Djemal v The Queen
[2020] VSCA 25
•19 February 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0145
| EFKAN DJEMAL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | NIALL and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 February 2020 |
| DATE OF JUDGMENT: | 19 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 25 |
| JUDGMENT APPEALED FROM: | [2019] VCC 966 (Judge Coish) |
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CRIMINAL APPEAL – Sentence – Possession of equipment for trafficking a drug of dependence – Possession of small amounts of drugs and precursor chemicals – Firearms offences – Possession of a traffickable quantity of unregistered firearms – Whether judge misunderstood gravity of offending conduct – Whether sentence manifestly excessive –Ground not reasonably arguable – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr C M Terry | Marcevski Lawyers |
| For the Respondent: | Ms G A Coghlan | Ms A Hogan, Solicitor for Public Prosecutions |
NIALL JA
WEINBERG JA:
Introduction
The applicant pleaded guilty to seven indictable offences and eight related summary offences that relate to three broad categories of offending. First, possession of equipment for trafficking a drug of dependence. Second, possession of relatively small amounts of various drugs or precursor chemicals, being MDA, MDMA, methylamphetamine, cannabis, pseudoephedrine and ephedrine. Third, possession of a traffickable quantity of unregistered firearms and possession of other controlled or prohibited weapons.
Following a plea of guilty, on which the applicant accepted that a period of imprisonment was open to the sentencing judge, the applicant was sentenced as follows:
Charge on Indictment J11373648
Offence
Maximum
Sentence
Cumulation
1. Possession of substance, material, document or equipment for trafficking a drug of dependence
(s 71A of the Drugs, Poisons and Controlled Substances Act 1981)10 years 24 months Base 2. Possession of a drug of dependence
(s 73 of the Drugs, Poisons and Controlled Substances Act 1981)
5 years / 1 year non-trafficking purpose 2 months 1 month 3. Possession of a drug of dependence
(s 73 of the Drugs, Poisons and Controlled Substances Act 1981)
5 years / 1 year non-trafficking purpose 14 days — 4. Possession of a drug of dependence
(s 73 of the Drugs, Poisons and Controlled Substances Act 1981)
5 penalty units Fined $300 — 5. Possession of a drug of dependence
(s 73 of the Drugs, Poisons and Controlled Substances Act 1981)
5 years / 1 year non-trafficking purpose 4 months 2 months 6. Possession of a traffickable quantity of unregistered firearms
(s 7C of the Firearms Act 1996)
1200 penalty units or 10 years 10 months 5 months 7. Non-prohibited person possess unregistered paintball marker
(s 6A(4) of the Firearms Act 1996)
120 penalty units or 2 years 3 months 1 month Related Summary Offences 5. Possess prohibited weapon without exemption or approval — taser
(s 5AA of the Control of Weapons Act 1990)
240 penalty units or 2 years’ imprisonment 2 months 1 month 6. Store unauthorised explosive — smoke grenades
(s 54(5) of the Dangerous Goods Act 1986)
100 penalty units
Fined $400 — 7. Possess controlled weapon without excuse — knives
(s 6(1) of the Control of Weapons Act 1990)
1 year 3 months 1 month 8. Possess prohibited weapon without exemption or approval — sling shot
(s 5AA of the Control of Weapons Act 1990)
240 penalty units or 2 years’ imprisonment 14 days - 9. Possess prohibited weapon without exemption or approval — cross bow
(s 5AA of the Control of Weapons Act 1990)
240 penalty units or 2 years’ imprisonment 1 month — 10. Possess prohibited weapon without exemption or approval – swords and machetes
(s 5AA of the Control of Weapons Act 1990)
240 penalty units or 2 years’ imprisonment 3 months 1 month 14. Fail to properly store category A or B firearm in the manner prescribed
(s 121(1) of the Firearms Act 1996)
12 months 1 month — 19. Possess schedule 4 poison without license or authority - Ephedrine
(s 36B of the Drugs, Poisons and Controlled Substances Act 1981)
10 penalty units Fined $250 — Total Effective Sentence: 3 years’ imprisonment Non-Parole Period: 2 years’ imprisonment Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act1991: 396 days 6AAA Statement: 4 years’ imprisonment with a non-parole period of 2 years and 6 months. Other relevant orders: Disposal and Forfeiture orders made by consent.
The applicant seeks leave to appeal his sentence on two grounds. The first proposed ground, which alleges specific error and is confined to charge 1, contends that the judge erred in characterising that charge as a ’serious example of the offence’ and this erroneous characterisation had a significant impact on the sentence imposed. The second proposed ground contends that the individual sentences imposed on charges 1 and 6, the head sentence and the non-parole period are manifestly excessive.
Circumstances of the offending
The applicant was intercepted by police in his car, arrested and searched. A glass pipe for smoking methylamphetamine and a zip lock bag containing a crystal substance were found in the applicant’s jacket. Following his arrest, two search warrants were executed at the applicant’s home and the offending items were located.
Charge 1 relates to a large quantity of scientific glassware, equipment, solvents, chemicals and handwritten notes detailing a method for the recovery of iodine from iodine tinctures, all of which were found at the applicant’s premises. The equipment was capable of being used for the manufacture of methylamphetamine although the various components were located in a cupboard and were in a disassembled state.
Charges 2 to 5 and summary charge 19 related to the discovery of 1.2 g of MDA, 0.4 g of MDMA, 0.1 g of methylamphetamine (recovered as washings from the equipment used for manufacture), 4 g of cannabis, 20.1 g of pseudoephedrine and 5.5 g of ephedrine.
Of the firearm offences the most serious was charge 6, possession of a traffickable quantity of unregistered firearms, which related to a cache of firearms found in three full-length lockers secured with padlocks, comprising a 6 mm air pistol, a .32/22 six-shot starting pistol, a 12-gauge double barrel shotgun, a .30-30 Winchester carbine lever action rifle and three air rifles. The remaining weapons charges related to an unregistered paintball marker gun, a taser, two smoke grenades, a quantity of knives, a sling shot, two crossbows, and 10 swords and two machetes.
Circumstances of the applicant
The applicant was 56 years of age at the time of the offending. He is married with three adult children and had emigrated to Australia from Cyprus when he was 13 years old, completing the equivalent of year 11. He has a good work record as a self-employed concreter and has also worked in the security industry at licensed venues for many years. The applicant has two prior convictions dating from 1991 and 1992, which the judge regarded, correctly, as of limited relevance to the present offending.
The applicant commenced illicit drug use at 48 years of age but his drug use has not been heavy. Since the applicant was remanded, his wife has been diagnosed with cancer and has been receiving treatment; this has weighed heavily upon the applicant. The applicant tendered a number of references and testimonials describing him as a caring husband and a good family man with a good work ethic.
Ground 1
In the critical impugned passage of the judge’s reasons he said:
Against these matters in mitigation however your actions were very serious indeed. The most serious charge is Charge 1, possession of substance, material, document or equipment for trafficking a drug of dependence. Whilst these items were not set up as a clandestine laboratory and there is no evidence of trafficking or enrichment the sheer volume of items in your possession makes this a serious example of this offence. There were approximately 200 items in your possession in respect of Charge 1. I do not accept that this could be characterised as a low-level example of such offending.
The applicant pleaded guilty to possession of equipment for trafficking a drug of dependence. For the purpose of the Drugs, Poisons and Controlled Substances Act 1981, ‘traffick in relation to a drug of dependence’ includes its manufacture.[1] By virtue of his plea of guilty the applicant accepted the elements of the offence which constitute charge 1; namely, that he had in his possession equipment for the purpose of trafficking a drug of dependence. The small amounts of methylamphetamine that were recovered from the equipment demonstrated that the equipment could be used for the manufacture of that drug.
[1]Drugs, Poisons and Controlled Substances Act 1981, s 70(1).
The applicant did not submit to the judge that the equipment was to be used for the manufacture of drugs for his own personal use. In the absence of that submission and evidence in support of it, the compelling inference is that the equipment was in the possession of the applicant for the manufacture of drugs to be supplied or sold to others.
Approximately 200 items were located at the applicant’s home. This was a significant quantity of equipment, much of it specialised in nature, such as glass vessels, pipettes, clamps, tubing, test tubes and electrical equipment, all of which one might expect to find in a chemical laboratory. Most of the equipment is obviously designed and fit for purpose rather than fashioned from household items. In addition, there were large amounts of precursor chemicals iodine, hypophosphite salt and phosphorous acid. The evidence established that the amount of pseudoephedrine the applicant had in his possession at the time the search warrants were executed was capable of being used to produce between 13.9 g and 21.1 g of methylamphetamine.
We reject the submission that the judge was precluded from drawing an inference as to the scale of the operation in the absence of evidence as to the quantity of drugs that might be produced from the quantity of equipment found. The judge did not need to know the precise quantity of drugs that might be manufactured in order to draw a conclusion that the assembly of the equipment involved investment and planning, and would have permitted an operation of some scale and sophistication. The amount of equipment found in the applicant’s possession was obviously related to the gravity of the offending.
The fact that the items were disaggregated rather than set up as a laboratory supported a conclusion that further preparatory steps needed to be taken to make a working laboratory. Undoubtedly, the possession of a fully operational laboratory of a commercial scale would be a more serious example of the offence. Nonetheless, the volume of equipment and chemicals in the applicant’s possession supported the judge’s conclusion that this was serious offending.
It is not seriously arguable that the judge misapprehended the objective gravity of the offence. Of course, as the applicant identified in his submissions, it is possible to find other examples of more egregious offending of this kind such as in Mokbel v The Queen,[2] Lipp v The Queen[3] and Kim v The Queen,[4] each of which involved more serious offending. However, in each case they attracted substantially longer terms of imprisonment than was imposed here. They do not falsify the judge’s assessment.
[2][2011] VSCA 106.
[3][2013] VSCA 384.
[4][2019] VSCA 149.
We reject ground 1.
Ground 2
In order to establish that a sentence is manifestly excessive, it is necessary to demonstrate that the sentence is wholly outside the range permitted in the proper exercise of the sentencing discretion. It is by no means an easy hurdle to surmount.
The offending in charge 1 called for a sentence that placed general deterrence as a high order consideration. The equipment was in the applicant’s possession for the manufacture of drugs. As noted, the drugs to be manufactured using the equipment were not confined to drugs intended for the applicant’s personal use.
The applicant pleaded guilty and had no relevant prior criminal history. His plea of guilty had utilitarian value and reflected genuine remorse. The judge found that the applicant’s prospects of rehabilitation are good.
Notwithstanding the matters that warranted a degree of moderation in the sentence, general deterrence and denunciation are important factors in offending of this kind. The offence targets preparatory conduct and seeks to prevent and disrupt the manufacture and distribution of drugs which cause great harm to the community. Sentences imposed on those who participate in the manufacture of drugs or who possess equipment for that purpose must reflect the importance of deterrence.
Although some of the weapons in question were air rifles, which may have been in the applicant’s possession for recreational purposes, the applicant possessed a significant number of weapons with varying capacity to cause serious injury or death. The accumulation of weapons, in a domestic setting, is a serious matter. The nature and quantity of the weapons is significant. The applicant did not provide a reasonable explanation for possessing the weapons.
The maximum term of imprisonment for possession of a traffickable quantity of unregistered forearms is 10 years’ imprisonment. As explained in DPP v Fleiner,[5] the offence of possession of a traffickable quantity of unregistered firearms is based upon s 7C of the Firearms Act1996. The purposes of that Act are to give effect to the principle that the possession of firearms is conditional on the need to ensure public safety and peace by establishing appropriate systems for licensing them, and for the regulation of their possession, carriage and use, for dealing in them and acquiring and disposing of them, and for their registration and secure storage.
[5][2010] VSCA 143.
Given the protective purpose of the provision, the risks that attend the accumulation of weapons and the difficulty of detection, general deterrence was also important to the firearms offences and especially to charge 6.
Charge 6 called for a term of imprisonment. It is not reasonably arguable that a term of 10 months, with five months cumulation on the base sentence, was outside the range open to the judge to impose at his discretion.
There is no merit in the submission that the sentence on charge 6 was wholly outside the permissible range.
Conclusion
The application for leave to appeal against sentence must be refused.
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