DPP v Kumas
[2021] VSCA 215
•6 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0070
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| MEHMET KUMAS | Respondent |
S EAPCR 2020 0132
| MEHMET KUMAS | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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| JUDGES: | MAXWELL P, T FORREST and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 May 2021 |
| DATE OF JUDGMENT: | 6 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 215 |
| JUDGMENT APPEALED FROM: | [2020] VCC 351 (Judge Allen) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Drug trafficking – Firearms dealings – Large commercial quantity of methylamphetamine and cocaine – 1.9 times LCQ threshold – Disposing of unregistered firearms – Possession of firearms in breach of Firearm Prohibition Order – Trafficking sentence 6 years and 6 months – Total effective sentence 10 years, non-parole period 6 years – Whether manifestly inadequate – Standard sentence of 16 years for LCQ trafficking – Plea of guilty – Drug and firearms sold to covert operative – Serious criminal history – Offences committed while on parole – Offending began soon after service of Firearm Prohibition Order – Lethal weapons – Need for specific and general deterrence and community protection – Appeal allowed – Resentenced to 14 years’ imprisonment, non-parole period 10 years – Gregory (a pseudonym) v The Queen [2017] VSCA 151, Quah v The Queen [2021] VSCA 164, Rahmani v The Queen [2021] VSCA 51, Brown v The Queen (2019) 59 VR 462 applied – Drugs, Poisons and Controlled Substances Act1981 ss 71, 73(1), Firearms Act1996 ss 96(2A), 101A, 112B.
CRIMINAL LAW – Appeal – Conviction – Possessing drug of dependence – Plea of guilty – Offence as charged not known to law – Definition of ‘drug of dependence’ – Charge amended by consent – Taylor v The Queen [2020] VSCA 50 applied – Drugs, Poisons and Controlled Substances Act1981 ss 4, 73(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant/Respondent | Ms D I Piekusis QC | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Applicant/Respondent | Mr T Game SC with Mr P Smallwood | Emma Turnbull Lawyers |
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MAXWELL P
T FORREST JA
WALKER JA:
Summary
The respondent (‘MK’) pleaded guilty to one charge of trafficking in a large commercial quantity (‘LCQ’) of a drug of dependence (methylamphetamine and cocaine) and to a series of firearms offences, the most serious of which was disposing of a traffickable quantity of unregistered firearms.[1]
[1]The respondent’s initials are used purely for ease of reference.
A sentence of 6 years and 6 months’ imprisonment was imposed on the trafficking charge, and a sentence of 3 years and 6 months’ imprisonment on the charge of disposing of firearms. The other firearms offences attracted sentences of 1 year and 6 months (1 charge) and 1 year (4 charges). The total effective sentence was 10 years’ imprisonment and a non-parole period of 6 years was fixed.
The Director of Public Prosecutions now appeals against the individual sentences the total effective sentence and the non-parole period on the ground that they are manifestly inadequate. The focus of the appeal submission was on the sentence for LCQ trafficking, the maximum penalty for which is life imprisonment. The sentence of 6 years and 6 months could not be justified, it was said, given the objective gravity of the offence and what was said by this Court in Gregory (a pseudonym) v The Queen (‘Gregory’)[2] about the need for increased sentences for upper-level commercial quantity trafficking and the consequent need for higher sentences for LCQ trafficking.
[2][2017] VSCA 151.
For reasons which follow, we would allow the appeal. Although MK was able to call in aid some matters in mitigation, the sentences on both the trafficking and firearms charges were outside the range reasonably open. This was very serious offending by a person with a long and relevant criminal history. As this Court pointed out recently, the offence of LCQ trafficking, and the new maximum of life imprisonment, were created in order to send the clearest deterrent message to those who would engage in large-scale drug trafficking.[3] As to the firearms offences, MK embarked on a series of dealings with lethal firearms within weeks of being served with a Firearm Prohibition Order (‘FPO’). Both general and specific deterrence, and community protection, were significant sentencing considerations.
[3]Quah v The Queen [2021] VSCA 164, [57] (Maxwell P and Beach JA) (‘Quah’).
Circumstances of the offending
Charges 1–7 relate to sales of drugs and firearms by MK to a covert police operative between 21 November 2018 and 27 February 2019.
At the time of the offending, MK was between 30 and 31 years old. He was on parole, having been released from custody on 12 June 2018, and was subject to an FPO which was served on him one week before the offending commenced.
MK dealt with the covert operative on 13 separate occasions. On each occasion, they met alone, at an agreed location. In the course of those meetings, MK sold a combined quantity of 307.2 grams of methylamphetamine and 56.4 grams of cocaine to the covert operative and agreed to sell a further 1 kg of methylamphetamine (charge 1 – trafficking in a large commercial quantity of a drug of dependence). MK also sold, or offered to sell, a number of firearms and quantities of ammunition.
A brief summary of each transaction is as follows.
(a) 21 November 2018 (Purchase 1).The covert operative first made contact with MK’s brother in a police cell on 14 November 2018 and initiated the purchase of drugs from him one week later. On that occasion, MK’s brother was unable to meet with the covert operative and enlisted MK to go in his stead. Upon meeting with MK in Roxburgh Park, the covert operative gave him $3,800 and was provided with a zip lock bag containing an ounce (28 grams) of methylamphetamine with a purity of 70 per cent. MK communicated with the covert operative using a mobile number registered with his details.
(b) 27 November 2018 (Purchase 2). The covert operative made contact with MK and the two met again in Roxburgh Park. MK provided the covert operative with two zip lock bags containing a total weight of 28.1 grams of methylamphetamine with a purity of 81 per cent. MK received $3,800. On this occasion, MK also offered to sell an ounce of cocaine and agreed to bring the covert operative a free sample of 1 gram on the next purchase.
(c) 10 December 2018 (Purchase 3). The covert operative made contact with MK and they later met in Roxburgh Park. MK handed over a zip lock bag containing 28 grams of methylamphetamine with a purity of 86 per cent. He was paid $3,800. MK forgot to bring the cocaine sample as discussed on the previous occasion, but advised it would be available the next day. From this point on, communications between the two took place using encrypted smartphone applications, at MK’s request.
(d) 13 December 2018 (Purchase 4). At Tullamarine, MK and the covert operative met and MK handed over one zip lock bag containing 0.4 grams of cocaine with a purity of 94 per cent. No money was exchanged. On this occasion, after the covert operative asked MK about his access to guns, MK advised the covert operative that he had a .22 Ruger handgun for sale for $10,000.
(e) 20 December 2018 (Purchase 5). MK and the covert operative met in Roxburgh Park. MK brought with him an unregistered .22 Ruger handgun and a magazine with nine rounds of ammunition and demonstrated how to use it (charge 4 – possessing a firearm or firearm related item in contravention of a Firearm Prohibition Order). As he handed over the handgun, MK advised the covert operative, ‘cuz give it a wipe down I don’t want my fingerprints on it. They served me with a firearm prohibition order cuz. You know what that is? Anything with firearm related now, I’ll automatically do 5 years’ jail’ (charge 2 – disposing of a traffickable quantity of unregistered firearm). On that occasion MK also gave the covert operative a zip lock bag containing 28.1 grams of cocaine of 64 per cent purity. For the handgun and drugs, MK was paid $17,000. After counting the money, MK told the covert operative that he had five additional firearms for sale (including an AK 47) and enquired as to the operative’s interest in buying more.
(f) 27 December 2018 (Purchase 6). MK and the covert operative met in Roxburgh Park. From the boot of his vehicle, MK removed a firearm case (containing a firearm) and a separate firearm wrapped in plastic and other material. He placed both items in the boot of the covert operative’s vehicle. MK then removed the wrapping on the second firearm to reveal an unregistered pump action shotgun (charge 2). He demonstrated how to use it, ejecting a spent shotgun cartridge into the car boot as he did so. MK advised the covert operative that the cartridge had a friend’s DNA on it and told the covert operative to get rid of it. MK then opened the firearm case to reveal an unregistered SKS assault rifle and a box containing 20 rounds of ammunition (charge 2 and charge 5 – possessing a firearm or firearm related item in contravention of a Firearm Prohibition Order). MK also sold a further 28 grams of methylamphetamine of 82 per cent purity. For the firearms and drugs, MK was paid $18,500. MK advised again that he had three additional firearms for sale.
(g) 31 December 2018 (Purchase 7). At Tullamarine, MK sold the covert operative 27.8 grams of methylamphetamine of 87 per cent purity for $3,800. MK offered to sell another SKS assault rifle (with butt missing), another rifle, a shotgun, a handgun and 27.8 grams of methylamphetamine for $18,500.
(h) 3 January 2019 (Purchase 8). At Roxburgh Park, MK transferred a cardboard box containing a .270 Winchester rifle and a modified under/over double barrel shotgun from the boot of his vehicle to the boot of the covert operative’s vehicle (charge 3 – disposing of a firearm except to a licensed firearm dealer and summary charge 57 – disposing of a category B longarm except to a licensed firearms dealer). MK also placed in the covert operative’s vehicle a firearm bag containing an unregistered SKS assault rifle (charge 2 and charge 6 – possessing a firearm or firearm related item in contravention of a Firearm Prohibition Order). MK then handed over a large zip lock bag containing four different types of cartridge ammunition and another zip lock bag containing 27.8 grams of methylamphetamine of 88 per cent purity. The covert operative paid him $18,500. MK then advised that he had a Beretta handgun and a Smith and Wesson revolver for sale. Subsequent forensic analysis of the shotgun and rifle identified that they were registered but had been stolen during a burglary in 2015.
(i) 9 January 2019 (Purchase 9). At Roxburgh Park, MK informed the covert operative that he was unable to obtain the Beretta handgun but would do so by their next meeting. He then sold him two zip lock bags containing 27.9 grams of cocaine of 73 per cent purity and 28 grams of methylamphetamine of 85 per cent purity, respectively. MK also removed a .38 calibre Smith and Wesson revolver from a bum bag and gave it to the covert operative (charge 3 and charge 7 – possessing a firearm or firearm related item in contravention of a Firearm Prohibition Order). That revolver was later determined to have been stolen during a burglary in 2016. MK was paid a total of $23,600. MK then gave the covert operative a metal rod for use in the SKS assault rifle purchased earlier and advised that he also had access to hand grenades for sale.
(j) 17 January 2019 (Purchase 10). At Roxburgh Park, MK sold the covert operative 55.8 grams of methylamphetamine of 82 per cent purity for $7,600. MK then informed the operative that he would wait a week to obtain the Beretta handgun, as its present location was ‘hot’ because of a police raid.
(k) 6 February 2019 (Purchase 11). At Roxburgh Park, MK sold the covert operative 27.9 grams of methylamphetamine with a purity of 84 per cent for $3,800. MK advised that the Beretta handgun would be available for sale the next week and expressed reluctance about selling hand grenades due to attention he had received from ASIO.
(l) 22 February 2019 (Purchase 12). At Roxburgh Park, MK sold the covert operative 27.8 grams of methylamphetamine with a purity of 85 per cent for $3,800. He advised that he could also sell 1 kg of methylamphetamine for $105,000 and a litre of gamma hydroxybutyrate (‘GHB’) for $3,500. On 26 February 2019, the covert operative made further contact with MK who confirmed that he could sell the 1 kg of methylamphetamine. MK then sent the covert operative a picture of the methylamphetamine.
On 27 February 2019, search warrants were executed at MK’s home in Roxburgh Park, where he was then arrested. A search of the premises located a number of mobile phones, 14 vials of anabolic steroids and two containers with anabolic steroid tablets (charge 8 – possessing a drug of dependence), $3,260 cash (summary charge 44 – dealing with property suspected of being proceeds of crime), and a total of 1.0705 kgs of methylamphetamine and 27.9 grams of cocaine (charge 1).MK remained mute during his record of interview and refused to provide the access codes to the phones as required under s 465AAA(2) of the Crimes Act 1958 (‘Crimes Act’) (summary charge 46 – failing to comply with direction to assist).
The drugs the subject of charge 1 comprised 1.3777 kgs of methylamphetamine and 84.3 grams of cocaine. The combined weight of the drugs represented 1.92 times the large commercial quantity threshold.
MK was sentenced as follows:
| Charge on Indictment K10526631 | Offence | Maximum Penalty | Sentence | Cumulation | |||||
| 1 | Trafficking in not less than a large commercial quantity of a drug of dependence.[4] | Life | 6 years and 6 months | Base | |||||
| 2 | Disposing of a traffickable quantity of unregistered firearms.[5] | 10 years | 3 years and 6 months | 18 months | |||||
| 3 | Disposing of a firearm except to a licensed firearm dealer.[6] | 5 years | 1 year and 6 months | 9 months | |||||
| 4 | Possessing a firearm or firearm related item in contravention of an FPO.[7] | 10 years | 1 year | 3 months | |||||
| 5 | Possessing a firearm or firearm related item in contravention of an FPO. | 10 years | 1 year | 3 months | |||||
| 6 | Possessing a firearm or firearm related item in contravention of an FPO. | 10 years | 1 year | 3 months | |||||
| 7 | Possessing a firearm or firearm related item in contravention of an FPO. | 10 years | 1 year | 3 months | |||||
| 8 | Possessing a drug of dependence.[8] | 1 year | 1 month | - | |||||
| Related summary charges | |||||||||
| 44 | Deal with property suspected of being proceeds of crime.[9] | 2 years | 3 months | 1 month | |||||
| 46 | Fail to comply with direction to assist.[10] | 2 years | 3 months | 1 month | |||||
| 57 | Disposing of a category B longarm except to a licensed firearms dealer.[11] | 2 years | 3 months | 1 month | |||||
| Total Effective Sentence: | 10 years’ imprisonment | ||||||||
| Non-parole period: | 6 years’ imprisonment | ||||||||
| Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991: | Nil | ||||||||
| 6AAA statement: | 12 years and 6 months with a non-parole period of 8 years and 6 months | ||||||||
| Other relevant orders: | Declared a serious drug offender pursuant to s 89DI of the Sentencing Act 1991, forfeiture and disposal orders | ||||||||
[4]Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 71 (‘DPCS Act’).
[5]Contrary to Firearms Act 1996 s 101A (‘Firearms Act’).
[6]Contrary to Firearms Act s 96(2A).
[7]Contrary to Firearms Act s 112B.
[8]Contrary to DPCS Act s 73(1).
[9]Contrary to Crimes Act s 195.
[10]Contrary to Crimes Act s 465AAA(4).
[11]Contrary to Firearms Act s 96(1).
CONVICTION APPEAL
Charge 8 was described in the Prosecution Opening as ‘a charge of possessing anabolic and androgenic steroids’. In Taylor v The Queen,[12] this Court held that steroids so described constituted ‘a class of drugs of dependence’, not a ’drug of dependence’ within the meaning of s 4 of the DPCS Act.
[12][2020] VSCA 50, [78] (Priest, Hargrave and Weinberg JJA) .
It follows, as the Director properly conceded, that charge 8 did not validly charge an offence under s 73(1). By consent, it will be ordered in accordance with s 165 of the Criminal Procedure Act 2009 that charge 8 be amended by the deletion of all words after ‘possessed’ and the substitution of the following words: ‘drugs of dependence namely testosterone, oxandrolone, nandrolone and trenbolone.’
DIRECTOR’S APPEAL AGAINST SENTENCE
As noted earlier, the Director has challenged each of the individual sentences for the trafficking and firearms offences. Before we examine the judge’s reasons, it is convenient to set out MK’s personal history, which bears on the matters relied on in mitigation.
Personal circumstances
MK was born in Australia to strict Turkish parents. As an infant, he moved to Turkey with his family and commenced his early education there. Upon his return to Australia at the age of six or seven, he struggled at school and displayed both learning and behavioural difficulties. He was later diagnosed as suffering Attention Deficit Hyperactivity Disorder (‘ADHD’) (for which he was intermittently medicated with stimulants) and as having some level of intellectual impairment. During primary school, he spent one day per week with the Child and Adolescent Mental Health Services. His experience of secondary school was similarly difficult and he eventually ceased his education at the age of 15, part way through Year 10.
As a teenager, MK was treated for anger management difficulties, depression and anxiety. At 15, he displayed self-harming behaviour. He has a long history of substance abuse, commencing at the age of 14 with cannabis and leading to daily use of amphetamine at 16 and occasional use of cocaine. His mental health issues persisted into adulthood, including an involuntary admission to a psychiatric unit when he was 21 years old, where he was diagnosed with ‘schizophreniform psychosis’. He was released after a period but was readmitted only weeks later.
Shortly after, MK returned to Turkey with his family for an extended visit. While there, he was drafted into compulsory military service. He was required to participate in active service on the Syrian border, during which he experienced traumatic events, including seeing dead bodies and having to shoot at people. His mental health consequently declined to the point that, having returned to Turkey, he was admitted to a psychiatric hospital with symptoms of paranoia and hallucinations.
MK returned to Australia in December 2012. Upon his return, he was unable to obtain employment. He remained drug free for a period but recommenced using methylamphetamine. His substance abuse persisted throughout his early 20s and he became homeless, living in cars or couch surfing as he spent all his money on drugs.
Soon after his return to Australia, MK became involved in criminal activity, including thefts and other dishonesty offences, weapons and drugs possession and assaulting police, for which he attracted — in 2013 and again in 2015 — combination sentences, that is, a short term of imprisonment combined with a community correction order (‘CCO’) aimed at rehabilitation through treatment for drug abuse and mental health.
Both the 2013 and 2015 CCOs were subject to a condition that MK undergo ‘assessment and treatment (including testing) for drug abuse or dependency as directed’. In September 2015, he was convicted of contravening the 2013 CCO and sentenced on multiple charges including five of drug possession. Notwithstanding that contravention, MK was placed on the second CCO in November 2015. Less than two years later, in October 2017, he was convicted of contravening the 2015 CCO, and was again sentenced on a large number of charges including three of drug possession.
In 2017, MK was assessed for the purposes of a pre-sentence report by a neuropsychologist, who determined that he had a full scale IQ of 84, falling into the low average or below average range. In particular, he was found to have mild to moderate executive dysfunction and poor verbal processing skills.
In June 2018, MK was released on parole to live with his brother, who was also engaged in drug use. It was this brother who first met the covert operative and facilitated the introduction with MK.
On the plea, the defence relied on a report from Dr Danny Sullivan, a consultant forensic psychiatrist. In preparing that report, Dr Sullivan had regard to a number of earlier reports dating back to 2014. Dr Sullivan’s report succinctly recounted MK’s history of psychiatric and cognitive difficulties and illicit substance and gambling addiction. MK self-reported to Dr Sullivan heavy drug use and gambling activity, in the area of $40,000 per week.
MK told Dr Sullivan that, during the eight months he had been out of custody before this offending, he had
realised that all of his friends had married, bought houses and had jobs. He determined that he wanted to ‘catch up with them’ and in order to do so, needed to make money and reverted to ‘what I knew best’, involving gambling, drugs and firearms.
In Dr Sullivan’s opinion, MK had ‘a severe polysubstance dependence, predominantly of amphetamines and cannabis’. MK also ‘report[ed] features of a severe gambling disorder, which [was] likely to be exacerbated by stimulant use and reduced during periods of abstinence’. Further, he considered that the lack of evidence of psychosis in periods of abstinence from illicit substances likely indicated that MK suffers from ‘episodic drug-induced psychosis’, which can persist for several months after cessation of methamphetamine use.
There was no indication, Dr Sullivan said, of persistent symptoms of ADHD. MK’s ongoing impulsivity and poor judgment were ‘likely to reflect personality vulnerabilities or the effects of long-term substance use’, which had been noted on neuropsychological testing as ‘reduced executive functioning’. Notwithstanding that MK reported ‘mild hypervigilance’, Dr Sullivan considered he did not meet the criteria for a diagnosis of Post-Traumatic Stress Disorder.
In his report, Dr Sullivan concluded:
At the time of the offending, [MK] was engaged in ongoing high level substance abuse and gambling. There is a causal nexus between … his substance abuse and the offending. It is likely that [MK] has underlying mild executive function deficits, partly innate through development and personality style, and partly exacerbated by the chronic effects of long-term substance use.
The combination of these is likely to have affected his judgment and reduced his capacity to think clearly and make calm and rational choices. It did not deprive him of an awareness of wrongdoing or obscure the intent of his offending. It is not possible to parse out clearly the relative contribution of these contributing factors, but it is most likely that the major contribution was from substance abuse.
Dr Sullivan considered that MK’s anxiety might render incarceration ‘slightly more onerous’. He would continue to present a risk of re-offending unless he maintained abstinence from substance use.
The sentencing reasons
The judge described MK’s criminal conduct as ‘extremely serious’.[13] Noting that MK came before the court ‘with a prior criminal history, albeit no prior convictions for trafficking drugs or guns’, his Honour said: ‘Nevertheless, both of these offences call for the imposition of lengthy sentences of imprisonment.’[14]
[13]DPP v Kumas [2020] VCC 351, [15] (Judge Allen) (‘Reasons’).
[14]Ibid [15].
His Honour continued:
As the courts have pointed out time and time, again the principles of general deterrence and denunciation must be accorded particular prominence in the sentencing mix, in cases of this kind. Those who choose to embark on the business of drug trafficking and trafficking in firearms must understand that they will lose their liberty, that is, be sentenced to serve lengthy periods of imprisonment.
That is my obligation in this case, to impose a stern sentence of imprisonment upon you to achieve the purpose of general deterrence; to make it clear to the community that this kind of conduct will be denounced, that is, that it is totally unacceptable; to deter you from ever being tempted to offend again; to punish you for your breach for committing these offences, particularly, in circumstances when at the time you were on parole; and to protect the community. The sentence, of course, must also be structured to allow you the opportunity to rehabilitate yourself upon your eventual release into the community.[15]
[15]Ibid [16]–[17].
Further:
I also take into account, in assessing the gravity of your offending, the fact that the offending occurred over a relatively short period of about three months, and there is no evidence of any significant profit or financial reward made by you. Any profit that you may have made, or stood to make, is a mystery. This is not a case, as many cases are, where there is clear evidence before the court as to large amounts of money having been made, or sought to be made, by an offender by way of profit.[16]
[16]Ibid [37].
It was relevant to MK’s moral culpability, his Honour said, that without the involvement of the covert operative, the charges would not have been before the court. At the same time, his Honour noted, it was ‘clear from the evidence’ that MK was ready and willing to respond to requests and was ‘actively keen to engage in these activities’.[17] His Honour concluded that MK’s moral culpability must be reduced ‘to some moderate extent, by reason of the involvement of the covert operative’.[18]
[17]Ibid [34].
[18]Ibid [35].
After considering the report of Dr Sullivan, and the earlier report of the neuropsychologist, his Honour concluded that it was appropriate to take the following matters into account by way of mitigation:
·First, your dysfunctional childhood, which was marred, amongst other things, by significant learning difficulties and behavioural problems.
·These behavioural difficulties were caused by inherent underlying psychological problems including childhood ADHD and intellectual limitations.
·These problems contributed to your early introduction to serious drug abuse as a child.
·You have a long history of mental illness, again tracing back to your childhood.
·In my view, your childhood dysfunction, your intellectual limitations and learning difficulties and your underlying mental illness, present since your childhood, all contributed to your descent into serious drug abuse.[19]
[19]Ibid [29].
His Honour continued:
Accordingly, this is a case where, consistent with authority, I can take into account this combination of circumstances which, as Dr Sullivan has said, are impossible to ‘parse out clearly’, in assessing the relative weight to be given to general deterrence in your case and moral culpability. In my view, there should be some moderation of the weight to be given to general deterrence, and some reduction of your moral culpability, by reason of the combination of those factors. I accept that there is a causal nexus, as Dr Sullivan says, between those factors and your criminal conduct. However, the weight to be given to those factors and the extent of the reduction in moral culpability and moderation of general deterrence is limited, but nevertheless important. I also take into account that, at the time of the offending you were, as Dr Sullivan opines, ‘engaged in ongoing high-level substance abuse’. As I have just said, that in itself is normally not a mitigating factor. It is often taken into account as part of the explanation of the offending, but I reiterate that, in the context of this case, your drug abuse cannot be disentangled from your intellectual disability, childhood dysfunction and underlying psychological and mental health problems.[20]
[20]Ibid [30].
Noting that defence counsel on the plea had disavowed any reliance on the principles enunciated in R v Verdins,[21] senior counsel for the Director initially submitted that in this passage the judge had ‘in essence … applied Verdins principles in a way that was not open’. In the course of argument, however, counsel made clear that this was not a contention of specific error.
[21](2007) 16 VR 269; [2007] VSCA 102.
Counsel acknowledged, moreover, the prosecutor’s concession on the plea that MK’s developmental difficulties could be taken into account in assessing his moral culpability, to the extent that his drug use could be explained by ‘factors beyond [his] control’. The real complaint, it was said, was that the judge had ‘overweighted’ these considerations, particularly having regard to the multiple opportunities which MK had been given to address his drug use as a cause of his offending behaviour.[22]
[22]Boulton v The Queen (2014) 46 VR 308, 379–80 [43]–[46]; [2014] VSCA 342.
Consideration
As noted earlier, the Director’s submissions concentrated on the sentence imposed for LCQ trafficking. Adopting the judge’s characterisation of the offending as ‘extremely serious’, senior counsel for the Director submitted that the sentence of 6 years and 6 months’ imprisonment simply did not reflect the seriousness of the offending.
The foundation of the submission was the statement of this Court in Gregory that Parliament must be taken to have intended sentences ‘well into double figures’ for instances of commercial quantity trafficking (‘CQ trafficking’) where the offence had one or more of several specified features.[23] Relevantly for present purposes, the Court said that a ‘double figures’ sentence would have been intended if the quantity trafficked ‘approached the LCQ threshold’.[24] In the present case, senior counsel noted, the quantity trafficked exceeded the LCQ threshold and yet the sentence was only 6 years and 6 months.
[23][2017] VSCA 151, [98] (Maxwell P, Redlich and Beach JJA).
[24]Ibid.
Counsel drew specific attention to the statement in Gregory that ‘sentences for LCQ trafficking will also need to increase, substantially, in order to maintain appropriate sentencing relativities’.[25] Recently, in Quah, the Court elaborated on this notion of ‘appropriate relativities’, as follows:
Other things being equal, an offence of LCQ trafficking is more serious than an offence of CQ trafficking, because it falls into the highest quantitative category and carries the highest maximum. Other things being equal, an offence of LCQ trafficking which involves — as the applicant’s offence did — a quantity representing multiples of the LCQ threshold is more serious than an offence of CQ trafficking which involves a quantity representing multiples of the CQ threshold.
This differential in offence gravity needs to be reflected in sentencing for LCQ trafficking, if Parliament’s clear intention is to be effectuated. As was stated in the second reading speech, the new maximum of life imprisonment was intended to send the clearest message to would-be traffickers — and to sentencing courts — about how sternly large-scale drug trafficking was to be punished.[26]
[25]Ibid [102].
[26][2021] VSCA 164, [56]–[57] (Maxwell P and Beach JA) .
In Quah, the quantity trafficked was almost four times the LCQ threshold. The accused there was sentenced to a term of 15 years for the trafficking offence. In the present case, the quantity was almost twice the threshold. Accepting — as the prosecutor did on the plea — that this was at the lower end of the quantitative range for LCQ trafficking, it was nevertheless clearly over the threshold and what was said in Gregory about the need for increased sentences for LCQ trafficking was directly applicable.[27]
[27]See also Rahmani v The Queen [2021] VSCA 51, [25]–[32] (Maxwell P and Niall JA) (‘Rahmani’); Quah [2021] VSCA 164, [48]–[58] (Maxwell P and Beach JA).
In the course of argument on the plea, the judge made reference to Gregory, expressing the view that the standard sentence of 16 years’ imprisonment for LCQ trafficking was ‘about right, consistent with Gregory and other cases’. Unfortunately, his Honour did not have the benefit of a submission of the kind which the Director advanced in this Court, drawing attention to the statements in Gregory about the need for a consequent increase in sentences for LCQ trafficking.
The seriousness of the offence of LCQ trafficking was made clear by this Court recently in Rahmani:
[T]he maximum penalty of life imprisonment sends a message to the community, and to sentencing courts, that this is an offence of the utmost seriousness. As is well recognised, the sentencing regime for drug trafficking offences is quantity-based. The maximum of life imprisonment for LCQ trafficking is to be compared with the maximum of 25 years’ imprisonment for commercial quantity (CQ) trafficking.
...
It is the Parliament which sets the parameters within which the sentencing discretion is exercised. In the case of LCQ trafficking, the sentencing court is guided by two related parameters: the maximum penalty of life imprisonment and the place of this offence in the legislative hierarchy of trafficking offences differentiated by quantity. As we have said, the quantity trafficked in the present case took it into the highest quantitative category, which marks out the most serious drug trafficking offence under Victorian law.[28]
[28][2021] VSCA 51, [23], [30] (Maxwell P and Niall JA).
Although the High Court decision in Barbaro v The Queen[29] prevents judges from seeking, and prosecutors from providing, a submission on sentencing range, the Court in that case reaffirmed the duty of prosecutors to assist sentencing judges by providing relevant sentencing information. The plurality said that the ‘role and duty’ of the prosecution was:
to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases.[30]
[29](2014) 253 CLR 58; [2014] HCA 2.
[30]Ibid 74 [39] (French CJ, Hayne, Kiefel and Bell JJ).
Given the complexities associated with the structured, quantity-based hierarchy of trafficking offences, and with giving effect to what was said in Gregory, assistance of that kind was particularly important in a case like the present.
Before us the Director referred to a series of cases concerning LCQ trafficking decided after the enactment of the standard sentence regime. Consideration of those cases revealed that the sentences imposed ranged from 8 years to 15 years.[31] All those cases were decided after Gregory, but before Rahmani.
[31]DPP v Quah [2019] VCC 1158: 15 years, upheld on appeal to this Court; DPP v Lamberti [2019] VCC 1498: 12 years; DPP v Kha [2019] VCC 1682: 9 years; DPP v Nguyen [2019] VCC 1815: 8 years; DPP v Al Janabe [2019] VCC 1313: 10 years; and DPP v Dong [2020] VCC 298: 9 years.
As discussed later in these reasons, there were matters in mitigation which his Honour quite properly took into account. But we would uphold the Director’s submission that, whatever weight was given to those factors in moderation of sentence, the sentence of 6 years and 6 months’ imprisonment was manifestly inadequate for offending which fell into the highest of the quantitative categories of drug trafficking.
The other sentencing parameter on which the Director relied was the standard sentence of 16 years’ imprisonment for LCQ trafficking. Quite correctly, the judge said that he must take the standard sentence into account ‘as a guidepost to the appropriate sentencing range in cases of this kind’.[32] As discussed in Brown v The Queen (‘Brown’), the standard sentence is referable to a hypothetical ‘middle of the range’ offence, classified on the basis of ‘objective factors’ only.[33]
[32]Reasons [14]. We note that although the sentencing judge referred to the standard sentence, he did not explain how the sentence he imposed related to the standard sentence, as required by s 5B(5). While that failure does not vitiate the sentence, it is undesirable for a sentencing judge to fail to follow the requirement in s 5B(5).
[33](2019) 59 VR 462, 465 [6]–[7]; [2019] VSCA 286 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); Quah [2021] VSCA 164.
What this means, the Court in Brown said, is that the judge must keep in mind the notion of an offence ‘in the middle of the range of seriousness’.[34] As T Forrest JA pointed out in argument, however, the difficult task of giving content to that notion is made all the more difficult in a case such as the present, where the offence in question has a quantitative threshold and the quantity trafficked is of central importance to the assessment of offence gravity.
[34]Brown (2019) 59 VR 462, 479 [57]; [2019] VSCA 286 (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
Before turning to consider the sentences for the firearm offences, we note the significance of both general and specific deterrence as sentencing considerations in this case. His Honour rightly noted that general deterrence and denunciation must be accorded ‘particular prominence in the sentencing mix’, in order to send the clearest message to those who would consider engaging in trafficking in drugs or firearms that, if they do so, they will be ‘sentenced to serve lengthy periods of imprisonment’.[35]
[35]Reasons [16].
As to specific deterrence, it was of obvious importance that MK had committed these offences while he was on parole. He had been released from custody in June 2018, after serving sentences for riot, drug possession, dealing with proceeds of crime, dishonesty offences and, relevantly, firearms offences, to which reference will be made below. The present offences were committed only 5 months later, in November 2018, at which time MK still had 13 months of parole remaining.[36]
[36]We refer to this matter below, in relation to totality.
It was also of obvious importance that MK had been before the criminal courts for serious offending in 2013, 2015 and 2017. Neither the deterrent effect of successive terms of imprisonment, nor the repeated rehabilitative opportunities he had been offered, stood in the way of his deciding to become a drug trafficker on a significant scale.
The firearms offences
MK had a number of prior convictions for firearms offences. In July 2013, he was sentenced for offences of possessing a controlled weapon without excuse (two charges); possessing a firearm while a prohibited person; possessing a prohibited weapon without exemption; and possessing cartridge ammunition without a permit. In September 2015, he was convicted of possessing a controlled weapon without excuse; possessing a firearm while a prohibited person; and possessing a prohibited weapon without exemption.
In November 2015, he was convicted of possessing a firearm while a prohibited person. And, in October 2017, he was convicted of possessing a firearm while a prohibited person (two charges); possessing a controlled weapon without excuse; and possessing cartridge ammunition without a permit. Thus he had, on four separate occasions, been convicted of possessing a weapon while a prohibited person.
The persistence of such offending in the face of successive convictions underlined how important it was that the sentences imposed on MK for the present firearms offences be set at a level which might actually deter him. That point was reinforced emphatically by MK’s wilful disobeying of the FPO which was served on him on 14 November 2018. Under that order, he was prohibited from acquiring, possessing or using any firearm or firearm-related items.
As this Court said in Chief Commissioner of Police v Websdale, the power to make an FPO is conferred for the protection of the public. The Court said:
[T]he public interest to which these provisions were directed was the public interest in keeping the community safe from firearms-related violence. This is, in other words, a power conferred — and exercisable — for the promotion and maintenance of ‘public safety and peace’.[37]
[37][2019] VSCA 305, [35] (Maxwell P, Tate and Niall JJA).
It was, accordingly, a matter of great significance to this sentencing exercise that MK embarked on offences of dealing in, and possession of, firearms within weeks of having been served with the FPO. His deliberate defiance of an order put in place for reasons of public safety significantly increased his culpability for these offences and highlighted the need for specific deterrence and community protection.
The first of the firearms offences was the disposal of a traffickable quantity of unregistered firearms. For this purpose, a ‘traffickable quantity’ is two or more firearms. The charge to which MK pleaded guilty concerned the disposal of four firearms, being double the threshold quantity. Three of them were semi-automatic weapons (a pistol and two rifles) and the fourth was a pump-action shotgun.
The submission for the Director was that the semi-automatic weapons were ‘incredibly lethal’ and that this made MK’s dealing in them exceptionally serious. It is, of course, well-established that the capacity of a weapon to cause harm bears directly on the gravity of weapons-dealing offences.[38] The maximum penalty for the disposal offence is 10 years’ imprisonment.
[38]DPP (Cth) v Munro [2019] VSCA 89, [92] (Maxwell P, Beach and McLeish JJA).
Charge 3, which concerned the less serious offence of ‘disposal of a firearm except to a licensed firearms dealer’, concerned different weapons — a .270 Winchester rifle and a .38 calibre Smith and Wesson revolver. Charge 4 concerned MK’s possession of an unregistered .22 Ruger handgun and a magazine with nine rounds of ammunition. As noted earlier, when MK handed over the handgun to the covert operative, he said:
[C]uz give it a wipe down I don’t want my fingerprints on it. They served me with a firearm prohibition order cuz. You know what that is? Anything with firearm related now, I’ll automatically do 5 years’ jail.
Given MK’s prior convictions for firearms offences, the service of the FPO and his obvious understanding of its import and of the consequences if he breached it, we consider that the sentences for these offences were manifestly inadequate. Whatever weight was to be given to the mitigating factors, the sentences imposed were outside the range reasonably open.
Care must, of course, be taken to avoid double punishment, given that the possession offences concern the same weapons as are the subject of the disposal charges and, further, that contravention of the FPO is an element of each of the possession offences. Nevertheless, possession and disposal involve distinct criminality, and there is no double counting in treating the proximity of the service of the FPO and MK’s awareness of it as relevant to culpability and specific deterrence.
Factors in mitigation
As stated earlier, there were various mitigating factors to be considered, as follows:
(m) the early guilty plea;
(n) MK’s childhood dysfunction, intellectual limitations, learning difficulties and psychiatric history;
(o) the role of the covert operative;
(p) the lack of prior history for drug trafficking or firearm sales; and
(q) MK’s prospects of rehabilitation.
The early guilty plea warranted a significant discount, in our view, but the other mitigating factors were of limited weight, for the following reasons. First, as to childhood dysfunction, intellectual limitations, learning difficulties and psychiatric history, none of those matters was current at the time of the offending. The trial judge accepted that they contributed to, and were entangled with, MK’s substance abuse; but they were nonetheless chronologically and causally remote from the offending.
The offending conduct — engaging in multiple sales over a period of time (including being able to obtain the drugs and the weapons) — is the conduct of a functioning, rational person, able to act purposefully and strategically in his own interests. As we have noted, MK was fully aware of the risks of detection and punishment and evidently decided that the potential benefits outweighed the risks. As he candidly admitted to Dr Sullivan, his motivation was purely financial: to make money in order to ‘catch up’ with his friends. It follows, in our view, that there was little basis for viewing MK’s moral culpability as reduced — or the need for general deterrence as moderated — on account of his mental functioning.
Secondly, as to the role of the covert operative, it is clear that the operative instigated the initial offending and some of the later offending. There was no challenge to the judge’s finding that, but for the operative’s initial approach, MK would not have embarked on this course of dealings. But, as the Director submitted, MK quickly became an enthusiastic participant. As appears from the summary of transactions, he was active in offering to supply the covert operative with drugs and weapons. At no point was his will overborne, nor was he under any duress. On the contrary, the scale and duration of the dealings suggest that MK welcomed the opportunity to sell what he knew to be harmful and dangerous goods, in pursuit of his financial goal. Any moderation of moral culpability had therefore to be modest.[39]
[39]Kada v The Queen [2017] VSCA 339.
Finally, MK’s lack of prior history for this kind of offending is of limited weight given his history of drug and firearms offending. The same is true of his prospects of rehabilitation, which the trial judge rightly described as ‘guarded’.[40]
[40]Reasons [40].
One further matter needs to be mentioned. As noted earlier, MK was on parole when he committed these offences. As a result of the breach of parole, he was required to serve the remaining 13 months of the sentence he had been serving before his release on parole. That sentence was imposed in 2017 for a large number of offences. We have taken into account the service of the 13 months, and the offending to which it related, in our consideration of totality.[41]
[41]Hunter v The Queen (2006) 14 VR 336, 341–2 [29]–[31]; [2006] VSCA 129 (Maxwell P, Buchanan and Redlich JJA).
Resentencing
For these reasons, we would allow the appeal and resentence the respondent as follows:
Charge on Indictment K10526631 Offence Maximum
PenaltySentence Cumulation 1 Trafficking in not less than a large commercial quantity of a drug of dependence. Life 10 years Base 2 Disposing of a traffickable quantity of unregistered firearms. 10 years 5 years 24 months 3 Disposing of a firearm except to a licensed firearm dealer. 5 years 2 years 9 months 4 Possessing a firearm or firearm related item in contravention of an FPO. 10 years 3 years 4 months 5 Possessing a firearm or firearm related item in contravention of an FPO. 10 years 3 years 4 months 6 Possessing a firearm or firearm related item in contravention of an FPO. 10 years 3 years 4 months 7 Possessing a firearm or firearm related item in contravention of an FPO. 10 years 2 years 3 months 8 Possessing a drug of dependence. 1 year 1 month Concurrent Related summary charges
44 Deal with property suspected of being proceeds of crime. 2 years 3 months Concurrent 46 Fail to comply with direction to assist. 2 years 3 months Concurrent 57 Disposing of a category B longarm except to a licensed firearms dealer. 2 years 3 months Concurrent Total Effective Sentence: 14 years’ imprisonment Non-parole period: 10 years’ imprisonment 6AAA statement: 16 years and 6 months, non-parole period 12 years and 6 months
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