Biricik v The King
[2022] VSCA 223
•19 October 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0069 |
| KORAY BIRICIK | 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 223 |
| JUDGMENT APPEALED FROM: | [2022] VCC 611 (Judge Dalziel) |
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CRIMINAL LAW – Appeal – Sentence – Two charges of trafficking in drug of dependence, 1 charge of attempting to possess drug of dependence and 1 charge of arson – Total effective sentence 3 years, 11 months’ imprisonment, non-parole period 2 years – Whether judge denied applicant natural justice by rejecting unchallenged evidence on matter in mitigation without giving prior notice – Whether sentence manifestly excessive – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr M Cenacchi | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | AUM Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KYROU JA:
Introduction and summary
On 9 February 2022, the applicant pleaded guilty to the charges set out in the table below and, on 6 May 2022, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Biricik [2022] VCC 611 (‘Sentencing remarks’).
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Trafficking in a drug of dependence [s 71AC(1) Drugs, Poisons & Controlled Substances Act 1981 (‘DPCSA’)] 15 years 1 year, 6 months 6 months 2 Attempting to possess a drug of dependence [s 73(1) DPCSA] 5 years 5 months 2 months 3 Arson [s 197(1) & (6) Crimes Act 1958] 15 years 2 years, 9 months Base 4 Trafficking in a drug of dependence 15 years 2 years, 6 months 6 months Total Effective Sentence: 3 years, 11 months Non-Parole Period: 2 years Section 6AAA Statement: 5 years, 6 months; Non-Parole Period 4 years
The applicant now seeks leave to appeal on the following grounds:[2]
[2]In these reasons, proposed grounds of appeal are referred to as grounds of appeal. The reference to Worboyes v R in ground 2 is to Worboyes v The Queen (2021) 96 MVR 344, 356 [35]; [2021] VSCA 169 (‘Worboyes’).
1The applicant was denied Natural Justice when her Honour:
(a)Rejected unchallenged evidence as to a matter in mitigation without putting the Applicant on notice.
(b)Proceeded to draw conclusions from that rejection without affording the Applicant an opportunity to be heard on the matter.
2The sentences imposed on charges 3 and 4 and the non-parole period imposed are manifestly excessive having regard to:
(a)the lengthy delay coupled with the Applicant’s exemplary conduct and advancements in rehabilitation while on bail.
(b)the absence of a palpable amelioration of sentence which ought to have been bestowed upon him as enunciated in Worboyes v R.
(c)the Applicant’s age, lack of prior convictions and prospects of rehabilitation.
(d)the burdensome nature of the Applicant’s incarceration during covid considering his medical condition; and
(e)the Applicant’s pleas of guilty and demonstrated remorse.
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, Domenic Luzza and Fawzi El-Cheikh. Luzza and El-Cheikh were members of the Comanchero motorcycle club, with Luzza being its Victorian treasurer. As part of the investigation, a listening device was installed in the Toyota Corolla vehicle that the applicant drove. The evidence disclosed that the applicant committed the offending the subject of charges 1, 2 and 3 at Luzza’s behest.
Charge 1: Trafficking in a drug of dependence
Charge 1 concerned the trafficking in a drug of dependence, namely, methyl alpha‑acetylphenylacetate (‘MAPA’) and flurodeschloroketamine between 21 January 2019 and 28 May 2019. MAPA is an analogue of phenyl-2-propanone. Phenyl‑2‑propanone is a drug of dependence under the DPCSA, and is used primarily in the manufacture of amphetamine and methylamphetamine. Flurodeschloroketamine is an analogue of ketamine. Ketamine is commonly used in medicine as a pain killer but it is also a drug of dependence consumed for its hallucinogenic and dissociative effects.
The applicant collected four consignments of drugs which had been sent to Australia from China. He did not order or pay for the drugs, but was recruited to collect them from the carriers once they had arrived in Australia and been released by Australian Border Force (‘ABF’). Each parcel had a false name and address as the Australian destination, and contained false details as to the contents.
The first parcel arrived in Australia on 19 January 2019 via FedEx Australia. It weighed 8.5 kilograms and was labelled as containing a food preservative. The parcel was not inspected by ABF and was released. On 21 January 2019, the applicant went to the FedEx depot in Derrimut to collect the parcel. He produced his own driver’s licence and a handwritten note purporting to be from the person to whom the parcel was addressed. He took possession of the parcel. The prosecution case was that this parcel contained MAPA.
The second parcel arrived in Australia on 22 April 2019 via DHL. It had a declared weight of 500 grams and was labelled as containing a packing bag. The parcel was not examined by ABF and was delivered to a collection locker at a store in Truganina. On 30 April 2019, the applicant drove to that store and collected the parcel. The prosecution case was that this parcel also contained MAPA.
The third parcel arrived in Australia on 12 May 2019 via TNT. It had a declared weight of 600 grams and was declared to contain a pigment. It was not examined by ABF. A person using a phone number connected to Luzza contacted TNT a number of times between 13 and 15 May 2019. On 15 May 2019, the applicant went to the TNT depot at Melbourne Airport and collected the parcel, using his name to do so. The prosecution case was that the parcel contained flurodeschloroketamine.
The fourth parcel arrived in Australia on 25 May 2019 via TNT. It was addressed in almost the same way as the third parcel and had a declared weight of 500 grams. It was labelled as containing a resin. The parcel was not examined by ABF. On 27 May 2019, Luzza contacted TNT regarding the parcel using a phone number subscribed in another person’s name. The next day, the applicant collected the parcel from the TNT depot, producing his driver’s licence to do so. The prosecution case was that the parcel contained flurodeschloroketamine.
The listening device in the Toyota recorded the applicant telling an associate on 15 August 2019 that Luzza ‘used to give [the applicant] four, five hundred bucks’ each time he collected a consignment for him.
Charge 2: Attempt to possess a drug of dependence
Charge 2 involved a failed attempt by the applicant to collect a parcel of MAPA.
On 1 February 2019, a fifth parcel arrived in Australia from China via FedEx Australia. The parcel had the same name and address details as the first parcel. The fifth parcel had a declared weight of 50 kilograms and was labelled as containing a food preservative. ABF examined the parcel and determined that it contained MAPA. The weight of that drug has not been stated.
On 4 February 2019, El-Cheikh sent the applicant messages informing him of the address of the FedEx depot, and the details of what to include in a note in the name of the addressee of the parcel. The prosecution case was that El‑Cheikh sent the messages at the direction of Luzza. That day, the applicant went to the FedEx depot, driving his Toyota, and produced a handwritten note in the terms suggested by El‑Cheikh. The applicant was told that the consignment was being held by ABF and he left.
Charge 3: Arson
Charge 3 concerned the applicant’s participation in setting fire to a car being used by a person who allegedly owed money to Luzza, Nicholas Perechoden. After Perechoden was released from prison on 2 May 2019, he used a rental vehicle, a 2019 Hyundai i30 sedan, valued at approximately $21,000. On 5 June 2019 at 4:04 am, the applicant drove his Toyota past Perechoden’s home in Reservoir. Instead of its usual registration plates, the Toyota had ‘cloned’ number plates, that is, number plates that were associated with that type of vehicle. A short time later, the applicant pulled up behind the Hyundai which was parked on the street in front of the house next to Perechoden’s home. Another man got out of the Toyota, doused the Hyundai with an accelerant and set it on fire, completely destroying it. He then got back into the Toyota and the applicant drove away.
The applicant made admissions regarding this offence, which were recorded on the listening device in the Toyota. One of the admissions was recorded on 27 July 2019 and included the following statement by the applicant: ‘My mate just said to me, I will give you five hundred bucks if you burn a car and I said … what if I take my own car, I’ll just use some plates and he said he would give me [a] thousand then and I’m like done! So I did it …’ Another admission was recorded on 19 August 2019: in response to a male asking the applicant whether he was there for ‘the Reservoir thing’, he replied ‘[Y]eah, me and Adam Omar went by ourselves and burnt the car’.
Charge 4: Trafficking in a drug of dependence
Charge 4 involved the applicant trafficking in cocaine in the period from 16 July until 12 September 2019, during which he sold cocaine in quantities of between 1 and 3.5 grams.
The prosecution relied upon the following instances of trafficking during the above period in support of charge 4:
•26 July 2019. The applicant discussed with another person drugs and money owed. The applicant also discussed with an associate, HK, the purchase of ‘1 ball’, that is, 3 to 3.5 grams of cocaine.
•27 July 2019. The applicant discussed selling 3 grams of cocaine. He purchased ‘a ball’ from someone and then said that he needed to deliver the drugs to someone. He sent an SMS to a customer telling him that he had drugs if the customer wished to procure them and explained that he could no longer sell to him on credit. The applicant told the customer that he would sell the ‘ball’ to him for $950. The applicant discussed with HK that a customer wanted ‘4’ but that he only had ‘2’ left.
•28 July 2019. The applicant sold cocaine to someone, in his car, for which he received $900. The applicant told someone that he had sold nearly half a bag of cocaine that week. The applicant said that he sourced a ‘Q’ for between $1,900 and $2,000. The applicant informed a customer, AK, that he was out of stock.
•29 July, 3 and 4 August, 2019. The applicant received an order from AK via SMS. AK on-sold drugs he purchased from the applicant on at least one occasion.
•8 August 2019. The applicant discussed dropping off 1 gram to sell and retaining another gram, but was unhappy to be selling just 1 gram.
•15 August 2019. The applicant and a supplier, MK, discussed the quality of the drug and whether it had been excessively cut. The applicant placed an order for more cocaine and later informed a customer that he had drugs in stock.
•16 August 2019. The applicant sold 1.5 grams of cocaine. He then spoke to another customer, telling him that he had 14 grams of powder. A customer asked him to bring an ounce and scales.
•17 August 2019. AK asked to purchase ‘the usual’, to which the applicant responded that it would be cash up front. Later, the applicant discussed with MK that he needed ‘half a bag’.
•18, 23 and 24 August 2019. The applicant discussed with various associates purchasing and selling cocaine from and to them.
•31 August 2019. The applicant had a conversation with an unknown person about trafficking cocaine, buying and selling, and the profit margin he achieved.
•1 September 2019. AK asked to purchase ‘1 or 2’ but the applicant replied that he did not have anything in stock.
Arrest and bail
On 12 September 2019, the applicant’s home and Toyota were searched and he was arrested. The police seized his mobile telephone, a set of scales and multiple small empty press-seal deal bags.
The applicant spent 226 days in custody before he was granted bail on 24 April 2020. He spent 2 years and 12 days, a total of 742 days, on bail.
The applicant’s personal circumstances
The applicant was between 20 and 21 years of age at the time of the offending and 24 at the time of sentencing.
The applicant was born and raised in Melbourne. His parents migrated to Australia from Turkey. The applicant has a younger brother. They had a happy upbringing.
The applicant suffers from asthma, which he manages with Ventolin. He also attends a chiropractor for back pain.
After the applicant completed Year 10, he attended the Sports Education Centre in Maribyrnong, where he completed Years 11 and 12. He then commenced a Certificate of Sports and Recreation course, but discontinued it after 6 months. He subsequently enrolled in a Building Certificate course, but did not complete it.
The applicant played soccer as a teenager, but lost interest at about the age of 18, when he started abusing cocaine. By the age of 20, he was inhaling up to 2 grams per day.
The conditions of the applicant’s bail included a curfew, participation in drug counselling, random supervised drug screens and reporting three times per week. While he was on bail, he initially worked in a freight warehouse. He then worked at a supermarket in Craigieburn. The chief executive officer of the company that operates the supermarket provided a very positive reference, which was tendered on the plea. The applicant remained drug free and ceased contact with associates who were involved with drugs. He lived with his parents, who continued to support him, and performed some voluntary work. The applicant also has the support of other family members, his employer and friends.
The applicant does not have a prior criminal history.
Plea hearing
At the plea hearing, the applicant tendered a number of documents, including a report dated 7 November 2019 by a psychologist, Bernard Healey, a further report dated 10 December 2021 by Mr Healey and a report dated 27 January 2022 by a drug counsellor, Amanda Brown.
In his report dated 7 November 2019, Mr Healey stated that, based upon a number of tests, the applicant’s full-scale IQ was 84, placing him at the 14th percentile, meaning that 86 per cent of his peers would perform better than him. Mr Healey described the applicant’s intellectual capacity as ‘well below average’. In his report dated 10 December 2021, Mr Healey stated that subsequent testing indicated that the applicant’s full-scale IQ had improved to 86, placing him at the 19th percentile, meaning that 81 per cent of his peers would perform better than him.
The personality testing conducted by Mr Healey identified bipolar issues, but no diagnosis of bipolar disorder was made.
In his report dated 7 November 2019, Mr Healey made the following observations regarding the applicant’s remorse and rehabilitation:
He has made very strong resolves to cease any further involvement in illicit drug intake and has experienced shame over the way he in effect brought disgrace upon his family, who are all conforming law abiding people.
In his report dated 10 December 2021, Mr Healey made the following further observations regarding the applicant’s remorse and rehabilitation:
He has abandoned all involvement with associates on the drug scene which facilitated his rapid involvement and addiction to the inhalation of cocaine up to his remand. … He has demonstrated his remorse and self-reproach in significant practical ways with withdrawal from significant cocaine addiction and ongoing absence of drug intake through supervised urine sample tests and attendance upon counselling. …
… His insight in relation to such offending was quite sound … This has resulted in the acknowledgement of continued vulnerability to drug intake and the need to remain vigilant on a daily basis about any association with a drug user.
…
[H]e has demonstrated very considerable strength and determination in remaining drug free since his remand in the early part of September 2019 and adhered [to] a very strict regime with a rehabilitation consultant. …
In general terms there has emerged an ongoing positive recovery but not without the memory of the way in which his behaviours were disinhibited and his thinking clouded through the intake of [cocaine].
…
There was an updating of his situation since … November of 2019 when he was still in prison. Clearly some quite dramatic changes have occurred in his functioning since that time which really reflect very strongly in a practical way upon genuine remorse and the determination to remove himself altogether from the drug scene and to cease the intake of any illicit drugs.
In her report dated 27 January 2022, Ms Brown stated that the applicant attended drug counselling from May 2020. She made the following observations:
[The applicant] has systematically attended upon my rooms weekly, participated in Narcotics Anonymous and evidenced his sustention of abstinence via twice weekly supervised urine analysis.
…
[The applicant] has made marked progress towards his recovery and has evidently established himself into a more prosocial, law-abiding lifestyle.
Judge’s sentencing remarks
The judge described the applicant’s offending the subject of charges 1 and 2 as ‘unsophisticated’, in that he used his own car and identification when collecting, or attempting to collect, the parcels.[3] The judge said that, whilst this suggested a degree of naiveite, in respect of the parcels the subject of charge 1, the applicant was aware that they contained drugs of dependence and, in respect of the parcel the subject of charge 2, he knew that there was a real or significant chance that it contained a drug of dependence.
[3]Sentencing remarks, [25].
The judge took the following matters into account in assessing the gravity of the offending the subject of charge 1:
(a)The applicant knew that he was collecting drugs of dependence on each of the four occasions.
(b)The applicant received payment of between $400 and $500 for each collected parcel.
(c)The applicant was the ‘willing tool of Luzza’,[4] receiving instructions directly from him or through El-Cheikh and, as the contact person with the shipping companies, he was exposed to the risk of detection.
(d)The commercial quantity applicable to both MAPA and flurodeschloroketamine was 500 grams. The declared weight of the parcels the subject of charge 1 totalled approximately 9 kilograms of MAPA and 1.1 kilograms of flurodeschloroketamine, and the declared weight of the parcel the subject of charge 2 was 50 kilograms. However, the actual quantity of drugs the subject of charges 1 and 2 has not been precisely identified. The applicant was ‘not being sentenced on the basis that [he was] aware of the actual drugs, or weights of the parcels [he was] collecting’.[5]
[4]Sentencing remarks, [28].
[5]Sentencing remarks, [27].
The judge accepted that the applicant’s offending the subject of charges 1 and 2 placed him ‘low in the hierarchy of the larger trafficking enterprise’.[6] The judge observed that, although the applicant’s role was that of a ‘willing tool of Luzza’, nevertheless people like him ‘who are willing to participate in trafficking, even in this way, are an essential part of the trafficking business, and the insulation of the organisers from detection’.[7]
[6]Sentencing remarks, [64].
[7]Sentencing remarks, [28]–[29].
With regard to the offending the subject of charge 4, the judge stated that, although the applicant’s trafficking ‘was at a low level’, he was actively engaged in trafficking for nearly two months for money and was in regular — sometimes daily — contact with buyers and sellers.[8] She stated that, although the quantities involved in each transaction were low, the applicant was purchasing drugs and on-selling them in his own right. She found that ‘this was not lowest level street trafficking’.[9]
[8]Sentencing remarks, [42]–[43].
[9]Sentencing remarks, [43].
The judge stated that the applicant engaged in serious criminal behaviour in order to make money. She observed that charges 1 and 4 involved repeated offending and that, in respect of charge 4, he was actively and frequently engaged in trafficking cocaine. She assessed his moral culpability in respect of charges 1 and 4 as high.
With regard to the offending the subject of charge 3, the judge observed that, whilst the applicant was not the organiser of the arson, he agreed to take part in it for payment of $1,000, and took steps to avoid detection by using cloned number plates on the Toyota. She stated that ‘[t]his was planned offending, carried out for money’.[10] She noted that setting fire to, and destroying, another person’s car is serious offending, and stated that ‘taking money to do so means that [the applicant’s] moral culpability for this offence is high’.[11]
[10]Sentencing remarks, [38].
[11]Sentencing remarks, [81].
The judge stated that, for the purpose of taking into account current sentencing practices for the offence of arson, she considered the cases of Anderson v The Queen[12] and Salmi v The Queen[13] and the cases referred to in Salmi.
[12][2019] VSCA 42 (‘Anderson’).
[13][2020] VSCA 250 (‘Salmi’).
The judge referred to the two reports of Mr Healey and noted that Mr Healey initially assessed the applicant’s full-scale IQ at 84 and later at 86. She then said the following about the nexus between the applicant’s low intellectual functioning and his offending:
It was submitted on the plea that [the applicant has] a very low IQ and [was] thus easily seduced into this offending. This was expanded by submitting that [he was] ‘seduced by patched motorcycle members and became addicted to cocaine’ leading to debt and thus to trafficking to pay the debt.
I do not accept that the testing by Mr Healey indicates that [the applicant has] what [his] counsel described as ‘very low IQ’. The testing shows that [the applicant’s] intellectual functioning, described by Mr Healey as below average, falls in the Low Average Range. Whilst [the applicant was] young at the time of this offending, and no doubt immature, I do not accept that [his] intellectual functioning made [him] vulnerable to others involving [him] in this offending, or reduced [his] moral culpability.[14]
[14]Sentencing remarks, [62]–[63] (citations omitted).
The judge accepted that the applicant’s plea of guilty was entered at an early stage, and found that it had significant utilitarian benefits, particularly in the context of the COVID-19 pandemic, and was an indication of remorse. She said that his plea of guilty gave rise to ‘real mitigation of [his] sentences’.[15]
[15]Sentencing remarks, [67].
The judge accepted that the applicant had very good prospects of rehabilitation, provided that he remained free of drugs. She noted that, during the period that he was on remand and on bail, he made ‘real progress towards [his] rehabilitation.’[16] She also accepted that, during this time, the potential of return to prison was ‘hanging over [his] head, which will have been stressful for [him]’.[17]
[16]Sentencing remarks, [79].
[17]Sentencing remarks, [79].
The judge stated that the applicant’s asthma and back condition warranted ‘only a modest mitigation of [his] sentences’.[18]
[18]Sentencing remarks, [75].
The judge stated that general deterrence was an important sentencing consideration in respect of all the charges and that, although specific deterrence was relevant, it was ‘moderated to a degree’.[19]
[19]Sentencing remarks, [78].
The judge rejected a submission by defence counsel that she should impose a sentence combining the time the applicant had already served in custody together with a community correction order, stating that such a sentencing disposition would be inadequate in all the circumstances. She stated that the applicant had committed a range of offences over approximately nine months in 2019 and that there must be a degree of cumulation between the sentences for each charge in order to reflect the different criminality that was involved.
Ground 1: Denial of natural justice
The applicant submitted that the judge rejected Mr Healey’s assessment that his intellectual capacity was ‘well below average’ and replaced it with the description ‘low average’. He contended that the judge’s substituted assessment had the following effects:
(a)The applicant was denied natural justice by not being put on notice of the judge’s intention to reject unchallenged evidence as to a matter in mitigation.
(b)The substituted assessment must have had a bearing upon the judge’s consideration of the defence submission that the applicant was seduced into the world of the Comanchero community.
(c)The defence was not afforded an opportunity to make submissions on the judge’s view and any inferences which could be drawn from it.
The applicant argued that the categorising of his initiation into the Comanchero community as a seduction caused in part by his low intellectual capacity and youth was a relevant mitigating factor which affected the assessment of his likelihood of reoffending, his remorse and his prospects of rehabilitation.
In my opinion, ground 1 is not reasonably arguable.
Contrary to the applicant’s submission, the judge did not substitute an assessment of ‘low average’ for Mr Healey’s assessment of ‘well below average’. The judge used the expression ‘below average’ rather than ‘well below average’.[20] The judge’s different phraseology was immaterial having regard to the fact that she specifically referred to Mr Healey’s actual IQ results of 84 and 86.[21]
[20]See [41] above.
[21]See [41] above.
Mr Healey did not find that the applicant’s IQ resulted in him being seduced by Comanchero club members or that it causally contributed to his offending. The references to seduction and causal contribution were made by defence counsel in his submissions. It is those submissions that the judge rejected rather than any unchallenged evidence by Mr Healey.
At the plea hearing, defence counsel did not submit that the applicant’s intellectual functioning was relevant to the judge’s assessment of the likelihood of the applicant’s reoffending, his remorse or his prospects of rehabilitation. In any event, the judge made favourable findings regarding the applicant’s remorse and his prospects of rehabilitation.
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.[22]
[22]Criminal Procedure Act 2009, s 280(1)(a).
Ground 2: Manifest excess
Ground 2 in effect contends that the sentences imposed on charges 3 and 4 and the non‑parole period are manifestly excessive due to the judge’s failure to give sufficient weight to:
(a)the progress in the applicant’s rehabilitation during the lengthy period he was on bail;
(b)the applicant’s plea of guilty in the context of the pandemic;
(c)the applicant’s age, lack of prior convictions and prospects of rehabilitation;
(d)the burdensome nature of the applicant’s incarceration during the pandemic, having regard to his medical condition; and
(e)the applicant’s pleas of guilty and demonstrated remorse.
In relation to the progress in his rehabilitation during the lengthy period he was on bail, the applicant relied upon the observations of Mr Healey and Ms Brown set out at [31] to [33] above, and submitted that he had made ‘great strides towards rehabilitation during his very lengthy time on bail’. The applicant contended that, whilst the judge acknowledged his progress towards his rehabilitation during the period he was on bail, she did not give this factor sufficient weight. He also contended that there was a risk that the substantial custodial sentence imposed by the judge may destroy the results of his rehabilitation.
In relation to his plea of guilty in the context of the pandemic, the applicant submitted that his plea of guilty circumvented a lengthy and complex trial which would have lasted many weeks during the pandemic and therefore warranted a ‘generous measure of the palpable amelioration of sentence prescribed by … Worboyes’. He sought to support this submission by reference to the sentence of 2 years’ imprisonment imposed upon one of the offenders in the pre-pandemic case of Anderson for the offence of arson. According to the applicant, the circumstances of that offender (Smith) were comparable to the applicant’s circumstances and therefore the fact that a higher sentence was imposed upon the applicant for charge 3 demonstrated that that sentence did not give effect to the requirement for a palpable amelioration of sentence for guilty pleas entered during the pandemic.
In relation to his age, lack of prior convictions and prospects of rehabilitation, the applicant submitted that the judge failed to give sufficient mitigatory weight to these matters, particularly his ‘sustained commitment to rehabilitation’.
In relation to the burdensome nature of his incarceration during the pandemic, having regard to his medical condition, the applicant submitted that his asthma increased the psychological burden of imprisonment during the pandemic.
In relation to his pleas of guilty and demonstrated remorse, the applicant submitted that the mitigatory effect of these matters, when coupled with his conduct during the 742 days of his bail, was ‘considerable’.
According to the applicant, the sentences imposed by the judge for charges 3 and 4 and the non-parole period are wholly outside the range of sentencing options available to the judge when the above powerful mitigatory factors are taken into account in the context of the gravity of his offending, which he contended was at the lower end of the spectrum in relation to charge 4.
In my opinion, ground 2 is not reasonably arguable.
The arson the subject of charge 3 had a number of serious features, including that: it was planned; it was committed for monetary reward (the original offered fee of $500 was later increased to $1,000); it was committed outside the victim’s home in a residential street; it involved the complete destruction of a vehicle valued at approximately $21,000; and it involved steps to avoid detection. The judge described the offending as serious and assessed the applicant’s moral culpability as high. A sentence of 2 years and 9 months’ imprisonment, viewed in the context of the maximum penalty of 15 years, is moderate and that moderation is only explicable upon the basis that the judge gave full weight to the mitigatory factors upon which the applicant relied.
The sentence of 2 years and 9 months’ imprisonment is consistent with current sentencing practices for the offence of arson. The Anderson case upon which the applicable relied does not assist him. The sentence upon Smith in that case was low due to two factors that are absent in the present case, namely, Smith’s undertaking to give evidence against a co-offender and the application of the parity principle. In Anderson, this Court stated that, due to ‘the very unusual circumstances of [that] case, the sentence imposed on Smith will generally not be a useful comparator in cases of arson bearing a resemblance to the instant offending’.[23]
[23][2019] VSCA 42, [84].
The offending the subject of charge 4 also had a number of serious features, including that: it involved the carrying out of a business of trafficking cocaine over a period of nearly two months; the applicant bought cocaine and on-sold it to his customers, some of whom were also traffickers; the quantities of cocaine sold by the applicant varied between 1 and 3.5 grams; the applicant had some regular customers; the buying and selling by the applicant was regular, sometimes daily; the offending was committed for financial reward; and the applicant conducted the business for his personal financial reward, rather than as an agent for someone else. The judge found that the offending was above the ‘lowest level street trafficking’ and that the applicant’s moral culpability was high.
As was the case with the sentence for charge 3, a sentence of 2 years and 6 months’ imprisonment for charge 4, viewed in the context of the maximum penalty of 15 years, is moderate and that moderation is only explicable upon the basis that the judge gave full weight to the mitigatory factors upon which the applicant relied.
In my opinion, the non-parole period of 2 years’ imprisonment is very generous having regard to the fact that it is 51 per cent of the total effective sentence of 3 years and 11 months.
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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