DPP v Apostolopoulos
[2016] VSCA 201
•17 August 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0053
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| PANAYIOTIS APOSTOLOPOULOS | Respondent |
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| JUDGES: | WEINBERG, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 August 2016 |
| DATE OF ORDERS: | 16 August 2016 |
| DATE OF REASONS: | 17 August 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 201 |
| JUDGMENT APPEALED FROM: | DPP v Apostolopoulos (Unreported, County Court of Victoria, Judge Quin, 7 March 2016) |
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CRIMINAL LAW – Appeal – Sentence – Respondent pleaded guilty to trafficking in cocaine – Sentenced to 3-year community correction order requiring 150 hours of unpaid community work, supervision, drug and mental health assessment and treatment, and residential drug rehabilitation – Whether sentence manifestly inadequate – Compelling evidence of rehabilitation – Sentence lenient but within range – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms L A Taylor QC with Ms K Argiropoulos | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr S R Johns | Galbally & O’Bryan |
WEINBERG JA
BEACH JA
McLEISH JA:
On 7 March 2016, the respondent was sentenced to a community correction order (‘CCO’) for a period of three years in respect of a charge of trafficking in a drug of dependence (cocaine). The Director of Public Prosecutions appealed against the sentence imposed on that charge on the ground that it was manifestly inadequate. At the conclusion of oral argument, the Court ordered that the appeal be dismissed, and indicated that its reasons for decision would be published in due course. These are those reasons.
Background
On 2 June 2015, the respondent was arrested and charged with offences including trafficking in, and possession of, drugs of dependence, dealing with property suspected of being the proceeds of crime, and possession of a prohibited weapon. Following a plea of guilty, he was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence |
| 1 | Trafficking in a drug of dependence — cocaine (Drugs, Poisons and Controlled Substances Act 1981 s 71AC) | 15 years’ imprisonment | CCO for a period of 3 years |
| 2 | Possession of a drug of dependence — MDMA (Drugs, Poisons and Controlled Substances Act 1981 s 73) | 30 penalty units or 1 year imprisonment or both | Aggregate fine of $2000 |
| 3 | Possession of a drug of dependence — Cannabis L (as above) | As above | |
| 4 | Possession of a drug of dependence — diazepam (as above) | As above | |
| 5 | Possession of a drug of dependence — testosterone, nandrolone, trenbolone, oxandrolone (as above) | As above | |
| 7 | Summary charge Dealing with property suspected of being proceeds of crime (Crimes Act 1958, s 195) | 2 years’ imprisonment | Aggregate fine of $500 |
| 8 | Summary charge Dealing with property suspected of being proceeds of crime (as above) | As above | |
| 11 | Summary charge Possess a prohibited weapon (Control of Weapons Act 1990, s 5AA) | 240 penalty units or 2 years’ imprisonment | |
| Total Effective Sentence | Convicted and ordered to serve a CCO for a period of 3 years with 150 hours of unpaid community work and to pay aggregate fines of $2000 and $500. | ||
| Non-Parole Period | N/A | ||
| Pre-sentence Detention Declared | N/A | ||
| 6AAA Statement | Nil | ||
| Other Orders | Supervision, treatment and rehabilitation conditions. Forfeiture, disposal and forensic sample orders granted. | ||
Between 22 December 2014 and 2 June 2015, the respondent trafficked 204.7 grams of cocaine, comprising:
(a) 69.6 grams trafficked to a covert operative called ‘Flick’;
(b) 23.4 grams trafficked to a number of other customers, identified by police through the use of telephone intercepts;
(c) 28 grams in the respondent’s possession upon his arrest; and
(d) 83.7 grams located at the respondent’s home following the execution of a search warrant.
On several occasions between 22 December 2014 and his arrest on 2 June 2015, the respondent met with the covert operative Flick at various locations. In each instance, he sold Flick cocaine in exchange for cash. While initially the quantities tended to be reasonably small, on the final occasion the respondent was intending to provide Flick with 1 ounce, or approximately 28 grams.
On 27 February 2015 while the respondent was on holiday in Perth he was being contacted by customers wanting to purchase cocaine. The respondent arranged for an associate to provide cocaine on his behalf to a customer. Between 3 March 2015 and 5 April 2015, the respondent sold quantities of cocaine to various customers across Melbourne. These transactions were captured by a telephone intercept.
On 26 May 2015, Flick made contact with the respondent to try and obtain a ‘full one’, referring to an ounce of cocaine. The respondent stated that he did not have that much. Flick said that she could wait. On 1 June 2015, Flick sent a text message to the respondent to arrange an ounce of cocaine for the next day. On 2 June 2015, the respondent sent a message to make the delivery. He was arrested prior to the meeting.
Following his arrest, the respondent directed police to an ounce of cocaine in his pocket. The respondent’s vehicle was searched and $5625 in cash was located. This cash formed the basis of charge 7.
The respondent was taken to Moorabbin Police Station, where he declined to answer questions. Police executed a search warrant at his home in Bentleigh. The search turned up the 83.7 grams of cocaine mentioned above and part of the quantity forming the basis of charge 1, along with the drugs forming the basis for charges 2 to 5, as well as $7500 in cash (charge 8) and a taser (charge 11).
The respondent offered to plead guilty on 16 October 2015 at a further committal mention.
The plea hearing
On the hearing of the plea, the respondent contended that he had undergone a ‘genuine reformation’ since the offending. His counsel acknowledged the seriousness of the offending but drew attention to an extensive range of matters in mitigation.
The respondent grew up in the Clayton area and was 33 years old at the time of the plea. He had two sisters, 6 and 11 years older than him respectively. He was supported in court by his parents, his eldest sister (who gave evidence) and her husband, as well as two friends.
The respondent had had a very strict upbringing. He attended a Greek Orthodox school from Year 8 onwards, and regularly attended church with his family. When he was not at school, he worked in his father’s fish and chip shop. The respondent had a difficult relationship with his father, who had subjected him to physical and emotional abuse. A psychologist’s report of Mr Danny Bryant stated that the respondent suffered insecurity, anxiety and low self-esteem as a child. However, counsel submitted that, in light of what had occurred, the respondent now appreciated the values that his father had tried to instil in him. Despite the shame that he felt, the respondent had told all of his family members about his offending.
There was evidence that, when the respondent was approximately 14 years old, he was diagnosed with androgen deficiency. This condition, characterised by low levels of testosterone, delayed the onset of puberty. This impacted on the respondent’s masculine identity, particularly during his adolescence. The deficiency was treated by taking anabolic steroids monthly until he was 21. Mr Bryant considered that it was likely that the respondent was depressed and anxious at this time, and increased his drug use to alleviate these feelings.
At the age of 19, the respondent left home and began gravitating towards drug use. His use of cocaine was documented as having occurred as far back as 2003, when he was about 20 years old.
In 2007, while the respondent was working as a nightclub manager in South Yarra, a patron who had been ejected returned to the club with a gun. The respondent wrestled with the patron and shots were fired, narrowly missing the respondent. When police attended the scene, the respondent was reluctant to provide them with information on account of his fear of the patron. Eventually the police were given CCTV footage, but the respondent was charged with hindering police. He pleaded guilty and was fined $250 without conviction. Ms Mina Kobatsiari, a psychologist whom he saw on a number of occasions between 2003 and 2012, diagnosed him with post-traumatic stress disorder (‘PTSD’) as a result of this incident. The respondent had no other criminal record or matters outstanding.
It was submitted that the respondent’s trafficking in cocaine commenced in order to fund his own use of the drug. He claimed that the reason such a large quantity of cocaine was found at his home upon execution of the warrant was because Flick had begun to place orders for whole ounces. Counsel submitted that the respondent’s moral culpability was lower in light of the contributing factors of anxiety, depression, PTSD and drug use, which were linked to the trafficking.[1]
[1]Counsel relied on DPP v O’Neill [2015] VSCA 325 [96]–[97] (Warren CJ, Redlich and Kaye JJA) (‘O’Neill’).
Before the respondent told his parents of his offending, he feared that his father might not want to see him again. His father did not react in that way; to the contrary, the respondent had been living with his parents since a few months before the plea. The respondent described this as ‘life changing’. A statement by his father expressed pride in the way in which the respondent had accepted responsibility for his offending and his determination to lead a productive life.
The respondent’s eldest sister gave evidence that the respondent had been re‑engaging with his family since being charged and was very close to his nieces and nephews. She stated that he had begun coaching his nephew’s basketball team and had been invited to talk to school students about the harmful effects of drugs.
The respondent had a daughter with a previous partner. He had an amicable relationship with the mother and had, since the offending, spent a lot of time with his daughter. The respondent and the mother had discussed resuming their relationship and he considered that there was a real likelihood that this would occur.
The respondent’s rehabilitation was said to be evidenced by the reports of the psychologists already mentioned, and a third psychologist’s report of Mr Ian Joblin, along with the results of fortnightly urine screens (which were all clear), personal references and the fact that the respondent had been working in every available job that he could since his arrest. The respondent had, since the offending, worked as a delivery driver for 45 to 50 hours per week and had also recommenced a mobile DJ business. Further, the respondent had separated himself from previous associates, friends and his ex-fiancé, whom he considered would remind him of, or draw him back into, a lifestyle involving drug use.
Counsel submitted that the interests of general deterrence, punishment and denunciation could be met by a lengthy CCO that imposed punitive measures involving community work along with strict adherence to a rehabilitation program involving counselling and drug assessment.
The prosecutor sought an immediate custodial sentence. She contended that there was insufficient evidence of the respondent’s addiction (as distinct from drug use) and of the asserted link between the addiction and the offending.[2] So much was clear from the fact that the respondent was living in private rental accommodation that was characterised by the prosecutor as ‘not a shack’, and was the owner of a Saab motor vehicle and a 2014 Harley Davidson motorcycle. Throughout the course of the telephone intercepts, the respondent had gone on holidays to Bali, Queensland and Perth. This suggested that the trafficking went over and above what was necessary to fund any use or addiction.
[2]See R v Lacey [2007] VSCA 196.
The prosecutor conceded that the plea was made at an early stage and that the respondent’s prospects of rehabilitation were good. However, it was contended that the court ought to emphasise general deterrence and just punishment in its sentencing disposition. The quantity trafficked was large, albeit there was a covert operative involved, and there was a desire to supply increased amounts. The respondent had had the ability to source large quantities of cocaine in short timeframes and large sums of money were involved.
Sentencing remarks
The judge sentenced the respondent to a three-year CCO with conditions requiring 150 hours of unpaid community work, supervision, drug and mental health assessment and treatment, and residential drug rehabilitation, as directed.
The sentencing judge held that the respondent had taken ‘significant steps’ towards rehabilitation.[3] She noted that he was now drug-free, had moved back in with his parents and had engaged with family and friends not involved in drugs.[4] Most significantly, he had established a positive relationship with his father. He had found gainful employment and had voluntarily engaged in and was benefitting from psychological counselling.[5] The judge found that he had pleaded guilty at the first opportunity and was remorseful for his conduct.[6] He had gained an understanding of the effects of drugs on his own life and on the community.
[3]DPP v Apostolopoulos (Unreported, County Court of Victoria, Judge Quin, 7 March 2016) [14] (‘Reasons’).
[4]Ibid [17].
[5]Ibid [18].
[6]Ibid [16].
On the other hand, limited weight was given to the respondent’s ‘addiction’, as his trafficking activities were ‘above street level’ and he enjoyed a reasonable lifestyle from the fruits of the offending.[7] The judge also noted that the respondent had trafficked significant amounts of cocaine and was seeking to traffic in larger quantities.[8]
[7]Ibid [15].
[8]Ibid [20].
The sentencing judge stated that trafficking of the scale involved would usually warrant an immediate term of imprisonment. However, she cited McAleer v The Queen to the effect that there was no ‘feature of the offence … which require[d] the conclusion that imprisonment, with all of its disadvantages, [was] the only option’.[9] While emphasising that general deterrence, protection of the community and denunciation were important considerations in relation to drug offences, the judge ultimately concluded that the respondent’s rehabilitation warranted a disposition that allowed him to remain in the community, albeit subject to strict conditions.[10]
[9](2015) 45 VR 258, 264 [25] (Priest and Beach JJA) (‘McAleer’), quoting Boulton v The Queen (2014) 46 VR 308, 337 [120]–[121] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA) (‘Boulton’). The applicant in McAleer was charged with aiding and abetting trafficking in methamphetamine and possession of an unregistered general category handgun.
[10]Reasons [23]–[24].
Appeal
The Director appealed against sentence on the ground of manifest inadequacy. The notice of appeal particularises the ground as follows:
In imposing a Community Correction Order for a period of 3 years with 150 hours of unpaid community work, supervision, treatment and rehabilitation as directed, the sentencing judge:
(a)failed to reflect the gravity of the offence;
(b)failed to give sufficient weight to the respondent’s moral culpability in finding that:
(i)the respondent suffered from ‘disturbed psychological functioning’ at a time relevant to the offending before the Court;
(ii)that there was a connection between the offending and the respondent’s ‘disturbed psychological functioning’; and
(iii)that the respondent’s moral culpability for the offending was thereby reduced;
(c)failed to give sufficient weight to the principles of general deterrence and denunciation; and
(d)gave excessive weight to the factors in mitigation, in particular, the rehabilitation of the respondent as a sentencing consideration, by allowing this factor to overwhelm the other sentencing principles.
The principles applicable to an appeal on this ground are not in doubt:[11]
As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and the offender.
[11]DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA) (citations omitted) (‘Karazisis’), quoted in O’Neill [2015] VSCA 325 [132] (Warren CJ, Redlich and Kaye JJA).
The particulars relied on by the Director all take issue with the weight that the sentencing judge attached to particular factors. Individual arguments of that kind are ‘almost always untestable’ because the ultimate sentencing decision is arrived at by the process of instinctive synthesis without attributing quantitative significance to each individual consideration and the question on appeal is, as set out above, whether the sentence thus imposed was within the range reasonably open.[12] While the arguments can be articulated by reference to specific factors relied upon, in the end that is the only question for determination.
[12]DPP v Terrick (2009) 24 VR 457, 459 [5] (Maxwell P, Redlich JA and Robson AJA); Pesa v The Queen [2012] VSCA 109 [10]–[11] (Maxwell ACJ and Hansen JA).
In respect of the gravity of the offending, the Director contended that drug offences have consistently been characterised as a social evil.[13] In the present case, the crime carried a maximum penalty of 15 years’ imprisonment. This was a serious example of the offending. It was high‑volume and occurred regularly, involving 17 transactions over a period of more than 5 months. The respondent was conducting a successful business. His trafficking consisted of sales to numerous individuals, including a covert operative. The sales occurred at different times of day and at various locations around Melbourne. The offending involved substantial sums of money. The respondent was able to source and supply cocaine in significant amounts. As for mitigating circumstances, there was said to be no cogent evidence of addiction, or alternatively the trafficking was not engaged in merely to finance any addiction. Finally, the trafficking was clearly above ‘street level’ in character, as shown by the amount of money and drugs found at the respondent’s home.[14]
[13]See, eg, R v Piercey [1971] VR 647.
[14]See R v Bernath [1997] 1 VR 271; R v Nagy [1992] 1 VR 637.
Next, the Director submitted that insufficient weight was given to the respondent’s moral culpability. Emphasis was placed on the following paragraph in the sentencing judge’s reasons:[15]
As noted in the report of [Ms] Kobatsiari, the use of stimulant drugs allowed you to feel a sense of confidence, respect, and self-worth, disassociating yourself from your emotional and psychological distress. Unfortunately, again your treatment ended prematurely. Your counsel submitted your psychological state was such that you resorted to drug use, and that your moral culpability for this offending was thus reduced, given the connection between it and your disturbed psychological functioning. I accept that your moral culpability is reduced, though only to a limited extent.
[15]Reasons [12].
The Director submitted that the evidence did not establish that the respondent suffered from ‘disturbed psychological functioning’, that there was a connection between that and the offending, or that the respondent’s moral culpability was thereby reduced. In particular, it was noted that only one of the four psychologists’ reports that had been tendered made reference to PTSD, and that the psychologist in question had last seen the respondent more than two years before the commencement of the offending. At most, the reports established that the respondent’s anxiety and depression explained his resort to drug use.
Finally, in respect of general deterrence, denunciation and mitigating factors, the Director submitted that the sentencing judge allowed the mitigating factors relied on by the respondent to ‘swamp’ her exercise of the sentencing discretion. The Director contended that the nature of the respondent’s offending was such that general deterrence and denunciation ‘assume[d] substantial prominence’. Reference was made to the observation of Kaye AJA in Dawid v Director of Public Prosecutions[16] as to the importance that persons contemplating drug trafficking do so in the clear knowledge that, if caught, they will be sentenced in a manner that unequivocally denounces their conduct and deters others from engaging in it.
[16][2013] VSCA 64 [35].
In his submissions, the respondent drew attention to the fact that, apart from what was trafficked to Flick, he trafficked just 23.5 grams of cocaine, and that it was his contact with Flick that led to the sourcing of larger quantities. The total amount of cocaine in question was still substantially less than a commercial quantity of mixed cocaine (500 grams).[17] The respondent did not lead a lavish lifestyle and had other sources of income.
[17]Drugs, Poisons and Controlled Substances Act 1981 s 70(1) (definition of ‘commercial quantity’ para (c)(i)), sch 11 pt 3 column 2A. Trafficking in a commercial quantity is punishable by imprisonment of up to 25 years: s 71AA.
The respondent’s written submissions pointed to his history of drug use and addiction, and the ‘link’ between that history and the offending. Counsel contended that the psychological evidence was relied on only as context for the offending. It was said to be open to the sentencing judge to consider that this constituted a limited mitigating factor.
The respondent submitted that the Director had failed to establish that the sentence was not reasonably open. He submitted that a CCO may be suitable even in cases of relatively serious offending.[18] Alternatively, the Court should exercise its overarching discretion in a Director’s appeal not to intervene.[19]
[18]Boulton (2014) 46 VR 308, 338 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
[19]See DPP v Chatterton [2014] VSCA 1 [89]–[90] (Weinberg, Whelan, and Priest JJA); Karazisis (2010) 31 VR 634, 657–60 [99]–[115] (Ashley, Redlich and Weinberg JJA).
Counsel for the respondent provided the Court, by consent, with a further report of Mr Bryant, dated 1 August 2016, which confirmed that the respondent had attended a total of 25 sessions of psychological treatment since October 2015 and was currently attending on a fortnightly basis. Mr Bryant stated that the respondent had adopted an attitude to his treatment which ‘reflect[ed] a serious intention to take responsibility for transforming his life’, and that he had a very good prognosis for full recovery. On the other hand, any disruption to his treatment program would be most likely to have a deleterious effect on his rehabilitation. The respondent also produced a document showing that he was complying with the terms of his CCO, and had continued to engage with positive supports including his psychologist.
Although the onus lies on the Director to show that the residual discretion should not be exercised,[20] the Director made no written submissions on that matter. However, senior counsel for the Director accepted that the fact that the respondent was not serving a sentence of imprisonment, together with his continuing rehabilitation, were matters that could properly be taken into account in that context.
[20]DPP v Zhuang [2015] VSCA 96 [47] (Redlich, Priest and Beach JJA); DPP v Mwamba [2015] VSCA 338 [154] (Priest, Beach and Kaye JJA).
Analysis
As noted above, the question before the Court is whether the sentence imposed on the trafficking charge was wholly outside the range of sentencing dispositions available. The Director was correct to submit that the offending in this case was very serious. Trafficking in cocaine is punishable by a maximum term of 15 years’ imprisonment. As the sentencing judge observed, the conduct of a business in trafficking cocaine, although in an amount not constituting a commercial quantity, will normally attract an immediate term of imprisonment. It would have been well open to the sentencing judge in the present case to take that course.
But we do not consider that it was necessary that a proper sentence in this case included a term of imprisonment. The judge was required to balance other considerations and to impose a sentence of imprisonment only as a last resort.[21] The respondent had no relevant criminal record and had exhibited rehabilitation of a very impressive kind. His counsel rightly described his response to being charged with the present offences as ‘exemplary’. His approach is to be viewed in the context of a long history of seeking counselling and expert intervention to assist with personal problems, evidencing a willingness to take responsibility for his situation. There was very good reason for optimism as to the respondent’s prospects of rehabilitation. It fell to the judge to balance this very significant mitigating factor against the undoubted need for general deterrence.
[21]Sentencing Act 1991 s 5(4).
In our view, while the sentence could be described as lenient or merciful, this was the very sort of case to which the Court’s observations in Boulton apply — the CCO offers the sentencing court the ability to ‘choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence’.[22] As the Court went on to say:[23]
a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.
[22]Boulton (2014) 46 VR 308, 335 [113] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
[23]Ibid 338 [131].
Given the strength of the mitigating personal circumstances of the offender in the present case, we did not consider that the requirements of sentencing could only be met by a term of imprisonment. A CCO with stringent conditions, such as those imposed by the sentencing judge, was another option.[24] The Director therefore could not establish that the sentence was manifestly inadequate. Of course, that is not to deny that offending of the nature involved in this case, involving the carrying on of a small but growing business trafficking cocaine, will ordinarily attract a sentence of imprisonment. In the absence of strong mitigating factors, it is very likely to do so.
[24]The judge could also have adopted a middle course, combining a CCO with a term of imprisonment: Sentencing Act 1991 s 44.
Finally, we would add that, even if we had been of the view that the sentence imposed was manifestly inadequate, the facts that the respondent is not serving a term of imprisonment and that his rehabilitation continues to progress as outlined above would plainly have been significant in the exercise of the residual discretion. However, in light of our conclusion as to the merits of the appeal it is not necessary to say more about that matter.
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