Dordevic v The Queen

[2016] VSCA 166

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0043

SLOBODAN DORDEVIC	Appellant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 July 2016
DATE OF JUDGMENT:	18 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 166
JUDGMENT APPEALED FROM:	DPP v Dordevic (Unreported, County Court of Victoria, Judge Wilmoth, 27 November 2015)

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CRIMINAL LAW —Appeal — Sentence —Trafficking in methylamphetamine and other offences — Appellant with low IQ — Whether judge failed to apply Verdins principles —Whether sentence manifestly excessive as a result — Sentence of 23 months’ imprisonment with two year CCO — Whether error in failing to impose non-parole period — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A J Patton	Valos Black & Associates
For the Respondent	Mr B F Kissane QC	Mr John Cain, Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA:

Sentences and grounds of appeal

1. Pursuant to leave granted by Maxwell P on 27 May 2016, the appellant appeals against a sentence imposed in the County Court on 27 November 2015 on three grounds:

1. The total effective sentence imposed was manifestly excessive in that the sentencing judge failed to impose sentences in accordance with the principles in Verdins.

1A. The sentencing judge erred in failing to consider the Verdin’s (sic) principles raised in the written plea submissions which had been filed and relied upon by Counsel for the applicant during the oral plea hearing, other than Verdin’s (sic)  principle 1;

—the sentencing judge erred in considering only the issue of moral culpability in applying the Verdin’s (sic) principles;

—the sentencing judge erred in failing to address principles of general and specific deterrence and the question of whether prison would be more burdensome for the applicant in accordance with the principles in Verdin’s (sic) case.

2. The Sentencing Judge erred in failing to impose a minimum non parole period in all the circumstances.

1. The appellant was sentenced according to the following table:

Charge	Offence	Sentence	Cumulation
1	Trafficking in a drug of dependence[1] (methylamphetamine)	18 months	Base
2	Trafficking in a drug of dependence (cocaine)	15 months	2 months
3	Prohibited person possessing a firearm[2]	9 months	1 month
4	Prohibited person possessing a firearm	9 months	-
5	Prohibited person possessing an imitation firearm[3]	3 months	-

[1]Drugs, Poisons and Controlled Substances Act 1981, s 71AC. The maximum penalty is 15 years’ imprisonment.

[2]Firearms Act 1996, s 5(1). The maximum penalty is 10 years’ imprisonment (or 1200 penalty units).

[3]Control of Weapons Act 1990, s 5AB(2). The maximum penalty is 10 years’ imprisonment (or 1200 penalty units).

Charge		Offence	Sentence	Cumulation
6		Store firearm in an insecure manner whilst unlicensed[4]	4 months	-
7		Knowingly possess counterfeit money[5]	1 month	-
Summary offences
9		Possess prohibited weapons without exemption or approval[6]	6 months	-
10		Deal with property suspected of being proceeds of crime[7]	6 months	1 month
12		Contravene personal safety intervention order[8]	2 months	-
13		Commit an indictable offence whilst on bail[9]	1 month	1 month
Total Effective Sentence		23 months’ imprisonment; 2 year CCO with 80 hours of unpaid community work over 6 months
Non-Parole Period		None
Pre-sentence Detention		76 days
6AAA Statement		3 years and 3 months’ imprisonment, with a non-parole period of 2 years and 6 months
Other orders		•    Supervision, treatment and rehabilitation for drug abuse and dependency and mental health, participation in programs or courses addressing offending behaviour and judicial monitoring •    Forfeiture Order •    Disposal Order

[4]Firearms Act 1996, s 129A. The maximum penalty is four4 years’ imprisonment (or 240 penalty units).

[5]Crimes (Currency) Act 1981 (Cth), s 9(1). The maximum penalty is 10 years’ imprisonment.

[6]Control of Weapons Act 1990, s 5AA. The maximum penalty is 2 years’ imprisonment (or 240 penalty units).

[7]Crimes Act 1958, s 195. The maximum penalty is 2 years’ imprisonment.

[8]Personal Safety Intervention Orders Act 2010, s 100. The maximum penalty is 2 years’ imprisonment (or 240 penalty units).

[9]Bail Act 1977, s 30B. The maximum penalty is 3 months’ imprisonment (or 30 penalty units).

The offending

1. On 13 January 2015, police executed a search warrant at the appellant’s premises in Cranbourne North. 

1. Police found the following items in the house, rear shed and appellant’s car,  and on the appellant’s person:

·cash totalling $1,995.00 (charge 10, deal with property suspected of being proceeds of crime);

·a knife with a curved, double-edged blade (charge 9, possessing a  prohibited weapon without exemption or approval);

·a paintball gun with the paintball hopper and gas cylinder removed, located on a bedside table (charge 3, prohibited person possessing a firearm; charge 6, storing a firearm in an insecure manner whilst unlicensed);

·four plastic bags weighing 109 grams containing methylamphetamine;

·two small zip lock bags weighing 6.7 grams containing methylamphetamine;

·a large zip lock bag weighing 20.6 grams containing methylamphetamine;

·a plastic bag containing numerous ‘deal bags’;

·two zip lock bags weighing 7.6 grams containing a white crystal cutting agent;

·        two large zip lock bags weighing 765.5 grams containing a white powder cutting agent;

·        a plastic bag containing a large number of ‘deal bags’;

·        a counterfeit $50 note (charge 7, knowingly possess counterfeit money);

·        a ‘break-open’ single barrel air rifle, located next to a cupboard (charge 4, prohibited person possess firearm; charge 6, store firearm in an insecure manner whilst unlicensed);

·        a homemade double-edged knife (possessing a prohibited weapon);

·        a sword (possessing a prohibited weapon);

·        a pair of nunchakus (possessing a prohibited weapon);

·        a silver imitation handgun (charge 5, prohibited person possessing an imitation firearm);

·        a black travel case containing portable scales, empty deal bags and two zip lock bags containing methylamphetamine and cocaine;

·        cash totalling $680.00 located on the appellant.

1. In total, police seized 154.1 grams of methylamphetamine (‘ice’) — the total quantity of pure methylamphetamine being 119 grams — and 5.5 grams of cocaine (charges 1 and 2, trafficking in a drug of dependence).

1. On 11 May 2014, the appellant had been charged with making a threat to kill and was bailed.  The present offences were committed whilst the appellant was on bail for that offence (charge 13, committing an indictable offence whilst on bail).

1. Further, on 22 August 2014, the Magistrates’ Court had issued a personal protection intervention order against the appellant. In breach of that order, the appellant had contacted its subject, ‘SS’, in excess of one hundred occasions between 1 October 2014 and 11 December 2014 (charge 12, contravening a personal safety intervention order).

1. Police interviewed the appellant on 13 January 2015.  He made the following admissions:

·the items seized by police belonged to him;

·he purchased five ounces (141 grams) of methylamphetamine for $30,000 approximately one week prior to the police search;

·he had sold approximately $1,000 worth of methylamphetamine since purchasing it;

·when he got the methylamphetamine, he ‘spread’ it to a couple of people that he knew ‘to take it’, or said to them that he had ‘stuff’, so that they usually came to him;

·he believed that he could mix the methylamphetamine with a cutting agent and sell it for double;

·he had been collecting knives;

·he usually kept the weapons behind the cupboard because of the kids;

·he had a lot of trouble at his house and had to protect himself and his family;

·he had a daily ice habit of one gram a day;

·he had been served with an intervention order;

·he had been in regular contact with the subject of the order, SS, who owed him money, and who had been buying drugs off him and contacting him for work;

·he had asked his wife to go to SS’s house and ask for money.

Grounds 1 and 1A — Verdins

1. On the plea, counsel for the appellant sought to rely on Verdins[10] principles.  Those principles are:[11]

   [10]R v Verdins (2007) 16 VR 269.

   [11]Ibid 276 [32] (footnote omitted).

Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentencing in at least the following six ways:

1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

1. In this Court, it was submitted that in imposing sentence the sentencing judge failed to give effect to principles two and five.  

1. Dr Lindsay Vowels, a neuropsychologist who had carried out an assessment of the appellant at Port Phillip Prison on 11 September 2015, produced a report, Exhibit 2.  She also gave evidence on the plea hearing.

1. In her report, Dr Vowels said that it was apparent form testing that the appellant ‘is currently demonstrating several significant cognitive disabilities’, the principal of these being ‘Acquired Brain Impairment’ (‘ABI’).  Results of the application of the Wechsler Adult Intelligence Scale (Fourth Edition) were reproduced in the following table (which, significantly, showed that the appellant had a probable full-scale IQ of 61, putting him at the 0.5 percentile):

Full Scale Scores:	Probable range at the 95% confidence	Level	Percentile Rank
Verbal Comprehension	58 probable range	54–65	0.3
Perceptual Reasoning	75 probable range	70–82	5th
Working Memory	69 probable range	64–78	2nd
Processing Speed	62 probable range	57–74	1st
FULL SCALE IQ	61 probable range	58–66	0.5

1. Dr Vowels also stated in her report:

There were also strong indications of a Moderate Dysexecutive Syndrome with problems with perseveration, impaired new learning, reduced abstract reasoning, incapacity to shift between ideas, marked adynamia (spontaneity to initiate and maintain activity) and moderate disinhibition.  Planning and organisation was inefficient and with evidence of a form of apraxia.  These disabilities have resulted in limitations to problem solving and decision making which, according to the current observations would be considered as disabling in everyday life and certainly responsible for much of his repeated criminal offending and irresponsible interpersonal behaviours.  The difficulties with verbal comprehension, poorer literacy, adynamia and planning and organisation would have certainly contributed significantly to his failures with compliance with the previous legal restrictions and conditions.

I have also referred to the impact of his organic cognitive disabilities on other behaviours which are related to his current offending in the report above.  His dysexecutive deficits are the most important to understand as it would account for his impulsivity, his failure to recognise the likely outcomes and his recognition that his weapons offences, drug trafficking and deceit are very wrong by all standards of moral reasoning in any culture and effect [sic] other people in a negative and frightening way.  I do not consider that he can be considered competent to keep such information in the forefront of his mind and use it to prevent himself acting inappropriately as well as his peers who have not suffered the head injuries and level of post war anxiety symptoms he has experienced.

Mood is negative and depressed and anxious but also with evidence of marked vulnerability because of his very poor self-confidence and failure to recognise outcomes of actions which he seems unable to control using the usual strategies available to most individuals.  There is no evidence of a frank psychotic disorder although some unusual thinking patterns were noted.  There is no unequivocal evidence of an overwhelming personality disorder which would increase the risk of danger to others if he were to be released to the community with support and appropriate professional supervision.  His disinhibited and at times inappropriate behaviour continues to be a concern as his ABI disabilities and his post-traumatic stress symptoms prevent him from mastering strategies to manage his behaviours and to recognise the likely outcomes of his actions.

…
His current poor control of his attention and reactivity would make ongoing adjustment to the prison system more difficult for him than for other people who did not have his longstanding condition.  With his low intelligence and obvious need for the ongoing moral support and practical overseeing (albeit at a distance and in an unusual way) of his family to maintain his lifestyle in the community. [12]

[12]Emphasis added.

1. Dr Vowels’ finding that the appellant has an IQ of 61 does not sit comfortably with the known facts.  By his conduct — and by his own admission — the appellant’s thinking was sufficiently organised that he had purchased $30,000 worth of ice a week before his arrest, intending to cut it and sell it ‘for double’.  He had sold ice for $1,000 in the interim, and, indeed, possessed the paraphernalia that one would expect necessary to carry out a successful operation trafficking in illicit drugs (including cutting agents in both crystal and powder form, ‘deal bags’, and a variety of weapons).  Notwithstanding that this is so, however, we did not take Dr Vowels’ opinions to be the subject of any serious challenge under cross-examination by the prosecutor.  Indeed, the closest the prosecutor came to challenging Dr Vowels’ assessment of the appellant’s IQ was when she asked Dr Vowels, ‘how much of [the appellant’s] offending can be linked to this very low IQ as opposed to drug use?’, Dr Vowels answered:

I think they’re an interacting one because if you have longstanding organic brain damage from a head injury, then the impact of alcohol or other illicit substances such as marijuana, tends to be greater in terms of reducing intellectual or cognitive efficiency.  So that you’ve got an interacting effect of those, and certainly I’d agree it would appear that he was able to function reasonably well, you know as a father and as a citizen and all the other things, until that particular thing started.  

1. On the plea, counsel also relied on a report by a clinical psychologist, Dr John Di Battista, dated 18 August 2015 (Exhibit 1).  He had engaged in seven sessions of psychotherapy with the appellant between 31 July and 10 December 2014, and diagnosed the appellant as having major depressive disorder and post-traumatic stress disorder.

1. In her sentencing remarks, it seems that likely the judge endeavoured to address specifically the first Verdins principle, but made no reference to any of the other principles or whether any of them applied in the appellant’s case.  The judge said:

You are finding prison difficult, missing your family and knowing your sons are finding your absence difficult.  The decision in the case of Verdins applies in your case, meaning that because of the problems diagnosed by Dr Vowels and Dr Di Battista, your criminal culpability is somewhat lessened and so I must modify the sentence to some degree.[13]

[13]Our emphasis.

1. Although the judge referred to ‘criminal culpability’ as being ‘somewhat lessened’, we think it is probable that her Honour intended a reference to the first Verdins principle, and meant to convey that ‘moral culpability’ was reduced.  The judge accordingly saw the need to ‘modify the sentence to some degree’.

1. The appellant’s counsel submitted that it was plain, however, that the judge made no specific reference to the second or the fifth Verdins principles.  On a superficial level, that submission is correct, but only in the sense that she did not refer in terms to ‘principle 2’ or ‘principle 5’.  In our opinion, when one has regard to the overall tenor of her Honour’s remarks, it becomes clear that the judge had — without using the Verdins ‘label’ — taken into account the kinds of considerations which flow from the second and fifth principles.  It is necessary to turn to what the judge said.

1. In her reasons for sentence, the judge recognised the need for general deterrence and just punishment with respect to drug trafficking.  She also recognised the need to take into account the appellant’s ‘particular circumstances’.  Included in those circumstances were that the appellant, aged 45 years, was born in Germany of a Serbian family and migrated to Australia aged two years.  After the death of his father, the appellant went to Croatia with his mother.  The appellant left home at age 14, and worked as a woodcutter.  After war erupted in 1991, he was conscripted into the Serbian militia, and later the Serbian Army, where he remained for six years.  The appellant was captured by Croatian forces and tortured, likely causing a moderately severe post-traumatic stress disorder.  He returned to Australia at the war’s end in 1996, married and had children.

1. The judge noted that Dr Vowels’ report, and the evidence she gave, assisted in explaining how the appellant appeared ‘to have changed from a relatively conforming citizen to an offender’.  Her Honour said that the ‘acquired cognitive deficits [Dr Vowels] found as a result of the tests she administered, together with her other observations of such characteristics as impaired ability to learn new material, poor long term memory and poor self-confidence, helped to explain why [the appellant] became involved in criminal activities’.  Importantly, the judge noted that Dr Vowels considered that the appellant will need assistance when released from prison, preferably by means of a case manager trained to work with the problems of acquired brain injury, otherwise the appellant’s ‘impulsivity and vulnerability to manipulation may raise the risk of reoffending’.

1. Further, the judge noted that despite his anxiety, the appellant had been using his time in prison well and had impressed the authorities sufficiently to have been appointed as a disability mentor, a position gained only by those prisoners who have demonstrated consistent, good and responsible behaviour.  He had also taken part in courses and participated well.  Thus, so it seems to us, the judge expressly turned her mind to whether the appellant’s condition meant that a sentence of imprisonment would weigh more heavily on the appellant than it would on a person in normal health — having earlier observed that the appellant was ‘finding prison difficult’ — thereby implicitly invoking the fifth Verdins principle.

1. Ultimately, the sentencing judge thought that there were indications that the appellant could succeed in his rehabilitation, subject to having appropriate support.  That support could be provided by means of a CCO to be served once he had completed a term of imprisonment.  In our opinion, the expression of these views demonstrate that her Honour had steadily in mind the considerations flowing from the second Verdins principle — the condition ‘may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served’.

1. Having regard to the foregoing, grounds 1 and 1A, as argued in this Court, are not made out.  But so that there can be no doubt about it, insofar as ground 1 asserts that the total effective sentence imposed was manifestly excessive ‘in that the sentencing judge failed to impose sentences in accordance with the principles in Verdins’, in our opinion, rather than being manifestly excessive, the sentence imposed is lenient.  That leniency can only properly be explained, in our view, by the judge having taken into account to the full extent all relevant Verdins considerations.

Ground 2 — Failure to fix a non-parole period

1. Ground 2 is without substance.

1. By imposing a sentence of 23 months’ imprisonment, the judge avoided engaging s 11(1)(b) of the Sentencing Act 1991, which provides that a sentencing court must fix a non-parole period when sentencing an offender to be imprisoned for a term of two years or more (‘unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate’).[14]  Thus, s 11(2) — which provides that a court may impose a non-parole period on a sentence of more than one, but less than two, years’ imprisonment — was apposite.

   [14]See Debono v The Queen [2016] VSCA 16 (Weinberg and McLeish JJA); Deng-Mabior v The Queen [2015] VSCA 179 (Maxwell P, Weinberg and Kyrou JJA); Abdou v The Queen [2015] VSCA 359 (Redlich and Beach JJA and Beale AJA). See also DPP v Grech [2016] VSCA 98, [72] (Ferguson JA, Weinberg AP and Ashley JA concurring); DPP v Basic [2016] VSCA 99, [33]–[34] (Weinberg AP, Redlich and Ferguson JJA).

1. By virtue of s 11(1), it was not mandatory that the judge fix a non-parole period. And it is plain that her Honour had turned her mind to the issue of a non-parole period. Having announced the sentences that she proposed, the following exchange occurred:

[DEFENCE COUNSEL]:  Your Honour, is that intended to be a straight sentence with no minimal (scil, minimum) non-parole period?

HER HONOUR:  Yes. If it is less than two years the court may fix a non-parole period, but it does not have to.

[DEFENCE COUNSEL]:  Yes, I understand.

There was no attempt by counsel to suggest that the fixing of a non-parole period was appropriate, let alone address reasons why such a course might be desirable.

1. Acknowledging the differences between supervision on parole, and supervision under a CCO, the imposition of a non-parole period in this case would have been somewhat superfluous.  The CCO imposed is of two years’ duration; requires the appellant to undergo 80 hours of unpaid community work over six months; requires the appellant to undergo drug assessment and treatment, and to be assessed and treated for mental health issues; and requires the appellant to attend programs designed to reduce his reoffending.  Moreover, the CCO was made subject to judicial monitoring.  Plainly, the judge’s intention is that the appellant will, upon his release from custody, be subject to relatively intense supervision.  Parallel supervision on parole — on the assumption that it was granted — during the time that the CCO was extant, would serve little practical purpose.

1. There is nothing in ground 2.

Further observations

1. Since error has not been demonstrated, there is no occasion to re-sentence the appellant. We should, however, make some observations about the sentence imposed. In particular, it needs to be made clear that a sentencing judge ought not seek artificially to structure sentences of imprisonment so as to avoid the mandatory requirements of s 11(1) of the Sentencing Act 1991.

1. The first thing to notice about the sentence imposed in this case is that the individual sentences invite scrutiny.  For example, the judge passed a sentence of 18 months’ imprisonment on the first charge, which involved 154.1 grams of methylamphetamine.  That seems a remarkably lenient sentence when regard is had to the fact that the appellant previously was sentenced to be imprisoned in October 2007 for trafficking LSD, amphetamine and cannabis, and for the attempted trafficking of ecstasy, and in circumstances where the appellant had purchased methylamphetamine for $30,000 with a view to cutting it so as to sell it to others (he possessing the accessories necessary to facilitate such trafficking).  Moreover, the sentence of 15 months’ imprisonment on the second charge — involving only 5.5 grams of cocaine — does not sit well with the sentence of 18 months’ imprisonment on charge 1.  That is, the sentence on charge 1 is a mere three months greater, despite it involving 28 times the quantity of illicit drugs.

1. Next, the orders for cumulation between the sentences on various charges are structured in such a way as to arrive at a total effective sentence that is one month less than a sentence that would otherwise have engaged s 11(1). It appears to have been a contrivance, designed to avoid the need to impose a non-parole period that would otherwise have arisen. Resorting to a ‘device’ to avoid the mandates of s 11(1) conflicts with principle. A sentencing judge is required to impose proportionate sentences on each charge, and orders for cumulation that — consistently with the principle of totality — reflect the overall criminality of the offender.

Conclusion

1. None of the grounds having been made out, the appeal must be dismissed.

1. We should add that s 44 of the Sentencing Act appears to have led to a spate of 23 month terms of imprisonment, combined with CCOs.  Many of these sentences are problematic.  The legislature should, in our view, reconsider the operation of that section as a matter of some urgency.

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