Domenic Quadara v The Queen
[2017] VSCA 260
•20 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0085
| DOMENIC QUADARA | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGES: | TATE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined ‘on the papers’ |
| DATE OF JUDGMENT: | 20 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 260 |
| JUDGMENT APPEALED FROM: | [2017] VCC 366 (Judge Pullen) |
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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal – Multiple charges of trafficking in a drug of dependence – Possess a drug of dependence – Possess tablet press – Possess traffickable quantity of unregistered firearms – Handling stolen goods – Total effective sentence of six years and four months’ imprisonment – Non-parole period of four years – Cumulation between two indictments – Offending on second indictment occurred while on bail for offences on first indictment – Whether reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Slink & Keating Solicitors |
| For the Respondent | No appearance | Mr J Cain, Solicitor for Public Prosecutions |
TATE JA:
The applicant, Domenic Quadara (‘Quadara’) pleaded guilty in the County Court to charges that arose from events on 29 April 2015 and events on 29 September 2016. The April 2015 events gave rise to two charges of trafficking in a drug of dependence, and one charge of possession of a drug of dependence. These charges were brought by Indictment F11493545 (‘the first indictment’). In addition, the April 2015 events gave rise to three summary charges, to which Quadara also pleaded guilty, and to which he consented being transferred to the County Court. The September 2016 events gave rise to one charge of possession of a traffickable quantity of unregistered firearms, three charges of trafficking in a drug of dependence, one charge of possession of a table press and two charges of handling stolen goods. These charges were brought by Indictment G12693769 (‘the second indictment’). In addition, the September 2016 events gave rise to two further summary charges, to which Quadara also pleaded guilty, and to which he consented being transferred to the County Court.
After a plea hearing on 6 March 2017 he was sentenced in respect of all charges on 4 April 2017. [1] With respect to the April 2015 offences, he was sentenced as follows:
[1]DPP v Quadara [2017] VCC 366 (‘Reasons’).
Offence Maximum penalty Sentence Cumulation Charge 1 on the first indictment Trafficking in a drug of dependence (methylamphetamine)
[Drugs, Poisons and Controlled Substances Act 1981 (‘DPCS Act’) s 71AC]15 years’ imprisonment 2 years’ imprisonment Base Charge 2 Trafficking in a drug of dependence (cocaine) 15 years’ imprisonment 6 months’ imprisonment 1 month Charge 3 Possess a drug of dependence (cannabis) [DPCS Act s 73] 5 penalty units $200 - Summary charge 6 Possess prohibited weapon [Control of Weapons Act 1990 s 5AA] 1200 penalty units or 10 years’ imprisonment 6 months’ imprisonment 2 months Summary charge 7 Possess cartridge ammunition without licence/permit [Firearms Act 1996 s 124] 40 penalty units $100 - Summary charge 8 Deal with property suspected to be the proceeds of crime [Crimes Act 1958 s 195] 2 years’ imprisonment 6 months’ imprisonment 2 months Total effective sentence: 2 years and 5 months’ imprisonment
With respect to the September 2016 offences, he was sentenced as follows:
Offence Maximum penalty Sentence Cumulation Charge 1 on the second indictment Possession of a traffickable quantity of unregistered firearms [Firearms Act s 7C] 10 years’ imprisonment 2 years’ imprisonment 9 months Charge 2 Trafficking in a drug of dependence (MDMA) 15 years’ imprisonment 18 months’ imprisonment 6 months Charge 3 Trafficking in a drug of dependence (alprazolam) 15 years’ imprisonment 2 years’ imprisonment Base Charge 4 Trafficking in a drug of dependence (methylamphetamine) 15 years’ imprisonment 12 months’ imprisonment 4 months Charge 5 Possession of a tablet press [DPCS Act s 71C] 600 penalty units or 5 years’ imprisonment or both 2 years’ imprisonment 12 months Charge 6 Handling stolen goods [Crimes Act s 88] 15 years’ imprisonment 18 months’ imprisonment 6 months Charge 7 Handling stolen goods 15 years’ imprisonment 6 months’ imprisonment - Summary charge 2 Deal with property suspected to be the proceeds of crime 2 years’ imprisonment 9 months’ imprisonment 3 months Summary charge 9 Possess cartridge ammunition without licence/permit 40 penalty units $250 - Total effective sentence: 5 years and 4 months’ imprisonment
The judge ordered that 12 months of the sentence imposed on the offences in the first indictment (and associated summary offences) be served cumulatively on the sentence imposed on the second indictment (and associated summary offences). This resulted in a total effective sentence as follows:
Total effective sentence: 6 years and 4 months’ imprisonment Non-parole period: 4 years Pre-sentence detention: 196 days S 6AAA statement: 9 years’ imprisonment with a non-parole period of 6 years. Other orders: Forfeiture and disposal orders.
Quadara now applies for leave to appeal his sentence on the sole ground that it is manifestly excessive.
Circumstances of the offending
The April 2015 offences
The April 2015 offences occurred when Quadara was aged 25. At approximately 11:55 am, the police attended his property where he was sitting on the front porch. The police advised that they had a warrant to enter and search the property. Quadara gave the police access to the property and when asked whether there were any drugs in the house, he told them there was some cannabis and methylamphetamine in a ‘Peter Jackson’ black bag in the kitchen as well as a small bag of ‘ice’ under the bin in the same room. He told them that everything in the bag was his.
The police removed a heater duct in the hallway and discovered the Peter Jackson black bag. That black bag contained, in addition to the cannabis and methylamphetamine described, two plastic bags of cocaine, $13,590 in cash, and two digital scales. In the kitchen, underneath a bin, the police found a small black bag which contained a number of plastic bags, one of which had 0.2 grams of a crystallised substance in it. In summary, the following quantities of drugs were found in the property:
·253 grams of methylamphetamine at 82-83% purity (294.4 grams gross) (charge 1);
·5.1 grams of cocaine (charge 2); and
·8.4 grams of cannabis (charge 3).
The police also found a Taser (summary charge 6) and a single shotgun ammunition cartridge (summary charge 7).
In the study, the police found two receipts showing large cash deposits for the purchase of a Holden Commodore. The police seized the car, but subsequently returned it to Quadara in exchange for a bank cheque of $16,395. In total, the police found $31,005 suspected to be the proceeds of crime, including $1,020 found on the accused, $13,950 in the Peter Jackson black bag, and the bank cheque of $16,395 (summary charge 8).
Quadara was taken to the Carrum Downs Police Station where he remained mute throughout the interview. He pleaded guilty after an application for summary jurisdiction was refused.
The September 2016 offences
The September 2016 offences occurred when Quadara was aged 26 and on bail for the April 2015 offences. On 29 September 2016 the police executed another search warrant on his property. They found a set of keys that included a ‘fob key’ they believed to be for a self-storage facility. The police executed a search warrant on the storage shed which the fob key opened. The shed was leased in the name of Quadara’s girlfriend. The police discovered various firearms, ammunition, stolen goods, drugs and drug-making paraphernalia, and cash deemed to be the proceeds of crime.
The following firearms, the subject of charge 1 on the second indictment (possession of a traffickable quantity of firearms), were found in the storage shed:
·a Kimber semi-automatic handgun, in a locked tool-box opened with a key on Quadara’s keyring;
·a Baikal 12 gauge shotgun;
·a Lithgow bolt action firearm;
·a Lithgow shortened firearm;
·a revolver; and
·a pen pistol.
The drugs and drug-making equipment discovered in the storage shed included:
·snap-lock bags containing ecstasy (MDMA) pills, found in a ‘Book safe’ that was opened by Quadara’s keys, and other plastic bags containing ecstasy pills, in the total quantity of 68.1 grams (charge 2);
·Xanax (Alprazolam) tablets in the quantity of 3.5 kilograms (charge 3);
·snap-lock bags of methylamphetamine in the quantity of 54.9 grams (charge 4), found in a strong box opened by a key on Quadara’s keyring; and
·a mains power-operated pill press (charge 5).
The stolen goods the subject of charge 6 on the second indictment (handling stolen goods) were a Krico semi-automatic .22 calibre firearm and a Kimber .325 calibre rifle. They were later identified as having been stolen in earlier burglaries.[2]
[2]It was not alleged that Quadara was involved in those burglaries.
A key on Quadara’s keyring opened a safe found to contain $26,600 which was deemed to be the proceeds of crime (summary charge 2). Firearm ammunition was also found in separate shopping bags (summary charge 9).
Quadara was interviewed the same day as the warrant was executed. He made admissions with respect to paying for the storage unit, owning all of the goods inside the storage unit, and not having a firearms licence.
The judge’s reasons
The judge made a number of findings that were influenced by the fact that Quadara had been charged with the September 2016 offences while on bail for the April 2015 offences.
The judge took into account the fact that Quadara had pleaded guilty to all the charges at the earliest possible opportunity and that this indicated some remorse.[3] However, she noted that the extent of Quadara’s remorse was limited by his re-offending.[4]
[3]Reasons [37]–[39].
[4]Ibid [39].
Furthermore, while Quadara did not have prior court appearances, the judge considered that the nine days Quadara had spent in custody following his arrest in April 2015 before he obtained bail had not deterred him from ‘offending in a similar manner’ in September 2016.[5]
[5]Ibid [40].
At the original plea hearing for the April 2015 offences,[6] Quadara had relied on a psychologist’s report from Mr Patrick Newton. Mr Newton was relatively optimistic of Quadara’s prospects of rehabilitation, provided that he continued to participate in the appropriate treatment.[7] The judge took that into account but noted that the force of Mr Newton’s assessment of Quadara’s prospects of rehabilitation was diminished by the fact that Quadara had been charged with subsequent offending. The report indicated that Quadara had an extensive history of drug abuse but that he had found drug rehabilitation helpful. The judge described the findings of the report as follows:
You stated you had remained abstinent since your arrest. It is clear, however, you relapsed at the time of your offending on Indictment G12693769.
Mr Newton referred to you having developed positive insight into your drug problem, understanding the risk of drug use, and being able to discuss with Mr Newton a range of strategies to avoid relapse. Unfortunately, as evidenced by your offending relevant to Indictment G12693769, this did not last.
You also told Mr Newton counselling had increased your awareness of the broader social consequences of the drug trade and its pernicious effects. Again, I note such awareness not deterring you from re-offending. You told Mr Newton that not only had that awareness led to genuine remorse for your drug-related offending, but had also consolidated your motivation to remain abstinent in the longer term. Unfortunately not in the long term.[8]
[6]This was on 7 December 2016.
[7]Reasons [49].
[8]Ibid [45]–[47].
The judge noted that Mr Newton had assessed Quadara as suffering from an adjustment disorder with mixed anxiety and depressive mood.[9] In regard to Mr Newton’s report, the judge concluded:
Unfortunately, as is apparent, after being granted bail on 7 May 2015 and being aware of those charges as they progressed through the court system, initially in the Melbourne Magistrates’ Court and then the County Court, this apparent insight and motivation did not prevent you from offending on 29 September 2016.[10]
[9]Ibid [48].
[10]Ibid [50].
The judge then turned to the psychologist report of Ms Ferrari who was aware of the charges on both the first and second indictment and all related summary offences. She was also familiar with Mr Newton’s report as well as being given more information on Quadara’s family and personal history.[11] The report described an unstable upbringing with substance abuse in the home and exposure to violence. Quadara was described as having difficulty paying attention at school before leaving school in Year 10 due to his substance abuse.[12] He then completed a year of a plumbing apprenticeship, undertook a personal training course and worked doing various labouring jobs before starting a successful transport company in 2013. That business was profitable until it was suspended by his arrest.[13]
[11]Ibid [51]–[52].
[12]Ibid [52]–[56].
[13]Ibid [57].
Quadara was commended for using his time in prison to complete courses, programs to assist his personal development and well-being, and work programs.[14] His partner was described as ‘a strong and positive influence’, in contrast to his two previous relationships in which his substance abuse had escalated.[15] The report included reference to a brief episode of care for drug-induced psychosis, although he did not require in-patient admission, and noted that Quadara had not received psychological treatment to address his early life experiences.[16]
[14]Ibid [58].
[15]Ibid [59]–[60].
[16]Ibid [61]–[62].
The judge noted that Ms Ferrari described Quadara as ‘open and honest’ regarding his use of substances. His substance abuse history involved several periods of abstinence as well as periods of heavy drug use following his father’s illness and diagnosis of leukaemia, and during times of personal hardship.[17] He expressed to Ms Ferrari remorse, embarrassment and disappointment for relapsing into substance use which led to the commission of both offences. He said that, prior to the September 2016 offences, he had extricated himself from his negative social circle and his transport business had been building steadily. However, following the theft of a car and truck damage, his functioning had markedly deteriorated. He said he had begun to associate with previous drug acquaintances and used methylamphetamine again, dealing drugs to make ends meet financially.
[17]Ibid [63], [65].
Quadara told Ms Ferrari that the drug paraphernalia in the storage unit were there as a result of a two-month drug binge. He denied that he purchased the firearms with the intention of using them maliciously. He maintained that he did not know that any of the firearms were stolen and claimed that the money was obtained through his legitimate business.[18] He expressed concern and remorse for the effect the offending had on his personal and professional relationships and stated that his time in prison had given him a chance to re-evaluate his life.[19]
[18]Ibid [66].
[19]Ibid [68]–[69].
Ms Ferrari found symptoms of depression, stress and anxiety which were ‘understandable’ give his pending court appearance.[20] The judge considered the conclusions of Ms Ferrari’s report as follows:
The author concluded you had a recurrent untreated Depressive Disorder and underlying generalised anxiety and post-traumatic stress symptoms as a result of your childhood. Ms Ferrari described your offending as impulsive and opportunistic behaviour. I am not so convinced, in particular, your drug re-offending.
Ms Ferrari referred to a number of protective factors relevant to your prognosis for rehabilitation and risk of re-offending. You maintained the support of your current partner, although I note you had her support at the time of your earlier offending but that did not deter you. You have demonstrated good insight and remorse into your offending and indicated your willingness to continue to seek further psychological treatment.[21]
[20]Ibid [70]. There was no reliance on R v Verdins (2007) 16 VR 269.
[21]Ibid [71]–[72].
Counsel for Quadara submitted that Quadara, although not a ‘young offender’, should be treated as youthful for sentencing purposes, at least with respect to the offending constituted by the April 2015 offences, for the purpose of determining Quadara’s rehabilitation prospects.[22] The judge accepted the concession of counsel that her assessment of Quadara’s prospects of rehabilitation were ‘somewhat marred’ by his offending in September 2016.[23] The judge also noted that Quadara’s counsel conceded that there was a presumption that cumulation would apply to the September 2016 offences because Quadara was on bail at the time ‘unless otherwise directed by the court’, pursuant to s 16(3C) of the Sentencing Act 1991. There was no reliance upon exceptional circumstances.
[22]Ibid [76].
[23]Ibid.
Quadara submitted he had done ‘quite well’ in the months prior to the September 2016 offences, during which he did not commit any offences. The judge characterised this period as follows:
It would appear you were able to at least manage, or contain, or abstain from drug use during that time, which is to your credit. However, of course, despite that period of abstinence when faced with financial difficulties and stress, it would seem you again resorted to not only use of drugs, but also trafficking drugs, as was the case in Indictment F11493545.[24]
[24]Ibid [79].
The judge accepted that Quadara had co-operated with the police on both occasions.[25] She also noted the absence of certain aggravating features, such as the existence of co-accused, there being no large organised enterprise of which he was a member and no violence involved in the offending.[26]
[25]Ibid [80].
[26]Ibid.
The judge took into account a number of references submitted in support of Quadara, including one from his local priest, a close family friend, an employer, his younger sister, his father and others.[27] Some of these were written prior to the offending in September 2016.
[27]Ibid [84]–[94].
Other material in support of his rehabilitation prospects included a negative screen test taken on 21 October 2016; completion certificates for the Coping with Change Program and the Managing Cravings Program; a letter from Corrections Victoria stating he was employed as a billet in the prison and had been accepted into a program to address his drug addiction; and a letter outlining his remorse.[28] Counsel for Quadara relied on Latina v The Queen[29] to submit that Quadara’s behaviour in jail should be taken into account in support of his prospects of rehabilitation. On this basis, counsel for Quadara submitted that the most appropriate disposition would be a term of imprisonment combined with a Community Correction Order (‘CCO’). In lieu of that, he submitted that a term of imprisonment involving a lengthy period on parole would be appropriate.[30]
[28]Ibid [95]–[101].
[29][2015] VSCA 102 [22].
[30]Reasons [106]–[107].
The Director of Public Prosecutions submitted before the judge that the offending was serious for a number of reasons, including that Quadara was a drug addict, he trafficked in order to fund that addiction, the drugs were in large quantities and of high quality, he had all the accoutrements to enable the trafficking enterprise, and the firearms were not purely for display purposes.[31] For these reasons, the prosecution submitted that a term of imprisonment was the only appropriate disposition and that a term of imprisonment combined with a CCO would be outside the range of appropriate dispositions.[32]
[31]Ibid [109]–[112].
[32]Ibid [113]–[114].
The judge considered the principles set out in Boulton v The Queen[33] and the punitive and rehabilitative aspects of CCOs. However, she stated that Boulton did not remove the need to take into account all of the purposes of sentencing set out in s 5 of the Sentencing Act or general sentencing principles, and nor did it remove the need to be mindful of the applicable maximum penalties. Her Honour noted the remarks of Priest JA in Hutchinson v The Queen:
[I]t should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.[34]
[33](2014) 46 VR 308.
[34](2015) 71 MVR 8, 13 [17].
The judge concluded that a term of imprisonment combined with a CCO ‘would not adequately reflect the gravity of [Quadara’s] offending, taking into account all matters personal to [him] and in mitigation of [his] sentence’.[35]
[35]Reasons [120].
As mentioned, the judge noted that she had concerns regarding Quadara’s prospects of rehabilitation but was mindful that the sentence she imposed must maximise his chances of rehabilitation as she found them to be.[36] She emphasised that his rehabilitation ‘depends upon [him] being able to remain drug free and [that] previous abstinence has not stopped [his] offending.’[37] She took into account general deterrence, specific deterrence, protection of the community, denunciation and principles of just punishment. In regard to the protection of the community the judge repeated that the likelihood of Quadara’s reoffending continued to concern her.[38]
[36]Ibid [121].
[37]Ibid.
[38]Ibid [124].
The judge concluded that a term of imprisonment with a non-parole period was the only appropriate disposition.[39] She noted that this would be Quadara’s first time in custody and urged authorities to monitor his anxiety and depression.[40]
[39]Ibid [126].
[40]Ibid [127]–[128].
As mentioned, the judge was well aware of the presumption that the sentence imposed with respect to the September 2016 offences would be ordered to be served cumulatively on the sentence imposed with respect to the April 2015 offences, because Quadara committed the September 2016 offences was on bail for the April 2015 offences.[41] The judge then imposed a sentence in accordance with the tables above.[42] Importantly, she ordered only 12 months’ cumulation from the April 2015 offences with respect to the September 2016 offences.
[41]Ibid [78], [108].
[42]See [2]–[4] above.
Is the sentence manifestly excessive?
Quadara submits that the judge erred by imposing individual sentences, making orders for cumulation and imposing a non-parole period that are manifestly excessive.
He submits that the manifestly excessive nature of the sentence is apparent having regard to his pleas of guilty at the earliest opportunity, his co-operation with police and fulsome admissions with respect to the September 2016 offences, few (if any) circumstances of aggravation across both sets of offending, his remorse, his relative youth, his personal background and his prospects of rehabilitation, as shown by his youth, his self-employment, his support network and his extended period of non-offending between the two sets of offences.
He further relies on a consideration of each set of offences separately. He submits that the sentences imposed on charges 1 and 2 on the first indictment and summary charges 6 and 8 were outside the range for like offending and in circumstances where Quadara was a young and first-time offender who had led a troubled life, especially given the quantity of the drug with respect to charge 2. He submits that the judge gave undue weight to the overall criminality across both indictments, and, in doing so, imposed sentences with respect to the offences on the first indictment and the associated summary offences which do not reflect Quadara’s level of criminality at that time. This approach, he submits, was compounded because the orders for cumulation made were on sentences that were already impermissibly high and this amounted to a degree of double punishment.
Quadara also submits that the sentences imposed on charges 1, 2, 3, 4, 5, and 6 on the second indictment were outside the range for like offending and that the judge gave undue weight to the fact that these offences occurred while Quadara was at liberty on bail. This is submitted to be manifest by the repeated reference in her Honour’s reasons to Quadara re-offending while on bail.
With respect to the orders for cumulation, Quadara submits that her Honour implicitly ‘otherwise directed’ in order to achieve the sentence which the principle of totality mandated, rather than permitting full cumulation. Had full cumulation occurred, the overall total effective sentence would have been 7 years and 9 months. However, Quadara submits, it would be fallacious to conclude that just because the total effective sentence actually ordered was less than it could have been under full cumulation, therefore the sentence he did receive was appropriate. Rather, if the individual sentences are outside the range, it follows that the total effective sentence is outside the range and this would have had an impact upon the assessment of an appropriate non-parole period.
He submits that the orders for cumulation made resulted in a head sentence that exceeded the overall criminality encompassed in the totality of the offending.
In response, the Crown submits that there has been no error in the exercise of the sentencing discretion and there is no basis for a finding that a less severe sentence should be imposed.
In my view, it is not reasonably arguable that the individual sentences imposed, the orders for cumulation, or the total effective sentence are manifestly excessive.
The threshold for a finding of manifest excess is stringent. As was observed in Borg v The Queen,[43] by reference to Pham v The Queen[44] and McPhee v The Queen,[45] the difficulty for an applicant:
is that the ground of manifest excess will only succeed if the appellate court considers that the sentence is ‘unreasonable or plainly unjust’. Redlich and Priest JJA explained in McPhee v The Queen that there are considerable problems in making out the ground:
Every single human situation is unique, and the sentencing judge’s instinctive synthesis involved a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences … In order for an argument of manifest excess to be successful, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[46]
[43][2017] VSCA 71 (‘Borg’).
[44](2015) 256 CLR 550, 568 [56] (Bell and Gageler JJ).
[45][2014] VSCA 156.
[46]Borg [2017] VSCA 71 [22].
I do not consider that it is reasonably arguable that the individual sentences imposed with respect to charges 1 and 2 in the first indictment bespeak of obvious or unmistakable excess. The quantity of methylamphetamine trafficked by Quadara,[47] weighing 294.4 grams gross, substantially exceeded the prescribed threshold for a traffickable quantity for a mixture of methylamphetamine and another substance (3 grams) and constituted 58% of the prescribed threshold for a commercial quantity for a mixture (500 grams).[48] The large quantity of methylamphetamine that Quadara possessed for sale rendered it a serious example of trafficking that carries a significant maximum penalty (15 years). But it is not only the quantity which reflects the seriousness of the offence; it is rather the ownership of the accoutrements of drug trafficking including the digital scales which indicated that Quadra played an active role in trafficking. In that context, a sentence of two years’ imprisonment is not outside of the range of appropriate sentences available to the sentencing judge.
[47]See [7] above.
[48]DPCS Act, Sch 11, Pt 3.
It is true that the quantity of cocaine possessed by the applicant was not substantial,[49] the two bags containing a total of 5.1 grams of cocaine, it nevertheless exceeds the 3-gram threshold prescribed for a traffickable quantity comprising a mixture of a substance and cocaine. Moreover, the offending must be seen in the context in which Quadara was readying himself for transactions. The sentence of six month’s imprisonment was not outside the range in those circumstances and the modest cumulation, of one month, accurately reflects the fact that Quadara was trafficking in two different drugs of dependence.
[49]See [7] above.
Given the objective seriousness of the offending in charges 1 and 2, and the proper regard the sentencing judge had to the factors in mitigation, including the guilty plea, Quadara’s background of instability and violence, his relative youth, and his co-operation to police, I do not consider that it is reasonably arguable that her Honour erred by imposing a sentence with respect to charges 1 and 2 on the first indictment that took account of the overall criminality of both indictments or that there was an element of double punishment.
Furthermore, the Taser of which Quadara was found in possession (summary charge 6) is a prohibited weapon and clearly carries a risk of danger. No explanation was provided for Quadara’s unlawful possession of this weapon. The value of the proceeds of crime with which Quadara was charged, $31,500 (summary charge 8) was not insignificant. These were separate offences and the cumulation imposed with respect to charges 2 and summary charges 6 and 8 was appropriate.
With respect to the charges imposed in the second indictment, the judge was clearly correct to be conscious of the fact that Quadara committed all of the offences in the second indictment, together with the associated summary charges, while on bail. This provided a proper basis on which the earlier expressions of remorse, and the intended adoption of strategies to avoid relapse into drug-use intentions, had to be treated as qualified. The judge’s repeated reference to the re-offending while on bail is explicable given its significance.
Furthermore, the offences in the second indictment demonstrated an escalation in Quadara’s offending. There were a variety of drugs and their quantity was substantial (61.8 grams of MDMA (charge 2), 3.5 grams of Xanax (charge 3), and 54.9 grams of methylamphetamine (charge 4)). It was apparent that Quadara played a significant role in the trafficking of these drugs, possessing a table press (charge 5), and having the drugs locked in a leased storage shed, accessible to him. This showed that the trafficking was on a planned and relatively large scale. The possession of six unregistered firearms in the same shed as the site where the unlawful drugs were kept added to the very serious nature of the offending.[50]
[50]See [12] above.
In my view, it is not reasonably arguable that the sentences imposed with respect to the charges in the second indictment are manifestly excessive.
Furthermore, the cumulation of 12 months of the sentence imposed on the first indictment on the sentence imposed on the second indictment was, in my view, not reasonably arguable as being anything other than moderate.
Against that background, I do not consider that it is reasonably arguable that the non-parole period is manifestly excessive.
Moreover, even if the ground of appeal is reasonably arguable (which I consider it is not), I consider that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed. On that basis alone I would refuse leave to appeal, pursuant to s 280(1)(a) of the Criminal Procedure Act 2009.
I refuse leave to appeal against sentence.
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