Oleyar v the Queen

[2015] VSCA 134

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0218

MIROSLAV OLEYAR

v

THE QUEEN

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JUDGES:	ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2015
DATE OF JUDGMENT:	4 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 134
JUDGMENT APPEALED FROM:	DPP v Oleyar (Unreported, County Court of Victoria, Judge Chettle, 2 May 2014)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Trafficking a drug of dependence – Other drug-related offences – One co-offender – Second co-offender, or collaborator – Different sentences for trafficking offence – Whether parity principle infringed – Sentence of four years and six months’ imprisonment on trafficking charge – Whether manifestly excessive – Sentence of imprisonment on charge of possession of small amount of cannabis for own use – Sentence legally impermissible – Application for leave to appeal refused – Court’s power under s 280(3) Criminal Procedure Act 2009 exercised in order to amend impermissible sentence.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Cass	Victoria Legal Aid
For the Crown	Mr D A Trapnell QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA:

1. On 2 May 2014, a judge in the County Court sentenced Miroslav Oleyar to a total effective sentence of four years and six months’ imprisonment.  His Honour fixed a non-parole period of three years.  The details of the offending and the sentence imposed were as set out in the following table:

Charge on Indictment C1108142A.1	Offence	Maximum	Sentence
1	Trafficking drug of dependence (methylamphetamine) s 71AC Drugs, Poisons and Controlled Substances Act 1981	15 years’ imprisonment	4 years 6’ months imprisonment
2	Possess drug of dependence (cocaine) s 73(1) Drugs, Poisons and Controlled Substances Act 1981	30 penalty units or 1 year imprisonment or both s 73(1)(b)	6 months’ imprisonment — aggregate sentence with Charges 2–6
3	Possess drug of dependence (MDMA) s 73(1) Drugs, Poisons and Controlled Substances Act 1981	30 penalty units or 1 year imprisonment or both s 73(1)(b)	6 months’ imprisonment — aggregate sentence with Charges 2–6
4	Possess drug of dependence (LSD) s 73(1) Drugs, Poisons and Controlled Substances Act 1981	30 penalty units or 1 year imprisonment or both s 73(1)(b)	6 months’ imprisonment — aggregate sentence with Charges 2–6
5	Possess drug of dependence (psilocin) s 73(1) Drugs, Poisons and Controlled Substances Act 1981	30 penalty units or 1 year imprisonment or both s 73(1)(b)	6 months’ imprisonment — aggregate sentence with Charges 2–6
6	Possess drug of dependence (cannabis) s 73(1) Drugs, Poisons and Controlled Substances Act 1981	5 penalty units s 73(1)(b)	6 months’ imprisonment — aggregate sentence with Charges 2–6
7	Possess precursor chemical s 71D Drugs, Poisons and Controlled Substances Act 1981	600 penalty units or 6 years’ imprisonment or both s 71D	6 months’ imprisonment

Charge on Indictment C1108142A.1	Offence	Maximum	Sentence
8	Knowingly deal with proceeds of crime s 194(2) Crimes Act 1958	15 years’ imprisonment s 194(2)	9 months’ imprisonment
Total Effective Sentence:		4 years 6 months’ imprisonment
Non-Parole Period:		3 years

Grounds of appeal

1. Now, Oleyar applies for leave to appeal against sentence imposed; and, if leave is granted, he seeks that his appeal be allowed and that a lesser sentence be substituted.

1. He relies upon the following grounds of appeal:

(1)The total effective sentence and non-parole period offend the principle of parity in light of the sentences imposed on the co-offenders Marks and Varadi.

(2)The learned sentencing judge erred in sentencing the applicant to a term of imprisonment on charge 6.  Possession of a small quantity of cannabis does not carry a term of imprisonment where it is for personal use.

(3)The sentence imposed for trafficking a drug of dependence (charge 1) and the non-parole period are manifestly excessive.  In particular: when having regard to current sentencing practices.

Circumstances of offending

1. The sentencing judge described the circumstances of the applicant’s offending as follows:

3.… between August and September 2011, you manufactured methylamphetamine at your home, a unit in Dandenong.  You supplied that drug to others, including your co-accused Kerry Marks, who in turn, sold the drug and returned funds to you on occasion.  She kept some proceeds for herself.  You sold some of the drug yourself.

4.You had accumulated glassware and equipment to manufacture the methylamphetamine.  Your property was searched by police on the 17 September 2011, and items such as scales, grinders, pills — like Codral and Sudafed — glassware, and other cooking equipment were located.  In addition, a precursor chemical, the subject of one of the charges, was located and $27,000 in cash.

5.Various drugs of dependence were also located in small quantities.  They are the drugs of dependence listed in Charges 2 to 6, to which you have pleaded guilty.  It is conceded by the prosecution that these small quantities were not possessed for the purposes of trafficking, and were for your personal use.  In those circumstances, both the prosecution and your counsel conceded that it would be appropriate to impose one, short aggregate sentence in respect of Charges 2 to 6.

6.It is also clear that you were conducting the business of trafficking in methylamphetamine, and the precursor chemical, benzyl-halide, found by the police at your home on 17 September, should also be seen as significantly related to your trafficking business.  In those circumstances, although the chemical related to a different manufacturing process to that that you were employing, the sentence I propose to impose in relation to Charge 7 should be made totally concurrent with the sentence I will impose on Charge 1.

1. There was a co-offender, Kerry Marks (‘M’), and another man, Zoltan Varadi (‘V’), whose status — whether as co-offender or collaborator — was a matter of some dispute in this Court.

1. The judge described the role played by M, when sentencing the applicant, as follows:

15.… Marks operated in effective partnership with you in a methylamphetamine trafficking business.  In addition, she had her own cannabis and hash oil business not connected to you.

1. The sentencing judge also sentenced M. He did so before dealing with the applicant.  When sentencing her, he described the situation as follows:

4.You assisted Oleyar to require items required by him to manufacture methylamphetamine.  You knew he was making methylamphetamine but there is no evidence that you participated in the cooking or manufacturing process.  You were involved in selling the product Oleyar made.  Telephone intercept material demonstrates you selling an unknown quantity of drugs and returning the proceeds of such sale to Oleyar.  The amounts of products sold and the value of those sales cannot be precisely determined.  In summary your activities were clearly commercial in nature but cannot be demonstrated to be at a commercial level.

5.The evidence discloses that you regularly attended at Oleyar’s premises where he located his manufacturing activities.  You were arrested at those premises with Oleyar on 17 September 2011.  Numerous items relevant to the manufacture of methylamphetamine were seized.  When you were arrested you had three and a half grams of methylamphetamine in the pocket of your pants.

1. M was charged on two indictments.  One related to the trafficking of methylamphetamine.  The other indictment related to the cultivation and trafficking of cannabis.  As to the  latter, when police searched M’s home, they found five cannabis plants and a quantity of dried cannabis.  She ultimately admitted to the cultivation of the plants, and to possession of cannabis for sale.

1. V pleaded guilty to a charge of trafficking in a drug of dependence and to a charge of possessing a drug of dependence.  The drug was methylamphetamine.  There was evidence that V had discussed the manufacturing of drugs with the applicant, and that he had some physical contact with the applicant.

1. M was sentenced to an effective sentence of six months’ imprisonment for the offences relating to cannabis.  She was sentenced to 18 months’ imprisonment in respect of the indictment which alleged trafficking in methylamphetamine.  The judge cumulated three months of the sentence on the cannabis indictment on the sentence relating to methylamphetamine.  The total effective sentence was 21 months’ imprisonment.  The judge suspended 15 months of that sentence for a period of two years.

1. V was sentenced to three years’ imprisonment on the charge of trafficking methylamphetamine and to one month’s imprisonment, to be served concurrently, in respect of the possession charge.  The judge directed that two years of the three years be suspended for a period of three years.

Submissions

1. Counsel for the applicant, in very helpful submissions, contended with respect to ground 1 that the circumstances of differentiation identified between the applicant, M and V left the applicant with a justifiable sense of grievance respecting the sentence for trafficking methylamphetamine.  Each of the three had played a significant role in trafficking that drug.  The principal distinction made by the judge was that the applicant was a man with a recent history of conviction and imprisonment for drug trafficking, whereas M had no prior convictions at all and V had old and not relevant convictions.  The judge, counsel submitted, did not otherwise identify matters of differentiation, although it was the fact that the applicant had pleaded guilty at a very late stage, whereas V had made admissions and pleaded guilty at the very earliest opportunity, and M had pleaded guilty, but not at the earliest opportunity.

1. All in all, counsel submitted, whilst it was open to the judge to differentiate between the applicant, M and V when sentencing them for trafficking methylamphetamine, it was not open to his Honour to differentiate to the extent which he did.

1. With reference to ground 2, counsel submitted, and it was common ground, that there was sentencing error on charge 6.  The particular drug had been possessed for personal use, and the small amount of cannabis found in the applicant’s possession meant that the maximum penalty applicable was five penalty units.  Thus, the judge had imposed a sentence which, in law, was unavailable.

1. With respect to ground 3, counsel rightly accepted that sentencing statistics are of limited value.  But he identified four cases which, he submitted, should be regarded as broadly comparable.[1]  Each had attracted a sentence on a methylamphetamine trafficking count of three years’ imprisonment.  Sentence passed upon the applicant had been significantly greater, which implied that the sentence had been outside the available range.

   [1]Pak v The Queen [2012] VSCA 4; Ceylan v The Queen [2011] VSCA 318; Hilder v The Queen [2011] VSCA 192; Rajic v The Queen [2011] VSCA 51.

1. Counsel for the Crown also made very helpful submissions.  With respect to ground 1, counsel submitted that it was questionable whether V was in fact a co-offender at all.  He should be regarded as a criminal associate, and as someone who collaborated with, but did not assist, the applicant in his trafficking activities.  But even if V was to be treated as a co-offender, the applicant’s activities were evidently more extensive.  He both manufactured and sold drugs.  A sizeable amount of cash, directly referable to selling drugs, was found when his house was searched.  Again, the applicant’s prior convictions were very relevant.  In 2006, he had been sentenced on five counts of trafficking and two of possession to a total of 27 months’ imprisonment with a 15  months’ non-parole period.  Specific deterrence was thus an important sentencing consideration on the present occasion, as was a diminished prospect of rehabilitation.  Further, unlike the applicant, V had pleaded guilty at the earliest opportunity, having made admissions to the police when initially questioned.  Although he had prior convictions, they were very dated and not of a similar nature.

1. Then, as to M, her offending with respect to cannabis had been at a low level.  Insofar as she had been involved in trafficking methylamphetamine, she had sourced equipment for the applicant, but had not been involved in ‘cooking’.  She had made sales for the applicant, and had remitted some of the proceeds to him.  Moreover, her personal circumstances were of significance in differentiating between she and the applicant.  She had no prior convictions.  She had suffered considerably because of her offending.  She had lost her long-time job and her home.  She suffered from depression, and, when sentencing her, the judge had accepted that her time in prison would be the more onerous.  Furthermore, the judge had assessed her prospects of rehabilitation as being good.  He had seen no reason for the imposition of a custodial sentence which incorporated a non-parole period.

1. I turn to the Crown’s submissions with respect to ground 3.

1. Counsel submitted that what had been identified by the applicant’s counsel as comparable cases, on analysis, did not merit that description.  He referred to other instances of sentencing which, he contended, were more to the point.[2]  That aside, he submitted that the trafficking was a serious example of the offence, the applicant having manufactured the drugs.  His role as a cook was significant.  His possession of the precursor chemical was also significant, as bearing upon the extent of his criminal activities.  The judge had treated the applicant as favourably as could have been expected by making the sentence on that possession count wholly concurrent with the sentence on the trafficking count.  Particularly that was so when the chemical pertained to the manufacture of methylamphetamine by a different method to that used by the applicant in his previous manufacturing activities.  Not only that, his Honour had been alive to totality, and so had not cumulated on any of charges two to six or eight.

   [2]Boca v The Queen [2011] VSCA 50; Hoang v The Queen [201] VSCA 287.

1. Counsel reiterated, in connection with ground 3, his submissions about the significance of the applicant’s prior convictions for drug trafficking.[3]

   [3]See [16] above.

Conclusions

1. With respect to ground 1, I consider that the submissions for the Crown were persuasive.  The fact that the applicant had been convicted of trafficking a number of illicit drugs, including methylamphetamine, in June 2006 was a point of significant distinction between the circumstances of the applicant and M.  So far as it was relevant, it was also a point of distinction between the circumstances of the applicant and V, who was doubtfully a co-offender.  Further, it was correct to say that M had suffered extra-curially because of her offending, and had done so in a significant way.  Her offending being isolated, it had been possible to conclude that her prospects of rehabilitation were good.  So far as the scale of the applicant’s trafficking was concerned, there was the evident fact that he had accumulated a sum of money from trafficking.  What profit, if any, M had made from her trafficking of methylamphetamine was unknown.  Finally, V was able to rely upon mitigating circumstances which were not present in the case of the applicant.

1. In my opinion, ground 1 is not reasonably arguable.

1. I turn to ground 3.  As I have said, counsel for the applicant referred the Court to four cases, decided by this Court, in which sentences had been imposed for trafficking in a non-commercial quantity of drugs.  In each of those instances, the offender had been sentenced to three years’ imprisonment on the trafficking count.  It is unnecessary to detail the criticisms as to comparability which counsel for the Crown made of those cases.  It is sufficient to say that none of them, in my view, can be regarded as relevantly comparable.  But I also consider that the same can be said of the two cases relied upon by the Crown.  In all, reference to the six cases has not been of importance, from my perspective, in determining the outcome of ground 3.

1. In all, the applicant was a man of middle years who had twice engaged in trafficking methylamphetamine within a relatively short period.  Having been sentenced to a term of imprisonment in 2006 for trafficking that and other drugs, he had offended again in 2011 on a relatively systematic basis.  His prospects of rehabilitation were, rightly, not regarded as good.  There was a demonstrated need for a sentence which paid due regard to specific deterrence.  That apart, the offending called for just punishment, denunciation, and deterrence generally. 

1. In my opinion, it is not reasonably arguable that the sentence on charge 1 was outside the available range.

Orders

1. I would refuse leave to appeal against sentence on grounds 1 and 3. With respect to the impermissible sentence on charge 6, in my view it is clear that the circumstances contemplated by s 280(1)(b) of the Criminal Procedure Act2009 are present. I would refuse the applicant leave to appeal on ground 2. I would exercise, however, the power given to the Court by s 280(3) to amend the sentence by deleting reference to charge 6 in the aggregate sentence which the judge imposed on charges

2–6, and by ordering that the applicant be convicted and discharged on that charge.

WEINBERG JA

1. I agree with Ashley JA.

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