been arraigned on 1 June 2018, and his plea had been heard on that same day.  The appellant was arraigned a month later, on 5 July 2018, the same day as his plea was heard.

1. Clearly therefore, by the time the Crown filed the written submission regarding parity, the appellant’s plea in mitigation had already been heard.  However, the Crown had said barely anything regarding the question of parity in relation to charge 1 during the course of that plea.

1. The Crown’s written submission purporting to deal with parity had contented itself with explaining that the appellant was regarded as a mere ‘sitter’ in respect of the 1,4-Butanediol.  The submission was singularly unhelpful in dealing with the issue it was intended to address.  All that was said on the question of parity was:

In arriving at the appropriate sentence for each of the co-accused, your Honour will assess, balance up and attach appropriate weight to the following:

·     the nature and precise number of charges to which each accused has pleaded guilty;

·     the specific involvement of each accused;

·     the prior convictions of each accused;

·     the personal circumstances and background of each accused;

·     any expressions of remorse expressed by the accused;

·     any co-operation and/or assistance provided to investigating police; and

·     the time at which each accused indicated he would plead guilty.

As your Honour has previously noted, the charges to which each of the co‑accused have pleaded guilty, vary significantly in their number, nature and seriousness.

As with any other criminal matter, it is respectfully submitted your Honour ought to assess the respective involvement of each accused based on the depositions and the Crown Plea Openings.

1. On 24 August 2018, counsel for the appellant filed detailed a written submission that repeatedly and emphatically urged that the appellant receive a significantly lesser sentence than Raptis with respect to the trafficking of the 1,4‑Butanediol.

1. It was noted that, at the committal, an agreement had been reached with the prosecution that the appellant had occupied the role of a ‘sitter’ only.  No such agreement was reached in relation to Raptis who, at that stage, continued to maintain his innocence, and indicated an intention to go to trial.  It was not until almost a year later that Raptis entered a plea of guilty.

1. It was next submitted that the appellant’s personal circumstances were more favourable than those of Raptis, and would further warrant a lesser sentence, in his case, on charge 1.  These included the fact that the appellant was prepared to plead guilty at an earlier stage than Raptis.  In addition, there were strong and consistent expressions of remorse, on his part, both before and during the course of the plea hearing.  There was powerful evidence of rehabilitation after the commission of this particular offence.  This was supported by a number of positive character references tendered on his behalf.

1. It was noted that, unlike Raptis, the appellant had a supportive family, including a partner and two young children who were fully intent on promoting his rehabilitation.  It was said to be of particular significance that the appellant had a mild intellectual disability and that he had committed this offence in order to support his destitute and psychologically impaired mother.  This stood in stark contrast with Raptis, who had engaged in trafficking purely out of greed.

1. Finally, it was noted that unlike Raptis, the appellant was not in breach of a Community Correction Order at the time of the offending.

1. It was therefore submitted that each man’s sentence on charge 1 should be ‘disparate’, meaning significantly different.  It was strongly submitted that there was no justification whatever for equal sentences to be imposed with regard to that charge.

Sentencing remarks

1. In the judge’s sentencing remarks, her Honour said almost nothing about parity.  In fact, having noted that the Crown’s position was that the appellant had been a ‘sitter’, she summarised the reasons for what she described as that ‘concession’ as follows:[1]

(i)the existence of CCTV footage of your co-accused, Raptis, dropping off the product in three large containers at your home on 18 April 2016, the day before the execution of the search warrant;

(ii)as a consequence, the 1,4-Butanediol was in your possession for approximately 24 hours prior to Victoria Police executing the search warrant and seizing it;

(iii)there is no evidence as to when the product came into the possession of Raptis; and

(iv)there is no evidence to assist in determining who was the primary organiser and/or distributor of the 1,4-Butanediol.[2]

[1]So described at DPP v Arici [2018] VCC 1744, [10] (‘Sentencing remarks’).

[2]Ibid.

1. No such ‘concession’ could be made in favour of Raptis.  In particular, it was difficult to say, precisely, what his role in this entire enterprise had been, or for how long he had been in possession of the drugs in question.

1. On Raptis’ plea, the prosecution made a different ‘concession.’  In effect, it submitted that Raptis’ position was ‘akin to that of a courier’, a submission in which Raptis’ counsel readily joined.  Her Honour never, at any stage, delved into the implications of the distinction between a ‘sitter’ and a ‘courier’, but it would seem tolerably clear from the overall tenor of her sentencing remarks that she regarded the former designation as less culpable than the latter.

1. Both the appellant and Raptis had been in trouble with the law in the past.  Raptis, however, had been sentenced to a term of imprisonment, albeit wholly suspended, whereas the appellant had never received a custodial sentence of any kind.  Raptis had a supporting network, but had never been married and unlike the appellant, had no children.

1. In her sentencing remarks in relation to the appellant, the judge had only this to say on the issue of parity with regard to charge 1:

Therefore the prosecution’s position is that in so far as charge 1 is concerned there should be a measure of parity between you and your co-accused, Raptis.  However, in so far as charges 2 and 3 are concerned (charges faced by you alone), the Crown position is that I should sentence you on the basis that you were actively involved in trafficking methamphetamine and prepared to traffic MDMA in the quantities located.  I accept the Crown’s submission insofar as these matters are concerned.[3]

[3]Ibid [11] (emphasis added).

1. When her Honour sentenced Raptis, she referred again to the Crown’s submission that, while their roles were quite different, ‘a measure of parity was warranted between Raptis and Arici in relation to charge 1.’[4]

   [4]DPP v Raptis [2018] VCC 1745, [11].

1. As will be seen, the sentencing judge did not explain what she meant by ‘a measure of parity.’  Nor, it must be said, did the prosecution, which had introduced that expression, ever condescend to do so.

Submissions before this Court

1. Counsel for the appellant submitted that it was significant that the Crown’s position on the plea had been that the appellant’s role, in relation to charge 1, had been merely that of a ‘sitter.’  Counsel submitted that this implicitly lesser role entitled the appellant to a finding that his moral culpability was less than that of Raptis.

1. Despite this, the Crown’s formal position on the plea was that there should be what it described as a ‘measure of parity’ between the appellant and Raptis (whatever that meant).  Ultimately, it was submitted on behalf of the appellant that the sentencing judge had accepted, in her sentencing remarks, that the appellant’s culpability was somewhat below that of Raptis.

1. In addition, her Honour had found, once again at least tacitly, that matters personal to the appellant had greater weight, as mitigation, than those which Raptis could call in aid.  This meant that her decision to impose exactly the same sentence on each offender, with regard to charge 1, was difficult to comprehend.

1. In the respondent’s written case, it was submitted that despite the prosecution’s concession on the plea that the appellant had been a ‘sitter’, and therefore, implicitly at least, somewhat less culpable than Raptis, it had been open to the sentencing judge to sentence each of them to the exact same term of imprisonment.

1. In support of that submission, it was noted on behalf of the Crown, in its written case, that counsel for the appellant on the plea had conceded that both offenders were ‘essentially identical in terms of objective culpability.’  In fact, a careful reading of the plea transcript indicates that no concession of that kind was, in fact, made.  All counsel for the appellant was endeavouring to do was to indicate that even in a hypothetical case where the ‘role might be identical’ there was still room for significant disparity in favour of one offender over another.  For example, such disparity could be based upon personal circumstances alone.

1. In any event, the written submission filed on behalf of the appellant on 24 August 2018 have made it clear beyond argument that his case was that he should receive a substantially lower sentence than that of Raptis in respect of charge 1.

1. During the course of oral argument, counsel for the respondent noted that the appellant’s counsel on the plea had put forward material that made it clear that the appellant had been a ‘sitter’ for about six months before the execution of the warrant.  This was evident from a psychological report that was tendered on the appellant’s behalf, and that contained an admission by the appellant to that effect.  Counsel for the respondent submitted that the ongoing nature of the appellant’s role as a ‘sitter’ had legitimately influenced the conclusion the sentencing judge came to about the appellant’s prospects of rehabilitation.

1. Further, in response to the appellant’s written submission that the motive for the offending had been to assist his mother, it was noted by the respondent that the appellant had been found with a large amount of cash in his possession at the time the search warrant was executed, and that his partner was earning an annual salary of $80,000 at the time of the offending.

1. Finally, the respondent submitted that there were ‘broad similarities’ between the appellant and Raptis.  Counsel for the respondent contended that both co‑offenders had similar criminal histories and prospects of rehabilitation.  When asked about the differences in age, counsel noted that the sentencing judge did not accept youth to be a mitigating factor in the appellant’s favour.

1. In reply, counsel for the appellant submitted that that admission made by the appellant to the psychologist was heavily related to charge 2, rather than charge 1.  In response to the respondent’s detailed analysis of the similarities between the appellant and Raptis, counsel submitted that the respondent failed to take into account significant factors that warranted differential treatment between them.  These included the appellant’s intellectual disability, and his concerted effort at rehabilitation (which included participation in almost 200 urine drug screens, testing positive on only two occasions).  It was submitted that these were important differences that were deserving of recognition by the sentencing judge, and justified a lesser sentence for the appellant in relation to charge 1.

Analysis

1. One difficulty for this Court, in dealing with the question raised by the ground of appeal is in deciphering what her Honour meant when she accepted the Crown’s references to there being a ‘measure of parity’ between the two offenders.

1. It might be thought that the sentencing judge was signifying her acceptance of the proposition that there should be complete parity between the appellant and Raptis with regard to charge 1.  That is, after all, the effect of the sentence that she imposed on each offender, being 4 years’ imprisonment. 

1. In that sense, the use of that expression might be taken to amount to a complete rejection of the appellant’s detailed submission of 24 August 2018, calling for a substantially lesser sentence for the appellant than for Raptis.

1. On the other hand, it might be argued that her Honour, by using that expression, was acknowledging that she was not dealing with two offenders who had played exactly the same role in the drug trafficking, and who did not have the same claims to mitigation by way of personal circumstances.  That is why she used the term ‘measure of’ rather than speaking of exact equivalence, or precise parity.

1. Whatever be the correct analysis of this particular conundrum, the fact remains that the appellant appears, to us, to have had a justifiable claim to some degree of leniency in relation to charge 1, which was not as fully available to Raptis.

1. Accordingly, and for the reasons set out above, we would allow this appeal.  We would set aside the sentence of 4 years imposed on charge 1, and substitute a sentence of 3 years’ imprisonment to reflect the differences between these two offenders, based upon both moral culpability and personal circumstances.

1. The net effect will be to reduce the total effective sentence for the appellant to one of 5 year’s imprisonment.  We would fix a new non-parole period of 3 years and 3 months.  We acknowledge that reducing the sentence for charge 1 to 3 years’ imprisonment will result in a base sentence that is lower than the sentence imposed for charge 2 (4 years’ imprisonment with 2 years cumulative).  This is a departure from the general principle that the base sentence is usually the longest sentence.[5]  However, in the circumstances of this case, we have determined that the parity is best dealt with by leaving charge 1 as the base sentence, as it was in Raptis’ case.

   [5]See generally, Djordjic v The Queen [2018] VSCA 227.

1. It should be understood that in arriving at this conclusion, we are dealing solely with the question of parity.  We are not suggesting that there was anything excessive, whether manifestly or otherwise, about either the sentence of 4 years’ imprisonment on charge 1, or the total effective sentence of 6 years originally imposed.

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