Kolovouris v The Queen
[2017] VSCA 190
•20 July 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0072
| CHRISTOS KOLOVOURIS |
| v |
| THE QUEEN |
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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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| JUDGE: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 20 July 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 190 |
| JUDGMENT APPEALED FROM: | R v Kolovouris (Unreported, County Court of Victoria, Judge Gamble, 23 February 2017) |
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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of trafficking in drug of dependence – One charge of possession of substance, material, documents or equipment for trafficking in drug of dependence – Sentence of 12 months’ imprisonment and 2 year community correction order – Effect of timing of plea of guilty on sentence – Where plea of guilty entered at third committal mention – Where relevant period of trafficking disputed – Whether total sentence manifestly excessive – Haddara v The Queen [2016] VSCA 168 considered – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
SANTAMARIA JA:
The applicant, now aged 46, pleaded guilty to one charge of trafficking in a drug of dependence (methylamphetamine) and one charge of possession of substance, material, documents or equipment (phenethylamine) for trafficking in a drug of dependence.
The applicant was sentenced in the County Court as follows:
Charge on indictment Offence Maximum penalty Sentence Cumulation 1 Trafficking in a drug of dependence [Drugs Poisons and Controlled Substances Act 1981 s 71AC] 15 years’ imprisonment 12 months’ imprisonment and community correction order of 2 years - 2 Possession of substance, material, documents or equipment for trafficking in a drug of dependence [Drugs Poisons and Controlled Substances Act 1981 s 71A] 10 years’ imprisonment 12 months’ imprisonment and community correction order of 2 years - Total effective sentence: Convicted and sentenced to an aggregate term of 12 months’ imprisonment and a community correction order for 2 years. In addition to the mandatory terms of the community correction order, the applicant was directed to undergo supervision and treatment and rehabilitation. Non-parole period: - Pre-sentence detention declaration: - Section 6AAA Statement Two years and six months’ imprisonment with a non-parole period of 18 months’ imprisonment Other relevant orders Disposal order; forensic sample order
The applicant now seeks leave to appeal his sentence.
Circumstances of the offending
In May 2015, police started an investigation into a Vietnamese criminal group which trafficked and manufactured methylamphetamine, among other drugs, in Melbourne. The investigation was extensive and included telephone intercepts, covert surveillance and searches of premises and vehicles.
Police alleged that Tran Thanh Du (‘Du’) was a member of that group and that, in the course of selling drugs to lower level drug traffickers, he sold methylamphetamine to the applicant. The applicant was not a direct target of the investigation; his detection and arrest was a ‘spin off’ from the investigation.
The sentencing judge found that the trafficking in which the applicant engaged occurred over a three-and-a-half month period between 4 August 2015 and 20 November 2015.[1] The applicant’s activity came to light as a result of police surveillance, telephone intercepts and the evidence resulting from his arrest and interview on 22 February 2016.
[1]This finding is the subject of the applicant’s second proposed ground of appeal.
On 23 July 2015, police observed the applicant meeting Du in the car park of the Mulgrave Country Club. On 4 August 2015, at the same location, the applicant purchased methylamphetamine from Du.[2]
[2]R v Kolovouris (Unreported, County Court of Victoria, Judge Gamble, 23 February 2017) [11] (‘Sentencing remarks’). The applicant later told police that the drug was for his own personal use.
On 5 August 2015, Du asked the applicant if he had any money for ‘the 1.7 grams’.
On 8 August 2015, the applicant asked Du for more drugs and confirmed that he had the required money for payment. Later, after the applicant had been arrested and during the course of a police interview, the applicant said that this conversation was about buying ‘one or two’ grams.
On 9 August 2015, the applicant told Du that the applicant (a) did not have the money, as no one had called him, (b) had not sold the drug to the applicant’s friend, as the friend had wanted credit for an hour, (c) did not know if the applicant could sell ‘the whole ball’ (3.5 grams) that day and (d) thought that the two of them were talking too much over the phone.[3]
[3]Ibid [14]. In respect of this conversation, the applicant told police that it was his intention to get the drugs from Du for himself, not to on-sell them.
On the same day, the applicant also told Du that, before he would be able to pay Du, he first needed to ‘collect’ from two or three people who owed the applicant money. In the same conversation, he claimed that some of the drugs which Du had previously supplied to the applicant had been ‘wet and rubbish’.
On 14 August 2015, the applicant told Du that he wanted ‘the same one as last night’ and that he had the money. Later that day, police observed the applicant and Du meeting at the Village Green Hotel. After that meeting, the applicant met with one David Bartley (‘Bartley’) in the car park of that venue. Bartley was intercepted by police as he left the car park. A search of his vehicle yielded two plastic lock bags containing a substance that was later tested and confirmed to be 0.9 grams of methylamphetamine of 84 to 86 per cent purity.[4]
[4]Ibid [16]–[17]. The prosecution’s case was that the applicant sold to Bartley the methylamphetamine that he had just purchased from Du. When later interviewed, the applicant told police that Bartley was a friend whom he did not see very often. The applicant said that he caught up with Bartley and a man named ‘Tan’ on that occasion and that it was Tan who had sold about half a gram of drugs to Bartley. The applicant denied that he had sold drugs to Bartley and said that he was at the venue for ‘presence’ when the transaction occurred.
After the applicant left the car park, he spoke to Du and told him that he had ‘a couple of hundred spare’, or ‘a hundred spare’.
On 24 August 2015, Du told the applicant that he wanted money for the drugs that he had previously supplied to the applicant. He suggested that the applicant should ask the applicant’s customers for money. In response, the applicant said that he had to see ‘Tas’ to get money. Du told the applicant that he needed ‘one grand’. The applicant told him that he gave money to ‘Tran’ the night before and will have to ‘finish up business’. Du then said that he wanted $400 or $500. The applicant then told him that he was going to see a few people, get cash and then ring him. When Du called the applicant back a short time later, the applicant told him ‘20 minutes’. Du asked whether he and the applicant would meet at the same place. When the applicant asked Du whether he had anything, Du replied: ‘Later, you have to pay first’.
Later that day, police observed the applicant and Du meeting at the car park of the Mulgrave Country Club.[5]
[5]Ibid [20]. In his interview, the applicant admitted that he would have purchased drugs from Du at that meeting.
On 25 August 2015, the applicant and Du discussed the applicant providing Du with a sample of phenethylamine, a precursor chemical in the manufacture of methylamphetamine.[6]
[6]Ibid [21]. The prosecution opening was amended such that the substance the subject of charge 2 was phenethylamine, not iodine. The prosecution did not suggest that the applicant in fact had any precursor and acknowledged that this conversation was ‘just drug talk’. When interviewed, the applicant told police that it may have been a sample of ice that was being referred to in that conversation and that he would have just told him what he did to ‘get gear’, not because he actually had anything.
On 26 August 2015, Du called the applicant to ask him where Du’s money was. Du explained that he did not want to continue calling the applicant, but others were calling Du. The applicant told Du that he had not called him because he was still waiting for money himself. The applicant said that ‘Tas’ had not paid him yet, so the applicant took drugs back from him; the applicant said that he gave ‘Tas’ three and then took two back because ‘Tas’ did not have the money. The applicant then asked Du whether he had tried a sample of phenethylamine that he had given him earlier and whether he liked it;[7] Du said that he had not. The applicant said that, if Du showed the sample to someone, ‘they will know it is good’. The applicant told Du that he had two bags at home and that, if ‘they’ want it, they can have it immediately for $400 per bag, which, the applicant said, was cheap. Du asked the applicant whether he still had the one that he had given to ‘Tas’. The applicant told Du that he had it. The applicant and Du arranged to meet, and the applicant said that the price could be discussed at that meeting.
[7]Ibid [23]. This part of the conversation provided the factual basis for the second charge of possession of a substance (phenethylamine) with the intention of using it for the purpose of trafficking in a drug of dependence. The sentencing judge said that phenethylamine is a stimulant substance that is used as a cutting agent when preparing methylamphetamine for sale.
On 27 August 2015, Du rang the applicant asking him whether he had had any luck with ‘the one yesterday’. Du told the applicant that he wanted to meet him and said: ‘The people, they don’t want it’. The applicant told Du that he would get the money. The applicant and Du arranged to meet up.
On 1 September 2015, the applicant and Du discussed an ecstasy tablet sample and the price for which such tablets could be sold.[8]
[8]Ibid [25]. In his interview, Du said that, when he and the applicant spoke over the phone on that occasion, this may have been a reference to a sample that Du had given to the applicant to pass on. The applicant had no memory of whether it had been passed on and claimed to have said what he did ‘just to keep Du at bay’.
On 11 September 2015, Du asked the applicant whether he had any money. The applicant said that he did not, but that he could get some money from one of his customers only if Du gave him some ‘gear’ first. Du replied that he was waiting for a customer but he could bring the ‘gear’ when the applicant next called.
On 7 October 2015, Du and the applicant exchanged SMS correspondence in which Du asked the applicant for money. The applicant messaged Du saying that he would see him that afternoon.
On 8 October 2015, the applicant and Du spoke over the phone again. Du asked the applicant whether he could speak to the person whom the two of them had previously discussed and whom would help Du get $4,000.
On 9 October 2015, the applicant spoke to Du and told him that he ‘[needed] some soon’. When Du said that he had some available, the applicant told him that he would see him soon.
The applicant was arrested by police on 22 February 2016. Prior to his arrest, police observed the applicant meeting an Asian male at Brandon Park Shopping Centre. From there, the applicant drove the male to the Wheelers Hill Tavern, where the applicant entered the gaming room. At this point he was apprehended.
Police searched the applicant’s vehicle and found the following items:[9]
[9]Ibid [33]. Police also searched the home of the applicant’s parents but found nothing of interest to their investigation.
(a) a set of electronic scales;
(b) an ice pipe;
(c) a number of empty plastic deal bags;
(d) a number of other plastic bags, one of which contained traces of white crystal, two of which contained traces of white powder and two of which contained a total of 2.1 grams of the white powder, phenethylamine;[10]
(e) a bottle labelled ‘dexamphetamine’, with a white tablet that contained amphetamine and weighed 0.2 grams; and
(f) a further three bags which, on examination, contained two grams of the drug ice.
[10]Ibid [32]. Phenethylamine is not listed in any of the schedules to the Drug Poisons and Controlled Substances Act 1981.
When later interviewed, the applicant told police that he had purchased two grams of ice for $400 two days prior to his arrest. As to his movements just prior to being arrested, the applicant told police that he had met his friend, Brandon, at the shopping centre and the two of them had smoked some ice in his car. The applicant then dropped him off somewhere down the road, before going to the Wheelers Hill Hotel to play pokies. When questioned about the items found in his vehicle, the applicant said that he would need to weigh the ice before he used it, so as to avoid using too much of it. The applicant said that he used clean bags to avoid the presence of any foreign objects. The bags with traces of white powder were bags that he had previously used. During the interview, the applicant lied to police by telling them that he had never sold drugs.
After the interview, the applicant was charged and released on bail.[11]
[11]Ibid [38]. The applicant remained on bail until the date of sentence. Accordingly, there was no period of pre-sentence detention to be declared.
Personal circumstances of the applicant
The applicant was aged 44 at the time of the offending. Over the relevant period of offending, the applicant lived with his parents in Wheelers Hill and received approximately $400 per fortnight from a disability support pension. He has one sibling, an older brother, with whom he shares a close bond.
The applicant left secondary school halfway through Year 12, after which he worked for five years in a managerial position at Rebel Sport. He then worked in his family’s clothing manufacturing business for 12 years, followed by a stint working in a knitting mill for four years. Later, he worked in the warehouse of the business known as Body Shop. In his fifth year in this job, he suffered a wrist injury.
At the date of sentence, the applicant lived at home with his elderly parents, to whom he provided assistance. His partner of the last three or so years had been living with him for approximately 12 or so months; he considered her to be a caring and supportive partner.
The applicant suffers from a range of medical conditions and has been on a disability support pension for some time. A medical report provided to the sentencing judge from the applicant’s general practitioner, Dr Ebrahim, confirmed that the applicant was at the time being treated for type 2 diabetes, chronic lower leg infected varicose dermatitis, obesity, hypogonadism and steatohepatitis. According to the report, the applicant suffered from low self-esteem and his lifestyle issues and poor life choices were directly related to his medical issues.
The applicant’s recent history also revealed the prevalence of drug use. He had used drugs in the past and, to some extent, during the period relevant to his offending.[12]
[12]See [36]–[39] below.
Sentencing remarks
The sentencing judge explained the circumstances in which the applicant entered his plea of guilty. He said:
I note that this matter was listed for a committal mention hearing on three occasions last year; on 13 May, 19 July and on 25 October. By the last of those dates, the matter had resolved and you entered a plea of guilty. You were then committed to this court in a straight hand-up-brief procedure.[13]
[13]Sentencing remarks [39].
The sentencing judge considered it appropriate to (a) treat the applicant’s plea as having been entered at a ‘relatively early stage’ and (b) give him a commensurate discount in his sentence for having taken that course.[14] The judge accepted that there was ‘some evidence of remorse’ on the applicant’s part, but, as shown by the applicant’s lies to police during interview, he was ‘clearly not remorseful from the outset’.[15]
[14]Ibid [40]. This finding is the subject of the applicant’s first proposed ground of appeal.
[15]Ibid [41].
The sentencing judge also had regard to an assessment conducted by Mr Bernard Healey, a clinical psychologist, on 2 February 2017.[16]
[16]Ibid [47]. The sentencing judge observed that the applicant had apparently given Mr Healey an inaccurate and incomplete account of his criminal history, but the judge did not consider that Mr Healey’s conclusions and opinions were undermined to any real or significant extent by that fact.
In respect of the applicant’s drug use, Mr Healey noted that the applicant:
(a) experimented with cannabis for 10 years between the ages of 25 and 35, smoking it on an intermittent basis;
(b) turned to using ice some four years ago as a means of self-medication after undergoing surgery for his wrist injury; and
(c) had smoked up to half a gram of ice daily, and sometimes used it intravenously.[17]
[17]Ibid [48].
The applicant also reported that he had halved his use of ice over the 12 months leading up to his sentence and that his current use was ‘a point every couple of days’.[18]
[18]Ibid [49].
The sentencing judge expressed doubts over the accuracy and completeness of the information provided by the applicant to Mr Healey about the extent of his drug use.[19]
[19]Ibid [50]–[51]. The sentencing judge treated this information with caution: ‘You told lies to the police when interviewed and sought, falsely, to wholly explain away your conduct by reference to your own drug use. Furthermore, you understated your criminal history to Mr Healey … I just do not accept that [the drug use] was necessarily to the same extent that you have painted in the history that you gave to Mr Healey. Nor do I accept, at face value, that the vast bulk of your trafficking activity that was detected during this police investigation is explained by your own use of drugs. It no doubt explains part of it, but not all of or even a significant part of it, in my view.’
The sentencing judge observed that the applicant’s use of drugs did not seem to have adversely affected his efforts to run a business in drug trafficking and that neither of his parents were aware of his drug use during that period, or at all, prior to his arrest. The sentencing judge considered it relevant that, prior to the applicant being charged, he had not felt the need to seek or obtain any professional assistance to try and deal with his drug use.[20]
[20]Ibid [50].
Mr Healey assessed the applicant as having average intellectual capacity. The applicant showed symptoms of depression, anxiety and social introversion. In his recommendations, Mr Healey indicated that the applicant would benefit from ongoing supportive treatment under a mental health care plan. He also stated that the applicant was willing to see him in the future in order to address the issues raised by his drug use and the psychological aspects of his inactivity and associated health issues. In that regard, the sentencing judge said:
In my view, each of those recommendations have much to commend them and I propose to give effect to them through appropriate conditions attached to the community correction order that will form part of the combination sentence to be imposed in this case.[21]
[21]Ibid [52].
The sentencing judge considered the nature and gravity of the applicant’s offending. He said:
Parliament has signified the intrinsic seriousness of the type of offences that you committed by fixing the relatively high maximum custodial penalties that they have; 15 years for trafficking and ten years for the possession offence.
Furthermore, the Victorian Court of Appeal recently had cause to consider the seriousness of trafficking in the very drug that you conducted a business of trafficking in, namely methylamphetamine, or as it is commonly referred to, “ice”. That decision of Haddarra [sic] v The Queen, was handed down on 18 July last year. The members of the court made the following very pertinent observations in their joint judgement [sic]:
‘It seems to us that it has become a matter of common knowledge that trafficking in ice is not only prevalent, but that its prevalence has increased. Prevalence of the offence of trafficking in methylamphetamine is thus a proper matter for a sentencing court to take into account when assessing the weight to be given to general deterrence. As we have mentioned, sentencing courts may, to a relatively modest extent, adjust the sentencing standards for trafficking in ice, to deal with its increased prevalence.’[22]
[22]Ibid [54]–[55] (citations omitted).
Turning to the case before him, the sentencing judge said:
[Y]our own offending was, on any view, serious. Your trafficking was not an isolated transaction or occurrence, but rather conducted on repeated occasions over a period of some months. Whilst the amount of the methylamphetamine that you trafficked cannot be calculated or stated with any precision, it was certainly not small or insignificant. You had multiple customers and appear to have been prepared to sell in an amount of three and a half grams.
Your trafficking activity was ongoing and only brought to an end by the intervention of the investigating police. You did not conduct your business in selling this drug solely to support your own drug use, there was also a profit motive in acting as you did. And, your conduct in selling the particular drug, methylamphetamine, must be viewed through the prism of the observations made in Haddara’s case, to which I have already referred.
The offending alleged in Charge 2 is of a far lesser gravity, given the limited timeframe and amount involved. That said, it is not a minor offence, given the purpose of your possession of that substance.[23]
[23]Ibid [57]–[59].
The sentencing judge said that other important sentencing considerations in this case were ‘general deterrence, denunciation and just punishment’.[24] He said:
The community is understandably very concerned about conduct of this type. The conduct of anyone who plays a role in placing any drugs onto the streets and into the hands of members of the community, must be deplored and condemned in strong terms. The community rightly expects the courts to give effect to those concerns through the imposition of appropriate punishments on those who are caught.
Through such sentences, the courts must also seek to discourage other
like-minded people from becoming involved in such an insidious trade. They must understand, in unmistakable terms, that if they go ahead and are caught, then they will likely face very serious consequences.[25]
[24]Ibid [60].
[25]Ibid [61]–[62].
To that end, the sentencing judge was of the view that any sentence imposed on the applicant must involve some immediate imprisonment: ‘the offending here [was] just too serious to accommodate any non-custodial disposition’.[26] The sentencing judge had regard to the consideration that the applicant ‘will, for a number of reasons, likely find the service of a custodial sentence a difficult experience’.[27] Accordingly, the sentencing judge was prepared to impose an immediate term of imprisonment ‘as part of a combination sentence, rather than by means of the imposition of a head sentence and a non-parole period’.[28]
[26]Ibid [63].
[27]Ibid [64].
[28]Ibid [65].
The sentencing judge considered the applicant’s age and prospects of rehabilitation. He concluded:
For someone of his age, [the applicant] has a relatively limited, albeit relevant prior criminal history. He has demonstrated an ability in the past to obtain and maintain employment, although his ability to undertake employment in the near future will be limited at best, given his wrist injury and other medical issues. He has some supports in the community, as demonstrated by the evidence given on the plea, as well as his good relationship with his parents and brother.
In my view, much will, however, depend on his ability to successfully overcome the problems associated with his use of the drug ice. He remains
a user of that drug and his attempts to seek help for that problem are in their infancy. As [a witness] explained in the evidence he gave on the plea, [the applicant] refused an offer of assistance some years ago and has only recently started to attend Narcotics Anonymous meetings. He has not been drug tested to date. That is the limit of any efforts that [the applicant] has made to obtain appropriate treatment and counselling to date.
In the end, I consider his prospects to be moderate. They would no doubt be enhanced considerably if and when he successfully completes an appropriate period of drug treatment.[29]
[29]Ibid [66]–[68].
Finally, the sentencing judge said:
During the plea, counsel referred the court to relevant sentencing statistics for the offence of trafficking in a non-commercial quantity of drugs. Such information is, as counsel readily acknowledged, of only very limited assistance to a sentencing court, given the inherent paucity of relevant information in such statistics. Given what the court has now said in Haddara, there is now an additional reason to treat such information with caution.
A table of comparative cases was also provided to the court. Again, the benefit to be derived from that material is very limited. Counsel did not suggest that any of those cases was on all fours, or even closely aligned to the case of [the applicant].
The parties referred to the recent case of DPP v Apostolopoulos and [counsel for the applicant] placed some reliance on it. But, as I noted at the further plea hearing, there are some obvious differences in the two cases, both in relation to the offending and the offender. I also note that the members of the court in that case considered the imposition of a community correction order by the original sentencing judge, even allowing for the compelling evidence of rehabilitation, to have been ‘lenient or merciful’.[30]
[30]Ibid [69]–[71] (citations omitted).
Proposed grounds of appeal
The applicant seeks leave to appeal his sentence on the following proposed grounds:
Ground 1 – the sentencing judge erred in concluding that the plea entered by the applicant was not a plea at the earliest opportunity;
Ground 2 – the sentencing judge erred in concluding that the applicant was involved in the business of trafficking for a three-and-a-half month period; and
Ground 3 – the aggregate sentence imposed on charge 1 and charge 2 was manifestly excessive.
Particulars of ground 3
The sentencing judge gave insufficient weight to the following:
(a) the plea of guilty;
(b) the applicant’s limited criminal history;
(c) the gravity of the offending;
(d) the applicant’s prospects for rehabilitation.
The applicant’s submissions
The applicant contends that the sentencing judge erred in treating the applicant’s plea as having been entered at a ‘relatively early stage’. According to the applicant, the plea, which was entered at the committal mention stage, ought to have been treated as having been entered at the earliest stage of the proceeding. The applicant says that the fact that a plea was entered at the third committal mention, as opposed to the first committal mention, should not be considered anything other than a plea at the earliest opportunity.
The applicant further contends that the sentencing judge erred in determining that the business of trafficking occurred over a three-and-a-half month period. According to the applicant, there was no evidence to support a finding that the trafficking occurred over this period of time. The applicant says that there was no evidence of any trafficking for the last six weeks of the period the subject of charge 1. Based on ‘the admissible evidence’, the applicant says, the trafficking in which he had engaged ran for a period of two months.
Finally, the applicant contends that the aggregate sentence imposed was manifestly excessive when one takes into account (a) the applicant’s age, (b) his limited criminal history, (c) the gravity of the offending and (d) his prospects for rehabilitation. The applicant argues that the sentencing judge did not give sufficient weight to the first two of these factors. As to the gravity of the offending, the applicant says that the sentencing judge needed to take into account (a) the relatively short duration of the offending, (b) the applicant’s drug addiction, (c) the prosecution’s concession on the plea that the applicant had a ‘minor involvement’ in the matter the subject of the investigation and (d) the prosecution’s inability to quantify how much was actually trafficked by the applicant. The applicant also says that the sentencing judge gave insufficient weight to the finding that his rehabilitation prospects were ‘moderate’.
Analysis
I would reject the first ground of appeal. The applicant was charged and interviewed on 22 February 2016. The matter was listed for a committal mention on 13 May 2016, 19 July 2016 and 25 October 2016. By the last of those dates, the matter was resolved and the applicant indicated that he proposed to enter a plea of guilty. It was open to the judge to describe the plea ‘as having been entered at a relatively early stage’[31] and to provide a ‘commensurate discount’ in sentencing.[32] The judge did not err in failing to find that the plea had been entered at the earliest possible opportunity.[33]
[31]Ibid [40].
[32]Ibid.
[33]Sentencing Act 1991 s 5(2)(e). See R v Slater (1984) 36 SASR 524, 526.
I would also reject the second proposed ground of appeal. The applicant pleaded guilty to a charge of trafficking that covered the period 4 August 2015 to 20 November 2015. The sentencing judge said:
The trafficking in which you engaged is alleged to have occurred over a three and a half month period between 4 August and 20 November 2015. It is put on a Girretti [sic] basis; namely, that you engaged in the business of trafficking the drug, methylamphetamine, over that period.[34]
These remarks simply reflect the substance of the plea of guilty. Elsewhere in his reasons, the sentencing judge identified 9 October 2015 as the last specific act of trafficking.[35] No error has been shown.
[34]Sentencing remarks [7].
[35]Ibid [29].
I would also reject the third proposed ground of appeal. In order to establish the proposed ground of manifest excess, the applicant must establish that the sentence imposed is wholly outside the range of sentencing options available.[36] He will need to be able to demonstrate that something has gone obviously, plainly or badly wrong.[37] Manifest excess is a stringent ground which is difficult to make good.[38] In his application for leave to appeal, the applicant gives particulars of this proposed ground, almost as if each was a specific error.
[36]R v Boaza [1999] VSCA 126 [42].
[37]Binse v The Queen [2016] VSCA 145 [57].
[38]DPP v Karazisis (2010) 31 VR 634, 662–3 [127].
It is not the case that the sentencing judge failed to take into account any of the particular matters to which the applicant referred. He gave a ‘commensurate discount’ for the plea of guilty.[39] As set out above, he accepted that the applicant’s criminal history was relatively limited and took into account his prospects of rehabilitation:
In arriving at an appropriate disposition, I must also have regard to [the applicant’s] age and prospects of rehabilitation. For someone of his age, he has a relatively limited, albeit relevant prior criminal history. He has demonstrated an ability in the past to obtain and maintain employment, although his ability to undertake employment in the near future will be limited at best, given his wrist injury and other medical issues. He has some supports in the community, as demonstrated by the evidence given on the plea, as well as his good relationship with his parents and brother.
In my view, much will, however, depend on his ability to successfully overcome the problems associated with his use of the drug ice. He remains a user of that drug and his attempts to seek help for that problem are in their infancy. As the witness, [named person], explained in the evidence he gave on the plea, [the applicant] refused an offer of assistance some years ago and has only recently started to attend Narcotics Anonymous meetings. He has not been drug tested to date. That is the limit of any efforts that [the applicant] has made to obtain appropriate treatment and counselling to date.
In the end, I consider his prospects to be moderate. They would no doubt be enhanced considerably if and when he successfully completes an appropriate period of drug treatment.[40]
[39]Sentencing remarks [40].
[40]Ibid [66]–[68].
The sentencing judge also soundly assessed the gravity of the offending. He found it to be ‘serious’ and ‘not an isolated transaction or occurrence, but rather conducted on repeated occasions over a period of some months’.[41] The amount trafficked could not be quantified but ‘it was certainly not small or insignificant’.[42] The applicant had ‘multiple customers’ to whom he was prepared to ‘sell in an amount of three and a half grams’.[43] In addition, the judge took into account the remarks of this Court on the gravity of trafficking methylamphetamine.[44]
[41]Ibid [57].
[42]Ibid.
[43]Ibid.
[44]Ibid [55]–[56].
In Haddara v The Queen,[45] the offender pleaded guilty to one charge of trafficking in a drug of dependence (methylamphetamine), among other offences.[46] He had participated in nine discrete sales of the drug to covert operatives; he had a number of prior convictions; he had been the subject of a community correction order during the time of his offending; and he was found to have shown remorse and had good rehabilitation prospects. He was sentenced to two years’ imprisonment with a non-parole period of 14 months. He sought leave to appeal against the sentence on three grounds, namely that (a) the individual sentences, total effective sentence and non-parole period were manifestly excessive, (b) the sentencing judge erred in rejecting that at, the time of the offending, the offender was less blameworthy due to his post-traumatic stress disorder and (c) the sentencing judge erred by having regard to (i) the nature and extent of the harm that methylamphetamine causes, both directly to users of the drug and indirectly to the community as a whole and (ii) whether methylamphetamine is, by those measures, more or less harmful than another drug of dependence.
[45][2016] VSCA 168 (‘Haddara’).
[46]The offender had also pleaded guilty to one charge of trafficking cannabis, one charge of obtaining property by deception and two summary charges of dealing with property suspected of being the proceeds of crime and possessing a prohibited weapon.
This Court (Redlich, Priest and Beach JJA) granted leave to appeal on the third ground, dismissed the appeal and otherwise refused leave to appeal on the other grounds. In dealing with the offender’s third ground of appeal, the Court said:
… one cannot sit daily in criminal courts without observing the harm that ice use causes to both individual offenders and the community. Principle requires, however, that judges ignore the wealth of knowledge and experience gleaned about ice, and ignore its particular harmful qualities for the purposes of sentencing.[47]
The Court concluded that the sentencing judge erred in the exercise of her sentencing discretion by taking into account that ice ‘has addictive qualities and is often productive of extreme violence and dangerous behaviour’ and that the ‘impact of the availability and use of ice on the community cannot be underestimated (scil overestimated)’.[48] Notably, the Court did not interfere with the sentence imposed, which it considered to be lenient.[49]
[47]Haddara [2016] VSCA 168 [59].
[48]Ibid.
[49]Ibid [70].
On the relevance of prevalence of the offence of trafficking in methylamphetamine,[50] the Court added:
It seems to us that it has become a matter of common knowledge that trafficking in ice is not only prevalent but that its prevalence has increased. Prevalence of the offence of trafficking in methylamphetamine is thus a matter proper for a sentencing court to take into account when assessing the weight to be given to general deterrence. That said, in the instant case it would not be appropriate to take such prevalence into account as a relevant factor in imposing sentence on the applicant, since it was not a matter raised before the sentencing judge.[51]
[50]Ibid [62].
[51]Ibid [69].
The combination of imprisonment and a community correction order is well within range, particularly given what this Court said in Haddara.
In my opinion, the third proposed ground of appeal is not reasonably arguable.
Conclusion
The application for leave to appeal against sentence should be refused.
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