Gavanas v The Queen
[2013] VSCA 178
•25 July 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0105
| STEPHEN GAVANAS | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2012 0185
| MOHAMMED KHODR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | ASHLEY, REDLICH & COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 25 June 2013 |
| DATE OF JUDGMENT | 25 July 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 178 |
| JUDGMENT APPEALED FROM | [2010] VSC 433 (Whelan J) |
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CRIMINAL LAW – Conviction – Possession of substances and equipment with intention of using them for purpose of trafficking a drug of dependence – Trafficking a drug of dependence in not less than a commercial quantity – Whether conviction of G on possession count unsafe or unsatisfactory – Whether misdirection with respect to proof of intention – Observations on new case raised by G on appeal – Obligation of trial judge to direct as to issues not raised by defence considered – Whether conviction of K on count of trafficking unsafe or unsatisfactory – Applications by G and K for leave to appeal against conviction refused.
CRIMINAL LAW – Sentence – Totality – Erroneous declaration of pre-sentence detention in case of G – Later reduction in number of days declared – Reduction in non-parole period but not head sentence – Whether error in not reducing head sentence – Whether sentences imposed upon G and K manifestly excessive – Whether impermissible want of parity of sentences imposed on G and K when contrasted with sentence imposed on M – No want of parity, but sentence on one count, and extent of cumulation, manifestly excessive – Leave granted – Appeals allowed and appellants re-sentenced.
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| Appearances: | Counsel | Solicitors |
For the Appellant Gavanas | Mr M Croucher SC with | Stephen Andrianakis & Associates |
For the Appellant Khodr | Ms F Todd | Robert Stary Lawyers |
| For the Crown | Ms F Dalziel | Craig Hyland, Solicitor for Public Prosecutions |
ASHLEY JA
REDLICH JA
COGHLAN JA:
Stephen Gavanas (‘G’) and Mohammad Khodr (‘K’) stood trial in the Supreme Court in 2010 on three counts, namely – conspiracy, with Horty Mokbel (‘M’) between 1 May and 9 October 2006, to traffick a large commercial quantity of methylamphetamine (by manufacture) (Count 1);[1] possess substances and equipment with the intention of using them for the purpose of trafficking in a drug of dependence (methylamphetamine, by manufacture) (Count 2);[2] and traffick (by manufacture) a drug of dependence, methylamphetamine, in not less than a commercial quantity (Count 3).[3] After a 33 day trial, they were both found not guilty on Count 1, but guilty on Counts 2 and 3. Count 2 had been presented as an alternative to Count 1. K was also convicted, on a second presentment, of possessing a drug of dependence, namely cocaine.[4]
[1]Contrary to s 79, Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’).
[2]Contrary to s 71A of the Act.
[3]Contrary to s 71AA of the Act.
[4]Contrary to s 73(1)(b) of the Act.
The maximum penalty for the offence on Count 2 was 10 years’ imprisonment. The maximum penalty for the offence on Count 3 was 25 years’ imprisonment. The maximum penalty on the possession count, only referable to K, was imprisonment for one year.
On 8 November 2010 the judge sentenced the men as follows:
G: Count 2: 6 years’ imprisonment (base)
Count 3: 6 years’ imprisonment (4 years’ cumulated on the Count 2 sentence)
Total effective sentence – 10 years’ imprisonment
Non-parole period – 7 years.
K: Count 2: 4 years’ imprisonment (base)
Count 3: 4 years’ imprisonment (2 years and 8 months cumulated on the Count 2 sentence)
Count 1 on second presentment: 14 days’ imprisonment
Total effective sentence – 6 years and 8 months’ imprisonment
Non-parole period – 4 years.
In the case of each applicant, the judge made a declaration with respect to pre-sentence detention.
On 10 November 2010, the judge amended the declaration of pre-sentence detention in the case of G, reducing it from 429 to 323 days. At the same time, he amended G’s non-parole period of imprisonment, by reducing it from seven years to six years and nine months.
Now G and K seek leave to appeal against conviction and sentence.
G seeks leave to appeal against his conviction only on Count 3.
K, to the contrary, seeks leave to appeal against his conviction only on Count 2.
Grounds, conviction applications
G relies, in his conviction application, upon these grounds:
Ground 1:The verdict on Count 3 was unreasonable or cannot be supported having regard to the evidence; and, in particular, it was not open to a properly instructed jury to be satisfied beyond reasonable doubt:
(a)that the applicant manufactured, or was a party to the manufacture of, the methylamphetamine seized;
(b)that the three amounts of powder seized came from the one ‘batch’; and/or
(c)that the applicant was aware or intended that at least 250 grams pure methylamphetamine would be produced.
Ground 2:The learned judge erred in his directions to the jury on the elements of Count 3; and, in particular, he erred in failing to direct that, unless the jury were satisfied beyond reasonable doubt that the three amounts of powder seized all came from the one batch, they could not convict of trafficking in a commercial quantity unless they were satisfied beyond reasonable doubt that, when the first batch was commenced, the applicant intended that there would be another or other batches that would produce at least 250 grams of pure methylamphetamine in total.
Ground 3:The learned trial judge erred in failing to leave, as an alternative to Count 3, the verdict of guilty of trafficking simpliciter.
K relies, in his conviction application, upon this ground:
Ground 1:The verdict of the jury on Count 2 was unreasonable and/or cannot be supported having regard to the evidence, and, as a consequence, there has been a substantial miscarriage of justice.
Particulars of Ground 1:
(a) It was not open to a jury, acting reasonably, to have been satisfied beyond reasonable doubt that the applicant possessed substances and equipment with the intention of using the said substances and equipment for the purpose of trafficking.
Circumstances
What follows is an overview of the evidence. We will add to it when addressing the arguments advanced for each applicant.
The offending the subject of Counts 2 and 3 centred upon alleged activities and items found at two premises: 12/6-18 Pascoe St, Pascoe Vale (‘Pascoe St’) and 74 Melville Road, Pascoe Vale (‘Melville Rd’).
Pascoe St
G, a Sydney resident who moved to Melbourne, rented Pascoe St on a 12 month lease which commenced on 6 May 2006. The property was part of a row of units. It had a single car garage. It was never fitted out as a place to live. Only a few items of furniture were moved in; and no personal effects.
On various occasions between 30 July and 9 October the applicants together, or one or other of them, visited the premises. We will expand upon the occasions and the circumstances of attendance later in these reasons.
On 27 August 2006, a covert police entry revealed glassware and other equipment of a kind used in the production of methylamphetamine (which it is convenient to describe simply as ‘the drug’) in the garage of the premises.
On 20 September, another covert entry revealed the presence in the garage of chemicals relevant to production of the drug by the so-called P2P method. A sample was taken of a white crystalline substance.
On 23 September, in the course of a third covert entry, a sample was taken of a liquid taken from a drum in the garage.
There was evidence that the two samples were of chemicals susceptible of use in production of the drug by the P2P method.
On 9 October 2006, police again searched the garage. In addition to chemicals and glassware they observed a tub containing three bags. In the bags was a powder which on analysis proved to be a mix of the drug. A bag of the drug mixture was found in K’s possession when he was arrested later that day. He had been to Pascoe St in the interim. It is beyond debate that the bag which was in his possession at time of arrest had been taken from Pascoe St.
Police took photographs of the Pascoe St garage after G and K had been arrested. They show very clearly the absence of anything in the garage other than the drug-making equipment and chemicals.
Melville Rd
K and his wife rented Melville Rd from 1997. They lived there with their children.
The premises had a rear bungalow, in which there was a kitchenette.
The bungalow was searched on 9 and 10 October 2006. Some clothing and personal effects belonging to G were found there. In addition, equipment and chemicals were found which supported a conclusion that a quantity of the drug had been produced there by the so-called pseudoephedrine process. A fingerprint of G was found on a discarded bottle which had contained creatine. There was expert evidence that creatine could possibly be used as a cutting agent for the drug; but other evidence suggested that creatine had not been used as a cutting agent in this instance.
Development of the Crown case
The Crown case on Counts 1 and 2 was interrelated, but did not wholly overlap.
Respecting Count 1, the Crown case was that M, G and K, all of whom were observed associating in 2005 and 2006, entered into an agreement to traffick a large commercial quantity of the drug. Trafficking was to be by manufacture, using the P2P method. Chemicals and equipment were stored at Pascoe St pursuant to that agreement and with that intention. The agreement between the three men was evidenced by what was done.
The judge emphasised, when charging the jury, that M’s participation was central to the conspiracy which was alleged. Absent his participation in the agreement, G and K must be acquitted on Count 1.
It is here convenient to note that the presentment was severed. M, who was to be presented with G and K, was not. Later, after G and K had been convicted on Counts 2 and 3, M pleaded guilty to a count of possess substance and equipment for purpose of manufacture, and was sentenced by the judge who had sentenced G and K to six years’ imprisonment with a non-parole period of four years and six months.
Evidence supporting the Crown case on Count 1 was particularly adduced from witnesses FQ, GH and RS. As well, there was evidence of attendances and activities at Pascoe St and Melville Rd, including evidence as to chemicals and equipment stored at Pascoe St.
FQ gave evidence that he taught G how to produce the drug by the P2P method. FQ was a long-time manufacturer of the drug on a large scale, and an associate of M. According to FQ, G told him that he knew about the pseudoephedrine manner of producing the drug. FQ was arrested in April 2006.
GH gave evidence of sourcing chemicals and equipment relevant to manufacture of the drug from RS between 2003 and his arrest in April 2007. He supplied chemicals to FQ for eight months leading up to the latter’s arrest. FQ then told him to look to G for payment of moneys owed by FQ to GH. But M told him to leave G alone. M also provided GH with a shopping list of drug-making chemicals. GH provided M with chemicals, which he sourced from RS. M paid GH in cash. On one occasion, M told G to take possession of a consignment of chemicals which GH had brought for collection by M, and G did so. On another occasion, G received from GH possession of chemicals ordered by M.
RS gave evidence that, in addition to running a legitimate company dealing in chemicals, he supplied GH with large quantities of drugs used in the manufacture of the drug by the P2P method. This was in the period which commenced in late 2005 or early 2006 and ended when he, RS, was arrested in April 2007. He identified tax invoices for bags of a chemical known as sodium acetate anhydrous.
These bags of chemicals were some of those seized at the search of the Pascoe St garage on 9 October 2006.
Each of FQ, GH and RS was, by his admission, criminally involved in relevant events. Each received a sentencing benefit as a result of his co-operation with the police and the Crown. The credibility and reliability of the evidence of each of them was very vigorously attacked in cross-examination.
FQ, by his own admission and by convictions, was a long-time manufacturer of the drug. He was shown to have lied about many things over a period of years. This is not to say, however, that parts of his evidence should not have been accepted when considered in conjunction with other evidence. The submission by G’s counsel that the acquittal of his client and K on Count 1 meant that the jury must have concluded that none of FQ’s evidence was reliable went much too far.
GH and RS also admitted lying at times; and defence counsel made much of inconsistencies in their evidence about matters relating to their dealings with M and G. But some of their evidence was incontrovertible. For instance, as we have already noted, chemicals sourced from RS were found in the Pascoe Street garage.
The Crown accepted that aspects of the evidence of FQ and GH were essential to its case on Count 1. The judge directed the jury that it must be satisfied of those parts of the evidence to the criminal standard.
The Crown further conceded that, if G was acquitted on Count 1, so also must K be acquitted.
Respecting both Counts 2 and 3, the Crown relied upon there being a joint criminal enterprise between G and K. The circumstances to which the Crown pointed to establish that G and K were guilty on Count 2 were essentially the circumstances relied upon to establish Count 1. But the significance of those circumstances was relied upon in a different way.
The Crown contended that, at Pascoe Street, G and K essentially managed a storage facility for chemicals and equipment to be used in manufacture of the drug by the P2P method. Although the premises were rented by G, there was evidence that both he and K attended the premises on occasions in the months preceding 9 October 2006, sometimes together, sometimes alone;[5] and that K attended on several occasions with a third man. On some of those occasions there was loading or unloading of chemicals or equipment. This was at times directly observed; on other occasions, it was a matter of inference. Each of G and K evidently had a key to the premises, which were kept locked when neither of them was present. It was to be inferred from the concatenation of circumstances that there was an agreement between the men to possess those chemicals and equipment, and an intention to produce the drug by the P2P method. The fact that the chemicals were, for the most part, unlabelled did not preclude the conclusion that both men knew that the chemicals were usable for, and intended them to be used for, the manufacture of the drug by that method.[6]
[5]K’s counsel challenged the identification of his client by surveillance witnesses. But it was open to the jury to conclude that identification was established.
[6] In the case of G, we add, there was evidence that he had brought a container of chemicals to Pascoe St. So the inference was irresistible, in context, that he knew of its utility in production of the drug by the P2P method.
The Crown put an alternative case respecting Count 2. It was that, absent a joint criminal enterprise, G and K were individually guilty of the offence alleged by that Count. The judge rightly directed the jury that, in order to find G and K guilty on Count 2, the jurors must be unanimous whether guilt was established by the joint criminal enterprise or individual liability route.
Respecting Count 3, the Crown advanced its case only on the footing of joint criminal enterprise. It alleged that G and K together committed the trafficking offence, by manufacturing the drug by the pseudoephedrine method in not less than a commercial quantity. The three bags of mix containing the drug observed at Pascoe St on 9 October were alleged by the Crown to have been manufactured in the Melville Rd bungalow, it having been set up as a clandestine laboratory, in the period 6 – 9 October. It was manufactured, so the Crown said, using equipment transported by G and K from Pascoe St to Melville Rd in the early evening of 6 October, and later returned to Pascoe St by K. The ‘cook’ inferentially, began on the evening of 6 October, when K was observed to leave Melville Rd, buy a large quantity of ice – which is used to cool equipment during the manufacturing process – and then return to Melville Rd. The person who undertook the ‘cook’ was, by inference, G. He had admitted to FQ that he was an experienced cook of the drug by the pseudoephedrine method.
K lived at the premises. Surveillance revealed that G attended the premises from time to time. He admitted to a police officer that he sometimes stayed there. A few of his personal effects were found in the bungalow. He went to the premises in the early evening of 6 October, he and K bringing with them from Pascoe St, equipment relevant to the manufacture of the drug.
There was expert evidence that the quantity of the drug, pure, contained in the three bags of powder to which we have earlier referred was some 427 grams.[7] A commercial quantity of the drug, in pure form, was not less than 250 grams at the relevant time.
[7]The Crown relied upon the evidence of Wayne Mitchell.
The judge’s charge
The judge, when directing the jury upon Count 3, addressed the necessary elements of the alleged agreement between the two men. With respect to intention, he directed the jury that the Crown must prove ‘an intention to manufacture 250 grams or more’[8] by each of G and K when they entered into that agreement. He also gave a direction that the Crown must prove that ‘250 grams or more was the quantity in fact manufactured.’
[8]By the pseudoephedrine method.
Further as to the charge, we note that – (1) his Honour provided the jury with documents which described the elements of each offence, and then explained the elements orally; (2) no exception was taken to his Honour’s charge in that connection; (3) the judge, in recounting the evidence, gave the accused men a considerable benefit by detailing not only questions in cross-examination to which FQ, GH and RS assented, but also florid allegations which they denied; (4) no exception was taken to his Honour’s summary of the evidence, or of his summary of counsel’s addresses; and (5) his Honour provided the jury with a transcript of evidence, suitably describing the use to which it could be put.
Conviction application, G
Ground 1
Under this Ground, as we earlier noted, G challenged his conviction on Count 3. He took no issue with the jury’s finding on Count 2 that he and K had in their possession, at Pascoe Street, substances and equipment for the purpose of trafficking in a drug of dependence (methylamphetamine) by manufacture.
It was contended for G that the jury must have had a reasonable doubt that G had manufactured, or been a party to the manufacture, of the drug which was seized on 9 October 2006. First, FQ’s evidence that G had admitted to the manufacture of the drug by the pseudoephedrine method should, it was said, be discarded because FQ’s evidence had evidently been rejected with respect to Count 1. It should be concluded that the jury had wholly rejected the witness’s credibility. Second, G had not been at Melville Rd long enough for any period between 6 and 9 October to have been involved in the alleged manufacture. Third, it was not open to the jury to conclude that G was party to an agreement with K to manufacture the drug at Melville Rd.
There was no substance to those submissions. There was any amount of evidence that G and K were party to the storage of equipment suitable for the manufacture of the drug by the pseudoephedrine method (as well as the P2P method) at Pascoe St. G was paying nearly $1400 per month rental for those premises for no good reason. He was not occupying them. Their garage was simply used for the storage of drug-making equipment and chemicals. It was also clear that G and K transported equipment pertinent to production by the pseudoephedrine method from Pascoe St to Melville Rd on the evening of 6 October, that K then went out alone and bought a quantity of ice – relevant to production of the drug – and took it back to Melville Rd. There was very strong evidence that a quantity of the drug was produced by the pseudoephedrine method in the bungalow, probably between 6 and 7 October, and that K thereafter took the equipment and the finished product back to Pascoe St.
The acquittal on Count 1 did not mean that the jury must have rejected FQ’s evidence that G had claimed to be an experienced cook of the drug by the pseudoephedrine method. The evidence of what was done at Melville Road, in circumstances where K was not shown to have the knowledge to produce the drug by that method, and where G was known to be present on the evening of 6 October, made FQ’s evidence of what G had told him credible, and such as could be relied upon.
Counsel for G argued that there was a gap in the evidence of surveillance of Melville Rd on 6 and 7 October. Counsel submitted that this admitted of the possibility that G may have left the premises, unobserved, sometime after 7.40 pm on 6 October, and was not present during the period of the presumed ‘cook’. Alternatively, counsel submitted, G was an unidentified person who left the premises with K on the evening of 6 October, and was not seen to return that night. Counsel argued that the first confirmed sighting of G, after about 7.40 pm on 6 October, was at about 10 am the next morning, at which latter time he was observed in a vehicle in the company of K in Melville Rd. Although the evidence was not clear, it is likely that the vehicle was then travelling away from the Melville Rd premises. If it were otherwise, much could have been made of G returning to the premises.
It is true that, in the period between 7.40pm on 6 October and about 10am the next day, G was not seen. But the evidence was extremely strong that manufacture took place overnight on 6-7 October by the pseudoephedrine method. G was, by an admission which it was open to conclude he had made, skilled in manufacture of the drug by that method. No other person known to be at the premises that night was identified as having the necessary skill. G entered the premises before manufacture began, bringing with him pertinent equipment. Soon thereafter, K went out to buy the necessary ice. K thereafter left the premises to buy food. From the time he was observed entering the premises, G was not seen thereafter until he was observed in the vicinity of those premises after a period of time had elapsed which was sufficient, according to some evidence, for the manufacturing process to have been completed.
The inference G was present, and personally participating, throughout the ‘cook’ was irresistible. One would conclude that G was the cook,[9] that K was the errand boy, and that when the ‘cook’ was completed K undertook the further errands of returning the equipment to the premises rented by G, along with the finished product. K’s visits to those uninhabited premises, we add, took place just after 12 noon on 7 October, and at about 8pm and 11.30 pm on 8 October.
[9]Or at very least, a cook.
In all, there was no evidence that G did leave the premises at any time during the night of 6-7 October, and what was demonstrable very strongly favoured a conclusion that he remained there.
If it mattered, we add, the expert evidence did not require that the person undertaking ‘the cook’ must be present throughout the manufacturing process; whilst the evidence as to how long a ‘cook’ would take varied from one witness to another.
Further, the Crown case on Count 3 was one of joint criminal enterprise. There was any amount of evidence – which we have already identified – that, whether or not G was present throughout the ‘cook’, manufacture was undertaken pursuant to an agreement between he and K.
The next argument advanced for G, under cover of Ground 1(b) and (c), had two interrelated aspects. First, it was not open to the jury to be satisfied to the criminal standard that the powder seized came from the one batch. Second, it was not open to the jury to be satisfied that G was aware, or intended, to produce more than 250 grams of the drug, ‘pure’ (‘the threshold amount’). The gist of the argument was that, to be guilty on Count 3, G must have intended at the outset to
manufacture more than the threshold amount;[10] and that such an intention could not be safely inferred if the pure drug had been the result of multiple ‘cooks’.
[10]This was an application by analogy of the proposition stated, by reference to other authorities, in Mustica v The Queen (2011) 31 VR 367. That was a Giretti trafficking by sale case. It was not contended for the Crown that Mustica would not apply to a trafficking by manufacture case.
Expanding that argument, it was said that if the drug found in the three bags was the product of multiple batches, the possibility could not be excluded that there was manufacture at different times. And if that could not be excluded, then the possibility could not be excluded, in turn, that decisions were made at different times to make the three batches. And then, in turn, the possibility could not be excluded that G and K intended from time to time to commit trafficking simpliciter offences.
Before going on, this must be said. This is yet another occasion in which grounds of appeal, apparently not drawn by trial counsel, seek to raise factual issues which were not adverted to in the defence pursued at trial; which factual issues are then relied upon – by Grounds 2 and 3 – to contend that the trial judge erred in his directions to the jury.
A fundamental shift on appeal from the way in which the defence case was conducted at trial highlights the observation of Gleeson CJ in Doggett v The Queen[11] that:
The manner in which a trial is conducted, and in which the issues are shaped, especially where (as in the present case) an accused is represented by experienced and competent counsel, has a major influence upon the way in which the case is ultimately left to the jury, and upon the directions, comments and warnings, from the trial judge to the jury, that may be appropriate or necessary. Directions are not ritualistic formularies. Their purpose is to assist the jury in the practical task of resolving fairly the issues which have been presented to them by the parties.
[11](2001) 208 CLR 343, 346.
The obligation of a trial judge, onerous as it is, does not extend beyond the task stated in Alford v Magee[12] as follows:
(I)t may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are…and looking at the matter from a practical point of view, the real issues will generally narrow themselves down to an area readily dealt with in accordance with Sir Leo Cussen’s great guiding rule.
[12](1952) 85 CLR 437, 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ).
As Hayne J observed in Melbourne v The Queen:[13]
The task of directing a jury in a criminal case is never easy. It would be made no easier (and would serve no purpose) if trial judges were required to give more, and more complicated, directions than the particular case requires. But the obligation of a trial judge, onerous as it is, does not extend so far.[14]
[13](1999) 198 CLR 1.
[14]Ibid 52 [142].
Then his Honour, after referring to what was said in Alford v Magee, went on to emphasise that it was neither necessary or desirable that a trial judge go further than to instruct the jury as to so much of the law as they need to know for the purposes of deciding the particular case tried before them.[15]
[15]Ibid 53 [143].
Applying such an approach, to give but one example, this Court concluded, in R v Nguyen[16] that there had been no obligation upon the trial judge to direct the applicant as to the mens rea of the applicant necessary to establish an intent to traffick in or cultivate a commercial quantity of a specified drug when the defence conducted at trial was a denial of any association with the criminal activity relating to the drug.
[16][2006] VSCA 158, [20]-[21]. See also R v Aden & Toulle [2002] VSCA 79, R v VN (2006) 15 VR 113, [119]-[122] and R v Alexander [2007] VSCA 178.
Of course, the fact that defence counsel does not stress an alternative case before the jury does not relieve the judge of the responsibility of directing the jury to consider the alternative if the evidence is such as would justify a direction that they should consider it.[17] Whether it be a defence as such or a deficiency in the prosecution’s proof of an element of the offence, it must be ‘sufficiently raised’[18] by the evidence so that the issue is exposed. Notwithstanding that a forensic decision was made not to rely upon a defence, a trial judge must put to a jury any matter or defence on which a reasonable jury, upon the evidence, could find for the accused.[19] While no narrow view of the evidence should be taken, the matter or defence must
be a ‘real issue’ plainly arising from the evidence as distinct from a remote or artificial possibility.[20]
[17]Pemble v R (1971) 124 CLR 107, Fingleton v R (2005) 216 ALR 473, [83] (McHugh J), Zhu v The Queen (2013) VSCA 102, [21]-[22] (Redlich JA and Kaye AJA).
[18]King v R (2003) 215 CLR 150, 168 [52] (Gummow, Callinan, Heydon JJ); Braysich v The Queen [2011] HCA 14, [32] (French CJ, Crennan and Kiefel JJ).
[19]Pemble; Van den Hoek v The Queen (1986) 161 CLR 158.
[20]R v Tran [2007] VSCA 19, [38]-[45] (Redlich JA).
An issue discrete from the defence which was conducted will not require a direction unless the evidence is sufficiently clear and cogent to properly raise the alternate defence, so that a jury acting rationally might entertain a reasonable doubt as to whether the prosecution has established a necessary element of the charge.
Where grounds of appeal raise issues not explored at trial, involving an analysis of the evidence which differs from that which the defence at trial required, an applicant will face the difficult task of showing that there were issues, not adverted to at trial, which called for further directions in order for there to have been a fair trial according to law.
This appeal provides an example of the importance and necessity, when evaluating criticism of a trial judge’s directions, of relating those criticisms to the manner in which the trial was conducted. As will be seen, the Court’s analysis shows that the issues now raised were not sufficiently raised and exposed by the evidence so as to require the judge to give the suggested directions.[21] Our analysis demonstrates the unreality of the applicant’s implicit proposition that the judge was obliged to sift through the evidence to discover whether there was something which could possibly suggest that a defence neither raised in evidence nor in submissions could be tortured out of the material.
[21]See [64] above.
As we have already noted – (1) the Crown case was one of joint criminal enterprise; (2) the judge directed the jury that the Crown must prove that, at the time when G and K entered into an agreement, they intended to manufacture more than the threshold amount by the pseudoephedrine method; and (3), in fact they manufactured more than that amount by that method. The matters now under discussion focus upon (2), because, as we have said, it was plainly open to the jury to find that G and K agreed to manufacture the drug by the pseudoephedrine method, and to find that more than the threshold amount was in fact produced pursuant to that agreement.
It was implicit in the submission advanced for G that it was open to the jury to infer that he and K had the relevant intention if there was a single batch manufactured, in the course of which more than the threshold amount was produced.
As we have already observed, the argument noted at [56] and [57] was no part of G’s ‘case’ at trial. The threads of that case were that – (1) no manufacture of the drug had taken place at Melville Rd; (2) the Crown had not proved that G was at those premises if and when manufacture did take place; (3) he had not been at the premises for a sufficient length of time to have been involved in manufacture of the drug; (4) it was possible that the drug mixture found in the three bags had been manufactured elsewhere.
To emphasise the case which was addressed, we should refer to aspects of the evidence adduced by the Crown from the expert witnesses Mitchell and Heagney.
Wayne Mitchell, a forensic chemist, gave evidence of the weight of the pure drug in each of the three bags. He said that there was some variation in the percentage of the drug in the mix from one bag to the other. This was something he had seen during his work as an analyst. He also gave evidence as to the set-up at Melville Rd. Cross-examination by counsel for G focussed upon items which would have been needed to manufacture the drug at Melville Rd, and which Mitchell did not observe there. Counsel did not cross-examine about what was now said, in argument in this Court, to be the significance of the variations in the percentage of the drug in the mix in the three bags. Nor was Mitchell cross-examined as to the total weight of the ‘pure’ drug in each bag.
Aaron Heagney, a scientist employed by the Australian Forensic Drug Laboratory, gave evidence of analysing three samples of the drug mixture – that is, one from each bag. The purity varied from one sample to the other. Purity is set within a range. Two of the three samples were within that range. One was not; but it was still ‘within the ballpark of purity’. The witness also determined that the three samples had been produced by the same kind of reaction, and that there were similar levels of impurities. He concluded, after considering all aspects of his testing, that it was ‘highly likely’ that all three samples originated from a common chemical source; by which, he said, he meant the same manufacturing batch.
Neither counsel for G nor counsel for K cross-examined the witness.
Next, we should refer to the closing address of counsel for G. He submitted that Mitchell’s evidence showed, in substance, that manufacture could not have taken place at Melville Road. Counsel did refer to the drug purity in the three samples analysed by Heagney, but only to make the point that the cutting agent used was not the jar of creatine on which his client’s fingerprint was found. He also used the quantity of drug in the three bags to argue that the manufacturing process must have been so large as to be inconsistent with what was found at Melville Rd. Again, he developed an argument that his client had not been at Melville Rd for a period of time sufficient to have engaged in manufacture of the drug.
Having identified the issues joined at trial, and referred to relevant evidence in chief and cross-examination, and to the closing address of counsel for G, we have no doubt that the foundation of the argument noted at [56] and [57] above – that is, that the jury must have had a reasonable doubt that the drug found in the three bags was the product of a single batch – was unsound. As the witness Heagney explained, his conclusion that it was ‘highly likely’ that the samples which he analysed came from the same manufacturing batch was based upon a number of different analyses. It did not rest simply upon the purity of the drug in the samples – remembering in any event that by purity he meant no more than the proportion of the drug in the mix.
We see no reason why, the witness’s opinion not being challenged in cross‑examination, nor being the subject of any submission in counsel’s closing address, the jury was bound to have had a reasonable doubt that the drug in the three mixes was the product of a single manufacturing process. There was nothing, in our opinion, to counsel’s submission that the term ‘highly likely’ admitted of reasonable doubt, giving meaning to that ordinary use of the English language. Had the witness given evidence in the language of the criminal standard, no doubt that would have attracted criticism. We consider that it was well open to the jury to conclude, having regard to all the evidence, that the three bags of drug mixture were the product of manufacture at Melville Road in the period 6-9 October 2006. Apart from the evidence already referred to, the evidence at trial, discussed below at [80], did not raise as a likely hypothesis that there was more than one ‘cook’ during the period that G and K were under observation.
Counsel for G argued in final address that the Crown’s case was too simplistic, that there were matters which did not fit. But, acknowledging the forensic points raised, the jury was, in our view, well-entitled to accept that simple Crown case.
If, contrary to our view, the jury should have had a reasonable doubt that the drug mix was the product of a single batch, we consider that the next steps in the argument noted at [56] and [57] would not follow. At least that is so in the context of the trial that was had.
Assuming that the reasoning in Mustica v The Queen[22] can be applied to a trafficking by manufacturing situation, the Crown case, despite the ‘between dates’ in Count 3, was that trafficking by manufacture took place by manufacture at Melville Rd in the period 6-9 October 2006. No other case was placed before the jury. The activity began with the transport of manufacturing equipment to Melville Rd on the evening of 6 October. By 9 October the equipment had been returned to Pascoe St together with three bags of drug mixture manufactured in the interim. In those circumstances, even if intention had been a live issue – which it was not – we see no reason why the jury might have doubted that G and K had intended at the outset (as the judge directed the jury it must approach the matter) to produce more than the threshold amount of the drug, whether by one or more ‘batches’ manufactured over a quite short period of time. The factual circumstances were not at all like those which fell for consideration in Mustica.
Ground 2
[22](2011) 31 VR 367.
In our opinion, for the reasons we have already given, there was no error in the judge’s directions. The evidence did not support there being room for reasonable doubt that the drug was the product of a single batch of manufacture. Further, no exception was taken to his Honour’s charge with respect to proof of intention. Even if there had been room for doubt about the matter, it would not in the circumstances of this case have required the direction which the Ground contends should have been given. The judge directed the jury that the relevant intention must have been held from the outset of the agreement, and the time-frame of manufacture, on the Crown case, was very confined. The prospect of formation of a series of discrete intentions, batch by batch, lies in the realm of fantasy.
Ground 3
In our opinion, there is no substance to this Ground. No exception was taken to the charge. The Ground raises an issue which was not alive at trial, and it really rests on an argument, which we have rejected, that the jury must have had a reasonable doubt that the drug in the three bags had been manufactured in the one batch. There was no factual basis for a verdict of trafficking simpliciter.
Conviction application, K
In written submissions, counsel for K contended that –
(1)because her client visited Pascoe St in the course of committing the offence the subject of Count 3 – that is, to collect and return equipment, and to take the drug mixture to Pascoe St – the possibility could not be excluded that his attendances at Pascoe St were consistent simply with his Count 3 offending.
(2)The jury ought to have had a reasonable doubt whether K possessed the chemicals at Pascoe St (there was no issue that he possessed the equipment), or that he possessed the same with the intention of using the same to traffic a drug of dependence.
(3)There was no evidence that K knew how to make methylamphetamine by the P2P method.
(4)There was no evidence that K lived at Pascoe St. He only visited irregularly.
(5) There was no evidence that K knew what the chemicals stored at Pascoe St were. With one exception, they were not labelled.
(6)An inference could not reasonably be drawn that the applicant knew of the existence of the items in the garage, other than the equipment.
(7)The chemicals arrived at the premises in the period between two police covert entries. There was no evidence as to who placed the chemicals in the garage.
Orally, counsel submitted that the jury should have had a reasonable doubt of her client’s guilt on Count 2 because it was not open to exclude the reasonable possibility that his attendances at Pascoe St solely related to Count 3; and because there was not enough evidence to prove possession, knowledge and necessary intention.
The first of those submissions, counsel conceded, was not raised at trial. The second of them was raised by a no-case submission, and was rejected.
In our opinion, neither submission should be accepted.
As to the first of them, it needs to be remembered that the Crown case was one of a joint criminal enterprise, or else individual liability. K’s guilt on Count 2 did not stand or fall on the number of times that he visited Pascoe St.
He and G were observed in close association over a period of months up to the time of their arrest in October 2006. G rented Pascoe St, and attended there often between 31 July and 9 October 2006. The premises were not inhabited, and were simply a warehouse for storage of equipment and chemicals for production of methylamphetamine by the P2P method;[23] and, at the end, for storage of the drug produced by the pseudoephedrine method.
[23]The equipment was also usable, and was in fact used, to produce the drug by the pseudoephedrine method.
K was also observed to attend Pascoe St on a number of occasions. There were 10 attendances in all, the first on 25 August, the last on 9 October 2006.[24] The last five took place between 5 October and 9 October, and so might be taken to relate to the activities at Melville Rd between 6 and 9 October. But that is not so with respect to the five attendances between 25 August and 27 September 2006, three of them in company with G, and two with a man named Menotti. By the time of one joint attendance with G, drug manufacturing equipment was on site. Twice when he attended with Menotti, in September, a covert police search had revealed that chemicals were now stored on site. There was also evidence which permitted an inference that K and Menotti loaded or unloaded items from a rented van which they had at the premises on the two occasions. As we have earlier said, the only items ever seen by police in the garage were drug-making equipment and chemicals.
[24]K’s counsel challenged identification evidence. But, as we earlier observed, the jury was entitled to accept the evidence that K attended Pascoe Street on each occasion identified by Crown witnesses.
In the event, it appears to us that there was much evidence from which the jury could safely infer that K was party to the possession of equipment and chemicals for use in trafficking methylamphetamine produced by the P2P method. Let it be assumed that K did not know, by name, what chemicals were stored in the garage. He did not need to know their names in order to possess them with an intent that they should be used to traffick the drug by manufacturing. Nor did he need to know the name of the method by which the drug was to be manufactured; only that the chemicals stored at Pascoe St were to be used in a particular manufacturing process, utilising the equipment on site, to make the drug. The jury was well-entitled to conclude that G was the main player in the Pascoe St venture, but that K was his associate and helper, party to an agreement such as the Crown contended for.
Conclusion, conviction applications
We refuse both G and K leave to appeal against conviction.
Sentence application, G
In his sentence application, G relies upon the following grounds:
Ground 1: The learned judge erred in the following respects:
(a)having reduced the applicant’s pre-sentence detention by 106 days, the learned judge should have reconsidered and reduced the total effective sentence on account of the reduction in pre-sentence detention and then reconsidered and reduced the non-parole period.
(b)Alternatively, having reduced the applicant’s pre-sentence detention by 106 days and having reduced his non-parole period by three months on account of the reduction in pre-sentence detention, the judge erred in failing to reduce the total effective sentence by three months as well.
Ground 2:The individual sentences, the order for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive and in breach of totality.
Ground 3:The individual sentences, the order for cumulation, the resulting total effective sentence and the non-parole period are manifestly disparate and give rise to a justifiable sense of grievance in the applicant when regard is had to the sentences imposed on his co-accused Mohammed Khodr and Horty Mokbel.
In our opinion, for the reasons which follow, Ground 3 should be rejected, but Grounds 1 and 2 upheld.
Ground 1
G was arrested and remanded on 9 October 2006. He remained in custody until he was extradited to New South Wales to face trial for a drugs offence committed in 2003. His extradition took place on 28 August 2007. His trial in New South Wales commenced on 28 November 2007 and concluded on 7 December 2007. He was convicted on 12 December 2007, was sentenced to a non-parole period commencing 27 July 2007 and expiring on 26 July 2010, and to a further period of one year’s imprisonment which was to commence on 26 July 2010 and to expire on 26 July 2011. After his trial, conviction and sentence in New South Wales, G was transferred to Victoria to serve his sentence. He remained in custody throughout the period from when his Victorian trial began until he was sentenced. That period commenced on 4 May 2010 and ended on 8 November 2010.
Initially, on 8 November 2011, the learned judge imposed a total effective sentence of 10 years’ imprisonment, which he cumulated on the unexpired part of the interstate sentence. He fixed a non-parole period of seven years. As the non-parole period under the interstate sentence had been served, the non-parole period under the sentence imposed by his Honour would begin immediately. The judge declared pre-sentence detention of 429 days.
It seems that the 429 days represented the combination of (1) the period of 323 days between G’s arrest on 9 October 2006 and 28 August 2007, which was the date on which he was remanded following extradition to New South Wales; and (2), the period of 106 days between 26 July 2010 (when G became eligible for parole under the interstate sentence) and 8 November 2010, when he was sentenced for the Victorian offending.
On 10 November 2010, the judge amended the declaration of pre-sentence detention so as to reduce the period to 323 days, representing the first of the periods just identified. His Honour reduced pre-sentence detention, because in the period July – November 2010 G continued to serve the interstate sentence.
Also on 10 November, his Honour reduced the non-parole period to six years and nine months’ imprisonment. He did not amend the head sentence.
His Honour stated that, as from 26 July 2010, G ‘became eligible for parole but could not be considered for parole because these matters were pending’. It was the ‘detriment’ of eligibility for parole ‘without being able to be considered for parole’ that his Honour relied upon in applying what he described as the ‘principles in Renzella’.[25]
[25]R v Renzella [1997] 2 VR 88.
Counsel for G submitted in this Court that the correct course was for the judge first to have addressed, and adjusted, the head sentence; and then to have re-considered the non-parole period.
Counsel for the Crown submitted, to the contrary, that the reduction in the non-parole period had given G an undeserved windfall. He had been imprisoned under sentence between 26 July and 8 November 2010. Renzella had no application. There should have been no reduction in any component of the sentence.
It is correct to say that the period between 26 July 2010 and 8 November 2010 was not a period of pre-sentence detention for the purposes of s 18(1) of the Sentencing Act 1991. G was serving the interstate sentence.[26] But it was a period of which account ought to have been taken in sentencing G. Although the circumstances differ from those which arose in cases such as R v Renzella,[27] R v Stares,[28] DPP v TY (No 2)[29] and Karpinski v The Queen,[30] the relevant principle is transposable. For reasons of totality, account should have been taken, in a general way, of time served under the interstate sentence which did not count as pre-sentence detention under s 18 of the Sentencing Act. At least ordinarily, that would involve an appropriate reduction in both the head sentence and the non-parole period.[31]
[26]R v Broad [1999] 3 VR 31.
[27] [1997] 2 VR 88.
[28](2002) 4 VR 314.
[29](2009) 24 VR 705.
[30](2011) 32 VR 85.
[31]Stares, ibid, 324 [31] (Charles JA); TY, ibid, 708 [11], 719 [59]-[62], Karpinski, ibid, 103 [73] (Tate JA).
The issue now under consideration arose in odd circumstances. The judge was informed, before sentencing G, that pre-sentence detention amounted to 373 days as at the date of plea, 13 September 2010; thus the 429 days which his Honour declared at date of sentence – 8 November 2010. That declaration bore upon the end date of the sentence which his Honour imposed, and also the date upon which G would become eligible for parole. But then the judge looked again at the circumstances, and came to the conclusion that pre-sentence detention had been overstated. The effect of his correct reduction of pre-sentence detention was that both the end date of the sentence imposed and the first date upon which G would become eligible for parole were later than the judge had understood they would be when sentencing the offender. That justified, and required, reduction of both the head sentence and the non-parole period in reliance upon totality considerations.
But the judge left the head sentence as it was. He explained, when correcting the pre-sentence detention declaration, and reducing the non-parole period, why he had done so. He said;
Because of the provisions of s 16C(3) of the Sentencing Act, it would not be appropriate to exercise my discretion so as to reduce the head sentence. This is because that would effectively make the sentences concurrent for the period of the reduction.
The question was what overall period of incarceration for all his offending, commencing at date of first detention in October 2006, G should be required to serve. The effect of the reduction in pre-sentence detention was effectively to extend the end date of imprisonment by more than three months. It did not follow, because the judge had fixed a head sentence of 10 years’ imprisonment cumulative on the interstate sentence in November 2010, understanding pre-sentence detention to be 429 days, that 10 years’ imprisonment cumulative remained the proper head sentence when pre-sentence detention was reduced to 323 days. For that reason, in our opinion, his Honour’s re-exercise of the sentencing discretion miscarried, and Ground 1 is made out.
Ground 3
It is next convenient to address Ground 3.
Counsel for G submitted that there was impermissible want of parity between the sentences passed on M on the charge of possess equipment and chemicals with the intention of using the same to traffick by manufacture. Counsel mainly focussed upon a comparison of the sentence imposed on M on that charge and the sentence imposed upon his client on Count 2. But he went so far as to argue that M’s offence was more serious than the entirety of the charges against his client.
In arguing impermissible want of parity, counsel mainly relied on the quantity of chemicals possessed by M – which was very much larger than the quantity possessed by G, upon the longer period of M’s offending, and upon what he submitted was the limited significance of M’s late plea of guilty.
In our opinion, this ground should be rejected. Each of the three matters identified by counsel was of significance. But, as against that – (1) G offended whilst on bail; (2) G had a subsequent conviction for an earlier-committed drug offence; (3) M did plead guilty; (4) M had not previously been imprisoned; (5) M had been on remand for a lengthy period on unrelated drug matters, and had been held in very burdensome conditions; (6) M had offered to plead guilty, in October 2009, to a charge substantially similar to that to which he ultimately pleaded guilty.
In all, the circumstances of the offences and the offenders did not involve a comparison of like-and-like, or anything approaching it.
Ground 2
Counsel attacked the sentence on Count 2, which he submitted was very high, and which did not allow for the worst cases. Respecting Count 3, he submitted that the offence was trafficking a lower level commercial quantity of the drug. It would not even have qualified as a commercial quantity in mixed form. So again the sentence was far too high. Added to this, on Count 3 there was no – or a lesser – basis for distinguishing between the sentences passed on his client and K. The overlap in circumstances between Counts 1 and 2 was such that to cumulate two thirds of the sentence on Count 3 on the sentence on Count 2 was ‘far too much’. The various errors flowed through into the non-parole period which the judge fixed.
In our opinion, there was force to the submissions that the sentence imposed on Count 2 and the order for cumulation were manifestly excessive. That conclusion has implications for the total effective sentence and the non-parole period.
Respecting Count 2, it is the fact that G offended whilst on bail for the interstate offence. He was a more important participant than K. His participation was motivated by the prospect of financial gain. He went to trial, so that there was no evidence of remorse. The judge considered that his prospects of rehabilitation were poor. Both general and specific deterrence were important.
Then there must be considered the question of the judge’s assessment of the quality of the offending. This is what his Honour said:
Overall, it seems to me that what occurred at Melville Road was a middle of the range instance of a very serious offence and what occurred at Pascoe Street was an instance more towards the top of the range of a serious offence.
With respect, to describe the offence the subject of Count 2 as ‘an instance more towards the top of the range of a serious offence’ appears to us to have significantly overstated the situation. The chemicals on hand at Pascoe Street were capable of yielding, it was said, between 9.4 and 14.6 kgs of undiluted methylamphetamine. It is true that, if the chemicals had been transformed into methylamphetamine, it would have constituted trafficking of a large commercial quantity of the drug. But there is a very great difference between the maximum penalties for trafficking a large commercial quantity and for possessing equipment and substances with the intention of using the same for the purposes of trafficking in a drug of dependence. Punishment for the latter offence cannot be a proxy for punishment of the former offence, which the legislature has treated as much more serious. Nonetheless, in assessing the gravity of an offence against s 71A of the Drugs, Poisons and Controlled Substances Act 1981, we accept the relevance of an enquiry as to what quantity of drug might have been produced by the offender had matters gone beyond what might be described as the preparatory offence.
In this case, the quality of pure drug which might have been produced was substantial. But, to take another instance of offending, it was very much less than the quantity of chemicals possessed by M might have produced. Those chemicals could have produced, it was said, 129 kgs of P2P (itself a drug of dependence), and from this 100 kgs of methylamphetamine. Now it is true that M was sentenced on the basis that he possessed equipment and chemicals preparatory to manufacture of P2P. But the comparison between the quantity of methylamphetamine which that quantity of P2P could have yielded permits a like-for-like comparison with the quantity of methylamphetamine which could have been produced from the chemicals possessed by G. Looked at another way, the chemicals possessed by G could have yielded a little less than 20 kgs of P2P – that is, about six-and-a-half times less than the quantity of that drug which transformation of the chemicals possessed by M could have yielded. In short, the quantity of chemicals possessed by G would have permitted production of a very much smaller quantity of the drug than would the chemicals possessed by M.
The judge who sentenced both G and M described M’s offending as ‘one at the top of the range’. Quite apart from the quantity of chemicals which M possessed, it was evident that he had a major role in sourcing supplies of chemicals to both himself and G. It was also the case that he had continued to offend for some six months after G and K were arrested, and that his activities involved the acquisition of chemicals for on-supply to others engaged in drug-manufacture and trafficking. The distribution between the scale and circumstances of M’s offending and the offending the subject of Count 2 in G’s case was indeed sharp.
Of course, the objective gravity of the offending had to be considered together with the circumstances of the offender. Otherwise, impermissible two tier sentencing would be involved. Nonetheless, even allowing for M’s plea of guilty and personal circumstances, the judge’s characterisation of his offending as being ‘one at the top of the range’ was understandable. The point, to repeat what we have already said, is simply that, all things considered, to describe G’s offending the subject of Count 2 as being ‘more towards the top of the range’ overstated the position.
We consider, in the event, that the sentence passed on G on Count 2 was manifestly excessive.
We are not persuaded, however, that the sentence passed on Count 3 was manifestly excessive. It is true that the scale of the offence was not great. But G’s personal circumstances, to which we have previously referred, were adverse. Nor do we agree with counsel’s submission that there was no basis for differentiating between G and K with respect to sentence on Count 3. True it is that the offence was committed at K’s home, that K assisted in the set up of equipment, and that K later took equipment and the bags of drug mixture back to Pascoe St. But G, inferentially, participated – perhaps with assistance[32] – in the ‘cook’; and his personal circumstances were considerably more adverse than were those of K.
[32]See the sentencing remarks, [16].
Then there is the issue of cumulation. It necessarily arises in consequence of our conclusion that G should be re-sentenced on Count 2. Bearing in mind the extent of overlap in circumstances relevant to the commission of Counts 2 and 3, and to totality considerations, we consider that half the sentence on Count 2 should be cumulated on the sentence on Count 3.
Conclusion
In the event, we would grant G leave to appeal against sentence. We would allow the appeal, and in lieu of the sentence imposed on Count 2 would impose a sentence of four years and six months’ imprisonment. We would confirm the sentence on Count 3. We would cumulate two years and three months of the sentence on Count 2 on the sentence on Count 3. The total effective sentence would be eight years and three months’ imprisonment. We would order that the sentence be cumulated on the interstate sentence. We would fix a non-parole period of five years and nine months’ imprisonment. That period must be taken to have commenced on 8 November 2010, the date upon which the judge passed sentence.
Sentence application, K
In his sentence application, K relies upon these grounds:
Ground 1:The sentence imposed on Count 2, the order for cumulation, the total effective sentence and the non-parole period was manifestly excessive.
Particulars of Ground 1:
(a)The individual sentence imposed on Count 2 was manifestly excessive taking into account the following matters:
·The applicant had no prior convictions, or findings of guilt, for drug related offending;
·The applicant had reasonable prospects for rehabilitation;
·The applicant played a lesser role than the co-accused Gavanas and Mokbel.
(b)The order for cumulation, total effective sentence and non-parole period was manifestly excessive in all the circumstances of the case having regard to excessive cumulation as between Counts 2 and 3.
Ground 2:The learned judge, in consideration of the principle of parity, erred by imposing a sentence on Count 2 which gives rise to a justifiable sense of grievance when regard is had to the sentence imposed on co-accused Horty Mokbel.
Particulars of ground 2:
(a)Mokbel was sentenced on 8 November 2010 after pleading guilty to an offence under s 71A of Drugs, Poisons and Controlled Substances Act 1981 – similar to Count 2 on which the applicant was found guilty;
(b)Mokbel’s offending occurred over a greater period of time and related to the possession of a significant additional quantity of chemicals;
(c)Mokbel’s offence was a much more serious offence than that to which the applicant was found guilty;
(d)There were significant differences, in the findings made by the learned judge, in sentencing the applicant and Horty Mokbel;
(e)there is disparity, such as to cause a justifiable sense of grievance between the applicant’s sentence and that imposed on Mokbel.
In our opinion, for the reasons which follow, Ground 1 is made out, but not Ground 2. We would grant leave to appeal, allow the appeal, and re-sentence K.
Ground 1 attacks the sentence imposed on Count 2, the order for cumulation, the resulting total effective sentence and the non-parole period.
We have concluded that the sentence imposed on G on Count 2 was manifestly excessive, and have explained why that is so. For essentially the same reasons, the sentence imposed on K on that Count was, in our opinion, manifestly excessive.
Respecting Ground 2, little need be said. We are not persuaded that, viewed overall, there was reason for K to have a justifiable sense of grievance with respect to the sentences passed on him and on M for their s 71A offences. That is so although we recognise that K’s personal circumstances were more favourable than those of G.
But, in any event, the new sentence which we propose should be made by reason of K’s success of Ground 1 would have the effect of widening the relativity between the sentences imposed on K and M; and there could certainly be no room for complaint of want of parity in those changed circumstances.
Conclusion
We would impose on K, on Count 2, a sentence of three years’ imprisonment. That would maintain the relativity between the sentences imposed on G and K by the judge at trial, which we consider was appropriate.
We would cumulate one year and six months of the sentence on Count 2 on the sentence on Count 3. The total effective sentence would thus be five years and six months’ imprisonment.
We would fix a non-parole period of three years and six months.
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