Cemre Volkan v The Queen
[2019] VSCA 33
•28 February 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0001
| CEMRE VOLKAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 February 2019 |
| DATE OF JUDGMENT: | 28 February 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 33 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1784 (Judge Lawson) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Trafficking in drug of dependence, 13 charges of possessing drug of dependence, and 10 related summary offences – Aggregate sentence – Whether aggregate sentence appropriate – Error conceded by Crown – Whether sentence of 12 months’ imprisonment combined with 2 year CCO manifestly excessive – Not reasonably arguable that sentence manifestly excessive – No reasonable prospect that Court of Appeal would reduce total effective sentence – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Pyne | Giorgianni & Liang Lawyers |
| For the Respondent | Ms G Coghlan | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
The applicant pleaded guilty in the County Court to one charge of trafficking in a drug of dependence (charge 1) and 13 charges of possessing a drug of dependence (charges 2 to 14). The maximum term of imprisonment for trafficking a drug of dependence is 15 years. The maximum term of imprisonment for possessing a drug of dependence is five years or, where the Court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking, one year.
At the same time as he pleaded guilty to the above charges, the applicant pleaded guilty to 10 summary charges: one charge of possessing a controlled weapon (summary charge 3), two charges of contravening a bail condition (summary charges 6 and 7), two charges of possessing a prohibited weapon (summary charges 10 and 53), four charges of committing an indictable offence while on bail (summary charges 15, 17, 18 and 20) and one charge of resisting an emergency worker (summary charge 54). The maximum terms of imprisonment in respect of the summary offences were as follows: possessing a controlled weapon, 1 year; contravening a bail condition, 3 months; possessing a prohibited weapon, 2 years; committing an indictable offence while on bail, 3 months; and resisting an emergency worker, 6 months.
On 29 October 2018, the applicant was sentenced in relation to charges 1 to 14 to an aggregate term of imprisonment of 12 months to be followed by a 2 year community correction order (‘CCO’), with conditions that the applicant undergo treatment and rehabilitation for drug offences, including testing and supervision. The applicant was sentenced on charge 2 on the basis that the maximum term of imprisonment was 5 years, and on charges 3 to 14 on the basis that the maximum term of imprisonment was 1 year. On the summary charges, the applicant was sentenced to a term of imprisonment of 3 months on the charge of resisting an emergency worker, and 1 month on each of the other charges. All of those terms of imprisonment were ordered to be served concurrently with the 12 month aggregate sentence, making a total effective sentence of 12 months’ imprisonment followed by the 2 year CCO to which we have referred. The judge declared that 213 days presentence detention had already been served under this sentence. She also declared that but for the applicant’s pleas of guilty she would have imposed a total effective sentence of 3 years’ imprisonment with a 2 year non-parole period.
The applicant now seeks leave to appeal against his sentence on the following grounds:
1. The judge erred by imposing an aggregate sentence of imprisonment.
2. The sentence is manifestly excessive.
The offending
The charges to which the applicant pleaded guilty arose from the execution of a search warrant, on 3 February 2017, at an apartment in Docklands where the applicant was living with his girlfriend.
On police entry at the commencement of the execution of the warrant, the applicant stood up and ignored police requests for him to get on the ground. He started to walk towards police members. He was taken to the ground and attempts were made to restrain him. He resisted, and OC spray was deployed (summary charge 54).
Police then conducted a search of the apartment, and a large number of items (including chemicals in varying quantities) were seized and later subjected to forensic analysis.
Each of charges 1 to 14 related to the finding of different drugs of dependence, in varying quantities, in the applicant’s apartment. Drugs were found in the living room, the kitchen, the main bedroom and on a balcony. They were also found in a storage cage, allocated to the applicant’s apartment, in a car park at the premises. In addition to the drugs, various bags, glass vials, bottles, glass beakers, flasks, bundles of $50 and $100 notes and mobile phones were found.
The total quantity of drugs of dependence involved in relation to each of charges 1 to 14 was as follows: charge 1, 2890.7 grams; charge 2, 1637 grams; charge 3, less than 50 grams; charge 4, 43.5 grams; charge 5, 24.4 grams; charge 6, 3.5 grams; charge 7, 2.5 grams; charge 8, 2.4 grams; charge 9, 1.2 grams; charge 10, 1 gram; charge 11, 0.6 grams; charge 12, less than 0.5 grams; charge 13, 0.2 grams; and charge 14, 0.2 grams.
The possession of prohibited weapon charges (summary charges 10 and 53) related to the finding of a set of knuckle dusters and a machete. The charge of possessing a controlled weapon without lawful excuse (summary charge 3) related to the finding of a hunting knife.
The four charges of committing an indictable offence while on bail (summary charges 15, 17, 18 and 20) related to the applicant’s possession, respectively, of alprazolam, possession of anabolic steroids, possession of drug trafficking equipment and possession of MDMA (all found during the search of the applicant’s apartment). The offences of contravening a condition of bail (summary charges 6 and 7) related to the applicant’s breach of a residence requirement imposed in an earlier grant of bail and his use of drugs of dependence.
The plea hearing
On the plea hearing, counsel for the applicant summarised the applicant’s background, noting that the applicant was 25 at the time of offending and 27 at the time of sentencing.
The applicant enjoyed strong family support from his parents. He had completed VCE for undertaking tertiary study in business. He had been variously employed at Vodafone, in an electrical company, and in his father’s limousine business. The applicant had also engaged in professional body building, which had generated some income. He had gone through periods of dependence in respect to both GHB and methylamphetamine. He had also used cannabis, MDMA and amphetamines.
In submissions to the judge, the applicant relied upon his plea of guilty, submitting that the plea was one of substantial value. It was submitted that he had demonstrated remorse through his plea of guilty. Remorse was also said to be shown in admissions made by the applicant to police.
As to prospects of rehabilitation, the applicant’s counsel observed that the applicant had spent the best part of two years in custody, commencing when the applicant was 25 years of age. The applicant had remained drug free in custody and had completed courses available to him, and generally used his time well.
The applicant had a number of prior convictions, including for drug trafficking, theft, burglary, failing to comply with an intensive correction order, breaching a community correction order and contravening a family violence final intervention order. Specifically, on 3 November 2017 the applicant was sentenced in the County Court to 15 months’ imprisonment with a non-parole period of 8 months in respect of the offences of attempting to pervert the course of justice, contravening a family violence intervention order and common assault.
On the plea, it was submitted that the applicant’s current offending had resulted in him being unable to apply for parole in respect of the 3 November 2017 sentence. The applicant’s counsel submitted that the appropriate disposition in relation to the current offending was a term of imprisonment coupled with a CCO. The applicant’s counsel noted (and it was not disputed on the plea) that the 3 November 2017 sentence was due to expire on 4 December 2018. As the applicant’s counsel put it on the plea, ‘the likelihood is that [the applicant] will remain in custody until 4 December [2018]’.
On the plea, the prosecutor submitted that the applicant’s offending was ‘serious offending, it requires a sentence of imprisonment’. The prosecutor’s submissions, however, encompassed the possibility of the judge imposing a term of imprisonment of 12 months plus the period of presentence detention, together with a CCO.
Reasons for sentence
The judge annexed an agreed prosecution opening to her reasons for sentence, and then summarised the applicant’s offending in the body of her reasons.[1] The annexure set out in considerable detail the drugs and quantities involved in the offending. In relation to the drug offending, the judge said that she accepted that the applicant’s actions ‘were not that of a commercial operation but rather an amateurish and very chaotic and haphazard attempt to create a mixture (sic)’.[2]
[1]DPP v Volkan [2018] VCC 1784 (‘Reasons’).
[2]Ibid [52].
In sentencing the applicant, the judge said that she had regard to all matters put by the applicant’s counsel in mitigation, and that she accepted those matters.[3]
[3]Ibid [64].
The judge said that, through his plea of guilty, the applicant had spared the State the cost and inconvenience of a trial, and that she accepted that the plea of guilty facilitated the course of justice, saying that the applicant’s sentence would be ‘discounted accordingly’.[4] Moreover, the judge said she was satisfied that the applicant had ‘demonstrated some remorse’, having regard to his plea and his cooperation with police following his arrest.[5]
[4]Ibid [65].
[5]Ibid [66].
In relation to the 3 November 2017 sentence, the judge said that she accepted that the applicant had ‘missed the opportunity for any concurrency with the present matter’.[6] The judge, however, mitigated this effect as best she could by ordering that the sentence she imposed be served concurrently with the balance of the 3 November 2017 sentence — resulting in the judge’s sentence being served concurrently with the last six weeks of the 3 November 2017 sentence.
[6]Ibid [69].
Next, the judge said that she had regard to the principle of totality, and also to the time the applicant had spent in custody for an earlier Magistrates’ Court matter that had resulted in the applicant being sentenced to a sentence of imprisonment of 48 days on 7 June 2017.[7]
[7]Ibid [70].
In relation to prospects of rehabilitation, the judge said:
I … consider that there is some evidence that you have demonstrated an attitudinal shift whilst you have been in gaol in terms of addressing your underlying offending behaviour, namely your addiction to drugs, and that that does augur well for the future.[8]
[8]Ibid [73].
The judge concluded her sentencing remarks as follows:
You have been assessed as suitable for a Community Correction Order and I consider that the sentence to be imposed is one that will punish you in a just way for the offending conduct but also it will provide you with a supported release in the future.
The prosecution submitted that was serious offending that required the imposition of a further period of imprisonment.
Having regard to the time spent in custody already I consider that the more appropriate formulation for the disposition is a combination sentence.
Given that the drug trafficking and the possession of the various drugs of dependence all relate to the one day, namely 3 February 2017, I consider that an aggregate sentence of imprisonment is appropriate in all the circumstances in respect to all the matters on the amended indictment. The offending is founded on the same facts, or is part of a series of offences of the same or similar character, and therefore I consider an aggregate sentence of imprisonment is appropriate. I refer to s 9 of the Sentencing Act1991. It is one term of imprisonment to reflect the criminality of the offending charged on the amended indictment, having regard to the gravity of the offending and the other matters referred to in my sentencing remarks.[9]
[9]Ibid [74]–[77].
Parties’ submissions
In his proposed grounds of appeal, the applicant complains that the judge erred by imposing an aggregate sentence of imprisonment on charges 1 to 14, and also complains that the sentence imposed was manifestly excessive.
In support of his complaint that the judge was wrong to impose an aggregate sentence, the applicant contended that charges 1 to 14 varied significantly in their seriousness. The applicant contended that charges 1 and 2 ‘should not have been aggregated with charges 3 to 14 and should have been dealt with in the orthodox manner’. In his written case, the applicant submitted:
The decision to impose an aggregate sentence was not raised with counsel at the plea hearing. The applicant submits that the resulting sentence is opaque. He submits it is ‘difficult — if not impossible — for this Court, by recourse to the penalty imposed, to gauge the seriousness with which the sentencing judge regarded the individual [offences]’.[10]
[10]DPP v Frewstal Pty Ltd (2015) 47 VR 660, 683 [116] (Priest and Kaye JJA). See also Fitzpatrick v The Queen [2016] VSCA 63 [48] and [55] (Weinberg AP, Priest and Beach JJA).
In its written case, the Crown conceded that the judge was wrong to impose an aggregate sentence. As the Crown’s written case put it:
The learned sentencing judge erred in not considering that the charges varied significantly in their seriousness and proceeded to impose an aggregate term.
The Crown, however, submitted that ground 1 (the complaint about the judge’s imposition of an aggregate sentence) was not reasonably arguable because the sentence ultimately imposed was a merciful one and there was no reasonable prospect that this Court would reduce the total effective sentence despite there being an error in imposing an aggregate sentence.[11]
[11]See s 280(1)(b) of the Criminal Procedure Act 2009.
In respect of proposed ground 2, the applicant submitted that a sentence of 12 months’ imprisonment followed by a two year CCO was beyond the range of sentences available for a person in the applicant’s circumstances, ‘particularly after the application of the principle of totality’.
In support of that contention, the applicant noted that the charge of trafficking was a charge of trafficking simpliciter, and there was no actual distribution of the substances alleged. Moreover, the duration of the offending was during a single day, and the judge found the offending to be ‘an amateurish, chaotic and haphazard attempt to create a pre-workout mixture, rather than a commercial operation’.
While the applicant conceded that charge 2 was a serious example of possessing a drug of dependence because of the quantity of the drug found, it was to be noted that the applicant and his girlfriend were heavily addicted to drugs and it was not possible to determine exactly how much of the drug was kept for trafficking purposes — except that it was ‘substantial’.
As to the remaining charges on the indictment (charges 3 to 14) these were all said to involve offences the objective seriousness of which was low.
In relation to totality, the applicant’s counsel noted the fact that the applicant had been in continuous custody since 3 February 2017, a period comprising 48 days’ imprisonment imposed in the Magistrates’ Court in June 2017, 15 months’ imprisonment for offending dealt with in the County Court on 3 November 2017, in respect of which a non-parole period of 8 months was fixed, and 213 days of presentence detention that was referable to this offending. As a result of his circumstances, the applicant missed an opportunity to apply for parole in respect of the 3 November 2017 sentence. It was submitted that a proper application of the principle of totality disclosed that the sentence imposed was manifestly excessive.
Additionally, as counsel for the applicant noted, the applicant was 25 at the time of his offending. He had pleaded guilty, demonstrated some remorse and had reasonable prospects of rehabilitation.
In response, the Crown submitted that the sentence imposed by the judge was a lenient one when the entire criminality of the applicant’s conduct was considered. Significantly, the sentence imposed included ‘entire concurrency’ for separate and discrete offending captured by 10 further summary offences of varying levels of seriousness.
Moreover, at the time the applicant committed the offences the subject of this application, he was on bail. This meant that unless the Court otherwise directed, there was a presumption of cumulation pursuant to s 16(3C) of the Sentencing Act 1991.
The Crown submitted that charge 1 was a serious example of trafficking simpliciter. It was contended that so much was obvious from the total quantity of drugs involved in relation to that charge — namely, some 2.8 kilograms. Charge 2 was also submitted to be a serious example of the offence charged, involving as it did a quantity of 1,4–4 butanediol in excess of 1.6 kilograms (that is, possession of more than 32 times the traffickable quantity for that drug).
Finally, the Crown emphasised that the applicant’s plea of guilty was a late one, occurring not long before trial was due to commence; and the applicant had highly relevant prior convictions for trafficking and possessing drugs.
Resolution of this application
The Crown conceded that the judge erred when she imposed an aggregate term of imprisonment on charges 1 to 14, accepting that the judge did not consider that the charges varied significantly in their seriousness. That concession may, with respect to the judge, be accepted for present purposes. While it may have been appropriate to impose an aggregate sentence in relation to charges 3 to 14 on the indictment, the offending constituting charge 1 was significantly more serious than the offending constituting charges 3 to 14. It was, in the circumstances, not appropriate to impose an aggregate sentence covering all of those charges.
The position with respect to whether an aggregate sentence should have been imposed on charge 2 together with charges 3 to 14 is less certain. That question does not, however, need to be resolved in the present application, having regard to the Crown’s concession of error, and our acceptance of that concession, in relation to the imposition of an aggregate sentence that included charge 1.
Notwithstanding the error properly conceded by the Crown, this application for leave to appeal must be refused. The judge carefully took into account all relevant matters when sentencing the applicant — including all of those relied upon by the applicant in mitigation. The offending on charge 1 was undoubtedly serious, notwithstanding the fact that there was no actual distribution of the drugs involved. Similarly, the offending on charge 2 was a serious example of the charge of possessing a drug of dependence.
Moreover, notwithstanding the seriousness of some of the offending involved in the summary offences, all of the sentences of imprisonment imposed for those offences were ordered to be served concurrently with the aggregate sentence imposed on charges 1 to 14. And this occurred in the face of the presumption of cumulation provided for by s 16(3C) of the Sentencing Act 1991, which had application in this case.
When one examines the totality of the applicant’s offending, one is driven to accept the submission made by the Crown that the total effective sentence imposed by the judge was, if anything, a lenient one. In our view, not only was the sentence reasonably open to the judge, there is no reasonable prospect that this Court would reduce the judge’s sentence despite the error of imposing an aggregate sentence on all of the charges on the indictment.[12]
[12]See s 280(1)(b) of the Criminal Procedure Act 2009.
Conclusion
The application for leave to appeal against sentence will be refused.
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