Panayiotis Alexopoulos v The Queen
[2022] VSCA 145
•27 July 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0019 |
| PANAYIOTIS ALEXOPOULOS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | MACAULAY JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 July 2022 |
| DATE OF JUDGMENT: | 27 July 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 145 |
| JUDGMENT APPEALED FROM: | [2021] VCC 1801 (Judge Chettle) |
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CRIMINAL LAW – Trafficking in a drug of dependence in not less than a commercial quantity – Applicant sentenced to 2 years 6 months’ imprisonment – Co-offender sentenced to 3 years’ imprisonment on same charge – Co-offender had significantly more extensive criminal history – Whether manifestly insufficient disparity between the two sentences – No reasonable prospect of obtaining leave to appeal – Extension of time to file leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr J Connolly | ||
| Respondent: | Mr CB Boyce QC | ||
Solicitors | |||
| Applicant: | SLKQ Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
MACAULAY JA:
Introduction
On 29 October 2020 the applicant sold Benjamin Giltinan 2.872 kg of 1,4-Butanediol (‘1,4-BDO’) in four plastic bottles for on-sale by Giltinan to buyers, ‘Mike’ and ‘Jimmy’. Unbeknown to both the applicant and Giltinan, Mike and Jimmy were covert police operatives.
On 12 November 2021 the applicant and Giltinan were each sentenced by Judge Chettle in the County Court after pleading guilty to a charge of trafficking in a drug of dependence (the 1,4-BDO) in not less than a commercial quantity,[1] together with other charges that they each committed independently from one another and to which they also pleaded guilty. On the charge that was common to each of them, involving the sale of the 1,4-BDO (‘the common trafficking charge’), the applicant was sentenced to 2 years and 6 months’ imprisonment and Giltinan was sentenced to 3 years’ imprisonment.
[1]Contrary to Drugs, Poisons, Controlled Substances Act 1981, s 71AA.
The applicant seeks leave to appeal on a single proposed ground, namely:
There was an error in the sentence first imposed on the charge on the indictment [relating to the sale of the 1,4-BDO] that resulted from the disparity between that sentence and the sentence imposed on Benjamin Giltinan for the same offence being manifestly insufficient.
The full list of charges and sentences for each offender is set out in tables below. In addition to the indictable charge relating to trafficking the 1,4-BDO, the applicant consented to the County Court hearing and determining three further summary offences. In Giltinan’s case, he was charged with six indictable offences, including the charge in relation to trafficking the 1,4-BDO, and he also consented to the County Court hearing and determining two further summary offences. Charge 1 in the table relating to the applicant and charge 3 in the table relating to Giltinan are the common trafficking charges.
The sentences imposed on the applicant were:
| Offence | Max Penalty | Sentence | Cumulation | |
| Indictable Charges | ||||
| 1 | Trafficking in a drug of dependence — commercial quantity | 25 years | 2 years 6 months | |
| Summary Charges | ||||
| 3 | Committing an indictable offence whilst on bail | 30 penalty units/3 months | 1 month | |
| 5 | Possessing cartridge ammunition | 40 penalty units | $500 | |
| 6 | Possessing a controlled weapon | 120 penalty units/1 year | $500 | |
| Total Effective Sentence: | 2 years 6 months and $1000 | |||
| Non-Parole Period Fixed: | 1 year 3 months | |||
| Pre-sentence Detention: | 18 days | |||
| Section 6AAA Statement: | 3 years 9 months, with a non-parole period of 2 years 3 months | |||
| Other Orders: | Disposal and forfeiture orders. | |||
The sentences imposed on Giltinan were:
| Offence | Max Penalty | Sentence | Cumulation | |
| Indictable Charges | ||||
| 1 | Obtaining property by deception | 10 years | 9 months | 3 months |
| 2 | Trafficking in a drug of dependence | 15 years | 2 years | 1 year |
| 3 | Trafficking in a drug of dependence — commercial quantity | 25 years | 3 years | Base |
| 4 | Possessing a drug of dependence | 5 years/1 year (if not for a trafficking purpose) | 6 months | |
| 5 | Trafficking in a drug of dependence | 15 years | 1 year | 6 months |
| 6 | Prohibited person possessing an imitation firearm | 1200 penalty units/10 years | 6 months | |
| Summary Charges | ||||
| 11 | Disposing of a category A or B longarm by a person who is not a firearm dealer | 120 penalty units/2 years | 9 months | 5 months |
| 23 | Committing an indicatable offence whilst on bail | 30 penalty units/3 months | 1 month | |
| Total Effective Sentence: | 5 years 2 months | |||
| Non-Parole Period Fixed: | 3 years | |||
| Pre-sentence Detention: | 276 days | |||
| Section 6AAA Statement: | 7 years 6 months, with a non-parole period of 5 years 3 months | |||
| Other Orders: | Disposal and forfeiture orders. | |||
The applicant’s application for leave to appeal was made a little over three months out of time. Accordingly he has also applied for an extension of time in which to seek leave to appeal, an application which the respondent opposes on the ground that the reasons given for the delay are not compelling and the application itself lacks merit.
Some of the period of delay spanned the Christmas vacation period between 2021 and 2022. In the main, the delay is otherwise explained by the accumulation of time taken to give instructions and receive advice whether to seek leave to appeal; obtain private funding from the applicant’s father; obtain the transcript of the plea hearing; and a delay in the preparation of appeal documents due to counsel being occupied in a trial which ran longer than expected.
In my view, this explanation for the delay is not, of itself, sufficient to justify an extension of time. Ultimately, the exercise of the discretion whether or not to grant an extension of time will turn on the view taken of the merits of the proposed appeal.
Background facts
Over September and October 2020 Giltinan dealt with Mike, and then later Jimmy, in relation to the sale of methylamphetamine and the sale of a gun. Giltinan had initially been contacted by Mike for the supply of methylamphetamine and they participated in three sales of that drug totalling 15.7 grams for a total price of $8,500 (charge 2). In the course of those drug sales, Giltinan learned of Mike and Jimmy’s interest in guns, and it was in the course of a firearms sale (summary charge 11) that Mike and Jimmy learned of Giltinan’s ability to supply 1,4-BDO.
Later, on 27 October 2020, Giltinan arranged to sell Mike 3 litres of 1,4-BDO for $5,000. Giltinan communicated with the applicant by exchange of text messages on that day to arrange the supply of the 3 litres of 1,4-BDO two days later. The applicant required $4,500 for that quantity of drug, causing Giltinan to increase his price to Mike to $5,200 in order to make the profit that he wanted. The price was agreed.
On 29 October 2020, Giltinan, Mike and Jimmy drove to an address in Oakleigh nominated by the applicant. The applicant arrived at the address in a van and the exchange of money and the 1,4-BDO took place when the applicant produced the drug in four plastic bottles from a shopping bag he took from the van.
As for the other charges against the applicant and Giltinan, the items the subject of two of the summary charges against the applicant (charges 5 and 6) were found at his home when he was arrested on 10 February 2021. The dishonesty charge against Giltinan (charge 1) related to the purchase of motorcycle accessories using stolen credit card details. The further charges of possessing and trafficking a drug and possessing an imitation firearm (charges 4, 5 and 6) arose from items found at Giltinan’s house upon his arrest on 9 February 2021.
Reasons for sentence
In sentencing the applicant and Giltinan in respect of the common trafficking charge the judge noted the serious nature of the offence, attracting a maximum sentence of 25 years, but found that the offending by both represented ‘a low-level example’ of that serious offence. Explaining his view, the judge said that the quantity of drug involved was only ‘slightly above’ the designated commercial quantity, the transaction was an isolated one and, by comparison with other types of drug trafficking, the financial rewards from the offending was ‘minimal’.
The judge set out the factors he took into account that were personal to each offender.
In relation to the applicant, the judge noted that he:
•had limited prior criminal history which was of little relevance to the sentence for the offending;
•was 31 years old, had experienced serious family violence before his parents separated when he was ten years old, was educated to Year 11, and had worked as a concreter and tiler for about 12 years before becoming unemployed in 2019;
•began using cannabis at 13, methylamphetamine at 15 and GHB from about 21;
•was of low-average intelligence, suffered from depression and anxiety, and his drug dependence impacted decision making and self-control;
•had the support of his extended family and friends, had work available to him upon his release from custody and enjoyed reasonable prospects of rehabilitation provided he dealt with his drug use issues.
In his favour, the judge considered that his guilty pleas were made at the earliest opportunity, the utility of which was enhanced being made during the COVID-19 pandemic; COVID-19 was likely to make time in custody more onerous; and his depression and anxiety would be heightened in custody, which would also make custody more onerous.
In relation to Giltinan, the judge noted that he:
•had an ‘extensive and disturbing’ prior criminal history involving 157 prior offences from 13 court appearances including numerous dishonesty offences, numerous convictions for possession of drugs and eight prior convictions for trafficking drugs;
•was 31 years old, his parents had separated when he was three or four and he was diagnosed with and medicated for attention deficit hyperactivity disorder (ADHD) at age five leading to longstanding behavioural problems during schooling;
•was raped at 13 by an older teenager;
•left school after Year 10, performed some general labouring, roof tiling and car detailing work but then became increasingly isolated in gaming and drug taking before becoming a disability pensioner due to his ADHD;
•was also diagnosed with post-traumatic stress disorder (PTSD) from episodes of violence and sexual assault in his childhood and youth;
•was under psychiatric care until about 2015 when his psychiatrist retired without appointing any replacement psychiatrist; and
•fell ‘heavily into a cycle of drug use, offending, release and repeat’ from about 2015 onwards coinciding with the cessation of his psychiatric care.
In Giltinan’s favour, the judge took into account his pleas of guilty which were made at the earliest opportunity, and enhanced by being made during the COVID-19 pandemic; that COVID-19 would make time in custody more onerous; and that his psychological and mental health issues would be adversely affected by custody and make custody more onerous. The judge accepted that Giltinan’s mental health issues were chronic which, with his troubled childhood, helped the judge ‘to understand [his] decline into long-term drug abuse and crime’. The judge also acknowledged the strong support of Giltinan’s mother. Nevertheless, the judge considered he had ‘poor prospects of rehabilitation’ if he were not able to overcome his drug use by dealing with his mental health issues.
The judge considered that, for Giltinan, deterrence and denunciation were the principal sentencing considerations. But the judge considered that the applicant’s position was ‘markedly different’ from that of Giltinan, and sentenced the applicant for offending ‘on one day’ as a person without relevant prior convictions.
Relevant legal principles
The principle of parity in sentencing is based upon the notion of equal justice.[2] Equal justice in this context requires that, as between co-offenders, there should not be a marked disparity in sentences for the same offence which would give rise to a justifiable sense of grievance or lead to the appearance in the mind of an objective observer that justice has not been done.[3]
[2]Lowe v The Queen (1984) 154 CLR 606, 610–611 (Mason J); [1984] HCA 46.
[3]Postiglione v The Queen (1997) 189 CLR 295, 301–302 (Dawson and Gaudron JJ); [1997] HCA 26 ; R v Waugh [2009] VSCA 92, [17] (Nettle JA).
The principle requires that any significant difference in the sentences imposed on co-offenders reflect the differences in their degrees of culpability and their personal circumstances.[4] A justifiable sense of grievance may arise where the difference (or lack of difference) is incapable of rational explanation.[5] Nonetheless, the concept does not dictate ‘mathematical proportionality’,[6] nor is there any ‘scientifically precise answer to the quantification of disparities…[u]ltimately it is an evaluation based on impression.’[7]
[4]Postiglione v The Queen (1997) 189 CLR 295, 302 (Dawson and Gaudron JJ); [1997] HCA 26; Dawidv Director of Public Prosecutions [2013] VSCA 64, [43]; R v Tran [2022] VSCA 45, [46].
[5]R v Tien [1998] VSCA 6, [40] (Tadgell JA); Abdou v The Queen [2015] VSCA 359, [62].
[6]Dawidv Director of Public Prosecutions [2013] VSCA 64, [43]; R v Tien [1998] VSCA 6, [39] (Tadgell JA); R v Waugh [2009] VSCA 92, [17] (Nettle JA).
[7]Ah-Kau v The Queen [2018] VSCA 296, [51].
On appeal, where a ground is raised about disparity in the treatment of co-offenders, the question is whether it was reasonably open to the sentencing judge to differentiate — or fail to differentiate — between the co-offenders in the way revealed by the sentences when proper weight is given to the similarities and differences in relation to their respective culpability, criminal history and personal circumstances.[8]
[8]Barbaro v The Queen [2012] VSCA 288, [63].
Applicant’s submission
The applicant emphasised three main factual differences between himself and the co-accused, Giltinan, namely:
•the disparity in their respective criminal histories;
•that Giltinan offended whilst subject to a community corrections order in addition to being (like the applicant) on bail; and
•that Giltinan’s offending in respect of the common trafficking charge occurred within a sequence of offending transactions over a two month period whereas the applicant’s offending was an isolated transaction on one day.
In substance, the applicant argued that, on the basis of those factual differences, (1) Giltinan’s culpability was greater than the applicant’s; (2) his rehabilitative prospects were much worse than the applicant’s; and (3) specific deterrence and community protection both fell to be given much greater prominence in Giltinan’s case than in the applicant’s.
Insofar as Giltinan suffered the consequences of an adverse family history, and mental health and psychological difficulties, so too did the applicant. The applicant ought to have had enjoyed no less mitigatory benefit from such considerations as Giltinan did. Putting it another way, any mitigation of sentence allowed to Giltinan by reason of his adverse mental health background should similarly have been ‘passed through’ to the applicant because of his equivalent problems.
Accordingly, the applicant submitted that there ought to have been substantially greater disparity between the sentences imposed on himself and Giltinan respectively for the common trafficking charge. His counsel noted that the applicant’s sentence on the common trafficking charge was 83 per cent of the duration of Giltinan’s sentence. When pressed to say what a sufficiently disparate sentence might have been, counsel for the applicant suggested that a sentence of 2 years for the applicant (a 12 month difference) would have avoided error.
Respondent’s submission
The respondent pointed out that the applicant’s submission amounted to saying that the judge was ‘bound’ to impose something less than 2.5 years’ imprisonment upon the applicant to achieve an appropriate discrepancy between the two sentences.
The respondent submitted that while it was clear that Giltinan had a much greater criminal history, there were other factors at play. Although both offenders had complex psychological makeups, Giltinan’s situation in this regard seemed perceptively worse. In particular, he suffered badly from ADHD from childhood through to adulthood for which he was in receipt of a disability support pension. He had a chaotic upbringing sometimes subject to extreme violence, including being raped at the age of 13. He had been bashed in prison and had been required to serve past sentences in protection.
These differences in psychological condition and upbringing operated to inform and differentiate between the objective gravity of each offender’s offending. For example, if one was to take into account the activity of the covert police operatives, in his compromised psychological state Giltinan was effectively ‘strung along and prevailed upon by police’ whereas the same could not be said with respect to the applicant. The applicant simply had access to the drug and so supplied it. He did so for greater profit.
Further, the respondent drew particular attention to the judge’s reliance on the reference from Giltinan’s mother tendered to the court on the plea. In that reference the mother explained Giltinan’s decline into drug abuse and crime once his psychiatric support was removed around the end of 2014. This, the respondent submitted, provided a reasonable basis for the judge moderating the adverse effect that Giltinan’s extensive criminal history would otherwise have had in the determination of the appropriate sentence.
In conclusion, the respondent submitted that when one closely examines the history of each offender and, in particular, how it was that each offender came to offend, the applicant’s assertion that it was ‘unreasonable’ or ‘plainly unjust’ to have greater disparity between the sentences cannot be maintained. While a different judge might have come to a different view, he submitted that it cannot be concluded that it was not open for this judge to see things as he did.
Analysis and conclusion
The starting point, of course, is that the applicant and Giltinan are co-offenders in respect of the common trafficking charge. There is a disparity of approximately 17 per cent between the length of the sentences they each received for that charge. On the applicant’s argument, the differences in the aggravating factors for Giltinan compared with the applicant, in the context of the similarities between them in relation to mitigatory factors, demonstrates that a sentencing disparity of only 17 per cent was manifestly insufficient.
Having regard to the principle of equal justice, the question posed by the applicant’s proposed ground of appeal is whether, in the circumstances of this case, it was open to the sentencing judge to have sentenced the two offenders on the common trafficking charge with only a 17 per cent disparity between them. Was the judge bound to impose sentences with a greater difference?
The argument which the applicant proposes to raise on appeal is challenging because, first, there is a disparity in the sentences and, secondly, there is no scientifically precise answer to the quantification of disparities, the appropriate differentiation involving individual impression.
As for the similarities to which the applicant draws attention, it is the case that the two offenders were of similar ages, both were of low-average intelligence, they each had disrupted early family life and each of them were to varying degrees afflicted by depression and anxiety-like conditions.
Nevertheless, their situations were not identical. Giltinan’s personal history, featuring some domestic abuse, violence at the hands of other teenagers and whilst in prison, and having being raped at the age of 13, together with his ADHD and PTSD, presented a perceptibly different background to that of the applicant. None of this detracts from the fact that the applicant himself was hampered by some developmental issues and psychological problems, but there were reasonable grounds for differentiation on these aspects.
Turning to the differences in aggravating features, the fact that, while offending, Giltinan was subject to a community corrections order as well as being on bail, is not likely to be viewed as a feature of any great materiality between the two offenders (in part because of what is described below about the cyclical nature of Giltinan’s offending).
Secondly, it is true, of course, that Giltinan was to be sentenced as a person engaged in a series of offending transactions, unlike the applicant who was only sentenced for an isolated offence committed on one day. But, for reasons to which I am about to turn, this distinction could be given less significance than it otherwise would but for Giltinan’s past. Moreover, unlike the applicant, the fact that Giltinan was being sentenced for a number of offences committed over a relatively short period of time gave rise to considerations of totality which did not arise in the sentencing exercise for the applicant.
The clear difference between the offenders was their criminal antecedents. The judge plainly noted the difference between them, saying of Giltinan that his history was ‘extensive and disturbing’ whereas for the applicant it was ‘very limited’ and of ‘little relevance’.
Antecedent criminal history may indicate that the offence for which the offender is to be sentenced is the manifestation of a ‘continuing attitude of disobedience of the law’.[9] If so, that circumstance ‘may’ indicate that a more severe penalty is warranted to satisfy the sentencing objectives of punishment, deterrence (specific and general) and community protection.[10]
[9]Veen v The Queen (No 2) (1988) 164 CLR 465, 477; [1988] HCA 14.
[10]Ibid.
In the present case, it is evident that the judge was strongly influenced by the account of Giltinan’s background given by his mother. The judge quoted extensively from the mother’s written reference which the judge said ‘eloquently sums up [Giltinan’s] life’. In the reference, the mother had explained the tragic impact of Giltinan’s ADHD on his early life, and the coincidence between his decline into a cycle of drug abuse, offending and court appearances in 2015 with the removal of his psychiatric support in late 2014. It was that history which, for the judge, explained Giltinan’s troubled childhood and helped the judge better understand Giltinan’s decline into long-term drug abuse and crime.
Acceptance of this explanation was logically capable of permitting the judge to reason that Giltinan’s offending on this occasion was less the manifestation of wilful disobedience of the law than it was the product of drug addiction that had its genesis in a particular troubled background and psychological profile. That the judge treated Giltinan’s background as ameliorating the effect of his past history of repeat offending is supported by the emphasis given to specific deterrence and denunciation — rather than punishment, general deterrence or community protection — as the relevant sentencing objectives.
This is not to say that the judge applied the first of the principles in Verdins[11] or the principles in Bugmy,[12] to which no reference was made. Rather, the judge’s focus on the mother’s reference, and what he drew from it, is the apparent basis for the judge attributing less aggravating significance to Giltinan’s extensive history of offending. In turn, a moderation of the aggravating impact of Giltinan’s criminal history is rationally capable of explaining the modest (but nonetheless material) difference between the two sentences. Contrary to the applicant’s argument, there is no reason why the applicant should receive any ‘pass through’ benefit because of the moderation of Giltinan’s sentence. Rather, these considerations provide a rational explanation for shrinking the gap between the two sentences, not a justification for retaining a larger gap.
[11]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[12]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
The respondent also pointed to Giltinan’s particular gullibility and naïveté in his dealings with the covert police operatives, arguing that his culpability could be seen as lowered by having been strung along by police — unlike the applicant for whom the same argument was not available — and that the judge would not have failed to notice that feature. It is not necessary for present purposes to ponder that argument.
A careful reading of the judge’s reasons for sentence discloses a logical foundation for the relatively modest differentiation between the two sentences imposed on the common trafficking charge notwithstanding the factual differences to which the applicant points. In my view, it is not reasonably arguable that the disparity between the sentences of (only) 6 months would give rise to a justifiable sense of grievance when all the circumstances are properly considered. For that reason, the contention that the judge was bound to sentence the offenders with greater disparity having regard to the similarities and differences in relation to their respective culpability, criminal history and personal circumstances does not have a reasonable prospect of success.
Given my view of the merits of the proposed ground of appeal, I decline to grant an extension of time in which to seek leave to appeal.
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