Ceylan v The Queen
[2011] VSCA 318
•20 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0088 | |
| NEJAT CEYLAN | Appellant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY and WEINBERG JJA |
WHERE HELD: | MELBOURNE |
DATES OF HEARING: | 20 October 2011 |
DATE OF JUDGMENT: | 20 October 2011 |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 318 |
JUDGMENT APPEALED FROM: | DPP v Ceylan (Unreported, County Court of Victoria, Judge Chettle, 4 April 2011) |
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CRIMINAL LAW – Sentence – Trafficking in a drug of dependence (one count) and possessing a prescribed precursor chemical (one count) – Whether judge relied on appellant’s subsequent charge for possession of a precursor chemical as relevant in assessing appellant’s prospect of rehabilitation – Whether sentence imposed on appellant offended parity principle – No error demonstrated – Appeal dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S P Matters | Griffin Law Firm |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
On 1 December 2010[1] the appellant, Nejat Ceylan, a man now aged 43, pleaded guilty in the County Court at Melbourne to one count of trafficking in a drug of dependence, namely methylamphetamine, and one count of possessing a prescribed precursor chemical. The plea was entered after there had been a contested committal, following which his counsel had stated that his client was willing to plea guilty to an appropriately drawn presentment.
[1]The appellant was arraigned on 1 December 2010. On 21 February 2011, a further presentment was filed and admitted by the appellant. The allocutus was also put to the appellant.
The appellant’s plea in mitigation proceeded on 28 March 2011. He was sentenced on 4 April 2011 as follows:
| Count on Presentment | Offence | Maximum | Sentence |
| 1. | Trafficking in a drug of dependence, namely methylamphetamine | 15 years [s 71AC Drugs, Poisons and Controlled Substances Act 1981 (Vic)] | 3 years |
| 2. | Possession of a prescribed precursor chemical | 5 years [s 71D Drugs, Poisons and Controlled Substances Act 1981 (Vic)] | 3 months |
| Total Effective Sentence: | 3 years | ||
| Non-Parole Period: | 20 months | ||
| Pre-sentence Detention Declared: | 283 days | ||
| 6AAA Statement: | 4 years’ imprisonment with a non-parole period of 3 years | ||
| Other orders: Forensic Sample Order [s 464ZF(2) Crimes Act 1958 (Vic)] Disposal Order [s 77(1) Confiscations Act 1997 (Vic)] | |||
Leave to appeal
On 8 July 2011, Buchanan JA granted the appellant leave to appeal against sentence on the following grounds:
Ground 1: The total effective sentence imposed by the sentencing judge was manifestly excessive in that:
(a)it was so disparate with the sentence imposed upon the co-accused Colin Patrick White, as to engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done; and
(b)his Honour relied upon the subsequent arrest and charging of the appellant for possession of a controlled precursor as a relevant factor in assessing the future prospect of rehabilitation of the appellant.
Ground 2: The sentencing judge erred in law by taking into account in sentencing matters that were not established on the balance of probabilities, namely that the appellant possessed controlled precursor chemicals in March 2009.
Ground 3: The sentencing judge’s sentencing discretion miscarried in that he accorded insufficient weight to the appellant’s prospect of rehabilitation, as a result of finding that the appellant was in possession of controlled precursor chemicals in March 2009.
Circumstances
Count 1 – Trafficking in a drug of dependence, (methylamphetamine)
Police executed a search warrant at the appellant’s premises on 8 May 2008. They found the appellant working in a clandestine laboratory in the garage. They also found about three grams of methylamphetamine, chemicals used in the manufacture of methylamphetamine, and precursor chemicals in excess of the prescribed quantities.
The appellant was assisted in his unlawful activities by Colin Patrick White who was present at the clandestine laboratory when police executed the search warrant.
The police investigation showed that between September 2007 and May 2008 the appellant had conducted the business of trafficking in methylamphetamine. The appellant sourced, obtained and attempted to obtain various precursor chemicals – including propiophenone – to be used in the manufacture of methylamphetamine.
In his record of interview, the appellant stated that he was shown how to ‘cook’ methylamphetamine, and that he had conducted a number of ‘cooks’ prior to December 2007.
Further in his record of interview, the appellant denied selling or seeking to sell methylamphetamine. He indicated that his only reason for manufacturing was his drug-using habit. But telephone calls intercepted by police between 24 March 2008 and 7 May 2008 indicated that the appellant had either sold or attempted to sell methylamphetamine on a number of occasions.
Count 2 – Possession of a prescribed precursor chemical
Between late 2007 and early 2008, an associate of the appellant, Vincenzo Medici, obtained 20 litres of propiophenone from a chemical supplier. The supplier sourced the chemical from the wholesale supplier, Merck. That company contacted police after receiving the order. Police recorded numbers which identified the 20, 1 litre bottles which were to be delivered. Medici provided some bottles of propiophenone to an associate, Maksut Pak. The latter in turn provided the appellant with some of the chemical.
On 14 February 2008, police executed a search warrant at a premises in Brunswick. The appellant was outside the premises in his car and in it there was a bottle of propiophenone. The bottle was identified as one of the bottles despatched by Merck. The possession constituted the offending the subject of Count 2.
The appellant, in his record of interview, said that the bottle was offered to him and brought around by a friend who said he could sell it. The appellant denied knowing what was in the bottle but admitted that -
a.he bought the bottle for $15,000 but had to sell it before giving the supplier the money;
b.he was ‘hoping it was something good’;
c.the bottle contained ‘something like propiophenone’;
d.when he received the bottle, he ‘probably might’ve researched propiophenone on the internet’;
e.the contents of the bottle could ‘be used to make drugs … if you knew what you were doing’;
f.he did not know how to make drugs using the contents of the bottle and was instead hoping to sell it to make money.
Other offenders
The prosecution opening provided details of the sentence imposed upon White. He had pleaded guilty to trafficking methylamphetamine arising out of his activities with the appellant. He had been sentenced on 9 July 2010[2] for that offence, and for other unrelated offences. On the trafficking count, White had been sentenced to two years’ imprisonment.[3]
[2]By the judge who later sentenced the appellant.
[3]Transcript of Plea Proceedings, DPP v Nejat Ceylan (County Court of Victoria, Judge Chettle, 28 March 2011).
The prosecution opening also provided information concerning Medici and Pak. Medici had been found guilty of trafficking after trial. Pak and another man had pleaded guilty to trafficking. Pak had been sentenced to three years’ imprisonment on the trafficking count.
Disposition of the appeal
Grounds 1(b), 2 and 3
Relevant to grounds (1)(b), 2 and 3 is what is asserted to have been the judge’s reliance upon, or taking into account, or finding, that the appellant was in possession of controlled precursor chemicals in March 2009.
The matter arose this way. Counsel for the appellant submitted, on the plea, that, unlike White and other co-accused, his client did not ‘have any other charges though he [did] have one subsequent matter’. He expanded upon the matter by saying this:
He’s released on bail on the basis that he undergoes drug counselling and I’ve got that document and I’ll hand it up to you in a moment. He has eight sessions with a Rory Ford. Then in the way of the world, Mr Ford is transferred to another area and there’s a transfer of counsellors, and he has a relapse. Now, and in March of 2009, I don’t know who’s pointing the finger at whom here but as I understand it in March of 2009 some gentlemen opened – leased premises up at Oaklands Junction
…
The reality is this, that he was caught there on the premises.
…
There was a lab. There’s a number of other people involved and he’s denied that he was actively involved. Now, that’s to be determined.
…
He has a trial outstanding on that matter, that is to be determined.
…
But I would say this, Your Honour, without in any way trying to hinder that trial, that whether you’re giving up smoking or whether you’re on a diet, or whether you’re giving up amphetamine, relapses are probably part of the process if you’re an addict.[4]
[4]T 12 and 13.
Later in the plea, the judge appeared to state, as a fact, that one of the bottles of propiophenone purchased by Medici had been ‘located’ with the appellant at Oaklands Junction. Counsel appeared to accept that this was so, initially saying ‘yes’, and later ‘I’m told that’s about right’. The judge added that the bottle ‘might represent a problem for [the appellant] at the trial … if it be the case’.
In his sentencing remarks, the judge said this:
[11]You have one outstanding matter to be dealt with before the Courts. After your release on bail in May 2008 in respect of the matters for which I am to sentence you, you were arrested again in March 2009 at a property in Oaklands Junction where the prosecution allege you were in possession of another methylamphetamine laboratory. You are awaiting trial in respect of that matter and I was informed that such trial is listed to be heard on 29 August this year. I do not of course have regard to this matter in sentencing you for the offending to which you have pleaded guilty before me. However, your arrest and possession of precursor chemicals in March 2009, has relevant (sic) to prospects for future rehabilitation.
and
[14]… When you were finally arrested and charged in 2008, you were released on CISP bail, a condition of which was that you obtain drug counselling. You relapsed into drug use and offended again and the outstanding for the Oakland Junction methylamphetamine laboratory saw you re-arrested where you served nineteen days on remand before being re-bailed.
With respect to the appellant’s prospects of rehabilitation, the judge said this:
[18]… If you remain drug-free in the future, there are good prospects for your rehabilitation. If you do not, it is likely that you will be back before the courts again.
and
[21]I take into account in your favour the steps you have taken to substantially rehabilitate yourself. On the evidence before me, you are now drug-free and have expressed a desire to remain so in the future. You have the support of your wife and children and are clearly intelligent and able to work if you are not tormented by the burden of drugs.
and
[23][Your counsel] conceded that a term of imprisonment was the only appropriate sentence for your offending but urged that I impose a longer than normal parole period to further your prospects of rehabilitation. I have regard to that submission in sentencing you.
I am prepared to accept, despite some of what appellant’s senior counsel said on the plea, that the judge was not invited by counsel to assume, for sentencing purposes, that the appellant possessed precursor chemicals in March 2009. If the judge had acted upon such an assumption, and if it had affected the sentence which he imposed, it would have been erroneous. But I am not persuaded that he erred. Despite saying that the appellant’s arrest and possession of precursor chemicals was relevant to prospects of rehabilitation, the judge plainly stated that the appellant’s prospects were good if he remained drug free, that he had taken steps to substantially rehabilitate himself, and that he had given regard to setting a longer than usual potential parole period to further the appellant’s prospects of rehabilitation. The furthest the appellant’s counsel had gone in the plea was to say that his client’s rehabilitation was underway. The non-parole period which the judge set was in fact quite short.
Ground 1(a)
On the plea, there was this interchange between senior counsel for the appellant and the judge:
HIS HONOUR: Mr Pak had prior convictions for dishonesty and no drug matters.
COUNSEL: Yes.
HIS HONOUR: Not many of them, very similar to your client.
COUNSEL: Yes.
HIS HONOUR: He got three years. Your client’s in the same boat really isn’t he?
COUNSEL: On the top?
HIS HONOUR: Yes.
COUNSEL: And on the bottom?
HIS HONOUR: Something less? But that’s what we’re at isn’t it?
COUNSEL: Well we’re all in the same territory.
HIS HONOUR: I can’t see any – I mean the lack – the matters that you’ve urged have got a lot of similarity to Mr Pak’s problems ---
COUNSEL: Yes. Your Honour, I’ve got nothing else to say.
The judge confirmed in his sentencing remarks his conclusion that the sentence imposed on Pak was the appropriate comparator.
Now the appellant seeks to go behind what was said on his behalf by senior counsel on the plea. I see no justification for that course – either in principle, or on the facts.
Order
I would dismiss the appeal.
WEINBERG JA:
I agree.
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