Parks v R
[2017] VSCA 232
•1 September 2017 (MELBOURNE)
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0014
| SCOTT ANDREW PARKS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, BEACH and McLEISH JJA |
| WHERE HELD: | GEELONG |
| DATE OF HEARING: | 2 August 2017 |
| DATE OF JUDGMENT: | 1 September 2017 (MELBOURNE) |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 232 |
| JUDGMENT APPEALED FROM: | DPP v Parks (Unreported, County Court of Victoria, Judge Murphy, 19 August 2016) |
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CRIMINAL LAW – Appeal – Conviction – Trafficking commercial quantity methylamphetamine – Whether verdict unsafe and unsatisfactory – Leave to appeal refused.
EVIDENCE – Evidence of precursor chemical – Evidence of phosphorous acid as ingredient in methylamphetamine manufacture – Whether evidence probative of trafficking commercial quantity – Whether probative as to knowledge – Whether evidence unfairly prejudicial – Adequacy of direction on evidence – Evidence Act 2008 s 137.
CRIMINAL LAW – Appeal – Sentence – Trafficking commercial quantity methylamphetamine – Manifest excess – Leave to appeal refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S P Devlin | Theo Magazis & Associates |
| For the Respondent | Ms S A Flynn | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
BEACH JA
McLEISH JA:
On 10 August 2016, the applicant (now aged 43) was convicted after a trial of one charge of trafficking in a commercial quantity of a drug of dependence (methylamphetamine), one charge of trafficking in a drug of dependence (cannabis) and one charge of possessing a precursor chemical (phosphorous acid). He had previously pleaded guilty to two charges of possessing a drug of dependence (cocaine and 1,4 butanediol). The jury acquitted him of other trafficking and possession charges. After the verdicts he also pleaded guilty to a summary offence of possessing cartridge ammunition. The applicant was sentenced on 19 August 2016 as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1
Trafficking commercial quantity drug of dependence (methylamphetamine)
[Drugs, Poisons & Controlled Substances Act 1981 s 71AA]25 years’ imprisonment 6 years Base 4 Possess drug of dependence (cocaine)
[Drugs, Poisons & Controlled Substances Act 1981 s 73]1 year 1 month - 5 Trafficking drug of dependence (cannabis)
[Drugs, Poisons & Controlled Substances Act 1981 s 71AC]15 years 3 years 1 year 8 Possess drug of dependence (1,4 butanediol)
[Drugs, Poisons & Controlled Substances Act 1981 s 73]1 year 1 month - 9 Possess precursor chemical (phosphorous acid)
[Drugs, Poisons & Controlled Substances Act 1981 s 71D]5 years 1 year 6 months Summary Charge 5 Possess cartridge ammunition [Firearms Act 1996 s 124] 40 penalty units $800 fine - Total effective sentence: 7 years and 6 months’ imprisonment; $800 fine Non-parole period: 4 years and 6 months’ imprisonment
A forfeiture order was made in relation to cash in the aggregate sum of $101,340.
Proposed grounds of appeal
The applicant sought leave to appeal against his convictions on charges 1 and 9, on two grounds:
1. That the convictions on Charges 1 and 9 are unsafe and unsatisfactory on the basis that the learned trial judge allowed evidence before the jury to the extent that the precursor chemical alleged in Charge 9 could be used to:
(a) Manufacture methylamphetamines; and, or
(b) Manufacture 500 grams of methylamphetamines (being … greater than the amount alleged to be the commercial quantity in Charge 1).
2. That the convictions on Charges 1 and 9 are unsafe and unsatisfactory as the Jury were not given adequate direction by the learned trial judge as [to] the use of evidence that the precursor chemical could be used to manufacture methylamphetamines and that the Accused had not been charged with any such offence.
The applicant also sought leave to appeal against the sentence imposed on the ground that it was manifestly excessive.
Circumstances of the offending
The applicant’s home was searched by police on 17 October 2014. The applicant was not present at the time. The police located various drugs, cash and other items at the property as follows:
(a)an aggregate of 195 grams of pure methylamphetamine, comprising 218.6 grams of methylamphetamine of varying purity in 13 separate packages. The largest quantity was found in a plastic box and was 197.6 grams with a purity of 90 per cent (approximately 178 grams pure). A further 21 grams was found in 12 bags of varying quantities with an average purity of 82 per cent (approximately 17 grams pure);
(b) 5.2 grams of cocaine with a 50 per cent purity;
(c) an aggregate of 4.09 kilograms of cannabis in four separate places;
(d) two glass containers containing 1,4-butanediol with an aggregate weight of 16.6 grams;
(e) a taped plastic container containing 1.12 kilograms of phosphorous acid;
(f) what were described as accoutrements of trafficking: numerous plastic zip lock bags, two sets of electronic scales, glassware, a notebook containing what was described as a tick list of drug sales, a handwritten document capable of being construed as referring to the cutting of methylamphetamine, and $101,340 in cash hidden in various places; and
(g) a quantity of live and spent ammunition and cartridges.
The applicant surrendered himself to the police on 23 October 2014 and made a no comment record of interview. His solicitor later provided police with a declaration made by the applicant, accepting responsibility for the illegal drugs and money found on the premises.
Appeal against conviction
Ground 1: Admissibility of precursor chemical evidence
In respect of charge 1, the applicant accepted at trial that he was in possession of the methylamphetamine found at his premises but denied that he knew that it was a commercial quantity (the threshold for a commercial quantity of pure methylamphetamine being 100 grams). The applicant gave evidence that the methylamphetamine in his possession was for his own consumption and for sale to some friends at cost price. On that basis he offered to plead guilty to charge 2, which alleged simple trafficking, but denied the charge of commercial trafficking.
In respect of charge 9, the applicant denied knowledge that phosphorous acid was a precursor chemical. He gave evidence that he had been looking after a pool cleaning chemical for an acquaintance.
The prosecutor did not seek to argue that the applicant had been intending to manufacture methylamphetamine. However, the prosecutor sought to adduce evidence in relation to charges 1 and 9, through an expert witness, that phosphorous acid can be used to manufacture methylamphetamine.
The defence opposed that application on the basis that it would be unfairly prejudicial to the applicant because of the risk that the jury might speculate, based on that evidence, that the applicant was involved in the manufacture of methylamphetamine.
The trial judge allowed the evidence, but only on a narrow basis, as follows:
In circumstances where the prosecution are not alleging that he intended to use the precursor chemical to make methylamphetamine, then the prosecution are seeking to put the proposed witness’ evidence before the jury on a narrow basis. In those circumstances, while it may be that the jury might speculate that he intended to manufacture methylamphetamine, the state of mind of the accused is a very relevant consideration for both Count 1 and Count 9, and I do not accept the proposition that there was a risk of unfair use of the proposed evidence such as to outweigh the probative value of the evidence in the overall circumstantial case on both Count 1 and Count 9. And so for those reasons I decline to uphold the objection to the evidence made by defence counsel.
Defence counsel sought a certificate pursuant to s 295 of the Criminal Procedure Act 2009 to bring an interlocutory appeal against the ruling. In the course of refusing a certificate the judge stated that in respect of charge 9 the defence could have expected the Crown to lead evidence as to what phosphorous acid was to be used for and observed that the defence would have an opportunity to cross-examine the witness.
As events transpired, the judge allowed the prosecutor to elicit evidence from the expert witness, not only that phosphorous acid could be used to make methylamphetamine, but also as to the quantity of methylamphetamine that could have been made with the amount of phosphorous acid found at the applicant’s premises. This last evidence was not specifically referred to in the earlier rulings. However, the trial judge held that it was covered in the first ruling ‘on the basis that the prosecution are not alleg[ing] that the accused was manufacturing … the question is whether you’re entitled to lead that type of evidence and in a circumstantial case I’m allowing it.’
The expert witness duly gave evidence that with 1.12 kilograms of phosphorous acid, and sufficient iodine and ephedrine or pseudoephedrine, approximately 500 grams of pure methylamphetamine could be made.
On appeal, the applicant submitted that, given the trial judge’s rulings on the limited use of the expert evidence, the prosecution should not have been allowed to elicit the additional evidence as to the quantity of methylamphetamine that could have been made. While in his written case the applicant contended that the evidence complained about was irrelevant, in argument he conceded relevance (correctly, in our view) and confined his complaint to an argument that the probative value of the evidence was outweighed by the danger of unfair prejudice.
The applicant submitted that the evidence was of barely any probative value, and that it had an overwhelmingly and unfairly prejudicial effect in relation to charge 1, by inviting speculation by the jury that the applicant had, or could have, manufactured methylamphetamine in an amount greater than the amount he was charged with possessing for sale.
The respondent submitted that the applicant’s knowledge of the quantity of the methylamphetamine he possessed was critical to the prosecution case. The prosecution had put its case on charge 1 on the basis that the applicant had the methylamphetamine in his possession for the purpose of sale. The prosecution was required to prove that the applicant had the intention to traffick in a commercial quantity contemporaneously with his possession of the methylamphetamine.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981 s 70: definition of ‘traffick’ (c): ‘sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence’; Director of Public Prosecutions Reference No 1; R v Nguyen (2005) 12 VR 299, 303 [9]–[10]; R v McCulloch (2009) 21 VR 340, 345 [12].
The respondent submitted that the applicant’s simultaneous possession of the phosphorous acid (charge 9), as a precursor chemical used to manufacture methylamphetamine, was relevant and admissible in the trial on charge 1 as circumstantial evidence. This evidence, along with the evidence as to the quantity of methylamphetamine that could have been made, tended to show the extent of the applicant’s involvement in the illicit drug trade and, inferentially, the level of his knowledge regarding drug-related matters.[2] The prosecution led the evidence as relevant to the applicant’s state of mind: his knowledge of the quantity of methylamphetamine he possessed for charge 1 and his knowledge that phosphorous acid was a precursor chemical for charge 9.
[2]Evidence Act 2008 ss 55–6. See R v Lewis (1989) 46 A Crim R 365, 367 (Rice J dissenting); R v McGee (1993) 61 SASR 208, 210–11; R v Sultana (1994) 74 A Crim R 27, 28–30 (Gleeson CJ, Handley JA agreeing), 36–7 (Sully J); R v Blackwell (1996) 87 A Crim R 289, 290–1 (Duggan J, Prior and Debelle JJ agreeing); Evans v R [1999] WASCA 252 [30]–[38] (Malcolm CJ, Anderson and White JJ agreeing); R v Papaluca (2000) 25 SR (WA); Atholwood v R (2000) 110 A Crim R 417, 418–24 [2]–[26] (Malcolm CJ, Wallwork and Anderson JJ agreeing); R v Rees [2005] ACTSC 91 [16]–[18].
The respondent submitted that the evidence that the amount of phosphorous acid possessed by the applicant was enough to produce 500 grams of pure methylamphetamine (five times more than the commercial quantity threshold) made more compelling the inference that the applicant possessed the methylamphetamine for the purpose of sale and that he intended to possess a commercial quantity of that drug: it went again to the extent of his involvement in the illicit drug trade, and to the fact that this involvement was at a commercial level. Without this evidence the jury would have been left to speculate about the significance of the police finding the phosphorous acid located on the same premises as a commercial quantity of high purity methylamphetamine.
The respondent submitted that the significant probative value of the evidence was not outweighed by the risk of unfair prejudice, and any risk that the jury might misuse the evidence or give it inappropriate weight was mitigated by the judge’s subsequent directions on the evidence.
The respondent submitted, in the alternative, that if the trial judge erred in admitting the evidence, the applicant’s conviction on charge 1 was inevitable and, as such, there was no substantial miscarriage of justice.[3]
[3]Criminal Procedure Act 2009 s 276(1)(b); Baini v The Queen (2012) 246 CLR 469, 481 [32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
The question presented by the first proposed ground is whether the evidence that phosphorous acid could be used in the manufacture of methylamphetamine, and the evidence as to how much methylamphetamine could thereby by made, should have been excluded under s 137 of the Evidence Act 2008. That provision requires the exclusion of evidence whose probative value is outweighed by the danger of unfair prejudice to the accused.
Counsel for the applicant contended that the evidence was of very limited probative value and was very significantly and unfairly prejudicial. In respect of probative value, he submitted that the authorities upon which the respondent relied on the appeal, which permitted the admission of evidence as to an accused’s possession of items associated with dealing in drugs,[4] were to be distinguished on the basis that precursor chemicals were not so associated. Rather, the presence of a precursor chemical went only to the prejudicial issue of the manufacture of drugs. The evidence of the quantity of methylamphetamine that could be made with 1.2 kilograms of phosphorous acid was said to have barely any probative value.
[4]See n 2 above.
These submissions should be rejected. The evidence that the phosphorous acid found at the applicant’s home could be used to make methylamphetamine, and in more than a commercial quantity, was part of the circumstantial case bearing on the question whether the applicant knew that the methylamphetamine he had in his possession for sale was a commercial quantity. The fact that he was in possession of a substantial quantity of a chemical used in the manufacture of methylamphetamine was capable of suggesting that he was sufficiently knowledgeable about the drug to know how pure the methylamphetamine he had in his possession was and therefore whether the pure quantity he possessed was more than 100 grams or not.
As explained further below, this was consistent with the way in which the prosecutor advanced the case before the jury. It is therefore not necessary to consider whether the evidence might also have been relevant, as the respondent submitted on the appeal, by virtue of being evidence of the possession of items associated with dealing in drugs.[5] Unlike the cases on which the respondent relied, in the present case the fact of dealing (albeit to friends at cost) was not in dispute. As explained, the only issue was the applicant’s knowledge of the quantity of methylamphetamine he had in his possession for sale.
[5]Ibid.
The applicant argued that, even if the evidence of the use to which phosphorous acid could be put had probative value, the evidence as to the quantity of methylamphetamine that could have been produced using the phosphorous acid found at the applicant’s premises did not. That submission must also be rejected. If anything, it was the latter evidence that gave the former evidence its probative value. Without knowing how much methylamphetamine could have been produced, the significance of the presence of the phosphorous acid would have been opaque.
The only unfair prejudice that was suggested to have arisen from the admission of the evidence was the risk that the jury would speculate impermissibly about the applicant being involved in the manufacture of methylamphetamine, or reasoning from that speculation that he was more likely to have been trafficking a commercial quantity or that he was the kind of person likely to do so. But that risk was capable of being dealt with by direction from the judge. And the risk was low. The issue of manufacture was not before the jury in any way and there was no evidence to suggest involvement by the applicant in such manufacture. Evidence was adduced in cross-examination of the Crown’s expert witness that none of the other necessary chemicals, or the equipment, necessary to use phosphorous acid to manufacture methylamphetamine were found at the applicant’s premises. In those circumstances, viewing the evidence in the context of the trial, the risk of unfair prejudice was slight at best and s 137 did not require the exclusion of the evidence.
For these reasons, there is no substance in the first proposed ground of appeal against conviction.
Ground 2: Adequacy of direction on precursor chemical evidence
At the conclusion of the prosecution case and again before the prosecutor’s closing address, defence counsel requested a direction from the trial judge reminding the jury that there had been no evidence of the applicant being involved in manufacturing methylamphetamine and warning the jury not to speculate about that possibility. The trial judge agreed to give such a direction.
In his charge relating to charge 9, the trial judge said the following:
The defence — the accused man gave evidence. He was asked if he had pool cleaner from a friend. He denied knowing it was a prohibited chemical. And one of the officers gave evidence, in looking at it you could not tell the difference between … phosphorous acid and ordinary salt. Officer Renfrey or Officer Crowe gave evidence that there was no evidence of manufacture in the house, and I direct you, there is no evidence that the accused man was engaged in manufacturing methylamphetamine. You are not to speculate about that. The prosecution are not saying that there was any evidence of manufacture. The prosecution, their view, in a sense the possession of the phosphorous acid is part of their overall case on Count 1, that the accused man knew about drugs. He had been a long-term drug user, methylamphetamine user. They ask you to infer that he must have known how people make methylamphetamine, but they are not suggesting in this case that he in fact was making methylamphetamine and that that, yes — there is no suggestion that he did manufacture methylamphetamine. So you are not to speculate about that.
So the defence case that — he was asked to get pool cleaner for someone who had just had a spa, that is what he believed it was. If you accept that account of his on the balance of probabilities, then you must acquit him of that charge. The prosecution say look, he is an experienced drug user, he must have known — he has got the Exhibit D which one officer said really shows how to manufacture or refers to the manufacture of methylamphetamine. That is part of the overall circumstantial case, is his state of mind and his knowledge of drugs, including the components of methylamphetamine, and so you really should not accept his account that he had just had 1.2 kilograms of a white chemical, what was pool cleaner. So on that the defence says no, you should accept his account. You should accept his account on the balance of probabilities and the prosecution could not satisfy you beyond reasonable doubt that he intended to possess a prohibited precursor chemical.
No exception was taken at trial to these statements.
The applicant submitted that the direction given by the trial judge was inadequate to remove the prejudicial potential of the evidence and the real risk of the jury speculating as to the possibility that the applicant had been manufacturing or could have manufactured methylamphetamine in circumstances where he had not been charged with doing so.
The applicant also submitted that the judge’s warning was immediately followed by a repetition of the prosecution’s case ‘that the accused man knew about drugs’ and must have known about drugs as a long-time methylamphetamine user. The applicant submitted that this had the effect of confusing or diluting the direction.
The applicant took issue with other aspects of the direction. He submitted that the trial judge’s reference to the evidence of ‘one officer’ in respect of Exhibit D (a handwritten note on the back of an imitation $100 bill) as referring to the manufacturing of methylamphetamine overstated the evidence of that witness, who conceded in cross-examination that his interpretation of the note was based on assumptions rather than any explicit reference in it to the component chemicals of methylamphetamine. It was said that the direction was not balanced by reference to the evidence of the expert witness who stated that he did not interpret the note as a recipe for methylamphetamine, and also accepted that the mere presence of both methylamphetamine and phosphorous acid at the same premises (without iodine and ephedrine or pseudoephedrine) did not provide evidence of any manufacture of methylamphetamine.
The respondent submitted that the way the prosecution relied on the applicant’s possession of phosphorous acid and the fact that it could be used as a precursor chemical in the manufacture of methylamphetamine was carefully explained to the jury in the prosecutor’s closing address. There was no appreciable risk that the jury would misunderstand the prosecutor’s reliance on the evidence and convict the applicant on charge 1 on the basis of trafficking by way of manufacture.[6]
[6]Drugs, Poisons and Controlled Substances Act 1981 s 70: definition of ‘traffick’ (b): ‘manufacture a drug of dependence’.
The evidence was explained in the prosecutor’s closing address as one of 12 pieces of the ‘picture’ of the circumstantial case against the applicant:
The third piece of the picture, the accused had 1.12 kilograms of phosphorous acid at his premises. Phosphorous acid is a precursor chemical for methylamphetamine manufacture. The evidence of Dr Neely was that if all the necessary chemicals were present for the production of methylamphetamine, that amount of phosphorous acid could be used to make 500 grams of pure methylamphetamine. The evidence of the accused being in possession of phosphorous acid is relevant to his knowledge of methylamphetamine. Possession of a chemical that is used in the manufacture of methylamphetamine indicates a knowledge of methylamphetamine.
The prosecutor returned to the matter when addressing the jury in relation to the applicant’s truthfulness, as follows:
Third matter which also deals with the phosphorous acid, you might think that every aspect of the accused’s story of how he came to obtain the phosphorous acid is far-fetched. He says his friend was looking for swimming pool salts to sanitise his spa. Now, why the accused should be looking for the chemical for his friend is unexplained. How the accused went about obtaining the chemicals is unexplained also. … I was asking him how he went about it and he said, well, his recollection was, ‘I must — asked about it somewhere.’ As I said, amazingly he can’t remember who supplied him with the chemicals. A coincidence, isn’t it? Coincidence that the accused, a person who admits to trafficking methylamphetamine receives sufficient precursor chemical that can be used to make 500 grams of pure methylamphetamine. He’s got that in his possession, but — now that’s a coincidence. Amazingly he says oh he believes it to be pool salts. The falsity of all that I suggest to you, ladies and gentlemen, is manifest.
The respondent submitted that the trial judge twice directed the jury that there was no evidence that the applicant was engaged in manufacturing methylamphetamine and that the jury were not to speculate about that. The respondent submitted that the trial judge did not repeat the prosecution’s case, but explained how the prosecution relied on the evidence so the jury would not misuse it. The respondent submitted that this was entirely appropriate and did not confuse or dilute the direction. Moreover, no exception had been taken to the direction given.
In the alternative, the respondent submitted that if the trial judge did err in the way he directed the jury, the applicant’s convictions on charges 1 and 9 were again inevitable, and accordingly there had been no substantial miscarriage of justice.[7]
[7]See n 3 above.
Read in isolation, the direction not to speculate that the applicant was engaged in the manufacture of methylamphetamine was clear and unequivocal. It was given twice in a short space of time. We do not consider that the way in which the judge referred to the parties’ cases, after warning the jury not to speculate about manufacture, undermined his direction. It made sense, having told the jury that the Crown did not rely on any allegation of manufacture, to remind them, by way of contrast, of how the Crown did put its case. At the same time, the jury was reminded of the defence position as well.
As to the specific observations the judge made about the evidence, and the criticisms made of those observations, the question how the evidence was summed up for the jury was quintessentially one best addressed at the trial.[8] The prosecution advanced a circumstantial case on charge 1, involving 12 aspects of a ‘picture’. Obvious forensic choices fell to be made as to the relative importance of evidence going to the individual pieces of that picture. In those circumstances there is no basis for thinking that, in the absence of any exception being taken to this aspect of the impugned direction, there were ‘substantial and compelling reasons’ for revisiting it.[9]
[8]Jury Directions Act 2015 s 65(c).
[9]Ibid s 16.
It might have been preferable if the direction had been given when the judge was summarising the evidence regarding charge 1, rather than charge 9. The risk of unfair prejudice principally concerned charge 1. In that context, in the course of reminding the jury of what was said in closing addresses, the judge alluded to the prosecutor’s reference to the presence of phosphorous acid, albeit without reminding the jury about the quantity of methylamphetamine that could have been produced. But it was not suggested, nor could it be, that it was necessary then to repeat the direction given a short time earlier.
For these reasons, leave to appeal against conviction should be refused.
Appeal against sentence
In his written case as to sentence, the applicant first took issue with the sentencing judge’s characterisation of the offending. During the plea hearing, the judge referred to the applicant as a ‘significant trafficker’ with ’bags all ready set to go’ and stated: ‘it’s obvious that he was running a significant trafficking operation’. The defence expressed concern regarding any finding by the trial judge that the applicant was a ‘significant trafficker’, submitting that such a finding would be an error and not based on the available evidence. By way of contrast, the applicant submitted that the prosecution had classified the applicant’s offending as ‘low to medium’ to the jury.
The judge concluded in his sentencing remarks that the applicant was ‘operating a significant trafficking operation’, based on:
The finding of 197.6 grams of 90 per cent pure methylamphetamine in a plastic bag, along with 12 other bags containing various smaller amounts of methylamphetamine of generally high purity, and the presence of numerous other ziploc bags, and over $100,000 in cash … [10]
[10]Reasons for sentence in respect of Scott Andrew Parks (19 August 2016, Judge Murphy, County Court of Victoria) [21] (‘Sentencing Remarks’).
The applicant submitted that the judge erred in giving too much weight to his finding that the applicant was a ‘significant’ trafficker.
Conversely, the applicant submitted that insufficient weight had been given to mitigating factors, in particular the evidence of the very real progress that the applicant had finally made in ending a long-standing addiction to methylamphetamine (which he had used, not for recreational purposes, but as a means of addressing his attention deficit hyperactive disorder (ADHD)). It was said that this indicated that the applicant’s prospects of rehabilitation were reasonable, rather than ‘guarded’, as the judge had held. The applicant submitted that his personal drug use was more relevant to his sentencing than the ‘significant’ trafficking he was found to have engaged in by the trial judge.
Although aspects of the applicant’s written case appeared to seek to raise allegations of specific error, counsel argued the point as one of manifest excess, consistent with the proposed ground of appeal. Argument concentrated on the sentence of six years’ imprisonment on the charge of trafficking a commercial quantity of methylamphetamine.
In our opinion the proposed ground of appeal is not reasonably arguable, because the sentence imposed was not wholly outside the range of the sentencing options available,[11] nor was it ‘shown that something [had] gone obviously, plainly and badly wrong in the exercise of the sentencing discretion.’[12]
[11]DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA) quoting R v Boaza [1999] VSCA 126 [42] (Winneke P); Young v The Queen [2016] VSCA 149 [128].
[12]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P) quoting Clarkson v The Queen (2011) 32 VR 361, 384 [89]. See also Morgan v The Queen [2014] VSCA 303 [20]; Hanks v The Queen [2011] VSCA 7 [22].
The maximum sentence for trafficking a commercial quantity of a drug of dependence is 25 years. The applicant was not entitled to the benefit that would have flowed to him from a plea of guilty. As the respondent submitted, sentences of six years’ imprisonment and above, while at the higher end of sentences imposed, are not uncommon for trafficking a commercial quantity of methylamphetamine.[13] The applicant had been found guilty of serious offending and had a number of relevant prior convictions, including one for trafficking methylamphetamine. Notwithstanding the commendable progress he had made in freeing himself of his addiction, a sentence of six years was well within the available range. In that regard, it is not to be overlooked that the sentencing judge fixed a relatively short non-parole period.[14]
[13]See Gregory (a pseudonym) v The Queen [2017] VSCA 151; see also Sentencing Advisory Council, Sentencing Snapshot No 194: Trafficking in a commercial quantity of drugs (June 2016) 3; Judicial College of Victoria, Sentencing Manual, ‘33.13.3.1 — VSCA overview — trafficking in commercial quantity sentences’ (online, last updated: 29 August 2017).
[14]It was not suggested that the sentence was inappropriately affected by this Court’s observations in DPP v Haddara [2016] VSCA 168 to the effect that sentencing courts ‘may, to a relatively modest extent, adjust the sentencing standards for trafficking in ice to deal with its increased prevalence’: [71]; see also [62], [69].
Leave to appeal against sentence should therefore be refused.
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