De Luca v The King
[2022] VSCA 224
•19 October 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0074 |
| RICHARD DE LUCA | 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 224 |
| JUDGMENT APPEALED FROM: | [2022] VCC 703 (Judge Dalziel) |
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CRIMINAL LAW – Appeal – Sentence – One charge of attempted trafficking in drug of dependence, 1 charge of theft, 1 charge of prohibited person in possession of firearm, 1 charge of trafficking in drug of dependence, 1 charge of knowingly dealing with proceeds of crime and 3 related summary offences – Total effective sentence of 6 years, 3 months’ imprisonment, non-parole period of 4 years, 3 months – Whether sentence manifestly excessive – Application for leave to appeal granted in part.
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| Counsel | |||
| Applicant: | Ms H Canham | ||
| Respondent: | Ms J Warren | ||
Solicitors | |||
| Applicant: | Sarah Tricarico Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KYROU JA:
Introduction and summary
On 10 February 2022, the applicant pleaded guilty to the charges set out in the table below and, on 16 May 2022, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v De Luca [2022] VCC 703 (‘Sentencing remarks’).
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Attempted trafficking in a drug of dependence [s 71AC(1) Drugs, Poisons and Controlled Substances Act 1981 (‘DPCSA’)] 15 years 3 years, 6 months Base 2 Theft [s 74 Crimes Act 1958] 10 years 1 year 6 months 3 Prohibited person in possession of a firearm [s 5(1) Firearms Act 1996] 10 years 2 years, 6 months 1 year 4 Trafficking in a drug of dependence [s 71AC(1) DPCSA] 15 years 9 months 2 months 5 Knowingly dealing with proceeds of crime [s 194(2) Crimes Act] 15 years 1 year, 6 months 6 months Related Summary Offences 7 Dangerous driving [s 64(1) Road Safety Act 1986 (‘RSA’)] 2 years 1 year 6 months 11 Unlicenced driving [s 18(1)(a) RSA] 6 months 3 months 1 month 12 Driving while exceeding the prescribed concentration of drugs [s 49(1)(bb) RSA] 12 penalty units $750 fine — Total Effective Sentence: 6 years, 3 months Non-Parole Period: 4 years, 3 months Section 6AAA Statement: 8 years; Non-Parole Period 6 years Other Relevant Orders: Charge 7: all licences cancelled and disqualified for 6 months; Charge 12: all licences cancelled and disqualified for 12 months
The applicant now seeks leave to appeal on the following ground:[2]
That the individual sentence on charge 1, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive. In particular, that:
(a)The sentence on charge 1 is manifestly excessive; and
(b)The learned sentencing judge erred in the application of the principles of totality.
[2]In these reasons, the proposed ground of appeal is referred to as the ground of appeal.
For the reasons that follow, the application for leave to appeal will be granted in the terms set out at [59] below.
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, Ruslan Abdullayev, Mathew Gray and Domenic Luzza. As part of the investigation, various individuals were the subject of lawful intercepts. Through these intercepts, the police became aware that Luzza was tracking a consignment on the Direct Freight Express website.
This consignment had been ordered from a business in Altona and was addressed to a Peter Davies at an address in Pascoe Vale. It was established that the latter address was of a defunct business and that no person named Peter Davies was linked to the consignment.
On 12 August 2019, police executed a search warrant at the Direct Freight Express warehouse where the consignment was being held. They found that the consignment consisted of eight 25 litre plastic drums containing a clear liquid substance, with the drums each packaged in a cardboard box. The substance was 1,4-Butanediol, which is a drug of dependence listed in the DPCSA. It is a solvent which, when consumed, is metabolised by the body to become GHB. The weight of the 1,4-Butanediol in the drums was 200.2 kilograms. At the time of the offending, a commercial quantity of 1,4‑Butanediol was 2 kilograms and a large commercial quantity was 20 kilograms. The police substituted the substance in the drums with water and repackaged the drums in their original boxes, and then arranged a controlled delivery of the drums.
On 13 August 2019, Gray went to the delivery address. A police covert operative, acting as the driver of a delivery truck, called the number on the consignment and spoke with someone who identified himself as Peter Davies and who said that he was at the delivery address. One minute later, Abdullayev contacted the applicant by telephone. Seconds later, the applicant tried to call Gray and, when that call was not answered, he immediately called again. Gray answered the telephone and had a short conversation with the applicant. Mobile phone towers placed Abdullayev and Gray in the Pascoe Vale area and the applicant in the Prahran area. A short time later, Gray left the delivery address, approached the delivery truck and asked if the driver was there to deliver to the address. He told the driver that the driver would have to help him carry the items inside. Gray assisted the driver to unload the eight boxes.
The prosecution case was that Abdullayev answered the call from the delivery person using the pseudonym ‘Peter Davies’ and that he then called the applicant who in turn called Gray so that Gray would meet the delivery driver.
Police maintained surveillance on the delivery address.
In the minutes after the boxes had been delivered, Gray called the applicant, who in turn called Abdullayev. Two minutes later, Abdullayev pulled up outside the delivery address in a van and called Gray using the consignment phone number to tell Gray he was there. A short time later, Abdullayev reversed the van into the delivery address, and he and Gray loaded the boxes into the van. As Abdullayev drove away with the boxes, he called the applicant’s number three times. The applicant’s phone was registering at phone towers in Prahran and Richmond.
At 3:05 pm, around an hour after the consignment had been delivered, Abdullayev pulled up outside the applicant’s home in Kew East. At that time, the applicant was using a stolen black Volkswagen Golf vehicle (charge 2, theft). Around 10 minutes later, the applicant came outside and approached Abdullayev’s van. The applicant put an item in the Volkswagen, returned inside his house and came out again carrying a white box. He showed the white box to Abdullayev and then put it in the Volkswagen. He then entered the van with Abdullayev. A few minutes later, the applicant left the van and got in the Volkswagen.
At 3:55 pm, Gray contacted the applicant by phone. Following that call, the applicant and Abdullayev drove in their respective vehicles to Abdullayev’s home in Reservoir. Abdullayev parked his van in the driveway and the applicant parked in the street. They both went to the side and rear doors of the van, before entering Abdullayev’s home. The applicant then drove away, but returned five minutes later. Abdullayev called the applicant’s mobile phone. Around 10 minutes later, the applicant and Abdullayev each took a box from the van inside the house. The prosecution case was that, when the applicant and Abdullayev were inside the house, they discovered that the drums in the boxes contained water. They placed the two boxes with the two drums back in the van, got into their respective vehicles and drove to another street in Reservoir, where Abdullayev entered the applicant’s car.
The events described at [7] to [12] above constitute charge 1 (attempted trafficking in a drug of dependence).
The police moved in to arrest the applicant and Abdullayev. The applicant reversed his vehicle at speed and, in the process, collided with a car driven by a member of the public, Ian Edmonds. Edmonds suffered fractured ribs and a fracture to his right thumb. His vehicle, which was valued at $35,000, was extensively damaged and was written off. At this time, the applicant was unlicensed and was under the influence of methylamphetamine. These events constitute the three summary charges.
Upon arrest, the applicant and the Volkswagen were searched. He was found to be in possession of a small bag containing a white crystal substance. The police found the following in the Volkswagen: a loaded .22 calibre semi-automatic pistol containing 10 rounds; an OPPO mobile phone; two iPhones; $6,000 in cash; a bag containing a white crystal substance; and a loose white crystal substance. At that time, the applicant was a prohibited person under the Firearms Act, giving rise to charge 3 (prohibited person in possession of a firearm).
The OPPO mobile phone had been used for the consignment phone number. The prosecution case was that the person who answered that number was Abdullayev.
Later that evening, the police searched the applicant’s home, where they found digital scales, two bags containing a white crystal powder and the box for the OPPO phone. The white crystal substance seized from the Volkswagen, the applicant and his home was found to be methylamphetamine, with a total weight of 26.1 grams (charge 4, trafficking in a drug of dependence). A traffickable quantity under the DPCSA is 3.0 grams.
The Volkswagen was later subjected to a more thorough search. It was ascertained that the vehicle had been stolen around nine days earlier and that ‘cloned’ number plates had been put on it, namely, number plates that were associated with that type of vehicle. Police located the original number plates of the Volkswagen, multiple cloned number plates, the applicant’s wallet containing $655 in cash, a Blackberry phone, a money counter and a vacuum sealer in a white box.
Charge 5 (knowingly dealing with proceeds of crime) relates to the cash of $6,000 and $655 that was found in the Volkswagen and the applicant’s wallet, respectively.
Following his arrest on 13 August 2019, the applicant was remanded in custody. He was released on bail 225 days later, on 24 March 2020. His bail was revoked on 14 May 2021.
The applicant’s personal circumstances
The applicant was 31 years of age at the time of the offending and 33 at the time of sentencing.
The applicant grew up in Kew and had a comfortable upbringing. He has a younger brother and sister. He completed Year 12 with low results.
The applicant’s parents separated in his mid-teens and he began abusing drugs around that time. He tried amphetamine, cannabis and MDMA when he was around 15. By the age of 17, he was using methylamphetamine daily and, at the age of 18 to 19, he was also using GHB. He worked in clubs as a DJ and was selling drugs. He also began to offend. By the age of 19, he was in custody.
The applicant has a significant criminal history.
In 2008, when the applicant was 20 years of age, he was sentenced to 14 months’ imprisonment, 12 months of which was suspended, for possession of and trafficking in drugs of dependence, possession of a prohibited weapon, dealing with property suspected of being the proceeds of crime and associated offences. In 2010, he was sentenced to a total effective sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years for trafficking in a drug of dependence in a commercial quantity, possession of drugs of dependence, possession of a prohibited weapon and dealing with property suspected of being the proceeds of crime. In 2014, he was sentenced to 12 months’ imprisonment with a non-parole period of 4 months for possession of a drug of dependence and handling stolen goods. In 2017, he was sentenced to 310 days’ imprisonment and a community correction order of 12 months for a number of offences, including theft of a motor vehicle, possession of methylamphetamine and other drugs, reckless conduct endangering serious injury, dangerous driving, using false registration plates, failing a drug blood test within 3 hours of driving and unlicensed driving.
On 4 June 2019, 10 weeks prior to the current offending, the applicant was sentenced to a 2 year drug treatment order (‘DTO’) for the offences of being a prohibited person in possession of a firearm, trafficking in heroin, possessing methylamphetamine, dealing with property suspected of being the proceeds of crime, resisting an emergency worker on duty, unlicensed driving and providing a false name.
At the time of the current offending, the applicant was serving the DTO. The urine screens he provided under the DTO were positive for methylamphetamine from June 2019 until his arrest on 13 August 2019 for the current offending, and also showed the presence of other drugs and prescription medication.
After the applicant was released on bail for the current offending on 24 March 2020, he participated in the Salvation Army Bridge program (a residential drug and alcohol rehabilitation program) until 11 August 2020. For the rest of 2020, he continued to engage with the DTO, but in March 2021 his participation diminished. In April 2021, he was again remanded in custody for new offending, having relapsed into the use of methylamphetamine. While on remand, he received counselling from a drug counsellor, Karly Doyle, in December 2021 and January 2022.
In the 11 years between June 2008 and June 2019, the applicant spent 9 years and 3 weeks in custody.
Plea hearing
At the hearing of the plea, the applicant tendered a number of documents, including a report dated 2 February 2022 by Ms Doyle and a report dated 24 January 2022 by a psychologist, Pamela Matthews.
In her report, Ms Doyle stated that the applicant had engaged well with her and he appeared to be motivated to make significant positive changes in his life and to progress his rehabilitation once he was released from custody.
In her report, Ms Matthews stated that the applicant presented with features of borderline personality disorder. She opined that he met the criteria for a drug abuse disorder and that he would need long-term support and a long-term commitment to change in order to become drug free.
The applicant wrote a letter to the Court in which he stated that, at the time of the offending, his focus was not on its consequences but simply on obtaining free drugs. He said that the Bridge program was of real benefit to him and that he now had the tools to fight his addiction. He also apologised to the driver of the vehicle that he damaged.
Judge’s sentencing remarks
In assessing the gravity of the offending the subject of charge 1, the judge took into account the observation in Director of Public Prosecutions (Cth) v Maxwell[3] that the fact that the drug dealt with by an offender has a low value compared to other drugs may be relevant to sentencing considerations such as the gravity of the offending and general and specific deterrence because of the lower profits to be made from the sale of a low value drug.[4] The judge stated that of more importance was the limited role performed by the applicant and the fact that he was not to be sentenced on the basis that he was going to receive any of the proceeds of sale.
[3](2013) 228 A Crim R 218, 223 [21], 226–7 [34]–[36]; [2013] VSCA 50 (‘Maxwell’).
[4]It was common ground that 1,4-Butanediol has a lower value than some other drugs such as methylamphetamine.
In assessing the applicant’s moral culpability for charge 1, the judge took the following matters into account:
(a)The applicant was not the person who placed the order for the drug.
(b)The applicant did all he could to take possession of the drug and that the charge was one of attempt only because the substance in the eight drums had been replaced with water.
(c)The applicant took an active role in the collection of the drug, being part of the chain of contact between the delivery service and the receiver, Gray.
(d)While Abdullayev was using the OPPO phone on 13 August 2019, the box in which it had been packaged was found in the applicant’s home, suggesting that he provided the phone to Abdullayev.
In relation to charge 2, the judge stated that it was not alleged by the prosecution that the applicant was the original thief of the Volkswagen. However, she noted that he took steps to disassociate the car from its actual ownership by having cloned plates on it.
The judge described the applicant’s possession of the firearm while he was a prohibited person (charge 3) as a serious offence. She noted that the firearm was loaded and was in the Volkswagen in the context of the transportation of a drug of dependence. She found that this offending belonged ‘in a more serious category than, for example, someone who had a gun stored in a cupboard in their house, unloaded’.[5]
[5]Sentencing remarks, [30].
The judge assessed the applicant’s prospects of rehabilitation as ‘guarded at best’.[6] She stated that ‘there remains a risk of [the applicant] relapsing [into drug use] again, and committing offences again’[7] and that ‘it will be difficult for [him] to stay clean and out of trouble’.[8]
[6]Sentencing remarks, [58].
[7]Sentencing remarks, [55].
[8]Sentencing remarks, [58].
The judge treated the applicant’s plea of guilty as ‘an early plea’ and stated that it gave rise to ‘significant mitigation in [his] sentence, by reason of the utilitarian value of the plea in the context of the [COVID-19] pandemic and its effects on the operations of the courts’.[9] The judge also noted that the applicant had expressed some remorse for his offending and stated that she ‘will afford [him] a degree of mitigation of [his] sentence’ for the time he spent in residential rehabilitation as part of the Bridge program.[10]
[9]Sentencing remarks, [60].
[10]Sentencing remarks, [59]. The judge referred to Akoka v The Queen [2017] VSCA 214.
The judge noted that the passage of time between the applicant being charged and his sentence gave him the opportunity to work on his rehabilitation and he made progress in that area despite setbacks.
The judge described general deterrence as a ‘powerful factor’ for drug offences and the offence of possession of a firearm while a prohibited person and carried ‘real importance’ in sentencing the applicant.[11] She stated that specific deterrence carried more weight for the applicant than for Abdullayev.
[11]Sentencing remarks, [67].
The judge noted that, although the applicant’s offending was confined to a single day, it encompassed a number of different types of criminality.
Applicant’s submissions in relation to the ground of appeal
The applicant submitted that his offending the subject of charge 1 can be appropriately characterised as ‘mid-range’. However, he contended that the sentence of 3 years and 6 months’ imprisonment for that charge was manifestly excessive due to: the limited nature and duration of his role in the offending; the offence being trafficking simpliciter; and the fact that the drug was 1,4-Butanediol.
In relation to his role, the applicant relied upon the judge’s findings that he played a limited role, he was not the person who placed the order and he would not receive a share of the proceeds of sale. He also relied upon the fact that the offending was confined to the afternoon of 13 August 2019.
In relation to the offence being trafficking simpliciter, the applicant observed that caution was required to avoid the total weight of the 1,4-Butanediol in the present case being used to sentence him for a more serious offence.
In relation to the drug being 1,4-Butanediol, the applicant relied upon Maxwell and submitted that this drug had a lower potential for financial reward upon sale compared to other illicit drugs.
The applicant also relied upon the fact that the plea proceeded on the basis that he did not know the nature or volume of the drug in the drums and was to be sentenced on the basis that he was aware of the real and substantial risk that he was being asked to deal with a drug of dependence.
The applicant submitted that the orders for cumulation for charges 2 to 5 and the three summary offences, the total effective sentence and the non-parole period were manifestly excessive because the judge erred in her application of the principle of totality. That principle was said to require that the overall sentence must be a just and appropriate measure of the total criminality involved.[12] He contended that the judge failed to have regard to the significant temporal and substantive overlap between the offending involved in all of the charges, and noted that she did not refer to the principle of totality in her sentencing remarks.
[12]The applicant relied upon Postiglione v The Queen (1997) 189 CLR 295, 313.
In relation to the cumulation of 6 months for charge 2, the applicant submitted that, as he was not the original thief of the Volkswagen and the extent of his engagement with that vehicle was to use it on 13 August 2019 in connection with the attempted trafficking offence and the three summary offences, the cumulation was greater than was necessary to reflect the additional criminality involved.
In relation to the cumulation of 6 months for charge 5, the applicant submitted that the cumulation was greater than was necessary to reflect the totality of his conduct because the amount of $6,655 that was involved was not large. The applicant noted that the judge did not address the objective seriousness of the offending the subject of charge 5.
In relation to the cumulation of 2 months for charge 4, the applicant submitted that the cumulation was manifestly excessive because it involved only 26.1 grams of methylamphetamine. The applicant relied upon the fact that, on the plea, the prosecutor accepted that the gravity of the offence the subject of charge 4 was at the lower end of the range of seriousness.
The applicant contended that, after determining the individual sentences and the orders for cumulation, the judge failed to ‘stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose’, as required by the totality principle.[13] He argued that the addition of 2 years and 9 months’ imprisonment to the base sentence by virtue of the orders for cumulation for charges 2 to 5 and the three summary charges caused the total effective sentence and the non-parole period to be manifestly excessive.
[13]The applicant relied upon DPP (Cth) v Haidari (2013) 230 A Crim R 134, 146 [49]; [2013] VSCA 149.
Decision on the application for leave to appeal
In my opinion, it is not reasonably arguable that the sentence on charge 1 is manifestly excessive.
Although the applicant was sentenced on the basis that he was not aware of the precise nature or weight of the drug he attempted to traffick, nevertheless the quantity of the drug was substantial. Having physically handled the boxes and obtained an appreciation of the weight of the contents of the drums, the applicant must have known that the quantity of the drug in the eight drums was significant. In these circumstances, a sentence of 3 years and 6 months’ imprisonment for attempted trafficking in a significant — though non-commercial — quantity of 1,4-Butanediol, in the context of a maximum penalty of 15 years, cannot be regarded as wholly outside the range of sentences reasonably available. The analysis in Maxwell does not detract from this conclusion.
The judge accepted that the applicant’s role was ‘limited’. However, she also found that he did all he could to take possession of the drug and played an active part in the collection of the consignment and was part of the chain of contact between the delivery service and the receiver. The charge was confined to attempted trafficking rather than actual trafficking only because the drug had been substituted with water by the police. An aggravating feature of the offending was that the applicant was serving the DTO on 13 August 2019.
Although the judge did not make a specific finding concerning the applicant’s moral culpability, the factors that she took into account, as set out at [35] above, do not indicate that it was at the lower end of the spectrum.
I accept that the applicant was able to rely upon weighty mitigating factors including, in particular, his plea of guilty in the context of the pandemic, the existence of some remorse and the steps he took towards his rehabilitation, especially the time he spent in residential rehabilitation as part of the Bridge program. However, the judge found that his prospects of rehabilitation were ‘guarded at best’ and that there was a risk that he would reoffend. This risk and the applicant’s extensive criminal history rendered specific deterrence an important sentencing consideration. Moreover, as found by the judge, general deterrence was a ‘powerful factor’ in the present case.
In relation to the totality principle, I have concluded that, notwithstanding the submissions made by the Crown — to which it is not necessary to refer — it is reasonably arguable on the basis of the applicant’s contentions that the orders for cumulation rendered the total effective sentence and the non-parole period manifestly excessive.
Conclusion
For the above reasons, I will grant the applicant leave to appeal on the following reformulated ground:
The orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive on the basis that the learned sentencing judge erred in the application of the principle of totality.
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