Director of Public Prosecutions v Pollard

[2010] VSCA 272

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 701 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
	v
CARTER POLLARD
	Respondent

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JUDGES	BUCHANAN, NEAVE and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	8 October 2010
DATE OF JUDGMENT	8 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 272
JUDGMENT APPEALED FROM	R v Pollard (Unreported, 4 June 2009, 28 June 2009, County Court Of Victoria, Judge Gucciardo)

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CRIMINAL LAW – Director’s appeal – Trafficking in a large commercial quantity of Methylamphetamine – Respondent sentenced to four years’ imprisonment in respect of trafficking count (count 1) – Sentence manifestly inadequate – Appeal allowed – Respondent re-sentenced to five years and six months’ imprisonment on count 1.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T. Gyorffy	Mr C. Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson QC with Mr M.J. Croucher	Chester Metcalf & Co

BUCHANAN JA:

1. I will ask Weinberg JA to deliver the first judgment.

WEINBERG JA:

1. The respondent, Carter Pollard, pleaded guilty in the County Court at Melbourne on 8 May 2009 to one count of trafficking in a drug of dependence, namely methylamphetamine, in a large commercial quantity (count 1), and two counts of possessing a drug of dependence, namely methylamphetamine and MDMA (counts 2 and 3).  He also pleaded guilty to two summary charges, namely possessing a prohibited weapon without exemption (charges 6 and 7).  The weapons in question were a sword and a taser gun.

1. The respondent was subsequently sentenced as follows:

COUNT	SENTENCE IMPOSED	CUMULATION
1	48 months	base
2	6 months	1 month
3	6 months	1 month
CHARGE
6	6 months	-
7	6 months	-
Total effective sentence: 50 months Non-parole period: 36 months

1. The Director of Public Prosecutions now appeals against the sentence imposed on count 1, the total effective sentence, and the non-parole period.  The Director does not challenge the individual sentences imposed on counts 2 and 3, or

in respect of the summary charges.  Nor does he challenge the orders made for cumulation.

1. The background facts may be summarised briefly.  On 19 April 2008, the police arrested one Yassin Tarakci who admitted to having trafficked Methylamphetamine to three individuals over the previous 24 hours.  He was released on bail.  However, investigations into his activities continued.  During the investigation, police became aware that Tarakci and the respondent were frequently taking residence at various hotels in the Melbourne central business district on weekends, and that Tarakci was apparently living beyond his means. 

1. On 31 May 2008, the police learned that the two offenders had taken rooms at Rydges Hotel in Exhibition Street, Melbourne.  The respondent occupied room 1612, and Tarakci room 604.  They were conducting their trafficking enterprise from the hotel. 

1. Tarakci left the hotel in the early hours of the morning of 1 June 2008.  Shortly thereafter he was arrested.  He was in possession of a small amount of Crystal Methylamphetamine, commonly known as ‘Ice’.  Search warrants were then executed at the hotel.  Police located various drugs of dependence in room 1612, including Methylamphetamine, Crystal Methylamphetamine, MDMA (commonly know as ‘Ecstasy’) and a liquid pre-cursor known as GBH.  Also located were various documents setting out the volume of sales that had taken place during the preceding months, mobile telephones, various weapons (including a wooden handled sword and a taser gun), and drug paraphernalia, including snap-lock bags, scales and cutting equipment.  

1. The respondent was interviewed by the police and freely answered all questions put to him.  He agreed that he was Tarakci’s primary supplier of various amphetamine-type substances, including Methylamphetamine and Crystal Methylamphetamine.  He acknowledged that he had been trafficking in drugs for about three months, and that he had supplied Tarakci with about ten ounces of Ice per week, on average, throughout that period.  On reflection, he conceded that he had trafficked just over 2.5 kilograms of Ice, and that Tarakci had sold that drug to

about 30 different buyers, most of whom were involved in what he described as ‘the entertainment industry’. 

1. The drug was sold in quantities varying between 0.5 grams, and ounce lots.  On one occasion, the respondent provided Tarakci with four ounces of the drug.  The respondent said that the drug fetched about $6,900 per ounce. 

1. As stated earlier, throughout the months leading up to his arrest, the respondent and Tarakci had been checking into various inner-city hotels together for the purpose of securing ‘safe houses’ to store drugs prior to distribution.  From these hotels they would go into the central business district in order to meet and supply their customers.  The respondent admitted having kept written records of his drug dealing, and it was on the basis of those records that he assessed his own trafficking as having been in the vicinity of 90 ounces or 2,520 grams.  It was that amount which formed the basis of count 1. 

The respondent’s background

1. The respondent was 19 at the time of the offending.  He had developed an amphetamine habit over the preceding three years, initially with recreational use through the nightclub scene, and then escalating in the final six months leading up to his arrest.  His trafficking activities had been conducted largely to fund that habit. 

1. The respondent completed Year 10, where after he commenced an apprenticeship as a locksmith.  However, he did not complete that apprenticeship and commenced working in a supermarket, a bottle shop and, later, a call centre.  He came from a loving and supportive family. 

1. Michael Crewdson, a psychologist, prepared a report dated 7 May 2009 for the plea hearing.  He noted that the respondent had no major mental health issues, apart from some anxiety and depression, and a strong sense of alienation and demoralisation. 

Grounds of appeal

1. By Notice of Appeal, filed on 2 July 2009, the Director relied upon one ground of appeal, namely, that the sentence imposed in respect of count 1, the total effective sentence imposed and the non-parole period fixed were all manifestly inadequate in the circumstances.

1. Counsel for the Director submitted that the sentencing judge gave excessive weight to mitigating factors, including the respondent’s plea of guilty, his youth and his prospects of rehabilitation.[1]  It was further submitted that, in relation to this offence (trafficking in a large commercial quantity), youth played a less important role than general deterrence.[2]

   [1]R v Pollard (Unreported, 4 June 2009, 28 June 2009, County Court of Victoria, Judge Gucciardo,), [16], [21]-[23], [26], [30]-[31] and [37].

   [2]R v Thomas [1999] VSCA 204; R v Harkness [2001] VSCA 87; R v Phung (2003) 141 A Crim R 311; and DPP v McInnes [2009] VSCA 144.

1. Counsel for the Director submitted that, in fixing the sentence on count 1, the total effective sentence and the non-parole period, the sentencing judge:

i.failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

ii.failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character;

iii.failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

iv.failed to sufficiently protect the community from the offender;

v.failed to have sufficient regard to the maximum penalty prescribed for the offence;

vi.failed to have sufficient regard to the nature and gravity of the offence;

vii.failed to have sufficient regard to the offender’s culpability and degree of responsibility for the offence;

viii.failed to have regard to aggravating features of the offending, in particular –

A.the offending being of a serious nature involving trafficking in drugs of dependence at a high level in substantial quantities to a large customer base; and

B.evidence that the offender had been charged with further drug-related offences whilst on bail…

1. Counsel for the Director relied upon the Sentencing Advisory Council’s Snapshot 46 for sentencing statistics for this offence.  It was submitted that the sentence imposed fell significantly short of the median sentence imposed, that being six years’ imprisonment, for this category of offending. 

1. Counsel for the Director pointed to the maximum sentence of life imprisonment, and submitted that the appropriate range at first instance would have been of the order of eight to ten years’ imprisonment.  

1. Counsel for the respondent submitted first that the sentence imposed on count 1, the total effective sentence and the non-parole period, while lenient, were not manifestly inadequate, nor afflicted with error or ‘clear and egregious’ inadequacy.  Counsel pointed to the recent decision of this Court in DPP v McInnes[3] where a 23 year old offender had been sentenced at first instance to five years’ imprisonment with a non-parole period of two years.  In that case, the Court allowed the Director’s appeal and increased the sentence to six years’ imprisonment with a non-parole period of three years.  It was submitted that the respondent’s non-parole period was already three years, and therefore within range.

   [3][2009] VSCA 144.

1. Secondly, it was submitted that, even if the sentence imposed on count 1, the total effective sentence and the non-parole period were manifestly inadequate, the appeal should be dismissed given the application of double jeopardy,[4] the respondent’s youth and the relevance of parity among co-offenders.

   [4]R v Boxtel [1994] 2 VR 98, 104-5; DPP v Leach (2003) 139 A Crim R 64, 74-5; and DPP v Bright (2006) 163 A Crim R 538, 542-3.

1. Counsel further submitted that there was nothing in the sentencing reasons which indicated that the sentencing judge gave insufficient weight to aggravating features, or excessive weight to mitigating features.  It was submitted that his Honour carefully weighed all competing considerations and structured a sentence that reflected matters such as the nature and seriousness of the offending, deterrence, protection of the community and denunciation on the one hand, and mitigating factors and rehabilitation on the other.

Conclusion

1. In my opinion, this appeal should be allowed.  The Director has demonstrated that the sentence of four years’ imprisonment imposed on count 1, and therefore the total effective sentence of four years and two months’ imprisonment, was manifestly inadequate.

1. The sheer volume of drugs trafficked by the respondent over the three months of the offending (some two and half times the amount necessary to bring this case into the category of a large commercial quantity) called for very severe punishment.  The maximum penalty for this offence is, of course, life imprisonment.  Notwithstanding the respondent’s youth, lack of prior convictions, cooperation with the police, and his plea of guilty, a sentence of four years’ imprisonment does not, in my view, adequately reflect the gravity of the offending on count 1. 

1. The respondent’s prospects of rehabilitation, while reasonable, must be assessed against the fact that, after his arrest for these offences, he again trafficked in small but not insignificant quantities of drugs of this kind.  His having committed further offences whilst on bail in respect of these matters indicates that specific deterrence should be given some additional weight in this case. 

1. I would propose that the appeal be allowed and the sentence imposed on count 1 be set aside.  In lieu thereof, I would fix a sentence of five years and six months’ imprisonment.  In arriving at that conclusion, I have had regard to the

principle of double jeopardy which is still applicable in relation to this appeal.  But for that principle, I would have thought a sentence of six years was appropriate for that count.  With the orders for cumulation made below, that would result in a total effective sentence of five years and eight months’ imprisonment. 

1. I would not interfere with the non-parole period of three years.  That non-parole period seems to me to have been relatively high, having regard to the total effective sentence of four years and two months’ imprisonment which the sentencing judge imposed.

1. I should indicate pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, but for the respondent’s plea of guilty, I would have imposed a sentence of eight years on count 1.

BUCHANAN JA: 

1. I agree.

NEAVE JA:

1. I also agree.

BUCHANAN JA:

1. The orders of the Court will be as follows:

1.        The appeal is allowed.

2.The sentence passed below is set aside and in lieu thereof the respondent is sentenced to be imprisoned for a term of five years and six months on count 1 and for a term of six months on each of counts 2 and 3 and each of the summary charges.  One month of each of the

sentences on counts 2 and 3 are to be cumulated on each other and on the sentence on count 1.

3.The total effective sentence is five years and eight months' imprisonment.

4.It is ordered that the appellant serve a term of three years' imprisonment before he is to be eligible for parole.

5.        The orders for forfeiture and disposal made below are confirmed.

6.It is declared that at period of 501 days is to be reckoned as already served under the sentence and it is ordered that the fact that that declaration has been made and its details be entered in the records of the Court.

1. Other matters:

1. A certificate will be granted under s 15 of the Appeal Costs Act 1998.

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