EVAN John Roxburgh v The Queen
[2020] VSCA 228
•7 September 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0071
| EVAN JOHN ROXBURGH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 September 2020 |
| DATE OF JUDGMENT: | 7 September 2020 |
| MEDIA BEUTRAL CITATION: | [2020] VSCA 228 |
| JUDGMENT APPEALED FROM: | [2020] VCC 265 (Judge Hassan) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Leave to appeal – Sentence – Trafficking in commercial quantity of drug of dependence – Methylamphetamine – Trafficking in drug of dependence – 1,4‑Butanediol – Related summary offences – Total effective sentence of 4 years and 9 months’ imprisonment with non-parole period of 3 years and 6 months – Whether judge erred in applying Gregory v The Queen (2017) 168 A Crim R 1 – Consideration of Lytras v The Queen [2020] VSCA 150 – Whether sentence manifestly excessive – First significant term of imprisonment – Parental support – Rehabilitative accommodation available upon eventual release – Relatively small quantity of drugs – Unusual ratio between head sentence and non-parole period – Grounds reasonably arguable – Leave to appeal granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G J Barns SC | Michael J Gleeson & Associates |
| For the Respondent | Mr P L Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
WEINBERG JA:
On 17 March 2020, the applicant, Evan John Roxburgh, pleaded guilty in the County Court at Melbourne to one charge of trafficking in a drug of dependence in a commercial quantity (methylamphetamine) and one charge of trafficking in a drug of dependence (1,4-Butanediol). He was also dealt with for a number of related summary offences, namely, dealing with property suspected of being the proceeds of crime, committing an indictable offence while on bail, and contravening conduct conditions of bail.
On 20 March 2020, the applicant was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Trafficking in commercial quantity of drug of dependence (methylamphetamine) [s 71AA(1) — Drugs, Poisons and Controlled Substances Act 1981] 25 years 4 years and 6 months Base 2 Trafficking in drug of dependence (1,4-Butanediol) [s 71AC(1) — Drugs, Poisons and Controlled Substances Act 1981] 15 years 1 year 3 months Related summary offence 5 Dealing with property suspected of being proceeds of crime [s 195 — Crimes Act 1958] 2 years 1 month — 7 Committing indictable offence while on bail [s 30B — Bail Act 1977] 3 months Convicted and discharged — 8 Contravening conduct conditions of bail [s 30A(1) — Bail Act 1977] 3 months 1 month — Total effective sentence: 4 years and 9 months’ imprisonment Non-parole period: 3 years and 6 months Pre-sentence detention declared: 383 days Section 6AAA statement: 7 years with a non-parole period of 5 years Ancillary orders: Forfeiture and disposal order
By notice dated 16 April 2020, the applicant seeks leave to appeal against that sentence. He does so on the following grounds:
Ground 1The learned sentencing judge erred in finding that the principles outlined in Gregory v The Queen (2017) 168 A Crim R 1 in respect of cases of trafficking in a commercial quantity approaching the large commercial quantity threshold had application in this matter.
Ground 2:The individual sentences imposed, total effective sentence and non-parole period were, in all of the circumstances of this case, manifestly excessive.
For the reasons that follow, I would grant leave to appeal on both grounds.
Circumstances surrounding the commission of the offences
In late October 2018, police were alerted to the fact that the applicant was trafficking methylamphetamine. They subsequently commenced an investigation into his activities. During surveillance conducted on the applicant’s home, police observed a number of vehicles, and persons, coming and going from that address. Those attending the address would only do so for short periods of time. This was said to be indicative of drug trafficking.
In the early evening of 19 February 2019, police executed a search warrant at the applicant’s home. As police entered the house through the front door, other officers were entering the backyard through a side gate. Those officers observed the applicant, carrying a dark satchel, running from the garage towards the back fence. The officers called out to him to stop and lie on the ground. He continued to run towards the fence, and threw the satchel towards the garage. An officer caught up to the applicant, restraining and arresting him.
Inside the satchel, police found four ziplock bags containing methylamphetamine, and two smaller plastic bags also containing that substance. The combined weight of methylamphetamine was 76.204 grams pure. Police also found a plastic container of about 92.7 grams of 1,4‑Butanediol, $1,020 in cash, and various items of drug paraphernalia, including a ‘tick sheet’.[1] A further $1,040 cash was found on the applicant’s person and in his car.
[1]A written record of drug sales.
At the time of this offending, the applicant was on bail. He had failed to meet the reporting conditions of his bail order on 12 occasions between 14 November 2018 and the date of his arrest.
Sentencing remarks
At the beginning of her sentencing remarks, the judge acknowledged that because trafficking in a commercial quantity of a drug of dependence was a ‘category 2 offence’, she was required by s 5(2H) of the Sentencing Act 1991 to impose a sentence of imprisonment, other than a term of imprisonment combined with a community correction order (‘CCO’).[2]
[2]That is, a term of imprisonment of 12 months or less, combined with a CCO. See Sentencing Act 1991, ss 5(2H) and 44(1).
The judge then outlined the applicant’s relevant criminal history. He had a number of previous convictions for drug offences, namely, for possession and trafficking. He had also served two, relatively short, terms of imprisonment, each in the order of several months. At the time of the offending, he had completed about 13 months of an 18 month CCO for theft of a motor vehicle, and for committing an indictable offence whilst on bail.
After setting out the background facts, the judge observed that the applicant had pleaded guilty at an early stage. She stated that the plea had ‘utilitarian value’, and was ‘indicative of remorse’.[3] She said this would be taken into account in sentencing.
[3]DPP v Roxburgh [2020] VCC 265, [15] (‘Reasons’).
With regard to the applicant’s personal circumstances, the judge observed that his parents had written a letter of support, which was tendered on his behalf on the plea. They indicated their ongoing support for their son, and their willingness to pay for a residential rehabilitation program into which the applicant had been accepted. The judge noted that this placement would be open to the applicant upon his eventual release from custody.
The judge observed that the applicant had had a ‘normal and unremarkable’[4] upbringing. He began using drugs at 13, and began to drink heavily and abuse alcohol at about 16. He left school at the end of Year 10. He completed an apprenticeship as a fitter and turner, then worked in a number of jobs including at a scaffolding company, and as a car detailer. By the age of 20, he was using amphetamine. The judge noted that in 2009, when the applicant was aged 24, his ‘drug use prevailed over everything else in [his] life.’[5]
[4]Ibid [18].
[5]Ibid [21].
The judge briefly discussed the applicant’s family circumstances, including his having learned, while he was awaiting sentence, that he had become a father. He had also witnessed his sister’s rehabilitation from drug addiction. The judge accepted that both of these circumstances would motivate the applicant to rehabilitate. She also observed that the applicant had used his time on remand productively, having completed a number of certificates, and that she would take these matters into account.
Turning then to the objective gravity of the offending, the judge observed that trafficking in a commercial quantity of a drug of dependence is serious offending that results ‘in the ruination of lives’.[6]
[6]Ibid [27].
The judge then considered this Court’s decision in Gregory v The Queen.[7] She said of that case that:
In serious examples of the offence [of trafficking in a commercial quantity of a drug of dependence], the Court stated that there was an expectation that there would be sentences ‘well into double figures’. The features set out by the Court that would warrant a sentence ‘well into double figures’ were that the quantity involved approached the large commercial quantity threshold, that the offender was in the trafficking business, the business was conducted for a substantial period of time, the offender pleaded not guilty, or the offender had relevant prior convictions.[8]
[7](2017) 268 A Crim R 1; [2017] VSCA 151 (‘Gregory’).
[8]Reasons, [28] (footnotes omitted).
Counsel for the applicant on the plea had submitted that his client’s offending was at ‘the lower end of seriousness’[9] for the offence of trafficking in a commercial quantity. The prosecution had accepted that the offending was not sophisticated, and there was little that could be established as to, for example, its duration, or its extent.
[9]Ibid [29].
The judge accepted that the applicant’s offending was at the ‘lower end of seriousness’.[10] She found, however, that it had been aggravated by the fact that he had been on bail at the time, and also subject to a CCO.
[10]Ibid [32].
Finally, the judge briefly discussed the sentencing principles relevant to the applicant, particularly denunciation, and general and specific deterrence. She accepted the submission, candidly put on his behalf, that his prospects of rehabilitation were no better than ‘guarded’,[11] but said that she was encouraged by the availability of support and rehabilitative services upon his eventual release. Her Honour then sentenced the applicant as set out above.
[11]Ibid [35].
Conclusion
The complaint in proposed ground 1 is of specific error, it being submitted that the judge erred in finding that the principles laid down in Gregory were in any way applicable to the applicant’s particular situation.
Gregory was decided before the High Court delivered its judgment in Dalgliesh v The Queen.[12] In Lytras v The Queen,[13] this Court held that it was at least open to question as to whether the entire body of principles laid down in Gregory had survived the High Court’s decision in Dalgliesh. There, the High Court had made clear that it was wrong for an intermediate appellate court to state prescriptively the range of sentences that would be appropriate for offending of a particular character in such a way as to fetter the discretion of a sentencing judge. Justice required greater individualisation, in accordance with the particular facts of each case.
[12]DPP v Dalgliesh (2017) 262 CLR 428; [2017] HCA 41 (‘Dalgliesh’).
[13]Lytras v The Queen [2020] VSCA 150 (‘Lytras’).
It should be noted that the offending in both Gregory and Lytras was far more serious, objectively speaking, than that of the applicant. The quantity of drugs sold in those cases greatly exceeded the amount trafficked in this case. In addition, there were a number of highly aggravating features present in Gregory, such as the accompanying violence and the fact that the offender there was part of a large scale drug trafficking enterprise. Those features were notably absent from this case.
Lytras was only decided in June of this year, so the sentencing judge was obviously unaware of the possible qualification which it raised as to the use to which Gregory could be put. Though it is by no means clear, the judge’s specific reference to Gregory arguably led her to give weight to some of the observations made in that case which, in any event, had no application to the applicant’s situation. Accordingly, I would grant leave to appeal in respect of ground 1.
I would also grant leave to appeal in respect of ground 2. While the applicant has a history of past drug offending, this appears to have been low level, given that he was always dealt with for these matters in the Magistrates’ Court. As previously indicated, he had never before been sentenced to a significant term of imprisonment. While the present offending undoubtedly represents a ‘step up’ in terms of his drug offending, there is a vast difference between a sentence of just a few months, and one approaching 5 years’ imprisonment.
Notwithstanding the objective gravity of the applicant’s conduct, it is clear that this was fairly a low-level example of trafficking in a commercial quantity of a drug of dependence. Of course, there were aggravating features present, including that the offending occurred while the applicant was on bail, and also while he was undergoing a CCO. Nonetheless, it seems to me to be arguable that a sentence of 4 years and 6 months for offending of this nature, and at this level, fell outside the range reasonably available to the sentencing judge.
The argument in support of leave is strengthened by the applicant’s personal circumstances. I note the availability of the applicant’s parents’ support, and the prospects that, upon his release, long term treatment in a residential drug facility may be available. It would obviously be in the applicant’s interests, and those of the community, that he undergo that treatment, and that he succeed in finally ridding himself of his longstanding addiction.
There is another, quite distinct, reason why I would be inclined to grant leave in respect of ground 2. The non-parole period of 3 years and 6 months represents about 74% of the total effective sentence of 4 years and 9 months. Though there is no fixed ratio to be achieved between a non-parole period and a head sentence, a figure of about three quarters for an offender who has never previously had a parole sentence at all strikes me as at least inviting scrutiny. The judge gave no explanation as to how she arrived at the non-parole period, or why it was fixed at such a high level, relatively speaking. One might reasonably have thought that this was a case for a lower than usual non-parole period, having regard to all of the circumstances. Certainly, one might have expected that her Honour would have explained why she did not consider that course to be appropriate.
For the reasons set out above, I would grant leave to appeal on both grounds 1 and 2.
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