Imad Lakkis v The Queen

[2015] VSCA 208

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0214

IMAD LAKKIS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2015
DATE OF JUDGMENT:	7 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 208
JUDGMENT APPEALED FROM:	DPP v Lakkis (Unreported, County Court of Victoria, Judge Saccardo, 8 September 2014)

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CRIME – Application for extension of time to elect to renew application for leave to appeal – Out of time by a matter of days – Extension of time unopposed – Application granted – No point of principle.

CRIME – Sentence – Traffick in a large commercial quantity – Seven years six months’ imprisonment –  Sentence unremarkable – Application refused – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D D Gurvich	Valos, Black & Associates
For the Respondent	Mr D A Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WHELAN JA:

1. On 13 August 2014, the applicant pleaded guilty to one charge of trafficking in a drug of dependence in an amount not less than a large commercial quantity, the drug being methylamphetamine, and one count of trafficking a drug of dependence, the drug being cocaine. 

1. A plea hearing was conducted on 25 August 2014 and on 8 September 2014 a judge in the County Court sentenced him as follows:

Charges on Indictment	Offence	Maximum	Sentence	Cumulation
1	Trafficking in a drug of dependence – large commercial quantity [s 71 of the Drugs, Poisons and Controlled Substances Act 1981]	Life imprisonment [s 71 of the Drugs, Poisons and Controlled Substances Act 1981]	7 years 6 months	Base
2	Trafficking in a drug of dependence [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]	15 years [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]	1 year	6 months
Total Effective Sentence:		8 years
Non-Parole Period:		6 years
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:		145 days
6AAA Statement:   10 years’ imprisonment with a non-parole period of 8 years.
Other relevant orders: Disposal Orders Forensic Sample Order

1. The applicant sought leave to appeal his sentence on count 1 and in relation to the total effective sentence and the non-parole period. Leave to appeal was refused on 5 February 2015. The applicant's solicitors received notification of the refusal on 10 February 2015. Affidavits filed on the applicant's behalf by his solicitor indicate that the applicant wished to exercise his entitlement to have his application for leave determined by a Court constituted by two or more judges pursuant to s 315(2) of the Criminal Procedure Act 2009. 

1. Pursuant to r 2.08(2) of the Supreme Court (Criminal Procedure) Rules 2008 (the ‘Rules’), the applicant had 10 days after receiving notification of the refusal to elect to renew the application by completing and returning the requisite forms. The requisite forms were not returned within that period. They were returned on 12 March 2015.

1. By an application dated 17 March 2015, the applicant seeks an extension of time. The application relies, in terms, on s 315 of the Criminal Procedure Act. It seems to me that the relevant power to extend time is that in r 1.08 of the Rules.

1. Affidavits sworn in support of the application for an extension of time by the applicant's solicitor state that the applicant had expressed the wish to elect but that logistical arrangements to confirm those instructions, which may have been at least in part related to the provision of funds, were not made in time.

1. The respondent does not oppose the application for an extension of time. 

1. The application for an extension of time should be granted under r 1.08 of the Rules. The applicant was out of time by a matter of days. It seemed that he had instructed his solicitor within time that he wished to elect but that administrative problems prevented that instruction being carried out within time. I do not suggest that there was any fault on the part of the solicitor in that regard.

1. In my view, the time in which the applicant may elect should be extended to 12 March 2015. 

1. I turn then to the application for leave to appeal the sentence. 

1. On Saturday 21 July 2012 police raided the applicant's rural property.  The applicant was present there with an accomplice.  They had just taken delivery of a shipment of drugs.  The drugs which had been delivered were 1,329 grams of methylamphetamine and 297.7 grams of cocaine.  The purity of the drugs was relatively high; 346.8 grams of the methylamphetamine was 50 per cent pure and 982.2 grams was 80 per cent pure.  The cocaine was 50 per cent pure.

1. The applicant had been under police surveillance for three months.  During that time he had been arranging for the delivery of these drugs.  Amongst other things, telephones used by the applicant had been intercepted.  It is clear from these intercepts that the drugs were intended for on sale. 

1. At the time of sentence the applicant was 40 years of age.  The sentencing judge had before him a psychological report by Mr Patrick Newton which outlined his personal history. 

1. The applicant is the second of six children.  His parents migrated to Australia from Lebanon.  They successfully established a series of convenience stores.  The applicant completed Year 12 at a major private school and commenced tertiary studies which he did not complete.  After ceasing his tertiary studies, the applicant trained as a motor mechanic and he worked in that field for some years.  The applicant has two children.  He is separated from his former partner, who is the mother of those children. 

1. The applicant has prior convictions but not for drug trafficking or drug use.  In February 1998 he was convicted at the Melbourne Magistrates' Court of one charge of handling/receiving/retaining stolen goods and was sentenced to 12 months' imprisonment to be served by way of an intensive corrections order.  That order was breached and then re-imposed.  On 10 March 2005, he was convicted in the County Court of four counts of theft.  He was sentenced to a total effective sentence of three years' imprisonment which was suspended for three years. 

1. According to the account given to Mr Newton, the applicant commenced drug use in 2004.  His use significantly escalated so that by 2008 he was using one gram of cocaine each day.

1. Mr Newton diagnosed the applicant as suffering from a severe cocaine use disorder.  He said that the applicant presented as an immature man harbouring considerable feelings of insecurity who had employed drug use in an attempt to bolster flagging self-esteem.  Mr Newton described the applicant's mental state as being essentially normal.  He was concerned that there was a genuine risk of self-harm.  Mr Newton expressed the opinion that the applicant had responded positively to his arrest and that his drug use abuse appeared to be in remission.

1. The sentencing judge referred to the circumstances of the offending and made observations and as to the seriousness of the offences.  He set out the applicant's personal background and referred at some length to Mr Newton's findings.

1. The sentencing judge concluded that the offences had been motivated by money.

1. The sentencing judge referred to references which had been relied upon in the plea on the applicant's behalf.  He observed that the applicant had the support of family and that there was evidence that he was attempting to get his life ‘back on track’. 

1. The only proposed ground of appeal is that the sentence on count 1 (seven years six months’ imprisonment), the total effective sentence and the non-parole period are manifestly excessive. 

1. In substance, what was put was that the sentence on count 1 can be seen to be manifestly excessive when it is viewed in the light of a table of sentences for the same offence provided by counsel for the applicant.  The table set out the following cases and sentences for trafficking in a large commercial quantity:  Wilson v The Queen (eight years);[1]  Kneifati v The Queen (seven years);[2]  Dawid v Director of Public Prosecutions (eight years six months);[3]  Ryan v The Queen (nine years);[4]  Ibrahim v The Queen (eight years);[5]  DPP v Holder (eight years six months);[6]  Mong v The Queen (11 years six months);[7]  Pham v The Queen (Pham: 12 years;  Le:  eight years six months).[8]

   [1][2012] VSCA 141.

   [2][2012] VSCA 124

   [3][2013] VSCA 64.

   [4][2013] VSCA 184.

   [5][2013] VSCA 227.

   [6][2014] VSCA 61.

   [7][2015] VSCA 33.

   [8][2015] VSCA 34.

1. Manifest excess is a stringent ground, difficult to make good.  A sentence imposed, or a total effective sentence, will not be manifestly excessive unless it is wholly outside the range of sentencing options available.[9] 

   [9]See, eg, Ayol v The Queen [2014] VSCA 151 [30].

1. Count 1 carried a maximum sentence of life imprisonment. 

1. The applicant was the organiser of a large commercial drug trafficking operation.  Whilst the trafficking itself occurred on one day, it was at least three months in the planning and preparation, and the applicant's intention was to continue the operation by way of resale into the community.

1. There are limitations upon the use that can be made of what are said to be comparable cases.  The applicant's counsel addressed the table and drew distinctions between the cases in the table and the applicant's circumstances.  But notwithstanding his very careful and detailed analysis, my conclusion is that the sentence here of seven years six months’ imprisonment for trafficking in a large commercial quantity of a drug of dependence, after a guilty plea, is entirely unremarkable.  It cannot be concluded that it is outside the range of sentences open.  The table of sentences relied upon might suggest a lower sentence could have been imposed but if does not indicate this sentence is outside the range.

1. The applicable sentencing snapshot for the offence of trafficking in a large commercial quantity of a drug of dependence confirms this conclusion.  It indicates that imprisonment terms range from three years to 20 years and that the median term is seven years.[10]

   [10]Sentencing Advisory Council, Sentencing Snapshot:  No 163 (August 2014) 4.

1. Given that, in my view, it cannot be reasonably argued that the sentence on

count 1 is manifestly excessive, leave to appeal should be refused.

BEACH JA:

1. For the reasons given by Whelan JA, I agree that the application for an extension of time should be granted, but the application for leave to appeal must be refused.

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